author: Justice MARTINEZ

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gaylon Lamont POWERS, Defendant-Appellee.
    No. 01SA340.
    Supreme Court of Colorado, En Banc.
    June 17, 2002.

      Robert S. Grant, District Attorney, Michael J. Milne, Senior Deputy District Attorney, Brighton, Colorado, Attorneys for Plaintiff-Appellant.
    R. Seott Reisch, Denver, Colorado, Paul Grant, Englewood, Colorado, Attorneys for Defendant-Appellee.
   Justice MARTINEZ

delivered the Opinion of the Court.

The People bring this interlocutory appeal to challenge the trial court's suppression of evidence seized during an alleged search incident to arrest in connection with the arrest of Defendant Gaylon Lamont Powers ("Powers"). After finding that the arresting officer lacked probable cause for the arrest, the trial court suppressed evidence as the product of an illegal search and seizure. The People did not file an interlocutory appeal of the original suppression order within ten days as required by C.A.R. 4.1(b). Instead, the People asked the trial court to reconsider its suppression order. However, they also did not file their motion to reconsider within the ten days provided by C.A.R. 4.1 for the filing of an interlocutory appeal to challenge the suppression of evidence. We hold that a motion to reconsider a trial court order of suppression must be filed within the ten days provided by C.A.R. 4.1(b) in order to toll the time for filing an interlocutory appeal. We conclude that this interlocutory appeal was not timely filed and, thus, we do not have jurisdiction to address the People's challenge to the trial court's suppression of evidence. We therefore dismiss the appeal.

I. Facts & Procedure

Before trial, Powers filed a motion to suppress statements and evidence on the basis that Officer Hutton lacked a legal basis for detaining Powers. Powers also contended that Officer Hutton lacked probable cause for Powers' arrest and the search and seizure. Powers' arrest arose from Officer Hutton's investigation of a vehicle with a missing front license plate. The officer came across the vehicle while responding to an anonymous noise complaint. When Powers exited the vehicle, Officer Hutton began asking him questions about ownership of the vehicle and conducted a pat-down search of Powers. After the pat-down search revealed three large bundles of money, Officer Hutton placed Powers under arrest and searched the vehicle. The officer found a plastic bag alleged to contain crack cocaine and a license plate registered to a car dealership.

At a suppression hearing, the court held that Officer Hutton had a right to stop Powers and conduct a Terry stop, but that the officer lacked probable cause for an arrest. The court accordingly found the search of the car to be illegal. The trial court therefore suppressed the plastic bag and its contents, and the dealer plate. The order suppressing the evidence was dated October 5, 2001.

The People filed a motion to reconsider the suppression order on Tuesday, October 16, 2001, The trial court heard the motion to reconsider on October 19, 2001. After the trial court denied the People's motion to reconsider its suppression order, the People requested a stay of ten days to decide whether to file an interlocutory appeal. Counsel for Powers objected to the stay on the grounds that C.A.R. 4.1 requires an interlocutory appeal to be filed within ten days of the contested order. The People argued that the law favored motions for reconsideration and explained that they were waiting for the trial court's decision on the motion to reconsider before deciding whether to file a notice of interlocutory appeal.

The trial court acknowledged that C.A.R. 4.1(b) requires the timely filing of an interlocutory appeal. However, the court found that the People had instead filed a motion to reconsider. The court held that the People had a right to file a motion to reconsider "within fifteen days." The trial court further held that the People had ten days after the denial of the motion to reconsider in which to challenge the suppression order. The court concluded the People had ten days from October 19, 2001 to file their interlocutory appeal. The People filed the current interlocutory appeal on October 29, 2001.

IIL. Timely Filing of Interlocutory Appeal

The People have a right to file an interlocutory appeal from a trial court's suppression of evidence. $ 16-12-102, 6 C.R.S. (2001); see also-People in re J.C., 844 P.2d 1185, 1187 (Colo.1993). The notice of appeal must be timely filed or the right to take an interlocutory appeal will be lost. People v. Donahue, 750 P.2d 921, 922 (Colo.1988). The time for filing a notice of interlocutory appeal is no later than ten (10) days after entry of the contested suppression order. CAR. 4.1(b); see also People v. Hampton, 696 P.2d 765, 771 (Colo.1985). The time limits set forth in C.A.R. 4.1 may be enlarged by order of the appropriate court, but only before the existing time limit has expired. CAR. 4.1(b) (2001).

The time limit for filing an interlocutory appeal is separate and distinct from the trial court's ability to reconsider its ruling on a motion to dismiss. A trial court should have an opportunity to reconsider its suppression orders. See In re J.C., 844 P.2d at 1187 (holding that a trial court judge may correct a palpable error). Although C.A.R. 4.1 does not address motions for reconsideration, our case law makes it clear that the prosecution may appeal a trial court's modified ruling within ten days of the date of the modified ruling. CAR. 4.1; People v. Melton, 910 P.2d 672, 675 n. 4 (Colo.1996); see also People v. Gall, 30 P.3d 145, 149 n. 5 (Colo.2001); In re J.C., 844 P.2d at 1187.

The relevant dates in this case were, as we have stated: (i) original order, October 5, 2001; (ii) motion to reconsider filed October 16, 2001; (iii) order on motion, October 19, 2001; and (iv) appeal filed October 29, 2001. The People filed this interlocutory appeal within ten days after the trial court denied their motion to reconsider its suppression order on October 19, 2001. However, the People did not file an interlocutory appeal, or a motion to reconsider, within ten days of the original suppression order issued on October 5, 2001. Instead, the People filed a motion to reconsider the original suppression order on October 16, 2001. Although the ten-day time limit established by CAR. 4.1(b) may be enlarged by the court prior to the expiration of the ten-day time limit, C.A.R. 4.1(h), an extension of time was not requested by the People.

The trial court apparently recognized the need for some type of time limit for filing a motion for reconsideration of a suppression order and imposed a fifteen-day deadline on the filing of the motion to reconsider in this case. It is unclear why the trial court thought the appropriate time limit was fifteen days.

There is no rule specifying the time in which a motion for rehearing or reconsideration of an interlocutory order must be filed in a criminal case. We have not previously addressed this issue. However, federal courts addressing the timeliness of an interlocutory appeal following a motion to reconsider a suppression order have required the motion to reconsider to be filed within the same time limit that applies to the filing of a notice of interlocutory appeal. See, e.g., United States v. Healy, 376 U.S. 75, 78-79, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964); United States v. Martines, 681 F.2d 1248, 1253 (10th Cir.1982).

In the federal courts, rules governing the timeliness of the government's notice of appeal come from several authorities. United States v. Rothseiden, 680 F.2d 96, 97 (11th Cir.1982). First, 18 U.S.C. § 3731 provides that the government has thirty (80) days in which to appeal a suppression order. 18 U.S.C. § 3781 (2002). Second, Rule 4(b) of the Federal Rules of Appellate Procedure provides that the period of time for filing an interlocutory appeal begins to run from the entry in the eriminal docket of judgment or order appealed. Fed. R.App. P. 4b). Additionally, the United States Supreme Court has held that a timely motion to reconsider tolls the running of the thirty-day period; the thirty days begin again once the trial court rules on the motion for reconsideration. United States v. Ibarra, 502 U.S. 1, 4 n. 2, 112 S.Ct. 4, 116 L.Ed.2d 1 (1991); United States v. Dieter, 429 U.S. 6, 8, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976); Healy, 376 U.S. at 78-79, 84 S.Ct. 558. Once the motion to reconsider has been decided, would-be appellants are entitled to the full thirty days in which to file an interlocutory appeal. Dieter, 429 U.S. at 8, 97 S.Ct. 18.

An untimely request for rehearing will not toll the running of the appeal period. Martines, 681 F.2d at 1253. A motion for reconsideration does not bring new life to an order unless it is filed within the time period for taking the appeal, running from the date of the entry of the judgment or order appealed from. Id. Thus, under federal case law, if the applicable law requires a notice of interlocutory appeal to be filed within thirty days, any motion to reconsider must also be filed within thirty days. We find the reasoning of these cases persuasive.

Without some type of rule governing the time for filing a motion to reconsider a suppression order, any motion to reconsider a suppression order would restart the ten-day time period for an interlocutory appeal established by C.A.R. 4.1(b). As a practical matter, the requirement that interlocutory appeals be filed within ten days would be weakened. The government could indefinitely extend the time for filing a notice of appeal at any time simply by filing a motion to reconsider. See United States v. Cardall, 773 F.2d 1128, 1130 (10th Cir.1985). Thus, requiring any motion to reconsider an order subject to the timing requirements of C.A.R. 4.1 to be filed within the same time frame furthers the purposes of that rule.

We hold that a post-hearing motion that tolls the period for taking an interlocutory appeal must be filed within the ten-day time period allowed for filing an interlocutory appeal. Further, an untimely motion for reconsideration cannot revive the right to an interlocutory appeal. Otherwise, filing motions for reconsideration could indefinitely extend the right to an interlocutory appeal and there would be little finality to suppression orders. Thus, in order to toll the ten-day time period established by C.A.R. 4.1(b) for the filing of an interlocutory appeal, the People must file a motion for reconsideration of a suppression order within the ten day time period established for the filing of the interlocutory appeal itself. After the trial court rules on a timely filed motion to reconsider, the People have ten days to commence an interlocutory appeal from the order on the motion to reconsider.

III. Application

In this case, the trial court issued its suppression order on October 5, 2001. The People did not file an interlocutory appeal of the suppression order until October 29, 2001. Instead, they filed a motion for reconsideration on Tuesday, October 16, 2001. Because Monday, October 15, 2001, was not a Saturday, Sunday, or legal holiday, the motion was filed eleven days after entry of the original suppression order. See C.A.R. 26(a) (2001).

C.A.R. 4.1(b) requires the People to file an interlocutory appeal from a suppression order within ten days of entry of the order. C.A.R. 4.1(b). The People did not file an interlocutory appeal from the original suppression order within ten days of the order. They instead chose to file a motion to reconsider on October 16, 2001, eleven days after the original suppression order. A motion to reconsider a suppression order must be filed within the ten-day time frame established for filing an interlocutory appeal in order to toll the time for filing the interlocutory appeal.

Therefore, the People's motion for reconsideration in this case was untimely and did not toll the ten-day time period for the filing of an interlocutory appeal. See Martines, 681 F.2d at 1258. The People did not file their interlocutory appeal within ten days of the suppression order issued on October 5, 2001. Consequently, this court lacks jurisdiction to consider the People's challenge of the trial court's suppression order.

IV. Conclusion

We adopt the rule of the federal courts that in order to toll the ten-day period for filing an interlocutory appeal, a motion to reconsider a suppression order must be filed within the same time limit. Because the People failed to file their motion to reconsider to reconsider the trial court's suppression order within the ten-day time period provided by C.A.R. 4.1 for the filing of an interlocutory appeal, the ten-day period for filing an interlocutory appeal of the suppression order was not tolled. Therefore, the time for filing an interlocutory appeal of the trial court's suppression order expired ten days after the original motion to suppress was issued on October 5, 2001. Consequently, the interlocutory appeal filed by the People on October 29, 2001 was untimely. Thus, we do not have jurisdiction to address the People's challenge to the trial court's suppression of evidence. Accordingly, we dismiss the appeal.


source: Caselaw Access Project

author: Judge TAUBMAN.

license: Public Domain

text:
    George ROBERTS, Richard Harney, and H & R Contracting, Inc., Plaintiffs-Appellants, v. Jenny C.J. ADAMS, individually and as Trustee of U/D/T dated 11/23/87 by Jenny C.J. Adams, Donor, Defendant-Appellee.
    No. 00CA2288.
    Colorado Court of Appeals, Div. I.
    Dec. 20, 2001.
    Certiorari Denied May 28, 2002.

      Waldbaum, Corn, Koff & Berger, Michael H. Berger, Seot M. Peterson, Denver, CO, for Plaintiffs-Appellants.
    Bailey & Peterson, P.C., James S. Bailey, Jr., Randall M. Livingston, Denver, CO, for Defendant-Appellee.
   Opinion by

Judge TAUBMAN.

Plaintiffs, George Roberts, Richard Har-ney, and H & R Contracting, Inc. (collectively builders), appeal the judgment entered in favor of defendant, Jenny C.J. Adams. Builders also appeal the trial court's order granting Adams' request for attorney fees. We affirm in part, reverse in part, and remand for additional proceedings.

Builders are home builders in Eagle County. In September 1996, they sold a house they had built (Cordillera property) to Adams and her then husband pursuant to a residential contract to buy and sell real estate. The stated purchase price in the real estate contract was $1,000,000.

At the same time the parties negotiated and signed the real estate contract, Adams signed a promissory note. The promissory note provided that builders would receive, from Adams, an additional $200,000 in consideration for builders' agreement, in the real estate contract, to sell the Cordillera property for a purchase price of $1,000,000.

However, the promissory note included two alternative conditions for builders to receive the $200,000. Condition A stated that Adams would pay builders $200,000 if she were able to settle amicably all outstanding issues related to construction of a home on another parcel (the Alcazar property) for $200,000 or more. It is undisputed that, because Adams received a lump sum payment of only $180,000, condition A was not met. Condition B stated if Adams were unable to receive a lump sum settlement of the Alcazar contract, builders would receive $200,000 following the resale of the Alcazar property.

The Alcazar property was subject to a purchase and sale agreement between Adams and her then husband, on the one hand, and International Village Homes (International), on the other. Adams had deposited approximately $100,000 as earnest money with International. Also, she had invested additional money for extras such as cabinetry. However, International had not completed construction of that house within the time required by the purchase and sale agreement. Accordingly, Adams was seeking a return of her earnest money from International.

After a lengthy period of negotiation with International, in which builders participated to assist Adams, Adams and International agreed in May 1997 that International would pay $180,000 and Adams would convey any interest she had in the Alcazar property, by quitelaim deed, to another entity, which had commenced a foreclosure proceeding against International.

When Adams did not pay builders $200,000 pursuant to the promissory note after she settled with International, builders filed this action against Adams alleging, among other things, breach of contract. Adams counterclaimed, seeking, among other relief, damages for breach of warranty.

After a two-day trial, the trial court determined that neither condition of the promissory note had been met. Specifically, the trial court determined that condition A had not been met because Adams had received only $180,000 and not at least $200,000 as a result of her settlement with International. It also ruled that condition B had not been met because no resale of the Alcazar property had occurred.

On the counterclaims, the trial court awarded Adams $2,610 in damages-$110 for payments Adams made to a landscaping company for sod, and $2,500 for carpet replacement. In addition, the trial court awarded Adams $62,563 in attorney fees. The trial court determined that Adams, as the prevailing party, was entitled to attorney fees under a provision in the real estate contract.

I. Breach of Contract

Builders contend the trial court erred when it found that condition B on the promissory note had not been met. Specifically, builders argue that condition B was fulfilled by the resale of the Alcazar property to the other entity. 'We disagree.

The interpretation of language in a contract is a question of law that an appellate court reviews de novo. Ad Two, Inc. v. City & County of Denver, 9 P.3d 373 (Colo.2000).

The court's duty is to interpret and enforce contracts as written, not to rewrite or restructure them. Fox v. I-10, Ltd., 957 P.2d 1018 (Colo.1998).

To determine the meaning of a contract, courts are guided by the general rules of contract construction and should seek to give effect to all provisions so that none will be rendered meaningless. Pub. Serv. Co. v. Wallis & Cos., 986 P.2d 924 (Colo.1999).

Further, a court should strive to ascertain and give effect to the mutual intent of the parties. An integrated contract in the first instance is to be interpreted in its entirety to harmonize all its provisions. In the absence of contrary manifestation of intent in the contract itself, contractual terms that have a generally prevailing meaning will be interpreted according to that meaning. Pepcol Mfg. Co. v. Denver Union Corp., 687 P.2d 1310 (Colo.1984).

Here, builders rely on the doctrine of equitable conversion to support their claim that condition B was met. They assert that Adams' transfer of her interest in the Alca-zar property to the other entity established that she purchased the property and then resold it. Builders argue that a resale occurred, as a matter of law, because Adams held equitable title to the Alcazar Property, which she conveyed through a quitclaim deed. We are not persuaded for several reasons.

A.

First, condition B was triggered by the resale of the Alcazar property. However, if there was no sale of such property, there could be no resale.

Here, International never sold the Alcazar property to Adams. While the Alcazar purchase and sale agreement contemplated a sale, it was subject to certain terms and conditions. One of these conditions was that International would substantially complete construction of the property within eighteen months from the date the contract was executed. If either party failed to perform under the purchase and sale agreement, the contract specified remedies for each party. One of Adams' remedies was to terminate the agreement and demand return of her earnest money with interest.

The record demonstrates that the purchase and sale agreement was abrogated by the parties, or, at a minimum, that an impasse was reached between the parties. Adams never closed on the purchase of the property because of construction problems, disputes over pricing, and International's failure to meet the construction deadline. The settlement agreement was the result of Adams' negotiations with International to recoup her earnest money and other investments in the property. Because the terms of the purchase and sale agreement were never fulfilled, there was never a purchase by Adams or a sale by International; therefore, the transfer of Adams' interest in the property by a quitclaim deed was not a resale. See Regional Transp. Dist. v. Martin Marietta Corp., 805 P.2d 1102, 1106 (Colo.1991)(Erickson, J., dissenting)(resale occurs when the purchaser of property sells that property to a second purchaser).

B.

Second, although condition B was predicated on a resale of the Alcazar property, the agreement between Adams and International was termed a settlement agreement, which is consistent with the language in condition A. Indeed, builders and Adams consistently referred to "the settlement," "the settlement agreement," and "the settlement negotiations"; they never referred to it as a sale or a resale.

C.

Third, we reject builders' contention that the doctrine of equitable conversion applies under these circumstances. Under this doctrine, a contract for the sale and purchase of real property converts a seller's interest in real property to a right to receive payment under a contract, and the purchaser's interest into realty. Konecny v. von Gunten, 151 Colo. 376, 879 P.2d 158 (1968). Moreover, the purchaser obtains an equitable right to maintain a quiet title action and divests the seller of the power to reconvey title. First Nat'l Bank v. McGinnis, 819 P.2d 1080 (Colo.App.1991).

However, this doctrine of equitable conversion is applicable only when there is a specifically enforceable contract between the parties, and the changes in the rights, duties, powers, and liabilities of the parties that result from the making of the contract are consequences of the equitable right to specific performance. People v. Alexander, 663 P.2d 1024, 1030 n. 6 (Colo.1983)(quoting III American Law of Property § 11.22, at 62-63 (A. Casner ed.1974)); see also Dwyer v. District Court, 188 Colo., 41, 532 P.2d 725 (1975)(quoting the Supreme Court of Appeals of Virginia in Carmichael v. Snyder, 209 Va. 451, 164 S.E.2d 703 (1968), and stating plaintiffs had an equitable estate or interest in the land and could have forced specific performance).

Builders argue that Adams sold the property, and thus a resale occurred, because she transferred equitable title to the third party. Builders contend that equitable principles require us to treat the settlement and conveyance of a quitclaim deed as a resale. We decline to do so.

Here, although Adams conveyed whatever interest, if any, she had in the Alcazar property to a third party through a quitclaim deed, she had no right under the purchase and sale agreement to specific performance on the contract. Indeed, the contract explicitly prohibits specific performance. Accordingly, International was not divested of equitable title in the property because Adams lacked the right to force a sale of the property and require International to transfer title to her. See People v. Alexander, supra.

In addition, Adams' execution of a quitclaim deed does not necessarily indicate that she had any interest in the property to convey. See Tuttle v. Burrows, 852 P.2d 1314 (Colo.App.1992)(a quitclaim deed does not represent that a grantor possesses any interest in land).

Thus, we conclude that Adams did not have equitable title in the property and could not take advantage of the doctrine of equitable conversion.

D.

Fourth, although the conditions of the promissory note were "bizarre," as the trial court concluded, because builders could receive nothing if Adams settled with International for $199,999, we conclude that it is plausible under these cireumstances that the parties would draft such an agreement.

The course of negotiations between builders and Adams reflected that both parties understood the real estate contract and the promissory note were two interdependent documents that resolved matters of importance to both parties. The final real estate contract and promissory note were the result of lengthy negotiations between the parties focused primarily on the price of the property. The sum of $200,000 was included in the promissory note because builders wanted to sell the Cordillera property for $1,200,000. However, Adams' then husband would only agree to that price if the issues surrounding the Alcazar property were resolved in a way that met the Adamses' needs. The final signed real estate contract was the third iteration of the document, with different prices reflected in each previous draft. The promissory note was drafted only after Adams' then husband refused to sign the second real estate agreement unless contingent terms dealing with the settlement of the Alcazar property were included.

Indeed, the record reveals that plaintiff Roberts was integrally involved in the negotiations, knew of the dispute between Adams and International and the Adamses' desire to resolve the disputes surrounding the Alcazar property, and even acted on Adams' behalf in an effort to negotiate a settlement with International. Additionally, builders benefited from the unconventional contract because it allowed them to use Adams' earnest money payment of $200,000 immediately to pay off debtors, instead of placing the money in escrow until closing.

E.

Fifth, the record supports the trial court's conclusion that Roberts did not read the promissory note carefully, and his partner, Harney, did not read the note at all before signing it.

A party may not be relieved of its obligation under a contract simply because it struck a bad bargain. See Corp. Fin. Associates Paducah, Inc. v. Rathbone, 680 P.2d 859 (Colo.App.1984). By signing the contract, builders are presumed to know its terms and should be bound by them. See Cordillera Corp. v. Heard, 41 Colo.App. 537, 592 P.2d 12 (1978), aff'd, 200 Colo. 72, 612 P.2d 92 (1980).

F.’

Under builders' proposed reading of the promissory note, condition B would be triggered if Adams received a lump sum payment from International regardless of the amount she received, as long as she transferred any interest she had in the Alcazar property to a third party through a quitclaim deed. This reading of condition B would render condition A meaningless. In other words, if we accept builders' interpretation of the provisions, condition B would always be triggered, no matter how much Adams received in settlement, and there would be no need for condition A.

Therefore, even if we were to conclude that Adams held equitable title, we decline to interpret condition B in such a way that Adams' transfer of her interests constituted a resale, because such interpretation would render condition A superfluous. See Pub. Serv. Co. v. Wallis & Cos., supra.

G.

Finally, based on the evidence presented at trial, the trial court determined that the terms of the promissory note were not ambiguous. Although builders maintained during oral argument that any ambiguity in the promissory note should be construed against Adams, who drafted it, we agree with the trial court that the terms were not ambiguous.

Terms used in a contract are ambiguous when they are susceptible of more than one reasonable interpretation. Absent such ambiguity, we will not look beyond the four corners of the agreement to determine the meaning intended by the parties. The mere fact that the parties may have different opinions regarding the interpretation of the contract does not itself create an ambiguity in the contract. Ad Two, Inc. v. City & County of Denver, supra.

The generally accepted meaning of the term "resale" contemplates that there first be a sale. This term is not ambiguous. Additionally, before concluding the word was not ambiguous, the trial court heard evidence that builders and Adams both believed that condition B would apply if the Alcazar property were purchased by Adams, construction completed by builders or another contractor, and the property subsequently sold by Adams. This scenario supports the trial court's determination that a resale in those cireumstances would have satisfied condition B, would have allowed Adams to participate in the value of the Aleazar property, and would have placed her in a position to pay builders $200,000.

Thus, we conclude that the trial court did not err when it determined that condition B of the promissory note was not met.

II. Award of Damages

Builders contend the evidence was insufficient to support the trial court's award of damages on Adams' counterclaims. We agree in part.

Generally, recovery for damages is allowed onee the cause and existence of damages have been established, even though the exact amount of damages may be uncertain or impossible to determine. Graphic Directions, Inc. v. Bush, 862 P.2d 1020 (Colo.App.1993). However, damages based on mere speculation and conjecture are not allowed. Sonoco Prods. Co. v. Johnson, 23 P.3d 1287 (Colo.App.2001).

One claiming damages must submit "substantial evidence, which together with reasonable inferences to be drawn therefrom provides a reasonable basis for computation of the damage." Pomeranz v. McDonald's Corp., 843 P.2d 1378, 1383 (Colo.1993).

Substantial evidence is that which is probative, credible, and competent. It is evidence of a character that would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradicting testimony or contradictory inferences. Graphic Directions, Inc. v. Bush, supra.

Accordingly, if there is no competent evidence to support a damage award, it is clearly erroneous. Sonoco Prods. Co. v. Johnson, supra.

The trial court has the sole prerogative to assess the amount of damages, and its award will not be set aside unless it is manifestly and clearly erroneous. Under the cireumstances of each case, the trial court has the responsibility to make a reasonable finding that would provide for a fair, equitable, and adequate award of damages. Sonoco Prods. Co. v. Johnson, supra.

Although the evidence is somewhat conflicting, Adams testified that she paid the landscaping company $2,610 for sod, but was only reimbursed $2,500 by builders, and is thereby entitled to $110 in damages.

However, based on our review of the record, we conclude that Adams did not present evidence from which the trial court could compute her damages related to her carpet replacement claim.

Initially, Adams had claimed damages of $18,980 for the replacement of carpeting that builders would not cover under warranty. Adams' testimony reveals that the carpeting was wearing severely on the stairway and had buckled in the master bedroom. She stated that the cost of replacing the carpet throughout the house was $18,418.12, and that she replaced the carpet on the stairs with a metal treatment that cost approximately $4,500. Yet, Adams presented no evidence of the cost to replace carpet only on the stairs or in the master bedroom. For example, she included no measurements of the master bedroom or stairs, and she did not present any evidence -of the cost of the carpet per square yard. However, although the trial court conceded that it did not have any way to estimate the amount of damages for the carpeting, it assessed damages of $2,500.

We conclude that the evidence Adams presented did not provide a reasonable basis from which the trial court could determine that she suffered $2,500 in damages. Thus, Adams' evidence was insufficient, as a matter of law, to establish damages; consequently, the damages award for carpeting on the stairs and in the master bedroom cannot stand.

Therefore, we affirm the trial court's determination of $110 in damages for landsecap-ing expense and reverse the trial court's award of damages for the carpet.

III. Attorney Fees

Builders make three arguments that the trial court erred when it granted Adams' request for attorney fees: (1) there was no basis for an award of attorney fees; (2) Adams waived any claim she might have for attorney fees; and (8) the trial court erred by awarding attorney fees without holding a hearing. We disagree with the first two contentions, but agree with the third.

A. Basis for Award of Attorney Fees

We reject builders' contention that there was no contractual or statutory basis under which the trial court could award attorney fees. ~ j - |

In the absence of a statute, court rule, or private contract to the contrary, attorney fees are not recoverable by a prevailing party in either a contract or a tort action. Agritrack, Inc. v. DeJohn Housemoving, Inc., 25 P.3d 1187 (Colo.2001).

Here, because no statute or rule provides for the award of attorney fees, the contracts between the parties are the only possible basis for such an award. We focus, therefore, on paragraph 16(B) in the real estate contract, which provides in pertinent part, "In the event of any litigation or arbitration arising out of this contract, the court shall award the prevailing party all reasonable costs and expenses, including attorney fees" (emphasis added).

The trial court determined that builders' claims arose under the real estate contract. Builders argue that their claims cannot be characterized as arising out of the real estate contract because their complaint only sought to collect money owed under the promissory note, which does not contain an attorney fees provision and is an entirely independent document. We are not persuaded.

The language "arising out of" has not been interpreted in a breach of contract case in Colorado. However, in tort actions for bodily injury or property damage, the supreme court has said the language "arising out of" means to "originate from," "grow out of," or "flow from." City & County of Denver v. Gonzales, 17 P.3d 137, 141 (Colo.2001)(interpreting language in an automobile insurance policy). We see no reason why this definition should not apply to the same language in an attorney fees provision in a real estate contract.

Here, the record shows that builders' claims arose under the real estate contract. Throughout the litigation, builders argued that Adams had agreed to a purchase price of $1,200,000 for the Cordillera property. Builders characterized the transaction between the parties as one real estate transaction bifurcated into two payment agreements-$1,000,000 specified in the real estate contract and $200,000 specified in the promissory note. The promissory note itself states that Adams agreed to pay builders an additional $200,000, if certain conditions were met, in consideration for builders' agreement to sell the Cordillera property to Adams for $1,000,000 in the real estate contract. Additionally, the promissory note states that it is contingent upon Adams' purchase of the Cordillera property as set forth in the real estate contract.

Moreover, the promissory note involves the same transaction and subject matter as the real estate contract, and the parties signed the note contemporaneously with the real estate contract. Finally, the promissory note exists only as a result of the payment terms outlined in the real estate contract. Accordingly, we conclude that builders claims originated or flowed from the real estate contract.

We are not persuaded by builders' reliance on Burt v. Craig, 146 Colo. 173, 360 P.2d 976 (1961), to reach a different conclusion. In Burt, the supreme court affirmed the trial court's denial of the plaintiffs' request for attorney fees under a promissory note when the plaintiffs brought an action for declaratory judgment under a separate contract. The promissory note provided for payment of attorney fees in the event that counsel was employed to enforce it. Although the contract referred to the terms of the promissory note, the Burt court stated that the plaintiffs "elected to forego action on the note and chose to proceed under the default and surrender terms of the contract" Burt v. Craig, supra, 146 Colo. at 178, 360 P.2d at 979. The court found that the note and mortgage were only remotely connected to an action for declaratory judgment based on a contract.

Thus, relying on Burt, builders maintain that a trial court may not incorporate into one document an attorney fees provision from an independent document. We disagree for two reasons. First, the Burt court did not address whether the attorney fees provision of the promissory note contained any "arising out of" language. Second, in Burt, attorney fees were expressly available under the promissory note if counsel were employed to enforce the note. The Burt plaintiffs brought their action under a separate recovery provision in the contract, not under the promissory note. Therefore, we conclude that Burt is distinguishable, and that the trial court did not err when it determined that Adams, as the prevailing party, was entitled to attorney fees under the real estate contract.

B. Waived Attorney Fees

Builders next argue that Adams waived any claim to attorney fees by failing to include the claim in the trial management order. We disagree.

Concerning the trial management order, C.R.C.P. 16(c)(1)(V) provides: "Each claiming party shall set forth a detailed and itemized calculation of damages or description of relief sought and the basis therefor."

Attorney fees are neither costs nor damages, but a hybrid, of each. Ferrell v. Glenwood Brokers, Ltd., 848 P.2d 936 (Colo.1998).

Whether an award of attorney fees is authorized by statute or by contract, if the award is dependent upon success in the litigation in which the fees are to be awarded and the fees are for services rendered in connection with that litigation, a determination of the propriety of an award of fees need not be made until that litigation is completed and the result is known. Indeed, until the litigation is completed, it may be impracticable to calculate the proper amount of fees to be awarded, either because the extent of the remaining services to be rendered cannot be ascertained or because the result achieved may itself affect the proper amount of fees to be awarded. Roa v. Miller, 784 P.2d 826, 830 (Colo.App.1989).

Furthermore, if attorney fees are simply the consequence of a contractual agreement to shift fees to a prevailing party, they are to be treated as costs and not damages, at least where the fee-shifting contract provision is not the subject of the dispute between the parties and the contract itself is proven to exist. It is within the sound discretion of the trial court to defer consideration of the claim for fees, and the amount of such fees, until after the merits of the case are decided. Chartier v. Weinland Homes, Inc., 25 P.3d 1279 (Colo.App.2001).

Here, although Adams did not raise the issue of attorney fees in the trial management order, she did request attorney fees and costs in her counterclaim. Therefore, builders had notice that attorney fees were an issue. In addition, the trial court could properly address this issue after trial, whether or not Adams had previously sought to reserve that issue. See Roa v. Miller, supra (a successful plaintiff claiming attorney fees under a provision in a promissory note was not required to present evidence of such fees at trial).

Therefore, we conclude that Adams did not waive her claim to attorney fees by failing to include the claim in the trial management order.

C. Hearing on Attorney Fees

Builders also contend that the trial court abused its discretion in awarding Adams $62,563 in attorney fees without holding an evidentiary hearing on the issue. We agree.

Relying on In re Marriage of Aldrich, 945 P.2d 1370 (Colo.1997), and Pedlow v. Stamp, 776 P.2d 382 (Colo.1989), builders argue that a party that makes a timely request for a hearing is entitled to a hearing. However, Adams argues that based on the language of C.RCP. 121 § 1-22, the trial court acted within its discretion in electing to forgo a hearing. We agree with builders.

C.R.C.P. 121 $ 1-22(2)(c) provides, in relevant part:

Any party which may be affected by the motion for attorney fees may request a hearing within the time permitted to file a reply.... When required to do so by law, the court shall grant a party's timely request for a hearing. In other cases where a party has made a timely request for a hearing, the court shall hold a hearing if it determines in its discretion that a hearing would materially assist the court in ruling on the motion.

In Aldrich and Pedlow, the supreme court did not consider whether a hearing was required, when requested, under C.R.C.P. 121 § 1-22, Nevertheless, the supreme court held that a party requesting a hearing on its request for attorney fees under §§ 13-17-102 and 14-10-119, C.R.S$.2001, was entitled to one. The supreme court reached this conclusion even though neither statute included any provision for a hearing.

When a hearing is requested to determine the reasonableness and necessity of attorney fees, due process requires that the trial court hold such a hearing. In re Marriage of Mockelmann, 944 P.2d, 670 (Colo.App.1997) (requiring a hearing under § 14-10-119).

Furthermore, because the reasonableness of the amount of attorney fees requested by a party is not verifiable by reference to any statute or other fixed standard, if the reasonableness of such fees is challenged, the challenging party is entitled to a hearing, if it requests one. See In re Marriage of Mockelmann, supra; Dunlap v. Long, 902 P.2d 446 (Colo.App.1995)(where reasonableness of expert fees is challenged, and a hearing requested, challenging party is entitled to a hearing on issue notwithstanding language in C.R.C.P. 121 § 1-15(4) stating court may order a hearing at its discretion).

Here, in response to Adams' motion for fees and costs, builders specifically requested a hearing on the reasonableness of the fees and submitted an affidavit from a Colorado lawyer stating that such fees were unreasonable. Although the trial court made findings as to the reasonableness of the requested attorney fees, disputed issues of fact still remained.

We conclude these issues should have been resolved after a hearing at which the parties' witnesses would be subject to cross-examination. Thus, we hold that, notwithstanding the discretionary language in C.R.C.P. 121 § 1-22(2)(c), a party is entitled to an eviden-tiary hearing to determine a reasonable amount of attorney fees at least when, as here, it presents the affidavit of an expert on attorney fees raising disputed issues of fact and a significant amount of fees has been requested.

Accordingly, we conclude that builders were entitled to an evidentiary hearing on the reasonableness of Adams' claim for attorney fees. Therefore, we reverse the trial court's award of attorney fees and remand for an evidentiary hearing and a determination of a reasonable amount of attorney fees.

The judgment is affirmed exeept as to the award of money damages for the carpet, which is reversed. The order determining Adams' entitlement to attorney fees is affirmed, except as to the amount of attorney fees, which is reversed, and the case is remanded for additional proceedings, including an evidentiary hearing, consistent with this opinion.

METZGER and NEY, JJ., concur.


author: Judge NIETO.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert J. FREEMAN, Defendant-Appellant.
    No. 99CA2152.
    Colorado Court of Appeals, Div. III.
    Dec. 20, 2001.
    Certiorari Denied June 3, 2002.

      Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    Michael P. Zwiebel, Greeley, CO, for Defendant-Appellant.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2001.

   Opinion by

Judge NIETO.

Defendant, Robert J. Freeman, appeals the judgment of conviction entered upon jury verdicts finding him guilty of one count of attempted first degree murder, two counts of attempted second degree murder, and one count of conspiracy to commit first degree murder. We affirm.

Defendant attempted to murder his stepdaughter and her boyfriend by placing a pipe bomb under their car. Defendant attempted to activate the bomb by remote control, but it only partially detonated. The stepdaughter then got out of the car, and defendant shot her twice as she was running away. Defendant was arrested at the scene.

Defendant pled not guilty by reason of insanity. A unitary jury trial was held pursuant to § 16-8-105.5, C.R.S.2001, and defendant was convicted of all charges.

I.

Defendant contends that his right against self-incrimination was violated when the trial court admitted statements he made during a court-ordered sanity examination without giving the jury an instruction limiting their use of the statements. We disagree.

After defendant entered his plea of not guilty by reason of insanity, the trial court ordered that defendant be examined by a psychiatrist. The psychiatrist concluded that defendant was sane at the time the erimes were committed. The psychiatrist testified at the unitary trial concerning incriminating statements defendant made during the mental examination.

Holding a single trial on both insanity and guilt does not violate a defendant's right against self-incrimination. Similarly, the privilege against compulsory self-incrimination is not violated when psychiatrists who have examined a defendant testify regarding the defendant's statements to them. The unitary trial statutes include provisions to protect a defendant's right against self-incrimination. People v. Bielecki, 964 P.2d 598 (Colo.App.1998).

Section 16-8-106(2)(b), C.R.S8.2001, provides that a defendant shall have a privilege against self-incrimination during an examination to determine sanity. Moreover, § 16-8-107(1.5)(a), C.R.8.2001, provides in pertinent part that:

evidence acquired directly or indirectly for the first time from a communication derived from the defendant's mental processes during the course of a court-ordered examination ... is admissible only as to the issues raised by the defendant's plea of not guilty by reason of insanity, and the jury, at the request of either party, shall be so instructed. (emphasis added)

Before trial, defendant filed a motion to declare § 16-8-101, et seq., C.R.8.2001, unconstitutional and to preserve his constitutional rights. In his motion, defendant asserted that, as a part of its duty to advise him of the consequences of pleading not guilty by reason of insanity, the trial court was required to advise him: (1) what procedures would be adopted to ensure that no evidence acquired by the prosecution for the first time during the mental examination would be used against defendant except for the limited purpose allowed under § 16-8-107(1), C.R.S$.2001; and (2) what limiting instruction would be given to the jury pursuant to § 16-8-107(1.5)(a).

Defendant argues that his pretrial motion constituted a request for an instruction limiting the use of his statements made during the mental examination. He asserts that the court's failure to give such an instruction constitutes reversible error. We reject this argument.

Defendant's motion, filed almost two years before trial, requested that the trial court advise him of the consequences of pleading not guilty by reason of insanity so that he could intelligently decide whether to persist in that plea. Defendant's motion was not a request for the trial court to give a limiting instruction, but rather a request for clarification of what instruction the court might give pursuant to § 16-8-107(1.5)(a).

When the evidence was actually presented to the jury at trial and when the issue of how to instruct the jury was raised, defendant did not request an instruction pursuant to § 16-8-107(1.5)(a). Prior to voir dire, the trial court asked the parties to tender any instructions relating to insanity, and defendant did not request a limiting instruction. Also, defendant did not tender or request a limiting instruction when the psychiatrist testified at trial, nor did he request an instruction during the discussion of jury instructions after both parties rested.

Section 16-8-107(1.5)(a) only requires a limiting instruction "at the request of either party." If the General Assembly had intended to require a limiting instruction in every case, it would have used mandatory language. See § 16-10-301(4)(d), C.R.S.2001 ("[the trial court shall" instruct the jury on the limited purpose of similar transaction evidence in cases involving unlawful sexual behavior); § 13-25-129(2), C.R.S.2001 ("the court shall instruct the jury" to determine the weight and credibility of child hearsay evidence).

Because defendant did not request a limiting instruction, the trial court did not err in failing to give such an instruction. Cf. Rowan v. People, 93 Colo. 473, 26 P.2d 1066 (1933)(failure to give sua sponte cautionary instruction regarding evidence displayed to the jury but not admitted was not error); People v. Dillon, 633 P.2d 504 (Colo.App.19821)(failure to give sua sponte cautionary instruction regarding accomplice testimony was not error).

Accordingly, we conclude that defendant's right against self-incrimination was not violated.

II.

Defendant next contends that the trial court erred in denying his motion to suppress and in allowing evidence of statements he made to a fellow inmate. Specifically, defendant argues that his Sixth Amendment right to counsel was violated because the inmate was a police informant. We are not persuaded.

When ruling on a motion to suppress, a trial court must both make findings regarding the historical facts of the case and apply the controlling legal standard to the established facts. A court's findings of fact are entitled to deference and will not be overturned if supported by competent evidence in the record. However, if no controlling facts are in dispute, an appellate court may review the issue de novo because the legal effect of established facts is a question of law. People v. King, 16 P.3d 807 (Colo.2001).

After formal eriminal proceedings begin, the prosecution is prohibited from deliberately eliciting statements from the defendant without an express waiver of the right to counsel. Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990). In United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), the Supreme Court noted three important factors in determining whether the prosecution deliberately elicited incriminating statements from the defendant by the use of a secret government agent: (1) that the informant was acting as a paid informant for the government; (2) that the informant was ostensibly no more than a fellow inmate of the defendant; and (8) that the defendant was in custody and charged with a crime. See also People v. Wieghard, 727 P.2d 388 (Colo.App.1986).

Whether a person is an agent of the police is determined by the totality of the cireumstances. It is the defendant's burden to prove that a person was acting as an agent of the police. People in Interest of P.E.A., 754 P.2d 382 (Colo.1988).

The record reveals that an inmate approached a police officer at the detention center. He told the officer that he wished to speak with her about defendant, who was also being detained there. A detective assigned to defendant's case was then contacted and met with the inmate. The detective testified at a motions hearing that he sought and received assurances from the inmate that he was providing the information on his own accord and that the inmate understood he would not receive, nor should he expect to receive, anything in return for providing information. He also testified that similar meetings took place on four other occasions and that similar assurances were obtained from the inmate on each occasion. He further stated that he did not ask the inmate to gather information about defendant.

The officer initially contacted by the inmate was present at each of the meetings with the inmate. She testified that neither she nor anyone else ever indicated to the inmate that they wanted him to obtain information for the police. The inmate also testified at the hearing that he was never asked to obtain or provide information about defendant and that he never received anything in return for providing such information.

In denying defendant's motion to suppress his statements to the inmate, the trial court found there was no attempt by the police to "initiate, induce, coerce, dominate, or direct" the inmate's activities in gathering information about defendant. These findings are supported by the record and will not be disturbed on appeal. Thus, the critical factor, that the inmate was acting as a paid informant for the police, was not established, and the trial court correctly denied the motion to suppress.

Defendant argues that it must have been obvious to the police that the inmate was engaged in an ongoing effort to elicit incriminating information from defendant because the inmate contacted the police on several occasions, each time with more information. However, there is no evidence that the police encouraged or instructed the inmate at any time or that he received anything in return for providing information regarding defendant. The police have no duty to stop an inmate, who is acting independently, from providing information about a fellow inmate. Dufour v. State, 495 So.2d 154 (Fla.1986).

Accordingly, we conclude that defendant's right to counsel was not violated.

IIL.

Defendant next contends that the trial court erred in admitting certain statements he made to a detective, because he had not been re-advised of his rights and was not sufficiently aware of those rights when the statements were made. We disagree.

Before a police officer may interrogate a person who is in custody, he or she must advise the person of certain rights, and the person must knowingly and voluntarily waive those rights before speaking with the officer. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The validity of a waiver of Miranda rights is determined by consideration of the totality of circumstances surrounding the statement. Repeated warnings are not required in order to find that an accused validly waived his privilege against self-incrimination and his right to counsel. People v. Chase, 719 P.2d 718 (Colo.1986).

There are several factors to consider in resolving the validity of a waiver; the lapse of time between the initial advisement and the subsequent interrogation; the extent to which a suspect has been informed or is aware of the subject matter of the interrogation prior to its commencement; whether the accused or the interrogating officer initiated the interview; whether and to what extent the accused was reminded of his or her rights prior to the interrogation; the clarity and form of the defendant's acknowledgement and waiver, if any; and the background and experience of the accused with the erimi-nal justice system. No single factor is determinative; each is important and should be appropriately considered. People v. Chase, supra.

Where an initial Mirando advisement and waiver is followed by a later interrogation not preceded by another Miranda advisement, the ultimate question is whether, considering the totality of cireumstances, the defendant was sufficiently aware of the continuing nature of his or her constitutional rights so as to render any subsequent statement the result of a knowing, intelligent, and voluntary waiver of those rights. People v. Chase, supra.

A detective interviewed the defendant on the morning he was arrested. Defendant was properly advised of his rights before the interview, waived his rights, and voluntarily talked to this detective. Approximately five hours later, another detective contacted defendant to obtain handwriting samples. This detective mentioned that defendant's wife had been located and that Bureau of Alcohol, Tobaceo, and Firearms (ATF) agents were going to speak with her. Defendant then stated that his wife was not involved in the case and that he had done everything himself. This detective proceeded to interrogate defendant, without again advising him of his rights, and the statements made to this detective are at issue here.

Approximately one hour after the second interview, ATF agents contacted defendant. They advised defendant of his rights, obtained a written waiver of rights, and interviewed him.

Here, the trial court's conclusion that defendant understood and waived his Miranda rights during the second interrogation is supported by the record. The interrogation in question took place within a few hours after defendant's initial advisement and waiver of rights. Defendant does not dispute that he understood and waived his rights during the first interrogation. He was aware of the subject matter of the second interrogation, because it involved the same charges for which he was arrested and questioned about earlier that day. Within an hour after the interrogation in question, defendant again waived his rights after an advisement and spoke with ATF agents, thus showing his continued willingness to speak with the police.

This evidence supports the trial court's conclusion that defendant was aware of and voluntarily waived his rights before making the statements in question. See People v. Hopkins, 774 P.2d 849 (Colo.1989)(waiver of Miranda rights need not be express, but may be inferred from the actions and words of the person interrogated).

Thus, we conclude the trial court properly admitted the statements in question.

IV.

Finally, defendant contends that a mistrial should have been granted because his stepdaughter's testimony that he had previously threatened to hit her constituted evidence of a prior bad act inadmissible under CRE 404(b) and because her testimony that he liked to gamble and read about witchcraft was irrelevant. We are not persuaded.

A trial court's evidentiary rulings will not be disturbed on appeal absent an abuse of discretion. In addition, where a trial court abuses its discretion in admitting evidence, the error does not require reversal if it was harmless, meaning that the error did not substantially influence the verdict or affect the fairness of the trial proceedings. People v. Dore, 997 P.2d 1214 (Colo.App.1999).

A mistrial is a drastic remedy that is warranted only when the prejudice to the accused is so substantial that its effect on the jury cannot be remedied by other means. A trial court's denial of a motion for a mistrial will not be disturbed on appeal absent an abuse of discretion. People v. Dore, supra.

A.

Defendant argues the testimony that he had previously threatened to hit his stepdaughter constituted evidence of a prior bad act and was inadmissible under CRE 404(b). Defendant objected to the testimony and argued that it required a mistrial. The trial court denied the motion for mistrial but acknowledged that the evidence should have been addressed in a pretrial motion. Defendant did not, at that time, request that the trial court give a curative instruction or limit the use of the testimony in any way.

The testimony was not offered as evidence of defendant's bad character, but rather as evidence of the relationship between defendant and his stepdaughter. She testified that during incidents she described as "scream fests" defendant "would be screaming just as much as my mother. The only thing is when I would seream back, he would threaten to hit me, tell me to shut up, if I didn't stop sereaming."

The jury had already heard testimony that defendant had threatened to kill his stepdaughter. Under the cireumstance here, the trial court's decision to deny defendant's motion for a mistrial was not an abuse of discretion.

B.

Defendant also argues that the trial court erred in allowing the stepdaughter to testify that defendant gambled and read about witchcraft because it was not relevant under CRE 404(a)(1). However, the trial court allowed the testimony as rebuttal for an anticipated attack on the credibility of the inmate referred to in part II above.

The prosecution explained that it wanted to elicit such testimony from the stepdaughter at that time rather than recall her as a witness after the inmate testified, because she had difficulty testifying due to her troubled emotional state. The inmate later testified as anticipated by the prosecution, and, as anticipated, defendant vigorously attacked his credibility, even referring to him as a "professional liar."

The stepdaughter's testimony corroborated similar evidence from the inmate. The inmate kept written notes of his conversations with the defendant that contained many details, including defendant's statements that he gambled and read about witcheraft. The notes were admitted into evidence without objection. Therefore, the testimony was relevant to bolster the inmate's credibility and the trial court did not err by overruling the objection.

The order of proof and the sequence of witnesses is within the discretion of the trial court. Schlesselman v. Gouge, 163 Colo. 312, 431 P.2d 35 (1967). We conclude that the trial court did not abuse its discretion in allowing the stepdaughter's rebuttal testimony prior to the inmate's testimony.

The judgment is affirmed.

Judge ROTHENBERG and Justice KIRSHBAUM coneur.


author: Judge MARQUEZ.

text:
    The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of E.C. and A.C., Children, and Concerning J.P.R. and N.R., Intervenors-Appellants.
    No. 00CA1959.
    Colorado Court of Appeals, Div. II.
    Jan. 17, 2002.
    Rehearing Denied Feb. 21, 2002.
    Certiorari Denied June 10, 2002.

      H. Lawrence Hoyt, County Attorney, Toni Jo Gray, Assistant County Attorney, Boulder, CO, for Petitioner-Appellee.
    J.M. Stanlee West-Watt, Boulder, CO, for Intervenors-Appellants.
   Opinion by

Judge MARQUEZ.

In this post-termination of parental rights proceeding, J.P.R. and N.R. (paternal grandparents) appeal from an order denying their motion for permanent custody of their grandchildren, E.C. and A.C. We affirm.

The dependency or neglect proceeding was filed in December 1997, and the children were placed with their father in January 1998. The children were subsequently adjudicated dependent or neglected, and treatment plans were approved for the parents.

In September 1998, the children were placed in a foster-adopt home (foster home). Shortly thereafter, the maternal uncle sought to intervene, and in October 1998, the paternal grandparents, who lived in Texas, requested a home study so that the children could be placed with them.

The grandparents' home study was approved in March 1999. At that time, father was in compliance with his treatment plan, and the permanent plan for the children was reunification with him. Accordingly, the children remained in their Colorado foster home.

In May 1999, E.C. made allegations of sexual abuse against father, father discontinued all contact with the children, and the permanent goal for the children became termination and adoption. In August 1999, the maternal uncle filed an objection to the motion to terminate, asserting that placement with him was a less drastic alternative. Although the grandparents supported the uncle's request for placement, they also filed a motion in August 1999 for custody pursuant to § 19-3-605, C.R.S.2001, to protect their rights in the event that the children were not placed with the uncle.

Following a hearing in December 1999, the trial court terminated the parents' rights. Thereafter, the grandparents and the foster parents were allowed to intervene, but the uncle withdrew his request for custody. In August 2000, following a contested hearing, the trial court found that continued placement with the foster parents was in the children's best interests and denied the grandparents' motion for custody.

L.

The grandparents contend that the trial court erred in finding that the Department of Human Services acted properly. They argue that the Department ignored the statutory preference for a relative placement and unduly delayed permanent placement of the children, thus assuring that the children would attach to the foster parents. We find no error.

The Children's Code sets forth a preference for placement of a child with an available and appropriate grandparent if such placement is in the child's best interests. Sections 19-1-115(1), 19-8-605, Although a trial court must consider a grandparent's request for placement, it is not required to grant the request. In re Petitions of B.D.G., 881 P.2d 375 (Colo.App.1993).

The credibility of the witnesses and the sufficiency of the evidence, its probative effect and weight, as well as the inferences and conclusions to be drawn therefrom, are within the discretion of the trial court. Thus, a trial court's findings and conclusions will not be disturbed on review if the record supports them. People in Interest of C.A.K., 652 P.2d 603 (Colo.1982).

The record here reveals that from the time the petition in dependency or neglect was filed until shortly before the post-termination custody hearing, the goal was to reunite the children with their father or to place them with their maternal uncle, both of whom lived in Colorado. Placement with the grandparents in Texas would not have facilitated either alternative.

Further, the trial court reviewed the extensive evidence regarding the appropriate placement for the children. It also reviewed the history of the case, including a home study of the grandparents, their motions for placement and to intervene, and the reasons for delay, and noted that the grandparents had acted appropriately. The court specifically referred to § 19-8-605 and the mandate for preservation of the family unit. It nevertheless found that placement with the foster parents was in the children's best interests and that the evidence was sufficiently compelling to overcome the preference set forth in § 19-8-605. The court also determined that the delay between the termination of the parents' rights and the custody hearing was necessary to allow the trial court to have as much information as possible to determine the children's best interests. '

Thus, placement with the foster parents in Colorado was for the purpose of strengthening family ties and securing a potential relative placement within the state. See §§ 19-1-102(1)(b), 19-3-605, C.R.S.2001. Accordingly, the record supports the trial court's finding that the Department acted appropriately, and the finding will not be disturbed on review. See People in Interest of C.A.K., supra. It also supports a determination that the court did not ignore the statutory preference for a relative placement or unduly delay permanent placement.

IL.

The grandparents next contend that the trial court erred in considering their age in determining the children's best interests. They argue that consideration of their age violated the Department of Human Services rules and regulations, which require compliance with federal anti-discrimination law. Again, we find no error.

Pursuant to the Department's rules and regulations, denial of aid, services, or benefits solely on the basis of age is prohibited. Dep't of Human Services Reg. No. 7.000.71A, 12 Code Colo. Regs. 2509-1.

However, the age of prospective caregivers may properly be considered, together with other factors, in determining whether a placement is in a child's best interests. Such a consideration is implicit in the regulation so long as it is not the sole basis for denial. And, courts in other jurisdictions have considered this factor. See Adoption of Michelle T., 44 Cal.App.3d 699, 117 Cal.Rptr. 856 (1975); In re Marriage of Carrico, 284 N.W.2d 251 (Iowa 1979); Merrill v. Berlin, 316 Mass. 87, 54 N.E.2d 674 (1944); In re Jennifer A., 225 A.D.2d 204, 650 N.Y.S.2d 691 (1996); In re Adoption of Tachick, 60 Wis.2d 540, 210 N.W.2d 865 (1973).

Here, the Department did not deny the grandparents any aid, services, or benefits solely on the basis of their age. Furthermore, even though the trial court considered the grandparents' age in determining the children's best interests, it attributed little weight to it. Instead, as set forth more fully below, proper consideration of numerous other factors formed the basis of the trial court's finding concerning the children's best interests.

Because the trial court's finding was not based solely on the grandparents' age, we find no error. See Dep't of Human Services Reg. No. 7.000.71; Adoption of Michelle T., supra; In re Marriage of Carrico, supra; Merrill v. Berlin, supra; In re Jennifer A., supra; In re Adoption of Tachick, supra.

III.

The grandparents also contend that the trial court erred in finding that the foster parents were the children's psychological parents and that, therefore, adoption by the foster parents was in the children's best interests. They argue that, in the absence of a comprehensive parenting time evaluation, the evidence was insufficient to support the trial court's findings. We disagree.

In determining a child's best interests in a custody proceeding, the trial court may consider the child's psychological attachment to potential caregivers and the potential harm the child may sustain if the attachment is severed. See In re Custody of C.C.R.S., 892 P.2d 246 (Colo.1995).

Although a comprehensive parenting time evaluation was not conducted here, the trial court was privy to a parenting evaluation of the foster parents, the children's psychological evaluations, and an interactional evaluation of the grandparents and the children. The trial court also heard testimony from the children's therapist.

The psychologist who conducted the parenting evaluation of the foster parents, as well as the children's psychological evaluations, testified that the foster parents were the children's psychological parents. According to the psychologist, because the children had suffered the loss of several important relationships, they were at extreme risk of emotional damage if the relationship with the foster parents were disrupted. Despite the psychologist's bias toward placement with family members, she recommended continuing the children's placement with the foster parents so that the children's psychological attachment could be maintained. Finally, the psychologist testified that the children's fragile emotional conditions required an immediate, final, and permanent decision as to their placement.

The grandparents' interactional evaluation was also favorable. The psychologist who conducted that evaluation testified that the children were securely attached to the grandparents, that the grandparents had good parenting skills, and that loss of the grandparents would be significant to the children. The psychologist, who had reviewed the parenting evaluation of the foster parents, also testified that the children would suffer significant loss if their relationship with the foster parents were severed and that disruption of that relationship could cause attachment problems. Because he had not evaluated the foster parents, the psychologist was unable to make a custody recommendation and ree-ommended a comprehensive parenting, time evaluation.

Additionally, the children's therapist testified that, despite their fear of abandonment and inability to trust, the children were securely attached to the foster parents and were at high risk of emotional harm if the relationship were disrupted. Finally, the therapist testified that the lack of a permanent home was exacerbating the children's emotional problems.

Thus, even though a comprehensive parenting time evaluation was not conducted, the record contains ample competent evidence supporting the trial court's findings concerning the children's psychological parents and their best interests. Accordingly, the findings will not be disturbed on review. See People in Interest of C.A.K., supra.

IV.

Arguing that they have no enforceable right to visitation following termination, see People in Interest of J.W.W., 936 P.2d 599 (Colo.App.1997), the grandparents contend that the trial court erred in finding that it could impose sanctions if the foster parents refused to permit ongoing contact between the grandparents and the children. We find no reversible error.

The grandparents misconstrue the trial court's order. The order stated that "the Court may have some other remedial sanctions that it can impose [if the foster parents do not allow contact], I don't know that because that's not before me." Thus, that issue was not addressed. Consequently, the trial court's comments about possible sanctions were obiter dicta and do not give rise to reversible error.

The order is affirmed.

Judge PLANK and Judge ROY concur.


author: Judge KAPELKE.

text:
    Charles W. WARK, Shauna L. Wark, and Savanah J. Wark, by and through her next friends and parents, Charles W. Wark and Shauna L. Wark, Plaintiffs-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF DOLORES, Defendant-Appellee.
    Nos. 00CA1340, 00CA2042.
    Colorado Court of Appeals, Div. I.
    Feb. 28, 2002.
    As Modified on Denial of Rehearing April 25, 2002.

      Crane and Tejada, P.C., Alex C. Tejada, Bethigsh Beale Crane, Durango, Colorado, for Plaintiffs-Appellants.
    Doekhling & Driscoll, P.C., Gary L. Doekhl-ing, Jeffrey L. Driscoll, Grand Junetion, Colorado, for Defendant-Appellee.
   Opinion by

Judge KAPELKE.

In this action arising from an automobile accident, plaintiffs, Charles W. Wark, Shauna L. Wark, and Savanah J. Wark by and through her next friends and parents Charles W. Wark and Shauna L. Wark, appeal the judgment dismissing their state law claims against the Board of County Commissioners of Dolores County (the county) for lack of subject matter jurisdiction and dismissing their claims under 42 U.S.C. § 1988 for failure to state a claim. We affirm and remand for an award of attorney fees.

Plaintiffs were seriously injured and Sava-nah Wark was killed in an automobile accident on a road running through national forest land in the county. The truck in which they were passengers had rounded a blind corner and encountered an oncoming pickup truck. The driver of plaintiffs' truck swerved to avoid a collision, and the truck fell down an embankment into a river.

In this action, plaintiffs asserted breach of contract claims based on an agreement between the county and the United States Department of Agriculture, Forest Service (forest road agreement); tort claims for loss of consortium, loss of services of a minor, and wrongful death; and also claims under 42 U.S.C. § 1988. The forest road agreement outlined the responsibilities of the county and the Forest Service in the development and maintenance of roads that were part of both the Forest Service and the county road systems. The trial court dismissed the contract and tort claims for lack of subject matter jurisdiction, finding that they were barred by the Colorado Governmental Immunity Act (CGIA), § 24-10-101, et seq., C.R.8.2001. The court later dismissed the § 1988 claims as well.

L.

Plaintiffs contend that the trial court erred in applying the CGIA to bar their state law claims. We disagree.

A.

First, plaintiffs contend that the trial court erred in finding that the road on which the accident occurred was a county road, thus rendering the county immune from suit under the CGIA. We disagree.

Governmental immunity issues concern subject matter jurisdiction and are determined in accordance with CRCP. 12(b)(1). See Fogg v. Macaluso, 892 P.2d 271 (Colo.1995). Any factual dispute upon which the existence of jurisdiction may turn is for the trial court to resolve, and an appellate court will not disturb the factual findings of the trial court unless they are clearly erroneous. However, if the underlying facts are undisputed, the issue is one of law, and an appellate court is not bound by the trial court's determinations. City of Colorado Springs v. Conners, 993 P.2d 1167 (Colo.2000); Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1998).

The CGIA provides that "[a] public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant except as provided otherwise in this section." Section 24-10-106(1), C.R.S.2001.

However, governmental immunity is waived by a public entity for actions arising from injuries resulting from "(al dangerous condition of a public highway, road, or street which physically interferes with the movement of traffic." Section 24-10-106(1)(d)(I), C.R.8.2001.

The "dangerous condition" waiver applies to: (1) any road within the corporate limits of any municipality; (2) any highway that is a part of the federal interstate highway system or the federal primary highway system; (8) any highway that is a part of the federal secondary highway system; and (4) any highway that is a part of the state highway system. Section 24-10-106(1)(d)(D), C.R.S.2001. This section has been construed to effect a waiver of immunity for these categories of roads only. Thus, counties do not waive their immunity for actions arising from injuries resulting from dangerous conditions on county roads. Bloomer v. Bd. of County Comm'rs, 799 P.2d 942 (Colo.1990), overruled in part on other grounds by Bertrand v. Bd. of County Comm'rs, 872 P.2d 223 (Colo.1994); Click v. Bd. of County Comm'rs, 923 P.2d 347 (Colo.

Here, the trial court held a limited eviden-tiary hearing to determine the jurisdictional issue of immunity. Based on the evidence, it found that the county had established its county road system in accordance with state statute and that the road on which the accident occurred was included in that system. The court also concluded that plaintiffs breach of contract and tort claims did or could lie in tort and thus fell within the scope of the CGIA. Accordingly, the court held that these claims were barred by governmental immunity.

At the outset, we reject the county's argument that the deposition exhibits relied on by plaintiffs were not properly before the trial court and therefore should not be considered on appeal. The record confirms that these exhibits were submitted at the evidentiary hearing. Thus, they are properly part of the record on appeal.

Plaintiffs argue that the court's finding that the road was a county road was erroneous because there was no direct evidence that the road was actually on the official county road system map filed with the state. Further, they point to evidence that both county and Forest Service personnel believed the county did not have any ownership interest or authority over the portion of road where the accident occurred.

Although there was conflicting evidence, the trial court's finding that the road was a county road was supported by the evidence and was not clearly erroneous. The court relied on evidence that the county had established its secondary road system in 1953 by designating a map, giving public notice, and adopting by resolution the official county road map, see § 48-2-110, C.R.S.2001, as well as on testimony at the hearing indicating that the road was included on the official map.

Because the trial court's finding is not clearly erroneous, we may not disturb it.

B.

In the alternative, plaintiffs argue that the CGIA should be read to include counties among the entities whose immunity is waived for actions for injuries resulting from dangerous conditions on roadways under these cireumstances. We disagree.

Plaintiffs argue that Bloomer v. Board of County Commissioners, supra, was wrongly decided because the supreme court improperly interpreted the CGIA in concluding that counties were not included within the statutory waiver of immunity for dangerous conditions of roadways. Further, citing Bertrand v. Board of County Commissioners, supra, and Walton v. State, 968 P.2d 636 (Colo.1998), plaintiffs stress that the CGIA immunity provisions must be strictly construed and the waiver of immunity provisions deferentially interpreted in favor of victims of negligence by governmental agents. We agree that the principles of interpretation set forth in Bertrand and Walton apply. We nonetheless reject plaintiffs' contention that the statutory waiver of liability for dangerous conditions of roadways applies to claims against counties, even where the roadway shares another designation for which immunity might be waived.

Plaintiffs' contention that Bloomer was wrongly decided was addressed and rejected by a division of this court in Click v. Board of County Commissioners, supra. In holding that the waiver of immunity did not apply, the division stated:

In Bertrand, the [supreme] court overruled Bloomer to the extent that it held that statutory waivers of immunity must be strictly construed. However, we find nothing in Bertrand indicating that the court disapproved of its holding in Bloomer that § 24-10-106(1)(d)(I) did not waive immunity for dangerous conditions present on county roads.

Click v. Bd. of County Comm'rs, supra, 923 P.2d at 350.

We agree with the analysis and holding of the division in Click.

Further, even if we assume, as plaintiffs contend, that the road here was not only a county road but also part of a federal secondary highway system, we nevertheless conclude that the county's immunity remains unaffected.

As interpreted by Colorado courts, immunity under § 24-10-106 attaches to the county itself. See Bloomer v. Bd. of County Comm'rs, supra, 799 P.2d at 945 (the CGIA "makes no provision for waiving the sovereign immunity of counties for dangerous conditions present on county roads") (emphasis added). This interpretation is supported by the statute's legislative history, which shows that the General Assembly intended to protect counties "from being financially overburdened by liability for dangerous conditions that exist on county roads and that the county is financially unable to remedy." Bloomer v. Bd. of County Comm'rs, supra, 799 P.2d at 948.

This essential goal of protecting counties from undue financial burdens would be undermined if we were to read the CGIA to waive a county's immunity in actions arising from dangerous conditions on county roads that carry an additional designation, such as federal secondary highway. We see no basis or authority for such an interpretation.

Accordingly, we conclude that the trial court properly dismissed plaintiffs' claims as barred by governmental immunity.

C.

Plaintiffs also argue that the trial court erred in determining that they failed to establish the existence of a dangerous condition. In light of our conclusion that immunity was not waived, we need not address this argument.

II.

Plaintiffs next contend that the trial court erred in dismissing their § 1983 claims. We reject this contention.

The county filed a motion under C.R.C.P. 12(b) to dismiss plaintiffs' § 1983 claims. Although the county argued that plaintiffs' claims were barred under the qualified immunity doctrine, the trial court's ruling is primarily based on the insufficiency of the allegations in the complaint. See County of Sacramento v. Lewis, 528 U.S. 883, 118 S.Ct. 1708, 140 LEd.2d 1048 (1998)(noting that when the defense of qualified immunity is raised, the court should first determine whether the plaintiff has alleged a deprivation of a constitutional right at all).

To prevail on a claim under § 1983, plaintiffs must show that the county, under color of state law, deprived them of a right secured by the constitution or the laws of the United States. In addition, to state a claim against a government entity, plaintiffs must allege that the acts complained of were the result of an established eustom or policy. Reifschneider v. City & County of Denver, 917 P.2d 315 (Colo.App.1995).

Here, plaintiffs alleged that the county, acting under color of state law, deliberately, intentionally, or recklessly deprived them of life, liberty, and property without due process of law. The substance of their claim is that, by failing to remedy the dangerous condition of the road, the county created a situation that led to the harm. The threshold question is whether failure to maintain or improve a road, even recklessly or intentionally, constitutes a violation cognizable under § 1988. We conclude it does not.

The Due Process Clause was intended to prevent the arbitrary exercise or abuse of governmental power and to protect against deliberate decisions of governmental officials to deprive a person of life, liberty, or property. DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989); Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 LEd.2d 662 (1986).

The constitutional guarantee of due process does not, however, convert all common law duties owed by government actors into constitutional torts. As the Supreme Court noted in DeShaney, supra:

The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.

489 U.S. at 195, 109 S.Ct. at 1003, 103 L.Ed.2d at 258-59.

To prevail on a substantive due process claim, plaintiffs must demonstrate that the state acted in a manner that "shocks the conscience." County of Sacramento v. Lewis, supra, 523 U.S. at 846, 118 S.Ct. at 1717, 140 L.Ed.2d at 1057. This standard requires more than a showing of intentional or reckless conduct. Uhlrig v. Harder, 64 F.3d 567 (10th Cir.1995).

Plaintiffs have not alleged conduct so arbitrary as to shock the conscience. They assert in the complaint that the road was made dangerous by:

(a) its width; (b) erosion of its edges; (c) the manner and infrequency of grading; (d) the materials used for its construction, improvement and/or maintenance; (e) the infrequency of maintenance work on the road; (£) the failure to set and post appropriate vehicle and speed restrictions; and (g) the failure to post appropriate warnings of the narrow road.

These allegations, viewed in the light most favorable to plaintiffs, fail to demonstrate conduct so outrageous that it shocks the conscience, thus warranting a constitutional remedy. The substance of the complaint essentially Hes in tort, and we conclude that it falls outside the seope of § 1983.

Further, we find no authority to support plaintiffs' assertion that the county had a constitutional duty to make road improvements. See Collins v. City of Harker Heights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)(city had no constitutional duty to provide safe working environment); Hull v. City of Duncanville, 678 F.2d 582 (5th Cir.1982)(no federal right implicated in city's failure to enforce speed limits and maintain train crossing and traffic signals); Reifschneider v. City & County of Denver, supra (no right guaranteed under federal constitution or other law to proper removal of snow and ice).

We also reject plaintiffs' assertion that they have a due process claim under the "danger creation" exception.

Generally, the state has no duty to protect from harm inflicted by third persons, such as the driver of the other truck here. However, the state can be found to have an affirmative duty to protect citizens from constitutional injury inflicted by a private person if the plaintiff shows that the state created the danger that ultimately caused the harm or increased the individual's vulnerability to that harm. Henderson v. Gunther, 931 P.2d 1150 (Colo.1997).

The "danger creation" exception requires a showing that the state has done more than merely create a dangerous environment in which the harm occurs. Henderson v. Gunther, supra. Further, as the Tenth Circuit Court of Appeals stated in Armijo v. Wagon Mound Public Schools, 159 F.3d 1253, 1263 (10th Cir.1998): "The key to the state-created danger cases ... lies in the state actors' culpable knowledge and conduct in affirmatively placing an individual in a position of danger, effectively stripping a person of her ability to defend herself, or cutting off potential sources of private aid."

Even where the state has created an environment where harm might occur, the plaintiff must demonstrate that the danger is specific to an individual or a discrete class of persons, as opposed to the public at large. Morse v. Lower Merion Sch. Dist., 132 F.3d 902 (3d Cir.1997)(state is liable under danger creation exception only where it acts in a way that leaves a discrete plaintiff vulnerable to a foreseeable injury); Uhlrig v. Harder, supra; Jones v. City of Carlisle, 3 F.3d 945 (6th Cir.19983)(plaintiffs failed to show they were any more vulnerable than other citizens to danger allegedly created by the government).

Here, plaintiffs did not allege that the county specifically placed them, as opposed to the general driving public, in a situation where they were particularly vulnerable to hazards from third parties.

Thus, we agree with the trial court that the allegations in the complaint were insufficient to establish that plaintiffs were deprived of a right, privilege, or immunity secured by the federal constitution or federal law.

Accordingly, we perceive no error in the trial court's dismissal of plaintiffs' § 1988 claims.

III.

Following the dismissal of plaintiffs' claims, the trial court awarded the county attorney fees pursuant to § 13-17-201, C.R.8.2001, and 42 U.S.C. § 1988. The county also requests attorney fees incurred in defending this appeal of the dismissal of plaintiffs' claims.

As relevant here, § 183-17-201 provides:

In all actions brought as a result of a death or an injury to person or property occasioned by the tort of any other person, where any such action is dismissed on motion of the defendant prior to trial under rule 12(b) of the Colorado rules of civil procedure, such defendant shall have judgment for his reasonable attorney fees in defending the action.

Under this section, an award of attorney fees is mandatory when a trial court dismisses an action under C.R.C.P. 12(b). Barnett v. Denver Publ'g Co., 36 P.3d 145 (Colo.App.2001). A party who successfully defends such a dismissal order is also entitled to recover reasonable attorney fees incurred on appeal. Henderson v. Bear, 968 P.2d 144 (Colo.App.1998).

Therefore, in light of our affirmance of the dismissal of plaintiffs' state law claims, the county is entitled to an award of its reasonable attorney fees incurred on appeal as they relate to those claims.

However, the county's request for attorney fees relating to plaintiffs' appeal of the dismissal of the § 1988 claims is governed by the federal standards under 42 U.S.C. § 1988. Under those standards, a prevailing defendant may recover fees only upon a finding that the plaintiff's claim or appeal was frivolous, unreasonable, or without foundation. State v. Golden's Concrete Co., 962 P.2d 919 (Colo.1998); Rose v. City & County of Denver, 990 P.2d 1120 (Colo.App.1999). Because we conclude that plaintiffs' appeal of the dismissal of its § 1988 claim was not frivolous, unreasonable, or without foundation, we deny the county's request as it relates to that claim.

The judgment is affirmed, and the case is remanded for an award of reasonable attorney fees incurred by the county in connection with the dismissal of plaintiffs' state law claims.

Judge METZGER and Judge ROTHENBERG concur.