author: Judge DAVIDSON.

text:
    Doug T. HOANG, Hieu T. Van, Gregory Storbakken, Joan Storbakken, Allan Walts, and Marsha Walts, Plaintiffs-Appellants, v. Jack D. ARBESS, Defendant-Appellee.
    No. 02CA0417.
    Colorado Court of Appeals, Div. III.
    April 10, 2003.
    Certiorari Denied Dec. 1, 2003.

      Vanatta, Sullan, Sandgrund & Sullan, P.C., Scott F. Sullan, Ronald M. Sandgrund, Joseph F. Smith, Greenwood Village, CO, for Plaintiffs-Appellants.
    White & Steele, P.C., Glendon Laird, John M. Lebsack, Denver, CO, for Defendant-Appellee.

       Justice KOURLIS would grant as to the following issue:
      Whether the court of appeals has’ created a vague, unworkable and unpredictable standard for determining the personal liability of corporate officers by announcing that they may be personally liable if they "cooperate” or are "involved” in the negligent conduct of the corporation, including the conduct of other employees, agents or subcontractors for the corporation.'

   Opinion by

Judge DAVIDSON.

In this residential construction defect case, plaintiffs, Doug T. Hoang, Hieu T. Van, Gregory Storbakken, Joan Storbakken, Allan Walts, and Marsha Walts, appeal from the trial court’s judgment entered on a directed verdict dismissing their claims against defendant, Jack D. Arbess. We reverse and remand.

Plaintiffs purchased homes built by Mon-terra Homes (Powderhorn), LLC, whose members consisted of defendant and other LLC’s. Defendant also was Monterra’s manager. He hired a construction superintendent and some sales and support staff, but used subcontractors to do all the construction.

Plaintiffs’ homes were built on a geological formation known as the Deeply Dipping Bedrock Area. The building sites contain angled layers of Pierre Shale and other soils that, when exposed to water, expand and exert pressure on surface structures. These expansive soils and the upturned bedrock require special construction techniques to lessen the risk of the soils damaging homes built on the land.

Defendant had not previously built homes in Colorado and was unfamiliar with the risks of expansive soils. He hired a soils engineer to provide engineering recommendations and a structural engineer to implement those recommendations. The soils engineer advised defendant in person and in a written report of the dangers of building in the area and recommended specific construction and landscaping techniques to mitigate those risks.

The homes were not constructed in accordance with these engineering and landscape recommendations and, as a result, suffered serious damage. Plaintiffs presented evidence that although they were told that their homes were built on expansive soils, they were not told of the specific geological conditions of their land and were told that Monter-ra constructed the homes to avoid damage from the expansive soils.

Plaintiffs brought suit against Monterra and defendant for negligence, negligent misrepresentation, negligent nondisclosure or concealment, and violation of the disclosure requirements of § 6-6.5-101, C.R.S.2002, and of the Colorado Consumer Protection Act. Monterra and defendant brought a third-party claim against the structural engineer.

After presentation of all the evidence, the court directed a verdict in favor of defendant on all claims, finding that the evidence revealed no circumstances which would deny defendant the protection of the corporate structure. The court found that defendant acted only as a corporate employee and that the facts did not create a legal duty with regard to defendant individually.

The jury found in favor of plaintiffs and against Monterra and awarded significant damages to each homeowner. The jury also found the structural engineer negligent, but found Monterra completely liable for the damages.

Plaintiffs appeal from the directed verdict in favor of defendant, arguing that, contrary to the trial court's ruling, defendant can be held individually liable for his negligent conduct and for statutory violations. We agree with plaintiffs.

I.

As a threshold matter, we deny defendant’s motion to dismiss this appeal and reject defendant’s contention that plaintiffs waived their right to appeal by relying on the court’s directed verdict during a subsequent garnishment proceeding.

Plaintiffs have pursued their judgment against Monterra through a garnishment proceeding against Monterra’s insurer. In the garnishment proceeding, the insurer contended that because Monterra “expected or intended” the damages to occur, its policy provided no coverage. As part of their argument for coverage, plaintiffs suggested to the trial court that, because the court had directed a verdict in favor of defendant on plaintiffs’ negligence claim, the court necessarily found that defendant did not act intentionally or, in the words of the insurance policy, did not “expect or intend” damages to occur. And, as plaintiffs’ reasoning went, if defendant, Monterra’s sole actor, did not expect or intend damages to occur, neither did Monter-ra.

Defendant argues here that plaintiffs received a benefit from the directed verdict by relying on it in making this argument and have therefore waived their appeal of that verdict. We are not persuaded.

Accepting an award or legal advantage under a judgment generally waives a party’s right to appeal that judgment when the appeal may result in a determination that the party is not entitled to what has been accepted. The doctrine precludes a party who accepts a legal advantage under a judgment from seeking review “which may again put in issue his right to the benefit which he has accepted.” HealthONE v. Rodriguez, 50 P.3d 879, 886-87 (Colo.2002)(quoting Farmers Elevator Co. v. First Nat’l Bank, 181 Colo. 231, 234, 508 P.2d 1261, 1263 (1973)); see DiFrancesco v. Particle Interconnect Corp., 39 P.3d 1243 (Colo.App.2001).

However, plaintiffs’ reliance on the court’s directed verdict as a basis for a legal argument in the garnishment proceeding is not an “award or legal advantage” under the judgment.

Formulating a legal argument from a court’s ruling, without more, is not a tangible benefit and is not the kind of legal advantage contemplated by the waiver principle. See DiFrancesco v. Particle Interconnect Corp., supra; First Nat’l Bank v. Theos, 794 P.2d 1055 (Colo.App.1990). Here, defendant does not contend that the garnishment court relied on plaintiffs’ argument in deciding that Monterra did not expect or intend damages to occur. Indeed, the court’s ruling does not include any such reasoning.

Moreover, plaintiffs’ successful appeal will have no effect on either the verdict against Monterra or plaintiffs’ ability to collect from the insurer through the garnishment proceeding. Plaintiffs raise no argument in this appeal that defendant expected or intended damages to occur; all of plaintiffs’ claims against defendant sound in negligence. See Hecla Mining Co. v. N.H. Ins. Co., 811 P.2d 1083 (Colo.1991)(reeovery will be barred only if the insured intended the damages, or if it can be said that the damages were, in a broader sense, “intended” by the insured because the insured knew that the damages would flow directly and immediately from its intentional act).

II.

Plaintiffs contend that the trial court erred by directing a verdict in favor of defendant on their claims for negligence, negligent misrepresentation, and negligent nondisclosure. Specifically, plaintiffs argue that, contrary to the trial court’s ruling, it was for the jury to determine whether defendant is liable for his own individual torts. Defendant argues that, as a matter of law, only Monterra, and not defendant acting in his capacity as a corporate manager or officer, had a duty to the home purchasers. We agree with plaintiffs.

A builder has a duty to use reasonable care and skill in construction of a home, and the failure to do so constitutes negligence. See Cosmopolitan Homes Inc. v. Weller, 663 P.2d 1041, 1042, 1043 (Colo.1983)(“An obligation to act without negligence in the construction of a home is independent of contractual obligations such as an implied warranty of habitability.” “A contractual obligation gives rise to a common law duty to perform the work subject to the contract with reasonable care and skill.”).

The issue here is whether such a duty applies to defendant. While an officer of a corporation cannot be held personally liable for a corporation’s tort solely by reason of his or her official capacity, an officer may be held personally liable for his or her individual acts of negligence even though committed on behalf of the corporation, which is also held liable. Snowden v. Taggart, 91 Colo. 525, 531, 17 P.2d 305, 307 (1932)(“To permit an agent of a corporation, in carrying on its business, to inflict wrong and injuries upon others, and then shield himself from liability behind his vicarious character, would often both sanction and encourage the perpetration of flagrant and wanton injuries by agents of insolvent and irresponsible corporations.”); see Sanford v. Kobey Bros. Constr. Corp., 689 P.2d 724 (Colo.App.1984)(corporate representative found jointly and severally liable for construction defects he authorized). The parties do not dispute that this .principle applies equally to a manager of a limited liability company. See generally § 7-80-101, et seq., C.R.S.2002; Thompson, The Limits of Liability in the New Limited Liability Entities, 32 Wake Forest L.Rev. 1, 21 (1997).

Moreover, that a defendant is at all times acting on behalf of the corporation does not relieve the defendant of liability. See Galie v. RAM Assocs. Mgmt. Servs., Inc., 757 P.2d 176 (Colo.App.1988); Sanford v. Kobey Bros. Constr. Corp., supra. And the corporate veil need not be pierced where a tort action is brought against an officer or director and the elements of the tort are proved. See Sanford v. Kobey Bros. Constr. Corp., supra; Huffman v. Poore, 6 Neb.App. 43, 569 N.W.2d 549 (1997).

Defendant nonetheless contends that, even if under some circumstances a corporate officer can be held personally liable for his or her torts, here, the court correctly found insufficient evidence that he, as an individual, participated in the torts alleged. We disagree.

To be found personally liable to third persons for a tort, the officer of a corporation must have participated in the tort. See Snowden v. Taggart, supra (defendant was chief tortfeasor; he personally conceived the plan and participated in its execution); Sanford v. Kobey Bros. Constr. Corp., supra (defendant personally and solely authorized the specific negligent construction); Klockner v. Keser, 29 Colo.App. 476, 488 P.2d 1135 (1971)(corporate directors or officers approved or sanctioned fraudulent misrepresentation).

However, courts vary in their views as to the necessary level of participation. At a minimum, personal liability attaches to a defendant who was directly involved in the conduct through conception or authorization. See Snowden v. Taggart, supra; Sanford v. Kobey Bros. Constr. Corp., supra. Other direct involvement, such as active participation or cooperation, specific direction, or sanction of the conduct, also may be sufficient. See Am. Airlines v. Christensen, 967 F.2d 410 (10th Cir.1992)(applying Utah law; defendants directed or actively participated in the corporate defendants’ activities, and their tortious conduct pervaded the business); Lobato v. Pay Less Drug Stores Inc., 261 F.2d 406, 409 (10th Cir.1958)(applying New Mexico law; “[sjpecific direction or sanction of, or active participation or cooperation in, a positively wrongful act of commission or omission which operates to the injury or prejudice of the complaining party is necessary to generate individual liability in damages of an officer or agent of a corporation for the tort of the corporation”). See generally 3A William Meade Fletcher et al., Fletcher Cyclopedia of the Law of Private Corporations §§ 1134-1137, at 199-219 (perm.ed., rev.vol.l998)(corporate officer responsibility doctrine; if corporate officer participates in wrongful conduct, or knowingly approves conduct, both officer and corporation are jointly liable for the penalties).

Whether defendant approved of, directed, actively participated in, or cooperated in the negligent conduct is a question of fact for the jury. See Grothe v. Helterbrand, 946 S.W.2d 301 (Mo.Ct.App.1997)(court views evidence in light most favorable to plaintiff to determine individual’s involvement); Wolfe v. Wilmington Shipyard, Inc., 135 N.C.App. 661, 522 S.E.2d 306 (1999)(same); cf. Sewell v. Pub. Serv. Co., 832 P.2d 994 (Colo.App.1991)(foreseeability is factual question for jury).

Although, as defendant correctly points out, whether a court should recognize a legal duty in a particular situation is a question of law, see Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo.1987), the issue here is whether a recognized duty, the use of reasonable care in home construction, applies to defendant as a matter of fact pursuant to the corporate officer responsibility doctrine.

Hence, a directed verdict would be proper only if, after viewing the evidence in the light most favorable to plaintiffs and considering every reasonable inference therefrom, reasonable persons could not disagree that the outcome should be for defendant. See Dann v. Perrotti & Hauptman Dev. Co., 670 P.2d 448 (Coio.App.1983).

Here, viewed in the light most favorable to plaintiffs, we conclude the evidence was sufficient to show that defendant approved of, directed, actively participated in, or cooperated in the negligent conduct. For example, plaintiffs presented evidence that defendant was personally involved in each step of the construction, chose the individual home sites, oversaw the subcontractors, set policies and procedures for the subcontractors to follow, and visited the construction sites at least once a week.

Furthermore, there was evidence that defendant knew or should have known the construction techniques implemented did not meet the recommendations by the soils engineer. See Snowden v. Taggart, supra (defendant knew or should have known that the bonds were worthless). Defendant and the soils engineer testified that they met and discussed the specific problems created by the expansive soils, the risks involved, and the construction techniques required. The soils engineer testified that he told defendant about the risks of building in the area, proposed various construction techniques to minimize these risks, and suggested that defendant might want to build elsewhere.

Although defendant testified that he relied on the structural engineer to properly implement the necessary techniques and that he did not know the structural engineer failed to do so, plaintiffs presented evidence showing that defendant should have known the techniques were not being implemented. Defendant also agreed that he had a responsibility to identify any discrepancies between the construction techniques and the soils engineering recommendations and to instruct the subcontractors to correct the problems. And defendant testified that contrary to the soils report recommendations, he did not retain the soils engineering company during the foundation construction.

Plaintiffs also presented evidence that defendant directly disregarded some of the soils engineer’s recommendations.. Defendant agreed that, in violation of the soils engineer’s recommendations, he elected to construct the garage floors 'without a special design and to plant bluegrass and install sprinkler systems around each home.

Thus, there was sufficient evidence presented that defendant knew or should have known that the homes and their landscaping were constructed improperly. Hence, the issue of defendant’s negligence should not have been taken from the jury by directed verdict.

Similarly, regarding the claims for negligent misrepresentation and negligent nondisclosure and concealment, plaintiffs presented sufficient evidence that defendant approved of, directed, actively participated in, or cooperated in the representations made to the purchasers. Defendant testified that he oversaw 'the activities of Monterra’s sales, people, told them how to conduct sales activities, made decisions regarding the information that was disclosed, and directed them to tell prospective buyers that as long as the homes were properly maintained, their engineering would prevent the risk of expansive soils.

Again, - defendant contends that he did not know the construction techniques used were insufficient to protect against the expansive soils and thus did not negligently misrepresent to the purchasers that they were. However, plaintiffs presented evidence that defendant should have known the sales representations were false. Cf. Burman v. Richmond Homes Ltd., 821 P.2d 913 (Colo.App.1991)(plaintiffs did not present evidence of negligent representation because they failed to provide evidence that defendant knew or should have known what true taxes would have been). Evidence also was presented that defendant knew that the soils engineering report recommended that lawns and sprinkler irrigation systems should not be installed at the homes afid that the representations made to the homeowners stated that lawns and sprinklers were acceptable.

We reject defendant’s contention that plaintiffs’ questioning of him addressed only decisions made by Monterra, rather than any made by him as an individual. The record indicates that the questioning efficiently addressed defendant’s actions both as an individual and as a representative of the corporation. That a defendant’s tortious acts are done on behalf of the corporation does not relieve the defendant of liability. See Galie v. RAM Assocs. Mgmt. Servs., Inc., supra; Sanford v. Kobey Bros. Constr. Corp., supra.

III.

Plaintiffs also contend that the trial court erred in granting a directed verdict and dismissing their claims under the Consumer Protection Act. We agree.

Individual liability of corporate officers and agents is proper under the Consumer Protection Act. This principle applies to an officer of an LLC, such as defendant here. The Act states, “The provisions of this article shall be available in a civil action for any claim against any person who has engaged in or caused another to engage in any deceptive trade practice listed in this article.” Section 6-1-113(1), C.R.S.2002 (emphasis added). Moreover, “person” is defined as “an individual, corporation, business trust, estate, trust, partnership, unincorporated association, or two or more thereof having a joint or common interest, or any other legal or commercial entity.” Section 6-1-102(6), C.R.S. 2002 (emphasis added); see also People ex rel. MacFarlane v. Alpert Corp., 660 P.2d 1295 (Colo.App.1982).

Again, plaintiffs presented evidence that defendant knew or should have known the construction techniques implemented were insufficient to protect against damage from expansive soils and that, therefore, defendant should not have directed the sales persons to represent otherwise. See § 6-l-105(l)(g), C.R.S.2002 (person engages in deceptive trade practice when he represents “that goods, food, services, or property are of a particular standard, quality, or grade, or that goods are of a particular style or model, if he knows or should know that they are of another”).

Moreover, plaintiffs presented evidence that defendant failed to disclose to prospective homebuyers that certain landscaping techniques would damage the homes and that defendant believed the homes would be more attractive with landscaping that varied from the requirements. See § 6-l-105(l)(u), C.R.S.2002 (deceptive trade practices include “[fjailure to disclose material information concerning goods, services, or property which information was known at the time of an advertisement or sale if such failure to disclose such information was intended to induce the consumer to enter into a transaction”).

IV.

Plaintiffs included a claim under § 6-6.5-101, which requires that a developer, builder, or representative supply the purchaser with certain information regarding soil conditions and building and maintenance methods. We agree with plaintiffs that this section applies to an individual acting on behalf of a corporate developer, and hence, the trial court should not have dismissed the claim on this basis. See Sprung v. Adcock, 903 P.2d 1224 (Colo.App.1995)(individual contractor fined under § 6-6.5-101).

V.

Defendant next contends that there are alternative grounds for dismissal of the claims against him. We reject both grounds.

A.

Defendant contends that plaintiffs failed to set forth the appropriate standard of care. Specifically, defendant argues that plaintiffs’ expert witness testified only as to the standard applicable to Monterra, and not to defendant individually. We disagree.

Here, plaintiffs’ expert testified to the standard of care applicable to “builders” in Colorado. Although, on occasion, plaintiffs’ counsel specifically asked the expert questions regarding “Monterra Homes,” we disagree with defendant that this testimony was inadequate to establish the standard of care applicable to an individual builder.

The same standard of care that applies to a corporation also applies to an officer, manager, or agent of a corporation who individually approves, directs, or actively participates or cooperates in the negligent conduct. See Snowden v. Taggart, supra; Sanford v. Kobey Bros. Constr. Corp., supra.

As discussed, plaintiffs presented ample evidence for a jury to conclude that defendant approved of, directed, participated in, and cooperated with the negligent conduct.

In any event, expert witness testimony is not necessary to establish a builder’s standard of care. See Howard v. Wood Bros. Homes Inc., 835 P.2d 556 (Colo.App.1992)(re-jecting argument that directed verdict was proper where no expert testimony was presented as to the standard of care of residential home builder), aff'd in part and rev’d in part, 862 P.2d 925 (Colo.1993); Calvaresi v. Nat’l Dev. Co., 772 P.2d 640 (Colo.App.1988)(expert testimony on standard of care not required where evidence was undisputed that real estate developers failed to investigate possibility of subsidence or disclose existence of mine to purchasers of lots).

Also, defendant admitted that his standard of care would be to read carefully and to follow the recommendations of the soils engineer, that he had ultimate responsibility to identify discrepancies in the construction, and that he had an obligation to construct homes in a good and workmanlike manner so they would be habitable and suitable for their intended purpose.

B.

We disagree with defendant that the trial court erred by failing to require plaintiffs to specify which damages were caused by Monterra and which were caused by defendant individually. This function is properly left to the jury. See DeBose v. Bear Valley Church of Christ, 890 P.2d 214 (Colo.App.1994), rev’d on other grounds, 928 P.2d 1315 (Colo.1996).

The judgment is reversed, and the case is remanded with directions to reinstate the claims for relief against defendant and for further proceedings consistent with this opinion.

Judge ROY and Judge WEBB concur.


source: Caselaw Access Project

author: Judge ROY.

license: Public Domain

text:
    FRIENDS OF THE BLACK FOREST REGIONAL PARK, INC., a Colorado nonprofit corporation; Dennis Hartley and Deborah Hartley, individually; James Fine and Jennifer Fine, individually; and Raymond A. Miller and Cynthia L. Miller, individually, Plaintiffs-Appellees, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF EL PASO, Defendant-Appellant, and Concerning Kings Deer Development, LLC, a Colorado limited liability company, Intervenor-Appellant.
    No. 01CA2253.
    Colorado Court of Appeals, Div. III.
    April 24, 2003.
    Certiorari Denied Dec. 1, 2003.

      Sparks Willson Borges Brandt & Johnson, P.C., Kenneth Sparks, Stephen A. Hess, Colorado Springs, Colorado, for Plaintiffs-Ap-pellee.
    Michael A. Lucas, County Attorney, Jay A. Lauer, Assistant County Attorney, Colorado Springs, Colorado, for Defendant-Appellant.
    Anderson, Dude & Lebel, P.C., Lenard Rioth, Bennie H. South, Colorado Springs, Colorado, for Intervenor-Appellant.
   Opinion by

Judge ROY.

Defendant, Board of County Commissioners of the County of El Paso, Colorado (county), and intervenor, Kings Deer Development, LLC (developer), appeal the trial court’s judgment in favor of plaintiffs, Friends of the Black Forest Regional Park, Inc., Dennis and Deborah Hartley, James and Jennifer Fine, and Raymond and Cynthia Miller. We affirm.

This case concerns a determination of the permitted uses of property described as the W 1/2 of the SW 1/4 of Section 12, Township 12 South, Range 66 West of the 6th P.M. (subject property), which is the south portion of the El Paso County Black Forest Regional Park (the park).

The first issue is whether a prior owner of the subject property created a road easement thirty feet in width along the west section line of Section 12 (the road easement). We conclude that the road easement does not exist. The second issue is whether the use of the subject property is restricted by 16 U.S.C. § 484a (2002)(the Sisk Act), so as to prevent the construction of a road through and across it. We conclude that the Sisk Act prohibits construction of the road.

In 1919, a lumber company owned all the pertinent parts of Sections 1, 2, 11, and 12. These four sections form a square, with the northeast quarter being Section 1, the northwest quarter being Section 2, the southwest quarter being Section 11, and the southeast quarter being Section 12. Section 10 is immediately west of Section 11 and the described square. The county road network does not penetrate the square.

In 1921, the lumber company conveyed Section 11 and other lands by a deed that contained the following pertinent language:

[I]t is expressly understood and agreed between the parties hereto that this conveyance is made subject to a right of way over and across a strip of land thirty (30) feet wide on each side of each section line, said right of way being reserved for use as a future roadway for the benefit of the owners of the tract and owners of adjoining tracts in these sections and adjacent sections, with the intent hereof being to have section lines available for road purposes as occasion demands....

The other lands conveyed in the 1921 deed included both sides of the section lines between Sections 1 and 2 and Sections 2 and 11 along their entire lengths and both sides of the section line between Sections 10 and 11 along its southerly portion.

In 1932, the lumber company conveyed the subject property by a deed that stated, inter alia, the conveyance was “subject to right of way for road purposes along section lines.” Eventually the subject property was conveyed to the United States Forest Service (USFS) in 1944.

In the 1970s, pursuant to a special use permit from the USFS, the county began using the subject property and adjacent county property as the park. The permit stated nine specific purposes for which the subject property could be used, which included roadway and other park purposes. The county installed park facilities.

In 1999, the USFS conveyed the subject property to the county subject to the pertinent limitations of the Sisk Act, which applies to exchanges of forest service lands and states:

Whenever an exchange of land is proposed by a ... county ... [pursuant to] authority ... under which the Secretary of Agriculture is authorized to exchange national forest lands or other lands administered by the Forest Service, [the exchange may be completed upon certain conditions] .... The provisions of this section shall not be applicable to the conveyance in exchange of more than eighty acres to any one ... county .... Lands may be conveyed to any ... county ... pursuant to this section only if the lands were being utilized by such entities on January 12, 1983. Lands so conveyed may be used only for the purposes for which they were being used pñor to conveyance.

16 U.S.C. § 484a (emphasis added).

The terms of the deed from the USFS to the county stated, in pertinent part:

SUBJECT TO the limitations pursuant to the authority of Sec. 8(b) of the Act of January 12, 1983 (96 Stat. 2535), which amended the Act of December 4, 1967 (82 Stat. 531) and states: “lands may be conveyed to any State, County, or municipal government pursuant to this Act only if the lands were being utilized by such entities on the date of the enactment of this sentence. Lands so conveyed may be used only for the purposes for which they were being used prior to the conveyance. Therefore, Grantee agrees and covenants that the above-described land will be used for local government purposes in perpetuity ....

(Emphasis added.)

Developer now owns all, or substantial portions of, Sections 1 and 2. Friends of the Black Forest Regional Park, Inc., is a nonprofit corporation composed of individuals who own property near the park.

An improved gravel road has been constructed on a thirty-foot easement along the east section line of Section 11, which serves residences on unplatted lots in that section and also provides access to the park facilities on the subject property. The validity of that easement is, apparently, the subject of a separate proceeding. No road has been constructed on the road easement at issue here except for slight encroachments by the road constructed in Section 11.

Developer wants to develop portions of Sections 1 and 2, and it requested that the county grant access from the south using the full sixty-foot easement along the section line between sections 11 and 12 for approximately 1650 feet. The access then would proceed north-north-east through the subject property and departs from it approximately 450 feet east of the west section line. The road would then proceed through the north portion of the park to developer’s property.

Because of their concerns that the new road would create heavy traffic through the subject property, plaintiffs brought a declaratory judgment action to determine whether the road would violate the deed limitations set forth in the USFS deed to the county and the Sisk Act and whether the road easement was valid. Plaintiffs obtained a temporary restraining order to stay the zoning proceedings pending the outcome of this litigation.

Subsequently, the parties stipulated that the zoning process would proceed, but road construction would not commence pending the outcome of this litigation. The county approved the development plan with the road as proposed. Plaintiffs then amended their complaint by adding a C.R.C.P. 106(a)(4) claim for judicial review of the county’s rezoning decision.

The county filed a motion to dismiss asserting that plaintiffs lacked standing, that the administrative proceedings were plaintiffs’ sole remedy, and that plaintiffs had failed to join indispensable parties. Developer intervened in support of the county and argued that the Sisk Act did not apply to the transfer from the United States to the county or alternatively that the Sisk Act did not prohibit the extension of the road for access to the subject property. The trial court denied both motions to dismiss.

Developer then filed a motion for summary judgment on the issue of whether the 1921 deed created the road easement. Plaintiffs filed opposing briefs and then, at the trial court’s request, filed their own motion for summary judgment arguing that the language of the deed did not create the road easement.

The trial court ruled that plaintiffs had standing to contest the validity of the easement and that the 1921 deed did not create the road easement. The trial court also ruled that the subject property was conveyed pursuant and subject to the Sisk Act and further concluded that the USFS was not a necessary party. As to the C.R.C.P. 106(a)(4) claim, the trial court later concluded that the county did not exceed its jurisdiction or abuse its discretion in approving developer’s zoning request and access through the subject property.

However, after a trial on the application of the Sisk Act, the trial court concluded that the Act prohibited construction of a road through the subject property and that developer did not have standing to argue otherwise.

This appeal followed.

I.

We first address the trial court’s ruling on plaintiffs’ declaratory judgment claim. Developer contends that the trial court’s conclusion on the C.R.C.P. 106(a)(4) claim that the county did not exceed its jurisdiction or abuse its discretion in approving the rezoning and access road is the law of the case and that the trial court could not subsequently reach a contrary conclusion in the declaratory judgment action pertaining to the application of the Sisk Act. The county contends that a C.R.C.P. 106(a)(4) action was plaintiffs’ exclusive remedy. We disagree with both contentions.

Generally, the exclusive remedy for one challenging a rezoning is judicial review pursuant to C.R.C.P. 106(a)(4). However, in certain circumstances, an action for declaratory judgment may proceed contemporaneously with a C.R.C.P. 106(a)(4) action. Norby v. City of Boulder, 195 Colo. 231, 577 P.2d 277 (1978). In addition, a declaratory judgment action is allowed to resolve a dispute as to the applicability of a statute. Section 13-51-106, C.R.S.2002; see Denver & Rio Grande Western R.R. v. City & County of Denver, 673 P.2d 354 (Colo.1983).

C.R.C.P. 106(a)(4) allows the court to review an administrative agency’s decision to determine whether the agency acted outside its jurisdiction or abused its discretion.

Here, plaintiffs sought review of the county’s decision to approve developer’s request for rezoning and for access across the subject property. With respect to a land use decision, the county’s jurisdiction extends only to the construction and application of its own ordinances, regulations, and procedures and such matters as may be specifically delegated to it by the state or federal governments. The county’s jurisdiction does not extend to, inter alia, the construction and applicability of other statutes, regulations, procedures, covenants, reservations, or conditions that may impact the use of the land. Thus, the trial court’s review of the county’s rezoning decision would not resolve the Sisk Act or easement issues or preclude a later declaratory judgment with respect thereto.

Here, plaintiffs requested that the trial court determine the validity of the road easement and implications of the Sisk Act, a federal statute. Thus, plaintiffs’ declaratory judgment action was proper on these issues.

Accordingly, we conclude that the trial court properly considered plaintiffs’ declaratory judgment action.

II.

Developer contends that plaintiffs do not have standing to challenge the validity of the road easement. We disagree.

As standing concerns a court’s subject matter jurisdiction, we review the trial court’s determination de novo. City of Boul der v. Public Service Co., 996 P.2d 198 (Colo.App.1999).

Standing is a jurisdictional prerequisite that requires a named plaintiff to bring suit only to protect a cognizable interest. A plaintiff has standing if he or she has an “injury in fact” and that injury is to a “legally protected interest.” Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977). The injury in fact test does not require that the plaintiff demonstrate an economic injury. Instead, harm to intangible values is sufficient.

Although Colorado standing jurisprudence does not duplicate the federal law, similar considerations underlie both, and Colorado courts frequently consult federal cases as persuasive authority on standing. City of Greenwood Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427 (Colo.2000). Thus, we consider federal precedent to determine whether plaintiffs’ injury was sufficient.

The United States Supreme Court has held that aesthetic and ecological interests are sufficient to grant standing to a plaintiff. Sieyra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); see also Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172 (9th Cir.2000)(finding that plaintiffs asserting environmental and aesthetic interests in public lands had standing to challenge an anticipated land exchange under the Federal Land Policy and Management Act, even before the exchange occurred). The Colorado Supreme Court has also recognized aesthetic and ecological interests as sufficient to for standing purposes. See Greemvood Village v. Petitioners for Proposed City of Centennial, supra.

Further, the United States Supreme Court recently explained the “legally protected interest” prong of the standing requirement: “The proper inquiry is simply ‘whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected ... by the statute.’ ” National Credit Union Administration v. First National Bank & Trust Co., 522 U.S. 479, 492, 118 S.Ct. 927, 935, 140 L.Ed.2d 1 (1998)(quoting Ass’n of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970)). Unnecessary or premature decisions of constitutional questions should be avoided, and parties actually protected by a statute or constitutional provision are generally best situated to vindicate their own rights. See Greenwood Village v. Petitioners for Proposed City of Centennial, supra.

Here, the primary plaintiff is a nonprofit corporation organized to preserve and enhance the park and protect the interests of its neighbors. The individual plaintiffs are owners of property adjoining the park. Plaintiffs have alleged that if the county allows a road to go through the subject property partly on the easement, the road would adversely affect the aesthetics of the park and erode the property values of adjoining landowners. The interests that plaintiffs seek to protect are sufficient to establish an injury in fact. See Greenwood Village v. Petitioners for Proposed City of Centennial, supra.

Cases cited by developer on the standing issue are inapposite. For example, Title Guaranty Co. v. Harmer, 163 Colo. 278, 430 P.2d 78 (1967), holding that a party cannot assert rights to an easement created by an instrument to which it is a stranger, does not apply here because the easement at issue in this case is on public, not private, land. Where, as here, the land is public, an organization whose members have, or individuals who have, rights to be on the land and use the land may bring a suit if those protected rights are in jeopardy. See Desert Citizens Against Pollution v. Bisson, supra.

Moreover, Brotman v. East Lake Creek Ranch, L.L.P., 31 P.3d 886 (Colo.2001), is distinguishable. In Brotman, the supreme court concluded that the plaintiff did not have an imminent injury in fact because he sought to enjoin the performance of an agreement between a landowner and the agency that might create an interference with the land. Here, the construction of the road through the subject property would harm plaintiffs’ aesthetic, ecological, and property interests. This direct injury satisfies the standing requirement.

Accordingly, the trial court did not err in concluding that plaintiffs have standing to challenge the validity of the road easement.

III.

Developer next contends that the trial court erred when it concluded that there is no road easement. We disagree.

We review the district court’s order granting plaintiffs’ motion for summary judgment de novo. See Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995).

Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c). Summary judgment is appropriate when there is no doubt concerning material facts. See Roderick v. City of Colorado Springs, 193 Colo. 104, 563 P.2d 3 (1977). All doubts as to the existence of an issue of material fact must be resolved against the moving party. See Ridgeway v. Kiowa School District C-2, 794 P.2d 1020 (Colo.App.1989).

A.

Developer first argues that plaintiffs are precluded from arguing that an easement does not exist because the county, as owner of the subject property, admitted its existence. In addition, based on the county’s admission, developer argues that it has an easement by estoppel. We disagree.

The county admitted the existence of the road easement in response to developer’s requests for admissions. Developer argues that because the county’s admissions may provide the trial court with evidence for summary judgment and the county did not respond to developer’s motion for summary judgment, the county did not meet its burden of proof. See C.R.C.P. 56(e) (if there is no response to opposing party’s affidavits, then summary judgment, if appropriate, shall be entered). Thus, according to developer, the trial court should have granted its motion for summary judgment, and plaintiffs are es-topped from asserting that an easement does not exist.

Developer is arguing that it and the county are opposing parties and the county’s admission is controlling against plaintiffs, a third party. Although C.R.C.P. 36(b) regarding admissions states that “[a]ny matter admitted under this Rule is conclusively established,” we find persuasive the reasoning interpreting the corresponding federal rule that precludes the application of such “admissions” to a third party. The federal approach avoids the danger of collusion between parties and allows the third party a proper adjudication on the merits. See Kittrick v. GAF Corp., 125 F.R.D. 103 (M.D.Pa.1989); see also C. Wright, A. Miller & R. Marcus, Federal Practice and Procedure § 2264, at 741 (1970)(“Admissions obtained under Rule 36 may be offered in evidence at the trial of the action, but they are subject to all pertinent objections to admissibility that may be interposed at trial.... It is only when the admission is offered against the party who made it that it comes within the exception to the hearsay rule for admissions of a party opponent.”).

Here, both the county and developer favor the construction of the road and seek the same result. When the court suggested that developer might not have standing to assert an argument, the county initially asserted the developer’s argument. Thus, the reason for the above noted interpretation of the federal rule — to prevent collusion between parties — clearly applies here.

Moreover, an admission must be offered against the party who made it. CRE 801. Here, the county’s “admission” that an easement exists is not against its interests. It rezoned developer’s property, approved the extension and construction of the road, and asserts arguments supportive of developer and in favor of the road.

Further, an easement was not created by estoppel. A court can imply an easement created by estoppel when:

1) [T]he owner of the servient estate “permitted another to use that land under circumstances in which it was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked,” 2) the user substantially changed position in reasonable reliance on that belief, and 3) injustice can be avoided only by establishment of a servitude. Whether reliance is justified depends upon the nature of the transaction, including the sophistication of the parties.

Lobato v. Taylor, 71 P.3d 938, 2002 WL 1360432 (Colo. No. 00SC527, June 24, 2002) (citation omitted; quoting Restatement (Third) of Property: Servitudes § 2.10 (1998)).

Developer argues that it reasonably relied on the county’s admissions and statements concerning the existence of the road easement and its actual use when it planned its development. However, we conclude that developer’s reliance was, as a matter of law, unreasonable.

In our view, the county cannot convey its property, or any interest therein, by admissions made by the county attorney in litigation. That is, assuming for purposes of discussion that the right of way on the subject property did not previously exist, the county’s response to requests for admissions through its attorney cannot create an adverse interest in county-owned property. Nor, we conclude, can a letter sent from the county’s par'k planner to the USFS, which requests permission to relocate an entrance road and refers to the road easement, grant such an easement or convey or create an interest in county-owned property. See §§ 30-11-101 to -103, C.R.S.2002; see also Martini v. Smith, 18 P.3d 776 (Colo.App.2000), aff'd, 42 P.3d 629 (Colo.2002).

Nor, in our view, does the acquiescence, if any, of the county in the slight and occasional encroachments onto the road easement by the road serving the Section 11 residents create an easement by estoppel as to the entire road easement.

B.

Developer also contends that the trial court erred when it concluded that the road easement was not granted by the 1921 deed. We disagree.

“An easement is a right conferred by grant, prescription, or necessity authorizing one to do or maintain something on the land of another ....” Freeman v. Rost Family Trust, 973 P.2d 1281, 1284 (Colo.App.1999). An easement may be created by reservation in a deed conveying the servient or burdened property to another. See Hornsilver Circle, Ltd. v. Trope, 904 P.2d 1353 (Colo.App.1995). The existence and extent of an expressly created easement are “determined by interpreting the conveyance instrument.” Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1235 (Colo.1998).

Developer argues that the county acquired the subject property burdened by the road easement. It is undisputed that no road easement existed prior to the 1921 deed.

The 1921 deed, which conveyed section 11, stated that the “conveyance is made subject to a right of way over and across a strip of land thirty (30) feet wide on each side of each section line ” (emphasis added).

Initially, we note that this language does not constitute a dedication of an easement to the public. See 7 Thompson on Real Property § 6.03(a)(3) (David Thomas ed.2001); 1 Restatement (Third) of Property: Servitudes § 2.18 (2000). In addition, we note that, historically, the reservation or dedication of easements in a deed in favor of third parties was prohibited. See Michael J. Uhes, PhD., P.C. v. Blake, 892 P.2d 439 (Colo.App.1995).

The deed does not grant an interest in, nor does it indicate that the grantor owned or had an interest in, Section 12, which contains the subject property. Thus, it is not clear from the 1921 deed alone that the lumber company intended or had the authority to encumber Section 12. We cannot determine from the face of the 1921 deed that the lumber company intended to grant the road easement, as it is elementary that it may only grant an easement in or over property which it owns. Burt v. Rocky Mountain Fuel Co., 71 Colo. 205, 205 P. 741 (1922).

Maintaining the integrity of the title supports our conclusion:

The recording act presents a problem where the conveyance of property from A to B contains a grant of an easement to B over land retained by A. In a technical sense, the deed from A to B does not form a part of the direct chain of title to the land retained by A. Many courts have held that a bona fide purchaser is not bound by recorded covenants and restrictions if the same are not found in the direct chain of title. If this rule were applied by analogy to easements, a subsequent bona fide purchaser of the retained parcel in the example above would not have constructive notice of the easement which only appears as part to the conveyance of the dominant estate from A to B.

4 Powell on Real Property § 34.03, at 34-22 (Powell-Rohan ed.2000). Finally, the 1932 deed conveying the subject property is likewise insufficient to grant the road easement. The conveyance in the 1932 deed was “subject to right of way for road purposes along section lines” and does not contain any words of reservation minimally necessary to reserve an easement.

The phrase “subject to” denotes a previously existing interest, not the creation of a new one. We have already concluded that the 1921 deed did not grant the road easement. Our research has disclosed only two eases that hold, or appear to hold, that the phrase “subject to” is sufficient to create an easement. In both instances, unlike here, the roadway had been constructed on the servient estate and used for access to the dominant estates at the time of the grant or reservation. Behm v. Saeli, 560 So.2d 431 (Fla.Dist.Ct.App.1990) (“subject to” is sufficient to create a roadway easement for a road already constructed and used for access to dominant estate); Heigert v. Londell Manor, Inc., 834 S.W.2d 858 (Mo.Ct.App.1992). While the requirement of technical language in creating easements has diminished, we conclude that “subject to,” standing alone, is not sufficient to reserve an easement.

Accordingly, we conclude that the trial court did not err when it concluded that the road easement was not granted.

IV.

Developer next contends that the trial court erred in finding that the Sisk Act’s restrictions are applicable to the park property. We disagree.

The Sisk Act, permits the federal government to exchange land with local governments for land or cash, provided that the lands transferred “may be used only for the purposes for which they were being used prior to conveyance.” The Act only applies to conveyances of eighty acres or less.

Developer argues that because there was uncontroverted evidence that, based upon a recent survey submitted by developer, the subject property consists of 80.5 acres, the restrictions of the Sisk Act do not apply to it. We are not persuaded.

It is undisputed that the exchange deed by which the county acquired the park was authorized by and granted in accordance with the Sisk Act. A United States government survey, which was approved by the Surveyor General’s office in 1866, indicates that Section 12, which contains the subject property, consists of 640 acres, and by aliquot description, the park property contains 80 acres.

It is well established that a survey made by the officers of the United States and confirmed by the land department is not open to challenge by any collateral attack in the courts. Russell v. Maxwell Land-Grant Co., 158 U.S. 253, 15 S.Ct. 827, 39 L.Ed. 971 (1895); Colorado Fuel Co. v. Maxwell Land-Grant Co., 22 Colo. 71, 43 P. 556 (1896). Moreover, government surveys are conclusive as to the land conveyed between the government and private parties. Pueblo of Santa Ana v. Baca, 844 F.2d 708 (10th Cir.1988). Furthermore, the fact that a modern survey may be more accurate than the original government survey “cannot defeat ownership rights flowing from the original grant and the boundaries originally marked off.” United States v. Doyle, 468 F.2d 633, 636 (10th Cir.1972).

Here, the 1866 survey is conclusive, and it is immaterial that a modern measurement indicates that the park consists of 80.5 acres.

In addition, 43 U.S.C. § 752 provides a method for determining the corners, boundaries, and area of public land sections, half sections, and quarter sections, including:

Each section or subdivision of section, the contents whereof have been returned by the [Surveyor General], shall be held and considered as containing the exact quantity expressed in such return; and the half sections and quarter sections, the contents whereof shall not have been thus returned, shall be held and considered as containing the one-half or the one-fourth part, respectively, of the returned contents of the section of which they may make part.

The original survey of Section 12 that was approved by the Surveyor General found Section 12 to consist of 640 acres. Pursuant to § 752, a quarter section would then equal 160 acres, and half a quarter section, like the subject property, would equal 80 acres.

Finally, we agree with the trial court that there is an inherent dichotomy in developer’s argument that the Sisk Act does not apply. On the one hand, if the Sisk Act does not apply because the transfer was too large, then the conveyance to the county was void or is voidable, and the county could not grant permission to developer to construct a road. On the other hand, if the county has the legal power to grant permission to build a road, it must have title to the subject property, which it acquired pursuant to, and subject to the limitations contained in, the Sisk Act.

Accordingly, we conclude that the trial court did not err in concluding that the Sisk Act’s restrictions apply to the park.

V.

We next address developer’s argument that the trial court erred in ruling upon the provisions of the Sisk Act without joining USFS as an indispensable party. We disagree.

Whether a party is indispensable and must be joined is a mixed question of law and fact and must be determined on the facts of each case. Balkind v. Telluride Mountain Title Co., 8 P.3d 581 (Colo.App.2000). C.R.C.P. 19(a) states:

A person who is properly subject to service of process in the action shall be joined as a party in the action if: (1) In his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may: (A) As a practical matter impair or impede his ability to protect that interest....

Not every person who has an interest in issues raised in a particular civil action must be joined as a party to that action. If the interests of the parties before the court may be finally adjudicated without adversely affecting the rights of an absent person, the absent party need not be joined. Rather, “only if ‘an absent person’s interest in the subject matter of the litigation is such that no decree can be entered in the case which will do justice between the parties actually before the court without injuriously affecting the right of such absent person’ is the absent person considered indispensable.” Brody v. Bock, 897 P.2d 769, 778 (Colo.1995)(quoting Woodco v. Lindahl, 152 Colo. 49, 54, 380 P.2d 234, 238 (1963)).

Here, developer limits its argument to the issue of the Sisk Act, not the easements, and does not argue that it would be subject to multiple litigation or conflicting orders.

As previously discussed, developer argued that the Sisk Act’s restrictions do not apply here because the property is 80.5 acres. In response, plaintiffs argued that if the Act does not apply, the conveyance to the county is void, and they requested remedies of rescission and reformation of the deed. Developer then argued that USFS would be an indispensable party if the trial court sought to rescind or reform the deed.

We agree with developer that if plaintiffs had sought rescission or reformation, USFS might well be an indispensable party because its interests would be directly affected. However, the trial court, in denying the motion, stated that it would not entertain claims of recission or reformation, and thus, USFS was not an indispensable party.

As required under C.R.C.P. 19(a), complete relief can be accorded to all parties joined in this litigation. The court may determine whether an easement exists and whether uses of the property comply with the Act without affecting USFS’s interests. In addition, limiting the remedies here does not impede USFS’s ability to protect its own interests in subsequent proceedings if it so desires.

Moreover, unlike in the eases cited by developer, the Sisk Act does not require USFS to enforce the restrictions imposed by the statute, see Sellas v. Kirk, 200 F.2d 217 (9th Cir.1952), or approve any future uses of the park, see Barnes v. United States, 205 F.Supp. 97 (D.Mont.1962).

Accordingly, we conclude, as did the trial court, that USFS was not an indispensable party in this case as it is postured.

VI.

Finally, we reject the county’s argument that the trial court erred in finding that the Sisk Act limitation bars the proposed road extension.

Lands transferred under the Sisk Act “may be used only for the purposes for which they were being used prior to conveyance.” 16 U.S.C. § 484a.

The application of particular facts to a statute involves a mixed question of fact and law. Thus, we will review the trial court’s findings of fact for a clear error and review the application of the facts to the statute de novo. See Medina v. State, 35 P.3d 443 (Colo.2001); Robles v. People, 811 P.2d 804 (Colo.1991).

In the 1970s, the county used the subject property as a regional park under a special use permit granted by the USFS “for the purpose of: providing a park and recreation area to serve the needs in the Black Forest area and general public consisting of: (A) restroom [including] flush toilets; (B) group picnic shelter; (C) family picnic area; (D) tennis courts; (E) volleyball court; (F) multipurpose court; (G) play field; (H) road and parking area; [and] (I) five acre storage and maintenance area for county highway department.”

In 1999, USFS transferred the property to the county pursuant to an exchange deed that recited the Sisk Act limitations and stated that the county “agrees and covenants that the above-described land will be used for local governmental purposes in perpetuity.”

We reject the county’s argument that the park thus may be used for any “local governmental purposes.” Where the language of a statute is clear and unambiguous, the court must interpret the statute to effect the unambiguous intent of Congress. Mount Emmons Mining Co. v. Babbitt, 117 F.3d 1167 (10th Cir.1997); see also City of Boulder v. Colorado Public Utilities Comm’n, 996 P.2d 1270 (Colo.2000).

Here, the statute is clear that the property may only be used for those purposes for which it was being used prior to the conveyance. We further conclude that this language clearly' means the actual use to which the property was put prior to the conveyance, not the permitted uses. The adding of additional language in the deed— “local governmental purposes” — has no basis in the statute and cannot expand the authorized uses. See American Airlines, Inc. v. Austin, 75 F.3d 1535 (Fed.Cir.1996)(a provision in a government contract that violates or conflicts with a federal statute is invalid or void).

Therefore, we conclude that the uses to which the subject property may be put are limited to those uses in existence at the time of the conveyance.

Developer presented evidence that an extension of the road would provide benefits for the park, including: (1) improved access for park users; (2) improved capability to fight forest fires; (3) improved capability to deal with mistletoe problems; and (4) access to an additional 280 acres that developer would donate to the park. While these uses may be legitimate, we agree with the trial court that they are secondary to the road’s primary purpose — access to developer’s new housing development.

Accordingly, we conclude that the trial court did not err in finding that the extension of the road violates the Sisk Act.

The judgment is affirmed.

Judge DAVIDSON and Judge WEBB concur.


author: Judge VOGT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jorge E. MELENDEZ, Jr., Defendant-Appellant.
    No. 01CA0888.
    Colorado Court of Appeals, Div. I.
    April 24, 2003.
    Rehearing Denied June 12, 2003.
    Certiorari Granted Dec. 1, 2003.

      Ken Salazar, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    M. Colin Bresee, Denver, Colorado, for D efendant-Appellant.

       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 VOGT.

Defendant, Jorge E. Melendez, Jr., appeals the judgment of conviction entered on a jury verdict finding him guilty of multiple counts of aggravated incest, sexual assault on a child, sexual assault on a child-pattern of abuse, and sexual assault on a child under fifteen by one in a position of trust. We reverse and remand for a new trial.

A seven-year-old girl told her grandparents that she had been sexually abused on several occasions by defendant, who was then married to the girl’s mother. The child later told her mother about the abuse and described the incidents to a child advocacy center interviewer in a videotaped interview.

The jury was shown the videotape and also heard testimony by the child, her mother, her grandfather, and the interviewer. Defendant testified that he had never abused the child and offered expert testimony to support his theory that her allegations were fabricated.

I.

Defendant first contends that the trial court erred in refusing to allow testimony by a defense witness who was in the courtroom during part of the testimony of a prosecution witness, contrary to the court’s sequestration order. We agree.

A.

The purposes of a sequestration order are to prevent a witness from conforming his or her testimony to that of other witnesses and to discourage fabrication and collusion. People v. Wood, 743 P.2d 422 (Colo.1987); People v. Dashner, 77 P.3d 787, 2003 WL 549108 (Colo.App.2003); see also CRE 615; Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976)(sequestering witnesses restrains them from tailoring their testimony to that of earlier witnesses and aids in detecting testimony that is less than candid).

Sanctions that may be imposed for violation of a sequestration order include citing the witness for contempt, permitting comment on the witness’s noncompliance in order to reflect on his or her credibility, excluding or striking the witness’s testimony, and declaring a mistrial. People v. P.R.G., 729 P.2d 380 (Colo.App.1986).

In deciding whether to impose sanctions for violation of a sequestration order, a trial court is to consider three principal factors: (1) the involvement, or lack thereof, of a party or the party’s counsel in the witness’s violation of the order; (2) the witness’s actions and state of mind in violating the order, and whether the violation was inadvertent or deliberate; and (3) the relationship between the subject matter of the violation and the substance of the disobedient witness’s testimony. People v. P.R.G., supra.

Most of the reported Colorado cases on violation of a sequestration order in a criminal trial involve allegations that the trial court erred in allowing testimony by a prosecution witness who violated a sequestration order or in denying a mistrial on that basis. In those circumstances, the appellate courts have consistently upheld the trial court’s ruling as a proper exercise of discretion. See, e.g., People v. Drake, 785 P.2d 1257 (Colo.1990); People v. Wood, supra; Cruz v. People, 149 Colo. 187, 368 P.2d 774 (1962); People v. Dashner, supra; People v. Scarlett, 985 P.2d 36 (Colo.App.1998); People v. DeBoer, 829 P.2d 447 (Colo.App.1991); People v. Johnson, 757 P.2d 1098 (Colo.App.1988); People v. Shipman, 747 P.2d 1 (Colo.App.1987); People v. P.R.G., supra.

In contrast to those cases, this case involves the exclusion of a witness called by the accused in a criminal case. Thus, it implicates the fundamental right of criminal defendants to call witnesses on their own behalf, see Colo. Const, art. II, § 16; Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)(defendant’s right to present witnesses to establish a defense is a fundamental element of due process of law); People v. Hampton, 696 P.2d 765 (Colo.1985)(same), and, accordingly, raises concerns not present where the exclusion is of a prosecution witness in a criminal case or a witness for either side in a civil case. Further, while abuse of discretion remains the standard for appellate review, the constitutional implications of the sanction necessary affect the determination whether abuse of discretion has been shown.

We are aware of only one Colorado case in which a defense witness in a criminal case was excluded for violation of a sequestration order. In Vickers v. People, 31 Colo. 491, 73 P. 845 (1903), the supreme court reversed a conviction based on the trial court’s refusal to permit testimony by a defense witness who violated a court order excluding witnesses from the courtroom. Noting that “[t]he prevailing doctrine is that the violation of such an order by witnesses will not deprive the party, whose witness he is, of the benefit of his testimony, if the party himself is without fault,” the supreme court concluded that reversal was required because there was “no showing that the defendant was instrumental in procuring the witness to remain in the courtroom, and nothing appears in the record which would justify us in holding that the [trial] court found that the defendant connived at the disobedience of the rule by the witness.” Vickers v. People, supra, 31 Colo. at 494-95, 73 P. at 846 (quoting Behrman v. Terry, 31 Colo. 155, 71 P. 1118 (1903)).

Vickers is consistent with more recent cases from other jurisdictions that have reversed convictions based on the exclusion of a defense witness who violated a sequestration order without the defendant’s complicity or cooperation. See United States v. Hobbs, 31 F.3d 918 (9th Cir.1994)(plain error to exclude defense witness, who had entered courtroom while defense counsel had her back to spectators, where there was no evidence that defense counsel had acquiesced in the violation and witness’s testimony was neither cumulative nor irrelevant); Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975)(exclusion of rebuttal witness who had inadvertently violated sequestration order was abuse of discretion even though witness had been present for all of defendant’s testimony); Jiosa v. State, 755 N.E.2d 605 (Ind.2001)(reversible error to exclude testimony of witness who would have offered alternative explanation for symptoms of victim of alleged child abuse, where defendant was not at fault for violation of sequestration order); Redditt v. State, 337 Md. 621, 655 A.2d 390 (1995)(abuse of discretion to sanction asserted violation of sequestration order by excluding testimony of witness concerning improper motive or bias on part of principal prosecution witness); see also 3 J. Weinstein et al., Weinstein’s Evidence ¶ 615[03] (1996).

In this case, the trial court granted the prosecutor’s pretrial motion for sequestration of all witnesses except a detective, who was allowed to remain as an advisory witness for the prosecution. During trial, after the prosecution had rested and defendant had called three of his four witnesses, the prosecutor informed the court that she had learned from the detective that the remaining defense witness had been in the courtroom during a bench conference and for part of the testimony of the child advocacy center interviewer, a prosecution witness. She asked that the defense witness not be permitted to testify. Defense counsel responded:

Judge, first of all, I had no knowledge , whatsoever that any one of my witnesses were in the courtroom. Obviously during the testimony of [the interviewer] I was doing anything but looking in the back of the courtroom. I can represent as an officer of this court that I have always instructed all my witnesses in every single case that I have ever done to wait outside of the courtroom. I told all my witnesses to be on call and to be here at 1:30. I had no idea he was here. I can make that representation as an officer of the court.

Defense counsel also told the court that the witness’s presence for part of the interviewer’s testimony would not affect his credibility or taint his testimony, because he would not be asked about anything concerning the interview. Rather, the witness would testify about his observations of defendant with the child and the child’s mother and the interactions between defendant and the child. Counsel stated that the court “could inquire or admonish or ask questions of’ the witness, but that not allowing the witness to testify would severely prejudice defendant.

The prosecutor then informed the court that the detective had seen defendant and the witness “having a discussion which sounded to [the detective] to be about this case.” The detective did not address the court, and no one else claimed to have seen the witness in the courtroom.

The next morning, after hearing brief additional argument but without interviewing the witness, the detective, or defendant, the court ruled that the witness would not be permitted to testify:

After considering argument of both the defense and the prosecution, noting the length of time [the witness] was in the courtroom, paid [sic] particular attention that the witness was in the courtroom during the testimony of [the interviewer], the Court is going to not allow the witness to be called for the defense.

We conclude that exclusion of the testimony was an abuse of discretion.

Although the People argue that the trial court “implicitly” considered the three factors listed in People v. P.R.G., supra, and that the court “had evidence before it showing that the witness purposely violated the court’s sequestration order, that the extent of the taint was significant, and that [defendant] participated in the violation,” the record is to the contrary.

In regard to the first and most significant factor under P.R.G. and Vickers, the only evidence before the court regarding defense counsel’s involvement in the violation was counsel’s representation, as an officer of the court, that he had no knowledge that the witness was in the courtroom and that he always instructed his witnesses to wait outside the courtroom. Although the court had also been advised by the prosecutor that the witness was seen talking with defendant, we view that statement as insufficient to permit the court to conclude, without further inquiry of defendant or the witness, that defendant was at fault for the witness’s violation of the sequestration order, so as to take the case outside the rule of Vickers.

The record likewise does not reflect any inquiry regarding the second P.R.G. factor— that is, the state of mind of the witness concerning the violation and whether the violation was inadvertent or deliberate. As for the third P.R.G. factor, the record does not indicate how long the witness was in the courtroom or what part of the lengthy testimony by the interviewer he may have overheard. Thus, there is no basis for concluding that the witness’s testimony, as characterized by defense counsel in his offer of proof, was tainted by or even, as the People contend, “directly related” to the matters to which the interviewer was testifying when the witness was in the courtroom.

In sum, it was an abuse of discretion to impose the extreme sanction of witness exclusion without ■ an inquiry into the factors governing the imposition of such a sanction, and, in particular, without evidence that the defense was at fault for the violation. See Vickers v. People, supra.

B.

Because the error at issue here is of constitutional dimension, reversal is required unless we determine that the error is harmless beyond a reasonable doubt. See Bernal v. People, 44 P.3d 184 (Colo.2002); People v. Fry, 74 P.3d 360, 2002 WL 31477777 (Colo.App.2002).

The People bear the burden of proving that the error was harmless beyond a reasonable doubt. If there is a reasonable probability that the defendant could have been prejudiced by the error, the error cannot be harmless. Blecha v. People, 962 P.2d 931 (Colo.1998); People v. Fry, supra.

The excluded witness was one of four witnesses, besides defendant himself, who were endorsed by the defense. None of the other three endorsed witnesses gave testimony that was duplicative or cumulative of the anticipated testimony of the excluded witness as characterized by defense counsel.

Defendant’s expert psychologist had previously testified regarding situations that might lead a child to fabricate allegations of sexual abuse. He also answered hypothetical questions regarding interaction between á mother and her child that could lead to such fabrication. The hypothetieals suggest that defendant contemplated subsequently introducing testimony of such interaction in order to support the defense theory concerning the reasons why the child could be fabricating allegations of sexual abuse. In addition, testimony by the excluded witness regarding interaction among defendant, his wife, and the child would presumably have provided independent corroboration of defendant’s own testimony on that subject.

During defendant’s testimony, a juror sent out a note stating: “I would like to hear [defendant’s] opinion concerning [the child’s] behavior with her mother.” Thus, at least one juror wanted further information about a matter that was raised during the defense expert’s testimony and that, according to counsel’s offer of proof, would have been the subject of testimony by the excluded witnesses.

Finally, in closing argument, both sides argued reasons why the child should or should not be believed. The prosecutor pointed out that, although the defense expert had theorized that the child would lie because she resented defendant, there had been “no evidence of resentment.” The closing arguments demonstrate that evidence supporting or potentially detractipg from the child’s credibility was of primary importance to both sides.

In these circumstances, we cannot say that the erroneous exclusion of the defense witness was harmless beyond a reasonable doubt. Accordingly, a new trial is required.

II.

We address two additional contentions raised by defendant that may arise on remand.

A.

Defendant contends that the trial court erred in denying his request for an independent physical examination of the child. We disagree.

A trial court presented with a request for an involuntary physical examination of a child sexual assault victim may exercise its discretion to order the examination when the defendant demonstrates a compelling need or reason for it. In exercising this discretion, the trial court must balance the possible emotional trauma, embarrassment, or intimidation to the child against the likelihood of the examination producing material, as distinguished from speculative, evidence. People v. Chard, 808 P.2d 351 (Colo.1991); People v. Woertman, 786 P.2d 443 (Colo.App.1989), rev’d on other grounds, 804 P.2d 188 (Colo.1991).

In a pretrial motion to compel physical examination of the child, defendant noted that no physical examination of her had been performed and that an examination of her vagina and vaginal area would either reveal exculpatory evidence crucial to his case or, alternatively, “may produce evidence material to the People’s case.” After hearing oral argument, at which the prosecutor stated that the only physical evidence he would elicit was the child’s statement “that she bled and that it hurt,” the trial court reviewed the balancing inquiry mandated under Woert-man, found that the defense motion did “not indicate that material evidence would be produced as opposed to speculative,” and accordingly denied the motion.

In Chard, supra, the supreme court held that it was not an abuse of discretion to deny a motion for physical examination where evidence produced by such examination would not necessarily prove that the defendant had not previously sexually abused the victim, but would “at best produce results equivocal on the defendant’s ‘innocence.’ ” People v. Chard, supra, 808 P.2d at 356 (quoting People v. Nokes, 183 Cal.App.3d 468, 228 Cal.Rptr. 119 (1986)). Similarly here, a physical examination of the child revealing no vaginal trauma or evidence of vaginal intercourse would not establish that defendant had not sexually abused her.

As defendant points out, the prosecution was required to establish “sexual penetration” as defined in 18-3-401(6), C.R.S. 2002. However, that definition includes “sexual intercourse, cunnilingus, fellatio, analin-gus, or anal intercourse,” and it also provides that “[a]ny penetration, however slight, is sufficient to complete the crime.” The child described acts that would satisfy the statutory definition even if there were no evidence of vaginal intercourse. See also People v. Fierro, 199 Colo. 215, 606 P.2d 1291 (1980)(independent corroboration of victim’s testimony is not essential in criminal prosecution for unlawful sexual acts).

Thus, as in Chard, the results of a physical examination here would have been at best equivocal in regard to defendant’s innocence. In these circumstances, it was within the trial court’s discretion to deny defendant’s motion for a physical examination.

B.

We also reject defendant’s contention that the court erred in admitting the videotaped interview of the victim without first sufficiently analyzing its reliability.

Section 13-25-129, C.R.S.2002, permits the introduction of otherwise inadmissible hearsay statements by children in sexual assault cases. Prior to the introduction of such a statement, the proponent must demonstrate by a preponderance of the evidence, at a hearing outside the presence of the jury, that “the time, content, and circumstances of the statement provide sufficient safeguards of reliability.” In addition, either the child must testify at trial or the child must be “unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.” Section 13-25-129(l)(a)(b), C.R.S.2002; see People v. Bowers, 801 P.2d 511 (Colo.1990).

A videotaped interview of a child sexual assault victim that qualifies for admission under § 13-25-129 need not also satisfy the requirements for admission of a videotaped deposition under § 18-3^413, C.R.S.2002. See § 18-3-413(5), C.R.S.2002; People v. Carter, 919 P.2d 862 (Colo.App.1996).

A trial court’s ruling on the admissibility of statements under § 13-25-129 will not be overturned absent an abuse of discretion. People v. Hansen, 920 P.2d 831 (Colo.App.1995).

Prior to trial, the prosecution gave notice of its intent to introduce various out-of-court statements by the child, including the videotaped interview, pursuant to § 13-25-129. A hearing was held, at which defendant argued that the statements were not spontaneous and were unreliable, and that the prosecution needed to decide at the outset whether the child would be unavailable to testify. He also objected to the admission of the videotape on the basis that it did not comply with the requirements of § 18-3-413 and thus was inadmissible under People v. Newbrough, 803 P.2d 155 (Colo.1990).

The trial court analyzed the testimony given at the hearing by the individuals to whom the statements were made and made detailed findings regarding facts and circumstances, including the consistency of the statements, that led it to conclude that the statements were reliable and would be admitted. The court also rejected defendant’s contention that the videotape was inadmissible because it did not comply with the § 18-3-413 requirements for videotaped depositions.

The trial court did not abuse its discretion in admitting the videotape. Contrary to defendant’s contention at trial, the tape did not have to satisfy the requirements of People v. Newbrough, supra, and § 18-3-413, including the requirement that a preliminary finding be made regarding the victim’s unavailability. See People v. Carter, supra (noting that Newbrough was legislatively overruled by § 18-3-413(5)).

Further we agree with the trial court’s assessment of the evidence showing the reliability of the out-of-court statements, including the videotaped statement. Although defendant argues on appeal that the court should have made a “particularized assessment” of the videotape’s reliability, he never asked the trial court for such assessment, and the court’s findings demonstrate that it was addressing the reliability of the taped statement as well as the other out-of-court statements.

We also disagree with defendant’s related contention that the videotaped interview should have been excluded as unfairly prejudicial. Both the child and the interviewer testified at trial and were subject to cross-examination. The substance of the videotaped interview did not differ significantly from the testimony by these and other prosecution witnesses at trial.

The judgment is reversed, and the case is remanded for a new trial.

Judge GRAHAM and Judge PIERCE concur.


author: Judge TAUBMAN.

text:
    In re the MARRIAGE OF Victoria ZAPPANTI, Appellee, and Larry J. Zappanti, Sr., Appellant.
    No. 02CA0918.
    Colorado Court of Appeals, Div. 1.
    June 19, 2003.
    Rehearing Denied Aug. 14, 2003.
    Certiorari Denied Dec. 1, 2003.

      Devon A. McFarland, Trinidad, Colorado, for Appellee.
    Rodolfo Reveles, P.C., Rodolfo Reveles, Trinidad, Colorado, for Appellant.
    William L. Carew, Colorado Springs, Colorado, Amicus Curiae.

       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 TAUBMAN.

Larry J. Zappanti, Sr. (husband) appeals from the trial court’s permanent orders entered in connection with the dissolution of his marriage to Victoria Zappanti (wife). We affirm in part, reverse in part, and remand for further proceedings.

The decree terminating the parties’ twenty-three-year marriage was entered on January 22, 2002. The permanent orders hearing occurred in February, and the court signed the written orders on March 13, 2002.

Among other provisions, wife received her PERA retirement pension and was assigned responsibility for various marital debts. Husband also received his entire railroad pension, which included a current benefit of $2031 per month, and was assigned liability for the remaining marital debt.

The trial court allocated sole decision-making authority for the parties’ minor child to wife and ordered husband to pay child support in the amount of $358 per month.

Husband challenges the trial court’s valuation of wife’s pension, the classification of his retirement, the valuation of the marital portion of his pension, and the calculation of child support. We find no reversible error as to the wife’s pension and child support, but we reverse as to husband’s railroad pension.

I.

Husband first contends that the trial court erred as a matter of law in valuing wife’s PERA retirement fund based solely upon the amount of her contributions. We agree that the court erred in its valuation, but find no basis for reversal.

In its bench order, the trial court found that wife’s PERA retirement was vested, but not matured, and therefore, if she left her job, the only money she could withdraw would be the amount of her contributions. Wife had testified that she had contributed $60,349.22 to her PERA fund. That same amount was listed as the value on her financial affidavit. The court, basing its valuation on wife’s contributions, found that her PERA fund was worth $60,000.

Because PERA combines elements of defined benefit and defined contribution plans, the present value of a PERA account cannot be based purely upon the contributions as of the date of dissolution. Rather, a determination of present value requires application of a series of actuarial and investment assumptions relating to the employee’s life expectancy and probable retirement age to the contractual or statutorily awarded benefit. In re Marriage of Kelm, 912 P.2d 545 (Colo.1996).

Thus, it appears that the trial court erred in valuing wife’s pension based solely upon her contributions. However, we conclude that husband acquiesced in this error.

Normally, the valuation of future retirement payments is the subject for expert testimony, usually from an actuary. Perry v. Perry, 133 Mich.App. 453, 350 N.W.2d 275 (1984). It is the parties’ duty to present the trial court with the requisite data that would allow it to make a sufficient valuation of the retirement fund, and any failure by the parties in that regard should not provide them with grounds for review. In re Marriage of Smith, 114 Ill.App.3d 47, 69 Ill.Dec. 827, 448 N.E.2d 545 (1983). Accordingly, a party who fails to present sufficient evidence at trial should not be allowed on appeal to challenge the inadequacy of the evidence. Hartland v. Hartland, 777 P.2d 636 (Alaska 1989).

Here, not only did husband fail to present any evidence of the value of wife’s PERA pension, he also made no objection or argument challenging wife’s valuation during the permanent orders hearing. In addition, husband’s counsel informed the trial court that his client was eager to have the proceeding concluded and stated that he felt comfortable with the court resolving the issues based on the information before it.

A trial court is required to find the approximate current value of all property owned by the parties. In re Marriage of Weaver, 39 Colo.App. 523, 571 P.2d 307 (1977). Here, the trial court fulfilled that obligation by relying upon the only evidence available to it. See In re Marriage of Eisenhuth, 976 P.2d 896 (Colo.App.1999)(in reaching an equitable division of marital property, the court is required to consider the evidence before it). Given husband’s failure to contest wife’s valuation or present any evidence whatsoever, including any evidence of a valuation conforming to the requirements set forth in In re Marriage of Kelm, supra, we hold that the trial court’s error provides no basis for reversal. See Hartland v. Hart-land, supra (by not raising at trial the calculation he advocated for the valuation of wife’s pension, husband waived his right to contest the issue on appeal); see also In re Marriage of Eisenhuth, supra (trial court properly based its valuation of property upon the limited evidence before it, which consisted of wife’s testimony and financial affidavit).

II.

Husband next argues that the trial court erred in classifying, valuing, and dividing his railroad retirement. We agree.

Under the Uniform Dissolution of Marriage Act, § 14-10-101, et seq., C.R.S. 2002, a court must make an equitable division of marital property after considering all relevant factors. In making this division, the court must first determine whether an interest constitutes property; if so, the court must then determine whether the property is marital or separate. In re Marriage of Hunt, 909 P.2d 525 (Colo.1995). Once property has been deemed to be marital, the court must value the property. In re Marriage of Balanson, 25 P.3d 28 (Colo.2001).

Errors by the trial court in determining the property division are reversible only when overall they affect the parties’ substantial rights. In determining whether the substantial rights of the parties have been affected, a reviewing court must consider the trial court’s overall property distribution. See In re Marriage of Balanson, supra.

An error affecting only a small percentage of the overall marital estate is harmless, whereas an error affecting a large percentage of the marital estate requires remand of the case to the trial court to correct such errors. In re Marriage of Balanson, supra.

A.

Husband initially contends that the trial court erred as a matter of law by classifying his entire railroad retirement benefits as marital property. He refers to several out-of-state cases, and the United States Supreme Court decision in Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), in explaining that the benefits he receives are divided into two categories: Tier I benefits, which under controlling federal law are not considered marital property subject to division; and Tier II benefits, which can be classified as marital property subject to distribution. Husband maintains that the trial court did not distinguish between these two types of benefits and exceeded its jurisdiction in treating Tier I benefits as marital property. We agree.

At the permanent orders hearing, the general counsel of the Railroad Retirement Board testified that husband received a monthly railroad pension or annuity of $2,031. Of that amount, he explained, $1,354 was a Tier I benefit not divisible as marital property, while the remaining $677 would be divisible because it was a Tier II benefit. The $677, he stated, would have been received by family members if husband’s earnings were subject to the Social Security Act. That amount was attributable to the parties’ son, but was paid directly to husband.

In addition, the general counsel explained that when the parties’ son became emancipated, husband would receive a Tier I benefit of $1,354 per month plus a reduced Tier II benefit of $286 per month. Finally, he testified that either the entire amount, or at a minimum the $286 component, was subject to annual cost of living increases.

In closing arguments, wife’s counsel urged that a present value be applied to the Tier II benefit using the mortality tables listed in § 13-25-102, C.R.S.2002. Husband’s counsel stated that he was unable to obtain a value for the retirement benefits and that he would accept the court’s finding on that issue. In its bench order, the trial court found that the present value of the entire retirement exceeded $600,000, that the child’s portion of the monthly benefit had a net present value of at least $50,000, and that based upon husband’s projected life expectancy of twenty-nine years, his Tier II benefit would have a net present value of approximately $100,000. The court then concluded that the entire railroad pension was a marital asset and awarded it to husband. In reaching this conclusion, the trial court erred.

Although husband’s counsel stated during the permanent orders hearing that he would rely on the trial court’s determination of the value of the railroad retirement annuity, he did not concede that all of the railroad retirement benefits were marital property. Further, in husband’s post-trial motion, he requested that the trial court amend its findings and judgment with respect to the railroad pension. At a later status conference, husband’s counsel emphasized that he was not requesting the court to hear further evidence as to the railroad retirement pension. Accordingly, we conclude that husband sufficiently raised before the trial court the issue as to whether any or all of the railroad retirement pension was marital property.

Further, although the testimony presented by the general counsel of the Railroad Retirement Board was sparse, it indicated that only $677 of husband’s $2,031 monthly annuity was divisible as marital property. Thus, there was a sufficient basis for the trial court to determine that a significant portion of the railroad retirement annuity was separate property not subject to division.

This conclusion was properly supported by husband’s reference to Hisquierdo v. Hisquierdo, supra, and Pearson v. Pearson, 200 W.Va. 139, 488 S.E.2d 414 (1997). In His-quierdo, the United States Supreme Court explained that under the Railroad Retirement Act of 1974, 45 U.S.C. § 231, et seq., two tiers of benefits are provided, which resemble both a private pension program and a social welfare plan. Tier I benefits are equivalent to those the employee would have received if covered by the Social Security Act, 42 U.S.C. § 401, et seq. Tier II benefits are supplemental annuities, which, like a private pension plan, are tied to earnings and career service. See 45 U.S.C. § 231a(b); Lee v. Lee, 727 So.2d 622 (La.Ct.App.1998).

In Hisquierdo, the Supreme Court interpreted the anti-attachment laws of the Railroad Retirement Act, 45 U.S.C. § 231m, as preempting a state court from dividing railroad retirement benefits in a dissolution of marriage action. In Pearson, the court explained that in 1983, Congress amended the Railroad Retirement Act to provide that Tier II benefits were property subject to distribution upon divorce, see 45 U.S.C. § 231m(b)(2), but that Tier I benefits remained exempt from division.

Thus, that portion of husband’s railroad retirement benefits which was received pursuant to Tier I was separate property, and the trial court was required to state that specifically. Additionally, as discussed in part C below, a portion of the Tier II benefits was marital property subject to division.

Given the trial court’s conclusion that husband’s retirement benefits had a value in excess of $600,000, it was incumbent upon the court to determine what portion of that was marital property. Approximately two-thirds of husband’s railroad retirement pension, or $400,000, was separate property. The remaining $200,000 was subject to division as marital property. Because of the magnitude of this error in calculation, we conclude that it affected the substantial rights of the parties and that this matter must be remanded to the trial court for reconsideration of the division of marital property. See In re Marriage ofBalanson, supra.

B.

Nevertheless, we reject husband’s contention that the trial court erred as a matter of law by distributing his pension using the net present value method.

The choice of distribution method for pension benefits depends upon the particular needs and circumstances of the parties and lies within the sound discretion of the trial court. In re Marriage of Hunt, supra. Under the net present value method, the pension is valued as of the date of dissolution and distributed immediately with an offset against other property in the marital estate. Under the remaining two methods, deferred distribution and reserve jurisdiction, distri-button is delayed until benefits are received. In re Marriage of Casias, 962 P.2d 999 (Colo.App.1998).

The crux of husband’s contention is that the trial court had insufficient evidence before it to determine the present value of his retirement. In support, he notes that his counsel asked wife’s witness whether he could place a present value on the retirement and the expert replied that he could not, but he thought an actuary could.

As we previously noted, husband’s counsel had informed the court that he would be satisfied with the court’s finding as to valuation of the retirement. Additionally, he specifically noted the paucity of information presented to the court. He did not assert that he was prevented from obtaining and showing a present value through an actuary, but simply explained that he “made a few phone calls” and was not “able to learn enough to put a value on it.” Counsel stated that he had accepted the value placed on the retirement by wife’s counsel.

Although that value was not clearly identified in that particular exchange, the record indicates that wife’s counsel submitted a computer-generated calculation of the present value of the retirement. While we do not have any documentation of that value in the record on review, the trial court’s bench order nevertheless reflects that the court calculated a present value using the mortality table in § 13-25-103. Consequently, we are satisfied that the trial court had sufficient information before it to apply the net present value method. See In re Marriage of Plesich, 881 P.2d 379 (Colo.App.1994)(in dissolution actions, a trial court has discretion to arrive at its own determination of value, and its valuation will be upheld if it is reasonable in light of the evidence as a whole).

We further note that because husband was currently receiving benefits, the remaining distribution methods would have been inappropriate.

On remand, the trial court must apply the net present value method to that part of the railroad retirement pension determined to be marital property.

C.

Husband also contends that the trial court erred in failing to apply the coverture fraction to determine the marital portion of his Tier II benefits. We agree that the trial court was required to apply the coverture fraction, and on remand it must do so.

Under all three methods of distribution, the accepted means of calculating the marital share of a pension is to multiply the present value of the pension by the coverture fraction, which is the number of years or months that benefits accumulated during the marriage divided by the total number of years or months that benefits accumulated. In re Marriage of James, 950 P.2d 624 (Colo.App.1997).

Here, although neither party advised the court that it needed to apply the coverture fraction in valuing husband’s retirement or indicated that husband’s premarriage service was significant, testimony was nevertheless elicited from husband indicating that the parties married in 1978, that husband began his employment in 1973, and that he stopped working in 1989 when his injury occurred. This information was sufficient for the trial court to determine the applicable coverture fraction.

III.

Finally, we disagree with husband’s contention that the trial court erred in calculating his child support obligation.

The trial court based the child support calculation on husband’s monthly income from his railroad annuity. Husband complains the calculation was improper because that income was from a previously divided asset. However, the fact that the retirement represented a property interest subject, at least in part, to division does not change its status as an income source to be considered in determining his child support obligation. See § 14-10-115(7)(a)(I)(A), C.R.S.2002 (“gross income” includes income from any source including, but not limited to, income from pension and retirement benefits); see also In re Marriage of Fain, 794 P.2d 1086 (Colo.App.1990)(whether or not a structured personal injury settlement is classified as a separate or marital asset, payments received pursuant to that settlement are gross income for determination of child support).

Husband also argues that the trial court should have offset his support obligation against the benefit amount he receives on behalf of the child. However, because husband retains the payments and is the noncustodial parent, he was not entitled to an offset. See § 14-10-115(16.5), C.R.S.2002; see — also In re Marriage of Quintana, 30 P.3d 870 (Colo.App.2001)(offset properly given to husband where Social Security payments for his disability were paid to wife, as the custodial parent, and actually diminished the needs of the children).

Pursuant to § 14-10-113(l)(c), C.R.S.2002, and In re Marriage of Wells, 850 P.2d 694 (Colo.1993), the trial court on remand must consider the economic circumstances of the respective spouses at the time of any further hearing in this matter.

We deny husband’s request for attorney fees under C.A.R. 38(d).

The judgment is affirmed with respect to the valuation of wife’s pension and the calculation of child support. The judgment classifying, valuing, and dividing husband’s retirement benefits is reversed, and the case is remanded for further proceedings consistent with this opinion to reconsider the property division.

KAPELKE and PIERCE , JJ., concur.