author: Judge ROY.

text:
    In the Matter of the ESTATE OF Lois Maude LOFLIN, Deceased. Margaret Vandever, Mary Brammer, and Calvin F. Lorentz, Petitioners-Appellants, v. Geneva Smith Emery, Noel Adam, Raymond Adam, Gregory Emery, Jan Bartlett Emery, Gail Emery, Leland Smith, Stephen Ray Smith, and Robert Wayne Cox, Respondents-Appellees.
    No. 02CA1475.
    Colorado Court of Appeals, Div. IIL.
    Aug. 14, 2003.

      Beck and Cassinis, P.C., Howard J. Beck, Heidi M. Miller, Aurora, Colorado, for Petitioners-Appellants.
    Maggard Rogers and Slonka, LLP, James M. Maggard, Englewood, Colorado, for Respondents-Appellees.

       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 ROY.

Petitioners, Margaret Vandever, Mary Brammer, and Calvin F. Lorentz (husband's family) appeal the trial court's order probating the will of Lois Maude Loflin (wife). The respondents Geneva Smith Emery, Noel Adam, Raymond Adam, Gregory Emery, Jan Bartlett Emery, Gail Emery, Leland Smith, Stephen Ray Smith, and Robert Wayne Cox, are members of wife's family. We reverse.

In 1975, while living in Kansas, wife and her husband, Kenneth Loflin (husband), executed a single "Joint and Mutual Last Will and Testament of Kenneth Jackson Loflin and Lois Maude (Smith) Loflin, Husband and Wife" (the Kansas Will). Husband and wife had no descendants.

The Kansas Will provides that upon the death of the first to die the entire estate would pass to the survivor, and, upon the death of the survivor the estate was to be distributed equally among seven devisees (one of whom predeceased wife) including wife's brothers and sisters and husband's nieces and nephews. The effect of this distribution at wife's death was to divide the estate equally between the two families. We cannot determine the relationship of the predeceased devisee named in the Kansas Will.

The couple later moved to Oklahoma, where the husband died. Wife submitted the Kansas Will to probate in Oklahoma, and the entire estate of husband passed to wife in accordance with the Kansas Will.

Wife then moved to Colorado and executed a new Last Will and Testament (the Colorado Will). The Colorado Will revoked all prior wills and codicils and distributed the estate one half in equal shares to her sisters and one-half in equal shares to seven of her nieces and nephews and one of husband's nephews. The Colorado Will substantially increased the distribution to wife's family at the expense of husband's family which was reduced to one-sixteenth of the estate.

Following wife's death in Colorado, the personal representative named in the Colorado Will filed for informal probate and submitted both wills. Husband's family petitioned for probate of the Kansas Will and argued that it was a contract will and thus irrevocable by wife following husband's death. Wife's family took the contrary position.

After a hearing, the trial court concluded that Colorado law applied and that the Kansas Will was not a contract will under either Kansas or Colorado law and accordingly admitted the Colorado Will to probate. The son of one of husband's nephews, a lawyer and judge in Kansas who prepared the Kansas Will, testified that he advised husband and wife that the Kansas Will was a contract will which could not be unilaterally revoked. Wife's family objected to this testimony. The trial court never ruled on the objection and concluded as a matter of law to the contrary.

I.

We must first determine what law controls the determination of whether the Kansas Will is a contract will. Husband's family argues that Kansas law controls because the Kansas Will was executed in Kansas in accordance with the laws of that state. Wife's family argues that Colorado law should control because Colorado is where the deceased died and where the estate is located. We conclude that Kansas law applies.

A contract will is an agreement between two persons to devise property according to a "common plan" by means of a contract that cannot be unilaterally revoked. See In re Duncan's Estate, 7 Kan.App.2d 196, 638 P.2d 992 (1982). At the time of the execution of the Kansas Will, both Colorado and Kansas recognized the validity of contract wills. See In re Schofield's Estate, 101 Colo. 443, 73 P.2d 1881 (1937); In re Chronister's Estate, 203 Kan. 366, 454 P.2d 438 (1969). sembly has recognized contract wills. tion 15-11-514, C.R.8.2002. Further, the Colorado General As-See-

However, the two states differ on the requirements to create a binding contract will. By statute, Colorado requires express language in the will evidencing a contract, another writing signed by the decedent that evidences a contract, or material provisions of the contract appear in the will. See § 15-11-514; Rieck v. Rieck, 724 P.2d 674 (Colo. App.1986). In contrast, Kansas has no similar statute and does not require express contract language or another document evidence-ing a contract, instead, its courts have held that a binding contract will exists if the will evidences that a contract was made. See Resnik v. McKee, 216 Kan. 659, 584 P.2d 243 (1975). Therefore, the laws of Kansas and Colorado conflict.

With respect to the construction, validity, and effect of contracts, Colorado applies the law of the state in which the contract was made. See Carlson v. Boryla, 490 P.2d 700 (Colo.App.1971)(not published pursuant to C.AR. 35(F)); W. Enters., Inc. v. Robo-Sales, Inc., 28 Colo.App. 157, 470 P.2d 981 (1970); First Nat'l Bank v. Arthur, 10 Colo.App. 288, 50 P. 738 (1897). Those courts that have applied conflict of laws principles to determine whether a will is a contract will have applied the contract choice of law rules and looked to the law of the jurisdiction in which the will was, or wills were, executed. See Sawyer v. Inglis, 174 So.2d 760 (Fla.Dist.Ct. App.1965); see also Regan v. Lenkowsky 137 F.Supp. 133 (D.N.J.1956);, 6 W. Page, Wills § 60.26 (Bowe-Parker rev. ed.1962).

In today's mobile society, the law should not require testators and their counsel to comply with the laws of every state in attempting to enter a contract will. Moreover, the choice of law should not impair the important feature of a contract will that it is not unilaterally revocable, and thus one spouse may not change the will after his or her spouse is deceased. See Im re Duncan's Estate, supra.

In determining whether a will is a contract will, using the law of the state of residence (domicile) of the second to die at the time of death, would be contrary to the original purpose and intent of the contract will. It would allow surviving spouses to move to a state where contract wills are not recognized, or where more stringent requirements are imposed, and thereafter unilaterally revoke the contract will. Or, alternatively, using domicile law would unnecessarily introduce instability in the expectations of the first to die.

Thus, we conclude that whether a will is a contract will must be determined under the laws of the state in which the will was drafted, in this case, Kansas law.

IL

Having concluded that Kansas law applies, we now must determine whether the Kansas Will is a valid contract will under Kansas law. We conclude that it is.

Whether a will is a contract will is a fact question. The scope of our review, however, is not limited to determining whether the trial court's finding is supported by the evidence. When that determination can be made from the will itself "we are in as good a position to make that decision as is the trial court." In re Estate of Kiser, 72 P.3d 425 (Colo.App.2008); In re Ciochon's Estate, 4 Kan. App.2d 448, 452, 609 P.2d 177, 181 (1980).

Here, the Kansas Will contains no clearly expressed intent of the parties to be bound. Further, there is no presumption that a joint and mutual will is a contract will in the absence of evidence to support a finding that the testators intended to contract and be bound. However, the intent of the testators to be bound by a joint and mutual will may be determined cireumstantially by other expressions used in the will. In re Zahradnik's Estate, 6 Kan.App.2d 84, 626 P.2d at 1211 (1981).

The factors to be considered under Kansas law in determining whether a will is a contract will are set forth in In re Zahrad-nik's Estate, supra, 6 Kan.App.2d at 91, 626 P.2d at 1217-18. They are as follows:

(1) A provigion in the will for a distribution of property on the death of the survivor;
(2) a carefully drawn provision for the disposition of any share in case of a lapsed residuary bequest;
(3) the use of plural pronouns;
(4) joinder and consent language;
(5) the identical distribution of property upon the death of the survivor;
(6) joint revocation of former wills; and
(7) consideration, such as mutual promises.

Here, the parties agree that the Kansas Will exhibits five of the seven Zahradnik factors. The will provides for distribution to the survivor, provides for disposition of a share in case of a lapsed residuary bequest, uses plural first person pronouns, makes identical distributions of property upon the death of the survivor, and revokes the former wills of both testators. However, the parties disagree whether consideration was given and whether the Kansas Will contains joinder and consent language.

The Kansas Will states, in pertinent part, as follows: -

IV.
In the event either of us shall predecease the other, it is our respective desire and request that all of the property of the deceased, be it real, personal or mixed, and wherever located, shall pass to the surviv- or.
Vv.
A. Upon the death of the survivor of us, or in the event we both die as the result of a. common disaster, within 30 days of one another, then in that event we hereby give, devise, and bequeath all of our property, be it real, personal or mixed, and wherever located, to the following individuals in shares as set out by their respective names. [Seven names with equal shares follow.]
B. We want it to be clear that we have other good friends and relatives, but it is our desire to leave our estate as set forth herein, and any name not mentioned herein is intentional. Should any of the above beneficiaries predecease the survivor of us or decline to accept the benefits herein provided for them, it is our desire that that persons [sic] share shall be divided equally among the remaining surviving above-named beneficiaries of our estate.
C. For the purpose of carrying out the provisions of Paragraph V. (A) we hereby direct the executor of our estate to liquidate our assets as soon as is practical after the death of the survivor of us.

Kansas courts have found consideration sufficient to support an agreement when there is evidence of mutual promises made between the testators regarding the disbursement of property to each testator's family. See In re Wade's Estate, 202 Kan. 380, 449 P.2d 488 (1969)(finding sufficient consideration when there was evidence of offers and counteroffers to provide for each testator's family).

Here, the parties clearly made mutual promises. The testators divided their property equally among members of both of their families, giving individual members from each family one-seventh of their estate and thereby guarding against the sequence of death. In addition, neither having descendants, they mutually promised one another to devise their estate in total to the survivor and not to their separate families. These provisions are, in our view, sufficient consideration and evidence of an agreement.

Further, although exactly what constitutes joinder and consent language has not been fully determined in Kansas, see Bell v. Brittain, 19 Kan.App.2d 1073, 880 P.2d 289 (1994), aff'd, 257 Kan. 407, 893 P.2d 251 (1995). Kansas courts have found that language such as "in consideration of the mutual testamentary provisions herein contained for the benefit of each other" qualifies as joinder and consent language. Bell v. Brittain, supra, 19 Kan.App.2d at 1079, 880 P.2d at 298. Here, although there is no language in the Kansas Will stating that the parties drafted it with the consent of the other, the will is entitled "Joint and Mutual Last Will and Testament," is signed by both parties, and refers to their property, estate, or desires in joint terms, such as "our" and "we." That, in our view, is evidence of joinder and consent language.

Moreover, Kansas law does not require that the will meet all seven factors in order to be recognized as a contract will. Thus, even if the evidence of joinder and consent language or consideration were insufficient, there is nonetheless sufficient evidence that the parties intended a contract will.

Respondents argue that because the Kansas Will contains no contract language and does not contain the key words of "absolute" and "forever," the will is not contract will. However, Kansas law does not require that the will contain express contract language. See In re Zahradnik's Estate, supra. Nor is there a requirement that the will state that it is "absolute" or "forever." In fact, the Kansas courts have found the existence of such words to be evidence that the will is not a contract will. See In re Zahradnik's Estate, supro; In re Chromnister's Estate, supra.

Therefore, we conclude that the Kansas Will is a contract will. It follows then that the heirs of the Kansas Will will have an interest in the distribution of the estate, including the after-acquired property. See Bell v. Brittain, supra (a joint and mutual will includes all after-acquired property of the survivor unless a different intention appears from the will).

The Colorado Will may, however, determine the deceased's other wishes, such as burial and the selection of a personal representative because it properly revoked the Kansas Will with respect to those matters. See Reznik v. McKee, supra, 216 Kan. at 671, 534 P.2d at 254 ("a single instrument may be both a will, and a contract testamentary in nature; as a will it is revocable but as a contract it is enforceable").

Accordingly, the trial court erred in finding that the Colorado Will revoked the contract of the Kansas Will designating and defining the interests of the devisees.

Having determined that the Kansas Will is a contract will, we need not address the remaining issues brought on appeal.

The order is reversed.

Judge MARQUEZ and Judge PLANK concur.


source: Caselaw Access Project

author: Judge DAILEY.

license: Public Domain

text:
    Mary Ann WILSON, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE OF COLORADO, Falcon School District No. 49, and Western Guarantee Fund, Respondents.
    No. 02CA2140.
    Colorado Court of Appeals, Div. III.
    Aug. 14, 2003.
    Certiorari Denied Jan. 12, 2004.
    Steven U. Mullens, P.C., Steven U. Mul-lens, Colorado Springs, Colorado, for Petitioner.
    No Appearance for Respondent Industrial Claim Appeals Office.
    Jeffrey C. Fleischner, Denver, Colorado, for Respondents Falcon School District No. 49 and Western Guarantee Fund.
   Opinion by

Judge DAILEY.

In this workers' compensation case against Falcon School District No. 49 and its insurer, Western Guarantee Fund (collectively employer), Mary Ann Wilson (claimant) seeks review of a final order of the Industrial Claim Appeals Office (Panel) denying her additional permanent partial disability benefits. The denial was based on her failure to overcome the medical impairment rating of the physician performing the Division-sponsored independent medical examination (DIME). 'We affirm.

Claimant sustained a compensable back injury in 2000 and reached maximum medical improvement (MMI) in March 2001. She and employer each chose a physician to perform an independent medical examination (IME). Claimant's IME physician rated the impairment at thirty-eight percent of the whole person, which included five percent for the lumbar spine and thirteen percent for reduced range of motion of the lumbar spine. Employer's IME physician rated the impairment at twenty-five percent of the whole person, which did not include a rating for the lumbar spine impairment because he concluded it was not work related.

The DIME physician issued a twenty-nine percent whole person rating, which included five percent for the lumbar spine and two percent for reduced range of lumbar motion. After employer admitted liability for the twenty-nine percent rating, claimant requested a hearing to overcome the DIME physician's impairment rating as it pertained to lumbar range of motion.

At the hearing, claimant's IME physician testified that the DIME physician did not properly complete the ratings worksheet for lumbar range of motion because he failed to record certain measurements, and that he also failed to use the dual inclinometer method of measurement prescribed by the American Medical Association Guides to the Evaluation of Permanent Impairment (Bd ed. 1990)(AMA Guides). Accordingly, claimant's IME physician concluded that the DIME physician's lumbar impairment rating was invalid.

The administrative law judge (ALJ) found that the testimony of claimant's IME physician was speculative and unpersuasive with respect to the DIME physician's failure to use dual inclinometers. Instead, the ALJ found that the DIME physician properly measured claimant's lumbar range of motion and that the DIME physician was able to verify the validity of these measurements by comparing them to claimant's straight leg raising measurements. The ALJ concluded that the DIME physician's failure to record some of the measurements on the worksheet did not prove the rating itself was incorrect and that because the DIME physician's measurements for cervical and thoracic range of motion were "very similar" to those of the IME physicians, the DIME physician used the correct methodology when measuring lumbar range of motion.

Accordingly, the ALJ found that claimant failed to overcome the DIME physician's impairment rating by clear and convincing evidence. The Panel affirmed.

I.

Claimant contends that the ALJ erred as a matter of law in finding the DIME physician's impairment rating was not overcome by clear and convincing evidence. Claimant argues that the evidence establishes the DIME physician deviated from the AMA Guides when rating lumbar impairment and no evidence supports the DIME physician's rating. We perceive no error.

Claimant correctly states that a DIME physician must rate medical impairment in accordance with the provisions of the AMA Guides. Sections 8-42-101(8.7), 8-42-107(8)(c), C.R.8.2002. The DIME physician's finding concerning a claimant's impairment rating is binding on the parties unless overcome by clear and convincing evidence. Section 8-42-107(8)(c); Whiteside v. Smith, 67 P.3d 1240, 1246-47 (Colo.2003). Whether the DIME physician correctly applied the AMA Guides, and whether the rating itself has been overcome, are questions of fact for determination by the ALJ, and not, as claimant asserts, questions of law. See Wackenhut Corp. v. Indus. Claim Appeals Office, 17 P.3d 202, 204 (Colo.

Here, the evidence supports the ALJ's rejection of the testimony of claimant's IME physician that the DIME physician must have used the single, rather than the required dual, inclinometer method. Indeed, claimant's IME physician admitted that he was "speculating" concerning the DIME physician's methodology and that the DIME physician's measurements for lumbar flexion could be interpreted as the result of either type of measurement.

Further, the fact that the DIME physician failed to record certain measurements on the ratings worksheet did not require the ALJ to conclude that the required measurements were not done or done improperly. As the ALJ found, the DIME physician's measurements of cervical and thoracic impairment were nearly identical to those of claimant's IME physician, and the DIME physician compared the lumbar range of motion measurements to claimant's straight leg raising measurements. Thus, the ALJ could reasonably infer that the DIME physician recognized and applied the correct rating methods and criteria, but simply failed to record all the data on the worksheet.

Claimant's assertion that the evidence equally supports the contrary inference, namely, that the DIME physician did not recognize and apply the correct rating methods, is unavailing. See Metro Moving & Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App.1995)("If two equally plausible inferences may be drawn from the evidence, we may not substitute our judgment for that of the ALJ."); see also Pacesetter Corp. v. Collett, 33 P.3d 1230, 1234 (Colo.App. 2001)("We are bound by the ALJ's factual determinations, even when the evidence is conflicting and would have supported a contrary result.").

Finally, the evidence also supports the ALJ's finding that claimant "merely had a different lumbar range of motion" on the days she was examined by the DIME physi-clan and her IME physician. Employer's IME physician testified that the change may be explained, in part, by progressive improvement with time and also by natural variances in claimant's condition from one date to the next. It was for the ALJ to assess the weight of this evidence, see Metro Moving & Storage Co. v. Gussert, supra, and claimant's assertion notwithstanding, this interpretation of the evidence is consistent with MMI. See § 8-40-201(11.5), C.R.8.2002 (MMI is not affected by the possibility of improvement or deterioration resulting from the passage of time).

Thus, substantial evidence supports the ALJ's determination that claimant failed to overcome the DIME physician's rating by clear and convincing evidence. See § 8-483-308, C.R.8.2002 (appellate court must uphold the ALJ's factual determinations if supported by substantial evidence in the record); Metro Moving & Storage Co. v. Gussert, supra (reviewing court must consider the evidence in the light most favorable to the prevailing party and defer to ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the evidence).

IL

Claimant next contends that, because the DIME physician was bound to apply the AMA Guides, once claimant established the failure to properly apply them, the burden of proof shifted to employer to demonstrate the propriety of the DIME physician's rating. We disagree.

Because the ALJ concluded, with sufficient evidentiary support, that the DIME physician used the proper procedure, claimant's factual premise for this assertion is erroneous.

The order of the Panel is affirmed.

Judge MARQUEZ and Judge ROY concur.


author: Judge CASEBOLT. Judge NEY

text:
    BOARD OF COUNTY COMMISSIONERS of LAPLATA COUNTY, Board of County Commissioners of Archuleta County, Board of County Commissioners of Las Animas County, Board of County Commissioners of Routt County, and Board of County Commissioners of San Miguel County, Plaintiffs-Appellants, v. COLORADO OIL AND GAS CONSERVATION COMMISSION, an Agency of the State of Colorado, Defendant-Appellee.
    No. 02CA1879.
    Colorado Court of Appeals, Div. IL.
    Sept. 25, 2003.

      Rehearing Denied Nov. 18, 2003.

      Goldman, Robbins & Rogers, LLP, Jeffery P. Robbins, Lindsey K.S. Nicholson, Duran-go, CO, for Plaintiffs-Appellants.
    Mary Deganhart-Weiss, County Attorney, Pagosa Springs, CO, for Plaintiff-Appellant Board of County Commissioners of Archuleta County.
    Dodridge C. Shelby, County Attorney, Denver, CO, for Plaintiff-Appellant Board of County Commissioners of Las Animas County.
    John D. Merrill, County Attorney, Steamboat Springs, CO, for Plaintiff-Appellant Board of County Commissioners of Routt County.
    Steven J. Zwick, County Attorney, Telluride, CO, for Plaintiff-Appellant Board of County Commissioners of San Miguel County.
    Ken Salazar, Attorney General, Carol J. Harmon, Assistant Attorney General, Denver, CO, for Defendant-Appellee.
    Hall & Evans, LLC, Thomas J. Lyons, Denver, CO, for Amicus Curiae Colorado Counties, Inc.
    Geoffrey T. Wilson, Denver, CO, for Ami-cus Curiae Colorado Municipal League.

      Kenneth A. Wonstolen, Denver, CO, for Amicus Curiae Colorado Oil & Gas Association.

       Ney, J., would GRANT.

   ORDER REVERSED

Opinion by

Judge CASEBOLT.

In this action seeking judicial review of an agency rule under the Administrative Procedure Act, § 24-4-101, et seq., CRS. 2002(APA), and for declaratory judgment under C.R.C.P. 57, plaintiffs, the Boards of County Commissioners of the Counties of La Plata, Archuleta, Las Animas, Routt, and San Miguel, appeal the order of the district court dismissing their action against defendant, the Colorado Oil and Gas Conservation Commission (COGCC), for lack of standing. We reverse the order, void the amendment to the rule adopted by COGCC, and declare the rights of the parties as set forth in this opinion.

Plaintiffs brought this action challenging the validity of an amendment to COGCC Rule 303(a), promulgated under COGCC's rulemaking authority pursuant to the Oil and Gas Conservation Act, § 34-60-101, et seq., C.R.S8.2002 (OGCA). The amended rule, dealing with permits to drill for oil and gas, states, "The permit-to-drill shall be binding with respect to any conflicting local governmental permit or land use approval process." Plaintiffs asserted that this amendment was invalid on its face because it exceeded the seope of COGCC's authority; that it was an incorrect statement of law; and that COGCC's rulemaking did not meet the requirements of applicable statutory procedures.

Plaintiffs and COGCC filed briefs on the merits in the district court arguing the validity of the amended rule. However, the court did not reach the merits. Instead, it dismissed the case sua sponte for lack of standing, holding that there was no actual dispute to resolve because plaintiffs did not allege that the revision had occasioned actual impairment of their land use regulatory functions. This appeal followed.

L.

Plaintiffs assert the district court erred in dismissing their complaint for lack of standing. We agree.

Standing is a threshold question of law, see Hall v. Walter, 969 P.2d 224 (Colo. 1998), and thus we review the district court's determination de novo. See Cloverleaf Kennel Club, Inc. v. Colo. Racing Comm'n, 620 P.2d 1051 (Colo.1980).

The standing question involves application of a two-part test to determine whether a plaintiff has asserted a legal basis on which a claim for relief can be predicated. First, the plaintiff must have suffered an injury in fact, and second, that injury must be to a legally protected interest as contemplated by statutory or constitutional provisions. The injury in fact requirement is a constitutional limitation. Douglas County Bd. of Comm'rs v. Pub. Utils, Comm'n, 829 P.2d 1303 (Colo.1992). Hence, unless the plaintiff has suffered such an injury, standing does not exist, and the case must be dismissed. Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977).

The injury in fact element of standing need not consist of a direct, pecuniary loss. In the context of administrative action, this element of standing does not require that a party suffer actual injury, as long as the party can demonstrate that the administrative action "threatens to cause" an injury. However, an injury must be sufficiently direct and palpable to allow a court to say with fair assurance that there is an actual controversy proper for judicial resolution. O'Bryant v. Pub. Utils. Comm'n, 778 P.2d 648 (Colo.1989).

The injury in fact element of standing is established when the allegations of the complaint, along with any other evidence submitted on the issue of standing, establish that a regulatory scheme threatens to cause injury to the plaintiff's present or imminent activities. Bd. of County Comm'rs v. Bowen/Edwards Assocs., Inc., 830 P.2d 1045 (Colo.1992)(Bowen/Edwards ).

The injury is to a legally protected interest for which judicial relief is available if the legal basis for the claim creates a right or interest that arguably has been abridged by the challenged action. State Bd. for Cmty. Colls. & Occupational Educ. v. Olson, 687 P.2d 429 (Colo.1984). This means simply that the plaintiff must demonstrate the existence of a legal right or interest that arguably has been violated by the conduct of the other party. O'Bryant v. Pub. Utils. Comm'n, supra. The plaintiff's interest can emanate from a constitutional, statutory, or judicially created rule of law that entitles the plaintiff to some form of judicial relief. Bowen[/Edwanrds, supra.

Here, the broad question presented is the extent to which both local governments and the state can regulate oil and gas operations and development. The state has authority to regulate under OGCA, which is administered by COGCC. Plaintiffs have the authority to regulate land use and development within their jurisdictions under the Local Government Land Use Control Enabling Act, § 29-20-101, et seq., C.R.98.2002, and the County Planning Code, $ 80-28-101, et seq., C.R.S. 2002. Both COGCC and plaintiffs have adopted regulations in these areas, including amended Rule 303(a) at issue here.

In Bowen/Edwards, supra, an oil and gas operator challenged the validity of La Plata County's land use regulations governing oil and gas operations, arguing that OGCA preempted any local regulation of those operations. Noting that state and local governments have distinct interests in regulating those operations, the supreme court held that local regulatory authority could be required to yield to the state's authority using preemption analysis when "the operational effect of the county regulations conflicts with the application of the state statute or state regulations." Bowen/Edwards, supra, 830 P.2d at 1059.

The court explained that operational conflict arises where the effectuation of a local interest would materially impede or destroy the state interest, and it indicated that the courts would determine the existence of such a conflict on an ad hoe basis under a full evidentiary record. See also Voss v. Lundvall Bros., Inc, 830 P.2d 1061 (Colo. 1992)(fome rule city could enact land use regulations, and if the regulations did not frustrate and could be harmonized with development and production of oil and gas in a manner consistent with stated goals of OGCA, city's regulations should be given effect); Town of Frederick v. N. Am. Res. Co., 60 P.3d 758 (Colo.App.2002)(applying operational conflict analysis). .

In our view, plaintiffs have sufficiently alleged an injury in fact. In their complaint, plaintiffs asserted that the adoption of amended Rule 308(a) threatens to cause an injury to their protected interests because it is a denial of local governments' rights established by statute and case law to regulate the oil and gas industry. They also alleged that the rule infringes upon and restricts their land use regulatory authority; the rule may require them to litigate in various district courts to force operators' compliance with their regulations; and it may expose them to the risk of multiple, inconsistent determinations from various courts.

Essentially, plaintiffs asserted that COGCC improperly expanded the operational conflict standard articulated in Bowen/Edwards by providing that Rule 3083(a) prevailed whenever there is any conflicting local governmental permit or land use approval process. See Maurer v. Young Life, 779 P.2d 1317 (Colo.1989)(injury in fact requirement satisfied by allegations of harm to a governmental body's institutional interests through usurpation of authority by another governmental entity and interference by a reviewing ageney with the authority of another agency to carry out its enforcement and policymaking functions); see also Douglas County Bd. of Comm'rs v. Pub. Utils. Comm'n, supra (PUC approval of utility upgrade derogates county's land use plan; thus, county's injury in fact sufficiently alleged).

As COGCC correctly asserts, plaintiffs have not pleaded specific facts under which a conflict between amended Rule 303(a) and their land use regulations has actually occurred. See Bowen/Edwards, supra (determination of conflict made on ad hoe basis under developed evidentiary record).

However, plaintiffs' challenge to amended Rule 303(a) is a facial attack, not an as-applied attack. Plaintiffs did not request the district court, or this court, to resolve a specific conflict between the rule and any of their current regulations. Instead, they seek a determination concerning the validity of the rule when read against the supreme court's delicate balancing of state and local interests as reflected in Bowen/Edwards, supra, and its enunciation of the operational conflict analysis. Plaintiffs allege that amended Rule 303(a) is contrary to the operational conflict standards and therefore threatens to cause injury to their regulatory interests. That allegation is sufficient to assert an injury in fact.

We also conclude that plaintiffs have a legally protected interest in enacting and enforcing their land use regulations governing the surface effects of oil and gas operations. This interest emanates from the authority granted to counties by state statutes permitting them to enact and enforce land use regulations, as well as from the judicial determination in Bowen/Edwards that, absent an operational conflict between state interests and local interests, local regulations should be given effect. See also Douglas County Bd. of Comm'rs v. Pub. Utils. Comm'n, supra (county had standing to challenge agency decision because it had a legally protected interest in its ability to enact and enforce land use regulations).

In addition, plaintiffs have a right and interest under § 24-4-106(4.5), C.R.S. 2002, of the APA to seek judicial review of agency action. The cited provision states, as relevant here:

[TJhe board of county commissioners of any county of this state may commence an action in the Denver district court ... for judicial review of any agency action which is directed to any official, board, or employee of such county or which involves any duty or function of any official, board, or employee of such county....

Under this statute, a board of county commissioners may seek review of agency action that "involves" any duty or function of the named county officials. On its face, amended Rule 303(a) involves the duty or function of plaintiffs' employees relating to local governmental permits and land use approval processes. See also § 244-106, C.R.S.2002 (persons adversely affected or aggrieved by agency action may seek judicial review); § 24-4-102(12), C.R.S. (counties are "persons" under the APA); § 24-4-102(83.5), C.R.S.2002 (for purpose of judicial review of rule-making, "aggrieved" means being exposed to potential injury to governmental interests); § 34-60-111, C.R.98.2002 (regulation promulgated by COGCC is subject to judicial review under APA); Douglas County Bd. of Comm'rs v. Pub. Utils. Comm'n, supra.

To the extent COGCC asserts that plaintiffs must also satisfy the requirements of C.R.C.P. 57 and § 183-51-109, C.R.8.2002, to obtain declaratory relief, we likewise conclude that the threshold showing has been made. Plaintiffs have demonstrated an existing legal controversy that can be effectively resolved by a declaratory judgment, and not a mere possibility of a future legal dispute. The parties disagree concerning the legality of amended Rule 803(a), whether it conflicts with Bowen/Edwards, what it means, and how it operates. Further, we perceive no future contingencies that might otherwise resolve the parties' dispute or render moot a decision on the merits See Three Bells Ranch Assocs. v. Cache La Poudre Water Users Ass'n, 758 P.2d 164, 168 (Colo.1988); Comrad v. City & County of Denver, 656 P.2d 662, 668 (Colo.1982).

Hence, we conclude the district court erred in dismissing the complaint for lack of standing.

II.

The parties assert, and we concur, that we may directly address the underlying substantive issue without a remand, because the validity of the rule presents a question of law subject to de novo review. See Bowen/Edwards, supra. Hence, we address plaintiffs' contention that amended Rule 308(a) contradicts current case law and therefore exceeds COGCC's statutory authority. We agree that for these reasons the amendment to Rule 303(a) must be set aside.

A rule may not be adopted if it conflicts with other provisions of law. Section 24-4-103(4)(b)(IV), C.R.8.2002. If a court finds that the ageney action is contrary to law, it has authority to invalidate the action. Section 24-4-106(7), C.R.S.2002; Ettelman v. Colo. State Bd. of Accountancy, $49 P.2d 795 (Colo.App.1992)(statute); of Regular Route Common Carrier Conference v. Pub. Utils. Comm'n, 761 P.2d 737, 743 (Colo.1988)(case law).

Rules adopted by an agency are presumed to be valid. Regular Route Common Carrier Conference v. Pub. Utils Comm'n, supra. Any challenging party has a heavy burden to establish invalidity of the rule by demonstrating that the agency violated constitutional or statutory law, exceeded its authority, or lacked a basis in the record for the rule. The court cannot substitute its judgment for that of the agency. Colo. Ground Water Comm'n v. Eagle Peak Farms, Ltd., 919 P.2d 212 (Colo.1996).

Interpretation of a rule by the ageney charged with its enforcement is generally entitled to great deference. Halverstadt v. Dep't of Corr, 911 P.2d 654 (Colo. App.1995). The agency's interpretation is to be accepted if it has a reasonable basis in law and is warranted by the record. Ricci v. Davis, 627 P.2d 1111 (Colo.1981). However, we will not defer to administrative interpretation when the regulatory language is so clear as to compel the contrary result. See Three Bells Ranch Assocs. v. Cache La Poudre Water Users Ass'n, supra.

Here, the rulemaking record indicates that COGCC amended Rule 303(a) to reduce uncertainty arising from local governments' enactment of oil and gas regulations in the exercise of their land use authority, which enactments had spawned several lawsuits. COGCC sought to inform oil and gas operators of existing case law and reduce confusion.

As previously noted, the amended rule provides that "The permit-to-drill shall be binding with respect to any conflicting local governmental permit or land use approval process." According to COGCC's Answer Brief, this rule is merely a statement of its understanding of relevant case law, in particular, Bowen/Edwards, and is not meant to contravene that law.

COGCC's understanding of relevant case law, however, is not binding upon us. See FirstBank v. Bd. of Equalization, 990 P.2d 1109, 1111 (Colo.App.1999)(courts must interpret the law and are not bound by an agency interpretation that misconstrues it). And COGCC's amendment of the rule does not represent an exercise of its technical expertise. See El Paso County Bd. of Equalization v. Craddock, 850 P.2d 702 (Colo.1993). Hence, we decline to give deference to the arguments it sets forth in its brief on appeal.

The words "any conflicting" in the rule have much broader meaning than "operationally conflicting," as discussed in Bowen[/Edwards and Voss v. Lundvall Bros., supra. The word "any" means "all." See, eg., Austin v. Weld County, 702 P.2d 293 (Colo. App.1985). Thus, on its face amended Rule 308(a) would preempt local government actions beyond those that materially impede or destroy the state interest and would give oil and gas operators license to disregard local land use regulation. This result erodes the delicate balance between local interests and state interests set forth by Bowen/Edwards. Therefore, because the amended rule conflicts with Bowen/Edwards, we must set it aside.

In light of this conclusion, we need not address plaintiffs' contentions that the division in Town of Frederick v. North American Resources Co., supra, incorrectly applied the operational conflict test.

Accordingly, we declare the amended portion of Rule 808(a) void under § 24-4-103(4)(b)(IV).

IIL

Finally, plaintiffs assert that amended Rule 808(a) should be set aside because COGCC's rulemaking violated several provisions of the APA. Because we have declared the amendment void, we need not address this assertion.

The district court order dismissing plaintiffs' complaint for lack of standing is reversed. 'We declare the amendment to the rule to be invalid.

Judge WEBB concurs.

Judge NEY dissents.

Judge NEY

dissenting.

Because I conclude that the trial court did not err in dismissing plaintiffs' complaint for lack of standing, I dissent.

Plaintiffs are subject to the constitutional requirement for standing that an actual case or controversy must exist before the judicial power may be invoked. See Maurer v. Young Life, 779 P.2d 1317 (Colo.1989); see also Douglas County Bd. of Comm'rs v. Pub. Utils Comm'n, 829 P.2d 1303 (Colo.1992).

The majority correctly states that an allegation that a regulation merely threatens to cause injury to a plaintiff's present or imminent activities may be sufficient to establish an injury in fact. Bd. of County Comm'rs v. Bowen/Edwards Assocs., Inc., 830 P.2d 1045 (Colo.1992).

However, the alleged injury must be "sufficiently direct and palpable to allow a court to say with fair assurance that there is an actual controversy proper for judicial resolution." O'Bryant v. Pub. Utils Comm'n, 778 P.2d 648, 653 (Colo.1989); see also Bd. of County Comm'rs v. Bowen/Edwards Assocs, Inc., supra, 830 P.2d at 1053 (plaintiff must demonstrate an "existing legal controversy that can be effectively resolved ... and not a mere possibility of a future legal dispute over some issue").

In my view, plaintiffs have not alleged any injury suffered by them that has occurred or may occur in the future because of the adoption of the amendment. Instead, they allege that the amendment causes an injury in fact because it (1) is "a denial of local government's statutory rights and rights established by case law to regulate the oil and gas industry"; (2) "infringes upon and restricts Plaintiffs' land use regulatory authority and thereby harms Plaintiffs"; and (8) creates the potential for possible multiple interpretations if future injuries occur.

With these assertions, plaintiffs merely allege general and hypothetical injuries caused by the adoption of the amendment to Rule 303(a). They fail to identify a particular injury that has arisen or may arise under the amended version of Rule 308(a), such as a conflict with a specific exercise or element of their governmental authority. While I note that action in contravention of a regulation is not required to establish an injury in fact, the nonspecific allegation of a general abrogation of authority here is not sufficiently particularized to establish standing. Without specific facts, any injury alleged here is merely hypothetical and is not sufficiently direct and palpable to create an actual case or controversy.

Accordingly, I would affirm the trial court's order dismissing the complaint for lack of standing.


author: Judge LOEB.

text:
    Chris BROSSIA and Katrina Brossia, Plaintiffs-Appellees and Cross-Appellants, v. RICK CONSTRUCTION, L.T.D. LIABILTITY COMPANY, a limited liability company, Defendant-Appellant and Cross-Appellee.
    No. 02CA1338.
    Colorado Court of Appeals, Div. I.
    Nov. 6, 2003.

      F. Brittin Clayton, III, P.C., F. Brittin Clayton, III, Boulder, Colorado, for Plaintiffs-Appellees and Cross-Appellants.
    Schey, Piller, Alspaugh & Wong, P.C., Neil E. Piller, James H. Nelson, Longmont, Colorado, for Defendant-Appellant and Cross-Appellee.

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

   Opinion by

Judge LOEB.

In this real estate contract case, defendant, Rick Construction, Ltd. Liability Company (Rick), appeals the trial court's judgment dismissing its counterclaim against plaintiffs, Chris Brossia and Katrina Brossia, for recording a groundless or otherwise invalid document in violation of § 38-85-1098), C.R.98.2008. The Brossias cross-appeal the judgment dismissing their claim for emotional distress damages. We reverse the judgment dismissing Rick's counterclaim and remand for further proceedings. We affirm the judgment in all other respects.

The Brossias entered into a contract with Rick to purchase real estate and a custom-built home. They gave Rick $80,000 as a deposit before construction of the house. The contract included certain construction specifications.

The Brossias attempted to sell their existing residence and use the proceeds to pay for the new home. However, they had difficulty selling their home and, at one point, the Brossias discussed with Rick the possibility of mutually terminating the contract and Rick selling the new home on the open market as a noncustom home. It is disputed whether any agreement was made concerning mutual termination.

Subsequently, Rick began changing the specifications on the home so it would be more appealing to the general public. Rick also sent a notice to the Brossias that it considered them to have defaulted on the contract, that it was treating the contract as if it were in full force and effect, and that it demanded specific performance.

The Brossias stated to Rick that they were electing to cancel the contract, because, among other reasons, the specifications of the home had been altered, and they demanded return of their deposit. Rick did not return their deposit.

The Brossias filed a complaint against Rick alleging breach of contract and requesting damages, including return of their deposit. The same day, the Brossias recorded a notice of lis pendens in the clerk and recorder's office, giving notice of the litigation. The Brossias subsequently filed an amended complaint specifically requesting that the court impose a constructive trust or equitable lien on the subject property.

Rick answered and counterclaimed against the Brossias, asserting, among other things, that their notice of lis pendens was a groundless or otherwise invalid document. Before trial, the Brossias moved for dismissal of Rick's counterclaim because Rick had not endorsed an expert witness to testify whether the lis pendens was groundless. The trial court granted the motion and dismissed Rick's counterclaim.

The Brossias' complaint did not include a claim for emotional distress damages. However, subsequent disclosures included a request for such damages. After presentation of the Brossias' evidence at trial, Rick moved for dismissal of the claim for emotional distress damages, which the trial court granted.

I.

The trial court ruled that Rick's "counterclaim for frivolous and groundless lien under § 38-35-109(8) could not go to the jury since the allegations in [the Brossias'] Complaint established a rational basis for filing the Lis Pendens and it was incumbent upon [Rick] to

establish, through expert testimony, that the filing was groundless or frivolous." Rick contends that this decision was error. We agree because we conclude that the lis pen-dens here was invalid as a matter of law.

We review a trial court's determination on a motion to dismiss de novo. Barnett v. Denver Publishing Co. Inc., 36 P.3d 145, 147 (Colo.App.2001). In doing so, we accept as true all averments of material fact contained in the complaint, and we view the allegations of the complaint in the light most favorable to the plaintiff. Public Service Co. of Colo. v. Van Wyk, 27 P.3d 377, 386 (Colo. 2001). If the complaint contains allegations that support a legally recognized claim for relief, a motion to dismiss must be denied. See Doe v. High-Tech Institute, Inc., 972 P.2d 1060, 1068 (Colo.App.1998).

Rick contends that the Brossias violated § 38-85-109(8) by recording their lis pendens when their original complaint sought only money damages and did not claim any relief affecting the title to real property. The Brossias contend that their amended complaint, which included a claim for an equitable lien, related back to the original complaint and so validated the lis pendens. We agree with Rick.

Section 38-85-109(8) provides in pertinent part:

Any person who offers to have recorded or filed in the office of the county clerk and recorder any document purporting to convey, encumber, create a lien against, or otherwise affect the title to real property, knowing or having a reason to know that such document is ... groundless ... or is otherwise invalid, shall be liable to the owner of such real property for the sum of not less than one thousand dollars or for actual damages caused thereby, whichever is greater, together with reasonable attorney fees.

Section 38-85-110(1), C.R.8.2003, provides, "After filing any pleading in an action ... within this state wherein relief is claimed affecting the title to real property, any party to such action may record in the office of the county clerk and recorder ... a notice of lis pendens...."

The filing of a notice of lis pendens is proper if the claimant in the related lawsuit asserted a claim relating to a right of possession, use, or enjoyment of real property. See § 38-85-110(1); James H. Moore & Assocs. Realty, Inc. v. Arrowhead at Vail, 892 P.2d 367, 373 (Colo.App.1994). The intended purpose of a lis pendens is to provide notice to anyone who may acquire an interest in the property during the pendency of litigation so that he or she will be bound by the outcome. Hence, upon the recording of a lis pendens, one who acquires an interest in real property, which is subject to a claim in litigation that affects title to the property, takes the interest purchased subject to such claim. See James H. Moore & Assocs., Inc. v. Arrowhead at Vail, supra.

Thus, although a notice of lis pendens is itself not a lien on the property, it is a document that, properly recorded under § 38-35-110(1), purports to "affect the title to real property" pursuant to § 39-85-109(8).

A simple claim for money damages, by itself, does not affect title to real property and thus would not support the filing of a lis pendens. See Peoples Bank & Trust Co. v. Packard, 642 P.2d 57, 58 (Colo.App.1982). However, a claim for the imposition of an equitable lien affects title to real property and supports the recording of a lis pendens. See Leyden v. Citicorp Indus. Bank, 782 P.2d 6 (Colo.1989)(lis pendens filed in connection with complaint for declaratory judgment to impose an equitable lien); Emarine v. Haley, 892 P.2d 343 (Colo.App.1994). Moreover, a claim for an equitable lien, if properly and timely asserted, is not incompatible with a claim for monetary damages and may be requested to preserve funds used to purchase or improve real property. See Cedar Lane Invs. v. Am. Roofing Supply of Colorado Springs, Inc., 919 P.2d 879, 883 (Colo. App.1996)(equitable lien is 'a form of a constructive trust and provides a security interest in property, which can be used to satisfy a claim); Emarine v. Haley, supra (an equitable lien provides a security interest in property, which can be used to satisfy the claim of a person who may have only a partial interest in the property).

Here, the Brossias contend that the facts support a claim for an equitable lien because Rick used the $80,000 deposit to improve the real property, which it then intended to and did sell to a third party. However, the question remains whether the lis pendens recorded by the Brossias was groundless or invalid when it was recorded.

In their original complaint, the Brossias did not assert a claim for an equitable lien or any other claim for relief affecting the title to real property that could support the filing of a lis pendens. Under the plain language of § 88-35-110(1), a lis pendens may only be recorded after a pleading is filed "wherein relief is claimed affecting the title to real property." No such pleading had been filed at the time the lis pendens was recorded here; thus, we conclude that the lis pendens was invalid under § 38-85-1098).

The Brossias' reliance on Leyden is misplaced. There, unlike the Brossias, the plaintiff specifically sought the imposition of an equitable lien in its complaint before it recorded the notice of lis pendens. See also Emarine v. Haley, supra (plaintiff recorded lis pendens after filing amended complaint which included a claim for equitable lien and constructive trust).

The Brossias argue that, under C.R.C.P. 15(c), their amended complaint, which included a claim for imposition of an equitable lien, should relate back to the filing of their original complaint for purposes of determining the validity of the lis pendens when it was recorded. We are not persuaded.

Under C.R.CP. 15(c), whenever a claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading, the amendment relates back to the date of the original pleading. However, the doctrine of relation back is of importance primarily when the statute of limitations is implicated. See 6A Wright, Miller & Kane, Federal Practice & Procedure § 1496 (2008); see also Denver & Rio Grande W.R.R. v. Clint, 235 F.2d 445 (10th Cir.1956) (C.R.C.P.15(c) is identical to Fed. R.Civ.P. 15(c)).

Moreover, in cases involving statute of limitations issues, relation back is applicable when determining the validity of claims in the amended complaint itself. Seq, eg., Roper v. Spring Lake Dev. Co., 789 P.2d 483, 483 (Colo.App.1990); see also Travelers Ins. Co. v. Gasper, 630 P.2d 97, 100 (Colo.App. 1981)(in certain circumstances, substitution of party is allowed to relate back, and claim is not barred by statute of limitations).

Here, the issue is not the validity of the amended complaint, but rather the validity of the lis pendens, which is tangential to the Brossias' complaint. Pursuant to §§ 38-35-109(8) and 38-85-110(1), the validity of the Brossias' notice of lis pendens is determined at the time it was recorded. Thus, an amended complaint asserting an equitable lien claim to support a previously recorded lis pendens does not alter the fact that the lis pendens, when recorded, had an immediate and inappropriate effect on title and was invalid. See Peoples Bank & Trust Co. v. Packard, supra (lis pendens improper where there was no claim for equitable lien and no other claims affecting title to real property).

Although the Brossias' amended complaint may relate back to their original complaint for some purposes under C.R.C.P. 15(c), we conclude that it does not relate back here for the particular purpose of validating, after the fact, the Brossias' otherwise invalid recording of their lis pendens. See Farber v. Wards Co., 825 F.2d 684, 689 (2d Cir.1987)(landlord could not seek retroactive use and occupancy payments by virtue of relation back of amended pleadings, because purpose of relation back is statute of limitations); Doe v. O'Bannon, 91 F.R.D. 442, 447 (E.D.Pa.1981)(relation back only exists for purpose of ameliorating effects of statute of limitation; amended complaint did not relate back to original complaint for purposes of granting plaintiff standing).

Therefore, we conclude that, as a matter of law, the notice of lis pendens recorded by the Brossias was invalid under § 38-85-1098), and the trial court erred in dismissing Rick's counterclaim. Thus, we reverse the trial court's ruling and remand for a determination of Rick's damages under the statute.

IL

After presentation of the Brossias' case-in-chief, the trial court granted a directed verdict in favor of Rick and dismissed the Bros-sias' claim for emotional distress damages, finding that the evidence was insufficient to establish a willful and wanton breach of contract as a matter of law. The Brossias contend that this decision was error. We disagree.

We review a trial court's granting of a directed verdict de novo. A motion for directed verdict should not be granted unless the evidence compels the conclusion that reasonable jurors could not disagree and that no evidence or inference has been received at trial upon which a verdict against the moving party could be sustained. The trial judge must view the evidence in the light most favorable to the nonmoving party. City of Westminster v. Centric-Jones Constructors, -- P.3d --, 2008 WL 22098771 (Colo App. Nos. O1CA0N502 & 02CA0602, Sept. 11, 2008).

Noneconomic damages, such as emotional distress damages, are available in breach of contract actions only in extraordinary contractual cireumstances where such damages are foreseeable at the time of contracting. See Giaompapa v. Am. Family Mut. Ins. Co., 64 P.3d 230, 240, 243 (Colo. 2008) (noneconomic damages are foreseeable in case alleging willful and wanton breach of automobile insurance contract by insurer). A party seeking such damages must prove foreseeability and a willful and wanton breach. See Giompapa, supra. In typical commercial contracts, noneconomic damages are not foreseeable because only pecuniary loss is at stake. Because the parties in an ordinary sales situation do not contemplate noneconomic harm at the time of contracting, a willfully breaching party is not responsible for noneconomic damages. See Gampapa, swpra.

Here, we agree with the trial court that emotional distress damages are not recoverable under this contract for the purchase of real estate and construction of a home. The Brossias did not present evidence that emotional distress damages were foreseeable by both parties at the time of contracting. Rather, the contract here was more akin to an ordinary sales situation where a breaching party is not responsible for noneconomic damages.

The Brossias argue that they were denied their "dream home," rendering the construction contract personal and of the type described in Giampapa, where emotional distress damages may be foreseeable. We disagree. The Brossias did not show that emotional damage allegedly caused by their inability to purchase their dream home was specifically contemplated by both parties at the time of contracting or that the contract, by its very nature, included such a personal component. Cf. Giampapa, supra (an insured contracts with an insurer in part for peace of mind and security).

Indeed, the contract contemplated that a breach by Rick, in failing to build the house as specified, might occur, and it provided for specific relief under such cireumstances. Moreover, adopting the Brossias' argument would render every home construction contract entered into by individuals subject to a potential claim for damages for the emotional distress experienced when the contract fails. See Adams v. Frontier Airlines Fed. Credit Union, 691 P.2d 352, 354 (Colo. loss as the result of a breach of contract almost invariably causes some form and degree of mental distress.").

Because we conclude that the Brossias' emotional distress claim was properly dismissed, we need not address Rick's argument that the trial court erred by admitting any evidence of emotional distress damages.

The judgment dismissing Rick's counterclaim under § 38-35-109(8) is reversed, and the case is remanded for further proceedings in accordance with this opinion. The judgment is affirmed in all other respects.

Judge DAILEY and Judge PIERCE coneur.


author: Judge GRAHAM.

text:
    TRAILER HAVEN MHP, LLC, a Colorado corporation, Plaintiff-Appellant, v. CITY OF AURORA, Colorado, Defendant-Appellee.
    No. 02CA1969.
    Colorado Court of Appeals, Div. IL.
    Nov. 6, 2003.

      Laff Stein Campbell Tucker Delaney & Gordon, LLP, Darrel L. Campbell, Engle-wood, Colorado, for Plaintiff-Appellant.
    Charles H. Richardson, City Attorney, Robert Werking, Assistant City Attorney, Aurora, Colorado, for Defendant-Appellee.
   Opinion by

Judge GRAHAM.

Plaintiff, Trailer Haven MHP, LLC, appeals from the trial court's judgment dismissing its complaint against defendant, the City of Aurora. We affirm.

Trailer Haven is a mobile home park operating since 1955. Aurora adopted its city code after it annexed the Trailer Haven land.

Before 1996, the Aurora City Code required that all mobile home units be separated by a fifteen-foot buffer zone. In 1994, Aurora's fire department determined that most of the existing mobile home parks did not comply with Aurora's current code regulating mobile home parks, particularly fire safety and exterior regulations. To address these problems, Aurora sought input from owners and managers of the parks to develop a proposal for minimum standards and a phase-in period to enable the parks to achieve compliance.

In 1996, Aurora amended chapter 90 of the city code to establish new spacing requirements for mobile homes: "There shall be a minimum of not less than ten feet between the sides of any two units, eight feet between the side of any unit and the end of any other unit, and six feet between the ends of any two units." Section 90-84(a)(1). To lessen the impact of the new separation requirements on existing noncompliant mobile home parks, § 90-88.5 of the amendment contained an amortization or phase-in clause:

Any manufactured housing park in existence as of January 1, 1997, shall have [until] the following specified dates to be in compliance with the following specified sections....
(2) With regard to section [90]-S84(a)(1), relating to separation requirements for manufactured housing units, January 1, 2007; except that each park shall submit to the director of planning no later than January 1, 1998, a satisfactorily detailed plan for achieving such compliance. The city shall inspect each park at intervals of two or three years to ensure that satisfactory progress is being made in accordance with the plan submitted to the city. The failure of the owner and manager of any park to comply with the plan submitted on behalf of the park shall constitute a violation of this chapter.

(Emphasis added.)

Language was also added to protect long-term residents from being displaced from pre-existing homes on January 1, 2007:

Notwithstanding any other provision of this chapter, a manufactured housing unit which has been installed before January 1, 1997, and does not constitute a health or safety hazard may continue to be occupied although such unit does not conform with the requirements of this section, provided such unit shall not be enlarged, added to, or increased in floor space in any manner which would violate the provisions of this chapter. If such a unit is removed from the space, the space shall not be occupied with another manufactured housing unit unless such unit conforms to the requirements of this chapter and a permit is issued therefor.

Section 90-84(c). This section did not designate the use of those pre-existing homes as nonconforming, nor did it exempt any park owner from the requirements of the amended code, including the separation distances.

The Aurora City Council agreed that the exterior boundary setbacks for existing parks would be declared a nonconforming use for the life of the park. Section 90-34(a)(2) ("No unit shall be located within ten feet from the exterior boundary of the manufactured housing park, except that all existing setbacks as of January 1, 1997, are hereby granted legal nonconforming status for the life of the park.").

Trailer Haven did not submit a plan pursuant to § 90-83.5 detailing how it would achieve compliance with the new spacing regulations.

In March 1998, Trailer Haven asked Aurora's chief building official to waive the new spacing requirements and allow it to install one-hour fire-rated barriers around noncom-pliant homes, citing § 4-2.1.1 of the National Fire Protection Association (NFPA) standards, which provides:

Any portion of a manufactured home, excluding the tongue, shall not be located closer than 10 ft Bm) side to side, 8 ft (2.4m) end to side, or 6 ft (1.8m) end to end horizontally from any other manufactured home or community building unless the exposed composite walls and roof of either structure are without openings and constructed of materials that will provide a 1-hour fire rating or the structures are separated by a 1-hour fire-rated barrier.

Aurora explained to Trailer Haven that the city code specifically did not include the fire wall language of the NFPA standards because it wanted to increase the minimum protection standards for its citizens. Aurora then advised Trailer Haven that it needed to request a variance from the Board of Adjustment and Appeals (BOA) pursuant to § 106-92 of the city code. Aurora allowed Trailer Haven until May 1, 1998, to submit a plan for achieving compliance with the new spacing requirements.

. Trailer Haven did not request a variance from the BOA and instead filed a complaint, requesting a declaratory judgment regarding its obligations to comply with §§ 90-83.5 and 90-34. The complaint requested a declaration that the amended city code was unconstitutionally vague, violated due process rights, and constituted an unlawful taking of property. Trailer Haven alleged that it was exempt from the amended city code because the nonconforming mobile homes did not constitute a health or safety hazard. Trailer Haven requested additional relief in the form of an injunction directing Aurora not to enforce the amended code. The complaint also contained a claim for inverse condemnation.

The trial court granted Aurora's motion for summary judgment on all claims except Trailer Haven's exemption claim, finding that material issues of fact existed whether the manufactured housing units that do not meet the separation requirements are exempt from compliance if they do not constitute a health or safety hazard.

In 2001, Aurora amended § 90-84(c) to read:

If prior to January 1, 2007, any individual manufactured housing unit is removed from its current space, the space shall not be occupied with another manufactured housing unit unless such unit conforms to the requirements of this chapter and a permit is issued therefor. Where there are unique, unnecessary and unreasonable hardships in the way of carrying out the strict letter of the requirements of this section, a manufactured housing park owner may apply to the board of adjustment for a variance from the requirements of this section. A separate variance is required for each individual unit or space. For purposes of this section, "unique, unnecessary and unreasonable hardship" specifically does not include solely financial impact on the manufactured park owner in complying with the requirements of this chapter.

The amendment deleted the clause that had previously exempted nonconforming units existing before January 1, 1997.

Following the changes to § 90-34(c), Trailer Haven was granted leave to amended its complaint. Its amended complaint contained the same allegations as the original complaint and added a claim that the 2001 amendment was unconstitutionally retrospective. The trial court then granted Aurora's motion for summary judgment on all claims. This appeal followed.

L.

Summary judgment is a drastic remedy and will be granted only if the evidence clearly establishes the absence of any genuine issue of material fact and the moving party is entitled to relief as a matter of law. Horrell v. Dep't of Admin., 861 P.2d 1194 (Colo.1993). There are no genuine issues as to any material facts with respect to the issues before us. We therefore address de novo the questions of law reached by the trial court. See Horrell v. Dep't of Admin., supra.

IL

First, we reject Trailer Haven's contention that the trial court erred in dismissing its exemption claim for its failure to exhaust administrative remedies by not having requested a variance with the BOA. Trailer Haven argues that its claim falls within two exceptions to the rule, which provide that a plaintiff need not exhaust administrative remedies (1) when administrative relief is futile, and (2) when the matters in controversy consist of questions of law rather than issues committed to administrative discretion and expertise. Those exceptions do not apply here.

A plaintiff's failure to exhaust administrative remedies may deprive a court of jurisdiction to grant the requested relief. City & County of Denver v. United Air Lines, Inc., 8 P.3d 1206 (Colo.2000). It is well established that "[where administrative remedies are provided by statute, the statutory procedure must be followed when the matter complained of is within the jurisdiction of the administrative authority." Denver-Laoraomie-Walden Truck Line, Inc. v. Denver-Fort Collins Freight Serv., Inc., 156 Colo. 366, 370, 399 P.2d 242, 243 (1965). This rule requiring exhaustion of remedies prevents piecemeal application for judicial relief and unwarranted interference by the judiciary in the administrative process. Horrell v. Dep't of Admin., supra.

The policies of avoiding fragmented adjudication of issues and conserving judicial resources that support the requirement of exhaustion of administrative remedies are not furthered, however, when available administrative remedies are ill-suited for providing the relief sought and when the matters in controversy consist of questions of law rather than issues committed to administrative discretion and expertise. Horrell v. Dep't of Admin., supra. Thus, a party need not exhaust available administrative remedies "when the administrative agency does not have the 'authority to pass on the question raised by the party seeking judicial action" " Fred Schmid Appliance & Television Co. v. City & County of Denver, 811 P.2d 31, 33 (Colo.1991)(quoting Gramiger v. Crowley, 660 P.2d 1279, 1281 (Colo.1983)).

Section 90-34(c) describes the procedure Trailer Haven must follow to obtain a variance from the new spacing requirements. If a variance is not granted, Trailer Haven may then seek judicial review of that determination. Because Trailer Haven has not yet sought a variance with the BOA, the trial court properly dismissed the exemption claim for lack of jurisdiction. See Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997); Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985).

We also reject Trailer Haven's argument that its pursuit of a variance through the BOA would have been futile because economic hardship alone is not enough. Although the amended ordinance requires more than economie loss to establish unnecessary hardship as a prerequisite to granting a variance, it does not preclude the BOA from considering economie loss, along with other evidence of hardship, when determining whether to grant the variance. Thus, we conclude that the pursuit of a variance was not a futile act.

IIL

Trailer Haven also contends that it was not required to exhaust its administrative remedies because the amended city code is unconstitutional. It contends that the amended code constitutes a taking without just compensation, is retrospective in nature, and is vague in violation of due process rights. We address and reject each contention in turn.

Aurora is a home rule city and possesses every power possessed by the legislature as to all matters of local concern. Zoning is a matter of local concern. City of Greeley v. Ells, 186 Colo. 352, 527 P.2d 538 (1974).

A presumption of validity attaches to zoning decisions of municipal zoning authorities. Thus, a party challenging a zoning ordinance on constitutional grounds assumes the burden of proving the asserted invalidity beyond a reasonable doubt. Sellon v. City of Manitou Springs, 745 P.2d 229 (Colo.1987).

A.

Trailer Haven asserts that the imposition of the amended city code constitutes a taking of property without just compensation in violation of Colo. Const. art. II, § 15. We disagree.

A land use regulation constitutes a taking when applied to a particular property if it does not substantially advance legitimate state interests or if it prevents economically viable use of the property. A governmental regulation that prohibits all reasonable use of property constitutes a taking within the meaning of Colo. Const. art. II, § 15. However, a landowner is not constitutionally entitled to use its property in a manner that results in the maximum attainable profit. Van Sickle v. Boyes, 797 P.2d 1267 (Colo.1990).

Here, the trial court concluded that not all mobile homes are affected by the amended code and that Trailer Haven could continue operating as a mobile home park. The court thus determined that some reasonable use of the property existed, obviating Trailer Haven's assertion that there was an actual physical taking of its property.

In questions of taking, we are concerned with whether the owner is foreclosed from all reasonable use of the property. Van Sickle v. Boyes, supra. Here, the amended code does not deprive the owner of Trailer Haven from operating the mobile home park. Instead, the code requires conformance to the new spacing requirements in the future. Thus, the actions of Aurora requiring Trailer Haven to bring its mobile home park into compliance with the amended city code do not constitute a taking because enforcement of the code will not deprive Trailer Haven of all use of the property.

It is true, as Trailer Haven suggests, that some financial burden will be imposed upon it to effect compliance with the amended ordinances; but this burden, by itself, is not a sufficient reason for declaring the law invalid. See Apple v. City & County of Denver, 154 Colo. 166, 390 P.2d 91 (1964). Only 10 to 20 of the 216 mobile homes in Trailer Haven do not meet the new spacing requirements, and Trailer Haven may seek variances for those nonconforming mobile homes. If variances were granted, the financial sacrifice required of Trailer Haven would be substantially reduced.

We also note that the amended code substantially furthers legitimate governmental interests concerning the protection of citizens from fire hazards. See Van Sickle v. Boyes, supra; see also Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)(taking did not oceur where regulation was substantially related to promotion of general welfare and permitted reasonable beneficial use of the property).

We therefore conclude that application of the amended code to Trailer Haven is a reasonable exercise of the police power and does not constitute a taking under Colo. Const. art. II, § 15.

B.

Trailer Haven also contends that, because the noncomplying mobile homes constitute a nonconforming use, it is excused from the new spacing requirements and that retroactive application of the amended code is unconstitutionally retrospective. Trailer Haven further contends that, if the amended code is applicable, it is unconstitutionally retrospective because it requires Trailer Haven to conform to spacing requirements that were not in existence when it was established. Trailer Haven argues that the nonconforming use of the property created a vested right that is constitutionally protected from after-the-fact impairment by ordinances imposing more stringent safety requirements than those in existence when the mobile home park was established. We are not persuaded.

1.

A nonconforming use is one which lawfully existed before the enactment of zoning ordinances and is maintained after the effective date of the ordinances, although it presently does not comply with the zoning restrictions applicable to the district in which it is situated. Anderson v. Bd. of Adjustment for Zoning Appeals, 931 P.2d 517 (Colo.App.1996).

Nonconforming uses are entitled to protection under the law. However, the right to extend, enlarge, or even continue a nonconforming use may legally be restricted. Bird v. City of Colorado Springs, 176 Colo. 32, 489 P.2d 324 (1971); Anderson v. Bd. of Adjustment for Zoning Appeals, supra. Noneonforming uses should be reduced to conformity as speedily as possible because they are necessarily inconsistent with the purposes of zoning and are not intended to be perpetual. Art Neon Co. v. City & County of Denver, 488 F.2d 118 (10th Cir.1973); Wasinger v. Miller, 154 Colo. 61, 388 P.2d 250 (1964); Anderson v. Bd. of Adjustment for Zoning Appeals, supra.

An owner of property is not immune from the exercise of the police power because he or she constructed a building that was in full compliance with the law when it was built. Apple v. City & County of Denver, supra. "To hold that existing buildings are exempt from ordinances which impose standards designed to protect the safety and welfare of the public would in effect permit those whose actions are dangerous to the health and safety of the community to continue their deleterious conduct unchecked." Apple v. City & County of Denver, supra, 154 Colo. at 172, 390 P.2d at 94; see also Bird v. City of Colorado Springs, supra (a city is allowed to impose zoning restrictions on annexed lands, after annexation, so that those lands may be accommodated into the orderly growth patterns of the city); City of Colorado Springs v. Miller, 95 Colo. 337, 340, 36 P.2d 161, 162 (1984)(one who owns or acquires property "must be ever mindful of the right of the state or city to exercise its legislative authority for the common good").

Zoning ordinances should be interpreted strictly against allowing indefinite and perpetual continuation of a nonconforming use. Anderson v. Bd. of Adjustment for Zoning Appeals, supra; Wyatt v. Bd. of Adjustment-Zoning, 622 P.2d 85 (Colo.App.1980). Provisions permitting nonconforming uses to continue should be construed strictly, and zoning provisions restricting noneon-forming uses should be construed liberally. Anderson v. Bd. of Adjustment for Zoning Appeals, supra.

Here, the amended city code seeks to discontinue the nonconforming spacing to protect citizens from fire dangers. To hold that the amended city code does not apply to Trailer Haven because it is a nonconforming use would permit conditions that are dangerous to the health and safety of the community to continue unabated.

2.

Colo. Const. art. II, § 11 provides, "No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation ... shall be passed by the general assembly." A law is retrospective in operation when it " 'takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past" " P-W Invs., Inc. v. City of Westminster, 655 P.2d 1365, 1371 (Colo.1982)(quoting Denver, S. Park & Pac. Ry. Co. v. Woodward, 4 Colo. 162, 167 (1878)).

The purpose of the constitutional ban on retrospective legislation, like the ban on ex post facto laws, is to prevent the unfairness that results from changing the legal consequences of an act after the act has occurred. Peoples Natural Gas Div. v. Pub. Utils. Comm'n, 197 Colo. 152, 590 P.2d 960 (1979).

The constitutional ban on retrospective operation does not prevent a city from enacting and enforcing ordinances to protect the health and safety of the community. Vam Sickle v. Boyes, supra. For example, the application of a safety code to buildings that were constructed in a different period under different code requirements is not unconstitutional retrospective legislation. Van Sickle v. Boyes, supra; see also City of Los Angeles v. Gage, 127 Cal.App.2d 442, 274 P.2d 34 (1954)(ordinance requiring the discontinuance of nonconforming commercial uses within a five-year period is not an unconstitutional impairment of property rights); City of Lincoln v. Bruce, 221 Neb. 61, 375 N.W.2d 118 (1985)(ordinance that limits and plans for the elimination of nonconforming uses is a proper exercise of the municipality's power and does not retroactively deprive property owner of a vested right); Town of Plattekill v. Dutchess Sanitation, Inc., 56 A.D.2d 150, 391 N.Y.S.2d 750 (1977)(town ordinance which prohibited dumping, within the town, garbage that originated outside the town was a health and safety measure and not a retroactive zoning ordinance, and garbage collector's use of site was not immune from operation of ordinance as a prior nonconforming use even if it pre-existed the ordinance), aff'd, 43 N.Y.2d 662, 400 N.Y.S.2d 816, 371 N.E.2d 534 (1977).

Here, the consequences to Trailer Haven for noncompliance with the spacing requirements have not changed, and the amended code does not require compliance with the new spacing requirements until 2007. Until that time, Trailer Haven's current spacing is permitted to continue as a nonconforming use, provided that Trailer Haven satisfies the phase-in requirements of the code.

Finally, Trailer Haven argues that the amendment conflicts with § 90-2 of the city code, which allows a nonconforming use in respect to the number of spaces permitted within a M-H or PMH zone so long as the use began before January 1, 1997. We perceive no conflict. Section 90-2, strictly construed, does not relate to spacing requirements. We conclude that the amendment and § 90-2 relate to two separate regulatory concerns and can be harmonized, thus avoiding any conflict.

We therefore conclude that application of the amended code is not unconstitutionally retrospective here.

C.

Trailer Haven next contends that the amended ordinance, § 90-88.5, is so vague as to violate due process of law. Trailer Haven argues that the amended ordinance does not contain objective standards by which "satisfactory progress" is to be measured, nor does it identify standards to assist in determining how quickly a mobile home park owner must satisfy the minimum spacing requirements before January 1, 2007. We disagree.

Where statutes or ordinances are challenged on the ground of vagueness, a court must attempt to construe the law in a manner that will satisfy constitutional due process requirements, if a reasonable and practical construction of the law will achieve such a result. Robertson v. City & County of Denver, 978 P.2d 156 (Colo.App.1999).

The basic inquiry in a void-for-vagueness challenge is whether the law forbids or requires the doing of an act in terms so vague that persons of ordinary intelligence necessarily must guess its meaning and differ as to its application. The statutory language must be specific enough to give fair warning of the prohibited conduct, yet must be sufficiently general to address the problem under varied circumstances and during changing times. Robertson v. City & County of Denver, supra.

Failure to specify every detail, step by step or action by action, does not render a law vague, indefinite, or uncertain from a constitutional perspective. Apple v. City & County of Denver, supra.

Section 90-88.5 requires nonconforming mobile home parks to submit a plan to the director of planning by January 1, 1998, showing how compliance with the new spacing requirements will be achieved. The ordinance allows each mobile home park owner to submit a plan that accounts for the unique aspects of the particular park. Once the plan is submitted to the director of planning, Aurora officials will inspect each park every two or three years to ensure progress is being made in accordance with the plan submitted. This section clearly states that failure to comply with the plan submitted constitutes a violation of chapter 90.

Contrary to Trailer Haven's contentions, § 90-38.5 does not vest zoning officials with the discretion to determine whether the plans submitted by the mobile home park owners are sufficient and satisfactorily detailed to achieve compliance with the new amended ordinance. Nor are zoning officials required to inspect the mobile home park to ensure that "satisfactory progress" is being made to comply with the new spacing requirements. Rather, Aurora officials will inspect each park to ensure that satisfactory progress is "being made in accordance with the plan submitted to the city."

The spacing measurement is specific, and Trailer Haven has knowledge of its existing spacing dimensions.

We therefore conclude that the new requirements do not require the owners of mobile home parks, like Trailer Haven, to guess at a method of compliance. See Robertson v. City & County of Denver, supra. Thus, Trailer Haven has failed to prove beyond a reasonable doubt that $ 90-38.5 is so vague as to violate due process rights.

The judgment is affirmed.

Judge MARQUEZ and Judge ROTHEN-BERG concur.


author: Judge VOGT.

text:
    David M. SUMMERS, Plaintiff-Appellant, v. Carol G. PERKINS, Defendant-Appellee.
    No. 02CA1408.
    Colorado Court of Appeals, Div. IV.
    Nov. 6, 2003.
    David M. Summers, pro se.
    Nicholls & Associates, P.C., Stephen C. Nicholls, Denver, Colorado, for Defendant, Appellee.
   Opinion by

Judge VOGT.

Plaintiff, David M. Summers, appeals the trial court judgment dismissing his claims against defendant, Carol G. Perkins. We affirm.

Plaintiff was the attorney for an individual who obtained a judgment against defendant's husband. Defendant's husband subsequently transferred certain property to defendant and then filed a petition for relief under Chapter 7 of the Bankruptey Code.

Plaintiff participated in the bankruptcy proceedings, initially on behalf of his client and later as assignee of his client's judgment and bankruptey claim. In those proceedings, the bankruptcy trustee filed an adversary complaint objecting to discharge of defendant's husband and asserting claims for relief based on allegedly fraudulent transfers of property to defendant by her husband. Although defendant was not originally named as a party in the adversary complaint, the trustee obtained leave to add her as a party defendant.

Thereafter, defendant, her husband, the trustee, and other parties entered into settlement negotiations. The parties ultimately reached a settlement providing that the disputed properties would be sold and defendant and the bankruptey estate would split the net proceeds evenly. Plaintiff was given notice, but did not object to the proposed settlement. The bankruptcy court approved the settlement and dismissed the trustee's fraudulent transfer claims with prejudice.

Plaintiff then commenced this action under the Colorado Uniform Fraudulent Transfer Act, § 38-8-101, et seq., C.R.8.2002 (CUF-TA), contending that, as assignee of the original judgment, he was entitled to recover the value of property fraudulently transferred to defendant by her husband, the judgment debtor. The complaint did not reference the bankruptcy proceedings.

Defendant moved to dismiss on the basis that the bankruptey trustee, not plaintiff, was the real party in interest and that plaintiff thus lacked standing to prosecute his claims. She also contended that, because plaintiff's claims were virtually identical to claims raised, settled, and dismissed with prejudice in the bankruptey case, they were barred under principles of res judicata. The trial court granted defendant's motion, concluding that plaintiff could not reassert claims raised and resolved in the bankruptey proceedings.

I.

Plaintiff contends on appeal that he had standing to assert his claims and that, because there was no identity of parties or of claims in the two proceedings, the trial court erred in concluding that res judicata principles barred his complaint. We conclude that plaintiff did not have standing, and we therefore do not reach his res judicata arguments.

A.

C.R.C.P. 17(a) requires that every action be prosecuted in the name of the real party in interest. The real party in interest is that party who, by virtue of substantive law, has the right to invoke the aid of the court in order to vindicate the legal interest in question. Goodwin v. Dist. Court, 779 P.2d 837 (Colo.1989); Ogunwo v. Am. Nat'l Ins. Co., 936 P.2d 606 (Colo.

Under 11 U.S.C. § 541(a)(1), when a debtor files a voluntary petition in bank-ruptey and a trustee is appointed, the debt- or's legal and equitable interests in property, with some exceptions, become the property of the bankruptcy estate. For purposes of § 541(a)(1), a debtor has a "legal or equitable interest" in property fraudulently transferred by it. See 5 Collier on Bankruptcy [ 541.14[4], at 541-85 n. 9 (15th rev. ed.1996).

Only the bankruptey trustee has standing to assert claims that are the property of the bankruptcy estate. Miller v. Accelerated Bureau of Collections, Inc., 932 P.2d 824 (Colo. see also Ogunwo v. Am. Nat'l Ins. Co., supra; Black v. First Fed. Sav. & Loan Ass'n, 830 P.2d 1103 (Colo.App.1992), aff'd sub nom. La Plata Med. Ctr. Assocs., Ltd. v. United Bank, 857 P.2d 410 (Colo.1993).

Among the powers vested in the bankruptcy trustee is the power to avoid any transfer of property by the debtor that a creditor could avoid under state law, including state fraudulent transfer laws. See 11 U.S.C. § 544(b); In re Munoz, 111 B.R. 928 (D.Colo.1990); Collier, supra 1 544.09[2]. Thus, courts in other jurisdictions have held that, except in limited cireumstances not present here, only the bankruptcy trustee, and not an individual creditor, has standing to bring a fraudulent conveyance action after a bankruptcy petition has been filed. See In re MortgageAmerica Corp., 714 F.2d 1266 (5th Cir.1983); In re Blount, 276 B.R. 753 (Bankr.M.D.La.2002); In re Munoz, supra. The Fifth Cireuit explained:

The "strong arm" provision of the current Code, 11 U.S.C. $ 544, allows the bank-ruptey trustee to step into the shoes of a creditor for the purpose of asserting causes of action under state fraudulent conveyance acts for the benefit of all creditors, not just those who win a race to judgment. A trustee acting under section 544 "acts as a representative of creditors," and any property recovered is returned to "the estate for the eventual benefit of all creditors." ... Actions for the recovery of the debtor's property by individual creditors under state fraudulent conveyance laws would interfere with [the bankruptey] estate and with the equitable distribution scheme dependent upon it.... Any other result would produce near anarchy where the only discernible organizing principle would be first-come-first-served.

In re MortgageAmerica Corp., supra, 714 F.2d at 1275-76 (citations omitted).

B.

Plaintiff argues that the cases recognizing the exclusive standing of the bankruptcy trustee to bring fraudulent conveyance actions are not controlling here because he is seeking relief different from that available to a bankruptey trustee. Specifically, he contends that he is not seeking to "avoid" a fraudulent conveyance, but, rather, to recover money damages under a state statute, and that the use of the term "voidable" in § 38-8-109(2), C.R.$.2002, indicates that the General Assembly intended to provide "an additional monetary claim against the first transferee" of fraudulently transferred property, independent of a claim to avoid such a transfer. We are not persuaded.

Section 38-8-108, C.R.98.2002, enumerates remedies available to creditors under the CUFTA. It provides, in pertinent part:

(1) In an action for relief against a transfer or obligation under this article, a creditor, subject to the limitations in section 38-8-109, may obtain:
(a) Avoidance of the transfer or obligation to the extent necessary to satisfy the creditor's claim....

(Emphasis added.) The following section, § 38-8-109, C.R.S.2002, addresses defenses, liability, and protection available to the transferees of property. The subsection on which plaintiff relies, § 38-8-109(2), provides, in relevant part: "Except as otherwise provided in this section, to the extent a transfer is voidable in an action by a creditor under section 38-8-108(1){(a), the creditor may recover judgment for the value of the asset transferred, as adjusted under subsection (3) of this section, or the amount necessary to satisfy the creditor's claim, whichever is less." (Emphasis added.)

Sections 88-8-108(1)(a) and 38-8-109(2) cross-reference each other, and nothing in the plain language of the statutes suggests that "voidable" in § 38-8-109(2) means anything other than "subject to avoidance under § 38-8-108(1)(a)." Nor does plaintiff cite any authority that would support such a construction of the statutory language. Rather, by its plain terms, § 38-8-109(2) does not provide an additional remedy to creditors, but instead limits the remedy provided under § 38-8-108(1)(a) by clarifying that the ereditor's recovery in an action to avoid a fraudulent transfer is limited to the lesser of the adjusted value of the transferred asset or the amount of the creditor's claim.

Moreover, a bankruptey trustee's "avoidance" power includes the power to recover either the fraudulently transferred property itself or the value of that property for the benefit of all the creditors. See 11 U.S.C. § 550(a);, Delgado Oil Co. v. Torres, 785 F.2d 857 (10th Cir.1986); In re Aero-Fastener, Inc., 177 B.R. 120 (Bankr.D.Mass.1994). Thus, the monetary relief sought by plaintiff here is also a remedy available to the bankruptcy trustee. Even though plaintiff may not be made whole through the trustee's settlement, that fact does not confer standing on him to pursue a recovery that could adversely affect the recovery available to other creditors. See In re MortgageAmerica, supra.

In sum, the fact that plaintiff was proceeding under the CUFTA did not afford him standing to assert claims that only the bank-ruptey trustee had standing to assert and that the trustee in fact had brought and resolved in the bankruptcy case. Accordingly, plaintiff's complaint was properly dismissed for lack of standing.

IL

Because we conclude that this appeal was not wholly frivolous or brought for the sole purpose of harassment or delay, we deny defendant's request for attorney fees pursuant to C.A.R. 38(d). See Wood Bros. Homes, Inc. v. Howard, 862 P.2d 925 (Colo.1998).

The judgment is affirmed.

Judge KAPELKE and Judge WEBB concur.