author: Judge NEY.

text:
    In re the MARRIAGE OF Elizabeth B. MALEWICZ, Appellant, Michal A. Malewicz, Appellee, and Concerning Jefferson County Department of Human Services, Third-Party Intervenor-Appellee.
    No. 00CA1737.
    Colorado Court of Appeals, Div. III.
    Oct. 24, 2002.
    Karen S. Renne, Pine, Colorado, for Appellant.
    No Appearance for Appellee.
    No Appearance for Third-Party Interve-nor-Appellee.
   Opinion by

Judge NEY.

In this post-dissolution proceeding, Elizabeth B. Malewicz (mother) appeals the district court order adopting the magistrate’s order finding that Michal A. Malewicz (father) had overpaid his child support and denying the request of Jefferson County Department of Human Services for reimbursement. Mother also appeals the district court order finding that it lacked jurisdiction to rule on her motion to review the magistrate’s order denying her C.R.C.P. 60(b) motion for relief. We reverse the district court order relating to the C.R.C.P. 60(b) motion and remand to the district court reviewing judge for the limited purpose of hearing and ruling on that motion.

In the 1991 permanent orders, father was ordered to pay mother $200 per month child support for their son. Father paid child support for the first twelve months and, from 1994 to 1995, made four more payments.

In 2000, father filed a motion for the correct calculation of arrearages, credit for the sixteen payments made, and termination of the support obligation based on the son’s emancipation. Father alleged that mother, in 1992, wrongfully withdrew $10,192.22 from his account in Poland and that he subsequently notified her that these funds would be considered an advance payment of child support. Father also alleged that in 1995, the parties signed a written agreement under which mother accepted an additional $14,000 from father as child support and waived any further claim. Accordingly, father asserted that he had overpaid his child support obligation.

Mother conceded that she withdrew the $10,192.22, but asserted that it was an inheritance that belonged to her. Mother denied that she received the $14,000 or ever signed an agreement waiving further child support.

In a May 2000 order, the magistrate credited father’s evidence and found that the support obligation had been overpaid. When mother filed a motion for review, the district court, in an August 2000 order, adopted the magistrate’s order.

Mother filed a notice of appeal of the August 2000 order the following month. However, the case was then remanded to the district court for the limited purpose of consideration of mother’s C.R.C.P. 60(b)(2) motion for relief from judgment.

In her motion for relief, which was filed November 27, 2000, mother alleged that she had obtained new, conclusive evidence that her signature was forged on the agreement regarding the $14,000 and that the $10,192.22 was her separate property. In an October 2001 order, the magistrate found that mother’s motion was untimely because it was filed outside the six-month period prescribed in C.R.C.P. 60(b)(2).

Mother filed a motion to review the magistrate’s 2001 order, but the district court found that because the parties consented to the magistrate hearing the C.R.C.P. 60(b)(2) motion, the magistrate’s order was not subject to review under C.R.M. 7(b). Accordingly, the district court concluded that it lacked jurisdiction to rule on the motion to review.

I.

We first address, sua sponte, a threshold issue regarding the timeliness of mother’s motions concerning review of the May 2000 order.

Mother filed a motion for extension of time to file a motion for review of the magistrate’s May 3, 2000 order. Even though the C.R.M. has no provision for such an extension, it can be granted under C.R.C.P. 6(b) if the motion for extension is filed within the fifteen-day period for filing the motion for review. See In re Marriage of Talbott, 43 P.3d 734 (Colo.App.2002). However, the fifteen days begins to run from the date of mailing of the magistrate’s written order, see In re Marriage of Talbott, supra, and there is no indication in the record as to that mailing date here.

Mother’s motion for extension was untimely unless either the order was mailed on or after May 5, or a three-day extension of time applies for mailing.

We conclude that the motion for extension of time was timely, even if the order was mailed before May 5, because three days for mailing are to be added pursuant to C.R.C.P. 6(e). See Bonanza Corp. v. Durbin, 696 P.2d 818 (Colo.1985)(parties notified of the entry of judgment by mail under C.R.C.P. 58(a) are entitled to a three-day extension of time pursuant to C.R.C.P. 6(e) when filing their C.R.C.P. 59 motions); Littlefield v. Bamberger, 10 P.3d 710 (Colo.App.2000); In re Marriage of Talbott, supra (C.R.C.P. apply to family law magistrates in some instances). Accordingly, we address the merits of the appeal.

II.

Mother raises two issues regarding her C.R.C.P. 60(b) motion, and we agree as to both.

A.

Mother contends that the district court erred in concluding that, because the parties consented to the magistrate’s involvement, the district court did not have jurisdiction to review the magistrate’s denial of the C.R.C.P. 60(b)(2) motion. We agree.

Because the proceedings before the magistrate occurred after January 1, 2000, this case is governed by the current Colorado Rules for Magistrates. See In re Marriage of Tonn, 53 P.3d 1185 (Colo.App.2002).

C.R.M. 6(b) states that in family law cases, a district court magistrate may perform any or all of the duties specified in §§ 13-5-301 to 13-5-305, C.R.S.2002. People ex rel. Garner v. Garner, 33 P.3d 1239, 1241 (Colo.App.2001). Section 13-5-301(3)(e)(V.5), C.R.S. 2002, provides that family law magistrates have the duty, power, and authority to conduct hearings upon motions.

Except as to contested permanent orders, § 13-5-301 grants authority to family law magistrates that is not conditioned upon the consent of the parties. People ex rel. Garner v. Garner, supra. This section ostensibly conflicts with C.R.M. 7(a) and (b), which distinguish between orders entered with and without the consent of the parties. C.R.M. 7(a) requires that orders entered without consent must be reviewed by the district court reviewing judge prior to further appeal, while C.R.M. 7(b) provides that orders entered with consent are not subject to such review and may be appealed directly to the court of appeals.

However, Gamer clarified that where § 13-5-301 gives the magistrate authority without regard to the consent of the parties, the magistrate’s order must be reviewed by the district court reviewing judge pursuant to C.R.M. 7(a). Thus, the existence of actual consent given by the parties does not render the order subject to the expedited appellate procedure set forth in C.R.M. 7(b). People ex rel. Garner v. Garner, supra.

Here, review of mother’s C.R.C.P. 60(b)(2) motion is governed by C.R.M. 7(a) because the magistrate, under § 13-5-301(3)(e)(V.5), had authority to hear the motion without the consent of the parties. Accordingly, the district court reviewing judge erred in concluding that the parties’ consent robbed the court of its jurisdiction to rule on mother’s motion to review. See People ex rel. Garner v. Garner, supra.

B.

Mother contends next that the magistrate erred in finding that her November 2000 motion for relief was untimely under C.R.C.P. 60(b)(2). Again, we agree.

The magistrate computed the six-month time for filing the C.R.C.P. 60(b)(2) motion from the date of his May 2000 order. However, the time for filing that motion ran not from the date of the magistrate’s order, but from the date of the reviewing judge’s August 2000 order.

There was no order or judgment that could be set aside pursuant to C.R.C.P. 60(b) until the district court reviewing judge adopted the magistrate’s order by, in this case, “denying” the motion to review. See In re Marriage of Schmidt, 42 P.3d 81 (Colo.App.2002)(effect of “denial” of motion to review is to “adopt” the magistrate’s order; under C.R.M. 7(a)(2), district court has the power only to “adopt, reject, or modify” the magistrate’s order). Under C.R.M. 7(a)(3), the magistrate’s May 2000 order would be final only if no motion for review were filed. Once mother filed such motion, the district court reviewing judge had to act pursuant to C.R.M. 7(a)(2) to create a final order. See In re Mamage of Spector, 867 P.2d 181, 183 (Colo.App.l993)(“the magistrate’s order was of a nature that would be considered a judgment if not appealed”).

Thus, mother’s November 2000 motion for relief was filed within six months of the district court reviewing judge’s August 2000 order. Accordingly, it was timely filed under C.R.C.P. 60(b)(2), see In re Marriage of Gance, 36 P.3d 114 (Colo.App.2001), and the magistrate erred in holding otherwise.

C.

Therefore, on remand the reviewing judge shall resolve mother’s C.R.C.P. 60(b) motion on the merits and enter a new order, which shall be the order of the district court. In this regard, the reviewing judge may conduct further proceedings, take additional evidence, or order a trial de novo in the district court. See C.R.M. 7(a)(2); In re Marriage of Talbott, supra.

III.

Mother contends that the evidence does not support the magistrate’s finding that the $10,192.22 belonged to father, and she also contends that the agreement regarding the $14,000 payment should not have been admitted. She further contends that father’s alleged payment was insufficient to fulfill the child support obligation and that the district court erred in failing to require calculation of the exact amount due, with interest. We decline to address these issues at this juncture.

If mother’s motion for relief is granted, these issues may be moot. See In re Marriage of Balanson, 25 P.3d 28 (Colo.2001). If the motion for relief is denied, we will address these issues once the appeal is recerti-fied.

The district court’s order concerning mother’s C.R.C.P 60(b) motion is reversed, and the case is remanded to the district court reviewing judge for the limited purpose of hearing and ruling that on that motion. After the motion has been resolved, mother shall immediately forward a certified copy of the district court reviewing judge’s order to this court, and the case shall be recertified. The order entered shall be made a part of the record on appeal. If the motion is denied, mother’s appeal shall proceed on the remaining issues, and if the motion is granted, the appeal shall be dismissed as moot.

Judge KAPELKE and Judge NIETO concur.


source: Caselaw Access Project

author: Judge JONES.

license: Public Domain

text:
    In re the MARRIAGE OF Beverly GLENN, Appellee, and Burt Glenn, Appellant.
    No. 01CA1945.
    Colorado Court of Appeals, Div. II.
    Nov. 7, 2002.

      Kenneth J. Miller, Oak Creek, Colorado, for Appellee.
    Leslie A. Goldstein, Steamboat Springs, Colorado, for Appellant.
   Opinion by

Judge JONES.

In this post-dissolution of marriage proceeding, Burt Glenn (father) appeals from the orders of the trial court modifying his child support obligation. We affirm in part, reverse in part, and remand with directions.

Beverly Glenn (mother) filed a motion to modify child support on March 16, 2001, seeking to increase the father’s support obligation from $401 per month to $1397 per month. Her request was based primarily upon the father’s receipt of capital gains upon the sale of property that had been awarded to him in the division of the marital estate. After a hearing, the trial court entered an order of modification requiring the father to pay child support of $1542 per month. The father filed a motion for post-judgment relief asserting that a deviation from the support guidelines was warranted in light of the parties’ financial circumstances. The trial court denied the motion.

The father brings this appeal challenging both the order of modification and the trial court’s denial of his request for post-judgment relief.

I.

Initially, we reject the father’s contention that the county judge who issued the modification order and denied the motion for post-trial relief lacked jurisdiction.

The father argues that the record contains no documentation to support a legal determination that the county court judge was properly appointed to function in this proceeding in the capacity of a district court judge. We are not persuaded.

Chief Justice Directive 95-01 provides the chief judge of a district court with the authority to assign district and county court judges within the district when necessary and when funds are available. The chief judge is specifically authorized to assign a judge to a particular court, or to a division within a court, to try a specific case, or hear or decide all or any part of a case. That authority includes the power to assign a qualified county judge to the district court when necessary. People v. Torkelson, 971 P.2d 660 (Colo.App.1998).

In accordance with Chief Justice Directive 95-01, an order issued by the chief judge is on file in the district court, which generally grants the county court judge who presided over this proceeding the authority to hear any district court case in the capacity of an acting district court judge. The order further states that no additional authorization of any type shall be required and that the cases in which the county court judge is to sit as a district court judge may be assigned to him by a district judge, the judicial district administrator, or the clerk of the court. We also note that the record on appeal contains an order issued by a district court judge that specifically directed the mother to set this matter for hearing before the county court judge.

We, therefore, conclude that the appointment of the county court judge to preside over this matter as a district court judge comports with Chief Justice Directive 95-01 and, thereby, properly vested him with the jurisdiction necessary to adjudicate the mother’s motion.

II.

The father next contends that the trial court erred in failing to adjust his income for certain expenses that were allegedly ordinary and necessary to the realization of the capital gains received upon the sale of the properties. We agree.

The basic child support obligation is determined by applying the statutory schedule set forth in § 14-40-115(10)(b), C.R.S.2002, to the combined gross incomes of the parents. Gross income, as defined in § 14-10-115(7)(a)(I)(A), C.R.S.2002, specifically includes income from capital gains. In re Marriage of Zisch, 967 P.2d 199 (Colo.App.1998). Capital gains realized from post-property division appreciation, such as the earnings received from the sale of the former family home, are to be considered income under § 14-10-115(7)(a)(I)(A). See In re Marriage of Upson, 991 P.2d 341 (Colo.App.1999).

Section 14-10-115(7)(a)(II)(A), C.R.S.2002, further provides that the term “gross income,” when used in reference to earnings from self-employment, rent, royalties, proprietorship of a business, or joint ownership of either a partnership or closely held corporation, means gross receipts minus ordinary and necessary expenses required to produce such income.

Here, although it appears that the mother acceded to the deduction of certain costs associated with the sale of the property, the trial court entered no findings indicating why such costs were not subtracted from the overall gain. The mother correctly notes that the statutory exclusion of ordinary and necessary expenses does not apply generally to capital gains, but is specifically limited to income associated with the enterprises enumerated. She submits, therefore, that the child support guidelines do not contemplate reduction of a capital gain for ordinary or necessary expenses.

However, while we acknowledge that federal or state tax rules are not definitive, see In re Marriage of Nimmo, 891 P.2d 1002 (Colo.1995), the basis used to calculate gains on the sale of real property is ordinarily adjusted for certain expenditures, including capital improvements. 26 U.S.C. §§ 1011(a), 1012, 1016(a)(1) (2000); cf 26 U.S.C. § 121 (2000)(addressing the exclusion of gain from sale of principal residence). Although the guidelines do not explicitly allow for such an adjustment, they also do not address the proper method for calculating the cost basis in an asset. Thus, we find nothing in the statute that precludes the court from considering an adjustment, particularly for those expenses the mother acknowledged were reasonable and should be deducted. See In re Marriage of Crowley, 663 P.2d 267 (Colo.App.1983)(in case decided before enactment of child support guidelines, self-employed insurance broker’s ability to pay support was based upon net income after reasonable and justifiable business expenses).

Moreover, it is undisputed that the father was self-employed as a builder of custom homes and that his income during the development of the property was derived solely from the rental and sale of those properties. Consequently, we conclude that the trial court was obligated to consider the ordinary and necessary expenses incurred to sell that property under § 14 — 10—115(7)(a)(II)(A).

Accordingly, we remand this matter for a recalculation of child support once the court determines an appropriate adjustment for those costs it finds to be ordinary and necessary expenses.

III.

The father next contends that the trial court erred in determining that a deviation from the child support guidelines was not warranted. We disagree with this contention.

If a modification is warranted based on the inclusion of the gain as income, the court then has authority to deviate from the child support guidelines if their application would be inequitable, unjust, or inappropriate. See § 14-10-115(3)(a), C.R.S.2002. Under § 14-10-115(3)(a), any deviation is to be accompanied by findings specifying the reasons for the deviation and the presumed amount under the guidelines without a deviation. In re Marriage of Zisch, supra.

The burden is upon the parent contesting the support order to prove that a deviation from the presumptive award is both reasonable and necessary. In re Marriage of Stress, 939 P.2d 500 (Colo.App.1997).

Here, the father urged the trial court to deviate from the guidelines by offsetting his capital gain against the appreciation in the marital residence that was awarded to the mother in the property division. In support, he relied upon the mother’s testimony that the value of the residence had increased approximately 10% or $36,000 each year since the marital dissolution.

However, because the mother still resides in the marital home and has not “realized” any increase in value, we conclude that the trial court appropriately refused to deviate from the guidelines on this basis. See In re Marriage of Upson, supra. The father’s reliance upon In re Marriage of Tessmer, 903 P.2d 1194 (Colo.App.1995), is misplaced because there, the interest and dividends earned on an IRA account, which were included in the calculation of gross income, had been applied to that account and were accessible even if subject to penalties.

The trial court also correctly accounted for the father’s capital gain in the year it was received, and we perceive nothing in the record that would mandate on the basis of equity that the gain be prorated over a ten-year period as the father had requested. See In re Marriage of Stress, .supra (no abuse of discretion resulting from trial court’s failure to deviate from the child support guidelines).

The trial court’s orders are reversed to the extent that they denied an adjustment for the ordinary and necessary expenses associated with the capital gain, and the case is remanded for further proceedings to recalculate the modified support as directed. In all other respects, the orders are affirmed. The current order of child support, however, shall remain in effect pending further order of the court.

Judge CASEBOLT and Judge ROY concur.


author: Judge WEBB.

text:
    COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT, Plaintiff-Appellee, v. Phillip BETHELL, d/b/a Elk Springs Recycling and Recovery, Defendant-Appellant.
    No. 01CA1944.
    Colorado Court of Appeals, Div. V.
    Nov. 7, 2002.

      Ken Salazar, Attorney General, David E. Kreutzer, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Ralph A. Cantafio, P.C., Ralph A. Cantafio, Steamboat Springs, Colorado, for Defendants Appellant.
   Opinion by

Judge WEBB.

In this regulatory enforcement action, defendant, Phillip Bethell, d/b/a Elk Springs Recycling and Recovery, appeals the trial court’s summary judgment in favor of plaintiff, Colorado Department of Public Health and Environment (CDPHE), and the penalty assessed against him. Defendant argues the trial court erroneously applied the exhaustion of remedies doctrine to bar certain of his defenses, wrongly rejected his constitutional challenges to CDPHE’s financial assurance regulations, granted summary judgment prematurely, and improperly assessed a penalty. We disagree and therefore affirm.

Since 1990, defendant has owned and operated an oil and gas drilling brine waste disposal facility that he acknowledges is subject to regulation by CDPHE as a solid waste disposal site. In June 1999, CDPHE notified defendant he had not complied with CDPHE’s regulations requiring financial assurance for closure and postclosure care of solid waste disposal sites.

On May 20, 2000, CDPHE served on defendant a compliance order asserting he had not provided. the required financial assurance. Defendant neither provided financial assurance nor appealed the order to an administrative law judge.

CDPHE brought suit in district court seeking an order requiring compliance and an assessment of penalties against defendant. After defendant answered, CDPHE moved for judgment on the pleadings and for summary judgment. Defendant filed a combined response, requested time to conduct discovery, and moved to amend his answer.

The trial court denied defendant’s request for additional time, denied his motion to amend, and granted summary judgment in favor of CDPHE. After a hearing, the trial couil; assessed a $7,793 penalty against defendant.

I. Exhaustion of Administrative Remedies

Defendant first contends the trial court erred in refusing to consider certain of his grounds for opposing summary judgment based on his failure to exhaust administrative remedies. He further contends the compliance order did not become effective, and hence the appeal deadline never lapsed. We disagree.

A.

We review de novo a trial court’s decision to grant summary judgment. Summary judgment is appropriate only if the pleadings and supporting documents demonstrate no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The moving party has the burden to establish that no genuine issue of material fact exists; any doubt must be resolved against the moving party. See Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251 (Colo.1995).

Administrative proceedings are accorded a presumption of regularity. Van Sickle v. Boyes, 797 P.2d 1267 (Colo.1990). A reviewing court may overturn an administrative agency’s determination only if the court finds the agency acted in an arbitrary and capricious manner, made a determination that is unsupported by the record, erroneously interpreted the law, or exceeded its constitutional or statutory authority. McClellan v. Meyer, 900 P.2d 24 (Colo.1995).

An agency’s interpretation of its own regulation is generally entitled to great deference and will be accepted if it has a reasonable basis in law and is warranted by the record. Ohlson v. Weil, 953 P.2d 939 (Colo.App.1997).

B.

Under CDPHE’s enforcement regulations, “[a]ll Compliance Orders are effective upon receipt unless provided otherwise in the Compliance Order,” and within thirty calendar days of the effective date, “the respondent may file a notice of appeal.” CDPHE Reg. No. 1.9.3(A)(1) and (2), 6 Code Colo. Regs. 1007-2.

Here, however, the order served on defendant provided: “This Compliance Order shall become effective within ten (10) calendar days of receipt unless you request an informal conference pursuant to the following paragraph. Should you request an informal conference the Compliance Order will not become effective until further notice is issued after such conference.”

Under the regulations, a party may seek to resolve a compliance order in an informal conference held by phone, in person, or by mail. CDPHE Reg. No. 1.9.2(A)(1)(a). CDPHE interprets this regulation as requiring that a party specifically request an informal conference.

Defendant first asserts this interpretation is unreasonable because the regulations do not require a specific request. We are not persuaded.

An informal conference may be part of the administrative process, and thus CDPHE needs a clear indication when the conference stage begins and ends. Moreover, the regulations contemplate action by the respondent to begin this phase of the process in that a respondent’s “acceptance of an offer for an Informal Conference” does not stay enforcement of a compliance order that is effective immediately, and a respondent’s failure to accept an offer “shall not preclude a respondent from filing an appeal of the Compliance Order.” CDPHE Reg. No. 1.9.2(C)(5). Thus, we agree with CDPHE’s interpretation of the regulations as requiring a specific request.

We also reject defendant’s related assertion that the ten-day limit to request an informal conference is arbitrary and capricious. This time limit affords a reasonable period within which to review an order and decide whether to pursue informal resolution. Cf. C.R.C.P. 12(a) (affording party ten days within which to file responsive pleading upon denial of a motion).

We reject defendant’s further argument that the appeal period never ran because his consultant either requested or engaged in an informal conference pursuant to his May 25, 2000 letter, which responded to service of the compliance order on May 20. This letter said defendant “was out of town on business” and “will not be requesting any informal conference within ten (10) calendar days of receipt,” but the consultant “will be responding to you regarding this issue formally within the next thirty (30) days of your receipt of this letter.”

CDPHE interpreted this letter as defendant’s waiver of an informal conference. In light of the statement that defendant would not be requesting a conference within ten days, the absence of a request for more time to consider engaging in the informal conference process, and the consultant’s reference to “responding ... formally,” we conclude CDPHE’s interpretation was not arbitrary and capricious.

Hence, we agree with the trial court that because the compliance order became effective and defendant did not appeal, he failed to exhaust his administrative remedies.

C.

Defendant next argues the trial court erred in relying on his failure to exhaust administrative remedies to bar as a matter of law certain of his defenses to enforcement of the compliance order. He argues that the exhaustion requirement should apply only to claims, not to defenses. We do not agree.

Colorado courts strictly adhere to the exhaustion of remedies doctrine, which requires parties to pursue statutory remedies before seeking relief in district court. Denver-Laramie-Walden Truck Line, Inc. v. Denver-Fort Collins Freight Serv., Inc., 156 Colo. 366, 399 P.2d 242 (1965). Exhaustion allows an agency to correct errors on matters within its expertise and to compile a record adequate for judicial review, and it also conserves judicial resources. State v. Golden’s Concrete Co., 962 P.2d 919 (Colo.1998). Exhaustion also protects against premature interference by the courts and piecemeal litigation. Moschetti v. Liquor Licensing Auth., 176 Colo. 281, 490 P.2d 299 (1971).

Defendant does not rely on any of the recognized exceptions to the exhaustion requirement. See City & County of Denver v. United Air Lines, Inc., 8 P.3d 1206 (Colo.2000). Instead, he argues the doctrine does not bar his defenses because trial courts entertain pre-enforcement challenges to agency regulations and because they review final agency action. We are not persuaded.

Here, defendant did not mount a pre-en-forcement challenge. CDPHE issued the order before he challenged the regulation. Moreover, CDPHE’s functions and expertise include issuance of compliance orders, enforcement of those orders, and interpretation of its own regulations. Thus, a complete administrative record based on those functions and expertise would have facilitated judicial review of defendant’s nonconstitu-tional defenses.

Although we are unaware of any Colorado case that has applied exhaustion to. bar a defense, other courts have concluded that allowing a defendant to assert a defense which could have been, but was not, raised in the underlying administrative proceeding would constitute an impermissible collateral attack on the administrative order. See Dep’t of Air Force v. Fed. Labor Relations Auth., 775 F.2d 727 (6th Cir.1985); City of Lubbock v. Corbin, 942 S.W.2d 14 (Tex.App.1996); cf. Yellow Cab Co. v. Williams, 583 N.E.2d 774 (Ind.Ct.App.1991). We find these cases persuasive and follow them here.

Accordingly, we conclude the trial court properly found defendant’s nonconstitutional defenses barred by his failure to exhaust administrative remedies.

II. Challenges to the CDPHE Regulations

Defendant next asserts CDPHE’s regulations are unconstitutional because as revised, they are retrospective, they violate his obligations of contract, they denied him procedural due process, and CDPHE cannot both adopt and enforce the regulations. We disagree.

Initially, we note that administrative agencies lack jurisdiction to decide the constitutionality of statutes or regulations. Arapahoe Roofing & Sheet Metal, Inc. v. City & County of Denver, 831 P.2d 451 (Colo.1992). Thus, defendant did not have to exhaust his administrative remedies before raising issues of facial unconstitutionality in the trial court. See Horrell v. Dep’t of Admin., 861 P.2d 1194 (Colo.1993).

A.

Defendant argues the revised regulations are retrospective and therefore unconstitutional. We do not agree.

The Colorado Constitution prohibits the General Assembly from enacting a retrospective law. Colo. Const, art. II, § 11. However, not all retroactive legislation is unconstitutional. Colorado courts have distinguished unconstitutional retroactive legislation from constitutional retroactive legislation by calling the former “retrospective” and the later “retroactive.” Hill v. DeWitt, 54 P.3d 849 (Colo.2002).

Legislation is retrospective if it impairs a vested right, creates a new obligation, imposes a new duty, or attaches a new disability to a vested right. Hill v. DeWitt, supra. A party cannot claim a vested right when the challenged public interest outweighs the private right. Himelgrin v. City & County of Denver, 717 P.2d 1006 (Colo.App.1986).

To determine whether a law is retrospective, we first decide whether the General Assembly intended the statute to operate retroactively. If so, then we determine whether the statute is unconstitutionally retrospective. City of Greenwood Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427 (Colo.2000). “A statute is presumed to be prospective in its operation.” Section 2-4-202, C.R.S.2002.

Here, defendant argues the financial assurance requirement is retroactive because it was not in effect when he purchased the facility in 1990. See CDPHE Reg. No. 1.8. We are not persuaded.

The General Assembly enacted the statute requiring financial assurance in 1992, but the financial assurance requirement did not become effective until April 9, 1997. Section 30-20-104.5(4), C.R.S.2002; CDPHE Reg. No. 1.3.2(A). Thus, the financial assurance requirement applies only to conduct after the effective date and is not retroactive. See Himelgrin v. City & County of Denver, supra.

Nevertheless, defendant argues that because the financial assurance requirement increases his cost of operating the facility, the requirement unconstitutionally impairs a vested right. Again, we are not persuaded.

As a participant in a regulated industry, defendant should have recognized the risk of further regulation. See Hill v. DeWitt, supra. Further, the public health risk from improper disposal of solid waste and the long-term threat to the environment outweigh defendant’s financial interest. Cf. Himelgrin v. City & County of Denver, supra.

Thus, we reject defendant’s contention that the regulations are retrospective.

B.

We also reject defendant’s argument that the financial assurance requirement violates the Colorado Constitution by impairing the obligation of contract.

The Colorado Constitution prohibits laws that impair the obligations of contracts. Colo. Const, art. II, § 11. However, legislation that impairs a contract is not unconstitutional if the challenged statute reasonably serves a legitimate public concern when balanced against its impairment of a contract. Hill v. DeWitt, supra.

Because we conclude CDPHE has a legitimate public interest in regulating solid waste disposal sites, and defendant’s claimed contractual obligation was a previously completed sales contract with the facility’s prior owner, we reject defendant’s argument.

C.

Defendant next argues CDPHE violated his constitutional right to procedural due process by denying him an adequate opportunity to respond to the compliance order. We disagree.

We view defendant’s argument as raising the facial unconstitutionality of the regulations and therefore not subject to the exhaustion requirement.

The Colorado Constitution protects individuals from arbitrary governmental intrusion on liberty and property interests. Colo. Const, art. II, § 25. Procedural due process requires an opportunity to be heard before the state deprives an individual of a constitutionally protected liberty or property interest. Am. Drug Store, Inc. v. City & County of Denver, 831 P.2d 465 (Colo.1992).

We evaluate a procedural due process challenge by balancing the nature and extent of the private interest claimed against the adequacy of the procedure provided. Watso v. Colo. Dep’t of Soc. Servs., 841 P.2d 299 (Colo.1992).

Defendant does not specifically identify his constitutional interest, but we assume it is his property interest in avoiding the expense to obtain financial assurance. Even if this were a constitutionally protected interest, we find CDPHE’s procedure sufficient.

Before CDPHE served defendant with the compliance order, it sent him a compliance advisory concerning his failure to establish financial assurance. After service of the compliance order, CDPHE informed defendant he would be entitled to an informal conference and the opportunity to appeal to an Administrative Law Judge. See CDPHE Reg. No. 1.9.3(A).

Hence, we reject defendant’s argument that the CDPHE regulations deprived him of due process.

D.

Defendant further contends the financial assurance regulations contain a “grandfather clause” that exempts his facility from compliance. Defendant does not cite any authority that this contention raises a constitutional issue, and we are unaware of any such authority.

Although the argument that an administrative agency exceeded its statutory authority would not be subject to the exhaustion requirement, Colo. Health Facilities Review Council v. Dist. Court, 689 P.2d 617 (Colo.1984), here defendant does not dispute either that his facility constitutes a solid waste disposal site or that CDPHE’s statutory power extends to regulation of solid waste disposal sites. Instead, he asserts CDPHE Reg. No. 1.9.4 provides an exemption for a preexisting facility’s waste impoundments, which he further asserts precludes application of the financial assurance requirement to his facility. We therefore conclude defendant’s failure to exhaust administrative remedies precludes review of this issue.

In any event, even if defendant’s assertions were correct, CDPHE would not have exceeded its statutory authority. It would only have misapplied its regulations.

Accordingly, we agree with the trial court that defendant’s failure to exhaust administrative remedies barred this defense as a matter of law.

E.

Defendant finally contends the financial assurance regulations are unconstitutional because CDPHE promulgated the regulations it enforced against him and because the regulations threaten the power reserved to the states by the Tenth Amendment. However, defendant did not raise either contention in the trial court, and we will not consider them for the first time on appeal. See Colgan v. State, 623 P.2d 871 (Colo.1981).

III. Timing of Summary Judgment

Defendant next argues the trial court erred in denying him additional time to respond to CDPHE’s motions and an opportunity to amend his answer. We disagree.

A.

Under C.R.C.P. 56(f), the party opposing summary judgment may be granted additional time to gather evidence and thereby avoid a “precipitous and premature” entry of summary judgment. Sundheim v. Bd. of County Comm’rs, 904 P.2d 1337, 1352 (Colo.App.1995), aff'd, 926 P.2d 545 (Colo.1996). However, when the party seeking more time does not file a supporting affidavit as required by C.R.C.P. 56(f), a trial court acts within its discretion in denying the request. Card v. Blakeslee, 937 P.2d 846 (Colo.App.1996).

Here, defendant did not file the required affidavit, and he did not identify any specific factual issue that could be developed through discovery.

Accordingly, we conclude the trial court properly denied the request.

B.

We reject defendant’s further argument that the trial court erred by not permitting him to amend his answer before entering summary judgment.

Motions to amend the pleadings should be freely granted when doing so would serve the interests of justice. However, the decision whether to grant a motion to amend is committed to the sound discretion of the trial court and will not be reversed absent an abuse of discretion. In re Benton v. Adams, 56 P.3d 81 (Colo.2002). A trial court does not abuse its discretion in denying a motion to amend that is futile. Conrad v. Imatani, 724 P.2d 89 (Colo.App.1986).

The record on appeal contains the motion to amend, but not the proposed amended answer. As appellant, defendant is responsible for designating the record on appeal, see C.A.R. 10(b), and if the appellant does not provide a complete record on appeal, we must presume the record supports the trial court’s conclusions. People v. Ullery, 984 P.2d 586 (Colo.1999). Nothing in the motion to amend casts doubt on the issues of law decided by the trial court. See L.G. Everist, Inc. v. Water Quality Control Comm’n, 714 P.2d 1349 (Colo.App.1986).

Hence, we conclude the court did not abuse its discretion in denying defendant’s motion to amend his answer.

rv.

Finally, defendant argues the trial court erred in assessing a penalty against him because he did not violate a valid compliance order. We disagree.

We have upheld the trial court’s determination that defendant is subject to the financial assurance requirement, and defendant does not dispute that he failed to provide financial assurance in response to the compliance order. Section 30-20-113(5), C.R.S.2002, allows civil penalties for noncompliance with the financial assurances regulations. A trial court enjoys considerable discretion in assessing a penalty. Cf. Lloyd A. Fry Roofing Co. v. State Dep’t of Health Air Pollution Variance Bd., 191 Colo. 463, 553 P.2d 800 (1976).

Here, the trial court assessed a penalty of $17 per day, which is well below the statutory maximum $2,000 per day. See § 30-20-113(5).

Thus, we conclude the trial court acted within its discretion in assessing the penalty against defendant.

The judgment is affirmed.

Judge ROTHENBERG and Judge TAUBMAN concur.


author: Judge TAUBMAN.

text:
    In re the MARRIAGE OF Lola BUCK, Appellee, and Clyde E. Buck, Jr., Appellant, and Concerning Karrick A. Burrows, Guardian Ad Litem.
    No. 02CA0960.
    Colorado Court of Appeals, Div. A.
    Nov. 7, 2002.
    M. Patricia Marrison, P.C., M. Patricia Marrison, Colorado Springs, Colorado, for Appellee.
    Carl D. Fatta, Pueblo, Colorado, for Appellant.
    Karrick A. Burrows, Pueblo, Colorado, for Guardian Ad Litem.
   Opinion by

Judge TAUBMAN.

In this dissolution of marriage ease, this court ordered husband, Clyde E. Buck, Jr., to show cause why his appeal should not be dismissed as untimely filed. We have considered his response and now discharge the order to show cause in part and make it absolute in part.

On January 9, 2002, the district court entered permanent orders dissolving the parties’ marriage. On January 28, 2002, wife, Lola Buck, filed a motion under C.R.C.P. 59 for reconsideration or a new trial. On February 13, 2002, the district court issued an order denying wife’s motion.

On February 14, 2002, acting pursuant to C.R.C.P. 60(a), wife filed a motion to correct a mistake in the January 9, 2002, permanent orders. In support of her motion, wife noted that the court had inadvertently awarded the same bank account to both parties in different parts of the January 9 permanent orders. The court agreed that a mistake had been made and, on February 27, 2002, it issued an order correcting the earlier judgment to reflect that the bank account belonged to wife.

On March 1, 2002, husband filed a motion seeking relief from the February 27 order under C.R.C.P. 59. The district court denied husband’s motion on April 2, 2002. Husband filed a notice of appeal on May 15, 2002.

The timely filing of a notice of appeal is a jurisdictional prerequisite to appellate review. Broderick v. McElroy & McCoy, Inc., 961 P.2d 504 (Colo.App.1997). Pursuant to C.A.R. 4(a), a party has forty-five days after the entry of the judgment or order in which to file a notice of appeal. A timely posttrial motion, filed in the trial court pursuant to C.R.C.P. 59, terminates the time for filing a notice of appeal as to all parties. C.A.R. 4(a); Schuster v. Zwicker, 659 P.2d 687 (Colo.1983). If such motion is filed, the time for filing the notice of appeal begins to run from the date the district court determines the motion or the date the motion is deemed denied under C.R.C.P. 59(j), whichever is earlier. United Bank of Boulder v. Buchanan, 836 P.2d 473 (Colo.App.1992).

A C.R.C.P. 59 motion must be filed with the district court within fifteen days from the date of entry of judgment. C.R.C.P. 58(a), 59(a). An additional three days are added to the fifteen-day period if the judgment is mailed to the parties, and the time limit is further extended to the next business day if the fifteen-day or eighteen-day period ends on a Saturday, Sunday, or legal holiday. C.R.C.P. 6(a), 59(a)(4).

Here, wife’s January 28 C.R.C.P. 59 motion, filed nineteen days after the district court entered the January 9 permanent orders, was timely in light of the above rules. As a result, the forty-five-day deadline for filing a notice of appeal did not begin to run until February 13, the date the district court denied the motion. The forty-fifth day after February 13 was March 30, a Saturday. Thus, the deadline for filing a notice of appeal was the following Monday, April 1, 2002, and husband’s May 15 notice of appeal is untimely with respect to the January 9 permanent orders.

Husband nevertheless argues his appeal of the permanent orders is timely because April 2 is the appropriate date from which to calculate the time for filing a notice of appeal. He reasons that the February 27 order was a new judgment, from which he filed a timely posttrial motion that the district court denied on April 2. We disagree.

We conclude that the February 27 corrected order did not extend husband’s time to file an appeal from the January 9 permanent orders.

The district court characterized its February 27 judgment as an order granting wife’s C.R.C.P. 60(a) motion to correct a mistake. We agree with this characterization. C.R.C.P. 60(a) gives district courts the power to correct “[cjlerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission ... at any time.” The rule provides a means for the court to avoid enforcing an honestly mistaken judgment that is not in accord with the expectations and understanding of the court and the parties. Reasoner v. Dist. Court, 197 Colo. 516, 594 P.2d 1060 (1979). Here, the February 27 order corrected the January 9 permanent orders to reflect the court’s true intent regarding the division of the bank account in question.

No reported Colorado case addresses whether a motion or order under C.R.C.P. 60(a) extends the time for filing a notice of appeal of the underlying judgment. We therefore look to the case law interpreting Fed.R.Civ.P. 60(a), which is identical in pertinent part to C.R.C.P. 60(a). See. Allen v. Am. Family Mut. Ins. Co., — P.3d-, 2002 WL 31119912 (Colo.App. No. 01CA0317, Sept. 26, 2002)(when interpreting a state rule of procedure, court relied on similar federal rule and related case law for guidance).

Federal appellate courts interpreting Fed. R.Civ.P. 60(a) have held that Rule 60(a) motions and orders do not extend the time for filing a notice of appeal. See Hodge v. Hodge, 269 F.3d 155 (2d Cir.2001); Harman v. Harper, 7 F.3d 1455 (9th Cir.1993); BBCA, Inc. v. United States, 954 F.2d 1429 (8th Cir.1992); Aloe Coal Co. v. Clark Equip. Co., 816 F.2d 110 (3d Cir.1987); In re Cobb, 750 F.2d 477 (5th Cir.1985). State courts with rules substantially similar to C.R.C.P. 60(a) have reached the same conclusion. See, e.g., Levine v. Malaga Restaurant, Inc., 501 So.2d 1231 (Ala.Civ.App.1987); State v. Champlain Cable Corp., 147 Vt. 436, 520 A.2d 596 (1986); see also Leonard Plank & Anne Gill, Colorado Appellate Practice & Law § 6.13 (1999)(C.R.C.P. 60 motion does not affect finality of underlying judgment); cf. In re Marriage of Forsberg, 783 P.2d 283, 284 n. 2 (Colo.l989)(C.R.C.P.60(b) motion does not suspend the time for filing a notice of appeal).

As explained in International Controls Corp. v. Vesco, 556 F.2d 665 (2d Cir.1977), a properly corrected judgment under Rule 60(a) gives no relief from the original judgment. Therefore, a C.R.C.P. 60(a) order clarifying the original judgment relates back to the time of the filing of the initial judgment and does not extend the time for appeal of that judgment.

We find further support for this conclusion in C.A.R. 4(a), which provides that motions filed under C.R.C.P. 52 and 59 toll the time for filing a notice of appeal, but contains no similar provision for motions filed under C.R.C.P. 60. Thus, neither wife’s motion under C.R.C.P. 60(a), nor the subsequent February 27 order granting the motion, extended husband’s time to file an appeal from the January 9 judgment.

Accordingly, husband is precluded from appealing the January 9 permanent orders, and even if we were to find excusable neglect pursuant to C.A.R. 4(a), his May 15, 2002 notice of appeal would still be untimely because it was filed more than seventy-five days after January 9. However, husband’s notice of appeal was timely filed from the district court’s February 27 and April 2 orders, and he may appeal from those orders.

Accordingly, we conclude that husband’s appeal was filed late as to the January 9 permanent orders, but not that it is timely as to the February 27 and April 2 orders.

The order to show cause is therefore discharged in part and made absolute in part, and husband may appeal the February 27 and April 2 orders.

Judge VOGT and Judge NIETO concur.


author: Judge VOGT.

text:
    PEOPLE of the State of Colorado, In the Interest of J.M.B., a Child, Upon the Petition of the Denver Department of Human Services, Petitioner-Appellee, and Concerning H.M.B. and J.A.B., Respondents-Appellants.
    Nos. 01CA2519, 01CA2554.
    Colorado Court of Appeals, Div. IV.
    Nov. 7, 2002.

      J. Wallace Wortham, Jr., City Attorney, Laura Grzetic Eibsen, Assistant City Attorney, Denver, Colorado, for Petitioner-Appel-lee.
    Joan S. Heller, Denver, Colorado, for Re-spondenh-Appellant H.M.B.
    Philip Robert James, Denver, Colorado, for Respondent-Appellant J.A.B.
   Opinion by

Judge VOGT.

In this consolidated appeal, H.M.B. (mother) and J.A.B. (father) appeal from the judgment terminating the parent-child legal relationship with their daughter, J.M.B. We affirm.

The petition in dependency or neglect was filed in February 2000, when the child was nine months old. Mother had tested positive for amphetamines and marihuana after being hospitalized for seizures resulting from injuries incurred from suspected domestic violence. It was alleged that both parents had drug and alcohol problems and an extensive history of domestic violence.

Although the child was returned to mother’s care in March 2000, she was again removed and placed with maternal relatives when mother was taken by police to a psychiatric ward. The child was placed with the paternal grandfather and stepgrandmother when she was fourteen months old and remained there at the time of the termination hearing a year and a half later.

I.

Mother asserts that her treatment plan was not appropriate because it did not sufficiently address her mental health problems. We disagree.

We note at the outset that father joins in mother’s objections and arguments for purposes of this appeal. However, father lacks standing to challenge the appropriateness of mother’s treatment plan. See People in Interest of R.J.A., 994 P.2d 470 (Colo.App.1999).

An appropriate treatment plan is defined as one that is “reasonably calculated to render the particular [parent] fit to provide adequate parenting to the child within a reasonable time and that relates to the child’s needs.” Section 19-1-103(10), C.R.S.2002. The appropriateness of a treatment plan must be measured by its likelihood of success in reuniting the family and by the extent to which its requirements were realistic in light of the .facts existing at the time it was adopted. People in Interest of A.H., 736 P.2d 425 (Colo.App.1987).

It is the parent’s responsibility to comply with the treatment plan. See People in Interest of A.H., supra. Success of a treatment plan cannot be guaranteed; thus, the ultimate failure of a plan does not necessarily mean that the plan was inappropriate. See People in Interest of L.G., 737 P.2d 431 (Colo.App.1987).

Here, the treatment plan addressed the primary problem that interfered with mother’s parenting, which was her substance abuse. Mother’s compliance with aspects of the plan addressing this problem was inconsistent, and a drug evaluation expert testified that the plan had not been successful in this regard.

Contrary to mother’s argument that she was not provided with sufficient mental health treatment, there was testimony that mother had met with a psychiatrist, who diagnosed her with depression and posttrau-matic stress disorder. Mother herself testified that she had seen psychiatrists and counselors, had received “very much counseling” and education about the causes of her mental health problems, and continued to take antidepressant medication that had been prescribed for her.

Having reviewed the record, we agree with the juvenile court that the treatment plan was appropriate and that it was mother’s noncompliance that rendered it unsuccessful.

II.

Mother further contends that the court did not consider her individual compliance with the treatment plan, independent of father’s compliance. We do not agree.

Parental rights are personal between each parent and child. Termination is permissible only when there is a history of severe and continuous neglect by the particular parent whose rights are to be terminated. People in Interest of K.S., 33 Colo.App. 72, 515 P.2d 130 (1973).

In determining whether a parent’s conduct or condition is unlikely to change within a reasonable time to meet the child’s needs, the trial court may consider whether any change has occurred between the time the petition in dependency or neglect was filed and the time of the termination hearing. People in Interest of V.W., 958 P.2d 1132 (Colo.App.1998).

Here, the juvenile court acknowledged that the termination criteria apply individually to each parent. It also noted that, because the parents had chosen to continue as a family unit, “individual considerations of the evidence applicable to either parent necessarily impact on the other.” Notwithstanding that observation, the record amply establishes that mother was unfit based solely on her own actions.

Although mother initially complied with the treatment plan, she later relapsed. She did not attend group sessions, missed appointments with her counselor, and did not provide required urine samples. Despite the expert recommendations, mother did not believe that she needed to be in a residential drug program and, thus, did not follow through with seeking admittance into that program. As noted above, the treatment plan was ultimately unsuccessful in addressing mother’s significant substance abuse problems and making her fit to parent her child. Thus, termination of mother’s parental rights was warranted apart from the concerns regarding father.

III.

Both parents assert that the juvenile court did not consider and eliminate less drastic alternatives to the termination of them rights and that the court’s finding to that effect was contrary to the evidence. Again, we disagree.

In terminating the parent-child legal relationship, the trial court must give primary consideration to the physical, mental, and emotional conditions and needs of the child. Section 19-3-604(3), C.R.S.2002.

The court must consider and eliminate less drastic alternatives before entering an order terminating the parent-child legal relationship. People in Interest of M.M., 726 P.2d 1108 (Colo.1986). However, the best interests of the child govern any termination decision, and the court may find that long-term foster care is not a viable option when the child needs the permanency that only adoption can provide. See People in Interest of M.M., supra; People in Interest of S.T., 678 P.2d 1054 (Colo.App.1983).

Here, contrary to mother’s contention, the evidence shows that alternatives to termination were considered. A family conference was held. Placement with mother’s brother was suggested. Although the child was placed with the brother, he requested that she be removed after a month. Father suggested placement with his mother. However, she had cancer and was not in a position to care for a young child. No other relatives besides the paternal grandfather and step-grandmother came forward as possible caretakers for the child.

A social worker testified that the child was thriving in the care of her paternal grandfather and stepgrandmother and that anything less than adoption would be detrimental to the child’s interests. The grandparents wanted to adopt the child to relieve her from the emotional roller coaster of her parents’ drug and alcohol abuse. The grandparents and the parents had long been estranged. Although the grandparents were most concerned about father, mother and father resided together as a married couple and intended to continue to do so.

We do not agree with father that, in light of L.L. v. People, 10 P.3d 1271 (Colo.2000), termination is unwarranted if a child can be placed in the permanent guardianship of family members under an order that significantly limits the child’s contacts with her parents. In L.L., the supreme court upheld such an order. However, in that case the department of human services was seeking only permanent guardianship, not termination; and the opinion does not state or suggest that termination is no longer appropriate given the availability of the type of order entered there.

Placement of a child in the guardianship of family members with limited or no parental contact may be a viable alternative to termination in some eases. In other instances, however, there may be such estrangement between the parents and the guardians that nothing short of termination will be in the child’s best interests. The juvenile court’s determination that this was such a case is not contrary to the evidence and thus will not be set aside on appeal. See People in Interest of C.A.K., 652 P.2d 603 (Colo.1982).

IV.

Finally, despite their lack of specificity, the juvenile court's findings conform to the statutory termination criteria and are supported by the record. Thus, because we can determine the basis for the court’s order of termination, its ruling will not be set aside for insufficient findings. See People in Interest of C.A.K., supra; People in Interest of A.J., 757 P.2d 1165 (Colo.App.1988).

The judgment is affirmed.

Judge DAVIDSON and Judge DAILEY concur.


author: Judge GRAHAM.

text:
    Mary J. COE and Brian J. Coe, Plaintiffs-Appellees, v. CRADY DAVIS CORPORATION, Defendant-Appellant.
    No. 01CA2353.
    Colorado Court of Appeals, Div. I.
    Nov. 7, 2002.

      Ball, Easley, Wabeke, Brummet & Johnson, Richard W. Ball, Erik A. Johnson, Love-land, Colorado, for Plaintiffs-Appellees.
    Fischer & Fischer, LLP, Erik G. Fischer, Thomas W. Martin, Fort Collins, Colorado, for Defendant-Appellant.

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

   Opinion by

Judge GRAHAM.

In this action arising from the sale of real property, defendant, Crady Davis Corporation, appeals that portion of the trial court’s judgment declining to award defendant attorney fees under a fee-shifting provision in the real estate sales contract. We reverse that portion of the judgment and remand with directions.

Plaintiffs, Mary J. Coe and Brian J. Coe, purchased a large parcel of vacant land from defendant for a price of $782,565. Under the sales contract, the purchase price was calculated based upon a lot size of 372,650 square feet.

After the sale closed, plaintiffs paid for a survey of the property. According to the complaint, the survey revealed that the property contained 28,961.6 fewer square feet than had been represented in the sales contract. Plaintiffs sought damages of $60,819.36 for this alleged “deficiency” in the size of the property. Defendant filed an answer denying liability and requesting an award of attorney fees and costs.

The matter culminated in a two-day bench trial. During the trial, counsel for defendant requested an award of attorney fees pursuant to the fee-shifting clause in the sales contract. That clause provided for an award of costs and expenses, including attorney fees, to the “prevailing party” in any litigation arising out of the contract.

After considering the evidence, the trial court entered an order dismissing the complaint, concluding that plaintiffs had failed to meet their burden of proof on all three of their claims for relief. The trial court ruled that defendant was entitled to recover costs but that costs would “not includ[e] attorney’s fees.”

Defendant filed a timely C.R.C.P. 59 motion in which it argued that as the prevailing party in the action, it was entitled to recover attorney fees pursuant to the sales contract. The motion was deemed denied pursuant to C.R.C.P. 59(j).

We agree that defendant was entitled to recover attorney fees under the provision in the sales contract and remand this case for further proceedings to determine the amount of those fees.

I.

Initially, we reject plaintiffs’ argument that defendant waived its right to recover fees under the contract. Defendant plainly requested attorney fees in its answer and specifically requested fees under the contract during the trial.

Nor, contrary to plaintiffs’ contention, did defendant waive its right to seek fees by failing to present evidence of those fees at trial. Defendant was not seeking attorney fees as damages in this case. See Ferrell v. Glenwood Brokers, Ltd., 848 P.2d 936 (Colo.1993)(if attorney fees are considered to be damages, they must be determined by the trier of fact and proved during the damages phase of the trial). Rather, defendant was claiming attorney fees as the prevailing party and as an item of costs. See Chartier v. Weinland Homes, Inc., 25 P.3d 1279 (Colo.App.2001)(generally, if attorney fees are simply the consequence of a contractual agreement to shift fees to a prevailing party, they are treated as costs). Consequently, defendant’s request for fees should have been addressed after the trial on the merits. See Town of Alma v. Azco Constr., Inc., 985 P.2d 56 (Colo.App.1999)(claim for attorney fees by prevailing party, based on contractual provision, arises after trial, when prevailing party can be identified), aff'd, 10 P.3d 1256 (Colo.2000).

Based on our review of the record, we are satisfied that defendant adequately preserved its right to seek attorney fees pursuant to the provision in the sales contract.

II.

Plaintiffs argue that defendant is not entitled to seek attorney fees under the contract because the fee-shifting provision merged into the deed upon the closing of the sale. We are not persuaded.

Covenants in an antecedent contract that are not intended by the parties to be incorporated in the deed, or that are not necessarily satisfied by the execution and delivery of the deed, are collateral agreements and are preserved from merger. City of Westminster v. Skyline Vista Dev. Co., 163 Colo. 394, 431 P.2d 26 (1967). Absent express language to the contrary, delivery of a deed extinguishes only covenants pertaining to title, possession, quantity, or emblements of the land. See City of Westminster v. Skyline Vista Dev. Co., supra; see also Brooks v. Hodges, 43 Colo.App. 205, 606 P.2d 77 (1979).

In Lasher v. Paxton, 956 P.2d 647 (Colo.App.1998), a division of this court addressed whether a substantially similar attorney fees provision in a real estate sales contract had merged into the deed at closing. The division concluded that the attorney fees provision had not merged, in part because it did “not relate to title, quantity, possession, or emblements of the land.” Lasher v. Paxton, supra, 956 P.2d at 648; see also Terrydale Liquidating Trust v. Barness, 645 F.Supp. 920 (S.D.N.Y.1986)(applying Colorado law and concluding that attorney fees provision in real estate sales contract did not merge because it was collateral and was not necessarily satisfied by the execution and delivery of the deed).

Plaintiffs argue that Lasher is distinguishable because the contract there involved certain continuing obligations after closing. We acknowledge this distinction and the fact that the division in Lasher relied upon it to some extent in reaching its decision. However, it appears that under Colorado law generally, the critical issue in deciding whether a contract provision merges into the deed is whether that provision relates to title, quantity, possession, or emblements of the land. Because the fee-shifting provision at issue here does not so relate, we conclude that it did not merge into the deed at closing. See Lasher v. Paxton, supra; see also Terrydale Liquidating Trust v. Barness, supra. Recognizing that Lasher did not hold specifically that a fee-shifting provision survived expungement by the merger doctrine, we now so hold.

Plaintiffs argue that Reed v. Dudley, 35 Colo.App. 420, 533 P.2d 507 (1975), is disposi-tive of the issue whether a fee-shifting clause survives closing under the merger doctrine. Reed did not concern a fee-shifting provision, but instead dealt with warranties of title that appeared in both the underlying contract and the deed.

Nor are we persuaded by plaintiffs’ argument that the attorney fees provision does not apply because their complaint sought equitable relief. The fee-shifting provision is not limited solely to legal claims, but instead applies “in the event of any ... litigation arising out of this contract.” Plaintiffs’ complaint clearly bases some, if not all, of the claims on the contract.

We thus conclude that the attorney fees provision survived the closing on the property-

ill.

Finally, because plaintiffs failed to prove liability on any of their claims at trial, we agree with defendant’s contention that it was the prevailing party at trial. See Dennis I. Spencer Contractor, Inc. v. City of Aurora, 884 P.2d 326 (Colo.1994)(under contractual fee-shifting provision, party in whose favor the decision or verdict on liability is rendered is the “prevailing party”). Indeed, plaintiffs do not dispute that contention.

The portion of the judgment declining to award defendant attorney fees under the fee-shifting provision in the sales contract is reversed, and the .case is remanded for further proceedings on defendant’s request for attorney fees incurred in the trial court and in this appeal.

Judge METZGER and Judge CRISWELL concur.


author: SUMMERS, J. OP ALA, J.,

text:
    2002 OK 81
    STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Timothy William HEINEN, Respondent.
    No. S.C.B.D. 4757.
    No. O.B.A.D. 1521.
    Supreme Court of Oklahoma.
    Oct. 29, 2002.

      Mike Speegle, Oklahoma Bar Association, Oklahoma City, for Complainant.
    Gary A. Rife and Janice M. Dansby, Rife & Walters, Oklahoma City, for Respondent.
   SUMMERS, J.

¶ 1 Respondent was licensed to practice law in the State of Texas. In that State a proceeding to impose professional discipline was commenced, and he later requested that Supreme Court of Texas accept his resignation as attorney and counselor at law. The Texas court accepted the resignation. In the Matter of Timothy William Heinen, Misc. Docket No. 01-9044, (Texas Sup.Ct., March 22, 2001).

¶2 The Oklahoma Bar Association filed an application with this Court to impose professional discipline upon Respondent because of his resignation pending discipline in Texas. We issued an order to Respondent to show cause why discipline should not be imposed.

¶ 3 Respondent argues that discipline should not be imposed, and argues: 1. That he denies the allegations of misconduct of which he was accused in Texas; 2. No evi-dentiary hearing was made on the Texas allegations, and they “are not supported by the evidence;” 3.The Texas order does not furnish sufficient grounds for discipline under the Oklahoma rule; 4. The Texas pro-eeeding was the first disciplinary proceeding Respondent had been subject to; 5. He paid his Texas client the amount of the disputed funds; and 6. There has been no “adjudication” of misconduct by the Texas Court. He further argues that disbarment in Oklahoma is not warranted, that the order of the Supreme Court of Texas has no preclusive effect, and that this matter should be referred to a panel of the Professional Responsibility Tribunal for an adversarial hearing.

¶4 The Bar seeks to impose discipline against Heinen in this Court pursuant to Rule 7.7 of the Rules Governing Disciplinary Proceedings. That rule provides that a lawyer may be professionally disciplined by this Court because of the lawyer’s professional discipline by the highest court of another state or a federal court. In the context of addressing Respondent’s arguments we must resolve two central issues in this reciprocal disciplinary proceeding: (1) Is the Texas adjudication of professional misconduct sufficient to show professional misconduct by the respondent? and (2) What, if any, discipline is appropriate? In this regard see State ex rel. Oklahoma Bar Association v. Patterson, 2001 OK 51, ¶ 1, 28 P.3d 551, 553.

¶ 5 Application of Oklahoma Disciplinary Rule 7.7 requires the respondent to have been “adjudged guilty of a misconduct in a disciplinary proceeding.” Was the respondent adjudged guilty of a misconduct? He argues that the Texas proceeding did not adjudicate a claim of professional misconduct, but that it was a mere judicial acceptance of a resignation, and in the nature of a judgment by consent of the parties.

L Sufficiency of the Texas Adjudication to Serve as Basis for Discipline

¶ 6 We are invited by Heinen to view the order of the Supreme Court of Texas as a consent judgment, and to determine its pre-clusive effect based upon that status. He argues that the estoppel effect of such judgments is based upon the intent of the parties, and that he did not have the intent for his resignation in Texas to determine issues in an Oklahoma disciplinary proceeding.

¶ 7 We need not discuss consent judgments and when they may, or may not, be used for claim or issue preclusion. We have explained that we are not required, in the context of a non-civil and sui generis disciplinary proceeding, to give preclusive effect to an order of a sister-state court imposing professional discipline. State ex rel. Oklahoma Bar Association v. Patterson, 2001 OK 51, ¶ 6, 28 P.3d 551, 554-555. But because of our reciprocal disciplinary rule, neither do we ignore the sister-state proceeding. Facts that resulted in the imposition of discipline in the sister-state jurisdiction are not relitigated, “but only reviewed within the context of the evidence previously presented in the other jurisdiction.” Id. at ¶ 6, 28 P.3d at 555. The evidence in this Texas proceeding were allegations of misconduct that became conclusively established because of Heinen’s failure to challenge them.

¶ 8 The Texas Rules of Disciplinary Procedure provide that after a respondent has submitted a motion for resignation in lieu of disciplinary action, the Chief Disciplinary Counsel files a response that includes a detailed statement of the lawyer’s misconduct, and if that lawyer does not then withdraw his motion, the detailed statement of Professional Misconduct is deemed to have been conclusively established for all purposes.

The Chief Disciplinary Counsel shall, within twenty days after service upon him or her of a motion for resignation in lieu of Disciplinary Action, file a response on behalf of the State Bar (acting through the Commission) stating whether the acceptance of the resignation is in the best interest of the public and the profession and setting forth a detailed statement of the Professional Misconduct with which the movant is charged. The movant may, within ten days after service of such response, withdraw the motion. If a motion to withdraw is not timely filed, the detailed statement of Professional Misconduct shall be deemed to have been conclusively established for all purposes. (Emphasis added.)

Texas Rules of Disciplinary Procedure, Rulel0.02, reprinted in, Tex. Gov’t Code, tit. 2, subtit. G app. A-l, (Vernon 1998).

¶ 9 In our case today the order of the Texas Supreme Court canceled respondent’s bar license, and in accepting his resignation stated that “the Court considers the detailed statement of professional misconduct contained within the Response of Chief Disciplinary Counsel to be deemed conclusively established for all purposes.” In the Matter of Timothy William Heinen, Misc. Docket No. 01-9044, Slip Op. at p. 1. (Tex.Sup.Ct., March 22, 2001). That response is part of the record in this proceeding, and it contains the following:

Complainant [client] hired Respondent [Heinen] in November 1994 to negotiate a settlement for injuries Complainant sustained in an automobile accident.
Respondent subsequently negotiated a settlement with the insurance company but failed to notify Complainant [client] or Complainant’s medical providers of the settlement. Respondent endorsed the check on behalf of himself and Complainant [client] and cashed the check at Respondent’s bank.
Respondent failed to place the settlement proceeds in his trust account, failed to provide Complainant [client] with a settlement sheet showing the amount of the settlement and the disbursements to be made from the settlement proceeds, failed to disburse to Complainant [client] the portion of the settlement proceeds belonging to Complainant [client], and failed to disburse to Complainant’s [client’s] medical providers the share of proceeds belonging to the providers.
Respondent kept the settlement funds for his personal use.

Response of Chief Disciplinary Counsel, at 1-2.

¶ 10 The Texas Supreme Court treated the statement of the Chief Disciplinary Counsel as a stipulation or admission by Heinen due to his failure to withdraw his motion for resignation after the statement was filed. Texas jurisprudence recognizes a stipulation of fact on the record to be an agreement, admission, or concession made in a judicial proceeding, and if not modified by the trial court, binding upon the party making the stipulation, as well as any appellate court reviewing the record. Stipulations are used in Texas bar disciplinary proceedings, but they must be submitted to the trier of fact determining the matter. State Bar of Texas v. Grossenbacher, 781 S.W.2d 736 (Tex.App.—San Antonio, 1989). Stipulations^ agreements, or concessions are “used to fix, limit or modify the issues to be tried,” and as such they “enjoy equal dignity with judicial admissions, which eliminate an adversary’s necessity of proof and establish the admitted elements as a matter of law.” Perry v. Brooks, 808 S.W.2d 227, 229 (Tex.App.Houston [14th Dist.] 1991). The stipulation or admission makes the fact “conclusively established” so that evidence on that fact is not necessary. Daly v. River Oaks Place Council of Co-Owners, 59 S.W.3d 416, 418 (Tex.App.Houston [1 Dist.] 2001); Horizon/CMS Healthcare Corporation v. Auld, 34 S.W.3d 887, 905 (Tex.2000). The Texas Supreme Court used Heinen’s agreement by acquiescence in the filed statement of misconduct as an agreement as to the facts of the misconduct, and those facts were thus “conclusively established.”

¶ 11 Heinen also argues that the Texas court deemed the facts to be conclusively established, and that this judicial act of deeming is something less than an actual adjudication of those facts so as to weaken the language stating that the misconduct was conclusively established. This argument is without merit. The use of the word “deem” in Heinen’s order is consistent with how courts in Texas describe stipulations and admissions in civil proceedings. In civil proceedings the admission or stipulation may, in some circumstances, be withdrawn, as the Texas disciplinary rule allowed for Heinen’s resignation to be withdrawn, but with both the bar resignation specifically and admissions generally, without the withdrawal the admissions are “deemed admitted” and the facts therein conclusively established.

¶ 12 Heinen argues that he did not possess an opportunity and incentive to litigate the disciplinary proceeding in the Texas court because he had decided to longer practice law in Texas. Our use of the fact of Heinen’s misconduct as established by a Texas court must be based upon Heinen having possessed a full and fair opportunity to litigate that question in the Texas court. See, Nealis v. Baird, 1999 OK 98, ¶ 51, 996 P.2d 438, 458. Heinen was notified of the finding of the Texas investigatory panel, its recommendation of restitution to this client, and an offer of the sanction of resignation. He had notice of the Texas proceedings and a fair opportunity to litigate the fact of the misconduct in Texas.

¶ 13 At the time of the Texas proceedings, February 2001, Oklahoma had a reciprocal disciplinary rule on its law books. See 5 O.S.Ann. Ch. 12, App. 1-A, Rules Governing Disciplinary Proceedings, Rule 7.7, showing the reciprocal disciplinary rule in the form it has existed since 1992. Further, this Court has published bar disciplinary opinions that involve reciprocal discipline. One of these published cases, State ex rel. Oklahoma Bar Association v. Bransgrove, 1998 OK 93, ¶ 1, 976 P.2d 540, involved a lawyer’s resignation in Texas. Heinen cannot now reasonably contend that he lacked an incentive to litigate the issue in Texas and merely acquiesced in a bar resignation when one of our published opinions disciplined a lawyer based upon a resignation in Texas. Heinen’s argument that he had no incentive to litigate the issue in Texas is without merit.

¶ 14 In Texas “sanctions” are imposed for “professional misconduct” of an attorney. The definition of a “sanction” in the disciplinary rules of the Texas State Bar includes a “resignation in lieu of disbarment”. Texas Rules of Disciplinary Procedure, Rule 1.06, reprinted, in, Tex. Gov’t Code, tit. 2, subtit. G app. A-l, (Vernon 1998). In Neely v. Commission for Lawyer Discipline, 976 S.W.2d 824 (Tex.App.—Houston [1st Dist.] 1998, no. pet.), the court stated that: “The Rules of Disciplinary Procedure allow as sanctions: disbarment, resignation in lieu of disbarment, suspension, probation of suspension, reprimand, restitution, and payment of attorneys’ fees and costs.” Id. at 828, emphasis added. We further note that in Texas the same process is used for readmission after a disbarment and a resignation in lieu of disciplinary action. The Texas Supreme Court has stated that canceling a lawyer’s professional license pending discipline is tantamount to an order for disbarment for the purpose of a subsequent petition for reinstatement. In re Pena, 511 S.W.2d 931, 932 (Tex.1974). A resignation in lieu of disciplinary action is a sanction imposed in Texas for professional misconduct. Heinen thus received a sanction for professional misconduct.

¶ 15 Finally, in State ex rel. Oklahoma Bar Association v. Bransgrove, 1998 OK 93, 976 P.2d 540, we concluded that the lawyer in that case could not argue that the absence of an evidentiary hearing in a Texas resignation proceeding precluded reciprocal discipline in Oklahoma, and that admission of the facts alleged in a Texas resignation proceeding was sufficient for the imposition of reciprocal discipline in Oklahoma. Id. 1998 OK 93, at ¶¶ 6-7, 976 P.2d at 541-542. None of Heinen’s arguments successfully challenge those conclusions. We conclude that the Texas adjudication is sufficient to show professional misconduct.

II. The Appropriate Discipline

¶ 16 Heinen requests that we remand the matter to the Professional Responsibility Tribunal (PRT) for an adversarial proceeding. He requests a hearing for an exploration of his conduct and an opportunity to raise defenses and explanations. He further claims an opportunity “to refute Valencia’s [his client’s] allegations in an adversary proceeding before the Professional Responsibility Tribunal.”

¶ 17 Rule 7.7(b) expressly provides that a respondent may submit a certified copy of the transcript of evidence of the trial tribunal from the other jurisdiction. A respondent may also submit a brief and any evidence for the purpose of mitigating the degree of discipline. Heinen’s request for a remand may be construed, in part, as an opportunity to submit such evidence.

¶ 18 We remand the matter to the PRT, but not for an inquiry into whether Heinen committed professional misconduct. In State ex rel. Oklahoma Bar Association v. Patterson, 2001 OK 51, 28 P.3d 551, we said that “the facts that resulted in the imposition of discipline by the other jurisdiction cannot be relitigated, but only reviewed within the context of the evidence previously presented in the other jurisdiction.” Id. at ¶ 6, 28 P.3d at 555. Upon remand “the range of permissible inquiry in a reciprocal disciplinary proceeding stands confined to issues that are germane to the mitigation or severity of the bar disciplinary sanction which is to be visited upon the respondent.” Id. at ¶ 7. We thus remand the matter to the PRT to allow Heinen and the Bar Association to submit any evidence they desire on the issue of the appropriate discipline to be imposed upon respondent.

III. Interim Suspension and Conclusion

¶ 19 The Bar Association requests that the Court impose an interim suspension upon Heinen in the event we remand the matter to the PRT. This Court has imposed interim suspensions. See, e.g., State ex rel. Oklahoma Bar Association v. Gasaway, 1992 OK 120, 867 P.2d 438. Rule 6.2A of the Rules Governing Disciplinary Proceedings provides a procedure for the Bar Association to seek an interim suspension. This Rule requires the Bar Association to allege that a lawyer committed conduct in violation of the Oklahoma Rules of Professional Conduct, or is personally incapable of practicing law as set forth in Rule 10 hereof, and that such conduct poses an immediate threat of substantial and irreparable public harm.

¶ 20 The Bar Association’s request for an interim suspension does not contain any allegations relating to Heinen’s current practice of law in Oklahoma, and thus contains no allegations that his conduct imposes an immediate threat of substantial and irreparable public harm. The request of the Bar Association to impose an interim suspension upon Heinen is denied.

¶ 21 The proceeding is remanded to the Professional Responsibility Tribunal for the purpose of a hearing on the issue of the appropriate discipline to be imposed in this matter. The PRT shall file with this Court a report with its recommendation for discipline.

¶ 22 HARGRAVE, HODGES, LAVENDER, KAUGER, BOUDREAU, WINCHESTER, JJ. — Concur.

¶ 23 WATT, V.C.J., OPALA, J. — Concur in result.

OP ALA, J.,

concurring in result.

¶ 1 I cannot join the court’s pronouncement. It does not explicitly exclude from the range of permissible inquiry — at the eviden-tiary hearing to be conducted by the PRT panel — the nature and degree of Heinen’s culpability, if any there was, in the transaction for the involvement in which he was to have been disciplined in Texas just before his resignation from the Bar of that State. I would have placed Heinen’s culpability vel non clearly beyond the reach of the panel’s inquiry. Its exclusive focus should be on matters relevant to mitigation and aggravation of the discipline to be imposed. To do less than I counsel today is to invite both parties to relitigate ad nauseam Heinen’s Texas bar difficulty in a new-found forum.

      . 5 O.S.Supp.1992 Ch. 1, App. 1-A, Rules Governing Disciplinary Proceedings, Rule 7.7(b):
      "When a lawyer has been adjudged guilty of misconduct in a disciplinary proceeding, except contempt proceedings, by the highest court of another State or by a Federal Court, the General Counsel of the Oklahoma Bar Association may cause to be transmitted to the Chief Justice a certified copy of such adjudication and the Chief Justice shall direct the lawyer to appear before the Supreme Court at a time certain, not less than ten (10) days after mailing of notice, and show cause, if any he/she has, why he/she should not be disciplined. The documents shall constitute the charge and shall be prima facie evidence the lawyer committed the acts therein described. The lawyer may submit a certified copy of the transcript of the evidence taken in the trial tribunal of the other jurisdiction to support his/her claim that the finding therein was not supported by the evidence or that it does not furnish sufficient grounds for discipline in Oklahoma. The lawyer may also submit, in the interest of explaining his/her conduct or by way of mitigating the discipline which may be imposed upon him/ her, a brief and/or any evidence tending to mitigate the severity of discipline. The General Counsel may respond by submission of a brief and/or any evidence supporting a recommendation of discipline.”

      . See, e.g., Boatsman v. Boatsman, 1984 OK 74, 697 P.2d 516, 519; Cobb v. Killingsworth, 1920 OK 61, 187 P. 477, 479; Dickason v. Dickason, 1980 OK 24, n. 6, 607 P.2d 674, 677; Kirkpatrick v. Chrysler Corp., 1996 OK 136, 920 P.2d 122, 130; Annot., Modem View Of State Courts As To Whether Consent Judgment Is Entitled To Res Judicata Or Collateral Estoppel Effect, 91 A.L.R.3d 1170 (1979).

      . See, e.g., Berg v. AMF Inc., 29 S.W.3d 212, n. 4, 221 (Tex.App.—Houston [14th Dist.] 2000), (defining stipulation and its effect); Guerrero v. Smith, 864 S.W.2d 797, 801 (Tex.App.—Houston [14th Dist.] 1993), (stating effect of stipulation).

      . See, e.g., In re Kellogg-Brown & Root, Inc., 45 S.W.3d 772, 777 (Tex.App.-Tyler, 2001), ("A matter that is 'deemed admitted' is conclusively established against the admitting party unless the court permits withdrawal or amendment of the admission.”); Continental Carbon Co. v. Sea-Land Service, Inc., 27 S.W.3d 184, 190 (Tex.App.Dallas, 2000, pet.denied), ("Therefore, the matters addressed in Sea-Land’s request for admissions are deemed admitted and conclusively established as to Continental.”); Spiecker v. Petroff, 971 S.W.2d 536, 538 (Tex.App.Dallas 1997), ("The consequence of ‘deemed admissions' is that the matters are conclusively established as to the admitting party unless the court, on motion, permits withdrawal or amendment of the admissions.”); Burden v. John Watson Landscape Illumination, Inc., 896 S.W.2d 253, 255 (Tex.App.Eastland, 1995, writ denied), (same); Ruiz v. Nicolas Trevino Forwarding Agency, Inc., 888 S.W.2d 86, 89 (Tex.App.San Antonio, 1994), (“When admissions are deemed, the matters are conclusively established against the admitting party unless the court, on motion, permits withdrawal or amendment of the admissions.”).

      . See authority cited in note 4, supra.

      . See, e.g., State ex rel. Oklahoma Bar Association v. Henderson, 1999 OK 29, ¶ 4, 977 P.2d 1096, (lawyer suspended for three years in Colorado); State ex rel. Oklahoma Bar Association v. Bransgrove, 1998 OK 93, ¶ 1, 976 P.2d 540, (lawyer’s resignations from Texas bar and Kansas bar); State ex rel. Oklahoma Bar Association v. Rehberger, 1998 OK 38, ¶ 2, 981 P.2d 308, (disbarment in Georgia and Missouri).

      . Texas Rules of Disciplinary Procedure, Rules 1.06 & 3.09, reprinted in, Tex. Gov’t Code, tit. 2, subtit. G app. A-1, (Vernon 1998). See also, Skelton v. Commission for Lawyer Discipline, 56 S.W.3d 687, 693—694 (Tex.App.—Houston, [14th Dist.] 2001), (citing Rule 3.09); Brown v. Commission for Lawyer Discipline, 980 S.W.2d 675, 683 (Tex.App.—San Antonio, 1998, no pet.), (stating principle and citing Rule 3.09).

        .Board of Law Examiners of State of Tex. v. Gabriel, 953 S.W.2d 227, 228 (Tex.1997). See also, Texas Rules of Disciplinary Procedure, Rule 11.01, repnnted in, Tex. Gov’t Code, tit. 2, subtit. G app. A-l, (Vernon 1998), ("A disbarred person or a person who has resigned in lieu of Disciplinary Action may, at any time after the expiration of five years from the date of final judgment of disbarment or the date of Supreme Court order accepting resignation in lieu of Disciplinary Action, petition the district court of the county of his or her residence for reinstatement; . .. ”).

      . 5 O.S.2002 Ch. 1, App. 1-A, Rules Governing Disciplinary Proceedings, Rule 6.2A. Emergency Interim Suspension Orders and Related Relief.
      (1) Verified Complaint and Service.
      The General Counsel, with the concurrence of the chairperson or vicechairperson of the Professional Responsibility Commission, upon receipt of sufficient evidence demonstrating that a lawyer subject to these Rules has committed conduct in violation of the Oklahoma Rules of Professional Conduct, or is personally incapable of practicing law as set forth in Rule 10 hereof, and where such conduct poses an immediate threat of substantial and irreparable public harm, may file a verified complaint in accordance with Rule 6 hereof requesting interim suspension and other appropriate relief. A copy of the complaint shall be served personally or by certified mail, return receipt requested, upon the respondent by General Counsel; provided that, if a respondent refuses to sign for, or otherwise does not claim the certified mail, then the General Counsel may serve the complaint and any further papers, notices and orders in accordance with Rule 13.1 hereof.
      (2) Immediate Interim Suspension.
      (a) Upon filing of the verified complaint, the Court may issue an order directing the respondent to object and show cause within ten (10) days why such order of interim suspension should not be entered.
      (b) In the event such an objection is timely filed, the matter shall be set for hearing at the earliest possible time. Such hearing may be before the Court, any Justice thereof, or the Court may refer the matter to the Professional Responsibility Tribunal for hearing and recommendations.
      (3) Related Relief.
      (a) Any order of interim suspension may include such other orders to the respondent as may be necessary to preserve and recover funds and other property of respondent’s clients or other persons, and the Court may, upon its own motion or upon application of the General Counsel, issue an order authorizing the General Counsel to initiate civil proceedings in the appropriate court to obtain an order to preserve any such funds maintained in a financial institution or elsewhere.
      (b) In the event that the respondent does not file an objection to the order as set forth in Rule 6.2A(b) above, or in the event that such an objection is timely filed, but, after hearing on the matter, the order is entered, and the Court may, upon its own motion or upon application of the General Counsel:
      (i) require the respondent to give written notices to affected clients and otherwise comply with Rule 9.1 hereof within ten (10) days of the hearing or, where no timely objection to the order was filed, within ten (10) days of the expiration of the time for filing such an objection; and/or
      (ii) issue an order requiring the appointment of an attorney(s) to wind up the respondent’s business in accordance with Rule 9.3 hereof.
      (4)Further Proceedings Accelerated.
      Disposition. In addition to the above, the respondent shall file an answer to the complaint with the Chief Justice pursuant to Rule 6.4, and, except as provided above, all proceedings thereafter shall be conducted in accordance with the Rules Governing Disciplinary Proceedings where no interim suspension is sought; provided that, the respondent may include in his/her answer a request for accelerated disposition, and, thereafter, the entire proceedings shall be concluded by the Professional Responsibility Tribunal and the Court without appreciable delay.