author: Opinion by Judge DAVIDSON.

text:
    William HENDERSON, Plaintiff-Appellant, v. MASTER KLEAN JANITORIAL, INC., Defendant-Appellee.
    No. 02CA0637.
    Colorado Court of Appeals, Div. III.
    April 10, 2003.

      Darrell S. Elliott, P.C., Darrell S. Elliott, Timothy P. McCaffrey, Kristen A. Spaeth, Denver, Colorado, for Plaintiff-Appellant.
    White & Steele, P.C., Kevin W. Hecht, Franz Hardy, Denver, Colorado, for Defendant-Appellee.
   Opinion by Judge DAVIDSON.

In this premises lability action, plaintiff, William Henderson, appeals from the summary judgment dismissing his complaint against defendant, Master Klean Janitorial, Inc. We affirm.

Plaintiff alleged that he was injured when he slipped and fell down a flight of stairs at his place of employment, a telephone call center in an office building which his employer leased from the building owner. Plaintiff asserted that as he descended the stairs from the second floor to the first, he slipped on water present on the steps.

Pursuant to the premises liability act, § 18-21-115, C.R.S.2002, plaintiff sued defendant, a contractor hired by the property manager on behalf of the owner to perform cleaning and maintenance services at the building. The complaint alleged, inter alia, that defendant was in possession and control of the premises, permitted a dangerous condition to exist, and failed to warn of the existence of the condition.

Defendant moved for summary judgment, which the trial court granted on two alternative bases: (1) defendant was not a landowner as defined under the act; and (2) as a matter of law, defendant did not breach the duty of care owed to plaintiff. Because we agree with the trial court that defendant did not breach the duty of care owed to plaintiff, we affirm.

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).

L.

Plaintiff first contends that the trial court erred in determining that defendant was not a "landowner" under § 13-21-115. We agree.

The premises liability act sets forth when a "landowner" may be held liable for the condition of or activities conducted on its property, Casey v. Christie Lodge Owners Ass'n, 923 P.2d 365 (Colo.App.1996), and provides the exclusive remedy against a landowner for injuries sustained on the landowner's property. Thornbury v. Allen, 991 P.2d 335 (Colo.App.1999); see also Sofford v. Schindler Elevator Corp., 954 F.Supp. 1459 (D.Colo.1997).

Under § 18-21-115(1), C.R.S.2002, a "landowner" is defined as including, "without limitation, an authorized agent or a person in possession of real property and a person legally responsible for the condition of real property or for the activities conducted or cireumstances existing on real property." These definitions must be read in the disjunctive. See Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215 (Colo.2002)(Pierson II )(landowner definition directs alternative inquiries); see also Wark v. United States, 269 F.3d 1185 (10th Cir.2001)("landowner" includes three types of persons: agents, possessors, and parties legally responsible for the condition of the property).

Relying on Pierson v. Black Canyon Aggregates, Inc., 32 P.3d 567 (Colo.App.2000)(Pierson I), defendant argued, and the trial court agreed that, absent exclusive possession and some type of ownership or leasehold interest in the property, a party does not fall within the definition of "landowner" for purposes of the act. Thus, under that rationale, the trial court determined that here, defendant was not a "landowner."

However, after the trial court's ruling, the supreme court reversed Pierson I, concluding in relevant part that the General Assembly intended a broad definition of landowner and, therefore, for purposes of § 13-21-115(1), "possession" of property is not dependent upon title and need not be exclusive. In its decision, the court cited the definition of the term "possessor of land" as set forth in the Restatement (Second) of Torts § 328E (1965) as "a person who is in occupation of the land with intent to control it." See Pier-son II, supra, 48 P.8d at 1219. The supreme court determined that the defendant had maintained requisite control over the property to be considered in possession of it and, thus, was a "landowner" pursuant to the act.

Defendant argues, however, that unlike the cireumstances in Pierson II, it did not control those areas of the facility that it had contracted with the owner to clean. Specifically, defendant points to its contract for services that sets forth in explicit detail the tasks which defendant was required to perform on a daily, weekly, monthly, and quarterly basis for the ground floor lobby, public areas, tenant occupied areas, tenant unoceu-pied areas, restrooms, and loading dock area.

Moreover, defendant asserts that, unlike the facts in Pierson, where the defendant performed gravel crushing activity on property designated a gravel pit, here, defendant has no interest in the office building or the telephone call center. Rather, defendant incidentally provides janitorial services at the building. Plaintiff has established no other connection between defendant and the building or the call center.

We agree with defendant. Under the undisputed terms of defendant's contract with the owner's property manager, the latter retained control over the maintenance of the facility, including the manner and method of defendant's cleaning services. CL Pierson II, supra (defendant contractor maintained authority to control performance of details of the work, while lessee was interested only in the results obtained). Thus, conversely, we conclude that defendant was not sufficiently in control of the property to be a "landowner" on this basis.

Likewise, we agree that the purpose of defendant's business, to maintain the property, was not sufficiently linked to the purpose of the property for defendant to be in possession of it. Compare Pierson II, supra (where lessee is interested only in the results to be achieved and delegates the conduct and control of the work to a contractor, the contractor is deemed to be in possession of the property), with Jules v. Embassy Props., Inc., 905 P.2d 13 (Colo.App.1995)(landowner who hired third party to manage its property did not give up its right to possession of the property), Wiedmeyer v. Equitable Life Assurance Soc'y, 644 N.W.2d 31 (Iowa 2002)(property owner was deemed possessor of shopping mall even though owner contracted with third party for snow removal on the property), and Wilson v. River Market Venture 1, LP., 996 S.W.2d 687 (Mo.Ct.App.1999)(landowner retains possession of premises if it has substantial involvement in overseeing contractor's work and controlling the physical activities of contractor's employees or the details of the manner in which the work is done).

Plaintiff argues, however, that even if defendant did not possess the property, it is still a landowner under § 13-21-115(1) because it was legally responsible for creating a condition or conducting an activity on the property that allegedly resulted in injury to plaintiff. We agree.

The common definition of a "responsible" person is one who is likely to be called upon to answer for his acts, answerable as the primary cause, motive, or agent, or creditable or chargeable with the result. Webster's Third New International Dictionary 1985 (1976).

Here, pursuant to its contractual obligation to clean the facility, defendant was responsible for conducting an activity on the property that allegedly resulted in injury to plaintiff. It is undisputed that plaintiff slipped and fell on water present on the stairs and that defendant had a contractual obligation to mop up any spills of which it was aware. It is further undisputed that defendant's employee, the day porter on duty at the building, received a call to clean up a spill on the stairwell where plaintiff fell.

Thus, defendant, through the day porter, had a legal responsibility for the condition of the stairs and was potentially liable for injuries resulting from that condition, pursuant to its contract. CL Wark v. United States, supra (defendant not legally responsible for condition of road because it never contracted with record owner to maintain road).

Accordingly, we conclude as a matter of law that defendant is a "landowner" pursuant to § 18-21-115(1), under the cireumstances here. Consequently, the trial court's grant of summary judgment to defendant on this basis was error.

IL.

However, we agree with the trial court's alternative ruling, albeit on different reasoning, that summary judgment nevertheless was proper because even if defendant is a landowner, the undisputed facts demonstrate that defendant did not breach the duty of care owed to plaintiff. See Sundheim v. Bd. of County Comm'rs, 904 P.2d 1887 (Colo. App. 1995), affd, 926 P.2d 545 (Colo. 1996). (when possible, appellate court is to affirm even if it is necessary to do so on grounds different from those relied upon by trial court).

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.RC.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).

A.

Under the premises lability act, the General Assembly imposes certain duties upon landowners to promote responsibility by both landowners and those on the land and to ensure that an injured party's ability to recover is correlated with his or her status as a trespasser, licensee, or invitee. Section 13-21-115(1.5)(a), C.R.98.2002.

As relevant here, an invitee is one who "enters or remains on the land of another to transact business in which the parties are mutually interested or who enters or remains on such land in response to the landowner's express or implied representation that the public is requested, expected, or intended to enter or remain." Section 18-21-115(5)(a), C.R.9S.2002. In contrast, a licensee is one who "enters or remains on the land of another for the licensee's own convenience or to advance his own interests, pursuant to the landowner's permission or consent." Section 13-21-115(5)(b), C.R.8.2002.

The status of an injured party and the appropriate standard of care are determined by the relationship between the injured party and the landowner. See § 18-21-115(4), C.R.S.2002 (court shall determine entrant's status as to each landowner); Pedge v. RM Holdings, Inc., — P.3d —, 2002 WL 31834684 (Colo.App. No. 01CA2239, Dec. 19, 2002)(plaintiff was not a lieensee with respect to management association); Maes v. Lakeview Assocs., Ltd., 892 P24 375 (Colo.App.1994), aff'd, 907 P.2d 580 (Colo.1995).

Here, plaintiff alleged that defendant was an invitee because he was on the property to transact business in which he, the owner of the building, and the lessee, plaintiff's employer, were mutually interested, and he was expected or intended to enter. Defendant asserts that, as to it, plaintiff was not an invitee because it had no business relationship with him, nor was their relationship mutually beneficial, and it did not represent to plaintiff that he was requested or expected to enter onto the property. We agree with plaintiff.

Here, it is undisputed that plaintiff entered the building in response to the owner's and lessee's express or implied representation that as an employee, he was expected or intended to enter. See generally Restatement (Second) of Torts § 882(2) & emt. b (1965)(public invitee is a person invited to enter the property for the purpose for which the land is held open to the public; an invitation is behavior that justifies a person in believing the possessor desires him or her to enter the property). Certainly, as to the owner and lessee, plaintiff was an invitee.

By virtue of its contract, defendant was responsible for providing a clean and safe environment for the benefit of all legitimate entrants to the building. And, because an owner or lessee otherwise has an obligation to maintain its property, we do not agree that an injured person's status as an invitee with respect to an owner or lessee should change with respect to the party to whom these particular tasks have been delegated.

Accordingly, we conclude that defendant owes plaintiff the duty of care which the premises liability act imposes upon a landowner with respect to an invitee.

B.

An invitee may recover under the premises liability act only for damages "caused by the landowner's unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known." Section 13-21, 115(8)(c)(I), C.R.8.2002.

Plaintiff contends that there is a disputed issue of fact whether defendant breached this duty by failing to inspect the stairs for wetness. Plaintiff asserts that because it was a snowy day, defendant should have anticipated that the stairs would be wet and, thus, exercised reasonable care to protect against this danger. We disagree.

Defendant's contract for services requires defendant to "spot mop" any spills on the tile floor areas on a daily basis and "check" and clean the common areas, halls, columns, walls, and baseboards for spots or spills at 9:30 a.m. daily.

The term "check" commonly means to "inspect for satisfactory condition, accuracy, safety, or performance." The term "anticipate" means to "foresee and deal with in advance." Webster's New Collegiate Dictionary 49, 190 (2d ed.1974).

The unrefuted evidence does not support plaintiff's contention that defendant had a duty to anticipate wetness. Rather, defendant was only obligated to check periodically for spills and to mop up any spills that were reported to it.

The day porter testified that he had used this stairwell less than one hour before plaintiff fell, and it was unrefuted that the stairs were not wet at that time.

Plaintiff submitted no evidence that defendant's employee failed to exercise reasonable care upon being notified of the spill. Rather, the day porter testified at his deposition that when he was notified of the spill, he immediately proceeded to the janitor's closet to retrieve a mop and caution sign and, arrived at the location of the reported spill within three to five minutes. Upon his arrival, he saw plaintiff lying on the landing between the two flights of stairs. He then placed a caution sign at the top of the stairs to prevent further injuries. Plaintiff submitted no evidence to suggest that the employee could have reacted more quickly or in a different manner.

Plaintiff points, however, to an incident report submitted by defendant in its motion for summary judgment. In this report, a security guard at the facility recorded that he had been informed by the day porter, through an interpreter, that upon being notified of the spill, the day porter went to the stairwell and cleaned the upper stairs, and while mopping the lower stairs, he heard plaintiff fall. Plaintiff argues that this report directly contradicts the day porter's later deposition testimony that when he arrived to clean up the spill, plaintiff had already fallen. We conclude that the report was insufficient to create a genuine issue of fact under C.R.C.P. 56(e)(affidavits must set forth facts admissible in evidence).

Although the trial court did not specifically address the issue in its findings, when defendant submitted the report with its brief on summary judgment, defendant argued that the report was inadmissible.

On appeal, defendant similarly asserts that the interpreter's translation of the day porter's statement constitutes inadmissible hearsay, and that plaintiff failed to lay the requisite foundation for admission of the report by not offering evidence of authentication. We agree.

Under CRE 803(6), a report promptly made from information transmitted by a person with knowledge, if the report is kept in the course of a regularly conducted business activity and it is the regular practice of the business to make such a report, as shown by the testimony of the custodian or other qualified witness, is excluded from the hearsay rule, unless "the source of information or the method or cireumstances of preparation indicate lack of trustworthiness."

The business records exception is founded on a presumption of accuracy that exists because the information is reported by persons trained in the importance of precision and checked for its correctness, and because of the accuracy demanded by the nature of the business. See United States v. Snyder, 787 F.2d 1429 (10th Cir.1986).

Statements by a third party included in a business record are not granted the same presumption of accuracy because the third party has no business duty to report the information accurately. Thus, statements by a third party are generally not admissible. See Schmutz v. Bolles, 800 P.2d 1307 (Colo.1990); see, eg., United States v. Snyder, swpra (third party statements included in a police report held inadmissible).

Authentication of a document is a condition precedent to its admissibility and is satisfied by a showing that the document is what the proponent claims it to be. CRE 901; Rojhani v. Meagher, 22 P.3d 554 (Colo.App.2000). A business record is self-authenticating when accompanied by an affidavit of its custodian or other qualified witness certifying that the record was made by a person with knowledge in the course of the regularly conducted activity and that it was the regular practice of the party to make such a record. CRE 902(11).

Here, plaintiff offered no evidence as to who recorded the incident report or whether the report was kept in the ordinary course of the security company's business. Furthermore, plaintiff offered no evidence that the security guard had knowledge of the truthfulness of the information being recorded, and the statement was not sworn. Compare Leiting v. Mutha, 58 P.3d 1049 (Colo.App.2002)(plaintiff failed to lay necessary foundation for admission of report under business record exception as witness did not prepare the document, was not its custodian, and did not explain how or why it was prepared) with Metro Nat'l. Bank v. Parker, 773 P.2d 633 (Colo.App.1989)(proper foundation established under CRE 803(6) as evidence showed that bank records from which party prepared summary were kept in regular course of business).

Additionally, the interpreter, a Spanish-speaking supervisor from the lessee's customer service department, did not conduct the interpretation in the regular course of business of either the lessee or the security company. Thus, she had no business duty to translate accurately, and there is no evidence that her translation was in fact accurate. Cf. People v. Villagomez, 313 Ill.App.3d 799, 246 Ill.Dec. 708, 730 N.E.2d 1173 (2000) (interpreter translated defendant's statement into English, read back each sentence to defendant in Spanish, asked if each was correct, read entire corrected statement to defendant in Spanish, and had defendant sign the written statement and initial the bottom of each page).

Accordingly, we agree with defendant that any discrepancies in the report were inadmissible to create a disputed issue of fact. See C.R.C.P. 56(e), USA Leasing, Inc. v. Montelongo, 25 P.3d 1277 (Colo.App.2001)(affidavits must contain evidence that would be admissible at trial); People v. Hernandes & Assocs., Inc., 736 P.2d 1238 (Colo.App.1986)(affidavits based on inadmissible hearsay are insufficient for purpose of summary judgment). Thus, the trial court did not err in granting summary judgment to defendant.

The judgment is affirmed.

Judge ROY and Judge WEBB concur.


source: Caselaw Access Project

author: Judge ROTHENBERG.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Petitioner-Appellee, and In the Interest of MB., a Child, Concerning T.B., Respondent-Appellant.
    No. 01CA2451.
    Colorado Court of Appeals, Division V.
    April 10, 2003.

      George H. Hass, County Attorney, David P. Ayraud, Assistant County Attorney, Fort Collins, Colorado, for Petitioner-Appellee.
    Randall C. Lococo, Guardian Ad Litem.
    Mark K. Workman, Fort Collins, Colorado, for Respondent-Appellant.
   Opinion by

Judge ROTHENBERG.

In this dependency and neglect proceeding, T.B. (mother), appeals from a judgment terminating her legal relationship with her child, M.B. The primary issue in this appeal is whether mother's right to due process was violated during the review process conducted before the magistrate pursuant to Colorado's permanency hearing statute, § 19-8-702, C.R.S.2002, and requires that the order of termination later entered by the district court be vacated. Because mother had a full and fair opportunity to be heard at the termination hearing, we conclude her right to due process was not violated. Accordingly, we affirm.

I.

On September 12, 2000, the child, who was then two years old, was found wandering the streets. She was hungry and her body was covered with numerous and severe bruises. The police department took the child into protective custody and then released her to the county department of social services for placement in foster care.

Several hours later, mother was located and interviewed. She reported she had entrusted the care and discipline of the child to her boyfriend and he had caused the bruising. However, she stated she was present while the boyfriend beat the child and she heard the child sereaming. ,

Because of the nature and extent of the child's bruises, medical and sexual abuse examinations were conducted, and the examination revealed numerous abrasions on and adjacent to the child's hymen. The examiner concluded they were "consistent with 'sexual abuse" and could have been caused by digital or penile contact.

When the boyfriend was interviewed, he admitted he had severely abused the child physically and sexually.

On September 15, 2000, a petition in dependency and neglect was filed naming mother and the boyfriend as respondents. Mother admitted the allegations in the petition, and the child was adjudicated dependent and neglected. On November 11, 2000, mother married the boyfriend, who is hereinafter referred to as the husband.

In November 2000, the magistrate approved a treatment plan for mother. The husband's treatment plan was approved in January 2001, at which time a dispositional order entered as to both mother and the husband. Also, in January 2001, mother was sent a written advisement of her legal and constitutional rights and written notice that a permanency hearing was set for March 1.

On March 1, as relevant here, the magistrate found that mother was working on the issues addressed by the treatment plan, but that it was too soon to determine whether the child could be returned to her. The magistrate continued the permanency hearing until April 12; At the April 12 hearing, issues were raised concerning the child's placement, but the magistrate deferred ruling on placement until the next hearing, which was set for April 24.

On April 24, the parties entered into an agreement to maintain the child in her foster care placement and to change the permanency plan to establish the goal of reunification. The agreement required mother to prohibit contact between the child and her husband, to obtain her own residence, and to participate in a parent-child interactional evaluation. « The magistrate adopted the agreement and set the matter for review on May 17.

At the May 17 hearing, the magistrate formally changed the permanency plan to reflect the goal of reunification between the mother and child and signed a written order approving the child's ongoing foster care placement. However, on May 18, the People moved to suspend unsupervised visits, citing concerns that arose during an evaluation.

On June 4, a review hearing was held and, as relevant here, the parties stipulated to, and the magistrate approved, a visitation schedule that included unsupervised visits. After the review hearing, mother and the department submitted proposed visitation orders, and on June 27, the magistrate signed the order submitted by the department. Mother objected, contending it did not accurately reflect the agreement, and at her request, a review hearing was set for June 28.

On June 27, the People filed an amended notice of hearing that referred to the June 28 hearing as a "permanency planning" hearing. On the same date, the department submitted a report to the magistrate designated "EXPEDITED PERMANENCY PLANNING CASE PERMANENCY PLAN REVIEW."

The department's June 27 report recited the facts set forth above and described the current situation of mother and the child. The department expressed several major concerns, including that mother had married the husband so soon after the severe abuse of her daughter and mother was still residing with him. The department also was concerned "[with mother's] role in her abuse of her daughter and the lack of ability to protect her daughter." The report added that mother had "a tendency to minimize the severity of the abuse"; her continued involvement with the husband had put "consistent pressure on [the child] to accept [him] as a father"; and mother "does not appear to have the motivation to make the significant behavioral changes which would be needed to ensure the child's safety."

The department recommended that a motion for termination of parental rights be filed because, as relevant here, "[Mother] has been presented with information in order to assist her in being able to reunify with her child. She has chosen to defend [the husband], continue a relationship with [him,] and is reportedly very enmeshed in her relationship with [him]."

On June 28, the parties appeared before the magistrate, but no evidence was received. After the People advised the magistrate of their intention to file a motion to terminate the parent-child relationship, the magistrate ordered that the case be transferred to the district court for a hearing.

On July 11, the magistrate's June 28 approval of the permanency plan and transfer to the district court were memorialized in a written order designated "Permanency Planning Order and Order Approving Ongoing Placement." The July 11 written order recited that the matter had come before the magistrate on June 28 for a "permanency planning hearing" and that the magistrate had reviewed the "permanency plan prepared by [the department] and set forth in a letter dated June 27, 2001."

The July 11 order concluded, as relevant here, that:

3. Reasonable efforts have been made to prevent out-of-home placement and to finalize the permanency plan. Pursuant to the facts and cireumstances set forth in the permanency plan prepared by [the department] and set forth in a letter dated June 27, 2001, it would be contrary to the best interests of the [clhild to be returned to the custody of [mother] at this time. Further, there is not a substantial probability that the [clhild will be returned to the physical custody of [mother] within six months of the date this Order is executed.
4. In light of the above, the [magistrate] finds the permanency plan prepared by [the department] and set forth in a letter dated June 27, 2001, which by this reference is incorporated herein to be appropriate and in the best interests of the [clhild.
5. The [magistrate] finds that the perma-neney plan for the [clhild is a determination of whether the parent/child relationships should be terminated. ... |

Mother filed a petition for review in the district court, contending the magistrate had violated her right to due process by failing to conduct a permanency hearing before changing the permanency plan goal from reunification to termination.

In September 2001, on the date set for the termination hearing, the district court rejected mother's due process argument, denied her petition for review, and proceeded to conduct a termination hearing. The court also stated that it would consider any relevant issues at the termination hearing that could have been raised before the magistrate.

After hearing the evidence, the district court entered the judgment terminating mother's parental rights.

IL.

Mother contends she was deprived of her right to due process when the magistrate changed the permanency plan and ordered the transfer to district court without first conducting a permanency hearing. According to mother, the June 28 proceeding did not constitute a "permanency hearing," and such a hearing was necessary to determine whether the permanency goal of reunification should have been changed to termination. Mother thus urges us to conclude the magistrate's order of July 11 transferring the case to the district court for hearing on the motion to terminate violated her right to due process.

We conclude that because mother had a full and fair opportunity to be heard at the termination hearing, her right to due process was not violated, and we therefore perceive no basis for reversal.

Due process is flexible and calls for such procedural protections as the particular situation demands. People v. Taylor, 618 P.2d 1127, 1135 (Colo.1980); see People in Interest of Dveirin, 755 P.2d 1207, 1211 (Colo.1988)(holding that "certification proceedings [conducted] subsequent to the certification for short-term [mental health] treatment adequately protected the respondent's due process rights"); Eason v. Bd. of County Comm'rs, 70 P.3d 600, 2003 WL 1562228 (Colo.App.2003).

A parent has a constitutionally protected liberty interest in the care, custody, and management of his or her child. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); B.B. v. People, 785 P.2d 132 (Colo.1990).

Termination of the parent-child legal relationship is a drastic remedy and a parent is entitled to procedural due process before termination occeurs, but that entitlement must be balanced against other interests when the goal of reunifying the parent and child is abandoned by the department. People in Interest of A.W.R, 17 P.3d 192, 196 (Colo.App.2000) a foster parent's interest in "continued foster placement" arises when the "goal of reunification of the child with his or her natural family has been abandoned").

The greater the deprivation of the parent's interest, the greater the procedural protection that must be provided to the parent. L.L. v. People, 10 P.3d 1271 (Colo.2000). A parent is entitled to notice of the proceeding, advice of counsel, and a meaningful opportunity to be heard and defend. People in Interest of E.S., 49 P.3d 1221 (Colo.App.2002); People in Interest of M.P., 690 P.2d 1300 (Colo.App.1984); see B.B. v. People, supra (in dependency and neglect proceedings, due process generally requires the state to provide fundamentally fair procedures); People in Interest of A.M.D., 648 P.2d 625 (Colo.1982).

A.

Although mother does not allege a statutory violation, it is necessary to review the statutory scheme governing permanency hearings and termination in addressing her due process challenge to the procedure utilized here.

The Children's Code must be liberally construed to promote the welfare of children and the best interests of society. Section 19-1-102, C.R.S.2002, The Code sets forth the basic procedures to adjudicate a child as dependent or neglected at § 19-8-801, et seq., C.R.98.2002; to terminate parental rights at § 19-3-601, et seq., C.R.9.2002; and to review a child's placement needs at § 19-3-701, et seq., 0.R.8.2002.

The Code provides that the state should make "reasonable efforts" to prevent the placement of abused and neglected children out of the home and to reunify the family whenever appropriate. Sections 19-1-103(89), 19-8-100.5, 19-3-208, C.R.S.2002; see § 19-1-115(7), C.R.S.2002 (identifying cireumstances where reasonable efforts are not required to prevent the child's removal from the home or to reunify the family).

After a child has been adjudicated dependent or neglected, a court may 'consider termination of a parent-child legal relationship upon the filing of a written motion alleging the factual grounds for termination. Section 19-3-602, C.R.98.2002.

Where, as here, the child is under six years of age when a petition in dependency and neglect is filed, the proceedings are expedited. See §§ 19-1-102(1.6), 19-1-123, 19-3-708, The relevant statutes require that all proceedings be promptly resolved and that the trial court determine whether the child can be returned home.

B.

Section 19-3-702(1), C.R.S.2002, the permanency hearing statute (formerly the "permanency planning hearing" statute), is separate from the statutory scheme governing termination procedures set forth above, though the statutes may overlap once a motion to terminate has been filed.

The permanency hearing statute applies whenever a child is placed in foster care. The statute requires the court to hold perma-nencey hearings, to ensure that a plan to achieve permanency is established, and to review periodically the child's physical placement and agency efforts from the time a child is first placed in foster care.

A "permanency hearing" is defined as "a hearing in which the permanency plan for a child in foster care is determined by the court." Section 19-1-108(88.5), C.R.8.2002; see Chief Justice Directive 98-02, Memorandum of Procedures § VIL.A (stating that purpose of permanency hearing is to "adopt a specific permanency plan for the child and to take significant steps toward implementing the permanency plan"). A hearing or action that is not open to the participation of the parties, such as a paper review, an ex parte hearing, or a stipulated agreement that has been made an order of the court, is not considered a permanency hearing. Section 19-3-702(1.5), C.R.8.2002.

A "permanency plan" is not separately defined in the statute, but its purposes are set forth in § 19-8-702. As relevant here, § 19-3-702 provides:

(1) In order to provide stable permanent homes for children in as short a time as possible, a court on its own motion or upon motion brought by any party shall conduct a permanency hearing if a child cannot be returned home under section 19-1 115(4)(b) for the purpose of making a determination regarding the future status of the child.
(8) [With an exception not relevant here], at the permanency hearing, the court shall first determine whether the child shall be returned to the child's parent or guardian, pursuant to section 19-1-115(4)(b) and, if applicable, the date on which the child shall be returned, and whether reasonable efforts have been made to find a safe and permanent placement for the child. If the child is not returned to the custody of the child's parent or guardian, the court shall determine whether there is a substantial probability that the child will be returned to the physical custody of the child's parent, guardian, or legal custodian within six months. If the court so determines, it shall set another review hearing for not more than six months, which shall be a permanency hearing.
(8.5) At any permanency hearing conducted by the court, the court shall make determinations as to the following:
. (a) Whether procedural safeguards to preserve parental rights have been applied in connection with any change in the child's placement or any determination affecting parental visitation of the child; [and]
(b) Whether reasonable efforts have been made to finalize the permanency plan that is in effect at the time of the permanency hearing. ...

At all subsequent permanency hearings, the court must determine whether the child's safety is protected in the placement, whether reasonable efforts have been made to find a safe and permanent placement, the continuing necessity for and appropriateness of the placement, the extent of compliance with the case plan, and the progress that has been made toward alleviating or mitigating the causes necessitating placement in foster care. The court must also project a likely date by which the child may be returned to and safely maintained at the home, placed for adoption, legal guardianship, or guardianship of the person, or placed in another permanent safe placement setting. Section 19-83-702(6)(a), C.R.S.2002.

If the trial court concludes there is not a substantial probability the child will be returned home within six months, it must enter an order determining the child's future placement status. Section 19-8-702(4), C.R.S. 2002; People in Interest of H.R., 883 P.2d 619 (Colo.App.1994).

The Code is silent regarding the procedures or standards required to change a permanency plan goal from reunification to termination or to modify permanency plans. However, other jurisdictions have addressed these issues by statute or rule. See, eg., Cal. Rules of Court 1466(b) (providing that, upon its own motion or a party's motion, a court may order a new permanent plan "at any subsequent [review] hearing" if cireum-stances have changed); Conn. Gen.Stat. § 17a-15 (2002)(providing that any provision of a placement plan may be challenged at a hearing upon written request); Iowa Code § 232.104(6) (2002)(providing that modification to a permanency order "shall be accomplished through a hearing procedure following reasonable notice"); Utah Code Ann. § 78-8a-811(2)(b)Giii) (2002)(providing that the court may amend a child's primary per-manencey goal before the establishment of a final permanency plan, and at [any time], the court determines that reunification is no longer a child's primary permanency goal, the court shall conduct a permanency hearing").

We are unaware of any reported Colorado appellate opinions that have clarified the extent of a parent's due process rights during the permanency hearing stage. But, the Montana Supreme Court has held that absent a statutory provision, a parent's due process rights with regard to the permanency plan are minimal. See In re Custody of M.W., 305 Mont. 80, 23 P.3d 206 (2001)(par-ent has no due process right to representation by counsel or to challenge the state's evidence at the permanency plan hearings held before the termination hearing).

C.

At issue is whether mother had a due process right to have a permanency hearing before the magistrate changed the permanency plan goal and transferred the case to the district court for a termination hearing. We conclude mother's due process rights were adequately protected when the district court broadened the seope of the termination hearing and allowed her a fall and fair opportunity at the termination hearing to address any issues regarding the change in the perma-neney plan.

We reach this conclusion while agreeing with mother that the June 28 hearing before the magistrate was not a "permanency hearing," as contemplated by § 19-3-702. Although the parties appeared before the magistrate pursuant to the People's amended notice of a permanency hearing, the parties simply discussed the People's modified permanency plan and the fact that the People intended to file a motion to terminate. See § 19-3-702(1.5)(8.5), C.R.8.2002.

Before the case was transferred to the district court, the magistrate conducted numerous hearings during which mother was given a reasonable opportunity to be heard on all issues affecting her parental rights, including visitation, the efforts made by the department to reunite the family, placement alternatives, the concurrent plan for the child, and less drastic alternatives.

The initial goal of the permanency plan was to terminate the parent-child legal relationship. As of the April 24, 2001, hearing, the parties agreed to change the goal to reuniting mother with the child. At the May 17 hearing, the magistrate formally changed the permanency plan to reflect the goal of reunification, and on June 4, the parties stipulated to unsupervised visitation by mother. But, on June 28, the People informed the magistrate of the department's serious concerns about mother's ability to provide the child with a safe environment, as outlined in the report of June 27, which recommended termination.

The department's report was incorporated by reference in the magistrate's July 11 order. Given the serious concerns raised in that report, the magistrate properly concluded the district court should resolve the issues and transferred the case accordingly. See § 19-1-108@8)(c), C.R.S8.2002.

The permanency hearing statute, § 19-3-702, and the termination statutes, § 19-3-601, et seq., do not require modification of a permanency plan before the department may seek termination of the parent-child legal relationship. The department is entitled to move for termination at any time, and termination is proper after the procedures and findings required by statute. See §§ 19-3-602, 19-8-604, C.R.S8.2002.

We conclude mother had a reasonable opportunity at the termination hearing to be heard on the issue of the change from the permanency planning goal of reunification to one of termination. See People in Interest of E.S., swpra; People in Interest of M.P., su-pro; cf. People in Interest of Dveirin, supra. Therefore, we reject her contention that her right to due process was violated.

IIL.

Mother also contends that she was not properly advised of her legal and constitutional rights before the June 28 review hearing by the magistrate and that the July 11 permanency planning order was. therefore improper. We disagree.

When the permanency planning phase of the proceeding was initiated, mother received written advisement of her legal and constitutional rights, as required by § 19-3-702(2), C.R.S.2002. Although she was not notified again of those rights before the June 28 review hearing, she received a notice reciting that it was to be a permanency hearing. While permanency planning was not expressly discussed on June 28, the People tendered a motion "to terminate," which was accepted by the magistrate before the matter was transferred to the district court.

We thus conclude that mother was adequately advised before the June 28 review hearing and that the July 11 order was erroneous for these reasons.

IV.

Next, mother contends the magistrate violated her right to due process by failing to make express findings pursuant to § 19-3-702(8.5)(a), C.R.S.2002, and by failing to consider a less drastic alternative such as placement with a relative. Again, we disagree.

The lack of express findings pursuant to § 19-3-702(8.5)(a) does not in itself establish that the magistrate failed to observe procedural safeguards to protect mother's rights. Further, even though a hearing was not conducted prior to the child's transfer to a foster-adopt home, mother's parental rights were protected because the magistrate ordered the department to monitor the placement carefully to assure that it did not interfere with reunification.

As to the possibility of an alternative placement with relatives, mother abandoned her initial request for placement of the child with the maternal aunt, and she agreed to ongoing foster care placement.

Mother also contends there should have been more court supervision, but the concurrent planning statute, § 19-3-508(7), C.R.S. 2002, does not require court supervision of a concurrent plan. If a party objects to the concurrent plan or its implementation, the party may bring the matter to the attention of the court.

Accordingly, we conclude mother was accorded due process during these proceedings.

v.

Mother next contends the magis-. trate's order of May 17, 2001, approving the child's ongoing placement with the foster family violated mother's right to due process because the placement was not discussed at that hearing and the order was not properly mailed to the parties. We disagree.

The order was based on an agreement by the parties that the magistrate accepted on April 24 and set for review on May 17. Because mother was. present and agreed to the child's placement on April 24, we conclude her due process rights were not violated by the magistrate's failure to mail the order to her.

VIL.

Finally, mother contends the evidence was insufficient to support termination. We disagree. B

Termination of the parent-child legal relationship pursuant to § 19-3-604(1)(c), C.R.S.2002, requires clear and convincing evidence establishing that: (1) there was an appropriate treatment plan approved by the trial court; (2) the parent has not complied with the treatment plan, or the plan has not been successful in rehabilitating the parent; (3) the parent is unfit; and (4) the parent's conduct or condition is unlikely to change within a reasonable time. People in Interest of A.M.D., supra.

Before ordering termination, a trial court also must consider and eliminate less drastic alternatives. People in Interest of M.M., 726 P.2d 1108 (Colo.1986).

The credibility of the witnesses and the sufficiency, probative effect, and weight of the evidence, as well as the inferences and conclusions to be drawn therefrom, are within the discretion of the trial court. Thus, a trial court's findings and conclusions will not be disturbed on review if the record supports them. People in Interest of C.A.K, 652 P.2d 603 (Colo.1982).

An appropriate treatment plan is one "that is reasonably calculated to render the particular [parent] fit to provide adequate parenting to the child within a reasonable time and that relates to the child's needs." Section 19-1-108(10), C.R.S.2002. The appropriateness of a treatment plan is measured by its likelihood of success in reuniting the family and must be assessed in light of the facts existing at the time of its approval. People in Interest of M.M., supra.

A.

According to mother, the treatment plan was inappropriate because the child was not placed with a relative pursuant to § 19-8-508(5b)(b), C.R.S.2002, and an evaluation for placement required by § 19-1-107, C.R.S. 2002, was not conducted. We disagree.

Placement determinations relate to the disposition of the child, not to the treatment of the parent. See §§ 19-1-107(2), 19-38-2138, 19-3-508(5)(b), C.R.S.2002. The failure to comply strictly with the statutory provisions regarding a child's placement does not render a treatment plan inappropriate. See § 19-1-1083(10).

In this case, compliance with the treatment plan would have been frustrated if the child had been placed with her aunt, because it took several hours to drive there from mother's residence. Mother acknowledged this cireamstance when she agreed to continuing foster care placement in Larimer County to facilitate the goal of reunification.

As to mother's contention that there was no concurrent planning pursuant to § 19-3-508(7), concurrent planning affects the disposition of the child and the failure strictly to comply with the concurrent planning statute does not impact the appropriateness of a treatment plan. See $ 19-1-108(10). Here, the concurrent plan for the child was reunification or termination and adoption.

Mother also argues that the treatment plan was rendered inappropriate when the child's therapist was changed without amendment of the plan. The treatment plan recited that the child was seeing a particular therapist and required that she continue in therapy until released by her therapist. But the plan did not require that the child remain in therapy with the named therapist. Accordingly, we reject mother's contention.

B.

Mother next contends that in the absence of an evaluation for placement, the district court did not properly consider permanent guardianship as a less drastic alternative to termination. Again, we disagree.

In considering less drastic alternatives, the trial court must give primary consideration to the physical, mental, and emotional conditions and needs of the child. Section 19-8-604(8), C.R.S8.2002; People in Interest of M.M., supra. Thus, long-term placement or legal guardianship with a relative is not a viable less drastic alternative if the child needs a stable, permanent home that can be assured only by adoption. See People in Interest of E.I.C., 958 P.2d 511 (Colo.App.1998); People in Interest of S.T., 678 P.2d 1054 (Colo.App.1983).

The maternal aunt testified that she was willing to provide care for the child until she reached eighteen and that mother and the child should have an ongoing relationship. However, two mental health professionals and the case worker testified that the child, who was then three years old, needed to form a healthy attachment with a primary caretaker as soon as possible. They further testified that an adoptive home would best meet the child's need for permanency. -

Thus, even though a formal evaluation for placement was not presented to the district court, the record supports its finding rejecting guardianship as a less drastic alternative to termination, and that finding may not be disturbed on review. See People in Interest of C.A.K., supra. We therefore conclude the evidence was sufficient to support termination. |

Judgment affirmed.

Judge TAUBMAN and Judge WEBB concur.


author: Judge CRISWELL.

text:
    Elmer WERTH, Plaintiff-Appellee, v. HERITAGE INTERNATIONAL HOLDINGS, PTO, Defendant, Appellant.
    No. 02CA0115.
    Colorado Court of Appeals, Div. A.
    April 10, 2008.
    Thomas C. Helgeson, P.C., Thomas C. Helgeson, Wheat Ridge, Colorado, for Plaintiff-Appellee.
    Silverman & Riley, William S. Silverman, Denver, Cologado, for Defendant-Appeliant.
   Opinion by

Judge CRISWELL.

Defendant, Heritage International Holdings, PTO, appeals the order denying its motion to set aside a default judgment entered in favor of plaintiff, Elmer Werth. We reverse and remand.

Plaintiff filed a complaint against defendant and two individuals (Bridges and Dalen) asserting claims for breach of contract, fraud, conversion, and deceptive trade practices arising from a promissory note executed by defendant and the individuals. Plaintiff later filed affidavits of service as to both defendant and Bridges.

After neither party responded to the complaint, plaintiff moved for entry of a default judgment. The trial court granted the motion and entered a default judgment exceeding $300,000 against both defendant and Bridges.

Thereafter, defendant filed a motion to set aside the default judgment, asserting that it had never been properly served with a summons and copy of the complaint. Defendant noted that, although the affidavit of service showed that Bridges had been served as managing director of defendant, Bridges had resigned from that position several months earlier.

In response, plaintiff argued that, even if Bridges were no longer managing director when he was served, he was at least a "general agent" of defendant and that service was, therefore, still valid under C.R.C.P. 4(e)(4).

Six days later, and before receiving any written reply from defendant, the trial court denied defendant's motion to set aside the, default judgment. The trial court found, based solely upon the written materials and without holding an evidentiary hearing, that Bridges had failed to notify plaintiff of his resignation as managing director and that Bridges' involvement with defendant "still constitute[d] that of an agent."

On appeal, defendant contends, inter alia, that the trial court erred in failing to hold a hearing to resolve the factual conflicts presented by the parties' written subrhis-sions. We agree.

C.R.C.P. 4(e)(4) provides that service upon a partnership or other unincorporated association must be made "by delivering a copy thereof to one or more of the partners or associates, or a managing or general agent thereof" (emphasis added). Defendant's affidavit asserted that the delivery here was made upon Bridges' personal secretary and that he had been, but was no longer at the time of that delivery, a managing or general agent of defendant, a private trust organization. -

'In upholding this service and denying defendant's motion to vacate the resulting judgment, the trial court determined that Bridges was still an "agent," but it made no finding whether he was a "managing" or a "general" agent. Further, defendant asserts that the facts relied upon by the court are legally insufficient to support its finding of Bridges' continuing agency status.

The difficulty of resolving these factual issues on appeal is compounded because the trial court neither held an evidentiary hearing nor allowed defendant to file a reply to plaintiffs response, as CRCP. 121 § 1-15(1) specifically permitted it to do. Its failure to allow a reply and hold an evidentiary hearing was improper. ©

In Front Range Partners v. Hyland Hills Metropolitan Park & Recreation District, 706 P.2d 1279 (Colo.1985), a property owner filed a C.R.C.P. 60(b) motion to vacate an order of "reinelusion" of its property within a special services district,. The supreme court concluded that, in proceedings under C.R.C.P. 60(b), there is no requirement that the trial court hold an evidentiary hearing and that the appellate court reviews a trial court's order under that rule under an abuse of discretion standard. However, while the court's opinion does not specify the precise grounds that the landowner relied upon to obtain relief under C.R.C.P. 60(b), it clearly did not allege a lack of personal jurisdiction because of defective service under C.R.C.P. 60(b)(8).

In spite of the broad language in Front Range Partners, both before and after that decision, the trial courts of this state have rather consistently conducted evidentiary hearings to resolve material factual issues upon which their jurisdiction depends. And both the supreme court and divisions of this court have recognized that the question of proper service is a factual question to be resolved based upon a preponderance of the evidence. See, e.g., Stubblefield v. District Court, 198 Colo. 569, 603 P.2d 559 (1979)(question as to status of person served is a factual issue to be resolved by trial court); Denman v. Great Western Railway Co., 811 P2d 415 (Colo.App.1990)(before judgment enters, burden of proof is by a preponderance of the evidence, not by some greater standard).

Indeed, if a court's jurisdiction is contested by means of a C.R.C.P. 12(b)(1) motion and there are contested issues of fact, the trial court is required to hold an eviden-tiary hearing to resolve those issues. Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993).

Moreover, the supreme court has recently recognized that a proceeding under C.R.C.P. 60(b)(8), in which a judgment is attacked as being void because of a lack of jurisdiction or a violation of procedural due process, differs from other proceedings under that rule. Hence, in a proceeding under C.R.C.P. 60(b)(8), the standard for review is not an abuse of discretion; the review will be conducted de novo. First National Bank v. Fleisher, 2 P.3d 706 (Colo.2000)(distinguishing Front Range Partners ). .

The supreme court in Fleisher did not reach the issue whether an evidentiary hearing is a requirement in a C.R.CP. 60(b)(3) proceeding. However, other courts, interpreting similar procedural rules and drawing the same distinction as was drawn in Fleisher, have held that the trial court must hold an evidentiary hearing to resolve any factual disputes. See Classen v. Classen, 119 N.M. 582, 585, 893 P.2d 478, 481 (N.M.Ct.App.1995)("On this record, the trial court cannot resolve the factual issues that control whether service was proper. The trial court may need to conduct an evidentiary hearing, unless further discovery produces uncontrovert-ed dispositive facts."); see also Bank of America National Trust & Savings Ass'n v. Herrick, 233 A.D.2d 351, 650 N.Y.S.2d 754 (1996); Woodruff v. Spence, 76 Wash.App. 207, 883 P.2d 936 (1994).

We conclude, therefore, that the trial court erred in attempting to resolve the various material questions of fact presented to it without taking evidence, considering the credibility of that evidence, and making specific findings of fact as to Bridges' status as a managing or general agent for defendant when the suit papers were served upon his secretary.

In addition, the trial court should have allowed defendant to file a written reply pursuant to the provisions of C.R.C.P. 121 § 1-15(1) before taking any further action. See Ogawa v. Riley, 949 P2d 118 (Colo.App.1997)(unless trial court specifically adopts a different time schedule; the court must allow parties to file responses authorized by C.R.C.P. 121 § 1-15).

. Hence, the order denying defendant's motion to vacate is reversed, and the case is remanded to the trial court for further proceedings consistent with the views expressed in this opmlon -

Chief Judge HUME and Judge TAUBMAN concur.

       Sitting by assignment of the Chief Justice under provisions of C016. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.


author: Judge MARQUEZ.

text:
    STEARNS MANAGEMENT COMPANY, an Illinois corporation, and Horton Trading, Limited, Plaintiffs-Appellants and Cross-Appellees, v. MISSOURI RIVER SERVICES, INC., a Delaware corporation; Exxaco Energy Corporation, an inactive Texas corporation; and Ronald Schnier, individually and as the alter ego of Exxaco Energy Corporation, Defendants-Appellees and Cross-Appellants.
    No. 01CA2166.
    Colorado Court of Appeals, Div. II
    April 10, 2003.

      Solomon Pearl Blum Heymann & Stich LLP, Theresa M. Moore, Denver, Colorado, for Plaintiffs-Appellants and Cross-Appel-lees.
    Brega & Winters, P.C0., John G. Nelson, Denver, Colorado, for Defendants-Appellees and Cross-Appellants.
   Opinion by

Judge MARQUEZ.

Plaintiffs, Stearns Management Company (SMC) and Horton Trading, Limited, appeal from the summary judgment dismissing their claims, but only insofar as that judgment affects the trial court's order denying defendants' motion for attorney fees. Defendants, Missouri River Services, Inc. (MRS), Exxaco Emergy Corporation, and Ronald Schnier, cross-appeal the attorney fees order. We vacate that order and remand for further proceedings.

Defendant MRS was incorporated by Warren Stearns and his company, SMC, to construct and operate a casino on the reservation of the Omaha Tribe of Nebraska. The venture failed, and MRS lost all of its investment capital. Stearns and SMC consulted with an attorney and were advised against suing the Omaha Tribe.

Defendants Schnier and Exxaco, who were investors in MRS, sued Stearns, SMC, and MRS for securities fraud. In settlement of that lawsuit, Stearns transferred all interests in MRS to Schnier and Exxaco. MRS's only remaining asset was the claim against the Omaha Tribe.

MRS subsequently retained the same attorney who had advised Stearns against suing, pursued the claim against the Omaha Tribe, and obtained an arbitration award in exeess of six million dollars. This award was confirmed by the United States District Court, but was subsequently lost on appeal.

After arbitration had begun, but prior to the loss on appeal, plaintiffs filed this lawsuit, alleging eight claims for relief based on the actions of defendants and their attorney. Defendants answered and filed counterclaims. The trial court granted defendants' motions for summary judgment, but denied their request for attorney fees without a hearing or findings.

At oral argument, plaintiffs' counsel conceded that plaintiffs' claims are now moot, but are being pursued on appeal to oppose defendants' cross-appeal for attorney fees. Thus, the operative issue before us is defendants' request for attorney fees. We review plaintiffs' claims only as necessary to determine this issue.

L.

Plaintiffs contend summary dismissal of their claims was improper because there were material facts in dispute with regard to each claim. We conclude that the only genuine issue of material fact was whether the attorney was representing MRS when he allegedly spoke to plaintiffs in 1992, This disputed fact implicates only plaintiffs' first and second claims.

Summary judgment is appropriate when the pleadings and supporting documents demonstrate that no genuine issue as to any material fact exists and that the moving party is entitled to judgment as a matter of law. The nonmoving party is entitled to the benefit of all favorable inferences that may be drawn from the undisputed facts, and all doubts as to the existence of a triable issue of fact must be resolved against the moving party. Martini v. Smith, 42 P.3d 629 (Colo.2002). An appellate court reviews de novo a trial court's order granting summary judgment. Vail/Arrowhead, Inc. v. District Court, 954 P.2d 608 (Colo.1998).

A.

Under their first claim, based on promissory estoppel and breach of contract, plaintiffs alleged that the attorney, as the authorized agent of MRS, stated that plaintiffs' interests against the tribe were aligned with those of MRS. Under their second claim for breach of contract, plaintiffs alleged that MRS, through its agent attorney, promised to pay SMC if MRS were successful in the litigation against the Omaha Tribe.

Defendants submitted an affidavit from Schnier stating that the attorney was not hired by MRS until 1995. However, defendants also submitted Stearns's affidavit averring that SMC retained the attorney in 1990 and that MRS retained the attorney in 1992. ' According to the affidavit, the attorney indicated that the interests of SMC and MRS were aligned and that should MRS recover, SMC would recover its interest. Stearns further states that the attorney assured him there was no conflict of interest between MRS and SMC with regard to the representation. MRS later adopted a resolution that "ratified, adopted, approved, and confirmed as the acts of the corporation" acts of the attorney taken with regard to the lawsuit against the Omaha Tribe.

Defendants nevertheless contend that the assertions in Stearns's affidavit are hearsay and not based on personal knowledge. However, the statement comports with C.R.C.P. b6(e) and therefore, taken together with defendants' evidence, raises a genuine issue of material fact as to when the attorney was hired and whether his statements, if made, could be construed as binding on MRS.

Defendants further contend that plaintiffs' claims are time barred under § 13-80-101(1)(a), C.R.S.2002, which requires civil actions to be commenced "within three years after the cause of action accrues." The attorney's promise purportedly was made late in 1992, and plaintiffs filed their complaint in June 2000. Arguably, the cause of action did not arise until 1999, when MRS denied SMC's demand for payment arising out of the arbitration with the Omaha Tribe, and thus, plaintiffs first and second claims would not be time barred.

Consequently, there were genuine issues of material fact with respect to the first and second claims, and summary dismissal was improper.

B.

However, we perceive no genuine issues of material fact as to plaintiffs' remaining six claims for relief,

IL.

On cross-appeal, defendants contend that the trial court acted improperly in denying their motion for attorney fees under § 13-17-102, C.R.8.2002, and C.R.C.P. 1l1(a). Defendants assert that the court failed to make findings of fact as required by C.R.C.P. 121 § 1-22@)(c) of the Colorado District Court Practice Standards. We agree.

C.R.C.P. 121 $ 1-22(2)(a) states that this practice standard applies to requests for attorney fees made at the conclusion of the action, including awards requested pursuant to § 18-17-1028. C.R.C.P. 121 § 1-22(@)(c) provides, "The court shall make findings of fact to support its determination of the motion."

Section 18-17-102(4), C.R.S.2002, states, in part, "The court shall assess attorney fees if ... it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification ...."

C.R.C.P. 11 imposes the following independent duties on an attorney or a litigant who signs a pleading: (1) before a pleading is filed, there must be a reasonable inquiry into the facts and the law; (2) based on this investigation, the signer must reasonably believe that the pleading is well grounded in fact; (8) the legal theory asserted in the pleading must be based on existing legal principles or a good faith argument for the modification of existing law; and (4) the pleading must not be filed for the purpose of causing delay, harassment, or an increase in the cost of litigation. Maul v. Shaw, 843 P.2d 139 (Colo.App.1992). Attorney fees may be assessed as a sanction for violating C.RGCP. 11. See EB-470 Public Highway Authority v. Jagow, 30 P.3d 798 (Colo.App.2001), aff'd, 49 P.3d 1151 (Colo.2002).

Whether to award attorney fees under § 18-17-102 or as a sanction under C.R.C.P. 11 is a decision committed to the discretion of the trial court, whose ruling will not be disturbed on appeal absent an abuse of discretion. See E-470 Public Highwoy Authority v. Jagow, supra; see also Weber v. Wallace, 789 P.2d 427 (Colo.App.1989)(trial court's decision under § 13-17-102 will not be disturbed on appeal if supported by the evidence).

A trial court's decision to grant a motion for summary judgment is not disposi-tive of the issue of attorney fees. The trial court must still exercise its discretion. See Western United Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo.1984); State Farm Mutual Automobile Insurance Co. v. Sanditen, 701 P2d 876 (Colo.App.1985)(attorney fees should not be awarded merely because a party does not prevail).

Further, when awarding attorney fees, the trial court must specifically set forth the reasons for the award. Section 13-17-108, C.R.S.2002; Board of Commissioners v. Eason, 976 P.2d 271 (Colo.App.1998). If the trial court fails to provide findings sufficient to afford review of the reasons for the award, an appellate court must reverse the award and remand for further proceedings. Bob Blake Builders, Inc. v. Gramling, 18 P.3d 859 (Colo.App.2001).

However, when a trial court denies a request for attorney fees, the law is less clear. Defendants here recognize that § 18-17-1083 does not require findings of fact when recovery of attorney fees is denied under § 183-17-102. However, they contend that factual findings are nonetheless required under the distinctly different language of C.R.C.P. 121 § 1-22.

Under a previous statute allowing recovery of attorney fees against public entities, the supreme court held, "If the motion for attorney fees is predicated on the lack of a factual basis for an asserted claim for relief or defense, the trial court is obliged to make findings that will permit meaningful appellate review of its disposition of the motion." Board of County Commissioners v. Auslaender, 745 P.2d 999, 1001 (Colo.1987).

In Auslaender, the trial court denied the request for attorney fees without a hearing. On appeal, a division of this court reversed, determining that the county's action was without a reasonable basis in fact or law, was frivolous, and thus was subject to an assessment of attorney fees. In reversing the court of appeals decision, the supreme court stated:

It is axiomatic that an appellate court "cannot substitute itself as a finder of fact" .... In the absence of an adequately developed record, including findings of fact and conclusions of law on the claim for attorney fees, there is simply no basis in fact or in law to support the court of appeals' determination that the [defendants] were entitled to attorney fees.

Board of County Commissioners v. Auslaender, supra, 745 P.2d at 1002 (quoting Gebhardt v. Gebhardt, 198 Colo. 28, 30, 595 P.2d 1048, 1050 (1979).

Two subsequent court of appeals decisions have held that § 18-17-1083 does not require the trial court to make findings as to the factors in that statute when it denies a request for attorney fees. See E-470 Public Highway Authority v. Jagow, supra; Webster v. Boone, 992 P.2d 1183 (Colo.App.1999). However, in both of these cases, the decision to deny attorney fees occurred after a trial, and the trial courts stated general findings regarding the requests for attorney fees in their orders. Further, neither of these cases mentions C.R.C.P. 121 § 1-22. See FH-470 Public Highway Authority v. Jagow, supra (written order stated that court had reviewed the motion and found that claims were not frivolous or groundless); Webster v. Boone, swpra (court found neither summary judgment motion nor defenses groundless and noted issues had been fairly and vigorously litigated).

Here, the trial court's order states only: "Defendants' motion for attorney fees is denied." This motion was denied after all claims had been dismissed on either summary judgment or motion to withdraw.

While we have determined that most of plaintiffs' claims were properly dismissed, we cannot conclude, absent findings of fact, that the trial court's denial of attorney fees is not an abuse of discretion. Therefore, we vacate the order denying attorney fees and remand for findings of fact. Because neither party requested a hearing on this issue, we leave it to the trial court's discretion as to whether a hearing is necessary for it to make the appropriate findings. See In re Marriage of Aldrich, 945 P.2d 1370 (Colo.1997)(party who fails to make a timely request for hearing concerning award of attorney fees waives the right to a hearing); Webster v. Boone, supra (same).

Because plaintiffs' claims are moot, we need not consider the parties' remaining arguments.

The order on attorney fees is vacated, and the case is remanded for further proceedings consistent with this opinion.

Judge NEY and Judge CARPARELLI concur.