text:
    FSDW, LLC, a Colorado limited liability company, Plaintiff-Appellee, v. FIRST NATIONAL BANK, Conservator for Daniel Dennis Dumont, a protected person; G.W. Hurst, Trustee of the G.W. Hurst Trust; Valerie A. Stewart; Gerald W. Hurst, Jr.; Charlotte M. Prough; Stephanie A. Smith; Delphin J. Dumont; and Joyce E. Thompson, Defendants-Appellants.
    No. 03CA0348.
    Colorado Court of Appeals, Div. V.
    June 17, 2004.

      Howard and Francis, L.L.P., Steven G. Francis, Fort Collins, Colorado, for Plaintiff-Appellee.
    Frey Korb Haggerty & Michaels, P.C., Mark L. Korb, Charles C. Tucker, Fort Collins, Colorado, for Defendani>-Appellant First National Bank as conservator for Daniel Dennis Dumont, a protected person.
    Harold F. Hurst, Kiowa, Colorado, for Defendants-Appellants Conservator for Daniel Dennis Dumont, a protected person; G.W. Hurst, Trustee of the G.W. Hurst Trust; Valerie A. Stewart; Gerald W. Hurst, Jr.; Charlotte M. Prough; Stephanie A. Smith; Delphin J. Dumont; and Joyce E. Thompson.
   Opinion by

Judge RUSSEL.

In this action for the partition of real property, defendants appeal the trial court’s judgment entered on an order granting plaintiffs motion for voluntary dismissal. We reverse and remand for further proceedings.

In February 2002, plaintiff, FSDW, LLC, filed a partition action, alleging that it was the owner of an undivided 2/7 interest in real property in Larimer County. It sought the appointment of a disinterested commissioner who would sell the property at a public sale pursuant to § 38-28-107, C.R.S.2003. Plaintiff named several parties as defendants, most of whom (the trust defendants) were represented by the same attorney. First National Bank, as conservator for Daniel Du-mont, also named as a defendant, was separately represented.

The trust defendants answered, alleging as a “matter of avoidance” that plaintiff had wrongfully clouded their title and should pay a statutory penalty or damages. The bank also answered and filed a cross-claim against one of the trust defendants, seeking reformation of the deed that had conveyed the property to plaintiffs grantor.

In December 2002, plaintiff moved to dismiss the action. The trust defendants consented to dismissal on the condition that plaintiff sign a quitclaim deed and pay their attorney fees and costs. The bank similarly responded that the case “cannot be dismissed” unless plaintiff signed a quitclaim deed and paid its attorney fees and costs.

The trial court dismissed the case, ordering each party to bear its own fees and costs. The court’s order was silent as to whether the dismissal was with or without prejudice.

Defendants then appealed, asserting that the trial court erred in dismissing the case without imposing terms and conditions. The trust defendants also asserted that the court should not have dismissed their “matter of avoidance,” and the bank similarly asserted that the court should not have dismissed its cross-claim.

Plaintiff moved to dismiss the appeal, arguing that an order of dismissal is not ap-pealable when it is without prejudice. A motions division of this court agreed, citing C.R.C.P. 41(a)(2) for the proposition that voluntary dismissal is presumed to be without prejudice. Defendants then filed a motion for reconsideration. The motions division reversed its position, ordering that the appeal proceed. The division cited the rule regarding involuntary dismissal, C.R.C.P. 41(b)(1).

I. Appealability

Plaintiff again argues that this court lacks jurisdiction. We disagree.

We first explain why we are considering plaintiffs argument. As noted, the motions division has already ruled that the order is appealable. We generally will decline to revisit rulings of the motions division, especially when they reflect some discretionary consideration. But when presented with serious questions regarding our own jurisdiction, we may reconsider the ruling. In this regard, our approach parallels that of other appellate courts. See Rezzonico v. H & R Block, Inc., 182 F.3d 144, 149 (2d Cir.1999)(“reexamination of a question regarding our jurisdiction is especially important whenever there is reason to believe that it may be lacking”); Stifel, Nicolaus & Co. v. Woolsey & Co., 81 F.3d 1540, 1543-44 (10th Cir.1996)(law of the case does not bar reconsideration of motions panel’s decision; such decisions are made without the benefit of full briefing, which may result in a less than thorough exploration of the issues).

We next consider whether the trial court’s order was with prejudice, as the motions division found, or without prejudice, as plaintiff contends. We agree with plaintiff. It is undisputed that the trial court ordered dismissal pursuant to C.R.C.P. 41(a)(2). This rule states, in pertinent part: “Unless otherwise specified in the order, a dismissal under this subsection (2) is without prejudice.” Because the trial court’s order did not otherwise specify, the dismissal here was without prejudice.

Consequently, the dismissal was not “final” in the sense that it will preclude further litigation. Plaintiffs claims, and defendants’ counterclaims and cross-claims, may be brought again. See Am. Water Dev., Inc. v. City of Alamosa, 874 P.2d 352, 380 (Colo. 1994) (AWDD (C.R.C.P.41(a)(2) is intended to allow plaintiff to dismiss a claim that may be asserted later); Sharp Bros. Contracting Co. v. Westvaco Corp., 878 P.2d 38, 43 (Colo. App.1994) (dismissal on procedural grounds is not a final judgment and does not give rise to res judicata).

Plaintiff argues that, because the trial court’s order does not preclude further litigation, it is not appealable. On its face, this argument would appear to have merit. By statute, this court has jurisdiction over “appeals from final judgments of the district courts.” Section 13-4-102(1), C.R.S.2003 (emphasis added). And Colorado courts generally hold that, to be appealable, a district court’s order must preclude further action. See, e.g., Levine v. Empire Sav. & Loan Ass’n, 192 Colo. 188, 190, 557 P.2d 386, 387 (1976) (“an order of dismissal is to be treated as a judgment for the purposes of taking an appeal when it finally disposes the particular action and prevents further proceedings as effectually as would any formal judgment”) (quoting Herrscher v. Herrscher, 41 Cal.2d 300, 259 P.2d 901 (1953)); Norby v. Charnes, 764 P.2d 407, 408 (Colo.App.1988) (dismissal of a complaint without prejudice is generally not a final and appealable order).

Plaintiffs argument is further supported by a passage from Brody v. Bock, 897 P.2d 769, 777 (Colo.1995), which suggests that voluntary dismissals under C.R.C.P. 41(a)(2) are not appealable:

A final judgment is a jurisdictional prerequisite to review on appeal. People v. Proffitt, 865 P.2d 929, 931 (Colo.App.1993). Generally, a trial court’s dismissal of a claim without prejudice does not constitute a final judgment for purposes of appeal because the factual and legal issues underlying the dispute have not been resolved. C.R.C.P. 41(a)(2); District 50 Metro. Recreation Dist. v. Burnside, 157 Colo. 183, 186-87, 401 P.2d 833, 835 (1965); Norby v. Charnes, [supra].

Nevertheless, we conclude that the trial court’s order was appealable.

We first note that Brody v. Bock, supra, does not settle the question. Although Bro-dy suggests that dismissal without prejudice is nonappealable, it does so only in dictum. On this issue, Brody’s holding is more limited: the order was appealable because the court concluded that it was a dismissal with prejudice. See Brody v. Bock, supra, 897 P.2d at 777.

Next, we consider two eases that were decided after Brody. These decisions address whether plaintiffs may appeal from orders granting voluntary dismissal without prejudice under C.R.C.P. 41(a)(2). In Jensen v. Matthews-Price, 845 P.2d 542, 543 (Colo.App.1992), a division of this court observed that a plaintiff ordinarily may not appeal from an order granting voluntary dismissal. The reason, said the division, is that “such dismissal cannot be characterized as an involuntary adverse judgment against the plaintiff.” But the division held that the general prohibition did not apply because the plaintiffs had reserved their right to appeal an award of sanctions imposed under C.R.C.P. 11. Jensen, supra, 845 P.2d at 543.

The Colorado Supreme Court elaborated on this rationale in AWDI, supra. Quoting Jensen, the court noted the general rule that a plaintiff may not appeal from voluntary dismissal under C.R.C.P. 41(a)(2) because the order is not adverse. AWDI, supra, 874 P.2d at 378. But the court held that, when dismissal is conditioned on terms to which the plaintiff does not agree, the plaintiff may appeal, challenging the unwanted terms and conditions as “legal prejudice.” AWDI, supra, 874 P.2d at 378.

It is significant that, under Jensen and AWDI, the plaintiffs right of appeal depends not on whether dismissal is with prejudice, but on whether the trial court has imposed sanctions or unwanted terms and conditions. The requisite “finality” apparently arises from the fact that sanctions, terms, and conditions can affect the plaintiffs substantial rights and thus constitute an independent form of legal prejudice.

By logical implication, Jensen and AWDI suggest that a defendant also may appeal when a case is dismissed under C.R.C.P. 41(a)(2). If the presence of unwanted terms or conditions can constitute legal prejudice to the plaintiff, the absence of desired terms or conditions can constitute legal prejudice to the defendant. Accordingly, when a trial court grants the plaintiffs motion for voluntary dismissal without prejudice under C.R.C.P. 41(a)(2), and does so (1) over the defendant’s objection, (2) without imposing terms and conditions that the defendant requests, or (3) without making allowances for the defendant’s counterclaims, the court’s order is sufficiently final to support the defendant’s appeal.

We have examined cases from other jurisdictions on this issue, paying particular attention to federal cases. See AWDI, supra, 874 P.2d at 378 (Fed.R.Civ.P. 41(a)(2) is virtually identical to Colorado’s rule, so federal precedent will be helpful); Powers v. Prof'l Rodeo Cowboys Ass’n, 832 P.2d 1099, 1102 (Colo.App.1992) (same). And we have found general agreement: When a trial court grants a plaintiffs request for voluntary dismissal without prejudice, over the defendant’s objection or without imposing terms and conditions, the order is final, and the defendant may appeal. See Kirkland v. Nat’l Mortgage Network, Inc., 884 F.2d 1367, 1369-70 (11th Cir.1989) (district court’s order granting voluntary dismissal without prejudice under Fed.R.Civ.P. 41(a)(2) is final and appealable by defendant); United States v. Mt. Vernon Mem’l Estates, Inc., 734 F.2d 1230, 1234 (7th Cir.1984) (unconditional voluntary dismissal under Rule 41(a)(2), without prejudice because the order did not specify otherwise, qualified as a final judgment for purposes of appeal); LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 603 (5th Cir.1976) (where the trial court allows the plaintiff to dismiss his action without prejudice, the judgment qualifies as a final judgment for purposes of appeal); 9 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2376 (2d ed.1995) (a defendant can appeal if the motion for voluntary dismissal is granted, since this is an adverse final judgment); see also Bd. of Comm’rs v. Nevitt, 448 N.E.2d 333, 338 (Ind.Ct.App.1983) (jurisdictions with identical versions of Rule 41(a)(2) uniformly hold that an order granting voluntary dismissal is final and appealable); Farrell v. Dome Labs., 650 P.2d 380, 383 (Alaska 1982) (dismissal without prejudice under Rule 41(a)(2) is a final judgment for purposes of appeal).

We also note that a contrary rule would yield anomalous results. It would be an odd rule that (1) allows the plaintiff to challenge aspects of an order that it requested at trial and (2) simultaneously bars the defendant from challenging aspects of the same order, when the defendant opposed the order at trial. This is especially true if the rule would preclude the defendant from appealing to enforce an express provision in the rules of civil procedure. See C.R.C.P. 41(a)(2) (“If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court.”).

We therefore conclude that we have jurisdiction to review this case as an appeal from a final judgment.

II. Review of Order

Defendants contend that the trial court erred in dismissing the case without imposing terms and conditions. We agree that the case must be remanded.

A. Terms and Conditions

Before granting a plaintiffs motion for voluntary dismissal without prejudice, the trial court must “determine that any harm to the defendant may be avoided by imposing terms and conditions of dismissal.” AWDI, supra, 874 P.2d at 380; see also Ikospentakis v. Thalassic S.S. Agency, 915 F.2d 176, 177 (5th Cir.1990) (primary purpose of entrusting dismissal to the supervision of the trial court is to protect defendant from unfair treatment); Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir.1987) (district court must focus primarily on protecting the interests of the defendant); McCall-Bey v. Franzen, 777 F.2d 1178, 1184 (7th Cir.1985) (terms and conditions are the “quid pro quo” of allowing plaintiff to dismiss a potentially meritorious claim without being prevented by the doctrine of res judicata from bringing the same suit again).

Some conditions — such as the payment of costs — are imposed routinely. See Davis v. USX, supra, 819 F.2d at 1276 (requiring plaintiff to pay a portion of costs is the kind of condition that should be imposed as a matter of course in most cases). Other conditions vary, depending on the facts of the case. See LeCompte v. Mr. Chip, supra, 528 F.2d at 603 (dismissal may be conditioned on terms designed to reduce inconvenience to the defendant, such as production of certain documents).

The trial court may order the plaintiff to pay the defendant’s attorney fees as a condition of voluntary dismissal under C.R.C.P. 41(a)(2), but only when necessary to protect the defendant from prejudice. The court may not award attorney fees to sanction the plaintiff for its conduct in litigation. See AWDI, supra, 874 P.2d at 380 (unlike awards under C.R.C.P. 11 and § 13-17-102, C.R.S.2003, the court’s focus under C.R.C.P. 41(a)(2) “is necessarily on a remedy for the defendant, not punishment of the plaintiff’). Attorney fees may be awarded under C.R.C.P. 41(a)(2) only if the plaintiffs case is dismissed without prejudice. Groundwater Appropriators of S. Platte River Basin, Inc. v. City of Boulder, 73 P.3d 22, 25 (Colo.2003). And the court may order the plaintiff to pay only for legal work that would not be useful to the defendant in future litigation. AWDI, supra, 874 P.2d at 382.

The trial court’s decision to impose terms and conditions, or to refrain from doing so, is reviewed only for an abuse of discretion. AWDI, supra, 874 P.2d at 386. If the trial court determines that attorney fees should be awarded under C.R.C.P. 41(a)(2), the award must be reasonable, and the court’s determination of reasonableness is a question of fact that will not be disturbed on review unless it is patently erroneous and unsupported by the evidence.

Here, defendants asked the court to impose various terms and conditions — including costs and attorney fees — before granting plaintiffs motion for voluntary dismissal. Although the court implicitly denied defendants’ requests, it did so without making any findings. As a result, we cannot determine whether the trial court properly exercised its discretion. We therefore remand for findings that reflect consideration of the defendants’ requests under the standards set forth above. See Bilawsky v. Faseehudin, 916 P.2d 586, 591 (Colo.App.1995) (order vacated and remanded because appellate court could not determine the trial court’s basis for denying some of the requested fees); see also Iraola & CIA, S.A. v. Kimberly-Clark Corp., 232 F.3d 854, 861-62 (11th Cir.2000) (case remanded because the court did not address defendants’ request for conditions of voluntary dismissal and denied the request by implication). On remand, the court may conduct whatever proceedings it deems necessary to aid in determining the conditions that may be appropriate. See McCants v. Ford Motor Co., 781 F.2d 855, 861 (11th Cir.1986).

B. Cross-Claim

As noted above, C.R.C.P. 41(a)(2) expressly protects counterclaims: the case “shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication.” But the rule does not mention cross-claims. It is therefore unclear whether a eross-claim can prevent a court from granting a plaintiffs motion for voluntary dismissal.

But we do not need to reach this question. We conclude that, even if a cross-claim cannot prevent a court from granting a plaintiffs motion, it should not be dismissed along with the plaintiffs claims if it can remain pending for independent adjudication. See Adams v. NVR Homes, Inc., 135 F.Supp.2d 675, 708 (D.Md.2001) (dismissal under Rule 41(a)(2) does not require dismissal of valid cross-claim previously interposed).

Here, it appears that the bank’s cross-claim can remain pending for independent adjudication. Accordingly, the trial court should not have dismissed it along with plaintiffs claims.

On remand, the trial court should proceed with litigation on the bank’s cross-claim and should make findings on the terms and conditions requested by all defendants. In its discretion, the court may decide to treat as a counterclaim the “matter of avoidance” that the trust defendants asserted under § 38-35-109(3). See C.R.C.P. 8(c) (when a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the pleading shall be treated as a proper designation if justice requires).

The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

Judge VOGT and Judge DAILEY concur.


source: Caselaw Access Project

author: Judge ROY.

license: Public Domain

text:
    NORTON FRICKEY, P.C., Plaintiff-Appellee, v. JAMES B. TURNER, P.C., a professional corporation, Defendant-Appellant.
    No. 03CA0236.
    Colorado Court of Appeals, Div. IV.
    June 17, 2004.
    Weeks & Luehetta, LLP, Jeffrey L. Weeks, Colorado Springs, Colorado, for Plaintiff-Appellee.
    James B. Turner, P.C., James B. Turner, Colorado Springs, Colorado, for Defendant-Appellant.
   Opinion by

Judge ROY.

In this contract dispute between James B. Turner, P.C. (attorney), and Norton Frickey, P.C. (the firm), attorney appeals from a judgment entered upon a jury verdict. His sole contention on appeal is that the trial court erred when it ruled on a pretrial motion that the contract to apportion attorney fees upon attorney’s departure from the firm was enforceable in accordance with its terms and was not contrary to public policy. We disagree and therefore affirm.

The following facts are undisputed. The firm is engaged in the practice of law primarily as plaintiffs counsel in contingent fee personal injury cases. In March 1994, attorney, who had been associated with the firm for several years, chose to affiliate with another firm (new firm). The firm notified the clients served by attorney and gave them an option of following attorney or remaining with the firm. Approximately sixty clients chose to follow attorney. On the last day of attorney’s affiliation with the firm, the parties entered into a final settlement agreement and mutual release (agreement), stating in relevant part:

With respect to clients of [the firm] for whom [attorney] provided legal services during his affiliation with [the firm], and who subsequently leave [the firm] to receive legal services from [attorney], [attorney] agrees to pay [the firm]: (1) All costs advanced by [the firm] on behalf of said clients; and (2) forty percent (40%) of the amount of money received by [attorney] from or on behalf of said clients, whether through settlement, payment of a judgment or otherwise-
This agreement has been reached after thorough bargaining and negotiation and represents a mutually agreeable compromise and accord and satisfaction of any and all claims of the parties against each other.

Attorney paid the agreed upon fees and costs until late 1998, at which time four cases remained unresolved. Upon resolution of those cases, attorney refused to pay the firm the agreed upon portion of attorney fees generated.

The firm filed this action alleging breach of contract against both attorney and his new firm. The action against the new firm was the subject of a separate appeal. Norton Frickey, P.C. v. Gaddis, Kin & Herd, P.C., (Colo.App. No. 03CA0187, Apr. 8, 2004), 2004 WL 743922(not published pursuant to C.A.R. 35(f))(new firm not separately liable to firm for attorney fees when it signed the agreement acknowledging and agreeing to accommodate the fee and cost obligations contained in the agreement).

The firm and attorney filed cross-motions for summary judgment on the legality of the agreement. In attorney’s motion, he argued that the agreement was unenforceable because it violated Colo. RPC 1.5, thus leaving the firm only with a claim in quantum meruit. The firm took the contrary position. The trial court denied both motions, but concluded that the contract was not void and was enforceable in accordance with its terms.

The matter then proceeded to trial on the issue of whether the agreement had been, as attorney asserted, orally modified. A jury found that it had not and awarded the firm approximately $140,000 plus interest and costs.

I.

Attorney contends that the agreement is void and unenforceable because it violates Colo. RPC 1.5(d). We disagree.

Courts will not enforce contracts or contract terms that are void as contrary to public policy. A contract provision is void if the interest in enforcing the provision is clearly outweighed by a contrary public policy. Fed. Deposit Ins. Corp. v. Am. Cas. Co., 843 P.2d 1285 (Colo.1992).

The Colorado Rules of Professional Conduct were adopted by the supreme court in 1992, effective January 1, 1993, and are derived from the American Bar Association Model Rules of Professional Conduct. See Model Rules of Profl Conduct Annotated (5th ed.2003). Colo. RPC 1.5, entitled “Fees,” states in relevant part:

(d) Other than in connection with the sale of a law practice pursuant to Rule 1.17, a division of a fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed and responsibility assumed by each lawyer;
(2) the client consents to the employment of an additional lawyer after a full disclosure of the division of fees to be made;
(3) the total fee is reasonable; and
(4) the division is set forth in writing signed by the lawyers and by the client with informed consent.

The comment to the rule states, in pertinent part:

A division of fee is a single billing to a client covering the fee of two or more lawyers who are not in the same firm. A division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well, and most often is used when the fee is contingent and the division is between a referring lawyer and a trial specialist. Paragraph (d) permits the lawyers to divide a fee on the basis of the proportion of services they render and responsibility assumed by each. The client must consent to the fee division in writing. The client must be advised of and agree to the share of the fee that each lawyer is to receive.

The policy behind this rule is that clients should be able to choose which attorney finally represents them and the type of legal fees to be charged. Baron v. Mullinax, Wells, Mauzy & Baab, Inc., 623 S.W.2d 457, 461 (Tex.App.1981); see Tomar, Seliger, Simonoff, Adourian & O’Brien, P.C. v. Snyder, 601 A.2d 1056, 1058 (Del.Super.Ct.1990)(rule “formulated to prohibit brokering, to protect a client from clandestine payment and employment, and to prevent aggrandizement of fees” (quoting Vogelhut v. Kandel, 308 Md. 183, 517 A.2d 1092, 1096 (1986))); Jay Tuley, Comment, Fee Sharing Agreements & Their Enforceability Without Client Consent, 22 J. Legal Prof. 375, 382-83 (1998)(rule protects clients from excessive attorneys fees and possible representational problems).

Colo. RPC 1.5(d) most commonly applies in disputes concerning the apportionment of a contingent fee between attorneys who separately represented the same client at different stages of a matter. Courts addressing those fee disputes require attorneys to abide by that state’s equivalent to .Colo. RPC 1.5(d), and when they do not, courts have held that the fee agreement is void as contrary to public policy and unenforceable. See, e.g., Dragelevich v. Kohn, Milstein, Cohen & Hausfeld, 755 F.Supp. 189 (N.D.Ohio 1990); In re Estate of Katchatag, 907 P.2d 458 (Alaska 1995); Holstein v. Grossman, 246 Ill.App.3d 719, 186 Ill.Dec. 592, 616 N.E.2d 1224 (1993); Londoff v. Vuylsteke, 996 S.W.2d 553 (Mo.Ct.App.1999).

However, courts addressing an agreement to apportion fees upon the departure of an attorney from a law firm have concluded that such agreements are not subject to that state’s equivalent to Colo. RPC 1.5(d), and therefore such agreements are not void and unenforceable. See, e.g., Tomar, Seliger, Simonoff, Adourian & O’Brien, P.C. v. Snyder, supra; Miller v. Jacobs & Goodman, P.A., 699 So.2d 729 (Fla.Dist.Ct.App.1997); Romanele v. Connelly, 324 Ill.App.3d 393, 257 Ill. Dec. 436, 753 N.E.2d 1062 (2001); McCroskey, Feldman, Cochrane & Brock, P.C. v. Waters, 197 Mich.App. 282, 494 N.W.2d 826 (1992); Hendler & Murray v. Lambert, 147 A.D.2d 444, 537 N.Y.S.2d 560 (N.Y.App.Div. 1989); Baron v. Mullinax, Wells, Mauzy & Baab, Inc., supra; Restatement (Third) of the Law Governing Lawyers § 47 cmt. g (2000).

We initially note that several of the courts concluding that their equivalent to Colo. RPC 1.5 does not apply in these circumstances have a version that includes an additional provision: “Notwithstanding Rule 1.5(f) [Colo. RPC 1.5(d) ], a payment may be made to a lawyer formerly in the firm, pursuant to a separation or retirement agreement.” Ill. RPC 1.5(j); see Romanek v. Connelly, supra; Hendler & Murray v. Lambert, supra; Baron v. Mullinax, Wells, Mauzy & Baab, Inc., supra. This provision is a carryover from DR 2-107(B), which contained an almost identical provision. One noted reference states:

Model Rule 1.5 does not contain similar language (although a number of states added it when they adopted the Rules), but there is no indication in the rule or its accompanying comment that a fundamental departure from DR 2-107(B) was intended by the deletion.

Fees: Division Among Lawyers, ABA/BNA Lawyers’ Manual on Profl Conduct No. 232, at 41:710 (Oct. 24, 2001).

However, other jurisdictions with versions similar to Colorado’s RPC 1.5 have concluded that the rule does not apply to the division of fees between a firm and a departing attorney and have enforced apportionment provisions in separation agreements. See Tomar, Seliger, Simonoff, Adourian & O’Brien, P.C. v. Snyder, supra; Miller v. Jacobs & Goodman, P.A., supra; McCroskey, Feldman, Cochrane & Brock, P.C. v. Waters, supra.

Most of these latter courts reasoned that the apportionment provision in a separation agreement was enforceable and not against public policy because it had no effect on clients. One court rejected an argument that a post-termination fee allocation provision placed an undue economic burden on a client’s freedom to choose legal representation. Miller v. Jacobs & Goodman, P.A., supra, 699 So.2d at 731-32. Another court explained that a fee-allocation provision between a departing attorney and his or her firm was “simply a mechanism for dividing an already existing fee,” and therefore did not implicate the policies behind RPC 1.5. McCroskey, Feldman, Cochrane & Brock, P.C. v. Waters, supra, 494 N.W.2d at 828. Yet another court stated that because the agreement was between a firm and a departing associate during “the overall process of his separation” from the firm, clients were in no way affected by the agreement. Baron v. Mullinax, Wells, Mauzy & Baab, Inc., supra, 623 S.W.2d at 462; see also Tomar, Seliger, Simonoff, Adourian & O’Brien, P.C. v. Snyder, supra.

In McCroskey, Feldman, Cochrane & Brock, P.C. v. Waters, supra, 494 N.W.2d at 828, the court concluded that such agreements actually benefit clients, as well as attorneys and courts, because they seek to “obviate time-consuming squabbles that formerly arose when [the firm’s] entitlement to its fair share of any fee generated by a departing client’s file was determined on a quantum mer[u]it basis.” It stated that “such arrangements, as long as they are reasonable, should be encouraged.”

We are persuaded by the reasoning by which courts have upheld attorney separation agreements under rules similar to the Colorado rule.

Most importantly, in our view, the clients here benefited from the agreement. When attorney gave notice to the firm that he was leaving, the firm sent letters to attorney’s clients allowing them to choose between representation by the firm or attorney. This permitted the clients to choose their attorney freely. After attorney departed the firm, the clients entered into a similar contingent fee agreement with attorney and the new firm with the same contingent fee structure. When the claims were resolved, the clients were paid the net proceeds of the settlement, and attorney then disbursed the attorney fees and costs to the firm, the new firm, and himself in accordance with the governing agreements. The clients were not charged additional fees as a result of the agreement, nor were they in any way deceived or misled. Therefore, the clients’ freedom to choose legal representation was in no way compromised, see Miller v. Jacobs & Goodman, P.A., supra, and the public policy of protecting clients was in no way implicated.

Further, in our view, the agreement benefited the clients by resolving the distribution of the future fees between attorney and the firm on a global basis, thereby eliminating subsequent case-by-case negotiations, confrontations, and the possibility of litigation, which might delay the distribution of, or encumber, the clients’ share of the proceeds, or a portion thereof. Attorney and the firm were simply dividing an already existing fee. See McCroskey, Feldman, Cochrane & Brock, P.C. v. Waters, supra. We agree with the court in McCroskey that such arrangements should be encouraged so long as they are reasonable.

In addition, Colo. RPC 1.5 has no application to the division of fees within a firm, and therefore, there is no requirement within the context of a law firm that (1) the fee division be reasonable or in proportion to the services performed or the responsibility assumed; (2) the clients be informed; or (3) the clients consent. See Tomar, Seliger, Simonoff, Adourian & O’Brien, P.C. v. Snyder, supra, 601 A.2d at 1059; Baron v. Mullinax, Wells, Mauzy & Baab, Inc., supra, 623 S.W.2d at 461-62; Restatement (Third) of the Law Governing Lawyers §§ 9, 47 cmt. g (2000). Here, the agreement between the firm and attorney was entered into as part of the process of attorney’s separation from the firm and was accomplished while attorney was employed by the firm.

We note that the American Bar Association added a comment to Model Rules of Profl Conduct R. 1.5 in 2002. That comment states that the counterpart of Colo. RPC 1.5(d) “does not prohibit or regulate division of fees to be received in the future for work done when lawyers were previously associated in a law firm.” Amendments to model codes made by the publisher subsequent to adoption by the legislature are persuasive authority in construing an otherwise silent statute based on the model code. See Pueblo Bancorporation v. Lindoe, Inc., 63 P.3d 353, 367-68 (Colo.2003). The same should be equally true of court rules.

We also note that an express exception to Colo. RPC 1.5 is Colo. RPC 1.17, which permits the sale of all, or a portion, of a practice of law with some limitations. In adopting Colo. RPC 1.17, the supreme court added a provision not included in the model rules, which states:

(i) Notwithstanding Rule 1.5(d), the purchase price for the practice may be based upon a portion of the fees collected from the clients of the law practice, even if the division of such fees is not in proportion to the services performed or the responsibilities assumed by the seller and purchaser.

Compare Colo. RPC 1.17 with Model Rules of Profl Conduct R. 1.17 (2003). Colo. RPC 1.17 was designed to permit solo practitioners to sell their practice in much the same way as withdrawing or retiring partners and shareholders in firms, in effect, do when the firm pays for their interest in the practice with future installment payments or agrees to continue the salary and benefits for a period of time without requiring the withdrawing or retiring attorney to perform any services. We are aware that Colo. RPC 1.17 specifically exempts from its application the withdrawal or retirement from a partnership or professional corporation. See Colo. RPC 1.17(h). That exemption does not, in our view, dilute the significance of the fact that there are circumstances in which fees can be divided between attorneys without regard to the value of the services rendered or the responsibility assumed, and without the consent of the client.

Further support for our conclusion comes from the scope section of the Rules of Professional Conduct, which states that the rules are not designed to alter civil liability, nor do they serve as a basis for such liability. Colo. RPC Scope; Olsen & Brown v. City of En-glewood, 889 P.2d 673, 676 (Colo.1995); see also Astarte, Inc. v. Pac. Indus. Sys., Inc., 865 F.Supp. 693, 706 (D.Colo.1994)(under Colorado law, “ethical codes are not designed to prescribe standards for civil liability of attorneys and do not create a private cause of action”); Taylor v. Grogan, 900 P.2d 60, 63 (Colo.1995)(the Code of Professional Responsibility states that it does not “define standards for civil liability of lawyers for professional conduct”); Bryant v. Hand, 158 Colo. 56, 59, 404 P.2d 521, 522-23 (1965)(“[t]he canons of ethics are not binding on the courts and do not have the force of law”). Rather, such rules provide guidance in the attorney-client relationship and serve as a mechanism of internal professional discipline. Colo. RPC Scope; Olsen & Brown v. City of Englewood, supra, 889 P.2d at 676.

Interpreting the scope language in the context of Colo. RPC 1.5(d), we agree with a Texas court when it concluded that the rule “should not be too readily construed as a license for attorneys to break a promise, go back on their word, or decline to fulfill an obligation, in the name of legal ethics.” Baron v. Mullinax, Wells, Mauzy & Baab, Inc., supra, 623 S.W.2d at 462.

II.

We are not persuaded by attorney’s argument that People v. Wilson, 953 P.2d 1292 (Colo.1998), requires a different result.

Wilson addressed the rule in an attorney discipline proceeding where the supreme court determined that a firm’s “Covenant Not to Steal,” requiring departing lawyers to compensate the firm seventy-five percent of the total fee generated from a future settlement, violated Colo. RPC 1.5(d). It reasoned that the “division of fees required by the Covenant bore no such relation to the services performed.” People v. Wilson, supra, 953 P.2d at 1294. The court prohibited the enforcement of the covenant against departing associates, but allowed for a quantum meruit distribution of the fees. People v. Wilson, supra, 953 P.2d at 1294-95.

This is not an attorney discipline case. The rules were adopted “to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies,” but not as a “basis for civil liability,” and without more, Colo. RPC 1.5(d) “should not in and of itself give rise to a cause of action.” Colo. RPC Scope (emphasis added); see Olsen & Brown v. City of Englewood, supra.

Here, the agreement was entered into by two capable, experienced personal injury attorneys “after thorough bargaining and negotiation and representad] a mutually agreeable compromise and accord and satisfaction of any and all claims of the parties against each other.” The parties were familiar with the cases involved, were generally aware of how much work had been performed on each case at the time of transfer, could make an educated estimate of how much additional work was required in the future, had presumably valued the cases, and were cognizant of other issues between them that may have had to be resolved. In contrast, in Wilson, new associates were required to sign the covenant upon, and as a condition of, employment when no comparable information was available; the allocation of the fees was admittedly arbitrary; the covenant may well have been coercive; and the covenant certainly may have infringed on the client’s right to choose, retain, and discharge an attorney.

Thus, we conclude, as a matter of law, that the agreement is not void as against public policy and is enforceable in accordance with its terms.

Accordingly, the judgment is affirmed.

Judge VOGT and Judge LOEB concur.


author: Judge PICCONE.

text:
    Norman McCALL, Plaintiff-Appellant, v. Thomas R. MEYERS, Defendant-Appellee.
    No. 01CA2422.
    Colorado Court of Appeals, Div. I.
    June 17, 2004.

      Crosse Law Office, PC, Charles Crosse, Samuel Barfield, Denver, Colorado, for Plaintiff-Appellant.
    White & Steele, PC, Stephen R. Higgins, Denver, Colorado, for Defendant-Appellee.

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

   Opinion by

Judge PICCONE.

In this personal injury action, plaintiff, Norman McCall, appeals the judgment entered on a jury verdict in favor of defendant, Thomas R. Meyers. We affirm.

McCall suffers from developmental and physical disabilities. As he attempted to walk across an intersection, Meyers’ vehicle collided .with him and McCall was injured. McCall brought this action against Meyers alleging negligence. Meyers asserted that McCall was comparatively negligent. The trial court entered judgment in favor of Meyers and subsequently awarded him costs.

In his brief on appeal, McCall stated, without any record support, that the jury found him sixty-five percent comparatively negligent.

I.

As an initial matter, we note that we are bound by the record presented and may consider only arguments and assertions supported by the evidence in the record. Fleet v. Zwick, 994 P.2d 480 (Colo.App.1999); In re Marriage of Tessmer, 903 P.2d 1194 (Colo.App.1995). A party cannot overcome a deficiency in the record by statements in the briefs. Laessig v. May D & F, 157 Colo. 260, 402 P.2d 183 (1965)(court looks solely to record when determining whether trial court acted properly and statements in brief are not a substitute for the certified record); Colo. Nat’l Bank-Boulder v. Zerobnick & Sander, P.C., 768 P.2d 1276 (Colo.App.1989).

Here, only a partial record, which included a supplemental record, was filed. The record did not include any verdict forms. Our review in this appeal is therefore limited by the record provided. See In re Marriage of Tagen, 62 P.3d 1092 (Colo.App.2002)(appellant bears responsibility to designate record on appeal, including any portions which are necessary for purposes of the appeal; facts not contained within the record cannot be reviewed).

II.

McCall contends the trial court erred in instructing the jury on comparative negligence. Specifically, he asserts § 42-4-808, C.R.S.2003, impliedly eliminates the defense of comparative negligence. We disagree.

The interpretation of a statute is a question of law. We therefore review the trial court’s ruling de novo. Ryals v. St. Mary-Corwin Reg’l Med. Ctr., 10 P.3d 654 (Colo.2000).

When construing a statute, our primary task is to determine and give effect to the intent of the General Assembly. People v. Terry, 791 P.2d 374 (Colo.1990). To ascertain the legislative intent of a statute, we look first to the statutory language and give statutory terms their plain and ordinary meaning. Bertrand v. Bd. of County Comm’rs, 872 P.2d 223 (Colo.1994). When the statutory language is clear and unambiguous, we interpret the statute as written because the General Assembly is presumed to have meant what it plainly said. Bertrand, supra, 872 P.2d at 228.

Section 42-4-808 provides, in pertinent part:

(1) Any pedestrian, other than a person in a wheelchair, or any driver of a vehicle who approaches a person who has an obviously apparent disability of blindness, deafness, or mobility impairment shall immediately come to a full stop and take such precautions before proceeding as are necessary to avoid an accident or injury to said person.... Any person who violates any provision of this section commits a class A traffic offense.

McCall acknowledges the statute does not address comparative negligence. Nevertheless, he argues it creates “an absolute duty” on the part of motorists and in light of this absolute duty, the legislature could not have intended to allow comparative negligence to be asserted as a defense against a disabled plaintiff. Thus, he contends the statute impliedly abrogates the comparative negligence defense.

We find that the statutory language is clear and unambiguous. It requires drivers to yield the right of way to disabled pedestrians. See § 42-4-1701(4)(I)(I), C.R.S.2003. It directs the driver of a vehicle to come to a complete stop and to take necessary precautions to avoid an accident before proceeding. A violation of the statute is a traffic offense. See § 42-4-808(1). The statute, however, does not eliminate defenses available to the driver of the vehicle in a civil action.

Colorado’s comparative negligence statute, § 13-21-111, C.R.S.2003, provides, in pertinent part:

(1) Contributory negligence shall not bar recovery in any action by any person ... to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage, or death recovery is made.

This statute applies when the comparative negligence of the plaintiff has been raised as a defense, there is evidence that both the plaintiff and the defendant were negligent, and such negligence caused the plaintiffs injuries. Bear Valley Church of Christ v. DeBose, 928 P.2d 1315 (Colo.1996). It “abrogated the traditional contributory negligence doctrine and in its place substituted a statutory scheme whereby a plaintiff in a negligence action may recover so long as his or her negligence was less than that of the defendant.” Gordon v. Benson, 925 P.2d 775, 777 (Colo.1996); see Lyons v. Nasby, 770 P.2d 1250 (Colo.1989).

In Lyons v. Nasby, the supreme court rejected an argument similar to the one McCall makes here. In declining to rule that a defendant who is negligent per se cannot invoke the contributory or comparative negligence defense, the court stated, “the reasoning here is that the common-law doctrine of negligence per se should not be applied in such a manner to abrogate the legislatively imposed requirement that a jury determine the degree of negligence attributable to the plaintiff and defendant.” Lyons, supra, 770 P.2d at 1259. The court further reasoned that to preclude a comparative negligence defense would be a statement that a defendant’s violation of a statute is, as a matter of law, the proximate cause of the plaintiffs injuries.

In Lyons, the supreme court looked to McCormick v. United States, 539 F.Supp. 1179 (D.Colo.1982). In McCormick, the plaintiff brought a negligence action for injuries sustained after the defendant ran a red light and collided with the plaintiff. The plaintiff asserted the defendant was negligent per se. The court held that Colorado’s comparative negligence statute required the court to apportion the parties’ relative fault in determining the applicable recovery.

Here, the trial court instructed the jury as follows: “If a person is physically disabled, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable person under like disability.” This instruction was proper. See White v. Muniz, 999 P.2d 814, 818 (Colo.2000)(“the mentally disabled are held to the reasonable person standard in negligence actions”); Johnson v. Lambotte, 147 Colo. 203, 363 P.2d 165 (1961)(mentally disabled persons can be negligent, and by inference comparatively negligent, just as any other person).

Accordingly, we conclude the trial court did not err in instructing the jury on comparative negligence.

III.

Next, McCall contends the trial court erred in imposing a duty of care on him because “the trial court found him to be incompetent as a witness,” and “his mental capacities were so deficient that he could not function at a higher level than a six-year-old child.” We disagree.

A.

Nothing in the record supports McCall’s assertion that the trial court found him incompetent to testify. To the contrary, the record reveals that Meyers’ counsel chose not to call him as a witness, despite the court’s repeated offers to conduct a competency hearing.

Accordingly, because McCall’s argument has no record support, it is not properly before this court. See Loomis v. Seely, 677 P.2d 400 (Colo.App.1983) (statements in briefs that are not substantiated in the record cannot be considered by this court).

B.

In support of his argument that he functioned at the level of a six-year-old child, defendant relies on the testimony of a Dr. Dietz. He states that “[ajccording to Dr. Dietz’s undisputed testimony, Mr. McCall has the mental functioning of a six-year-old child.”

However, McCall does not include a record cite to Dr. Dietz’s testimony, and the record on appeal contains no testimony from Dr. Dietz. Consequently, McCall’s assertion will not be considered. See Fleet v. Zwick, supra (appellate court will not consider arguments unsupported by the record); Brighton Sch. Dist. 27J v. Transamerica Premier Ins. Co., 923 P.2d 328 (Colo.App.1996), aff'd, 940 P.2d 348 (Colo.1997); Westrac, Inc. v. Walker Field, 812 P.2d 714 (Colo.App.1991)(court declined to review the issue of denial of attorney fees where counsel failed to designate a portion of the record that supported his claims).

IV.

McCall contends the “trial court erred by instructing the jury the plaintiff could be comparatively negligent where plaintiff had a developmental disability that rendered him incompetent.” We do not agree.

During the discussion about jury instructions, McCall did not object to the comparative negligence instruction on the grounds asserted on appeal. His only objection to the instruction was that the state statute should apply instead of the local traffic ordinance. Accordingly, because McCall did not raise this objection in the trial court, it is not properly before us for appellate review. See Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718 (Colo.1992).

Judgment affirmed.

Justice KIRSHBAUM and Judge NEY * concur.


author: CHAPEL, Judge.

text:
    2004 OK CR 26
    Jimmy Lee TIDMORE, Appellant, v. STATE of Oklahoma, Appellee.
    No. F-2003-286.
    Court of Criminal Appeals of Oklahoma.
    July 15, 2004.
    John K. Bounds, Hugo, OK, Trial Attorney for Defendant at Trial.
    Gerald L. Gibbs, Broken Bow, OK, Sentencing Attorney for Defendant at Trial.
    Virginia Sanders, District Attorney, Ida-bel, OK, Attorney for State at Trial.
    Kimberly D. Heinze, Appellate Defense Counsel, Norman, OK, Attorney for Petitioner on Appeal.
    W.A. Drew Edmondson, Attorney General of Oklahoma, Kellye Bates, Assistant Attorney General, Oklahoma City, OK, Attorneys for Respondent on Appeal.
   SUMMARY OPINION

CHAPEL, Judge.

¶ 1 Jimmy Lee Tidmore was tried by jury and convicted of Count I, Endeavoring to Manufacture a Controlled Substance in violation of 63 O.S.2001, § 2-408; Count II, Possession of Controlled Substance (Methamphetamine) in violation of 63 O.S.2001, § 2-402; Count III, Unlawful Use of a Police Scanner in violation of 21 O.S.2001, § 1214; and Count IV, Feloniously Pointing a Weapon in violation of 21 O.S.2001, § 1289.16, in the District Court of McCurtain County, Case No. CF-2001-348. In accordance with the jury’s recommendation the Honorable Willard Driesel sentenced Tidmore to ten (10) years imprisonment and a $50,000 fine (Count I); five (5) years imprisonment (Count II); one (1) year imprisonment (Count III); and three (3) years imprisonment (Count IV). Tidmore appeals from these convictions and sentences.

¶ 2 Tidmore raises six propositions of error in support of his appeal:

I. Instructional error left Tidmore’s jury without proper guidance ón lesser offenses, denying Tidmore a fair trial;
II. Improper restriction on impeachment of a key prosecution witness for bias and prejudice denied Tidmore a fair trial;
III. The State’s evidence was insufficient to support Tidmore’s conviction for unlawful use of a police frequency radio;
IV. Tidmore’s conviction for endeavoring to manufacture must be reversed because the statute is overly broad and void for vagueness;
V. Execution of the search warrant exceeded the scope of the warrant, turning it into an illegal general warrant; therefore, the resulting evidence should have been suppressed; and
VI. The cumulative effect of all the errors addressed above deprived Tidmore of a fair trial.

¶3 After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs, we find that neither reversal nor modification is required by the law and evidence. In Proposition I we find the evidence did not support instructions on reckless handling of a firearm or pointing a weapon as a misdemeanor. In Proposition II we find the trial court did not err in limiting cross-examination on an inadmissible deferred sentence, where the record did not support Tidmore’s claim that the deferred sentence was central to a witness’s bias against him. We find in Proposition III that any rational trier of fact could find beyond a reasonable doubt that Tidmore was unlawfully operating a police scanner while endeavoring to manufacture methamphetamine. We find in Proposition V that the search did not exceed the scope of the warrant, and the trial court did not err in admitting the evidence seized during the search. We find in Proposition VI that as there is no accumulation of error, there is no relief for cumulative error.

¶ 4 We address Proposition IV more fully. Tidmore claims that the criminal prohibition against “endeavoring to manufacture” methamphetamine is vague and does not apprise him of his conduct which is alleged to be unlawful. Tidmore suggests that endeavoring to manufacture is equivalent to an attempt to commit a crime. On the contrary, the statutory language indicates the Legislature was aware of the difference between an attempt, as traditionally defined in criminal law, and endeavoring, and intended to criminalize both actions where methamphetamine is concerned. To find otherwise would violate the principle of elementary statutory interpretation requiring the Court to avoid any construction rendering any part of either statute superfluous or useless. The endeavoring statute is completely separate from the general statute defining attempt, and there is no requirement of an overt act to complete the crime. This offense is clearly defined and a person of ordinary intelligence would know what is prohibited.

¶ 5 Tidmore claims, without citation to authority, that § 2^408 is vague because it does not specify the mental state necessary to commit the crime of endeavoring to manufacture. This makes no sense. The endeavoring statute specifically refers to the panoply of offenses codified in the Uniform Controlled Dangerous Substances Act. The relevant criminal acts prohibited in that Act accurately define the elements of those offenses, including any necessary mental state.

¶ 6 Tidmore also complains that his jury instruction inaccurately defined “endeavor.” Tidmore’s jury was instructed, in accordance with Black’s Law Dictionary, that endeavoring meant “to exert physical and intellectual strength toward the attainment of an object; a systematic or continuous effort.” We contrast this with the current jury instruction defining “endeavoring” as “any effort to do or accomplish the evil purpose that the law was enacted to prevent.” Both definitions refer to a purpose; while the OUJI is more explicit, the trial court’s definition, in context, could only be referring to the purpose to manufacture methamphetamine, which is prohibited by law. In fact, the more restrictive definition given to Tidmore’s jury arguably benefited him.

Decision

¶7 The Judgments and Sentences of the District Court are AFFIRMED.

JOHNSON, P.J., LILE, V.P.J., LUMPKIN, J., and STRUBHAR, J., concur.'

      . While the trial court should instruct on lesser included offenses supported by the evidence, Shrun v. State, 1999 OK CR 41, 991 P.2d 1032, 1036, the evidence was that Tidmore deliberately pointed a loaded gun at two persons, intending to threaten them (either because he did not realize they were police officers or because he was responding to the officers' presence in his home). For this reason, Tidmore's claim that trial counsel was ineffective for failing to provide the misdemeanor cite fails. The offense of misdemeanor pointing a weapon is found at 21 O.S.2001, § 1279.

      . Livingston v. State, 1995 OK CR 68, 907 P.2d 1088, 1092-93; Cline v. State, 1989 OK CR 69, 782 P.2d 399, 401. The witness testified in camera that law enforcement officers never pressured her to give evidence against Tidmore.

      . Easlick v. State, 2004 OK CR 21, 90 P.3d 556 (adopting unified standard for direct and circumstantial evidence). I continue to believe that circumstantial evidence should be reviewed under the reasonable hypothesis standard, but apply the unified test under stare decisis. I note tKat I would also find the evidence sufficient to convict Tidmore using the reasonable hypothesis test. The scanner was in Tidmore's home, belonged to him, was on, and was capable of receiving the sheriff's frequency. Operating a scanner does not require constant manual control. Davenport v. State, 1973 OK CR 271, 510 P.2d 988, 991.

      . Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971); Moore v. State, 1990 OK CR 5, 788 P.2d 387, 396, cert. denied, 498 U.S. 881, 111 S.Ct. 227, 112 L.Ed.2d 182. This Court has often disapproved the use of a "general warrant”. See, e.g., Kinsey v. State, 1979 OK CR 122, 602 P.2d 240, 242-243. However, the warrant here on its face specifically described and authorized a search of Tidmore's residence. United States v. Simpson, 152 F.3d 1241, 1247-48 (10th Cir. 1998).

      . Alverson v. State, 1999 OK CR 21, 983 P.2d 498, 520, cert. denied, 528 U.S. 1089, 120 S.Ct. 820, 145 L.Ed.2d 690 (2000).

      . Byrd v. Caswell, 2001 OK CR 29, 34 P.3d 647, 648-49.

      . Westfall v. State, No. F-2002-1274 (Okl.Cr. Oct. 21, 2003) (not for publication); Gorrell v. State, No. F-2000-483, slip op. at 4 n. 7 (Okl.Cr. Dec. 3, 2001) (not for publication); Henry v. State, No. F-2000-762, slip op. at 2 n. 4 (Okl.Cr. August 14, 2001) (not for publication).

      .OUJI-CR (2nd)(Supp.2003) 6-16.