text:
    UNIVERSITY OF COLORADO, Colorado Springs, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE of Colorado and Dianne Harrison, Respondents.
    No. 02CA1998.
    Colorado Court of Appeals, Div. III.
    June 5, 2003.

      Gary F. Burke, Arvada, Colorado, for Petitioner.
    Ken Salazar, Attorney General, Eric S. Rothaus, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.
    No Appearance for Respondent Dianne Harrison.
   Opinion by

Chief Judge DAVIDSON.

In this unemployment benefits case, petitioner, University of Colorado, Colorado Springs (employer), seeks review of a final order of the Industrial Claim Appeals Office (Panel) granting unemployment benefits to respondent, Dianne Harrison (claimant). The primary issue presented is whether a finality doctrine such as res judicata bars reconsideration by a deputy of his original decision onee that decision has been affirmed on review by the Panel. We conclude that it does not and, therefore, affirm.

The relevant facts are not in dispute. Claimant was separated from her job as an instructor for employer at the end of the spring semester in 2001, and she then filed a claim for unemployment benefits.

The major substantive issue regarding this claim for benefits for the period from May 27 through September 15, 2001 was whether claimant then had "reasonable assurance" of returning to work for the next academic term. - Section 878-1078), C.R.8.2002, requires the denial of unemployment benefits to employees of educational institutions during the period between academic years or terms when there is "reasonable assurance" that such employees will be rehired for the next academic year or term. See Herrera v. Indus. Claim Appeals Office, 18 P.3d 819 (Colo.App.2000).

In the deputy's original decision issued on February 27, 2002, claimant was denied benefits for that period in 2001 based on the application of $ 8-73-107(8) and the determination that she had reasonable assurance of returning to work. Claimant filed an untimely administrative appeal from that decision, which was later dismissed based on the determination that good cause had not been shown for permitting the untimely action. The Panel upheld that determination in a final order issued on May 22, 2002.

Nevertheless, on May 31, 2002, a "new" deputy's decision was issued on reconsideration pursuant to § 8-74-105, C.R.S.2002, which "replaced" the original decision issued on February 27. Under § 8-74-105, a deputy is authorized to reconsider a previous decision on his or her own motion within a twelve-month period "when it appears that an apparent procedural or substantive error has occurred in connection therewith."

Contrary to his original decision, in the reconsidered decision the deputy determined that claimant did not have reasonable assurance of returning to work and that § 8-73-107(3) did not apply to disallow benefits for the weeks in question. He further determined that, pursuant to $ 8-73-108(4)(a), C.R.S.2002, claimant was entitled to benefits based on this separation because she was laid off at the end of that assignment.

Employer appealed the reconsidered decision, and a hearing was scheduled. Employer thereafter filed a "motion to dismiss," challenging the reconsidered decision. In this motion, employer asserted that the deputy had improperly re-opened the claim because the subsequent proceedings were barred by res judicata and the deputy did not comply with the statutory requirements for issuing a reconsidered decision.

At the hearing, the hearing officer denied employer's motion. However, employer was not prepared to present evidence regarding the substantive issues and the hearing officer denied employer's motion for a continuance. Consequently, employer's appeal from the reconsidered decision was dismissed based on its failure to participate in the scheduled hearing.

Employer then appealed to the Panel. In this appeal, employer reiterated its arguments challenging the deputy's reconsidered decision, but it did not otherwise challenge the action dismissing its appeal for failure to participate.

In a final order issued on September 20, 2002, the Panel rejected employer's arguments challenging the deputy's reconsidered decision, and this appeal followed. We agree with the Panel that the deputy's reconsideration of his February 27, 2002 decision was not barred by the Panel's prior affirmance of that decision.

L.

Section 8-74-105 provides:

The deputy, hearing officer, or industrial claim appeals panel may, on his or its own motion, reconsider a decision within a twelve-month period subsequent to the date of decision when it appears that an apparent procedural or substantive error has occurred in connection therewith,. Notification of a decision on reconsideration and the reasons therefor shall be promptly given to all interested parties In the event that an appeal involving an original decision is pending as of the date on which a decision as a result of reconsideration is issued by the division, such appeal shall be considered void.

Employer argues that, because the Panel affirmed the dismissal of claimant's appeal of the deputy's February 2002 decision, the subsequent reconsideration by the deputy is barred by the doctrine of res judi-cata or similar finality principles. The Panel contends that the intent of § 8-74-105 is to override, to the extent applicable, any such principles. We agree with the Panel.

For purposes of construing a statute, we must first look to its plain language, see People v. Espinoza, 990 P.2d 1117 (Colo.App.1999), which must be read in context and accorded its plain and ordinary meaning. See Estate of Wright ex rel. Wright v. United Servs. Auto. Ass'n, 53 P.3d 683 (Colo.App.2001). If we determine that statutory language is ambiguous, we may look to rules of statutory construction and the legislative history as indications of the General Assembly's intent. See Grant v. People, 48 P.3d 543 (Colo.2002); Colo. Common Cause v. Coffman, — P.3d —, 2003 WL 1562241 (Colo.App. No. 01CA1709, Mar. 27, 2003).

By its plain language, § 8-74-105 authorizes sua sponte reconsideration of a decision by a deputy, hearing officer, or the Panel. The only time restriction or other limitation on this authority is that it be exercised within twelve months of the date of the original decision.

Because appeals within the unemployment compensation division are statutorily expedited, see § 8-74-106, C.R.S.2002 (fifteen days for appeal of deputy decision to hearing officer); § 8-74-104, C.R.S.2002 (fifteen days for appeal of hearing officer's decision to the Panel), the twelve-month reconsideration period will often span the entire division appeals process. Similarly, if a party does not appeal the decision of a deputy, hearing officer, or the Panel, that decision would be final long before the expiration of the time allotted for reconsideration under § 874-105. See § 8-74-106(1)(b), C.R.S.2002 (decision becomes final after time for appeal within the division passes).

Thus, because the statutory scheme allows reconsideration to occur months after multiple levels of appeal within the division have been completed, we conclude that the General Assembly intended to allow reconsideration notwithstanding otherwise applicable principles of finality. This conclusion is consistent with the recognition that, because of the attenuated time frame for review, a mechanism to catch obvious error was essential in the interest of fundamental fairness. See Renz v. Larimer County Sch. Dist. Poudre R-1, 924 P.24 1177 (Colo.App.1996) (reaching similar conclusion in workers' compensation case regarding priority of statutory reopening authority under that scheme over doctrines of res judicata and law of the case; statute reveals that General Assembly intended fairness concerns to override finality concerns); cf Hearings on H.B. 1202 before the House Business Affairs and Labor Committee, 50th General Assembly, Second Session (Feb. 12, 1976) (testimony suggesting that provision allows for clear errors to be "corrected before they go the entire appellate route").

Employer contends that, nevertheless, reconsideration of a decision can oceur only if an appeal of that decision has not been completed. The argument is that, by the language in § 874-105, which voids any appeal of an original decision that is "pending" when a reconsidered opinion is issued, the General Assembly intended that finality principles apply, conversely, to decisions that are no longer "pending" appeal. We disagree.

Reading this provision in context, we understand it merely to clarify the otherwise possibly uncertain status of cases on appeal at the time of reconsideration. Indeed, in light of the expedited division appeals process and the immediately preceding language allowing twelve months for reconsideration, employer's interpretation is inconsistent with the overall intent of the statute and would, more often than not, render the mechanism of reconsideration meaningless. See Lagae v. - Lackner, 996 P2d 1281, 1284 (Colo.2000)(although court must give effect to the plain and ordinary meaning of the words of the statute, "the General Assembly's intent and purpose must prevail over a literalist interpretation that leads to an absurd result").

Thus, we conclude that the Panel's determination of claimant's appeal of the deputy's original decision did not bar subsequent reconsideration by the deputy under § 8-74-105. Based on the posture of this case, however, it is unnecessary to address the effect of an appeal filed in this court, pursuant to § 8-74-107, C.R.9$.2002, on the authority of the deputy, hearing officer, or Panel to reconsider an original decision pursuant to § 8-74-105.

IL.

Employer also contends that, even if finality principles do not bar reconsideration, the deputy did not issue his reconsidered decision in compliance with the applicable statutory requirements. Again, we disagree.

First, contrary to employer's argument, there is no indication in the record that the reconsidered decision was issued as a result of any improper or unauthorized action taken by claimant. Rather, the record shows that the decision was properly issued solely on the deputy's own initiative in accordance with the requirements of § 8-74-105.

Second, the deputy adequately referenced a particular "procedural or substantive error," as required by § 8-74-105. The reconsidered decision notified the parties that it was issued pursuant to § 8-74-105 and that it was based on error concerning claimant's "reasonable assurance" of returning to work and the applicability of § 8-78-107(8). Thus, the record shows that the deputy determined that a substantive error had occurred in the original decision regarding these issues and took action to correct that error under the authority of § 874-105.

Under these cireumstances, we agree with the Panel that the reconsidered decision satisfied the requirements of § 874-105. See Allmendinger v. Indus. Comm'n, 40 Colo.App. 210, 571 P.2d 741 (1977)(upholding Industrial Commission's final order reversing its recently issued previous decision and noting "liberal" reconsideration procedures of § 8-74-105).

Accordingly, the Panel's September 20 order is affirmed.

Judge ROY and Judge WEBB concur.


source: Caselaw Access Project

author: Judge CARPARELLLI.

license: Public Domain

text:
    CF & I STEEL, L.P., a limited partnership, Plaintiff-Appellee, v. UNITED STEEL WORKERS OF AMERICA (USWA); United Steel Workers of America, Locals 2102 and 3267; Jack Golden, Director-District 12 USWA; David Kins, Sub-District Director, Sub-District 6 of District 12 USWA; Ernie Hernandez, President, Local 2102; Joey Padilla, Financial Secretary, Local 2102; Jeanne Landreth, Vice President, Local 3267; Jim Harford, Vice President, Local 3267; Sam Pierce; Tom Genetta; Richard Martinez; and Henry LaFabre, Defendants-Appellants.
    No. 02CA0875.
    Colorado Court of Appeals, Div. V.
    June 5, 2003.
    Alaniz and Schraeder, LLP., Richard D. Alaniz, Joseph L. Wood, III, David L. Barron, Houston, Texas; Kettlecamp, Young & Kettlecamp, P.C., Wesley C. Kettlecamp, Jr., Pueblo, Colorado, for Plaintiff-Appellee.
    Bredhoff & Kaiser, P.L.L.C., Leon Dayan, Washington, D.C.; Dennis E. Valentine, Denver, Colorado, for Defendants-Appellants.
   Opinion by

Judge CARPARELLLI.

Defendants, United Steel Workers of America (USWA); United Steel Workers of America, Locals 2102 and 3267; Jack Golden, Director-District 12 USWA; David Kins, Sub-District Director, Sub-District 6 of District 12 USWA; Ernie Hernandez, President, Local 2102; Joey Padilla, Financial Secretary, Local 2102; Jeanne Landreth, Vice President, Local 8267; Jim Harford, Vice President, Local 3267; Sam Pierce; Tom Genetta, Richard Martinez; and Henry Le-Fabre (collectively, the Union), appeal a trial court order that, upon remand, affirmed a 1997 preliminary injunction entered in favor of plaintiff, CF & I Steel, L.P. We vacate the preliminary injunction as to these defendants.

In 1997, the Union authorized a strike against CF & I. During the strike, several individual union members harassed and communicated threats to employees who crossed the picket line. Union members also picketed the residence of a nonstriking CF & I employee. The trial court subsequently enjoined the Union from engaging in violent, intimidating, threatening, and harassing conduct and, pursuant to $ 8-3-108(2)(a), C.R.S. 2002, from picketing, peacefully and otherwise, at the homes of company employees.

The supreme court reviewed the matter and concluded that the portion of § 8-3-108(2)(a) that prohibited labor picketing in residential areas was facially invalid under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. CF & I Steel, L.P. v. United Steel Workers, 23 P.3d 1197 (Colo.2001)(CF & I v. USWA I), aff'g 990 P.2d 1124 (Colo.App.1999). The supreme court ruled that the trial court's order could be upheld only if it were based on the police power of the state. CF & I v. USWA I, supra, 23 P.3d at 1207.

Consequently, the supreme court returned the case to the trial court "for a determination as to whether the Union authorized or ratified the wrongful conduct of its members," to "clarify whether the union-related misconduct in this case is enjoinable under the state police power," and, if so, to clarify the extent to which the injunction was based on that police power. CF & I v. USWA I, swpra, 28 P.3d at 1206-07.

On remand, the trial court upheld its 1997 injunction order. It found that: (1) CF & I "has not established by a preponderance of the evidence that the [UJnion either approved of the violent acts that occurred or participated actively in the knowing tolerance of the acts"; (2) "there is insufficient evidence presented at the hearing that the Union officials approved the acts"; (3) "[tlhere is no evidence that the Union encouraged, condoned, or required the threats and harassment" by some Union members against nonstriking employees; (4) there were acts of violence that may not have been authorized, condoned, or ratified by the Union; and (5) the Union "did not have control over its membership that engaged in acts of criminal mischief and harassment." The Union now appeals.

The Union contends that the trial court erred when it did not vacate the injunction against it on remand. It argues that, because the trial court found that the Union did not authorize or ratify the misconduct of individual union members, the injunction is improper. We agree.

In response, CF & I argues that the Union's lack of ratification of the misconduct is irrelevant because the trial court properly acted within its police power when it enjoined the Union, consistent with the holding in Milk Wagon Drivers Union, Local 753 v. Meadowmoor Dairies, Inc., 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836 (1941), which allows a state to enjoin peaceful picketing when it is set against a background of violence. See also United Mine Workers v. Golden Cycle Corp., 134 Colo. 140, 300 P.2d 799 (1956)(ruling that state courts have jurisdiction to enjoin tortious conduct in labor disputes). We are not persuaded.

The trial court found that there was some evidence that the residential picketing was peaceful. However, it also determined that the "backdrop of this strike was one of intimidation and violence" and that "an intolerable invasion of the substantial individual interest in residential privacy exists here." Based on these findings and Milk Wagon Drivers Union, supra, the court concluded that, although CF & I did not establish a nexus between the actions of the Union and the acts of individuals, an injunction of residential picketing was warranted and was "a valid exercise of the police powers of the State" because of "the environment in which these acts of violence and damage took place."

We conclude that the trial court erred when it relied on the "police power of the state" to enjoin the Union.

I.

The police power is an "inherent attribute of sovereignty with which the state is endowed for the protection and general welfare of its citizens." Cottrell Clothing Co. v. Teets, 139 Colo. 558, 562, 342 P.2d 1016, 1019 (1959)(quoting Rowekamp v. Mercantile-Commerce Bank & Trust Co., 72 F.2d 852, 858 (8th Cir.1934)). It is "the genesis of the General Assembly's action." Cottrell Clothing Co. v. Teets, supra; see also Zimmerman v. Philjon, Inc., 470 Pa. 409, 413, 368 A.2d 694, 696 (1977)("a court of common pleas had no power independent of statute to enjoin the exhibition and sale of allegedly obscene materials").

Courts can give effect to the state's police power when they grant relief for violations of law. Absent a conclusion that a party acted contrary to law, courts do not have the power to grant injunctive relief. Schoeman v. Consol. Edison Co., 66 Misc.2d 784, 322 N.Y.S.2d 132, 135 (N.Y.Sup.Ct.1971)("Courts have no inherent power to grant injunctive relief, The power to enjoin is limited to that given by the legislature.").

IL.

In CF & I v. USWA I, the supreme court ruled that "the Union can be held liable only if it can be proven by a preponderance of the evidence that it participated in, authorized, or ratified the tortious acts of its members." CF & I v. USWA I, supra, 23 P.3d at 1205. The supreme court cited the Norris-LaGuardia Act, 29 U.S.C. § 106 (2000), and relied on federal case law and principles of common law agency that limit union liability to situations in which there is "proof that the union either approved of the violent acts that occurred, or participated actively or in 'knowing tolerance' of the acts." CF & I v. USWA I, supra, 23 P.3d at 1205 (citing United Mine Workers v. Gibbs, 383 U.S. 715, 739, 86 S.Ct. 1130, 1146, 16 L.Ed.2d 218 (1966)).

Thus, we conclude that the supreme court ruling in CF & I v. USWA I, supra, required proof by a preponderance of the evidence that the Union ratified or authorized the misconduct in order for the Union to be enjoined. See Philadelphia Marine Trade Ass'n v. Local 1291, Int'l Longshoremen's Ass'n, 909 F.2d 754, 759 (8d Cir.1990)(ruling plaintiff was not entitled to an injunction against the union under common law agency principles, when the district court found that the union did not instigate, support, ratify, or encourage the strike). See generally State ex rel. Meyer v. Ranum High Sch., 895 P.2d 1144 (Colo.App.1995)(an injunction can only enjoin specific conduct the court deems is improper).

We recognize that the trial court reached its conclusion that the injunction was a proper exercise of the police power based on its findings regarding the backdrop of intimidation and violence and invasion of the individual interest in residential privacy. We also note that the court relied on the Supreme Court decision in Milk Wagon Drivers Union, supra, when it did so. However, we consider that reliance misplaced. In that case, the findings that the union intentionally interfered with the plaintiffs business and ratified the illegal acts of its members were essential to the Supreme Court's decision. See Meadowmoor Dairies, Inc. v. Milk Wagon Drivers' Union, No. 753, 371 Ill. 377, 21 N.E.2d 308 (1939). Hence, that decision does not support the imposition of an injunetion when, as here, a union has not participated in, authorized, or ratified the illegal acts of its members.

Accordingly, we vacate the injunction in its entirety as to the Union defendants. In light of our ruling here, we do not address the Union's remaining contentions on appeal.

The preliminary injunction order is vacated as to the Union defendants who are appellants here. Because Harold Trujillo, Dan Martinez, Pat Goodrich, and Robert Alarcon have not appealed, the injunction remains effective as to them.

Judge ROTHENBERG and Judge VOGT concur.


author: Judge CASEBOLT.

text:
    EZ BUILDING COMPONENTS MFG., LLC, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE of Colorado, Reliance National Insurance Co., and Robert A. Summers, Respondents.
    No. 02CA2059.
    Colorado Court of Appeals, Div. II.
    June 5, 2003.

      Sutherland Tarler and Laugesen, P.C., Stacy J. Tarler, Denver, Colorado, for Petitioner.
    Ken Salazar, Attorney General, Laurie Rottersman, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.
    Treece Alfrey Musat & Bosworth, P.C., Margaret Keck, Denver, Colorado, for, Respondent Reliance National Insurance Co.
    No Appearance for Respondent Robert A. Summers.
   Opinion by

Judge CASEBOLT.

EZ Building Components Mfg., LLC (employer) seeks review of a final order of the Industrial Claim Appeals Office (Panel) determining that Reliance National Insurance Co. (insurer) had cancelled employer's workers' compensation insurance policy before an industrial injury suffered by Robert A. Summers (claimant). We affirm.

Insurer issued a policy providing employer with coverage from March 20, 2000, to March 20, 2001. The policy required nine monthly payments to be made by the twentieth of each month from April to December 2000. Employer made four of the payments after the twentieth, and then only upon notice that insurer would cancel the policy if payment was not made by a date certain. In each of those four instances employer paid by the date stated in the notice of cancellation.

However, the check for the November payment was returned for insufficient funds. The administrative law judge (ALJ) found that on December 15, 2000, insurer sent employer a notice, by certified mail, stating that if the late November payment, plus the December payment, were not received by December 29, 2000, the policy would be can-celled. The ALJ also found that this notice of cancellation was sent by regular mail to employer's insurance agent and electronically to the Division of Workers' Compensation.

The ALJ found that employer mailed a check to insurer dated December 29, 2000, but the insurer did not receive it until after the cancellation date. The ALJ concluded that the policy was cancelled on December 29, before claimant's injury on January 4, 2001. Hence, employer, rather than insurer, was liable for workers' compensation benefits.

The Panel affirmed the ALJ's finding that the notice of cancellation was properly sent to employer by certified mail. Furthermore, the Panel agreed with the ALJ that because the notification to the insurance agent and Division constituted substantial compliance with the notice requirements, the policy was effectively cancelled.

L.

Employer contends that the failure to notify the agent and Division by certified mail renders the cancellation ineffective. Under the cireumstances, we disagree.

Section 844-110, C.R.98.2002, which incorporates an amendment not pertinent to this appeal, provides that a workers' compensation insurance carrier "shall notify the division, any employer insured by the carrier ... and any agent or representative of such employer, if applicable, by certified mail of any cancellation of such employer's insurance coverage."

Employer argues that there must be strict compliance with all of these cancellation requirements because "shall" is mandatory. Employer therefore asserts that the Panel erred in affirming the ALJ's conclusion that insurer's actual notice to the Division and the agent, even though not sent by certified mail, constituted substantial compliance with $ 8-44-110. We disagree.

The use of the word "shall" creates a presumption that a stated requirement is mandatory. Salazar v. Indus. Claim Appeals Office, 10 P.3d 666 (Colo.App.2000); see Allison v. Indus. Claim Appeals Office, 884 P.2d 1113 (Colo.1994)("shall" refers to a mandatory act).

Nonetheless, the concept of substantial compliance has been applied to various notice requirements in workers' compensation proceedings even when those requirements otherwise appear to be mandatory. See Pacesetter Corp. v. Collett, 33 P.3d 1230 (Colo.App.2001) - cases allowing substantial compliance with statute governing insurer's notice of admission); Rendon v. United Airlines, 881 P.2d 482 (Colo.App.1994) letter constituted substantial compliance with statute requiring that if petition to review was filed by mail, a certificate of mailing must indicate that the petition was mailed appropriately), abrogated on other grounds by Horodyskyj v. Karanian, 32 P.3d 470 (Colo.2001); Pub. Serv. Co. v. Boatwright, 749 P.2d 456 (Colo.App.1987)(claimant's admitted receipt of benefits constituted insurer's substantial compliance with statute requiring that it give claimant written notification of admission of liability); Lantern Inn v. Indus. Comm'n, 624 P.2d 929 (Colo.App.1981)(claimant substantially complied with requirement to give notice of election of remedy, where notice was given to employer of claimant's intent to request compensation).

Furthermore, a division of this court has held that a statute requiring notice by certified mail need not be strictly enforced if actual notice was received and the statute does not treat the method of notice as jurisdictional. Feldewerth v. Joint Sch. Dist. 28-J, 3 P.3d 467 (Colo.App.1999)(statute provided that notice of intent to dismiss shall be given by certified mail, but failure to provide such notice by certified mail is not fatal where teacher's attorney admitted teacher received actual notice); cf. Sanchez v. Straight Creek Constructors, 41 Colo.App. 19, 580 P.2d 827 (1978)(because statutory review procedures are unmistakably jurisdictional in nature, substantial compliance is ineffective).

Here, it is undisputed that the agent and the division received actual notice of cancellation. Furthermore, there is no indication that the rights of employer were affected by the method of giving notice to the agent and the division, or that the provision for certified mail is a jurisdictional requirement. Thus, we agree with the Panel that substantial compliance with the notice requirements of § 8-44-110 was sufficient to effect a cancellation of the policy. See Humane Soc'y v. Indus. Claim Appeals Office, 26 P.3d 546 (Colo.App.2001) (giving due deference to the Panel's interpretation of a statute because it is the ageney charged with its enforcement). But see Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App.1995)(requiring strict compliance with statute providing that injured employee shall notify employer in writing of the injury; rejecting argument that oral notice was sufficient); 9 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation - Law § 150-O083[1l, at 150-16 (2002)(requirements for cancellation of insurance are generally exacting and strictly construed).

IL

Employer next contends that substantial evidence does not support the ALJ's finding that the insurer sent the notice of cancellation by certified mail. We disagree.

Whether notice was mailed is a question of fact. See Campbell v. IBM Corp., 867 P.2d 77 (Colo.App.1993). The existence of a business custom is sufficient to warrant a presumption that notice was sent, and it is the province of the trier of fact to decide whether that presumption is overcome by other evidence. See Nat'l Motors, Inc. v. Newman, 29 Colo.App. 380, 484 P.2d 125 (1971).

Here, insurer's underwriting manager testified as to the usual mailing procedures and stated that the notice of cancellation was sent to employer on December 15, 2000. A copy of the receipt for certified mail reflecting mailing on that date was admitted into evidence. Most important, employer's general partner admitted receiving the notice.

On this record, we perceive no error in the ALJ's finding that insurer sent the notice of cancellation to employer by certified mail. This finding is within the ALJ's province, and inasmuch as it is supported by the evidence, we will not disturb it. See Kroupa v. Indus. Claim Appeals Office, 53 P.3d 1192 (Colo.App.2002)(ALJ resolves conflicts in the evidence, makes credibility determinations, determines the weight to be accorded to expert testimony, and draws plausible inferences from the evidence).

IIL

Employer also contends that substantial evidence does not support the ALJ's resolution of issues regarding the timeliness of the notice and insurer's receipt of employer's payment. However, although these issues were raised before the ALJ, they were not raised before the Panel. Accordingly, we do not address them. See Arenas v. Indus. Claim Appeals Office, 8 P.3d 558 (Colo.App.2000).

The order is affirmed.

Judge NEY and Judge WEBB concur.


author: Judge ROTHENBERG.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael H. CLIFTON, a/k/a Michael Jermaine Clifton, Defendant-Appellant.
    No. 00CA0977.
    Colorado Court of Appeals, Div. III.
    June 5, 2003.

      Ken Salazar, Attorney General, Barbara S. Askenazi, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    The Law Firm of Douglas S. Joffe, Douglas S. Joffe, Theodore B. Peak, Denver, Colorado, for Defendant-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 ROTHENBERG.

Defendant, Michael H. Clifton, appeals the Judgment of conviction entered on jury verdicts finding him guilty of three counts of kidnapping, two counts of burglary, and three counts of aggravated robbery. He also appeals his sentences. We affirm the judgment and sentences in all respects and remand only to correct an error in the mitti-mus.

On September 13, 1998, two different video rental stores in Aurora were robbed at gunpoint several hours apart. During the see-ond incident, defendant and his accomplice forced two employees of the video store into a back office and held them at gunpoint. One employee was forced to remain on the floor, while the other employee was ordered to open a safe and turn over the store's money to the robbers.

The People charged defendant with, and he was convicted of, two separate counts of aggravated robbery arising from the second incident. The information named each employee as the victim of a separate offense.

Each of the eight counts filed against defendant was charged as a crime of violence pursuant to § 18-1.3-406(@)(a)(D(A), C.R.S. 2002, and alleged that defendant used, or possessed and threatened the use of, a deadly weapon during the commission of each crime. The jury found the crime of aggravated robbery in each count was committed by the use of a deadly weapon, but it was not asked to determine whether both incidents were part of an ongoing transaction.

At the sentencing hearing, the trial court found, based on the trial evidence, that both incidents were part of an ongoing transaction. After making that finding, the court concluded it was required under § 18-1.3-406(1)(a), C.R.S.2002, to sentence defendant to consecutive terms of imprisonment. Accordingly, it sentenced him to the minimum crime-of-violence sentence on each count. The court rejected defendant's argument that only one robbery had been committed in the second incident and accepted the People's position that two separate offenses had been committed because the store's money was taken from the presence of the two employees.

I.

On direct appeal, defendant contended, among other things, that his constitutional rights under the Fifth and Fourteenth Amendments were violated because he was charged with and convicted of two counts of aggravated robbery arising from the second incident. He maintained that the two charges arose from the same episode, and only one aggravated robbery could have occurred because there was only one taking.

In People v. Clifton, 69 P.3d 81 (Colo.App.2001)(Clifton I), a majority of a panel of this court vacated one conviction of aggravated robbery. Relying on People v. Borghesi, 40 P.3d 15 (Colo.App.2001)(Borghesi I), the majority concluded that convicting defendant of two aggravated robbery counts was multiplicitous and ordered the trial court on remand to correct the mittimus accordingly. The judgment and sentences were affirmed in all other respects. The dissenting judge in Clifton I agreed with the dissent in Borghesi I.

The Colorado Supreme Court later reversed Borghesi I in People v. Borghesi, 66 P.3d 93 (Colo.2003)(Borghesi II). Thereat-ter, in People v. Clifton, 2003 WL 1906360 (Colo. No. 02SC80, Apr. 21, 2003) (Clifton II), the court granted the People's petition for certiorari on the multiplicity issue, vacated the judgment in Clifton I, and remanded the case to this court for reconsideration in light of Borghesi II.

Upon reconsideration, we conclude Borghe-si II is dispositive of and fatal to defendant's contention, and we are bound by that holding.

IL,

Defendant's remaining contentions were fully addressed in Clifton I. Although the supreme court granted the People's petition for certiorari in Clifton II, it did so only on the multiplicity issue.

Accordingly, we reaffirm and incorporate herein our prior conclusions in Clifton I rejecting defendant's contentions that: (1) the trial court abused its discretion in denying defendant's motions for a mistrial and for a new trial based on prosecutorial misconduct; and (2) based on II Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), defendant's constitutional rights were violated by the trial court's imposition of consecutive sentences pursuant to under § 18-1.3-406(1)(a), - C.R.8.2002 - (formerly § 16-11-309(1)(a)). See Harris v. United States, 536 U.S. 545, 567, 122 S.Ct. 2406, 2419, 153 LEd.2d 524 (2002)("Within the range authorized by the jury's verdict ... the political system may channel judicial discretion-and rely upon judicial expertise-by requiring defendants to serve minimum terms after judges make certain factual findings.").

Because defendant did not raise the issue until sentencing, we again do not address his contention that he was prejudiced by the manner in which the prosecution engaged in plea bargaining, nor do we address defendant's ineffective assistance of counsel argument. See Clifton I.

The mittimus should be corrected to reflect that defendant's sentences are to be served consecutively.

The judgment and sentences are affirmed, and the case is remanded for correction of the mittimus.

Judge NIETO and Judge HUME concur.


author: Judge GRAHAM.

text:
    Christine WALKER-LAWRENCE, Petitioner-Appellant, v. DISTRICT COURT OF TELLER COUNTY, Fourth Judicial District, Colorado, Respondent-Appellee.
    No. 02CA0849.
    Colorado Court of Appeals, Div. IV.
    June 19, 2003.

      Kaufman & Levinson, LLC, Matthew J. Werner, Colorado Springs, Colorado, for Petitioner-Appellant.
    Jeanne M. Smith, El Paso County District Attorney, Gordon R. Denison, Jeanne Wilson, Deborah Pearson, John Armstrong, Deputy District Attorneys, Colorado Springs, Colorado, for Respondent-Appellee.
   Opinion by

Judge GRAHAM.

Christine - Walker-Lawrence, petitioner, appeals from the district court judgment denying her petition to seal certain criminal records pursuant to § 24-72-3808, C.R.8.2002. We affirm.

The relevant facts are not in dispute. In the underlying criminal case, petitioner and the district attorney entered into a stipulation pursuant to § 18-1.3-102, C.R.S.2002 (formerly § 16-7-403), for entry of a deferred judgment and sentence upon petitioner's guilty plea to a misdemeanor. The stipulation, executed by petitioner, petitioner's attorney, and the district attorney, was approved by the trial court. The trial court accepted petitioner's guilty plea and entered a deferred judgment and sentence incorporating the stipulated terms.

In the stipulation, which anticipated that the case would be dismissed at the end of the deferral period, petitioner agreed "to give up any future right he/she may have, whether provided by C.R.S. 24-72-808 or by any other law, to have the record of this deferred judgment sealed by Court order."

When petitioner completed the terms of the deferred sentence, the case was dismissed with prejudice in compliance with § 18-1.8-102(2), C.R.8.2002, and the terms of the stipulation.

Petitioner filed a petition pursuant to § 24-72-308 requesting the court to seal these criminal records. The People objected, asserting that the sealing of these records would violate the plea agreement in the underlying criminal case, which included petitioner's express waiver of such sealing.

At the hearing on the petition, petitioner argued that § 16-7-803, C.R.98.2002, and CRE 410, which prohibits the admission of plea negotiations in civil actions, barred the district court from considering the waiver. Petitioner also argued that the waiver provision was a contract of adhesion and therefore unenforceable.

The district court denied the petition, concluding that "the clear language of the deferred sentence form precludes the petitioner from coming back to the Court later in order to seal" and that the waiver provision did not constitute a contract of adhesion. This appeal followed.

Petitioner contends that the district court erred in considering the waiver of her right to request sealing the records. We disagree.

In a factually similar case, People v. Ward-Garrison, 72 P.3d 423, 2003 WL 1923833 (Colo.App. No. 02CA0620, Apr. 24, 2003), a division of this court recently held that public policy favors the enforcement of a defendant's express waiver of her statutory right to request the sealing of eriminal records, where the defendant received a favorable disposition and the benefit of the bargain under a plea agreement. The Ward-Garrison division concluded that § 18-1.3-102(2), which provides that a defendant who enters into a deferred sentencing agreement "is obligated to adhere to such stipulation," requires that the terms of such stipulations be enforced. The division noted that a trial court lacks authority under these statutory provisions to act unilaterally to modify the terms of such an agreement without the district attorney's consent. No such consent was given here.

The Ward-Garrison division also concluded that in entering a guilty plea under the plea agreement, the defendant validly waived several rights in the underlying criminal case, including fundamental constitutional rights and the right to request sealing the record. We find Ward-Garrison persuasive and follow it here.

We also reject petitioner's evidentiary arguments that the terms of the plea agreement are not admissible in this proceeding to seal the record. CRE 410 prohibits the admission of evidence of a guilty plea later withdrawn or statements made by a defendant during plea negotiations in subsequent proceedings against the defendant. Likewise, § 16-7-303 makes statements made in the course of plea negotiations inadmissible against or in favor of the defendant in subsequent proceedings.

Contrary to petitioner's contentions, these provisions do not bar discovery of the terms of the deferred sentence and judgment. Because $ 18-1.3-102(2) clearly provides that a defendant who enters into a deferred sentencing agreement is obligated to adhere to such stipulation, the trial court must be permitted to review the terms of the agreement to determine whether the defendant is in compliance with those terms. Nor is the sentencing agreement being used in a proceeding against petitioner. Thus, CRE 410 and § 16-7-303 are inapplicable. Petitioner's contention that these provisions somehow modify a contract which has already been performed is not supported by established precedent.

Moreover, because petitioner has received the benefit of the bargain she made, we perceive no basis in public policy to now allow her to renege on that portion of the agreement expressly waiving the right to request the sealing of the record. See People v. Ward-Garrison, supra.

The judgment is affirmed.

Chief Judge DAVIDSON and Judge NIETO concur.


author: Judge DAILEY.

text:
    In the Matter of the ESTATE OF John E. SANTARELLI, a/k/a John Edward Santarelli, Deceased, and John Santarelli, Personal Representative-Appellant, and In the Matter of the Estate of Mary E. Hockinson, a/k/a Mary Elizabeth Hockinson, Deceased, and Anthony Stringari, Personal Representative-Appellant.
    No. 02CA0788.
    Colorado Court of Appeals, Div. IV.
    June 19, 2003.

      Fredrickson & Johnson, P.C., Bryan T. Fredrickson, Canon City, Colorado, for Personal Representatives-Appellants.
   Opinion by

Judge DAILEY.

In this consolidated appeal of two cases, the personal representatives (PRs) of the estates of John E. Santarelli and Mary E. Hockinson challenge the probate court's orders reducing personal representative and attorney fees. We affirm.

Santarelli died intestate, leaving his two sons an estate valued at $804,387. The estate's assets consisted of a home worth approximately $90,000, household furnishings worth $1,200, $706,637 in bank accounts, and a life insurance policy valued at $7,800. To avoid exposure to federal estate tax liability, the sons-one of whom appears before us as a PR of the estate-agreed to maximize the expenses of administration, including PR and attorney fees. Accordingly, the estate was charged PR fees of $56,807 and attorney fees of $56,307, and the PR filed a petition for formal closing of the estate under C.R.P.P. 8.3.

Hockinson died testate, leaving her entire estate, valued at $613,550.35 and consisting of stocks, bonds, cash, and an insurance policy, to several charities. The estate was administered under informal probate procedures, and pursuant to C.RP.P. 31(d), a verified closing statement was filed with the court. Along with the statement, the PR filed an accounting of assets reflecting that the estate had been charged PR fees of $30,000 and attorney fees of $30,000.

In both cases, the court sua sponte questioned the appropriateness of the fees because they appeared to be "inconsistent with the apparent demands" of the cases. When the court questioned the fees in the Hockin-son estate, the PR filed a C.R.P.P. 8.8 petition to formally close the estate.

The same attorney represented the PRs in both cases. Other than indicating that San-tarelli's sons received the PR fees in the Santarelli estate, the attorney initially did not present any substantiation or justification for the fees, arguing only that the court lacked authority sua sponte to inquire about them.

Concluding otherwise, the probate court disapproved the personal representative fees in the Hockinson estate and the attorney fees in both estates. The court referred the matter to a special master, who determined that: (1) the attorney's firm expended 82.7 hours of legal assistant time and 8 hours of attorney time on the Santarelli estate and 54.4 hours of legal assistant time and 6.6 hours of attorney time on the Hockinson estate; and (2) the attorney's firm customarily charged $95 per hour of legal assistant time and $160 per hour of attorney time.

The master recommended that fees be allowed for all time expended, at the attorney rate of $160 per hour. Rounding the resultant figures "up slightly" in each case, the master recommended, and the probate court allowed, attorney fees of $15,000 in the San-tarelli estate and $10,000 in the Hockinson estate. The probate court also allowed PR fees of $10,000 in the Hockinson estate.

On appeal, the PRs again contend that the probate court lacked authority to sua sponte inquire into the propriety of PR and attorney fees charged against the estates. We disagree.

The PRs acknowledge that probate courts are authorized, under § 15-12-721(1), C.R.S. 2002, to review compensation of PRs and attorneys "[alfter notice to all interested persons or on petition of an interested person or on appropriate motion if administration is supervised." However, they point to the general comments to Article 3 of the Uniform Probate Code (UPC), upon which the Colorado Probate Code is patterned:

Overall [the UPC] accepts the premise that the Court's role in regard to probate and administration ... is wholly passive until some interested person invokes its power to secure resolution of a matter. The state, through the Court, should provide remedies which are suitable and efficient to protect any and all rights regarding succession, but should refrain from intruding into family affairs unless relief is requested, and limit its relief to that sought.

Thus, the PRs argue, probate courts should strictly adhere to C.R.P.P. 88, which provides in relevant part:

In formal proceedings to terminate decedents' estates, the court shall not inquire into the appropriateness of payments of claims against the estate or expenses of administration, provided notice has been given in accordance with Rule 8.8 and absent timely objection filed by an interested person. The court may review such matters as it determines necessary, on a case-by-case basis and for good cause shown.

We conclude that an overall goal of avoiding unrequested court involvement does not remove a probate court's authority to sua sponte review probate administration fees. Indeed, C.R.P.P. 33.1, entitled "Compensation for Personal Representatives and Attorneys," provides, in pertinent part:

In the absence of unusual ctreumstances, the court may review [personal representative and attorney] fees in decedents' estates only (1) upon petition or motion of an interested person or (2), in the case of formal proceedings terminating estates, if notice has not been given in accordance with Rule 8.8. If the court on its own motion in a decedent's estate orders a review of personal representatives' fees or attorneys' fees, such order shall state the unusual circumstances which make such a review advisable.

(Emphasis added.)

Under a plain reading of this rule, a probate court is permitted in "unusual circumstances" to sua sponte inquire about the propriety of personal representative and attorney fees. Other jurisdictions have similarly recognized such authority in their courts. See Snow v. Mikenas, 373 Mass. 809, 812, 370 N.E.2d 1001, 1003 (1977)(probate court was entitled to inquire sua sponte into the reasonableness of contingent fee agreements between legatees or heirs and their attorneys); In re Bobeck, 196 A.D.2d 496, 497, 600 N.Y.S.2d 758, 759 (1993)("[Clontrary to the appellants' contentions, there is nothing in the language of the court rules or the statutes which would restrict the [court's] inherent power to review the amount of attorneys' fees set forth in the accounting." (citations omitted)).

The issue here, then, is whether the circumstances of the Santarelli and Hockin-son estates qualify as "unusual ciream-stances" permitting sua sponte review by the probate court.

No Colorado appellate case has discussed the meaning of the phrase "unusual circumstances" in C.R.P.P. 38.1. Nonetheless, like the probate court, we conclude that "unusual cireumstances" exist when, on their face, fee charges appear not to comply with statutory criteria for determining fees. See § 1512-721, C.R.S.2002 (setting forth factors for determining reasonableness of fees).

Here, the probate court likened the fees in these cases to, in the one instance, an unauthorized gift and, in the other instance, a simple percentage of the estates' assets, which is improper absent further justification. See In re Painter's Estate, 39 Colo.App. 506, 507, 567 P.2d 820, 822 (1977)(Colorado Probate Code "substitutes a standard of reasonableness for the former percentage method of setting fees for personal representatives and attorneys").

Given the lack of any dispute regarding the distribution of assets and the routine nature of asset administration in the two cases, the court's concern about the propriety of the fee amounts was sufficient to warrant further inquiry on the court's own motion. And, absent substantiation or justification for those amounts, the court was authorized to order a reduction in fees. See generally In re Painter's Estate, supra, 39 Colo.App. at 509, 567 P.2d at 823 (fees awarded to the administrator and attorney for routine services were excessive).

We reject the argument that such authority in the court could not be exercised where, as in Hockinson's case, the estate is subject to informal probate administration. The Colorado Probate Code envisions the use of formal probate procedures, informal probate procedures, and combinations thereof, and the PR's petition under C.RP.P. 8.3 to formally close the Hockinson estate converted the informal proceeding into a formal one. See In re Estate of Spencer, 313 Mont. 40, 59 P.3d 1160, 1163-64 (2002).

Finally, because the PRs have not challenged the reasonableness of the actual fees awarded by the probate court, we do not address that issue.

Accordingly, the orders are affirmed.

Judge ROTHENBERG and Judge KAPELKE concur.


author: Judge TAUBMAN.

text:
    John H. GOODWIN, Plaintiff-Appellant, v. Barry R. THIEMAN, Lurina L. Thieman, and Peoples National Bank, Defendants-Appellees.
    No. 02CA1345.
    Colorado Court of Appeals, Div. I.
    June 19, 2003.

      Alan L. Sulzenfuss, P.C., Alan L. Sulzen-fuss, Salida, Colorado, for Plaintiff-Appellant.
    John W. Dalton, Buena Vista, Colorado, for Defendants-Appellees Barry R. Thieman and Lurina L. Thieman.
    Timmins & Associates, LLC, Gary L. Swingle, Denver, Colorado, for Defendant Appellee Peoples National Bank.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 53), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge TAUBMAN.

In this adverse possession action, plaintiff, John H. Goodwin, appeals the summary judgment entered in favor of defendants, Peoples National Bank, Barry R. Thieman, and Lurina L. Thieman. We reverse and remand.

Goodwin sued Peoples National Bank and the Thiemans, claiming ownership by adverse possession of a strip of land in Chaffee County, Colorado. The Thiemans are the record owners of the disputed property.

Peoples National Bank filed a motion for summary judgment, alleging that: (1) during the required eighteen-year period the disputed property was owned by Ivy League Corporation; (2) Ivy League was a quasi-municipal corporation that performed various functions for the Ivy League subdivision; and (8) adverse possession does not apply against a quasi-municipal corporation. Ivy League owned the disputed property until November 21, 1983.

Goodwin argued that Ivy League was a private business corporation and not a quasi-municipal corporation. - However, Goodwin conceded that if Ivy League were a quasi-municipal corporation, summary judgment would be proper.

The trial court found "that the material facts are not disputed and that it is established that ... Ivy League ... is a [qluasi-[mJunicipal [clorporation," because it performed functions for the Ivy League Subdivision such as road maintenance and repairs, water line maintenance and repairs, sanitation line maintenance and repairs, and collection of monthly water and sanitation fees. The trial court ruled, therefore, that the period of adverse possession could not include the time Ivy League owned the disputed strip of land. Accordingly, it held that Goodwin had not adversely possessed the land long enough to acquire title by adverse possession. The trial court granted Peoples National Bank's motion for summary judgment and also granted summary judgment quieting title in the Thiemans.

Goodwin's sole contention on appeal is that a quasi-municipal corporation must be a pub-lie entity and thus, cannot be a private business corporation. We agree.

We review a summary judgment de novo, applying the same standards that govern the trial court's determination. Summary judgment is warranted only when there is a clear showing that no genuine issue exists 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); Waskel v. Guar. Nat'l Corp., 23 P.3d 1214 (Colo.App.2000). Appellate courts review a trial court's legal conclusions de novo. Golden Lodge No. 13 v. Grand Lodge, — P.3d —, —, 2003 WL 1089639 (Colo.App. No. 02CAO128, Mar. 13, 2003).

To prevail on a claim of adverse possession, the claimant must show its possession of the disputed property was actual, adverse, hostile, under a claim of right, exclusive, and uninterrupted for eighteen years. Section 38-41-101(1), C.R.9S.2002; Martini v. Smith, 18 P.3d 776, 781 (Colo.App.2000), aff'd, 42 P.3d 629 (Colo.2002).

However, the adverse possession statute also provides that:

[Adverse possession] shall not apply against the state, county, city and county, city, irrigation district, public, municipal, or quasi-municipal corporation, or any department or agency thereof. No possession by any person, firm, or corporation, no matter how long continued, of any land, water, water right, easement, or other property whatsoever dedicated to or owned by the state of Colorado, or any county, city and county, city, irrigation district, public, municipal, or quasi-municipal corporation, or any department or agency thereof shall ever ripen into any title, interest, or right against the state of Colorado, or such county, city and county, city, public, municipal, or quasi-munictpal corporation, irrigation district, or any department or agency thereof.

Section 38-41-101(2), C.R.9.2002 (emphasis added).

When construing statutes, a court's primary purpose is to effectuate the intent of the General Assembly. To determine that intent, courts first look to the statutory language, giving words and phrases their commonly accepted meaning. Archibold v. Pub. Utils. Comm'n, 58 P.3d 1031, 1038 (Colo.2002).

In City of Aurora v. Aurora Sanitation District, 112 Colo. 406, 411, 149 P.2d 662, 664 (1944), the supreme court stated, "a quasi-municipal corporation is not a true municipal corporation having powers of local government, but is merely a public agency endowed with such of the attributes of a municipality as may be necessary in the performance of its limited objective" (emphasis added). See also 1 Eugene McQuillin, Municipal Corporations § 2.18 (Bd ed.1977 rev. vol.)("a quasi-municipal corporation is a public agency created or authorized by the legislature to aid the state in, or to take charge of, some public or state work, for the general welfare"); John C. Banks, Colorado Law of Cities and Counties § 2.11 (8d ed.1979).

Here, we apply the supreme court's interpretation of the phrase "quasi-municipal corporation." See City of Aurora v. Aurora Sanitation Dist, supra; Archibold v. Pub. Utils. Comm'n, supra. We conclude that this definition applies to the term "quasi-municipal corporation" as used in the adverse possession statute.

The record reflects that Ivy League was incorporated by filing its articles of incorporation with the Secretary of the State of Colorado in 1971. The trial court did not find, and the record does not reflect, that Ivy League was a public entity or governmental agency.

Therefore, because Ivy League was not a public agency, it could not qualify as a quasi-municipal corporation under the adverse possession statute.

Nevertheless, Peoples National Bank argues that the definition of quasi-municipal corporation under the Municipal Annexation Act should apply. There, quasi-municipal corporation is defined as "a corporation vested with the municipal powers for the accomplishment of a limited municipal purpose, including but not limited to domestic water districts, metropolitan districts, sanitation districts, water and sanitation districts, fire protection districts, recreation districts, and disposal districts." Section 31-12-108(10), C.R.8.2002.

Although this definition is arguably broader than the one discussed above, we conclude that it is inapplicable to the adverse possession statute because "the interpretation of one statute by reference to an unrelated statute is an unreliable means of ascertaining legislative intent." See Bertrand v. Bd. of County Comm'rs, 872 P.2d 223, 228 (Colo.1994); Bob Blake Builders, Inc. v. Gramling, 18 P.3d 859, 863 (Colo.App.2001).

Accordingly, the judgment is reversed, and the case is remanded for further proceedings.

KAPELKE and PIERCE , JJ., concur.


author: Judge METZGER.

text:
    Nick WIMMERSHOFF, Plaintiff-Appellant, v. Deborah A. FINGER, Defendant-Appellee.
    No. 02CA1392.
    Colorado Court of Appeals, Div. A.
    June 19, 2003.
    Nick Wimmershoff, pro se.
    No Appearance for Defendant-Appellee.

       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 METZGER.

Plaintiff, Nick Wimmershoff, appeals the trial court's order denying his request for attorney fees against defendant, Deborah A. Finger. We reverse and remand with directions.

This appeal arises from a replevin action initiated by plaintiff, a Hicensed Colorado attorney, seeking recovery of a truck from defendant.

In his motion seeking attorney fees, plaintiff asserted that he had been granted possession of the truck by the trial court and that defendant, in violation of the possession order, came onto his property, took the truck, and sold it to a dealership. Plaintiff then obtained an injunction against the dealership, secured possession of the truck again, and instituted contempt proceedings against defendant. Plaintiff sought attorney fees and costs for the time and money he had expended in defending against defendant's motion seeking dismissal of the replevin action, in regaining possession of the truck, and in prosecuting the contempt against defendant.

The trial court found defendant in contempt and awarded costs to plaintiff as a remedial sanction. However, it denied plaintiffs request for attorney fees, finding that "as a general rule, pro se litigants are not entitled to recover compensation for their own time" and that "[albsent specific authority or a compelling reason, the Court declines to make an exception to the general rule for attorneys acting pro se in contempt proceedings."

On appeal, plaintiff contends the trial court abused its discretion in refusing to award him attorney fees. We conclude that the trial court should reconsider plaintiffs request.

I.

We first address whether attorney fees can be awarded to a pro se attorney in a contempt proceeding under either § 13-17-101, et seq., C.R.98.2002, or C.R.C.P. 107(@). We conclude that such an award may be proper.

Section 18-17-101, et seq., authorizes a trial court to award attorney fees against any party who has brought or defended, either in whole or in part, a civil action that the court determines is frivolous, groundless, or vexatious.

In Zick v. Krob, 872 P.2d 1290 (Colo.App.1993), a division of this court held that an attorney who appeared on his own behalf was entitled to recover attorney fees under § 13-17-101, et seq., on the basis that the claims brought against him were frivolous and groundless. The division nevertheless held that pursuant to § 13-17-1102, C.R.S.2002, the fees awarded must be reasonable.

Later, in Smith v. Furlong, 976 P.2d 889 (Colo.App.1999), another division of this court held that a nonattorney pro se litigant is not entitled to recover attorney fees under § 13-17-1022. In reaching that conclusion, the division, citing Zick v. Krob, supra, reaffirmed that a pro se litigant who is an attorney may be entitled to recover attorney fees under § 183-17-102.

We agree with the trial court that the opinion in Zick v. Krob is limited to situations arising under § 18-17-102. However, contrary to the trial court's interpretation, we read the cases after Zick v. Krob as holding only that nonattorney pro se litigants are not entitled to recover attorney fees. They did not resolve the question whether, as here, the facts and cireumstances justified an award of attorney fees to a pro se attorney litigant in a contempt proceeding. See Prefer v. PharmNetRx, LLC, 18 P.3d 844 (Colo.App.2000); Smith v. Furlong, supra.

C.R.C.P. 107(d)(@2) provides that, in remedial contempt situations, "[elosts and reasonable attorney's fees in connection with the contempt proceeding may be assessed in the discretion of the court." Whether a pro se attorney may be awarded attorney fees under C.R.C.P. 107(d)(2) is a question of first impression.

However, we find the division's rationale in Zick v. Krob persuasive, and we discern no reason to depart from that rationale concerning a fee award to a pro se attorney under C.R.C.P. 107(d)(@Q).

Accordingly, we conclude that a pro se attorney litigant is not necessarily precluded from a fee award under either § 13-17-102 or C.R.C.P. 107(d)(2) in a contempt proceeding.

IL.

Plaintiff next urges that we extend Zick v. Krob to mandate fee awards to pro se attorney litigants in all contempt proceedings. We see no need to do so.

Section 18-17-101 is broadly written and encompasses every type of civil action, including contempt actions. However, being held in contempt does not necessarily mean that the contemnor's defense of the contempt proceeding "lacked substantial justification" under § 18-17-102(4), C.R.8.2002.

Therefore, we conclude that plaintiff, as a pro se attorney litigant, may be entitled to attorney fees if the trial court determines that defendant's conduct meets the requirements of § 13-17-101, et seq. The trial court made no specific findings on whether defendant's actions contesting plaintiff's re-plevin action, in retaking possession of the truck, or defending against plaintiff's contempt met the criteria of § 18-17-102 or whether the amount of attorney fees sought was reasonable.

Furthermore, we are unable to discern whether the trial court declined to award plaintiff attorney fees under C.R.C.P. 107(d)(2) solely because of his status as a pro se attorney.

Accordingly, on remand, the trial court should make findings on both of these issues in reconsidering whether plaintiff is entitled to any or all of the attorney fees he sought.

The order is reversed, and the case is remanded to the trial court with directions to reconsider plaintiff's motion for attorney fees.

Judge WEBB and Justice ERICKSON concur.

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