author: Chief Judge DAVIDSON.

text:
    Wayne R. ELSTON, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant-Appellee.
    No. 02CA0766.
    Colorado Court of Appeals, Div. III.
    May 22, 2003.

      Rossi, Cox, Kiker & Inderwish, P.C., John J. Rossi, Paul F. Byrnes, Aurora, Colorado, for Plaintiff-Appellant.
    Hall & Evans, L.L.C,, Alan Epstein, Frederick T. Martinez, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Chief Judge DAVIDSON.

In this negligence action brought pursuant to the Federal Employers' Liability Act (FELA), plaintiff, Wayne R. Elston, appeals from the trial court's entry of summary judgment in favor of defendant, Union Pacific Railroad Company. We reverse and remand.

Plaintiff was employed by defendant as a locomotive engineer. He was called on duty to relieve another crew member who had exhausted his maximum allowable work hours. Upon arriving at Adams Siding, where the train was being held, plaintiff was assigned to repair a problem with the train's remote locomotives, called "consists," which were not responding to radio commands from the controlling locomotive. After discussing the problem and actions taken by the original train crew, plaintiff concluded that it was necessary to replace the controlling locomotive.

After replacing the locomotive, plaintiff walked alongside the tracks to the rear of the train to enter the new locomotive code number into the remote consists. It was necessary for plaintiff to walk, rather than drive, to the rear of the train because the snowy conditions precluded defendant's maintenance vehicle from driving alongside the tracks. After making the necessary inputs, plaintiff began walking toward the front of the train. He then slipped and fell on the steeply pitched, snow-covered roadbed structural material, called "ballast," and thereby suffered injury to his right knee.

Plaintiff subsequently filed this lawsuit alleging that defendant was negligent under FELA for: (1) failing to provide reasonably safe walkways alongside its mainline tracks; and (2) violating its statutory duty under the Locomotive Inspection Act (LIA) and the Federal Railroad Safety Act (FRSA) to use only locomotives in proper condition and safe to operate without danger of personal injury.

The trial court granted defendant's motion for summary judgment and dismissed the case with prejudice on the basis that plaintiff had provided no evidence that defendant was responsible for adverse weather conditions, unreasonably allowed ice and snow to accumulate, or had the opportunity, but failed to take appropriate corrective action. In addition, the trial court determined that the regulations under other federal statutes preempted plaintiff's FELA claim that defendant failed to provide its employees with a reasonably safe walkway alongside its railroad line. The trial court further concluded that plaintiffs additional claim that defendant had violated several LIA regulations was without merit and unsupported by the evidence. Subsequently, the trial court issued an amended order denying plaintiff's motion for entry of summary judgment in his favor. This appeal followed.

Our review of an order granting a motion for summary judgment is de novo. See Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251 (Colo.1995). Summary judgment is appropriate only if the pleadings, affidavits, depositions, or admissions establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter-of law. See C.R.C.P. 56(c) Cung La v. State Farm Auto. Ins. Co., 830 P.2d 1007 (Colo.1992). In reviewing a motion for summary judgment, we must view the allegations in the complaint in the light most favorable to the nonmoving party. See Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988).

L.

Plaintiff contends that the trial court improperly invaded the province of the jury by determining as a matter of law that: (1) defendant had satisfied its duty to provide a reasonably safe workplace under FELA; and (2) his LIA claims brought under FELA were without merit. We agree.

A.

FELA is a broad remedial statute designed to be construed liberally so as to effectuate Congress's intent to promote railroad safety. Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). FELA provides the exclusive remedy for a railroad employee to recover damages for injuries resulting from the negli-genee of his railroad employer. Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439 (5th Cir.2001).

Under FELA, a railroad employer is required to provide its employees with a reasonably safe place to work. See Gadsden v. Port Auth. Trans-Hudson Corp., 140 F.3d 207 (2d Cir.1998)(railroad may be held liable under FELA for failure to provide its employees with a reasonably safe work environment when it knows or should have known of a potential workplace risk, yet fails to exercise reasonable care to inform and protect its employees concerning this risk); Sinclair v. Long Island R.R., 985 F.2d 74 (2d Cir.1993).

The plaintiff's burden in a FELA action is significantly less than in an ordinary negligence suit, and as a result, it is easier for a plaintiffs FELA claim to survive a summary judgment motion. See Lisek v. Norfolk & W. Ry., 30 F.3d 823 (7th Cir.1994).

A FELA plaintiff is not impervious to summary judgment, however. See Robert v. Consol. Rail Corp., 832 F.2d 3 (1st Cir.1987)(a plaintiff is still required to establish the traditional common law elements of negli-genee). To survive summary judgment on a FELA claim that a railroad breached its duty to provide a safe workplace, a plaintiff must show cireumstances that a reasonable person would foresee as creating a potential for harm and establish that this breach played some part in causing the injury. McGinn v. Burlington N. R.R., 102 F.3d 295 (7th Cir.1996); see also Rogers v. Mo. Pac. R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957)(FELA case should go to the jury if "the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury").

- Foreseeability does not require the employer to have anticipated the plaintiff's injury in the precise manner in which it occurred. It is sufficient if the employer could reasonably foresee that an injury might occur. See Armstrong v. Burlington N. R.R., 139 F.3d 1277 (9th Cir.1998). In a close case, the FELA action should be allowed to proceed to trial. Nichols v. Burlington N. & Santa Fe Ry., 56 P.3d 106 (Colo.App.2002); see also Syverson v. Consol. Rail Corp., 19 F.3d 824 (2d Cir.1994)(FELA case must not be dismissed on summary judgment unless there is no reasonable basis for a jury to find for plaintiff).

Here, in his response to defendant's motion for summary judgment, plaintiff asserted that, because defendant often requires its employees to walk the length of the train to make repairs or change train crews, defendant's failure to provide a reasonably safe walkway alongside the train created a foreseeable risk of harm that caused, in whole or in part, his injury. Defendant argues that summary judgment was proper because, as a matter of law, it cannot be held responsible for the accumulation of ice and snow that resulted in plaintiffs injury, and plaintiff failed to show it had actual or constructive knowledge that the section of the railroad track on which plaintiff was injured was unsafe. We agree with plaintiff that summary judgment was improper.

Under FELA, "normal winter conditions may [provide] sufficient notice to railroad employers about the potential for harm due to a slip and fall on ice or snow." Vonderhaar v. Soo Line R.R., 242 Wis.2d 746, - 755, 626 N.W.2d 314, 318 (Wis.Ct.App.2001)(citing Kimbler v. Pittsburgh & Lake Erie R.R., 331 F.2d 383 (3d Cir.1964)); see also McDonald v. N.E. Ill. Reg'l, 249 F.Supp.2d 1051 (N.D.Ill.2003) (genuine issue of fact existed as to whether railroad's failure to remove snow constituted negligence). And whether a defendant has actual or constructive knowledge of a potential workplace risk usually is a question of fact for the jury to decide. See Wahlstrom v. Metro-N. Commuter R.R., 89 F.Supp.2d 506 (S.D.N.Y.2000); see also Rogers v. Mo. Pac. R.R., supra, 352 U.S. at 510, 77 S.Ct. at 450-51 ("Congress vested the power of decision in these actions exclusively in the jury in all but the infrequent cases where fair-minded jurors cannot honestly differ whether fault of the employer played any part in the employee's injury").

Viewing the allegations in the light most favorable to plaintiff, we conclude there is a disputed issue of fact whether defendant satisfied the standard of reasonableness as to the existing and anticipated conditions of the roadbed and ballast, including the icy and snowy condition thereof. See Gallick v. Baltimore & O. R.R., 372 U.S. 108, 118, 83 S.Ct. 659, 666, 9 L.Ed.2d 618 (1963)(a defendant is held to the standard of what is reasonably foreseeable under the same or similar circumstances based upon "what 'in the light of the facts then known, should or could reasonably have been anticipated ").

Specifically, in its motion for summary judgment, defendant argued that it was not reasonably foreseeable that plaintiff would take "a shortcut along a steep embankment with loose slag and slick, wet, snowy conditions," rather than the longer, but safer route to the front of the train.

In his response to defendant's motion, however, plaintiff offered evidence that: (1) defendant knew or should have known that because the controlling locomotive was not operating properly, there was a strong possibility it would have to be replaced and plaintiff would be required to walk to the rear of the train to enter a new control code into the remote consists; (2) plaintiff could easily have reached the back of the train when it was stopped at Milner, by walking alongside the shoulder of the highway adjacent to the train; (8) defendant had the option of holding the train at Milner until plaintiff arrived to relieve the first crew; (4) defendant nevertheless moved the train from Milner to Adams Siding, where it knew or should have known the rear of the train was not safely reachable because there were no walkways and trains occupied both the main and side tracks, thereby preventing plaintiff from walking down the middle; (5) based on the overnight weather conditions consisting of a mix of rain, snow, and sleet, defendant knew or should have known that plaintiff would be required to walk on the steeply pitched, snow-covered ballast to reach the remote consists; (6) in returning to the front of the train, plaintiff could not retrace the original route he took to reach the remote consists because of defendant's operating rules, which forbid a railroad employee from crossing over the tracks by going through the train; and (7) regardless of which side of the train plaintiff walked on, there were no walkways and the footing was poor.

Thus, there is a disputed issue of material fact whether defendant breached its duty to provide plaintiff with a safe workplace, and the trial court erred in granting summary judgment on this issue.

B.

The purpose of the LIA is to promote the safety of railroad employees, passengers, and the public at large by requiring the use of safe equipment. The LIA does not confer a right of action upon an injured employee. Rather, it has been construed as an amendment or supplement to FELA, so that proof of a violation under the LIA establishes negligence as a matter of law under FELA. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). Thus, a railroad employee who is injured as a result of an LIA violation may sue under FELA alleging an LIA claim. See Lilly v. Grand Trunk W. R.R., 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. 411 (1943); see also Palmer v. Union Pac. R.R., 12 F.Supp.2d 588 (S.D.Tex.1998)(LIA violation is a separate cause of action from a FELA claim for negligence).

Liability under the LIA is absolute and is not dependent on negligence or proof of a defect. See Norfolk & W. Ry. v. Hiles, 516 U.S. 400, 116 S.Ct. 890, 134 LEd.2d 34 (1996)(Safety Appliance Act (SAA)-FELA plaintiff). Instead, the LIA imposes upon a railroad carrier a continuing duty to maintain its locomotives in proper condition, safe to operate, and without unnecessary danger of personal injury. 49 C.F.R. § 229.T(a)(1).

Additionally, as relevant here, the LIA provides that a railroad carrier shall not use a train in service unless the remote consists are capable of responding to commands from the controlling locomotive, 49 CFE.R. § 229.13, and all systems and components of the locomotive must be free of conditions that would endanger the safety of the crew or the train, 49 C.F.R. § 229.45.

1.

Plaintiff offered evidence that: (1) pursuant to the LIA, defendant knew or should have known that because the lead locomotive was not in proper condition or safe to operate, the train could not be moved until the remote consists were able to respond to commands from the controlling locomotive, or until defendant complied with the requirements for moving a noncomplying locomotive, and (2) nevertheless, defendant moved the train in its unsafe condition, in direct violation of the LIA.

Based on this, we conclude there are disputed issues of material fact whether defendant violated the LIA by failing to maintain its locomotive in proper condition, 49 C.F.R. § 229.T(a)(1); by moving the train when the remote consists did not respond to commands from the controlling locomotive, 49 C.F.R. § 229.13; and by using a locomotive whose systems and components created a condition that endangered the safety of the locomotive and crew, 49 C.ER. § 229.45.

- Defendant argues that the communication problem between the consists was temporary and thus did not constitute a de-feet under 49 C.F.R. § 229.7(a)(1). Plaintiff offered deposition testimony to the contrary, however, in which members of the original and relieving train crews stated that the communication problem was not temporary because the remote consists would not respond to commands from the controlling locomotive despite all efforts to repair the problem. Additionally, when a part or appurtenance of a locomotive does not perform properly, the injured employee need not prove the existence of a defect. S. Ry. v. Bryan, 375 F.2d 155 (5th Cir.1967). Rather, evidence that the equipment failed to perform as required is sufficient to create lHabili ty under FELA for an LIA violation. Grogg v. Mo. Pac. R.R., 841 F.2d 210 (8th Cir.1988).

Defendant further contends that plaintiff failed to produce evidence that the alleged failure of the remote consists to communicate created an unnecessary danger of personal injury as required for liability under 49 C.F.R. § 229.7(a)(1). Defendant asserted that in the absence of communication with the C consist, the train nevertheless could have safely proceeded to its ultimate destination, Phippsburg, albeit at a lower speed, as evidenced by the fact that the train operated safely from Milner to Adams Siding without communication between the remote consists and the lead locomotive.

Plaintiff offered the following evidence to the contrary: (1) without the remote consists in working order, the train could not make it up the hill to Phippsburg; (2) the remote consists would remain in the same power and throttle setting they were in when control was lost, despite the train engineer's attempt to slow or stop the train; and (8) the nonre-sponsive remote consists would not be able to provide dynamic braking, which is the primary way to control the train's speed on descending grades.

Defendant also argues that its alleged violation of the LIA did not proximately cause plaintiff's injuries because plaintiff had completed the task of resetting the remote consists and was returning to the front of the train when he was injured. Contrary to defendant's assertion, however, a plaintiff alleging an LIA violation "is not required to prove common-law proximate causation but only that his injury resulted 'in whole or in part' from the railroad's violation of the [LIA]." Crane v. Cedar Rapids & Iowa City Ry., 395 U.S. 164, 166, 89 S.Ct. 1706, 1708, 23 L.Ed.2d 176 (1969)(in similar SAA-FELA context); see also Rogers v. Mo. Pac. R.R., supra (Supreme Court abandoned proximate causation as negligence standard under FELA).

Here, there remains a question of fact whether the alleged violation was too remote from plaintiffs injury to establish legal causation. Although it is insufficient merely to establish that there was an LIA violation "in the air" when plaintiff was injured, we cannot conclude, as a matter of law, that the alleged violation played absolutely no part in plaintiff's injury. See Wilson v. Union Pac. R.R., 56 F.3d 1226, 1230 (10th Cir.1995)(SAA-FELA context).

It is undisputed that plaintiff was injured while returning from attending to the alleged LIA violation. But for the alleged violation, plaintiff would not have been forced to walk on the steeply pitched, snow-covered ballast where the injury occurred. Even under a proximate causation analysis, it was foreseeable that an employee required to repair the remote consists must go to and return from the repair site. See Wilson v. Union Pac. RR., supra (court denied railroad summary judgment against plaintiff who injured his ankle when returning from repairing an SAA violation).

In light of the fact that plaintiff was returning from the repair site and had not begun duties unrelated to the alleged LIA violation, we conclude the trial court improperly granted summary judgment on this issue.

2.

For the same reasons, we disagree with plaintiff's argument that the trial court erred in denying his summary judgment motion against defendant for its alleged violation of the LIA. See Rogers v. Mo. Pac. RR., supra.

IL.

Plaintiff contends that the trial court also erred in determining that the LIA and FRSA regulations preclude his negligence claim under FELA that defendant failed to provide a reasonably safe walkway alongside its railroad tracks. Specifically, plaintiff asserts that the LIA's locomotive equipment standards, 49 C.F.R. pt. 229, and the FRSA's track safety standards, 49 C.F.R. §§ 218.1-241, do not cover the subject matter of safe walkways and, thus, do not preclude a FELA claim on this basis. Defendant argues that even if summary judgment were otherwise improperly granted, the trial court correctly determined that plaintiff's claim was precluded because defendant has complied with the FRSA's detailed regulations concerning ballast and track structure, and the track safety standards cover the issue of walkways. Alternatively, defendant argues that plaintiff's claim is negatively preempted. We agree with plaintiff,

A.

First, the LIA does not preclude plaintiff's FELA claim for negligence. As discussed, the LIA imposes an absolute duty to provide safe equipment on locomotives. See King v. S. Pac. Transp. Co., 855 F.2d 1485 (10th Cir.1988). The United States Supreme Court has explicitly stated that to promote the goal of nationwide uniformity of equipment standards, the LIA was intended to occupy the field of locomotive equipment, including "the design, the construction, and the material of every part of the locomotive and tender and of all appurtenances." Napier v. Atl. Coast Line R.R., 272 U.S. 605, 611, 47 S.Ct. 207, 209, 71 L.Ed. 432 (1926).

The Supreme Court further expounded upon the extent of the LIA's coverage in Southern Ry. v. Lunsford, 297 U.S. 398, 402, 56 S.Ct. 504, 506, 80 L.Ed. 740 (1936), stating that "[wJlhatever in fact is an integral or essential part of a completed locomotive, and all parts or attachments definitely prescribed by lawful order of the Interstate Commerce Commission, are within the statute."

Thus, under Napier and Lunsford, a state law claim against manufacturers for defective design and construction of a locomotive's parts certainly is preempted by the LIA. See Oglesby v. Del. & Hudson Ry., 180 F.3d 458 (2d Cir.1999); Roth v. I & M Rail Link, L.L.C., 179 F.Supp.2d 1054 (S.D.Iowa 2001).

However, the Supreme Court also stated that the LIA is a supplement to FELA, and it has "the purpose and effect of facilitating employee recover[y], not of restricting such recovery or making it impossible." Urie v. Thompson, supra, 337 U.S. at 189, 69 S.Ct. at 1034 (commenting on the interaction between FELA and the LIA (formerly referred to as the Boiler Inspection Act)); see also Palmer v. Union Pac. RR., supra, 12 F.Supp.2d at 590 (FELA and LIA are in pari materia and must be liberally construed to carry out their remedial and humanitarian purposes").

Hence, we conclude that the LIA does not occupy the field of walkways. Cf. Weaver v. Mo. Pac. R.R., 152 F.3d 427, 430 (5th Cir.1998)(LIA does not "'totally occup[y] the field' of locomotive safety" and thus does not preclude liability under FELA for failure to install air conditioners or protective screens); Engvall v. Soo Line R.R., 632 N.W.2d 560 (Minn.2001)(LIA does not preempt state law FELA claim based on a violation of the LIA).

A walkway undisputedly is not locomotive equipment, and it is not attached to the locomotive so as to be an appurtenance. See Black's Law Dictionary 98 (Tth ed.1999)(appurtenance is "[slomething that belongs or is attached to something else"). Additionally, defendant is not a manufacturer, and plaintiff is not asserting a state law claim for defective design or construction.

B.

Congress enacted the FRSA "to promote safety in every area of railroad operations." 49 U.S.C. § 20101. To accomplish this purpose, the Secretary of Transportation has delegated to the Federal Railroad Administration (FRA) the authority to prescribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety. 49 U.S.C. § 20108.

The FRSA provides that railroad safety regulations should be nationally uniform to the extent possible. However, it allows a state to adopt any "law, regulation, or order related to railroad safety or security until the Secretary of Transportation ... prescribes a regulation or issues an order covering the subject matter of the State requirement." 49 U.S.C. § 20106.

Thus, the first issue is whether the FRSA covers the subject matter of railroad walkways. To prevail on a claim that the FRSA has preemptive effect, the FRSA regulations must not merely touch upon or relate to the subject matter, but must substantially subsume it. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993).

The vast majority of cases addressing locomotive-related accidents involve a state law claim and a federal claim for violation of the FRSA. In that posture, it is necessary to employ a preemption analysis. See Waymire v. Norfolk & W. Ry., 218 F.3d 773 (7th Cir.2000). Here, however, we are presented with the interaction of two federal statutes, and thus, preemption in its constitutional sense does not apply. Nevertheless, the cases addressing the question whether the FRSA preempts state law railroad injury claims are instructive in determining whether plaintiff's FELA claim for negligence is precluded by the FRSA.

In cases brought under state law, the Supreme Court has established two areas, warning signs at grade crossings and speed regulations, in which the FRSA expressly preempts any inconsistent state regulations. See Norfolk S. Ry. v. Shanklin, 529 U.S. 344, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000)(warning signs); CSX Transp., Inc. v. Easterwood, supra (speed limits).

The Seventh Circuit extended the Supreme Court's holdings in Shanklin and Easterwood to negligence claims brought under FELA concerning excessive speed regulations and inadequate warning devices. That court determined FELA is superseded by the FRSA to the same extent that the FRSA preempts state law, and that liability may not be imposed under either when railroads have complied with FRSA requirements. See Waymire v. Norfolk & W. Ry., supra.

Several courts considering the issue have adopted the conclusion in Waymire, reasoning that the FRSA's goal of national uniformity would be defeated if an excessive speed negligence claim could be brought under FELA but not under state law. See, eg., Rice v. Cincinnati, New Orleans & Pac. Ry., 955 F.Supp. 739 (E.D.Ky.1997); Thirkill v. J.B. Hunt Transp., Inc., 950 F.Supp. 1105 (N.D.Ala.1996). Other courts, however, have declined to follow Waymire reasoning that FELA and the FRSA are not in conflict, and that injured railroad employees would be left without recourse if their FELA claims were preempted by the FRSA. See Earwood v. Norfolk S. Ry., 845 F.Supp. 880 (N.D.Ga.1993); Myers v. Ill. Cent. R.R., 323 Ill.App.3d 780, 257 Ill.Dec. 365, 753 N.E.2d 560 (2001).

Here, we are presented with a different question-whether a - negligence - claim brought under FELA for failure to provide safe walkways is preempted by FRSA regulations. Unlike the issues of excessive speed and inadequate warning devices that are expressly covered in the FRSA, the issue of walkways is not explicitly addressed in the federal safety regulations. The Supreme Court has not addressed the issue, and courts that have considered the question have disagreed. Compare Grimes v. Norfolk S. Ry, 116 F.Supp.2d 995 (N.D.Ind.2000)(FRSA does not cover question of walkways and thus plaintiffs are not precluded from bringing a FELA claim for negligent failure to provide safe walkways), and S. Pac. Transp. Co. v. Pub. Utils. Comm'n, 647 F.Supp. 1220 (N.D.Cal.1986) (state walkway requirements not covered by and thus not preempted by FRSA), aff'd per curiam, 820 F.2d 1111 (9th Cir.1987), with Mo. Pac. R.R. v. R.R. Comm'n, 948 F.2d 179 (5th Cir.1991)(finding that state regulation regarding walkways conflicted with FRSA and thus was preempted); Norfolk & W. Ry. v. Pub. Utils. Comm'n, 926 F.2d 567 (6th Cir.1991)(state regulation of railroad bridge walkways preempted by FRSA); Fernow v. Burlington N. Santa Fe Ry., 109 F.Supp.2d 678 (S.D.Tex.2000)(denying summary judgment on the basis that fact issues remained as to whether state regulation concerning railroad walkways was preempted by FRSA); and Black v. Seaboard Sys. R.R., 487 N.E.2d 468 (Ind.Ct.App.1986)(walkways are part of track structure and rail system that are covered and thus preempted by FRSA regulations).

When there is no direct conflict or expressed intent to preclude a claim, it is necessary to determine from the respective laws or regulations whether preclusion has in fact occurred. The critical question in making this determination is whether Congress intended the claim to be superseded. See Ill. Cent. Gulf R.R. v. Tenn. Pub. Serv. Comm'n, 736 S.W.2d 112, 114 (Tenn.Ct.App.1987)(preemption context).

Pursuant to its delegated authority, the FRA adopted the track safety standards that address the requirements for track geometry, structure, appliances, and inspections. See 49 C.F.R. §§ 218.1-241. Only subparts B and D of these standards address the matter of roadbed and ballast. See Webster's Third New International Dictionary 167, 1968 (1986)(roadbed is "the bed ... of a railroad on which the ties, rails, and ballast rest"; ballast is "gravel or broken stone laid in a [railroad] roadbed"). For plaintiff's claim to be superseded, then, subpart B or D of the track safety standards must cover the subject matter of walkways. We conclude that they do not. _

Subpart B prescribes minimum requirements for roadbed and immediately adjacent areas, § 218.31; requires that drainage facilities adjacent to the roadbed be maintained and kept free of obstruction, § 218.83; and provides that vegetation adjacent to the roadbed must be controlled so it does not interfere with railroad employees performing trackside duties, § 218.37.

Subpart D of these standards prescribes minimum requirements for ballast, crossties, track assembly fittings, and the physical condition of the rails, § 218.101. Additionally, § 213.103 provides that:

Unless it is otherwise structurally supported, all track shall be supported by material which will-
(a) Transmit and distribute the load of the track and railroad rolling equipment to the subgrade;
(b) Restrain the track laterally, longitudinally, and vertically under dynamic loads imposed by railroad rolling equipment and thermal stress exerted by the rails;
(c) Provide adequate drainage for the track; and
(d) Maintain proper track crosslevel, surface, and alinement.

These standards are directed at promoting a safe roadbed for trains, but offer no indication whether a railroad has a duty to provide safe walkways for employees alongside its tracks. See Grimes v. Norfolk S. Ry., supra; S. Pac. Transp. Co. v. Pub. Utils. Comm'n, supra (subpart B, dealing with vegetation near roadbeds, is designed to ensure that employees can perform necessary maintenance work and does not address whether railroad carriers are required to provide a safe walkway near railroad tracks upon which employees are to perform this work); Ill. Cent Gulf RR. v. Tenn. Pub. Serv. Comm'n, swpro (subparts B and D of track safety standards do not cover subject matter of walkways).

Nothing in the language of the FRSA conflicts with or undermines the primary function of FELA. Rather, the purpose of the FRSA, to promote safety in all areas of railroad operations and reduce railroad related accidents, 49 U.S.C. § 20101, is consistent with the goal of FELA, to promote employee safety and hold railroads liable for injuries caused by their negligence, Consol. Rail Corp. v. Gottshall, supra.

We disagree with defendant that its alleged compliance with the FRSA's track safety standards precludes a finding of negli-genee under FELA, See Weaver v. Mo. Pac. R.R., supra (compliance with the LIA is not determinative of negligence under FELA): Mosco v. Baltimore & Ohio R.R., 817 F.2d 1088 (4th Cir.1987)(railroad may be held liable under FELA for LIA violation even when it is in full compliance with FRSA regulations). Because walkways are not covered by the FRSA, whether defendant complied with these regulations is immaterial in determining whether a reasonable person in defendant's situation would have provided walkways alongside its tracks. See Failing v. Burlington N. R.R., 815 P.2d 974 (Colo.App.1991).

C

Alternatively, defendant asserts that even if the FRSA does not cover the subject matter of safe walkways, its failure to include the matter in the track safety standards negatively preempts plaintiffs FELA claim. Again, we disagree.

Negative - preemption - occurs "where failure of ... federal officials affirmatively to exercise their full authority takes on the character of a ruling that no such regulation is appropriate or approved pursuant to the policy of the statute." Ray v. Atl. Richfield Co., 435 U.S. 151, 178, 98 S.Ct. 988, 1004, 55 LEd.2d 179 (1978)(quoting Bethlehem Steel Co. v. N.Y. State Labor Relations Bd., 330 U.S. 767, 774, 67 S.Ct. 1026, 1030, 91 L.Ed. 1234 (1947)). Negative preemption requires an "authoritative federal determination that [an] area is best left unregulated." Sprietsma v. Mercury Marine, 537 U.S. 51, 123 S.Ct. 518, 528, 154 LEd.2d 466 (2002).

Here, defendant has failed to point to a clear congressional directive that would lead us to interpret the FRSA track safety standards as precluding plaintiff's FELA claim. In fact, defendant has failed to adduce any evidence that the FRA, in promulgating the track safety standards, even considered the issue of safe walkways for railroad employees. Thus, in light of the facts that FELA and the FRSA share a common purpose, see Waymire v. Norfolk & W. Ry., supra (noting that FELA imposes upon railroads the duty to provide a safe workplace, and the FRSA requires the Secretary of Transportation to prescribe regulations for railroad safety), that there is a presumption against preemption, see Largo v. Atchison, Topeka & Santa Fe Ry., 131 N.M. 621, 41 P.3d 347 (N.M.Ct.App.2001), and that the FRSA does not cover the subject matter of railroad walkways, we conclude that the FRSA does not preclude plaintiff from bringing a negligence claim under FELA for failure to provide safe walkways.

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

Judge ROY and Judge WEBB, concur.


source: Caselaw Access Project

author: Justice ERICKSON .

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Jason R. CHAMBERLIN, Defendant-Appellee.
    No. 02CA0853.
    Colorado Court of Appeals, Div. A.
    May 22, 2003.
    G.F. Sandstrom, District Attorney, M. Katherine Howard, Deputy District Attorney, Pueblo, Colorado, for Plaintiff-Appellant.
    R.D. Jorgensen, Pueblo, 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.2002.

   Opinion by

Justice ERICKSON .

The People appeal from the district court judgment granting the petition of defendant, Jason R. Chamberlin, to seal certain eriminal records pertaining to him pursuant to § 24-72-808, C.R.9.2002. We reverse and remand with directions to deny defendant's petition to seal these records.

The relevant facts are not in dispute. In the underlying criminal case, case number 98CR1IOT7, defendant was charged in 1998 with two felony counts, for burglary and theft. These charges were ultimately resolved by a plea agreement. As to the burglary count, defendant received a deferred judgment and sentence which was later dismissed following successful completion of the terms imposed. As to the theft count, defendant pleaded guilty to a lesser misdemeanor theft charge, and this misdemeanor convietion remains unchanged.

Defendant thereafter filed a petition seeking to seal these criminal records pursuant to § 24-72-8308. The People filed an objection to the petition, asserting that, in view of the outstanding misdemeanor conviction, the statute did not allow the sealing of these records because the underlying criminal case was not completely dismissed. In response, defendant asserted that he did not seek the sealing of the records regarding the misdemeanor conviction, but that the statute permitted the sealing of the records to the extent they relate to the dismissed felony charge.

Following a hearing, the district court rejected the People's argument and ordered the sealing of all of the criminal records involved in case number 98CR1IOT7. Notwithstanding the misdemeanor conviction, the court applied the statutory balancing test and found that defendant's interest in having the records sealed outweighed the opposing public interest. The court further ruled that it would be impractical to separate the records relating to the different charges and that sealing all the records was appropriate because the most serious charge was ultimately dismissed.

On appeal, the People contend that the district court erred in granting the petition to seal these records pursuant to § 24-72-308 when defendant's case was not completely dismissed and there is still a conviection as to one count of the information. We agree.

Pursuant to § 24-72-308(1)(a)(I), C.R.S. 2002, a person in interest is eligible to seek the sealing of criminal records only "of official actions involving a criminal offense for which said person in interest was not charged, in any case which was completely dismissed, or in any case in which said person in interest was acquitted" (emphasis added).

Under these statutory eligibility provisions, as narrowed in 1988, persons who have been convicted of a criminal offense no longer qualify for a court order sealing their records in those criminal cases. See People v. D.K.B., 843 P.2d 1326 (Colo.1993).

Here, under the plain language of § 24-72-308(1)(a)(I), defendant is not eligible to have any of the criminal records involved in case number 98CRIOT7 sealed, because none of the three alternative statutory criteria has been satisfied.

Contrary to defendant's argument, the see-ond of these criteria does not authorize the sealing of his records under these circumstances. Rather, in view of the outstanding misdemeanor conviction in case number 98CR107, the underlying criminal "case" was mot "completely dismissed," as required by § 24-72-308(1)(a)(I), notwithstanding the eventual dismissal of the felony count for burglary.

Moreover, we perceive no affirmative basis for sealing under any of the definitional provisions of § 24-72-302, C.R.S.2002, because the eligibility requirements for sealing of records are set forth in and limited by the plain language of §

Contrary to defendant's further argument, there is also no basis in the sealing statute for alternatively sealing only the portion of his criminal records relating to the dismissed felony charge. As noted by the People, the pertinent language of § 24-72-808(1)(a)(I) requires that the underlying criminal "case" be "completely dismissed," rather than authorizing sealing upon the dismissal of any particular "charges" or "counts" in a case that has been filed against the person in interest.

We also note that defendant's reliance on In re T.L.M., 39 P.3d 1239 (Colo.App.2001), and People v. Bushu, 876 P.2d 106 (Colo.App.1994), is misplaced. In those cases, all the charges were resolved in favor of those defendants, either by dismissal or acquittal. Consequently, the issues raised in this case involving the dismissal of one count with a conviction on another count were not present or addressed in those cases.

Under the cireumstances here, because defendant has been convicted of a eriminal offense on one count in case number 98CR107, he does not qualify to have any of the criminal records involved in that case sealed. See § 24-72-308(1)(a)(D); see also People v. D.K.B., supra. Thus, the district court erred in reaching the balancing test under the sealing statute and in granting defendant's petition to seal his criminal ree-ords on that basis.

Accordingly, the district court judgment is reversed, and the case is remanded to that court with directions to deny defendant's petition to seal these eriminal records.

Judge WEBB and Judge METZGER , concur.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 53), and § 24-51-1105, C.R.S.2002.


author: Judge VOGT.

text:
    CASTLE ROCK CONSTRUCTION COMPANY and Capitol Indemnity Corporation, Plaintiffs-Appellants, v. DEPARTMENT OF TRANSPORTATION, State of Colorado, Defendant-Appellee.
    No. 02CA0931.
    Colorado Court of Appeals, Div. I.
    May 22, 2003.
    Godin & Baity, LLC, Jerome M. Joseph, Stephen P. Gilmartin, Denver, Colorado, for Plaintiffs-Appellants.
    Ken Salazar, Attorney General, Tracy Leigh Kinsella, Assistant Attorney General, 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.2002.

   Opinion by

Judge VOGT.

In this breach of contract action, plaintiffs, Castle Rock Construction Company and Capitol Indemnity Corporation, appeal the trial court's judgment dismissing their complaint against defendant, Department of Transportation, State of Colorado (CDOT), on the basis that the complaint was not filed within thirty days of a letter purporting to constitute CDOT's final agency action. We reverse and remand with directions.

Castle Rock entered into a contract with CDOT to widen and repave a portion of a state highway in Durango, Colorado. The parties agreed to modify the standard contract terms to provide for nonbinding arbitration in the event of a dispute. The modified contract section provided that the arbitrators were to make a recommendation to CDOT's Chief Engineer, and concluded as follows:

Upon receipt of the recommendation of the arbitration, the Chief Engineer will render a final decision within 60 days pursuant to subsection 105.17(g). The decision of the Chief Engineer, or the Chief Engineer's designee, shall constitute the final offer by the Department. The conclusions and recommendations of the arbitration panel and the Chief Engineer shall not be admissible in any court of law. Any offer made by the Contractor or the Department at any stage of the claims process as set forth in this subsection shall be deemed an offer of settlement pursuant to Colorado Rule of Civil Procedure {[sic] 408, and therefore inadmissible in any litigation.

(Emphasis supplied.)

With the exception of the reference to "within 60 days," the first sentence of this paragraph is the same as the analogous provision in CDOT's standard contract. The remaining sentences are not part of the standard contract.

Upon completion of the project, Castle Roek filed a claim with CDOT seeking additional compensation based on CDOT's asserted failure to disclose underground utilities and site conditions that increased the time and cost of Castle Rock's performance. The parties engaged in arbitration pursuant to the contract, and the arbitrators recommended that CDOT pay Castle Rock $572,003 plus interest.

Two months after receiving the arbitrators' recommendation, CDOT'"s Chief Engineer sent Castle Rock a letter advising it that he had reviewed the arbitrator's recommendation and had engaged an accounting firm to review CDOT's claim. The accountant had determined the amount owing, inclusive of interest, to be $188,822. The Chief Engineer's letter continued: "I concur with this finding. Therefore, the amount of $188,322 represents the final agency action in accordance with subsection 105.17(i), subsection 105.17(h) of the CDOT's Specifications and with CRS. 24-4-105 and 24-4-106." CDOT then sent $188,322 to Castle Rock's bank account and later paid it an additional $8,168 in interest.

Some five months after receiving the Chief Engineer's letter, Castle Rock and Capitol Indemnity, the surety for one of Castle Rock's subcontractors, filed this action, asserting claims for breach of contract, unjust enrichment, equitable adjustment, breach of implied warranty of adequate design, and breach of implied duty to provide site access.

CDOT filed a motion to dismiss pursuant to C.R.C.P. 12(b)(1). It asserted that Castle Rock's exclusive remedy was an action for judicial review of CDOT's final agency action, that the chief engineer's letter constituted such final agency action, and that Castle Rock's failure to seek such review within thirty days, as required under $ 24-4-106(4), C.R.S.2002, deprived the court of subject matter jurisdiction. The trial court agreed and granted the motion to dismiss.

Plaintiffs contend on appeal that CDOT could not avoid the provisions of its contract by characterizing the Chief Engineer's letter as final agency action and then relying on it in support of a motion to dismiss for failure to file a timely complaint for judicial review. We agree.

Like private parties, state departments and other governmental entities are bound by the terms of the contracts into which they enter. See Adams County Community Center for Retarded & Seriously Handicapped, Inc. v. State, 197 Colo. 448, 594 P.2d 1046 (1979); CAMAS Colorado, Inc. v. Board of County Commissioners, 36 P.3d 135 (Colo.App.2001). This principle applies to contract provisions addressing the resolution of disputes. See City & County of Denver v. District Court, 939 P.2d 1353 (Colo.1997); Kiewit Western Co. v. City & County of Denver, 902 P.2d 421 (Colo.App.1994).

The modified contract provision to which the parties agreed in this case expressly states that "(tlhe decision of the Chief Engineer ... shall constitute the final offer by [CDOT]. "Offer" is not an ambiguous term, and it contemplates a response by the offer-ee. See Restatement (Second) of Contracts § 24 (1979)("An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.").

Although the previous sentence, which is part of CDOT's standard contract, refers to the Chief Engineer's "final decision," any ambiguity arising out of the use of that phrase must be construed against CDOT because it drafted the modified contract. See Allstate Insurance Co. v. Avis Rent-A-Car System, Inc., 947 P.2d 341 (Colo.1997).

CDOT relies on cases upholding the thirty-day requirement for seeking judicial review of administrative action, including one case involving a contract claim. See Davila v. Merit System Council, 15 P.3d 781 (Colo.App.2000); Baker v. City of Dacono, 928 P.2d 826 (Colo.App.1996); Crawford v. State, 895 P.2d 1156 (Colo.App.1995); Buzick v. Public Employees' Retirement Ass'n, 849 P.2d 869 (Colo.App.1992)(employees' complaint was time barred even assuming it sounded in contract). In each of those cases, however, an administrative hearing had been held, and the final agency action at issue arose out of that hearing. Here, by contrast, there was no agency hearing, but simply a proceeding before a panel of arbitrators. Moreover, in none of those cases is there any indication that the parties had entered into a contract that included the provisions at issue here.

Finally, even if the contract could be read as permitting the Chief Engineer to characterize his letter as "final agency action," the letter still would not trigger the running of the thirty-day period for judicial review.

The contract provision set forth above precluded CDOT from using the letter as a basis for seeking dismissal of Castle Rock's contract action. Although, as CDOT points out, CRE 408 does not make offers of settlement inadmissible for all purposes, the parties' contract goes further than the rule and provides that the Chief Engineer's conclusions "shall not be admissible in any court of law" and shall be "inadmissible in any litigation." The contract does not provide for any exception to these broad statements.

Consistent with these requirements, plaintiffs did not reference the Chief Engineer's letter in their complaint or submit it as an attachment. CDOT was similarly precluded from relying on it in support of its motion to dismiss.

In sum, plaintiffs were not required to file an action for judicial review within thirty days of receipt of the Chief Engineer's letter in order to preserve their right to seek relief for CDOT's alleged breach of contract. The trial court accordingly erred in granting CDOT's motion to dismiss.

In light of our resolution of this issue, we do not address plaintiffs' additional contentions.

The judgment is reversed, and the case is remanded with directions to reinstate plaintiffs' complaint.

Judge GRAHAM and Judge CRIS-WELL , concur.


author: Judge ROY.

text:
    The PEOPLE of the State of Colorado, In the Interest of H., an unborn Child, Upon the Petition of the Fremont County Department of Human Services, Petitioner-Appellant, and Concerning A.H., Respondent, Appellee.
    No. 02CA1505.
    Colorado Court of Appeals, Div. III.
    May 22, 2003.
    Certiorari Denied Aug. 4, 2003.
    Rocco F. Meconi, P.C., Rocco F. Meconi, Joanna K. Smith, Canon City, Colorado, for Petitioner-Appellant.
    Priscilla J. Gartner, Pueblo, Colorado, for Respondent-Appellee.
   Opinion by

Judge ROY.

In this dependency and neglect proceeding concerning A.H. (mother) and her then unborn child, the county appeals a court order dismissing the petition for lack of subject matter jurisdiction. We affirm.

On April 5, 2002, the county filed a petition in dependency and neglect concerning "Unborn Baby Boy H.," whose due date was alleged to be July 27, 2002. The petition further alleged that the child "resided" with mother and that the child was dependent or neglected as a result of mother's methamphetamine use. On June 3, 2002, mother filed a motion to dismiss for lack of jurisdiction, alleging that the unborn child was not a child within the meaning of § 19-1-103(18), C.R.9.2002. After hearing argument, the trial court granted the motion.

At the outset, the parties agree that this case is not moot, although mother has given birth to the child and the relief sought, if granted, would have no practical legal ef-feet. Two exceptions to mootness are that the matter is capable of repetition yet evading review and that the case involves a matter of great importance or recurring constitutional violation. See Carney v. Civil Service Comm'n, 30 P.3d 861 (Colo.App.2001). We agree that both exceptions apply to this case.

The Colorado Children's Code (Code) vests exclusive original jurisdiction in the "juvenile court" over proceedings "[cloncerning any child who is neglected or dependent, as set forth in section 19-8-102." Sections 19-1-108(70), 19-1-104(1)(b), C.R.8.2002. Unless the context of the Code requires otherwise, a "child" is "a person under eighteen years of age." Sections 19-1-103(18), C.R.S.2002. The Code does not define "person," and the general definition is not of any assistance. See § 2-4-401(8), C.R.8.2002.

The court must give effect to the intent of the legislature and adopt the construction that best effectuates the purposes of the statutory scheme. M.S. v. People, 812 P.2d 632 (Colo.1991). To determine intent, a court should look first to the language of the statute and give the words their ordinary meaning. Catholic Charities & Community Services in Interest of C.C.G., 942 P.2d 1380 (Colo.App.1997). Statutes are presumed to be written "in plain, nontechnical language and in a clear and coherent manner using words with common and everyday meaning which are understandable to the average reader." Section 22-801, C.R.S.2002. A court also must presume that the legislature intended a just and reasonable result and avoid a statutory interpretation which leads to absurd results. People in Interest of A.R.M., 832 P.2d 1093 (Colo.App.1992). When a statute is amended, an intent to change the law is generally presumed. In re Fort Lupton Park & Recreation District, 800 P.2d 1324 (Colo.App.1990).

Our research indicates that the earliest relevant statute defined a dependent or neglected child as "any child under 16 years of age" meeting certain additional criteria. Colo. Sess. Laws 1907, ch. 168, § 1 at 861. The definition was amended in 1923 to read "any child under the age of eighteen years" meeting certain additional criteria, and the statute then further stated that "[the laws of this State concerning dependent or neglected children or persons who cause, encourage or contribute thereto, shall be construed to include all children under the age mentioned herein from the time of their conception and during the months before birth." Colo. Sess. Laws 1923, ch. 77, § 1 at 204-05 (emphasis added). In 1967, the General Assembly repealed the prior statutes dealing with dependent and neglected children and then reenacted them, with amendments, as the Code and defined "child" as simply a person "under the age of eighteen years of age," unless the context otherwise requires. Colo. Sess. Laws 1967, ch. 443, § 22-1-8(8) at 994.

We conclude that by amending the applicable definition in 1967 to remove any reference to an unborn child, the General Assembly intended to change the law. See In re Fort Lupton Park & Recreation District, supra. - Following that amendment, the statute applies only to a child after birth.

Contrary to the county's argument, Metzger v. People, 98 Colo. 133, 53 P.2d 1189 (1936), and People v. Estergard, 169 Colo. 445, 457 P.2d 698 (1969), do not, in our view, require a different conclusion.

In Metzger v. People, supra, the county instituted an action against an unborn child's father for refusing to provide support for the mother. The defendant challenged the jurisdiction of the court on the grounds that the statute was unconstitutional under article V, section 21 of the Colorado Constitution, which requires that all legislation, except appropriations, have a title that embraces the content.

The supreme court concluded that the statute was constitutional and, applying the 1928 definition of "child," further concluded that the courts had jurisdiction immediately upon conception. The court stated:

No violence is done to the orderly process of the rational mind by letting the word "child" include a human being immediately upon conception and during the period of pregnancy, as well as one actually born. It is no longer doubted that the months of prenatal existence are tremendously important ones from the standpoint of human welfare. The physical and mental conditions surrounding the expectant mother are vital factors in the unfolding life of the child itself. Her lack of adequate nourishment and shelter, her bodily discomforts and hardships, the worries of mind usually accompanying the tragic situation which confronts us in such a case as this, are a proper basis for compelling the father of the unborn child to remove at least some of the disadvantages in these conditions. He has brought them upon the woman and thereby jeopardized the health and safety of his offspring as a future citizen of the community.

Metzger v. People, supra, 98 Colo. at 137-38, 53 P.2d at 1191.

The Metzger court recognized the importance of proper prenatal care for the welfare of both the mother and the unborn child, and the county places some reliance on the quoted language. However, Metzger is easily distinguished because that case dealt with the 1928 version of the statute, which specifically included unborn children in the definition of dependent and neglected children.

In People v. Estergard, supra, the People brought a paternity proceeding under the Code to obtain child support, alleging that the defendant was the father of an unborn child. The defendant challenged the court's jurisdiction over the parent of an unborn child under the 1967 amendment. The court, relying on the introductory language in the definitional section permitting consideration of the context of the statute, concluded that, for paternity purposes, the court had jurisdiction prior to birth.

The context was the Vital Statistics Act, Colo. Sess. Laws 1967, ch. 445 at 1056, which was enacted during the same session as the Code, and which required birth certificates to be filed within seven days of birth. That act further provided that if the mother was not married at the time of birth or conception, the name of the father "shall be entered if, but only if, the mother and the person to be named as the father so request in writing or if paternity has been determined by a court of competent jurisdiction." - Colo. Sess. Laws 1967, ch. 445, § 66-8-12(8) at 1060 (emphasis added). The court reasoned that paternity could not be litigated within seven days of birth, and, therefore, the legislature must have contemplated that paternity actions could be brought prior to birth.

We conclude that, because the court in People v. Estergard considered materials outside the definition and the Code for context, the opinion must be read narrowly. We are not aware of any comparable context that would permit or dictate the expansion of the definition of "child" for dependency and neglect proceedings to include an unborn child.

The purpose of a dependency and neglect proceeding is to establish the basis for ongoing state intervention when a child lacks the benefit of parental guidance, concern, protection, or support. L.L. v. People, 10 P.3d 1271 (Colo.2000); L.G. v. People, 890 P.2d 647 (Colo.1995); People in Interest of O.E.P., 654 P.2d 312 (Colo.1982). The remedies expressly provided for in the Code support our conclusion that such proceedings are not intended to protect the unborn child. The petition in dependency and neglect proceeding must set forth the name, age, and residence of the child. See § 19-3-502(2), C.R.S. 2002. The dispositional provisions that, inter alia, provide for placement of the child apart from the parents, would indicate that such proceedings do not include the unborn child. See § 19-3-508, C.R.S.2002. There are no remedies in the Code appropriate to an unborn child or designed to restrict the conduct of a pregnant woman. Indeed, at oral argument, the county stated that after the court orders the mother to abstain from taking illegal drugs or engaging in other barmful activity, only the general remedy of contempt is available.

In contrast, several state courts have construed the word "child" to include an unborn child in dependency and neglect proceedings premised on the parent's prenatal conduct. However, in each instance, the proceedings were commenced following the birth of the child. See In re Baby X, 97 Mich.App. 111, 293 N.W.2d 736 (1980); In re Smith, 128 Misc.2d 976, 492 N.Y.S.2d 331 (N.Y.Fam.Ct.1985); In re Baby Boy Blackshear, 90 Ohio St.3d 197, 736 N.E.2d 462 (2000); In re Ruiz, 27 Ohio Misc.2d 31, 500 N.E.2d 935 (Ct.Com.Pl.1986); In re U.P., 105 S.W.3d 222, 2003 WL 1901277 (Tex.App. No. 14-02-00126-CV, Apr. 17, 2003).

However, where, as here, the controlling statute does not specifically include the unborn child within its protection and the proceeding was commenced prior to the child's birth, most state courts have found jurisdiction lacking. See In re Pima County Juvenile Severance Action No. S-120171, 183 Ariz. 546, 905 P.2d 555 (Ariz.Ct.App.1995); Arkansas Dep't of Human Services v. Collier, 351 Ark. 506, 95 S.W.3d 772 (2003); In re Steven S., 126 Cal.App.3d 23, 178 Cal.Rptr. 525 (1981); In re Dittrick Infant, 80 Mich.App. 219, 263 N.W.2d 37 (1977); Cox v. Court of Common Pleas, 42 Ohio App.3d 171, 537 N.E.2d 721 (1988); State v. Kruzicki, 209 Wis.2d 112, 561 N.W.2d 729 (1997). Contra In re Unborn Child, 179 Misc.2d 1, 683 N.Y.S.2d 366 (N.Y.Fam.Ct.1998).

Finally, nothing in Espadero v. Feld, 649 F.Supp. 1480 (D.Colo.1986), or Pizza Hut of America, Inc. v. Keefe, 900 P.2d 97 (Colo.1995), requires an unborn child to be included in the definition of "child" in the context of a dependency and neglect proceeding. Those cases hold that "person" within the meaning of the wrongful death statutes includes a viable fetus,. Thus, Espadero and Pizza Hut are inapposite here. See Cox v. Court of Common Pleas, supra; State v. Kruzicki, supra.

Having so concluded, we need not address mother's argument that an intrusion by the state prior to birth violated her right to privacy. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).

The order is affirmed.

Chief Judge DAVIDSON and Judge WEBB concur.


author: Judge DAILEY.

text:
    The PEOPLE of the State of Colorado, In the Interest of A.W.; R.D., Jr.; M.D.; and V.D., Children, Upon the Petition of the El Paso County Department of Human Services, Petitioner-Appellee, and Concerning S.D., Respondent-Appellant, and R.D., Respondent.
    No. 02CA1071.
    Colorado Court of Appeals, Div. IV.
    May 22, 2003.
    Certiorari Denied Aug. 4, 2003.

      Gerald A. Kimble, Ir., Guardian Ad Litem.
    No Appearance for Petitioner-Appellee.
    Davide C. Migliaccio, Colorado Springs, Colorado, for Respondent-Appellant.
    Roberta Earley, Colorado Springs, Colorado, for Respondent.

       Justice KOULIS would grant the petition as to the following issue:
      Whether the trial court was entitled to hold a termination hearing after the second six month extension under C.R.S. 19-3-505(5) In a Dependency and Neglect Proceeding.

   Opinion by

Judge DAILEY.

S.D. (mother) appeals from a judgment terminating the parent-child legal relationship between her and her children, A.W., R.D., Jr., M.D., and V.D. We affirm.

The petition in dependency or neglect was filed on February 9, 2000. During the adjudicatory hearing held on May 5, 2000, mother entered a no fault admission to the petition under § 19-38-102(1)(e), C.R.98.2002. Pursuant to her request, the trial court continued the adjudicatory hearing for a period of one year as permitted by § 19-8-505(5)(b), C.R.S.2002, and approved a treatment plan as a condition of the continuance.

On February 5, 2001, the People filed a motion to adjudicate the children, alleging that mother had failed to comply with the treatment plan, and a motion to terminate mother's parental rights. During a review hearing on February 9, 2001, the trial court accepted the parties' agreement to hear the motion to adjudicate on the same day as the termination hearing. The hearing was set for March 7, 2001.

Thereafter, the trial court granted several continuances of the hearing, during which time it conducted periodic review hearings. Mother sought all but one of the continuances, and she did not object to the continuance requested by the People.

At the beginning of the hearing on January 15, 2002, the trial court bifurcated the proceeding, addressing the motion to adjudicate first and then the motion to terminate. Again, mother did not object to the manner in which the hearing was conducted. On April 11, 2002, the trial court signed an order adjudicating the children dependent or neglected. A written order of termination was signed on April 25, 2002.

Mother contends that the trial court did not have subject matter jurisdiction to conduct the January 15, 2002, hearing or to enter an order of termination. She argues that the trial court lost jurisdiction when it failed either to enter an adjudicatory order or to dismiss the proceeding after continuing the adjudicatory hearing for two six-month periods. We disagree.

Pursuant to § 19-3-505(5), C.R.98.2002, a trial court may continue the adjudicatory hearing upon the parties' consent when it finds that the allegations of the petition in dependency or neglect have been established by a preponderance of the evidence. However, under § 19-3-05(5)(b), "Such continuation shall extend no longer than six months without review by the trial court. Upon review, the court may continue the case for an additional period not to exeeed six months, after which the petition shall either be dismissed or sustained."

In People in Interest of K.M.J., 698 P.2d 1380 (Colo.App.1984), a division of this court held that expiration of the second six-month continuance period set forth in a former codification of § 19-8-505(5)(b) did not operate to divest a trial court of subject matter jurisdiction over the case. The trial court could, the division said, still rule after expiration of the second six-month period: "What the statute does not allow is the court to continue hearings beyond the second six month continuance." Thus, the division held that a trial court "can hold hearings on the petition for a maximum of two six-month periods after which it can take no other action than either to dismiss or sustain the petition." People in Interest of K.M.J., supra, 698 P.2d at 1382.

The issue in this case is whether the trial court exceeded its jurisdiction by conducting a hearing outside the time frame permitted by § 19-3-505(5)(b). 'We conclude it did not.

"A procedural statute or a court rule normally does not address jurisdictional issues; restrictions upon a court's jurisdiction are generally to be found in statutes directly addressing that subject." Levin v. Anouna, 990 P.2d 1136, 1138 (Colo.App.1999).

In People in Interest of R.W., 989 P.2d 240, 242 (Colo.App.1999), aff'd sub nom. L.L. v. People, 10 P.3d 1271 (Colo.2000), a division of this court rejected the contention that a trial court acted without jurisdiction in conducting a permanency hearing outside the statutorily prescribed period. The division reached this conclusion based upon its consideration of the underlying purposes of the Children's Code and the statutory directive, contained in § 19-1-102(2), C.R.S8.2002, to liberally construe the provisions of the Children's Code "to serve the welfare of children and the best interests of society." See also P.F.M. v. Dist. Court, 184 Colo. 393, 397, 520 P.2d 742, 745 (1974)(failure to meet the 48-hour detention hearing mandated by statute held not jurisdictional); People in Interest of A.M., 786 P.2d 476, 478 (Colo.App.1989)(failure to file dependency and neglect petition within seven days as required by rule held not jurisdictional).

The paramount purpose of § 19-3-505(5)(b) is to ensure that courts "proceed with all possible speed to a legal determination that will serve the best interests of the child." Section 19-1-102(1)(c), C.R.8.2002. Because that purpose presupposes some flexibility in determining the best interests of a child, we do not construe § 19-8-505(5)(b)'s twelve-month time limit for holding a hearing to be jurisdictional.

Accordingly, we conclude the trial court's failure to follow the statutory requirement of § 19-3-505(5)(b) was "an erroneous decision not affecting jurisdiction." People in Interest of Clinton, 762 P.2d 1381, 1387 (Colo.1988). However, because mother joined in the motion that, when granted, continued the matter beyond the twelve-month period, she is not entitled to relief on appeal. See Hoyman v. Coffin, 916 P.2d 311, 313 (Colo.App.1998)("As a general rule, non-jurisdictional issues not raised in the trial court are deemed waived and will not be considered on appeal."). .

We also reject mother's contention that termination under § 19-3-604(1)(c), C.R.S. 2002, was improper simply because the adjudicatory order had not been reduced to writing, dated, and signed at the time of the hearing. See People in Interest of J.M., 74 P.3d 475, —, 2003 WL 21026926 (Colo.App. No. 02CA1318, May 8, 2003)(issue is whether there was an adjudicatory order, not whether it was reduced to writing, dated, and signed).

Accordingly, the judgment is affirmed.

Judge ROTHENBERG and Judge KAPELKE concur.


author: Judge GRAHAM.

text:
    Ronald E. WHEELER, Plaintiff-Appellant, v. T.L. ROOFING, INC., Defendant-Appellee.
    No. 02CA0713.
    Colorado Court of Appeals, Div. I.
    May 22, 2003.
    Rehearing Denied July 3, 2003.

      Shand, Newbold & Chapman, P.C., Paul W. Whistler, Durango, Colorado, for Plaintiff-Appellant.
    Gregory & Golden Attorneys at Law, Daniel A. Gregory, Durango, 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.2002.

   Opinion by

Judge GRAHAM.

Plaintiff, Ronald E. Wheeler, appeals the trial court's order awarding attorney fees and costs to defendant, TL. Roofing, Inc. We affirm and remand for an award of defendant's appellate attorney fees.

In January 1996, defendant, a subcontractor, entered into an agreement with plaintiff to construct a standing seam roof. The agreement contained a fee-shifting provision: "In the event of a breach of this agreement by either party, the breaching party shall pay all reasonable attorney's fees, collection fees and costs of the other party incident to any action brought to enforce this agreement."

Defendant's scope of work was limited to the installation of snap-lock, standing seam metal panels and certain flashing,. Other subcontractors also performed work on the roof. Plaintiff acted as his own general contractor.

Defendant completed all work under the contract in March 1996. When plaintiff failed to pay for the work performed, defendant filed a lien against plaintiff's property and a small claims action seeking the amount due under the contract.

In July 1996, the parties reached an agreement under which plaintiff would pay $600 per month for three months as a full and final settlement, commencing in August, and defendant would dismiss the lien and small claims action. The trial court determined that this settlement agreement was an execu-tory accord.

Although defendant complied, in August 1996, plaintiff informed defendant that he would pay only if defendant completed additional work that was not part of the original contract. The cost of the additional work was $479.

In January 1997, plaintiff informed defendant that in October 1996 he noticed that the roof was leaking. Plaintiff asserted that the leak caused over $33,000 in damages, including the cost to remove and replace the roof.

Plaintiff filed a complaint against defendant alleging breach of contract, breach of an express and implied warranty, negligence, and deceptive trade practices. Plaintiff asserted that the roof leaked as a result of defendant's defective installation and poor workmanship.

Defendant filed a counterclaim alleging breach of contract for failure to pay and sought $1,922.76, the balance due under the original contract. Although defendant denied liability, it submitted a $10,000 statutory offer of settlement to settle any and all claims made by plaintiff. Plaintiff rejected the offer.

Before trial, the court dismissed plaintiff's negligence and deceptive trade practices claims on summary judgment.

The trial court found that there was no evidence to demonstrate that the leaks, or the repairs made, were the result of work performed by defendant, noting that defendant was only responsible for the installation of the metal roof panels and that it had no responsibility for the underlayment, which included the decking, ice and water shield, and felt, The court concluded that any defects in defendant's work were minor, did not ecause the leak, and did not cause the complete removal of the old roof and installation of a new one. The court viewed this question as a fundamental issue in the case.

The court also determined that the installation method used by defendant complied with an acceptable standard for workmanship.

As to defendant's breach of contract counterclaim, the court found that plaintiff's insistence on the performance of additional work constituted a breach of the executory accord, and thus, defendant was entitled to make a claim under the original contract.

The court concluded that defendant performed its obligations under the contract, except for missing clips and some improperly snapped seams, and that plaintiff had breached the agreement.

The trial court then awarded defendant $2,401.76, which included $1,922.76 for the balance remaining under the original contract and $479.00 for the additional work that was outside the scope of the original contract.

The court found that defendant's minor breach related to materials and workmanship concerning "missing Z clips" and "seams on the roof which were not snapped properly" and awarded plaintiff $400, the cost of repair damages.

Both parties asserted that they were entitled to attorney fees under the fee-shifting clause of the parties' contract. Defendant also contended that it was entitled to attorney fees because plaintiff's negligence and deceptive trade practices claims were frivolous.

The trial court concluded that defendant was the prevailing party under the net judgment rule referred to in Denuis I. Spencer Contractor, Inc. v. City of Aurora, 884 P.2d 326, 3831 n. 11 (Colo.1994), and was therefore entitled to recover attorney fees and costs. In so holding, the court determined that, although plaintiff alleged and proved breach by defendant of its warranty obligations, he did not prevail on his principal assertion that the breaches justified removing the roof and entirely replacing it.

The court thus determined that defendant was entitled to attorney fees and all costs incurred in defending plaintiffs claim for damages in removing and replacing the roof. However, the court noted that, because $479 of defendant's recovery was not pursuant to a contract with a fee-shifting provision, attorney fees could not be awarded for the work allocated to that claim.

The trial court also found that plaintiff's negligence and deceptive trade practices claims lacked substantial justification and awarded defendant attorney fees and costs for defending against these claims,. Defendant was awarded $25,725 in attorney fees and $5,313.87 in costs. This appeal followed.

I. Fee-shifting Provision

Plaintiff contends that the trial court erred in finding that defendant was the prevailing party and entitled to attorney fees and costs under the net judgment rule. Plaintiff maintains that, because he succeeded on the merits of his claim for breach of warranty, he was entitled to an award of attorney fees and costs pursuant to the express language of the fee-shifting provision in the contract. We disagree.

A. Prevailing Party

We first reject the notion that the fee-shifting provision here somehow barred the trial court from determining who was the prevailing party.

Plaintiff suggests that the fee-shifting provision is couched in terms of "breaching," as opposed to "prevailing," and therefore the court erred in finding that defendant prevailed. However, both parties and the court treated the provision as one that shifted the risk of incurring fees to the losing party. In this litigation, the parties indicated no practical difference between the concepts of awarding fees against a breaching party and awarding fees to the prevailing party.

Plaintiff's trial briefs argued that "[he] had established Hability" and "that attorney's fees are recoverable by the party who prevails on lability." In that same vein, defendant urged in its trial brief that it had "prevailed" and that "plaintiff cannot be considered a prevailing party." We decline to give the contract an interpretation different from that given by the parties in the trial court. See Fire Ins. Exch. v. Rael, 895 P.2d 1139 (Colo.App.1995).

B. Attorney Fees

We also reject plaintiffs contention that there can be two prevailing parties where both parties breach the contract.

In the absence of a specific statute, court rule, or contract provision to the contrary, attorney fees are not recoverable by a prevailing party in a contract or tort action. Bernhard v. Farmers Ins. Exch., 915 P.2d 1285 (Colo.1996); Grynberg v. Agri Tech, Inc., 985 P.2d 59 (Colo.App.1999), aff'd, 10 P.3d 1267 (Colo.2000).

Fee-shifting provisions are expressly designed to reject the otherwise applicable rule that the losing party does not have to pay the winner's attorney fees. This contractual balancing is not intended to result in each side paying the other's fees. Instead, these provisions generally contemplate that the prevailing party will be entitled to recover its attorney fees and that there will be one winner and one loser regarding payment of those fees. However, we recognize that, in a proper case, the trial court may rule that neither party prevailed and award no fees. See Denmis I. Spencer Contractor, Inc. v. City of Aurora, supra (under contractual fee-shifting provision, a party in whose favor the decision is rendered is the prevailing party).

We further conclude that the court did not abuse its discretion in applying a net judgment analysis to determine the prevailing party.

Here, the trial court awarded defendant attorney fees as the prevailing party under the holding of Dennis I. Spencer Contractor, Inc. v. City of Aurora, supra. The determination of which party prevailed is committed to the discretion of the trial court and is subject to an abuse of discretion standard of review on appeal. Dennis I. Spencer Contractor, Inc. v. City of Aurora, supra, 884 P.2d at 328 n. 6 (citing Smith v. Freeman, 921 F.2d 1120, 1122 (10th Cir.1990)).

The Spencer Contractor court ruled that a party prevails if the issue of liability is resolved in its favor, even where damages are not awarded. There, the contract called for the contractor to build a sewer line. Unexpected delays and disputes over the contractor's role in those delays resulted in a settlement agreement, which Aurora breached. Although Aurora was successful in arguing that no damages resulted from its breach of the settlement agreement, the supreme court held that "awarding attorney fees to Aurora would effectively confer a benefit upon a party for violating its own agreement." Thus, the court held that "where a claim exists for a violation of a contractual obligation, the party in whose favor the decision or verdict on liability is rendered is the prevailing party for purposes of awarding attorney fees," Dennis I. Spencer Contractor, Inc. v. City of Aurora, supra, 884 P.2d at 330, 332.

The court rejected the argument that to prevail, a party must succeed on a significant issue in the case and achieve some of the benefits that it sought in the lawsuit. See Overland Dev. Co. v. Marston Slopes Dev. Co., 773 P.2d 1112 (Colo.App.1989).

Plaintiff argues that the trial court abused its discretion in finding that defendant prevailed because this finding necessarily ignores the holding in Spencer Contractor and the fact that plaintiff prevailed on his claim of breach and recovered damages. We are not persuaded.

In Spencer Contractor, the supreme court referred to the net judgment rule expressed in Harris Market Research v. Marshall Marketing & Communications, Inc., 948 F.2d 1518 (10th Cir.1991). However, it determined not to resolve adoption of the net judgment rule in the case before it because Aurora had breached both the construction agreement and the settlement agreement. Dennis I. Spencer Contractor, Inc. v. City of Aurora, supra, 884 P.2d at 331 n. 11; cf. Harris Mkt. Research v. Marshall Mktg. & Communications, Inc., supra, 948 F.2d at 1528 (giving deference to the trial court's application of a net judgment analysis and recognizing that "there can be only one prevailing party and one award of attorneys' fees"). We agree that, where both parties have prevailed in part on the question of liability, the trial court is free to determine which is prevailing for purposes of applying a fee-shifting agreement.

Here, the trial court was in the best position to determine which party ultimately prevailed. See Dennis I. Spencer Contractor, Inc. v. City of Aurora, supra; Szoboszlay v. Glessner, 233 Kan. 475, 664 P.2d 1327 (1983). We therefore conclude that the trial court did not abuse its discretion in ruling that defendant prevailed on the central issue in dispute.

C. - Costs

Both parties sought costs pursuant to the fee-shifting agreement and CRCP. 54(d). We perceive no error in the award to defendant.

C.R.C.P. 54(d) provides, in pertinent part, that "[elxeept when express provision therefor is made either in a statute of this state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs."

Based on the same reasoning we have applied to the award of attorney fees, we conclude that an award of costs to a single prevailing party is justified where both parties prevail on some aspect of the issues in dispute. Thus, the trial court properly exercised its discretion in awarding costs to defendant as the prevailing party.

Although we recognize that defendant made a statutory offer of settlement pursuant to § 13-17-202, C.R.S.2002, we do not need to address its impact here because the trial court determined, and we agree, that defendant was the prevailing party for the purposes of an award of costs under the fee-shifting provision and C.R.C.P. 54(d).

II. Frivolous and Groundless Claims

Plaintiff also contends that the trial court abused its discretion in awarding defendant attorney fees and costs under § 13-17-101, C.R.S.2002, in connection with plaintiff's negligence and deceptive trade practices claims. We disagree.

The determination whether a claim or defense is groundless or frivolous under § 18-17-102, C.R.8.2002, is within the discretion of the trial court, whose decision will not be disturbed on appeal if supported by the record. Schoonover v. Hedlund Abstract Co., 727 P.2d 408 (Colo.App.1986).

A claim or defense is groundless if the allegations of the complaint, although sufficient to survive a motion to dismiss for failure to state a claim, are not supported by any credible evidence. W. United Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo.1984); Travers v. Rainey, 888 P.2d 372 (Colo.App.1994). A claim is "groundless" if the proponent has a valid legal theory, but can offer little or no evidence to support the claim. Bilawsky v. Faseehudin, 916 P.2d 586 (Colo.App.1995).

A claim or defense is frivolous if the proponent cannot present a rational argument based on the evidence or law in support of that claim or defense. W. United Realty, Inc. v. Isaacs, supra. However, this test does not apply to legitimate attempts to establish a new theory of law or good faith efforts to extend, modify, or reverse existing law, even if the proponent does not prevail. Section 13-17-102(6), C.R.8.2002; W. United Realty, Inc. v. Isaacs, supra.

A. - Negligence Claim

Plaintiff argues that, because the economic loss doctrine was unsettled in Colorado when he filed his complaint, the trial court abused its discretion in finding that his negligence claim lacked substantial justification under that doctrine. We are not persuaded.

A division of this court first adopted the economic loss rule in Jardel Enterprises, Inc. v. Triconsultants, Inc., 770 P.2d 1301 (Colo.App.1988). There, a restaurant owner was not allowed to bring a negligence claim against a subcontractor for lost profits resulting from the delayed opening of the restaurant when the subcontractor misread the building plans and constructed the building foundation in the wrong location. The division cited the economic loss rule as the basis for its holding:

As a general rule, no cause of action lies in tort when purely economic damage is caused by negligent breach of a contractual duty. This economic loss rule prevents recovery for negligence when the duty breached is a contractual duty and the harm incurred is the result of failure of the purpose of the contract.

Jardel Enters., Inc. v. Triconsultants, Inc., supra, 770 P.2d at 1303 (citation omitted).

Here, the trial court reasoned that there were numerous court of appeals decisions establishing the economic loss principle and that plaintiff did not present any good faith argument for modification or reversal of the existing law. The court also determined that plaintiff did not allege a breach of duty existing independently of the contract.

Although the supreme court had not yet announced Town of Alma v. Azco Construction, Inc., 10 P.3d 1256 (Colo.2000), and Grynberg v. Agri Tech, Inc., 10 P.3d 1267 (Colo.2000), when plaintiff filed his complaint, divisions of this court had already applied the economic loss rule in a number of cases. See, eg., Terrones v. Tapia, 967 P.2d 216 (Colo.App.1998)(the economic loss rule bars negligence claim for lost profits as a result of restaurant owner's inability to use drive through window); Chellsen v. Pena, 857 P.2d 472 (Colo.App.1992)(economic loss rule bars action for negligent termination of employment); Scott Co. v. MK-Ferguson Co., 832 P.2d 1000 (Colo.App.1991)(the rule bars subcontractor's negligence claim because no independent duty was breached); Centennial Square, Ltd. v. Resolution Trust Co., 815 P.2d 1002 (Colo.App.1991)(upholding dismissal of borrowers' negligence claim against lender because no independent duty was breached); of Consol. Hardwoods, Inc. v. Alexander Concrete Constr., Inc., 811 P.2d 440 (Colo.App.1991)(allowing homeowner's negligence claim against subcontractor because independent duty was breached).

Here, plaintiff based his negligence claim on defendant's alleged failure to use the degree of skill and care required under the contract. - This duty arose from the contract, which expressly provided that the work be done in a workmanlike manner according to industry standards. Thus, plaintiff's negligence claim was not based on an independent duty of care under tort law, but was based on the warranties and promises of the contract.

Furthermore, plaintiff did not advance a theory of damages other than economic damages, and he did not attempt to establish a new theory of law or to extend, modify, or reverse existing law regarding the economic loss rule.

We therefore conclude that the trial court did not abuse its discretion in finding that plaintiff's negligence claim was frivolous and groundless and in awarding attorney fees to defendant for defending that claim.

B. Deceptive Trade Practices Claim

We also reject plaintiff's contention that he established a good faith factual basis upon which to pursue a deceptive trade practices claim.

To prove a private cause of action under the Colorado Consumer Protection Act, § 6-1-101, et seq., C.R.S$.2002, for deceptive trade practices, a plaintiff must show that: (1) the defendant engaged in an unfair or deceptive trade practice; (2) the challenged practice occurred in the course of the defendant's business, vocation, or occupation; (3) it significantly impacted the public as actual or potential consumers of the defendant's goods, services, or property; (4) the plaintiff suffered injury in fact to a legally protected interest; and (5) the challenged practice caused the plaintiff's injury. Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d 142, 146-147 (Colo.2003); Hall v. Walter, 969 P.2d 224 (Colo.1998).

Section 6-1-118(8), C.R.S.2002, provides:

Any person who brings an action under this article that is found by the court to be groundless and in bad faith or for the purpose of harassment shall be lable to the defendant for the costs of the action together with reasonable attorney fees as determined by the court.

Here, the trial court found that plaintiff presented no evidence to support his deceptive trade practices claim. Specifically, the court noted that plaintiff "did not allege, nor is there any showing in any factual material submitted by the parties that the alleged conduct of [defendant] significantly impacts the public as an actual or potential consumer."

We agree. Thus, we conclude that the trial court did not abuse its discretion in finding that plaintiffs deceptive trade practices claim was frivolous and groundless and in awarding attorney fees to defendant for defending that claim.

III. Appellate Fees

On appeal, defendant requests attorney fees pursuant to C.A.R. 38(d) and the fee-shifting provision of the contract. Although we disagree with defendant's assertion that the appeal was frivolous, groundless, or prosecuted for the purpose of harassment or delay, see In re Custody of C.J.S., 37 P.3d 479 (Colo.App.2001), defendant is entitled to an award of appellate fees under the contract because it has prevailed.

The order is affirmed. The case is remanded to the trial court to determine and award the attorney fees associated with this appeal to which defendant is entitled.

Judge VOGT and Judge CRISWELL , concur.


author: Judge METZGER.

text:
    In re the MARRIAGE OF Patrick M. PHELPS, Appellant, and Cheryl ROBINSON, Appellee.
    No. 02CA0354.
    Colorado Court of Appeals, Div. A.
    May 22, 2003.

      Kraemer & Golden, P.C., Randy Golden, Michael M. O'Brien, Fort Collins, Colorado, for Appellant.

      Jennifer I. Holt, Denver, Colorado, for Ap-pellee.

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

   Opinion by

Judge METZGER.

Patrick M. Phelps appeals the magistrate's order determining that he is not married at common law to Cheryl Robinson. We dismiss the appeal for lack of a final order and remand the case for further proceedings.

In March 2001, Phelps filed a petition for dissolution of what he alleged was the parties' common law marriage. Robinson answered that the parties had cohabited, but were unmarried, and she requested a determination that the parties were not married at common law.

A May 2001 minute order reflects that the parties consented to the magistrate's resolution of the issue whether a common law marriage existed. After an evidentiary hearing, the magistrate entered a written order in December 2001 finding that the parties were not married at common law and dismissing Phelps' action for dissolution.

Fifteen days later, Phelps filed a motion for reconsideration, or alternatively, for amendment of the judgment. Finding that the December order did not accurately reflect the bench ruling, the magistrate, in a January 2002 order, vacated the first order and adopted the transcript of the bench ruling as the order.

Phelps then filed a notice of appeal directly with this court, alleging that the magistrate erred in finding no common law marriage existed. This court ordered Phelps to show cause why the appeal should not be dismissed for failure to seek timely district court review of the magistrate's order. A motions division of this court deferred ruling on the order to show cause and ordered the parties to brief the issue whether Phelps was required to seek review in the district court before filing an appeal in this court.

L.

Phelps contends that the status of marriage is a "civil" matter governed by the Uniform Marriage Act, § 14-2101, et seq., C.R.S.2002(UMA), and, because the parties consented to having this "civil" issue heard by the magistrate, district court review of the magistrate's order was unnecessary. In contrast, Robinson argues that this is a "family law" matter falling under the Uniform Dissolution of Marriage Act, $ 14-10-101, et seq., C.R.S.2002 (UDMA), and, because the magistrate had authority to conduct the hearing on this "family law" matter regardless of the parties' consent, district court review was required before appeal. We agree with Robinson.

The proceedings before the magistrate occurred after January 1, 2000, and therefore this case is governed by the current Colorado Rules for Magistrates. See In re Marriage of Malewicz, 60 P.3d 772 (Colo.App.2002).

District court magistrates have different powers, depending on the type of case over which they preside. In civil cases, with the consent of the parties, a district court magistrate may perform any function except to preside over jury trials CRM. 6(0@. In family law cases, as pertinent here, a magistrate has the power, under the UDMA, to conduct hearings on motions regardless of the parties' consent. Section 13-5-801(8)(e), C.R.S.2002; C.R.M. 6(b); People ex rel. Garner v. Garner, 33 P.3d 1239 (Colo.App.2001).

In turn, different review procedures apply to these types of cases, depending on the requirement for consent. A magistrate's order in a civil matter, entered with the parties' consent, is subject to the expedited appellate procedure set forth in C.R.M. 7(b) and therefore may be appealed directly to this court. In contrast, while § 13-5-301(8)(e) gives the magistrate authority to hear a matter without regard to the consent of the parties, the magistrate's order must be reviewed by the district court reviewing judge pursuant to C.R.M. 7(a). Thus, the fact that the parties consented does not render the order subject to the expedited appellate procedure set forth in C.R.M. 7(b). In re Marriage of Malewicz, supra.

Here,, Phelps argues that, even though he brought this action as a dissolution proceeding, that portion of the case concerning the "status" of the marriage constituted a "civil" proceeding for purposes of C.R.M. 6 and 7. However, he premises this argument on the assumption that the UMA governs common law marriage cases. That premise is incorrect. A determination of the existence of a common law marriage is governed by the common law, not by the UMA. See, e.g., People v. Lucero, 747 P.2d 660 (Colo.1987) (setting forth the requirements for a common law marriage without mention of the UMA); Whitenhill v. Kaiser Permanente, 940 P.2d 1129 (Colo.App.1997)(same); see also Brush Grocery Kart, Inc. v. Sure Fine Mkt., Inc., 47 P.3d 680 (Colo.2002)(where no statute controls, common law applies).

The issue of the existence of a common law marriage arises in all types of cases. It frequently arises in the context of a dissolution proceeding under the UDMA. See In re Marriage of Cargill, 843 P.2d 1335 (Colo.1993)(in concluding that the term "remarriage" as used in § 14-10-122(2), C.R.8.2002, means the status of remarriage, court recognized that the definition of remarriage must take into account the fact that common law marriage is recognized in Colorado); In re Marriage of Gercken, 706 P.2d 809 (Colo.App.1985)(before granting dissolution, court found that the parties had entered into a common law marriage). However, the issue is also resolved in a host of other types of cases. See, e.g., People v. Lucero, supra (spousal testimonial privilege); Carter v. Firemen's Pension Fund, 634 P.2d 410 (Colo.1981)(entitlement to pension); Employers Mut. Liab. Ins. Co. v. Indus. Comm'n, 145 Colo. 91, 357 P.2d 929 (1960)(entitlement to workers' compensation benefits); In re Estate of Sky Dancer, 13 P.3d 1231 (Colo.App.2000)(determination of heirship); Whitenhill v. Kaiser Permanente, supro (right to bring wrongful death action).

We hold that, for purposes of C.R.M. 6 and 7, characterization of a common law marriage determination, hinges on the context in which the issue is raised. Where, as here, the common law marriage issue is related to an effort to dissolve the alleged marriage, it constitutes a "family law case," thereby implicating C.R.M. 6(b) and § 13-5-301(8), C.R.S8.2002. See People ex rel. Garner v. Garner, supra (motion for declaratory judgment, filed in dissolution of marriage case, seeking interpretation and clarification of a prior stipulation filed in the same case, does not convert the action from a family law matter to a civil matter for purposes of C.R.M. 6).

Here, because the action was brought by Phelps as a dissolution proceeding, Robinson's denial of the existence of a common law marriage did not change the character of the proceedings from a "family law case" to a "civil case" for purposes of C.R.M. 6(b) and § 13-5-301(8). Robinson's response to the petition for dissolution constituted, in effect, a motion for a ruling on a threshold issue, and therefore the magistrate could rule on that motion. - See § 18-5-301(8)(e)(V.5), C.R.S.2002. The fact that the parties consented to proceeding before a magistrate is irrelevant, because the magistrate had authority to hear Robinson's request regardless of that consent.

Accordingly, the magistrate's order is subject to review by the district court before an appeal to this court can lie.

IL.

Our conclusion that a motion for review was necessary here does not resolve the matter because we also conclude that there is not yet a final order in this case, and the case must therefore be remanded.

A magistrate is not authorized to act on a motion for reconsideration. See In re Marriage of Tonn, 53 P.3d 1185 (Colo.App.2002)(rules governing magistrates do not authorize any motion except a motion for district court review). Accordingly, the magistrate's entry of the January 2002 order, issued in response to Phelps's motion for reconsideration, was void.

However, because the motion for reconsideration was filed within fifteen days of the magistrate's first order, and was erroneously acted upon by the magistrate, we may construe the motion for reconsideration as a motion for district court review. See In re Marriage of Thiemann, 878 P.2d 159 (Colo.App.1994) (where a dissolution decree and order were signed by both the magistrate and the district court judge, and husband filed a motion for reconsideration fifteen days later, which was acted upon by the magistrate but not by the district court judge, appellate court treated the motion as a motion for review and remanded the matter to the district court for entry of a written order) of In re Estate of Hillebrandt, 979 P.2d 36 (Colo.App.1999)(where motion for reconsideration was acted upon by neither the magistrate nor the district court, and a separate motion for review was eventually filed, the motion for reconsideration could not be construed as a motion for review). On remand, the district court shall construe the motion for reconsideration as a motion for review, and, pursuant to C.R.M. 7(a)(2), either adopt, reject, or modify the magistrate's December 2001 order.

IIL.

Robinson requests attorney fees pursuant to C.A.R. 38(d) on the basis that the appeal is frivolous and groundless. However, inasmuch as that request is based on the merits of the appeal, which have not yet been reached, we deny the request without prejudice.

The appeal is dismissed without prejudice, and the case is remanded to the district court for a ruling on Phelps's motion to reconsider.

CASEBOLT and PIERCE , JJ., concur.

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