author: Judge CASEBOLT.

text:
    FARMERS ALLIANCE MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. An H. HO, Defendant-Appellee.
    No. 62CA0231.
    Colorado Court of Appeals, Div. IL.
    Dec. 19, 2002.
    Certiorari Denied April 21, 2008.

      Campbell, Latiolais & Ruebel, P.C., Colin C. Campbell, Denver, Colorado, for Plaintiff-Appellant.
    Beem & Mann, P.C., Stuart D. Mann, A. Mark Isley, Denver, Colorado, for Defendant-Appellee.

       Justice KOURLIS would grant as to the following issue:
      Whether the court of appeals erred in ruling that a garagekeeper is deemed to have "borrowed" a customer's car for purposes of coverage under a garagekeepers liability policy, when the garage-keeper used the customer's car without permission to drive after hours to a bar to become drunk and cause an accident while returning home.
      Whether the court of appeals erred in construing a garagekeepers liability policy so broadly as to provide coverage to the garagekeeper whenever he was behind the wheel of a customer's car, even though the policyholder did not select coverage for the customer's autos left with the insured garage for service or repair.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge CASEBOLT.

This is a declaratory judgment action to determine whether a garage business insurance policy issued by plaintiff, Farmers Alliance Mutual Insurance Company, covers actions of the garage owner who appropriated a customer's car after business hours, became intoxicated, and caused an accident that resulted in severe personal injuries to defendant, An H. Ho. Farmers Alliance appeals the summary judgment finding insurance coverage and awarding attorney fees in favor of An Ho. We affirm in part and reverse in part.

Following the accident, An Ho commenced a personal injury action against garage owner, who tendered defense of the lawsuit to Farmers Alliance and to the customer's personal auto insurer. Both companies issued reservation of rights letters. The parties eventually settled through an agreement whereby An Ho released garage owner from personal liability and the parties agreed to resolve coverage issues through this declaratory judgment action. They agreed that, if the court found coverage, the companies would pay An Ho their policy limits.

Ruling that coverage existed under both policies, the trial court granted summary judgment in favor of An Ho and him his attorney fees and costs. The personal auto insurer settled with An Ho following the ruling, and this appeal followed.

L.

Farmers Alliance contends the trial court erred in finding coverage under the garage business policy because the customer's car was not a covered auto. We disagree.

The interpretation of an insurance policy presents a question of law that we review de novo. Allstate Insurance Co. v. Huizar, 52 P.3d 816 (Colo.2002); Crus v. Farmers Insurance Exchange, 12 P.3d 307 (Colo.App.2000).

An insurance policy is a contract, which should be interpreted consistently with well-settled principles of contract interpretation. The words of the contract should be given their plain meaning according to common usage, and strained constructions should be avoided. Allstate Insurance Co. v. Huizar, supra; Allstate Insurance Co. v. Starke, 797 P.2d 14 (Colo.1990). Accordingly, we construe the terms of an insurance policy as a person of ordinary intelligence would understand them. State Farm Mutual Automobile Insurance Co. v. Nissen, 851 P.2d 165 (Colo.1993).

The garage policy at issue here reads in pertinent part:

We will pay all sums an "insured" legally must pay as damages because of "bodily injury" or "property damage" to which this insurance applies, caused by an "accident" and resulting from "garage operations" involving the ownership, maintenance or use of covered "autos".

The policy defines "garage operations" as follows:

"Garage Operations" means the ownership, maintenance, or use of locations for garage business and that portion of the roads or other accesses that adjoin those locations. "Garage operations" includes the ownership, maintenance or use of the "autos" indicated in Section I of this Coverage Form as covered "autos". "Garage operations" also include all operations necessary or incidental to a garage business.

The policy categorizes "covered autos" by way of numerical symbols. 'The coverage form lists a "menu" of ten potential categories of described autos from which the insured and the insurer select. The declarations page then identifies the covered autos by use of the number.

The three pertinent categories at issue here are:

28 = HIRED "AUTOS" ONLY. Only those "autos" you lease, hire, rent or borrow. This does not include any "auto" you lease, hire, rent or borrow from any of your employees or partners or members of their households.
29 = NON-OWNED "AUTOS" USED IN YOUR GARAGE BUSINESS. Any "auto" you do not own, lease, hire, rent or borrow used in connection with your garage business described in the Declarations. This includes "autos" owned by your employees or partners or members of their households while used in your garage business.
80 = "AUTOS" LEFT WITH YOU FOR SERVICE, REPAIR, STORAGE OR SAFEKEEPING. Any customer's "auto" while left with your "garage operations" for service, repair, storage or safekeeping. Customers include your employees or members of their households who pay for the services performed.

Garage owner selected coverage for symbols 28 and 29 only.

A.

Farmers Alliance contends the trial court erred in finding the customer's car was covered under symbol 28 because garage owner did not "borrow" the vehicle from the customer. We disagree.

When, as here, a term is not specifically defined in a policy, the word retains its plain, ordinary, customary, and generally accepted meaning. See Cruz v. Farmers Insurance Exchange, supra.

"Borrow" is not a technical insurance term with a strict legal meaning. See Hanneman v. Continental Western Insurance Co., 575 N.W.2d 445 (N.D.1998). It is generally defined as taking something for temporary use. Black's Law Dictionary 178 (7th ed.1999). Webster's Third New International Dictionary 256 (1986) defines the term as follows: "to receive temporarily from another, implying or expressing the intention either of returning the thing received or of giving its equivalent to the lender; obtain the temporary use of," and "to appropriate for one's own immediate use."

Courts have defined "borrow" in the context of automobile insurance policies in similar ways. See Andresen v. Employers Mutual Casualty Co., 461 N.W.2d 181 (Iowa 1990)(a vehicle is borrowed when someone other than the owner temporarily gains its use); State Farm Fire & Casualty Co. v. American Hardware Mutual Insurance Co., 224 Ga.App. 789, 482 S.E.2d 714 (1997)(defin-ing "borrow" as receiving temporarily from another); American Family Mutual Insurance Co. v. Allied Mutual Insurance Co., 562 N.W.2d 159 (Iowa 1997)("borrow" means to take or receive something with the understanding that one will return it or an equivalent); Schroeder v. Board of Supervisors, 591 So.2d 342, 347 (La.1991)(the prevailing meaning of borrow in the context of automobile lending requires that the borrower acquire substantial possession, dominion, control, or the right to direct the use of the vehicle).

Here, garage owner's use of the customer's car constitutes borrowing under all of these definitions. When garage owner drove the car he had substantial possession, dominion, and control over the car. Garage owner had temporarily received the car from the customer and from the garage business. When he drove it he was temporarily using it. Finally, there is nothing in the record to indicate that garage owner did not intend to return the car to the business or to the customer.

Farmers Alliance nevertheless argues that garage owner could not borrow the car unless the customer loaned it to him. It points out that the customer had turned the car over to garage owner solely for the customer's own purposes to have it repaired, and garage owner did not request permission to drive the car. However, the policy uses the term "borrow," not the term "loan." The definitions of "borrow" cited above examine conduct from the standpoint of the borrower, not from the standpoint of the owner of the property. But see Liberty Mutual Insurance Co. v. American Employers Insurance Co., 556 S.W.2d 242 (Tex.1977)("borrower" defined as someone who has, with permission of the owner, temporary possession and use of the property of another for his own purposes). Furthermore, the policy itself directs examination of the insured borrower's conduct, covering "autos you (the insured) ... borrow," not the conduct, expectations, or intent of a lending owner of the property. Had Farmers Alliance desired to restrict or narrow the meaning of "borrow" or to equate it with "loan," it could easily have done so by defining it in the policy or conditioning coverage upon the intention of the property owner.

Even so, Farmers Alliance asserts that the dichotomy between coverage symbols 28 and 30 reinforces the understanding that vehicles left by customers for repairs or service are not loaned for personal use. It points out that, unlike symbol 29, symbol 30 specifically refers to "any customer's auto while left with your 'garage operations' for service, repair, storage or safekeeping." It argues that, if a customer's auto left for service would be automatically deemed to be borrowed under symbol 28 coverage, symbol 80 would be subsumed within symbol 28, and therefore superfluous. We are not persuaded.

The fallacy in this argument is that whether an auto is "borrowed" depends on the particular cireumstances. A garage owner does not automatically borrow an auto left for repair or service. It is only when, as here for example, the garage owner appropriates it for his or her own immediate use that borrowing occurs.

B.

Farmers Alliance asserts there is no coverage because garage owner was using the car for personal reasons and became intoxicated after business hours. However, there is nothing in the policy excluding coverage for personal use or when an auto is used after business hours. Rather, Farmers Alliance agrees to pay all sums an insured must pay because of bodily injury caused by an accident and resulting from "garage operations involving the ... use of a covered auto." "Garage operations" are broadly defined as including the use of covered autos. And symbol 28 contains no language indicating that the use of covered autos must occur within an employee's seope of employment or during business hours. Under the broad language of the policy, garage owner's use of the car brings it within the coverage language. See Colonial Insurance Co. v. American Hardware Mutual Insurance Co., 969 P.2d 796 (Colo.App.1998)(garage policy covered employee using covered vehicle outside course and seope of employment).

C.

Farmers Alliance next contends that, because garage owner obtained coverage only for those autos described in symbols 28 and 29, the policy exeludes coverage for customers' autos left for service or repair under symbol 830, which covers those "autos left with you for service, repair, storage, or safekeeping." We disagree.

Coverage provisions in an insurance contract are to be liberally construed in favor of the insured to provide the broadest possible coverage. Tepe v. Rocky Mountain Hospital & Medical Services, 893 P.2d 1323 (Colo.App.1994). Thus, when an insurer seeks to restrict coverage, the limitation must be clearly expressed. Tepe v. Rocky Mountain Hospital & Medical Services, supra. In the absence of such a clear expression of limitation, or if the policy provisions are inconsistent or ambiguous, the insurance contract must be construed in favor of coverage and against limitations. See State Farm Mutual Automobile Insurance Co. v. Nissen, supra.

Here, there is no policy language specifically excluding autos described under symbol 30 if symbol 80 coverage is not selected. In other words, the policy does not exclude autos left for service, repair, storage, or safekeeping. It merely limits coverage to those autos that qualify under symbols 28 and 29. The fact that the policy uses a narrower definition under symbol 30 does not preclude coverage under symbol 28. See Cruz v. Farmers Insurance Exchange, supra (even though a policy at times uses precise definitions, that does not preclude the use of a very broad term to encompass all of those terms). Therefore, garage owner's failure to choose symbol 30 coverage does not exclude autos described under that symbol that are otherwise described and covered under symbols 28 and 29.

IL.

Farmers Alliance next contends the trial court erred in awarding attorney fees to An Ho. We agree.

In the absence of an express statute, court rule, or private contract to the contrary, attorney fees generally are not recoverable by the prevailing party in a contract or tort action. Allstate Insurance Co. v. Huizar, supra.

In Allstate Insurance Co. v. Robins, 42 Colo.App. 539, 597 P.2d 1052 (1979), a division of this court held that an insurance policy obligating the insurer to "reimburse the insured for all reasonable expenses incurred at the company's request" entitled the insured to reimbursement of attorney fees incurred in successfully defending a declaratory judgment action brought by the insurer.

Here, the policy contains similar language. However, An Ho is not an insured under the garage business policy. As a stranger to that policy, he is not entitled to reimbursement of attorney fees incurred in pursuing the determination of coverage.

Relying upon Guaranty National Insurance Co. v. McGuire, 192 F.Supp.2d 1204 (D.Kan.2002), An Ho nevertheless asserts that an injured party can stand in the shoes of the insured for the purposes of collecting attorney fees. That case, however, involved an assignment of rights under the insurance policy from the insured to the injured party. Even if we assume, without deciding, that Colorado would allow recovery under such cireumstances, here there has been no such assignment. Garage owner was not a party to the settlement agreement, and he did not assign rights or claims to An Ho.

Accordingly, because no contractual basis exists to support an award of attorney fees in favor of An Ho, and he cites no other authority under which an award may be made, the trial court's order awarding attorney fees cannot stand.

In view of this disposition, we need not address the remaining contentions of the parties.

That part of the judgment awarding An Ho his attorney fees is reversed. The balance of the judgment is affirmed.

Judge ROY and Justice ERICKSON concur.


source: Caselaw Access Project

author: Judge ROY.

license: Public Domain

text:
    Kelly L. GRIZZELL, Individually and as Parent and Heir at Law of the Estate of Stephanie Hart, Deceased, Plaintiff-Appellant, v. HARTMAN ENTERPRISES, INC., a Colorado corporation, d/b/a Subway Sandwich and Salads, Defendant-Appellee.
    Nos. 01CA1989, 02CA0075.
    Colorado Court of Appeals, Div. III.
    Feb. 27, 2003.

      Law Firm of David J. Greene, David J. (ireene, Wheat Ridge, Colorado, for Plaintiff-Appellant.
    Hall & Evans, LL.C., Alan Epstein, Denver, Colorado; MeConnell Siderius Fleis-chner Houghtaling & Craigmile, LLC, Cecelia A. Fleischner, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge ROY.

Plaintiff, Kelly L. Grizzell (parent), individually and as parent and heir-at-law of the estate of Stephanie Hart (vietim), appeals the trial court's judgment dismissing her complaint against defendant, Hartman Enterprises, Inc. (owner). We affirm in part, reverse in part, and remand for further proceedings.

Owner operates a sandwich shop. In February 2000, victim was apparently invited into the shop by a young employee after the shop was closed for business. Later, the employee apparently opened the rear door of the shop and admitted an unknown individual. Sometime thereafter, both victim and the employee were shot and killed by the unknown individual.

Parent filed this action alleging that owner was liable for victim's death under the premises liability statute, § 18-21-115, C.R.8.2002 (Premises Act), because victim was a business invitee and, in the words of the complaint, owner was under a legal duty to take reasonable measures to "protect its patrons and business invitees from the foreseeable consequences of eriminal acts on the part of known or unknown persons and to employ reasonable security precautions, including the hiring of adult employees to operate and supervise the premises on school nights, including closing down the restaurant."

Parent also alleged that owner was lable under the Colorado Youth Employment Opportunity Act, $ 8-12-101, et seq., C.R.S. 2002 (Youth Act), for "employing a child employee under the age of 16 to work more than six hours and after 9:80 p.m. when the next day was a school day."

Owner moved to dismiss the complaint under C.R.C.P. 12(b)(5) for failure to state a claim for relief and the trial court granted the motion. Thereafter, owner moved for its costs and attorney fees, which the trial court granted in part. This appeal followed.

We review de novo an order dismissing an action under C.R.C.P. 12(b)(5), an order granting summary judgment under C.R.C.P. 56, and a determination classifying the vietim under § 13-21-115(4), C.R.S.2002, of the Premises Act. See Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995)(summary judgment); Lakeview Associates, Ltd. v. Maes, 907 P.2d 580 (Colo.1995) (classification under Premises Act); Fluid Technology, Inc. v. CVJ Axles, Inc., 964 P.2d 614 (Colo.App.1998)(C.R.C.P.12(b)(5)).

L.

Parent first contends that the trial court erred in dismissing her complaint pursuant to C.R.C.P. 12(b)(5) for failure to state a claim under the Premises Act. We agree in part.

CR.C.P. 8(a@)(2) states that a complaint shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief" A complaint need not express all facts that support the claim, but need only serve notice of the claim asserted. The chief function of a complaint is to give notice to the defendant of the transaction or occurrence that is the subject of the plaintiff's claims. Fluid Technology, Inc. v. CVJ Axles, Inc., swpra. Thus, motions to dismiss for failure to state a claim under C.R.C.P. 12(b)(5) are "viewed with disfavor and are rarely granted under our 'notice pleadings." Dunlap v. Colorado Springs Cablevision, Inc., 829 P.2d 1286, 1291 (Colo.1992)(quoting Davidson v. Dill, 180 Colo. 123, 131, 503 P.2d 157, 162 (1972)).

A trial court may not dismiss a complaint for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of the claim. In addition, the allegations of the complaint must be viewed in the light most favorable to the plaintiff. Dunlap v. Colorado Springs Cablevision, Inc., supra.

The trial court dismissed parent's claims under the Premises Act for (1) failing to allege facts sufficient to support a finding that the victim was an invitee, and (2) failing to allege facts supporting a claim that owner breached its duty to the victim as a licensee, which the trial court found her to be.

As is apparent from the text of the statute, the Premises Act was adopted to limit the exposure of landowners for injuries sustained by persons on their property. See § 13-21-115(1.5)(d)-(e), C.R.S.2002. This purpose was accomplished primarily through classifying the persons on the property and narrowing the standard of care.

The Premises Act establishes the duty of care a landowner owes for injuries that occur on the landowner's real property because of a condition on the property or activities conducted on such property. A landowner's duty of care depends on the injured person's purpose for entering the landowner's property. See § 18-21-115.

A.

We agree with the trial court that victim was not, under the facts alleged, an invitee.

As relevant here, § 18-21-115(@8)(c)(1), C.R.S.2002, establishes the standard of care owed by a landowner to an invitee as follows: "[Aln invitee may recover for damages caused by the landowner's unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known."

Section 13-21-115(5)(a), C.R.S.2002, defines "invitee" as:

a person who enters or remains on the land of another to transact business in which the parties are mutually interested or who enters or remains on such land in response to the landowner's express or implied representation that the public is requested, expected, or intended to enter or remain.

The complaint does not allege, nor do the allegations in the complaint permit the inference, that victim was on the premises for the purpose of conducting business with owner. It is undisputed that the shop was not open for business, and the premises were locked to prevent entry by the general public.

However, parent alleges that victim was on the premises as a volunteer to assist the employee with cleaning and closing the shop. Parent argues that, as a volunteer, victim benefited owner by assisting the employee, thus making victim an invitee. However, benefit to owner is not the test under the statute. The test is whether victim was on the premises "to transact business in which the parties are mutually interested."

In those jurisdictions that apply the common law "transact business" or "mutual benefit" tests, volunteers are generally classified as licensees. See Moore v. Greensburg High School, 773 N.E.2d 367 (Ind.Ct.App.2002)(parent-volunteer installing decorations in a school for an after-prom party); Hogan v. Hess Construction Co., 187 Kan. 559, 358 P.2d 755 (1961)(wife assisting husband-electrician on a construction site); Oatman v. St. Louis Southwestern R.R., 304 Mo. 38, 263 S.W. 139 (1924)(stranger assisting in switch yard); Allen v. Albright, 43 S.W.3d 643 (Tex.App.2001)(neighbor-volunteer who comes on the premises to rescue the occupant is "implied licensee" under mutual benefit test); Pifer v. Muse, 984 S.W.2d 739 (Tex.App.1998)(same); see also D.E. Buckner, Annotation, Duty Owed to, and Status of, Social Guest of Employee on Employer's Business Premises, 78 A.L.R.2d 107 (1961). Thus, even accepting parent's allegations of fact as true, vietim was not an invitee as a matter of law.

Moreover, as the Premises Act provides, if victim were a social guest, she was a licensee. See § 18-21-115(5)(b), C.R.S.2002. The law is also clear that if victim were on the premises at the employee's invitation for either the employee's benefit, victim's benefit, or their mutual benefit, then she was a licensee or trespasser, not an invitee. See Corcoran v. Jacovino, 161 Conn. 462, 290 A.2d 225 (1971)(teenager who entered closed service station with her friend-employee to pick up his jacket was a licensee); Grimwood v. Tabor Grain Co., 130 Ill.App.3d 708, 86 IIl.Dec. 6, 474 N.E.2d 920 (1985)(son delivering message to father was a licensee); Clanton v. Benson, 435 S.W.2d 298 (Tex.Civ.App.1968)(plaintiff invited onto service station property by employee was a licensee); Rainey v. Oregon Short Line R.R., 64 Utah 445, 231 P. 807 (1924)(wife injured in train collision while accompanying husband-fire inspector was a trespasser).

B.

However, we also conclude that the complaint sufficiently pleaded and put owner on notice of parent's claim that victim was a licensee and owner violated the applicable standard of care.

Section 18-21-115(8)(b), C.R.S.2002, establishes the standard of care owed by a landowner to a licensee. Thus, a licensee may recover only for damages caused:

(I) By the landowner's unreasonable failure to exercise reasonable care with respect to dangers created by the landowner of which the landowner actually knew; or
(II) By the landowner's unreasonable failure to warn of dangers not created by the landowner which are not ordinarily present on property of the type involved and of which the landowner actually knew.

" 'Licensee' means a person who enters or remains on the land of another for the licensee's own convenience or to advance his own interests, pursuant to the landowner's permission or consent. 'Licensee' includes a social guest." Section 18-21-115(5)(b).

Parent's assertion that victim was invited by owner's employee into the premises sufficiently alleges that victim was a licensee. The complaint also alleged that:

[Owner] negligently operated the premises by permitting and ratifying ongoing erimi-nal activity, including transactions for the sale, distribution and possession of ilegal drugs and substances, including marijuana, by its employees who would routinely meet in the back room near the rear exit door for the purpose of distributing, possessing and [sic] illegal, intoxicating drugs and controlled substances. [EJmployees and non-employees routinely entered the premises via the rear door when they intended to partake of the above illegal activities.

This language sufficiently alleges owner had actual knowledge of a dangerous condition. See § 18-21-115. Parent need not allege that owner had actual knowledge an armed assailant would come in the restaurant and kill the victims. Rather, parent only needed to allege that owner had an active awareness of the dangerous condition or, in this case, the criminal activity at its restaurant and the risks associated with that activity. See Wright v. Vail Run Resort Community Ass'n, 917 P.2d 364 (Colo.App.1996).

The complaint also sufficiently alleged that owner breached its duty to victim as a licensee by stating that owner was "negligent in the operation of [the] premises and the manner in which its employees freely allowed unknown individuals free access into the back of the store both during and after store hours."

Thus, we conclude that this language is sufficient to give owner notice of the transaction or occurrence that is the subject of the claim asserted, namely, that owner breached its duty under the Premises Act. See Smith v. Mills, 123 Colo. 11, 14, 225 P.2d 483, 485 (1950)("it is not necessary to set out specifically the nature or existence of [the claim] to enable the complaint to withstand motion for dismissal").

Accordingly, we hold that the trial court erred in dismissing the complaint for failure to state a claim under the Premises Act.

IL.

Parent also contends that the trial court erred in dismissing her complaint for failure to state a claim under the Youth Act. We disagree.

Parent alleged that owner was negligent per se for violating the Youth Act by employing the employee to work more than six hours and past 9:30 p.m. on a weeknight. We conclude that no private tort remedy is available to parent under the Youth Act.

Whether a private tort remedy is available against a nongovernmental defendant for violating a statutory duty depends on three factors: (1) whether the plaintiff is within the class of persons intended to be benefited by the legislative enactment; (2) whether the legislature intended to create a private right of action; and (8) whether an implied civil remedy would be consistent with the purposes of the legislative scheme. Allstate Insurance Co. v. Parfrey, 830 P.2d 905 (Colo.1992).

In Henderson v. Bear, 968 P.2d 144 (Colo.App.1998), a division of this court held that parents do not have a private cause of action under the Youth Act against their child's employer for the wrongful death of their child. The division found that the purpose of the Youth Act, as set forth in the legislative declaration, was to foster the economic, social, and educational development of young people through employment. The stated purpose indicates that the statute is to benefit children, not their parents.

Thus, it follows that a parent whose child was injured indirectly by an employer's violation of the Youth Act as to another child also would not have a private cause of action under the Youth Act. Accordingly, we conclude that the trial court did not err in dismissing parent's complaint for failure to state a claim under the Youth Act.

The judgment is affirmed as to the claim under the Youth Act; the judgment is reversed in all other respects; and the case is remanded for further proceedings consistent with the views expressed here. Having so concluded, the order awarding attorney fees pursuant to § 13-17-201, C.R.S.2002, and costs pursuant to § 18-16-105, C.R.S.2002, must likewise be, and it is hereby, vacated.

Judge DAVIDSON and Judge WEBB coneur.


author: Judge WEBB.

text:
    William D. BONTRAGER, Plaintiff-Appellant, v. LA PLATA ELECTRIC ASSOCIATION INC., Defendant-Appellee.
    No. 02CA0234.
    Colorado Court of Appeals, Div. IIL.
    Feb. 27, 2003.

      William D. Bontrager, Pro Se.
    Maynes, Bradford, Shipps & Sheftel, LLP, Thomas H. Shipps, John Barlow Spear, Lar-anne Arbaugh, Durango, Colorado, for Defendant-Appellee.
    Kent L. Singer, Denver, Colorado, for Am-ici Curiae Colorado Rural Electric Association and Tri-State Generation and Transmission Association, Inc.
   Opinion by

Judge WEBB.

This case challenges a nonprofit cooperative electric association's investment of member capital in for-profit, nonelectric subsidiaries. Plaintiff, William D. Bontrager, appeals the trial court's judgment in favor of defendant, La Plata Electric Association Inc. (LPEA). Contrary to plaintiff's contentions, we conclude that LPEA acted within its statutory authority and governing documents, and therefore we affirm.

LPEA is a nonprofit cooperative electric association that was formed under § 41-16-210, et seq., C.R.98.1985, and is now subject to § 7-55-101, et seq., C.R.8.2002 (article 55). LPEA was a public utility subject to the jurisdiction of the Public Utilities Commission (PUC). Section 40-1-108(2)(a), C.R.S. 2002. In 1998, LPEA obtained an exemption from PUC regulation under the Cooperative Electric Associations Act, § 40-9.5-101, et seq., C.R.8.2002 (CEA Act).

In 1995, LPEA's members voted to amend the purpose section of its articles of incorporation to allow LPEA "to form one or more subsidiary business organizations to provide such other services as may be permitted by law for the benefit of the cooperative, its members or non-members." Thereafter, LPEA formed and invested member capital in two for-profit, nonelectric subsidiaries, one of which took bankruptcy.

Plaintiff, an LPEA member, commenced this action for injunctive and declaratory relief challenging LPEA's formation of and investment in the subsidiaries on multiple grounds. As relevant here, plaintiff moved for partial summary judgment on his argument that LPEA exceeded its statutory authority, articles of incorporation, and bylaws. LPEA filed a cross-motion for partial summary judgment. The parties agreed the trial court should first resolve these issues.

The trial court denied plaintiff's summary judgment motion and granted partial summary judgment for LPEA. The court entered a judgment declaring that LPEA's formation of and investment in the subsidiaries was not prohibited by the governing statutes, its articles of incorporation, or its bylaws. The parties then dismissed the remainder of the case, and plaintiff now appeals.

When, as here, the parties do not raise factual disputes, issues of statutory interpretation are particularly appropriate for resolution on summary judgment. See Oklahoma ex rel. Dep't of Human Servs. v. Weinberger, 741 F.2d 290 (10th Cir.1983).

I.

Raising questions of first impression in Colorado, plaintiff argues the governing statutes restrict LPEA to providing electric and related services and prohibit it from owning and investing in for-profit, nonelectric subsid-laries. We disagree.

Statutory interpretation is a question of law that we review de novo. Colo. State Bd. of Accountancy v. Paroske, 39 P.3d 1283 (Colo.App.2001).

When interpreting a statute, our primary responsibility is to determine the intent of the General Assembly. People v. Cooper, 27 P.3d 348 (Colo.2001). We begin with the statute's language, which we afford its ordinary and common meaning. We construe statutes as a whole, give effect to every word, and resist forced or strained constructions. Bd. of County Comm'rs v. Vail Assocs., Inc., 19 P.3d 1263 (Colo.2001).

We presume the General Assembly intended the entire statute to have effect and also intended a just and reasonable result. Section 2-4-201(1)(b)-(c), C.R.S.2002; People v. Luther, 58 P.3d 1013 (Colo.2002); Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo.1991).

If separate clauses within a statute can be reconciled using one interpretation but would conflict under another, we adopt the interpretation allowing for consistency. People v. Dist. Court, 713 P.2d 918 (Colo.1986). When multiple statutes or multiple statutory provisions apply to the subject matter, we examine all applicable provisions to ascertain legislative intent. R.E.N. v. City of Colorado Springs, 823 P.2d 1359 (Colo.1992). We favor an interpretation that gives consistent and harmonious effect to all provisions. Charnes v. Boom, 766 P.2d 665 (Colo.1988).

We look to legislative history and other extrinsic factors only if the statute is ambiguous or portions of the statute may conflict. People v. Cooper, supra.

A.

We first reject plaintiff's contention that the CEA Act and article 55 limit LPEA to providing electric and related services.

Section 40-9.5-101 of the CEA Act allows a cooperative electric association, regulated by an elected governing body, to exempt itself from PUC regulation by an affirmative vote of its members. Under § 40-9.5-107, an exempt cooperative electric association must continue to perform various "duties" connected with its provision of electric services. Among other duties, the statute requires the following:

(1) Cooperative electric associations shall provide reasonably continuous and adequate electric utility service to all members and consumers....
(2) Cooperative electric associations shall provide and maintain reasonably adequate facilities for the provision of electric utility service within their certificated service areas.
(8) All cooperative electric associations shall cooperate with each other and with other electric utilities in avoiding unnecessary construction of facilities and cooperate in the joint use of facilities for generation, transmission, and distribution of electric energy.
(4) Cooperative electric associations shall construct and maintain their facilities in a careful and safe fashion so as to minimize hazards to either persons or property.

Plaintiff contends that, had LPEA remained subject to PUC regulation, it could have invested in for-profit, nonelectric subsidiaries only with PUC approval. Thus, according to plaintiff, § 40-9.5-107 prohibits these investments because the section establishes only duties relating to electric services, and no other statute grants broader powers. We are not persuaded.

"Powers" and "duties" have different meanings: duties are obligations that must be fulfilled; powers are rights that need not be exercised. Black's Law Dictionary 521, 1189 (7th ed.1999); see 2A Norman J. Singer, Sutherland on Statutory Construction § 47.27 (6th ed.2000)(use of dictionary appropriate to interpret undefined statutory terms).

While statutory identification of a duty may imply the power necessary to perform that duty, we cannot imply a limitation on powers extraneous to the duties listed. Cf. Frontier Ditch Co. v. Southeastern Colo. Water Conservancy Dist, 761 P.2d 1117 (Colo.1988)(state's duty to protect the right of appropriators did not deprive it of the power to enter into interstate compacts and delegate this duty to a sister state).

Consideration of the entire statutory scheme also weighs against plaintiff's interpretation of § 40-9.5-107. Section 40-9.5-112 states: "Exeept as otherwise provided in [the CEA Act], the provisions of article 55 of title 7, C.R.S., shall apply to cooperative electric associations." The parties agree that LPEA is subject to article 55.

Section 7-55-102(1) provides, in relevant part, that a Colorado cooperative "may be associated and incorporated for the cooperative transaction of any lawful business, except banking." Section 7-55-108 states: "The powers enumerated in section 7-55-107 shall vest in every cooperative corporation in this state except those organized under or, subject to article 56 of this title, although such powers may not be specified in its charter or in its articles of incorporation." Seetion 7-55-107 lists the "powers" of cooperative associations, including the power to "hold such real and personal property as may be necessary for the legitimate business of the corporation." Section 7-55-107(1)(d). Thus, the General Assembly recognized the difference between these terms by addressing "duties" in § 40-9.5-107 and "powers" in § 7-55-107.

Section 7-55-116 incorporates the for-profit and nonprofit sections of the Colorado Corporation Code "and all powers and rights thereunder ... except where such provisions are in conflict with or inconsistent with the express provision of this article." Because a cooperative association "shall not be carried on for profit," § 7-55-101(1)(d), we foeus on the purposes and powers of nonprofit corporations provided in § 7-123-101, et seq., C.R.8.2002.

Nonprofit corporations likewise may engage "in any lawful business." Section "/- 123-101(1). They are empowered to "purchase, receive, subscribe for, and otherwise acquire shares and other interests in, and obligations of, any other entity." Section T-123-102(1)(f) (emphasis supplied).

Here, the 1995 amendment to LPEA's articles of incorporation broadened its purposes to include forming entities that provide "other services." A cooperative association enjoys the power to amend its articles, § 7-55-109, as does a nonprofit corporation, § 7-130-101(1), C.R.S8.2002. And forming other entities constitutes a "lawful business." Sections 7-55-102(1), 7-128-101(1).

Moreover, onee LPEA's purpose was broadened by the amendment, its ownership of nonelectric subsidiaries would constitute holding personal property necessary for the association's legitimate business, § 7-55-107(1)(d), and acquisition of shares in "any other entity," § 7-123-102(1)(f).

Hence, we cannot conclude the General Assembly intended to limit cooperative electric associations to providing electric service.

Nevertheless, plaintiff argues we should construe "any lawful business" in § 7-55-102(1) narrowly for several reasons, none of which we find persuasive.

First, plaintiff asserts that public grants of power which create an advantage against the general public should be strictly construed. See Singer, supra, § 638.2.

Under this rule, we must assume nothing passes from the sovereign to a private grantee by implication, see Singer, supra, and we must adopt a construction that favors the sovereign rather than the grantee. Snake River Ranch v. United States, 542 F.2d 555 (10th Cir.1976). The strict construction rule operates to limit the advantage as against the general public, such as the scope of an exclusive franchise or a tax exemption. See Singer, supra, § 68.6 n. 4. However, we need not abandon the plain meaning of applicable statutory language. Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985).

Here, § 7-55-102(1) unambiguously grants to cooperative associations the right to engage in "any lawful business, exeept banking." Plaintiff does not explain, and we cannot discern, how the phrase "any lawful business" could be narrowly construed. See Obert v. Colo. Dept. of Social Services, 466 P.2d 1186 (Colo.1988)(interpreting "any" as meaning without restriction).

LPEA does not assert an exclusive franchise to provide the services in which the subsidiaries engage, nor does LPEA contend the subsidiaries would share in its tax exempt status. Hence, the rationale of the strict construction rule would not require a narrow interpretation of "any lawful business" as applied to LPEA's ownership of the subsidiaries.

Second, plaintiff notes that § 40-9.5-112 incorporates article 55 rather than § 7-56-101, et seq., C.R.8.2002 (article 56), which grants cooperative associations subject to its provisions more extensive powers than those enjoyed by associations subject to article 55. Plaintiff argues the General Assembly thus intended to limit the power of associations subject to article 55.

Article 55 was enacted in 1983, when article 56 applied only to agricultural cooperatives. Article 56 did not apply to other cooperatives until 1996. Colo. Sess. Law 1996, ch. 117, § 7-56-101 at 478. Hence, the cross-reference to article 55 in § 40-9.5-112 cannot be interpreted as a choice between article 55 and article 56.

Third, plaintiff asserts that § 40-9.5-116, which authorizes electric cooperatives to invest in state transportation projects, would not be necessary unless electric cooperatives otherwise could not make investments in nonelectric entities. However, § 40-9.5-116(2) provides that "the board of directors of a cooperative electric association may give preference to" investments in public transportation projects in certain cireumstances. Hence, the statute shows the General Assembly's recognition that electric cooperatives could have other investments.

Fourth, plaintiff urges us to follow cases from other jurisdictions that have prohibited similar action by cooperative associations under their particular statutes. See, e.g., Flint Elec. Membership Corp. v. Barrow, 271 Ga. 636, 523 S.E.2d 10 (1999); Mun. Elec. Auth. v. Ga. Pub. Serv. Comm'n, 241 Ga.App. 237, 525 S.E.2d 399 (1999); Tallahatchie Valley Elec. Power Ass'n v. Miss. Propane Gas Ass'n, 812 So.2d 912 (Miss.2002); Midlothian Butane Gas Co. v. Hilco Elec. Coop., Inc., 43 S.W.3d 677 (Tex.App.2001).

We decline to do so because the statutes at issue in those cases were much more limiting than the Colorado statutes before us. Indeed, other jurisdictions have construed their statutes as allowing nonprofit electric cooperatives to own stock in for-profit subsidiaries. See, e.g., DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270 (Ala.1998); Lewis v. Jackson Energy Coop. Corp., -- S.W.3d --, 2002 WL 31545858 (Ky.Ct.App. No.2001-CA-001108-MR, Nov. 15, 2002).

In sum, these cases provide little guidance because each case interprets its own particular statutory scheme, all of which differ to varying degrees from the Colorado statutes at issue here.

We need not address plaintiff's public policy arguments because we view the relevant Colorado statutes as unambiguous, and we therefore defer to the General Assembly's declaration of public policy. See City & County of Denver v. Tihen, 77 Colo. 212, 235 P. 777 (1925), overruled in part on other grounds by State Farm Mut. Auto. Ins. Co. v. Temple, 176 Colo. 537, 491 P.2d 1371 (1971).

Accordingly, we conclude LPEA's governing statutes do not limit it to providing only electric and related services.

B.

We also reject plaintiff's contention that the governing statutes prohibit LPEA from acting in part as a for-profit corporation by forming or investing in a for-profit subsidiary. On appeal, plaintiff does not argue that LPEA has become a for-profit corporation or that the subsidiaries are its alter ego, and we express no opinion on those issues.

A cooperative association "shall not be carried on for profit." Section 7-55-101(1)(d). However, article 55 does not prohibit a cooperative association from owning a for-profit subsidiary.

A nonprofit corporation has the power to "purchase, receive, subscribe for, and otherwise acquire shares and other interests in, and obligations of, any other entity; and to own, hold, vote, use, sell, mortgage, lend, pledge, and otherwise dispose of, and deal in and with, the same." Section 7-123-102(1)(f). The statute also allows a nonprofit corporation to "invest and reinvest its funds." Section 7-128-102(1)(bh). Likewise, nothing in article 128 prohibits a nonprofit corporation from forming or investing in a for-profit subsidiary.

Plaintiff has cited no Colorado case, nor have we found one, holding that either a nonprofit cooperative association or a nonprofit corporation is precluded from investing in for-profit subsidiaries. The question of whether such investments might be prohibited if the nonprofit corporation thereby became a de facto for-profit corporation is not before us.

Accordingly, we conclude the governing statutes do not prohibit LPEA from forming and investing in a for-profit subsidiary.

IL.

Plaintiff next argues that because of the manner in which the 1995 amendment to its articles of incorporation was adopted, LPEA should be estopped from relying on that amendment to justify formation of and investment in for-profit, nonelectric subsidiaries. We disagree.

Equitable estoppel is designed to achieve justice where four elements are present: (1) the party to be estopped by its conduct must know the facts; (2) that party must intend that the conduct be acted upon or must act so the party asserting estoppel is justified in believing the conduct was so intended; (8) the party asserting estoppel must be ignorant of the true facts; and (4) that party must detrimentally rely on the other party's conduct. Dep't of Health v. Donahue, 690 P.2d 243 (Colo.1984).

A cooperative electric association may amend its articles of incorporation if it complies with § 7-55-109, which provides as relevant here:

The articles of incorporation of a cooperative association or corporation may be amended at any regular or special meeting of the stockholders or members of such association. The proposed amendment must be first approved by a two-thirds majority of the directors. The notice of such meeting shall set forth or have attached thereto the proposed amendment and shall be mailed to each member of record at least ten days prior to the meeting date.... The proposed amendment shall be approved by an affirmative vote of a majority of the stockholders or members present or voting by mail.

Here, both parties agree LPEA complied with § 7-55-109 by, among other things, sending a notice that contained the proposed amendment. Nevertheless, plaintiff argues LPEA's notice was insufficient and unfair because LPEA intended to "broaden the general purposes of the cooperative," but did not disclose this intention in its notice. We are not persuaded.

The statutory notice provision does not require a cooperative association to explain potential future applications of an amendment. No Colorado case has imposed this requirement.

Moreover, the plain language of the amendment gave LPEA the power to form subsidiary businesses and did not limit the potential subsidiaries to nonprofit corporations. Hence, a reasonable person considering the proposed amendment could not assume this limitation and assert detrimental reliance based on LPEA's nondisclosure of its alleged long-term plans. See Comm. for Better Health Care for All Colo. Citizens v. Meyer, 830 P.2d 884 (Colo.1992)(reliance of party seeking to invoke equitable estoppel must be reasonable).

Accordingly, we conclude LPEA is not es-topped to rely on the amendment.

IIL

Plaintiff finally argues the governing statutes and LPEA's bylaws restrict its use of undistributed member capital to the provision of electric services and, thus, LPEA wrongfully invested member capital in the subsidiaries. We reject both contentions.

A.

Under the governing statutes, patronage capital is "any capital credit, patronage dividend, or patronage refund allocated by a cooperative electric association ... to a member or patron thereof." Section 7-55-101.5. Cooperative electric associations have the power to:

use patronage capital which has been declared by such association to be distributable or payable to a member or patron for expenditures associated with the provision of electric service ... as directed by the board of directors of the association after the association has given notice thereof.

Section 7-55-107(2) (emphasis supplied). No Colorado case has interpreted this language.

Plaintiff argues the emphasized phrase limits a cooperative electric association to using patronage capital only for electric services. We are not persuaded.

Section 7-55-101(1)(a) explains that earnings are distributed to each consumer or member in proportion to the services accepted by that consumer or member, among other things. See also James B. Dean & Donald A. Frederick, Business Cooperatives: Characteristics, Opportunities and Legal Foundation, 22 Colo. Law. 953 (May 1993)(in a cooperative association, benefits are distributed on the basis of use). The phrase "for expenditures associated with the provision of electric services," when applied to members' distributable capital, embodies this principle.

Furthermore, if distributable patronage capital could be used only as plaintiff argues, then the phrase "as directed by the board of directors" would not be necessary. We interpret statutes to give effect to all provisions. Farmer's Reservoir & Irrigation Co. v. Consol. Mut. Water Co., 33 P.3d 799 (Colo.2001).

Thus, in our view, this phrase describes allocation of patronage capital to members based on their consumption of electric services and does not limit the board of directors' use of patronage capital.

Accordingly, we conclude the applicable statutes do not limit LPEA to using patronage capital for electric services. f

B.

We also reject plaintiff's argument based on LPEA's bylaws.

The bylaws explain that members' and consumers' payments for electric service charges, in excess of the cost of service, called patronage, constitute the cooperative association's capital. In determining costs of service, the bylaws refer to various credits that must be considered, including "interest on investments."

The bylaws allow the board to retire members' patronage capital if it determines "the financial condition will not be impaired thereby." However, the bylaws impose no restriction on the use of members' capital before its retirement. The bylaws expressly contemplate that LPEA will hold interest-bearing investments. Because LPEA issues no stock, the most likely source of investable capital would be members' patronage capital. Hence, we will not imply a limitation on the board's investment discretion. Cf. Rifkin v. Steele Platt, 824 P.2d 32 (Colo.App.1991).

The articles of incorporation allow LPEA: To purchase, receive, lease as lessee, or in any manner acquire, own, hold, maintain, use, convey, sell, lease as lessor, exchange, mortgage, pledge, or otherwise dispose of any and all real and personal property or any interest therein necessary, useful or appropriate to enable the corporation to accomplish any or all of its purposes.

(Emphasis supplied.) Undistributed patronage capital would constitute "personal property" available to accomplish LPEA's "purposes." After the 1995 amendment, those purposes include formation of subsidiaries.

LPEA's capital structure, like that of most cooperative associations, allows the association to retain some or all of the operating profit as working capital, but requires the association to credit each member's capital account to reflect the ownership interest of the member in the retained capital. Dean & Frederick, supra. Thus, investing patronage capital is not inconsistent with crediting of each member's capital account to reflect that member's ownership interest.

Accordingly, we conclude LPEA did not violate its bylaws by investing patronage capital in the subsidiaries.

The judgment is affirmed.

Judge DAVIDSON and Judge ROY concur.


author:
Judge GRAHAM.
      Judge VOGT

text:
    The PEOPLE of the State of Colorado, In the Interest of A.M.K. a Child, Upon the Petition of Billy W. Hargrove and Sherry L. Hargove, Petitioners and Special Respondents-Appellees, and Concerning Jeff Lewis, Respondent-Appellant.
    No. 02CA0178.
    Colorado Court of Appeals, Div. L.
    Feb. 27, 2003.

      Larry N. Harris, Littleton, Colorado, for Petitioner.
    Law Office of Richard K. Rufner, Richard K. Rufner, Englewood, Colorado, for Respondent-Appellant.
   Opinion by

Judge GRAHAM.

In this proceeding concerning the allocation of parental responsibilities for A.M.K., Jeff Lewis (father) appeals from the trial court's order awarding primary residential care to Billy W. and Sherry L. Hargrove (petitioners). Father also appeals from the order insofar as it awards petitioners shared decision-making authority for religious, medical, and day-to-day matters and sole decision-making authority for education issues. We reverse and remand for further proceedings.

Petitioners initiated this proceeding pursuant to § 14-10-1283, C.R.S.2002, seeking a permanent allocation of parental responsibilities for AM.K., who was born April 13, 1996. AM.K.'s biological parents were unmarried teenagers at the time of her birth, and father had little contact with the child after her first few months of life. AM.K.'s mother met petitioners through their daughter, mother's coworker. When AMK. was still an infant, petitioners offered to provide babysitting for her, which soon turned into a full-time living arrangement. Although AM.K.'s mother maintained contact, it was sporadic.

Mother testified that she did not tell father of this arrangement because she was embarrassed. Father denied having any knowledge of petitioners or any care arrangement with them until shortly before this action was commenced. In fact, during father's absence from Colorado, he paid child support directly to mother.

Shortly before this proceeding was commenced, petitioners contacted A.M.K.'s mother to request that they be permitted to adopt A.M.K. Mother told petitioners she would think about it, but then contacted father and expressed her desire that he and his fiancee assume full care and responsibility of AMK. Father then moved back to Colorado to retrieve the child. He began exercising parenting time with A.M.K., who was then temporarily with mother. Father was prevented from removing the child from Colorado and returning to his home in Delaware by a series of events, which culminated in this petition seeking allocation of parental responsibilities.

Following an evidentiary hearing, the trial court determined that petitioners had standing to pursue parental responsibility of AMK. under § 14-10-123(1)(b) and (c), C.R.S.2002, by virtue of their physical custody of her. The trial court found that A.M.K. had been permanently residing with petitioners since before she turned one and that they had become her "psychological parents." The court specifically noted A.MK.'s attachment to petitioners and concluded that a separation from them would be emotionally damaging. The court further found that petitioners had done a good job of parenting AMK. and that she appeared normal, healthy, and well adjusted.

Father's fitness was not in issue for purposes of the § 14-10-123(1) proceeding, and so the dispute concerning allocation of parental responsibilities was between father as a fit biological parent and petitioners as "psychological parents."

The trial court applied the best interests standard in ruling that the child should reside primarily with petitioners and awarded them various parental responsibilities It also granted father increasing parenting time consistent with a special advocate's proposed schedule.

I. Father's Fundamental Right

Father contends that the trial court ignored his fundamental right as a biological parent to direct the custody, care, and control of the child. According to father, absent a showing of his unfitness, the court erred in applying the best interests of the child standard in determining that parental control should reside with petitioners. We agree that father's fundamental rights should have been protected by the application of a presumption, but reject father's contention that a showing of unfitness was required before parental responsibilities could be allocated to petitioners.

As relevant here, § 14-10-128 grants standing to persons other than parents to seek allocation of parental responsibilities if they have had physical care of the child for a period of six months or more and if they commence their petition within six months of the termination of such care.

Allocations of parental responsibilities are to be made according to the best interests standard pursuant to § 14-10-1234, C.R.8.2002. The allocation of parental responsibility is a matter lying within the sound discretion of the trial court. In re Marriage of Zebedee, 778 P.2d 694 (Colo.App.1988).

In applying the best interests standard, a court eannot ignore the presumption accorded to biological parents. The supreme court in In re Custody of C.C.R.S., 892 P.2d 246 (Colo.1995), considered whether the best interests standard could be applied in resolving a custodial dispute between a natural parent and psychological parents pursuant to § 14-10-1283 without a showing of parental unfitness. The court found that the best interests standard was the proper standard and that fitness of the natural parent need not be resolved as part of the allocation process. In so finding, the court recognized the "presumption that the biological parent has a first and prior right to eustody." In re Custody of C.C.R.S., supra, 892 P.2d at 256.

Subsequent Colorado appellate opinions have confirmed that "natural parents have a fundamental liberty interest in the companionship, care, custody, and management of their children." In re Petition of J.D.K., 37 P.3d 541, 543 (Colo. see L.L. v. People, 10 P.3d 1271 (Colo.2000). This fundamental liberty interest gives rise to a presumption that the best interests of the child will be furthered by a fit natural parent. Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

In determining the best interests of the child, the court must consider the factors enumerated in § 14-10-124(1.5), C.R.S.2002, as well as all other relevant factors. In re Marriage of Martin, 42 P.3d 75 (Colo.App.2002). The trial court need not make specific findings on each and every factor listed in the statute so long as there is some indication in the record that the pertinent factors were considered. In re Marriage of Garst, 955 P.2d 1056 (Colo.App.1998). However, the trial court must accord a presumption to the fit biological parent that in the first instance, the best interests of the child will be satisfied by placing the child with the biological parent. See In re Custody of C.C.R.S., supra.

Here, although the court made numerous findings regarding father, his sporadic contact with the child, and his general historical lack of interest, the record is devoid of any indication that father was accorded a presumption in applying the best interests standard. Indeed, the record reflects that the trial court found that the recommendations of an expert report were in the best interests of the child and adopted those recommendations almost entirely without applying any presumption in favor of father. In effect, the court placed the burden on father to rebut an opposite presumption in favor of petitioners.

Additionally, the court-appointed special advocate noted in his report that father's life was "just beginning to take hold" and that it appeared his relationship with his fiancee was a "centering force." However, in pointing out the ages of father and his fiancee, their living arrangement with his parents, the uncertainty of their finances, father's need to complete his education to realize his goals, and father's past difficulties with commitment, the special advocate cautioned that A.M.K. should not be placed in a secondary role to father's character formation. The special advocate recommended, therefore, that the allocation of parental responsibilities be based in significant part upon the appropriate timing for an introduction of A.M.K. more fully into father's life.

This analysis wholly fails to accord a presumption that the best interests of the child would be served by custody with the fit biological father. In fact, even though fitness obviously was not an issue in the proceeding, the trial court took special care to state that it was not finding father to be "unfit ... [although] the Court does find that he has been an unfit parent previously." This observation indicates that no special weight was given to father as a fit biological parent, which under these cireumstances constitutes error.

We conclude that a new hearing should be afforded at which the parties have an opportunity to present additional evidence and argument relating to the presumption, the rebuttal thereof, and such constitutional matters as might be suggested in part II of this opinion.

II. Compelling State Interest

Father also argues that he has a constitutional right to have custody, care, and control of his child and that he cannot be deprived of that right in the absence of a compelling state interest shown by clear and convincing evidence. We decline to reach this issue.

Father's contention necessarily involves an analysis of the constitutional questions raised by depriving a fit natural parent of his or her fundamental liberty interest pursuant to § 14-10-123(1)(b) and (c), as well as the continuing vitality of In re Custody of C.C.R.S., supra, in light of Troxel, supra. Father acknowledges that he has not notified the attorney general of a facial challenge to the constitutionality of § 14-10-1283, as is required under § 13-51-115, C.R.S.2002, C.RCP. 57(j), and CAR. 44(a). Consequently, he concedes that we are not able to review the statute on that basis. See In re Estate of Becker, 32 P.3d 557 (Colo.App.2000), aff'd sub nom. In re Estate of DeWitt, 54 P.3d 849 (Colo.2002).

On remand, father should have the opportunity to raise, and petitioners to respond to, constitutional objections. To the extent those objections include a facial challenge to the applicable statutes, proper notice should be given to the attorney general.

The order is reversed, and the case is remanded to the trial court for further proceedings consistent herewith.

Judge JONES concurs.

Judge VOGT specially concurs.

Judge VOGT

specially concurring.

I agree that the case must be remanded because the trial court's order does not reflect that it considered the presumption in favor of the biological father when it allocated parental responsibilities for A.M.K.

I write separately, however, to emphasize that this presumption is rebuttable. In In re Custody of C.C.R.S., 892 P.2d 246, 256 (Colo.1995), the supreme court stated: "This presumption [that the biological parent has a first and prior right to custody] may be rebutted by evidence establishing that the welfare of the child-i.e., the best interests of the child-is better served by granting custody to a non-parent." I perceive nothing in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), that would warrant a conclusion that that statement by our supreme court is no longer good law, or that would preclude the trial court on remand from determining, based on the evidence previously presented, that the presumption has been rebutted.


author: Justice ERICKSON.

text:
    In the Matter of the ESTATE OF Marjorie D. BECKER, a protected person, a/k/a Marjorie Dudley Becker. Kevin Becker, as Conservator for Marjorie D. Becker, Appellee, v. David A. Becker, interested person, Appellant.
    No. 02CA0134.
    Colorado Court of Appeals, Div. IL.
    March 13, 2003.

      Paul J. Willumstad, Pueblo, Colorado, for Appellee.
    David A. Becker, Pro Se.
   Opinion by

Justice ERICKSON.

In this conservatorship proceeding, David A. Becker (interested person) appeals the district court's judgment awarding attorney fees to the estate of Marjorie D. Becker (protected person) and to Kevin Becker (conservator). We affirm.

The protected person, who is the mother of the interested person and the conservator, voluntarily petitioned the court to establish this conservatorship estate. Pursuant to her wishes, the court authorized the conservator to make annual limited cash gifts to the two sons and to pay for certain educational expenses of the interested person.

The interested person objected to his brother's appointment as conservator, moved for the recusal of the judge and removal of the conservator, and requested the payment of educational expenses and gifts. The interested person filed repeated requests for slightly different items or amounts of educational expenses and for rulings on previously requested items. The interested person also made various discovery requests.

The court denied both the motion to remove the conservator and the request for payment. The court found that the misconduct allegations made against the conservator "were not close to being proven" and that the motions to remove and for payment "have no merit whatsoever." Furthermore, the discovery requests were quashed because the court determined they were "devoid of merit."

The court found that the interested person's "motions were not substantially warranted and were brought in bad faith." Accordingly, the court awarded attorney fees to the estate in the amount of $1837.50, and to the conservator in the amount of $3176.

I.

The interested person contends that the court erred in awarding attorney fees because he did not act in bad faith in requesting court orders subsequent to the conservator's appointment. We are not persuaded.

This case is governed by § 15-14-414(4), C.R.9$.2002, which became effective January 1, 2001, and therefore applies to these proceedings. See § 15-17-103(1), C.R.S.2002. Section 15-14-414(4) authorizes the court, upon the conclusion of hearings on petitions for orders subsequent to the appointment of a conservator, to award attorney fees and costs against the movant or petitioner where the court determines that the motions and petitions "were not substantially warranted or were brought in bad faith."

We have not yet interpreted this new provision. Thus, we turn for guidance to an analogous provision in § 13-17-102(2), C.R.S. 2002, which provides for the assessment of attorney fees for actions that "lacked substantial justification." See Sch. Dist. No. 1 v. Cornish, 58 P.3d 1091 (Colo.App.2002)(because the phrase "lacked substantial justification" in § 22-63-302(10)(e), C.R.S.2002, had not been previously interpreted, court looked to cases interpreting identical phrase in § 18-17-102(2)).

The phrase "lacked substantial justification" means "substantially frivolous, substantially groundless, or substantially vexatious." Section 18-17-102(4), C.R.S.2002; Redden v. SCI Colo. Funeral Servs., Inc., 38 P.3d 75 (Colo.2001).

A vexatious claim or defense is one brought or maintained in bad faith,. Bad faith may include conduct that is arbitrary, vexatious, abusive, or stubbornly litigious, and it may also include conduct that is aimed at unwarranted delay or is disrespectful of truth and accuracy. Zivian v. Brooke-Hitching, 28 P.3d 970 (Colo.App.2001).

A claim is groundless if the allegations in the complaint, while sufficient to survive a motion to dismiss for failure to state a claim, are not supported by any eredi-ble evidence at trial. Collins v. Colo. Mountain Coll., 56 P.3d 1132 (Colo.App.2002).

A claim is frivolous if the proponent can present no rational argument based on the law or evidence to support it. Western United Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo.1984).

Thus, judicial interpretations of the terms used in § 13-17-102(4) are helpful in interpreting the "bad faith" and "not substantially warranted" terms in § 15-14-414(4). Bad faith under § 15-14-414(4) involves conduct that is arbitrary, vexatious, abusive, stubbornly litigious, aimed at unwarranted delay, or disrespectful of truth and accuracy. Similarly, under § 15-14-414(4), a motion or petition is not substantially warranted if it is not supported by any rational argument or credible evidence.

Here, the court found, with record support, that the interested person's educational expenses had already been paid with his mother's funds. The court also found that the interested person presented no evidence to support allegations that the conservator violated certain tax provisions or was otherwise guilty of misconduct or mismanagement. Furthermore, the court noted that the interested person declined the court's invitation to withdraw the motions and instead insisted on proceeding with a full hearing on matters that ultimately had "no merit whatsoever" and "were not close to being proven."

On this record, we perceive no error in the court's finding that the interested person acted in bad faith within the meaning of § 15-14-414(4). Accordingly, the interested person's argument provide no basis for a reversal of the attorney fees award.

IL.

Inasmuch as the provisions in § 15-14-414(4) have not previously been interpreted, we conclude that the interested person's appeal is not frivolous. Therefore, we deny the conservator's request, made pursuant to C.A.R. 38(d) and § 13-17-101, C.R.S.2002, for appellate attorney fees. See Wood Bros. Homes, Inc. v. Howard, 862 P.2d 925 (Colo.1993); Hurpac Serv. Inc. v. Republic Acceptance Corp., 37 P.3d 447 (Colo.App.2000) (where issue is a matter of first impression, and appellant made rational argument in support of its position, appeal cannot be deemed frivolous).

The judgment is affirmed.

Judge NEY and Judge MARQUEZ concur.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VLI, § 5(3), and § 24-51-1105, C.R.$S.2002.


author: Judge NEY.

text:
    Kenneth B. TURNBAUGH, Kaly J. Turnbaugh, and James R. Norwood, Plaintiffs-Appellants, v. Bert CHAPMAN, Carol A. Chapman, DeWayne D. Hansen, Linda J. Hansen, and the Board of County Commissioners of Douglas County, Defendants-Appellees.
    No. 01CA1861.
    Colorado Court of Appeals, Div. IL.
    March 13, 2003.

      Astrella & Rice, P.C., T.R. Rice, Denver, Colorado, for Plaintiffs-Appellants.
    Dixon & Snow, P.C., Rod W. Snow, Denver, Colorado, for Defendants-Appellees.
    No Appearance for Defendant-Appellee Board of County Commissioners of Douglas County.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.$.2002.

   Opinion by

Judge NEY.

Plaintiffs, Kenneth B. and Kaly J. Turn-baugh and James R. Norwood, appeal the trial court's declaratory judgment in favor of defendants, Bert and Carol A. Chapman, De-Wayne D. and Linda J. Hansen, and the Board of County Commissioners of Douglas County. We reverse and remand.

In 1971, the previous owner subdivided the property now owned by the Chapmans and Hansens. The plat for this subdivision was approved by Douglas County and eventually recorded.

On this plat was a marking indicating a strip of land located between the parcels now owned by the Chapmans and Hansens, which is the basis of this controversy. This strip of land ran to the south line of the plat and was accompanied by the text "reserved for 60' future access easement." Additionally, the plat contained the following language regarding the future maintenance of all roads on the property:

This plat approved by the Board of County Commissioners of Douglas County, Colorado ... for filing and conveyance of Roads, Drives, and Lanes, and accepted by the County of Douglas, State of Colorado, subject to the condition that the County shall undertake maintenance of any such Roads, Drives, and Lanes only after construction thereof has been satisfactorily [completed] by the subdivider at no expense to the County, provided in the judgment of the County Commissioners, public need and necessity is shown therefore.

Plaintiffs own the land to the south of the Chapmans and Hansens. Plaintiff Kenneth Turnbaugh asserted that he had used the controverted strip on a regular basis as a road for ingress to and egress from his property from 1986 until it was blocked in 1995.

Plaintiffs filed this action for a judgment declaring that the easement referred to in the plat was presently available for use by the public. The Chapmans and Hansens counterclaimed against plaintiffs Kenneth Turnbaugh and James Norwood for trespass.

Following a bench trial, the trial court determined that the plat granted a reservation for the benefit of the county. The trial court further concluded that the "future access easement" did not constitute a public road until "called up" by the county through a finding of need and necessity.

The trial court dismissed the claim of trespass against plaintiff Norwood and entered a C.R.C.P. 54(b) certification to permit plaintiffs to appeal the declaratory judgment before the trespass claim against plaintiff Turn-baugh is resolved.

I.

Plaintiffs contend the trial court erred in determining that the "future access easement" is not available for public use. We agree.

We review the legal conclusions of the trial court de novo. Jagow v. E-470 Public Highway Authority, 49 P.3d 1151 (Colo.2002). However, where supported by the record, the court's factual findings will not be disturbed upon appeal. Board of County Commissioners v. City & County of Denver, 40 P.3d 25 (Colo.App.2001).

A.

We must first determine the nature of the property interest created by the plat. The threshold question is whether a property interest was validly transferred from the sub-divider of the property to the county. We conclude that it was.

Dedication is the appropriation of an interest in land by the owner of such interest to public use. Hand v. Rhodes, 125 Colo. 508, 245 P.2d 292 (1952).

Dedication of land to a county may be accomplished only through common law dedication because Colorado statutory procedures apply only to cities and towns. See § 31-23-1074, C.R.S.2002; Board of County Commissioners v. Sherrill, 757 P.2d 1085 (Colo.App.1987).

Common law dedication requires that (1) the property owner unequivocally intended to dedicate the property and (2) the governmental authority accepted the dedication. City of Northglenn v. City of Thornton, 193 Colo. 536, 569 P.2d 319 (1977).

Here, the trial court found that the subdivider intended to grant the property to the county for a future access road. Furthermore, the trial court found that such property was accepted by the county when it subsequently approved the plat. Both of these conclusions are supported by a reading of the plat and the evidence in the record.

Accordingly, we conclude that the phrase "reserved for 60' future access easement" dedicated an interest in the property to the county.

B.

We next must determine the type of interest dedicated to the county. We conclude that the county was granted an easement for the development of a future road.

Contrary to the trial court's conclusion, the county was not conveyed a "reservation" through the dedication.

A reservation by a grantor creates and reserves to that grantor some right or interest in the property conveyed. McCormick v. Union Pacific Resources Co., 14 P.3d 346 (Colo.2000). A new property interest is thereby created for the benefit of the grant- or. Lincoln Savings & Loan Ass'n v. State, 768 P.2d 733 (Colo.App.1988).

Here, the property interest was not reserved by the subdivider to himself. Instead, the interest was dedicated to the county.

However, common law dedication grants a local government an easement to use the land for purposes described in the plat. See Near v. Calkins, 946 P.2d 537 (Colo.App.1997); City of Greenwood Village v. Boyd, 624 P.2d 362 (Colo.App.1981).

Furthermore, contrary to the trial court's order requiring further action for the interest to vest, vesting occurs when the dedication is complete. See Martini v. Smith, 42 P.3d 629 (Colo.2002); City & County of Denver v. Publix Cab Co., 135 Colo. 132, 308 P.2d 1016 (1957).

Accordingly, we conclude that the county has a vested easement for the purposes of establishing future access.

C.

Finally, we must determine whether the access easement is currently available for use by the public. We conclude that it is.

Contrary to the trial court's finding, the county is not required to "call up" the easement before it becomes available for public use. Instead, the easement for access vested in the county at the time of acceptance.

Onee a roadway is accepted by a local government and used by the public, its status as a roadway continues until vacation or abandonment. Uhl v. McEndaffer, 123 Colo. 69, 225 P.2d 839 (1950); Leach v. Manhart, 102 Colo. 129, 77 P.2d 652 (1938); Foley v. Terry, 532 P.2d 765 (Colo.App.1974)(not published pursuant to C.A.R. 35(f)).

Furthermore, after acceptance, use of the road by a member of the public is sufficient to establish that a roadway exists. Leach v. Manhart, supra, 102 Colo. at 133, 77 P.2d at 653 (for a roadway to exist, "[ulser is the requisite element, and it may be by any who have occasion to travel over public lands, and if the use be by only one, still it suffices").

Improvement and maintenance by the county is not required for a road to retain its status as a public highway. Uhl v. McEndaffer, supra, 123 Colo. at 74-75, 225 P.2d at 843 (purpose of act creating public roads "would be thwarted if it was held that unless some physical action on the part of the county authorities in developing or improving the work was performed, in time, nonuse could be said to be a vacation or abandonment"); Leach v. Manhart, supra, 102 Colo. at 133, 77 P.2d at 653 ("It is not required that 'work' shall be done on such a road, or that public authorities shall take action in the premises."); Foley v. Terry, supra, 532 P.2d at 766.

Here, the record reflects that the access easement was used by plaintiffs for access to their property. Thus, despite the unimproved nature of the road, when the easement was accepted by the county and used by the public, it became a roadway and open to use by members of the public. Accordingly, a public roadway will exist until it is vacated or abandoned by the county.

II.

The trial court also determined that the future access easement violated the rule against perpetuities. We disagree.

The rule against perpetuities requires that an interest must vest, if at all, not later than twenty-one years after a life in being at the creation of the interest. Perry v. Brundage, 200 Colo. 229, 614 P.2d 362 (1980).

Here, the interest vested in the county when the plat was accepted. Accordingly, we conclude that interest does not violate the rule against perpetuities.

The judgment is reversed. The case is remanded for entry of declaratory judgment in accordance with this opinion.

Judge MARQUEZ and Judge RULAND concur.