text:
    MATHESON DRILLING, INC., a Wyoming corporation, Appellant (Plaintiff), v. Alfred and Mary PADOVA, husband and wife, Appellees (Defendants).
    No. 99-203.
    Supreme Court of Wyoming.
    May 4, 2000.

      Representing Appellant: James L. Edwards of Stevens, Edwards & Hallock, P.C., Gillette, Wyoming.
    Representing Appellees: Daniel B. Bailey and R. Douglas Dumbrill of Lubnau, Hand & Bailey LLC, Gillette, Wyoming.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.
   MACY, Justice.

Appellant Matheson Drilling, Inc. appeals from the district court's order granting it a limited judgment against Appellees Alfred Padova (Alfred) and Mary Padova (Mary).

We affirm.

ISSUES

Matheson Drilling presents the following issues for our review:

A. Whether there was sufficient evidence presented to the court to support the finding that Matheson was negligent?
B. Whether the court properly assessed the amount owing to Matheson for the services provided to the Padovas?
C. Whether the court should ... have awarded attorney fees to Matheson?

FACTS

Alfred and Mary were purchasing property in Campbell County from Le Roy Van Buggenum under a contract for deed. In the fall of 1996, Alfred contacted Trusty Mathe-son (Trusty) of Matheson Drilling about having a water well drilled on the property. Trusty and Alfred orally agreed that Mathe-son Drilling would drill, ream, case, and gravel pack a well on the Padovas' property for the price of $12 per foot plus materials.

Matheson Drilling began drilling the well on November 18, 1996. It drilled to a depth of approximately 500 feet. Alfred apparently asked about the well's production. Trusty claimed that he told Alfred the well could produce "as little as a gallon or two a minute." Alfred maintained that Trusty told him the well would produce four to five gallons per minute. In any event, although the Matheson Drilling representatives wanted to drill deeper, Alfred apparently directed them to stop drilling. Matheson Drilling reamed out the well and cased it to a depth of approximately 460 feet. Matheson Drilling then gravel packed the well and injected a great deal of water into the well to remove the drilling mud. The Padovas paid Mathe-son Drilling $5,500.

Alfred placed a pump on the well in the fall of 1997, but he was unable to pump water to the surface. He contacted Matheson Drilling, and it returned to the well site. Mathe-son Drilling removed thirty feet of gravel from inside the casing at the bottom of the well and attempted to seal the bottom of the well. Its efforts to make the well produce adequate water were unsuccessful, and it decided to deepen the well. Unfortunately, while Matheson Drilling was attempting to deepen the well, it broke the casing, effectively ruining the well. Shortly thereafter, Matheson Drilling drilled and completed a second well on the Padovas' property. The parties did not discuss the terms under which Matheson Drilling would drill the see-ond well. The second well was approximately 600 feet deep, and the Padovas were able to use the second well for their domestic water needs. Matheson Drilling returned later to make some repairs to: the second well.

Matheson Drilling billed the Padovas for the balance due for drilling the first well, the cost for attempting to make the first well productive, the drilling of the second, well, and the repairs to the second well. The Padovas did not pay Matheson Drilling, and Matheson Drilling filed a lien against the property, listing the Padovas and Van Bug-genum as the owners of the property.

Matheson Drilling filed a complaint in the district court against the Padovas and Van Buggenum, seeking foreclosure of its lien, damages, and recovery of its costs and attorneys fees. The Padovas filed an answer and counterclaim, alleging breach of contract and negligence. Matheson Drilling and the Pa-dovas subsequently stipulated to the dismissal of Van Buggenum from the case.

Matheson Drilling filed a motion for a summary judgment. The district court denied the motion and held a bench trial. After Matheson Drilling rested its case, the district court directed a partial verdict in favor of the Padovas as to Matheson Drilling's claim for the remaining balance due for drilling the first well. After the trial concluded, the district court issued a decision letter, announcing a limited verdict in favor of Matheson Drilling. The district court found that Matheson Drilling was negligent with regard to its work on the first well and the first well was of no value to the Padovas. The district court determined that the value of Matheson Drilling's services and the materials for the second well was $8,558, subtracted $5,500 to account for the amount the Padovas paid for the first well, and concluded that Matheson Drilling was entitled to $3,058 for its work on the second well. The district court used the $3,058 amount and determined that Matheson Drilling was entitled to a judgment of $3,189.46 by adding $255 for the repairs Matheson Drilling performed on the second well, subtracting $200 to account for the cost of plugging and abandoning the first well, and adding $55 for costs. The district court refused, however, to award Matheson Drilling its attorneys fees. Mathe-son Drilling subsequently appealed to the Wyoming Supreme Court.

DISCUSSION

Matheson Drilling maintains that the district court erred in concluding that it was negligent in its performance of the work on the first well and in determining the amount the Padovas owed it. We have frequently stated our standard for reviewing a judgment entered by a court after a bench trial:

The factual findings of a judge are not entitled to the limited review afforded a jury verdict. While the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Due regard is given to the opportunity of the trial judge to assess the credibility of the witnesses, and our review does not entail weighing disputed evidence. Findings of fact will not be set aside unless the findings are clearly erroncous. A finding is clearly er-roncous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. We review a district court's conclusions of law de novo on appeal.

Springer v. Blue Cross and Blue Shield of Wyoming, 944 P.2d 1173, 1175-76 (Wyo.1997) (citations omitted); see also Saulcy Land Company v. Jones, 983 P.2d 1200, 1203 (Wyo.1999).

Construction contracts contain an implied warranty that work will be performed in a skilifal, careful, diligent, and workmanlike manner. Cline v. Sawyer, 600 P.2d 725, 732 (Wyo.1979). Determining that Matheson Drilling was negligent in the performance of its work on the first well, the district court stated:

The defendants point out several items that they feel indicate that the plaintiff was negligent. They first point to the fact that the plaintiff got the drill bit stuck in the hole on the first well. However, no testimony would indicate that there was negligence in this. The defendants point to the fact that the casing was not on the bottom of the hole. However, the expert testified that this can happen without fault or negligence. However, if there is clearly fault of the plaintiff in this case it would be in the information given to the defendant, Mr. Padova, that the well first drilled was sufficient to produce one to two gallons per minute. Mr. Padova testified that the plaintiff indicated four to five gallons per minute. In either case one to two gallons per minute would be a producing well. It would appear that plaintiff cased a dry hole. The subsequent movement of the casing is also indicative of further problems. This is not exactly clear what the problems are, but the sinking and moving of the casing is not proper. In essence, the court feels that the first well drilled by the plaintiff was of no value to the defendants due to the plaintiff's negligence.

The undisputed trial evidence indicated that well drillers do not generally guarantee that a well will produce water. See Atlas Construction Co., Inc. v. Aqua Drilling Company, 559 P.2d 39, 41 (Wyo.1977) (holding that there is no implied warranty that a driller will find and produce water when he agrees to drill a water well). Trusty admitted that he told Alfred the well may produce as little as one to two gallons of water per minute. He did not, however, conduct any tests to determine what the actual production of the well would be. The undisputed evidence showed that the first well did not produce sufficient water for the pump to bring water to the surface. Accordingly, the first well could be characterized as a dry hole. Both parties presented testimony indicating that a driller generally should not case a dry hole.

The trial evidence also showed that the casing moved or settled after Matheson Drilling placed it in the first well and such movement or settling was not proper. Furthermore, the accumulation of gravel at the bottom of the well compromised the well's productivity. The Padovas' expert witness testified that the gravel could have accumulated at the bottom of the well because Matheson Drilling did not ensure that the casing was placed at the bottom of the well bore or because there was a failure in the casing near the bottom of the well. A portion of the gravel that Matheson Drilling used to pack the outside of the casing apparently settled to the bottom of the casing and came up inside the well. Because the gravel pack settled, it was more likely that the perforations in the casing, which were designed to allow water to run into the well, would become plugged by debris and sediments, thereby undermining the ability of the well to produce water. Applying our standard for reviewing factual determinations by district courts, we conclude that the evidence presented at the trial was sufficient to support the district court's determination that Matheson Drilling negligently performed its work on the first well and the well was of no value to the Padovas.

The district court ruled that Mathe-son Drilling was entitled to be paid for its work on the second well pursuant to an unjust enrichment theory.

"The phrase 'unjfust enrichment' is used in law to characterize the result or effect of a failure to make restitution of, or for, property or benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefor. It is a general principle, underlying various legal doctrines and remedies, that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly.”

R.O. Corporation v. John H. Bell Iron Mountain Ranch Company, 781 P.2d 910, 912 (Wyo.1989) (quoting 66 Am.Jur.2d Restitution and Implied Contracts § 83 at 945 (1978)); see also Clark v. Gale, 966 P.2d 431, 438-39 (Wyo.1998).

The district court determined the total amount due on the second well by calculating the value of Matheson Drilling's labor and materials on the second well and deducting the amount the Padovas paid to Matheson Drilling for the first well. Matheson Drilling argues that the Padovas should not have received a credit for the amount they paid on the first well. We conclude that the district court properly calculated Matheson Drilling's damages in this case. As we stated above, there was sufficient evidence to support the district court's conclusion that the first well was of no value to the Padovas because Matheson Drilling had negligently performed its work. Consequently, the Padovas did not owe Matheson Drilling for its work on that well, The amount the Padovas paid to Matheson Drilling for the first well was, therefore, properly deducted from the amount due on the second well.

Matheson Drilling also maintains that the district court erred by refusing to award it attorneys fees. The Padovas argue that the district court properly determined that Matheson Drilling was not entitled to recover its attorneys fees. We agree with the Padovas.

Wyoming subscribes to the American rule regarding recovery of attorneys fees. Board of County Commissioners of County of Platte v. State ex rel. Yeadon, 971 P.2d 129, 132 (Wyo.1998). Under that rule, each party is generally responsible for its own attorneys fees. Id. A prevailing party may, however, be reimbursed for its attorneys fees when express statutory or contractual authorization exists for such an award. ICA

Matheson Drilling claims that it was entitled to an attorneys fees award pursuant to Wyo. Stat. Ann. § 29-8-103(a)(vi) (LEXIS 1999). Wyo. Stat. Ann. § 29-8-108(a) (LEX-18 1999) states:

(a) Every person who works upon or furnishes material, whether incorporated into the real property or not, under contract with the owner of any interest in real estate or with an agent, trustee or receiver of an owner has a lien to secure payment for:
(i) Constructing, altering, digging, drilling, driving, boring, operating, completing or repairing any wells, mines or quarries; or
(ii) Altering, repairing or constructing any oil derrick, oil tank or any pipelines;
Gi) Transportation and related mileage charges plus interest from the date due;
(iv) Advertising, selling and preparing for sale;
(v) Sheriff's fees; and
(vi) Attorney's fees and other costs of collection.

The lien statute obviously authorizes awards of attorneys fees in appropriate cases. Nevertheless, the district court ruled: "Regardless of whether a lien claim can properly be made for this unjust enrichment claim, the court will disallow any recovery to the plaintiff of attorney's fees."

Matheson Drilling set out alternate theories in its complaint to establish that it was entitled to be paid for the services it rendered to the Padovas. Its causes of action included foreclosure of the lien and quantum meruit or unjust enrichment. The district court granted relief to Matheson Drilling pursuant to its unjust enrichment claim. The lien statute clearly applies to only contract claims. See Adobe Oil & Gas Corporation v. Getter Trucking, Inc., 676 P.2d 560, 562 (Wyo.1984). Consequently, the lien statute did not apply to Matheson Drilling's claim for payment for its work on the second well, and Matheson Drilling was not entitled to be awarded attorneys fees on that basis.

Affirmed.


source: Caselaw Access Project

author: MANNHEIMER, Judge.

license: Public Domain

text:
    Joseph D. BILLY, Appellant, v. STATE of Alaska, Appellee.
    No. A-7244.
    Court of Appeals of Alaska.
    July 14, 2000.
    G. Blair McCune, Deputy Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Appel-lee.
    Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   O P I N I 0 N

MANNHEIMER, Judge.

Joseph D. Billy was convicted of sexually abusing a young boy. We affirmed Billy's conviction on appeal. See Billy v. State, Alaska App. Memorandum Opinion No. 3205 (August 2, 1995). Billy then filed a petition for post-conviction relief, alleging that he had received ineffective assistance of counsel at his trial. In particular, Billy asserted that his attorney had incompetently failed to object to certain testimony elicited by the prosecutor.

Superior Court Judge Dale 0. Curda denied Billy's petition. Judge Curda concluded that, even though Billy's trial attorney might have made mistakes by failing to object to the challenged testimony, the attorney's mistakes were not so egregious as to fall below the minimum level of competence expected of criminal law practitioners. As an additional reason for denying relief, Judge Curda ruled that Billy had failed to establish any reasonable possibility that the admission of the challenged testimony affected the outcome of Billy's trial. Judge Curda noted that Billy's petition "completely failed to address the issue of ... prejudice". The judge conceded that, in some cireumstances, the introduction of particular inadmissible evidence might be prejudicial on its face. But Judge Curda (who had presided over Billy's trial) concluded that the challenged evidence in Billy's case was not obviously prejudicial; thus, Billy had not carried his burden of demonstrating a reasonable possibility of prejudice.

A criminal defendant who alleges ineffective assistance of counsel must demonstrate both (1) that their attorney failed to act with the minimum competency expected of criminal law practitioners, and (2) that there is a reasonable possibility that the attorney's lack of competency contributed to the result. As Judge Curda correctly noted, a defendant who alleges ineffective assistance of counsel must do more than present "a mere conclusory or speculative allegation of harm". Billy's pleadings in the superior court mention the requirement of proving prejudice, but Billy never argues this point other than to assert, conclusorily, that the attorney's mistakes must have affected the result. We agree with Judge Curda that Billy failed to satisfy his burden of pleading on this issue.

After Judge Curda issued his decision (in particular, his ruling that Billy had failed to adequately allege prejudice), Billy did not ask Judge Curda for permission to file a supplemental pleading to address the issue of prejudice. Instead, Billy filed an appeal to this court. In this appeal, Billy asserts that his superior court pleadings sufficiently addressed the issue of prejudice because it was self-evident that the challenged testimony could have affected the outcome of his trial. We do not agree.

Whether particular testimony may have affected the outcome of a trial is a question that seldom provides its own self-evident answer. Normally, to show prejudice, a defendant must discuss the importance of the challenged testimony in relation to the litigation strategies of the parties, the material issues of fact that were disputed at trial, and the other evidence presented on those disputed issues. Billy's superior court pleadings contained no such discussion.

Because Billy failed to meet his burden of pleading the "prejudice" component of his ineffective assistance of counsel claim, Judge Curda could properly dismiss Billy's petition for post-conviction relief. The judgement of the superior court is AFFIRMED.

      . See Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974); State v. Jones, 759 P.2d 558, 575 (Alaska App.1988).

      . State v. Jones, 759 P.2d at 573.


author: COATS, Chief Judge. MANNHEIMER, Judge,

text:
    Albert Steven BUSHNELL, Appellant, v. STATE of Alaska, Appellee.
    No. A-6944.
    Court of Appeals of Alaska.
    July 21, 2000.

      Sharon Barr, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Kenneth M. Rosenstein and Ben M. Her-ren, Assistant Attorneys General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   0 P I N I O N

COATS, Chief Judge.

Following a jury trial, Albert Steven Bushnell was convicted of felony driving while intoxicated (DWI) During the trial, the state admitted evidence of his breath test which indicated that his breath aleohol content (BAC) was .109 percent. Alaska Statute 28.40.060 provides that:

Except for an offense under AS 28.85.280, if an offense described under this title requires that a chemical test of a person's breath produce a particular result, and the chemical test is administered by a properly calibrated instrument approved by the Department of Public Safety, the result described by statute is not affected by the instrument's working tolerance.

Bushnell argues that AS 28.40.060 violates his due process rights because it allows the Department of Public Safety to approve any instrument, even one which is very inaceu-rate, to establish his level of intoxication. We conclude, however, that the legislature passed AS 28.40.060 with an awareness of the working tolerance of the Intoximeter 3000, a testing instrument that the Department of Public Safety has used for many years and which has a working tolerance of .01 percent. Accordingly, we conclude that AS 28.40.060 does not violate Bushnell's due process rights.

Facts and proceedings.

Bushnell's DWI offense was the result of events that took place on July 18, 1997. An argument occurred while Bushnell was drinking with Tina Gratias and Esther Schermer-horn at Gratias' apartment. Eventually, Bushnell was asked to leave. When he would not, Gratias threatened to call the police. After Bushnell tore one of the apartment's telephones off of the wall, Gratias went to a neighbor's apartment and called the police. Bushnell then left the apartment. Before leaving the area, however, he broke the windshield of Gratias' vehicle. After breaking the windshield, Bushnell rode away on a bicycle.

He soon returned, however, and a neighbor saw him driving a car in the area. The police then arrived, and soon found Bushnell walking in the area He fled into some nearby woods, but-after a short time-was apprehended.

The arresting officers, Rodney Ryan and Seott Nissen, testified that they saw signs that Bushnell was intoxicated-his eyes were bloodshot and watery, and he had a moderate to strong odor of aleohol. Although Bushnell initially would not consent to field sobriety tests, Nissen persuaded Bushnell to submit to the horizontal gaze nystagmus (HGN) test. According to Nissen, the HGN showed that Bushnell was under the influence of alcohol. Bushnell was then turned over to Officer Daniel Nix, who took custody of Bushnell and then administered an Intoximeter test.

Discussion

Does AS 28.4,0.060 violate Bushnell's state and federal rights to due process?

We start our analysis with Haynes v. State, Dep't of Public Safety, an administrative license revocation case which involved a claim similar to Bushnell's. In Haynes, the Intoximeter test results showed that Haynes' BAC was .106 percent. In challenging the administrative revocation of his license, Haynes claimed that in light of the Intoxime-ter's inherent error of .01 percent, his actual BAC was somewhere between .096 and .116 percent. He argued that the test result was therefore insufficient to satisfy the burden of proof necessary to impose the license revocation. The supreme court ultimately held that the margin of error must be applied in Haynes' favor. In doing so, the court found that:

There is no indication that the legislature considered the .0O1 margin of error inherent to the Intoximeter 8000 in setting the legal limit at .10 grams per 210 liters of the person's breath. Therefore, we do not interpret AS 28.35.030(a)(2) as creating an 'offense for violation of the statutory .10 grams per 210 liters of breath, without regard to the margin of error inherent to the particular testing device utilized. In Alaska, a driver commits a DWI offense when his or her actual alcohol level exceeds .10 grams per 210 liters of breath.

In reaching its conclusion, the Haynes court reiterated its decision in Barcott v. State, Dep't of Public Safety, where it had also held that because there was "no evidence or indication" that the legislature had considered the Intoximeter's inherent margin of error, then the margin of error must be considered by the fact finder. But the Haynes court also indicated that the legislature had the power to base the offense of DWI on a particular test result, and that a margin of error that it considered "tolerably inaccurate" could be disregarded.

Following Haynes, the legislature enacted AS 28.40.060. When enacting AS 28.40.060, the legislature not only had the Haynes decision for guidance, it also had the Intoxime-ter's long history of use in this state. The Intoximeter 8000 first appeared in reported Alaska case law in 1984; the Intoximeter's working tolerance (or margin of error) of .0L percent is likewise well-known, and was first acknowledged in our reported cases in 1986. With this long-standing historical framework as a backdrop, it is clear that when the legislature responded to Haynes with AS 28.40.060, it did so knowing that the Intoxim-eter 8000 was the testing instrument at issue, and that its working tolerance was .O01 percent. Based on this historical framework, we conclude that the legislature, by responding to Haynes with AS 28.40.060, implicitly found that a working tolerance of .01 percent of a properly calibrated instrument was "tolerably inaccurate."

Additionally, we recently recognized in Mangiapane v. Anchorage that "[the Alaska Legislature reacted to the Haynes decision by enacting AS 28.40.060." We said that the practical effect of AS 28.40.060 was to modify the definition of driving while intoxicated under AS 28.85.080(a)(2). We held that AS 28.40.060 rejected the interpretation from Haynes that "the State had to prove, by means of a chemical test, that the driver's blood actually contained at least .10 percent alcohol by weight, or that the person's breath actually contained at least .10 grams of alcohol per 210 liters." We stated:

AS 28.40.060 effectively declares that a driver violates AS 28.35.030(a)(2) if, within four hours of driving, the driver is tested on a properly calibrated, properly functioning Intoximeter and the driver's test result is at least .10 percent blood-aleohol or the equivalent .10 grams of alcohol per 210 liters of breath. The fact that the driver's true blood-aleohol or breath-aleohol level may be slightly lower (due to the Intoxime-ter's acknowledged margin of error) is no longer relevant to the driver's guilt under AS 28.35.030(a)(2).

We concluded that the defendant in Mangic-pane was not entitled to the jury instruction he sought-that the working tolerance be applied in his favor-because the "margin of error (the machine's 'working tolerance') had no relevance to the jury's decision."

Although Bushnell argues that AS 28.40.060-by not specifying the Intoximeter (or any other instrument)-creates the potential for a varying statutory blood aleohol level, nothing in the history of DWI enforcement in Alaska, nor in the Haynes decision, supports this argument. There is no indication that the legislature intended to create a statutory blood aleohol level that varied depending upon the instrument used by the state, nor is there any indication that the legislature intended to use this statute to delegate to the Department of Public Safety the authority to set the statutory blood alcohol level for DWI in Alaska.

If the Department of Public Safety approved a less accurate testing instrument without an express legislative finding it might create the due process problem Bushnell raises in this appeal. It seems unlikely, however, that the state would begin using a less accurate testing instrument. Since such a scenario seems unlikely, we see no reason to resolve it at this time.

In light of the history of the Intoximeter and its established working tolerance, the discussion in Haynes, and the language of AS 28.40.060, it seems clear to us that the legislature implicitly decided that a .01 percent working tolerance was "tolerably inaccurate," and, therefore, irrelevant to the driver's guilt under AS 28.35.030(a)(2). Accordingly, we conclude that AS 28.40.060 does not violate Bushnell's state or federal due process rights.

Does AS 28.40.060 violate Bushnell's state and federal rights to equal protection?

Bushnell next contends that AS 28.40.060 violates the state and the federal equal protection clauses because it exempts those aged 14 to 21 who are charged under another statute. Bushnell asserts that it is unfair that a testing instrument's working tolerance is relevant in cases where minors are charged with operating a vehicle after consuming alcohol, but not in cases where adults are charged with DWL.

Alaska Statute 28.40.060 does create an exception for minors who, under AS 28.35.280, are charged with operating or driving a motor vehicle after having consumed any quantity of alcohol. The offense under AS 28.35.280, however, is essentially a much more restrictive version of the DWI offense Bushnell was charged with Under AS 28.35.280, minors commit an offense if they operate a motor vehicle after consuming any alcohol. Therefore, Bushnell has no basis to contend that minors are treated more favorably because minors are in fact subject to a stricter law. Accordingly, we conclude that there is no equal protection violation.

Should the jury have been instructed that the Intoximeter's margin of error must be applied in Bushnell's favor?

Relying on Haynes, Bushnell's final claim is that the jury should have been instructed to apply the Intoximeter's margin of error in his favor. In light of our holding, however, Bushnell was not entitled to this instruction.

Conclusion

The conviction is AFFIRMED.

MANNHEIMER, Judge,

dissenting.

Somewhere among the offices and cubicles of the State Trooper Crime Detection Laboratory can be found a state official known as the "scientific director of the breath and blood alcohol testing program". Alaska law-specifically, 18 AAC 63.010(a)-directs the Commissioner of Public Safety to appoint the scientific director from among the employees of the Crime Lab, but the precise identity of this official is not easily discoverable: the "Department of Public Safety" seetion of the Alaska Directory of State Officials contains no listing for the "scientific director of the breath and blood aleohol testing program".

Despite the scientific director's relative anonymity, this official wields considerable power over the motorists of this state. The Alaska Legislature has enacted a statute, AS 28.40.060, that in effect authorizes the scientific director to set the amount of blood aleo-hol that will make a motorist guilty of driving while intoxicated. The legislature has failed to establish any criteria or policies to guide the scientific director's decision; the scientific director's discretion in this matter is completely unfettered and apparently unreviewable.

Our constitution forbids the legislature from giving administrators "unguided and uncontrolled discretionary power to govern as they see fit." Because AS 28.40.060 gives an executive branch official sole and unfettered discretion to define the amount of blood alcohol that constitutes the crime of driving while intoxicated, I conclude that this statute is an unconstitutional delegation of legislative authority.

The Alaska Legislature charges the Department of Public Safety with evaluating and approving breath-test machines. This authority is delegated to the scientific director, who has complete discretion in this matter.

Under AS 28.85.080(a)(2), a person commits the crime of driving while intoxicated if they operate a motor vehicle and if, within the next four hours, a chemical test of their breath or blood shows that their blood alcohol level is .10 percent or higher (or the equivalent .10 grams of alcohol per 210 liters of breath). Motorists' blood aleohol level is most often determined by using a machine to test a sample of their breath.

Originally, the Department of Health and Social Services was in charge of selecting the breath-test machines that would be approved for use by Alaska law enforcement agencies. This function has now been transferred to the Department of Public Safety.

The Alaska Legislature has not placed any restrictions or conditions on the Department of Public Safety's authority to designate the approved breath-test machine or machines. The legislature has simply stated that, in order for a chemical analysis of a person's breath to be considered valid, "the chemical analysis ... shall have been performed according to methods approved by the Department of Public Safety."

As already explained, the Department of Public Safety has enacted a regulation, 13 AAC 68.010, that calls for the Commissioner to appoint a "scientific director of the breath and blood alcohol testing program" from among the employees of the Crime Lab. Pursuant to this regulation, the scientific director is "responsible for all aspects of the statewide breath and blood alcohol testing program, including the certification of breath test instruments".

As 183 AAC 68.020 explicitly states, the scientific director is in charge of evaluating and approving breath-test machines:

Breath test instruments approved for analysis. The scientific director must approve a type of breath test instrument for use in ascertaining the alcohol content of a breath sample by chemical analysis of the breath,. The scientific director will maintain a list of the individual instruments of this type which have been certified under 18 AAC 68.100 as operating within acceptable limits established by the scientific director.

No statute or regulation restricts or guides the scientific director's choice of breath-test machine(s). Most importantly, 13 AAC 63.020 gives the scientific director carte blanche to establish the "acceptable [operating] limits" of these machines-that is, their acceptable working tolerances or margins of error.

The Alaska Supreme Court and the Alaska Legislature debate whether a breath-test machine's margin of error should be weighed in favor of the defendant or in favor of the government. The legislature resolves this debate by enacting AS 28.4,0.060. This statute declares that, so long as the breath-test machine is properly calibrated (in accordance with the standards set by the scientific director), the government receives the benefit of the machine's margin of error.

The Intoximeter 3000 is a breath-test machine currently approved for use in Alaska. Its recognized margin of error is .O1 grams of alcohol per 210 liters of breath. Expressed in terms of blood alcohol, this margin of error translates to .01 percent. Thus, when the Intoximeter 3000 yields a test result of .10 percent blood aleohol, the motorist's true blood aleohol content might be as high as .11 percent or as low as .09 percent.

As explained above, AS 28.85.030(2)(2) states that a motorist is guilty of driving while intoxicated if, within four hours of driving, a chemical test shows that their blood alcohol level is .10 percent or higher. A sibling provision, AS 28.15.165(c), requires the Department of Public Safety to suspend or revoke a person's driver's license "if a chemical test [administered in connection with a DWI arrest] produced a result described in AS 28.35.080(a)(2)"-that is, a result of .10 percent blood aleohol or higher.

In Haynes v. Dept. of Public Safety , the supreme court was asked to decide whether this Hcense-revocation statute required proof that the test result was .10 percent or higher, or (alternatively) required proof that the motorist's actual blood alcohol level was .10 percent or higher. The court ruled that the statute required the government to prove the defendant's actual blood alcohol level, and thus the defendant was entitled to the benefit of the machine's margin of error.

The supreme court conceded that the legislature "has the power to require the revocation of a driver's license on the basis of a particular test result or reading, despite [the testing machine's] margin of error, [if] the legislature expressly considers that margin [of error] and deems it sufficiently negligible ... that it may be disregarded." But the court concluded that "there was no evidence or indication that the Alaska Legislature considered the margin of error inherent to the Intoximeter 3000. The court noted that

[tlhe legislature did not specifically approve the Department's use of the Intox-imeter 8000 ..., but rather [generally] authorized the Department to approve satisfactory [testing] techniques, methods, and standards[.] There is no indication that the legislature considered the .01 [percent] margin of error inherent to the In-toximeter 83000 in setting the legal limit....

Haynes, 865 P.2d at 755-56 (citations omitted). Because the legislature did not expressly recognize the Intoximeter 3000's margin of error and expressly declare their intent that this margin of error should be disregarded, the supreme court held that "failure to apply the inherent margin of error of a particular testing device in favor of the person subject to license revocation violates [the] due process [clause of] the Alaska Constitution."

The Haynes opinion was issued on December 30, 19983. Two and a half years later, toward the end of the 1996 legislative session, the legislature responded to Haynes by enacting AS 28.40.060. Under this statute,

if an offense described [in Title 28] requires that a chemical test of a person's breath produce a particular result, and [if] the chemical test is administered by a properly calibrated instrument approved by the Department of Public Safety, the result described by statute is not affected by the instrument's working tolerance.

As this court recognized in Mangiapane v. Anchorage , the practical effect of this statute was to modify the definition of driving while intoxicated under AS 28.35.080(a2)(2). Haynes had effectively interpreted the DWI statute to require proof that a motorist's blood actually contained at least .10 percent alcohol. By enacting AS 28.40.060, the legislature rejected this interpretation of the offense and declared that the test result was the determinative fact. An arrested motorist who tested at .10 percent or higher would be guilty of DWI under AS 28.35.080(a)(2) even though the motorist's true blood-aleohol or breath-aleohol level might be lower than the prescribed statutory limit (due to the Intox-imeter 8000's acknowledged margin of error). This margin of error was no longer relevant to the driver's guilt under AS 28.35.030(a)(2).

In effect, AS 28.40.060 declares that the government shall receive the benefit of a breath-test machine's margin of error. If the machine's margin of error is .01 percent, then some drivers will be convicted of DWI even though their actual blood alcohol level is as low as .09 percent. If the machine's margin of error is .02 percent, then some drivers will be convicted of DWI even though their actual blood alcohol level is as low as .08 percent. Expressing this rule in general terms: as the working tolerance (ie, the margin of error) of the approved breath-test machine becomes greater and greater, the amount of actual blood alcohol necessary to convict a driver of DWI becomes less and less. ' °

The scientific director of the Department of Public Safety's breath and blood alcohol testing program has unfettered discretion in selecting the breath-test machines that 'will be used in Alaska. Now that the legislature has enacted AS 28.40.060, this power of selection amounts to the power to define the level of blood alcohol needed to prove the crime of driving while intoxicated under AS 28.85.080(a)(2). The Alaska Constitution forbids the legislature from granting executive branch officers unfettered discretion to define criminal offenses. Thus, AS 28.410.060 is unconstitutional.

Under Alaska law, the scientific director has complete discretion to select the breath-test machines that will be used by Alaska law enforcement agencies. Currently, the scientific director has designated the Intoximeter 3000 as the breath-test machine approved for use in Alaska, The Intoximeter 8000's blood alcohol reading can be wrong by as much as .01 percent. Because the legislature has now declared that a motorist's guilt of DWI hinges on the test result, not the motorist's actual blood aleohol content, defendants with blood aleohol levels as low as .09 percent will be convicted of DWL.

This result, in itself, is not a problem. The legislature has the authority to define DWI as driving with a blood alcohol level of .09 percent-or .08 percent, or .05 percent, if they choose.

Moreover, even though the definition of crimes is normally considered a legislative function, the legislature can authorize a regulatory agency to define crimes arising from acts and omissions within that agency's field of regulation. For example, the legislature has delegated this type of power to the Board of Fisheries and the Board of Game. The legislature could conceivably authorize the Department of Public Safety to evaluate the impairing effects of alcohol consumption and then enact a regulation defining the maximum blood alcohol level that drivers may have before they become guilty of DWI.

But when the legislature delegates power, it must establish criteria for the exercise of that power. "Administrators should not have unguided and uncontrolled discretionary power to govern as they see fit."

The essential inquiry is whether the [legislature has provided specific} guidance [which] sufficiently marks the field within which the administrator is to act[,] so that it may be known whether [the administrator] has kept within [these bounds] in compliance with the legislative will This question involves a sliding-scale analysis: [as] the scope [of the delegated authority] increases[,] the standards [governing this delegated authority] must be correspondingly more precise.

Municipality of Anchorage v. Anchorage Police Dept. Employees Assn., 839 P.2d at 1085.

For example, in State v. Fairbanks North Star Borough , the Alaska Supreme Court struck down a statute that granted the governor the authority to withhold money appropriated to state agencies if, at any time during the fiscal year, the governor determined that the State's revenues would be insufficient to generate the budgeted appropriation. This statute was unconstitutional, the court concluded, because the legislature had "articulated no principles ... to guide the [governor]... . Most importantly, the executive [was] provided with no policy guidance as to how the cuts should be distributed."

The authority granted to the scientific director of the breath and blood aleohol testing program is similarly open-ended. The legislature has directed the Department to approve one or more breath-test machines for use in Alaska, but the legislature has given the Department no criteria for making its selections. If the company that manufactures the Intoximeter 8000 were to decide that they could make more money if they used cheaper parts, lowered the price of the machine, and raised its working tolerance to .025 percent, the scientific director would have complete discretion to continue to certify this revised Intoximeter 3000 as the breath-test machine for Alaska. Similarly, the scientific director has complete discretion to decide that the Intoximeter 3000 is too expensive and that it should be serapped in favor of a cheaper machine with a greater margin of error. Some people might think this decision ill-advised, but no provision of the Alaska Statutes limits the scientific director's discretion. He or she enjoys complete liberty to decide that budgetary constraints make cheaper, less aceu-rate machines more appropriate.

In fact, the scientific director's decision to abandon the Intoximeter 3000, (or to certify the hypothetical new and cheaper version) would not have to be based on budgetary concerns-or any other articulable concerns. There are no criteria governing the scientific director's choice, other than criteria set by the scientific director himself. AS 28.40.060 does not prescribe any particular type of breath-test machine, it does not prescribe any upper limit on a breath-test machine's margin of error, and it does not establish any criteria for selecting a machine or for assessing whether a margin of error is reasonable or acceptable. Thus, the scientific director has unfettered discretion to determine the range of blood alcohol levels that can be prosecuted under the DWI statute.

Before the enactment of AS 28.40.060, the lack of constraints on the scientific director's discretion might not have posed as severe a problem. But following the enactment of AS 28.40.060, a person's guilt of DWI hinges on the breath-test result, and the legislature has announced its before-the-fact ratification of all test results produced by any machine approved by the scientific director. Thus, the scientific director has the sole discretion to determine the amount of acceptable error in breath-testing. And through this choice, the scientific director establishes (for all practical purposes) the amount of blood alcohol that suffices to prove the crime of driving while intoxicated.

It is true that regulatory agencies (such as the Boards of Fisheries and Game and the Department of Public Safety) have been delegated the authority to enact regulations that define criminal offenses. But their regulations must be enacted in conformity with the Administrative Procedure Act, AS 44.62. This Act requires agencies to notify the public of all proposed regulations (and proposed repeals of regulations), to allow the public to comment on the agency's proposed action, and to keep a record of this public comment. Following the adoption or repeal of a regulation, the agency is required to file a copy of its action with the lieutenant governor , and the Heutenant governor has a duty both to apprise the legislature of the agency's action and to codify and publish all regulations so that they are available to the public. In addition, the legislature has the authority to annul any regulation by concurrent resolution. None of these procedural protections apply to the scientific director's approval of a breath-test machine.

For these reasons, I conclude that AS 28.40.060 constitutes an unlawful delegation of legislative power to the scientific director.

The majority's arguments in favor of the statute

The majority offers two rationales for upholding the statute. The majority suggests that the statute can be construed narrowly so as to limit the scientific director's discretion. Alternatively, the majority suggests that, even if the statute can not be construed narrowly, we need not strike it down because, so far, it has caused no problems.

First, the majority points out that the legislature enacted AS 28.40.060 in response to the supreme court's decision in Haynes v. Dept. of Public Safety. Haynes discusses one specific breath-test machine (the Intox-imeter 8000) having an identified margin of error (.01 percent blood aleohol). From this, the majority infers that the legislature intended AS 28.40.060 to grant only limited authority to the scientific director.

According to the majority, AS 28.40.060 does not ratify the scientific director's future choices of breath-test machines, but only the scientific director's current choice (the Intox-imeter 3000). In the alternative, the majority suggests that even if the statute was intended to ratify the scientific director's future choices, the statute nevertheless implicitly requires the scientific director to select machines whose margin of error is no more than .10 percent blood aleohol.

I am unconvinced by the majority's construction of the statute. True, AS 28.40.060 was enacted in response to Haynes But this begs the real question: how exactly did the legislature respond?

In Haynes, the supreme court explicitly suggested how the legislature might change the law (and thus the Haynes result); the court told the legislature that they could achieve the result they wanted by enacting a statute that specifically recognized and approved the Intoximeter 8000 and its .01 percent margin of error.

It would have been easy for the legislature to follow the court's blueprint. But the legislature chose a different course. Instead of enacting a statute that specified a particular machine or a particular maximum acceptable margin of error, the legislature enacted a statute that ratifies the result of "[any] chemical test ... administered by a properly calibrated instrument approved by the Department of Public Safety[, regardless of] the instrument's working tolerance".

This wording indicates that the legislature did not want the scientific director to be bound to a particular machine or a particular margin of error. This wording also indicates that the legislature did not want to bind itself to enact a new statute every time the scientific director approved a new breath-test machine, or to amend the statute if further research revealed that the Intoximeter 3000 actually had a working tolerance greater than .10 percent. The wording of AS 28.40.060 demonstrates that the legislature wanted to be done with this subject onee and for all: they ratified every machine, and every margin of error, that the scientific director might approve. In the absence of identifiable criteria to govern the scientific director's choice, this is unlawful.

The majority offers a second way that the statute may be saved. They point out that, even though the statute may give the scientific director carte blanche, the scientific director has not exercised this unfettered discretion in an unreasonable way. Instead, the scientific director has approved the Intoxime-ter 3000, a breath-test machine with a con-cededly reasonable margin of error. Because the scientific director has not abused his discretion, the majority suggests that this court should ignore the statute's underlying flaw until the scientific director does something less reasonable.

This approach was specifically rejected by the Alaska Supreme Court in State v. Fairbanks North Star Borough. As explained above, that case involved a statute that gave the governor unfettered discretion to reduce the budget of any executive agency if, during the fiscal year, state revenues fell below projections. Arguing in support of the statute, the State pointed out that the two governors who had been granted this budget-cutting authority had exercised their power in a restrained and reasonable way. The court answered that this was irrelevant:

This [court does not intend] to impugn the motives or good faith of Governors Sheffield and Cowper. Both have interpreted the grant of authority under [the challenged statute] narrowly and have acted in accord with that narrow interpretation. However, the issue ... is not what has been done under the statute; rather it is what can be done. As [the New Mexico Supreme Court] said:
[Whe find nothing in [the statute] whatsoever to indicate that the legislature was granting [only a limited] authority to be exercised [under] the conditions which [the State Board of Finance] says it has imposed on itself, As we read the [statute], the grant [of authority] is absolute and totally devoid of restraints, direction or rules. Accordingly, the fact that [the Board] acted ... under certain self-imposed restraints can in no way serve to supply what has been omitted.
State ex rel. Holmes v. State Board of Finance, [69 N.M. 430] 367 P.2d 926 [925], 932 (N.M.1961). The [executive branch's] limited exercise of authority ... cannot save a statute which amounts to legislative abdication.

State v. Fairbanks North Star Borough, 736 P.2d at 1143-44.

Thus, even though the scientific director may bave acted reasonably in exercising the unfettered discretion granted by AS 28.40.060, this does not save the statute. The decision in Fairbanks North Star Borough stands squarely against this contention. As the supreme court said, the issue is not what has been done under the statute; rather, the issue is what can be done.

Conclusion

For these reasons, I conclude that AS 28.40.060 is an unconstitutional delegation of law-making power to an executive branch officer. Because this statute is invalid, the law regarding breath-test results should return to its status following the supreme court's decision in Haynes v. Dept. of Public Safety.

      . AS 28.35.030(a)(1), (a)(2), & (n).

      . 865 P.2d 753 (Alaska 1993).

      . Id. at 756.

      . 741 P.2d 226, 230 (Alaska 1987).

      . Haynes, 865 P.2d at 755.

       . Id.

      . See Anchorage v. Flack, 685 P.2d 108, 109 (Alaska App.1984); McCracken v. State, 685 P.2d 1275, 1276 (Alaska App.1984).

      . See Kalmakoff v. Anchorage, 715 P.2d 261 (Alaska App.1986); Ansay v. State, 715 P.2d 1194, 1195 (Alaska App.1986).

      . 974 P.2d 427, 429 (Alaska App.1999).

      . Id. at 430 (emphasis in original).

      . Id. (emphasis in original) (AS 28.35.030(a)(2) is the .10 theory of DWI).

      . Id.

      . See Haynes, 865 P.2d at 755 n. 3 ("An 'acceptable' margin of error is one having reasonable limits. A greater margin of error could not be conveniently ignored, without inviting a constitutional challenge").

      . See Mangiapane, 974 P.2d at 430.

      . Id.

      . See Alaska Directory of State Officials (February 2000 edition).

      . Municipality of Anchorage v. Anchorage Police Dept. Employees Assn., 839 P.2d 1080, 1086 (Alaska 1992).

      . See AS 28.35.031-O032; but see AS 28.35.035.

      . See former 7 AAC 30.005-190.

      . See AS 28.35.033(d) and 13 AAC 63.010-100. But see 13 AAC 63.130(b), which declares that "[bJreath test instruments [and] associated equipment [previously] approved [by the Department of Health and Social Services] under 7 AAC 30.005-7 AAC 30.190 remain approved ... unless the scientific director orders otherwise."

      . AS 28.35.033(d).

      . See 13 AAC 63.010(b).

      . See Haynes v. Dept. of Public Safety, 865 P.2d 753, 754 (Alaska 1993).

      . 865 P.2d 753 (Alaska 1993).

      . See Haynes, 865 P.2d at 756.

      . Id. at 755. The court did, however, express reservation about the legislature's power to disregard a testing machine's margin of error if that margin of error is [beyond] reasonable limits". Id. at 755 n. 3. The court did not clarify what it meant by "reasonable limits".

      . Id. at 755.

      . Id. at 756.

      . See SLA 1996, ch. 143, § 17.

      . 974 P.2d 427, 429 (Alaska App.1999).

      . See id. at 429-430.

      . Municipality of Anchorage v. Anchorage Police Dept. Employees Assn., 839 P.2d 1080, 1086 (Alaska 1992).

      . Quoting State v. Fairbanks North Star Borough, 736 P.2d 1140, 1143 (Alaska 1987).

      . 736 P.2d 1140 (Alaska 1987).

      . Fairbanks North Star Borough, 736 P.2d at 1143.

      . See AS 44.62.190-215.

      . See AS 44.62.040.

      . See AS 44.62.320(b).

      . See AS 44.62.130.

      . See AS 44.62.320(a).

      . See Haynes, 865 P.2d at 755-56.


author: Judge ROY.

text:
    CROWN BANK, a Federal Saving Bank, Plaintiff-Appellant, v. CROWDER MORTGAGE CORPORATION, Defendant-Appellee.
    No. 99CA0794.
    Colorado Court of Appeals, Div. IV.
    May 25, 2000.
    Kleinsmith & Associates, P.C., Philip M. Kleinsmith, Colorado Springs, Colorado, for Plaintiff-Appellant.
    Law Office of Charles F. Molling, J.D., Charles F. Molling, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge ROY.

In this action for judicial foreclosure of a deed of trust, plaintiff, Crown Bank, appeals the trial court order requiring it to release a deed of trust securing a promissory note payable to it after the tender of the payoff in an amount it provided its customer at the customer's request. We affirm.

Donald W. and Cathy S. Schofield (the Schofields) purchased property in Littleton, Colorado. The Schofields borrowed money from Crown Bank, and they executed and delivered two promissory notes secured by separate deeds of trust.

Crown Bank had previously commenced foreclosure proceedings with respect to both deeds of trust. Through those proceedings, the junior, or second, note and deed of trust was paid off and released, and the first deed of trust was redeemed. After the foreclosure proceedings were terminated, the Scho-fields sold the property to Charles P. Rahe (Rahe). Rahe financed his purchase through Crowder Mortgage Corporation (Crowder Mortgage).

An attorney representing both the Scho-fields and Rahe requested Crown Bank provide a statement of the amount required to pay off the obligation secured by the first deed of trust. Crown Bank, through its attorney, responded by letter with a payoff figure of approximately $121,300, which included $1,800 in attorney fees. The letter indicated that if the attorney fees and an additional charge of $5,200 were contested, Crown Bank would not execute a release of the deed of trust without an escrow deposit of an additional $7,000. The escrow deposit was intended to secure Crown Bank against any attorney fees and costs it might incur in a future dispute concerning the attorney fees and the additional charge.

A title company tendered the payoff plus per diem interest of about $121,800 to Crown Bank. The title company was acting on behalf of Rahe with funds provided by Crowder Mortgage, which recorded its deed of trust granted by Rahe. At the same time, but acting separately from the title company, the Schofields' and Rake's counsel objected to the amount of principal, interest, and attorney fees requested by Crown Bank as part of the payoff figure. The objection related, in part, to the manner in which the cure payment from the first foreclosure was credited.

Crown Bank returned to counsel for Scho-field and Rahe the payoff check it had received from the title company but indicated Crown Bank would accept another check with appropriate additional per diem interest if the Schofields and Rahe agreed to attorney fees for both past and future litigation, if any. Counsel for the Schofields and Rahe again tendered the payoff check without the requested assurances, and Crown Bank again returned it. The failure of Crown Bank to accept the payoff check occurred without the knowledge of Crowder Mortgage.

Crown Bank then filed this action for a judicial foreclosure. The district court held a hearing on all pending motions and issued its order directing that: (1) Crowder Mortgage issue to Crown Bank a replacement check in the amount of the original payoff; (2) Crown Bank release the deed of trust upon receipt of the replacement check; (8) the Schofields and Rahe post a $5,000 bond in favor of Crown Bank to secure any additional attorney fees and expenses; and (4) the Schofields file a motion within two weeks detailing the nature of their objection to the payoff figure. The trial court further stated that by releasing the deed of trust, Crown Bank would not waive any existing or future rights against any other parties, including claims for reimbursement of attorney fees and costs.

Crown Bank filed two motions for reconsideration, the thrust of which was that Crown Bank was entitled to interest and attorney fees during the period between the original payoff tenders and the court order, about six months. Both motions were denied.

On appeal, Crown Bank, without reference to any authority, argues that the trial court cannot enter the order requiring it to accept the original payoff and release its deed of trust without making an express finding, or conclusion, that the original tender, made under protest, was binding on Crown Bank. We conclude that under § 88-35-124, C.R.S8.1999, the tender was binding.

Section 88-85-124 states in relevant part: Exeept as provided in articles 22 and 28 of this title, when all indebtedness, whether absolute or contingent, secured by a lien on real property has been satisfied, unless the debtor requests in writing that the lien not be released, the creditor or holder of the indebtedness shall, within ninety days after the satisfaction of the indebtedness and receipt from the debtor of the reasonable costs of procuring and recording the release documents, record with the appropriate clerk and recorder the documents necessary to release or satisfy the lien of record....

(emphasis added).

When the language of a statute is plain and its meaning is clear, it must be interpreted as written. See Baum v. Baum, 820 P.2d 1122 (Colo.App.1991). Section 38-35-124 clearly requires that upon the tender of a payment fully satisfying an obligation secured by real property, the deed of trust securing that obligation must be released.

Here, a request was made to Crown Bank for a statement of the amount necessary to pay off the obligation secured by its first deed of trust. Crown Bank submitted that payoff amount but conditioned its release of the deed of trust on its being provided security for its future attorney fees and expenses should a dispute arise about the amount of the payoff.

We conclude that a lender cannot place conditions on its release of a deed of trust other than the satisfaction of the indebtedness secured by that deed of trust. This conclusion is consistent with the apparent purpose of the statute, which is to permit the owners of real property to obtain the release of liens by the payment of the full amount secured by the lien and thereby permit the owner to sell, pledge, or otherwise deal with the property free of the lien. If a liea holder were permitted further to condition the release of the lien, it could use that ability to coerce settlement of other disputes or accounts a result which the statute clearly intended to prevent.

Here, it is undisputed that the full amount of the indebtedness secured by the deed of trust, as determined by Crown Bank, was tendered. Crown Bank does not have any right to refuse the tender or further condition its release of the deed of trust. The right of Crown Bank to any further interest is also terminated upon a tender in full of the amount owed. See Hohn v. Morrison, 870 P.2d 513 (Colo.App.1993)(not entitled to interest, costs, or attorney fees after purchaser has made a full legal tender on the note).

The fact that Schofields and Rahe objected to, but paid, the payoff amount established by Crown Bank did not alter the obligation of Crown Bank to release the deed of trust. Nor does the existence of such an objection make the tender ineffective for the purposes of obligating Crown Bank to cancel the promissory note and release the deed of trust.

We deny Crowder Mortgage's request for attorney fees pursuant to § 18-17-102, C.R.S.1999, as we conclude the appeal is not frivolous, groundless, and vexatious, or lacks substantial justification. See Wood Bros. Homes, Inc. v. Howard, 862 P.2d 925 (Colo.1993).

The order is affirmed.

Judge MARQUEZ and Judge VOGT concur.


author: Judge KAPELKE.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William Glover SHERWOOD, Defendant-Appellant.
    No. 99CA0260.
    Colorado Court of Appeals, Div. L.
    June 8, 2000.

      Ken Salazar, Attorney General, Dawn M. Weber, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Kyle Ipson, Durango, Colorado, for Defendant-Appellant.
   Opinion by

Judge KAPELKE.

Defendant, William Glover Sherwood, appeals from the judgment of conviction entered on a jury verdict finding him guilty of vehicular eluding. We affirm.

The criminal charges against defendant stem from a police chase. A police officer, driving an unmarked patrol car, saw a pickup truck driven by defendant enter the opposite traffic lane and weave between lanes. The officer began to follow the truck.

The officer called for assistance to initiate a stop. The truck continued to travel erratically, passing two cars and weaving between lanes. In the process of making a turn, the truck partially crossed over the double yellow line, forcing a car traveling in the opposite direction onto the shoulder of the road. By this time, a marked patrol car had joined the pursuit.

The driver of the marked patrol car turned on his overhead lights. When the driver of the truck failed to respond, the marked patrol car activated his siren. Again, the truck did not respond. The truck then crossed the solid double yellow line, started to travel in the opposite direction, and foreed another car onto the shoulder. By this time, another marked patrol car had joined the pursuit, and it also had its siren and overhead lights activated. After driving a few blocks further, the truck again crossed the double yellow lines, forcing a third car onto the shoulder.

Traveling at speeds between 30 and 40 miles an hour, the three patrol cars attempted a rolling roadblock to try to bring the truck to a stop. A rolling roadblock involves surrounding the vehicle being pursued and gradually bringing it to a stop.

The rolling roadblock was unsuccessful. Although the patrol cars were able to bring the truck to "almost a complete stop," defendant nevertheless managed to squeeze the truck between the patrol cars and continue driving. Shortly thereafter, the patrol cars attempted a second rolling roadblock, which proved successful.

The distance from the point at which the first marked patrol car had joined the pursuit to where defendant's truck finally came to a stop was approximately sixteen blocks. Defendant was identified as the driver of the truck. His blood alcohol content following his arrest was determined to be .213.

Defendant was charged with vehicular eluding, driving under the influence (DUI), driving under the influence per se, and weaving. He pled guilty to all charges but the vehicular eluding charge, which was tried to a jury.

At trial, following the close of the prosecution's case-in-chief, defendant moved to dismiss, arguing that the evidence of the element of elusive behavior was insufficient. Defendant also argued that, even assuming that squeezing through the patrol cars during the first rolling roadblock could be said to have constituted elusive behavior, there was no showing that this conduct created a substantial risk of bodily injury to the police officers driving the patrol cars since it occurred while the patrol cars and defendant's truck were traveling at a slow speed.

The court denied the motion, finding that (1) defendant's "refusal to pull over" could amount to elusive behavior; (2) defendant's conduct in weaving in and out of traffic lanes was elusive and created a substantial risk of harm to oncoming traffic; and (8) defendant's "pulling out and around" the two marked patrol cars was also elusive and cere-ated a substantial risk of bodily injury to the officers driving the patrol cars.

In his rebuttal closing argument, the prosecutor, referring to the case as being "more than just a DUI case," stated that "this crime occurred not just at one particular point, but it occurred [over a span of several blocks], and if you find that the risk of bodily injury [occurred in two separate blocks] but the eluding occurred [later in another block] at the rolling roadblock, that's fine."

Defendant objected to the prosecutor's statements, arguing that they misstated the law. The court held a bench conference off the record, but did not rule on the objection. The prosecutor then continued with his argument, saying, in effect, that the crime of vehicular eluding did not require proof that the act of eluding was simultaneous with the reckless driving.

At the end of the closing arguments, defendant again objected to the prosecutor's description of the requirements of vehicular eluding and urged that, for purposes of the statute, "reckless driving has to occur at the same time that the eluding occurs." In overruling defendant's objection, the trial court stated, "it was my ruling at the bench conference that the episode began at the time it became arguable that the defendant knew or should have known that he was being pursued by peace officers," and "after that time, I believe it is not essential that the remaining elements occur in any particular order."

I.

Defendant initially contends that the trial court erred in overruling his objection to the prosecutor's description of the elements of vehicular eluding and in improperly instructing the jury on the elements of that offense. Specifically, he argues that the offense of vehicular eluding requires that the elusive conduct occur simultaneously with the recekless behavior. We disagree.

As applicable here, § 18-9-116.5, C.R.S.1999, describing the crime of vehicular eluding, states that:

Any person who, while operating a motor vehicle, knowingly eludes or attempts to elude a peace officer also operating a motor vehicle, and who knows or reasonably should know that he is being pursued by said peace officer, and who operates his vehicle in a reckless manmer, creating a substantial risk of bodily injury to another person, commits vehicular eluding.

(emphasis added).

Under § 18-1-501(8), C.R.S.1999, a person acts recklessly when he or she consciously disregards a substantial and unjustifiable risk that a result will occur or that a cireum-stance exists.

The court's instruction tracked the language of § 18-9-116.5. It stated, as pertinent here, that:

The elements of the crime of Vehicular Eluding are:
1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. was operating a motor vehicle, and
4. knowingly,
5. eluded or attempted to elude a peace officer also operating a motor vehicle, and
6. knew or reasonably should have known that he was being pursued by the peace officer, and
7. operated his vehicle in a reckless manner, and
8. created a substantial risk of bodily injury to another person.

(emphasis added).

The offense of vehicular eluding requires a showing that the driver knew or reasonably should have known that he or she was being pursued by a police officer. People v. Fury, 872 P.2d 1280 (Colo.App.1993).

Here, defendant cites no authority, and we find none, to support his assertion that, for purposes of § 18-9-116.5, the elusive behavior and the reckless driving must occur at the same time. By its plain language, the statute merely requires proof that defendant both eluded or attempted to elude a police officer, and that he operated his car recklessly.

Accordingly, because § 18-9-116.5 does not require that the eluding and the reckless behavior be simultaneous, and the trial court's instruction tracked the language of the statute, we perceive no error.

IL.

Defendant also contends that the evidence was insufficient to sustain his conviction for vehicular eluding. Specifically, he argues that the evidence was insufficient as to the element of reckless behavior in connection with his squeezing by the two patrol cars during the initial rolling roadblock. Again, we disagree.

When presented with a challenge based on the sufficiency of the evidence, we must determine whether that evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crimes charged beyond a reasonable doubt. People v. Schoondermark, 699 P.2d 411 (Colo.1985).

Here, there was evidence that: (1) during the first attempted rolling roadblock defendant was surrounded by three patrol cars, two of which had their lights and sirens activated; (2) defendant eluded the roadblock by squeezing through a narrow opening between two of the patrol cars; and (8) defendant's blood aleohol content following his arrest was twice the legal limit.

In attempting to elude the rolling roadblock, defendant could well have collided with one or both of the patrol cars. Therefore, there was sufficient evidence that defendant's act of eluding the rolling roadblock constituted reckless behavior and created a substantial risk of bodily injury to the police officers driving the patrol cars.

Further, the evidence that defendant had forced cars off the road and that his blood aleohol content at the time was more than twice the legal limit amply demonstrated his recklessness.

Accordingly, because the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to establish that defendant acted recklessly, we perceive no basis for reversal.

The judgment is affirmed.

Judge METZGER and Judge JONES concur.


author: Judge ROTHENBERG.

text:
    Peter T. TONNESSEN, Plaintiff-Appellant, v. The DENVER PUBLISHING COMPANY, a/k/a Denver Publishing Co., a Colorado Business Corporation, d/b/a The Rocky Mountain News, Defendant-Appellee.
    No. 98CA1583.
    Colorado Court of Appeals, Div. V.
    June 22, 2000.

      Peter T. Tonnessen, Pro Se.
    Baker & Hostetler, LLP., Mare D. Flink, Jeanne A. Carroll, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge ROTHENBERG.

Plaintiff, Peter T. Tonnessen, appeals the summary judgment in favor of defendant, Denver Publishing Co., dismissing his claims for defamation, invasion of privacy, and outrageous conduct. We affirm.

On June 11, 1995, Denver Publishing printed an article about Tonnessen's dissolution of marriage action in the Rocky Mountain News. The article focused on the unusual circumstances surrounding the impregnation of Tonnessen's ex-wife, who had recently given birth to twin girls fathered by different men.

The twins were conceived in January 1994, after the wife had filed the dissolution action but before she finally left the marital home. After Tonnessen discovered that his wife was pregnant, he filed a paternity action, and test results showed that Tonnessen was the father of one of the twins, but the other had been fathered by the wife's boyfriend. The case attracted considerable media attention around the world.

During the dissolution proceedings, the wife explained the dual impregnation by testifying that she had had consensual sex with her boyfriend, who by the time of the dissolution was her fiancé and is now her husband, and that some time afterwards she had been raped by Tonnessen in the marital home. Tonnessen denied raping his wife.

The article in the Rocky Mountain News repeated the wife's allegation of marital rape and Tonnessen's denial, and also included several other statements about Tonnessen which he alleges accuse him of stalking, spousal abuse, and violating the dissolution court's gag order. On July 16, 1995, Denver Publishing printed a follow-up article that repeated both sides of the rape allegation.

Following the publication, Tonnessen filed this action seeking damages for defamation, invasion of privacy, and outrageous conduct. Denver Publishing moved to dismiss the action for failure to state a claim under C.R.C.P. 12(b)(5). The trial court denied the motion, but ordered Tonnessen to file an amended complaint specifying the allegedly defamatory statements.

Tonnessen then filed an amended complaint, and Denver Publishing filed a renewed motion to dismiss, or in the alternative, a motion for summary judgment under C.R.C.P. 56.

The trial court granted the motion for summary judgment based on the pleadings and on certain articles that were attached. After examining the submissions, the court determined as a matter of law that: (1) the statements were not defamatory; (2) they were privileged; (8) the facts published were already in the public domain; and (4) Denver Publishing's conduct did not support a claim for relief for outrageous conduct.

I. Defamation

Tonnessen first contends the trial court erred in determining that the statements were not defamatory or, to the extent they were defamatory, that they were privileged. We disagree.

Because Denver Publishing attached exhibits to its motion to dismiss and Tonnessen also tendered an exhibit, the trial court properly treated the motion as one for summary judgment. See C.R.C.P. 12(b); Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988).

Summary judgment is particularly appropriate in defamation actions because the threat of protracted litigation could have a chilling effect upon constitutionally protected rights of free speech. Lockett v. Garrett, 1 P.3d 206 (Colo.1999). Nevertheless, summary judgment may be granted only if there is no genuine issue as to any material fact, and the burden so to demonstrate is on the moving party.

Appellate review of a summary judgment is de novo. Westerman v. Rogers, 1 P.3d 228 (Colo.1999).

Defamation is a communication that holds an individual up to contempt or ridicule, thereby causing him or her to incur injury or damage. Keohane v. Stewart, 882 P.2d 1293 (Colo.1994); Lockett v. Garrett, supra. At common law, the tort of defamation existed to redress and compensate individuals who suffered serious harm to their reputations because of the careless or malicious communications of others. Keohane v. Stewart, supra; Smiley's Too, Inc. v. Denver Post Corp., 935 P.2d 39 (Colo.App.1996).

To be defamatory, a statement need only prejudice the plaintiff in the eyes of a substantial and respectable minority of the community. Arrington v. Palmer, 971 P.2d 669 (Colo.App.1998). A finding that the language used was actually defamatory must be predicated on the context of the entire story and the common meaning of the words used. Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351 (Colo.1983).

A statement may be considered defamatory per se if it is specifically directed at the person claiming injury and if, on its face and without extrinsic proof, it is unmistakably recognized as injurious. A statement imputing a criminal offense is defamatory per se. Arrington v. Palmer, supra.

Whether a statement is defamatory per se presents an issue for the court to determine. Walker v. Associated Press, 160 Colo. 361, 417 P.2d 486 (1966). To make that determination, the court must examine the statement itself without the aid of inducements, colloquialisms, innuendoes, or explanatory cireumstances. Arrington v. Palmer, supra.

Applying those principles here, we agree with the trial court that most of the statements relied upon by Tonnessen in his complaint were not defamatory as a matter of law and that the other statements, while defamatory, are not actionable.. We take the statements in turn.

A.

Tonnessen contends the first article imputed to him the crime of stalking by stating that, before the couple were married, he would show up everywhere the wife went and even followed her to Maine. However, we conclude that the statements, at most, portrayed him as a persistent suitor, not as a stalker. See § 18-9-111, C.R.S.1999.

B.

We also reject Tonnessen's contention that the first article portrayed him as an abusive husband through statements that he "looked down" on his wife and belittled her. While these statements may have portrayed him in a bad light, we agree with the trial court that they did not constitute defamation. See Burns v. McGraw-Hill Broadcasting Co., supra.

C.

We also reject Tonnessen's assertion that one of the articles portrayed him as the person who notified or "tipped" the media about the case, thus casting him in an unfavorable light.

The specific statement to which he objects is as follows:

The case continued in relative obscurity until four weeks ago, when someone tipped a Colorado Springs television station. After the story aired, reporters from all over the country called the attorneys.
[The judge] issued his gag order-15 minutes after [Tonnessen] gave an interview to [a reporter] of KOAA-TV in Colorado Springs.

In our view, only an extraordinarily strained interpretation of these statements would lead to the conclusion that Tonnessen was the "someone" who notified the media. Nevertheless, to the extent that such a conclusion could be drawn, we agree with the trial court that the above-quoted statement was not defamatory.

D.

Tonnessen's next contention is that the trial court erred in granting summary judgment because the articles quoted statements by his wife and her sister which falsely portrayed him as a rapist. We conclude summary judgment was properly granted.

The imputation of rape is defamatory per se. See Arrington v. Palmer, supra. However, under the common law doctrine of fair report, reports of in-court proceedings containing defamatory material are privileged if they are fair and substantially correct, or are substantially accurate accounts of what took place. See Rosenberg v. Helinski, 328 Md. 664, 616 A.2d 866 (1992); Cianci v. New Times Publishing Co., 639 F.2d 54 (2d Cir.1980)(recognizing common law privilege of fair report of public court trials as far back as 1796).

The privilege exists even if the reporter of the defamatory statements believes or knows them to be false. Rosenberg v. Helinski, supra.

The wife's accusation of rape was made in open court, and therefore, it is irrelevant as a matter of law whether the allegation was false. It is also undisputed that Denver Publishing's reports accurately described the wife's in-court accusation, followed by Tonnessen's denial of the charges in the article. Accordingly, the reports of the wife's in-court accusation were privileged. See Rosenberg v. Helinski, supra.

Nor are we persuaded by Tonnes-sen's assertion that the newspaper is liable based on the publication of two alleged defamatory statements that were made out of court by the wife's sister. The first reported statement attributed to the sister, to which Tonnessen objects, was not defamatory as a matter of law. The statement was that Ton-nessen had told the sister "he had sex with [the wife} that night because he 'was so overcome with her sensitivity." "

Tonnessen concedes in his complaint that he had sex with his wife, and the statement does not amount to a confession of rape. Hence, we conclude the statement was not defamatory.

The second statement attributed to the sister was that the wife said Tonnessen had "forced [wife] to the floor and had sex with her," which is in essence a repetition .of the wife's accusation of rape. However, even if that statement about Tonnessen was false, we conclude it was not actionable.

The fair report privilege is not limited to media defendants, but extends to protect reports of judicial proceedings made by all other persons as well. See Rosenberg v. Helinski, supra. Thus, to the extent the sister was simply repeating the wife's in-court accusation, the sister's statement also was privileged.

Tonnessen maintains that the fair report privilege does not apply to the sister's statement because she was not present in the courtroom when the wife made her accusation, and that therefore, the sister was not reporting an in-court statement. Even if we assume this interpretation of the privilege is correct, we would reach the same conclusion.

This statement by the sister is virtually the same as the wife's in-court accusation which was reported by Denver Publishing. Because we have held that the reporting of the wife's statement is protected by the fair report privilege, we conclude the sister's statement is not actionable under the "incremental harm doctrine."

Under the incremental harm doe trine, when unchallenged or nonactionable parts of a particular publication are damaging, another statement, though maliciously false, may not be actionable because it causes no harm beyond the harm caused by the remainder of the publication. See Masson v. New Yorker Magazine, 501 U.S. 496, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991); Simmons Ford, Inc. v. Consumers Union of U.S., Inc., 516 F.Supp. 742, 750 (S.D.N.Y.1981) ("Given the abysmal performance and safety evaluations detailed in the article, plaintiffs could not expect to gain more than nominal damages based on the addition to the article of the misstatement relating to federal safety standards.").

The incremental harm doctrine "measures the incremental harm inflicted by the challenged statements beyond the harm imposed by the rest of the publication. If that harm is determined to be nominal or nonexistent, the statements are dismissed as not actionable." Herbert v. Lando, 781 F.2d 298 (2d Cir.), cert. denied, 476 U.S. 1182, 106 S.Ct. 2916, 91 L.Ed.2d 545 (1986); Jewell v. NYP Holdings, Inc., 23 F.Supp.2d 348, 388 (S.D.N.Y.1998)(under this doctrine, the court "compares the harm caused by non-actionable elements of an article to the harm caused by actionable portions and dismisses the latter when the difference is incremental").

Thus, in Herbert v. Lando, supra, 781 F.2d at 312, after determining that defendants were entitled to summary judgment with respect to nine of eleven alleged defamatory statements, the court dismissed the claims as to the remaining two statements because they conveyed "the same view" and were "simply an outgrowth of and subsidiary to" the ideas conveyed in the nine dismissed statements.

Although the United States Supreme Court has rejected the idea that the incremental harm doctrine is constitutionally required under the First Amendment, it expressly recognized that state courts are free to adopt the doctrine as a matter of state tort law. See Masson v. New Yorker Magazine, Inc., supra.

A few jurisdictions have now addressed the incremental harm doctrine. The Second Circuit has adopted it, see Herbert v. Lando, supra, and a federal district court in New York has concluded that New York would adopt it. See Jewell v. NYP Holdings, Inc., supra, 23 F.Supp.2d at 387-94.

Wisconsin has rejected it, see Maguire v. Journal Sentinel, Inc., 232 Wis.2d 236, 248, 605 N.W.2d 881, 888 (Wis.App.1999)("The doctrine of incremental harm ... goes to the question of whether a false statement damaged the plaintiff's reputation in light of the whole truth about other acts of the plaintiff"), as has the D.C. Circuit. See Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563 (D.C.Cir.1984). The Ninth Cireuit has concluded it has not been adopted under applicable state law. See Masson v. New Yorker Magazine, Inc., 960 F.2d 896 (9th Cir.1992).

The jurisdictions that have rejected the incremental harm doctrine have sometimes intertwined the doctrine with the "substantial truth doctrine," and the "libel-proof plaintiff" doctrine, which precludes a plaintiffs recovery for libel if his or her reputation up to the time of the challenged publication has been "irreparably strained by prior publications." Liberty Lobby, Inc. v. Anderson, supra, 746 F.2d at 1568. See Kite, Incremental Identities: Libel-Proof Plaintiffs, Substantial Truth, and the Future of the Incremental Harm Doctrine, 73 N.Y.U. L.Rev. 529 (1998); Note, The Libel-Proof Plaintiff Doctrine, 98 Harv. L.Rev. 1909 (1985).

The libel-proof plaintiff doctrine has been criticized because the fact that an individual has done one bad thing does not necessarily mean the individual has done another entirely separate bad act. See Liberty Lobby, Inc. v. Anderson, supra, 746 F.2d at 1568 ("[The theory must be rejected because it rests on the assumption that one's reputation is a monolith, which stands or falls in its entirety [elven the public outcast's remaining good reputation, limited in scope though it may be, is not inconsequential").

Here, however, Denver Publishing has not contended that Tonnessen is a "libel-proof plaintiff." Nor does this case concern allegations of two separate acts. Therefore, it does not present the concerns raised in Liberty Lobby, Inc. v. Anderson, supra.

Rather, the reporting by Denver Publishing was of two separate repetitions of an identical accusation: that Tonnessen forced his wife to have sex with him. Tonnessen «as not being accused of one crime by the wife and another by the sister, or even of committing two separate sexual acts. In our view, the harm to Tonnessen's reputation, which he has alleged arose from the wife's rape allegation, flowed from and was caused by the reporting of her in-court testimony. There is no suggestion anywhere that the sister had any independent knowledge of what actually occurred between Tonnessen and the wife, and the newspaper's act of adding the sister's words about what the wife had told her did not do more than convey the same allegation contained in the privileged, non-actionable statement.

We consider the analysis in Herbert v. Lando, supra, to be applicable and conclude that the reporting of the sister's words is not actionable as a matter of law under this limited application of the incremental harm doctrine. The sister's words merely imply the same view and are simply an outgrowth and subsidiary to those claims upon which it has been held there can be no recovery, and any damage attributed to the repetition of the wife's rape allegation through the sister's statement would be nominal.

To hold otherwise would allow Tonnessen to do indirectly what he could not do directly; that is, to make Denver Publishing Hable for accurately reporting the wife's in-court statement. See Daly, The Incremental Horm Doctrine: Is There Life After Masson?, 46 Ark. L.Rev. 871, 385-86 (1993).

Accordingly, we conclude the trial court did not err in dismissing Tonnessen's defamation claim against Denver Publishing.

In view of this disposition, we need not consider whether the statements were otherwise privileged under the First Amendment as Denver Publishing maintains.

II. Invasion of Privacy

Tonnessen next contends the trial court erred in finding that the facts published by Denver Publishing were already in the public domain, and thus could not support a claim for invasion of privacy. We disagree.

The right of privacy may be invaded in several different ways, including unreasonable publicity given to another's private life. Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371 (Colo.1997).

In order to prevail on a claim for invasion of privacy through unreasonable publicity given to one's private life, the following requirements must be met: (1) the fact or facts disclosed must be private in nature; (2) the disclosure must be made to the public; (8) the disclosure must be one which would be highly offensive to a reasonable person; (4) the fact or facts disclosed cannot be of legitimate concern to the public; and (5) the defendant must have acted with reckless disregard of the private nature of the fact or facts disclosed. The disclosure of facts that are already public will not support a claim for invasion of privacy. Robert C. Ozer, P.C. v. Borquez, supra.

It is undisputed that the basic facts of Tonnessen's dissolution of marriage case had already been revealed to the public through intense media serutiny before publication of the articles at issue here. Hence, a requisite element of the tort is missing. Tonnessen, however, relies on the publication of the first names of his two minor children by another marriage. But, these facts were also already publicly available, and we agree with the trial court that they do not support his claim for invasion of privacy.

III. Outrageous Conduct

Tonnessen next contends the trial court erred in dismissing his claim for outrageous conduct. Again, we disagree.

Before permitting a plaintiff to present a claim for outrageous conduct to the jury, the trial court must rule on the threshold issue of whether the plaintiff's allegations of outrageous conduct are sufficient as a matter of law. Coors Brewing Co. v. Floyd, 978 P.2d 663 (Colo.1999).

Liability for outrageous conduct can be found only if the conduct is so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Coors Brewing Co. v. Floyd, supra.

The facts alleged in Tonnessen's complaint, accepted as true, indicate that Denver Publishing printed the names of his children and certain other facts and allegations concerning him. However, we have already concluded that the article was neither defamatory nor an invasion of privacy, and thus, printing it could not constitute outrageous conduct.

Finally, the complaint alleges that a reporter from the Rocky Mountain News attempted to get Tonnessen to violate the gag order that had been issued in the dissolution of marriage action, and had lied to several of his clients in an attempt to get the clients to talk to the reporter. However, these allegations, even taken as true, still do not meet the requirements of outrageous conduct. See Coors Brewing Co. v. Floyd, supra.

Because we conclude that reasonable people could not find the behavior to be beyond all possible bounds of decency, the trial court did not err in dismissing the outrageous conduct claim.

Judgment affirmed.

Judge KAPELKE and Judge CASEBOLT concur.