author: Judge GRAHAM.

text:
    In re the MARRIAGE OF Cheryl A. GUINN, Appellant, and David L. Guinn, Appellee.
    No. 02CA1775.
    Colorado Court of Appeals, Div. IV.
    Feb. 26, 2004.
    Certiorari Denied July 19, 2004.

      Cox, Mustain-Wood, Walker & Schumacher, LLC, Mary Jane Truesdell Cox, Littleton, Colorado, for Appellant.
    Fontana & Associates, P.C., Sarah W. Quinlan, Denver, Colorado, for Appellee.

       Chief Justice MULLARKEY would grant as to the following issue:

        Whether the court of appeals erred in determining that a husband's sole right to income throughout his lifetime from an irrevocable trust wherein the trustee had a mandatory obligation to distribute all income to the husband and discretion to distribute the corpus to the husband pursuant to the terms of the trust, but where husband did not have an ownership interest in the corpus and cannot control how the corpus is invested is not property for purposes of C.R.S. 14-10-113.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3), and § 24-51-1105, C.R.S.2003.

   Opinion by

Judge GRAHAM.

Cheryl A. Guinn (wife) appeals from the property division entered as part of the trial court’s permanent orders in this proceeding to dissolve her marriage to David L. Guinn (husband). She specifically challenges the trial court’s determination that husband’s income interest in an irrevocable trust created by his parents did not constitute a property interest. We affirm.

The parties married in 1987, and their marriage was dissolved in 2002. In 1990, husband’s parents created an irrevocable generation-skipping trust. Under the terms of the trust, husband is to receive the net income in annual or more frequent distributions. The trust also allows discretionary payment of corpus to husband if such payments are reasonably necessary for husband’s health, maintenance, support, and education. Upon husband’s death, the corpus is to remain in trust for the benefit of husband’s descendants. Husband has no power of appointment or other right to direct the disposition of the trust. In short, husband is a lifetime income beneficiary, and his children hold the remainder.

The trial court found, and the parties do not dispute, that husband had no property interest in the corpus of the trust, although he had a right to so much of the income as the trustees elected to allocate during his life.

Husband’s parents initially funded the trust with $400,000 worth of publicly traded stock. They made subsequent cash contributions of $16,000 in 1999 and $51,000 in 2000, for total contributions of $467,000. At the time of the permanent orders hearing, the trust corpus had appreciated to approximately $818,869.

The pertinent powers granted to the trustees include the power to invest in any kind of property, the power to determine in the exercise of reasonable discretion what is principal and what is income of the trust, and the power to apportion and allocate receipts and expenditures between those respective accounts.

The current trustees are husband’s parents. According to the testimony of husband’s father, the investment philosophy for the trust is to maximize the growth potential of the portfolio to take advantage of the estate tax laws for which the trust was formed. Consistent with that philosophy and the acknowledged customary practice for the management of similar trusts, the trust returns show that capital gains have been generally allocated to principal while the distributions of income to husband comprised the interest and dividend income earned.

On appeal, wife contends that the trial court erred in finding that husband’s income interest was not property subject to division. She argues his interest constituted an enforceable right in the trust rather than an expectancy and is therefore property under § 14-10-113. We disagree.

The trial court has great latitude to effect an equitable division of marital property based on the facts and circumstances of each case. The trial court, in exercising its discretion, must first determine whether an interest constitutes “property” and then must determine whether the property is marital or separate. In re Marriage of Hunt, 909 P.2d 525 (Colo.1995). A reviewing court will not disturb a trial court’s decision regarding division of property unless there has been a clear abuse of discretion. In re Marriage of Balanson, 25 P.3d 28 (Colo.2001).

In Colorado, income from a spouse’s separate property, as well as appreciation in that separate property during the marriage, is deemed to be marital property and therefore subject to division. In re Marriage of Martinez, 77 P.3d 827 (Colo.App.2003). Previously, we have not considered whether income received by a spouse that is generated from the property of a third party is marital property. We conclude that it is not.

In determining whether husband’s right to income represents a property interest to be classified and valued for purposes of § 14-10-113, C.R.S.2003, the trial court found that the obligation to distribute income to husband was mandatory, not discretionary. The court also found that husband could not require the trustees to invest with maximum income potential for his benefit and that the investment strategy was “solely in the hands of the trustees.” Also, the trial court distinguished various decisions that have classified remainder interests as fixed interests constituting property, noting that under traditional property law, if husband possessed a life estate in real estate, his interest would arguably have some value. However, the court further observed that the parties cited no case holding that a beneficiary’s interest in income from a trust is property and that unlike the general scenarios involving a right to future income, here, neither party contributed anything to the trust or to its postfor-mation appreciation. The court concluded that husband’s interest was not “property” subject to division under § 14-10-113. The court, therefore, held that it was unnecessary to classify husband’s interest as either marital or nonmarital or some combination thereof.

As for husband’s right to discretionary payments of corpus if needed, the trial court determined that it had only a nominal value and apparently did not consider that interest at all in the determination of the property division. Nor did the court conclude that such payments amounted to an interest in the trust corpus such that husband’s interest could be considered separate property. Wife does not dispute this ruling.

When a trust permits trustees to distribute to a beneficiary so much, if any, of income as they in their discretion see fit, a beneficiary has no property interest or rights in the undistributed funds. The rights held by the beneficiary are merely an expectancy. In re Marriage of Rosenblum, 43 Colo.App. 144, 602 P.2d 892 (1979). Thus, the income beneficiary of a discretionary trust has no contractual or enforceable right to the corpus and cannot force any action by the trustee unless the trustee performs dishonestly or does not act at all. Because the beneficiary possesses no “property” interest, the income received from the trust is a gift under § 14-10 — 113(2)(a), C.R.S.2003, which is not divisible. In re Marriage of Jones, 812 P.2d 1152 (Colo.1991).

Here, the trustees were required to pay income to husband although they had discretion to choose the investments and to allocate earnings to principal or income. Thus, husband had a right to income, assuming any income was declared by the trustees. However, this right could hardly be classified as a remainder interest.

In contrast, a remainder interest in an irrevocable trust represents a present fixed right to future enjoyment that gives rise to a vested property interest in the trust property even if that interest is subject to complete divestment or defeasance. In re Marriage of Balanson, supra. That remainder interest also qualifies as a gift of separate property to the beneficiary. However, any appreciation of the interest during the marriage constitutes marital property under § 14-10-113(4) to the extent its present value at the time of the decree exceeds its value at the time of acquisition. In re Marriage of Balanson, supra.

A division of this court determined that a spouse’s remainder interest in a revocable trust is also a property interest rather than a mere expectancy and that the increase in the value of that interest during the marriage is marital property. In re Marriage of Gorman, 36 P.3d 211 (Colo.App.2001). Following that decision, however, the General Assembly enacted § 14-10-113(7)(b), C.R.S. 2003, which excludes from the definition of “property” any interest a party possesses under a third-party instrument that is alienable or revocable. In re Marriage of Dale, 87 P.3d 219, 2003 WL 22723020 (Colo.App. No. 02CA1523, Nov. 20, 2003).

Here, even though the obligation to distribute the income is mandatory, no amount is specified, and the income, if any, is not determined until it is declared by the trustees and distributed to husband. Cf. In re Marriage of Foottit, 903 P.2d 1209 (Colo.App.1995)(income derived from spouse’s remainder interest was considered marital property). In sharp contrast to the situation where a beneficiary has a vested property interest in the corpus or in a remainder, here, husband’s trust income derives from property vested in third parties— the next generation remaindermen — not from property in which he holds an interest. The nature of this income interest is not disputed, making the facts of this case somewhat unusual.

At least one authority suggests that in circumstances such as these, “a special category of gift” is created “because of the beneficiary’s inability to reach the corpus.” Michael Diehl, The Trust in Marital Law: Divisibility of a Beneficiary Spouse’s Interests on Divorce, 64 Tex. L.Rev. 1301, 1349-50 (1986). Thus, where a beneficiary owns no separate property interest in the corpus

of a trust, the income is deemed to be his separate property, not subject to division as marital property. Diehl, supra. According to this view, where a beneficiary receives both an interest in the corpus and the right to draw down so much of it as he needs, he receives an equitable property interest in the trust, and the income derived therefrom is marital. Accord In re Marriage of Foot-tit, supra. However, when the beneficiary has no interest in the corpus, and no right to control how the corpus is invested, we conclude that the income is a mere gratuity deriving from the beneficence of the set-tlors. See In re Marriage of Jones, supra (income from a trust that was not marital property was deemed separate).

In so holding, we are mindful of the supreme court’s admonition: “[T]here are necessary limits upon what may be considered ‘property’_ One helpful definition is ‘everything that has an exchangeable value or which goes to make up wealth or estate.’ ” In re Marriage of Graham, 194 Colo. 429, 432, 574 P.2d 75, 76-77 (1978)(quoting Black’s Law Dictionary 1382 (rev. 4th ed.1968)), disapproved by In re Marriage of Olar, 747 P.2d 676 (Colo.1987). We are unable to conclude that undeclared and unrealized future income could be exchanged for value, pledged as a sum certain, or listed on a sworn financial statement as a definite asset. In the absence of some ownership interest in the corpus itself, we conclude that even a mandatory right to unrealized future discretionary allocations of income is an expectancy arising from the largess of the settlors and does not constitute property for purposes of § 14-10-113.

The judgment is affirmed.

Judge CASEBOLT and Judge HUME concur.


source: Caselaw Access Project

author: Judge DAILEY.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kelly Lazard STAFFORD, Defendant-Appellant.
    No. 02CA1480.
    Colorado Court of Appeals, Div. I.
    Feb. 26, 2004.
    Certiorari Denied June 28, 2004.

      Ken Salazar, Attorney General, Wendy J. Ritz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Elisabeth Hunt White, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const, art. VI, § 5(3), and § 24-51-1105, C.R.S.2003.

   Opinion by

Judge DAILEY.

Defendant, Kelly Lazard Stafford, appeals the order of restitution imposed as part of his sentence to probation. We affirm.

Pursuant to a plea agreement, defendant pleaded guilty to class four felony theft for stealing nineteen laptop computers from a company (the victim). He was sentenced to two and a half years probation, and, because he objected to the amount of restitution sought by the prosecution, a hearing on the matter was held.

At the restitution hearing, the prosecution provided a list of the thirteen computers that were never recovered, with the amount of restitution sought for each computer. One of the victim’s directors testified that the amounts listed were based on the cost to replace each computer. Defense counsel objected that restitution should be based on the fair market value at the time the computers were stolen, not the replacement value. Counsel also pointed out that one computer had been listed twice.

The court rejected counsel’s fair market value argument, deducted the duplicate amount from the total amount requested, and ordered that defendant pay the victim $28,878 in restitution.

I.

Defendant first contends that ordering him to pay “this very significant amount of restitution,” without first establishing his ability to pay it, constitutes an excessive fine under the Eighth Amendment and violates his right to due process of law. We disagree.

Initially, we note that no statute currently requires the court to consider the defendant’s ability to pay restitution before ordering it. On the contrary, the General Assembly has mandated that “full restitution” be ordered as a condition of probation if the victim has suffered a pecuniary loss, regardless of the defendant’s ability to pay. See § 18-1.3-205, C.R.S.2003; People v. Stovall, 75 P.3d 1165, 1167 (Colo.App.2003).

The Eighth Amendment and Colo. Const, art. II, § 20 prohibit the imposition of excessive fines. Thus, a sentencing court must consider the defendant’s financial status in determining the appropriate amount of any fine to be levied. People v. Pourat, — P.3d -, -, 2004 WL 351760 (Colo.App. No. 02CA1621, Feb. 26, 2004); People v. Bolt, 984 P.2d 1181, 1184 (Colo.App.1999).

However, for purposes of Eighth Amendment analysis, restitution is not the equivalent of a fine. A fine is solely a monetary penalty, while restitution serves to make the victim whole. See People v. Duvall, 908 P.2d 1178, 1179 (Colo.App.1995); see also State v. DeAngelis, 329 N.J.Super. 178, 747 A.2d 289, 296 (2000)(because “[rjestitution is paid to the victim, not the State,” it does not qualify as a fine for Eighth Amendment purposes).

Further, although restitution can be considered punitive in nature, see People v. Rogers, 20 P.3d 1238, 1239 (Colo.App.2000), awarding full restitution, without regard to a defendant’s ability to pay, does not offend Eighth Amendment proportionality principles. See People v. T.R., 860 P.2d 559, 565 (Colo.App.l993)(division expressed “difficulty in perceiving how a restitution order for direct losses suffered by a victim because of [defendant’s] malfeasance could implicate the Eighth Amendment”); see also United States v. Dubose, 146 F.3d 1141, 1145 (9th Cir.1998), aff'd United States v. Dean, 949 F.Supp. 782, 786 (D.Or.1996)(‘Where the amount of restitution is geared directly to the amount of the victim’s loss caused by the defendant’s illegal activity, proportionality is already built into the order.”); United States v. Smith, 944 F.2d 618, 624 n. 2 (9th Cir.1991)(“if full restitution is not ordered at the time of sentencing, an indigent defendant would evade the statutory purpose of making the victim whole in the event that he should come into sufficient funds”).

We therefore reject defendant’s contention that the court violated his Eighth Amendment right against excessive fines by ordering restitution without considering his ability to pay.

We also reject defendant’s contention that the court violated his right to due process by ordering restitution without regard for his ability to pay. Defendant does not cite any authority in support of his argument, nor are we aware of any.

The Fourteenth Amendment and Colo. Const, art. II, § 25 provide that no person shall be deprived of life, liberty, or property without due process of law.

Due process prohibits revocation of probation based on a bona fide inability to pay restitution. See Bearden v. Georgia, 461 U.S. 660, 667, 103 S.Ct. 2064, 2070, 76 L.Ed.2d 221 (1983). Section 16-18.5-105(3)(d), C.R.S.2003, adequately protects this interest by providing that probation may not be revoked if ‘The defendant establishes that he or she was unable to make the [restitution] payments.”

Thus, we hold that neither the Eighth Amendment nor due process is violated by ordering a defendant at sentencing to pay the full pecuniary loss caused by his or her criminal conduct.

II.

Defendant next contends that the trial court erred in basing its restitution order on the replacement value of the unrecovered computers rather than on their fair market value when they were stolen. Again, we disagree.

Defendant’s reliance on People v. Brigner, 978 P.2d 163 (Colo.App.1999), is misplaced. Not only is Brigner distinguishable on its facts, but there the issue was not whether restitution was awardable on the basis of replacement or fair market value but, rather, whether a defendant could be required to pay restitution for losses not attributable to his criminal conduct.

Section 18-1.3-205, C.R.S.2003, requires the trial court, as a condition of every sentence to probation, to order the defendant to “make full restitution” pursuant to the provisions of § 18-1.3-601, et. seq., and § 16-18.5-101, et seq., C.R.S.2003. Section 18-1.3 — 602(3)(a) defines “restitution” as “any pecuniary loss suffered by a victim, and includes but is not limited to all out-of-pocket expenses ... anticipated future expenses ... and other losses or injuries proximately caused by an offender’s conduct and that can be reasonably calculated and recompensed in money.”

In Colorado, when the value of property is an element of the offense that must be proved beyond a reasonable doubt, it is determined by the victim’s “economic loss.” However, the value of property for purposes of restitution is determined by the victim’s “actual, pecuniary loss” or the amount of money that will “fulfill[ ] the statutory purpose of simply making the victim whole to the extent practicable.” People v. Courtney, 868 P.2d 1126, 1128 (Colo.App.1993).

Although states such as Florida, Georgia, and Texas use the fair market value standard in determining restitution, those states’ restitution statutes differ from Colorado’s statute.

In People v. Courtney, supra, a division of this court upheld a restitution order awarding out-of-pocket expenses incurred in repairing a stolen car, which exceeded the fair market value of the car. The division concluded that the award did not result in a windfall, but simply made the victim whole to the extent practicable. People v. Courtney, supra, 868 P.2d at 1128.

We recognize that where, as here, restitution is sought for “anticipated future expenses,” the use of a replacement, rather than fair market, value standard leaves open the possibility that victims could reap windfall benefits. However, a victim who anticipates incurring future expenses, like a victim who has already incurred out-of-pocket expenses, is entitled to be placed in the same financial position he or she would have been in had the wrong not been committed. Thus, the award of a reasonable replacement value is appropriate when the victim demonstrates that he or she must or will replace an item that is not readily replaceable at a fair market value cost. Cf. United States v. Shugart, 176 F.3d 1373, 1375 (11th Cir.1999)(for purposes of federal restitution statute, replacement cost may be a better measure of value when “an item is unique” or “there is not a broad and active market for it”).

Here, the victim was obliged to replace five of the computers under a lease arrangement, or it had to buy the leases out. As such, the victim adequately demonstrated that it had to replace the computers and that the replacement value would be dictated by the leases, rather than a fair market value for the stolen computers.

Further, the evidence necessarily implied that the victim would replace the other computers as well. And we conclude that the trial court reasonably assumed that there was not a broad and active market for used computers comparable to those stolen, particularly considering today’s constantly evolving technological marketplace.

Under these circumstances, we reject defendant’s contention that the trial court erred in basing its restitution order on the replacement value of the unrecovered computers. Cf. People v. Courtney, supra, 868 P.2d at 1128 (money spent to repair vehicle damaged by defendant was properly included in restitution order); People v. Engel, 746 P.2d 60, 62 (Colo.App.1987)(money spent to repair house damaged by defendant in order to resell it was properly included in restitution order).

III.

Finally, defendant contends that the prosecution provided insufficient evidence to prove that he owed the victim $28,878 in restitution. More specifically, he argues that the prosecution failed to prove “with any definiteness the actual pecuniary damage sustained by [the victim]” and that “the method of assessing the [victim’s] loss and restitution value” was too speculative. We are not persuaded.

The prosecution bears the burden of proving by a preponderance of the evidence the amount of restitution owed, People v. Hoisington, 902 P.2d 887, 888 (Colo.App. 1995), and more than speculation is required for a defendant to bear responsibility for a victim’s loss. Cumhuriyet v. People, 200 Colo. 466, 469, 615 P.2d 724, 726 (1980).

Here, the witness who testified on the victim’s behalf stated that the amount of restitution sought by his company was based on the “replacement costs of the pieces of equipment” and the “penalties that we were assessed from the leasing company.” The witness explained that the replacement costs had been provided by “the vendor from whom we obtain machines” and that they were based on “the closest equivalent” computers available at the time. The witness further explained that five of the unrecov-ered computers had been leased and that those leases would either have to be bought out or new computers purchased and returned to the leasing company. This evidence was sufficient to support the award.

The order of restitution is, therefore, affirmed.

Judge LOEB and Judge NEY concur.


author: Chief Judge DAVIDSON.

text:
    John R. BROCK, Jr., and Ann W. Brock, Plaintiffs-Appellees, v. John E. WEIDNER and Peggy S. Weidner, Defendants-Appellants, and Discovery Homeowners Association and Architectural Control Committee, Defendants-Appellees.
    No. 02CA2519.
    Colorado Court of Appeals, Div. A.
    April 8, 2004.
    Rehearing Denied May 13, 2004.

      Mulliken, Gleason, Weiner, Whitney & Jo-livet, P.C., Steven K. Mulliken, Gregory M. O’Boyle, Colorado Springs, Colorado, for Plaintiffs-Appellees.
    Daniel Stageman, P.C., Daniel B. Stage-man, Colorado Springs, Colorado, for Defendants-Appellants.
    Susemihl, McDermott & Cowan, P.C., C. David McDermott, Colorado Springs, Colorado, for Defendants-Appellees.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3), and § 24-51-1105, C.R.S.2003.

   Opinion by

Chief Judge DAVIDSON.

Defendants, John E. Weidner and Peggy S. Weidner, appeal from the judgment dismissing an action filed against them by plaintiffs, John R. Brock, Jr., and Ann W. Brock. Specifically, defendants appeal the portion of the judgment declining to award them costs and attorney fees under a contractual fee-shifting provision. We reverse that portion of the judgment and remand.

Plaintiffs filed a complaint seeking injunc-tive and declaratory relief and damages arising from defendants’ plans to build an addition to their home. Plaintiffs alleged that the proposed construction would violate the restrictive covenants of the subdivision, and that certain preliminary tree removal had already violated the covenants.

Plaintiffs named as additional defendants the Discovery Homeowners Association and its architectural control committee (collectively DHA). Plaintiffs alleged that DHA improperly ratified or failed to prohibit defendants’ actions. Plaintiffs also sought to recover their costs and attorney fees pursuant to a fee-shifting provision in the covenants, which provides as follows: “[The] successful party in any proceeding to enforce these covenants, conditions and restrictions shall be entitled to recover the costs of said proceeding including reasonable attorney’s fees.”

Following an evidentiary hearing on plaintiffs’ motion for a preliminary injunction, the trial court denied that request. The court found that defendants proceeded properly in seeking approval for the project and that DHA acted in a reasonable and good faith manner when it construed ambiguous provisions of the covenants and allowed defendants to continue with the project.

Plaintiffs sought a jury trial on their remaining claims, which prompted objections from defendants and DHA. Noting that the basic thrust of the action was equitable, the trial court denied the jury demand.

Plaintiffs then filed a motion for partial summary judgment citing three allegedly undisputed breaches of the covenants by defendants and DHA. The trial court denied plaintiffs’ motion after concluding that there were disputed material issues of fact, and plaintiffs then set the case for trial.

Approximately two months later, plaintiffs and DHA filed a joint motion seeking dismissal of the action based on a settlement agreement they had reached. The settlement agreement provided that it became effective only if the trial court dismissed the action and it required all parties, including defendants, to pay their own attorney fees. The motion indicated that defendants would object to the requested relief.

Defendants filed an objection, arguing that any dismissal should be conditioned on plaintiffs being required to pay defendant’s attorney fees under the fee-shifting provision in the covenants.

Thereafter, the trial court entered an order dismissing the action under C.R.C.P. 41(a)(2). The order specified that the dismissal was “with prejudice” as to plaintiffs’ claims against DHA and that all parties would pay their own costs and attorney fees.

Defendants filed a timely C.R.C.P. 59 motion asking the trial court to modify the order to provide that (1) dismissal of the claims against them also be with prejudice and (2) they be allowed to recover their costs and attorney fees pursuant to the fee-shifting provision in the covenants.

Plaintiffs then filed an amended motion that sought dismissal of all claims with prejudice, and the trial court entered an amended dismissal order granting that motion. In its amended order, the trial court found that the issues were “close and difficult” and concluded that an award of attorney fees was not warranted.

Defendants contend that the trial court abused its discretion in declining to require plaintiffs to pay their attorney fees either as a condition of dismissal under C.R.C.P. 41(a)(2) or pursuant to the fee-shifting provision in the covenants. We agree that an award of attorney fees to defendants was proper under the covenants.

I. Attorney Fees under C.R.C.P. 41(a)(2)

Initially, we perceive no error or abuse of discretion by the trial court insofar as it declined to award attorney fees as a condition of dismissal pursuant to C.R.C.P. 41(a)(2). Absent exceptional circumstances, such as repeated harassing suits by a plaintiff, a defendant may not recover attorney fees when a plaintiff obtains dismissal of an action with prejudice under that rule. See AeroTech, Inc. v. Estes, 110 F.3d 1523, 1528 (10th Cir.1997)(applying substantially similar federal counterpart to C.R.C.P. 41(a)(2)); see also 8 J.W. Moore, Moore’s Federal Practice ¶ 41.40[10][d] (2003); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2366 (1995).

Because the trial court dismissed the action with prejudice and because no exceptional circumstances were present in this case, the trial court properly declined to require plaintiffs to pay defendants’ attorney fees as a condition of the dismissal under C.R.C.P. 41(a)(2). See AeroTech, Inc. v. Estes, supra.

II. Attorney Fees under the Covenants

However, we conclude that the trial court abused its discretion in not requiring plaintiffs to pay defendants’ reasonable costs and attorney fees as the “successful parities]” in the proceeding under the fee-shifting provision in the covenants.

In the absence of a specific statute, court rule, or contract provision to the contrary, attorney fees are not recoverable by a prevailing party in a contract or tort action. Bernhard v. Farmers Ins. Exch., 915 P.2d 1285, 1287 (Colo.1996).

Fee-shifting provisions are expressly designed to override the otherwise applicable rule that the losing party does not have to pay the winner’s attorney fees. These provisions generally contemplate that the “prevailing party” will be entitled to recover its attorney fees and that there will be one winner and one loser regarding payment of those fees. See Wheeler v. T.L. Roofing, Inc., 74 P.3d 499, 503-04 (Colo.App.2003).

The determination of which party succeeded or prevailed under a contractual fee-shifting provision is committed to the discretion of the trial court subject, however, to an abuse of discretion standard of review on appeal. See Dennis I. Spencer Contractor, Inc. v. City of Aurora, 884 P.2d 326, 328 (Colo.1994).

Here, defendants achieved substantial success in the litigation. Indeed, it is difficult to see how defendants could have been any more successful than they were. Defendants succeeded in precluding plaintiffs from obtaining a preliminary injunction to block construction of the addition. Defendants then succeeded in defending against both plaintiffs’ motion for partial summary judgment and plaintiffs’ demand for a jury trial. Plaintiffs’ motion to dismiss acknowledged defendants’ success by indicating that further litigation would be counterproductive and that “[t]he injunctive relief sought ... in this action is moot as the construction sought to be enjoined ... is now nearly complete.”

The action culminated in the dismissal with prejudice of all claims against defendants. Such a dismissal is considered an adjudication on the merits. See O’Done v. Shulman, 124 Colo. 445, 448, 238 P.2d 1117, 1118 (1951); see also Harrison v. Edison Bros. Apparel Stores, Inc., 924 F.2d 530, 534 (4th Cir.1991)(voluntary dismissal with prejudice under Fed.R.Civ.P. 41(a)(2) is a complete adjudication on the merits and no adjudication in favor of defendants, by court or jury, can rise higher).

Defendants succeeded on every contested issue in the case and the action ultimately was dismissed with prejudice. Therefore, defendants were the successful parties in the proceeding. See Cobabe v. Crawford, 780 P.2d 834 (Utah Ct.App.1989)(defendants were successful parties under contractual fee-shifting provision where plaintiffs voluntarily dismissed litigation with prejudice); 1 Mary Frances Derfner & Arthur D. Wolf, Court Awarded Attorney Fees ¶ 9.02, at 9-11 (1999)(a plaintiffs decision to dismiss with prejudice should make the defendant a prevailing party).

Accordingly, the trial court abused its discretion by failing to identify defendants as the prevailing parties under the fee-shifting provision in the covenants.

We further conclude that because defendants are the prevailing parties, the trial court is required to award them reasonable attorney fees. Although it was not relied on by the trial court, we are aware that the provision in the covenants here that the prevailing party “shall be entitled” to recover reasonable attorney fees was previously construed in Grynberg v. Agri Tech, Inc., 985 P.2d 59, 65 (Colo.App.1999), aff'd on other grounds, 10 P.3d 1267 (Colo.2000), to vest discretion in the trial court to refuse to award fees. However, we conclude that a departure from that holding is warranted. We agree with Grynberg insofar as it determined that the word “entitled,” when standing alone, is not a mandatory directive. However, by focusing entirely on that word, the Grynberg analysis appeal's not to have given sufficient weight to the qualifying words “shall be.” When the word “entitled” is viewed, not in isolation but in conjunction with the verb form “shall be,” the phrase is more properly construed as requiring the trial court to award attorney fees to the prevailing party. Thus, under the provision in the covenants here, once the prevailing party has been identified, the trial court must award to it appropriate attorney fees.

The portion of the judgment declining to award costs and attorney fees under the fee-shifting provision in the covenants is reversed, and the case is remanded for a determination of a reasonable award under that provision, including an award of attorney fees on appeal. In all other respects, the judgment is affirmed.

Judge STERNBERG and Judge METZGER concur.


text:
    The PEOPLE of the State of Colorado, Petitioner-Appellant, In the Interest of J.W.T., a Child, Juvenile-Appellee.
    No. 03CA0989.
    Colorado Court of Appeals, Div. IV.
    April 8, 2004.
    Rehearing Denied May 13, 2004.

      A. William Ritter, Jr., District Attorney, Evan W. Jones, Deputy District Attorney, Denver, Colorado, for Petitioner-Appellant.
    David S. Kaplan, Colorado State Public Defender, Marques Ivey, Deputy State Public Defender, Denver, Colorado, for Juvenile-Appellee.
   Opinion by

Judge GRAHAM.

The People appeal the Denver Juvenile Court’s dismissal of the petition in delinquency filed against J.W.T., a juvenile, charging him with acts that, if committed by an adult, would constitute the offense of unlawful possession of a weapon on school grounds, a class six felony under § 18-12-105.5(1), C.R.S.2003. We affirm.

The petition in delinquency alleged that J.W.T., who was thirteen years old at the time, was found in possession of a deadly weapon at his public middle school. The weapon in question was a knife with a blade that was three inches in length. Through counsel, J.W.T. filed a motion to dismiss the case, arguing that under the definition in § 18-12-101(1)©, C.R.S.2003, a knife must be over three and one-half inches in length for its possession to be punishable under § 18-12-105.5(1). After a hearing, the juvenile court dismissed the ease, determining that, because the prosecution had not shown that J.W.T.’s knife was over three and one-half inches long or that he used or intended to use the knife to cause injury, the statute was inapplicable.

On appeal, the People contend that the juvenile court erred in its interpretation of § 18-12-105.5(1). Specifically, the People argue that a plain reading of the statute discloses that the possession of a deadly weapon is prohibited and, citing cases stating that a knife is per se a deadly weapon, the possession of any knife is therefore punishable under that provision. We are not persuaded.

The court’s fundamental responsibility in statutory interpretation is to give effect to the General Assembly’s purpose or intent in enacting the legislation, and the analysis begins with the plain language of the statute itself. Martin v. People, 27 P.3d 846, 851-52 (Colo.2001). The plain and literal meaning of statutory language should be given effect, unless to do so would lead to absurd results. People in Interest of G.M., 844 P.2d 1341, 1343 (Colo.App.1992).

It is presumed that, in enacting legislation, the General Assembly intended that the entire statute be effective. Section 2-4-201(l)(b), C.R.S.2003. If the language of the statute unambiguously sets forth legislative intent, a reviewing court need not apply additional rules of statutory construction to determine the statute’s meaning. Martin v. People, supra.

In analyzing a statute, a court “must read and consider the statutory scheme as a whole to give consistent, harmonious and sensible effect to all its parts.” Charnes v. Boom, 766 P.2d 665, 667 (Colo.1988). Where possible, statutes governing the same subject must be reconciled. Bynum v. Kautzky, 784 P.2d 735, 738 (Colo.1989). Further, a construction that would render part of a statute meaningless should be avoided. People v. Terry, 791 P.2d 374, 376 (Colo.1990).

Here, three sections of the criminal code are at issue. Section 18-12-105.5(1), defining unlawful possession of weapons on school grounds, provides:

A person commits a class 6 felony if such person knowingly and unlawfully and without legal authority carries, brings, or has in such person’s possession a deadly weapon as defined in section 18-1-901(3) (e) in or on the real estate and all improvements erected thereon of any public or private elementary, middle, junior high, high, or vocational school....

(Emphasis added.)

Section 18-1-901, C.R.S.2003, provides definitions generally applicable to the Criminal Code, in pertinent part:

(1)Definitions set forth in any section of this title apply wherever the same term is used in the same sense in another section of this title unless the definition is specifically limited or the context indicates that it is inapplicable.
(3)(e) “Deadly weapon” means any of the following which in the manner it is used or intended to be used is capable of producing death or serious bodily injury:
(I) A firearm, whether loaded or unloaded;
(II) A knife;
(III) A bludgeon; or
(IV) Any other weapon, device, instrument, material, or substance, whether animate or inanimate.

(Emphasis added.)

However, § 18-12-101, C.R.S.2003, provides definitions applicable to article 12 of the Code, which concerns weapons offenses:

(1) As used in this article, unless the context otherwise requires:
(f) “Knife” means any dagger, dirk, knife, or stiletto with a blade over three and one-half inches in length, or any other dangerous instrument capable of inflicting cutting, stabbing, or tearing wounds, but does not include a hunting or fishing knife carried for sports use.

Based on the foregoing, the People argue that the definition of knife found in § 18-12-101(l)(f) is inapplicable because “the context otherwise requires” that the definition of “deadly weapon” be used. Relying on various cases, the People point out that knives have repeatedly been referred to as “per se” deadly weapons. However, we disagree that these references are dispositive of the question of whether a knife, without more, constitutes a deadly weapon for purposes of § 18-12-105.5(1).

The People cite Bowers v. People, 617 P.2d 560 (Colo.1980), in support of their argument that knives are per se deadly weapons, regardless of blade length. In Bowers, the supreme court addressed the question of whether a liquor bottle could be considered a “bludgeon” or “any other weapon” actionable as a deadly weapon under § 18-l-901(3)(e). The Court noted that § 18-l-901(3)(e) created two separate categories of deadly weapons. “Firearms, knives, and bludgeons are deadly weapons by their essential nature. All other items may or may not be deadly weapons, depending upon how they are used or intended to be used.” Bowers v. People, supra, 617 P.2d at 563; see also People v. Saleh, 45 P.3d 1272 (Colo.2002)(quoting Bowers v. People in case involving interpretation of § 18-1-901 (3)(e)(IV)); People v. Ross, 831 P.2d 1310 (Colo.1992)(noting Bowers v. People in observing that § 18-1-901(3)(e)(IV) provides a test for determining whether items other than firearms, knives, or bludgeons are deadly weapons).

However, the plain language of § 18-1-901(3)(e) defines a deadly weapon as “any of the following which in the manner it is used or intended to be used is capable of causing death or serious bodily injury.” Thus, a knife is a per se deadly weapon when it is used or intended to be used during the commission of another crime. See, e.g., § 18-3-202(l)(e)-(e.5), C.R.S.2003 (first degree assault involving threatened use of a deadly weapon); § 18-3-203(l)(b), (d), C.R.S.2003 (second degree assault involving use of a deadly weapon); § 18-3-206, C.R.S.2003 (felony menacing involving use or threatened use of a deadly weapon); § 18-3-302(4)(a)(II)-(III), C.R.S.2003 (kidnapping); § 18-3-402(5)(a)(III), C.R.S.2003 (sexual assault); § 18-4-302(l)(b), C.R.S.2003 (aggravated robbery); see also Williams v. People, 687 P.2d 950, 954-55 (Colo.1984)(discussing amendment of the definition of deadly weapon in response to supreme court’s opinion in People v. McPherson, 200 Colo. 429, 619 P.2d 38 (1980)).

Here, however, the issue is the interpretation of “deadly weapon” as that term is used in another section of the criminal code. Section 18-1-901(1) specifically states that the definitions in that section apply unless specifically limited elsewhere. Section 18-1-901(3)(e) does not specifically define the term “knife.” However, § 18 — 12—101(l)(f) specifically limits the term “knife” to a weapon with a blade longer than three and one-half inches in length. Consequently, reading and harmonizing these provisions together, the plain language of both provisions establishes that, for purposes of § 18-12-105.5(1), where the deadly weapon at issue is a knife, it must qualify as a “knife” under § 18 — 12—101(l)(f).

Moreover, we observe that the definitional provisions of § 18-12-101 were revised and reenacted in 1971. The definition of “knife” was the same as it appears in the current statute. Colo. Sess. Laws 1971, ch. 121, § 40-12-101(l)(h) at 481. The provision making it illegal to possess a deadly weapon on school grounds was originally enacted in 1989. See Colo. Sess. Laws 1989, ch. 167, § 18 — 12—105(l)(d) at 911. The provision was moved in 1993 to its current location, § 18-12-105.5(1). Colo. Sess. Laws 1993, ch. 214, at 965-66.

We must presume that the General Assembly was cognizant of the preexisting definition of “knife” in § 18 — 12—101(l)(f) when it enacted § 18-12-105.5(1). The term “knife” as used in the definition of deadly weapon in § 18-l-901(3)(e) is not specifically defined. To interpret “deadly weapon” as that term is used in § 18-12-105.5(1) without incorporating the § 18-12-101(1)® definition of the term “knife” would render the definitional provision meaningless. See People v. Drake, 983 P.2d 135, 136 (Colo.App.1999)(eourts may not assume a legislative intent that would vary the words used by the General Assembly); see also People v. Sharp, 979 P.2d 33, 35 (Colo.App.1998)(interpretations that render statutory provisions superfluous should be avoided).

We are also unpersuaded by the People’s reliance on the language in § 18-12-101(1), which states that the definitions of that section apply “unless the context otherwise requires.” While the People argue that the context of § 18-12-105.5(1) requires that the deadly weapon definition apply, we again note that the term “knife” is not specifically defined in the deadly weapons statute. Instead, that definition is specifically limited by the definition contained in § 18-12-101(l)(f).

Thus, we conclude that the plain language of the two definitional provisions, §§ 18-1-901 and 18-12-101, compels the conclusion that a person carrying a knife with a blade less than three and one-half inches in length, on school grounds, cannot be prosecuted under § 18-12-105.5(1) unless the prosecution can also establish that the person used or intended to use the knife as a weapon.

We recognize the People’s observation that this construction can lead to the absurd result that a person can carry a knife less than three and one-half inches in length on school grounds as long as he or she does not use or intend to use it as a weapon. We are not suggesting that schools may not adopt regulations prohibiting possession of any knife or weapon. Our holding is directed to situations where a juvenile is charged with a felony necessitating proof of specified elements of the crime. It is up to the General Assembly to determine policy regarding what weapons are punishable as felonies when possessed on school grounds. Cf. § 22-33-106(l)(d)(I), C.R.S.2003 (mandatory expulsion from school of children who carry, bring, use, or possess a “dangerous weapon” without authorization; defining “dangerous weapon” in part as “a fixed blade knife with a blade that measures longer than three inches in length or a spring loaded knife or a pocket knife with a blade longer than three and one-half inches.”).

Here, the knife found in J.W.T.’s possession had a blade that was not longer than three and one-half inches in length. Because of its length, the blade does not qualify as a knife as defined, and it could only qualify as a “knife” under the catchall provision of § 18-12-101(1)® if it was “capable of inflicting cutting, stabbing, or tearing wounds.” To so qualify the knife, the prosecution would have been required to prove that J.W.T. intended to use the knife as a weapon. See A.P.E. v. People, 20 P.3d 1179, 1183 (Colo.2001)(because all knives of any blade length necessarily meet the catchall definition in § 18-12-101(1)®, a conclusion that any knife is per se illegal would render meaningless the blade length distinction). At the motions hearing held in this case, the prosecution stated that it did not intend to present evidence that J.W.T. was using the knife or that he intended to use it. Consequently, the juvenile court properly dismissed the charges.

The judgment is affirmed.

Judge CASEBOLT and Judge LOEB concur.


author: Judge DAILEY. Judge VOGT

text:
    Renita D. BELL, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Regional Transportation District, Respondents.
    No. 03CA1161.
    Colorado Court of Appeals, Div. V.
    April 22, 2004.
    As Modified on Denial of Rehearing May 20, 2004.

      H.A. Lowe & Associates, LLC, Horace A. Lowe, Denver, Colorado, for Petitioner.
    No Appearance for Respondent Industrial Claim Appeals Office.
    Erica A. Weber, Denver, Colorado, for Respondent Regional Transportation District.
   Opinion by

Judge DAILEY.

Renita D. Bell (claimant) seeks review of a final order of the Industrial Claim Appeals Office (Panel) that upheld a hearing officer’s decision disqualifying her from the receipt of unemployment benefits upon her separation from employment with the Regional Transportation District (employer). The disqualification was imposed pursuant to § 8-73-108(5)(e)(VI), C.R.S.2003 (separation from employment due to insubordination). We set aside the Panel’s order and remand for further proceedings.

Following an evidentiary hearing, the hearing officer found, as the proximate cause of claimant’s job separation, claimant’s refusal to comply with employer’s instructions to return to work after a disciplinary suspension and to sign a job performance agreement.

As to the underlying circumstances, the heai'ing officer found that (1) employer reasonably suspended claimant for five days because of valid and genuine concerns over claimant’s job performance; (2) employer reasonably requested claimant to agree to a “performance contract and last chance agreement” in order to return to work; (3) the agreement required claimant to timely complete her tasks, cooperate while on the job, maintain confidentiality of the business, promptly answer the phone, and keep accurate records; (4) in requesting claimant to agree to perform her job satisfactorily and in a timely fashion, employer made no unreasonable demands; (5) claimant would have been permitted to return to work if she had returned to work following her suspension and agreed to perform her work properly; and (6) claimant was discharged after voli-tionally failing to return to work and refusing to sign the performance agreement.

Based on these findings, the hearing officer ruled that claimant was at fault for her separation from employment, and imposed a disqualification from unemployment benefits pursuant to § 8-73-108(5)(e)(VI). On review, the Panel affirmed, concluding that the hearing officer’s factual findings were supported by the record and that there was nothing objectively unreasonable about an employer instructing an employee to agree to properly perform her job duties.

I.

Initially, we reject claimant’s challenge to the hearing officer’s finding that employer had genuine and valid concerns about certain aspects of claimant’s job performance. Although conflicting evidence was presented, the hearing officer’s finding is supported by substantial evidence in the record. Accordingly, we will not disturb it on review. See § 8-74-107(4), C.R.S.2003; Tilley v. Indus. Claim Appeals Office, 924 P.2d 1173, 1177 (Colo.App.1996).

II.

We agree, however, that the Panel erred in concluding that the disqualifying circumstances of § 8-73-108(5)(e)(VI) exist in this case.

Section 8-73-108(5)(e)(VI) provides for disqualification from unemployment benefits when a job separation results from insubordination, a term that includes “[djeliberate disobedience of a reasonable instruction of an employer.”

As noted by claimant, an objective standard must be applied in analyzing a disqualification under § 8-73-108(5)(e)(VI) for insubordination. Under that standard, the Panel must use its independent judgment to determine whether, under the particular facts and circumstances of each ease, the request that claimant refused was one that a reasonable person would have refused. Rose Med. Ctr. Hosp. Ass’n v. Indus. Claim Appeals Office, 757 P.2d 1173, 1174 (Colo.App.1988); cf. Davis v. Indus. Claim Appeals Office, 903 P.2d 1243, 1244-45 (Colo.App.1995)(similar analysis used to assess disqualification under § 8-73-108(5)(e)(XIV), C.R.S.2003, for rude, insolent, or offensive behavior).

In determining this issue, the Panel makes an ultimate legal conclusion based on undisputed evidence or established findings of material fact. See Cole v. Indus. Claim Appeals Office, 964 P.2d 617, 618-19 (Colo.App.1998)(reviewing fault and disqualification determinations); Bd. of Water Comm’rs v. Indus. Claim Appeals Office, 881 P.2d 476, 478 (Colo.App.1994)(same).

On appeal, we are free to draw our own conclusions from relevant documents in the record, Colo. Dep’t of Pers. v. Alexander, 970 P.2d 459, 467 (Colo.1998), and we review de novo the Panel’s ultimate legal conclusion. See Coates, Reid & Waldron v. Vigil, 856 P.2d 850, 856 (Colo.1993)(“the coiTectness of a legal conclusion drawn by the Panel from undisputed facts is a matter for the appellate court, and where the decision of the Panel is based upon an improper application of the law, a reviewing court may set aside the [order]”).

Here, the hearing officer and the Panel concluded that claimant was disqualified from receipt of unemployment benefits because she (a) failed to sign a performance agreement after employer had reasonably requested her to do so and (b) failed to return to work. We will address these points in turn.

A.

With respect to the performance agreement, we first observe that claimant was required under the agreement not only to perform her job satisfactorily, but also to waive significant legal protections and rights. In this latter regard, the agreement required claimant to (1) admit she had engaged in substandard performance of duties in violation of the policies of the salaried employees’ handbook; (2) be deemed to have submitted an irrevocable resignation from employment if she violated the agreement in the next six months; (3) waive any administrative appeal normally afforded salaried employees with respect to such resignation and consequent termination from employment; and (4) release, acquit, and forever discharge employer and its agents from any and all claims, causes, and causes of action she had or may have against them.

We also note that, by its terms, the agreement was but a means of settling outstanding differences between the parties. In this regard, the agreement recited that (1) claimant had the right to contest her then pending discipline pursuant to the provisions of employer’s salaried employees’ handbook; (2) claimant was voluntarily entering into the agreement in return for not being terminated from employment; (3) both parties recognized that the resolution of the then pending employment dispute “cannot be reasonably predicted and that further administrative action will require expenditure of significant resources by all parties”; and (4) both parties were entering into the agreement “solely for the purpose of avoiding further administrative action.”

Thus, it is apparent that the agreement was proposed as an alternative to, and not as an additional ground for, termination of claimant’s employment. In such circumstances, a reasonable person in claimant’s position could either (1) sign the agreement or (2) not sign the agreement and take his or her chances in then pending disciplinary proceedings. The second option is reasonable because it keeps intact all available employee protections regarding a present employment dispute and preserves all potential causes of action against employer and its agents.

Consequently, while, as the hearing officer found, employer could reasonably request claimant to consider settling their differences, we conclude that, because claimant was not obliged to settle, her refusal to sign the settlement agreement could not be insubordination. See Seymore v. Reader’s Digest Ass’n, 493 F.Supp. 257, 265 (S.D.N.Y.1980)(“aets done in defense of an employee’s contract rights ... are not insubordination and do not justify termination of employment”); see also Bigda v. Fischbach Corp., 898 F.Supp. 1004, 1017 (S.D.N.Y.1995) (“employees’ pursuits of their contract rights cannot constitute disloyalty”), aff'd, 101 F.3d 108, 1996 WL 107342 (2d Cir.1996); cf. Schwarze v. Solo Cup Co., 112 Ill.App.3d 632, 68 Ill.Dec. 228, 445 N.E.2d 872, 876 (1983)(“It has long been recognized that a discharged employee need not accept an offer of reemployment where to do so would constitute a disadvantageous renegotiation of his original contract or an abandonment of his rights and remedies thereunder.”).

For these reasons, we conclude that the Panel improperly upheld the hearing officer’s denial of benefits by treating claimant’s refusal to sign the performance agreement as insubordination.

We emphasize the limited nature of our holding. When an employee’s job performance gives rise to a “last chance” settlement agreement, such as the one proposed here, and the employee refuses to sign the agreement, the employee may well be disqualified from receiving unemployment benefits. The disqualification may be premised, not on the refusal to sign the agreement, but on the actions and omissions that gave rise to the employer’s original dissatisfaction with the employee’s performance. See § 8-73-108(5)(e)(XX), C.R.S.2003 (benefits withheld when separation of employment was for failing to meet established job performance standards).

Although employer asserted as much here, the hearing officer did not address this assertion. Consequently, a remand is necessary to permit the hearing officer to further consider the appropriateness of disqualifying claimant from receipt of benefits because of her allegedly poor job performance.

B.

We reject employer’s contention that the Panel’s decision may be affirmed based solely on claimant’s failure to return to work after suspension. Nothing in the hearing officer’s ruling intimates that she found this issue to be separable from, or sufficient to support a disqualification apart from, claimant’s failure to sign the performance agreement. And although the evidence is conflicting, claimant testified that she did not return to work because she was led to believe that she would be terminated unless she signed the agreement, which she was unwilling to do.

In light of this evidence and the lack of more explicit findings, we are unable to conclude that the hearing officer would have denied benefits on this ground alone. Hence, on remand the hearing officer should consider this issue as well.

III.

In light of our disposition of this appeal, we need not address claimant’s remaining contentions of error.

Accordingly, the order is set aside, and the case is remanded for further proceedings in accordance with the views of this opinion.

Judge RUSSEL concurs.

Judge VOGT dissents.

Judge VOGT

dissents.

I respectfully dissent.

The Colorado Employment Security Act, § 8-70-101, et seq., C.R.S.2003, delegates to the hearing officer and the Panel the responsibility for applying the standards adopted by the General Assembly to determine whether, under all the circumstances of the case, a particular separation from employment should result in an award of benefits. Given the scope and purpose of the statutory scheme, our courts have refused to engraft civil wrongful discharge case law onto the Act. See Keil v. Industrial Claim Appeals Office, 847 P.2d 235 (Colo.App.1993)(holding that principles concerning wrongful discharge in civil case law are not determinative of entitlement and fault issues in an unemployment compensation benefits case).

Here, after a two-day evidentiary hearing, the hearing officer concluded that employer’s instruction regarding the performance agreement was reasonable in light of its “valid concerns about the claimant’s job performance.” In her appeal to the Panel, claimant focused primarily on disputing the asserted deficiencies in her job performance, but also argued that the performance agreement was unconscionable and coercive. The Panel disagreed, concluding, as did the hearing officer, that there was nothing objectively unreasonable in employer’s request.

In my view, the Panel correctly interpreted and applied the statutory standard it is responsible for applying to the circumstances of this case. For purposes of determining disqualification from unemployment benefits, “insubordination” is defined as including “[djeliberate disobedience of a reasonable instruction of an employer.” Section 8-73-108(5)(e)(VT), C.R.S.2003. The Panel found the instruction reasonable under all the circumstances, and there was no dispute that claimant deliberately did not obey the instruction.

The majority does not disagree that employer “could reasonably request claimant to consider settling their differences.” However, it then concludes that her refusal to comply with employer’s request that she sign a settlement agreement did not constitute insubordination. I disagree with the latter conclusion for three reasons.

First, in support of its conclusion, the majority relies on three cases from other jurisdictions that involve civil claims for wrongful discharge or breach of an employment agreement. I view these decisions as having limited applicability to a determination whether a separation from employment should result in an award of unemployment benefits under Colorado’s statutory scheme. See Keil v. Industrial Claim Appeals Office, supra.

Second, I interpret the performance agreement as a reasonable proposal to compromise a disputed issue, not as an improper attempt to require claimant to “waive significant legal protections and rights,” as the majority characterizes it.

As the majority recognizes, the hearing officer’s finding that employer had genuine and valid concerns about claimant’s job performance is supported by substantial evidence in the record. After acknowledging that claimant had the right to contest the discipline imposed for her substandard performance in accordance with employer’s handbook and that neither side could predict the outcome if she did so, the agreement provides that both employer and claimant will give up certain rights. Employer agrees not to impose any further disciplinary action beyond the five-day suspension for the performance issues, and claimant agrees that, if she does not comply with the job performance obligations in the agreement, she has given up her right to any internal administrative appeal she would otherwise have.

Notably, the agreement does not require that claimant forgo seeking workers’ compensation benefits or agree to some other condition that has been recognized as improper under Colorado law. See Vaske v. DuCharme, McMillen & Associates, Inc., 757 F.Supp. 1158 (D.Colo.1990). I do not view the agreement as either illegal or unconscionable, and am aware of no authority that would prevent an employer and an employee from entering into such agreement.

Third, and perhaps most important, upon review of the entire record, I am persuaded that neither employer’s termination of claimant nor the Panel’s subsequent determination that she was not entitled to unemployment benefits was unfair under all the circumstances.

The majority suggests that claimant should have had the option of not signing the agreement and taking her chance in then pending disciplinary proceedings. The record permits a reasonable inference that she in fact was given such an opportunity, but declined it.

Claimant’s supervisor testified that, when claimant was suspended in September 2002 based on job performance deficiencies that had previously been brought to her attention, she was asked to sign a performance contract. She disputed the terms and employer agreed to modify it. Thereafter, a second contract, with one “bullet item” removed, was presented to her. When she again refused to sign, she was not immediately fired. Rather, because she had already filed an administrative appeal, employer decided to go forward with the appeal hearing to give her a final opportunity to go through the appeal process. Claimant was told she should come back to work pending the outcome of the appeal. When claimant did not return to work, the appeal hearing was converted to a pretermination hearing.

A transcript of that internal administrative hearing is also included in the record. The transcript reflects that the employer’s hearing officer asked at the outset to hear “both sides of the issue.” After the supervisor stated employer’s position, claimant simply asked the hearing officer to confirm that she was being terminated for not signing a performance contract agreement and for missing two days of work. When the hearing officer did so, claimant responded: “That’s all I needed to know. We really don’t have anything else to talk about.” The hearing officer then explained that he had brought her in “to hear both sides to determine if the termination would stand” and “that is the reason for this hearing.” Claimant declined the offer, stating “I’ve had my questions answered. I’m done.” The hearing officer again clarified that claimant was “not terminated until the decision is final from this hearing.... This is a hearing to determine whether you are [going to] be terminated.”

At the subsequent unemployment compensation hearing, the employer’s hearing officer testified that his role at the administrative hearing was to make a determination of whether termination was appropriate or not; that he had the power to overturn whatever had previously been decided; and that he was “expecting to hear both sides of the issue so [he] could make a decision.”

This record was before the Panel when it made its determination. In my view, the Panel applied the correct legal standard and appropriately considered all the facts and circumstances of the case in determining that claimant was disqualified from receiving unemployment benefits. I would therefore affirm its order.


author: Judge MARQUEZ.

text:
    The PEOPLE of the State of Colorado through MORGAN COUNTY DEPARTMENT OF HUMAN SERVICES, Petitioner-Appellee, In the Interest of Leo M. YEAGER, incapacitated person, Respondent-Appellant.
    No. 03CA0809.
    Colorado Court of Appeals, Div. I.
    April 22, 2004.

      George N. Monsson, County Attorney, David W. Bute, Assistant County Attorney, Fort Morgan, Colorado, for Petitioner-Ap-pellee.
    Brandenburg Law Office, Dennis L. Brandenburg, Brush, Colorado, for Respondent-Appellant.
    Furman Kerns and Bauer, LLC, Timothy G. Kerns, Erie, Colorado, Guardian Ad Li-tem.
   Opinion by

Judge MARQUEZ.

In this involuntary guardianship proceeding, Leo M. Yeager, an incapacitated person who died during the pendency of this appeal, through his attorney, appealed the order holding that Yeager’s guardian, the Morgan County Department of Human Services (MCDHS), is a person for purposes of § 15-18.6-101, et seq., C.R.S.2003 (article 18.6), and authorizing MCDHS to execute a “do not resuscitate” (DNR) order on Yeager’s behalf. We affirm.

The parties stipulated to the relevant facts. Yeager, born June 6, 1924, was without any known relatives, friends, or acquaintances and suffered from numerous medical and mental health conditions. In February 1998, the trial court appointed a visitor and a guardian ad litem (GAL) for Yeager. The following month, it determined Yeager to be legally incapacitated and appointed MCDHS to be his guardian. The order required MCDHS to involve the trial court in any extraordinary medical actions, including “no CORE [no cardiopulmonary resuscitation] or no CODE orders.”

In January 2002, MCDHS filed a motion for a DNR order with respect to Yeager. The court appointed independent counsel for Yeager. Counsel, together with the parties, stipulated that Yeager suffered from advanced dementia, congestive heart failure, chronic obstructive pulmonary disease, and anemia. At hearings in August 2002 and March 2003, Yeager, his attorney, the GAL, and MCDHS representatives were all present.

The only witness at the March 2003 hearing was Yeager’s personal physician. He testified as to Yeager’s medical prognosis both with and without cardiopulmonary resuscitation (CPR). In addition, the trial court admitted a letter by the physician outlining his reasons for supporting the execution of a DNR order and a medical journal article discussing the ethics of CPR.

According to the physician, the likelihood of resuscitating Yeager would be approximately one out of a hundred. Even if resuscitation were successful, it was highly likely that he would be worse off after resuscitation. Resuscitation would likely cause injuries such as rib fractures and pneumothorax. His prognosis would worsen, his existing medical conditions would be exacerbated, and his life expectancy would be minimal. Yeager’s physician concluded that attempting resuscitation would be futile, cruel, and unethical.

Following the March 2003 hearing, the court found by clear and convincing evidence that Yeager lacked sufficient understanding or capacity to communicate responsible decisions concerning his person or to make financial or medical decisions. The court noted the physician’s observations that Yeager’s condition continued to deteriorate, that he had severe dementia, and that CPR was contraindicated. It found that Yeager presently had severe dementia, Alzheimer’s, chronic obstructive pulmonary disease, hypothyroidism, osteoarthritis, valvular heart disease, pulmonary hypertension, stenosis, and gas-troesophagial reflux disease. The court modified the original order appointing MCDHS as guardian to allow MCDHS “unlimited authority to approve and consent to medical decisions for Mr. Yeager, including but not limited to authority to enter DNR directives and orders on behalf of Mr. Yeager.” That modified order is the subject of this appeal.

I. Mootness

In September 2003, during the pen-dency of this appeal, Yeager passed away, and Yeager’s attorney continues this appeal of the same issues on Yeager’s behalf. We requested briefs from the parties on whether this appeal is now moot. Both MCDHS and Yeager’s attorney have responded, asserting that the appeal is not moot. We agree.

A case is moot when the relief sought, if granted, would have no practical legal effect. See State Bd. of Chiropractic Exam’rs v. Stjernholm, 935 P.2d 959 (Colo.1997); Carney v. Civil Serv. Comm’n, 30 P.3d 861 (Colo.App.2001). When issues presented in litigation become moot because of subsequent events, an appellate court will decline to render an opinion on the merits of an appeal. State Bd. of Chiropractic Exam’rs v. Stjernholm, supra; Van Schaack Holdings, Ltd. v. Fulenwider, 798 P.2d 424 (Colo.1990).

Here, both MCDHS and Yeager’s attorney direct our attention to the two exceptions to the mootness doctrine: (1) the court may resolve an otherwise moot case if the matter is one that is capable of repetition yet evading review; and (2) the court may hear a moot case involving issues of great public importance or recurring constitutional violation. State Bd. of Chiropractic Exam’rs v. Stjernholm, supra; Carney v. Civil Serv. Comm’n, supra. We conclude that both exceptions apply here.

Early in this action, evidence was presented that no medical situation called for an immediate decision as to resuscitation, but that the DNR order was sought in preparation for future exigencies. Yeager’s attorney, MCDHS, and the GAL all agreed at the hearing that entry of a DNR order for an incapacitated adult implicates a fundamental right.

While we recognize that situations may arise in which DNR orders are sought for incapacitated persons with longer life expectancies, future cases involving incapacitated persons with shorter life expectancies also could occur and would evade review. Further, appellate courts in this state have not addressed the issues raised here: (1) whether an independent court-appointed attorney has authority to pursue an appeal on behalf of an incapacitated person; (2) whether a county department of human services is a person under article 18.6 and has the authority to seek a DNR order; and (3) whether § 15-18.5-103(8), C.R.S.2003, limits a governmental entity’s authority to seek a DNR order. We view these issues as involving matters of great public importance and conclude that the appeal is not moot.

II. Authority of Yeager’s Counsel

MCDHS contends that Yeager did not give his independent court-appointed attorney authority to file an appeal and that the GAL has the sole discretion to file an appeal on Yeager’s behalf. Therefore, according to MCDHS, this appeal should be dismissed. We are not persuaded.

C.R.C.P. 17(c) provides:

Whenever an ... incompetent person has a representative, such as a general guardian, conservator, or other like fiduciary, the representative may sue or defend on behalf of the ... incompetent person. If ... such representative fails to act, he may sue by his next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an ... incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the ... incompetent person....

The court possesses broad discretion to appoint an attorney for an incapacitated person if it determines the person’s rights and interests cannot otherwise be adequately protected or represented. Dep’t of Insts. v. Carothers, 821 P.2d 891 (Colo.App.1991), aff'd, 845 P.2d 1179 (Colo.1993). However, the power to appoint counsel does not limit the court’s power to appoint a GAL. Carothers, supra.

Here, when appointing MCDHS as guardian in 1998, the trial court found that Yeager lacked sufficient understanding or capacity to make or communicate responsible decisions concerning his person. Yeager was not represented by counsel at that time. In January 2002, after MCDHS moved for the court’s permission to enter a DNR order for Yeager, the trial court appointed counsel. After the DNR order was granted, the trial court commented that the matter might be appealed, and later the court ordered that Yeager’s attorney continue to serve through his appeal.

All parties acknowledge that Yeager had no family members, relatives, or acquaintances who could testify as to his wishes in regard to the DNR order; nor did Yeager indicate his wishes at any time. There is no evidence in the record that Yeager ever communicated with counsel regarding any decisions affecting his legal rights, including this appeal.

The GAL was primarily concerned with whether the proper procedures were being followed. Prior to the hearing, the GAL explained that he had struggled with whether to take a position on the DNR order. He decided that “insuring due process” for Yeager was his’ most appropriate function at that time.

Generally, an attorney retained to litigate an issue has no power to appeal without authorization of the client. See Tobler v. Nevitt, 45 Colo. 231, 100 P. 416 (1909). We are not aware of any Colorado authority addressing whether court-appointed counsel may pursue an appeal on behalf of an incapacitated person who cannot communicate with counsel or give counsel direction. However, we need not answer this question because, while the GAL now asserts the trial court’s order should be affirmed, the GAL does not challenge the authority of Yeager’s attorney to pursue this appeal. To the contrary, at oral argument the GAL stated that he would “support [Yeager’s attorney’s] legal right to follow up the appeal.” The GAL also stated that it would be inappropriate to preclude any argument and that all positions should be argued. Thus, because the GAL supports the attorney’s pursuit of the appeal, we need not decide whether the attorney could pursue this appeal without the GAL’s support.

Therefore, under these circumstances, we conclude counsel has the authority to appeal these issues on Yeager’s behalf. See Estate of Milstein v. Ayers, 955 P.2d 78 (Colo.App.1998)(son of incapacitated person who appealed when the GAL failed to act had third-party standing to pursue the appeal).

III. Authority of MCDHS

Yeager’s attorney contends that MCDHS is not a “person” authorized by article 18.6 to execute a DNR order on behalf of an incapacitated person. We disagree.

Construction of a statute is a question of law, and the trial court’s judgment is subject to independent review by the appellate court. Fogg v. Macaluso, 892 P.2d 271 (Colo.1995). When presented with an issue that involves statutory construction, our review is de novo. Ginny’s Kids Int’l, Inc. v. Office of Sec’y of State, 29 P.3d 333 (Colo.App.2000).

Our primary task in construing a statute is to determine and give effect to the intent of the General Assembly. If separate clauses in the same statutory scheme may be harmonized by one construction, but would be antagonistic under a different construction, courts should adopt that construction which results in harmony. Christie v. Coors Transp. Co., 933 P.2d 1330 (Colo.1997). A strained or forced construction of a statutory term is to be avoided, and we must look to the context in which a statutory term is employed. Further, we must construe the statute as a whole so as to give consistent, harmonious, and sensible effect to all its parts and, if possible, give effect to every word in the statute. Ginny’s Kids Int’l, Inc. v. Office of Sec’y of State, supra.

Section 15-18.6-102, C.R.S.2003, describes the persons who may execute CPR directives:

Any adult over age eighteen who has the decisional capacity to provide informed consent to or refusal of medical treatment or any other person who is, pursuant to the laws of this state or any other state, authorized to make medical treatment decisions on behalf of an adult who lacks such decisional capacity, may execute a CPR directive.

(Emphasis added.)

For purposes of the Colorado Probate Code, a “person” is defined as “an individual or an organization.” Section 15-10-201(38), C.R.S.2003. “Organization” means, among other things, a government or governmental subdivision or agency. Section 15-10-201(35), C.R.S.2003.

Article 14 of the Probate Code, which applies to guardianships, expands the definition of “person” to include a “government, governmental subdivision, agency, or instrumentality.” Section 15-14-102(10), C.R.S.2003; see § 2-4^01(8), C.R.S.2003 (defining terms applicable to every statute; “person” means “any individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, limited liability company, partnership, association, or other legal entity”).

Article 14 further provides that a “person” becomes a guardian for an incapacitated person upon appointment by the court. Section 15-14-301, C.R.S.2003. A guardian’s duties as to an incapacitated person’s health care decisions are described as follows: “Except as otherwise limited by the court, a guardian shall make decisions regarding the ward’s support, care, education, health, and welfare.” Section 15-14-314(1), C.R.S.2003.

Yeager’s attorney concedes that MCDHS is a person who may be appointed as a guardian for purposes of article 14, but asserts that the context of article 18.6 requires a natural person to execute a CPR directive. We are not persuaded.

First, Yeager’s attorney argues that article 18.6 was enacted to provide a way for individuals to declare their desires as to life-sustaining procedures before they become incompetent. While that may be true, § 15-18.6-102 anticipates that the individual might not do so before incapacity, and Yeager’s attorney does not answer the question of who may make such a decision after incapacity.

Second, Yeager’s attorney points out that § 15-18.6-103, C.R.S.2003, requires detailed identifying information, such as birth date, sex, and eye and hair color, concerning the subject of a CPR directive. However, this section does not speak to who may execute CPR directives. It requires the state board of health to promulgate rules and protocols to aid emergency medical service personnel in identifying persons who have executed a CPR directive. Compare § 15-18.6-103 with Dep’t of Public Health & Environment Rule No. 1.1, 6 Code Colo. Regs. 1015-2 (citing § 15-18.6-103 as authority for rules pertaining to implementation of advance medical directives by emergency medical service personnel).

Third, Yeager’s attorney asserts that the General Assembly could have extended the broad definitions of “person” found elsewhere to article 18.6, but chose not to do so. However, the statutes show that the opposite is true. Section 15-18.6-102 specifically entrusts execution of CPR directives to any person who has legal authority to make health care decisions on behalf of an incapacitated person, and such authority is provided by other statutes.

To conclude that MCDHS is an organization that may make health care decisions for an incapacitated person under § 15-14-301, et seq., but may not execute a CPR directive under article 18.6, would be a strained interpretation that does not give effect to the words of the statute as a whole. Thus, we conclude that MCDHS, acting as a guardian, is a “person” authorized to execute a DNR order on behalf of an incapacitated person.

IV. Section 15-18.5-103(8)

Although the issue was not raised in the briefs on appeal, we asked the parties to provide supplemental briefs regarding the applicability of § 15-18.5-103(8). We now conclude that this statute does not require a contrary result.

Section 15-18.5-103(8) provides:

Except for a court acting on its own motion, no governmental entity, including the state department of human services and the county departments of social services, may petition the court as an interested person pursuant to part 3 of article 14 of this title. In addition, nothing in this article shall be construed to authorize the county director of any county department of social services, or designee of such director, to petition the court pursuant to section 26-3.1-104, C.R.S., in regard to any patient subject to the provisions of this article.

Yeager’s attorney points out that articles 18.5 and 18.6 were both added to title 15 in 1992 as part of the Colorado Patient Autonomy Act. Colo. Sess. Laws 1992, ch. 264 at 1984-90. He also notes that the purpose of article 18.5 was to provide proxy medical decision-makers for incapacitated persons who have no known advance medical directives or whose wishes are not known, § 15-18.5-101(l)(b), C.R.S.2003, and the purpose of article 18.6 is to provide a method for a person to make an advance medical directive specifically to refuse cardiopulmonary resuscitation. Section 15-18.6-102. Thus, he argues that the legislature intended that the person making medical decisions be a natural person most familiar with the patient’s wishes for medical treatment and that MCDHS is not an interested person. We are not persuaded.

Instead we agree with the GAL that article 18.5 provides for “interested persons” to select a designated individual to act as a proxy decision-maker for an adult patient who lacks decisional capacity. See § 15-18.5-103(4), C.R.S.2003. The term “interested person” is defined as a patient’s spouse; either parent of the patient; any adult child, sibling, or grandchild of the patient; or any close friend of the patient. Section 15-18.5-103(3), C.R.S.2003. A governmental entity is not included in that definition. Thus, § 15-18.5-103(8) provides that no governmental entity, including the county department of social services, may petition the court as an interested person.

The issue presented, however, is whether article 18.5 prohibits a governmental entity, acting as a guardian, from making CPR directives under article 18.6. Thus, article 18.5 does not contain any language expanding the scope of its restrictions to other provisions of article 18 (Colorado Medical Treatment Decision Act), and similar restrictive language is not found in article 18.6. Consequently, read in concert with the other provisions of article 18 and the guardianship act, the restrictive language of article 18.5 does not evidence an intention to prohibit all decision-making by a governmental entity acting as guardian. More specifically, § 15-18.5-103(8) does not preclude a governmental entity acting as a guardian from executing a CPR directive.

We also agree with MCDHS that the legislature indicated that the prohibition against MCDHS petitioning as an “interested person” applies only to seeking guardianship solely for the purpose of proxy medical decision-making. By placing this provision only in article 18.5, the legislature impliedly provided that MCDHS could properly request to be guardian for an incapacitated individual for other valid reasons pursuant to § 15-14-301, et seq. (guardianship of incapacitated persons), and under § 26-3.1-104, C.R.S. 2003 (provision of protective services for at-risk adults).

As MCDHS asserts, § 26-3.1-104 requires the department of human services to provide protective services for an incapacitated adult in need, § 26-3.1-104(1), C.R.S.2003, and urges the department to apply for guardianship for an incapacitated individual in appropriate circumstances. See § 26-3.1-104(2), C.R.S.2003. Also, the restriction in § 15-18.5-103(8) is absent from article 18.6 regarding CPR. Thus, any restriction in § 15-18.5-103(8) should not prevent a guardian from making a decision under § 15-18.6-102. Any other interpretation would render § 15-18.6-102 and many of the provisions of §§ 15-14-301, et seq., and 26-3.1-101, et seq., meaningless.

In our view, construing the statutory scheme as a whole, the statutes set forth above provide authority for MCDHS to be appointed guardian and, acting in that capacity, to petition for a DNR order and to execute a CPR directive on behalf of an incapacitated person. Any other reading of § 15-18.5-103(8) would lead to the absurd result of negating the provisions of other statutes regarding guardianship.

The language of § 15-18.5-103(8) does not appear in other provisions of article 18 and provides only that no governmental entity may petition the court as an “interested person.” This subsection begins by stating, “Except for a court acting on its own motion,” thus indicating that the court has authority to bypass even this procedure.

One commentator has observed that the narrowed class of interested persons is an effort to encourage family communication and consensus. The commentator continues:

The restriction of guardianship proceedings to the narrower class of interested persons is problematic in light of CRS § 15 — 14—[304], which states that any interested person [as defined more broadly in CRS § 15 — 10—201( [27]) ] can initiate a guardianship. The Act does not amend either of these existing Probate Code sections.
The effect of the Act on adult protective services proceedings is unclear. Section 103 of the proxy article states that “nothing in this article shall be construed to authorize” the DSS [department of social services] to file a petition pursuant to CRS § 26-3.1-104 regarding “any patient subject to this article.” This language may be more gratuitous than meaningful, however, insofar as CRS § 26-3.1-104 is self-executing and by its own terms empowers the DSS to initiate adult protective proceedings for any person age eighteen or older who is at risk of mistreatment or self-neglect.

S.F. Buchanan, The Colorado Patient Autonomy Act: Opportunities and Challenges, 21 Colo. Law.1901,1903-04 (Sept.1992).

Accordingly, we conclude that § 15-18.5-103(8) does not apply here.

V. Statutory Presumption

Yeager’s attorney contends that the trial court erred by substituting its judgment for that of an incapacitated person to allow the execution of the DNR order when no evidence existed to rebut the statutory presumption of consent to resuscitation found in § 15-18.6-104(3). We disagree.

A.

First, we are not persuaded by the assertion that the presumption of § 15-18.6-104(3) applies here. That subsection states: “In the absence of a CPR directive, a person’s consent to CPR shall be presumed.”

Thus, the presumption arises only in the absence of a CPR directive. Here, the trial court authorized MCDHS to enter a DNR order. Therefore, if the trial court acted within the scope of its authority in doing so, the presumption is inapplicable.

B.

We also disagree that the trial court erred by substituting its judgment for that of Yeager in the absence of clear and convincing evidence of Yeager’s actual wishes.

A clear and convincing standard of proof applies to the decision to authorize a DNR order under these circumstances. See Sabrosky v. Denver Dep’t of Soc. Servs., 781 P.2d 106 (Colo.App.1989).

“All adult persons have a fundamental right to make their own medical treatment decisions, including decisions regarding medical treatment and artificial nourishment and hydration.” Section 15-18.5-101(l)(a), C.R.S.2003. A clear and convincing standard of proof is required in cases where a fundamental right is concerned. In re A.W., 637 P.2d 366 (Colo.1981); see Cruzan v. Director, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990)(upholding state requirement of clear and convincing evidence to discontinue life sustaining procedures for person in persistent vegetative state).

In § 15-18.6-102, the General Assembly specifically permits other authorized persons to execute CPR directives for incapacitated persons.

Here, MCDHS presented expert evidence to support its motion to authorize a DNR order at the March 2003 hearing. Yeager presented no evidence to rebut the motion. After specifically considering the absence of evidence as to Yeager’s wishes, the trial court found that the original guardianship order should be modified to allow MCDHS unlimited authority to consent to and approve medical decisions for Yeager, including entering a DNR order.

In light of the evidence presented and in the absence of an existing medical directive or any evidence of Yeager’s wishes, we conclude that the trial court did not err. Thus, MCDHS was authorized to execute the DNR order, and the statutory presumption was not applicable.

VI. Evidentiary Issues

Yeager’s attorney also contends that the trial court erred by considering irrelevant evidence of the likelihood of Yeager’s surviving resuscitation, Yeager’s prognosis for full recovery, Yeager’s probable medical condition after resuscitation, and current views of the medical ethics of resuscitation. We disagree.

A trial court has considerable discretion in ruling upon the admissibility of evidence, and we will find an abuse of discretion only if its ruling is manifestly arbitrary, unreasonable, or unfair. Generally, evidence that logically tends to prove or disprove a fact in issue or that sheds light upon a matter contested is relevant. Evidence so remotely related to contested issues that it affords only conjectural inference should not be admitted. Wark v. McClellan, 68 P.3d 574 (Colo.App.2003).

Yeager’s attorney asserts that the evidence is not relevant, and therefore is not admissible, because it does not rebut the presumption that Yeager consented to CPR. Yeager’s attorney posits that the issue is not whether Yeager would have consented to CPR if he had known the facts presented in the evidence, but only whether he in fact consented before his incapacity.

However, we have already concluded that the court could authorize the guardian to enter a DNR order and that the presumption did not apply. The evidence was relevant to the trial court’s determination that the guardian would “act in the ward’s best interest and exercise reasonable care, diligence, and prudence.” Section 15-14-314(1), C.R.S. 2003.

Yeager’s attorney also asserts that such evidence is unduly prejudicial because the physician’s negative opinions tend to play on the emotions of the trier of fact and cloud the issue whether Yeager actually would have consented to CPR. However, he concedes that the evidence indicates what Yeager’s physician would have advised him in making his decision had the physician been able to do so before Yeager’s incapacity. Moreover, Yeager’s attorney provides no support from the record for the assertion that the court decided this case based on emotions or other personal considerations.

Therefore, we conclude that the trial court did not abuse its discretion in admitting evidence of Yeager’s prognosis or the ethics of performing CPR as concerns the best interest standard of § 15-14-314(1).

The order is affirmed.

Judge TAUBMAN and Judge WEBB concur.