author: Judge TAUBMAN.

text:
    Fred R. SCHNEIDER; and Fred R. Schneider and Helen V. Schneider as co-trustees of Trust One and Trust Two of the Phillip and Helen Schneider 1986 Trust, dated December 13, 1986, Plaintiffs-Appellants and Cross-Appellees, v. Wayne DRAKE and Betsy Drake, Defendants-Appellees and Cross-Appellants, and Gary Moore, Judith Moore, Peggy Snyder, Herbert and Edna Williams, Barron Harris, Jr., Robert Wood, Wendy Wood, David Storter, and Melanie Storter, Defendants-Appellees.
    No. 00CA1212.
    Colorado Court of Appeals, Div. V.
    July 19, 2001.
    Certiorari Denied April 8, 2002.

      Dufford, Waldeck, Milburn & Krohn, LLP, Nathan A. Keever, Grand Junction, CO, for Plaintiffs-Appellants and Cross-Appellees.
    Overholser & Slee, P.C., Andrew J. Slee, Montrose, CO, for Defendants-Appellees and Cross-Appellants.
    Brooks & Brooks, LLC, John A. Brooks, Montrose, CO, for Defendants-Appellees.

       Justice KOURLIS and Justice BENDER would grant as to the following issue:
      Whether a court, when interpreting multiple amendments to restrictive covenants that became effective at the end of an initial twenty-year period, should consider the amendments in the order in which they were recorded.
      Whether an amendment to restrictive covenants that withdraws and releases certain lots from the existing restrictive covenants of that subdivision prevents the remaining members of that subdivision from later adopting another amendment to bring the excluded lots back within the scope of the restrictive covenants.
      Whether the court of appeals erred in denying Respondent's recovery of their attorney fees.

   Opinion by

Judge TAUBMAN.

In this dispute concerning the right to create additional lots in a subdivision, plaintiffs, Fred R. Schneider, in his individual capacity, and Helen V. Schneider and Fred R. Schneider as co-trustees of Trust One and Trust Two of the Phillip and Helen Schneider 1986 Trust (Schneiders), appeal the judgment prohibiting or limiting further subdividing and awarding defendants attorney fees. Defendants Wayne and Betsy Drake (Drakes) cross-appeal a portion of the judgment, including the grant of limited equitable relief to the Schneiders. Defendants Gary and Judith Moore, Peggy Snyder, Herbert and Edna Williams, Barron Harris, Jr., Robert and Wendy Wood, and David and Melanie Storter (Moores) request that we affirm the judgment in its entirety. We affirm in part and reverse in part.

There are five documents central to the issues in dispute: 1) 1976 Protective Covenants for the M.E.B. Subdivision (M.E.B. Covenants); 2) 1977 amendments; 3) a 1995 amendment; 4) a 1996 amendment; and 5) a 1995 permanent injunction entered in prior litigation between the Schneiders and the Drakes, which prohibited further subdividing.

In 1976, the owners of the M.E.B. Subdivision, then consisting of seven lots, filed and recorded the M.E.B. Covenants. Paragraph three of those covenants provided, "No lot shall be resubdivided into smaller lots or parcels of land to obtain additional building sites." The covenants further provided that they would be effective for twenty years and then would be renewed automatically for ten-year periods, unless the lot owners sought to amend them. Also, the owners of the lots, by majority vote, could modify or nullify the covenants by amendment before the expiration of the twenty-year period, and such amendment would be valid after that period expired.

One year later, in 1977, the lot owners of at least six lots signed amendments to the M.E.B. Covenants. The amendments, inter alia, deleted paragraph three, the quoted prohibition of further subdividing. The parties did not record these amendments as required by the covenants.

At that time, the Schneiders owned five of the seven lots in the M.E.B. Subdivision, Lots 3, 4, 5, 6, and 7. After the 1977 amendments were signed, the Schneiders began subdividing Lot 3 to create the Schneider M.E.B. Subdivision. This new subdivision created five lots on Lot 3 and the final plat was recorded. In addition, the Schneiders filed a second plat, creating a sixth lot on Lot 3, and further subdividing Lots 4 through 7. The Schneiders did not carry out their plans to subdivide part of Lot 38, and Lots 4, 5, 6, and 7 until 1994. In about 1980, the original owner of Lot 1 subdivided that lot into Lot A and Lot B. All of this subdividing was done in apparent violation of the original M.E.B. Covenants, because the 1977 amendments were not recorded.

In 1994, before the end of the twenty-year period, the Schneiders began onee more to develop the Schneider M.E.B. Subdivision in accordance with the plans recorded in 1977.

On January 23, 1995, Helen V. Schneider and eight other individuals signed an amendment to the M.E.B. Covenants, which was intended to make the covenants inapplicable to Lots 3, 4, 5, 6, and 7 of the M.E.B. Subdivision, effective at the end of the twenty-year period. The nine individuals who signed the amendment constituted a majority of the lot owners of the original seven lots, as well as a majority of all the lot owners at that time. This amendment was recorded on February 9, 1995.

Two weeks later, the Drakes obtained a permanent injunction against the Schneiders, prohibiting them from further subdividing their property in violation of the M.E.B. Covenants.

In January 1996, before the end of the twenty-year period, fourteen individuals signed and recorded an amendment to the M.E.B. Covenants, "cancellling] and an-nullling] all previous purported amendments." This amendment was intended to nullify the 1995 amendment and make effective the original M.E.B. Covenants that prohibited further subdividing.

In 1997, the Schneiders brought a declaratory judgment action, seeking a determination that the 1995 amendment was valid, that the 1996 amendment was invalid, and that for equitable reasons, the M.E.B. Covenants were no longer operative. The Drakes and the Moores each filed an answer and counterclaims against the Schneiders, seeking in-junctive relief, clarification or declaration of the significance of the 1995 permanent injunction, and attorney fees.

The trial court concluded that: 1) the 1977 amendments were invalid because they were not recorded; 2) the 1995 and 1996 amendments were void ab initio, 3) under the doctrine of equity, the Schneiders could continue to subdivide Lot 3, but not Lots 4, 5, 6 or 7; and 4) defendants were the prevailing parties and, thus, were entitled to attorney fees.

This appeal and cross-appeal followed.

I. Validity of Amendments

The Schneiders argue that the trial court erred in invalidating the 1977 and 1995 amendments. On cross-appeal, the Drakes assert that the trial court erred in concluding that the 1996 amendment was void ab initio, and they maintain that the trial court determined correctly that the 1977 and 1995 amendments did not permit further subdividing by the Schneiders. Although the Moores did not respond to the Drakes' cross-appeal, they contend that we should affirm the judgment in its entirety. We agree with the Drakes.

Construction of a covenant is a question of law that requires de novo review. Buick v. Highland Meadow Estates at Castle Peak Ranch, Inc., 21 P.3d 860, 862 (Colo.2001). When interpreting a restrictive covenant that is definite in its terms, courts must "follow the dictates of plain English." Double D Manor, Inc. v. Evergreen Meadows Homeowners' Ass'n, 773 P.2d 1046, 1048 (Colo.1989)(quoting D.C. Burns Realty & Trust Co. v. Mack, 168 Colo. 1, 4, 450 P.2d 75, 76 (1969)).

Courts construe covenants as a whole, keeping in mind their underlying purpose. When a covenant is clear on its face, courts will enforce it as written. Buick, 21 P.3d at 862.

Because we conclude that the 1996 amendment was properly adopted, we need not address the parties' contentions concerning the validity of the 1977 and 1995 amendments. However, we note that contrary to the Drakes' contention, the issue of whether the 1995 amendment is valid is not barred by the doctrine of res judicata. In the previous litigation, the trial court concluded that the issue was not ripe, because the 1995 amendment could not become effective until 1996. Thus, the issue was not fully litigated there, and res judicata does not bar the present litigation. See Steamboat Springs Rental & Leasing, Inc. v. City & County of Denver, 15 P.3d 785 (Colo.App.2000).

A.

The Schneiders argue that the 1996 amendment was invalid because it did not contain the signatures of the owners of a majority of the original seven lots. We disagree.

The M.E.B. Covenants required that an amendment must be executed by the "then owners of the majority of the lots."

First, the term "then owners" necessarily refers to the existing owners of lots at the time of the 1996 amendment. If the drafters of the covenants had intended otherwise, they would have used language such as "by a majority of the owners of the original seven lots."

Further, the original M.E.B. Covenants contemplated that they could be amended under certain cireumstances so as to allow subdividing. Here, although the 1977 amendments were not recorded, the owners of the lots in the M.E.B. Subdivision proceeded on the assumption, based upon those amendments, that subdividing was no longer prohibited. Indeed, the Drakes and the Moores lived on Lots A and B, which originally had constituted Lot 1, and there were six separately owned residences on the original Lot 3.

Although the subdivision of Lots 1 and 3 was in violation of the covenants, it occurred with the acquiescence of the owners of all the lots in the subdivision. Given this de facto resubdivision and acquiescence, the subdivision now consists of fourteen lots. To view the subdivision in any other way would deprive the two present owners of lots on the original Lot 1 and the six present owners of. lots on the original Lot 8 of the full benefits of the covenants, including the right to vote on amendments.

Here, under this interpretation, the 1996 amendment was approved by a majority. At that time, there were fourteen lots in the M.E.B. Subdivision; therefore, eight lots constituted a majority. The owners of nine lots signed the 1996 amendment, thus constituting owners of a majority of the lots in the subdivision at that time.

Further, even if we were to assume that the covenants required approval by a majority of the owners of the original seven lots, the 1996 amendment was still valid. When the 1995 and 1996 amendments were approved, there were seventeen individual lot owners, and fourteen of those lot owners signed the 1996 amendment. They also constituted a majority.

Even if we were to agree with the Schneid-ers' contention that one signature on the 1996 amendment was invalid, there still would be sufficient signatures to establish the necessary majority under either approach.

Thus, we conclude that the 1996 amendment was valid.

B.

The Drakes assert that the trial court erred in concluding that the 1996 amendment was void ab initio. We agree.

In 1995, the owners of ten lots signed an amendment purporting to release the Schneiders from the restrictive covenants. We note that the Schneiders owned five of those ten lots and that four lot owners did not agree with or sign that amendment.

In 1996, the owners of nine lots, which included all lots except those owned by the Schneiders, signed a different amendment intended to nullify the 1995 amendment. This amendment made effective again the original M.E.B. Covenants prohibiting further subdividing.

Thus, between 1995 and 1996, the owners of five lots changed their minds regarding the 1995 amendments. The 1996 amendment "cancels and annuls all previous purported amendments. Particularly, this amendment cancels and annuls the purported amendment to Protective Covenants for M.E.B. Subdivision recorded February 8, 1995 ...." Because all of the lot owners except the Schneiders signed the 1996 amendment, that document manifested a clear intention of the majority of property owners or owners of a majority of the lots to affirm the original M.E.B. Covenants in their entirety and annul the purported 1995 amendment.

Furthermore, neither the 1995 amendment nor the 1996 amendment, which was adopted on January 25, 1996, became effective until January 26, 1996, the date the original twenty-year period expired. See Johnson v. Howells, 682 P.2d 504 (Colo.App.1984)(amendments not effective until end of initial twenty-year period).

Because the. amendments became effective at the same time, they must be read together in order to discern the actual intent of the parties. Cf. Perkins v. B & W Contractors, - Inc., 439 So.2d 652, 656 (La.Ct.App.1983)(signatures of owners purporting to revoke amendments were ineffective because they occurred after effective date of amendments). So construed, the 1996 amendment effectively overrode the 1995 amendment.

Finally, we disagree with the Schneiders contention that the 1996 amendment could not make their lots subject to the M.E.B. Covenants after those lots had been withdrawn from the coverage of the covenants pursuant to the 1995 amendment. Rooney v. Peoples Bank, 32 Colo.App. 178, 513 P.2d 1077 (1973), on which they rely, is distinguishable.

In Rooney, a division of this court concluded that the restrictive covenants of a subdivision could not be enforced by a member of a neighboring subdivision. The court noted that, unlike here, at no time was there a general plan or scheme common to all of the subdivisions, and without such a common plan, property owners in one subdivision could not enforee the covenants of a neighboring subdivision. Here, we are presented with competing amendments within a subdivision that has a common plan; therefore, we conclude that Rooney is inapplicable.

Additionally, contrary to the Schneiders contention, the 1995 amendment did not permit them to withdraw from the subdivision; rather, it attempted to release them from the original M.E.B. Covenants. Therefore, the Schneiders' lots were never withdrawn from the subdivision and continued to be subject to the original M.E.B. Covenants and subsequent amendments.

Although we disagree with the trial court that the 1996 amendment was void ab initio, we reach the same conclusion that the M.E.B. Covenants control. See Barham v. Scalia, 928 P.2d 1381, 1386 (Colo.App.1996)(a correct judgment may be affirmed based upon reasoning different from that of the trial court). Consequently, we agree with the trial court's determination that the amendments did not permit the Schneiders to subdivide further.

II. Equitable Relief

Next, both the Schneiders and the Drakes argue that the trial court did not apply the correct standard in determining whether the Schneiders were entitled to equitable relief. The Schneiders assert that they were entitled to broad equitable relief, while the Drakes maintain that the trial court abused its discretion in granting even limited equitable relief to the Schneiders. The Moores contend that the trial court applied the correct standard and urge us to affirm the limited equitable relief granted to the Schneiders. We agree with the Moores.

The power to fashion equitable remedies lies within the discretion of the trial court, and such rulings will not be disturbed on appeal absent an abuse of discretion. La Plata Medical Ctr. Assocs., Ltd. v. United Bank, 857 P.2d 410, 420 (Colo.1998). A trial court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair. Margenau v. Bowlin, 12 P.3d 1214, 1216 (Colo.App.2000).

Both the Schneiders and the Drakes assert that the trial court erred in not applying the test set forth in Zavislak v. Shipman, 147 Colo. 184, 362 P.2d 1053 (1961). There, the supreme court held that a court may exercise its equitable powers when a restrictive covenant no longer serves the purpose for which it was imposed or when the cireum-stances have changed and the enforcement would impose an oppressive burden without any substantial benefit. Id. at 187-88, 362 P.2d at 1055.

We disagree with the Schneiders and the Drakes that the trial court did not apply the standard set forth in Zavislak. Although the court did not cite Zavislak in its opinion, Zovisiak was cited to the trial court in all three of the parties' trial briefs. Therefore, the court was aware of the Zavisiak test, and we conclude that it followed Zavisiak in making its equitable determinations.

Here, the trial court denied the Schneid-erg' request for equitable relief for Lots 4, 5, 6, and 7 because they failed to show "any change of cireumstances sufficient to allow removal of their property from the protective covenants." In addition, the court noted that all of the other property owners wanted the protective covenants to remain in effect for "their mutual protection, enforcement and beneficial use of their property." Thus, the court also concluded that the M.E.B. Covenants continued to serve the purposes for which they were imposed.

The trial court did not abuse its discretion in devising an equitable remedy that incorporated all of the parties' concerns. The court permitted the Schneiders to finish developing Lot 3, which had already been subdivided into six lots. The court stated that the Schneiders had created a street and installed some utilities in anticipation of further subdividing. Furthermore, the court noted that a majority of the lot owners realized that further subdividing might take place.

We conclude that the court did not abuse its discretion in upholding the original covenants and refusing to grant the Schneiders equitable relief allowing them to subdivide Lots 4, 5, 6, and 7. We also conclude that the trial court did not abuse its discretion by failing to provide relief based on equitable estoppel to the Schneiders because, after approval of the 1995 Amendment, they gave up their irrigation water rights. As stated above, the court carefully weighed the factors set forth in Zavislak v. Shipman and concluded that the Schneiders were not entitled to such equitable relief.

III. Attorney Fees

Finally, the Schneiders contend that the trial court erred in awarding defendants attorney fees, because the Schneiders merely sought declaratory relief and were not violating or threatening to violate the M.E.B. Covenants. We agree.

The M.E.B. Covenants provide that the owners of any lot may institute a claim against "any person ... violating or threatening to violate the covenants." In addition, according to the covenants, the prevailing party "shall be entitled to recover reasonable attorney's fees."

As stated above, when a covenant is clear on its face, courts will enforce it as written. Buick, 21 P.3d at 862.

Here, in their complaint, the Schneiders sought declaratory relief to determine the status of Lots 3 through 7 in light of the conflicting 1995 and 1996 amendments. They took no action before or after filing their complaint to develop their proposed subdivision further. Therefore, they did nothing that violated or threatened to violate the covenants.

Although, in their counterclaims, defendants sought injunctive relief prohibiting the Schneiders from further subdividing in violation of the M.E.B. Covenants, this allegation alone is insufficient to demonstrate that the Schneiders were violating or threatening to violate the covenants.

Accordingly, we conclude that the trial court erred in awarding defendants attorney fees.

Because of our disposition, we decline to address the Schneiders' contention that the trial court also erred in awarding defendants attorney fees because they were not the prevailing party, as required by the M.E.B. Covenants. *

The judgment is reversed as to the award of attorney fees and affirmed in all other respects.

Judge KAPELKE and Judge NIETO concur.


source: Caselaw Access Project

author: Judge DAVIDSON.

license: Public Domain

text:
    Glenn Fay LANG, Plaintiff-Appellant, v. COLORADO MENTAL HEALTH INSTITUTE IN PUEBLO, Defendant-Appellee.
    No. 00CA1268.
    Colorado Court of Appeals, Div. I.
    Sept. 13, 2001.
    Certiorari Denied April 15, 2002.

      Altman, Keilbach, Lytle, Parlapiano & Ware, P.C., David E. Ware, Pueblo, CO, for Plaintiff-Appellant.
    Ken Salazar, Attorney General, Carol M. Caesar, Assistant Attorney General, Denver, CO, for Defendant-Appellee.

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

   Opinion by

Judge DAVIDSON.

In this action brought under the Wage Claim Act (the Act), § 8-4-101, et seq., C.R.98.2000, plaintiff, Glenn Fay Lang, appeals from the judgment of the trial court dismissing his complaint against defendant, the Colorado Mental Health Institute in Pueblo, a division of the Department of Human Services of the State of Colorado. The trial court determined that the Act did not apply to defendant as an agency of the state. We agree and therefore affirm.

Plaintiff was defendant's employee until his termination in 1995. Plaintiff appealed his termination to the State Personnel Board (the Board), pursuant to § 24-50-125, C.R.S. 2000. The Board found plaintiffs termination wrongful and ordered his reinstatement with back pay and benefits.

Plaintiff was reinstated with back pay in 1998, but believed he was still owed additional back pay and benefits. Plaintiff did not seek relief from the Board, but instead filed suit in district court, seeking, under the Act, the remainder of his unpaid wages, unpaid shift differential, unpaid or uncredited back vacation pay and sick time credit, accrued interest, and attorney fees.

Defendant filed a motion to dismiss pursuant to C.R.C.P. 12(b)(5), which the court granted on the grounds that, inter alia, the Act did not apply to defendant. Plaintiff now argues that this was error. We disagree.

As relevant here, "employer" is defined in the Act as:

every person, firm, partnership, association, corporation, migratory field labor contractor or crew leader, receiver, or other officer of court in Colorado, and any agent or officer thereof, of the above mentioned classes, employing any person in Colorado.

Section 8-4-101(6), C.R.S.2000. The definition, however, also lists exceptions:

[tlhe provisions of this article shall not apply to counties, cities and counties, municipal corporations, quasi-municipal corporations, school districts, and irrigation, reservoir, or drainage conservation companies or districts organized and existing under the laws of Colorado.

Section 8-4-101(6).

Plaintiff argues that, because the Act applies to all employers not specifically exempted under the statute, the state is an employer under the Act. We agree with defendant that the General Assembly did not intend to include the state within the Act's purview.

An exception in a statute amounts to an affirmation of the application of its provisions to all other cases not excepted and excludes all other exceptions. See New York Indemnity Co. v. Industrial Comm'n, 86 Colo. 364, 281 P. 740 (1929). An exception not made by the legislature is not to be read into the statute. See Karoly v. Industrial Comm'n, 65 Colo. 239, 176 P. 284 (1918); see also Reale v. Board of Real Estate Appraisers, 880 P.2d 1205 (Colo.1994)(expressio uni-us est excelusio alterius-the expression of one thing is the exclusion of another).

Here, the Act does not list the state in its definition of employer. However, neither does it list the state in its catalogue of exceptions. Under rules of statutory construction, the two cancel each other out, effectively rendering the statute silent as to its applicability to the state.

Consequently, because the statutory provisions do not speak to the matter at issue, we interpret the statute to comport with what we conclude are the General Assembly's objectives. See Brock v. Nyland, 955 P.2d 1037 (Colo.1998). In doing so, we may look to pertinent legislative history to ascertain the General Assembly's intent. See Seaman v. Colorado Manufactured Housing Licensing Bd., 832 P2d 1041 (Colo.App.1991).

Although amended sinee its adoption, the Act has retained its basic scheme, requiring regular, periodic payments to an employee throughout his employment and immediate payment of all earned and unpaid wages or compensation upon termination. See §§ 8-4-104(1), 8-4-105, C©.R.S.2000; Jet Courier Service, Inc. v. Mulei, 771 P.2d 486 (Colo.1989).

The Act originally was enacted in 1901, under the title "An Act Providing For The Regulation Of The Payment Of Wages, Of Employees Of Corporations And Providing A Penalty For The Violation Thereof," as part of the chapter entitled "Corporations." The statute applied to "(alll private corporations doing business within this state, except railroad corporations." Colo. Sess. Laws 1901, ch. 55, at 128.

In an early interpretation of the Act, the supreme court stated that "the general object of the bill is to require all private corporations doing business within this state ... to pay to their employees the wages earned each and every fifteen days in lawful money of the United States." In re Senate Bill No. 27, 28 Colo. 359, 360, 65 P. 50, 50 (1901).

Early versions of the Act do not explicitly define "employer." However, in 1919, the Act was amended to apply to "[all private and quasi-public corporations doing business within this state," Colo. Sess. Laws 1919, ch. 183, § 1 at 617, and the same pertinent language was retained through the 1958 statutes. See § 80-10-1, C.R.S.1958. The 1953 statutes further clarified that "[all private or quasi-public corporations organized for peeu-niary profit shall be subject to the provision of sections 80-10-1 to 80-10-8." Section 80-10-8, C.R.S8.1958.

The Act did not contain a definition of "employer" until 1959, when it was amended to read:

Whenever used in this act "employer" includes every person, firm, partnership, association, corporation, receiver, or other officer of court in Colorado, and any agent or officer thereof, of the above mentioned classes, employing any person in Colorado, provided, however, that the provisions of this act shall not apply to counties, cities and counties, municipal corporations, quasi municipal corporations, school districts, and irrigation, reservoir, drainage conservation company or district organized and existing under the laws of Colorado.

Colo. Sess. Laws 1959, ch. 166, § 2 at 537.

As presently enacted, the Act closely resembles the 1959 amendment, defining a variety of entities as "employers." See § 8-4-101(6).

We conclude that this evolution of the definition of "employer" indicates a strong legislative intent to restrict the Act's applicability. Specifically, the language of the original statute referred to "Employees of Corporations," applying to "all private corporations." The supreme court's early interpretation of the Act required "all private corporations" to pay their employees in a timely manner. The later definition of "employer" in 1958 extended the scope of the Act to private corporations and quasi-public corporations, which are for-profit corporations providing an essential public service, such as electric companies or other utilities. See Black's Law Dictionary 344 (7th ed.1999). However, at no point in this linguistic expansion did the definition of "employer" extend beyond the realm of nongovernmental entities.

Now, the Act's exclusion of governmental entities such as counties, cities, and municipal corporations accords with the earlier versions limiting the Act to the private sector, rather than extending it to the public sector. Contrary to plaintiffs contention, the language "receiver, or other officer of court" in the current version of the Act refers not to the state judicial department or any other public entity, but rather to court-appointed receivers, liquidators, and the like, of private corporations or unincorporated associations.

We also conclude that the General Assembly did not mention the state in its otherwise comprehensive list of excluded public entities because the personnel system of the state, but of no other public entity, is a creature of the Colorado Constitution. CJ. § 8-5-101(5), C.R.98.2000 (including the state as an employer where no conflict with the state constitution exists). Thus, for the General Assembly to include the state as an employer under the Act was not a viable option.

The Colorado Constitution establishes the state personnel system in article XII, section 13. See also § 24-5-101, et seq., C.R.8.2000. Pursuant to constitutional direction, the enabling statutes and rules of the state personnel system establish a comprehensive wage system, providing for the regular payment of employee salaries on the last day of each month. - See § 24-50-104(8), C.R.S.2000. The enabling statutes also provide for resolution of wage claims within the personnel system, providing specifically for disciplinary proceedings and hearings, discrimination appeals, appeal procedures, and award of attorney fees. See §§ 24-50-125 to 24-50-125.5, C.R.S.2000. See also State Personnel Rules R-8-5, R-8-9, R-8-45, 4 Code Colo. Regs. 801 (2000).

Because both the Act and the state personnel system are comprehensive systems addressing the payment of wages and the resolution of disputes, including the state as an employer under the Act would lead to an overlap, and possibly a conflict, between the Act and the constitutionally established state personnel system. For example, vacation compensation is included as compensable income under the Act, see Hartman v. Freedman, 197 Colo. 275, 591 P.2d 1318 (1979), but, according to the initial State Personnel Board decision here, was not so included in plaintiff's back pay award.

Unless otherwise trumped by federal law, see, e.g., Redmond v. Chains, Inc., 996 P.2d 759 (Colo.App.2000), if the state constitution and statute are in conflict, the state constitution is paramount. See Passarelli v. Schoettler, 742 P.2d 867 (Colo.1987). And, we must presume that, in establishing the Act, the General Assembly was aware of the existence of the state personnel system and its constitutional underpinnings. See § 2-4-201, C.R.8.2000; In re Questions Submitted by United States Dist. Court, 179 Colo. 270, 499 P.2d 1169 (1972); Norman J. Singer, Statutes and Statutory Construction § 45:12 (2000).

Thus, by its silence as to the status of the state as an "employer" under the Act, we conclude that the General Assembly simply has acknowledged that it was not within its purview to include the state. Conversely, there was no need, as there was with other governmental entities, to explicitly exclude the state either. ~

Accordingly, because the state is not an employer and, therefore, not a proper defendant under the Act, the trial court correctly dismissed plaintiff's complaint for failure to state a claim.

The judgment is affirmed.

Justice ERICKSON and Judge STERNBERG concur.


text:
    The PEOPLE of the State of Colorado, Complainant, v. Karen J. ROOSE, Respondent.
    Nos. 01PDJ078, 01PDJ097, 01PDJ108.
    April 16, 2002.

      Opinion issued by the Presiding Disciplinary Judge ROGER L. KEITHLEY, and Hearing Board members EDWIN S. KAHN and DANTE J. JAMES, both members of the bar.
   OPINION AND ORDER IMPOSING SANCTIONS *

SANCTION: ATTORNEY DISBARRED

A trial in this matter was held on February 22, 2002 before the Presiding Disciplinary Judge ("PDJ") and Hearing Board members Edwin S. Kahn and Dante J. James, both members of the bar. Charles E. Mortimer, Jr. represented the People of the State of Colorado (the "People"). Karen J. Roose ("Roose") appeared on her own behalf.

The Complaint in Case No. OLPDJOT78 was filed August 21, 2001. Roose filed an Answer on September 20, 2001. The Complaint in Case No. O1PDJ097 was filed on October 23, 2001. Roose filed a Motion to Dismiss and Answer on November 21, 2001. The PDJ denied the Motion to Dismiss by order dated December 4, 2001.

At trial, the People's exhibits 1 through 9 and Rooge's exhibits A through C were offered and admitted into evidence. David Baumgarten and Philip Klingsmith testified on behalf of the People. Roose testified on her own behalf. The PDJ and Hearing Board heard argument of counsel, assessed the credibility of the witnesses, reviewed the exhibits admitted into evidence and the Stipulation of Facts filed by the parties on February 15, 2002, and determined the following findings of fact by clear and convincing evidence.

I. FINDINGS OF FACT

Karen J. Roose has taken and subscribed the oath of admission, was admitted to the bar of this court on June 8, 1999, and is registered upon the official records of this court, registration no. 30750. She is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b). At the time of the events upon which this proceeding is based, Roose had been engaged in the practice of law for less than two years, had not participated in a jury trial and was inexperienced in trial practice.

The conduct giving rise to this proceeding involved a case pending in Hinsdale County District Court, In the Interest of S.S. and C.S., Case No. OOJVOL, a dependency and neglect matter. The case was initiated on November 11, 2000 on behalf of the People of the State of Colorado. David Baumgarten, Hinsdale County Attorney, was the attorney for petitioner, the People of the State of Colorado. On November 18, 2000, Judge J. Steven Patrick appointed Roose as attorney for the respondent mother, N.P., who was then residing in Aruba and not physically present in Colorado. Roose filed several motions challenging personal jurisdiction over N.P. Those motions were heard and denied by Judge Patrick.

On December 29, 2000, the court set the dependency and neglect jury trial date for February 21 and 22, 2001. Roose participated in this setting. A pre-trial conference was held on February 15, 2001, and the magistrate conducting the pre-trial conference reaffirmed the trial date of February 21. A jury trial commenced on February 21, 2001, before Judge Patrick. During the second day of the jury trial, Roose requested a bench conference out of the presence of the jury and orally requested that the matter be dismissed on grounds substantially similar to the grounds which Judge Patrick had considered prior to the trial and denied. Judge Patrick again denied the requested dismissal. Roose also moved for a mistrial on the grounds that she was not capable of handling the jury trial, had no experience with juries and was generally providing ineffective assistance to her client. Although Judge Patrick denied that motion, he did appoint Rufus O. Wilderson as co-counsel with Roose for N.P. Roose objected to Wilderson's appointment as co-counsel and informed Judge Patrick that she could not continue to represent N.P. in the trial and would have to leave the courtroom if he insisted on proceeding. Judge Patrick informed Roose that the trial would continue, that she did not have the option of walking out of the case in the middle of the trial and that she must remain in the courtroom. Roose again informed Judge Patrick that she was leaving and began to walk out of the courtroom. Judge Patrick ordered Roose to remain in the courtroom and advised her that if she left she would be held in contempt of court. Roose left the courtroom.

Having appointed Wilderson as co-counsel, Judge Patrick elected to proceed with the trial. Wilderson, who had spoken at some length with N.P. by phone the evening before, advised the court that N.P. wished to confess the neglect charges and move forward to the treatment plan phase of the case. Judge Patrick, with all counsel except Roose present, placed a telephone call to N.P., confirmed that she wished to confess the neglect charges, that she understood her admission and that she wanted to proceed to the treatment plan stage. N.P. confirmed Wilderson's statements to the court, the court accepted N.P.'s confession of neglect, and subsequently discharged the jury.

Shortly thereafter, Judge Patrick issued a contempt citation to Roose and ordered that the contempt proceedings be assigned to another judge. Judge Patrick, by minute order, also terminated Roose's appointment as counsel for N.P. Before she received a copy of the minute order, however, Roose filed another motion seeking to dismiss the case based upon her absence from the courtroom when N.P. was called by telephone and in the course of the telephone conference, admitted the neglect issues. Judge Patrick denied the motion by minute order dated February 26 and mailed the minute order to counsel, including Roose. The minute order stated, in part, "Ms. Roose has now been discharged from her duties in this case. She is instruct, ed to refrain from filing any further pleadings in this case."

Thereafter, Philip Klingsmith was appointed by the court to represent N.P. Notwithstanding her removal and Mr. Klingsmith's appointment, on August 22, 2001, Roose filed a Notice of Appeal in the Colorado Court of Appeals, Case No. 01CA1566, In the Interest of S.S. and C.S. The Notice of Appeal identified Roose as the attorney for N.P. both in the caption and in the first paragraph. The Notice of Appeal did not disclose that Roose had been removed from further participation in the case by Judge Patrick, no longer represented N.P. nor that Roose had been ordered to refrain from filing further pleadings.

The Notice of Appeal contained several additional factual statements made by Roose which she knew to be false at the time they were advanced to the Court of Appeals. Roose stated in the Notice "[the Respondents were not permitted to participate in the trial by phone." At the time Roose made that statement, she knew that Judge Patrick had specifically authorized N.P. to participate in the trial by phone from Aruba at her own expense. Roose also stated "N.P. and L.P. denied the charges on February 15 and asked for a jury trial. Trial was set for Feb. 21, two business days away." Roose knew the trial setting occurred on December 29, not February 15 as she represented to the Court. The Notice also stated, "Karen Roose, N.P.'s attorney was dismissed from the Court for objecting to the proceedings and thus could not participate in the disposition phase." In fact, Roose walked out of the courtroom after the trial judge had ordered her to stay and advised her of potential contempt proceedings if she left. No impediment prevented Roose from participating in the proceedings apart from her voluntary and contemptuous election to leave at her client's peril.

In response to the Notice of Appeal, a Motion to Strike was filed by opposing counsel disclosing that Roose had been removed as counsel for N.P. by an order of court. The Court of Appeals remanded the matter to Judge Patrick for further proceedings to determine the identity of N.P.'s counsel. Judge Patrick held a hearing on the matter and found that a person other than Roose was counsel for N.P.

The Court of Appeals entered an order on November 30, 2001, stating, in part, "[alny further filings by Ms. Roose shall be stricken and not considered. This Court finds no merit to Ms. Roose's arguments that she has not been removed as counsel for appellant."

Although NP., with the assistance of court-appointed counsel, had entered into a treatment plan following the confession of the neglect issues, questions arose regarding her compliance with the treatment plan. Consequently, a termination hearing was scheduled for December 11, 2001. On December 6, 2001, following phone conversations between NP. and Roose, N.P. retained Roose as her private counsel and Roose immediately filed an Entry of Appearance. The same day the Entry of Appearance was filed, Judge Patrick, in light of Roose's prior conduct, rejected Roose's Entry of Appearance.

At the December 11 termination hearing, N.P. appeared by phone and was represented by Mr. Klingsmith. NP. refused to participate in the termination hearing unless she could be represented by Roose. Judge Patrick informed N.P. that she would be represented by Mr. Klingsmith and the termination hearing would proceed. N.P. persisted in her refusal to participate, the hearing proceeded, and her parental rights were terminated.

IL - CONCLUSIONS OF LAW

Case No. OLIPDJO78

Roose's departure from Judge Patrick's courtroom in mid-trial in defiance of the judge's express order that she not leave the courtroom and in light of the judge's advisement that her departure would be grounds for the issuance of a contempt citation is the type of conduct by an attorney which is specifically prohibited by Colo. RPC 3.A(c)(an attorney shall not knowingly disobey an obligation under the rules of a tribunal). By doing so, Roose required the court to enter otherwise unnecessary orders, issue a contempt citation, recuse himself from participation in the subsequent contempt proceedings and request the appointment of a replacement judge to preside over the contempt proceedings. Such conduct also violated Colo. RPC 8.4(d)(it is professional misconduct for an attorney to engage in conduct prejudicial to the administration of justice). See People v. Jaramillo, 35 P.3d 723, 731 (Colo. PDJ 2001) (holding that a violation of Colo. RPC 8.4(d) requires proof of some nexus between the conduct charged and an adverse effect upon the administration of justice, citing People v. Wright, 35 P.3d 153, 158 (Colo. PDJ 1999)) (finding a violation of Colo. RPC 84(d) for attorney's conduct which resulted in a direct disruption of pending proceedings); People v. Johnson, 35 P.3d 192, 195 (Colo. PDJ 1999) (finding a violation of Colo. RPC 8.4(d) where attorney failed to appear at a hearing on child support arrearages and thereby directly delayed and altered the course of court proceedings concerning the income assignment and prejudiced the administration of justice).

Moreover, Roose's departure from the courtroom in mid trial at her client's peril demonstrates a severe lack of understanding of the attorney's role in adversarial proceedings, the need for adequate preparation, and the remedies available when adverse rulings are encountered. This conduct results in the conclusion that Roose failed to provide competent representation to her client within the meaning of Colo. RPC 1.1(an attorney shall provide competent representation to a client)

Case No. O1PDIO97

The Complaint in Case No. O1PDJO97 alleges that Roose violated Colo. RPC 3.3(a)(l)(an attorney shall not knowingly make a false statement of material fact or law to a tribunal) and Colo. RPC 8.4(c)(it is professional misconduct for an attorney to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) based on Roose's knowingly making false statements of material facts to a tribunal, in this case the Colorado Court of Appeals. At the time Roose filed the Notice of Appeal with the Colorado Court of Appeals she knew that Judge Patrick had removed her from further representation of N.P. and ordered her to refrain from further filings on N.P.'s behalf. Notwithstanding that knowledge, Roose represented to the appellate court that she was N.P.'s attorney and was authorized to file the Notice.

The filing of a Notice of Appeal by a lawyer triggers numerous events which have significant legal effect. Inherent in the filing of a Notice of Appeal by an attorney is the representation that the attorney is authorized by the client to commence such proceedings and the legal consequences that automatically follow. - Consequently, Roose's representation that she was N.P.'s attorney and authorized to commence an appeal is material.

Moreover, Roose knowingly mischaracter-ized factual events occurring in the court below by stating that: (1) trial was set only two days before it commenced; (2) N.P. was not allowed to participate in the proceedings by phone, and (8) Roose was not able to participate in the dependency and neglect trial. Each of these facts was false and known to be false by Roose when she filed the Notice.

Each of the three facts misrepresented by Roose in the body of the Notice of Appeal describe factual events which, if true, may call into question the fairness and propriety of the underlying proceeding. Although our form of adversarial dispute resolution allows an attorney to advance and characterize facts in the fashion most favorable to the client's cause, it does not allow an attorney to advance falsehoods as facts in order to enhance the client's cause. Because the falsehoods advanced by Roose, if true, could have raised questions regarding the fairness and propriety of the underlying trial, they were material.

Consequently, Roose's filing of the Notice of Appeal violated Colo. RPC 3.3(a)(1)(an attorney shall not knowingly make a false statement of material fact or law to a tribunal) and Colo. RPC 8.4(c)(it is professional misconduct for an attorney to engage in conduct involving dishonesty, fraud, deceit or misrepresentation).

III, IMPOSITION OF SANCTION

The ABA Standards for Imposing Laowyer Sanctions (1991 & Supp.1992) (CABA Standards") are the guiding authority for selecting the appropriate sanction to impose for lawyer misconduct.

ABA Standard 6.11 provides:

Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding.

The Commentary to ABA Standard 6.11 further provides that "lawyers who engage in these practices violate the most fundamental duty of an officer of the court."

ABA Standard 6.21 provides:

Disbarment is generally appropriate when a lawyer knowingly violates a court order or rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or potentially serious injury to a party, or causes serious or potentially serious interference with a legal proceeding.

ABA Standard 4.52 provides:

Suspension is generally appropriate when a lawyer engages in an area of practice in which the lawyer knows he or she is not competent, and causes injury or potential injury to a client.

Recent Colorado law is in accord with the ABA Standards, § 6.11 and § 6.21. The presumptive discipline for a knowing misstatement of material fact to a tribunal is disbarment. See People v. Espinoza, 35 P.3d 552, 559 (Colo. PDJ 2001) (attorney disbarred for numerous violations of the rules of professional conduct including making a misstatement of a material fact to a court). In People v. Kolbjornsen, 35 P.3d 181, 184 (Colo. PDJ 1999), the respondent attorney was disbarred from the practice of law for conduct involving the knowing submission of false information to the bankruptcy court. The PDJ and Hearing Board stated "[JJudi-cial officers, members of the profession and the public at large must be able to rely upon the truthfulness of an attorney's statements to the court. Confidence in the truth-seeking process engendered in our system of justice cannot exist absent such reliance." Id. at 184.

Disbarment is within the range of sanctions imposed for misrepresentations to a tribunal in other jurisdictions. In Attorney Grievance Commission of Maryland v. Myers, 333 Md. 440, 635 A.2d 1315 (1994), the respondent attorney was disbarred for falsely stating under oath that he had never received a speeding ticket when in fact he had three speeding tickets on his record. The court stated:

The purpose of disciplinary proceedings is to protect the public rather than to punish the erring attorney. (citations omitted). The public interest is served when the court imposes a sanction which demonstrates to members of the legal profession the type of conduct that will not be tolerated. (citations omitted). Such a sanction represents the court's fulfillment of its responsibility to insist upon the maintenance of the integrity of the bar and to prevent the transgression of an individual lawyer from bringing its image into disrepute. Therefore, the public interest is served when sanctions designed to effect general and specific deterrence are imposed on an attorney who violates the disciplinary rules.

Id. at 1818.

See also Florida Bar v. Budnitz, 690 So.2d 1239, 1241 (Fla.1997)(respondent attorney disbarred for making false statements during a disciplinary proceeding); Florida Bar v. Merwin, 636 So.2d 717, 718 (Fla.1994)(disbarring respondent attorney for making false misrepresentations of material fact to the court in one proceeding); Florida Bar v. Rightmyer, 616 So.2d 953, 955 (Fla.1998)(disbarring attorney where attorney pled nolo contendere to three counts of perjury arising from his deposition and trial testimony in a civil mortgage foreclosure suit and stating that "an officer of the court who knowingly and deliberately seeks to corrupt the legal process can logically expect to be excluded from that process."); In the Matter of Wehringer, 135 A.D.2d 279, 283, 525 N.Y.S.2d 604 (1988)(respondent attorney disbarred for knowingly aiding a client's attempt to extract a favorable divorce settlement using as leverage the abduction of an infant from its mother and rightful custodian).

Knowing disobedience to a court order resulting in serious injury to a client or serious interference with a legal proceeding also justifies the imposition of disbarment. See Matter of Lopez, 980 P2d 983, 984 (Colo.1999)(disbarring attorney subject to conditional admission of misconduct for making misrepresentations of material fact on a liquor license application, misrepresenting material information to the liquor licensing authority and to prospective investors). In People v. Chappell, 927 P.2d 829, 881 (Colo.1996), the attorney representing the wife in a child custody matter assisted the client's escape and did not disclose the client's activities during the court proceedings. When the respondent attorney appeared for a temporary orders hearing, the court questioned her about the whereabouts of her client. The respondent refused to answer based on attorney-client privilege. The court later found that the respondent attorney had perpetrated a fraud on the court when she accepted the husband's offer to continue paying support and maintenance at the previous hearing, despite the change in custody, when respondent was aware that her client was fleeing with the child. Id. at 880. The court found that the respondent attorney had "used her license to violate the core ethical and professional standards of her profession" and therefore disbarment was the only appropriate form of discipline. Id. at 831.

The present case is similar to Chappell insofar as both the attorney respondent in Chappell and Roose both suffer from an extreme lack of understanding of the adversarial process. The inability to understand key concepts of the attorney's role with regard to the client and to the court system is so fundamentally lacking in both cases that the lack of understanding results in profound harm to the client and to the system as a whole.

Roose also demonstrated in the course of the disciplinary proceeding a lack of comprehension with regard to her misconduct. Roose perceived her actions as constituting zealous advocacy for her client. Throughout the disciplinary action, Roose failed to exhibit any remorse for her actions, and indeed, seemed to believe that she was being needlessly singled out for discipline. The PDJ and Hearing Board are reluctant to disbar an attorney who was recently admitted to the bar, has had little prior experience, and has not had the benefit of mentoring. The depth of Roose's lack of understanding, even after these proceedings, however, convinces the PDJ and Hearing Board that a period of suspension would be futile. The extent of Roose's lack of understanding in this matter strongly suggests that the public cannot be protected in the absence of a significant period of time within which Roose may endeavor to understand those legal principles applicable to the proper representation of a client's cause.

The PDJ and Hearing Board considered aggravating factors pursuant to ABA Standards 9.22 and mitigating factors pursuant to ABA Standards 9.82 respectively. In aggravation, Roose has engaged in a pattern of misconduct, see id. at 9.22(e), and has committed multiple offenses, see id. at 9.22(d). Roose's client was in a vulnerable position and in need of competent legal representation, see id. at 9.22(h). Significantly, Roose refused to acknowledge the wrongful nature of her misconduct, see id. at 9.22(g). In mitigation, Roose has no prior disciplinary record, see id. at 9.32(a), Roose is inexperienced in the practice of law, see id. at 9.82(F) and Roose suffered other sanctions as the result of the finding of contempt, see id at 9.32(k).

The degree of injury is a threshold factor in determining the appropriate sanction. Both ABA Standards 6.11 and 6.21 require serious injury, significant adverse effect on a legal proceeding or serious interference with a legal proceeding to justify the imposition of disbarment. Roose's misconduct, at least in part, deprived her client of the opportunity to meaningfully contest the termination of her parental rights at the December 11 hearing. Although there is insufficient evidence in the disciplinary ree-ord to determine if the outcome of that termination hearing might have been different if Roose had not interjected herself in the proceedings, it is evident from the record in this case that discussions between Roose and NP. resulted in N.P. refusing to participate in the termination hearing and thereby loose the opportunity to personally participate in the hearing on December 11. The loss of that opportunity constituted serious injury to the client. Moreover, Roose's misconduct both in the trial court and appellate court seriously interfered with those proceedings and had a significant adverse effect upon them. Consequently, the degree of injury occasioned by Roose's misconduct meets the requirements necessary to impose disbarment.

Neither the lack of prior discipline, inexperience in the practice of law or imposition of other sanctions present in this case are sufficient to reduce the indicated sanction of disbarment to a lesser level.

IV. ORDER

It is hereby Ordered:

1. KAREN J. ROOSE, registration number 30750 is DISBARRED, effective thirty-one days from the date of this decision. - Roose's name shall be stricken from the role of attorneys licensed to practice law in this state.
2. Roose is Ordered to pay the costs of these proceedings; the People shall submit a Statement of Costs within fifteen (15) days of the date of this Order. Roose shall have ten (10) days thereafter to respond.

      . On December 14, 2001, Case No. O1PDJIO97 was consolidated into Case No. O1PDJO78. In the course of the trial on February 22, 2002, Case No. O1PDJ108, the immediate suspension matter, was also consolidated into Case No. 01PDJ078.

      . Eventually Roose pled guilty to the contempt charge and was sentenced to 120 hours of community service.

      . - The PDJ and Hearing Board are aware that the issues raised in the underlying dependency and neglect matter are presently before the Colorado Court of Appeals. The findings and conclusions herein regarding Roose's failure to provide competent representation are based upon analysis of The Colorado Rules of Professional Conduct and are not intended to analyze the issues which may be pending before the Court of Appeals.

      . In a case concerning another lawyer who was in the first years of practice, the Supreme Court found that disbarment was the appropriate sanction. In People v. Murray, 887 P.2d 1016, 1021 (Colo.1994), the Court stated:
      The gulf between the respondent's perception and understanding of the problems he has caused and the true state of affairs is underscored by the respondent's recommendation to the court that he be reinstated to the practice of law from the order of immediate suspension and receive, presumably, a public censure at the most for his misconduct Id. at 1021.


author: BOUDREAU, Justice:

text:
    2001 OK 73
    Richard A. GRAY, Petitioner, v. NATKIN CONTRACTING and the Workers' Compensation Court, Respondents.
    No. 94,263.
    Supreme Court of Oklahoma.
    Sept. 18, 2001.
    Rehearing Dismissed Feb. 14, 2002.

      Dale Warner, Tulsa, OK, for petitioner.
    Kevin D. Berry, Andrew D. Downing, Tulsa, OK, for respondents.
   BOUDREAU, Justice:

T1 This is a review proceeding from an order of the trial judge of the Workers' Compensation Court making an award for permanent partial disability and ordering a credit for overpayment of temporary total disability compensation. At issue is the trial judge's finding that claimant's temporary total disability ceased on April 2, 1999. The dispositive question is whether the temporary disability period ceased when claimant performed some work during the healing period. Under the cireumstances of this case, we answer in the negative. We vacate the opinion of the Court of Civil Appeals and we vacate part 3 of the Workers' Compensation Court order and remand this case to the Workers' Compensation Court with instrue-tions.

I. Background

12 On October 9, 1998, petitioner, Richard A. Gray (claimant), injured his back when he lifted a 200 pound generator onto a trailer. At the time of the injury, claimant worked for Natkin Contracting (employer) as a supervising commercial plumber. Employer admitted that claimant's injury was accidental and work related. Employer commenced payment of temporary total disability (TTD) compensation as of October 14, 1998, without an order of the court.

T3 As a result of the work-related injury, claimant underwent L4-5 discectomy surgery on October 26, 1998. Claimant suffered postoperative complications due to infections which extended the period of convalescence and treatment.

T4 Claimant reached maximum medical improvement and the condition of his injury stabilized as of August 20, 1999, when claimant's medical expert evaluated him for a permanent impairment rating. - Claimant's treating physician released him to return to work, with permanent restrictions, on September 9, 1999. Employer terminated claimant's TTD compensation as of September 21, 1999.

15 At trial on the permanent disability claim, employer sought credit for overpayment of TTD compensation. Claimant acknowledged that his TTD compensation should have been terminated on August 20, 1999, when his medical expert evaluated him for permanent impairment rating, and that he received an overpayment of TTD in the amount of $1,874.40. Employer sought additional eredit for overpayment of TTD compensation for the period from April 2, 1999 to August 20, 1999, asserting that claimant worked at a local race car track during this time period.

T6 At the hearing, claimant testified that, separate and apart from his plumbing work for employer, he operated a business providing security services at Tulsa Speedway. Claimant provided the security services on week-end nights during the racing season. Claimant informed the owners of Tulsa Speedway that he was not physically able to perform the security work for the 1999 racing season because of his injury. However, he continued to provide security personnel at the speedway by assigning his friends to work the shifts and billing the speedway for their services.

T7 Claimant, an avid auto racing fan, also acknowledged that he was often at the track during the 1999 racing season and that he actually performed light work on a few occasions. In describing his work on those occasions, claimant testified that he would occasionally help with odds and ends. While claimant stressed that other people took care of the security responsibilities, he admitted that when he attended the races, he wore a t-shirt that had the word "security" on it in bold letters. He also admitted that he carried a two-way radio and a weapon while at the race track. He described himself as providing a "presence" in the grandstand area. He testified that he received about $200.00 during the entire 1999 racing season for performing these services.

18 At the conclusion of the hearing, the trial judge ordered that claimant's permanent partial disability award be reduced by $8,690.40, in addition to the stipulated overpayment of $1,874.40. Claimant sought appellate-court review of the ruling on the TTD credit. In his appeal, claimant did not dispute that employer and insurance company were due a credit for the TTD compensation paid after August 20, 1999, but challenged the credit of $8,690.40 for the TTD compensation paid from April 2, 1999 to August 20, 1999.

T9 The Court of Civil Appeals held that the credit for TTD compensation for the period from April 2, 1999 to August 20, 1999, was erroneous as a matter of law. The Court of Civil Appeals remanded the case to the trial judge with directions to strike the $8,690.40 credit.

[ 10 Employer petitioned for certiorari arguing that claimant's activities at the Tulsa Speedway demonstrate that he was capable of and did perform some type of remunerative labor. Employer further argued that TTD means a total incapacity following an accidental injury to do any kind of labor, work or employment activity and that the TTD period terminates upon the performance of any type of work. This Court granted employer's petition for certiorari review.

II. Standard of Review

111 Whether an injured worker is entitled to temporary total disability compensation is a question of fact to be determined by the Workers' Compensation Court. Where a finding on temporary total disability is supported by any competent evidence, it will not be disturbed by the appellate courts. Where the finding is not supported by any competent evidence, it is erroneous as a matter of law and will be vacated by the appellate court.

IIL - Temporary disability compensation is designed to replace an injured worker's total or partial loss of wages during the healing period.

112 Usually a work-related injury is followed by a period of healing and a loss of total or partial wages. An injured worker may be entitled to temporary disability benefits during the healing period, subject to the waiting period. The healing period ends and any temporary disability benefits ceases upon complete recovery or when maximum medical improvement is reached.

113 From its inception, the purpose of temporary disability compensation has been, and is, to replace wages lost during the' healing period. Under our statutory schedule of compensation, an injured worker who has no earning capacity after the injury is entitled to temporary total disability benefits to replace the total loss of wages and an injured worker with some earning capacity after the injury is entitled to temporary partial disability benefits to replace the partial loss of wages, for the time period allowed by the statute. Total absence or partial absence of earning capacity depends on the degree of loss or impairment of physical function as a result of the work-related injury during the healing period.

IV. An injured worker is entitled to temporary total disability compensation upon a showing of physical incapacity and resultant total inability to earn wages during the healing period.

114 Temporary total disability compensation to replace the loss of wages during the healing period is a blend of two elements. The first element is incapacity or loss of function in the physical or medical sense that is established by medical evidence. An award of temporary total disability compensation will be vacated in the absence of supporting medical evidence.

$15 The second element is the inability to earn wages that is normally demonstrated by nonmedical evidence touching upon claimant's employment situation. Ordinarily an incapacity for work cannot be classified as total under our workers' compensation law if the earning power of the employee is not wholly destroyed and the capacity to perform - remunerative - employment - re-maing. A claimant who is gainfully employed, or who is able to work, is not entitled to temporary total disability compensation.

V. Evidence that the injured worker performed some occasional or sporadic work during the healing period will not destroy the worker's right to temporary total disability compensation.

116 If maximum medical recovery has not been achieved, the temporary total disability period is not automatically terminated merely because the injured worker performs some occasional or sporadic work. A total incapacity for work is nonetheless present when the injured worker is unable to work for all practical purposes, although the worker obtains occasional or sporadic employment under rare conditions at small remuneration.

T17 In Oklahoma, an injured worker who is capable of doing light work is not totally disabled. However, there is a fundamental distinction between those who are able to do light work in general and those who are so limited in capacity that they are only fitted to perform such a special service that no work within their capabilities is available to them. In the latter case, the injured worker is considered totally disabled even though he or she may obtain occasional or sporadic work of an odd character or light nature.

VI. The trial judge's finding that claimant's temporary total disability ceased on April 2, 1999, is not supported by competent evidence.

118 Claimant's medical report presented the only medical evidence bearing on the issue of temporary total disability at the hearing requesting the credit. The report states that claimant injured his lumbosacral back resulting in a discogenic injury with dise herniation requiring surgical intervention and that claimant has persistent pain and limited motion over the back and burning, tingling, numbness and paresthesias with pain into his lower extremities and left side. That report indicates that the claimant did not reach maximum medical improvement until August 20, 1999. Accordingly as a purely medical issue, it is uncontroverted that claimant was in the healing period between April 2, 1999 and August 20, 1999.

119 The nonmedical evidence touching upon claimant's employment situation during his healing period does not indicate that claimant was not TTD after April 2, 1999. Evidence of the occasional and light tasks claimant performed at the speedway and the meager compensation he earned does not demonstrate that claimant was able to return to any gainful employment during the healing period. While the evidence shows that claimant did not remain totally idle during the healing period, there is no evidence supporting the trial judge's finding that claimant's temporary total disability ceased on April 2, 1999.

VII. Conclusion

T20 The temporary disability benefits set forth in our statutory schedule of compensation are designed to replace an injured worker's total or partial loss of wages during the healing period. An injured worker is entitled to temporary total disability compensation upon a showing of physical incapacity and resultant inability to earn wages during the healing period. Proof of capacity to do some occasional or sporadic work during the healing period does not automatically destroy an injured worker's right to temporary total disability compensation.

121 The trial judge's finding that claimant's temporary total disability ceased on April 2, 1999, is not supported by competent evidence. Accordingly, that finding is erroneous as a matter of law. Part -3-of the trial judge's order on review is vacated and this case is remanded to the trial judge with instructions to vacate the credit granted employer for temporary total disability paid to claimant for the period from April 2, 1999, through August 20, 1999.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS, DIVISION 4, VACATED; WORKERS' COMPENSATION COURT ORDER VACATED IN PART; CASE REMANDED TO THE WORKERS' COMPENSATION COURT WITH INSTRUCTIONS.

1 22 ALL JUSTICES CONCUR.

      . The parties stipulated that claimant received an overpayment for the period from August 20, 1999 through September 21, 1999.

      . Claimant's invoices to Tulsa Speedway from April 2, 1999 to August 20, 1999, were admitted into the record.

      . The trial judge found in part -3-of her order:
      THAT as a result of said injury, claimant was temporarily totally disabled from OCTOBER 14, 1998 to APRIL 2, 1999; claimant received compensation from OCTOBER 14, 1998 to SEPTEMBER 21, 1999; therefore respondent is entitled to credit for overpayment of temporary total disability compensation from APRIL 2, 1999 to SEPTEMBER 21, 1999, a period of 24 weeks and 4 days in the amount of $10,564.80 to be deducted from the latter end of the award herein.

      . Harbour-Longmire-Pace - Co. v. State Industrial Commission, 1931 OK 34, 147 Okla. 207, 296 P. 456.

      . Parks v. Norman Municipal Hospital, 1984 OK 53, 684 P.2d 548.

      . Lanman v. Oklahoma County Sheriff's Office, 1998 OK 37, ¶ 6, 958 P.2d 795, 798.

      . The Workers' Compensation Act, 85 0.$.1991, §§ 1 et seq., provides temporary disability benefits for an injured worker (85 0.$.Supp.2000, § 22 ), subject to the three day waiting period (85 O0.S.Supp.2000, § 13). Although claimant's injury occurred in 1998, this opinion references the most current codification of our workers' compensation statutes, unless an earlier version is controlling. See also, Larson's Workers' Compensation Law, vol.4, ch. 80, §§ 80.01-80.03.

      . Under our statutory scheme, maximum medical improvement "means that no further material improvement would reasonably be expected from medical treatment or the passage of time". 85 O.S$.Supp.2000, § 3(17). When maximum medical improvement has been achieved, permanent disability can be evaluated. 85 O.S.Supp. 2000, § 3(14). When the extent of permanent disability, if any, can be evaluated, the healing period ends and the right to any temporary disability compensation ceases. Rule 15, Workers Compensation Court Rules, 85 O0.$.Supp.2000, ch.4, app. When the healing period ends and permanent disability can be determined is a question of fact which must be established by expert medical evidence. Bama Pie, Inc. v. Roberts, 1977 OK. 100, 565 P.2d 31.

      . Rialto Lead & Zinc Co. v. State Industrial Commission, 1925 OK 788, 112 Okla. 101, 240 P. 96, 98, 44 A.L.R. 494; Galey & Molloy v. Belt, 1940 OK 271, 187 Okla. 318, 102 P.2d 868; Bama Pie, Inc. v. Roberts, 565 P.2d at 34; and Farm Fresh, Inc. v. Bucek, 1995 OK 44, 895 P.2d 719, 722.

      . Farm Fresh, Inc. v. Bucek, 895 P.2d at 722, footnote 8. The schedule of compensation and limitations thereon are set forth in 85 0.$.Supp. 2000, § 22, which reads in pertinent part:
      The following schedule of compensation is hereby established:

      2. - Temporary Total Disability ...
      (b) With respect to injuries occurring on or after November 4, 1994, in cases of temporary total disability, seventy percent (70%) of the employee's average weekly wages shall be paid to the employee during the continuance thereof, ...
      (c) With respect to injuries occurring on or after November 1, 1997, total payments of compensation for temporary total disability may not exceed a maximum of one hundred fifty-six (156) weeks in the aggregate....
      4. Temporary Partial Disability ...
      (b) With respect to injuries occurring on or after November 4, 1994, in case of temporary partial disability, except the particular cases mentioned in paragraph 3 of this section, an injured employee shall receive seventy percent (70%) of the difference between the employee's average weekly wages and the employee's wage-earning capacity thereafter in the same employment or otherwise, ...
      5. Notwithstanding any other section of the Workers' Compensation Act, temporary disability shall be payable without an award by the Court. The first payment of temporary disability compensation shall become due on the tenth day after the employer has received notice of injury

      6. Limitation the compensation received, as provided for temporary partial disability, shall not, when added to the wages received by such employee after such injury, amount to a greater sum than eighty percent (80%) of the average weekly wages of the employee received prior to said injury....

      . Larson's Workers' Compensation Law, vol.4, ch.80, § 80.02. See also, Roberts v. Matrix Services, Inc., 1993 OK 148, 863 P.2d 1242, 1245 (Permanent total disability award must be based upon findings of physical disability and inability to earn wages.).

      . Under our compensation statutes, physical disability to continue to work after the injury is determined by medical physicians, subject to challenge by any party. 85 0.$.$upp.2000, § 14.

      . Bama Pie, Inc. v. Roberts, 565 P.2d at 34.

      . Pine v. Nowlin, 1931 OK 717, 153 Okla. 111, 5 P.2d 118. In permanent total disability cases, we have said that a disability is not total where the earning power is not wholly destroyed and the capacity to perform remunerative employment remains. - Special Indemnity Fund v. Stockton, 1982 OK 119, 653 P.2d 194; Special Indemnity Fund v. Gentile, 1960 OK 51, 350 P.2d 306; and, Oklahoma Gas & Electric v. Hardy, 1937 OK. 178, 179 Okla. 624, 67 P.2d 445. Because temporary disability compensation and permanent total disability compensation are disability-based, wage-replacement benefits, Farm Fresh, Inc. v. Bucek, 895 P.2d at 722, permanent total disability rules touching on the "inability to earn wages" are instructive herein.

      . Magnolia Petroleum Co. v. Johns, 1932 OK 808, 160 Okla. 221, 16 P.2d 858; and Wood Oil Co. v. Wright, 1941 OK 213, 189 Okla. 260, 116 P.2d 707 (TTD benefits not allowed where injured worker is earning livelihood and receiving wages in a substantial amount.).

      . Oklahoma Natural Gas v. Davis, 1938 OK 37, 181 Okla. 530, 75 P.2d 435, 438-439 (Affirmed the trial court's finding of TTD notwithstanding the claimant's testimony that he performed some work for another employer for one month during the period he received TTD compensation.). See also, Pyles v. Triple F. Feeds of Tex., Inc., 270 Ark. 729, 606 S.W.2d 146 (App.1980) (Concluded that some sporadic employment and attempts to get work will not terminate the TTD period.); and, Pacific Power & Light v. Parsons, 692 P.2d 226 (Wyo.1984) (Concluded that the injured employee was entitled to receive TTD benefits even though the employee was able to do some occasional work and earn some money.).

      . Total incapacity is not synonymous with total dependence, rather it means a lack of ability to follow continuously some substantially gainful occupation. McClure v. Special Indemnity Fund, 1970 OK 194, 475 P.2d 811; Liebmann's Independent Ice Co. v. Ganther, 1943 OK 353, 193 Okla. 218, 142 P.2d 605; and Dierks Lumber & Coal Co. v. Lindley, 1938 OK 124, 182 Okla. 185, 77 P.2d 44.

      . Bodine v. L.A. King Corporation, 1994 OK 22, 869 P.2d 320.

      . Sweetwater Gin Co. v. Wall, 1931 OK 726, 153 Okla. 96, 5 P.2d 126, 130; Dierks Lumber & Coal Co. v. Lindley, 77 P.2d at 46.

      . Employer's medical evidence consisted of a narrative medical report wherein the evaluating physician stated he was unable to comment on the period of TTD but that the claimant was not temporarily totally disabled on the date of the examination which was October 4, 1999.

      . Claimant's medical evidence consisted of his evaluating physician's narrative medical report, nursing notes, and a letter and release form from his treating physician. The medical report is silent as to TTD. However, the nursing notes (rehabilitation and activity reports dated April 29,1999 through July 22, 1999) indicate that claimant "remains TTD." The release form states that claimant can return to work on September 9, 1999, with permanent restrictions of no lifting, pushing, or pulling over seventy-five pounds and no bending, stooping, twisting, squatting, kneeling or crawling. Employer treated the release as a release to light duty. Employer did not have available light work for claimant until November 15, 1999.

      . While evidence of occasional or sporadic employment is insufficient to establish that an injured worker is capable of gainful employment during the healing period, evidence of continued employment in a second, part-time job may be sufficient to defeat TTD benefits, as determined in our contemporaneous opinion in American Airlines v. Hervey, 2001 OK 74, 33 P.3d 47.