author: MANNHEIMER, Judge. COATS, Chief Judge,

text:
    STATE of Alaska, Appellant, v. Jolene FELIX, Pamela Fain, and Sigmund T. Buchanan, Appellees.
    Nos. A-7885, A-7886, A-7887.
    Court of Appeals of Alaska.
    July 12, 2002.

      Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Appellant.
    No direct appearance for Appellees.
    Quinlan Steiner, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, Amicus Curiae aligned with the Appellees.
    Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

In two of these three consolidated appeals, the district court granted prisoners' requests for a short-term release from prison so that they could attend to personal business. In the third appeal, the district court not only granted a prisoner two short releases from custody, but later ordered that the prisoner be released from custody so that she could spend the remainder of her sentence in a treatment facility.

In the first two cases (the appeals involving Pamela Fain and Sigmund T. Buchanan), the district court judges declared that they were modifying the prisoners' sentences by granting them "periodic imprisonment" under AS 12.55.015(a)(8). In the remaining case (the appeal involving Jolene Felix), the magistrate stated that he was not ordering periodic imprisonment; rather, he was modifying the prisoner's sentence "in the interest of fairness".

The State appeals all three cases. The State contends that, under the guise of granting "periodic imprisonment" or sentence modification, the district court has arrogated to itself the power to grant prison furloughs-a power that can only be exercised by the Classification Committee of the Department of Corrections. The Alaska Public Defender Agency, appearing as ami-cus curiae aligned with the appellees, argues that the district court was not granting furloughs but was instead exercising its lawful power to modify a criminal sentence, a power granted by Alaska Criminal Rule 85(b). The Public Defender Agency contends that each of the three prisoners demonstrated good cause for the court to alter their sentences by granting them periodic imprisonment-ie., splitting their prison terms into segments, separated by interludes of freedom.

In all three cases, the defendants have already enjoyed their periods of freedom and have completed their sentences. Thus, the State's appeals are moot. Howeyer, because the issue is important, and because the judicial actions that the State challenges are capable of repetition and likely to escape review if we insist on strict application of the mootness doctrine; we will reach the merits of the State's appeal.

Each of these three cases rests on different facts, so our analysis of each case is a little different. In general, though, we agree with the State that the district court has improperly interfered in matters that are, by law, entrusted to the discretion of the Department of Corrections.

The underlying facts of these three appeals

The Feliz appeal, No. A-7885.

Jolene Felix pleaded no contest to refusing to submit to a breath test and leaving the seene of an accident. On November 20, 2000, she was sentenced to a composite term of 240 days' imprisonment with 155 days suspended-85 days to serve.

One week later, on November 27th, Felix filed a motion asking the district court (1) to release her from custody for one day so that she could "obtain clothing for her child", and (2) to release her again "for a few days at Christmas". Felix's attorney labeled this motion a "request for periodic sentence".

Magistrate Patrick S. Hammers held a hearing on Felix's motion on November 29th. At that time, Felix withdrew her request to be released at Christmas. Instead, she asked to be released for a short time to arrange substance abuse treatment at the Old Minto Family Recovery Camp, a program run by the Tanana Chiefs.

Magistrate Hammers declared that he would allow Felix two days' liberty "to get her affairs in order". He stated that he was not exercising his power under Criminal Rule 35(b) to modify Felix's sentence to one of periodic imprisonment. Rather, he declared that he was adjusting Felix's sentence "in the interest of fairness" because he had told Felix at the original sentencing hearing that he would give her time to take care of her affairs, but had been unable to do so because Felix could not arrange a suitable third-party custodian at that time.

Felix had arranged a sereening appointment with the Tanana Chiefs for 1:00 pm. the next day (November 30th), so Magistrate Hammers ordered that her two days of liberty would begin at 8:00 a.m. on the 80th. The magistrate directed Felix to return to the Fairbanks Correctional Center and surrender herself to custody no later than 5:00 p.m. on December Ist. However, the magistrate placed stringent conditions on Felix's release: she was to remain within the immediate presence of a third-party custodian for 24 hours a day, and she was ordered not to drive a vehicle or drink alcoholic beverages. Thus, even though Felix was ostensibly granted an interval of liberty between periods of imprisonment, her release looked like traditional bail release-except that Felix was a sentenced prisoner with no right to bail.

On December 6th, Felix's attorney informed Magistrate Hammers that Felix had been accepted at the Old Minto Recovery Camp. He asked the magistrate to "release [Felix] to treatment"-ie., to allow Feliz to "serve out the balance of her sentence at [the Old Minto] residential [treatment] program". Again, Felix's attorney asserted that this release would amount to a sentence of "periodic imprisonment". The defense attorney argued that, under Criminal Rule 35(b), the court had the authority to modify Felix's sentence in this manner.

The State opposed Felix's request, arguing that Feliz was really seeking a treatment furlough and that only the Department of Corrections had the authority to grant furloughs.

Without resolving this dispute between "periodic imprisonment" and "furlough", Magistrate Hammers declared that he had the authority to modify Felix's sentence and require that the balance of it be spent at the Old Minto Camp. He then ordered that Felix be released for one day (between 7:00 a.m. on December 21st and 8:00 am. on December 22nd) so that she could obtain the physical examination required for entrance into the Old Minto Camp treatment program. Again, this one day's release resembled bail release: Felix was required to be in the continuous custody of a third-party custodian, and she was ordered to neither drive nor drink.

According to Magistrate Hammers's order, Felix was to return to custody at the Fairbanks Correctional Center from December 22nd until December 27th. Then, on the morning of December 27th, she would be released yet again-this time, to spend the remainder of her sentence at the Old Minto Recovery Camp. Felix was told that, following her release on the morning of the 27th, she was to go directly to the airport and travel to the Old Minto Camp. She was to supply the court with proof of her successful completion of the treatment program by February 283, 2001.

In early February, the district court received notification from the Tanana Chiefs that Felix had successfully completed the Old Minto Camp treatment program on January 31, 2001. Based on this news, Magistrate Hammers issued an amended judgement on February 14th. The amended judgement listed the same composite sentence, but added that Feliz "will be given day-for-day ered-it towards jail time for attending the Old Minto Recovery Camp and complying with their recommendations and treatment. Proof of compliance is to be provided to the court no later than February 23, 2001." (Sic: As just explained, Felix had already provided proof of compliance, and this is what prompted the magistrate to issue the amended judgement.)

The Fain appeal, No. A-7886.

Pamela M. Fain pleaded no contest to third-degree theft. On August 16, 2000, she was sentenced to 180 days' imprisonment with 150 days suspended-80 days to serve. She was allowed to delay commencement of this sentence until November 3rd.

On December 8rd, with 11 days left to serve, Fain asked the district court to exercise its authority under Criminal Rule 35(b) and modify her sentence by releasing her from custody on December 5th so that she could (1) keep a doctor's appointment on December 13th, and (2) arrange alternative child care for her son. (The woman who had been caring for Fain's son had become seriously ill.) Fain asked the court to allow her to remain at liberty for approximately six weeks, resuming service of her sentence on January 31st.

On December 5th, District Court Judge Winston Burbank rejected most of Fain's request. However, he did order Fain released from jail for four days to take care of her son. Fain was directed to surrender herself at the end of the four days and complete her sentence.

The Buchanan appeal, No. A-788".

Sigmund T. Buchanan pleaded no contest to two counts of reckless driving, failing to stop at the direction of a police officer, and resisting arrest. On November 8, 2000, he was sentenced to a composite term of 625 days' imprisonment with 540 days suspended-85 days to serve.

At the sentencing hearing, Buchanan asked the court to delay the commencement of his sentence for one day so that he could attend to personal affairs. Under AS 12.55.025(c), a sentencing judge has the power to delay the commencement date of a defendant's sentence, but District Court Judge Mark I. Wood was unwilling to release Buchanan without a suitable third-party custodian. He ordered Buchanan to begin serving the sentence immediately, but he told Buchanan's attorney that he would calendar a hearing on Buchanan's motion when a third-party custodian was found.

About two weeks later, Buchanan's attorney renewed the request for a one-day release from custody and, on November 28th, Judge Wood held a hearing on this matter. The State opposed Buchanan's release, arguing that it constituted an unauthorized furlough. But Judge Wood concluded that Criminal Rule 35(b) gave him the authority to modify Buchanan's sentence, turning it into a sentence of periodic imprisonment by interrupting it for one day. Judge Wood ordered Buchanan released to his proposed third-party custodian for three and a half hours on December 1st (from 1:80 p.m. until 5:00 p.m.). The judge ordered Buchanan not to drive or drink during this short release.

The definitions of "furlough" and "periodic imprisonment"

As explained above, the State argues that the district court illegally granted furloughs to the defendants, while the Public Defender Ageney argues that the district court lawfully modified the defendants' sentences, converting them to sentences of periodic imprisonment. To analyze these competing contentions, we must first define the terms "furlough" and "periodic imprisonment".

Defining "furlough" is the easier task because the Alaska Statutes contain a definition of this term. AS 38.30.901(9) states that a furlough is "an authorized leave of absence from actual confinement for a designated purpose and period of time". (See also 22 AAC 05.660(c)(2), which defines "furlough" as an "authorized absence of a prisoner from a facility for a designated purpose and period of time".)

The Department of Corrections can grant furloughs for a broad range of purposes. Indeed, AS 38.80.101(a) authorizes the Commissioner of Corrections to "adopt regulations governing the granting of prerelease and short-duration furloughs ... for any .;. rehabilitative purpose the commissioner determines to be in the interests of the prisoner and the public". Under this statute, furloughs can be granted to allow prisoners to:

(1) obtain counseling and treatment for aleohol or drug abuse;
(2) secure or attend vocational training;
(8) obtain medical or psychiatric treatment;
(4) secure or engage in employment;
(5) attend educational institutions;
(6) secure a residence or make other preparations for release; [or]
(7) appear before a group whose purpose is a better understanding of crime or corrections[.]

(The Commissioner 'has exercised this authority. See 22 AAC 05.316, which authorizes "prerelease or short-duration furlough[s] for [any] purpose listed in AS 33.30.101(a)".)

We encounter a more difficult time defining "periodic imprisonment" because the legislature has not enacted a definition of this term. AS 12.55.015, the statute which authorizes sentencing courts to impose periodic imprisonment, distinguishes between sentences of "continuous" imprisonment and sentences of "periodic" imprisonment. But this only illustrates the normal definition of "periodic".

According to the dictionary, "periodic" can mean either "occurring ... or recurring at regular intervals" or "occurring from time to time; intermittent". Thus, a sentence of "periodic" imprisonment necessarily entails periods of non-imprisonment; periodic imprisonment is, by definition, not continuous.

The legislative commentary to AS 12.55.015(a)(8) gives only one example of the kind of periodic imprisonment that the legislature had in mind: a judgement allowing a defendant "[to] serviel a prison term on weekends. From this example, and from the wording of AS 12.55.015(a)(8) itself (which speaks of a court's authority to impose a "definite term of periodic imprisonment"), one might infer that the legislature was thinking of terms of imprisonment that are divided into discrete blocks of time-each period of incarceration comprising a set or predictable number of days, separated by periods of freedom that are likewise of set or predictable length and that occur at set or predictable intervals.

Indeed, the only sentence of periodic imprisonment that this court has previously reviewed fit this model: the defendant was ordered to spend six months of each year in prison (from September ist to March 1st), allowing the defendant to be free during the remaining six months of the year to pursue commercial fishing or other seasonal employment.

The State takes this reasoning one step farther and suggests that, in order to distinguish a sentence of periodic imprisonment from a furlough, we should define "periodic imprisonment" to mean a sentence that entails at least three periods of incarceration and two intervening periods of release. But this inference is unwarranted. Assuming that the main criterion of periodic imprisonment is the predictability of the periods of incarceration and release, a court could satisfy this criterion by dividing the defendant's term of imprisonment into two portions (not necessarily equal portions) with one intervening period of freedom, so long as the two periods of incarceration and the interval of freedom were of set or predictable lengths (thus making the interval of freedom occur at a predictable time).

Aside from our rejection of the State's theory, we need not resolve the precise definition of "periodic imprisonment" to resolve the current litigation. As we explain in more detail in the remainder of this opinion, the actions of the district court in these three cases exceeded the court's lawful power to modify a previously imposed sentence, regardless of the exact definition of , "periodic imprisonment".

A sentencing court's power to modify a sentence after it is imposed

As explained earlier, the Public Defender Agency argues that the district court was authorized to interrupt the three defendants' sentences because, under Criminal Rule 35(b), a court is empowered to modify a defendant's sentence within 180 days after distribution of the court's written judgement. The Agency contends that the district court exercised this power in these three appeals, modifying the defendants' sentences to sentences of periodic imprisonment.

To analyze this argument, we must briefly examine the history of Criminal Rule 85(b).

Before 1978 (when the legislature enacted a sweeping revision of the Alaska criminal statutes), a former version of Criminal Rule 35(a) governed a court's power to modify a sentence. Under that former rule, a court could reduce a sentence within 60 days after it was imposed, or within 60 days after the defendant exhausted any appellate remedies. In mid-1978, the supreme court extended this time limit to 120 days.

But this power of sentence modification did not authorize courts to supervise the placement and treatment decisions made by the Department of Corrections. The Alaska Supreme Court clarified this issue in Rust v. State, 582 P.2d 134 (Alaska 1978), and in its opinion on rehearing, 584 P.2d 838 (Alaska 1978).

In its initial Rust decision, the supreme court declared that the executive branch of government has primary responsibility for decisions concerning a prisoner's placement and treatments, and thus a court has no power to designate a particular correctional or treatment facility as the place where the defendant will serve their sentence. The supreme court acknowledged that a court could intervene if the executive branch demonstrated deliberate indifference to a prisoner's serious medical needs. But in its opinion on rehearing, the supreme court clarified that such issues could not be raised in a motion for sentence modification under Criminal Rule 85(a):

We [hold] that Criminal Rule 85(a) is not the appropriate procedural vehicle to seek relief as to conditions within custodial institutions or the civil rights of inmates. Thus, all future proceedings [regarding Rust's assertion that his treatment needs are not being met] are to be conducted as if Rust had instituted an independent civil action seeking treatment for his dyslexi[al.

Rust, 584 P.2d at 39.

Then, in 1978, the landscape changed when the Alaska Legislature enacted AS 12.55.088. AS 12.55.088(a) gave courts the power to "modify or reduce a sentence at any time during a [defendant's] term of imprisonment if ... conditions or cireumstances [had] changed since the original sentencing hearing such that the purpose of the original sentence [was] not being fulfilled". According to the legislative commentary, this statute was designed to allow judges to intervene when prison officials failed to pursue a prisoner's treatment or rehabilitative needs:

The thrust of this [statute] is to provide for correction of demonstrable inequities resulting from breakdowns in the process of classifying prisoners.
Presently, after a defendant is sentenced to imprisonment[,] he is classified by a committee within the Division of Corree-tions for placement, treatment, work[,] and educational releases. If the sentencing court determines that the defendant needs alcohol rehabilitation treatment and sentences the person with that in mind, the classification committee may inadvertently subvert that purpose by [its] decision for placement or manner of treatment. Current rules allow for a motion to modify sentence in such cireumstances only for a limited period after the sentencing hearing. This [statute] would grant such jurisdiction to the court at any time during a term of imprisonment if it finds that the change in cireumstances or conditions results in subverting the intent of the original sentence.

1978 Senate Journal, p. 1445.

In other words, AS 12.55.088 altered the rule established in Rust by giving courts the authority to entertain a motion to modify a defendant's sentence of imprisonment if the Department of Corrections failed to offer the treatment or pursue the rehabilitative efforts that the sentencing judge had in mind when the sentence was imposed. Two years later, the supreme court enacted a new subsection (b) to Criminal Rule 35, incorporating the provisions of AS 12.55.088 into the criminal rules.

In 1982, the legislature attempted to cut back on the scope of AS 12.55.088 by amending the statute to specify that a defendant's motion to modify their sentence had to be filed within 60 days of the original sentencing (rather than "at any time during a term of imprisonment"). The legislative commentary to this amendment indicated that thé legislature was attempting to rescind the policy it enacted in 1978-the policy of allowing courts to modify a sentence at any time during a defendant's term of imprisonment in response to classification decisions made by corrections officials:

Given the fact that in felony cases there is frequently a delay between conviction and sentencing of between six weeks and six months, [a delay that is intended to allow] all pertinent factors to be collected and prepared for argument by both the defense and the prosecutor, and that a complete sentencing report prepared by the division of corrections must be considered by the superior court judge, a two[-Imonth period is sufficient to allow for a modification of the sentence.

Commentary and Sectional Analysis for the 1982 Amendments to Alaska's Law on Criminal Law and Procedure and the Revised Criminal Code, 1982 House Journal, Supp. No. 64 (June 2nd), p. 20.

The legislature's statement-that 60 days was long enough for the court to do a proper job, given the thorough process that generally precedes a criminal sentencing-indicates that the legislature wanted the courts to perform a much narrower job than had been assigned to the courts under the prior law. Sixty days might arguably be a reasonable amount of time to reconsider a sentencing decision, but it is obviously inadequate to allow the court to monitor and respond to Department of Corrections decisions regarding placement and treatment of the defendant. This leads us to conclude that the legislature no longer wanted the courts to perform that function.

The legislature passed the amended statute, but the law did not change. As explained above, the 1982 version of Criminal Rule 35(b) by this time contained language that paralleled AS 12.55.088; thus, the legislature needed to amend both the statute and Criminal Rule 835(b). To amend the court rules, the legislature must achieve a two-thirds' majority, and the 1982 amendment to AS 12.55.088 failed to attract this majority.

Thirteen years later, however, the legislature successfully amended the law relating to sentence modification. In SLA 1995, ch. 79, §§ 20-31, the legislature enacted a new version of Criminal Rule 35. Criminal Rule 35(a) was redrawn to limit its scope to the correction of illegal sentences , and the pertinent language of Criminal Rule 85(b)-sub-section (b)(1)-was revised to read: "The court ... may modify or reduce a sentence within 180 days of the distribution of the written judgment upon a motion made in the original eriminal case[.]

Although the legislature chose an expanded time limit of 180 days rather than the 60-day limit it had favored in 1982, it appears that the legislature's 1995 reworking of the statute was motivated by the same policy as the failed 1982 amendment: to deprive courts of the ongoing authority to monitor Department of Corrections treatment and placement decisions throughout a defendant's term of imprisonment. This is demonstrated not only by the 180-day time limit, but also by the legislature's concurrent enactment of two new provisions-Criminal Rule 85(b)(4) and (b)(5)-that remove or restrict a court's authority to modify or reduce a sentence imposed in accordance with a sentencing agreement.

Criminal Rule 35(b)(4) prohibits a court from modifying a sentence that has been imposed pursuant to a sentencing agreement that placed a cap on the defendant's sentence, while Criminal Rule 35(Lb)(5) prohibits a court from reducing a sentence below the minimum sentence negotiated in a sentencing agreement. Since these restrictions apply regardless of whether the Department of Corrections' treatment and placement decisions comport with the sentencing court's wishes or recommendations, it follows that the legislature no longer wished the courts to monitor these decisions or respond to them.

One could argue, perhaps, that the legislature still wished to give courts a 180-day window to respond to Department of Corrections placement or treatment decisions in cases where the defendant's sentence is not the result of a sentencing agreement. But there appears to be no rationale for such a rule-no reason why the legislature would want the courts to have the power to react to Department of Corrections classification decisions in the one instance and not the other. We therefore 'conclude that the legislature has rescinded the authority it granted to the judiciary in 1978 when it enacted the initial version of AS 12.55.088.

This, of course, does not prevent prisoners from exercising the right recognized in the Rust opinion on rehearing-the. right to sue the Department of Corrections if the Department fails to address a prisoner's serious medical needs. But with regard to motions for sentence modification under Criminal Rule 85(b), the legislature has apparently reinstated the rule announced by the supreme court in Rust: Rule 85(b) "is not the appropriate procedural vehicle" to seek relief from placement or treatment decisions of the Department of Corrections.

Even during the 180 days in which a court may modify a sentence, the court's decision to modify a sentence and. impose periodic imprisonment must be based on the Chaney criteria-the sentencing criteria now codified in AS 12.55.005

In State v. Couch, 991 P.2d 1286 (Alaska App.1999), this court acknowledged that Criminal Rule 85(b) was "designed to allow a sentencing judge to reconsider and potentially reduce a criminal sentence for a limited period of time", but we declared that Rule 35(b) was "not designed to allow a trial judge to grant a furlough to a prisoner" because "furloughs are within the authority of the Department of Corrections, not the courts". The problem, of course, is to distinguish furloughs from the intervals of liberty that occur during a sentence of periodic imprisonment.

We have already rejected the State's suggestion that a sentence of periodic imprisonment must have at least two intervals of liberty and three intervals of imprisonment. Thus, a sentence of periodic imprisonment might consist of two periods of imprisonment separated by one interval of freedom. What, then, distinguishes the interval of release in a sentence of periodic imprisonment from the interval of release that is granted under the name "furlough"?

The obvious answer is that furloughs are granted by officials of the Department of Corrections, while sentences of periodic imprisonment are granted by judges. Although this answer might seem to be of little help, it does in fact assist our analysis of the district court's actions in the present appeal-because a judge's duties are different from the duties of corrections officials.

Both the supreme court's decision in Rust and this court's decision in Couch are premised on the legal doctrine that, onee a defendant has been sentenced and committed to the custody of the executive branch, the executive branch assumes primary responsibility for the custody and care of the prisoner. It is the executive branch that decides where the prisoner is to be housed, what treatment programs will be offered to the prisoner, and whether and when the prisoner will be released on a furlough of any type. Rust explicitly holds that judges are forbidden from using a motion for sentence modification under Criminal Rule 85 as a procedural vehicle for serutinizing and see-ond-guessing these executive branch decisions.

Criminal Rule 35(b) does not allow judges to reconsider executive branch decisions. Rather, Criminal Rule 85(b) authorizes judges to reconsider judicial branch deci-their own prior sentencing decisions. Thus, when a judge grants a sentence modification or reduction under Criminal Rule 35(b), the judge's decision must be based on the sentencing criteria first announced in State v. Chaney and now codified in AS 12.55.005.

When a judge modifies a defendant's sentence under Criminal Rule 35(b), changing the sentence to a term of periodic imprisonment and thereby granting the defendant an interval of release from custody, the judge's action will be proper if the judge's order is premised on, and structured to serve, the codified sentencing goals. If, however, the judge is simply responding to a defendant's ad hoe needs, or if the judge assumes the role of arbiter in a dispute between the defendant and the Department of Corrections regarding custody, placement, or treatment, then the judge's action infringes on executive branch prerogatives and the defendant's interval of release will constitute an unauthorized furlough.

As this court recognized in State v. Tinsley, 928 P.2d 1220 (Alaska App.1996), Criminal Rule 35(b) "allows a sentencing judge [180 days] to reconsider and potentially reduce [or modify] a eriminal sentence. This authority can be exercised even when there is no reason to reduce [or modify] the sentence other than the judge's decision to reconsider and show mercy." Nevertheless, a court must not intrude on the authority of the Department of Corrections, an agency of a co-equal branch of government. That is, a court is empowered to modify a sentence based on the Chaney criteria, but not to simply interrupt the sentence to address a prisoner's short-term needs.

This interpretation is supported by the legislative history of Criminal Rule 85(b), which we detailed in the previous section of this opinion. This history indicates that Criminal Rule 85(b) was intended only to give courts a reasonable opportunity to revisit the original sentencing decision, rather than to allow courts to address a prisoner's changing needs. This history further indicates that the legislature did not intend for courts to use Criminal Rule 35(b) to grant ad hoc releases to prisoners so they can attend to personal business or personal needs, even when a short release could arguably serve some rehabilitative purpose.

These conclusions are also supported by the language of the rule itself. Although the current version of Criminal Rule 85(b) gives courts 180 days to modify a sentence, the fact that the court must act within 180 days suggests that the legislature did not design Criminal Rule 85(b) to allow courts to accommodate a prisoner's short-term personal needs. It is true, as the Public Defender Ageney points out in its brief, that prisoners will sometimes have to deal with sick children, unreliable or disappearing day care, lost loan payments, distraught family members, and other crises of daily life. The Public Defender Agency suggests that these crises can constitute a proper rationale for judicial intervention, "to insure that the defendant's sentence [is] equitable and not an excessive imposition or punishment". But such emergencies are not confined to the initial six months following the distribution of the judgement. It seems unlikely that the legislature intended Criminal Rule 35(b) to empower courts to act as an ombudsman for the first six months of a defendant's sentence, then leave defendants without recourse for these same problems during the remainder of their sentence.

Thus, both the history and the language of Criminal Rule 35(b) lead us to conclude that the rule was not designed to allow courts to interrupt a sentence by granting a leave of absence for the convenience of the prisoner. Rather, the rule was designed to give sentencing judges one opportunity, within a six-month window, to "reconsider and potentially reduce a criminal sentence" based on a reevaluation of the Chaney criteria.

This is not to say that courts have no authority to modify a defendant's sentence to a term of periodic imprisonment; this action is expressly authorized by Criminal Rule 35(b) and AS 12.55.015(a)(8). But a sentence reduction or modification under Criminal Rule 35(b) is, in effect, a second sentencing. Just as the court was obliged to base the defendant's original sentence on the sentencing criteria codified in AS 12.55.005, so too the court must base any modification or reduction on these same criteria.

Moreover, the legislature has expressed its intention that courts should resort sparingly to sentences of periodic imprisonment. This directive is further support for the conclusion that the legislature intended any sentence of periodic imprisonment to be premised on an overall evaluation of the defendant's history, conduct, and cireumstances in light of the sentencing goals codified in AS 12.55.005. Periodic imprisonment should be integral to the defendant's sentence. Such a sentence should be employed as a method for achieving defined sentencing goals-not as a method for granting defendants a weekend pass.

A contrary reading of Criminal Rule 85(b)-one that permitted courts to grant ad hoe leaves of absence in the name of "periodic imprisonment"-would frustrate the separation of powers recognized by the supreme court in Rust. The legislature has vested the Department of Corrections with authority over the day-to-day management of prisoners-the selection of the facility where they will be housed, the selection of treatment programs offered to them, and the decision of whether and when to grant them furloughs. With respect to furloughs, the legislature and the Department of Corrections have enacted statutes and regulations that comprehensively govern furloughs based on (1) a prisoner's rehabilitative, treatment, and personal needs, (2) the prisoner's level of dangerousness, and (8) the ability of the Department to adequately supervise the prisoner's release. Allowing dozens of judges to intervene intermittently and unpredictably in this process would make it difficult for the Department of Corrections to carry out its mandate fairly and consistently, and this type of judicial intervention might inadvertently expose the public to unacceptable risk.

Our analysis of the district court's actions in the three cases before us

Now that we have clarified the power of a court to reduce or modify a sentence under Criminal Rule 35(b), we turn to the three cases before us. °

The Feliz appeal.

Magistrate Hammers granted Jolene Felix two short releases from jail: on November 80, 2000, so that she could attend a screening interview required for her enrollment in the Tanana Chiefs' Old Minto Recovery Camp, and again on December 21, 2000, so that she could obtain a physical examination required for that same program. On both occasions, Felix's attorney urged Magistrate Hammers to portray his orders as a modification of Felix's sentence to a term of "periodic imprisonment". But the magistrate declined to ground his orders on Criminal Rule 35(b). Instead, he declared that he was issuing these orders "in the interest of fairness".

We hold that the magistrate exceeded his authority in both instances. A judge may not rely on general principles of fairness to grant a prisoner a short release from custody after they have commenced serving their sentence. Nor can we accept the Public Defender Agency's argument that the magistrate's actions should be upheld as an implicit modification of Felix's sentence to one of periodic imprisonment under Criminal Rule 35(b). First, the magistrate entertained two separate applications from Felix for similar relief (temporary release from prison so that she could attend appointments that were prerequisites to her entry into the Old Minto Recovery Camp). Rule 35(b)(2) apparently bars the magistrate from doing that. But more importantly, both of Felix's releases were clearly ad hoc releases expressly designed to allow Felix to pursue her own desired treatment program in preference to the programs that the Department of Corrections might offer her in jail or might allow her to attend on furlough.

Magistrate Hammers ordered Felix released from jail for a third and final time on December 27th. He directed her to travel directly to the Old Minto Recovery Camp and remain there until she successfully completed the treatment program. The magistrate declared that this final release was justified because, as the sentencing judge, he had the authority to require that the balance of Felix's term of imprisonment be spent at the Old Minto Recovery Camp. This was not true. The Alaska Supreme Court expressly held in Rust v. State that a court does not have the power to direct that a defendant's sentence be spent at any particular facility.

We should point out, however, that there was an available sentencing alternative that would have allowed Magistrate Hammers to accomplish something similar to what he was trying to do when he ordered Felix's final release from custody on December 27th. Assuming that the Tanana Chiefs had been willing to interview and examine Felix at the jail (and that they then accepted Felix into their program), Magistrate Hammer would have been authorized under Criminal Rule 85(b) to modify Felix's sentence to allow her take advantage of the Old Minto Recovery Camp-not by imposing "periodic imprisonment", but rather by suspending the balance of her sentence and requiring, as a condition of probation, that she attend and successfully complete the Old Minto program. Assuming that Feliz successfully completed the program and complied with any other conditions of probation, she would not have to serve the remainder of her sentence.

The Fain appeal.

Judge Burbank released Pamela Fain for four days in the middle of her sentence so that she could arrange child care for her son. This was an improper use of Criminal Rule 35(b), for the reasons we have explained above.

The Buchanan appeal.

Judge Wood released Buchanan for 3% hours in the middle of his sentence so that he could attend to personal business. Again, this was an improper use of Criminal Rule 85(b).

Judge Wood stated that he felt obliged to honor Buchanan's request because he had promised Buchanan a short period of bail release to give Buchanan some time to put his affairs in order before he commenced serving his sentence. This promise never came to fruition because Buchanan could not produce a suitable third-party custodian. But onee Buchanan commenced service of his sentence, Judge Wood lost the authority he had earlier possessed to allow Buchanan a few hours of conditional liberty on bail release.

Conclusion

For the reasons explained here, the sentence modifications ordered by the district court in these three cases are REVERSED.

COATS, Chief Judge, dissenting.

COATS, Chief Judge,

dissenting.

I write separately because I am concerned that this court's decision will be interpreted too narrowly and unduly restrict a trial court's authority to do justice in individual cases.

We can say some key things with relative certainty in this area of the law. Under Criminal Rule 35(b), courts have 180 days from the time of sentencing to modify a sentence. Courts also have the authority, under AS 12.55.015(a)(8), to impose a "peri-

odic sentence." The statute does not define "periodic imprisonment," but, as an example, the commentary to the Alaska revised criminal code provides, "serving a prison term on weekends." The commentary recognizes that some circumstances warrant periodic sentences but urges sentencing courts to impose them sparingly because of the administrative burdens they create for correctional institutions. The tentative draft to the revised criminal code expressly provided that a court should impose a periodic sentence only if doing so would serve the purposes of sentencing (set out elsewhere in the statute). The draft commentary gives this example of a circumstance justifying a periodic sentence: "the impact that serving a continuous 10-day mandatory sentence for [DWI] could have on a young person in the senior year of high school might well be disproportionate if the offender was required to repeat the entire school year as a result of missing too many school days or exams."

From this body of law, it is fair to conclude that the legislature did intend for courts to use their power to impose periodic sentences sparingly to avoid putting an undue burden on the Department of Corrections, which has primary responsibility for sentenced prisoners. The Department of Corrections has its own furlough program that may very well adequately address most of prisoners' needs. But this court has little information about how the Department of Corrections manages its furlough program. And, as long as judges use their power to modify sentences and to impose periodic sentences sparingly, I believe that this power is a valuable tool in allowing courts to impose just sentences. I would therefore allow courts wide flexibility. Consequently, I would define a periodic sentence merely as a sentence that is interrupted in some way.

The example of a periodic sentence in the tentative draft of the revised criminal code provides a good example. A young woman in her senior year of high school is convicted of driving while intoxicated and faces a mandatory term of imprisonment. The judge should be able to sentence her to jail while structuring her sentence so she is able to take her final exams.

As a practical matter, the flexibility to impose periodic sentences allows courts to sentence offenders to jail while still meeting an offender's critical needs. Without this flexibility, a court might have to choose between imposing a shorter sentence that does not adequately reflect the defendant's conduct and a longer sentence that would cause disproportionate harm by, for example, preventing a high school senior from taking final exams. Another example is a commercial fisher who must support a family during a short fishing season. Certainly a court should have the authority to sentence the offender to a sentence of imprisonment but to fashion the sentence so that the offender is released to fish during the short season.

Now I am fairly certain that my colleagues would agree that a court has the authority to impose a sentence that would enable the high school senior to take her exams or the commercial fisher to pursue his livelihood. But I am concerned that the court's opinion will be read too narrowly to unduly erode the flexibility of courts to sentence.

For instance, in the case of Pamela Fain, the record is inadequate for us to review the trial court's decision. Fain asked for release so that she could arrange for child care for her son and make a doctor's appointment for him. For all we know, these matters were true emergencies and Fain had no alternative but to attend to these matters herself for the welfare of her child. We do not know if the Department of Corrections could have responded to these needs. If a temporary release to take care of emergency matters was not available, the court had the authority to modify Fain's sentence to provide for her immediate release. To me, it seems wiser to allow the court the flexibility to temporarily release Fain to deal with an emergency. I could make similar arguments for the other releases this court is reviewing. The point is that I want courts to have a great deal of flexibility to respond to emergency or difficult situations. And I do not believe the law prevents this.

That having been said, I agree with the majority that the power to impose periodic sentences is one that the legislature has told courts to use sparingly. Furthermore, I agree that the primary authority and responsibility for sentenced prisoners lies with the Department of Corrections and courts should fully consider the Department's primary authority and the administrative burden that the court's sentencing orders might impose.

The problem with the cases we have been asked to review is that the record does not show that the courts in question were using their power to impose periodic sentences sparingly and that they were considering the impact of the orders on the Department of Corrections. In my view, if these cases were not moot, I would remand the cases back to the trial court for reconsideration. My concern is that, by simply saying that the court orders in these cases were not authorized, this court could be interpreted as unduly restricting the authority of courts to impose or modify sentences in unusual situations where justice calls for courts to show flexibility in sentencing.

      . See State v. Couch, 991 P.2d 1286, 1287 (Alaska App.1999) (applying this exception to the mootness doctrine in similar circumstances).

      . See AS 12.55.015(a)(3)-(4). See also AS 12.55.086(a), which draws the same distinction.

      . Webster's New World Dictionary of American English (Third College Edition, 1988), p. 1004.

      . 1978 Senate Journal, Supp. 47 (June 12th), p. 149.

      . See Whittlesey v. State, 626 P.2d 1066, 1067 (Alaska 1980).

      . The text of former Criminal Rule 35(a) is quoted in Thomas v. State, 592 P.2d 1248, 1249 n. 1 (Alaska 1979).

      . See Supreme Court Order No. 319 (effective August 16, 1978).

      . See Rust, 582 P.2d at 137.

      . See id. at 137-38.

      . See id. at 140-43.

      . See Supreme Court Order No. 426 (effective August 1, 1980).

      . See Alaska Constitution, Art. IV, § 15.

      . See SLA 1995, ch. 79, § 29.

      . SLA 1995, ch. 79, § 30.

      . See SLA 1995, ch. 79, § 30.

      . Rust, 584 P.2d at 39.

      . Couch, 991 P.2d at 1289.

      . 477 P.2d 441, 443-44 (Alaska 1970).

      . AS 12.55.005 states:
      The purpose of this chapter is to provide the means for determining the appropriate sentence to be imposed upon conviction of an offense. The legislature finds that the elimination of unjustified disparity in sentences and the attainment of reasonable uniformity in sentences can best be achieved through a sentencing framework fixed by statute as provided in this chapter. In imposing sentence, the court shall consider

        (1) the seriousness of the defendant's present offense in relation to other offenses;
      (2) the prior criminal history of the defendant and the likelihood of rehabilitation;
      (3) the need to confine the defendant to prevent further harm to the public;
      (4) the circumstances of the offense and the extent to which the offense harmed the victim or endangered the public safety or order;
      (5) the effect of the sentence to be imposed in deterring the defendant or other members of society from future criminal conduct;
      (6) the effect of the sentence to be imposed as a community conderanation of the criminal act and as a reaffirmation of societal norms; and
      (7) the restoration of the victim and the community.

      . Tinsley, 928 P.2d at 1223 (citing Thomas v. State, 566 P.2d 630, 639 n. 34 (Alaska 1977)) (both cases construing the predecessor rule, a prior version of Criminal Rule 35(a)).

      . Couch, 991 P.2d at 1289.

      . See the Commentary to AS 12.55.015, 1978 Senate Journal, Supp. No. 47 (June 12th), p. 149:
      [AS 12.55.015(a)(3)] recognizes [the] judicial power [to impose] periodic imprisonment .., such as serving a prison term on weekends. While periodic sentences may pose administrative problems for correctional institutions and should be imposed sparingly, there are occasions which warrant such a sentence.

      . See AS 33.30.101-181 and 22 AAC 05.310-326; see also 22 AAC O05.121(f)(12) (clarifying that a prisoner released on furlough is still within the custody of the Department of Corrections and subject to the department's supervision}.

      . See Commentary on the Alaska Revised Criminal Code, Senate Journal Supp. No. 47 at 149 (June 12, 1978); see also State v. Brinkley, 681 P.2d 351, 355 (Alaska App.1984) (describing sentence served on three-day weekends every other weekend for two years as a "periodic sentence").

      . See Commentary to the Revised Criminal Code, Senate Journal Supp. No. 47 at 149.

      . See Alaska Revised Criminal Code, Part VI at 61 (Tentative Draft, February 1978).

      . Alaska Revised Criminal Code, Part VI at 68 (Tentative Draft Commentary, February 1978).


source: Caselaw Access Project

author: Justice RICE Justice BENDER,

license: Public Domain

text:
    Robert R. VANDERBEEK; William C. Bacon; and Dorothy Severson, in their capacity as co-trustees on behalf of the James W. Vanderbeek Generation-Skipping Transfer Trust UTA6-21-82 Tax ID No. 7012717, Petitioners, v. VERNON CORPORATION, a British West Indies Corporation, Respondent.
    No. 00SC960.
    Supreme Court of Colorado, En Bane.
    June 17, 2002.
    Rehearing Denied Aug. 5, 2002.

      Wehrle Law Firm, P.C., Richard T. Wehrle, Denver, Colorado, Attorney for Petitioners.
    Martin & Mehaffy, LLC, Joel C. Maguire, Boulder, Colorado, Attorney for Respondent.
   Justice RICE

delivered the Opinion of the Court.

We granted certiorari to consider the appropriate test for recovery of consequential damages in actions alleging tortious economic interference. Relying on our decision in Colorado Kenworth Corp. v. Whitworth, 144 Colo. 541, 357 P.2d 626 (1960), the court of appeals concluded that consequential damages for wrongful attachment were recoverable only if at the time the tort was committed, both parties contemplated such damages as the probable result thereof, and these damages were not uncertain, unnatural, remote as to cause, speculative, or conjectural. Because the court of appeals concluded that the consequences of Petitioners' wrongful attachment were within the "reasonable contemplation" of the parties at the time the tort was committed, it awarded Respondent the "use value" of the unlawfully detained funds. It denied Respondent the "lost profits value" of these funds though, because this value was not reasonably ascertainable.

We affirm the court of appeals' judgment. In doing so, however, we clarify that the proper test for assessing consequential damages arising from economic torts is whether such damages are the natural and probable result of the injury sustained by virtue of the tortious act. As in other torts, these damages must be proximately caused by the tor-tious act and be reasonably ascertainable. Here, we hold that (1) an increase in the price Respondent paid to acquire 95,000 shares of Osicom Technologies, Inc. ("Osi-com"), and (2) Respondent's inability to purchase an additional 105,000 shares of Osicom stock were the natural and probable result of Petitioners' wrongful attachment. In addition, we hold that the Petitioners' wrongful attachment of Respondent's funds was the proximate cause of such damage. Finally, we hold that the increased cost of acquiring 95,000 shares of Osicom stock is reasonably ascertainable and therefore recoverable. However, the lost profits on 105,000 shares of Osicom stock not purchased because of the wrongful attachment is not reasonably ascertainable and thus not recoverable. We therefore affirm the court of appeals' judgment.

I. FACTS AND PROCEDURAL HISTORY

Petitioners, Robert R. Vanderbecek, William C. Bacon, and Dorothy Severson, in their capacity as co-trustees on behalf of the James W. Vanderbeek Generation-Skipping Transfer Trust, brought an action in Boulder County District Court against Respondent, Vernon Corporation, and others arising out of a partnership agreement among the parties. In conjunction therewith and pursuant to C.R.C.P. 102, Petitioners moved ex parte for issuance of a pre-judgment writ of attachment against approximately $1,000,000 they expected to be paid into the account of Respondent at Firststate Bank. In reliance on Petitioners' representations, the trial court granted the motion, and on December 23, 1997, a Writ of Attachment was served on Firststate Bank. Firststate then froze $1,023,870 in Respondent's account.

In response, Respondent traversed the writ of garnishment issued in aid of attachment. At the traverse hearing, the trial court concluded that a forum selection clause in a partnership agreement between the parties deprived it of subject-matter jurisdiction over the action. Accordingly, on January 18, 1998, it dismissed the action and dissolved the writ.

Subsequently, Respondent filed a motion seeking damages it claimed were caused by the wrongful attachment of its funds. According to the stipulation of facts submitted to the trial court by the parties, Respondent intended to use $450,000 of the funds frozen by the writ of garnishment to purchase 200,-000 shares of Osicom. Petitioners had no actual knowledge of this intent. On December 24, 1997, the day after the writ was issued, shares of Osicom were trading at $2%6 per share. Thus, on this date, Respondent could have acquired 200,000 shares of Osicom for approximately $486,000 plus commission. Respondent was unable to purchase Osicom until the funds were released however. By this time, the stock had appreciated considerably such that Respondent was only able to obtain 95,000 shares for a cost of $449,828.15.

Respondent claimed damages in the amount of $331,015.65. This figure represented the additional $242,728.15 it had to pay for the 95,000 shares of Osicom it did purchase plus $88,287.50 in lost profits on the 105,000 shares of Osicom it was unable to purchase. The trial court refused to award either component. It reasoned that Osicom's dramatic rise in value between December 23, 1997 and January 13, 1998 was unforeseeable and thus damages attributable thereto were merely speculative or conjectural. Instead, it held that the appropriate measure of damages was the interest on the principal amount of the funds during the time they were frozen.

The court of appeals reversed in part. It acknowledged that "[o}rdinarily, the measure of damages for tortious detention of money is the legal rate of interest for the period of such detention." Vanderbeek, 25 P.3d at 1245 (citing Boyle v. Poor, 62 Colo. 337, 163 P. 967 (1916)). However, it correctly held that consequential damages might also be recovered. Id. (citing Colo. Kenworth Corp. v. Whitworth, 144 Colo. 541, 357 P.2d 626 (1960)). It therefore turned its attention to the test for determining when consequential damages are available.

The court of appeals recognized that "[dlamages resulting from wrongful attachment are governed by tort principles" and that "[glenerally in an action for tort, an injured party is entitled to recover damages for the natural and probable consequences of the tort." Vanderbeek, 25 P.3d at 1244. However, the court of appeals read Colorado Kenworth Corp. as requiring it to apply the more limited standard for recovery of consequential damages derived from Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145 (1854). Id. at 1244-45. It therefore held that consequential damages for wrongful attachment are recoverable " 'if under the circumstances, it can be fairly said that both parties have these consequences in contemplation at the time of the wrong complained of, as the probable result thereof, and if these unusual consequences are neither uncertain, unnatural, nor remote as to cause, nor speculative and conjectural in effect' " Id. at 1245 (quoting Colo. Kenworth Corp. 144 Colo. at 549, 357 P.2d at 631-32). Applying this test, the court of appeals held that "it was within the reasonable contemplation of the parties that the money attached was to be used for investment purposes of some kind." Id. at 1246. It therefore awarded as consequential damages the additional cost Respondent paid for the 95,000 shares of Osicom. Id. It denied the profits lost on the 105,000 shares of Osicom Respondent never purchased, however, because these damages were not reasonably ascertainable. Id. at 1246-47.

We affirm the court of appeals' judgment, but for a different reason.

II. ANALYSIS

Because we disagree with the court of appeals that Colorado Kenworth Corp. resolves the issue before us, we begin with an analysis of that case.

A. Colorado Kenworth Corp.

The parties in Colorado Kenworth Corp. entered into a sales agreement for the purchase of a "truck-tractor." 144 Colo. at 542, 357 P.2d at 628. The purchaser, Whitworth, made an initial payment and agreed to pay the balance in seventeen successive monthly payments. Id. He gave a note for this balance secured by a chattel mortgage on the truck-tractor. Id. Whitworth purchased the truck-tractor for the purpose of hauling freight, and Kenworth, the seller, knew this. Id. at 549, 357 P.2d at 631. Due to a dispute between the parties, Kenworth repossessed the truck. Id. at 544-45, 357 P.2d at 629. Whitworth claimed that this repossession was wrongful and brought suit. Id. at 545, 357 P.2d at 629. The parties stipulated at a pretrial conference that the action was founded on a theory of conversion. Id. As part of his damages, Whitworth claimed consequential damages resulting from his inability to caused in fact. Rather it is a choice between competing standards of foreseeability ... ."). In sum, because damages resulting from wrongful attachment are governed by tort principles, proximate cause is the appropriate standard by which to assess their extent.

D. Damages Must Be Reasonably Ascertainable

Whether Hadley or proximate cause serves to limit liability for consequential damages, a plaintiff must prove the damages he has suffered with reasonable certainty. Dobbs, supra, § 6.6(2), at 187. "When the issue of causation is resolved, the question is whether the evidence of loss ... contains sufficient certainty and proximity upon which to base an award of special or consequential damages." Cope v. Vermeer Sales & Serv. of Colo., 650 P.2d 1807, 1309 (Colo.App.1982). "The purpose of the reasonable certainty rule is to avoid making compensatory damages awards for lost profits which are fabricated or based on mere conjecture or speculation." Nora v. Safeco Ins. Co., 99 Idaho 60, 577 P.2d 347, 350 (1978) (internal quotations omitted). The rule only applies to situations where the fact of damages is uncertain, not where the amount is uncertain. Peterson v. Colo. Potato Flake & Mfg. Co., 164 Colo. 304, 310, 435 P.2d 237, 239 (1967).

Hornblower v. Lazers, 301 Minn. 462, 222 N.W.2d 799 (1974), provides a relevant application of this rule. In that case, the defendant alleged in his counterclaim that by mis-paying him $8,000, the plaintiff had caused him to forbear selling stock that he otherwise would have sold. Hornblower, 222 NW.2d at 803. This stock declined in value between the time that the mispayment was made and the time the plaintiff demanded that defendant return the $8,000. Id.

Citing the rule that speculative, remote or conjectural damages are not recoverable, the Minnesota Supreme Court held that an award of damages could not be sustained on this basis. Id. It noted that "[allthough defendant alleged that the negligent payment caused him to forbear selling stock which later declined in value, he was unable at trial to state specifically what stock he would have sold, and on what date he would have sold it, had he been informed of the correct state of his account." Id. Accordingly, the court reasoned that "since it would have been impossible for the jury to have determined with any accuracy what stocks defendant would have sold and on what date, ... we hold that the evidence, viewed in the light most favorable to the verdict, is too speculative to afford a reasonable basis for that portion of the verdict granting damages to defendant for plaintiff's negligent mispayment of the $8,000." Id.

With these principles. in mind, we turn to the merits of the case at hand.

III. APPLICATION

The parties are former partners who had an established business relationship. Not only did Petitioners know the approximate amount of money Respondent was transferring into the state, they knew precisely when this transfer would take place, and at what bank. Furthermore, the parties stipulated that Respondent intended to use the funds frozen by the writ of garnishment to purchase 200,000 shares of Osicom. Given these undisputed facts, we hold that the damages sought by Petitioner are the natural and probable result of the injuries they sustained by virtue of the tortious act. In addition, although Petitioners had no actual knowledge that Respondent intended to purchase Osi-com, it was reasonably foreseeable that the money attached was to be used for investment purposes of some kind. Likewise, it was reasonably foreseeable that attachment of the funds would prevent, or at least delay, such an investment and cause damage thereby. Accordingly, we hold as a matter of law that Petitioners' wrongful attachment of Respondent's funds proximately caused: (1) an increase in the price Respondent paid to acquire 95,000 shares of Osicom stock; and (2) Respondent's inability to purchase an additional 105,000 shares of Osicom stock. See Pioneer Constr. Co. v. Richardson, 176 Colo. 254, 259, 490 P.2d 71, 74 (1971) (holding that the question of proximate cause is for the court in the absence of conflicting testimony); see also Lyons v. Nasby, 770 P.2d 1250, 1256 (Colo.1989) (holding that "where reasonable minds can draw but one inference from the perform a freight-hauling contract with a third party. Id.

On appeal this court articulated the relevant issue before it in this way: "Are consequential damages recoverable in a conversion action, or is the plaintiff restricted to a recovery of the value of the article taken with interest on such value." Id. at 549, 857 P.2d at 631. Thus, the issue on appeal as framed by the court was not the standard by which the recovery of consequential damages are to be determined but simply whether they are recoverable at all in a conversion action.

The court founded its analysis of this issue on an initial premise: that Kenworth knew Whitworth purchased the truck-tractor for the purpose of hauling freight,. Id. It then cited both of the competing standards for recovery of consequential damages in a tort action involving purely economic interference. Id. First, the court acknowledged that conversion is a tort and thus "Kenworth should be answerable to such damages as will completely indemnify Whitworth for the natural and probable consequences of its conversion." Id. Under this standard, whether consequential damages are recoverable depends only on a determination that these damages were proximately caused by the wrongful act and that they are reasonably ascertainable. Then, the court cited the rule derived from Hadley v. Baxendale for recovery of special damages in a contract action: "Damages flowing from a conversion which are not ordinary, usual, or commonly to be expected are recoverable 'if, under the circumstances, it can fairly be said that both parties have these consequences in contemplation at the time of the wrong complained of, as the probable result thereof, and if these unusual consequences are neither uncertain, unnatural, nor remote as to cause, nor speculative and conjectural in effect." " 144 Colo. at 549, 357 P.2d at 681-82 (quoting Cannon v. Oregon Moline Plow Co., 115 Wash. 278, 197 P. 39, 41 (1921)).

Under either a tort or a contract standard, the foreseeability of the consequences is a factor. However, the test derived from Hadley imposes a more restrictive foreseeability limitation. To be recoverable under the Hadley test, consequential damages must be so likely that "it can fairly be said" both parties contemplated these damages as the probable result of the wrong at the time the tort occurred. Under the tort standard, damages need only be reasonably foreseeable.

Importantly, because Kenworth knew Whitworth purchased the truck-tractor for the purpose of hauling freight, the consequential damages Whitworth claimed satisfied even the more restrictive Hadley standard of foreseeability. Thus, it was not necessary for the court to decide between the two tests, and it never did. After reciting both tests, it simply concluded that lost profits resulting from a conversion of property are recoverable. 144 Colo. at 549, 357 P.2d at 632. Accordingly, we do not read Colorado Kenworth Corp. as deciding whether a tort or a contract measure of damage should govern the recovery of consequential damages in an economic tort action. We therefore address this issue now.

B. The Appropriate Measure of Damage for Economic Torts

Central to our determination of the appropriate measure of damage is a determination of the nature of the duty breached in economic torts. Where the duty breached stems from a contract, redress must be under the contract, and the rule derived from Hadley is the appropriate standard by which to assess the consequential damages of the breach. However, where a duty arises independently of any contractual obligations between the parties, a tort action will lie, and consequential damages should be assessed under traditional tort standards.

We have recently had occasion to fully examine the boundary between contract and tort law in upholding the validity of the economic loss rule. See Town of Alma v. Asco Constr., Inc., 10 P.3d 1256 (Colo.2000). In Town of Aima, we explained that "(tlhe essential difference between a tort obligation and a contract obligation is the source of the duties of the parties." 10 P.3d at 1262. Tort law is designed to protect all citizens from the risk of harm to their persons or their property. Id. Accordingly, tort duties are generally imposed by law "without regard to any agreement or contract." Id. Contract obligations, in contrast, arise from promises between the parties. Id.

The rationale behind Hadley v. Baxendale's contract measure of damages demonstrates why it is an inappropriate standard for assessing consequential damages when the duty breached arises independently of any agreement between the parties. The Hadley rule is designed to further a fundamental principle of contract law: parties must be able to confidently allocate risks and costs during their bargaining without fear that unanticipated liability may arise in the future, effectively negating the parties' efforts to build these cost considerations into the contract. Under Hadley, a party to a contract is only responsible for those damages that he should reasonably have contemplated as the probable result of a breach at the time the contract was entered into. Because the party is aware, or should be aware, that these damages are. a potential consequence of breach, he presumably will take into account the risk that these contingencies will occur while negotiating the contract. Thus, by limiting contractual liability to those damages foreseen by the parties at the time the contract was formed, Hadley ensures that the bargain struck reflects a mutually agreeable allocation of the risks and costs of breach. In other words, Hadley guarantees the fairness of a bilateral agreement by protecting the parties from unanticipated liability arising in the future.

But a tortious act is a unilateral invasion of a right taken "without regard to any agreement or contract." Town of Alma, 10 P.3d at 1262. The victim of a tort has no opportunity to negotiate with the tortfea-sor-no opportunity to allocate the risk that a particular consequence will occur or evaluate the cost if it should. Therefore, whether he reasonably contemplated a particular consequence as the probable result of the tort at the time it occurred is irrelevant. Cf. 22 Am.Jur.2d, Damages § 454 (2001) ("The distinction between damages in tort and damages for breach of contract is not a mere matter of form, since a party to a contract is given the legal option to perform or pay damages, and in order to allow the party to evaluate his options in a meaningful way, one who breaks a contract is liable only for those damages which one could reasonably anticipate.").

Accordingly, the rule derived from Hadley is inapplicable in tort actions where the duty breached arises independently from any agreement between the parties. See Restatement (Second) of Torts § 917 emt. d (1979) (stating that while the limitation in actions for breach of contract [that the harm must be such as the contract breaker should reasonably foresee at the time of making the contract to be within the risk of occurrence as a result of his breach] does not ordinarily apply to the extent of liability in tort, it may apply in cases in which the basis of the tort is the failure of the defendant to perform the obligations of a consensual relation with the other). Economic interference through wrongful attachment is a tort that recognizes the existence of a duty independent of any contractual obligations. Therefore, although the conduct necessary to commit this tort involves purely economic interference, any damages resulting from wrongful attachment are nevertheless governed by tort principles. Stensvad v. Tows, 232 Mont. 378, 759 P.2d 138, 144 (1988) (permitting the plaintiff in a wrongful attachment action to recover $5,000 for loss of income under tort Accordingly, we hold that the appropriate measure of the damages a victim of wrongful attachment may recover is such damage as is "the natural and probable result of the injury sustained by virtue of the tortious act." Thompson v. Tartler, 166 Colo. 247, 255, 443 P.2d 365, 369 (1968); see also McNeill v. Allen, 35 Colo.App. 317, 325, 534 P.2d 813, 818-19 (1975) (rejecting Hadley standard and awarding plaintiffs damages for loss of a favorable interest rate on a home they intended to purchase in a fraud action because the victim of a tort "may recover such damages as are the natural and probable result of the injury sustained by virtue of a tortious act"). As is the case in other tort actions, the recovery of these damages is limited by the requirements that such damages be proximately caused by the tortious act, and that they be reasonably ascertainable.

C. The Tortious Act Must Proximately Cause The Consequential Damages

In torts involving interference with contract and economic opportunity "Imlost courts award damages under tort principles with damages limits based upon proximate cause rather than contemplation of the parties." Dan B. Dobbs, The Law of Torts, § 455, at 1297 (2000) [hereinafter Law of Torts]; see also Dean v. James McHugh Constr. Co., 56 A.D.2d 716, 392 N.Y.S.2d 946, 948 (N.Y.App.Div.1977) (holding that there is "no reason why a party who is wrongfully deprived of the use of his funds may not recover damages representing more than the legal interest rate, provided that he can prove that such damages were actually sustained as a proximate result of the deprivation"). "Under this view, the plaintiff can recover all proximately caused damages, including consequential damages, even if those damages were greater than the damages the plaintiff could recover against [a] contract breacher." Law of Torts, supra, § 455, at 1297. The proximate cause standard requires only that the damages be "reasonably foreseeable." Ekberg v. Greene, 196 Colo. 494, 496-97, 588 P.2d 375, 376-77 (1978); see also Walcott v. Total Petroleum, Inc., 964 P.24d 609, 611 (Colo.App.1998) ("[Floresee-ability is the touchstone of proximate cause."); of C.J.L-Civ.3d 9:30 ("The negligence, if any, of the defendant ... is not a cause of any ... damage ... to the plaintiff ... unless injury to a person in the plaintiff's situation was a reasonably foreseeable consequence of that negligence."). "The exact or precise injury need not have been foreseeable, but it is sufficient if a reasonably careful person, under the same or similar cireum-stances, would have anticipated that injury to a person in the plaintiffs situation might result from the defendant's conduct." CJ.I.-Civ.3d 9:30. Thus, although broader than Hadley, proximate cause serves as a very real limit on liability. Melvin Aron Eisen-berg, The Principle of Hadley v. Baxendale, 80 Calif. L.Rev. 563, 567 (1992) ("[The choice between a regime based on Hadley v. Baxendale and a regime based on proximate cause is not a choice between liability for foreseeable losses and liability for all losses

evidence," the question of proximate cause becomes one of law); Samuelson v. Douthirt, 187 Colo. 155, 160, 529 P.2d 681, 684 (1974) (holding that the question of "proximate cause [is] for the court where the evidence, and the inferences to be drawn therefrom, are such that reasonable men, giving fair consideration thereto, must reach the same conclusion").

We now turn our attention to whether the damages claimed by the Respondent are reasonably ascertainable. First, we consider Respondent's claim that it had to pay a higher price to acquire 95,000 shares of Osicom stock as a result of Petitioner's wrongful attachment. It is undisputed that, at the time of attachment, Respondent intended to buy 200,000 shares of Osicom stock and had earmarked a certain sum of money for this purpose. Because these funds were frozen, however, it was unable to purchase Osicom stock until approximately one month later when the writ of garnishment was released. Since the price of Osicom stock increased dramatically while the funds were frozen, Respondent was able to purchase only 95,000 shares of Osicom with the money it had set aside to purchase 200,000 shares. These facts are reasonably ascertainable from the parties' stipulation.

We approve of the court of appeals' assessment of this element of the consequential damages claimed by Respondent:

[DJespite the trial court's conclusion that "money [can] be put to innumerable uses," an identifiable portion of the wrongfully attached money here had been set aside for a particular purpose. Accordingly, defendant is entitled to ... the additional amount paid for the 95,000 shares ... of the wrongfully attached $450,000 that he had intended to spend, and indeed, did spend on Osicom stock.

Vanderbeek, 25 P.3d at 1246. Because the increase in the price Respondent paid to acquire 95,000 shares of Osicom stock is a reasonably ascertainable consequential damage of Petitioners' wrongful attachment, it is recoverable. Accordingly, we affirm the court of appeals' judgment awarding Respondent the increase in the price it paid to acquire 95,000 shares of Osicom stock.

In contrast, whether, and to what extent, Respondent lost profits on the 105,-000 shares he never purchased is speculative and conjectural. Generally, damages based on lost profits are disfavored when the venture from which the projected profit is derived is speculative or conjectural. Lee v. Durango Music, 144 Colo. 270, 278, 855 P.2d 1083, 1087 (1960) (holding that a claim for future profits may not be sustained by evidence which is speculative, remote, imaginary, or impossible of ascertainment); Mil-heim v. Baxter, 46 Colo. 155, 103 P. 3876 (1909); see also Restatement (Second) of Torts § 912 emt. f (1979) (requiring that an injured party have a "substantial and measurable chance of a profit without chance of loss" to satisfy the requirement of "certainty"). As the trial court pointed out, "stock trading is a gambler's business, the very nature of which is speculative and conjectural."

Profits from a stock investment are not realized until the stock is sold at a higher price than that at which it was bought. These 105,000 shares of Osicom stock were neither bought nor sold. Thus, unlike the increased cost Respondent actually paid to acquire the 95,000 shares of Osicom, determining the profits Respondent could have realized had he purchased the 105,000 shares of Osicom the day after the earmarked funds were frozen is entirely dependent on an arbitrarily chosen "sell" date.

On December 24, 1997-the day after Respondent's earmarked funds were frozen-Osicom stock was trading at $2%6 per share. Subsequent to this date, the value of Osi-com's stock has varied tremendously. Adjusted to reflect a reverse split of the stock on a one for three basis that Osicom completed on July 24, 1998, it has ranged from $1% to $19% according to the parties' stipulation. Respondent chose to calculate profits lost on the 105,000 shares they were unable to purchase as a result of Petitioners' wrongful attachment based on the value of Osgicom stock on November 30, 1998-the day before the trial court hearing on this issue. On this date, Osicom stock closed at $9ls per share. Accordingly, Respondent claimed the difference in value between Osicom's stock on this date and its value the day after the earmarked funds were frozen, or $88,287.50, as the profits it had lost. If Respondent had instead chosen the date on which Osicom stock was trading at $19% per share, its "lost profits" would have been much more. In contrast, if lost profits had been measured from the date that Osicom was trading at 1%, Respondent would not have been damaged at all. This uncertainty precludes an award of damage for lost profits. Cf. Hornblower, 222 N.W.2d at 803 (holding that although plaintiff caused defendant to forbear selling stock which later declined in value, damages therefor were too speculative to be recovered because defendant was unable at trial to state specifically what stock he would have sold, and on what date he would have sold it}. We therefore affirm the court of appeals' judgment denying Respondent lost profits on the 105,000 shares of Osicom stock it was unable to purchase because of Petitioners wrongful attachment.

IV. CONCLUSION

We hold that consequential damages are recoverable in torts of economic interference, such as the wrongful attachment here. As in any other tort action, the appropriate measure of the damage a victim of an economic tort may recover is that amount which is the natural and probable result of the injury sustained by virtue of the tortious act. In order to be recoverable, such damages must

be proximately caused by the tortious act and must be reasonably ascertainable.

Given the undisputed facts in this case, we hold that the damages sought by Petitioner are the natural and probable result of the injury they sustained by virtue of the tor-tious act. In addition, we hold that Petitioners' wrongful attachment of Respondent's funds was the proximate cause of: (1) an increase in the price Respondent paid to acquire 95,000 shares of Osicom stock; and (2) Respondent's inability to purchase an additional 105,000 shares of Osicom stock. The increased cost of acquiring 95,000 shares of Osicom stock due to the wrongful attachment is reasonably ascertainable and therefore recoverable. However, the lost profits on 105,-000 shares of Osicom stock not purchased because of the wrongful attachment is not reasonably ascertainable and therefore not recoverable. We therefore affirm the court of appeals judgment. We remand the case to the court of appeals to return it to the trial court to recalculate the Respondent's damages consistent with this opinion.

Justice BENDER dissents.

Justice BENDER,

dissenting:

The majority engages in a cogent and well-reasoned discussion of the law of consequential damages for economic torts. However, because I believe that it is not necessary to consider this area of the law and because I disagree with the majority's conclusion that lost profits cannot be recovered in this case as a matter of law, I respectfully dissent.

In my view, the question in this case is not what damages are available when an economic tort occurs. Instead, the question we must address is what damages are authorized by Colorado Rule of Civil Procedure 102(n)(2).

The authority of a court to issue a prejudgment writ of attachment is entirely statutory. Worchester v. State Farm Mut. Auto. Ins. Co., 172 Colo. 352, 354, 473 P.2d 711, 712 (1970); Gurley v. Tomkins, 17 Colo. 437, 447, 30 P. 344, 348 (1892); Tekai Corp. v. Trans-america Title Ins. Co., 39 Colo.App. 528, 534, 571 P.2d 321, 326 (1977). The writ of attachment is an extraordinary remedy which was unknown at common law. Woreckester, 172 Colo. at 354, 473 P.2d at 712; Great West Mining Co. v. Woodmas of Alston Mining Co., 12 Colo. 46, 54, 20 P. 771, 775 (1888); see also 7 C.J.S. Attachment § 3(a), at 228 (1980 & Supp.2001) ("Attachment as it exists in the United States today is deemed to be a summary and extraordinary remedy in derogation of the common law and has been said to owe its existence entirely to statutory enactment."). Attachment permits a party, ex parte and without notice to the affected individual, to deprive that individual of control over her property. See C.R.C.P.102(a). Because it is such an unusual remedy, and because it does have the potential to cause significant hardship to the person whose property is attached, the situations in which it may be used are extremely limited. See CRCP. 102(c); see also Graham Susman, Seisure of Person or Property: Rules 101-104, 28 Rocky Mtn. L.Rev. 608, 605 (1951) ("As a safeguard and protection to the defendant who is usually first apprised of the attachment after the deed is done, there are certain essential steps which must be complied with as a prerequisite to the issuance of the writ."). Abuses must be carefully guarded against in order to protect defendants, who have not yet been afforded an opportunity to present evidence or to be heard by the court, from injury.

Historically, many jurisdictions created a tort, known as "wrongful attachment," to compensate for the injury that resulted when plaintiffs abused the statutory attachment procedure. Certain elements, somewhat analogous to the tort of malicious prosecution, were often required in order for an individual to succeed with a wrongful attachment claim. See, e.g., Gurley, 17 Colo. at 446-47, 30 P. at 348; 7 C.J.S. Attachment § 394; 8 Stuart M. Speiser et al., The American Law of Torts, § 28:37, at 235-36 (1991). Thus, such a tort claimant was often required to prove both that the plaintiff's use of the writ of attachment was "malicious" and that the plaintiff lacked "probable cause" to believe that he was entitled to such an attachment. See, e.g., Gurley, 17 Colo. at 446-47, 30 P. at 348; 7 C.J.S. Attachment § 394.

In many states today, a statute or rule has replaced the common law action for wrongful attachment. See, e.g., Tekai, 39 Colo.App. at 534, 571 P.2d at 326 (stating that the statute or rule of procedure that creates and defines the remedy of attachment also "govern{s] the cause of action arising out of a wrongful attachment"); 7 CJ.S. Aftachment § 394. Thus, in states where such a statute or rule exists, it often becomes unnecessary for courts to consider common law tort principles when deciding whether and what amount of damages should be awarded to the victim of a wrongful attachment. See 6 Am.Jur.2d Attachment and Garnishment § 604 (1999) ("Generally, statutory provisions govern a cause of action arising as a wrongful attachment.") (citing Tekai, 39 Colo.App. at 534, 571 P.2d at 326). When the language of the statute or rule is plain and unambiguous, it is to be applied as written and it is unnee-essary to resort to extrinsic sources to determine the meaning of the rule or statute. See, e.g., J.P. Meyer Trucking & Constr., Inc. v. Colo. Sch. Dists. Self Ins. Pool, 18 P.3d 198, 201 n. 5 (Colo.2001); Watson v. Fenney, 800 P.2d 1373, 1375 (Colo.App.1990) (stating that rules of statutory construction apply to the interpretation of rules of procedure).

In Colorado, C.R.C.P. 102(n)(2) defines the cireumstances in which damages are recoverable for a wrongful attachment. Specifically, this rule provides that a defendant who prevails in a hearing where he objects to a writ of attachment against his property is entitled to any damages resulting from the attachment:

A plaintiff? who fails to prevail at the hearing provided by this section is liable to the defendant for any damages sustained as a result of the issuance of process, costs, and reasonable attorney's fees.

CRCP. 102(n)(2) {(emphasis added). CRCP. 102 was enacted pursuant to this court's constitutional rule-making authority and, like all rules, has the force and effect of statute. See Colo. Const. art. VI, § 21; Knudson v. Frost, 51 Colo. 340, 341, 117 P. 157, 157 (1911) ("The rules of the court have the force and effect of a statute.").

The Colorado rule departs from the common law in two major respects. First, the rule contains no requirement that the attachment be "malicious" or that the plaintiff had "probable cause" to believe that she would win her suit. In deciding whether to award damages, the only question that the court must answer is whether the defendant prevailed at the hearing traversing the affidavit. Second, and most importantly, the rule requires that the defendant be awarded "any" damages sustained, without limitation to the traditional sorts of damages available in tort suits.

For the above reasons, C.R.C.P. 102(10)(2) departs significantly from the common law rules that governed the tort of wrongful attachment. The majority, however, assumes that tort principles control and does not examine the specific language of the Colorado rule.

In my view, the language of C.R.C.P. 102(n)(2) is clear and unambiguous. The rule states that the defendant is entitled to "any damages sustained as a result of the issuance of process." I see no need to analogize to the tort of conversion, or to any other sort of economic or non-economic tort, to determine the proper measure of damages. The purpose of the rule is to protect the defendant, who through no fault of his own has become the victim of a prejudgment, ex parte attachment. Thus, I conclude that the rule means what it says and that the injured defendant can recover any damages that he can prove.

The majority's conclusion that the defendant in this case cannot recover a portion of his damages, $88,287, is but an application of the rule that the defendant must prove his damages. In the majority's view, it is impossible, as a matter of law, for the defendant to prove that he sustained a loss of $88,287 on the stocks that he was unable to purchase as a result of the plaintiffs attachment of his funds. I disagree with this conclusion.

The following facts are undisputed. The plaintiff attached the defendant's money, approximately $450,000 of which had been earmarked for the purchase of 200,000 shares of Osicom stock. This attachment occurred in December of 1997. The money was not released for the defendant's use until one month later, in January of 1998, when the defendant successfully traversed the plaintiffs affidavit At that time, the Osicom stock had dramatically appreciated in value. The defendant immediately used the released money to purchase Osicom stock, the purpose for which he had originally intended it. However, $450,000 was no longer enough money to obtain 200,000 shares, so the defendant purchased the number of shares that he could then afford: 95,000 shares.

Just one week after the writ of attachment was dissolved, the defendant moved for an award of damages pursuant to C.R.C.P. 102(n)(2). Eleven months later, in December of 1998, a hearing was held on the defendant's motion.

The parties stipulated that, at the time of the hearing, the defendant continued to hold the 95,000 shares that he had purchased when the writ of attachment was dissolved in January of 1998. No evidence was taken at this hearing. The defendant divides his damages into two categories: (1) the increased cost of purchasing 95,000 shares of stock in January of 1998; and (2) the lost profits on the 105,000 shares of stock that he was not able to purchase, as measured from the date of the damages hearing in December of 1998.

The majority concludes that the first category of damages sought by the defendant is reasonably ascertainable but that the second category is not. I agree with the majority regarding the 95,000 shares of stock that the defendant did purchase. However, I disagree with the majority's conclusion that damages based on the lost profits suffered by the defendant on the 105,000 shares that he was unable to purchase are speculative as a matter of law.

The stipulated facts of this case reveal that the plaintiffs actions in obtaining a writ of attachment resulted in financial loss to the defendant. The defendant was going to make a very particular investment and that investment would have paid off. It is true that we do not know when the defendant would have sold the 105,000 shares that he was unable to buy because of the attachment. Thus, we do not know exactly the amount of profit that the defendant might have ultimately realized from his investment, or whether he would have continued to own the relevant 105,000 shares in December of 1998. It is important to consider the likely reason why we do not know this information.

We are deciding this case on stipulated facts that do not provide a complete picture. The defendant was never given an opportunity to testify or to present evidence as to whether or when he intended to sell the 200,000 shares that he originally planned to purchase. We do not know whether he planned his Osicom investment to be a short term or a long term one, or how the attachment affected his decision to purchase or sell the smaller number of shares that he was subsequently able to afford when the attachment was lifted. We do not know if he would have retained the 200,000 shares as a block, to be sold all at once. Had the defendant been given an opportunity to present evidence on the damages question, we might not need to speculate regarding when the defendant would have sold the stock or the amount of lost profits that he suffered.

Further, I note that the majority's decision has the effect of punishing the defendant for the trial court's delay in reaching the damages issue. The more time that passes between attachment and calculation of damages, the more speculation there will be about whether the defendant would have continued to own the shares of Osicom stock. Presumably, the defendant would have received full damages had the trial court immediately considered the issue of damages upon release of the attachment and the receipt of the defendant's motion.

Because I believe that it is possible for the defendant to prove that he sustained damages in the amount of the lost profits that he seeks, I would remand this case for consideration of that issue.

      . The precise issue on which we granted certio-rari was framed as:
      Whether the court of appeals erred by applying a standard for assessment of economic tort damages that is in conflict with the decision of the Colorado Supreme Court in Colorado Kenworth Corp. v. Whitworth, 144 Colo. 541, 357 P.2d 626 (1960).

      . In the context of economic torts, consequential damages and special damages are synonymous. Either term "refers to damages consequent upon but distinct from harm to the plaintiff's entitlement." 1 Dan B. Dobbs, Dobbs Law of Remedies § 3.3(4), at 302 (2d ed.1993). To the extent that Colorado Kenworth Corp. can be read as distinguishing between special and consequential damages we reject such a construction.

      . Of the two cases cited by Colorado Kenworth Corp. in support of the proposition that lost profits are recoverable in a conversion action, one applies the Hadley standard and one applies the traditional tort standard for recovery of consequential damages. In all, Colorado Kenworth Corp. cites six cases in its discussion of this issue. Two apply the tort standard, two apply the Had-ley standard, and two permit the recovery of consequential damages in a conversion action without any discussion of the appropriate standard.

      . C.R.C.P. 102 does not modify the damages recoverable in an action for wrongful attachment. See Crowley v. Hardman Bros., 122 Colo. 489, 498, 223 P.2d 1045, 1049 (1950) (holding that the Colorado Rules of Civil Procedure do not "attempt to affect the substantive rights of litigants"'). Respondent argues, and we agree, that under CRCP. 102, damages for wrongful attachment are governed by tort principles. We disagree, however, with Respondent's understanding of those principles. Respondent argues that because wrongful attachment is a tort, Petitioners are liable for any damages resulting therefrom, regardless of how remote or unforeseeable these damages may be. Under this rule, even speculative or conjectural damages would presumably be recoverable. We cannot justify a rule that would impose liability for remote and unforeseeable injuries connected to the tortious act only through a disjointed and extended chain of causation. The unlimited liability imposed by such a broad rule is inconsistent with the policy that a tortfeasor should be held responsible and the victim compensated, but only for the kinds of harms within the risk created by his conduct. In accordance with this goal, proximate cause excludes from the appropriate scope of responsibility harms resulting from the tortfeasor's conduct that are so clearly outside the risk created by his conduct that it would be unjust or at least impractical to impose liability therefor. See generally Law of Torts, supra, Ch. 10. Thus, as Respondent concedes at one point in its brief to this court, CRCP. 102 "contains an inherent element of foreseeability."' See C.R.C.P. ("A plaintiff who fails to prevail at the hearing provided for by this section is liable to the defendant for any damages sustained as a result of the issuance of process, costs, and reasonable attorney's fees.").

      . According to that stipulation: On December 24, 1997, the day after the writ was issued, Respondent could have acquired 95,000 shares of Osicom stock for $207,100. Respondent ultimately paid $449,828.15 for 95,000 shares of Osicom in January of 1998 after the writ was released. Hence, because of Petitioners' wrongful attachment of its funds, Respondent Vernon Corporation had to pay an additional $242,728.15 in order to obtain 95,000 shares of Osicom stock. Therefore, not only is the additional amount paid for the 95,000 shares reasonably ascertainable, it is "a concrete figure that [can] be calculated given the time frame and the differences in the price of the stock." Vander beek, 25 P.3d at 1246.

      . Respondent's calculation of the profits it claims to have lost takes into account the 3 to 1 reverse stock split that occurred on July 24, 1998.

      . From the record, it appears that, after the writ was issued, the plaintiff was ordered to post a bond of $200,000 but never did so. CRCP. 102(d), which relates to the requirement that the plaintiff post a bond, reiterates the rule of damages found in C.R.C.P. 102(1)(2):
      Before the issuance of a writ of attachment the plaintiff shall furnish a bond ... in an amount set forth by the court ... to the effect that if the defendant recover judgment, or if the court shall finally decide that the plaintiff was not entitled to an attachment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages defendant may sustain by reason of the wrongful suing out of the attachment.
      C.R.C.P. 102(d) (emphasis added). However, because it is not clear from the record whether the court required the plaintiff to post a bond before the writ was issued, I rely on the language of C.R.C.P. 102(n)(2) for this dissent.

      . By my calculations, 200,000 shares would have cost approximately $950,000 at the time the writ was dissolved.

      . A simpler and more logical approach would be to award the defendant the difference between the value of the assets that he had when the money was attached (approximately $450,000) and the value of the assets that he would have had when the attachment was lifted (approximately $950,000). The defendant, however, does not advocate for this approach. I note that this approach assumes that the defendant would be able to prove that he would not have sold the stock during the interim month between the issuance of the writ of attachment and its release.
      The majority focuses upon the fact that the appreciation of stock is not realized until the stock is sold. While true, this does not change the fact that at the time of attachment, the defendant had something that was worth approximately $450,000 that would have, absent the attachment, been worth approximately $950,000 when the attachment was lifted.

      . The majority relies on Hornblower & Weeks-Hemphill Noyes v. Lazere, 301 Minn. 462, 222 N.W.2d 799 (1974), to support its conclusion that lost profits of the sort sought here are speculative as a matter of law and, therefore, may not be recovered. However, as the majority acknowledges, the Hornblower decision explicitly rests on the ground that the defendant had an opportunity to prove his damages and simply failed to do so. 222 N.W.2d at 803. The defendant has been given no such opportunity in this case.

      . If so, then his continued ownership of the 95,-000 shares might be indicative of the fact that he would have also continued to own the other 105,000 shares.