author: Justice MARTINEZ

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Michael Lee REED, Defendant-Appellee.
    No. 02SA131.
    Supreme Court of Colorado, En Banc.
    Oct. 21, 2002.

      Stuart A. VanMeveren, District Attorney, J. Andrew Taylor, Deputy District Attorney, Fort Collins, Colorado, Attorneys for Plaintiff.
    The Law Firm of Douglas S. Joffe, Douglas S. Joffe, Denver, Colorado, Attorneys for Defendant.
   Justice MARTINEZ

delivered the Opinion of the Court.

In this interlocutory appeal brought pursuant to section 16-12-102(2), 6 C.R.S. (2002) and C.A.R. 4.1, the People challenge the trial court's suppression of evidence seized while searching defendant Michael Reed's motel room and truck. The trial court concluded, based on testimony in a veracity hearing, that the affidavit upon which the search warrant was based contained false statements. Upon excising some of the false information, the trial court ruled that the remaining affidavit did not support a finding of probable cause and suppressed evidence obtained during the execution of the search warrant. The court also found that the officer-affiant preparing the affidavit was fully aware or could have been aware of the true facts in this case and, therefore, held that the good-faith exception to the exclusionary rule did not apply. See § 16-3-808, 6 C.R.S. (2002) (codifying the good-faith exception in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). We first hold that the trial court improperly exeised information from the warrant affidavit. We then determine that the unexcised affidavit establishes probable cause for the issuance of a search warrant. Therefore, we reverse.

I. Facts and Procedure

Following the seizure of components of a methamphetamine manufacturing lab and numerous documents detailing the manufacturing process, defendant Michael Reed was arrested and charged with conspiracy to manufacture methamphetamine, a schedule II controlled substance. § 18-18-405, 6 C.R.S. (2002). Reed moved to suppress the evidence because he claimed that the affidavit contained erroneous facts and failed to articulate probable cause for the search and seizure.

On November 6, 2001, Officer Pierick of the Larimer County Drug Task Force obtained a warrant authorizing the search of a motel room and vehicle for evidence relating to the possession and manufacture of any controlled substance. The affidavit in support of the warrant alleged that Reed possessed known precursors to methamphetamine including pseudoephedrine, ephedrine, and acetone. The affidavit stated that after inspecting Room 3 at the Loveland Motel, Loveland Officer Dutelle, based on his experience and training, concluded that Room 3 contained remnants of methamphetamine production. The affidavit also recited that Reed initially rented Room 3 in the Loveland Motel, but later moved to Room 12.

In addition, the affidavit described two other observations. First, Reed and Levi Ornelas, who was arrested for methamphetamine manufacturing in January 2001, were seen smoking outside Room 12 two days prior to the search. The affidavit noted that smoking outside is common practice for methamphetamine manufacturers to avoid igniting vapors associated with production. Second, the affidavit stated that on the day of the search, Reed was observed driving a truck into the Loveland Motel parking lot on his way to Room 12.

Onee the warrant was signed Officer Pier-ick undertook the search and seized evidence related to methamphetamine production. Reed filed a motion to suppress the evidence based on two false statements in the affidavit. After a veracity hearing, the trial count found that both of the contested statements contained erroneous information. It is not entirely clear what part of those statements the court excised. After the court struck some information from the affidavit, it found that the remaining affidavit failed to establish probable cause and suppressed all evidence obtained during the search.

We first consider whether the trial court properly excised any information from the affidavit in support of the warrant. Upon concluding that information in the affidavit is not properly excised, we proceed to determine that probable ecause for the search and seizure exists within the four corners of the affidavit.

II. Veracity Hearing

A defendant may contest the sufficiency of a warrant affidavit on the ground that the statements of the affiant are false. People v. Winden, 689 P.2d 578 (Colo.1984). Since probable cause determinations are based on inferences drawn from the language in warrant affidavits, false statements may result in a mistaken finding of probable cause. Id. at 582-88. If the defendant shows some good faith basis in fact to question the accuracy of an affidavit for a search warrant, a veracity hearing should be held. People v. Dailey, 639 P.2d 1068, 1074-75 (Colo.1982).

At a veracity hearing, Datley requires that three issues be addressed: (1) whether the warrant affidavit contains false statements; (2) whether the false statements must be excised; (8) if the statements are excised, whether the remaining statements establish probable cause to authorize the search. People v. Young, 785 P.2d 1806, 1308 (Colo.1990) (citing Dailey, 639 P.2d at 1075). False statements in affidavits must be stricken under the Fourth Amendment of the United States Constitution if the source of error is intentional falsehood or reckless disregard for the truth by the affiant. Winden, 689 P.2d at 582. If the error resulted from some other source, such as negligence or a good-faith mistake, the question of appropriate sanctions, if any, is initially left to the discretion of the trial court, but subject to our subsequent review. Id. Thus, not all false information in a warrant affidavit need be stricken; rather, the source of error is determinative. Young, 785 P.2d at 1309. To evaluate the falsity of a statement or the source of an error, a court may consider facts outside the four corners of an affidavit. Dailey, 639 P.2d at 1078.

Reed contested the veracity of two statements in the affidavit in support of the warrant. At the veracity hearing, Reed first challenged an allegation in the affidavit which stated, "On 11/04/01 Michael Reed and his associate Levi Ornelas were observed smoking cigarettes outside of room twelve at approximately 11:00 P.M." He also disputed a second statement in the affidavit: "Michael Reed had rented room number three at the Loveland Motel and changed into room number twelve on 11/04/01."

Again, it is unclear whether the trial court struck the second statement at all and whether it completely or only in part excised the first statement from the affidavit. For both statements, we disapprove of any excision from the affidavit as discussed below.

We apply the Datley test to the allegedly false information included within the affidavit. Under Dailey, a trial court must first determine the veracity of the contested statement. Second, it is imperative that the trial court make specific findings why the false statements are in the affidavit: whether the error was intentional, or with reckless disregard for the truth, or due to negligence or a good faith mistake. We do not address the third prong of Datley which requires an evaluation of whether the excised material affected a finding of probable cause because we conclude that none of the contested information should have been stricken.

A. False Statements

In response to testimony in the veracity hearing, the trial court determined that some or all of the first statement, describing Reed and Ornelas smoking cigarettes together outside Room 12 two days prior to the search, was false. Specifically, Ornelas testified that he did not know of Reed until he and Reed were together at the Larimer County Detention Center. Since the prosecution adduced no evidence to the contrary, the court found the statement to be false.

Similarly, the court determined the second statement that Reed had initially rented Room 3 and moved to Room 12 on November 4, 2001, to be clearly erroneous based on motel records and testimony given by Sarah Verner Reed. However, the trial court also found that evidence and testimony indicated the defendant had been in Room 8 prior to November 4th. In addition, the motel housekeeping believed that defendant was renting Room 8.

B. Source of Error

After the trial court assessed the veracity of the disputed statements, it did not follow the second prong of the Datley test: It did not evaluate the origin of error for the false statements. Because the trial court deleted all or part of the first statement without determining the source of error, its strike of that information was contrary to Dailey. In addition, if the trial court had performed an evaluation of the origin of error in the first statement, it would not have excised any of it; testimony from the veracity hearing suggests that the source of error was not an intentional falsehood, reckless disregard for the truth, or even negligence. Rather, the affiant relied on the first-hand observations of a fellow officer who recognized Ornelas and Reed. It is well-established that an affiant need not have personal knowledge of statements in an affidavit under the fellow officer rule. People v. Alexander, 797 P.2d 1250, 1253-54 (Colo.1990) (officer who does not personally possess sufficient information to constitute probable cause may nevertheless make a valid arrest if (1) officer acted upon the communication of a police officer, and (2) the police, as a whole, have sufficient information to constitute probable cause); People v. Pannebaker, 714 P.2d 904, 908 (Colo.1986) {information supplied by fellow officer was reliable). Therefore, because the reasonable affiant could have relied on information provided by a fellow officer, a trial court cannot excise that information from the warrant affidavit.

Similarly, the trial court did not evaluate the source of error for the second statement which incorrectly stated that defendant had moved from Room 3 to Room 12 on November 4th. Like the first statement, this statement cannot be attributed to intentional falsehood or reckless disregard for the truth. At best, it shows negligence on the affiant's part to consult the motel records. Again, since a reasonable affiant can rely on information from a fellow officer or from a motel manager who stated that Reed rented motel Room 3, and because evidence indicates that Reed had been in Room 3 prior to November 4th, this error did not require excision from the warrant affidavit. See Young, 785 P.2d 1306 (in a similar case, where officer reasonably relied on information that later proved to be false, the officer was not negligent).

In summary, no part of either of the two disputed statements should have been stricken from the affidavit under Dailey. Accordingly, we next proceed to determine whether the unexcised affidavit supported a showing of probable cause.

III. Probable Cause

A search warrant may only be issued upon a showing of probable cause supported by cath or affirmation particularly describing the place to be searched and the things to be seized. U.S. Const. amend. IV.; Colo. Const. art. II, § 7. Probable cause exists when an affidavit for a search warrant alleges sufficient facts to warrant a person of reasonable caution to believe that evidence of criminal activity is located at the place to be searched. People v. Quintana, 785 P.2d 934, 936 (Colo.1990). When a reviewing court examines a search warrant after the fact to determine whether it was valid, that court must assess whether the affidavit provided a "substantial basis" for the conclusion that probable cause existed. Illinois v. Gates, 462 U.S. 218, 239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Reed contends that the affidavit in support of a warrant to search Room 12 and his truck failed to articulate probable cause. Because probable cause must be based on the information contained within the four corners of the affidavit we review only the statements recited therein.

The affidavit stated that officers had prior knowledge that Reed possessed precursors to the methamphetamine. In a routine stop for a broken taillight, a few days prior to the November 6th search, a police officer discovered in Reed's vehicle an empty acetone container and a white powdery substance which field tested positive for ephedrine. Furthermore, Reed and two others were recognized by King Soopers' employees as responsible for stealing large amounts of cold tablets that contained pseudoephedrine, another ingredient in methamphetamine production.

The affidavit alleged that Reed is an associate of Levi Ornelas and that both have prior arrests: Ornelas for manufacturing methamphetamine in January 2001 and Reed for the possession of dangerous drugs in August 1994. Reed and Ornelas were observed smoking together outside Room 12 a couple of days prior to the search. The affiant stated that based on his training, methamphetamine producers commonly smoke outside to avoid igniting vapors associated with production.

The affidavit further recited that remains of a methamphetamine manufacturing lab were discovered in Room 3 at the Loveland Motel. Room 8 contained a white cake-like substance that looked like the leftover product from a "pill extraction." In addition, iodine stains were found on the toilet indicating that a liquid had been poured into it. Furthermore, three to four very strong air fresheners were left in Room 8. Based on the affiant's training and experience, people involved in the manufacture of methamphetamine use air fresheners to cover the smell of production.

Finally, the affidavit stated that Reed had rented Room 3 and then moved to Room 12 and that he drove his truck into the Loveland Motel parking lot on his way to Room 12.

Based on the facts recited in the affidavit, we find that the affidavit provided sufficient information to support probable cause. This case is particularly analogous to People v. Hakel, 870 P.2d 1224 (Colo.1994). In Hakel, police monitored two controlled purchases of cocaine by a confidential informant. Id. During the commission of a deal, the police observed Hakel's behavior: he drove from his home to a motel; entered his motel room; drove to a parking lot of a grocery store where he met his contact; and immediately thereafter returned to his residence. Id. Hakel had previously been convicted of possession of cocaine and possession of cocaine with intent to distribute. Id. at 1227. Based on surveillance in the previous conviction alongside new information from the two controlled sales, police obtained a search warrant for the motel room and recovered cocaine powder. Id. at 1227-28. The police thereafter sought a search warrant of Hak-el's home for records of drug transactions although there was no current evidence that Hakel kept these in his home. Id. Hakel claimed that the second search warrant was invalid because there was no nexus between evidence of criminal conduct and his residence. Id. This court found important that Hakel had a predictable pattern of behavior, that he had previously kept such records, and that Hakel went to the motel room directly from his residence en route to the site of the sale and returned to his residence immediately after the sale. Id. Therefore, although the affidavit contained no specific evidence of criminal activity at Hakel's residence, "the link between suspected eriminal activity and a specific location to be searched can be established by cireumstantial evidence and proper inferences drawn therefrom." Id. at 1228. As such, common sense inferences from the officer's personal knowledge of Hakel's present and prior conduct, including the knowledge that on one occasion evidence of Hakel's drug trafficking had been found in a motel room visited by Hakel while traveling to the site of the drug transaction, established probable cause that evidence of the transaction would be located in Hakel's residence. Id.; see also Young, 785 P.2d 1306 (probable cause to search home where methamphetamine precursor found in defendant's car).

In this case, the affidavit established a sufficient nexus between the criminal activity contemplated and the place searched. The defense argues that notwithstanding that "{tlhere might have been hypothetically been something illegal going on in Room 8" because "drug paraphernalia and drug-related precursors" were discovered in Room 3, nothing in the affidavit connects the discovery in Room 3 with any potential criminal activity in Room 12.

Like Hakel, the affidavit shows more than a substantial link between Room 38 and Room 12 and Reed's truck. The officers in this case had prior knowledge from the theft at King Soopers and from the traffic stop that Reed possessed ingredients for methamphetamine production: pseudoephedrine, ephedrine, and acetone. Combined with the information that Room 8 contained signs of methamphetamine production-in addition to the fact reasonably included in the affidavit, that Reed had rented Room 3 prior to November 4th-context was given to the observation that Reed and Ornelas, an individual connected to methamphetamine production, were seen smoking cigarettes outside Room 12. Lastly, the affidavit states that Reed drove his truck into the Loveland Motel parking lot on his way to Room 12 on the day of the search.

Therefore, the officers knowledge of Reed's prior and present conduct, alongside evidence of illegal activity in Room 8, gives rise to common sense inferences that evidence of eriminal activity would be recovered in Room 12 and in Reed's vehicle. Because we find probable cause exists within the four corners of the affidavit, we need not address the good faith exception to the exclusionary rule.

IV. Conclusion

For the foregoing reasons, we find that when Dailey is properly applied to the false statements in the warrant affidavit, it compels the conclusion that no information should have been excised. We hold that the affidavit as presented to the issuing magistrate and without excision satisfied probable cause. Accordingly, we reverse the order of the trial court.

      . In its oral order, the trial court said there was no evidence to support the fact that Reed was smoking outside motel room 12 with Mr. Orne-las. It is unclear whether the court struck the entire statement, including the reference to smoking cigarettes, or merely that Reed was associated with Ornelas.

      . Mrs. Reed is not married to the defendant.


source: Caselaw Access Project

author: Judge CRISWELL.

license: Public Domain

text:
    Greg S. ALEXANDER, Plaintiff-Appellant, v. Casey N. McCLELLAN and the Board of County Commissioners of Douglas County, Defendants-Appellees.
    No. 01CA1063.
    Colorado Court of Appeals, Div. IV.
    July 5, 2002.

      See also 39 P.3d 1265.

      Arckey & Reha, LLC., John F. Reha, Littleton, Colorado, for Plaintiff-Appellant.
    Folkestad & Fazekas, P.C., Ernest F. Fazekas, II, Aaron W. Barrick, Castle Rock, Colorado, for Defendant-Appellese Casey N. McClellan.
    Griffiths, Tanoue, Light, Harrington & Dawes, P.C., Steven J. Dawes, Sean A. Chase, Denver, Colorado, for Defendant-Ap-pellee Board of County Commissioners of Douglas County.
   Opinion by

Judge CRISWELL.

Plaintiff, Greg S. Alexander (buyer), appeals the trial court's judgment following a bench trial dismissing his quiet title claim against defendants, Casey N. McClellan (seller) and the Board of County Commissioners of Douglas County (the Board). We affirm.

This dispute involves a parcel of property, known as Lot 1, Block 19, located in the unincorporated town of Sedalia, Colorado. Before 1986, the property was bounded on the north by Platte Avenue, which had been dedicated as a public road. An adjacent lot, Lot 2, Block 19, abutted the disputed property on the west. A gravel road known as Karcher Street ran north and south over the adjacent lot near the western boundary of the property. As it neared Platte Avenue, Karcher Street crossed the extreme northwest corner of the property to connect with Platte Avenue.

In 1986, the Board adopted a resolution vacating the portion of Platte Avenue abutting the property. The vacation resolution stated, in part:

WHEREAS, that portion of Platte Avenue north of Blocks 19 and 20 in Sedalia, Colorado ... has never been used as a public right-of-way; and
WHEREAS, the vacation of this right-of-way will neither interfere with the development of, nor delay access via public thoroughfare to, existing structures, adjoining properties, utility services or other improvements;
NOW, THEREFORE BE IT RESOLVED BY [THE BOARD] THAT that portion of Platte Avenue north of Blocks 19 and 20, Sedalia, Colorado ... [is] hereby vacated, and all rights of the public in and to the use of said rights-of-way are released and terminated.

In 1995, seller acquired title to vacated Platte Avenue. In 1996, he separately acquired title to the property. In 1998, seller conveyed the property to buyer, but the conveyance made no reference to vacated Platte Avenue. It has previously been determined that, as a result, buyer acquired no interest in vacated Platte Avenue. See Alexander v. McClellan, 39 P.3d 1265 (Colo.App.2001.)

In 1999, buyer filed an action against seller, the Board, and a title insurance company, which is not a party to this appeal. Buyer's complaint sought, in part, to prevent further use of that portion of Karcher Street that crossed the property. The Board asserted that it was entitled to a prescriptive easement across the property for Karcher Street pursuant to § 43-2-201(1)(c), C.R.S.2001. In response, buyer argued that: (1) the public's use had to be exclusive to support a claim under § 48-2-201(1)(c) and that the use here had not been exclusive; (2) the Board had abandoned Karcher Street when it vacated Platte Avenue; and (8) estoppel precluded the Board's claim to Karcher Street.

The case proceeded to trial on the issue whether Karcher Street should be declared a public highway pursuant to § 48-2-201(1)(c). Several witnesses testified to the public's continuous use of Karcher Street and the Board's maintenance of it for over twenty years. Buyer even testified that he was aware of traffic on Karcher Street; he admitted that, prior to acquiring the disputed property, he saw approximately ten cars per week, in addition to regular school bus traffic, using Karcher Street to access that portion of Platte Avenue that had not been vacated.

Supported by the testimony and other evidence, the trial court found that the Board had established by a preponderance of the evidence that Karcher Street was a public highway pursuant to § 43-2-201(1)(c). In doing so, it rejected each of buyer's arguments.

I.

Buyer first contends that the trial court erred in declaring Karcher Street a public highway pursuant to § 48-2-201(1)(c) because the public's use of Karcher Street had not been exclusive. We disagree.

Under § 48-2-201(1)(c), public highways include "[all roads over private lands that have been used adversely without interruption or objection on the part of the owners of such lands for twenty consecutive years." This provision "codifies the common law method by which the public can obtain title to roadways by adverse use." Board of County Commissioners v. Flickinger, 687 P.2d 975, 980 (Colo.1984); Walter v. Hall, 940 P.2d 991 (Colo.App.1996), aff'd, 969 P.2d 224 (Colo.1998).

To obtain a common law prescriptive easement over a parcel of property, it is unnecessary to establish exclusive possession of that property. Rivera v. Queree, 145 Colo. 146, 358 P.2d 40 (1960); Agricultural Ditch & Reservoir Co. v. Gleason, 686 P.2d 802 (Colo.App.1984), rev'd in part on other grounds sub nom. Hutson v. Agricultural Ditch & Reservoir Co., 723 P.2d 736 (Colo.1986).

Moreover, nothing within the pertinent statute reflects any legislative intent to change this common law rule. On the contrary, the statute codifies the common law method. Board of County Commissioners v. Flickinger, supra. Indeed, a requirement for exclusive possession would be inconsistent with the very nature of an easement interest, as distinguished from an interest in fee.

We conclude, therefore, that the trial court properly declared that Karcher Street had been established as a public roadway under § 43-2-201(1)(c), without requiring a showing that the public's use of the property for road purposes had been its only use.

II.

Buyer next contends that the trial court erred in determining that the Board had not abandoned Karcher Street. He asserts that the resolution vacating Platte Avenue and the Board's minutes discussing that resolution establish that abandonment as a matter of law. We disagree.

Whether abandonment of a public road has occurred is a question of fact. Heath v. Parker, 30 P.3d 746 (Colo.App.2000). Factual determinations are committed to the sound discretion of the trial court as the trier of fact, and its findings must be accepted on review unless so clearly erroneous as to find no support in the record. National Propane Corp. v. Miller, 18 P.3d 782 (Colo.App.2000).

Abandonment of a public road requires proof of intent to abandon and proof of nonuse. Heath v. Parker, supra.

Here, the vacation resolution and the Board's minutes were the only evidence presented by buyer that tended to support his claim of abandonment. This evidence established only that the Board had vacated Platte Avenue, which lay north of the disputed property. On appeal, buyer admits that this vacation resolution did not vacate any other property south of Platte Avenue, where Karcher Street is located.

Further, the Board presented several witnesses who testified to the public's continuous use and the Board's maintenance of Karcher Street for over twenty years. In addition, the record clearly indicates, and buyer does not dispute, that Karcher Street was still being used as a road at the time of trial.

Thus, we conclude that the vacation resolution and the Board's minutes do not establish abandonment as a matter of law and that the record supports the trial court's finding that the Board had not abandoned Karcher Street.

IIL

Buyer also contends that the trial court erred in finding that the Board was not estopped from claiming Karcher Street as a public highway. We also reject this contention.

"Estoppel requires that a person, by words, by conduct, or by silence when he or she has a duty to speak, induce another to change position detrimentally in reasonable reliance on his or her actions." Continental Western Insurance Co. v. Jim's Hardwood Floor Co., 12 P.3d 824, 828 (Colo.App.2000).

Whether the cireumstances of a particular case establish a representation or reasonable reliance to support a claim for equitable estoppel is a question of fact. Continental Western Insurance Co. v. Jim's Hardwood Floor Co., supra.

Here, the trial court found that the Board was not estopped from asserting that Karcher Street was a public highway because buyer was aware of the public's use of it despite any language in the vacation resolution. Buyer's own testimony supports this finding.

However, buyer asserts that this finding was in error because he allegedly relied on the vacation resolution and because he relied on the warranty deed conveying the property to him, which did not except Karcher Street.

As previously noted, however, the vacation resolution did not describe or otherwise refer to Karcher Street.

As to the warranty deed, the Board was not a party to that transaction. Whatever representation may be contained in this deed, if any, cannot be charged against the Board.

Thus, the evidence allowed the finding that buyer could not have relied on any representation by the Board, either in the vacation resolution or in the warranty deed, in deciding to purchase the disputed property. We conclude, therefore, that the trial court's finding that estoppel did not bar the Board's claim to Karcher Street was supported by the record and was not clearly erroneous.

We likewise reject buyer's reliance upon the doctrine of "quasi estoppel," sometimes referred to as "election of remedies," which he asserts prevents the Board from taking inconsistent positions. Nothing in the Board's vacation resolution, which made no mention of Karcher Street, is inconsistent with its later insistence upon a roadway interest in that street. See Italian-American Bank v. Carosella, 81 Colo. 214, 254 P. 771 (1927).

Judgment affirmed.

Judge NEY and Judge VOGT concur.

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


author: Judge DAVIDSON.

text:
    Charles A. NICHOLS, Plaintiff-Appellant, v. BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Defendant-Appellee.
    No. 01CA1279.
    Colorado Court of Appeals, Div. III.
    Aug. 1, 2002.

      Roberts Levin & Patterson PC, Thomas L. Roberts, Christine K. Biretta, Denver, Colorado; Jones & Granger, Martin E. Jackson, Conifer, Colorado, for Plaintiff-Appellant.
    Hall & Evans LLC., Alan Epstein, Frederick T. Martinez, Denver, Colorado, for Defendant-Appellee. .
   Opinion by

Judge DAVIDSON.

In this action filed pursuant to the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51, et seq., and the Locomotive Boiler Inspection Act, 49 U.S.C. $ 20701, plaintiff, Charles A. Nichols, appeals from the trial court's grant of summary judgment and lump sum award of costs to defendant, Burlington Northern and Santa Fe Railway Company. We reverse and remand.

Plaintiff was employed as a locomotive engineer for defendant. In late July 1997, plaintiff filed an occupational injury report asserting infury to his neck from repetitively leaning out locomotive cab windows. In May 1999, after plaintiff had seen several doctors and was removed from service for a period, defendant's doctor cleared plaintiff to return to work without restrictions. In November 1999, he injured his knee and lower back when he fell after losing his grip while mounting a locomotive. In June 2000, plaintiff filed this action, asserting that his job required him to hold his head, neck, and upper body in an awkward position and resulted in a cumulative injury to his upper back and neck. Additionally, he asserted that his loss of grip in the November 1999 incident resulted from the cumulative injury.

Defendant moved for summary judgment, contending that any claim based on the cumulative injury was barred by the statute of limitations because plaintiff was or should have been aware of his cumulative injury and its cause more than three years prior to the filing of the lawsuit. Defendant also moved for summary judgment on plaintiff's claim as it pertained to the injuries from the November 1999 fall, arguing that there was no evidence of negligence on the part of defendant.

The trial court granted summary judgment on the entire claim on the basis that it was barred by the three-year statute of limitations. In concluding that plaintiff knew or should have known of his injuries prior to June 1997, the trial court noted that plaintiff had made visits to a chiropractor for back and neck pain in 1992 and 1996; after the latter visit, the doctor made a notation that "Itlhe patient's progress is affected by work"; and the doctor recalled that plaintiff had said that his work was exacerbating his neck and back pain. The trial court also relied on two statements made by plaintiff after June 1997. The first statement, "I have had this neck problem for about 3 years, but never has it been this bad," was made on a medical form during a visit ordered by defendant shortly after plaintiff reported his July 1997 injury. The second statement was made to one of defendant's claims adjusters in late August 1997. In that statement, plaintiff admitted he knew as early as 1992 or 1994 that leaning out locomotive windows was causing him discomfort. "

We review questions of summary judgment de novo. See Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Bd., 901 P.2d 1251 (Colo.1995). The moving party must demonstrate that no issue of material fact remains disputed and that it is entitled to judgment as a matter of law. See C.R.C.P. 56(c). "A party against whom summary judgment is sought is entitled to the benefit of all favorable inferences that may be drawn from the facts." Churchey v. Adolph Coors Co., 759 P.2d 1336, 1340 (Colo.1988).

In FELA cases, courts apply federal law interpreting the Act to determine the substantive rights of the parties. See Johnson v. Nat'l R.R. Passenger Corp., 989 P.2d 245 (Colo.App.1999). Close cases under FELA should be allowed to proceed to trial. See Bailey v. Cent. Vt. Ry., 319 U.S. 350, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444, 1448 (1948)("To deprive [railroad] workers of the benefit of a jury trial in close or doubtful cases is to take away a goodly portion of the relief which Congress has afforded them.").

I.

Plaintiff contends that the trial court erred in granting summary judgment on the part of his claim related to cumulative cervical spine and neck injuries. We agree.

The running of the statute of limitations for a FELA claim based on a cumulative injury is calculated under the discovery rule. Fonseca v. Consol. Rail Corp., 246 F.3d 585 (6th Cir.2001). Under the discovery rule, a cumulative injury is considered to occur when the accumulated effects manifest themselves. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). A claim for relief accrues when a reasonable person knows or should have known of both the injury and its governing cause. This rule requires an objective inquiry into when the plaintiff knew or, in the exercise of reasonable diligence, should have known the essential facts of the injury and its cause. Fries v. Chicago & Northwestern Transp. Co., 909 F.2d 1092 (7th Cir.1990).

Suspicion of a cause is not enough; a claimant must either know of the problem and the probable connection or ignore a problem that would be apparent to a reasonable person. Reasons v. Union Pac. R.R., 886 S.W.2d 104 (Mo.Ct.App.1994). While a doctor's diagnosis is not necessary to know of an injury, there is a difference between an injury for which a claim of compensation can be filed and intermittent pain that is presumed to be temporary and is quickly resolved. Sabalka v. Burlington N. & Santa Fe Ry., 54 S.W.3d 605 (Mo.Ct.App.2001); see also Schaefer v. Union Pac. R.R., 10 F.Supp.2d 1240 (D.Wyo.1998), aff'd, 182 F.3d 933, 1999 WL 333099 (10th Cir.1999).

Typically, when a plaintiff knew or should have known of his or her injury and its cause is a question of fact for the jury to determine. Rogers v. Illinois Cent. R.R., 833 S.W.2d 426 (Mo.Ct.App.1992). A triable factual issue remains when there is sufficient evidence for a jury to reasonably find for the plaintiff. Fonseca v. Consol. Rail Corp., supra.

We conclude that whether plaintiff's prior incidents of neck pain were sufficient to demonstrate that he knew or should have known of his injury and its cause prior to June 1997 is an unresolved question of fact.

Plaintiff visited the chiropractor only three times before July 1997. During those visits, he was treated with ultrasound and either massage and manipulation or an adjustment and was directed to return as needed. Nearly four years elapsed between the first and second visit and approximately five months between the second and third. Only at the third visit was the neck and back pain attributed to overexertion.

In contrast, when agked in his deposition about the neck pain that occurred in July 1997, plaintiff stated: "[If I ever had neck pain before, it would go away. And, you know, sometimes it would hurt for an hour or two. And this one never went away. I waited two, three days for it to go away, and it never went away." In his affidavit, plaintiff stated: "It was not until my neck started swelling up and hurting very badly on July 31, 1997 that I ever considered that I had a permanent injury from working on the locomotives. Previously, the neck and upper back pain was only an occasional irritation which always went away." Moreover, plaintiffs chiropractor indicated:

On one occasion, I recall [plaintiff] indicating that working for [defendant] had made his neck stiff. However, until he began seeking treatments on a frequent basis after July 81, 1997, I was not able to diagnose and did not diagnose any injury to [plaintiff's] neck or back.... At no time prior to 1997 did I consider that [plaintiff] had received any injury from his work. I treated him for infrequent stiffness and soreness in his neck as opposed to a permanent injury.

While plaintiff's statement to the claims adjuster, his chiropractor's notation that plaintiff's progress was "affected by work," and certain complaints he made to safety personnel in 1994 and 1995 indicate that plaintiff knew that the locomotive seats were causing discomfort or exacerbating neck pain, they do not establish that he knew he had a permanent camulative injury. The statement on the medical form, "I have had this neck problem for about 3 years, but never has it been this severe," is consistent with plaintiff's characterization of the July 1997 pain as qualitatively different from earlier pain.

In each of the cases relied upon by defendant to support its contention that summary judgment was proper, the plaintiff was aware of a chronic condition, not only sporadic symptoms, and knew or strongly suspected that work was the cause of the injury. Matson v. Burlington N. Santo Fe R.R., 240 F.3d 12883 (10th Cir.2001)(plaintiff complained to doctor of chronic back pain and a significant worsening of pain that he believed to be work-related more than three years prior to filing suit); Tolston v. Nat'l R.R. Passenger Corp., 102 F.3d 863 (7th Cir.1996)(plaintiff began suffering extreme pain and seeking regular treatment and medication six years before filing suit); Bealer v. Missouri Pac. R.R., 951 F.2d 38 (5th Cir.1991)(plaintiff associated hearing loss with work, was told to wear earplugs, suffered from dizziness, was terminated from employment because of ear problems more than three years before filing suit, and admitted there had been no subsequent substantial change in hearing loss); Fries v. Chicago & Northwestern Transp. Co., supra (ringing in ears, which worsened at work, subsided on weekends, and would not subside without two hours of silence after coming home from work, developed five or six years prior to filing).

Here, in contrast, drawing all favorable inferences from the facts in the record, a jury could reasonably conclude that prior to July 1997, plaintiff suffered from only occasional irritation and mild pain in his neck, which was distinct from the pain he suffered beginning in July 1997, and he did not have reason to know that he had a work-induced cumulative injury to his neck and spine. Thus, we conclude that summary judgment on statute of limitations grounds was inappropriate.

IL.

Plaintiff contends that the trial court also erred in concluding that his claim concerning the November 1999 accident was time barred when defendant had not requested summary judgment on that basis. We agree that summary judgment was improperly granted.

Defendant requested summary judgment on the issue of plaintiff's injuries from the November 1999 fall on the basis that there was no evidence that defendant violated any regulation or failed to provide a safe workplace. The trial court granted summary judgment on the entire claim on statute of limitations grounds, stating that plaintiff knew or should have known of his injuries in August 1996.

Presumably, the trial court viewed the November 1999 fall as an extension of the claimed cumulative injury. However, in light of our conclusion that the trial court erred in granting summary judgment on statute of limitations grounds on the cumulative injury, entry of summary judgment on the claim relating to the 1999 incident was also improper.

Defendant contends that it was, nevertheless, entitled to summary judgment for the November 1999 injury claim because plaintiff did not allege or show any act of negligence. However, for purposes of avoiding summary judgment, the record includes sufficient assertions that defendant acted negligently in returning plaintiff to work without restrictions and requiring him to perform duties it knew or should have known would aggravate his neck injury.

IIL

Plaintiff also contends that the court erred in awarding defendant costs in a lump sum without making supporting findings. Given our determination that the underlying judgment must be reversed, the award of costs is vacated. See Rossman v. Seasons at Tiara Rado Assocs., 943 P.2d 34 (Colo.App.1996).

The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

Judge JONES and Judge KAPELKE concur.


author: Judge CASEBOLT.

text:
    GRANGE INSURANCE ASSOCIATION, Plaintiff-Appellant, v. John P. HOEHNE, Karl F. Hoehne, and Hoehne Brothers, a Minnesota general partnership, Defendants-Appellees, and Steven N. Kerns, Defendant.
    No. 01CA1905.
    Colorado Court of Appeals, Div. I.
    Aug. 1, 2002.

      Seaman and CGometti, P.C., Donald A. Thorpe, Gregory R. CGiometti, Denver, Colorado, for Plaintiff-Appellant.
    Grimshaw & Harring, P.C., Richard L. Harring, Denver, Colorado, for Defendants, Appellees.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 53), and § 24-51-1105, C.R.S.2001.

   Opinion by

Judge CASEBOLT.

In this declaratory judgment action concerning insurance coverage, plaintiff, Grange Insurance Association, appeals the judgment dismissing its claim for declaratory relief against defendants, John P. Hoehne, Karl F. Hoehne, Hoehne Brothers partnership, and Steven N. Kerns. We affirm.

Grange issued insurance policies covering Kerns for enumerated risks. Hochnes sued Kerns, alleging intentional misrepresentation in certain business dealings between them. Kerns requested Grange to provide a defense and indemnification under its policies for Hoehnes' claims. Grange then instituted this anticipatory declaratory judgment action against Kerns and Hoehnes to determine its obligations in the underlying action.

Kerns subsequently stipulated with Grange that the policies did not require it to defend or indemnify him for the claims asserted in the underlying action. Upon Kerns' and Grange's joint request, the trial court approved Kerns' waiver of any claims for defense and indemnification against Grange and ordered that the case would proceed without Kerns' active participation.

Asserting that there was no justiciable controversy between Grange and themselves, Hoehnes then filed a motion to dismiss the action. The trial court granted the motion, and this appeal followed.

Grange contends that there is an actual, justicilable controversy permitting it to pursue its claim against Hoehnes and that the trial court therefore abused its discretion in dismissing the declaratory judgment action. We disagree.

The Uniform Declaratory Judgments Law, § 13-51-101, et seq., C.R.S8.2001, authorizes declaratory actions to determine whether an insurer owes duties to defend and indemnify claims asserted against its insured in an underlying action. A judgment against the insured in the underlying case is not an absolute prerequisite to the filing of a declaratory action. Rather, declaratory relief may be obtained before the underlying claims have been determined. Constitution Associates v. New Hampshire Ins. Co., 930 P.2d 556 (Colo.1996); see also C.R.C.P. 57; Hartford Ins. Group v. Dist. Court, 625 P.2d 1013 (Colo.1981).

The trial court has discretion to determine whether it should allow such an anticipatory declaratory judgment action to proceed. In exercising its discretion, the trial court applies a three-part test. First, there must be an actual, justiciable controversy, not the mere possibility of a future controversy. Second, the declaratory judgment must fully and finally resolve the uncertainty and controversy as to all parties to the dispute. Third, the declaratory action must be independent of and separable from the underlying action. Constitution Associates v. New Hampshire Ins. Co., supra; see also Progressive Cas. Ins. Co. v. Herring, 22 P.3d 66 (Colo.2001) (trial court must apply Constitution Associates factors).

Generally, if an insurer initiates an anticipatory declaratory judgment action against its insured, a justiciable controversy exists. However, no such controversy exists when the injured party initiates such a proceeding against the insurer, because the injured party has neither an enforceable judgment against the insured nor a contractual relationship with the insurer. Likewise, no justiciable controversy exists if an insurer brings such a proceeding against the injured party only. Constitution Associates v. New Hampshire Ins. Co., supra.

Whether there is a justiciable controversy under the Constitution Associates test depends, in part, on whether there is an actual controversy of sufficient immediacy and reality to warrant a declaratory judgment. See Am. Family Mut. Ins. Co. v. Bowser, 779 P.2d 1376 (Colo.App.1989).

Here, the trial court concluded that there was no actual, justiciable controversy between Grange and Hoehnes after Kerns waived any claim against Grange, and the dispute remaining between Grange and Hoehnes concerning Hoehnes' entitlement to payment from the policies was contingent on the result of the underlying action. Accordingly, it did not reach the second and third parts of the Constitution Associates test.

The trial court's ruling accords with Farmers Insurance Exchange v. District Court, 862 P.2d 944 (Colo.1993). There, the court concluded that an injured plaintiff in an underlying action lacks standing to bring a declaratory action against the defendant's insurer, because the plaintiff's right of action, if any, against the insurer is contingent on a judgment of liability against the insured defendant in the underlying action.

Grange nevertheless asserts that Constitution Associates allowed an injured party to defend an anticipatory declaratory judgment action under similar cireumstances. We find Constitution Associates distinguishable.

Constitution Associates was a consolidated appeal of two related cases, one of which was factually similar to this case. See New Hampshire Ins. Co. v. Constitution Associates, 908 P.2d 1163 (Colo.App.1995), rev'd, 930 P.2d 556 (Colo.1996). There, the insurer initiated an anticipatory declaratory judgment action to determine its coverage obligations for a tort action against its insured. The insurer joined the allegedly injured party from the underlying action. The injured party and the insured, through its receiver, filed counterclaims, asserting that the insurer was obligated to cover the insured in the underlying action. The insurer then moved for summary judgment. The injured party responded to the motion, but the receiver for the insured did not. The trial court then dismissed the action as between the insurer and the injured party for lack of standing.

The supreme court reversed, concluding, inter alia, that because the insurer brought the action against its insured, there was a justiciable controversy in which the injured party, onee joined, was entitled to participate. Constitution Associates v. New Hampshire Ins. Co., supra.

Of importance here, however, is that although the receiver for the insured in Constitution Associates did not respond to the motion for summary judgment, it neither withdrew from the case nor waived or conceded its coverage claim. Accordingly, the decision to permit the injured party to defend was animated by the continued vitality of the dispute between the insurer and the insured. The distinction harmonizes the holding of Constitution Associates with Farmers.

Here, Kerns explicitly waived any claim of coverage and withdrew from active participation in the case after seeking and obtaining the court's approval of his waiver. This change in the posture of the case makes it less like Constitution Associates, and more like Formers, a dispute between the insurer and the injured party that is entirely contingent on the injured party's success in the underlying action. See Farmers Ins. Exchange v. District Court, supra.

We note particularly that Kerns' waiver resolved the duty to defend question that is most immediate in this type of coverage dispute. Absent resolution of this issue before determination of the underlying action, an insurer may be forced either to defend a party to whom it believes it owes no such duty or risk a suit for bad faith refusal to defend. See Progressive Cas. Ins. Co. v. Herring, supra; see also Hecla Mining Co. v. New Hampshire Ins. Co., 811 P.2d 1083 (Colo.1991).

By contrast, deferring determination of the indemnification issue here creates no such dilemma. That issue is subject to litigation between Grange and Hoehnes if Hoehnes obtain a judgment and seek to garnish Kerns' interest in the insurance policies. Moreover, as the trial court noted, a defense verdict or a settlement in the underlying action would moot the issue.

For these reasons, we conclude that the trial court acted within its discretion in declining to render an anticipatory declaratory judgment under these circumstances. See Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo.1986)(in applying controlling legal standard, court retains discretion).

We are not persuaded to alter our analysis by Alistate Insurance Co. v. Hayes, 442 Mich. 56, 499 N.W.2d 743 (1993), upon which Grange relies. There, construing Michigan's Uniform Declaratory Judgments Law under similar facts, the court held that an anticipatory declaratory action may proceed between the insurer and the injured party despite the insured's default in that action. The court reasoned primarily that onee the jurisdiction of the court has been successfully invoked at the outset of the case, subsequent events could not divest the court of jurisdiction. See also Hawkeye-Security Ins. Co. v. Schulte, 302 F.2d 174 (ith Cir.1962).

However, considerations of jurisdiction are not frozen at the moment that a plaintiff files the complaint, but may be reexamined. A party's standing and the court's subject matter jurisdiction may be raised at any stage of an action. Medina v. State, 35 P.3d 443 (Colo.2001); Ajay Sports, Inc. v. Casazza, 1 P.3d 267 (Colo.App.2000).

Events after the joinder of interested parties also may affect their standing or the court's jurisdiction. For example, an action that initially presents an actual controversy may later be rendered moot if a change in cireumstances eliminates the prospects for meaningful relief. See Zoning Bd. of Adjustment v. DeVilbiss, 729 P2d 353 (Colo.1986)(landowner's failure to seek temporary injunction concerning construction project rendered moot his claim for permanent injunction when construction was completed). Accordingly, we decline to adopt a rule that would prohibit a court from recognizing changed circumstances that may affect justiciability.

In any event, even the Hayes court recognized that a trial court may refuse to exercise its discretion to enter a declaratory judgment in an action where, as here, only the insurer and the injured party are active participants. See also Constitution Associates v. New Hampshire Ins. Co., supra (court may refuse to enter declaratory judgment even though it has jurisdiction). By our decision today, we conclude likewise.

In view of this determination, we need not address Hoehnes' arguments about the see-ond and third parts of the Constitution Associates test.

The judgment is affirmed.

Judge DAVIDSON and Judge STERNBERG, concur.


author: Judge NIETO.

text:
    John ANSON, Plaintiff-Appellee and Cross-Appellant, v. Jerry E. TRUJILLO and Peggy L. Trujillo, Defendants-Appellants and Cross-Appellees.
    No. 01CA0846.
    Colorado Court of Appeals, Div. V.
    Aug. 15, 2002.

      Fisher, Sweetbaum & Levin, P.C., Scott L. Levin, E. James Wilder, Denver, Colorado, for Plaintiff-Appeliee and Cross-Appellant.
    Kenneth L. Keene, Jr., Denver, Colorado, for Defendants-Appellants and Cross-Appel-lees.
   Opinion by

Judge NIETO.

Defendant Jerry E. Trujillo appeals the judgment entered in favor of plaintiff, John Anson. Plaintiff eross-appeals the directed verdict entered in favor of defendant Peggy Trujillo and the denial of his claim for non-economic damages. We affirm in part, reverse in part, and remand with directions.

Defendants purchased eight adjoining vacant lots in 1995 and built houses on five of those lots. After seeing a sign that the remaining lots were for sale, plaintiff, who operated his own construction business, inquired about purchasing two lots in order to build houses there. Plaintiff and his wife met with Mr. Trujillo to discuss the property, and Mr. Trujillo stated that a swimming elub had existed on the property but that the swimming pool was not located on the lots that plaintiff was considering purchasing. However, Mr. Trujillo was aware that the remains of a swimming pool were buried on these lots, but did not so advise plaintiff.

The parties entered into a contract for the purchase of two adjoining lots in March 1997, and plaintiff began to construct a house on one lot in 1999. When an excavation company began digging the hole for the foundation, it discovered concrete from the buried swimming pool. As a result, additional excavation was required before the planned house could be built.

Plaintiff filed a complaint against defendants alleging claims for fraud, negligent misrepresentation, and violation of the Colorado Consumer Protection Act (CCPA), § 6-1-101, et seq., C.R.8.2001. A jury trial was held, and at the conclusion of plaintiff's case, defendants moved for a directed verdict. The trial court granted the motion with respect to Ms. Trujillo and denied it with respect to Mr. Trujillo. The jury found in favor of plaintiff on all claims and awarded him actual and exemplary damages. The trial court vacated the award of exemplary damages and awarded plaintiff treble damages pursuant to $ 6-1-118(2)(a)(III), C.R.S. 2001. Plaintiff also moved for an award of attorney fees and costs under § 6-1-113@)(b), C.R.S.2001, and the trial court granted the motion. This appeal and eross-appeal followed.

I.

Mr. Tryjillo contends that the trial court did not have jurisdiction to award damages under the CCPA because plaintiff lacked standing to bring a claim under that Act. We agree.

A.

Generally, a court considering standing must determine whether the plaintiff suffered injury in fact to a legally protected interest as contemplated by statutory or constitutional provisions. If a plaintiff suffered no injury in fact, or suffered injury in fact, but not from the violation of a legal right, the claim should be dismissed for lack of standing. Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977). A question of standing to bring a statutory claim is essentially an inquiry into whether the subject statute can properly be understood as granting a right to judicial relief to persons in the plaintiff's position. Pomerantz v. Microsoft Corp., 50 P.3d 929 (Colo.App.2002).

Standing is a jurisdictional issue that can be raised at any time, including as an issue raised for the first time on appeal. Peters v. Smuggler-Durant Mining Corp., 910 P.2d 34 (Colo.App.1995), aff'd, 930 P.2d 575 (Colo.1997); Bennett v. Board of Trustees, 782 P.2d 1214 (Colo.App.1989).

To establish a private cause of action pursuant to the CCPA, a plaintiff must establish

(1) that the defendant engaged in an unfair or deceptive trade practice; (2) that the challenged practice occurred in the ~ course of defendant's business, vocation, or occupation; (8) that it significantly impacts the public as actual or potential consumers of the defendant's goods, services, or property; (4) that the plaintiff suffered injury in fact to a legally protected interest; and (5) that the challenged practice caused the plaintiff's injury.

Hall v. Walter, 969 P.2d 224, 235 (Colo.1998). The first three elements of this analysis determine whether the defendant's actions fall under the purview of the CCPA. Martinez v. Lewis, 969 P.2d 213 (Colo.1998).

B.

Mr. Trujillo contends that plaintiff cannot meet the third element, namely that Mr. Trujillo's conduct significantly impacted the public, and therefore, plaintiff did not have standing to bring his claim under the CCPA. Thus, Mr. Trujillo argues, the trial court lacked jurisdiction to award damages, costs, and fees pursuant to the CCPA. We agree.

In assessing the public impact of an allegedly deceptive trade practice, three considerations are particularly relevant: "the number of consumers directly affected by the challenged practice, the relative sophistication and bargaining power of the consumers affected by the challenged practice, and evidence that the challenged practice previously has impacted other consumers or has significant potential to do so in the future." Martinez v. Lewis, supra, 969 P.2d at 222.

Here, with respect to the first consideration, plaintiff is the only person impacted by Mr. Trujillo's conduct. The transaction in question involved only one parcel of land and the parties to this action. These cireum-stances suggest "a purely private wrong," which generally does not indicate that a defendant's conduct significantly impacted the public as actual or potential consumers. See Martinez v. Lewis, supra, 969 P.2d at 222.

Second, plaintiff is in the construction business, as was Mr. Trujillo. Also, plaintiff was not without other means of obtaining information about the nature and history of the property. As such, he was not the typical consumer that the CCPA seeks to protect. See Martinez v. Lewis, supra (CCPA protects consumers who are in a relatively weak bargaining position, particularly where consumers are dependent on the defendant for access to truthful information regarding the transaction).

Finally, plaintiff has not alleged, nor was there evidence, that other consumers were affected by Mr. Trujillo's misrepresentation or concealment. The misrepresentation here was not advertised or otherwise presented to the public in an effort to induce sales. Moreover, because the transaction here involved real property that had unique defects and has already been sold to plaintiff, there is virtually no possibility that other consumers will be affected by such practices in the future.

Under these circumstances, we conclude that Mr. Trujillo's conduct did not significantly impact the public. Therefore, his conduct did not fall within the purview of the CCPA, and plaintiff cannot establish a private right of action under that act.

Plaintiff argues that the fact that Mr. Trujillo posted a sign offering the property for sale and sold other lots in the course of his business supports a conclusion that his conduct impacted the public as consumers. However, Mr. Trujillo's conduct involved misrepresentation or concealment in a single transaction and concerning a single piece of real property. There is no indication that the sign contained improper information or otherwise constituted conduct that would violate the CCPA. Similarly, the fact that Mr. Trujillo sold other property to the public, without an allegation that such transactions also involved deceptive trade practices, does not support a conclusion that his conduct impacted the public as actual or potential consumers.

Therefore, plaintiff lacked standing to bring his CCPA claim because he has not suffered injury to an interest protected by the CCPA. See Wimberly v. Eitenberg, supra. Thus, the trial court was without jurisdiction to award damages, costs, or fees pursuant to it. Accordingly, the trial court's judgment on the CCPA claim awarding treble damages, costs, and fees is reversed.

C.

Considering the damages claimed by plaintiff and the manner in which the jury was instructed, we conclude that the judgment on plaintiff's other claims will not be affected by reversal of the judgment on the CCPA claim.

The jury was instructed that plaintiff was seeking the same damages on each of the claims and that it "may award him damages only onee for the same losses." Further, only one damage instruction was given for all the claims. On the verdict form, the jury found for plaintiff on all his claims, but awarded only one amount of damages. When the instructions and verdict form are read together, it is clear that the jury found the same damages for each claim. Therefore, the judgment entered on the fraud and negligent misrepresentation claims is unaffected by reversal of the judgment on the CCPA claim.

D.

The trial court vacated the jury's award of exemplary damages after it trebled the damages on the CCPA claim. Because we have reversed the award of damages under the CCPA, there is no basis for vacating the exemplary damages award. Accordingly, on remand the trial court should reinstate the jury's award of exemplary damages.

Our resolution of the issues above makes it unnecessary to address Mr. Trujillo's other contentions.

IL

On cross-appeal, plaintiff contends that the trial court erred in granting defendants' motion for a directed verdict with respect to Ms. Trujillo on the CCPA and fraudulent, concealment claims. We are not persuaded.

In considering a motion for directed verdict, a court must view the evidence, including all reasonable inferences that can be legitimately drawn from the evidence, in the light most favorable to the nonmoving party. If the evidence is simply unable to support a verdiet in favor of the nonmoving party, the issue in question should not be submitted to a jury, and a directed verdict should be entered. Huntoon v. TCI Cablevision, Inc., 969 P.2d 681 (Colo.1998). If there is no evidence to support an element of a claim, a directed verdict is appropriate. Denver Dry Goods Co. v. Pender, 128 Colo. 281, 262 P.2d 257 (1953).

To prove fraudulent concealment, a plaintiff must establish:

(1) the concealment of a material existing fact that in equity and good conscience should be disclosed; (2) knowledge on the part of the party against whom the claim is asserted that such a fact is being concealed; (3) ignorance of that fact on the part of the one from whom the fact is concealed; (4) the intention that the concealment be acted upon; and (5) action on the concealment resulting in damages.

Ballow v. PHICO Ins. Co., 875 P.2d 1354, 1361 (Colo.1993).

Here the trial court granted the directed verdict with respect to Ms. Trujillo, concluding there was no evidence to support plaintiff's claims against her other than the fact that she was a record owner and conveyed the property.

Plaintiff argues that the evidence viewed in the light most favorable to him reveals that he established a prima facie claim against Ms. Trujillo for violation of the CCPA and fraudulent concealment. Because of our resolution of the standing issue above, it is unnecessary to address plaintiff's argument regarding the CCPA claim.

With respect to the fraudulent concealment claim, plaintiff argues that the parties' stipulation establishes his prima facie case. The stipulation states that the Trujillos were the sellers of the property, that they knew of the existence and location of the buried swimming pool, that this information was material, and that they had a duty to disclose such information.

However, those stipulations, even when considered in the light most favorable to plaintiff, do not indicate that Ms. Trujillo concealed the information with the intention that plaintiff act upon it. The stipulations are the only evidence offered by plaintiff in support of his fraudulent concealment claim against Ms. Trujillo. Ms. Trujillo was not present when the parties met to discuss the property, and plaintiff has not alleged that she was involved in the transaction other than as a seller who signed the deed at closing.

Jurors are entitled to draw reasonable inferences from the evidence, but they may not speculate concerning elements of a claim. New Brantner Extension Ditch Co. v. Ferguson, 134 Colo. 502, 307 P.2d 479 (1957); Denver Dry Goods Co. v. Pender, supra.

Ms. Trujillo chose to stipulate to several elements of the concealment claim, but she did not stipulate to the intent element. Absent other evidence of her involvement in the transaction, the stipulations that she was aware of the pool and had a duty to disclose it are insufficient to infer that she failed to disclose the information with the intention that plaintiff act upon it.

Thus, plaintiff failed to establish a prima facie case of fraudulent concealment against Ms. Trujillo, and the trial court properly directed a verdict with respect to her on this claim.

IIL.

Plaintiff also challenges on cross-appeal the trial court's rejection of his tendered jury instruction concerning noneconomic damages, including mental suffering and emotional distress. The trial court concluded that, because plaintiff's action involved damage to property rather than personal injury, noneco-nomic damages are not available and refused to submit the instruction. Plaintiff argues that this was error because he is entitled to recover such damages on a fraud claim. We agree.

Generally, there can be no recovery in tort for mental anguish or suffering by a plaintiff in connection with an injury to the plaintiff's property. However, where the act causing the injury to property was inspired by fraud, malice, or like motives, mental suffering may be a proper element of damages. Valley Development Co. v. Weeks, 147 Colo. 591, 364 P.2d 730 (1961); MeNeill v. Allen, 35 Colo.App. 317, 534 P.2d 813 (1975); see also Webster v. Boone, 992 P.2d 1183 (Colo.App.1999).

Because plaintiff was entitled to assert noneconomic damages relating to his fraud claim, the trial court erred in refusing the proposed jury instruction as to that claim. See Kessmam v. City & County of Denver, 709 P.2d 975 (Colo.App.1985)(where proposed instruction was an accurate statement of the law, trial court erred in refusing to submit instruction to the jury).

Mr. Trujillo argues that plaintiff did not specifically plead emotional distress as required by CRCP. 9(g). However, the prayer for relief in plaintiff's complaint specifically included emotional distress and pain and suffering. Moreover, the trial management order submitted by the parties also included emotional distress and pain and suffering in the itemization of damages. Therefore, we reject Mr. Trujillo's argument.

Mr. Trgjillo also argues that plaintiff failed to introduce evidence of significant emotional impact as a result of fraud. However, plaintiff testified that defendants' actions caused serious financial problems for him and his family. These problems caused him to worry about raising his six children because he did not know how he was going to "get out of the situation." He further testified that the financial problems "affected [his] life, it affected [his] sleep habits, it affected [his] other jobs." Plaintiff's wife verified that the financial problems made plaintiff angry and caused them both "a lot of sleepless nights." Thus, some evidence was admitted that could support a finding of non-economic damages on this claim. See Margenaw v. Bowlin, 12 P.3d 1214 (Colo.App.2000)(if fact of damages is certain, jury can make reasonable estimate where there is some evidence of damage).

Therefore, the case must be remanded for determination of any noneconomic damages that may be attributed to plaintiffs fraud claim. The parties are entitled to a new trial on this issue if either so chooses.

Accordingly, the judgment on the CCPA claim and the award of treble damages, attorney fees, and costs based on that claim are reversed. The judgment also is reversed to the extent it denies plaintiffs claim for noneconomic damages on his fraud claim, and the case is remanded with directions to determine any noneconomic damages that may be attributable to plaintiff's fraud claim and to reinstate the jury's award of exemplary damages. In all other respects the judgment is affirmed.

Judge MARQUEZ and Judge ROY, concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Borlande ROBERTSON, Defendant-Appellee.
    No. 01CA0949.
    Colorado Court of Appeals, Div. V.
    Aug. 15, 2002.

      James J. Peters, Arapahoe County District Attorney, John Topolnicki, Deputy District Attorney, William W. Hood, III, Deputy District Attorney, Englewood, Colorado, for Plaintiff-Appellant.
    Decker & DeChar, LLC, Christopher R. Decker, Denver, Colorado, for Defendant, Appellee.
   Opinion by

Judge DAVIDSON.

The People appeal from the judgment of the trial court dismissing with prejudice charges against defendant, Borlande Robertson. We affirm.

The facts in this case are mostly undisputed. In April 1998, a felony complaint and information was issued charging defendant with aggravated robbery, conspiracy to commit aggravated robbery, and a crime of violence charge based on the use of a deadly weapon. In June 1998, defendant committed a crime in Oregon, for which he was convicted and sentenced to forty months in the Oregon Department of Corrections.

While defendant was incarcerated in Oregon, the 18th Judicial District Attorney lodged a detainer against him based on the April 1998 charges. Several months later, defendant filed a request for speedy disposition of the charges pursuant to the Interstate Agreement on Detainers (IAD), § 24-60-501, et seq., C.R.8.2001.

Approximately one month after defendant's request, the prosecution began extradition proceedings. Seventy-nine days after defendant's request, the prosecution withdrew the detainer because essential witnesses were not available at that time. The underlying April 1998 charges were not dismissed.

Approximately seventeen months later and one day before defendant's release from the Oregon Department of Corrections, the prosecution lodged a second detainer against defendant based on the same underlying charges. Defendant then was extradited to Colorado.

Defendant filed a motion to dismiss the charges based on the prosecution's failure, under the IAD, to bring him to trial within 180 days of his request for speedy disposition. The trial court granted the motion and dismissed the charges against defendant with prejudice.

On appeal, the People contend that the trial court erred in dismissing the charges. Specifically, they argue that, because the de-tainer lodged against defendant was withdrawn before the 180 day period expired, defendant was no longer entitled to assert his speedy disposition rights under the IAD. We conclude that the charges were properly dismissed.

The IAD provides in part:

[Whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction ... his request for a final disposition to be made of the indictment, information or complaint....

Section 24-60-501, art. III(a), C.R.S.2001. When trial is not commenced within the 180 day period, the court "shall enter an order dismissing the [indictment, information, or complaint] with prejudice." Section 24-60-501, arts. III(d), V(e), C.R.8.2001.

Onee a defendant has properly invoked his or her right to speedy disposition, the burden shifts to the prosecution and the court in the jurisdiction from which the de-tainer issued. People v. Sevigny, 679 P.2d 1070 (Colo.1984).

Here, the parties do not dispute that defendant's request for speedy disposition of the charges was in full compliance with the requirements of article III. However, the People argue that the withdrawal of the de-tainer operated to divest defendant's rights because a detainer was no longer "lodged" after it was withdrawn. -

The People's argument is straightforward: According to the plain language of article (III)(a), the IAD applies only to charges "on the basis of which a detainer has been lodged against the prisoner." Thus, the argument proceeds, if a detainer is no longer lodged, the speedy trial provisions of the IAD pertaining to these charges no longer apply. On the other hand, defendant asserts the withdrawal of the detainer lodged against him without disposition of the underlying criminal charges did not cancel his previously invoked speedy trial rights as to these charges. We agree with defendant.

Interpretation of statutes is a question of law, which we review de novo. In construing statutes, a court's primary task is to ascertain and give effect to the intent of the legislature. To do so, the court must look first to the statutory language. When that language is clear and unambiguous, there is no need to resort to interpretative rules of statutory construction, and the court must apply the words according to their commonly accepted and understood meaning. Moody v. Corsentino, 843 P.2d 1355 (Colo.1993).

Section 24-60-501, art. III(a) provides that once a detainer "has been lodged" and the underlying complaint remains "pending," defendant has a right to demand disposition within 180 days. The present perfect tense, "has been lodged" indicates that an event occurred in the past prior to other events and implies that once 'the event has occurred-here the lodging of the detainer-certain consequences result. In this case, 'defendant obtained the right to demand disposition of the charges. The statute does not require that the detainer remain pending, or that it continue to be lodged, only that it "has been lodged." We conclude that the withdrawal of the detainer does not change the fact that a detainer "has been lodged."

Similarly, under § 24-60-501, art. III(d), "Talny request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall operate as a request for final disposition of all untried indictments, informations, or complaints on the basis of which detainers have been lodged against the prisoner." Again, the IAD refers to detainers that "have been lodged," indicating that a defendant's request is not contingent on the detainer being currently in place. Moreover, under this section, a defendant's request for disposition is directed to the "untried indictments, informations, or complaints" and not the de-tainer. Hence, the prosecution's withdrawal of the detainer by itself is not responsive to the request.

Contrary to the People's contention, United States v. Donaldson, 978 F.2d 381 (7th Cir.1992), does not hold otherwise. In Donaldson, the government filed a detainer against the defendant, who was incarcerated for parole violations in another jurisdiction. The defendant filed a request for a speedy disposition under the IAD. The government then dismissed the underlying charges and withdrew the detainer. The charges were refiled later.

The Donaldson court determined that the withdrawal of the detainer removed the defendant from the purview of the IAD, reasoning: "The [IAD] prevents detainers from remaining lodged with no action being taken on them for long periods. Here, the charges were resolved by dismissal of the complaint within 180 days of [defendant's] speedy trial motion." United States v. Donaldson, supra, 978 F.2d at 390 (citation omitted).

Contrary to the People's contention, the court's conclusion in Donaldson did not rest only on the withdrawal of the detainer itself, but also on the dismissal of the underlying charges, which removed the basis for the defendant's speedy trial request. : Regardless of the withdrawal of the detainer, defendant's speedy trial request was resolved because action had been taken on the underlying charges.

Here, had the prosecution acted on the charges and the detainer, as in Donaldson, the charges no longer would have been pending, and defendant's right to require speedy disposition would have ceased. Cf. United States v. Cephas, 937 F.2d 816 2d Cir. 1991)(180-day provision not tolled when charges dismissed, but detainer remained lodged, because government did not inform defendant of dismissal of charges).

The People argue that, nevertheless, dismissing and then refiling charges is not substantively different, for purposes of the IAD, from withdrawing a detainer and leaving pending charges in place. We do not agree.

Because no action of any kind was taken on the charges here, we need not decide whether dismissing charges without prejudice constitutes "final disposition" under the IAD, as Donaldson implies. In any event, whenever charges are dismissed, even though they may eventually be refiled, the threat of a future sentence is necessarily reduced. See United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 LEd.2d 329 (1978)(detrimental effects of pending detain-ers include serving sentence without knowing what additional sentences lie before the inmate).

As defendant points out, the IAD recognizes the detrimental effects of pending charges. See § 24-60-501, art. I, C.R.S.2001 (untried charges and detainers "produce uncertainties which obstruct programs of prisoner treatment and rehabilitation"); People v. Higinbotham, 712 P.2d 993, 997 (Colo.1986)(the primary purpose of the IAD is "to provide a mechanism for prisoners to insist upon speedy and final disposition of untried charges that are the subjects of detainers so that prison rehabilitation programs initiated for the prisoners' benefit will not be disrupted or precluded by the existence of these untried charges"); see also United States v. Kurt, 945 F.2d 248 (9th Cir.1991)(IAD procedures prevent prosecutorial abuses of the power of detainer that potentially allow a defendant to languish in the separate jurisdiction under the constant, but uncertain threat of further prosecution).

Accordingly, to allow charges to remain pending despite a defendant's request for speedy disposition, as occurred here, contravenes the explicit purpose of the IAD to "encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints." Section 24-60-501, art. I.

Lastly, we disagree with the People's assertion that the 180-day provision can be tolled here because the detainer was withdrawn in good faith and defendant was not prejudiced thereby. The IAD requires dismissal of the charges without regard to whether defendant has suffered prejudice. See People v. Sevigny, supra.

The judgment of dismissal is affirmed.

Judge JONES and Judge KAPELKE concur.


author: Judge WEBB.

text:
    John J. EICHHORN and Jeffrey M. Eichhorn, Plaintiffs-Appellees, v. Georgia KELLEY and Walter Keith, Defendants-Appellants.
    No. 01CA1804.
    Colorado Court of Appeals, Div. I.
    Aug. 15, 2002.

      Wilderson, O'Hayre, Dawson, McGinty & Frazier, P.C., Rufus O. Wilderson, Gunnison, Colorado, for Plaintiffs-Appellees.
    J. Albert Bauer, P.C., J. Albert Bauer, Amy L. O'Donnell, Breckenridge, Colorado, for Defendants-Appellants.
   Opinion by

Judge WEBB.

In this ongoing dispute over real property rights, defendants, Georgia Kelley and Walter Keith, appeal the trial court's order determining that attorney fees cannot be awarded based on an earlier contempt finding against plaintiffs, John J. Eichhorn and Jeffrey M. Eichhorn (fee order). We affirm the order.

Plaintiffs own a ranch in Gunnison County (Eichhorn property), which they acquired subject to a hunting easement and a right of ingress and egress for the benefit of an adjacent parcel (Kelley property). Defendants own the Kelley property together with the hunting easement and right of ingress and egress.

Disputes arose between the parties concerning the nature and seope of their respective hunting and other rights on the Eich-horn property. Plaintiffs sued defendants alleging claims for trespass and seeking declaratory and injunctive relief. Defendants counterclaimed alleging tortious interference with contractual relationships and sought quantum meruit reimbursement and declaratory and injunctive relief. The trial court issued several orders to resolve the dispute.

Defendants moved for an order to show cause why plaintiffs should not be held in contempt of the trial court's orders. Following a hearing, the trial court found Jeffrey Eichhorn in contempt for violating an order that prohibited hunting parties in excess of four people and found John Eichhorn in contempt for violation of another order based on his clear cutting of 200 to 350 acres on the property (contempt order). In addition to fining both plaintiffs and sentencing them to jail, the trial court ordered that "[dJefendants shall be entitled to recover two-thirds of their attorneys' fees incurred in these contempt proceedings," to be determined in further proceedings. Plaintiffs appealed the contempt order.

In Eichhorn v. Kelley, 2002 WL 1832838 (Colo.App. No. 01CA0922, Apr. 4, 2002)(not published pursuant to C.A.R. 85(f))(Fichhorn I), the division vacated the finding of indirect contempt and imposition of punitive sanctions against Jeffrey Eichhorn. As to John Eichhorn, the division affirmed the finding of indirect contempt, but vacated the imposition of punitive sanctions and remanded for reconsideration of those sanctions. The division also held that, because "the trial court erred in imposing punitive sanctions here, the award of attorney fees as part of a punitive sanction also must be vacated," but declined to "address plaintiffs' contention that the fees award itself was improper."

Prior to the announcement of Hichhorn I, the trial court had, in the fee order, modified the contempt order by ruling that attorney fees could not be awarded as punitive sanctions in a contempt proceeding. However, Eichhorn I did not consider the fee order, which is the sole focus of this appeal.

I.

As a threshold issue, we address plaintiffs' argument that vacation of the contempt order in Eichhorn I renders this appeal moot. We disagree.

Only a portion of the contempt order was vacated. Given the remand instructions as to further proceedings concerning John Eichhorn, attorney fees could still be an issue on remand. Accordingly, this appeal is not moot, see Davidson v. Comm. for Gail Schoettler, Inc., 24 P.3d 621 (Colo.2001), and we address the merits of defendants' appeal. See In re Interest of A.M.D., - P.3d -, 2002 WL 538853 (Colo.App. No. 00CA1857, Apr. 11, 2002).

IL.

Defendants first contend both punitive and remedial sanctions were imposed in the contempt order, and therefore the trial court erred in denying attorney fees based on an inaccurate characterization of the sanctions as solely punitive. We do not agree.

In Eichhorn I, the division concluded that the sanctions were "purely punitive in nature." We treat this conclusion as the law of the case, to which we adhere. See Rodgers v. Colo. Dep't of Human Servs., 39 P.3d 1232 (Colo.App.2001).

IIL

Defendants next contend the trial court erred in finding that attorney fees could not be awarded as a punitive sanction in a contempt proceeding. We are not persuaded.

C.R.C.P. 107(d) was substantially revised in 1995. The prior version provided for imposition of "reasonable attorney's fees in connection with the contempt proceedings," but did not specifically distinguish between remedial sanctions and punitive sanctions concerning fees. As revised, C.R.C.P. 107(d) now consists of two subsections, "(1) Punitive Sanctions" and "(2) Remedial Sanctions," which treat fees differently.

In an indirect contempt proceeding involving "Punitive Sanctions," the court "may impose a fine or imprisonment or both." C.R.C.P. 107(d)(1); In re Marriage of Nussbeck, 974 P.2d 493, 499 (Colo.1999). This section of the rule does not provide for an award of attorney fees. However, in an indirect contempt proceeding "Remedial Sance-tions" under C.R.C.P. 107(d)(@2) may include assessment of "[elosts and reasonable attorney's fees in connection with the contempt proceeding" in the discretion of the court, provided that the nature of the sanction has been disclosed in the motion or citation. See Securities Inv. Protection Corp. v. First Entertainment Holding Corp., 36 P.3d 175 (Colo.App.2001); Levin v. Anouna, 990 P.2d 1136 (Colo.App.1999).

The inclusion of certain items implies the exclusion of others. Beeghly v. Mack, 20 P.3d 610 (Colo.2001)(where the legislature specifically included a default provision in one statute, but did not include such a provision in another, the default provision could not be read into the latter statute). Based on this rule of interpretation, we conclude that because C.R.C.P. 107(d)(2) specifically allows an award of attorney fees as a remedial sanction, and C.R.C.P. 107(d)(1) has no comparable provision for a punitive sanction, the latter provision must be construed to exclude an award of attorney fees as a punitive sanction.

The inherent differences between these two types of contempt also support this interpretation.

A remedial sanction for contempt exists primarily to enforce obedience to a trial court's order. C.R.C.P. 107(@)(5). Therefore, any payments under a remedial sanction order should reimburse the person injured by the contemmor's disobedience. In re Marriage of Nussbeck, supra.

In contrast, a punitive sanction for contempt vindicates the authority and dignity of the court. CRCP. 107(a)(d). It does not primarily benefit the interests of a party; instead, it punishes the offending party for conduct offensive to the court. Thus, a proceeding for punitive sanctions "is a matter between the court and the offending party." In re Marriage of Nussbeck, supra, 974 P.2d at 499. But see In re Boyer, 988 P.2d 625 (Colo.1999)(court declined to say that restitution is never permissible in a punitive contempt proceeding).

Accordingly, if, on remand pursuant to Eichhorn I, the trial court imposes punitive sanctions against John Eichhorn, those sane-tions may not include attorney fees payable to defendants.

IV.

Finally, defendants contend that the trial court erred in' finding only a portion of the amount included in their fee application should be chargeable to plaintiffs. Given our conclusion that attorney fees cannot be assessed on remand, the issue of apportion ment is moot. See Davidson v. Comm. for Gail Schoettler, Inc., supra.

The order is affirmed.

Judge METZGER and Judge CASEBOLT concur.


author: Judge MARQUEZ.

text:
    SUNSTONE AT COLORADO SPRINGS HOMEOWNERS ASSOCIATION, INC., Plaintiff-Appellant, v. Joseph P. WHITE and Patricia A. White, Defendants-Appellees.
    No. 01CA2035.
    Colorado Court of Appeals, Div. V.
    Aug. 15, 2002.
    Alpern, Myers, Stuart, Scheuerman, & Levinson, LLC, Jack L. Scheuerman, Colorado Springs, Colorado, for Plaintiff-Appellant.

      Warren & Mundt, P.C., James A. Mundt, Colorado Springs, Colorado, for Defendants, Appellees.
   Opinion by

Judge MARQUEZ.

In this action to foreclose on a lien for assessments, charges, fines, fees, and other sums, plaintiff, Sunstone at Colorado Springs Homeowners Association, Inc., appeals the trial court's judgment denying its claim for foreclosure and attorney fees. We affirm in part, reverse in part, and remand for further proceedings.

Plaintiff is a nonprofit homeowners association, duly incorporated under the name "Sunstone at Colorado Springs Homeowners Association, Inc." since February 1983. Defendants, Joseph P. White and Patricia A. White, purchased a townhouse in the Sun-stone Subdivision in 1998.

In April 1988, the developer of the subdivision filed a declaration of covenants stating that the term "[alssociation" refers to "Sun-stone Homeowners' Association of Colorado Springs, Inc., it successors and assigns." The declaration provides that the owner of each lot within the subdivision "is deemed to covenant and agree to pay to the Association: annual assessments" and that "[the annual assessments, together with interest, late charges, costs and reasonable attorneys' fees, shall be a charge on the land and shall be a continuing lien upon the property against which each such assessment is made." The declaration provides that if any assessment is not paid within thirty days after the due date, the association may bring an action against the owner "or foreclose the lien against the property."

After a dispute arose concerning defendants' failure to pay certain assessments, plaintiff, using its corporate name, commenced this action for judgment for the unpaid assessments in the amount of $2,945.62, plus attorney fees, expenses, costs, and interest, and to foreclose the assessment len. The complaint alleged:

Now and at all times herein complained of, the Unit was bound by the provisions of the "Declaration of Covenants Conditions and Restrictions of Sunstoné at Colorado Springs Homeowners Association, Inc., which are recorded in Book 3861, beginning at Page 820 of the records of the El Paso County Clerk and Recorder (the "Declaration"), together with all amendments of record.

In their answer, defendants alleged that the amount claimed was overstated and inaccurate, but did not deny that the unit was bound by the declaration or otherwise contest plaintiff's right to bring this action or foreclose its lien.

It was not until trial that the discrepancy between plaintiff's name as stated in its articles of incorporation and the name of the association described in the declaration was discovered.

Plaintiff moved to amend the complaint so that the caption would reflect both its corporate name and the name described in the declaration, but the trial court denied the motion. Defendants then moved to dismiss the complaint based on the name discrepancy, but the trial court denied that motion as well.

At the conclusion of trial, the court found that plaintiff may or may not have a lien pursuant to statute, but had recorded a lien pursuant to the declaration. The court further found that the association named in the declaration was an unincorporated association that did not exist, that there had been no change of plaintiff's corporate name, and that the covenants in the declaration therefore did not apply. However, the court determined that there was an implied contract between plaintiff and defendants for payment of assessment fees and ordered defendants to pay $489.78, the total amount claimed by plaintiff, excluding the amount claimed as attorney fees.

Following entry of the judgment, plaintiff moved for an amendment of findings and judgment, asserting that the fact that the association's name in the declaration is different from plaintiff's corporate name did not affect its rights and requesting that the trial court amend its findings to provide for attorney fees and foreclosure.

The trial court treated the motion as a motion to reconsider and denied it.

L.

Plaintiff first contends that it is not precluded from enforcing the declaration and foreclosing on the lien simply because its corporate name differs slightly from that contained in the declaration. We agree.

The parties have not cited, nor have we discovered, any Colorado case law addressing this precise issue. However, the general rule followed by courts in other jurisdictions is that stated in 18A Am.Jur.2d Corporations § 286 (1985):

It is the general rule that, where there is a misnomer of a corporation in a grant, obligation, written contract, notice, or the like, if there is enough expressed to show that there is such an artificial being, and to distinguish it from all others, the corporate body is well named, even though there is a variation of words and syllables.

See Pinson v. Hartsfield Int'l Commerce Center, Ltd., 191 Ga.App. 459, 382 S.E.2d 186 (1989)(misnomer of a corporation in a written instrument is not material if the identity of the corporation intended is clear or can be ascertained by proof); Curtis G. Testerman Co. v. Buck, 340 Md. 569, 667 A.2d 649 (1995)(misnomer of corporation in contract was not sufficient to release the corporation from liability when identity of corporation was apparent and could be clearly ascertained from the face of the contract); Bil-Gel Co. v. Thoma, 345 Mich. 698, 77 N.W.2d 89 (1956)(misnomer of corporation in a written instrument will not defeat a recovery thereon, if the identity sufficiently appears from the name employed in the writing or is satisfactorily established by proof); Mail & Express Co. v. Parker Axles, Inc., 204 A.D. 327, 198 N.Y.S. 20 (1923)(misnomer is unimportant if corporation sued or suing is intended by parties to be the corporate entity described in the contract); Life & Cas. Ins. Co. v. City of Nashville, 175 Tenn. 688, 137 S.W.2d 287 (1940)(misnomer or variation from the precise name of a corporation in a grant or obligation is not material if the identity of the corporation is unmistakable, either from the face of the instrument or from proof or averments).

Similarly,

[tlhe misnomer of a corporation generally will not be treated by the courts as material, if the identity of the corporation is reasonably clear or can be ascertained by sufficient evidence. In other words, slight departures from the name used by the corporation ... generally will not affect the validity of contracts or other business transactions as long as the identity of the corporation can be reasonably established from the evidence.

6 William M. Fletcher, Fletcher Cyclopedia of the Law of Private Corporations § 2444, at 156-58 (rev.vol.1996). In addition, "[al mistake in setting out the name of a corporation in an instrument is not fatal where the identity of the corporation is apparent." Fletcher, supra, $ 8014, at 183.

Unlike an individual name, a corporate name usually consists of several words, and the transposition or interpolation of some of them may make no essential difference and is not so likely to confuse and mislead or hide the identity of the entity intended. Pinson v. Hartsfield Int'l Commerce Center, Ltd., supra; 18A Am.Jur.2d Corporations § 286.

Thus, we conclude that a misnomer of a corporation in a written document is not material if the identity of the intended corporation is clear or can be ascertained by proof.

Here, plaintiff's manager testified that plaintiff and the association identified in the declaration are the same entity. Further, defendants' answer did not allege a lack of identity of the proper corporation. Rather, defendants presented evidence that plaintiff used the name "Sunstone" on its letterhead, that plaintiff was known to some as "Sunstone Townhomes," and that the unit owners in the subdivision made their checks out to "Sunstone HOA." However, defendants did not allege that plaintiff did not have the authority to impose the assessments, and they stipulated that the covenants applied to their property, essentially conceding they were bound by them. Defendants' position at trial was that plaintiff had no basis to ask for the assessments because plaintiff had improperly accounted for several payments.

Moreover, evidence was presented that defendants have paid assessments to plaintiff, except for the assessments at issue, pursuant to the terms in the declaration without objection. There is no indication in the record that funds paid to plaintiff were not applied in accordance with the covenants.

Because the identity of plaintiff as the entity described in the covenants was supported by the evidence, the variation or misnomer in plaintiff's name as set forth in the declaration is immaterial, and the trial court erred in finding that the covenants did not apply.

IL.

Plaintiff also contends that use of the name "Sunstone Homeowners Association" in its recorded lien statement does not affect its right to foreclose because neither the covenants nor § 38-83.3-316, C.R.S.2001, requires plaintiff to record a statement to perfect the lien. We agree.

As a threshold matter, we note that the validity of the lien was not challenged before the trial court. Nonetheless, we choose to address the issue here.

Plaintiff is a common interest community subject to the Colorado Common Interest Ownership Act, § 38-38.3-101, et seq., C.R.S. 2001. Under § 88-33.3-316(1), C.R.S.2001, a statutory lien is created for any assessment levied or fine imposed against an owner. Hallmark Bldg. Co. v. Westland Meadows Owners Ass'n, 983 P.2d 170 (Colo.App.1999). Section 38-88.3-316(11)(a), C.R.S.2001, also provides that when the owner's interest in the unit is real estate, as determined under § 38-38.8-105, C.R.S.2001, the association's lien must be foreclosed "in like manner as a mortgage on real estate."

Here, plaintiff had a statutory lien against defendants' property premised on its claim for assessments. Plaintiff filed a lien statement using the name "Sunstone Homeowners Association" and mailed notice of the same to defendants. Further, there is no evidence that the misnomer in the lien statement frustrated the identification of plaintiff or caused confusion to defendants. Thus, plaintiff is entitled to foreclose its lien.

IIL.

Given our disposition of plaintiffs first issue, we need not address its remaining contentions concerning estoppel and implied contract.

The judgment is reversed to the extent it denied plaintiff's claims for attorney fees and foreclosure, and the case is remanded for entry of an amended judgment consistent with the principles expressed in this opinion. In all other respects the judgment is affirmed.

Judge ROY and Judge NIETO concur.