author: Judge WEBB.

text:
    Robert A. PFANTZ and Mid-Century Insurance Company, Plaintiffs-Appellees, v. KMART CORPORATION, a Michigan corporation, Defendant-Appellant, and Waymar Industries, Inc., a Minnesota corporation, Defendant-Appellee.
    No. 01CA0388.
    Colorado Court of Appeals, Div. II.
    July 31, 2003.
    Rehearing Denied Oct. 9, 2003.
    Certiorari Granted March 15, 2004.

      Wick Campbell Bramer Ukasick & Traut-wein, L.L.C., Troy A. Ukasick, Kimberly B. Schutt, Fort Collins, Colorado, for Plaintiff-Appellee Robert A. Pfantz.
    Campbell, Latiolais & Ruebel, P.C., Colin C. Campbell, Denver, Colorado, for Plaintiff-Appellee Mid-Century Insurance Company.
    Godin & Baity, L.L.C., Mari K. Perczak, Leigh M. Monette, Denver, Colorado, for Defendant-Appellant.
    Overturf & McGath, P.C., Thomas E. Hames, 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 WEBB.

Defendant, Kmart Corporation, appeals the judgment entered against it on a jury verdict in favor of plaintiffs, Robert Pfantz and Mid-Century Insurance Company (insurer). Pfantz was injured in a Kmart store when he sat down on a bench that had been manufactured by codefendant Waymar Industries, Inc. Kmart contends that the trial court erred in imposing sanctions against it for destruction of the bench, after commencement of this action but before trial, and in denying its motion for judgment notwithstanding the verdict regarding future medical expenses. We affirm.

As relevant here, Pfantz and insurer, as subrogee for Pfantz’s medical expenses, sued Kmart and Waymar on theories of products liability and negligence. Although shortly after the accident counsel for Pfantz notified Kmart that the bench should be preserved as evidence, it remained in use for over two years. During that time, Pfantz’s expert examined the bench, videotaped it, and prepared a report finding both defendants blameworthy. Waymar’s attorney and a company representative also saw the bench while it remained in use.

After removing the bench from use, the store manager placed it in a storage trailer behind the store to preserve it for litigation. Shortly thereafter, however, Kmart could not locate the bench. Approximately three months later, store employees who did not know of the litigation came across the bench, disassembled it, and put it into a dumpster. A new store manager learned that the bench had been located and intervened, but upon removal from the dumpster the bench was found to be substantially destroyed.

Waymar’s testimonial expert examined the bench only after its removal from the dumpster and concluded that the effect of Kmart’s pre-accident repairs to and modifications of the bench could no longer be determined. Although the bench had never been the subject of a discovery order, Waymar then sought sanctions against Kmart for spoliation of evidence. Pfantz joined in the motion.

Without conducting a hearing, in a pretrial order the trial court found that, “Kmart’s actions in this case were either intentional or so reckless that it must be held accountable,” but made no specific finding that Kmart had willfully destroyed the bench. The court also described Kmart’s recklessness as “bad faith.” It imposed sanctions for spoliation, including ruling that the jury would be instructed, “the bench is presumed to be defective, and Kmart is presumed to be the cause of the defective condition.”

After having been so instructed, the jury found Kmart 100% negligent and awarded damages to Pfantz and insurer, including $30,000 to Pfantz for future medical expenses. Kmart unsuccessfully moved for judgment notwithstanding the verdict as to the future medical expense award.

I.

Kmart first contends that the trial court erred in imposing the jury instructions as sanctions against it because a punitive sanction requires intentional spoliation, but the trial court found only that Kmart acted recklessly. Kmart further contends that the record does not support the finding of recklessness; that the sanctions exceeded action necessary to remediate harm to the other parties; and the trial court did not hold a hearing on the sanctions motion. We discern no error.

Appellate courts will not overturn a trial court’s imposition of an adverse inference unless the sanction constitutes an abuse of discretion or is manifestly arbitrary, unreasonable, or unfair. Lauren Corp. v. Century Geophysical Corp., 953 P.2d 200 (Colo.App.1998).

Trial courts enjoy broad discretion to impose sanctions for spoliation of evidence, even if the evidence was not subject to a discovery order permitting sanctions under C.R.C.P. 37. See Lauren Corp. v. Century Geophysical Corp., supra (citing Pena v. Dist. Court, 681 P.2d 953, 956 (Colo.1984)).

In the exercise of inherent power, trial courts may impose sanctions both to punish a party that has spoiled evidence and to remediate the harm to the injured party from absence of that evidence. Rodriguez v. Schutt, 896 P.2d 881 (Colo.App.1994), aff'd in part and rev’d in part on other grounds, 914 P.2d 921 (Colo.1996).

In Rodriguez v. Schutt, supra, the division concluded that the party deprived of the evidence was not entitled to an “adverse inference” jury instruction. In Lauren Corp. v. Century Geophysical Corp., supra, the division upheld a presumption that software had been used other than as permitted in a licensing agreement.

Here, the trial court’s order discusses the propriety of permitting the jury to draw the inference that the evidence would have been adverse to the destroyer, citing In re Holmes’ Estate, 98 Colo. 360, 56 P.2d 1333 (1936). However, the court framed the instructions as presumptions rather than inferences.

The parties do not argue, and we express no opinion on, any difference between a presumption and an inference as either a punitive or a remedial sanction.

A.

We first reject Kmart’s contention that, as a matter of law, a court can exercise its inherent power to impose a punitive sanction only for the intentional spoliation of evidence.

A court has inherent power to impose a punitive sanction when a party intentionally destroys evidence. See Rodriguez v. Schutt, supra; People v. Dist. Court, 200 Colo. 65, 612 P.2d 87 (1980)(defining “intentional” in this context as destruction to prevent use as evidence), disapproved in part by Schaffer v. Dist. Court, 719 P.2d 1088, 1090 n. 1 (Colo.1986).

In Rodriguez, however, the destruction of evidence resulted from simple negligence and the trial court imposed no sanction. No Colorado case has addressed whether the inherent power to impose punitive sanctions extends to spoliation that is more serious than negligence, but less serious than willful or intentional. Nevertheless, we are persuaded by Colorado cases involving discovery violations, as well as by more recent federal precedent, that conduct between negligent and intentional which results in spoliation of evidence may warrant a punitive sanction as a discretionary exercise of inherent power.

As a discovery sanction under C.R.C.P. 37, courts may impose the ultimate penalty of a default judgment where a party has: willfully or deliberately disobeyed a discovery rule; engaged in bad faith conduct that is a flagrant disregard or dereliction of discovery obligations; or engaged in culpable conduct which is more than mere inadvertence or simple negligence, but is gross negligence. See Newell v. Engel, 899 P.2d 273 (Colo.App.1994). “Bad faith” includes “conduct which, although not necessarily deliberate or intentional, nonetheless amounts to a flagrant disregard or dereliction of one’s discovery obligations.” Kwik Way Stores, Inc. v. Caldwell, 745 P.2d 672, 677 (Colo.1987).

In Newell, the court entered a default judgment under C.R.C.P. 37 for behavior that was in bad faith or grossly negligent. Although in Newell the court addressed bad faith separately from willfulness and gross negligence, for purposes of inherent power to impose sanctions we discern no useful distinction among bad faith, recklessness, and gross negligence. All these terms describe conduct that is more than negligent and less than intentional. See EEOC v. Jacksonville Shipyards, Inc., 690 F.Supp. 995 (M.D.Fla.1988)(courts look to Fed.R.Civ.P. 37 as a guide in the exercise of their inherent powers). Bad faith is the standard used to determine that a party who has destroyed evidence is precluded from using secondary evidence. CRE 1004(1).

In our view, extending the inherent power to impose sanctions to recklessness and gross negligence furthers the objective of deterring serious misconduct, see Gates Rubber Co. v. Bando Chem. Indus., Ltd., 167 F.R.D. 90 (D.Colo.1996). The sanction should be “commensurate with the seriousness of the disobedient party’s conduct.” Newell v. Engel, supra, 899 P.2d at 276. Conduct that is grossly negligent or reckless “is so aggravated as to be all but intentional,” White v. Hansen, 837 P.2d 1229, 1233 (Colo.1992), and therefore should be deterred.

The division in Rodriguez v. Schutt, supra, considered the majority view to be that punitive sanctions could be imposed only for intentional destruction of evidence. However, more recent cases have permitted punitive sanctions where the misconduct is more than mere negligence. In Reilly v. NatWest Mkts. Group, Inc., 181 F.3d 258, 267-68 (2d Cir.1999), for example, the court held that imposition of an adverse inference based on the spoiler’s gross negligence was not an abuse of discretion. See also Aramburu v. Boeing Co., 112 F.3d 1398 (10th Cir.1997).

Accordingly, we conclude that inherent power to impose a punitive sanction is not limited to intentional spoliation of evidence.

B.

We next reject Kmart’s contention that the record does not support the trial court’s finding of recklessness.

Here, the trial court allowed discovery concerning circumstances of the spoliation and received extensive briefing, which included an affidavit from Kmart’s store manager at the time of the accident. After discussions with counsel, this manager removed the bench from use and placed it in a storage trailer, recognizing that it presented a possible danger to the public. His affidavit stated that “the entire management team at Kmart knew that this bench needed to be preserved as evidence for this lawsuit.”

However, the record does not indicate that Kmart took any steps to mark the bench as needing preservation or that Kmart stored the bench in a location accessible only to the “management team.” Nor does the record explain why the store director, who joined the store after the accident and later ordered the bench disposed of, had not been informed of the need to preserve it. Thus, the record supports the trial court’s finding that Kmart had engaged in reckless behavior by its “shocking lack of care in preserving potentially adverse evidence that was in its sole possession and control.”

Accordingly, we will not disturb the finding of recklessness.

C.

Because the trial court’s order also explained the jury instructions on remedial grounds, we address Kmart’s contention that the instructions exceeded any necessary remedial measures. We conclude that the instructions were within the trial court’s discretion on this basis.

If the spoiling party is merely negligent, an adverse inference nevertheless may be imposed to remediate harm when the inference is “reasonably likely to have been contained in the destroyed evidence.” Rodriguez v. Schutt, supra, 896 P.2d at 884 (quoting Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 77 (S.D.N.Y.1991)).

Here, Kmart’s manager acknowledged that the bench was removed from use because it represented a possible danger to the public. This admission supports the trial court’s conclusion that had the bench survived, it would have been unfavorable to Kmart. Nevertheless, Kmart argues that the instructions were not necessary to remediate the resulting harm. We examine separately the harm to Waymar, the harm to Pfantz, and the relationship of the instructions to that harm.

1.

The trial court found that the bench’s “evidentiary value was substantially destroyed.” The report of Pfantz’s expert stated that the injury resulted from Way-mar’s design of the bench as well as from repairs and modifications by Kmart. In contrast, Waymar’s trial expert concluded, “Due to the disassembled state and missing parts related to the current condition of the bench, I cannot at this time complete an analysis of the injury potential related to this incident.” Thus, Waymar’s defense that the bench was designed correctly, but failed only because of modifications and repairs by Kmart, could not be supported with expert testimony.

Accordingly, we do not perceive that the trial court abused its discretion in imposing the instruction that Kmart was the cause of the defective condition, as a remedial measure assisting Waymar.

2.

In attacking the instruction that the bench was presumed to be defective, which assisted Pfantz but not Waymar, Kmart correctly notes that Pfantz’s expert thoroughly inspected the bench before its destruction and prepared a report. Nevertheless, we conclude that this instruction was also within the trial court’s discretion.

Pfantz’s expert theorized that, as Pfantz sat down, the seat back deflected, exposing the upturned lip of the seat bottom which then impacted his tail bone, resulting in the injuries at issue. The expert’s report explained that only 1/2 to 5/8 of an inch of the upturned seat bottom was exposed. When joining in Waymar’s motion for sanctions, Pfantz explained he had intended to use the bench to show the jury how it posed a safety hazard.

Whether an object or condition is hazardous raises a fact question for the jury. See Millenson v. Dep’t of Highways, 41 Colo.App. 460, 462, 590 P.2d 979, 981 (1978). “If a material issue in the case is whether an object does or does not possess a perceptible feature, characteristic, or quality, the most satisfactory method of demonstrating the truth of the matter will ordinarily be to produce the object so that the trier of fact may perceive the quality, or its absence, for himself.” 8 McCormick on Evidence § 212 (John W. Strong ed., 1999).

Here, the expert evidence alone may not have been sufficient to persuade the jury that this limited exposure caused injuries of the magnitude Pfantz claimed. If the jurors could have examined the bench and seen how far the seat back deflected and the actual circumstances under which deflection occurred, these observations might have assisted it in determining that the bench was a hazard. Hence, the photographs and videotapes taken by Pfantz’s expert would not necessarily be a satisfactory substitute for use of the bench as physical evidence at trial.

Accordingly, we also perceive no abuse of discretion in the instruction that the bench was defective as a remedial measure to assist Pfantz.

D.

We also reject Kmart’s assertion that the trial court erred in not holding a hearing on the sanctions motion.

C.R.C.P. 121, § 1-15 does not require that hearings be held on motions, and Kmart cites no case authority requiring a hearing prior to the imposition of sanctions for spoliation of evidence. In this context, due process requires only notice and an opportunity to respond, both of which Kmart received. See Raymond Lloyd Co. v. Dist. Court, 732 P.2d 612 (Colo.1987).

Moreover, all parties filed a stipulation seeking a forthwith ruling and requesting a hearing only if deemed “reasonable and necessary” by the trial court. In its motion to reconsider the sanctions order, Kmart did not protest that the trial court had ruled without a hearing.

Accordingly, we perceive no abuse of the court’s discretion in entering the sanctions without a hearing.

II.

Kmart next asserts that the trial court erred in denying its C.R.C.P. 59(e) motion for judgment notwithstanding the verdict because the $30,000 award for future medical expenses was not supported by sufficient evidence. We disagree.

A judgment notwithstanding the verdict may be entered only if, when viewing the evidence in the light most favorable to the party against whom the motion is directed, reasonable persons could not reach the same conclusion as the jury. Alzado v. Blinder, Robinson & Co., 752 P.2d 544, 552 (Colo.1988). Every reasonable inference that may be drawn from the evidence must be drawn in favor of the nonmoving party. Klein v. State Farm Mut. Auto. Ins. Co., 948 P.2d 43, 47 (Colo.App.1997).

“The amount of damages awarded may be an approximation, provided that the fact of damages is certain and provided the plaintiff introduces some evidence that is sufficient to permit a reasonable estimation of damages.” Dupont v. Preston, 9 P.3d 1193, 1199 (Colo.App.2000), aff'd, 35 P.3d 433 (Colo.2001). Where the fact of damage has been proved, the amount of damages is generally within the province of the jury. Dupont v. Preston, supra.

An injured person’s history of medical treatment for the injury at issue may support an award of future medical expenses. See CeBuzz, Inc. v. Sniderman, 171 Colo. 246, 255, 466 P.2d 457, 461 (Colo.1970). The need for future surgery need not be established where a plaintiff is incurring other medical expenses, such as therapy and medications, or suffers from reduced movement as a result of the injury. Martin v. Porak, 638 P.2d 853, 855 (Colo.App.1981); Zertuche v. Montgomery Ward & Co., 706 P.2d 424, 428 (Colo.App.1985).

Here, the jury heard significant and sometimes uncontroverted testimony about the extent of Pfantz’s injuries, past surgeries, reduction in motion, ongoing therapy, and lingering symptoms.

Nevertheless, Kmart attacks the testimony of Pfantz’s physician, expressed with a reasonable degree of medical certainty, that Pfantz faced a twenty to twenty-five percent chance of requiring additional surgery. According to Kmart, these percentages amount to no more than speculation and conjecture. We are not persuaded that the future medical expense award depends on this testimony.

Kmart assumes that the future medical expense award depended solely on this testimony. However, the jury also heard testimony of Pfantz’s entire medical history, which supports an award of future medical expenses. On this record, we cannot conclude that the amount awarded by the jury is “grossly and manifestly excessive or is the result of passion and prejudice.” See Zertuche, supra, 706 P.2d at 428.

Accordingly, we perceive no error in the trial court’s refusal to reduce this award.

The judgment is affirmed.

Judge NEY and Judge PIERCE concur.


source: Caselaw Access Project

author: Judge ROTHENBERG.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Stephen Corbin ROTH, Defendant-Appellant.
    No. 02CA0160.
    Colorado Court of Appeals, Div. V.
    Aug. 14, 2003.
    Certiorari Denied March 8, 2004.

      Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Robert J. Mulhern, Telluride, Colorado; Robert Unruh, Telluride, Colorado, for Defendant-Appellant.
   Opinion by

Judge ROTHENBERG.

Defendant, Stephen Corbin Roth, appeals the judgment of conviction entered upon a jury verdict finding him guilty of unlawful possession of drug paraphernalia. He challenges the trial court’s pretrial ruling denying his motion to suppress evidence obtained as the result of an allegedly unlawful search of his car. We affirm.

After a hearing on defendant’s motion to suppress, the trial court found the following. Police officers, acting with the intent to interdict persons transporting drugs to a music festival, posted large signs on a road stating “Narcotics Checkpoint, One Mile Ahead” and “Narcotics Canine Ahead.” The signs were part of an elaborate ruse because there was no checkpoint or other impediment to the free flow of traffic. The purpose of the signs was to allow police officers, dressed in camouflage clothing and hidden on a nearby hill, to monitor the reactions of persons traveling-past the signs.

One of the officers watching the section of road near the signs (the first officer) testified that he saw a passenger in defendant’s ear toss a small item out of the window onto the side of the road. The officer radioed another police officer farther down the road, provided him with a description of defendant’s car, and described the littering violation committed by the passenger.

A police officer stationed farther down the road (the second officer) flagged defendant down and directed him to pull into a campground area. The second officer informed defendant that he had been stopped because his passenger had been seen throwing an object from the car. Defendant told the officer the passenger had discarded a beverage can. The officer asked defendant for his license and registration which defendant provided.

Approximately one minute later, the first officer radioed the second officer and informed him he had retrieved the item the passenger had thrown from defendant’s car, and it was a pipe containing residue suspected to be marijuana.

The second officer asked for permission to search defendant’s car, but defendant refused. Nevertheless, the officer searched the car and discovered a marijuana pipe and some psilocybin mushrooms. When defendant asked the officer to retrieve an item from his backpack, the officer searched the backpack and discovered another marijuana pipe.

The trial court found that the police officers who testified were credible and denied defendant’s motion. At trial, defendant was acquitted of the unlawful possession of mushrooms.

I.

Defendant first contends the fictitious checkpoint violated the protections against unreasonable searches and seizures of the federal and state constitutions. We disagree.

A.

A drug checkpoint in which vehicles are stopped without reasonable suspicion that the occupants have engaged in criminal activity constitutes illegal police conduct in violation of the Fourth Amendment. Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).

However, the use of fictitious or ruse checkpoints has presented a slightly different issue. United States v. Flynn, 309 F.3d 736 (10th Cir.2002), involved facts very similar to those presented here, and we agree with its reasoning.

There, the court addressed the constitutionality of such a fictitious drug checkpoint. The defendant was driving on an interstate highway when he passed signs reading “Drug Checkpoint 1/3 mile ahead” and “Drug Dogs in Use.” The signs were part of a ruse orchestrated by police because there was no real checkpoint.

The defendant exited the highway and police officers watched as a passenger in the car opened the door and dropped a sack from the car. The officers retrieved the sack, determined that it contained narcotics, and radioed the information to other officers who stopped defendant’s car and arrested him.

The court upheld the trial court’s ruling denying the defendant’s motion to suppress and concluded the fictitious drug checkpoint did not constitute an impermissible drug checkpoint. The court further concluded it was not unconstitutional for the police officers to have created a ruse which caused the defendant to abandon an item of property, the discovery of which provided reasonable suspicion to stop the defendant’s vehicle. United States v. Flynn, supra, 309 F.3d at 739. See People v. Santistevan, 715 P.2d 792 (Colo.1986)(misrepresentation by police about the purpose of a search may weigh against a finding of consent but does not invalidate consent); People v. Zamora, 940 P.2d 939, 942 (Colo.App.1996)(“Although deception by the police is not condoned by the courts, the limited use of ruses is supported by the overwhelming weight of authority.”).

The Flynn court reasoned that the stop there was based on the individualized suspicion of illegal activity, and therefore was distinguishable from that in Indianapolis v. Edmond, supra.

Defendant relies on Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990); and United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). In both cases, the Supreme Court upheld the use of police roadblocks or checkpoints to examine motorists for their sobriety and immigration status, respectively, but the Court analyzed the constitutionality of the checkpoints using a balancing test articulated in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).

Defendant maintains that the balancing test used in Martinez-Fuerte, Brown, and Sitz should have been used by the trial court in this case, and that if the court had done so, it would have been required to grant his motion to suppress. We disagree the balancing test applies where, as here, the stop by the police was not random, but was based on an individualized suspicion of criminal activity.

Brown v. Texas, supra, was not a checkpoint case. There, the defendant was convicted of violating a Texas statute making it a crime for a person to refuse to identify himself or herself to a peace officer who made a lawful stop and requested such information. The United States Supreme Court held the detention of the defendant was unreasonable because the police lacked a reasonable suspicion that he was involved in any criminal activity.

Citing Martinez-Fuerte, the Court in Brown v. Texas, supra, explained the need for a balancing test where the defendant is challenging the reasonableness of a seizure that is less intrusive than a traditional arrest. The Court stated that “[consideration of the constitutionality of such seizures [should involve] a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Brown v. Texas, supra, 443 U.S. at 50, 99 S.Ct. at 2641, 61 L.Ed.2d at 361 (cites omitted).

In contrast to Brown v. Texas, supra, where the police had no evidence of any criminal activity, the police here observed defendant’s passenger commit the offense of littering. This offense, while minor, justified the police in stopping defendant’s car. See § 18-4-511(1), (4), C.R.S.2002 (“Any person who deposits, throws, or leaves any litter on any public or private property ... commits [the class two petty offense of] littering”).

In Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), police set up a routine license checkpoint. When the defendant was stopped and asked for his license, a police officer shined his flashlight into the car and saw small plastic vials and quantities of loose white powder later determined to be heroin. The Supreme Court upheld the search under the plain view doctrine. It did not discuss the constitutionality of the checkpoint. Thus, to the extent defendant here also relies on Texas v. Brown, supra, we conclude it is inapposite.

We are persuaded the analysis in United States v. Flynn, supra, is appropriate, and the court there did not reference the balancing test set forth in Martinez-Fuerte, Brown, or Sitz. We therefore conclude the use of the fictitious drug checkpoint here did not violate defendant’s rights under the Fourth Amendment because the stop of his car by police was based on their individualized suspicion of unlawful activity.

B.

Relying solely on his Fourth Amendment argument, defendant also contends the fictitious drug checkpoint violated his federal rights of due process, equal protection, privacy, and travel. But he does not offer any separate analysis to support these claims.

Because we have rejected his Fourth Amendment argument, we necessarily reject these derivative arguments.

c.

Defendant next contends his rights under the Colorado Constitution were violated, and the motion to suppress should have been granted on that basis. We disagree.

On a few occasions, our supreme court has ruled that Article II, Section 7, of the Colorado Constitution affords broader protections than the Fourth Amendment of the United States Constitution. However, in every instance in which it has done so, the court has identified a privacy interest deserving of greater protection than that available under the Fourth Amendment. See People v. Haley, 41 P.3d 666, 672 (Colo.2001)(cases cited).

Here, however, while defendant claims he is entitled to broader protection under the Colorado Constitution, he is unable to explain how the ruse perpetrated by the police officers implicated a privacy interest.

The trial court’s findings establish that if defendant’s passenger had not violated the law against littering, defendant would not have been detained by the police officers who were conducting this interdiction operation. Indeed, the People conceded at oral argument — and we agree — that while police may stop a vehicle whose occupant they observed littering, a search based on littering alone would have been unreasonable.

We thus perceive no infringement upon a privacy interest that would justify interpreting Article II, Section 7, of the Colorado Constitution differently from the Fourth Amendment of the United States Constitution.

Nor are we aware of any textual or historical differences between the two constitutional provisions that would warrant a divergent interpretation. See People v. Haley, supra, 41 P.3d at 679 (Kourlis, J., dissenting)(diver-genee from interpretation of corollary provision in federal constitution is warranted when the language of the state constitution differs from its federal counterpart, or when the historical or legal context in which the state constitution was framed or has existed over time differs from its federal counterpart).

Furthermore, the state statutes upon which defendant relies provide no greater privacy protection than that which exists under the Fourth Amendment. Sections 16-3-102 (probable cause necessary for an arrest), 16-3-103 (reasonable suspicion necessary for an investigative detention), 16-3-110 (authority of officer to act when a felony or misdemeanor is committed in the officer’s presence), C.R.S.2002.

Accordingly, we reject defendant’s contention that the trial court erred in denying his motion to suppress and rejecting his argument based on the state constitution.

II.

Defendant next contends the police officers did not have a lawful basis to stop and search his vehicle. Again, we disagree.

In reviewing a trial court’s suppression order, we defer to the trial court’s factual findings, and we will not disturb them if they are supported by competent evidence in the record. We review the trial court’s conclusions of law de novo. People v. Heilman, 52 P.3d 224, 227 (Colo.2002).

“Probable cause to arrest exists when, under the totality of the circumstances at the time of arrest, the objective facts and circumstances available to a reasonably cautious officer at the time of arrest justify the belief that an offense has 'been or is being committed by the person arrested.” People v. King, 16 P.3d 807, 813 (Colo.2001).

We reject defendant’s assertion that the trial court incorrectly resolved certain conflicts in the suppression hearing evidence. To the contrary, we conclude the record adequately supports the trial court’s findings of fact, and based on those findings about the officer’s observations, the officers had probable cause to believe the passenger in defendant’s car had committed the petty offense of littering. Section 18-4-511(1), (4), C.R.S. 2002.

The trial court accepted as credible the officers’ testimony that, almost immediately after the stop, they learned from another officer that the item discarded by the passenger was drug paraphernalia with burnt residue suspected to be marijuana. See People v. Taylor, 41 P.3d 681 (Colo.2002)(where police officers possess probable cause to arrest a passenger in a vehicle, they may stop the vehicle in order to effect an arrest of the passenger); People v. Washington, 865 P.2d 145 (Colo.1994)(the “fellow officer” rule provides that an arresting officer who does not personally possess sufficient information to constitute probable cause may nevertheless make a warrantless arrest if he or she acts upon the direction or as a result of a communication from a fellow officer, and the police, as a whole, possess sufficient information to constitute probable cause).

Accordingly, the trial court determined, and we agree, the police then had probable cause to believe the car contained evidence of a crime, and were justified in searching the car and its contents. See People v. H.J., 931 P.2d 1177 (Colo.1997)(when an officer has made a lawful custodial arrest of an occupant of a vehicle, the officer may search the entire interior of the passenger compartment, even if the subject has already been removed from the vehicle; the authority to search the passenger compartment incident to arrest is automatic and does not depend upon the specific facts of each case); People v. McMillon, 892 P.2d 879 (Colo.1995)(officer had probable cause to search car where he observed a syringe in the car and the surrounding circumstances gave rise to an inference that the syringe was drug paraphernalia; probable cause to search car for drugs includes closed containers found within the car).

The officers’ subjective motives were irrelevant. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)(other-wise lawful conduct by law enforcement officers is not made illegal or unconstitutional merely because the officers’ subjective intent is illegitimate); People v. Altman, 938 P.2d 142, 146 (Colo.1997)(same).

We therefore conclude the trial court did not err in denying defendant’s motion to suppress.

Judgment affirmed.

Judge VOGT and Judge CARPARELLI concur.


author: Judge NIETO.

text:
    James R. BURKETT, Jeri M. Burkett, and The Orin S. Richardson and Gene Richardson Family Trust, Plaintiffs-Appellants, v. AMOCO PRODUCTION COMPANY, Defendant-Appellee.
    No. 02CA1104.
    Colorado Court of Appeals, Div. IV.
    Aug. 14, 2003.
    Certiorari Denied March 15, 2004.

      McDaniel, Baty, Miller, Agro & Downs, LLC, G.R. Miller, Durango, Colorado, for Plaintiffs-Appellants.
    Dugan & Associates, P.C., Thomas P. Du-gan, Durango, Colorado, for Defendant-Ap-pellee.

       Justice KOURLIS would grant as to the following issues:
      Whether the court of appeals erred when it held there exists no judiciable case or controversy between the parties and affirmed dismissal of Plaintiffs declaratory judgment action.
      Whether the court of appeals erred when it did not reverse the trial court’s determination that Colorado courts must refrain from considering Plaintiffs' contract claims until after Plaintiffs have exhausted administrative remedies purportedly available to them at the Colorado Oil and Gas Conservation Commission and/or before unspecified "local agencies”.

   Opinion by

Judge NIETO.

In this dispute concerning sites for proposed gas wells, plaintiffs, James R. Burkett, Jeri M. Burkett, and The Orin S. Richardson and Gene Richardson Family Trust, appeal the order entered in favor of defendant, Amoco Production Company, dismissing plaintiffs’ complaint. We affirm.

Plaintiffs own real property in La Plata County, Colorado. Defendant operates nine producing gas wells on the property. In July 2000, the Colorado Oil and Gas Conservation Commission (COGCC) entered an order granting defendant general permission to drill additional wells in each spacing unit and designating a twenty-three acre “drilling window” for each spacing unit. Some of these drilling windows are on plaintiffs’ property.

With plaintiffs’ permission, defendant began, but did not complete, constructing sites for two wells. However, the parties have not reached an agreement as to the size of those sites or the parameters of any additional wells that may be drilled on plaintiffs’ prop-: erty.

Before defendant can begin drilling any of the authorized wells, it must file an application for a permit to drill (APD) with the COGCC containing the specific site for the proposed well and, if possible, a signed surface use agreement. The parties have attempted to negotiate surface use agreements for a number of proposed wells, but those negotiations have not yet been successful. The parties acknowledge that only defendant can file an APD, that an APD is required before the specific locations and parameters of any such wells can be determined, and that defendant has not filed an APD.

Plaintiffs filed a complaint seeking a declaratory judgment and related injunctive relief. Defendant filed a motion to dismiss, which the trial court granted, finding that a declaratory judgment would not resolve the dispute between the parties and that the court lacked jurisdiction because plaintiffs had not exhausted their administrative remedies. This appeal followed.

Plaintiffs contend that the trial court erred in dismissing their complaint after concluding that no justiciable case or controversy existed and that the requested declaratory judgment would not resolve the dispute between the parties. We disagree.

The right to declaratory judgment is governed by § 13-51-101, et seq., C.R.S.2002, and C.R.C.P. 57(b).

Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

C.R.C.P. 57(b).

However, a “court may refuse to render or enter a declaratory judgment or decree where such judgment or decree if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.” C.R.C.P. 57(f).

A request for declaratory judgment must be based upon an actual controversy and cannot be used to obtain advisory opinions based upon the mere possibility of a future controversy. Burcham v. Burcham, 1 P.3d 756, 757 (Colo.App.2000). The controversy presented must be current- rather than one that may arise at some future time. Three Bells Ranch Assocs. v. Cache La Poudre Water Users Ass’n, 758 P.2d 164 (Colo.1988); McDonald’s Corp. v. Rocky Mountain McDonald’s, Inc., 42 Colo.App. 143, 590 P.2d 519 (1979); Utah Int’l, Inc. v. Bd. of Land Comm’rs, 41 Colo.App. 72, 579 P.2d 96 (1978).

“In reviewing the dismissal of a complaint for failure to state, a claim for relief, the material allegations of the complaint must be taken as correct.” Burcham v. Burcham, supra, 1 P.3d at 757. However, the decision to grant an anticipatory declaratory judgment is within the sound discretion of the trial court and will be overturned only for an abuse of discretion. Lot Thirty-Four Venture, L.L.C. v. Town of Telluride, 976 P.2d 303 (Colo.App.1998), aff'd, 3 P.3d 30 (Colo.2000).

The lessee of a severed mineral estate is privileged to use that portion of the surface that is reasonably necessary to develop the mineral interest. However, the surface owner continues to enjoy the right to use the surface consistent with the burden of the mineral lessee’s privilege to develop the mineral interest. Neither the owner nor the lessee has an absolute right to exclude the other from the surface, but rather, each must have due regard for the rights of the other in making use of the surface. This due regard concept requires the lessee to accommodate the surface owner to the fullest extent possible consistent with the lessee’s right to use the surface for the reasonable development of the mineral estate. If the lessee’s operation would impair or preclude uses by the surface owner, the owner’s right to be accommodated includes the right to require the lessee to use reasonably available alternatives. Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913 (Colo.1997).

Plaintiffs contend that they have the right to select the reasonable location of defendant’s proposed wells, roads, pipelines, and other facilities and that defendant must utilize them selections in any APD. Defendant denies that plaintiffs have such a right, and therefore plaintiffs argue that an actual dispute exists concerning the scope of their respective rights under the leases and under Colorado law.

Defendant argues that plaintiffs’ request is premature and would result in an advisory opinion because defendant has not yet submitted an APD for any proposed well. Defendant does not dispute that it has a duty to act reasonably, but argues that there is no existing controversy because it may never seek drilling permits, and if it does, the details of those permits have not yet been determined and may be satisfactory to both parties. Defendant further argues that if it does file an APD without reaching a surface use agreement, a declaratory judgment will not resolve any controversy because the trial court cannot determine whether any future plans are in fact reasonable, as such plans have not yet been devised. We agree with defendant.

Gerrity Oil & Gas Corp. v. Magness, supra, makes clear that defendant’s right to use the surface is limited to what is reasonable and necessary to develop the mineral estate. It also makes clear that plaintiffs’ right to require accommodation of their surface uses is contingent on defendant’s reasonable and necessary requirements for mineral development and the availability of reasonable alternatives. Defendant does not dispute that the principles described in Gerrity are applicable to its relations with plaintiffs. Therefore, regardless of which party initially selects the sites for defendant’s surface uses, the question of what is reasonable and necessary cannot be resolved until the site selection is made and reasonable alternatives, if any, are identified. Declaratory judgment is not appropriate “where the dispute requires an interpretation in light of extrinsic facts which are not yet determinable.” McDonald’s Corp. v. Rocky Mountain McDonald’s, Inc., supra, 42 Colo.App. at 145, 590 P.2d at 521.

Moreover, while it may be likely that defendant will submit an APD to COGCC at some time in the future, until it actually obtains the permit and the local approvals required before drilling can begin, there is no present conflict between the parties. Absent a present conflict, a declaratory judgment claim under C.R.C.P. 57 is not justiciable. Heron v. City & County of Denver, 159 Colo. 314, 411 P.2d 314 (1966); Utah Int'l, Inc. v. Bd. of Land Comm’rs, supra.

Further, even if we were to conclude that a present controversy justiciable under C.R.C.P. 57 is presented by the discrete question of which party has the right to designate the location of defendant’s surface uses in the APD, plaintiffs still are not necessarily entitled to a declaratory judgment. Where the trial court determines that the declaration sought would not resolve the conflict giving rise to the proceeding, as it has here, it has discretion to refuse to enter a declaratory judgment. Lakewood Fire Prot. Dist. v. City of Lakewood, 710 P.2d 1124 (Colo.App.1985).

Therefore, we conclude that the trial court did not abuse its discretion in determining that the declaratory judgment sought by plaintiffs would not resolve the controversy and did not present a justiciable dispute.

Plaintiffs argue that a declaratory judgment is proper here under Board of County Commissioners v. Bowen/Edwards Associates, Inc., 830 P.2d 1045 (Colo.1992). There, the supreme court addressed “whether in an action for declaratory and injunctive relief [the petitioner] ... has standing to challenge the validity of the county’s land-use regulations pertaining to oil and gas activities within the county without first filing a permit-application with the county and obtaining administrative approval of the application.” Bd. of County Comm’rs v. Bowen/Edwards Assocs., Inc., supra, 830 P.2d at 1048. The supreme court concluded that the petitioner had standing to make such a challenge because the regulations at issue would have had an adverse impact on the petitioner’s operations at that time, and the fact that the petitioner had not applied for a permit did not create a factual void or lack of present controversy.

Here, in contrast to Bowen/Edwards, until defendant submits an APD, there is no present controversy. Also, as discussed above, the relief sought here would not dispose of the controversy because there are no present concrete plans available for review.

Plaintiffs also rely on Three Bells Ranch Associates v. Cocke La Poudre Water Users Ass’n, supra, in arguing that a declaratory judgment is proper. There, the issues were whether the sand and gravel pits in question constituted “wells” subject to regulation pursuant to applicable statutes and whether the creation of the sand and gravel pits would cause harm to the plaintiffs’ water rights in the future. The court concluded that the determination of the issues had legal conse1 quences at that time because it would dictate whether the defendants were required to obtain permits and because under the existing reclamation plans, future injury would be inevitable. This ease is inapposite, because here there is no dispute concerning which regulations are applicable, and plaintiffs’ injuries, if any, cannot be determined until the site selection for defendant’s surface uses has been made.

Based on our resolution of the issue above, we need not consider plaintiffs’ contention that the trial court erred in concluding that they failed to exhaust their administrative remedies.

The order is affirmed.

Chief Judge DAVIDSON and Judge GRAHAM concur.


author: Judge CASEBOLT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Carlos CARRASCO, Defendant-Appellant.
    No. 01CA1457.
    Colorado Court of Appeals, Div. II.
    Aug. 28, 2003.
    Certiorari Denied March 8, 2004.

      City and County of Denver District Court No. 99CR3951, Joseph E. Meyer, III, Judge and Herbert L. Stern, III, Judge.
    Ken Salazar, Attorney General, Wendy J. Ritz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Andrea R. Manning, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge CASEBOLT.

Defendant, Carlos Carrasco, appeals the judgment of conviction entered upon a jury verdict finding him guilty of criminal mischief and his adjudication following a bench trial as a habitual criminal. He also appeals that part of his sentence imposing a period of mandatory parole. We affirm the judgment of conviction, but remand for correction of the mittimus to reflect discretionary parole.

I.

Relying on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), defendant contends that the habitual criminal act, § 18-1.3-801, et seq., C.R.S.2002 (formerly § 16-13-101), is unconstitutional because it allows a judge, not a jury, to find facts that increase a defendant’s sentence beyond that authorized by the jury’s verdict. We disagree.

In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435, 455 (2000), the Supreme Court stated: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The Court thus maintained the “prior conviction exception” to the jury adjudication requirement first established in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which permits a judge to make findings regarding prior convictions and thereby increase the penalty for a crime.

As a result, a division of this court has held that there is no right to a jury trial in habitual criminal proceedings and thus the statute authorizing the court to determine habitual criminality issues does not violate the Sixth Amendment or Colo. Const. art. II, § 16. People v. Johnson, 74 P.3d 349 (Colo.App.2002).

Defendant contends that Ring eliminates the prior conviction exception. We are not persuaded.

In Ring, the Supreme Court overturned Arizona’s death penalty statute, which had allowed a judge to find aggravating factors warranting the death penalty, because Arizona’s enumerated aggravating factors operated as the functional equivalent of an element of a greater offense. The Court held the Sixth Amendment requires such factors to be found by a jury.

As defendant asserts, previous conviction was specified as an aggravator in three of the factors listed in the Arizona death penalty statute. However, the Ring Court explicitly noted that the defendant had no aggravating circumstance related to past convictions and that he therefore did not challenge Almenda-rez-Torres and the prior conviction exception. Hence, Ring is inapposite.

Moreover, notwithstanding remarks made by some individual Justices criticizing Al-mendarez-Torres, and even though the Ring Court did not restate the prior conviction exception in its opinion, the Court has not yet overruled or limited it. Until it does so, the previous conviction exception remains viable.

Accordingly, we reject defendant’s contention.

II.

Defendant next contends there was insufficient identification evidence to prove the habitual criminal counts because the prosecution only offered fingerprint evidence that was attached to his arrest record, and it did not produce Department of Corrections fingerprint cards associated with each prior conviction. Specifically, defendant contends that while the prosecution’s evidence establishes he was arrested in connection with the prior cases, it does not establish that he was the person who was actually convicted. We disagree.

A challenge to the sufficiency of the evidence requires a reviewing court to determine whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crime charged beyond a reasonable doubt. The prosecution must be given the benefit of every reasonable inference that might fairly be drawn from the evidence. Kogan v. People, 756 P.2d 945 (Colo.1988); People v. Tafoya, 985 P.2d 26 (Colo.App.1999).

In habitual criminal proceedings, the prosecution bears the burden of proving beyond a reasonable doubt that the accused is the person named in the prior convictions. People v. Bernabei, 979 P.2d 26 (Colo.App.1998).

Offering evidence of fingerprint cards and expert testimony linking those prints to the defendant is a valid method for proving the identity element, but it is not the only way to show identity. Section 18-1.3-802, C.R.S.2002; People v. Bernabei, supra.

Here, the prosecution offered the testimony of a Denver Police Department (DPD) fingerprint examiner. He testified that when a person is arrested, he or she is fingerprinted and a master fingerprint card with a unique DPD number is kept on file. When that person is subsequently arrested, the fingerprints are compared to the master card to verify identity.

The prosecution presented evidence that the DPD had a master card for a Carlos Carrasco with a DPD number 483047. The fingerprint examiner testified he had fingerprinted defendant during the trial in this ease, and after comparing his fingerprints with the master card, determined he was the same person who had been fingerprinted for master card 483047.

The prosecution also offered the arrest record of Carlos Carrasco bearing DPD number 483047, which referenced two prior cases: 99CR1705 and 98CR3266. Again, the fingerprint examiner found the prints attached to the arrest record for those cases to be the same as those taken from defendant. The prosecutor also offered certified copies of the convictions in cases 99CR1705 and 98CR3266, as well as transcripts of the provi-deney and sentencing hearings in those cases.

The trial court found that the fingerprint evidence, the DPD number, and the circumstantial evidence from the submitted transcripts demonstrated defendant was the same person convicted and sentenced in the two previous cases.

Despite the fact that fingerprint evidence was not attached to defendant’s conviction record, we are satisfied that the evidence presented was sufficient to allow a reasonable fact finder to determine, beyond a-reasonable doubt, that the defendant was the same Carlos Carrasco who had been convicted of the two previous felonies. The DPD number linked defendant to the two previous felony convictions. Further, the fingerprints linked to the DPD number matched those taken from defendant during the trial here.

Defendant nonetheless argues that his DPD number only appears on the charging document submitted with the mittimuses, not on the mittimuses themselves, and that the charging document is hearsay and thus was improperly considered. He asserts that the charging document does not fall within the exception to the hearsay rule contained in CRE 803(8) because it does not set forth the activities of the court, the court did not observe the contents set forth in the charging document, and it had no duty to report on it. We disagree.

Because defendant did not object to the document’s admission during the hearing, we review for plain error. Plain error exists when an appellate court, after reviewing the entire record, can say with fair assurance that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. Wilson v. People, 743 P.2d 415 (Colo.1987).

CRE 803(8)(A) provides that, unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, are admissible as an exception to the hearsay rule. See Leiting v. Mutha, 58 P.3d 1049 (Colo.App.2002).

Here, the charging document sets forth the activities of the Denver District Attorney’s office and thus was admissible under CRE 803(8)(A). It does not matter that the document was created by the Denver District Attorney, but was taken and certified from the district court records. See People v. Copeland, 976 P.2d 334 (Colo.App.1998)(properly authenticated copies may originate from public agencies other than those in which the records reside), aff'd, 2 P.3d 1283 (Colo.2000). Hence, there was no error, let alone plain error.

III.

Defendant contends the court erred in refusing to suppress identification testimony concerning an impermissibly suggestive photographic array. We disagree.

To determine the admissibility of out-of-court photographic identifications, a court must consider whether the defendant has demonstrated that the array was impermissi-bly suggestive. If the defendant has not met this burden, no further inquiry is necessary. If the defendant meets this burden, then the prosecution must show that the identification was nevertheless reliable under the totality of the circumstances. People v. Borghesi, 66 P.3d 93 (Colo.2003).

Relevant factors in determining whether a pretrial photographic identification procedure is impermissibly suggestive include the size of the array, the manner of its presentation by the officers, and the details of the photographs themselves. Bernal v. People, 44 P.3d 184 (Colo.2002).

An array containing as few as six pictures is not per se a due process violation, although the fewer pictures in an array, the closer the array must be scrutinized for suggestive irregularities. Bernal v. People, supra.

If the number of photographs is not so small as to make the array impermissibly suggestive, and there is nothing suggestive in the manner of the official’s presentation of the array, then the remaining consideration is whether the photographs in the array are so limited that the defendant is the only one to match the witness’s description of the perpetrator. People v. Borghesi, supra.

The police do not have to provide a photo array containing only “exact replicas” of the defendant’s picture. Rather, all that is required is that the photos be matched by race, approximate age, facial hair, and a number of other characteristics. Bernal v. People, supra; People v. Webster, 987 P.2d 836 (Colo.App.1998).

The ultimate question as to the constitutionality of pretrial identification procedures is a mixed question of law and fact. Thus, while the trial court’s findings of historical fact are entitled to deference, we may give different weight to those facts and may reach a different conclusion in light of the legal standard. Bernal v. People, supra.

Here, the photo array contained six photographs. All the men in the array are the same race and approximate age, have the same type of facial ham, and share many facial characteristics. Defendant correctly points out that the exposure in his photograph is darker than that in the other five photographs. However, the similarity of the men in the photographs, and the fact that the witnesses using this photographic array already knew defendant, compensate for any difference in this regard. See People v. Borghesi, supra, 66 P.3d at 105 (differences in shade and tone of a defendant’s photograph do not by themselves render an array imper-missibly suggestive).

Because the array was not impermissibly suggestive under these circumstances, we need not address the second prong of the Borghesi test.

IV.

Defendant next contends the trial court erred by imposing a period of mandatory parole. We agree.

Pursuant to People v. Falls, 58 P.3d 1140 (Colo.App.2002), individuals who are sentenced as habitual criminals are subject to the discretionary parole statute, § 17-2-201(5)(a), C.R.S.2002.

Here, the court imposed an eighteen-year prison term with three years of mandatory parole. Hence, we must remand for correction of the mittimus to specify that defendant is subject to discretionary parole.

The judgment of conviction is affirmed, and the case is remanded with directions to correct the mittimus to reflect discretionary parole.

Judge NEY and Judge WEBB concur.


author: Judge HUME.

text:
    Peter C. DROSTE; Peter C. Droste, as trustee of a trust for the benefit of Peter C. Droste, Jr., and Elise Droste under written trust instrument dated December 25, 1991; Bruce F. Droste; and Bruce F. Droste, as trustee of a trust for the benefit of Edward Droste and William Droste under written trust instrument dated December 25, 1991, Plaintiffs-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF PITKIN, Colorado; Patti Clapper, Dorothea Farris, Jack Hatfield, Mick Ireland, and Shellie Roy Harper, in their official capacities as members of the Board of County Commissioners of the County of Pitkin, Colorado; and James R. True, in his official capacity as Pitkin County Hearing Officer, Defendants-Appellees.
    No. 02CA1156.
    Colorado Court of Appeals, Div. I.
    Aug. 28, 2003.
    Certiorari Denied March 15, 2004.

      Grimshaw & Harring, P.G., Wayne B. Schroeder, Jody Harper Alderman, Julie Ka-ron Blakley, Denver, Colorado, for Plaintiffs-Appellants.
    John M. Ely, County Attorney, Aspen, Colorado; Berg Hill Greenleaf & Ruscitti, LLP, Josh A. Marks, Denver, Colorado, for Defendants-Appellees.
    Berenbaum, Weinshienk & Eason, P.C., David R. Eason, Denver, Colorado; Patton Boggs, LLP, Carolyn McIntosh, Denver, Colorado, for Amicus Curiae Regents of the University of Colorado.

       Justice KOURLIS would grant as to the following issue:
      Whether the court of appeals erred by concluding that Pitkin County may employ the Local Government Land use control Enabling Act (Enabling Act), section 29-20-101, et seq., C.R.S., to deny approval of the development of a "use by right” in a designated area of state interest, even though the proposed development is expressly exempted from regulation by the zoned land exemption of the Areas and Activities of State Interest Act (AASIA), section 24-65.1-101, et seq., C.R.S.

   Opinion by

Judge HUME.

Plaintiffs, Peter C. Droste and Bruce F. Droste, appeal the trial court’s judgment rejecting their claims arising from Pitkin County’s denial of their land use applications. We affirm.

In 1963, the Drostes purchased approximately 926 acres of land, known as Droste Ranch, lying between the City of Aspen and the Town of Snowmass Village in Pitkin County, Colorado. In 1996, the Drostes sold a conservation easement on the property to Pitkin County. In 1999, they also sold another conservation easement to the Town of Snowmass Village and Pitkin County. In both conservation easement agreements, the parties recognized and contracted to preserve critical wildlife habitat in the form of migration corridors between winter and summer elk ranges on the Droste Ranch.

On March 25, 1974, Pitkin County adopted Zoning Resolution 74-160. Under that zoning resolution, the Droste property was zoned AF-1, which allowed development of a single family residence on a lot of at least ten acres as a use by right. That zoning ordinance remained in effect on May 17, 1974, when both the Areas and Activities of State Interest Act (AASIA), § 24-65.1-101, et seq., 2002, and the Local Government Land Use Control Enabling Act (Enabling Act), § 29-20-101, et seq., C.R.S.2002, became effective.

In 1975, Pitkin County adopted Resolution 75-68 designating areas and activities of state interest and establishing a permit system for new development in natural resource areas, which included significant wildlife habitats. This provision has now been modified and codified in the Pitkin County Land Use Code (PCLUC).

In September 2000, the Drostes filed two development applications with Pitkin County. One application was for a 15,000-square-foot family residence on a 500-acre site, and the other was for an access road between the Brush Creek Road and the proposed residence site. Following hearings, the county denied both applications, and the Pitkin County Board of County Commissioners (BOCC) also determined that their denial did not constitute a taking.

The Drostes later filed this lawsuit and sought partial summary judgment on four claims. They first contended that their proposed development is exempted from county regulation under AASIA because the property was zoned for development of single family residences on tracts of ten acres or more when AASIA was enacted. Second, the Drostes contended that the county abused its discretion and acted in excess of its jurisdiction in denying their land use applications. Third, they challenged the constitutionality of the takings hearing conducted by the BOCC as a violation of the division of powers clause of the Colorado Constitution. Fourth, the Drostes asserted that the takings hearing required by the PCLUC violates the takings clause of the United States and Colorado Constitutions.

In ruling on the motion for summary judgment, the trial court rejected all four claims at issue here. The court determined that AASIA and the Enabling Act were separate and distinct grants of authority that parallel each other. The court also concluded that the zoned land exemption in AASIA did not preclude regulation of the Drostes’ proposed development under the Enabling Act, and determined that the County’s denial of the land use applications was proper and was supported by sufficient evidence. The court denied the constitutional takings claims, determining that the “taking” hearing was “another step in the administrative land use process,” which did not infringe upon judicial authority to adjudicate issues concerning governmental takings of property and to order remediation therefor. The court certified the partial judgment as final under C.R.C.P. 54(b), despite the fact that other contractual claims asserted under the conservation easements and the Drostes’ claim for inverse condemnation remain pending in the trial court. This appeal followed.

I. Zoned Land Exemption

The Drostes contend that the zoned land exemption in § 24 — 65.1—107(1) (c)(II) of AASIA exempts their proposed developments of a single family residence and driveway because the property was zoned for such uses by right on and prior to May 17, 1974, when AASIA became effective. The Drostes also contend that the county cannot employ the Enabling Act to prohibit development expressly exempted from regulation by AA-SIA. Based upon our interpretation of AA-SIA, the Enabling Act, and the PCLUC, we disagree.

Statutory interpretation is a question of law, which appellate courts review de novo. Stell v. Colo. Dep’t of Health Care Policy & Fin., 78 P.3d 1142 (Colo.App.2003). When construing statutes, a court’s primary purpose is to effectuate the intent of the General Assembly. To determine that intent, courts first look to the statutory language, giving words and phrases their commonly accepted meaning. Archibold v. Pub. Utils. Comm’n, 58 P.3d 1031, 1038 (Colo.2002).

When several statutes apply to the same subject matter, courts examine all applicable provisions to determine the intent of the General Assembly. Bontrager v. La Plata Elec. Ass’n, 68 P.3d 555 (Colo.App.2003). Courts must reconcile potentially conflicting statutes relating to the same subject matter, if possible, to avoid an inconsistent or absurd result. Bodelson v. City of Littleton, 36 P.3d 214, 216 (Colo.App.2001); see also Sullivan v. Indus. Claim Appeals Office, 22 P.3d 535, 538 (Colo.App.2000).

Courts will not follow a statutory construction that defeats the intent of the General Assembly or leads to an absurd result. See State v. Nieto, 993 P.2d 493, 500-01 (Colo.2000).

As relevant here, the Enabling Act, adopted in 1974, allows local government to “regulate the use of land by ... [protecting lands from activities which would cause immediate or foreseeable material danger to significant wildlife habitat and would endanger a wildlife species.” Section 29-20-104(l)(b), C.R.S.2002. The purpose of the Enabling Act is to “provide broad authority to local governments to plan for and regulate the use of land within their respective jurisdictions.” Section 29-20-102(1), C.R.S.2002.

However, the Enabling Act also provides that “where other procedural or substantive requirements for the planning for or regulation of the use of land are provided by law, such requirements shall control.” Section 29-20-107, C.R.S.2002. Under this provision, a county cannot disregard a limitation of its authority found in another statute. Oborne v. Bd. of County Comm’rs, 764 P.2d 397, 400 (Colo.App.1988).

AASIA, also adopted in 1974, was the first comprehensive land use law in Colorado and “allows both state and local governments to supervise land use which may have an impact on the people of Colorado beyond the immediate scope of the land use project.” City & County of Denver v. Bd. of County Comm’rs, 782 P.2d 753, 755 (Colo.1989). AA-SIA authorizes a local government to designate certain specified areas, including natural resource areas, as matters of state interest within its jurisdiction. Section 24-65.1-201, C.R.S.2002.

However, the zoned land exemption in AA-SIA provides in pertinent part that:

This article shall not apply to any development in an area of state interest or any activity of state interest which meets any one of the following conditions as of May 17,1974:....
The development or activity is to be on land:
Which has been zoned by the appropriate local government for the use contemplated by such development or activity....

Section 24 — 65.1—107(1)(c)(II), C.R.S.2002.

The PCLUC was adopted with the intent to exercise the BOCC’s authority under, inter alia, AASIA and the Enabling Act. PCLUC § 1-60-010 (2000).

PCLUC § 3-80-080B prohibits development in certain wildlife areas:

Deer, Elk and Bighorn Sheep Winter Concentration Area/Severe Winter Range/Critical Habitat: Development is prohibited within deer, elk and bighorn sheep winter concentration areas and severe winter range areas. In the event that there is no hazard-free area on a site and a development application is subsequently denied, an applicant may petition the [BOCC] for consideration pursuant to Section 3-290 of this Code [concerning takings].

Here, the Drostes assert that the trial court’s ruling is contrary to Board of County Commissioners v. Gartrell Investment Co., 33 P.3d 1244 (Colo.App.2001). In Gartrell, a division of this court concluded that a county’s regulation concerning annexation exceeded the scope of AASIA. Bd. of County Comm’rs v. Gartrell Inv. Co., supra, 33 P.3d at 1248. However, Gartrell involved the construction of AASIA and the Municipal Annexation Act, § 31-12-101, et seq., C.R.S. 2002, which relate to different subject matter. In contrast, both the Enabling Act and AASIA relate to the same subject matter, specifically, regulation of land use. Thus, GaHrell is distinguishable from the present case.

The plain language of AASIA allows governments to designate areas of state interests from a statutorily prescribed list so long as applicable administrative guidelines are followed. Included in the areas of state interest are areas containing natural resources, including areas essential to wildlife habitat. See §§ 24-65.1-104(12), 24-65.1-201(l)(c), 24-65.1-202(3), C.R.S.2002.

The plain language of the zoned land exemption specifically provides that AASIA does not apply to “any development in an area of state interest” that meets the statutory criteria for the exemption. However, the language in the zoned land exemption does not suggest that other statutes or grants of authority do not apply to such developments. See § 24-65.l-107(l)(c)(II).

The Enabling Act specifically authorizes local government to regulate land use to protect wildlife habitat and wildlife species. See § 29 — 20—104(l)(b). Therefore, as the trial court concluded, the grant of authority in the Enabling Act is separate from and independent of the grant of authority in AASIA.

Section 29-20-107 of the Enabling Act, which provides that “where other procedural or substantive requirements for the planning for or regulation of the use of land are provided by law, such requirements shall control,” does not alter this conclusion. Under the zoned land exemption in AASIA, lands previously zoned as of May 17, 1974, are exempted from AASIA. See § 24-65.1-107(l)(c)(II). Thus, AASIA does not regulate or apply to lands that fall under the zoned land exemption. Consequently, the zoned land exemption is not a “requirement” that is meant to “control” under § 29-20-107.

In Eason v. Board of County Commissioners, 70 P.3d 600, 605-06 (Colo.App.2003), a division of this court held that “Colorado law recognizes a protected property interest in a zoning classification when a specifically permitted use becomes securely vested by the landowner’s substantial actions taken in reliance, to his or her detriment, on representations and affirmative actions by the government.” There, the county changed the zoning classification of a landowner’s commercial self-storage facility after he paid for a building permit, purchased and installed the facilities, and began his business. The government had initially told the landowner that his use was permitted under its interpretation of the zoning ordinance, and he relied on that assertion to his detriment. Eason v. Bd. of County Comm’rs, supra, 70 P.3d at 606.

In contrast, the Drostes do not allege that they relied on a zoning classification, which was later changed, to their detriment, nor do they assert that they took substantial actions based on representations and affirmative actions by the government. Instead, they argue that they are exempt from county land use regulations by the zoned land exemption in AASIA. Thus, Eason is distinguishable.

Interpreting AASIA and the Enabling Act as separate and independent grants of authority harmonizes both statutes and avoids an inconsistent or absurd result. See Bodelson v. City of Littleton, supra; see also Sullivan v. Indus. Claim Appeals Office, supra.

Further, adopting a broad interpretation of the zoned land exemption under AASIA as urged by the Drostes would defeat the intent of the General Assembly in the Enabling Act to give broad authority to local governments to plan for and regulate the use of land. See State v. Nieto, supra.

We also reject the Drostes’ argument that, because the property was, and still is, zoned to permit construction of single family residences, the county had no authority to limit such use. Here, the county did not issue a blanket preclusion of such development, but only ruled that the development plan as submitted was not appropriate because it interfered with wildlife habitat. Other areas are available within the 926-acre ranch that would not interfere with critical wildlife habitat, and upon which development of single family residences is still permitted.

Accordingly, we conclude that the county had authority under its land use code to regulate the proposed development on the Drostes’ property.

II. Denial of Land Use Applications

The Drostes next contend the denial of the land use applications must be set aside because the hearing officer misapplied the applicable law. We do not agree.

In an appeal of a C.R.C.P. 106 proceeding, appellate courts review the decision of a governmental body rather than the trial court’s finding. Bd. of County Comm’rs v. O’Dell, 920 P.2d 48, 50 (Colo.1996). In a C.R.C.P. 106(a)(4) proceeding, review is “limited to a determination of whether the body or officer has exceeded its jurisdiction or abused its discretion, based on the evidence in the record before the defendant body or officer.” C.R.C.P. 106(a)(4)(I). In determining whether the agency abused its discretion, courts may consider whether the agency misinterpreted or misapplied the applicable law. Eason v. Bd. of County Comm’rs, supra, 70 P.3d at 609.

A court may reverse an administrative agency’s decision under C.R.C.P. 106 if “there is no competent evidence to support its decision, that is, only if ‘the ultimate decision of the administrative body is so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority.’” City of Colorado Springs v. Bd. of County Comm’rs, 895 P.2d 1105, 1109-10 (Colo.App.1994)(quoting Ross v. Fire & Police Pension Ass’n, 713 P.2d 1304, 1309 (Colo.1986)).

Here, the Drostes maintain that the hearing officer’s application of PCLUC § 3-80-080B, which prohibits development within deer, elk, and bighorn sheep winter concentration areas, was an act in excess of jurisdiction or an abuse of discretion because the development of the residence and access road is exempted by law from the application of the regulation. However, because we have concluded that the County had authority under its land use code to regulate the proposed development on the Drostes’ property, we further conclude that the hearing officer properly applied PCLUC § 3-80-080B.

Accordingly, the hearing officer did not act in excess of his jurisdiction or abuse his discretion.

III. Takings

Finally, the Drostes contend that PCLUC § 3-290, purporting to vest in the BOCC the authority to make takings determinations, is unconstitutional and the BBOC’s Resolution 055-2001 issued thereunder is void. Specifically, the Drostes assert that § 3-290 violates the division of powers clauses in art. Ill of the Colorado Constitution, as well as the takings clauses of the United States and Colorado Constitutions. We are not persuaded.

Pitkin County’s regulation concerning “General Takings Determination” provides in pertinent part, “[t]he Board of County Commissioners shall consider requests from an aggrieved development permit applicant for a takings determination based upon the standards in [sjubsection 3-290-020.” PCLUC § 3-290-010 (2000). PCLUC § 3-290-020 provides:

The Board shall determine whether the property owners will be denied all reasonable use and economic return on the property as a result of the questioned determination. If the Board determines that a taking has or may occur, it shall take such action as it deems appropriate to remedy the situation. In making its decision the Board shall consider the value of the property as a whole and shall not base its decision on the impact of the regulation on one portion of the ownership interest. In making its determination the Board shall consider the beneficial uses which remain in the property notwithstanding the challenged determination and shall give due consideration to the reasonable investment-based expectations of the landowner.

Under the ripeness doctrine, courts usually do not consider disputes involving uncertain or contingent future matters. Beauprez v. Avalos, 42 P.3d 642, 648 (Colo.2002). A takings claim is ripe if “the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue,” and determination whether a taking has occurred cannot be made until a court knows “ ‘the extent of permitted development’ on the land in question.” Palazzolo v. Rhode Island, 533 U.S. 606, 618, 121 S.Ct. 2448, 2458, 150 L.Ed.2d 592 (2001)(quoting Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 186, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), and MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 351, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986)).

An inverse condemnation claim based on assertions that government regulations constitute a taking is not ripe until a final determination has been made concerning the uses to which the property may be put. Williams v. City of Central, 907 P.2d 701, 708 (Colo.App.1995).

Here, there has been a final agency determination that no taking has occurred. However, a lawsuit based on an inverse condemnation claim is still pending in the trial court, and a final judicial determination on that claim has not been made. Therefore, we conclude that this issue is not ripe for our consideration. See Palazzolo v. Rhode Island, supra; Beauprez v. Avalos, supra; Williams v. City of Central, supra.

The judgment is affirmed.

Chief Judge DAVIDSON and Judge STERNBERG ** 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.


author: Judge MARQUEZ.

text:
    In the Matter of BLACK FOREST FIRE/RESCUE PROTECTION DISTRICT, a political subdivision of the State of Colorado, Impartial. Black Forest/Fire Rescue Protection District, a Colorado Special District, Appellant, and David D. Jenkins; Carolyn Sue Jenkins; Chris Mark Chad, LLC, a Colorado limited liability company; Johnson Ranch Land Co., LLC, a Colorado limited liability company; LP47, LLC, a Colorado limited liability company, and Black Forest Road Land Co., LLC, a Colorado limited liability company, Appellees.
    No. 02CA1718.
    Colorado Court of Appeals, Div. III.
    Sept. 25, 2003.
    Certiorari Denied March 15, 2004.

      Hanes & Schütz, P.C., Richard W. Hanes, Timothy J. Schütz, Elana L. Sabovic, Colorado Springs, CO, for Appellant.
    Grimshaw & Harring, P.C., Wayne B. Schroeder, Jody Harper Alderman, Julie Ka-ron Blakley, Denver, CO, for Appellees.

       Justice KOURLIS would grant as to the following issue:
      Did the court of appeals err by reversing the trial court's judgment that landowners’ "proportionate contribution [to repayment of the district’s outstanding bonded indebtedness] shall be calculated by comparing the assessed value of the [landowners’] property with the total assessed valuation of the District, measured as of the effective date of the exclusion order,” and ordering instead that landowners' "excluded properties shall be assessed in the same manner and subject to the same levy for repayment of the outstanding bonds as all other properties in the District.”

       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 MARQUEZ.

Black Forest Fire/Rescue Protection District appeals the summary judgment calculating the share of the District’s indebtedness to be paid by David D. Jenkins; Carolyn Sue Jenkins; Chris Mark Chad, LLC; Johnson Ranch Land Co., LLC; LP 47, LLC; and Black Forest Road Land Co., LLC (landowners), whose properties were excluded from the District. We reverse and remand.

In November 2001, the District obtained voter approval of a mill levy increase that allowed it to issue $2,680,000 in general obligation bonds to finance the construction of a new fire station and the purchase of related equipment.

In February 2002, landowners filed a petition to have their properties excluded from the District pursuant to § 32-1-502, C.R.S. 2002. The trial court granted their motion for summary judgment and determined the manner in which landowners’ proportionate share of repayment of the bonded indebtedness would be calculated. The court ordered that landowners must pay a proportionate share of the District’s outstanding indebtedness based on the ratio of the assessed value of the excluded property to the total assessed valuation of the District existing on the effective date of the court’s exclusion order. It then entered an order excluding the landowners’ property from the District.

The District contends that the trial court erred as a matter of law in thus calculating the excluded parcels’ liability. We agree.

Summary judgment is appropriate only when the pleadings and supporting documents demonstrate that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. Vail/Arrowhead, Inc. v. Dist. Court, 954 P.2d 608 (Colo.1998).

Here, the material facts are not in dispute, and the trial court ruled that pursuant to statute the calculation of the excluded properties’

proportionate share toward repayment of the district’s outstanding bonded indebtedness shall be based on the assessed value of the Petitioners’ property existing on the effective date of the order excluding Petitioners’ property from the District. C.R.S. § 32-1-503(1). Accordingly, the Petitioners’ proportionate contribution shall be calculated by comparing the assessed value of the Petitioners’ property with the total assessed valuation of the District, measured as of the effective date of the exclusion order.

Our review of a trial court’s interpretation of a statute is de novo. When interpreting a statute, we attempt to implement the intent of the General Assembly. To discern that intent, we look first to the plain language of the statute and interpret statutory terms in accordance with their commonly accepted meanings. Bodelson v. City of Littleton, 36 P.3d 214 (Colo.App.2001); see Bd. of County Comm’rs v. Vail Assocs., Inc., 19 P.3d 1263 (Colo.2001).

Section 32-1-501, et seq., C.R.S.2002, sets forth the provisions for exclusion of territory from a special district. Section 32-1-1201, C.R.S.2002, establishes the procedure to be used by special districts in levying and collecting taxes. It provides, in relevant part, that the board shall determine in each year the amount of money necessary to be raised by taxation and shall fix a rate of levy which, when levied upon every dollar of valuation for assessment of taxable property within the special district, will raise the amount required to supply funds for paying all interest on and principal of bonds. See § 32-1-1201(1), C.R.S.2002.

Section 32-1-1204, C.R.S.2002, requires that “[a]U real property included within, or excluded from, a special district shall thereafter be subject to the levy of taxes for the payment of its proportionate share of any indebtedness of the district outstanding at the time of inclusion or exclusion.”

These statutes contain no statement limiting the excluded parcel’s liability. However, § 32-1-503(1), C.R.S.2002, provides:

For the purpose of retiring the special district’s outstanding indebtedness and the interest thereon existing at the effective date of the exclusion order ... excluded territory shall be obligated to the same extent as all other property within the special district but only for that proportion of such outstanding indebtedness and the interest thereon existing immediately prior to the effective date of the exclusion order. The board shall levy annually a property tax on all such excluded and remaining property
... to pay such outstanding indebtedness and the interest thereon.

There is no language in the statutory scheme to support the court’s judgment. To the contrary, the statutes provide that “[a]ll real property ... shall ... be subject to levy,” § 32-1-1204, and that “excluded territory shall be obligated to the same extent as all other property” within the special district. Section 32-1-503(1).

Any reliance by the trial court on the language of § 32-1-503(1), stating that “the excluded territory shall be obligated ... but only for that proportion of such outstanding indebtedness and the interest thereon existing immediately prior to the effective date of the exclusion order,” is misplaced.

In our view, the word “proportion” in the statute refers to the relationship between a district’s outstanding indebtedness prior to the exclusion and its total outstanding indebtedness. There is nothing in the statute to suggest it refers to any relationship between the assessed value of the excluded properties and the assessed value of a district as a whole. See Dikeou v. Dikeou, 928 P.2d 1286 (Colo.1996)(in general, an exception not expressly made by the legislature should not be read into a statute by the courts); Karoly v. Indus. Comm’n, 65 Colo. 239, 176 P. 284 (1918)(an exception not made by the legislature cannot be read into the statute).

The phrase “the excluded territory shall be obligated to the same extent as all other property within the special district” compels the conclusion that the excluded property is to be valued and assessed in the same manner, and subject to the same mill levy, as all other property within the District.

As argued by the District, the trial court’s interpretation here would result in a ratio that is calculated and fixed as of the date of the exclusion order and would not account for changes in the value of the properties. Under this approach, a property owner could limit his or her parcel’s liability for repayment of the outstanding bonds by filing a petition for exclusion and shift the burden to the remaining properties.

Landowners contend that case law supports the trial court’s approach and the con-elusion that a “pro rata share” denotes a ratio with respect to amounts of taxes. They rely on City & County of Denver v. Board of Directors, 37 Colo.App. 496, 498, 549 P.2d 1090, 1092 (1976), for its holding that “the excluded territory is subject only to a levy for taxes for a pro rata share of the district’s indebtedness outstanding on January 1, 1975.” However, that opinion holds only that the property excluded is subject to all property taxes levied for 1974 and that for 1975 the excluded territory is subject only to a levy for taxes for a pro rata share of the district’s indebtedness outstanding on January 1. It says nothing about the formula for assessment applied by the trial court here.

Accordingly, the judgment is reversed with respect to the calculation of the excluded properties’ share of repayment of the District’s bonded indebtedness. The case is remanded to the trial court for entry of a new judgment that the excluded properties shall be assessed in the same manner and subject to the same levy for repayment of the outstanding bonds as all other properties in the District.

Judge ROY and Judge HUME concur.