author: GOLDEN, Justice.

text:
    2002 WY 81
    Dawn WELCH and Connie Harn, Appellants (Plaintiffs), v. HAT SIX HOMES, a Wyoming corporation, Jim Jerett and Maralyne Middour, individually, Appellees (Defendants). Hat Six Homes, a Wyoming corporation, Jim Jerett and Maralyne Middour, individually, Appellants (Defendants), v. Dawn Welch, Appellee (Plaintiff).
    Nos. 00-209, 00-210.
    Supreme Court of Wyoming.
    May 28, 2002.

      Phillip T. Willoughby and Cameron S. Walker, Casper, Wyoming, Representing Dawn M. Welch and Connie Harn. Argument by Mr. Walker.
    Les Bowron and Frank Chapman of Beech Street Law Office, Casper, Wyoming, Representing Hat Six Homes, Inc., and James W. Jerrett and Maralyne S8. Middour. Argument by Mr. Chapman.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[¶ 1] These two consolidated appeals arise from an award of attorney's fees and costs. In appeal number 00-209, Appellants Dawn Welch and Connie Harn appeal a court award of attorney's fees against them and their attorney. In appeal number 00-210, Appellants Hat Six Homes, Jim Jerett and Maralyne Middour appeal the amount of the attorney's fees awarded, complaining that the amount is insufficient. Finding the district court abused its discretion in awarding attorney's fees under the cireumstances, we reverse. Appeal number 00-210 is dismissed as moot.

ISSUES

[¶ 2] In appeal number 00-209, Appellants Welch and Harn present the following issues:

1. Did the trial court err as a matter of law awarding attorney's fees and costs against Plaintiffs' counsel under Count One of Plaintiffs' Complaint, Sexual Discrimination, under 42 U.S.C. § 2000(0)?
2. Did the trial court abuse its discretion as a matter of public policy and under the facts of this case by awarding attorney's fees against the Plaintiffs under Count One of Plaintiffs' Complaint, Sexual Discrimination, under 42 U.S.C. § 2000(e) and its subsections?
3. The trial court erred as a matter of law deciding issues concerning 42 U.S.C. § 2000(e) and its subsections without determining if Defendants were "prevailing parties" and that any such determination under the facts of this case would be contrary to law.
4. Did the trial court err as a matter of law imposing sanctions as a violation of W.R.C.P. Rule 11(b) against Plaintiffs and Plaintiffs' counsel as a result of pleading as Count One of their Complaint, Sexual Discrimination under 42 U.S.C. § 2000(ce) based on Plaintiffs' reasonable belief as to the number of employed persons of the Defendant?
5. Did the trial court err as a matter of law finding the Plaintiffs' claim of intentional infliction of emotional distress was pled in violation of W.R.C.P. Rule 11(b) because Plaintiffs had not sought treatment for distress and an award of attorney's fees was appropriate as a sanction?
6. Did the trial court err awarding Rule 11 sanctions against Plaintiffs if any counts of a multiple count complaint survived summary judgment and the surviving counts, prior to trial, were voluntarily dismissed by Plaintiffs?

Appellees rephrase the issues as:

1. May Plaintiffs raise for the first time on appeal the issue of possible error by the District Court regarding the District Court's award of attorney's fees and costs under Title VII against Plaintiffs' counsel?
2. Did the District Court commit reversible error by finding that Defendants were the prevailing parties?
3. Did the District Court commit reversible error in its award to Defendants of part of their attorney's fees and costs as a sanction under W.R.C.P. 11 as to Count I?
4. Did the District Court commit reversible error in its award to Defendants of part of their attorney's fees and costs as a sanction under W.R.C.P. 11 as to Count V?
5. Did the District Court commit reversible error in awarding attorney's fees and costs under Rule 11 in light of Plaintiffs' voluntary dismissal of the rest of their baseless complaint?

[¶ 3] In appeal number 00-210, Appellants' single issue is: "Did the District Court commit reversible error by abusing it's [sic] discretion in denying Defendants a complete award of their attorney's fees under Title VII and a more appropriate sanction pursuant to W.R.C.P. 11?" Only Appellee Welch filed a brief in answer to Appellants and substantially agreed with the statement of the issue.

FACTS

[¶ 4] Dawn Welch and Connie Harn worked for Hat Six Homes. Jim Jerett and Maralyne Middour are officers and employees of Hat Six Homes. Among other complaints, Welch and Harn both alleged that Jerett was guilty of continuing instances of sexual harassment in the workplace. Welch filed an affidavit in the case below in which she alleged that, although she continuously protested against such conduct, Jerett would repeatedly put "his hands on the back of my neck, down the back of my shirt or sweater, up the back of my shirt or sweater, under my arms from behind, often times extending his hands to the front and touching my breasts." Based upon this conduct, Welch and Harn, through their attorney Phillip T. Willoughby, in December 1997 filed a multiple-count complaint against Hat Six Homes, Jerett and Middour (hereinafter collectively "Hat Six"), alleging various claims for relief.

[¶ 5] Of importance to the instant appeal are two particular counts of the complaint. One count alleged a violation of Title VII of the Civil Rights Act of 1964. Another count alleged intentional infliction of emotional distress. Hat Six moved for summary judgment on all counts. Although some counts survived the motion for summary judgment, in March 1999 summary judgment was granted to Hat Six on the above-described two counts.

[¶ 6] With regard to the alleged Title VII violation, Title VII only applies to employers who employ a minimum number of employees. Hat Six originally averred that Welch and Harn were independent contractors and not employees. In support of its motion for summary judgment, Hat Six submitted an affidavit stating that it never employed the requisite number of employees during the applicable time period. At the hearing on the motion for summary judgment, Welch and Harn conceded that Hat Six did not have the requisite number of employees during the applicable time period, and summary judgment was entered against them on Title VII on this ground. With regard to the claim for intentional infliction of emotional distress, the district court granted summary judgment on the grounds that the alleged conduct was not outrageous enough to be actionable and that any alleged distress suffered was not sufficiently severe.

[¶ 7] Welch and Harn have not appealed the grant of summary judgment on any count. Ultimately, Welch and Harn determined that they did not wish to continue with the litigation and moved for a voluntary dismissal. A voluntary dismissal with prejudice was granted in December 1999, with the court specifically reserving the issue of the grant of attorney's fees and costs.

[¶ 8] In February 2000, Hat Six moved for attorney's fees and costs pursuant to provisions in Title VII and separately moved for sanctions pursuant to W.R.C.P. 11. For the count alleging a violation of Title VII, the district court awarded a total of $1,000. The district court awarded the amount both as attorney's fees under Title VII and also as a sanction under Rule 11. Pursuant to Rule 11, the district court made the amount payable by Welch and Harn and by their attorney, Willoughby. The court specifically found that the suit was meritless because Hat Six did not employ the requisite number of employees and that Willoughby failed to make a reasonable inquiry into the number of employees before filing the complaint.

[¶ 9] The district court also awarded $500 as sanctions pursuant to Rule 11 for the count for intentional infliction of emotional distress. Neither plaintiff had sought treatment for severe emotional distress in this case. The district court considered seeking treatment for severe distress to be a prerequisite to filing a claim for intentional infliction of emotional distress and reasoned that Willoughby should have known he could not meet this prerequisite and should not have filed the claim. Welch and Harn timely appealed the award of attorney's fees, and Hat Six timely appealed the amount awarded

STANDARD OF REVIEW

[¶ 10] We apply an abuse of discretion standard in reviewing an award of sanctions. Bender v. Phillips, 8 P.3d 1074, 1077 (Wyo.2000) (citing Meyer v. Mulligan, 889 P.2d 509, 517 (Wyo.1995)). We also review the grant of attorney's fees under Title VII under an abuse of discretion standard. Metz v. Merrill Lynch, Pierce, Fenmer & Smith, 39 F.3d 1482 (10th Cir.1994) ("We will not reverse a district court's award of fees to a prevailing party unless the award represents an abuse of discretion."); see also Homeward Bound, Inc. v. Hissom Memorial Cir, 963 F.2d 1352, 1355 (10th Cir.1992); Reazin v. Blue Cross & Blue Shield of Kansas, Inc., 899 F.2d 951, 980 (10th Cir.), cert. denied, 497 U.S. 1005, 110 S.Ct. 3241, 111 L.Ed.2d 752 (1990).

DISCUSSION

[¶ 11] As their initial issue, Appellants Welch and Harn question the propriety of the award of attorney's fees against their attorney, Willoughby. The specific issue of the award of attorney's fees against Wil-loughby, however, is not properly before this Court. As this appeal is presented to this Court, it is abundantly clear that the only appealing parties are Welch and Harn. The notice of appeal in this case clearly designates the appellants as Welch and Harn and appeals the "Order Awarding Attorney's Fees and Costs," an order which applies to them. The notice gives no indication that Willoughby is appealing. In fact, the language of the briefs makes it clear that Wil-loughby is not appealing; rather, only Welch and Harn are appealing. The appellants' brief is specifically submitted in the names of Welch and Harn. Further, the answer brief for the cross-appeal is in the name of Welch only and refers to the appellants' brief in appeal number 00-209 as the "Welch Harn" brief.

[¶ 12] The problem this creates is that Welch and Harn, the appellants in appeal number 00-209, do not have standing to appeal an award of attorney's fees against Willoughby. Clients do not have standing to appeal the award of attorney's fees against their attorney. Laurino v. Tate, 220 F.3d 1213, 1218 (10th Cir.2000); Cabrera v. City of Huntington Park, 159 F.3d 374, 382 (9th Cir.1998). Clients simply do not possess the requisite interest, pecuniary or otherwise, to support standing. Estate of Bishop v. Bechtel Power Corp., 905 F.2d 1272, 1276 (9th Cir.1990) ("Because a party can hardly be expected to shoulder the financial burden of sanctions entered against its attorney, it lacks the requisite interest for standing to appeal.")

[¶ 13] It is the attorney's interest that is at stake, and it is the attorney that should bring the appeal in his own name. An appeal is begun by the filing of a notice of appeal. W.RAP. 2.07(a)(1) states that the party or parties taking the appeal must be specified in the notice of appeal. Thus, if an attorney wishes to appeal the award of sane-tions against him, the attorney must file a notice of appeal in his own name. Willough-by never filed a notice of appeal in his name. W.R.AP. 1.03 states "[the timely filing of a notice of appeal, which complies with Rule 2.07(a), is jurisdictional." Simply put, because Willoughby never appealed the award of sanctions against him, this Court lacks jurisdiction to hear and decide the issue.

[¶ 14] In the recent appeal involving the award of sanctions against an attorney, Caldwell v. Cummings, 2001 WY 106, 33 P.3d 1138 (Wyo.2001), this Court, on its own motion, substituted appellants. client, who we recognized as having no ap-pealable interest, brought the appeal. This Court decided that it was appropriate to substitute appellants in Caldwell because the appeal was from an order imposing sanctions against the attorney only. Id. at n. 1. Because the award was against the attorney only, it was obvious that.the attorney was the only person who could bring the appeal. Thus, it was objectively clear that the attorney intended to take the appeal. See Laurino, 220 F.3d at 1218 ("The notice of appeal here specifically purports to appeal, among other things, from an order ... that only concerns the sanctions entered against [the attorney]. Designation of this order provides sufficient evidence, by implication, of [the attorney's] intention to take an appeal from the order of sanctions." (emphasis in original)). Originally, the

[¶ 15] In Caldwell, then, because it was objectively apparent from the face of the notice of appeal that the attorney was the proper party to the appeal, we allowed the appeal to be maintained in the name of the attorney. This appeal does not invoke the same leniency. Here, it is obvious that Wil-loughby did not intend to appeal. As the United States Supreme Court stated in Torres v. Oakland Scavenger Co., 487 U.S. 312, 315-16, 108 S.Ct. 2405, 2408, 101 L.Ed.2d 285 (1988), "[plermitting imperfect but substantial compliance with a technical requirement is not the same as waiving the requirement altogether as a jurisdictional threshold." In Torres, the Court made it clear that the party taking the appeal must be identifiable from the notice of appeal in order to invoke the appellate court's jurisdiction. As the Court reasoned: -

[p]ermitting courts to exercise jurisdiction over unnamed parties after the time for filing a notice of appeal has passed is equivalent to permitting courts to extend the time for filing a notice of appeal. Because the Rules do not grant courts the latter power, we hold that the Rules likewise withhold the former. ©

Id. at 315, 108 S.Ct. at 2408.

[¶ 16] Looking at the notice of appeal in this action, there is no way of telling that Willoughby intended to take an appeal from the order of sanctions as it applied to him. In fact, the notice and the briefs filed in this action clearly evidence that Willoughby never intended to be, and in fact is not, a party to this appeal. Willoughby has not invoked the jurisdiction of this Court. Having no jurisdiction over Willoughby, we have no jurisdiction over matters that concern only Willough-by, and we thus decline to address the first issue.

[¶ 17] Although we have determined that we lack jurisdiction to review the order as it relates to awarding attorney's fees against Willoughby, this determination does not end the discussion. The order appealed from awards sanctions against both the appellants and Willoughby. The general rule is that a non-appealing party will not benefit from a judgment in favor of an appealing party. 5 C.J.S. Appeal and Error § 930 (1998). There is an exception, however, where the rights and interests of the parties are so intermingled and interdependent that reversal in favor of only one party would not affect a just result as to both the appealing and the nonappealing parties. See e.g. Swinney v. Mosher, 830 S.W.2d 187, 197 (Tex.App.1992) (general rule does not apply "where the respective rights of the appealing and nonappealing parties are so interwoven and dependent on each other as to require a reversal of the entire judgment"). Because the attorney's fees are payable by both appellants and Willoughby, and because Hat Six is appealing the amount awarded, Wil-loughby's interests will be prejudiced if he is not granted the benefit of this reversal. We therefore will hold that the results of these appeals apply equally to Willoughby.

Rule 11 of the Wyoming Rules of Civil Procedure

[118] While we have great doubt regarding the reasoning employed by the district court in the granting of sanctions pursuant to Rule 11, we need not reach the merits of the discussion because Hat Six failed to follow the procedure required to bring an appropriate motion for Rule 11 sanctions. Hat Six did not file its motion for sanctions pursuant to Rule 11 until after the case had been dismissed. Such a motion runs contrary to the letter and the spirit of Rule 11. Rule 11 states, in pertinent part:

Rule 11. Signing of pleadings, motions, and other papers; representations to court; sanctions. -
(a) Signature -Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer's address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.
(b) Representations to court.-By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the cireumstances:
(1) It is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(8) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
(c) Sanctions.-If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.
(1) How Initiated.
(A) By motion.-A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional cireumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.
'(B) On court's initiative-On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto.
(2) Nature of sanction; limitations.-A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney's fees and other expenses incurred as a direct result of the violation.

[¶ 19] Rule 11 sanctions are not to be cavalierly threatened or imposed. We recently discussed the procedural requirements of Rule 11 in Caldwell. Caldwell presented a similar procedural background: a motion for sanctions was filed after the case was resolved. We vacated the order awarding sanctions under Rule 11 because the strict procedural requirements of Rule 11 were not followed. 2001 WY 106, ¶ 12, 33 P.3d 1138, ¶ 12. As we emphasized in Caldwell, Rule 11 contains a "safe harbor" provision by which counsel provides a warning to opposing counsel through the service of a motion for sane-tions upon opposing counsel only. Id. at 1 10. This motion is not to be filed with the court until at least twenty-one days after its service, in 'order to give opposing counsel an opportunity to correct or withdraw any allegedly sanctionable paper. Obviously, opposing counsel has no opportunity to correct or withdraw the allegedly offending paper if a motion for sanctions is served after the case is ended. Here, the motion for Rule 11 sanctions was filed directly with the district court after the case was settled. Such a motion should not be entertained. The award of sanctions pursuant to Rule 11 is vacated.

Title VII

[¶ 20] The district court also awarded attorney's fees pursuant to § 706(k) of Title VII. A fairly stringent standard is applied to the award of attorney's fees to a prevailing defendant in a Title VII case. A prevailing defendant in a Title VII action is entitled to attorney's fees only in the very limited cireumstance where "a court finds that [plaintiffs] claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 701, 54 L.Ed.2d 648 (1978). Attorney's fees cannot be awarded against a plaintiff simply because the plaintiff lost the case. The Supreme Court specifically cautioned that courts must:

resist the understandable temptation to engage in post hoe reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success.

Id. at 421-22, 98 S.Ct. at 700.

[¶ 21] Strong policy considerations support restricting the award of attorney's fees to prevailing defendants in Title VII cases. Legislative policy encourages the vindication of civil rights through private litigation. Id. at 418, 98 S.Ct. at 699 ("the plaintiff is the chosen instrument of Congress to vindicate 'a policy that Congress considered of the highest priority' " (quoting Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968))). Thus, limiting the award of attorney's fees to prevailing defendants under Title VII is appropriate and necessary in order to protect and encourage plaintiffs to file meritorious claims, especially plaintiffs of limited means.

[¶ 22] Applying this law and these policy corisiderations to the instant appeal, we find that it was an abuse of discretion to award attorney's fees to Hat Six. While the parties raise the issue whether or not Hat Six was a prevailing party for purposes of 42 U.S.C. 2000e-5(k), we need not determine this issue because the suit clearly was not frivolous. Hat Six denied that Welch and Harn were employees, claiming instead that they were independent contractors. Thus, Hat Six presented a question of fact as to the status of anyone working for it. Affidavits from Welch and Willoughby state that, as of the time the complaint was filed, they thought that Hat Six employed the requisite number of employees. Grounds existed to file the complaint and start the formal discovery process. That discovery did not ultimately confirm Hat Six employed the requisite number of people does not make the filing of the complaint frivolous or groundless. Strong allegations of sexual harassment formed the foundation for the complaint and every count therein, and there was never a ruling on these allegations. Under these circumstances, Hat Six is not entitled to recover any of its attorney's fees.

CONCLUSION

[¶ 23] Rule 11 of the W.R.C.P. involves serious consequences and should not be lightly invoked. Rule 11 contains very specific procedural requirements that are mandatory. Hat Six did not follow the required procedure, and therefore Rule 11 sanctions should not have been imposed.

[¶ 24] This case involved significant allegations of sexual Karassment in the workplace. Adequate grounds existed to bring the complaint. Hat Six denied. being an employer as defined by Title VIL. This raised a question of fact, requiring resolution through formal discovery. Summary judgment was granted to Hat Six on the Title VII claim after the issue was clarified through discovery and the motion for summary judgment. There was nothing frivolous or groundless in bringing or maintaining the Title VII claim under these facts. An award of attorney's fees to Hat Six is not appropriate in this case.

[¶ 25] The judgment of the district court regarding attorney's fees and sanctions is reversed. This ruling applies equally to attorney Willoughby as to the appealing parties, Appeal number 00-210 is dismissed as moot.

      . Although the issue is not before us, we recently addressed the proper analysis of intentional infliction of emotional distress claims in the context of summary judgments in Bevan v. Fix, 2002 WY 43, 42 P.3d 1013 (Wyo.2002).

      . The district court also awarded costs against appellants pursuant to W.R.C.P. 54(d)(1). The award of costs was not raised as an issue in appellants' brief so is not subject to this appeal.

      . (k) Attorney's fee; liability of Commission and United States for costs.
      In any action or proceeding under this sub-chapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. n
      42 U.S.C. § 2000e-5(k) (1994).


source: Caselaw Access Project

author: KITE, Justice.

license: Public Domain

text:
    2002 WY 83
    James R. ALEXANDER and Rita J. Alexander, husband and wife, Appellants (Defendants), v. Donald J. MEDUNA and Linda Meduna, husband and wife; and Donald Meduna, Trustee of the Meduna Red Angus Ranch Trust, dated December 11, 1996, Appellees (Plaintiffs).
    No. 00-324.
    Supreme Court of Wyoming.
    May 30, 2002.

      Micheal K. Shoumaker, Westminster, Colorado; and Virgil G. Kinnaird, Sheridan, Wyoming, Representing Appellants.
    Joseph E. Darrah and S. Joseph Darrah of Darrah & Darrah, P.C., Powell, Wyoming, Representing Appellees.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   KITE, Justice.

[¶ 1] James and Rita Alexander (the sellers) sold their home of many years to Donald and Linda Meduna and Meduna Red Angus Ranch Trust (the buyers). Before contracting, the buyers viewed the property and were advised by the sellers there was no groundwater seepage or structural defects. The basement flooded shortly after the buyers took possession. At the bench trial, an engineer testified he discovered evidence of long-term structural damage under paneling and carpet and in crawl spaces. The trial court found the sellers' fraudulent representations induced the buyers to contract and awarded punitive damages. We affirm in part, reverse in part, and remand for correction of the compensatory damages associated with the Northwest Rural Water District hookup.

FACTS

[¶ 2] In February 1996, the sellers listed their home of over twenty years, including approximately forty acres of land, a residence, and a mobile home office, for sale through Alexander Realty with Mrs. Alexander as the listing broker. The buyers and their real estate agent first viewed the property on or about December 9, 1996.

[¶ 3] The real estate agent prepared a purchase offer for the buyers within approximately one day of the first property showing. A copy of a property condition statement completed by Mrs. Alexander was delivered to the buyers before they made their first offer and was attached to all offers that went back and forth between the parties.

[¶ 4] The buyers' original proposed contract to purchase was submitted on or about December 11, 1996. The sellers counterof-fered the same day, and the buyers accepted on December 12, 1996, with some additional terms. The contract provided standard form language regarding the buyers' right to inspect the property.

[¶ 5] The buyers did not have professional inspections performed. The property closing occurred on or about April 11, 1997, and the buyers did not take physical possession until approximately June 10, 1997, because they had to complete personal business and make moving arrangements.

[¶ 6] In the latter part of June 1997, the buyers experienced a number of problems including flooding in the residence basement, roof disrepair, and leakage in the mobile home office; the inability to grow any produce in the garden; and the discovery the Northwest Rural Water District hookup costs would be in excess of $8,000. They filed a lawsuit against the sellers seeking recovery on two causes of action: (1) fraud and deceit and (2) infliction of severe emotional distress. After a lengthy bench trial, the trial court found the buyers had proved the sellers' multiple, intentional fraudulent misrepresentations by clear and convincing evidence but had not established intentional infliction of emotional distress by a preponderance of the evidence. Subsequent to a punitive damages hearing, the trial court awarded the buyers judgment and damages of $100,840.94, attorney fees of $38,045, costs of $9,228.42, and punitive damages of $25,000. The sellers appealed.

STANDARD OF REVIEW

[¶ 7]

"When a trial court in a bench trial makes express findings of fact and conclusions of law, we review the factual determinations under a clearly erroneous standard and the legal conclusions de novo." Rennard v. Vollmar, 977 P.2d 1277, 1279 (Wyo.1999). This. court does not weigh the evidence de novo; therefore, findings may not be set aside because we would have reached a different result. Moreover, the appellant bears the burden of persuading the appellate court that the finding is erroneous.

Schlesinger v. Woodcock, 2001 WY 120, ¶ 13, 35 P.3d 1232, ¶ 13 (Wyo.2001) (some citations omitted); see also Polo Ranch Company v. City of Cheyenne, 969 P.2d 132, 136 (Wyo.1998).

[¶ 8] We will not supplant the fact-finder, but, in reviewing the sellers' arguments, we must keep in mind the elements of intentional misrepresentation (fraud) and the requisite clear and convincing standard of proof. Dewey v. Wentland, 2002 WY 2, ¶ 10, 38 P.3d 402, ¶ 10 (Wyo.2002); Sundown, Inc. v. Pearson Real Estate Company, Inc., 8 P.3d 324, 330 (Wyo.2000). Intentional misrepresentation is established when three elements are proven: "(1) the defendant made a false representation intended to induce action by the plaintiff; (2) the plaintiff reasonably believed the representation to be true; and (3) the plaintiff relied on the false representation and suffered damages." Sundown, Inc.,.8 P.3d at 380.

DISCUSSION

A. Summary of Evidence

[¶ 9] At trial, the buyers' expert witness, a registered professional engineer, testified regarding his July 1997 inspection of the property, his written report based on that inspection, and what, in his opinion, caused the structural damages and defects. The gist of his testimony was that the problems had existed for a long period of time. He noted evidence of water damage in the basement including héavy salt deposits and peeling paint on the basement walls, extensively rusted and corroded heat registers, spalling of the masonry and significant alkali deposits in the west crawl space, and bulging of the east and west walls. The engineer opined that excessive migrating groundwater and inadequate subsurface drainage away from the residence existing for not less than three to five years caused water to permeate the inadequately damp proofed foundation walls, swelling the soil and causing the east and west walls to buckle inward. He also concluded the damage was not caused by excessive lawn watering. He testified the foundation walls would have to be exposed, sandblasted, and damp proofed to prevent complete failure. This would require emptying the basement; removing the electrical wiring, plumbing, and carpeting; and excavating the soil from the foundation perimeter. ~Cracks and heaves in the basement floor would likewise need repair. He noted the excavation would disrupt the existing landscaping which would require repair after the foundation was secured, The engineer also testified the mobile home office roof was in poor condition. Significant leaks and buckling in the roof would require extensive repairs. In the interior northwest corner of the mobile home office, an additional layer of sheetrock had been installed on the ceiling which concealed signs of water leakage.

[¶ 10] An experienced building contractor testified he saw bulging of the east basement wall which was causing the center wall support to move and the center-bearing wall to wrinkle at the basement ceiling. He also observed eracks and heaves in the floor, metal heat registers severely rotted from water and salts coming through the walls, and heavy salt deposits on the walls where the buyers had removed the paneling just after they moved into the house.

[¶ 11] Mr, Meduna and his real estate agent testified that the sellers knew the buyers needed to generate supplemental income from the property by using the mobile home office as a business and selling produce and crops from the garden and other acreage. Before entering into the contract, the sellers showed them around the property including the residence, a separate workshop, the mobile home office, the garden, the irrigated acreage, and a pig barn. The sellers each made representations regarding the property condition and suitability for the buyers' stated needs. Neither Mr. Meduna nor his agent saw visible evidence of water damage. They were not shown the crawl spaces, and the walls of two bedroom closets could not be seen because they were covered over by boxes and other items. During the showing, as witnessed by the real estate agent, the sellers represented to the buyers that: (1) the basement had water leakage due to a water softener defect and a downspout malfunction, both of which had been repaired; (2) the garden had been fertilized and was sufficient ly productive to permit Mrs. Alexander to can produce; and (8) Northwest Rural Water District water could be accessed at the property line by the road for approximately a $2,000 tap fee and a $1,500 trench cost. The buyers received the property condition statement listing only the two repaired leakage incidents prior to making their initial offer. That statement also provided:

The undersigned Seller ... completes and executes this Addendum to such listing contract in order to comply with Seller's obligation to reasonably discover and fully disclose to all parties any and all information regarding the condition of such property, does hereby make the following statement and representation concerning the present description and condition of subject property.

The buyers relied heavily on the sellers' oral and written representations of the property condition in making an offer to purchase and believed the disclosures were honest and complete.

[¶ 12] Mr. Meduna testified about how he first became aware of the water problem in the basement and the steps he took to have it evaluated and repaired. He testified as to advice he received regarding the garden and the fact the soil had been sterilized through use of a weed killing chemical, about how he became aware of the Northwest Rural Water District hookup costs, and regarding the steps he took to mitigate the damage to the house, garden, and mobile home. He also stated these efforts were hampered by the buyers' lack of sufficient finances to adequately correct all the defects.

[¶ 13] The sellers former housekeeper testified that, approximately six years prior to the house sale, she periodically cleaned salt residue off the basement carpet. The former owner of the home testified that, during the time he lived in the home, he installed paneling in only one basement bedroom and did no other paneling or painting; the groundwater level was significantly below the foundation level; and there were no irrigation lines in place.

[¶ 14] Mrs. Alexander initially testified she was unaware of any excessive water'issues in her former home. However, she later admitted the sellers recarpeted the basement many times during their twenty-year residency but denied that the frequent replacement was due to excessive groundwater leakage. She acknowledged as a realtor she was aware that sellers are required to fully disclose any known property defects on the property condition statement. She also eventually acknowledged she was aware of the salt buildup on the basement walls and this was a defect she had failed to disclose. Mrs. Alexander initially testified the sellers did not panel or paint the basement prior to offering the property for sale but then equivocated stating she was not sure whether they had made the improvements. She testified the water leakage could have come from over watering the lawn or wet weather and she had advised the buyers not to water the lawn area for more than fifteen minutes at a time. She acknowledged she told the buyers she had grown and canned produce from the garden and still had canned goods in the basement. However, she admitted this was over ten years ago and did not specifically recall whether she had advised the buyers of this fact.

[¶ 15] Mr. Alexander similarly denied knowledge of the water leakage issue or efforts on his part to conceal the water damage through cosmetic repairs of the walls and floors. His testimony regarding paneling and painting was equivocal as well. In due course, he conceded he was aware of the salt deposits and did not advise the buyers of this orally or on the property condition statement.

B. Summary of Trial Court Findings of Fact |

[¶ 16] In a decision letter dated January 26, 2000, the trial court set out thirty-one detailed findings of fact. We present these in summary fashion: The trial court found the buyers' expert witness was qualified to present technical evidence regarding the condition of the property, causation of structural damages, and defects. This testimony was deemed credible and unrefuted. Conversely, the trial court found Mr. Alexander testified in a conflicting manner regarding certain matters and rejected portions of his testimony. Further, certain aspects of the sellers' testimony, by which they endeavored to exonerate their misrepresentations and failure to disclose, were found not to be credible.

[¶ 17] The trial court determined: (1) The sellers were, or reasonably should have been, aware of, and failed to disclose, defects and damage to the basement foundation, walls, floor, and heat registérs; (2) the sellers bolstered the buyers' trust in their representations through statements during the initial showing that two excessive water incidents had been corrected and by pointing out an indention of the living room floor; (8) undisclosed leaks and buckling in the mobile home office would require extensive repairs; (4) the sellers were aware of the buyers' interest in water from Northwest Rural Water District and represented the fees would be $3,500, though the actual expense was in excess of $8,000; (5) the sellers failed to disclose the garden had not grown crops in ten years and soil sterilizing weed killer had been applied; (6) the buyers relied on the property condition statement representation that the identified problems had been fully repaired and there were no other defects whatsoever; and (7) neither the preprinted contract nor the standard inspection clause language was negotiated. . The trial court found the clear and convincing evidence demonstrated the sellers made material misrepresentations regarding structural defects, both verbally and through the property condition statement, and breached their duty to disclose all defects which, if known, would have caused the buyers not to rely upon the property condition statement and, to their detriment, subsequently purchase the property.

[¶ 18] In contrast, the trial court determined the buyers (A) acted in good faith and reasonably relied on the sellers' representations in purchasing the property; (B) were attentive at the initial showing; .and (C) believed, as did their real estate agent, that the information disclosed in the property condition statement was candid and accurate. Despite reasonable efforts to mitigate the damages, the buyers sustained special and specific damages for repair and restoration in the total amount of $100,840.94, attorney fees, and costs. The trial court further found the sellers' conduct was willful, wanton, and in reckless disregard of the buyers' rights which entitled the buyers to a hearing on punitive damages.

C. Was Finding of Intentional Misrepresentation Supported by Clear and Convincing Evidence?

[¶ 19] The sellers contend the trial court's finding of clear and convincing evidence of fraud was erroneous due to its reliance on an unqualified expert, the failure to disclose does not constitute fraudulent misrepresentation, the duty to disclose was delegated to the buyers by contract, and fraud was not established by the evidence.

i. The Expert Witness "Daubert" Objection

[¶ 20] Prior to trial, the sellers apprised the trial court of their objection to the buyers' expert witness' testimony alleging he was unqualified and failed to perform certain tests to confirm his opinion. During the course of the engineer's testimony, the objection was renewed with regard to admission of his written report. The court overruled the motion stating it would decide what weight, if any, the report should be given after it had received all the evidence. As is apparent from the court's opinion letter and findings, the testimony and report were ultimately accorded considerable weight.

[¶ 21] As noted by the sellers, we have adopted the federal Daubert model, imposing gatekeeping responsibilities on trial courts to decide whether scientific or technical expert testimony is admissible. Chapman v. State, 2001 WY 25, ¶ 8, 18 P.3d 1164, ¶ 8 (Wyo.2001); Bunting v. Jamieson, 984 P.2d 467, 471 (Wyo.1999) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-98, 118 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). However, as recently reiterated in Chapman, we did not "'abandon our own precedent regarding the admissibility of expert testimony.'" 2001 WY 25, ¶ 8, 18 P.3d 1164 (quoting Bunting, 984 P.2d at 471). "Under the Daubert model, the trial court must first determine whether the expert's methodology is reliable; then the court must determine whether the proposed testimony 'fits' the facts of the particular case." Id. In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the United States Supreme Court further clarified the scope of Daubert, holding the gatekeeping duties of the trial judge apply to all expert testimony, whether such testimony is based on scientific, technical, or other specialized knowledge. Smith v. Ingersoll-Rand Company, 214 F.3d 1235, 1243 (10th Cir.2000). Kumho also made it clear the gatekeeping function is a flexible and commonsense responsibility. The trial judge is granted broad latitude in deciding the means to determine reliability as well as in ultimately deciding whether the testimony is reliable. Id. (citing Kumho Tire Co., Ltd., 526 U.S. at 141-42, 119 S.Ct. 1167).

[¶ 22] The Daubert gatekeeping function is not intended to measure every expert by an inflexible set of criteria but rather is to ensure an adequate inquiry to "'make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field'" Id. (quoting Kumho Tire Co., Ltd., 526 U.S. at 152, 119 S.Ct. 1167). We agree that, as gatekeepers of expert testimony, judges must always perform some form of reliability analysis; however, we have overtly declined to " 'shackle the district court with a mandatory and explicit'" reliability proceeding. Chapman, 2001 WY 25, ¶ 23, 18 P.3d 1164 (quoting Hoult v. Hoult, 57 F.3d 1, 5 (1st Cir.1995)). "Instead, ... we 'assume that the district court performs such an analysis sub silencio throughout the trial with respect to all expert testimony." Id. (quoting Hoult, 57 F.3d at 5). The decision to admit or reject expert testimony is exelusively within the trial court's discretion. Id. at ¶ 8, 18 P.3d 1164; Seivewright v. State, 7 P.3d 24, 29 (Wyo.2000).

[¶ 23] At trial, the buyers' expert testified at length regarding his educational background in civil engineering and experience designing and inspecting residential buildings. He testified he had been a consulting engineer in "self-practice" for approximately eight years in the Cody area. In that time, he had completed more than fifty building inspections to determine whether there was water permeation damage to basements made of concrete block and concrete. He explained the inspection process and that a "normal" inspection does not entail tearing off paneling, running soil or cement samples, or performing other invasive procedures. The engineer then specifically and incrementally described his July 1997 inspection of the property and his final conclusions.

[124] The sellers have the burden to demonstrate admission of this evidence was an abuse of discretion, and, upon our review, we must conclude they have failed. At a minimum, they should have provided evidence contesting the validity of the methodology and the reliability of the results. This was not the course they chose at trial; therefore, their appeal presents little more than unfounded assertions. Due regard is given to the trial judge's opportunity and ability to assess credibility, and our review does not entail weighing disputed evidence. Scherer Construction, LLC v. Hedquist Construction, Inc., 2001 WY 23, ¶ 30, 18 P.3d 645, ¶ 30 (Wyo.2001); Hopper v. All Pet Animal Clinic, Inc., 861 P.2d 581, 538 (Wyo.1993). The evidence in the record supports the findings that the engineer was qualified and his testimony was relevant and reliable. The trial court appropriately overruled the objection and advised the parties it would determine the weight the evidence was to be given at the close of the trial. We conclude the trial court's analysis was conducted sub silencio through the course of the proceeding and in light of all the evidence received. Admission of the expert testimony and report was not clearly erroneous or an abuse of discretion.

ii. Failure to Disclose as Evidence of Fraud

[125] The sellers contend failure to disclose a fact does not constitute fraud. However, they ignore the reality that they acknowledged making a number of false statements. It is in light of these false statements that the nondisclosures became part and parcel of the fraudulent acts:

Conduct or words which tend to produce an erroneous impression may satisfy the plaintiff's burden. In addition, even if someone is not under a duty to speak, if he does speak, he is under a duty to speak truthfully and to make a full and fair disclosure. Reliance is reasonable when false representations have occurred prior to the execution of the contract which is sought to be avoided or for which damages are sought to be recovered.

Sundown, Inc., 8 P.3d at 830-31 (emphasis added and citations omitted). By way of example, Mrs. Alexander acknowledged the sellers' duty to complete the property condition statement honestly and fully. Both sellers acknowledged they knew of the salt deposits, and yet they failed to disclose this information on the property condition statement, thereby making an affirmative false statement." Likewise, they admitted they advised the buyers of two specific excess water incidents but failed to advise them of any other defects. They also acknowledged saying the garden was in good condition but not advising. the buyers the soil had been sterilized and nothing had been grown in over ten years. The trial court determined the sellers' disclosures, both verbally at the initial showing of the property and in the written property condition statement, reinforeed the buyers' confidence the property was in good condition as the sellers reported.

[¶ 26] The foregoing list of the sellers' misleading statements and actions is by no means all-inclusive; rather, it is merely illustrative of the definitive point that, regardless of whether there was a duty, onee the sellers started making disclosures, they had a duty to do so completely and truthfully. The disclosures and concomitant duty preceded the buyers' determination to make the initial offer to contract and all parties' entering into the ultimate contract to purchase. On the basis of our holding in Sundown, Inc. and the facts of this case, the sellers' contention that their failure to disclose cannot constitute fraud is without merit.

[¶ 27] The sellers maintain no evidence was presented to prove positive acts of fraudulent concealment. This argument is really something of a nonsequitar. No cause of action for fraudulent concealment was pleaded. Rather, the cause of action was fraudulent misrepresentation, and conduct or words which tend to produce an erroneous impression satisfy the plaintiff's burden. Sundown, Inc., 8 P.3d at 330. The evidence established the foundation defects and damage were physically concealed and cosmetically repaired. To the extent this conduct tended to produce an erroneous impression, it supported the cause of action as pleaded.

iii. Effect of the Contract Inspection Clause

[¶ 28] The sellers also contend the duty to disclose was somehow delegated to the buyers by contract. This argument puts the proverbial cart before the horse. The fraudulent misrepresentations, as determined by the trial court, occurred before the contract was entered into and were the inducement to enter into the contract reasonably relied upon by the buyers. The fact that, onee they entered into the contract, the "as is" clause and inspection provisions were in effect did not exeuse or nullify the original fraudulent representations, intended inducement, and reasonable reliance which led to the contract being made. An "as is" clause will not relieve the sellers of liability in the case of an actual misrepresentation or fraud. Richey v. Patrick, 904 P.2d 798, 803 (Wyo.1995).

iv. Clear and Convincing Evidence Standard

[¶ 29] Consideration of the preceding issues leads us to the overarching issue of whether the evidence relied upon by the trial court reaches the level of clear and convincing evidence of fraud. Clear and convincing evidence is the "kind of proof which would persuade a trier of fact that the truth of the contention is highly probable." MacGuire v. Harriscope Broadcasting Co., 612 P.2d 830, 839 (Wyo.1980); see also Dorr v. Wyoming Board of Certified Public Accountants, 2001 WY 37, ¶ 8, 21 P.3d 785, 18 (Wyo.2001); Meyer v. Norman, 780 P.2d 283, 291 (Wyo.1989). Evidence which is of such a nature that the mind readily reaches a satisfactory conclusion as to the existence or nonexistence of a disputed fact is, of necessity, clear and satisfactory. RS v. Johnson County Department of Family Services (In re JL), 989 P.2d 1268, 1271 (Wyo.1999); Thomasi v. Koch, 660 P.2d 806, 811-12 (Wyo.1983); Continental Sheep Co. v. Woodhouse, 71 Wyo. 194, 256 P.2d 97, 99 (1953). This definition, although broad and subjective in nature, in most cireumstances provides sufficient guidance to the finder of fact. Meyer, 780 P.2d at 291. We have also adopted more objective criteria for clear and convincing evidence with respect to witnesses' testimony:

"[Thhe witnesses to a fact must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the details in connection with the transaction must be narrated exactly and in order; the testimony must be clear, direct and weighty; and the witnesses must be lacking in confusion as to the facts at issue." Weigand v. Union National Bank of Wichita, [227 Kan. 747], 610 P.2d 572, 577 (Kan.1980).

Id.

[¶ 30] The buyers' trial evidence had sufficient character and integrity to meet the objective "clear and convincing" evidence standard described in Weigand. The buyers' witnesses testified very specifically and precisely. None of their witnesses, except Mr. Meduna and perhaps his real estate agent, had any personal interest or apparent bias. Their testimony was internally consistent and corroborated other testimony and evidence received.

[¶ 31] On the other hand, the sellers' testimony was fraught with internal inconsistencies, and even acknowledgement of some degree of misrepresentation and failure to disclose. In fact, it is apparent from the cold transcript the trial court disregarded significant portions of their testimony because of its flawed and untruthful nature. For example, Mrs. Alexander could not remember when or why they had frequently replaced the basement carpet although not an inconsequential expense. Further, neither of the sellers testified consistently on the improvements made to the basement including the paneling and painting despite the fact the property condition statement reflected they performed the work themselves. Called on rebuttal, the former owner testified he had paneled only one bedroom and did not paint the basement. In addition, the sellers first testified they were not aware of any defects. Thereafter, they both partially recanted stating they were aware of such things as the salt deposits but did not consider them defects. In the end, they conceded to some extent they had failed to fully disclose the true property condition.

[¶ 32] Further, the sellers provided no evidence or expert witness to challenge the qualifications or expertise of the buyers' expert, the integrity of his inspection method, or his observations and conclusions. The trial court accurately found this evidence was unrefuted.

[¶ 33] Upon our review, we conclude the trial court's findings fairly and accurately summarized the evidence presented at trial including over eighty exhibits and the testimony of fourteen witnesses. The evidence the trial court relied upon constituted clear and convincing evidence that (1) both sellers made false representations intended to induce the buyers to offer to purchase the property and enter into a contract to purchase, (2) the buyers reasonably believed the sellers' representations as to the property condition were true, and (8) the buyers relied on the false representations and suffered damages.

[¶ 34] Before leaving this issue, we briefly address the wording of the trial court's findings that the sellers "were aware or reasonably should have been aware" of the de-feets and damage to the west wall and heat registers, the serious east wall bulge, and the basement floor. At first glance, the language appears to apply an incorrect standard as the sellers had to have intended to defraud the buyers; therefore, they had to know of the defects they failed to disclose or misrepresented. In light of the record as a whole, we believe the language "were aware or reasonably should have been aware" was responsive to the sellers' implausible explanations. We conclude the trial court was endeavoring in a diplomatic manner to address the untruthful nature of the sellers' testimony. The trial court unquestionably determined there was clear and convincing evidence of fraud because the sellers knew of the defects and purposely made misrepresentations regarding the property condition to induce the buyers, to their significant detriment, to make a purchase offer and enter into a purchase contract, These findings are supported by clear and convincing evidence and are sufficient.

D. Compensatory Damages

[¶ 35] The sellers contend the trial court abused its discretion by awarding compensatory damages in excess of the amounts in evidence and by attempting through the award to restore the property to a superior condition than existed previously. Damages are findings of ultimate fact. A jury's determination of the amount of damages is inviolate absent an award either so excessive or inadequate as to shock the judicial conscience and raise an inference that passion, prejudice, or other improper cause had invaded the trial. Cross v. Berg Lumber Company, 7 P.3d 922, 928 (Wyo.2000). However, the standard of review after a bench trial is less deferential Damages are reviewed as fact and are not reversed unless clearly erroneous. Id.

[¶ 36] Compensatory damages are awarded to reimburse an individual for losses suffered as a result of another's failure to perform some duty. Hollon v. McComb, 636 P.2d 513, 516 (Wyo.1981); State Farm Mutual Automobile Insurance Company v. Shrader, 882 P.2d 813, 833 (Wyo.1994). They are designed to make the individual whole; that is, to place him in the condition he would have been in if the other party had adequately performed the duty owed. Id. Damages are not recoverable which result from the injured party's breach of duty to take reasonable steps to protect himself. Id.; Thayer v. Smith, 380 P.2d 852, 854 (Wyo.1963). Questions concerning whether an injured party has exercised reasonable care and diligence are for the trier of fact to decide. Id.; Asbell Bros., Inc. v. Nash-Davis Machinery Company, 382 P.2d 57, 59 (Wyo.1963).

[¶ 37] The trial court found the damage for "repair and restoration" due to the sellers' misrepresentations was in the amount of $100,840.94. The sellers argue the amount is excessive because it represents payment to enhance the condition of the home to a level that never before existed. However, the sellers represented to the buyers that the home had not experienced water damage except from the water softener and rain spout seepage which had been fully repaired. Yet the foundation was actually in imminent danger of failure. The compensation question is not whether the home was ever in such an improved state. Rather, it is, what was the condition of the home as fraudulently represented by the sellers and upon which the buyers relied? Simply put, the buyers believed they were purchasing a home with sound foundation. Further, the buyers were encouraged to believe they would have a good and productive garden, a mobile home office appropriate and adequate to support a business endeavor, and the ability to connect to Northwest Rural Water District for $3,500.

[¶ 38] The record contains significant evidence regarding the costs to correct the property defects and the measures the buyers took to mitigate the damages. The sellers offered no evidence of their own to contest the costs of the repairs. The only error requiring correction is the award of damages of $8,122 for the Northwest Rural Water District hookup. The sellers represented the cost would be $3,500, and the actual cost was $8,122. To be adequately compensated, the buyers are entitled to only the $4,622 difference between these sums. We must, therefore, reverse in part and remand to the district court for correction of the order consistent herewith, We cannot conclude any of the remaining findings are clearly erroneous and, therefore, affirm the balance of the compensatory damages with adjustment for the Northwest Rural Water District hookup.

E. Punitive Damages

[¶ 39] The sellers maintain the trial court could not award punitive damages because the buyers were awarded compensatory damages under the contract. They also argue the court improperly determined the sellers' net worth and considered inappropriate factors in making the award.

[¶ 40] This court has recognized that punitive damages are an implement of public policy. Shrader, 882 P.2d at 836-37. Punitive damages are not intended to compensate the plaintiff; instead, punitive damages are awarded to punish the defendant and deter others from such conduct in the future. Id. at 837. Punitive damages cannot be awarded when compensatory damages are not recoverable. Bear v. Volunteers of America, Wyoming, Inc., 964 P.2d 1245, 1255 (Wyo.1998); Cates v. Barb, 650 P.2d 1159, 1161 (Wyo.1982). Punitive damages are not favored and are to be allowed cautiously within narrow limits. Sheridan Commercial Park, Inc. v. Briggs, 848 P.2d 811, 817 (Wyo.1993); see Town of Jackson v. Shaw, 569 P.2d 1246, 1251 (Wyo.1977). Such damages are to be awarded only for conduct involving some element of outrage similar to that usually found in a erime. Id.

[¶ 4l] We must determine whether the trial court reasonably concluded as it did because there is no right to punitive damages. Sheridan Commercial Park, Inc., 848 P.2d at 818; Squaw Mountain Cattle Company v. Bowen, 804 P.2d 1292, 1298 (Wyo.1991). Outrageous conduct, malice, and willful and wanton misconduct are sufficient bases to warrant punitive damages. Sheridan Commercial Park, Inc., 848 P.2d at 818. Sometimes, it is a fine distinction between conduct justifying punitive damages and less culpable conduct. Id.; Mayflower Restaurant Company v. Griego, 741 P.2d 1106, 1116 (Wyo.1987). However, the decision to award punitive damages is within the district court's discretion, and we will not reverse the decision on appeal without finding a clear abuse of that discretion. Parker v. Artery, 889 P.2d 520, 525 (Wyo.1995); Cates v. Daniels, 628 P.2d 862, 868 (Wyo.1981).

[¶ 42] In Farmers Insurance Exchange v. Shirley, 958 P.2d 1040 (Wyo.1998), we adopted the punitive damages factors enunciated in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 184 L.Ed.2d 809 (1996) (the degree of reprehensibility, the disparity between the harm or potential harm suffered and the award of punitive damages, and the difference between punitive damages and the civil penalties authorized or imposed in comparable cases), and the seven factors adopted from the specially concurring opinion of Justice Houston in Aetna Life Insurance Company v. Lavoie, 505 So.2d 1050, 1062 (Ala.1987):

"(1) Punitive damages should bear a reasonable relationship to the harm that is likely to occur from the defendant's conduct as well as to the harm that actually has occurred. If the actual or likely harm is slight, the damages should be relatively small. If grievous, the damages should be much greater.
"(2) The degree of reprehensibility of the defendant's conduct should be considered. The duration of this conduct, the degree of the defendant's awareness of any hazard which his conduct has caused or is likely to cause, and any concealment or 'cover-up' of that hazard, and the existence and frequency of similar past conduct should all be relevant in determining this degree of reprehensibility.
"(3) If the wrongflil conduct was profitable to the defendant, the punitive damages should remove the profit and should be in excess of the profit, so that the defendant recognizes a loss.
"(4) The financial position of the defendant would be relevant.
"(5) All the costs of litigation should be included, so as to encourage plaintiffs to bring wrongdoers to trial.
"(6) If criminal sanctions have been imposed on the defendant for his conduct, this should be taken into account in mitiga- . tion of the punitive damages award.
"(7) If there have been other civil actions against the same defendant, based on the same conduct, this should be taken into account in mitigation of the punitive damages award."

Shirley, 958 P.2d at 1044 (quoting Green Oil Company v. Hornsby, 539 So.2d 218, 223-24 (Ala.1989)). A separate punitive damages hearing was held, and the buyers presented witnesses on the "reprehensible" nature of the sellers' fraudulent conduct and their financial cireumstances. The sellers presented no witnesses of their own at this proceeding.

[¶ 43] We have reviewed the punitive damages award and the record in light of the BMW of North America, Inc. factors and conclude there was no abuse of discretion. The $25,000 award was slightly less than one-fourth of the compensatory damages. The harm to the buyers was significant and included damage to their credit, their ability to mortgage the property, and their living conditions. The evidence supports a determination the sellers' conduct was willful, wanton, and reckless. On the basis of the record, the punitive damages award does not appear extreme or unconscionable. '

[¶ 44] The sellers' deception and fraud were profitable to them because they recognized $208,000 on the sale of a property which required more than $100,000 in repairs to prevent its ultimate collapse. The evidence presented at the punitive damages hearing established the sellers' net worth in February 2000 by their own calculation was approximately $418,842.11. Mrs. Alexander, who was called as a witness for the buyers, testified concerning the sellers' investments and interests in several corporations, trusts, and various real property as well as their continued employment income.

[¶ 45] Although the attorney fees and costs issue shall be considered separately below, we note the BMW of North America, Inc. factors include them as an appropriate aspect of punitive damages. The trial court also clearly acknowledged and considered a $10,000 fine could be imposed as eriminal sanctions for behavior similar to the sellers' fraud. Through Mrs. Alexander's testimony at the punitive damages hearing, the court was advised there was a possibility her realtor's license might be under investigation due to her dealings with the buyers, and this could potentially impact her future financial condition. No documentation was presented to verify this claim. In light of this evidence, the punitive award does not appear unreasonable.

[¶ 46] The trial court's decision to award punitive damages was expressly based on the "yardstick enunciated by Farmers Insurance Exchange v. Shirley, 958 P.2d 1040 (Wyo.1998)," and found that (1) the buyers suffered substantial other economic loss as a result of the sellers' conduct, (2) the sellers' conduct constituted a wanton disregard to duty and/or gross or outrageous conduct, (8) the criminal fine for similar violations could be $10,000, (4) the sellers' net worth was approximately $418,842.11, and (5) the buyers' attorney fees and costs were reasonable. Pursuant to our analysis of the BMW of North America, Inc. factors and the record in this case, we conclude the trial court did not abuse its discretion in awarding $25,000 in punitive damages.

F. Attorney Fees and Costs

[¶ 47] The sellers also contend the trial court committed error in awarding the attorney fees. They argue attorney fees are damages to be awarded by application of clause XIII of the purchase contact, which allocates the burden of proof to the buyers, and the buyers failed to submit exhibits and testimony at trial to support such damages. The sellers further maintain that, despite the buyers' failure to prove the attorney fees, the trial court ordered them to pay an unspecified amount of attorney fees in the February 22, 2000, order. The very foundation of this argument-that the award was based on the contract provision-is erroneous. The buyers' causes of action were fraud and intentional infliction of emotional distress. No contract action was pleaded.

[¶ 48] In an effort to support this contention, the sellers take out of context the following comment made by the trial court at the punitive damages hearing: "The Court, when it made a determination of attorney fees, did not do so under the inclination of punitive damages, it was under contract." Their brief fails to accurately reflect the entire cireumstance of the in-court exchange. The buyers' attorney advised the trial court that Shirley, 958 P.2d 1040, through adoption of the BMW of North America, Inc. factors, expressly provided for attorney fees and costs as an aspect of punitive damages. He further advised the court, pursuant to that authority, an award of fees and costs incurred in the punitive damages phase of the litigation could be made. Thereafter, the trial court responded: "All right. Mr. Dar-rah, I will give you 15 days to amend your attorney fees and costs in this matter." In the subsequent order on punitive damages, the court explicitly stated:

[Alfter having reviewed the evidence on punitive damages, the objections to [the buyers'] attorney fees and costs, the evidence and supplemental evidence submitted by the [buyers'] attorneys pertaining to costs and attorney fees, and using the yardstick enunciated by Farmers Insurance Exchange v. Shirley, 958 P.2d 1040 (Wyo0.1998), the court finds as follows:
5. That [the buyers'] attorney fees and costs are reasonable.

Though the trial court initially stated it was awarding the buyers attorney fees and costs on the basis of the contract, we conclude the final written order clearly established the ultimate foundation of the award was the BMW of North America, Inc. punitive damages factors.

[¶ 49] Wyoming subscribes to the American rule regarding recovery of attorney fees. Schlesinger, 2001 WY 120, ¶ 21, 35 P.3d 1282; Cline v. Rocky Mountain, Inc., 998 P.2d 946, 949 (Wyo.2000). Under the American rule, each party is generally responsible for his own attorney fees. Id. However, a prevailing party may be reimbursed for his attorney fees when express statutory or contractual authorization exists for such an award. Id. Moreover, an exception may be applied in the cireumstances of fraud and the corollary award of punitive damages. See Olds v. Hosford, 354 P.2d 947, 950 (Wyo.1960) (recognizing an exception to the general rule denying recovery of attorney fees and costs in a replevin action where "fraud, malice, oppression or wil[l]ful wrong" can be shown). We conclude the trial court applied the punitive damages exception to award all attorney fees and costs attendant to the entire course of the litigation.

To determine the reasonableness of the attorney's fees award, Wyoming employs the two-factor federal lodestar test. These factors are: "(1) whether the fee charged represents the product of reasonable hours times a reasonable rate; and (2) whether other factors of discretionary application should be considered to adjust the fee either upward or downward." It follows therefrom that the trial court's determination concerning attorney's fees is reviewed under an abuse of discretion standard.

Schlesinger, 2001 WY 120, ¶ 21, 35 P.3d 1232 (quoting Johnston v. Stephenson, 938 P.2d 861, 862-63 (Wyo.1997)) (some citations omitted). Similar to the facts of the Schlesinger case, the buyers and their counsel provided detailed time records and attorneys' affidavits to support the reasonableness of the fees and costs claimed. At the punitive damages hearing, the trial court provided the parties the opportunity to fully litigate the reasonableness of the fees and costs requested. Numerous pleadings and supplemental filings were accepted and considered by the trial court. The record leaves no doubt that the trial court carefully considered the lodestar factors through its review of the evidence supporting the request for attorney fees and costs as well as the sellers' objections. We find no abuse of discretion in the trial court's award of attorney fees and costs.

[¶ 50] Affirmed in part, reversed in part, and remanded for correction of the judgment consistent with this opinion.

      . Buyer or Lender may obtain, at no expense to Seller, electrical, mechanical, structural, environmental and/or other inspections of the property by qualified professional inspectors and/or engineers, and shall pay for any damage to Seller's property caused by such inspectors and/or engineers.... Unless Seller receives written notice, signed by Buyer on or before January 15, 1997, 5:00 p.m. (Objection Deadline) of any defect(s) identified by inspectors or engineers that Buyer is requesting to be repaired, the physical condition of the property shall be deemed to be satisfactory to Buyer.

      . These are the causes of action set out in the buyers' amended complaint.

      . The findings break these damages out as follows: $3,571.94-Big Horn Carpet One; $70,-371—_Brom1ey Construction & Log Homes; $10,-350-Dewey's Auto Salon, LLC (damp proofing basement floor); $4,500-Paul Hansen's Mobile Homes; $948 Nielsen Plumbing & Heating, Inc.; $2,978-Northern Gardens (relandscaping after construction repairs); $8,122-Northwest Rural Water District.


author: Justice BENDER

text:
    CONCERNED PARENTS OF PUEBLO, INC., a Colorado non-profit corporation, Petitioner, v. Michael GILMORE and Sheila Gilmore, as guardians and next friends of minor child, Brian Gilmore, Respondents.
    No. 00SC950.
    Supreme Court of Colorado, En Banc.
    April 22, 2002.
    As Modified on Denial of Rehearing June 6, 2002.
    Dewhirst & Weeks, LLP, Jeffrey L. Weeks, Miles D. Dewhirst, Colorado Springs, CO, Attorneys for Petitioner.
    Mullans, ‘Piersql & Reed, P.C., Shannon Reed, Pueblo, CO, Attorneys for Respondents.
   Justice BENDER

delivered the Opinion of the Court.

I. INTRODUCTION

This case requires us to interpret section 13-21-116(2.5)(a), 5 C.R.S. (2001), to, determine whether it provides a non-profit corporation with immunity from liability. 'We hold that it does not. Instead, we hold that the statute protects only those "persons" who perform volunteer services for the non-profit organization.

The trial court granted summary judgment to the non-profit organization, based on its conclusion that section 13-21-116(2.5)(a) shielded such organizations from liability for negligence. The court of appeals reversed, reasoning that the trial court erred by concluding that the non-profit organization in this case had performed volunteer services "without compensation or expectation of compensation," a requirement demanded by the statute, because the non-profit received money from the state pursuant to a contract. Gilmore v. Concerned Parents of Pueblo, Inc., 28 P.3d 963, 965 (Colo.App.2d).

Though we employ different reasoning than that used by the court of appeals, we affirm its result. We hold that section 18-21-116(2.5)(a) protects people who work as volunteers for designated types of organizations from liability. It does not, however, insulate those organization themselves from liability.

IIL FACTS AND PROCEEDINGS BELOW

The petitioner, Concerned Parents of Pueblo, Inc., is a non-profit corporation that attempts to assist troubled youths in Pueblo, Colorado. It relies almost entirely on the services of volunteers, paying only one employee and a bookkeeper. The continued existence and operation of Concerned Parents is made possible through the receipt of state grant money.

Brian Gilmore, a minor, was ordered by the magistrate of the Pueblo County Court to participate in the Juvenile Offender Redirection Program ("JORP") offered by Concerned Parents. Gilmore was assigned to a JORP work crew to clean a creek near Pueblo. Because Gilmore was misbehaving, a JORP supervisor ordered him to remain near the van that had transported the crew to the creek.

The van contained gasoline containers that were, according to the complaint, unsecured. Gilmore's pants got soaked with gasoline which somehow ignited, resulting in injury to Gilmore.

Gilmore's parents brought suit on his behalf, asserting a claim of negligence against Concerned Parents. No claims were brought against any of the individual volunteers who staffed the work crew at the time of Gilmore's injury.

Concerned Parents filed a motion to dismiss, arguing that it was entitled to immunity from negligence suits under both section 13-21-116(2.5), 5 C.R.S. (2001), and section 19-2-404(2), 6 C.R.S. (2001).

The trial court granted Concerned Parents' motion, reasoning that it was entitled to immunity under section 18-21-116(2.5). The trial court did not address the argument presented regarding section 19-2-404(2).

The court of appeals reversed and remanded the case for further proceedings, reasoning that the trial court had erred by concluding that Concerned Parents performed volunteer services without compensation or expectation of compensation because the money Concerned Parents received from the state amounted to compensation under section 18-21-116(2.5). Gilmore, 28 P.3d at 965.

We granted certiorari on the issue of whether Concerned Parents is immune from liability under section 13-21-116(25). We affirm the holding of the court of appeals, though our reasoning differs significantly from that employed by the court of appeals. We express no opinion on other issues presented by this case, including the applicability of section 19-2-404(2).

III. ANALYSIS

Section 183-21-116 is entitled "Actions not constituting an assumption of 'duty-board member immunity-immunity for volunteers assisting organizations for young persons." The subsection of the statute that we interpret in this case, subsection (2.5), was added to the statute in 1987 out of a concern, discussed in more detail below, that people were discouraged from volunteering because they could be subjected to lability for any negligent acts committed while volunteering. Section 18-21-116(2.5)(a) provides:

No person who performs a service or an act of assistance, without compensation or expectation of compensation, as a leader, assistant, teacher, coach, or trainer for any program, organization, association, service group, educational, social, or recreational group, or nonprofit corporation serving young persons or providing sports programs or activities for young persons shall be held liable for actions taken or omissions made in the performance of his duties exeept for wanton and willful acts or omissions; except that such immunity from liability shall not extend to protect such person from lability for acts or omissions which harm third persons.

As originally enacted in 1986, section 13-21-116 served only to insulate those "persons" who volunteered on the boards of nonprofit organizations and corporations from liability for negligence. "Person" was broadly defined to mean "an individual, corporation, partnership, or association." § 13-21-116(4). This definition of "person" was not amended when, in 1987, the legislature subsequently inserted subsection (2.5) into the statute.

The addition of subsection (2.5) served to expand the grant of immunity under the statute. With this case, we must determine which parties that this subsection protects.

Based on the definition of "person" and the interpretation given to subsection (2.5) by the court of appeals in Jones v. Westernaires, Inc., 876 P.2d 50, 53 (Colo.App.1993), Concerned Parents argues that it is a "person" who performs a service, without compensation or expectation of compensation, as a leader, assistant, teacher, coach, and/or trainer for a program that serves young persons under 18-21-116(2.5). Therefore, Concerned Parents suggests that it is entitled to immunity. In contrast, the Gilmores argue that Concerned Parents is not entitled to immunity because it receives compensation for its services through a contract with the state.

Ultimately, we conclude that Concerned Parents is not entitled to immunity under section 18-21-116(2.5)(a), though for a different reason than that suggested by the Gil-mores and the court of appeals. We interpret section 18-21-116(2.5)(a) to not extend immunity to the designated types of organizations serving young people listed in the statute. Instead, we hold that the statute protects only those volunteers who perform services for those organizations.

Our task in interpreting a statute is to give effect to the intent of the General Assembly. See, e.g., Colo. Office of Consumer Counsel v. PUC, 42 P.3d 23, 27 (Colo.2002). To discern this intent, we first turn to the language of the statute. See, e.g., People v. McCullough, 6 P.3d 774, 778 (Colo.2000). If the language of the statute is clear and unambiguous, there is no need to resort to interpretive rules of statutory construction. See, e.g., J.P. Meyer Trucking & Constr., Inc. v. Colo. Sch. Dists. Self Ins. Pool, 18 P.3d 198, 201 n. 5 (Colo.2001). We must give words not defined in the statute their plain and ordinary meanings. Seq, e.g., Weld County Sch. Dist. RE-12 v. Bymer, 955 P.2d 550, 554 (Colo.1998). However, if the language of the statute is ambiguous, we may resort to other 'sources, including the title of the statute and its legislative history, to determine the General Assembly's intent. See, e.g., People v. Zapotocky, 869 P.2d 1234, 1238 & 1289 (Colo.1994).

We must avoid adopting a forced or strained construction, as well as any construction that leads to an absurd result. See, e.g., AviComm, Imc. v. Colo. PUC, 955 P.2d 1023, 1031 (Colo.1998); Harding v. Indus. Comm'n, 183 Colo. 52, 59, 515 P.2d 95, 98 (1973). Additionally, the court is not to substitute its own public policy determinations for those of the General Assembly. See, eg., Nicholas v. People, 973 P.2d 1213, 1216 (Colo.1999).

Section 18-21-116(2.5)(a) provides that "Inlo person who performs a service ... for any [of a list of designated types of organizations] serving young persons ... shall be held liable for actions taken or omissions made in the performance of his duties." We consider here whether the use of the word "person" at the beginning of the sentence means that a non-profit organization is immune from liability when one of the volunteers who works for it commits a negligent act. We conclude that it does not.

If the "person" performing the service, to whom the statute refers, is the organization serving young people itself, then the statute presents a circular conundrum. Acceptance of this interpretation would mean that a nonprofit organization that performs a service for itself is immune from liability. Such an interpretation would be nonsensical. Thus, we must look to other sources to determine whether the legislature, by defining "persons" to include corporations, associations, and partnerships, intended to shield all organizations that serve young people from liability.

Before beginning our examination of the evidence of the legislature's intent, we note that there is an additional inconsistency in the statute related to the legislature's use of the word "person." The statute provides immunity for volunteers who work for organizations serving "young persons." "Young persons" is defined to mean "persons who are eighteen years of age or younger." § 13-21-116(2.5)(b) (emphasis added). In the particular portion of section 18-21-116(2.5)(a) referring to "young persons" and in the definition of "young persons," the legislature must have intended the word "persons" to refer only to natural persons, despite the definition of "person" found in section 13-21-116(4). This inconsistent use of the word "persons" in the statute further buttresses our conclusion that the statute is ambiguous and that we must turn to other sources to determine legislative intent.

The title of the statute, in relevant portion, reads, "Immunity for volunteers assisting organizations for young persons." § 18-21-116 (emphasis added). This language in no way suggests that the organizations themselves are immune from liability. Instead, it supports the conclusion that the legislature intended to provide immunity only for those volunteers who work on behalf of designated types of organizations, and not those organizations themselves.

This conclusion is consistent with the declaration of legislative intent provided within the statute. Section 13-21-116(1) provides that:

It is the intent of the general assembly to encourage the provision of services or assistance by persons on a voluntary basis to enhance the public safety rather than to allow judicial decisions to establish prece'dents which discourage such services or assistance to the detriment of public safety.

This language reiterates the legislature's belief that it is sound public policy to refrain from discouraging people from volunteering by subjecting them to potential tort lability. Though analogous policy considerations might mitigate in favor of providing immunity to the organizations as well, the statute makes no mention of those considerations.

Finally, we turn to the legislative history of section 18-21-116(2.5). Senator Bishop, in presenting the bill to the senate, stated, "The bill provides an immunity from liability in tort for persons who are volunteers for any organizations serving young people for acts and omissions made in performing their volunteer duties." Senate Bill 80, Senate Committee of the Whole, February 20, 1997 (emphasis added). He explained:

[T]his bill basically says that ... those people who are going to coach Young American, Little League, Girl Scouts, Boy Scouts, 4 H Groups would be immune.... I think that in order for us to continue to encourage people to volunteer and work with our young people ... that we need to provide all the encouragement and incentive that we can for them to continue their volunteering work with young people, and that's the purpose of this bill.

Id. Further, another senator commented that "[this is an excellent bill because there are many, many people who serve out there in Little League, community soccer and theater and play." Id.

When Representative Schauer presented the bill to a house committee, he stated that the bill "provides an immunity for tort lability ... for persons who are volunteers for any orgamigation serving young persons." Senate Bill 80, House Committee on Health, Environment, Welfare, and Institutions, March 30, 1987 (emphasis added). When he presented the bill to the entire house, he again reiterated that this statute was intended to protect persons who volunteer for the designated types of organizations. Indeed, he used the word "person" interchangeably with the word "volunteer":

This bill provides an immunity from Hability in tort for persons who are volunteers for any organizations serving young persons.... There are two exeeptions to this immunity, First, the volunteer is not protected from liability if his or her act or omission is wanton and willful. Second, the volunteer is not protected from liability for acts or omissions which harm third persons.... Under this bill, the volunteer would be immune from liability for his negligent actions which harm the children but would not be immune from liability for his negligent acts which harm the third person.

Senate Bill 80, House Committee of the Whole, April 18, 1987. Representative Pan-key also spoke in support of the bill because he thought that it would encourage volunteers to act as tour guides for children who visit the capitol building. Id.

Thus, the legislative history reiterates numerous times that the statute is designed to protect those people who volunteer for designated types of organizations that serve young people. The legislative history is barren of any consideration of the liability of the organizations themselves. On this record, we cannot conclude that, merely because the legislature defined "person" to include corporations, partnerships, and associations, it intended to shield all organizations that serve young people from liability.

With section 18-21-116(2.5), the legislature desired to encourage people to volunteer their services to certain types of organizations without fear of lability. By defining the term "person" to include various sorts of entities, the legislature did not intend to protect the underlying organization serving young persons from liability. Indeed, as discussed above, any such interpretation is belied by the title of the statute, the text of the relevant portion of the statute, and the statute's legislative history.

We note that, as a policy matter, the legislature might want to encourage people to volunteer without wishing to strip entirely a tort claimant of remedy against the organization itself. Arguably, it might be sound poli-ey to encourage organizations that serve young people to supervise carefully unpaid volunteers who are immune from liability under section 18-21-116(2.5). Potential tort liability for the organization is one mechanism that might encourage such supervision.

Based on the considerations described above, we hold that section 18-21-116(2.5)(a) does not immunize a non-profit organization that serves young people from tort lability. Instead, we hold that the statute protects only those "persons," who perform volunteer services for the non-profit organization.

We recognize that our analysis departs from that employed by the court of appeals in Jones v. Westernaires, Inc., 876 P.2d 50, 53 (Colo.App.1998). In Jones, the court of appeals interpreted section 13-21-116(2.5)(a) broadly. It rejected an argument that the inclusion of various types of entities within the definition of "person" could have referred only to entities separate from the underlying service organization for which the "person" volunteers, stating that it was "not persuaded ... that the General Assembly intended to limit immunity in such a manner." Id. For the reasons discussed above, we disagree with the court of appeals' interpretation of the statute. Therefore, we now overrule Jones.

If the General Assembly wished to insulate organizations that serve young people from liability, it could have easily done so. With section 18-21-116(2.5)(a), however, the legislature has taken no position on this question. In the absence of either legislative consideration of this issue or unambiguous language in the statute supporting the defendant's interpretation, we decline to judicially decree that the defendant is immune from suit for the reasons stated in this opinion. Such policy determinations lie solely within the domain of the legislature and not this court.

IV. CONCLUSION

For the reasons explained above, the judgment of the court of appeals is affirmed and this case is remanded to the court of appeals to return it to the district court for further proceedings consistent with this opinion.

      . The motion was treated as a motion for summary judgment because materials outside the pleadings were submitted to the court. C.R.C.P. 12(b), 12 C.R.S. (2001).

      . The precise issue on which we granted certio-rari is:
      Whether a non-profit corporation that is staffed primarily with volunteers but receives funds to reimburse it for actual expenses incurred in connection with providing a specific service is immune under CRS. § 13-21-116(2.5) from claims of negligence arising from that service.

      . This portion of the title was added in 1987 when the statute was amended to include subsection (2.5).

      . In deciding this case, we have accepted the fact that JORP was a program offered by Concerned Parents, as Concerned Parents stated in its opening brief to us. Thus, we do not reach the question of whether Concerned Parents would be entitled to immunity if it was able to demonstrate, as a factual matter, that JORP was a program offered by Pueblo County for which it provided services.