author: Judge ROY.

text:
    DUFFICY & SONS, INC., d/b/a Central Denver Ironworks, Inc., a Colorado corporation, Plaintiff-Appellant, v. BRW, INC., a Wyoming corporation, and Professional Service Industries, Inc., a Delaware corporation, Defendants-Ap-pellees.
    No. 01CA2201.
    Colorado Court of Appeals, Div. II.
    Nov. 21, 2002.
    Rehearing Denied Jan. 9, 2003.
    Certiorari Granted Aug. 18, 2003.

      Cage, Williams, Abelman & Layden, P.C., Alvin M. Cohen, Denver, Colorado; Kevin M. Dufficy, Denver, Colorado, for Plaintiff-Appellant.
    Holland & Hart, LLP, Daniel R. Frost, Joseph W. Halpern, Timothy W. Gordon, Denver, Colorado, for Defendant-Appellee BRW, Inc.
    Kennedy & Christopher, P.C., Charles R. Ledbetter, John R. Mann, Denver, Colorado, for Defendant-Appellee Professional Service Industries, Inc.
   Opinion by

Judge ROY.

Plaintiff, Dufficy & Sons, Inc., appeals from a district court judgment in favor of defendants, BRW, Inc. and Professional Service Industries, Inc. (PSI). We reverse and remand for further proceedings.

The City and County of Denver contracted with BRW to provide licensed engineering services in connection with the design and construction administration of two bridges (the project). Pursuant to the contract, BRW prepared the drawings and specifications for the project, and the project was put out for bid. BRW subcontracted its contract administration obligations, or inspections, to PSI.

The city contracted with a general contractor to construct the project, the general contractor, in turn subcontracted parts of the work. Dufficy subcontracted with an intervening subcontractor for the fabrication, painting, and shipment of portions of the structural steel. As pertinent here, Dufficy further subcontracted the painting and purchased the specified paint from the manufacturer.

The contract between the city and the general contractor incorporated BRW's plans and specifications and required the general contractor to perform and complete all the work in accordance with the plans and specifications. The subcontractors were similarly bound.

According to the complaint, Dufficy incurred additional expense and delays related to the application of the paint and sought additional compensation through the city's administrative appeal process for public works contracts. That process was the sole contractual remedy for disputes arising between the city and the general contractor, sometimes for the benefit of subcontractors, concerning additional compensation or other adjustment in the contracts. However, before a decision was reached in the administrative proceedings, Dufficy commenced this action in district court.

In its amended complaint, Dufficy alleged that BRW was negligent in preparing, interpreting, and administering the paint system specifications. Dufficy also alleged that PSI was negligent in inspecting the painting and in directing Dufficy's paint subcontractor on how and where to apply the paint. Finally, Dufficy alleged that BRW and PSI, as BRW's agent, negligently misrepresented that Dufficy's painting subcontractor was complying with the plans and specifications.

The trial court granted BRW's motion to dismiss and PSI's subsequent motion for summary judgment based on the economic loss rule and then granted Dufficy's motion for C.R.C.P. 54(b) certification. This appeal followed.

L.

We review de novo the trial court's rulings on both BRW's motion to dismiss and PSI's motion for summary judgment,. See Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995)(summary - judgment); - Fluid Technology, Inc. v. CVJ Axles, Inc., 964 P.2d 614 (Colo.App.1998)(motion to dismiss).

IL.

Dufficy contends that the trial court erred in concluding that BRW did not owe Dufficy an independent duty of care in preparing the plans and specifications for the project. More specifically, Dufficy asserts that licensed engineers such as BRW owe contractors and subcontractors an independent professional duty of care in the preparation of plans and specifications, that BRW breached that duty, and that this breach of duty was the proximate cause of Dufficy's damages. BRW, on the other hand, argues that the economic loss rule bars Dufficy's claims. We agree with Dufficy.

The supreme court has adopted the economic loss rule, which states that "a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such a breach absent an independent duty of care under tort law." Town of Alma v. Azco Construction, Inc., 10 P.3d 1256, 1264 (Colo.2000).

The economic loss rule is intended to maintain the boundary between contract and tort and to prevent tort law from swallowing the law of contracts. As the supreme court stated:

In this way, the law serves to encourage parties to confidently allocate risks and costs during their bargaining without fear that unanticipated liability may arise in the future, effectively negating the parties' efforts to build these cost considerations into the contract. The economic loss rule thus serves to ensure predictability in commercial transactions.

Town of Alma v. Azco Construction, Inc., supra, 10 P.3d at 1262. The court also held that the rule applies not only to the contracting parties, but also to third-party beneficiaries who may have a cause of action for breach of contractual duties However, the supreme court expressly limited the rule to those instances in which there is no independent duty of care under tort law.

Colorado courts have not previously recognized an independent common law duty of care owed by a licensed engineer to a contractor or subcontractor who relies on the plans and specifications prepared by the engineer. Because we now conclude there is such an independent duty of care under the tort law, we hold that the economic loss rule does not preclude Dufficy's tort claims here.

Whether a defendant owes a duty to a plaintiff is a question of law for the court, as is the seope of that duty. See Bath Excavating & Construction Co. v. Wills, 847 P.2d 1141 (Colo.1993). Whether the defendant has breached that duty and thereby caused the plaintiff damages is a question of fact for the jury. See Perreira v. State, 768 P.2d 1198 (Colo.1989).

In determining whether to recognize a duty, courts must consider many factors, including the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the actor's conduct, the magnitude of the burden, of guarding against injury or harm, and the consequences of placing the burden on the actor. See Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo.1987). No one factor is controlling, and the question of whether a duty should be implied is essentially one of fairness under contemporary standards, because foreseeable events include those likely enough in the setting of modern life that a reasonably thoughtful person would take them into account in guiding his or her practical conduct. See Hilberg v. F.W. Woolworth Co., 761 P.2d 236 (Colo.App.1988), overruled in part by Casebolt v. Cowan, 829 P.2d 352 (Colo.1992). Thus, a conclusion that a duty does or does not exist is an expression of policy considerations that lead the law to say whether a plaintiff is entitled to protection. See Case-bolt v. Cowan, supra.

Applying the factors listed above and the policy reasons underlying the imposition of a duty of care, we now conclude that a licensed engineer owes a duty of care to the contractors and subcontractors with respect to the plans and specifications drafted and prepared by the engineer and relied upon by the contractor or subcontractor.

Contractors clearly are subject to a substantial risk of loss by relying on the plans and specifications prepared by licensed engineers that they are obligated to implement. Licensed engineers can certainly foresee that contractors may suffer losses if the plans and specifications are faulty. Indeed, the very purpose of preparing plans and specifications is to provide contractors with the necessary details and instructions to carry out their construction activities.

Moreover, extending the licensed engineers' duty of care to contractors and subcontractors who work on a project does not impose a great burden on licensed engineers. Licensed engineers are already bound by duties imposed by their licensing authority. The regulations of the State Board of Registration for Professional Engineers and Surveyors provide that engineers are obligated to "approve and seal only those design documents" that are "in conformity with accepted engineering ... standards." Dep't of Regulatory Agencies Rule 8.1.3, 4 Code Colo. Regs. 730-1. Requiring licensed engineers to produce plans and specifications in accordance with professional standards merely requires them to perform their duties at a level that meets the reasonable expectation of those who employ and rely upon them.

We also conclude that placing a burden of reasonable care on a licensed engineer will benefit the construction industry,. The risk of liability will provide engineers with incentive to perform their duties in conformity with the professional standards. Additionally, imposing losses occasioned by defective plans or specifications on the engineer shifts the risk of loss onto the person best able to control the risk.

Although some courts have reached the opposite conclusion, a majority of the appellate courts considering the issue have concluded that a licensed engineer owes a contractor a duty of care. See Mayor v. Clark-Dietz & Associates-Engineers, Inc., 550 F.Supp. 610 (N.D.Miss.1982)(finding that failure of architect to perform contractual obligations to contractor to supply sufficient design for levee and bridge rendered him liable in tort to contractor for extra construction expenses proximately caused by the negligent design); Donnelly Construction Co. v. Oberg/Hunt/Gilleland, 139 Ariz. 184, 677 P.2d 1292 (1984)(holding that contractor alleging substantial error in plans and specifications prepared by architects for property owners stated a cause of action for negligence and negligent misrepresentation because it was foreseeable that contractor, hired to follow plans and specifications prepared by architects, would incur increased costs if those plans and specifications were in error); Tommy L. Griffin Plumbing & Heating Co. v. Jordan, Jones & Goulding, Inc., 320 S.C. 49, 463 S.E.2d 85 (1995) (holding that design professionals owe a professional duty to the contractor, arising separate from any contractual duties between the parties or with third parties, not to design or supervise the project negligently); see also Frank D. Wagner, Annotation, Tort Liability of Project Architect for Economic Damages Suffered by Contractor, 65 A.L.R.3d 249, 256 (1975).

Finally, before adopting the economic loss rule, Colorado courts recognized a similar duty owed by an architect to an owner for the negligent design of a building. Kellogg v. Pizza Oven, Inc., 157 Colo. 295, 402 P.2d 633 (Colo.1965). In Kellogg, the court made it clear that the claim was in negligence, not contract, and stated that:

The jury was instructed that they could find for Pizza and against the Architects if the latter were "negligent in the furnishing of the preliminary estimate and that the plaintiff reasonably relied upon such preliminary estimate; or that the defendants were negligent in their supervision of the construction work; and that such alleged negligence was the proximate cause of damages to the plaintiff." It is our view that this is a correct statement of the law.

Kellogg v. Pizza Oven, Inc., supra, 157 Colo. at 299, 402 P.2d at 635; see also Perlmutter v. Flickinger, 520 P.2d 596 (Colo.App.1974)(not published pursuant to C.A.R. 35(F)); CJI Civ. 15:26 (2001). The duty that we recognize today is merely a logical extension of the duty owed the owner, which has already been recognized, albeit before the supreme court's adoption of the economic loss rule. See Kellogg v. Pizza Oven, Inc., supra; Perlmutter v. Flickinger, supra.

Therefore, because here BRW was the project's engineer, it owed Dufficy an independent duty to employ that degree of knowledge, skill, and judgment ordinarily possessed by members of that profession and to perform faithfully and diligently any service undertaken as an engineer in the manner a reasonably prudent engineer would under the same or similar cireumstances.

Having so concluded, we need not address Dufficy's negligent misrepresentation claim against BRW to the extent that it relates to any negligence in the preparation of the plans and specifications for the project.

IIL.

Dufficy also contends that the trial court erred in concluding that PSI, as BRW's agent, did not owe Dufficy an independent duty of care for its inspection of the paint applications on the project. Specifically, Dufficy asserts that PSI, as BRW's agent and project inspector, owed the contractors and subcontractors an independent professional duty of care in inspecting and directing the work of the project. We agree.

Under the same rationale discussed above, we conclude that inspectors owe the same professional duty of care as architects and engineers.

Accordingly, here, because PSI was an agent of BRW and performed the work of a design professional, specifically as the pro-jecet's inspector, it owed Dufficy a duty to employ that degree of knowledge, skill, and Judgment ordinarily possessed by members of that profession and to perform faithfully and diligently any service undertaken as an inspector in the manner a reasonably prudent inspector would under the same or similar circumstances.

IV,

Finally, Dufficy contends that the trial court erred in concluding that its negligent misrepresentation claims against BRW and PSI relating to the supervision and inspection of Dufficy's painting subcontractor are barred by the economic loss rule. We agree.

BRW contracted with the city to supervise the construction of the project and to assure compliance with the construction document, that is, the plans and specifications. BRW subcontracted some or all of that obligation to PSL.

It is well established that in some circumstances a claim of negligent misrepresentation based on principles of tort law, independent of any principle of contract law, may be available to a party to a contract. It is equally well established that when the alleged negligent conduct is a breach of a duty that arises under the provisions of a contract, the duty is not independent of the contractual obligation, and the claim must be addressed in contract, not tort. Buell v. Security General Life Insurance Co., 779 F.Supp. 1573 (D.Colo.1991), aff'd in part and rev'd in part, 987 F.2d 1467 (10th Cir.1993); Town of Alma v. Azco Construction, Inc., supra; Scott Co. v. MK-Ferguson Co., 832 P.2d 1000 (Colo.App.1991).

Dufficy relies on the supreme court's decisions in Keller v. A.O. Smith Harvestore Products, Inc., 819 P.2d 69 (Colo.1991), and Town of Alma v. Azco Construction, Inc., supra. In Keller, the supreme court found that a contracting party's negligent misrepresentation of material facts prior to the execution of an agreement may provide the basis for an independent tort claim. In Azeo, the supreme court cited Keller and stated that "[iln these situations where we have recognized the existence of a duty independent of any contractual obligations, the economic loss rule has no application and does not bar a plaintiffs tort claim." Town of Alma v. Azco Construction, Inc., supra, 10 P.3d at 1263.

These cases are dispositive of the issue before us. Although Keller concerns negligent misrepresentations during negotiations before execution of a contract, we decline to read that decision narrowly and instead apply the same reasoning here to the alleged misrepresentations made after execution of the contract.

Here, the negligent misrepresentation claim rests on BRW's and PSI's contractual duties to the city and to each other. Dufficy alleges PSI, as BRW's agent, represented that Dufficy's subcontractor "was performing its contractual obligations ... in strict accordance with [the paint manufacturer's] instructions and the Contract Documents" and that "primed bridge components were ready for topcoating." BRW, and its subcontractor, PSI, were contractually obligated to the city to "observe and systematically review the performance of the construction contract(s) in such a manner and at such times as is necessary to determine that the work has been or is being installed in conformance with the Contract Documents." We conclude that although the alleged misrepresentations arose out of duties owed by BRW and PSI to the city pursuant to the contracts, a contractor or subcontractor has an independent tort claim for negligent misrepresentation.

Therefore, because Dufficy's negligent misrepresentation claims are based on an independent tort claim, Dufficy is not barred from recovery by the economic loss rule.

Accordingly, the judgment is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

Judge JONES and Judge CASEBOLT concur.


source: Caselaw Access Project

author: Judge TAUBMAN.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Deanna SCOFIELD, Defendant-Appellant.
    No. 01CA1292.
    Colorado Court of Appeals, Div. V.
    Dec. 5, 2002.
    Rehearing Denied April 3, 2003.
    Certiorari Denied Aug. 4, 2003.

      Ken Salazar, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Stefani Goldin, Loveland, Colorado, for Defendant-Appellant.
   Opinion by

Judge TAUBMAN.

Defendant, Deanna Scofield, appeals the sentence imposed following the judgment of conviction entered upon her guilty plea to child abuse. We dismiss the appeal.

Pursuant to a plea agreement, defendant pleaded guilty to an amended count of felony child abuse in exchange for the dismissal of the original charge against her. The parties also stipulated that the court could find that aggravating circumstances existed and that defendant would receive a sentence of between two and sixteen years in the Department of Corrections (DOC). Pursuant to the agreement, the court sentenced defendant to fourteen years in the DOC.

Defendant contends that the court abused its discretion in sentencing her to fourteen years in the DOC. The People contend that defendant's appeal is barred by § 18-1-409(1), and is not properly before us. We agree with the People and therefore dismiss the appeal.

Section 18-1-409(1) provides for appellate review of the propriety of a sentence except where the sentence imposed is "within a range agreed upon by the parties pursuant to a plea agreement." Here, defendant seeks review of the propriety of a sentence imposed within the limits for which she bargained. Under § 18-1-409(1), she is precluded from doing so. See People v. Garcia, 55 P.3d 243 (Colo.App.2002); People v. O'Dell, 53 P.3d 655 (Colo.App.2001).

Nevertheless, defendant argues that she was not sentenced within a range agreed upon pursuant to a plea agreement because the range stipulated to in the agreement coincides with the sentencing range for a class four felony if aggravating circumstances are found pursuant to § 18-1.3-401(6), C.R.S.2002. Because the agreement does not alter the existing statutory range and does not confer a sentencing benefit upon her, defendant argues that § 18-1-409(1) does not apply to her. We disagree.

Here, the first paragraph of the plea agreement sets forth the possible penalties for a class four felony: "incarceration of 2 to 8 years in the presumptive range, or up to 16 years if aggravated circumstances exist." The next paragraph of the plea agreement states

[that as to sentencing on the defendant's plea of guilty to Amended Count I, the Parties stipulate that the defendant will receive a Department of Corrections sentence in the range of 2 to 16 years. The Parties further agree that the Court can find aggravating cireumstances based upon injuries to the child.

Although the agreed upon sentencing range is the same as the aggravated sentencing range for a class four felony, the specified sentencing range was still that expressly agreed upon by the parties in exchange for defendant's guilty plea. Section 18-1-409(1) does not require that the sentencing range or cap agreed to by the parties confer a sentencing benefit or concession on the defendant. Moreover, defendant received the concession of having the original charge against her, a class three felony, dismissed. Also, contrary to defendant's argument, the agreement alters the presumptive sentencing range by stipulating that defendant may be sentenced in the aggravated range.

Contrary to defendant's contention, People v. O'Dell, supra, is distinguishable. There, a division of this court held that § 18-1-409(1) does not bar appellate review of a sentence simply because a defendant is advised at the providency hearing of the range of penalties applicable to the offense to which he or she is pleading guilty. Here, in addition to the advisement regarding the sentencing range, the parties expressly agreed that defendant would be sentenced within the aggravated sentencing range for a class four felony.

Therefore, because the sentence imposed was "within a range agreed upon by the parties pursuant to a plea agreement," defendant is precluded from challenging the propriety of her sentence on appeal.

Accordingly, the appeal is dismissed.

Judge ROTHENBERG and Judge WEBB concur.


author: Judge METZGER.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Leroy William STREAN, Defendant-Appellant.
    No. 01CA0685.
    Colorado Court of Appeals, Div. I.
    Dec. 5, 2002.

      Ken Salazar, Attorney General, Lauren Edelstein Park, Assistant Attorney General, Laurie A. Booras, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Law Office of Lindy Frolich, Lindy Fro-lich, Denver, Colorado; Jennifer L. Geddes, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge METZGER.

Defendant, Leroy William Strean, appeals the judgment of conviction entered on a jury verdict finding him guilty of one count of sexual assault on a child and one count of sexual assault on a child by one in a position of trust. He also appeals the sentence imposed under the Colorado Sex Offender Lifetime Supervision Act after the trial court found him guilty of being an habitual sex offender. We affirm.

While on a family outing at the z00, defendant accompanied his nine-year-old nephew to the restroom and sexually assaulted him in a bathroom stall. The jury found defendant guilty as charged, and in a separate proceeding, the trial court found him guilty of being an habitual sex offender. Defendant received an indeterminate sentence of forty-eight years to life in the Department of Corrections.

I.

Defendant contends that, because the trial court refused to grant his challenges for cause against two jurors, he was deprived of his right to a fair trial and impartial jury as provided by the United States and Colorado Constitutions. We disagree.

A trial court must sustain a challenge for cause if there exists a state of mind in the prospective juror evincing animosity or bias toward the defendant or the state. However, the court is not required to dismiss a prospective juror simply because he or she has indicated a possible source of bias. People v. Tally, 7 P.3d 172 (Colo.App.1999). If the court is satisfied that the prospective juror will base the decision on the evidence and will follow the court's instructions, no disqualification should occur. People v. Drake, 748 P.2d 1237 (Colo.1988).

The trial court is accorded great deference in deciding a challenge for cause. Such decisions turn on an assessment of the juror's credibility, demeanor, and sincerity in explaining his or her state of mind. Absent an affirmative showing that the trial court abused its discretion, we will not overturn such a decision. People v. Lefebre, 5 P.3d 295 (Colo.2000).

A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair. People v. Gilbert, 12 P.3d 331 (Colo.App.2000).

A.

Defendant argues the first prospective juror should have been dismissed for cause because she had been sexually assaulted as a child and was undergoing counseling, We are not persuaded.

The prospective juror indicated on her juror questionnaire that it would "be an effort" for her to be a fair juror in a sexual assault on a child case. However, when interviewed in chambers by the trial court, the prosecutor, and defense counsel, she stated that she believed she could be impartial, that she could be fair, and that she considered herself a "real open-minded person." Further, she stated that it had "been a while" since her childhood sexual assault had "been an issue."

The trial court denied defendant's challenge for cause, finding that the prospective juror's counseling was for job-related stress, that "she could separate the facts of her case from the facts of the present case," and that she "had an understanding about what the trial process was all about."

Even though the prospective juror's childhood abuse constituted a possible source of bias, her responses to questioning showed no animosity or bias toward defendant. Thus, we find no abuse of discretion. See People v. Lefebre, supra.

B.

Defendant next argues the second prospective juror should have been dismissed for cause because she expressed doubt concerning her ability to be fair. We disagree.

The prospective juror was interviewed in chambers because she had indicated on her juror questionnaire that her "uncle" had tried to touch her breasts when she was twelve years old. She further stated she thought she could be unbiased and fair even though "the defendant's charge was kind of an emotional issue" for her.

However, she reiterated several times during questioning by the court and both counsel that her emotions would not distract her from the task of weighing the evidence and that she could base her decision on the evidence. When asked whether her doubts about her ability to be fair were based on her past experience with her "uncle," she responded that she had thought very little about that experience.

The trial court denied defendant's challenge for cause, finding the juror "is an educated woman ... and is clearly struggling with the charge and with being a human being." Giving great deference to the trial court in its assessment of the prospective juror's explanation, we see no abuse of discretion. Her responses, taken as a whole, reflect that she was able to separate her past experience from the facts of this case and that she would base her decision on the evidence and the law. Moreover, nothing indicates that either her past experience or the nature of the charges caused her to harbor enmity or bias toward defendant. See People v. Lefebre, supra.

IL.

Defendant next contends the trial court violated his constitutional right to confrontation when it admitted the victim's hearsay statements pursuant to § 13-25-129, C.R.S. 2002. We disagree.

Section 13-25-129(1), C.R.8.2002, allows admission of child hearsay statements in sexual offense cases if, as relevant here, the court finds that "the time, content, and circumstances of the statement provide suffi-client safeguards of reliability; and ... [tlhe child ... [tlestifies at the proceedings."

The following factors, while not intended to be an immutable standard, may provide the trial court some guidance and direction on the question of reliability:

(1) Whether the statement was made spontaneously;
(2) whether the statement was made while the child was still upset or in pain from the alleged abuse;
(83) whether the language of the statement was likely to have been used by a child the age of the declarant;
(4) whether the allegation was made in response to a leading question;
(5) whether either the child or the hearsay witness had any bias against the defendant or any motive for lying;
(6) whether any other event occurred between the time of the abuse and the time of the statement which could account for the contents of the statement;
(7) whether more than one person heard the statement; and
(8) the general character of the child.

People v. Bowers, 801 P.2d 511, 521 (Colo.1990); People v. District Court, 776 P.2d 1083, 1089-1090 (Colo.1989).

A trial court's decision to admit child hearsay statements will not be overturned absent an abuse of discretion. People v. Underwood, 53 P.3d 765 (Colo.App.2002).

A.

The first statement was made after the victim emerged from the restroom with defendant. He was erying, very sad, and very upset. His mother separated him from defendant and began to ask him questions. The victim then told his mother that defendant had "sucked his dick." The victim's mother testified that "dick" was the word he used for penis.

The trial court concluded this statement was reliable. It found the victim had used age appropriate language, would have had no knowledge of the incident unless it had occurred, and had made the statements while crying. These factors, it noted, ensured the trustworthiness of his statement. Further, the trial court found the victim's answers were not made in response to leading questions, he did not have a bias or motive to make up a story about defendant, and his general character was truthful and honest.

The record fully supports these findings. Moreover, as to the one factor about which no findings were made, we note there is no evidence of an intervening event that might have occurred between the sexual assault and the victim's statement. Indeed, the record is clear that the statement was made immediately after the event. Thus, we find no abuse of discretion.

B.

After the victim's first statement, his mother immediately contacted the police, and a detective interviewed him a day and a half later, The victim's statement to the detective formed the basis for the second admission of child hearsay.

The trial court found the victim's statement to the detective included age appropriate language. It noted he would have had no independent knowledge of the incident unless it had actually occurred, his responses were the result of nonleading questions asked by the detective, he had no motive or bias against defendant, and he had good moral character.

Onee again, the record fully supports those findings. Moreover, because the record does not contain any indication that such an intervening event occurred, we reject defendant's argument that the statement was unreliable.

C.

Defendant next argues that, because the trial court issued a single ruling combining its findings concerning each statement, his rights to confrontation and cross-examination under the United States and Colorado Constitutions were violated. We disagree.

Although separate rulings would have been preferable, because the record fully supports the requirements of $ 13-25-129 and People v. Bowers, supra, we reject defendant's argument.

TIL

Defendant asserts the trial court erred by not providing, sua sponte, a contemporaneous limiting instruction each time the victim's hearsay statements were admitted. We find no error.

In People v. Burgess, 946 P.2d 565 (Colo.App.1997), a division of this court held that the 1998 amendments to § 13-25-129 evidenced the General Assembly's intent to eliminate the contemporaneous instruction requirement in People v. McClure, 779 P.2d 864 (Colo.1989). 'We agree with that holding and conclude that it is dispositive of defendant's contention.

IV.

Defendant contends the trial court violated his right to confrontation by suppressing evidence of prior bad acts with the caveat that, if he attempted to assert certain defenses, then the evidence might be admissible. We are not persuaded.

A constitutional right may be imper-missibly chilled when some penalty is imposed for exercising that right. People v. Anderson, 954 P.2d 627 (Colo.App.1997).

Here, the trial court ruled that evidence of defendant's prior similar transactions would not be admitted unless he "opened the door." For example, the court noted, the proposed evidence might be relevant to refute certain defenses, such as recent fabrication by the victim.

Defendant did not object. Thus, we review for plain error and consider whether the alleged error so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. See Harris v. People, 888 P.2d 259 (Colo.1995).

The trial court's ruling did not impose a penalty on defendant if he chose to exercise his right to present a defense. Defendant was not prevented from presenting any defenses. Rather, the court merely advised defense counsel of some potential consequences of certain strategies and thus allowed defense counsel to make informed tactical decisions. Consequently, no error, much less plain error, occurred. See Davis v. People, 871 P.2d 769 (Colo.1994); People v. District Court, 869 P.2d 1281 (Colo.1994).

v.

Defendant asserts the trial court erred in refusing to find the act under which he was sentenced, Colorado Sex Offender Lifetime Supervision Act, § 18-1.3-1004, C.R.S8.2002 (formerly § 16-13-804), to be unconstitutional. We disagree.

The Act, promulgated in 1998, sets out sentencing standards for certain sex offenses, including those at issue here, committed on or after November 1, 1998. If a defendant is sentenced to the Department of Corrections, the sentence must be for an indeterminate period of at least the minimum of the applicable presumptive range up to the defendant's natural life. And if, as here, the defendant is adjudicated as an habitual sex offender against children, the indeterminate sentence must be at least three times the upper limit of the presumptive range for the level of offense committed, up to a maximum of the defendant's natural life. After the defendant completes the minimum term of incarceration, minus any earned time credit, he or she is entitled to a hearing before the parole board.

Statutes are presumed to be constitutional, and a party who asserts otherwise bears the burden of establishing the statute's unconstitutionality beyond a reasonable doubt. People v. Baer, 973 P.2d 1225 (Colo.1999).

A.

Defendant first argues the Act violates his right to procedural due process. He asserts the Act contains no provisions for review of the decisions of the Department of Corree-tions or of the parole board relating to a prisoner's release. We conclude his argument is premature.

It is axiomatic that a court should not decide a constitutional issue unless and until the issue is raised by a party to the controversy and the necessity for a decision is clear and inescapable. People v. Lybarger, 700 P.2d 910 (Colo.1985).

Defendant is not currently eligible for parole under the Act. Thus, his argument is premature, and we will not consider it. See People v. Lybarger, supra.

B.

Defendant also argues the trial court's selection of the rational basis test in evaluating the constitutionality of the Act violated his right to substantive due process. We disagree.

Substantive due process prohibits the government from engaging in conduct that shocks the conscience or interferes with rights implicit in the concept of ordered liberty. It forbids the government from infringing upon a fundamental liberty interest, no matter what process is afforded, unless the infringement is narrowly tailored to serve a compelling state interest. People v. Garlotte, 958 P.2d 469 (Colo.App.1997).

An adult offender has no fundamental liberty interest in freedom from incarceration. People v. Young, 859 P.2d 814 (Colo.1993). Therefore, because no fundamental right is implicated here, and defendant has not advocated an intermediate level of scrutiny, the trial court was correct in employing the rational basis test.

Under this analysis, the government is required to demonstrate that the legislation bears some reasonable relationship to a legitimate governmental interest. People v. Young, supra.

In the Act's legislative declaration, § 18-1.3-1001, C.R.S.2002, the General Assembly stated:

The general assembly hereby finds that the majority of persons who commit sex offenses, if incarcerated or supervised without treatment, will continue to present a danger to the public when released from incarceration and supervision. The general assembly also finds that keeping all sex offenders in lifetime incarceration imposes an unacceptably high cost in both state dollars and loss of human potential. The general assembly further finds that some sex offenders respond well to treatment and can function as safe, responsible, and contributing members of society, so long as they receive treatment and supervision. The general assembly therefore declares that a program under which sex offenders may receive treatment and supervision for the rest of their lives, if necessary, is nee-essary for the safety, health, and welfare of the state.

The trial court found that the Act bears a reasonable relationship to the legitimate governmental interest of safety, see People v. Black, 915 P.2d 1257 (Colo.1996), by protecting society from untreated sex offenders whose recidivist tendencies present a danger to the public. We agree.

Additionally, the Act serves the legitimate governmental purposes of flexibility in rehabilitation and treatment, see People v. Kibel, 701 P.2d 37 (Colo.1985), and recognizes that, with treatment and supervision, many sex offenders can live as contributing members of society.

Finally, by emphasizing treatment and supervision, the Act serves the legitimate governmental purpose of minimizing unae-ceptably high costs in lost finances and lost human potential that result from lifetime incarceration.

Therefore, the trial court did not err either in evaluating the Act using the rational basis test or in determining that the Act bears a reasonable relationship to legitimate governmental interests. Thus, the court did not violate defendant's substantive due process rights.

C.

Defendant further argues the Act violates equal protection because "it punishes both nonviolent and violent sex offenders the same." We disagree with his interpretation of the Act.

Equal protection requires like treatment of persons who are similarly situated. People v. Young, supra. Persons who commit different crimes are not similarly situated. People v. Black, supra.

Equal protection problems arise only when identical criminal conduct is punished with disparate penalties. People v. Friesen, 45 P.3d 784 (Colo.App.2001).

Here, defendant's nonviolent sex offenses are not identical to those of a violent sex offender. Moreover, the penalties for nonviolent sex offenses and violent sex offenses are different. - Section 18-1.3-1004(1)(b), C.R.S.2002, provides that, if a sex offender is convicted of a crime of violence, he or she shall be sentenced to an indeterminate term in the Department of Corrections of at least the midpoint of the presumptive range for the offense. However, if the sex offense is not a erime of violence, the indeterminate sentence must be at least the minimum of the presumptive range. Section 18-1.3-1004(1)(a), C.R.8.2002.

Defendant's argument does not state an equal protection challenge. His nonviolent sex offense is not identical to a violent sex offense, and the punishments for the different types of offenses are not the same. See People v. Friesen, supra.

Therefore, the trial court did not err in denying defendant's claim that the Act violates equal protection.

D.

Defendant argues that the Act violates the separation of powers doctrine. We are not persuaded.

The judiciary has the exclusive power to impose sentences within the limits determined by the General Assembly. People v. Pate, 878 P.2d 685 (Colo.1994). The executive branch is responsible for carrying out the mandate of the sentence. Specifically, the Department of Corrections and parole officials set parole eligibility dates; for discretionary parole, the board determines whether to grant parole. People v. Barth, 981 P.2d 1102 (Colo.App.1999).

Here, defendant argues that politics will interfere with this process because a parole board, fearing partisan concerns, might not release a sex offender no matter what the facts and cireumstances of the individual case. However, as the supreme court stated in People v. Kibel, supra, 701 P.2d at 43:

[Lit cannot be said that substituting a judicial decision-maker for the parole board would necessarily decrease the risk that release in appropriate cireumstances would be withheld erroneously from sex offenders. Like the court, the parole board is a neutral body with no interest in the outcome of the cases before it.

Therefore, the trial court did not err in concluding that the Act does not violate the separation of powers doctrine.

VL.

Finally, defendant contends the trial court erred by not conducting an abbreviated proportionality. review, pursuant to U.S. Const. amend. VIII and Colo. Const. art. II, § 20. We conclude the court conducted such a review and, therefore, find no error.

An abbreviated proportionality review is adequate when the erimes supporting an habitual criminal sentence include "grave and serious" offenses and the defendant is eligible for parole. People v. Gaskins, 825 P.2d 30 (Colo.1992). Colorado has adopted the approach in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Thus, in determining whether an offense is "grave and serious," the court considers the harm threatened or caused to the victim or society and the culpability of the offender. People v. Deroulet, 48 P.3d 520 (Colo.2002).

Here, defendant was found to be an habitual sex offender. Relying on People v. Herrera, 728 P.2d 366 (Colo.App.1986), since overruled by Close v. People, 48 P.3d 528 (Colo.2002), the trial court initially found that he was not entitled to any proportionality review because his life sentence included a possibility of parole. It went on to find that, if it were to conduct a proportionality review, the underlying offenses of sexual assault on a child and sexual assault on a child by one in a position of trust were serious offenses that justified defendant's sentence.

We conclude this limited proportionality review was sufficient. As the People note, defendant's crimes are of the utmost gravity and are classified as class four and class three felonies, respectively. They involve situations in which an adult treats a vulnerable child as a tool for sexual gratification, often causing a devastating and life-long effect. Thus, we hold that sexual assault on a child and sexual assault on a child by one in a position of trust are grave and serious offenses. Additionally, we note that defendant's indeterminate sentence of forty-eight years to life was the minimum he could have received and that he is eligible for parole. Consequently, no further proportionality review is necessary.

The judgment and sentence are affirmed.

Judge MARQUEZ and Judge GRAHAM concur.


author: Judge GRAHAM,

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Marchell TAYLOR, Defendant-Appellant.
    No. 01CA0716.
    Colorado Court of Appeals, Div. I.
    Dec. 19, 2002.
    As Modified on Denial of Rehearing Jan. 16, 2003.
    Certiorari Denied July 28, 2003.

      Ken Salazar, Attorney General, John D. Seidel, Asdistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge GRAHAM,

Defendant, Marchell Taylor, appeals the judgment of conviction entered on a jury verdict finding him guilty of escape from custody, a class three felony. We affirm.

Defendant previously was convicted of a class five felony nonviolent offense. He was granted Intensive Supervision Parole (ISP) in April 1997. In October 1997, a parole officer and defendant reviewed and discussed documents containing both the terms of parole and an advisement that defendant could be prosecuted for felony escape if he left his designated residence and ISP confinement for more than twenty-four hours.

In February 1998, an administrative law Judge (ALJ) held a hearing regarding defendant's alleged "technical parole violations." The ALJ found defendant in violation and ordered him to spend an additional 120 days in the ISP and to enroll in the Residential Treatment Center (RTC) in Greeley, a therapeutic community providing drug and alcohol treatment. Defendant entered the RTC on February 27, 1998.

On February 28, 1998, an RTC counselor discovered defendant was missing. Defendant's parole officer testified that he did not hear from defendant between February 26 and March 18, 1998. The parole officer attempted to locate defendant, and on March 13, defendant was taken into custody in Denver. His parole was later revoked. Defendant was sentenced to six years in the Department of Corrections.

L.

Defendant argues that the trial court erred in instructing the jury to convict him of escape if the prosecution proved that he "failed to remain within the extended limits on his confinement," which is the definition of escape under § 17-27.5-104, C.R.8.2002. The prosecution had charged him with violating § 18-8-208(2), C.R.S.2002, which requires proof of "eseape[ ] from ... custody or confinement," and defendant argues that the People's proof effectively amended the charge of escape. We disagree.

Because this argument raises a question of law, our review is de novo. See Davis v. Schwankl, 70 P.3d 509, 2002 WL 31357243 (Colo.App. No. 01CA1837, Oct. 10, 2002).

Amendments that effectively subject the defendant to the risk of conviction for an offense that was not originally charged in the information are prohibited. See People v. Jefferson, 934 P.2d 870 (Colo.App.1996). To be sufficient, an information must allege sufficient facts to permit the accused to prepare an adequate defense, and it must assure that a defendant cannot be prosecuted again for the same crime. People v. Melillo, 25 P.3d 769 (Colo.2001).

Section 17-27.5-104 provides that "[ilf an offender fails to remain within the extended limits on his confinement as established under the intensive supervision program ... he shall be deemed to have escaped from custody and shall, upon conviction thereof, be punished as provided in section 18-8-208, C.R.S."

Section 18-8-208(2), under which defendant was charged, provides that "[a] person commits a class 3 felony if, while being in custody or confinement following conviction of a felony other than a class 1 or class 2 felony, he knowingly escapes from said custody or confinement."

Here, the information recites all elements of escape under § 18-8-208, C.R.98.2002, includes the date on which the escape occurred, and names the authority in which defendant was to have been placed in custody and confinement. The prosecution was not required to cite the legal definition of escape in the context of ISP programs.

The record shows that defendant signed the parole agreements, which cited § 17-27.5-104, and acknowledged his understanding that, should he leave his residence of record for his ISP confinement, he would be liable for felony escape. The trial court further found that the parole board mittimus expressly had informed defendant of the meaning of custody and confinement.

We note that the prosecution tendered a jury instruction that used the definitions of § 17-27.5-104. Defendant did not object to its use. Such use was proper. See generally People v. Albaugh, 949 P.2d 115 (Colo.App. 1997). 'Further, the jury was properly instructed on the elements of § 18-8-208, one of which is that a defendant be in "custody or confinement." The trial court defined "custody or confinement" by reciting the relevant part of § 17-27.5-104.

Taken together, the jury instructions, the information, and the parole mittimus signed by defendant indicate that he had sufficient notice that he could be liable for escape if he failed to remain within the extended limits of his ISP confinement and he risked prosecution under the escape provisions of § 18-8-208. Therefore, the court did not err in instructing the jury under § 17-27.5-104 concerning custody or confinement.

IL.

Defendant contends that his escape conviction must be vacated because, as a mandatory parolee who had discharged his prison sentence, he was no longer in "custody or confinement." Wé reject this contention.

Section 18-1.3-401(1)(a)(V)(D), C.R.8.2002, provides that, if an offender "has been granted release to parole supervision by the state board of parole, the offender shall be deemed to have discharged the offender's sentence to imprisonment." A discharge of the sentence to imprisonment is not equivalent to the satisfaction and discharge of mandatory parole.

Defendant argues that § 17-27.5-104 applies only to those on discretionary parole. He cites no authority, and we are unable to find any, to support this distinction. The cases do not distinguish between mandatory and discretionary parolees. Further in People v. Garcia, 64 P.3d 857, 2002 WL 58926 (Colo.App. No. 99CA2360, Jan. 17, 2002), the division observed that § 17-27.5-106, the statute authorizing ISP for parolees, does not distinguish between types of parole). We therefore conclude that § 17-27.5-104 applies to all parolees and not just those on discretionary parole.

IIL

Defendant next argues that his escape conviction must be vacated because the prosecution failed to prove that the RTC constituted "confinement" as used in §§ 17-27.5-104 and 18-8-208. We are not persuaded.

Under § 18-8-201(2), escape is defined as "a continuing activity commencing with the conception of the design to escape and continuing until the escapee is returned to custody or the attempt to escape is thwarted or abandoned."

Under § 16-1-104(9), C.R.S.2002, custody means "the restraint of a person's freedom in any significant way."

In People v. Williams, 33 P.3d 1187 (Colo.App.2001), a division of this court held that a curfew directive constituted an extended limitation on the defendant's confinement. In People v. Lucero, 654 P.2d 885 (Colo.1982), the supreme court held that an offender temporarily released on a day pass from a correctional facility remained in constructive custody, and the pass merely extended the limits of confinement from the facility to those granted by the pass. In People v. Perea, 74 P.3d 326, 331, 2002 WL 1766009 (Colo.App. No. 00CA1473, Aug. 1, 2002), a division of this court held that under § 17-27.5-104, "extended limits on his confinement" means "geographic and time limits placed on the offender beyond those imposed by incarceration in a correctional facility."

Here, defendant contends that, because RTC was an unlocked facility where residents could wear their own clothing, he was not in confinement. He relies on Beecroft v. People, 874 P.2d 1041 (Colo.1994), as support for his contention that participation in a drug treatment facility is not "confinement." Beecroft does not support defendant's position.

In Beecroft, the defendant's six-year sentence to imprisonment was suspended on condition that he successfully complete drug treatment at Cenikor, where his treatment was supervised by the probation department. When the defendant continually failed to comply with the program's rules, the court vacated the suspended sentence, reinstated the six-year prison sentence, and declined to give the defendant credit for his seven-month confinement in Cenikor. The supreme court affirmed, noting that the record indicated that the defendant was relatively free to come and go and was not confined for purposes of the presentence confinement statute, § 18-1.3-405, C.R.8.2002 (formerly § 16-11-306).

In sharp contrast to the freedom enjoyed by the defendant in Beecroft, here, defendant was confined to ISP as a condition of his probation and was not free to leave the facility. Even though he was under no physical restraint, he was aware that any unauthorized absence would be reported to authorities. That his ISP confinement was also part of his residential treatment does not minimize the confinement. Defendant's ISP residence amounted to confinement, and whether he should have received credit for his brief period of confinement is not an issue before us.

Lawson v. Zavaras, 966 P.2d 581 (Colo.1998), is illustrative in that, based on the parole agreements defendant signed, he was duty-bound to report to his parole officer daily and was restricted in his movement. Such parameters constitute custody and confinement as a matter of law. See People v. Garcia, supra. - Based on People v. Williams, People v. Lucero, and People v. Perea, we hold that assignment of a defendant to RTC, as a place of residence during ISP, constitutes confinement.

IV.

Defendant argues that his escape conviction violates double jeopardy because it follows the revocation of his parole based on the same conduct. We disagree.

A division of this court has held that parole revocation is an administrative proceeding to determine whether a parolee has violated the conditions of his parole and that it is not a proceeding to punish a criminal defendant for violation of a criminal law. People v. Gallegos, 914 P.2d 449 (Colo.App.1995). Because a criminal prosecution is a judicial proceeding and serves a different end than a parole revocation, "the finding that the defendant no longer merits parole does not foreclose the criminal justice system from punishing the defendant for that conduct." People v. Gallegos, supra, 914 P.2d at 450. We are persuaded by this analysis and decline to depart from its holding.

Thus, because we view parole as a privilege and its revocation as an administrative proceeding, revocation "does not punish the defendant for his conduct, but merely reaffirms the original sentence and requires the defendant to serve it while in eustody." People v. Gallegos, supra, 914 P.2d at 451. Therefore, double jeopardy does not apply.

v.

Defendant argues that the trial court violated his constitutional right to confront the witnesses against him by admitting the ALJ's taped statements from the parole hearing. Defendant reasons that the ALJ's hearsay comments amount to a directed verdict or, at the least, an unqualified expert opinion likely to confuse the jury. We disagree.

First, we reject the contention that the ALJ's statements were hearsay. Hearsay is a statement othér than one made by the declarant while testifying at trial, offered to prove the truth of the matter asserted. CRE 801(c). A declarant's prior statement that is not offered to prove the truth of the matter asserted is not hearsay. Davis v. Bonebrake, 135 Colo. 506, 313 P.2d 982 (1957)(an utterance offered to prove state of mind instilled in another person in consequence of that utterance serves no assertive or testimonial use, and the utterance is therefore admissible); see also State v. Black, 230 N.C. 448, 53 S.E.2d 443 (1949); 6 John H. Wigmore, Evidence §§ 1788, 1789 (Chadbourn rev.1976).

Here, during trial, the prosecutor played a tape in which the ALJ advised defendant, "You will be on ISP while you are in RTC, which means if you walk away from there, you'll get an escape charge, and you'll have relapse prevention after RTC." The prosecutor argued that the ALJ's warning was res gestae that supported the requirement that defendant knowingly escaped from ISP.

The prosecutor did not produce the ALJ or demonstrate her unavailability, which, however, would be required only if an exception to the hearsay rule were sought. Here, the ALJ's statement was not hearsay. As the prosecutor pointed out with defendant's tacit acknowledgment, the purpose of the tape was to establish that defendant was on notice that he was not to escape the confines of his ISP. Defense counsel agreed that the prosecutor could "make a statement on opening ... [that] the evidence will show [defendant] knew he was not to escape or knew he was on some sort of notice," but objected to "quoting the statement of the [ALJ]." The court overruled defendant's objection, stating that the tape concerned the knowledge of defendant and merely duplicated the warrant which committed defendant to prison. We therefore hold that the tape was offered to prove notice to defendant and was not hearsay. See Palmer v. A.H. Robins Co., 684 P.2d 187 (Colo.1984)(where evidence offered for a purpose other than to prove the truth of the thing asserted and to prove the existence of notice, no abuse of discretion in its admission); see also Player v. Thompson, 259 S.C. 600, 193 S.E.2d 531 (1972)(where testimony was not offered to prove the truth of the matter stated, but solely to prove notice, which is a state of mind, hearsay rule does not apply).

Second, we are not persuaded by defendant's reliance on United States v. Zimmerman, 943 F.2d 1204, 1212 (10th Cir.1991), in which the district court rejected the admission of a judicial opinion on the possibility that "a jury might be confused into believing that the opinion's findings are somehow binding in the case at bar." We read Zim-mermam to be inapposite.

In Zimmerman, opinions by separate bankruptey judges concerning the merits of the criminal charge were neither law of the case nor part of the record that the trial court could have observed through judicial notice. Cf Massey v. People, 649 P.2d 1070 (Colo.1982)(where trial court took judicial notice of mittimus under which the defendant had been confined, classification of the defendant's past offense was a question of law, and court was justified in taking judicial notice when facts upon which legal conclusion was based were unchallenged). In Zimmerman, the opinions concerned parties other than the defendant and plainly were offered to suggest that the defendant's affiliation with those parties tainted him.

Here, in contrast, the ALJ's statement was directed to defendant and was part of the record at trial. The ALJ's ruling is not an opinion; it is an order on the record that is binding upon defendant unless and until he challenges it through the judicial process. See Banek v. Thomas, 733 P.2d 1171 (Colo.1986)(CRE 803(22) creates a hearsay exception for a judgment of previous conviction).

We conclude that the evidence adduced at trial and the defendant's certification of the parole mittimus, which advised him he could be liable for escape, support the legitimate purposes of presenting the tape as proof of defendant's receipt of notice. Thus, the trial court did not violate his confrontation rights in admitting the tape.

VI.

We decline to address defendant's contentions that § 17-27.50-104 violates the separation of powers and nondelegation doe~ trine of the Colorado Constitution and that § 17-27.5-104 is void pursuant to Colo. Const. art. V, § 21 because the title of House Bill 89-1067 does not express its sub-jeet matter.

In his reply brief, defendant argues that the separation of powers claim was asserted and preserved for appeal. However, defendant has not cited any record support for his argument, nor are we able to find any.

Thus, because defendant did not raise these constitutional issues in the trial court, we will not consider them on appeal. See People v. Cagle, 751 P.2d 614 (Colo.1988).

Judgment affirmed.

Judge METZGER and Judge MARQUEZ concur.


author: Judge MARQUEZ.

text:
    BOARD OF COUNTY COMMISSIONERS of the COUNTY OF MORGAN, State of Colorado, Plaintiff-Appellee, v. Elmer KOBOBEL and Mariam Kobobel, Defendants-Appellants, and Wade E. Castor, E. Todd Castor, Karen S. Kelley, and Riverview Cemetery Association, Defendants.
    No. 01CA2450.
    Colorado Court of Appeals, Div. I.
    Dec. 19, 2002.
    Certiorari Denied July 28, 2003.

      George N. Monsson, County Attorney, Fort Morgan, Colorado, for Plaintiff-Appel-lee.
    Anderson and Chapin, P.C., Robert B. Chapin, Brush, Colorado, for Defendants-Appellants.
    No Appearance for Defendants.
   Opinion by

Judge MARQUEZ.

Defendants, Elmer and Mariam Kobobel, appeal the summary judgment entered in favor of plaintiff, Board of County Commissioners of the County of Morgan, declaring a road along the northern boundary of Kobo-bels' property to be a public road. We reverse and remand for further proceedings.

According to the materials presented for summary judgment, Kobobels are the owners of Section 15, Township 4 North, Range 58 West of the 6th P.M., in Morgan County. Section 10 is immediately north of Section 15. Defendants Wade E. Castor and E. Todd Castor are the owners of the southwest quarter of Section 10. Defendant Karen S. Kelley owns the southwest quarter of the southeast quarter of Section 10, and the inactive Riverview Cemetery Association owns the southeast quarter of the southeast quarter of Section 10.

At issue here is a road allegedly located along the section line between Sections 10 and 15. The western half of the alleged road was the subject of a 1902 road petition, which was accepted by the county. The eastern half of the alleged road is a two-track field lane on Kobobelsg' property running east and west immediately south of the section line.

In addition to the east-west road, there was a petition in 1902 to create a north-south road through Sections 10 and 15 as well, but that and other roads were realigned in the mid-1980s. Instead of passing through the center of Sections 10 and 15, that road now angles from the center of the north side of Section 10 in a southwesterly direction until it runs along the western edge of Sections 10 and 15.

In 1998, the Kobobels erected a locked gate at the west end of the existing road lying on their side of the section line and excavated ditches across the road.

Plaintiff brought this action to declare the road at issue a public road and to enjoin the Kobobels from obstructing it. The court determined there were no genuine issues of material fact and granted plaintiff's motion for summary judgment and request for in-juncetive relief. In so ruling, the court concluded that the western portion of the road to a point thirty feet east of the north-south center line of Sections 10 and 15

{remained part of the primary county road net in this area from 1902 to the mid-1980s. The road was in use on May 4, 1921. Therefore, this portion of the road in question is a public road because it has been properly dedicated to Morgan County and was open to public traffic on May 4, 1921 pursuant to Section 48-1-202 C.R.S.

The court also concluded that the road was not abandoned or vacated and that abandonment would leave Kelley and the cemetery without access to a public road.

I. Standard of Review

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

IL. - Evidence Not Before the Trial Court

As a threshold matter, plaintiff argues that Elmer Kobobel's deposition was not before the trial court and should be disregarded on appeal. We agree.

Arguments and evidence not presented to the trial court in connection with the motion for summary judgment will not be considered on appeal. See Timm v. Reitz, 39 P.3d 1252 (Colo.App.2001).

Here, in support of its motion for summary judgment, plaintiff submitted a number of documents. However, the Kobobels submitted only an affidavit and supplemental affidavit by Elmer Kobobel. Plaintiff also submitted supplemental affidavits and copies of records, and the Kobobels responded with additional authority, but did not include Elmer Kobobel's deposition.

Plaintiff filed a motion to disregard various arguments and supplemental authority presented by the Kobobels, but the record does not include a ruling on that motion.

When a trial court does not rule on a motion, it may be considered implicitly denied, see Jenkins v. Glen & Helen Aircraft, Inc., 42 Colo.App. 118, 590 P.2d 983 (1979), or such failure to rule may be considered harmless error. See Raygor v. Board of County Commissioners, 21 P.3d 432 (Colo.App.2000).

Here, the trial court granted summary judgment on October 31, 2001, stating its ruling was based on the amended complaint, plaintiffs motion, the supporting affidavits, defendants' response, and plaintiff's reply. The index of the record indicates that Elmer Kobobel's deposition was filed in February 2002. Consequently, we consider only the items enumerated by the trial court.

III. Use of the Field Lane

The Kobobels contend there are disputed issues of material fact as to the use of the field lane across their land adjacent to the north section line of Section 15. We agree.

The Kobobels assert that the only evidence of record related to use over the years was a neighbor's deposition testimony that the field lane was occasionally used for access to the cemetery. While the Kobobels refer to Elmer Kobobel's deposition to contradict this testimony, for the reasons stated above, we do not consider it here. However, his affidavit states that the lane does not provide access to the cemetery, that the western portion of the road was abandoned, that the lane is used by his family, that only defendant Kelley attempted to use the lane in 1991, and that access to the cemetery is through Section 10.

The neighbor testified that his father used the road as a shorteut three or four times a year in the early 1940s and that he had used it onee a year or less since 1980. He also indicated that a local club would go to the cemetery and clean it, although he did not state how they traveled to the cemetery. He further stated that he was unaware of any other people who used the section line road to get to the cemetery.

Plaintiff also offers the geodetic engineer's report concluding that the aerial photographs, maps, and personal reconnaissance present no evidence of the northern route to the cemetery. However, this report is contradicted by the affidavit of plaintiffs own witness, who testified to traveling that route.

The trial court's order states that maps and aerial photographs show that the road has been in regular use for nearly a century. However, for summary judgment purposes this evidence proves only that a road exists, but does not address whether the use of the road was by the public or, as the Kobobels claim, by the property owners and their licensees.

We conclude that this evidence is sufficient to raise material questions of fact as to use of the field lane.

IV. Prescriptive Use

We also agree with the Kobobelsg' contention that there is insufficient evidence to support the trial court's conclusion that the entire length of the road was established as a public road by prescriptive use under § 48-2-201(1)(c), C.R.98.2002.

Section 48-2-201(1)(c) states that all roads over private lands that have been used adversely without interruption or objection on the part of the owners of such lands for twenty consecutive years are declared to be public highways.

A party seeking to establish a public highway across private property must demonstrate (1) the public used the road under claim of right and in a manner adverse to the landowner's property interests; (2) the public use was uninterrupted for twenty years; and (8) the landowner had actual or implied knowledge of the public's use and made no objection to such use. See Board of County Commissioners v. Flickinger, 687 P.2d 975 (Colo.1984); Littlefield v. Bamberger, 32 P.3d 615 (Colo.App.2001).

Plaintiff contends that the neighbor's depo-gition is sufficient to conclude that the road had been used adversely for the statutory twenty years. However, even if the deposition establishes twenty years of public use, it does not establish that the entire road was used under a claim of right or that the Kobobels or their predecessors knew of the use and made no objection to it.

Thus, we conclude there was insufficient evidence that a public road was established by prescriptive use.

V. Statutory Abandonment

However, we reject the Kobobels' contention that if the road was ever a dedicated public road under § 48-2-201(1)(b), C.R.S.2002, the relocation of the county road system in the 1980s effected as a matter of law a statutory abandonment of the western half of the road under § 48-2-118, C.R.S. 2002.

Section 48-2-113 provides in relevant part that:

When a portion of the county primary system is relocated and because of such relocation a portion of the route as it existed before such relocation is, in the opinion of the board of county commissioners, no longer necessary as part of the county road system, such portion shall be considered as abandoned, and title to it shall revert to the owner of the land through which such abandoned portion may lie subject to the provisions of part 83 of this article. If it appears that such abandoned portion is necessary for use as a secondary road, then such abandoned portion shall become a secondary road, upon the adoption by the board of county commissioners of a resolution to that effect.

When interpreting statutes, we must give effect to the intent of the General Assembly. We look initially to the language of the statute and give effect to the commonly accepted meaning of the words. See Regional Transportation District v. Lopez, 916 P.2d 1187 (Colo.1996).

We also should give effect to each word and construe each provision in harmony with the overall statutory design, whenever possible. Telluride Resort & Spa, L.P. v. Colorado Department of Revenue, 40 P.3d 1260 (Colo.2002). Where the statutory language is clear and certain, the statute should be construed as written. See City of Aurora v. Board of County Commissioners, 919 P.2d 198 (Colo.1996). An interpretation that renders a statute null and void cannot be admitted. See Edwards v. Denver & R.G. R. Co., 13 Colo. 59, 21 P. 1011 (1889).

Here, the trial court concluded that, even though it appears that there has been no regular maintenance on this portion of the road since at least the mid-1980s, the road may not be considered abandoned or vacated by the public. It also concluded that there has been no official county action vacating this road, and simple lack of maintenance or nonuse will not effect an abandonment even when alternative roads have been put in place. We conclude that the question of abandonment or nonabandonment could not be determined as a matter of law on a summary judgment basis.

To consider the road abandoned, the first sentence of § 48-2-113 requires not only a relocation of the county road system, but also an opinion of the board of county commissioners that the road is no longer necessary. The statute does not state whether that opinion is to be established by formal action or can be determined by the board's action or inaction. Significantly, the first sentence of the statute does not require a resolution for abandonment. The second sentence assumes abandonment has occurred and requires a resolution to convert an abandoned primary road into a secondary road. As pertinent here, nothing in the statute provides that relocation of a road establishes abandonment as a matter of law.

Thus, we are not persuaded by the Kobo-bels' argument that the board was required by § 48-2-113 to adopt a resolution designating the road as necessary for secondary use. The plain language of § 48-2-113 requires a resolution only in the event a portion of the road has been abandoned and is necessary for a secondary road. Lack of such a resolution does not establish abandonment.

Nevertheless, the relocation of the roads and other cireumstances raise a question of fact whether, in the board's opinion, the road was no longer necessary.

Ordinarily, public highways remain public unless and until vacated or abandoned by some appropriate action. See Raftopoulos v. Farrow, 691 P.2d 1160 (Colo.App.1984).

The Kobobels argue that title to the road reverted to the owners in the manner provided in § 48-2-302, C.R.S.2002, providing for vesting of title upon vacation. Plaintiff argues that, to vacate a county road, the board of county commissioners would have to comply with $ 43-2-303(2)(b), C.R.S.2002, which provides that if any roadway has been established as a county road at any time, such roadway shall not be vacated by any method other than a resolution approved by the board of county commissioners. Thus, according to plaintiff, it is not possible under Colorado law for a public road to be abandoned except by affirmative action. Plaintiffs position, however, would render § 48-2-118 a nullity.

Section 48-2-803 addresses methods of vacation, not abandonment. Although the terms are often used interchangeably, abandonment and vacation are not synonymous. See Martini v. Smith, supra (if vacation not effected, court should conduct an abandonment analysis); Alexander v. McClellan, 56 P.3d 102 (Colo.App.2002)(holding that vacation resolution and board minutes do not establish abandonment as a matter of law); see also § 30-28-106@8)(@)(V), C.R.S.2002 (master plans may provide for the "acceptance, widening, ... vacation, abandonment, [or] modification" of public ways). But see Uhl v. McEndaffer, 128 Colo. 69, 225 P.2d 839 (1950)(using phrase "abandonment or vacation").

Because we conclude that the existence of both statutes affirms a distinction between vacation and abandonment, and the Kobobels do not claim there was a vacation of the road, the requirements of the vacation statute, § 43-2-303(2)(b), do not apply here.

Thus, while the Kobobels assert that the county commissioners failed to maintain the road after the mid-1980s realignment, in our view, that fact alone is not sufficient to establish statutory abandonment as a matter of law.

VI. Common Law Abandonment

However, we agree with the Kobo-bels that evidence of nonuse creates a material issue of fact whether there has been common law abandonment.

Abandonment of a public road requires proof of intent to abandon and proof of nonuse. See Martini v. Smith, supra; Koenig v. Gaines, 165 Colo. 371, 440 P.2d 155 (1968){nonuse and evidence of an intent or determination to abandon amply support a finding of abandonment; the duration of non-use may give rise to a presumption of abandonment); Alexander v. McClellan, supra.

Generally, whether a public road has been abandoned is a question of fact. The burden of establishing abandonment is on the party asserting it. Heath v. Parker, 30 P.3d 746 (Colo.App.2000). - However, proof of formal board action is not always necessary. See Peroulis v. Board of County Commissioners, 665 P24 134 (Colo.App.1982)(an actual formal record of all a board of commissioners may decide and do is not always necessary to make its acts binding).

Here, the Kobobels argue that: (1) the road had not been adversely and continuously used for more than sixty-five years; (2) the aerial photographs submitted by plaintiff indicate that the north-south road to be opened under the 1902 petition was never opened; (8) the expert's maps are not supported by the aerial photographs; (4) the road does not provide access to either the Kelley property or the cemetery; and (5) a right-of-way for the location of a gas main was established in the late 1950s through easements granted by the property owners, but not the county. Elmer Kobobel's affidavit also indicates the county placed a large reflective safety barrier at the west end of the purported road, indicating that the county road ends at that point.

Plaintiff presented defendant Kelley's affidavit stating that she and her husband accessed their property by the road along the section line between 1991 and 1997 until Elmer Kobobel obstructed it. Her affidavit further states that the road in question is the "most direct, shortest and practicable" route from a county road.

Although some maps submitted by plaintiff show the road as "primitive," a 1913 map does not show the road at all. To the extent such maps indicate that a road exists, they do not establish who used it. Further, the 1902 petition dedicated only the western half of the disputed road.

Thus, material issues of fact remain whether the eastern half of the road ever was a public road and, if it was, whether it has since been abandoned.

Based on the parties' submissions, we conclude there are issues of material fact as to whether the road was abandoned.

VII. Recording

The Kobobels further contend that, because the 1902 road petition was not recorded in the grantor-grantee index of the clerk and recorder's office of Morgan County as required by the recording law at the time, subsequent purchasers, including the Kobo-bels, of the affected land take title unencumbered by the public road. Because this issue was not raised until the Kobobels filed their supplemental authority to reply to an objection to the form of the proposed order and was not addressed by the trial court, we do not address it here. See Timm v. Reits, supra.

VIII. Indispensable Parties

The Kobobels further contend the case is not properly postured because indispensable parties were not joined, despite the minute order of May 7, 2000, directing plaintiff to amend its complaint to add all such parties. The Kobobels assert that the owner of the remaining lands in Section 10 must be named as a defendant because the primary access to the Kelley parcel and the cemetery crosses its land. We conclude this question should be reconsidered on remand.

Whether a party is indispensable and must be joined is a mixed question of law and fact and must be determined on the facts of each case. See Aztec Minerals Corp. v. Romer, 940 P.2d 1025 (Colo.App.1996).

Under C.R.C.P. 19(b), the trial court, in determining whether a person is an indispensable party, should consider: (1) whether a judgment rendered in the person's absence might be prejudicial to him or her or those already parties; (2) whether prejudice can be lessened or avoided by protective provisions in the judgment, by the shaping of relief, or by other measures; (8) whether a judgment rendered in the person's absence will be adequate; and (4) whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

Here, there is no evidence that the road in question provides access to, crosses, or is adjacent to the remainder of Section 10. Despite the Kobobelg' assertion that access to the Kelley property and the cemetery has traditionally been through the north half of Section 10, it is not necessary for the owner to be joined to determine whether the road across the Kobobels' property is a public road. Thus, the unnamed party would not be prejudiced, and a judgment rendered in its absence would adequately address plaintiff's concerns. However, as discussed below, such parties might be affected if the court considers whether alternative access routes are available.

Therefore, the question of indispensable parties should be reconsidered on remand.

IX. North-South Road

We similarly conclude the court should consider on remand plaintiffs argument that if the road were abandoned, both the Kelley and cemetery properties would be without access to county roads.

In addition to the questions of intent and nonuse, the party seeking to establish abandonment must demonstrate that its actions will not create parcels without access. See $ 43-2-308(2)(a), C.R.S.2002; Heath v. Parker, supra. The division in Heath held that a county cannot, without compensation, formally abandon a public road if such action would deprive abutting landowners of access to their property. It stated that the availability of substitute access provided by another road has usually been a relevant, if not critical, factor in determining an intent to abandon.

The Kobobels dispute plaintiff's evidence on this question. They point to inconsistencies in the neighbor's affidavit, including confusion about the road being discussed, the location and existence of the fenceline, and the timeline in question. The Kobobels also contend that plaintiff's expert misread the aerial photographs and that the photographs are consistent both with the expert's conclusion of public use and with their claim that the owners of the property, not the public, used the road.

The Kobobels also assert that the 1975 aerial photograph submitted by plaintiff shows access to the Kelley property and the cemetery through Section 10. The Kobobels point out that the gate is located in the northwest corner of the cemetery, and this location is inconsistent with plaintiff's claim that the section line road provided access to the cemetery. They further note a fence along the south end of the cemetery property, which does not have a gate or any other means of passage. Therefore, the Kobobels urge us to conclude that the abandonment of the section line road would not deny access to these two parcels.

The trial court here did not address the status of the north-south road through See-tions 10 and 15 created by the 1902 petition. If that road was not abandoned by the county, presumably Kelley would have access through that route. If the court determines that the north-south road was abandoned because of realignment, arguably that same evidence would constitute evidence of abandonment of the road currently in dispute. Accordingly, we conclude that whether the Kelley property and the cemetery are without access is a disputed issue of fact.

The judgment is reversed, and the case is remanded for further proceedings.

Judge METZGER and Judge GRAHAM concur.


author: Judge ROTHENBERG.

text:
    Cory A. MORRISON, Plaintiff-Appellant, v. Richard J. GOFF, Defendant-Appellee.
    No. 01CA1565.
    Colorado Court of Appeals, Div. V.
    Jan. 2, 2003.
    Certiorari Granted July 21, 2003.

      Cory A. Morrison, Pro Se.
    Richard J. Goff, Aurora, Pro Se.
   Opinion by

Judge ROTHENBERG.

In this legal malpractice action, plaintiff, Cory A. Morrison, appeals summary judgment in favor of defendant, Richard J. Goff, based on the expiration of the statute of limitations. The sole issue in this appeal is whether the statute of limitations governing legal malpractice claims is tolled while a criminal defendant pursues a direct appeal or seeks postconviction relief, Because we conclude it is not tolled, we affirm.

1.

In 1996, Morrison retained Goff to represent him in a criminal matter. After a jury trial, Morrison was convicted and sentenced to the Department of Corrections.

In May 1997, Morrison sent a letter to the Office of Supreme Court Disciplinary Counsel (now the Office of Attorney Regulation Counsel) identifying concerns about Goffs representation during the criminal proceeding. Morrison alleged several errors by Goff, including his failure to investigate the case, to call witnesses, and to consult with another attorney more experienced in erimi-nal defense.

In 1998, Morrison's criminal conviction was affirmed on direct appeal. People v. Morrison, (Colo.App. No. 96CA1565, Nov. 19, 1998)(not published pursuant to C.A.R. Morrison then filed a Crim. P. 35(c) motion for postconviction relief based on Goff's alleged ineffective assistance of counsel.

In September 1999, while still incarcerated, Morrison filed this action against Goff for professional negligence. Goff moved for summary judgment, contending the two-year statute of limitations, § 13-80-1102, C.R.S. 2002, barred the action. The court granted Goff's motion without a hearing and without ruling on Morrison's pending motions.

After this appeal was filed, the trial court in the criminal action granted Morrison's Crim. P. 35(c) motion, vacated Morrison's conviction, and ordered a new trial. By the time of the hearing, Goff also had been suspended from the practice of law. See Goff v. People, 35 P.3d 487 (Colo.O.P.D.J.2000).

IL.

Morrison contends the trial court erred in granting summary judgment in favor of Goff based on the statute of limitations. According to Morrison, in legal malpractice claims against criminal defense attorneys, the harm of the negligent representation becomes apparent only after appellate or postconviction relief is granted, and therefore the cause of action necessarily acerues at that time. Based on this reasoning, Morrison contends the statute of limitations should have been tolled pending the outcome of his motion for postconviction relief. We disagree.

A. Standard of Review

A grant of summary judgment is reviewed de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995).

Summary judgment may be granted if the pleadings and supporting documents show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c).

The burden of establishing the nonexistence of a genuine issue of material fact is on the moving party. Polk v. Hergert Land & Cattle Co., 5 P.3d 402 (Colo.App.2000). All doubts as to whether a triable issue of fact exists must be resolved against the moving party, while the nonmoving party is entitled to all favorable inferences that may be drawn from the undisputed facts. Van Alstyne v. Housing Authority, 985 P.2d 97 (Colo.App.1999).

B. Analysis

Section 18-80-102 provides:

(1) The following civil actions, regardless of the theory upon which the suit is brought, or against whom suit is brought, shall be commenced within two years after the ecause of action accrues, and not thereafter:
(a) Tort actions, including but not limited to actions for negligence....

To establish a prima facie case of legal malpractice, a client must show the attorney breached a duty of care owed to the client and the client suffered damages as a result of the breach. Colorado follows the "discovery rule," which states that a legal malpractice cause of action accrues when the client discovers, or through use of reasonable diligence should have discovered, the negligent conduct and damage. Broker House Int'l, Ltd. v. Bendelow, 952 P.2d 860 (Colo.App.1998).

The focus is on a plaintiff's knowledge of facts that would put a reasonable person on notice of the general nature of the damage and that the damage was caused by the wrongful conduct of the attorney. Morris v. Geer, 720 P.2d 994 (Colo.App.1986).

In Jacobson v. Shine, 859 P.2d 911 (Colo.App.1993), a division of this court held the statute of limitations in a legal malpractice action is not tolled by an appeal of the underlying civil matter. The division reasoned that onee a plaintiff becomes aware of his or her attorney's negligence and incurs damage in the form of legal fees to ameliorate the effect of that negligence, the plaintiff has suffered injury for purposes of the accrual of a legal claim.

However, whether the statute of limitations is tolled while a criminal defendant seeks postconviction relief appears to be an issue of first impression in Colorado. There is a split of authority on this issue in other jurisdictions. See Gebhardt v. O'Rourke, 444 Mich. 535, 510 N.W.2d 900 n. 11 (1994)(collecting cases).

In support of his contention, Morrison cites a number of cases, including Shaw v. State, 816 P.2d 1358 (Alaska 1991). Shaw was convicted in 1978, but his convictions were set aside in 1986 as being constitutionally defective. In 1988, he filed a complaint alleging that his trial counsel negligently allowed a conflict of interest to lead to the 1978 convictions, and trial counsel raised the statute of limitations as an affirmative defense.

The Alaska Supreme Court concluded Shaw's professional negligence claim was not barred by the statute of limitations. The court reasoned that a convicted criminal defendant had to obtain postconviction relief before pursuing an action for legal malpractice against his or her attorney, and that public policy required some form of postcon-viction relief as a prerequisite to filing a legal malpractice claim. The court explained:

This is so because criminal prosecutions involve constitutional and procedural safeguards designed to maintain the integrity of the judicial system and to protect erimi-nal defendants from overreaching governmental actions. These aspects of criminal proceedings make criminal malpractice cases unique, and policy considerations require different pleading and substantive rules.

Shaw v. State, supra, 816 P.2d at 1360 (quoting Carmel v. Lunney, 70 N.Y.2d 169, 173-74, 518 N.Y.S.2d 605, 511 N.E.2d 1126, 1128 (1987)).

The Shaw court reasoned that the requirement of obtaining postconviction relief promoted judicial economy because many of the issues litigated in the quest for postconviction relief, such as proximate cause and damages, would be duplicated and relevant in the legal malpractice action. Additional benefits of requiring postconviction relief were de-seribed as follows:

[Rlequiring post-conviction relief as a prerequisite to a legal malpractice action aids in determining whether the statute of limitations bars the action. By adopting the date that post-conviction relief is obtained as the trigger to the statute of limitations, we establish a bright line test which should significantly assist courts in the resolution of statute of limitations issues.

Shaw v. State, supra, 816 P.2d at 1361; see also McCord v. Bailey, 636 F.2d 606 (D.C.Cir.1980)(summary judgment for defendant defense counsel upheld where the plaintiff's conviction on the underlying criminal charge had not been reversed on appeal or in postconviction proceedings); Johnson v. Schmidt, 719 S.W.2d 825, 826 (Mo.Ct.App.1986)("The present action is premature, until such time as appellant is successful in seeur-ing post-conviction relief upon a finding that he was denied effective assistance of counsel."); Stevens v. Bispham, 316 Or. 221, 851 P.2d 556 (1993)(legal malpractice action did not accrue, for statute of limitations purposes, until date on which conviction was set aside and client was released).

Other jurisdictions, however, have rejected the bright line rule established in Shaw. See Gebhardt v. O'Rourke, supra; Seevers v. Potter, 248 Neb. 621, 537 N.W.2d 505 (1995); see also Jepson v. Stubbs, 555 S.W.2d 307 (Mo.1977)(setting aside of judgment of conviction is not a condition to maintaining legal malpractice suit); Krahn v. Kinney, 43 Ohio St.3d 103, 538 N.E.2d 1058 (1989)(reversal of conviction on grounds of ineffective assistance of counsel is not element of legal mail-practice action arising from representation in criminal case).

In Gebhardt, a criminal defendant argued that Michigan's statute of limitations should have been tolled until she successfully obtained postconviction relief, The Michigan Supreme Court disagreed, holding that successful postconviction relief is not a prerequisite to a claim for legal malpractice. The Gebhardt court was not persuaded by the policy arguments set forth in Shaw, when balanced against the policies underlying the statute of limitations, and it adopted another solution to the problems admittedly posed by simultaneous civil and eriminal litigation:

[Slituations are numerous where a criminal matter is pending before a court, and a related civil suit arising out of that erimi-nal matter is also pending. Commonly, the court presented with the civil suit will yield to the criminal matter, allowing it to proceed so that the rights of the criminal defendant will not be infringed. Thus, the civil and criminal cases proceed along separate tracks, without danger that the two will collide producing waste of judicial resources or unfairness to the criminal defendant.
The "two track" approach adopted today recognizes that a criminal defendant who has initiated postconviction relief proceedings should have knowledge sufficient to have discovered his claim against his initial defense attorney for statute of limitation purposes. In order to put the defense attorney on notice that he will have to defend against a malpractice claim, and thereby honor the policies underlying the statute of limitations, the criminal defendant must file his malpractice complaint within [the statutory period].
With his claim preserved, he can and should seek a stay in the civil suit until the criminal case is resolved. The trial court handling the civil suit would have disceretion regarding whether the stay would continue until judgment in the criminal matter is final or, if after the initial judgment on postconviction relief, justice would permit going forward with the civil suit while the appeal process in the eriminal matter continues until final determination.

Gebhardt v. O'Rourke, supra, 444 Mich. at 550-51, 510 N.W.2d at 907.

The Nebraska Supreme Court adopted the reasoning of Gebhardt in Seevers v. Potter, supra, 248 Neb. at 630, 537 N.W.2d at 511, stating that "[the fact that the plaintiff is imprisoned subsequent to his or her convietion does not affect the plaintiffs ability to reasonably recognize that he or she might have a viable claim for legal malpractice against his or her eriminal trial counsel."

We discern no clear majority rule, but are persuaded by the reasoning in Gebhardt. Its holding is consistent with the doctrine of equitable tolling, which permits the statute of limitations to be tolled only where the defendant's wrongful conduct prevented the plaintiff from asserting the claims in a timely manner or truly exceptional cireumstances prevented the plaintiff from filing the claim despite diligent efforts. See Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1096 (Colo.1996).

Morrison does not allege that his incarceration precluded him from commencing this action earlier, and we do not address that cireumstance. Also, because the issue was not raised, we do not address whether a plaintiff can prevail in a legal negligence action arising from a criminal defense without first obtaining appellate or collateral relief based on ineffective assistance of counsel.

In summary, we hold that the statute of limitations is not tolled while a criminal defendant either pursues a direct appeal or seeks postconviction relief, The eriminal defendant must file and preserve his or her malpractice claim within the limitations period, but may seek a stay in the civil action until the criminal ease is resolved. The civil trial court has discretion whether to grant such a stay. See Gebhardt v. O'Rourke, supra.

Here, the record supports the trial court's finding that Morrison discovered his cause of action for legal malpractice more than two years before he commenced this action. Morrison does not dispute that he sent a letter to the Office of Supreme Court Disciplinary Counsel in May 1997 identifying particular concerns with Goffs representation in the criminal proceedings. Morrison's September 1999 malpractice complaint described Goff's allegedly negligent conduct in similar terms.

Accordingly, we conclude the trial court did not err in determining Morrison's claim was barred by the statute of limitations and in granting summary judgment on that basis.

Judgment affirmed.

Judge TAUBMAN and Judge WEBB concur.