author: Judge CRISWELL.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robin V. TALLY, Defendant-Appellant.
    No. 97CA0362.
    Colorado Court of Appeals, Div. II.
    April 29, 1999.
    Certiorari Granted Aug. 28, 2000.

      Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John D. Seidel, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appel-lee.
    David F. Vela, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge CRISWELL.

Defendant, Robin Tally, appeals the judgment entered on a jury verdict finding him guilty of first degree murder. We affirm.

Defendant and his victim both commenced work with a cable television company at about the same time. During the succeeding year, however, defendant formed the impression that the victim was being favored over him, which he resented. In addition, his work deteriorated, and about one year after he was hired, defendant's employment was terminated.

Several months later, defendant discovered the victim making a service call in the area in which he lived, and he accosted her verbally, warning her that she was "in his territory." He later told his former supervisor that, if the victim was not kept off his "turf," he would "go to a higher level of security."

Several days later, defendant again found the victim making a service call in his neighborhood. He shot her three times with an automatic pistol; she fell on her back and was shot three more times.

Defendant then proceeded immediately to a local police station where he announced that he had just shot someone. Ultimately, he gave a detailed account of the killing, and the officers recovered the murder weapon from his car.

At trial, defendant's principal defense was that he was insane at the time of the offense. This defense was based upon expert opinion that, while defendant understood that killing was legally wrong, he believed that God had given him permission to kill the victim.

Pursuant to § 16-8-104.5, C.R.S.1998, a unitary trial before the same jury was held to determine both defendant's substantive guilt and the issue of his sanity. The jury found that he was sane and guilty of first degree murder, and the court entered judgment on that verdict.

I.

Defendant's mental competency to stand trial and related issues were the subject of several hearings in the trial court. Initially, following a court-ordered psychiatric examination and hearing, the court found that defendant was incompetent to proceed and ordered that he be committed to the Colorado State Hospital until restored to competency. Several months later, at the People's request, the court held a hearing to determine whether defendant should be forcibly medicated, after which the court authorized the State Hospital to do so.

Later, the trial court held another hearing to determine if defendant had been restored to competency. Following that hearing, the court determined that he had been restored to competency, but that foreed medication was still required. Hence, it directed that defendant be returned from the State Hospital, but that he continue to receive medication during his pre-trial confinement and trial.

Based on this series of hearings and orders, defendant asserts that the trial court erred in requiring his involuntary medication and in determining that he had been restored to competency. We reject both assertions.

A.

Defendant's contention that the court erred in requiring his foreed medication is grounded upon his basic premise that forcing him to appear before the jurors in his medicated, rather than his natural, state caused them to be given a false impression of his true mental condition. The result, he asserts, was a violation of his due process and other constitutional rights. We disagree.

In Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992), the Supreme Court held that the forced administration of antipsychotic drugs to a defendant violates due process precepts absent a determination that such administration is medically appropriate and that there is an overriding justification for the use of such drugs. It suggested, however, that due process considerations will be satisfied if it is demonstrated that the administration of the drugs is medically appropriate and that, after consideration of less intrusive alternatives, it is determined that their use is essential to protect either the defendant's or other persons' safety.

Likewise, in Donaldson v. District Court, 847 P.2d 632 (Colo.1993), our supreme court authorized the involuntary administration of such drugs if, in an adversarial proceeding, the petitioning party establishes, by clear and convincing evidence, four factors, as follows: (1) the patient is incompetent to participate effectively in the treatment decision; (2) treatment by antipsychotic drugs is nee-essary to prevent a significant and likely long-term deterioration in the patient's mental condition or to prevent the likelihood that the patient will cause serious harm to the patient or to others in the institution; (8) a less intrusive treatment alternative is not available; and (4) the patient's need for treatment by antipsychotic medication is sufficiently compelling to override any bona fide and legitimate interest of the patient in refusing treatment.

Here, after an evidentiary hearing upon the People's initial request to medicate defendant involuntarily, the trial court found that: (1) defendant had previously been found to be incompetent; (2) he had become belligerent and had threatened to kill hospital staff members; (8) he was suffering from a delusional disorder that rendered him incompetent to participate effectively in any treatment decision and had refused to take medication voluntarily; (4) treatment by use of antipsychotic drugs was necessary to prevent a significant and likely long-term deterioration in the defendant's mental condition; (5) in the absence of such treatment, it was likely that he would cause serious bodily harm to others; (6) less intrusive treatment alternatives, such as verbal therapy and group counseling, had been attempted but had been unsuccessful; and (7) the medications could have serious side effects.

The expert testimony before the court at the time it made these findings was that the side effects of the antipsychotic drug involved, haloperidol, consisted of the possibility, with long term use, of the development of tardive dyskinesia, ie., the involuntary and abnormal movement of the lower face, including grimacing, panting, twisting of the head, and tongue protrusion. Likewise, the patient can develop extra-pyramidal symptoms with presentation similar to that seen in persons with Parkinson's disease, i.e., tremor of the tongue, fingers, legs and toes, as well as difficulty in initiating foot movement and arising from a sitting position.

There are drugs designed to alleviate these physical side effects, but there is no evidence that defendant exhibited any of these tremors or abnormal movements.

The drug affects the mental and emotional aspects of the patient by calming him or her and, ultimately, by having the patient become more aware of reality; it works to aid in removing the patient's delusions. However, there was no evidence that administration of this drug would affect defendant's ability to concentrate, would make him drowsy, or would otherwise present any adverse mental or emotional reactions (except those that might be associated with the physical side effects, if developed).

Evidence before the court at the time of the hearing on the People's motion supports the court's findings. In addition, those supported findings meet the due process requirements of Riggins v. Nevada, supra, as well as the first three requirements of Donaldson v. District Court, supra.

Further, the trial court's findings also support the conclusion that, consistent with Donaldson's fourth requirement, defendant's need for the required drugs was sufficiently compelling as to override defendant's pretrial interest in refusing treatment.

Several months after the entry of this order, the People asserted that defendant had been restored to competency, and a hearing upon this issue was held. The court concluded that he had been so restored, primarily as a result of his treatment with the antipsy-chotic drug. Hence, it ordered the parties to trial. It determined, however, that defendant could not remain in a competent state unless he continued to be treated with halo-peridol. Henee, it also directed his continued involuntary medication of this drug.

Prior to trial, defendant moved to have the court reseind its directive for continued medication. In doing so, however, he did not assert that the administration of the drug was interfering with his ability to recall, to understand, to relate, or to cooperate with counsel. Nor did he allege, at that time, that it was causing undesirable physical side ef-feets. His sole ground for the relief requested was his assertion that, after his removal from the State Hospital, the court no longer had authority to require his continued medication. The court denied this motion without comment. Defendant does not raise this issue in this appeal.

Riggins v. Nevada, supra, does not make clear the extent to which due process would allow the administration of an antipsychotic drug to a defendant with the sole aim of restoring one who is incompetent to competency so that he or she might be tried. While the court suggested that such a purpose "might" evidence an overriding state interest, it also specifically refused to determine "whether a competent criminal defendant may refuse antipsychotic medication if cessation of medication would render him incompetent at trial...." Riggins v. Nevada, supra, 504 U.S. at 136, 112 S.Ct. at 1815, 118 L.Ed.2d at 490. In addition, Justice Kennedy's special concurrence states a strong case for the proposition that forcible medication given solely for such a purpose would rarely be permissible.

Here, however, the record does not suggest, and the trial court's first order directing that defendant be medicated was not based upon the proposition, that administration of the drug was aimed at restoring defendant to competency. On the contrary, administration of the drug was specifically found to be required to prevent defendant from seriously harming himself or others and to prevent a further deterioration in his mental condition. And, those justifications remained valid even after the court determined that the drug had had the additional effect of restoring defendant to a mental state in which he was capable of understanding the nature and cause of the proceedings against him, of participating and assisting in his defense, and of cooperating with counsel. See § 16-8-102(8), C.R.S.1998.

Under these circumstances, we need not decide whether the forced administration of drugs is proper if the sole purpose of such administration is to restore a defendant to competency. We do hold, however, that if, as here, there are independent reasons for involuntary administration of drugs that continue to exist after a defendant is restored to competency, the fact that those drugs play a significant role in that restoration does not vitiate the finding of competency nor render inappropriate the continued administration of those drugs.

Further, we recognize the importance that the jurors' physical impression of a defendant may be to their determination of the issue of that defendant's insanity. We also recognize that the drug administered to defendant altered his "persona" and may have caused him to present himself to the jury in a mental state entirely different from his natural state. Here, however, the jurors were given substantial descriptive testimony both of his mental state at or about the time of the killing and how the antipsychotic drug worked upon him to change that mental state. Under these circumstances, we cannot conclude that forcing him to trial while the drug was working its effect upon him violated any of his constitutional rights. See Lawrence v. State, 265 Ga. 310, 454 S.E.2d 446 (1995); State v. Armstrong, 649 So.2d 683 (La.App.1994), rev'd on other grounds, 671 So.2d 307 (La.1996); State v. Baker, 245 Neb. 153, 511 N.W.2d 757 (1994).

We conclude, therefore, that the court did not err in entering its orders requiring that defendant be involuntarily medicated both before and during the trial.

B.

Defendant also contends that the trial court erred when it refused to instruct the jury that he had been under the influence of antipsychotic drugs during the trial. We reject this contention.

Throughout the trial, starting even with counsel's opening statement and continuing through the testimony of several witnesses, the jurors were made aware that defendant was being treated with drugs. The effect of the drugs upon defendant's behavior was also described to the jurors.

The instruction tendered by defendant would have informed them that he was receiving drugs against his will and that the medication "severely affects" defendant's mental functioning, as well as his outward appearance and demeanor. It also would have told them that his function and demean- or were "significantly altered from their normal condition and are drastically altered from their state" on the date of the offense.

The giving of this instruction would have been improper because it would have directed the jury to accept, as fact, part of a witness' testimony. See People v. Lybarger, 790 P.2d 855 (Colo.App.1989), rev'd on other grounds, 807 P.2d 570 (Colo.1991).

Here, the jury had been presented with evidence relating to defendant's medication and its effect upon his mental outlook and demeanor. It was for the jury, and not for the court, to evaluate this evidence. The court committed no error in refusing to give a further instruction upon the subject.

C.

Defendant next contends that the evidence before the court was insufficient to support its finding that he had been restored to competency. Again, we disagree.

Defendant bases his argument on certain testimony given by a psychiatrist on the staff of the State Hospital where defendant was committed. Specifically, the psychiatrist testified with respect to a report made by another staff member which observed that defendant was still not completely in touch with reality, had expressed a belief that people did not exist if he could not see them, and had stated that he thought there was a conspiracy against him. This reporting psychiatrist had also acknowledged that, at times, defendant expressed a belief that his victim was still alive.

In his other testimony, however, the expert witness explained that report and expressed the opinion that defendant was competent. He testified that defendant's delusional beliefs had subsided and that, for the most part, defendant had accepted reality. He also testified that defendant had done "quite well" on a competency assessment that had addressed two major areas: (1) whether defendant had a realistic appreciation of the charges against him and the consequences of those charges; and (2) whether he could work effectively with his counsel.

The test of competency is whether the defendant is suffering from such a mental disease or defect that he or she is rendered incapable of understanding the nature and course of the proceedings against him or her, of participating or assisting in the defense, or of cooperating with counsel. Section 16-8-102(8), C.R.S.1998.

Hence, while there is some evidence that would support a contrary finding, the court's finding of competency here is supported by expert opinion and, for that reason, cannot be set aside by us. See People v. MacCallum, 925 P.2d 758 (Colo.1996).

D.

Defendant also asserts the trial court erred when, during trial, it failed to re-evaluate defendant's competence to proceed. His primary contention is that the court should have made further inquiries as to his competency based on the statements he made with respect to the advisement given him pursuant to People v. Curtis, 681 P.2d 504 (Colo.1984). We reject this assertion.

During his Curtis advisement, which occurred on a Friday, defendant stated that he understood that it was his decision whether to testify and that, if he testified, he would be subject to cross-examination. He also stated that he was not going to testify and that his decision was a free and voluntary choice.

On the following Monday, however, defendant informed the court that he did not believe that his decision not to testify had been "altogether a voluntary one," because he had been on forced medication. Defendant said that he did not feel he could undergo direct examination and cross-examination and that, if he had not been taking medication, he might have made a different choice. The trial court simply noted its previous determination that defendant was competent; it did not further pursue the matter. Based solely on these statements, defendant argues that the trial court erred by failing to inquire further into his competence. We are not persuaded.

"[When the trial court has reason to believe that a defendant is incompetent to proceed, it must suspend the proceeding and determine the competency of the defendant." People v. Zapotocky, 869 P.2d 1234, 1237 (Colo.1994). However, neither due process nor a defendant's right to counsel requires more than a single fair hearing with respect to this issue. "After a final determination of competency, the trial court is not required to order an additional competency examination merely because a request is made." People v. Mack, 638 P.2d 257, 263 (Colo.1981).

People v. Bolton, 859 P.2d 303 (Colo.App.1993) involved a statement similar to that made here by defendant. There, the trial court, following an examination by a court-appointed psychiatrist, determined that defendant was competent. At his trial, however, defendant moved to proceed pro se and, during the trial court's advisement, stated that he had taken some antibiotics that had impaired his ability to think clearly.

On appeal, it was held that the trial court did not abuse its discretion by failing to suspend the proceedings and reconsider that defendant's competency. That was so because, given the court's previous determination of the competency issue, defendant's statement, standing alone, was not sufficient to raise a bona fide doubt as to his competence. See also People v. Davis, 851 P.2d 239 (Colo.App.1993) (trial court did not abuse discretion by refusing to order sixth psychiatric examination to determine defendant's competency).

Here, nothing beyond his ambiguous statement gave any indication that defendant's mental condition had deteriorated since the trial court's prior determination that he was competent. And, the very nature of that statement suggested that defendant was fully capable of understanding the proceeding and acting intelligently with respect to the advisement he had been given. Defendant's recognition that, if he had not been on medication, his reaction to the Curtis advisement might have been different did not suggest, in any way, that he was not then competent.

Further, by the time defendant made the statement, the trial proceedings had progressed almost to a conclusion, during which time the trial court had had a unique opportunity to observe defendant and his reactions to the proceedings. Given this opportunity and the court's prior determination that defendant was competent, we hold that the trial court did not abuse its discretion in not revisiting that question based solely on defendant's statement.

IL.

Defendant next contends that the trial court improperly denied his challenge for cause of a juror. We disagree.

During jury selection, a prospective juror indicated that he had a high opinion of police officers and that he might give more weight to the testimony of a police officer. He also indicated that, if he were in defendant's place, he probably would have a concern about having himself as a juror. Defendant argues that this juror's bias in favor of police officers required the court to sustain defendant's challenge for cause. We disagree.

A trial court must sustain a challenge for cause if there exists a state of mind in the juror evincing enmity or bias toward the defendant or the state. However, a court is not required to dismiss a juror simply because the juror has indicated a possible source of bias. People v. Drake, 748 P.2d 1237 (Colo.1988) (prospective juror's expression of some preconceived notion about case does not automatically mandate juror's exclusion}.

Rather, the question is whether it is possible for that person to set aside any preconceived notion and base his or her decision on the evidence and the court's instructions. People v. Drake, supra.

While the prospective juror here indicated that he had a high opinion of police officers, he also said that it would not be difficult for him to put aside that opinion; he could listen to the testimony presented on the issues, weigh it, use his common sense and judgment, and make a ruling in his own mind. He gave assurances that he could follow the law and give defendant the benefit of the presumption of innocence.

Trial courts are afforded broad discretion in ruling on challenges for ecause, and those rulings will be set aside only if an abuse of discretion is disclosed by the record. Carrillo v. People, 974 P.2d 478 (Colo.1999). Here, the record supports the trial court's determination that the juror would be able to render an impartial verdict based on the evidence presented at trial. Hence, the trial court did not abuse its discretion when it denied defendant's challenge for cause.

IIL

Defendant next contends that the trial court erred in refusing to suppress statements made by him during a three-hour videotaped interrogation. Again, we disagree.

After defendant came to the police station and announced that he had shot someone, he was frisked for weapons. During this procedure, he was questioned about his prior statement, but he was not advised of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court determined that defendant was in custody at that time, and because he had not been advised of his rights before he was questioned, the court suppressed those statements.

Thereafter, defendant was taken to an interview room where he was interrogated for about three hours. That session was videotaped, and a written transcript of that session was made.

The court refused to suppress the statements made during this session, finding that the totality of the cireumstances convinced it that defendant had voluntarily and knowingly waived his Fifth Amendment rights. j

Later, another investigator also interviewed defendant for another three hours, but without providing him with any additional Miranda advisement. The trial court concluded that defendant should have received another advisement before further interrogation in this second session, and it suppressed all statements made by defendant in that interrogation.

Hence, the statements at issue on this appeal are only those made by defendant in the first three-hour session. The focal point of defendant's argument is the exchange that took place between him and the interrogating officer at the commencement of that session. The transcript of this session discloses that, after identifying himself and another officer present by name and as detectives, the interrogator advised defendant that he had the right to remain silent; that anything he might say could be used against him; that he had the right to speak with an attorney and to have the attorney present during any questioning; that, if he could not afford an attorney, the court would appoint one for him free of charge; and that he could terminate the interview at any time.

Defendant responded, "I understand what you're saying." However, upon being specifically asked if he understood his "rights," he replied:

I understand what you're saying to me. I guess what it is, are you saying to me that I, that I should have an attorney present while you question me?

The interrogator told defendant that "that's not what I'm saying." He re-advised defendant pursuant to Mirando and then asked him, "[Djo you wanna talk to us at this time?" Defendant responded:

Um, well the thing that I'm looking at later on is I wanna talk to you, but I also, I don't wanna have an attorney come to me and tell me ... this is not what I should've done.

The detective said that he could not control "what attorneys will tell ya." He also said that he wanted to know what went on; that he was sure that defendant also had questions for the detective; and he again asked, "So, will you talk to me?" Defendant said, "Yeah, I'll talk to you."

Relying on People v. Kleber, 859 P.2d 1361 (Colo.1993), defendant argues that the two references to attorneys made by defendant constituted an "ambiguous" request to have an attorney present, so that the detective was required to cease all questioning except that designed to clarify whether defendant was, in fact, requesting to be represented. Because the detective's further questioning went beyond this limited purpose, defendant asserts that his later statements should have been suppressed. In addition, defendant asserts that the detective's reference to defendant's wanting to ask questions made it appear that he could not do so unless he waived his rights, and that such advice constituted active misrepresentation to defendant so that any waiver was not knowingly made.

Considering the totality of the circumstances presented to it,; the trial court found that defendant made a knowing and voluntary waiver of his rights and concluded that there was no basis for suppression of the statements that are at issue here. We concur.

As a clarification and extension of the requirements adopted by it in Miranda, the Supreme Court in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), held that, if an interrogated suspect clearly makes known his request for a lawyer, all questioning must immediately cease.

In People v. Kleber, supra, our supreme court held that, under Edwards, if the suspect's statement with respect to an attorney is ambiguous and not a clear request for counsel, there can thereafter be only limited questioning designed to clarify whether the suspect is, in fact, requesting representation.

In Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), however, the Supreme Court concluded that, unless the suspect makes a clear request for counsel, questioning may continue. And, while it might be good police practice to attempt to clarify the meaning of a suspect's ambiguous reference to counsel, such clarification is not required.

Miranda and Edwards were decided under the Fifth and Fourteenth Amendments, and nothing either in Kieber or any other Colorado opinion has suggested that the limitation imposed in Kieber was mandated by any state constitutional requirement. Hence, to the extent that Kleber is inconsistent with Davis v. United States, supra, that state decision was necessarily overruled by Davis.

Therefore, if, as both parties to this appeal seem to agree, defendant's remarks about counsel were ambiguous, nothing prevented the detective from continuing his questioning, and his failure to ask questions designed to clarify defendant's intent cannot constitute a basis for suppressing his later statements.

Moreover, in passing upon the question whether a suspect's reference to counsel is ambiguous, we must pay deference to the trial court's factual determinations. People v. Romero, 953 P.2d 550 (Colo.1998). Here, while the court did not specifically address the question of the ambiguity of defendant's statement, it properly applied the "totality of the cireumstances" standard and found that defendant had voluntarily and knowingly waived his right to counsel. Implicit in that finding, of course, is a determination that defendant made no clear request for counsel.

Likewise, we agree that the references to an attorney made by defendant did not constitute a clear, unambiguous request for counsel under Edwards or Davis. His first statement was simply a question whether the detective was advising him to have counsel. His second statement was ambiguous; in the same sentence, he first professed a desire to speak with the detective but also expressed that he did not want to be criticized by a lawyer later. These statements, in our view, did not amount to the clear request for counsel that is required under Davis to mandate a cessation of questioning.

- Further, we cannot conclude, as a matter of law, that the detective's response to defendant's statement about counsel constituted a material misrepresentation.

We conclude, therefore, that the trial court's findings of fact are supported by the evidence and that it committed no error in refusing to suppress the statements at issue.

IV.

Defendant asserts that numerous errors occurred in the procedures used to determine his guilt of the charged offense and his affirmative defense of insanity. We reject all his assertions.

A.

Defendant's first assertion appears to be that § 16-8-104.5, C.R.S8.1998, which requires a unitary trial of both the substantive guilt issues and the question of sanity, could not be applied to him because, to do so, would violate the proscriptions against ex posto facto laws in U.S. Const. Art. I, § 10, and in Colo. Const. art. II, § 11, and his right to due process.

Substantially the same issues were considered in People v. Bislecki, 964 P.2d 598 (Colo.App.1998), and assertions similar to defendant's arguments here were rejected. We consider that opinion persuasive, and we adopt its analysis. See also Castro v. People, 140 Colo. 493, 346 P.2d 1020 (1959) (single trial of guilt and sanity issues would not violate defendant's due process rights or his right against self-incrimination).

B.

We also reject defendant's contention that his rights were violated by the introduction of evidence that he had refused to speak with a court-appointed psychiatrist.

Defendant first argues that, because the People have the burden of proving sanity, once a defendant presents some evidence that raises the issue, proof of sanity is an element of a defendant's guilt. Therefore, he says, his privilege against self-incrimination is implicated when evidence is admitted on the issue of sanity because it is an element of the offense. We are not persuaded.

Prior opinions clearly establish the distinction between the issues of sanity and guilt and how this distinction impacts upon a defendant's privilege against self-incrimination. See Lewis v. Thulemeyer, 189 Colo. 139, 538 P.2d 441 (1975) (the use of statements of defendant by psychiatrist in forming opinion as to the sanity of defendant does not impact upon the proof of guilt; it is limited to the issue of sanity); People v. Galimanis, 765 P.2d 644 (Colo.App.1988)(self-incrimination, by definition, applies to the admission of evidence to aid in establishing the guilt of the accused, not his sanity).

Defendant's argument that sanity is an element of guilt ignores the plain language that labels insanity as a defense. See § 16-8-108 and § 16-8-105.5, C.R.S.1998. Further, it is inconsistent with prior holdings that statements made by a defendant in a psychiatric exam may be admitted to prove a defendant's sanity, but not his guilt of the charged offense. Finally, the argument, if accepted, would not only preclude the People from using evidence of defendant's statements at a psychiatric examination in a unitary trial, it would also preclude them from using such evidence in the sanity portion of a bifurcated trial.

A defendant's sanity is not an element of the offense. Hence, a defendant's right against self-incrimination is not implicated when testimony is admitted only for the purpose of establishing defendant's sanity. |

C.

Defendant also challenges the constitutionality of § 16-8-106(2)(a), C.R.S8.1998, which allows defendant's non-cooperation with the examining psychiatrist to be admitted into evidence on the issue of such defendant's sanity. Specifically, he contends that the admission here of evidence of his refusal violated his right against self-incrimination. We disagree.

It has previously been recognized that a defendant's silence at a sanity examination can be used as evidence of his or her sanity. Johnson v. People, 172 Colo. 72, 470 P.2d 37 (1970)(defendant's non-cooperation in psychiatric examination may be admitted at separate sanity trial; expert may testify as to any conclusions he or she is able to draw from the conduct or actions of the defendant during such an interview); People v. Vialpando, 954 P.2d 617 (Colo.App.1997) (no error in permitting court-appointed psychiatrist to testify at the sanity and guilt trials as to defendant's non-cooperation during his mental status examination).

Unlike in either Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986) or People v. Galimanis, swpra, in which the defendants had been affirmatively assured that their silence could not be used against them, no such advice was given defendant here. On the contrary, he was specifically informed that, if he refused to cooperate with the examining physician, such non-cooperation could be referred to at his trial.

In addition, the jurors here were instructed that they could consider defendant's refusal to speak with the examining psychiatrist only in considering defendant's mental state and for no other purpose.

Given these circumstances, we conclude that § 16-8-106(2)(a) is not unconstitutional, either on its face or as it was applied to defendant here.

D.

In related arguments, defendant asserts that the trial court erred both in refusing to admit evidence that defendant refused to speak with the examining psychiatrist only because of advice he had received from counsel and in its refusal to instruct the jury to that effect. We reject both assertions.

With respect to the court's refusal to instruct the jurors upon the subject, absent evidence of defendant's reason for his silence, an instruction would have been improper. And, even if such evidence had been received, any such instruction would have been improper as an inappropriate comment on the evidence. See People v. Lybarger, supra.

Further, the trial court concluded that any evidence respecting the reason for defendant's silence was irrelevant. We agree with this conclusion.

While evidence of defendant's refusal to cooperate in his psychiatric examination was admitted, the expert witness placed little, if any, weight upon that refusal in reaching his opinion that defendant was sane. Rather, his opinion was based upon a review of defendant's history and his observation of defendant during the trial.

Given the broad discretion that a trial court may exercise with respect to the admission of evidence, see People v. Lowe, 660 P.2d 1261 (Colo.1983), and the nature of the expert's testimony, we conclude that the court here committed no prejudicial error in refusing the proffered evidence.

V.

Defendant also claims that the trial court erred when it allowed a witness to express an opinion on defendant's sanity as of dates other than the date of the offense. We conclude that no error occurred.

A lay witness may express an opinion as to the sanity of another. The two significant requirements which must be met before such an opinion may be received are: (1) the lay witness had an adequate means of becoming acquainted with the person whose sanity is in issue; and (2) the contacts with the person in question must have been proximate in time to the alleged offense. People v. Medina, 185 Colo. 101, 521 P.2d 1257 (1974); People v. Galimanis, supra (trial court improperly excluded testimony of witness who had minimal contact with defendant in the three months immediately preceding the crime; witness should have been allowed to render opinion upon defendant's mental condition during the time the witness had more substantial contacts with defendant, subject to determination of relevancy). People v. Galimanis, 944 P.2d 626 (Colo.App.1997) (Galimanis II) (it is proper to inquire into the mental condition of the defendant both before and after the commission of the act).

In Galimanis II, the court held that the trial court properly exercised its discretion in excluding a psychiatrist's opinion with respect to defendant's legal sanity as of a date two years prior to the offense. The trial court there had permitted the psychiatrist to testify as to defendant's mental condition at that time, but had excluded the expert's opinion on defendant's sanity. The trial court's decision was upheld because such an opinion was not relevant and would have confused the jury.

Here, defendant's supervisor expressed his opinion that defendant was sane as of nine days before the killing. Even if his testimony, as defendant contends, also expressed an opinion that defendant was sane at an earlier date, that opinion referred to defendant's sanity only three months before the killing.

Given the proximity in time between the offense and the dates with respect to which the supervisor testified, we cannot conclude that the trial court abused its discretion in refusing to exclude this testimony.

VI.

Finally, defendant insists that the trial court committed prejudicial instructional error in refusing two of his tendered instructions relating to his affirmative defense of insanity. We conclude that the trial court properly refused both.

A.

Defendant first argues that the instruction given by the court with respect to "deific delusions" was inadequate and that it should have been supplemented by one tendered by him. We disagree.

Section 16-8-101, C.R.S.1998, requires that, to be legally insane, a defendant must be incapable of distinguishing right from wrong at the time of the commission of the act. The term "wrong" for this purpose is moral wrong, as distinguished from legal wrong. Further, "moral wrong" refers to an act measured by societal standards of morality rather than by a purely personal and subjective moral standard. People v. Serravo, 823 P.2d 128 (Colo.1992).

In this sense, the fact that the individual acts under the delusion that God is compelling the act, the so-called deific-decree delusion, "is not so much an exception to the right-wrong test measured by the existing societal standards of morality as it is an integral factor in assessing a person's cognitive ability to distinguish right from wrong." People v. Serravo, supra, 823 P.2d at 139.

Here, the court told the jurors, among other things, that, with reference to the defense of insanity:

'INCAPABLE OF DISTINGUISHING RIGHT FROM WRONG refers to cognitive inability, due to a mental disease or defect, to distinguish right from wrong as measured by a societal standard of morality, even though the person may be aware that the conduct in question is criminal....

Defendant sought an instruction that, among other things, would have told the jurors that:

If Mr. Tally committed the act under a delusion, caused by mental disease or de-feet, that God had given him permission to commit the act, he must be judged insane.

While the tendered instruction might properly have been given, we conclude that the instruction given by the court was proper and adequately informed the jurors of the issue to be decided by them. See People v. Ridenour, 878 P.2d 23 (Colo.App.1994) (no error to refuse tendered instruction if instructions given adequately cover subject).

B.

Defendant also contends that the trial court improperly rejected an instruction which would have informed the jury .that, following a verdict of not guilty by reason of insanity, any future determination as to whether defendant should be released would be made by the court and not by the Department of Human Services. Again, we disagree.

Jurors should be informed of the consequences of a finding that a defendant is insane, i.e., that such defendant will be committed to a mental institution until it is determined that he or she is no longer insane. However, the jurors should also be told that such information is given to them only so that they may know the consequences of any verdict of insanity and that such information should have no bearing upon their determination of a defendant's mental status. People v. Thomson, 197 Colo. 232, 591 P.2d 1031 (1979).

The trial court here gave an instruction meeting these criteria, but refused to amend the instruction to include information concerning what entity would determine whether sanity had been restored.

Again, while the giving of such an instruction would not have been improper, its refusal was, likewise, not improper. The instruetion given by the court adequately fulfilled the purpose of such an informational instruction.

The judgment is affirmed.

Judge PLANK and Judge KAPELKE concur.


source: Caselaw Access Project

author: Judge ROTHENBERG.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Shawn BISHOP, Defendant-Appellant.
    No. 98CA1290.
    Colorado Court of Appeals, Div. V.
    Aug. 5, 1999.
    Rehearing Denied Nov. 26, 1999.
    Certiorari Denied Aug. 21, 2000.

      Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Roger G. Billotte Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Paul Grant, Parker, Colorado, for Defendant-Appellant.
   Opinion by

Judge ROTHENBERG.

Defendant, Shawn Bishop, appeals the revocation of a deferred judgment and the entry of judgment of conviction and imposition of sentence on the original charged offense. We affirm.

Defendant entered a guilty plea on a charge of criminal attempt to obtain a controlled substance by fraud or deceit, a class six felony. He received a deferred judgment and sentence and, by stipulation, entered the First Judicial District's Adult Diversion Program (Diversion Program) for supervision during his two-year deferred sentence period. Under the stipulation, defendant agreed to comply with certain conditions imposed by the Diversion Program in exchange for his acceptance into the program.

Thereafter, the district attorney filed a motion to revoke the deferred judgment, alleging that defendant had failed to comply with several conditions. Following a hearing on the motion, the trial court revoked defendant's deferred judgment, entered judgment 'of conviction, and sentenced him to probation.

I.

Defendant first contends the Diversion Program is unauthorized by law and was created by the district attorney without constitutional or statutory authority. We disagree.

Section 16-7-408, C.R.8.1998, provides for deferred sentencing of defendants and states in part:

(1) In any case in which the defendant has entered a plea of guilty, the court accepting the plea has the power, with the written consent of the defendant and his attorney of record and the district attorney, to continue the case for a period not to exceed four years from the date of entry of a plea to a felony ... for the purpose of entering judgment and sentence upon such plea of guilty.... During such time, the court may place the defendant under the supervision of the probation department. (2) Prior to entry of a plea of guilty to be followed by deferred judgment and sentence, the district attorney ... is authorized to enter into a written stipulation ... [which imposes on the defendant, conditions] similar in all respects to conditions permuitted as part of probation. (emphasis added)

A trial court has the discretion to impose conditions of probation which it "deems reasonably necessary to ensure that the defendant will lead a law-abiding life and to assist the defendant in doing so." Section 16-11-204(1), C.R.S.1998. Trial courts also have the authority to impose "any other conditions reasonably related to the defendant's rehabilitation and the purposes of probation." Section 16-11-204(2)(a)(XV), C.R.8.1998. See People v. Burleigh, T27 P.2d 878 (Colo. App.1986) (§ 16-11-204(2) lists some conditions of probation that a trial court may impose but does not restrict it from imposing other reasonable restrictions).

In People v. Method, 900 P.2d 1282, 1284 (Colo.App.1994), a division of this court held that trial courts have the authority to order defendants to be supervised by a Diversion Program as a condition of their deferred judgments, and stated: "[I)t is inherent in [§ 16-7-408] that the district attorney may supervise the conditions under which deferred judgment [is] granted."

We view People v. Method, supra, as fatal to defendant's contention that the Diversion Program is unauthorized.

II.

We also reject defendant's next contention that the Diversion Program constitutes an unconstitutional delegation of power to the district attorney because there are inadequate standards or guidelines governing the Diversion Program and its supervision by the district attorney.

It is presumed that a statute enacted by the General Assembly comports with constitutional standards; thus, a party challenging the constitutionality of a statute bears the burden of establishing its unconstitutionality. People v. Lowrie, 761 P.2d 778 (Colo. 1988).

The Colorado Constitution divides the powers of government into three departments: the legislative, executive, and judicial. See Colo. Const. art. III. The legislative power of the state is vested in the General Assembly. Colo. Const. art. V, § 1. See also People v. Holmes, 959 P.2d 406 (Colo.1998).

The "nondelegation doctrine" is rooted in the constitutional separation of powers and prohibits the General Assembly from delegating its legislative power to another department of government or person. The General Assembly does not improperly delegate its legislative power, however, when it describes what job must be done, who must do it, and the scope of that authority. See People v. Holmes, supra (a reviewing court's task is to examine the standards and safeguards associated with the operation of a statute to determine whether nondelegation doctrine has been violated).

Colo. Const. art. III provides that:

[Nlo person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.

Probation and deferred sentencing are creatures of statute and the terms of probation are derived from the statute. Thus, any conditions imposed as terms of probation must be authorized by the General Assembly. See People v. Gore, TiA P.2d 877 (Colo.1989). See also § 16-11-204, C.R.S. 1998 (discussing conditions of probation). Further, § 16-7-408(2), C.R.S.1998, which authorizes deferred prosecution and sentencing, provides that the conditions imposed in a stipulation for a deferred judgment and sentence shall be similar in all respects to conditions permitted as part of probation.

Here, as the trial court observed, the conditions of defendant's deferred judgment and sentence fall within the statutory provisions authorized for probation under § 16-11-204. And, § 16-7-408 does not delegate to the probation department or any other supervising agency the legislative power to go beyond these statutorily authorized terms and conditions.

We therefore conclude that, because the probation statutes set forth adequate guidelines for imposing conditions of probation and provide adequate standards and safeguards for imposing conditions of deferred judgment, the Diversion Program does not constitute an unconstitutional delegation of power to the district attorney.

IIL

Defendant also has suggested that the operation of the Diversion Program is unconstitutional as applied because revocation of probation has been virtually automatic in cases in which the Diversion Program has rejected a participant. However, the partial record before us contains no evidence that would allow us to reach that conclusion.

It is the duty of a defendant appealing a judgment of conviction to provide those portions of the record necessary to substantiate his claims on appeal. Absent such a record, appellate courts must presume that the actions of the trial court were correct. People v. Rollins, 759 P.2d 816 (Colo.App.1988).

While the Diversion Program Council (Council) does have the power to terminate a client from its program, a revocation of a defendant's deferred judgment is not automatic. Under § 16-7-408(2), the defendant first must be given notice of the specific allegations of program violations followed by an opportunity to be heard before the district court, and thereafter, the allegations must be proven by a preponderance of the evidence. See People v. Berquist, 916 P.2d 629 (Colo.App.1996).

Here, defendant was afforded a hearing before the trial court for such determination. However, on appeal defendant has only provided a partial transcript of that hearing which included his argument to the court that the diversion program was an illegal entity.

In support of that argument, defendant presented the deposition testimony of one witness, the director of the Diversion Program. Nowhere in her limited testimony does she suggest that the Program, rather than the court, determines whether revocation would occur. Nor is there any evidence about the percentage of cases in which revocation of a deferred judgment or probation follows or does not follow a participant's removal from the Diversion Program.

Thus, there is no basis on this record from which we may conclude that the operation of the Diversion Program is unconstitutional as applied.

IV.

Given our conclusions that the trial court was authorized to impose supervision by the Diversion Program as a condition of deferred judgment and that the probation statutes provide adequate standards for such supervision, we also reject defendant's related contention that supervision by the unlawful Diversion Program violated his Fourth Amendment right to be secure in his person against an unreasonable seizure.

v.

The defendant next contends that, because the Diversion Program is unconstitutional, the trial court lacked jurisdiction to revoke the deferred judgment. However, because we have rejected his constitutional attack, we similarly reject this related argument.

Defendant was supervised by the Diversion Program, but remained subject to the court's continuing jurisdiction to impose sentence for the original offense if he violated the conditions of the deferred judgment. See People v. Method, supra; § 16-1-403(2) (stipulation concerning deferred judgment shall specifically provide that "upon a breach by the defendant of any condition ... the court shall enter judgment and impose sentence upon [defendant's] guilty plea.").

VI.

Finally, we reject defendant's contention that revocation of his deferred judgment violated his right to due process of law.

Persons alleged to have violated a condition of deferred sentence are not entitled to the full panoply of constitutional guarantees available to one who has not yet pled guilty to a crime. However, consistent with principles of due process, such persons must be given adequate notice of the alleged violations or charges against which they must defend. People v. Berquist, supra. See § 16-7-403(2).

Here, defendant was given proper notice of the alleged violations of the conditions of his deferred judgment and was afforded a hearing by the trial court. Accordingly, we conclude that his due process rights were not violated.

Judgment affirmed.

Judge TAUBMAN and Judge ROY concur.


author: Justice ERICKSON.

text:
    Jeff MANGONE, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. U-HAUL INTERNATIONAL, INC., a foreign corporation; and U-Haul Co. of Colorado, a Colorado corporation, Defendants-Appellees.
    No. 98CA1008.
    Colorado Court of Appeals, Div. III.
    Sept. 16, 1999.
    Rehearing Denied Nov. 4, 1999.
    Certiorari Denied Sept. 5, 2000.
    Norton Frickey & Associates, Leif Garrison, Robert B. Carey, Colorado Springs, Colorado, for Plaintiff-Appellant.

      Perkins Cole LLP, B. Lawrence Theis, Mary Beth Searles, Denver, Colorado, for Defendants-Appellees.
   Opinion by

Justice ERICKSON.

In this class action, plaintiff, Jeff Mangone, on behalf of himself and all others similarly situated, appeals the limited dismissal of certain claims entered in favor of defendants, U-Haul International, Inc., and U-Haul Co. of Colorado (collectively U-Haul). We affirm in part, reverse in part, and remand for further proceedings.

When renting vehicles U-Haul offers "Safe-Move" and "SafeTow" to customers. Safe-Move is a trademark registered protection package that provides damage coverage to the vehicles that its customers rent and their cargo, and provides medical and life insurance protection to the lessee. Also included in this package is a collision damage waiver that relieves customers of any lability for accidental damage to the rental vehicle.

Similarly, SafeTow, another trademark registered service, relieves the lessee of any damage to a rented tow bar, tow dolly, or auto transport trailer, provides medical and life coverage to the lessee and his or her passengers, and covers accidental damage to the lessee's towed vehicle.

Plaintiff rented a small cargo van and tow dolly, and was charged $70 for SafeMove and $40 for SafeTow. Thereafter, he brought this class action claiming that U-Haul had engaged in deceptive trade practices in violation of §§ 6-1-105(1)(e), 6-1-105(1)(u), and 6-1-105(1)(z), C.R.8.1998, of the Colorado Consumer Protection Act (CCPA), and civil conspiracy. Pursuant to C.R.CP. 12(b)(5), U-Haul then filed this limited motion to dismiss plaintiffs claim based on § 6-1-105(1)(z). The trial court granted plaintiffs motion and this appeal followed.

I.

A.

Plaintiff contends that the trial court erred in determining that the collision damage waiver components of SafeMove and Safe -Tow are not insurance. We conclude that due process considerations prohibit imposition of liability under § 6-1-105(1)(z).

The record does not include a copy of the purported insurance documents and only de-seriptions of the protection packages are before us.

A CRCP. 12(b)(5) motion to dismiss a complaint for failure to state a claim upon which relief can be granted tests the formal sufficiency of the complaint. In evaluating a motion to dismiss under C.R.C.P. 12(b)(5), all averments of material fact must be accepted as true and the allegations of the complaint must be viewed in the light most favorable to the plaintiff, Trial courts and an appellate court apply the same standard in evaluating motions to dismiss. Dorman v. Petrol Aspen, Inc., 914 P.2d 909 (Colo.1996).

Plaintiff's complaint alleged, as pertinent here, that by selling collision damage waivers without an insurance license, defendants had violated the Colorado Consumer Protection Act, § 6-1-101, et seq., C.R.S.1998. At this time the issue whether a collision damage waiver is "insurance" has not been decided in Colorado. See United States Fidelity & Guaranty Co. v. Budget Rent-A-Car Systems, Inc., 842 P.2d 208 (Colo.1992). Hence, defendants moved to dismiss this claim as it relates to the collision damage waiver element of the products sold. Defendants argued that, because the issue had not been decided, it would be a violation of defendants' due process rights to hold them responsible for selling collision damage waivers without a license to sell insurance.

The trial court agreed with defendants. It held that defendants could not be held to know that a collision damage waiver was an insurance contract; therefore, it dismissed that portion of the claim.

Thus, even though plaintiff postures his first issue on appeal as "whether the trial court erred in determining that the collision damage waiver components of SafeMove and SafeTow are not insurance," that issue was not decided by the trial court. Therefore, that issue is not presented by this appeal. See Committee for Better Health Care v. Meyer, 830 P.2d 884 (Colo.1992) (an appellate court may consider only issues that have actually been determined in the first instance by a trial court or agency). Instead, the issue is whether the trial court correctly determined that due process concerns prohibited imposing liability for selling collision damage waivers without an insurance license.

The CCPA requires a person or entity to acquire "all governmental licenses or permits required to perform the services or to sell the goods, food, services, or property" at issue. See § 6-1-105(1)(@), C.R.S.1998. Similarly, other statutes require persons selling insurance to obtain licenses therefor. See § 10-2-401, C.R.S.1998.

When, as here, a regulatory statute imposes a criminal or civil sanction, due process requires that the statute make reasonably clear to those intended to be affected what conduct lies within its scope. See People v. Ro'Mar, 192 Colo. 428, 559 P.2d 710 (1977). Thus, a statute that either forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and might differ as to its application violates due process. See People v. Ro'Mar, supra.

Here, the Consumer Protection Act does not provide notice of any requirement to obtain a license to sell collision damage waivers. Notice is only given that it is a violation of the Act to fail to obtain "all governmental licenses or permits required."

Consequently, because no statute or appellate decision has defined "insurance" to include collision damage waivers, see United States Fidelity & Guaranty Co. v. Budget Rent-A-Car Systems, Inc., supra, and the Colorado Supreme Court has declared that the issue of whether a collision damage waiver is insurance has not been resolved, we conclude that the trial court correctly held that plaintiff could not recover on his claim that the defendants violated the licensing requirement.

B.

Plaintiff, for the first time on appeal, contends that defendants should be equitably and/or judicially estopped from claiming that their SafeMove and SafeTow protection packages are not insurance. However, plaintiff did not raise this issue before the trial court, and the issue was not properly preserved for appellate review. See Public Service Co. v. Willows Water District, 856 P.2d 829 (Colo.1993) (an issue is not properly preserved for appellate review if it is not presented to the trial court and is raised for first time on appeal).

IL.

Even if collision damage waivers are not insurance, plaintiff contends that the Safe-Move and SafeTow packages are indivisible and, therefore, their cost must be included in plaintiff's damages under the Consumer Protection Act. We conclude that the cost of the collision damage waivers should not be excluded from plaintiff's remaining claims.

Here, the trial court found that no damages could be recovered on the waiver issue under the facts and state of the law and, therefore, excluded that portion of the Safe-Move and SafeTow purchase price from plaintiff's damages.

Plaintiff, however, alleged that U-Haul also violated § 6-1-105(1)(e) of the Consumer Protection Act because it knowingly made false representations about the characteristics, uses, and advantages of SafeMove and SafeTow, and that it failed to disclose or misrepresented information critical to his decision to purchase the two services and induced him to purchase these products in violation of § 6-1-105(1)(u).

Since these allegations relate to the collision damage waiver and are independent of plaintiff's claim pursuant to § 6-1-105(1)(2), and were not challenged by U-Haul's motion to dismiss, we conclude that plaintiff's damages must be measured by the full cost of the SafeMove and SafeTow packages.

Thus, although plaintiff cannot recover damages under his § 6-1-105(1)(z) claim, the trial court erred in excluding that portion of the purchase price related to collision damage waivers from plaintiffs non-insurance claims pursuant to §§ 6-1-105(1)(e) and § 6-

Accordingly, that part of the judgment dismissing plaintiffs claim pursuant to § 6-1-105(1)(z) is affirmed, that part of the judgment excluding from plaintiff's damages that portion of the SafeMove and SafeTow purchase price related to the collision damage waiver is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.

Judge NEY and Judge CASEBOLT concur.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 5(3), and § 24-51-1105, C.R.S.1999.


author: CAROL M. HANSEN, Vice-Chief Judge:

text:
    2000 OK CIV APP 59
    WESTERN STAR FINANCE, INC., Plaintiff/Appellant v. Daniel WHITE and Suzan White, Defendant/Appellees, and Chaser Truck & Diesel, Inc., Stillwater National Bank & Trust Co., and Triad Bank, N.A., Defendants
    No. 93709.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    March 31, 2000

      Andrew R. Turner, David H. Herrold, Tulsa, Oklahoma, For Plaintiff/Appellant.
    Patrick O'Conner, Tulsa, Oklahoma, For Defendant/Appellees.
   OPINION

CAROL M. HANSEN, Vice-Chief Judge:

11 Plaintiff/Appellant, Western Star Finance, Inc. (Lender), seeks review of the trial court's order granting rehearing and new trial to Defendant/Appellees, Daniel White and Suzan White, and vacating Lender's summary judgment. We affirm because the record before the trial court established the existence of issues of material fact.

T2 Lender sued Chaser Truck & Diesel, Inc. (Chaser), on a note and joined the Whites as guarantors. It named other entities as having interests in the collateral, but later dismissed those entities without prejudice. After Lender obtained summary judgment against Chaser, it moved for summary judgment against the Whites. The Whites objected and filed their own motions for summary judgment against Lender, asserting Daniel White did not sign the guaranty in connection with the defaulted loan, there was no consideration for his guaranty, and Suzan White's guaranty was obtained in violation of the Equal Credit Opportunity Act. The trial court denied the Whites' motions on May 17, 1999. It granted Lender's motion on June 18, 1999. The Whites moved for new trial and reconsideration and requested a hearing. Lender objected. After a hearing, the trial court granted the Whites' motion and vacated the summary judgment.

138 Lender appeals, contending the trial court erred in granting new trial and vacating Lender's summary judgment by (1) considering late-raised, purported factual issues despite the existence of sufficient evidence to support the summary judgment, (2) considering parol evidence, and (8) misconstruing the Equal Credit Opportunity Act. We will review the trial court's denial of summary judgment de movo to determine whether there is substantial controversy as to any material fact and whether one party is entitled to judgment as a matter of law. All conclusions and inferences drawn from the evidence must be viewed in the light most favorable to the party opposing the motion. Even if the basic facts are undisputed, summary judgment should be denied if reasonable persons might reach different inferences or conclusions from the undisputed facts. Bird v. Coleman, 1997 OK 44, 939 P.2d 1123, 1127. The trial court may exercise discretion to change its determination of a summary judgment motion by granting new trial "unless it clearly appears that the court erred in some pure, simple and unmixed question of law, or acted arbitrarily or capriciously." Steiger v. City Nat. Bank of Tulsa, 1967 OK 41, 424 P.2d 69, 70.

I

{4 Lender first contends the trial court erred in granting new trial, thereby improperly allowing the Whites to supplement the record and raise fact issues late. It argues the Whites failed to controvert the facts in Lender's motion for summary judgment but instead sought their own summary judgment relief on their defenses. Lender argues a motion for new trial is not appropriate to fight summary judgment and the trial court should not have considered late-raised issues of fact to grant new trial. The Whites argue the fact issues discussed in their motion for new trial were not raised for the first time in that motion but had been submitted to the trial court in their own motions for summary judgment and incorporated by reference in their response to Lender's motion for summary judgment.

15 The trial court may grant a new trial to reexamine its decision on a motion for summary judgment if its decision is contrary to law. 12 O.S.Supp.1999 § 651(6). See, e.g., Malson v. Palmer Broadcasting Group, 1997 OK 42, 936 P.2d 940, 942, and Hunter's Modern Appliance, Inc. v. Bank IV Oklahoma, N.A., 1997 OK CIV APP 79, 949 P.2d 701, 704. The Whites did not supplement the record upon filing their motion for new trial, but relied on the record the parties actually presented on the motions for summary judgment. If Lender's motion for summary judgment should not have been granted in the first instance, the trial court did not abuse its discretion in granting the motion for new trial.

16 Lender argues the trial court's original decision granting summary judgment was supported by sufficient evidence. This is not our inquiry in reviewing a summary judgment. As the Court stated in Gray v. Holman, 1995 OK 118, 909 P.2d 776, 781,

The focus in summary process is not on facts a plaintiff might be able to prove at trial (Le., the legal sufficiency of evidence that could be adduced) but rather on whether the evidentiary materials as a whole (a) show undisputed facts on some or all material issues and (b) will support but a single inference in favor of a successful movant's quest for relief.

T7 Lender submitted evidence (1) it made four loans to Chaser from October through December of 1996, (2) Daniel White signed a security agreement and personal guaranty on September 10, 1996, (8) Suzan White signed a personal guaranty on October 5, 1996, and (4) Chaser defaulted on the loans. Daniel White submitted evidence (1) he signed a guaranty on March 21, 1996 to guarantee a "Floor Plan Loan" from New-court Financial to Chaser, (2) Newcourt cere-ated Lender as a wholly-owned subsidiary and planned to move its existing floor plan loans to Lender, (8) he signed the guaranty on September 10, 1996 in connection with the proposed transfer of the Floor Plan Loan to Lender and not in connection with the later line of credit loan, (4) the Floor Plan Loan was never transferred to Lender, (5) he sold his interest in Chaser to Chase Bales on September 30, 1996, and (6) on October 8, 1996, he refused to sign a guaranty in connection with the new line of credit loan from Lender to Chaser. Suzan White submitted evidence (1) Lender's line of credit loan proposal letter did not require a personal guaranty from her, (2) she was not an officer, director, shareholder, or employee of Chaser, (3) she did not fill out a loan form with Lender, (4) Lender did not check her credit record, and (5) she signed the guaranty at Lender's request.

[8 These evidentiary materials taken as a whole do not "support but a single inference in favor" of Lender's request for relief. A trier of fact could find Daniel White did not guarantee the new line of credit loan to Chaser. As discussed in Part III below, a trier of fact could find Suzan White was not an applicant or joint applicant under the Equal Credit Opportunity Act, and Lender did not rely on her property or ereditworthiness in making the loan but required her signature solely because she was Daniel White's spouse. Accordingly, the trial court properly granted new trial and vacated the summary judgment in favor of Lender.

II

19 Lender next argues the trial court erred in considering parol evidence to vary the explicit terms of the written guaranty. The language of a contract governs its interpretation if that language is clear and explicit. 15 0.S$.1991 § 154. The execution of a written contract supersedes the oral negotiations preceding or accompanying its execution. 15 0.8.1991 § 187. However, in Cinco Emterprises, Inc. v. Benso, 1994 OK 135, 890 P.2d 866, 878, the Oklahoma Supreme Court stated the guaranty statutes contemplate the need for extrinsic evidence where the guaranty agreement does not specify the consideration, at least where 15 § 323 does not apply.

{10 Section 823 presumes consideration for the guaranty where it is "entered into at the same time with the original obligation." (Emphasis added) The evidentiary materials indicate that WSF made no loan to Chaser "at the same time with" the guaranty upon which this action is based. WSF argues Cinco does not apply because the debt involved pre-existed the guaranty and the debt involved here arose after the execution of the guaranty. We are unable to see any significance in this difference. In neither case was the underlying obligation created contempo-rancously with the guaranty, and consideration is not presumed.

111 The guaranty language being construed in Cinco was similar to that in the instant case and was general in nature The creditor must rely on evidence extrinsic to the guaranty document to show consideration; likewise, the purported guarantor may offer extrinsic evidence to controvert that showing. The trial court did not err in considering parol evidence.

III

112 Lender's last contention is the trial court erred by misconstruing the Equal Credit Opportunity Act (Act), 15 U.S.C. § 1691 et seq. The Act prohibits creditors from discriminating against eredit applicants on the basis of sex or marital status. 15 U.S.C. § 1691(a)(1). Regulations promulgated under the Act prohibit a creditor from requiring "the signature of an applicant's spouse or other person, other than a joint applicant, on any credit instrument if the applicant qualifies under the creditor's standards of creditworthiness for the amount." 12 C.F.R. § 202.7(d)(1). If a creditor requires a spouse's signature in violation of the Act, a court may bar the creditor from recovering against the spouse who would have incurred no personal liability but for the violation. Integra Bank/Pittsburgh v. Freeman, 839 F.Supp. 326, 329 and 331 (E.D.Pa.1993)

1 13 Suzan White submitted evidence tending to prove she was not a joint applicant and Lender did not rely on her credit standing in making the loan. Lender submitted controverting evidence and argues the weight of that evidence. However, we must take Su-zan White's evidence as true and view all inferences drawn in the light most favorable to her. Therefore, we hold the trial court properly granted new trial and vacated the summary judgment in favor of Lender.

14 For the foregoing reasons, the order of the trial court is AFFIRMED.

15 ADAMS, J., and JOPLIN, J., concur.

      . Lender argues this matter should be reviewed under the standard in Fletcher v. Meadow Gold Co., 1970 OK 135, 472 P.2d 885, 888, where the Court stated, "If reasonable support by competent evidence appears then the trial court's action in granting a new trial constituted an abuse of discretion, since a trial court cannot exercise the prerogative to substitute its opinion for that of the jury when considering a motion for new trial." This matter does not involve a jury verdict; therefore, we will not determine whether there is competent evidence to support the trial court's order.

      . In Cinco, the language provided,
      The undersigned Guarantor(s) hereby requests the Lender to give and continue to give the above name Customer(s) credit, and in consideration for any credit given, the undersigned Guarantor hereby absolutely and unconditionally guarantees payment, on demand.... Guarantor agrees to pay ... any and all existing and future indebtedness and liabilities of every kind....

      . See also Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F.3d 28, 33 (3d Cir.1995), FDIC v. Medmark, Inc., 897 F.Supp. 511, 515 (D.Kan.1995) and Eure v. Jefferson Nat'l Bank, 248 Va. 245, 448 S.E.2d 417, 421 (1994).


author: STUBBLEFIELD, Acting P.J.

text:
    2000 OK CIV APP 58
    Dorrine B. MOORE and Larry H. Moore, husband and wife, Appellants v. ALBERTSON'S, INC., a Delaware corporation, Appellee
    No. 93676.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Jan. 4, 2000.
    Rehearing Denied Feb. 7, 2000.
    Certiorari Denied April 11, 2000.
    Rex K. Travis, Margaret E. Travis, Patricia M. Travis, Richard Morris, Oklahoma City, Oklahoma For Appellants.
    Kevin Driskill, Driskill & Jones, Oklahoma City, Oklahoma For Appellee.
   OPINION

STUBBLEFIELD, Acting P.J.

1 This is an appeal from summary judgment granted to a grocer defendant in a slip- and-fall action. The cause has been assigned to the accelerated docket pursuant to Supreme Court Rule 1.86, 12 O.S. Supp.1999, ch. 15, app. 1. After a review of the record on appeal and applicable law, we reverse.

[2 Plaintiffs Dorrine B. Moore and Larry E. Moore filed this action against Defendant Albertson's, Inc., seeking damages for injuries suffered by Mrs. Moore when she stepped in spilled milk, slipped and fell in Defendant's Edmond grocery store. Mr. Moore stated claims for loss of wages due to the necessity of caring for Mrs. Moore and for loss of consortium. He withdrew the latter claim at his deposition.

T3 Defendant admitted that Mrs. and Mr. Moore were in its store on the date of the claimed injury but denied all other allegations. It also contended that Mrs. Moore was negligent and that her negligence was greater than any of its alleged negligence.

{4 After some discovery, Defendant sought summary judgment based on the alleged undisputed facts: (1) Plaintiffs frequently shopped at and were familiar with that particular store before the fall; (2) The milk spill covered an area of approximately five feet by five feet; (8) The milk spill was visible to both Mr. and Mrs. Moore; and, (4) As a storekeeper, it had no duty to warn an invitee of an open and obvious danger.

T5 In their response to Defendant's motion, Plaintiffs cited Defendant's incomplete and inaccurate recitation of facts. They specifically cited as being inaccurate its assertion that Mrs. Moore could see the spilled milk before she fell.

T6 The trial court sustained Defendant's motion for summary judgment. Plaintiffs appeal.

17 Summary judgment is proper where there is no dispute concerning any material fact and where reasonable persons would not reach different conclusions from those facts. Crockett v. McKenzie, 1994 OK 3, ¶ 3, 867 P.2d 463, 464. Although a trial court considers factual matters in making a decision on whether summary judgment is appropriate, the ultimate decision is one of law; whether one party is entitled to judgment as a matter of law because there are no material disputed factual questions. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. On review of a question of law, our standard of review of the trial court's decision is de novo. Weeks v. Cessna Aircraft Co., 1994 OK CIV APP 171, ¶ 5, 895 P.2d 731, 733 (approved for publication by the Oklahoma Supreme Court). "De novo" means no deference, not necessarily a full rehearing or new fact finding. Bose Corp. v. Consumers Union of the United States, 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984).

8 The only evidence offered in support of the summary judgment motion consisted of excerpts from the depositions of Mr. and Mrs. Moore. Both of the Moores testified that they met at the Albertson's store after work, arriving in separate automobiles. They walked into the store and shopped together, At the checkout counter, Mr. Moore left the store with the bagged groceries while Mrs. Moore wrote a check and completed the transaction. Mr. Moore testified that, on his way out of the store, he noticed an Albert-son's employee with a sponge or rag crouched down attempting to clean up a milk spill. However, he testified that Mrs. Moore probably could not see the person from her vantage point. He also testified that he did not believe that he would have noticed the spill except for the crouched person cleaning the area.

T9 Mrs. Moore testified that after she finished paying for the groceries, she was leaving the store approximately two minutes after Mr. Moore. She stated that she had gone through the automatic doors into an outer entry area when she remembered she needed a receipt for an item she had bought as a business present. She went back through the doors and walked toward the customer service area.

1 10 Mrs. Moore testified that, as she approached the customer service area, she did not see anyone cleaning the floor, there were no orange warning cones in the area, and she did not see any spill on the "beigey, creamy sort of color" floor. She stated that she had to sidestep someone wheeling groceries out, and, as she moved to avoid running into them, her feet slipped out from under her and she fell onto one knee and then on to her posterior. Sitting on the floor, she realized that her clothes were becoming wet from a whitish thin liquid on the floor.

[11 Mrs. Moore further testified that, immediately after her fall, an Albertson's courtesy clerk came to her instructing her to sit still and wait for the manager. Then, another courtesy clerk and the manager arrived. This clerk told the manager that a gallon of milk had spilled and that he had tried to clean it up. Mrs. Moore testified that the manager commented that the courtesy clerk had not done a very good job. She also claimed the manager yelled to a courtesy clerk to stop another woman who was starting to walk across the area.

112 We agree with Defendant's assertion that it has no duty to warn an invitee of open and obvious dangers. "The invitee assumes all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant is [not] liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of ordinary care." Williams v. Tulsa Motels, 1998 OK 42, ¶ 6, 958 P.2d 1282, 1284, citing C.R. Anthony Co. v. Million, 1967 OK 231, ¶ 6, 435 P.2d 116, 117. However, we do not find that the proffered eviden-tiary materials undisputedly show this hazard to be open and obvious.

113 We first note that the evidentiary materials do not indicate one way or another whether the milk on the floor was obvious. Mr. Moore said he saw it but only because he saw the person crouched cleaning the area. Mrs. Moore testified that the floor was cream-colored and that she noticed the wetness on the floor only after she had fallen and her clothing was becoming wet from the substance on the floor.

114 The evidentiary materials also leave open the conclusion that the spill was incompletely or inadequately cleaned, leaving it wet and slippery but not so obvious. Furthermore, we conclude that the evidentiary materials also present cireumstances similar to those in Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, ¶ 11, 743 P.2d 682, 685 (approved for publication by the Oklahoma Supreme Court), wherein this court stated:

Herein the critical fact at issue is the nature of the defect. Was the pothole an open and obvious hazard? The "admissible evidence" indicates that if was not, because the automobile traffic obscured the danger and diverted Spirgis' attention away from it. Although the hazard was in an open place, it was also in a place intended for pedestrian traffic and vehicular traffic. According to the only evidence before the court, the automobile traffic diverted Spirgis' attention from the danger, rendering it neither open nor obvious.
In the similar case of Roper v. Mercy Health Center, 1995 OK 82, 903 P.2d 314, the Oklahoma Supreme Court, citing Spirgis, held that evidence that other pedestrians obscured a plaintiff's view of a hazard built into the middle of a walk way presented a jury question as to whether it was an open and obvious hazard. Id. at 112, 4, 903 P.2d at 315.

1 15 In this case, the evidentiary materials demonstrate that the accident happened in an area of customer traffic and that Mrs. Moore's attention was specifically on avoiding a collision with another customer pushing a grocery cart. As in Roper, this fact presents a jury question as to whether the hazard was open and obvious.

¶ 16 We conclude that reasonable persons in the exercise of fair and impartial judgment might reach different conclusions on consideration of the evidence. Spirgis, 1987 OK CIV APP 45 at 113, 743 P.2d at 685. Accordingly, the trial court's grant of summary judgment was erroneous.

117 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

1 18 REIF, J., and TAYLOR, J. (sitting by designation), concur.


author: CARL B. JONES, P.J.:

text:
    2000 OK CIV APP 57
    Richard A. BANKER, Petitioner, v. The OKLAHOMA ARMY NATIONAL GUARD and The Workers' Compensation Court, Respondents.
    No. 93474.
    Court of Civil Appeals of Oklahoma. Division No. 1.
    March 31, 2000.
    Bob Burke, Oklahoma City, Oklahoma, For Petitioner,
    Michael A. Mannes, Oklahoma City, Oklahoma, For Respondents.
   OPINION

CARL B. JONES, P.J.:

' 1 Petitioner, Richard A. Banker, brought this workers' compensation action after sustaining an injury to his left foot while attending military training with Respondent, Oklahoma Army National Guard (National Guard), at Fort Carson, Colorado. The order authorizing summer training camp was issued pursuant to 82 U.S.C. § 508. During summer training, Banker's pay and allowances were disbursed by the Defense Finance and Accounting Service of the United States of America. In accordance with federal military regulations, Banker received medical treatment and incapacitation pay from the federal government. Additionally, Banker was awarded a 10% disability and severance pay.

12 Banker initiated this action on December 5, 1997. This matter was originally brought against the Oklahoma Military Department. Banker amended his Form 3 to add the Oklahoma Army National Guard as his employer. Both the Oklahoma Military Department and the Oklahoma Army National Guard filed Motions to Dismiss for lack of jurisdiction. Banker failed to respond. This matter was heard on February 4, 1999. On August 3, 1999, the trial court issued its order finding: 1) the Oklahoma Military Department was dismissed as an incorrect party; and, 2) Banker was not an employee at the time of his injury as he was not performing duties pursuant to 44 O0.8.1991 § 72. Banker seeks review of this order.

13 Banker maintains he was injured while under State orders and is entitled to benefits under the Oklahoma Workers' Compensation Act. Whether an employee/employer relationship existed at the time of the injury is jurisdictional requiring an independent review by this Court. Coleman v. J.C. Penney Co., 1993 OK 21, 848 P.2d 1158, 1160.

T4 Relying on 85 O.S. Supp.1997 § 3, Banker asserts the military order sending him to summer training was a State order because the order contained the address of the Oklahoma Military Department, cited Oklahoma statutes which require employers to grant a leave of absence for such training, and was signed by an officer of the Oklahoma Army National Guard. The National Guard counters that the officer signing the order is a federally recognized officer who also happens to be Active Guard/Reserve. Additionally, Banker was being paid by the federal government and was not responding to a State order but to a federal order as the order stated that pursuant to 82 U.S.C. 503 Banker's unit would report to summer training camp.

T5 Title 82 U.S.C. § 508 provides that the President may authorize the Seecre-tary of the Army and the Secretary of the Air Force to provide participation of the National Guard independently or in conjunction with the Army and/or Air Force in exercises for instruction to prepare the National Guard for duty. The National Guard has a hybrid state-federal character depending upon what role the National Guard is playing when called to duty. Costner v. Oklahoma Army National Guard, 833 F.2d 905 (10th Cir.1987). Title 44 0.9.1991 $ 72 defines what state duty is as it provides that the Governor is authorized and required to order the National Guard to state duty in case of war, invasion, insurrection, breach of peace, or imminent danger. On its face, the order was issued pursuant to a federal statute and did not contain any language suggesting the Governor was calling the National Guard to state duty as defined in § 72. It is undisputed that Banker's salary, allowance and medical treatment were paid by the federal government. The place of the accident, Ft. Carson, Colorado, was under the exclusive control of the federal government. Under these facts, we find that Banker was not an employee under 85 O.S. Supp.1997 § 8 at the time of the accident. The Workers' Compensation Court's decision is sustained.

T6 SUSTAINED.

GARRETT, J., and BUETTNER, J., concur.


author: BUETTNER, Judge:

text:
    2000 OK CIV APP 48
    CENTURY INVESTMENT GROUP, INC., Plaintiff/Appellee/Counter-Appellant, v. BAKE RITE FOODS, INC., formerly Bake rite, Inc., a Delaware corporation, Defendant/Appellant, Everett R. Cook, an individual, and Laurence N. Strenger, an individual, Defendants/Counter-Appellees.
    No. 91,759.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    April 14, 2000.

      Sheldon B. Swan, Clell I. Cunninham, III, Dunn, Swan & Cunningham, Oklahoma City, for Plaintiff/Appellee/Counter-Appellant.
    Leif Swedlow, Richard M. Klinge, Richard M. Klinge & Associates, P.C., Oklahoma City, for Defendant/Appellant Bake Rite Foods, Inc. and Defendants/Counter-Appel-lees Everett R. Cook and Laurence N. Stren-ger.
   Opinion by

BUETTNER, Judge:

{1 Bake Rite Foods, Inc. (Bake Rite), a Delaware corporation doing business in Oklahoma, hired Century Investment Group, Incorporated (Century) to place and sell bonds for refinancing Bake Rite's corporate debt. Century demanded payments pursuant to 1994 and 1996 Underwriting Agreements. Bake Rite refused to pay and the lawsuit ensued. On June 8, 1998, Century presented its case in chief, then moved for directed verdict on the ground that Bake Rite had been suspended by the Oklahoma Secretary of State for failure to pay its Oklahoma franchise tax. Pursuant to 68 0.8.1991 § 1212(c), a suspended corporation is not permitted to sue or defend in Oklahoma courts. The trial court granted the motion. On June 22, 1998, Bake Rite moved to vacate the judgment and for new trial. Neither motion was supported by a certificate of good standing. The trial court denied the motions. In addition, the trial court granted summary judgment in favor of the individual corporate officers. We affirm.

SUSPENDED CORPORATION

12 In reviewing a grant of directed verdict, "[nleither demurrer to evidence nor motion for directed verdict should be sustained unless there is an entire absence of proof to show any right to recover." Fletcher v. Meadow Gold Co., 1970 OK 135, 472 P.2d 885, 888. "Both a demurrer and a motion for a directed verdict should be denied when there is a dispute of material fact or when reasonable minds could differ." Handy v. City of Lawton, 1992 OK 111, 835 P.2d 870, 872.

18 In the case at bar, it is undisputed that Bake Rite was suspended from its good standing status in January 1998. Century's motion for directed verdict was based on 68 0.8.1991 § 1212(c) which states in part:

Any corporation, association or organization whose right to do business shall be thus forfeited [failure to pay the franchise tax] shall be denied the right to sue or defend in any court of this state, except in a suit to forfeit the charter of such corporation, association or organization.

14 Bake Rite claims that the lack of capacity of a party to sue or be sued was waived because it was not objected to before trial The law provides that persons or corporations have the capacity to sue or be sued in this state except as otherwise provided by law. In this case, Section 1212(c) specifically denies capacity to sue or defend to a corporation which is not in good standing in Oklahoma. We do not view § 1212(c) as an affirmative defense which must be raised by a party or it is waived. Rather, § 1212(c) expresses the public policy of this state that when proper evidence is presented to a court, during any stage of the proceeding, that a corporate party has been suspended for failure to pay its franchise tax, then that party may no longer sue or defend the action.

Despite its many complaints on appeal, Bake Rite always held the power to remove its legal disability by becoming a corporation in good standing in Oklahoma. We have previously held that it was not an abuse of discretion to vacate a summary judgment where the motion to vacate is supported by a certificate of good standing. Sapulpa Travel Services, Inc. v. White, 1996 OK CIV APP 21, 915 P.2d 396, 400. Also see J.D. Simmons, Inc. v. Alliance Corporation, 79 F.R.D. 547, 548 (W.D.Okla.1978) (Defendant obtained reinstatement after filing its motion for summary judgment and shortly after plaintiff's motion to strike. "Once the taxes have been paid and the corporation reinstated, the purpose behind § 1212(c) has been met and no further penalty should be imposed.")

16 Bake Rite also argues that the trial court abused its discretion when it did not allow Bake Rite a recess or continuance to pay its tax and become reinstated. Bake Rite offers no authority that it had right to reinstate; rather, Bake Rite had the obligation to pay its franchise tax. Section 1212(c) does not provide for a grace period or a continuance,. All that the trial court was charged with at the time of the motion for directed verdict was a determination whether "the corporation shall in fact, be denied the right to sue or defend." Sapulpa Travel Services, Inc. v. White, 1996 OK CIV APP 21, 1 6, 915 P.2d 396

T7 Bake Rite argues that Century employed an ambush tactic when it moved for directed verdict. Century did ambush Bake Rite. However, under these facts, it is an ambush countenanced by the law. Bake Rite is charged with knowing its corporate status in Oklahoma, and Oklahoma law. Bake Rite could have cured its problem by paying its tax as soon as it was served with the lawsuit, or as soon as judgment was granted June 1998. Title 68 0.8.1991 § 1212(c) is more than an affirmative defense which must be plead and proven. It is a decision by the Legislature that a corporation which has been suspended "shall be denied the right to sue or defend in any court of this state." We feel constrained to hold that this statute may be enforced by bringing the suspension to the attention of the court with appropriate proof at any time during the proceeding., We affirm the trial court's order directing verdict in favor of Century.

SUMMARY JUDGMENT DISMISSING INDIVIDUAL SHAREHOLDERS

T8 Century appeals the trial court's order granting summary judgment in favor of Everett R. Cook and Laurence N. Strenger, dismissing them from the lawsuit. The sole claim against Cook and Strenger in the Petition is quantum meruit, ie., that they, along with Bake Rite, received the benefit of Century's services. "In cases such as this where defendant moves for a summary judgment and is not relying upon an affirmative defense, the defendant must show that there is no substautial controversy as to one fact material to plaintiff's cause of action and this fact is in defendant's favor." Runyon v. Reid, 1973 OK 25, 510 P.2d 943, 946. Once the defendant has produced such material, "... plaintiff then has the burden of showing that evidence is available which would justify a trial of the issue." Id.

19 In the case at bar, Century claimed that Cook and Strenger, officers and shareholders of Bake Rite were independently liable for the amounts owed on the 1994 and 1996 Underwriting Agreements. The trial court held that Cook and Strenger were not liable because they acted only as agents for Bake Rite and that "any contract entered into by the parties was between the plaintiff [Century] and Bake Rite Foods, Inc." Cook and Strenger produced documents showing that Bake Rite, the corporation, was the legal entity obligated on the 1994 and 1996 Underwriting Agreements. "... [Wle recognize that Oklahoma law treats a corporation as a legal entity separate from its shareholder, and ordinarily shields corporate officers, directors and shareholders from personal liability for corporate debt." Puckett v. Cornelson, 1995 OK CIV APP 72, 897 P.2d 1154, 1155.

110 Ceﬁtury failed to produce evidence in support of its claim that there was an enforceable contract between it and Cook and Strenger, or that the two corporate officers agreed to assume personal lability in case of default. "The intention of parties to a written contract 'is to be ascertained from the writing alone...." 15 0.8.1991 § 155. 'If the language of a contact is clear and without ambiguity, the Court is to interpret it as a matter of law.... Similarly, the existence of an ambiguity is a decision to be made by the Court." EHeskelt v. Heskett, 1995 OK CIV. APP 52, 896 P.2d 1200, 1202, citing Corbett v. Combined Communications Corp., 654 P.2d 616, 617 (Ok12.1982).

111 Nor did Century present sufficient evidence to raise a material fact issue on its claims of implied contract or unjust enrichment, or that the corporate veil should be pierced. The evidence submitted by Century does not support these claims.

112 There is no error in the trial court's order dismissing the two individual shareholders. ' There was no admissible evidence presented tending to show that they could have been legally liable for the corporate debt. 12 0.8. Supp.1998, Ch.2, App.1, District Court Rule 18.

MOTION TO DISMISS

{13 Due to the manner in which the substantive issues are resolved herein, we need not reach the issue in Century's motion to dismiss, which is therefore denied.

CONCLUSION

14 The order of the trial court directing verdict in favor of Century Investment Group against Bake Rite Foods, Inc. is AFFIRMED. The order of the trial court granting summary judgment in favor of Everett R. Cook and Laurence N. Strenger, dismissing them from the lawsuit, is AFFIRMED. Century Investment Group's motion to dismiss this appeal is DENIED.

JONES, P.J., and GARRETT, J., concur.

      . See 12 0.$.1991 § 2012(B) HOW PRESENTED. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

      9. Lack of capacity of a party to be sued; and 10. Lack of capacity of a party to sue.

      . 12 0.$.1991 § 2017(B) CAPACITY TO SUE OR BE SUED. Except as otherwise provided by law, any person, corporation, partnership, or unincorporated association shall have capacity to sue or be sued in this state.

      . According to the Petition in Error, Bake Rite was reinstated in Oklahoma as a corporation in good standing about three weeks after the post-trial motions (August 7, 1998).

      . It is because there is some evidence, which Century does not controvert, that Bake Rite has been reinstated that it may prosecute this appeal. Aviation Data Service v. A.C.E. Copier, 1992 OK CIV APP 41, 832 P.2d 31, 33.

      . Bake Rite also argued that it should not be held liable for its suspension because at some point it no longer did business in Oklahoma. We note that in its Answer, filed April 22, 1997, Bake Rite alleged that it was a Delaware Corporation with its principal place of business in Oklahoma. In its objection to Century's Motion for Summary Judgment, Bake Rite submitted the affidavit of Laurence Strenger, dated August 28, 1997, in which he averred that: "Subsequent to such sale, Bake Rite retained millions of dollars of assets and conducts business with them from its principal place of business in Oklahoma City, Oklahoma."

      . The trial court also noted at the April 17, 1998 hearing: 'The plaintiff said, well, Cook and Strenger told me on the telephone that they would make sure that I got paid for what I did. The trouble with that is, if they were acting as agents of the corporation they have no personal liability and I think an oral promise to pay the debt of another, to-wit Bake Rite Foods, is just not enforceable."

      . For support of an alleged oral contract, Century refers to an affidavit of its officer, James A. Tappan, Jr., and a letter from Tappan dated June 7, 1996. The underlying documents, taken at face value, do not reflect an agreement by Cook and Strenger to be personally liable for amounts owed by Bake Rite. At most, they reflect the officers' agreement, on behalf of Bake Rite, to see that the amounts were paid. Also see 15 0.S$.1991 § 136: "The following contracts are invalid, unless the same, or some note or memorandum thereof be in writing and subscribed by the party to be charged or his agent:

      2. A special promise to answer for the debt, default or miscarriage of another, except in the cases provided for in the article on guaranty. [15 0.$.1991 § 321 et seq.]