author: Judge ROTHENBERG.

text:
    Robert L. BALKIND, a/k/a Robert Balkind and Judith A. Balkind, Plaintiffs-Appellants, - Counterclaim-Defendants - and Cross-Appellees, v. TELLURIDE MOUNTAIN TITLE COMPANY and Martin Bregman, Defendants-Appellees, and Town of Telluride, Defendant-Appellee and Cross-Appellant.
    No. 98CA2182.
    Colorado Court of Appeals, Div. IV.
    July 6, 2000.

      Joe Gordon McPhee, Robert Korn, Telluride, Colorado, for Plaintiffs-Appellants, Counterelaim-Defendants, and Cross-Appel-lees.
    Coleman, Jouflas & Williams, Joseph Coleman, Grand Junction, Colorado, for Defendants-Appellees.
    Sandra M. Stuller, Telluride, Colorado, for Defendant-Appellee and Cross-Appellant.
   Opinion by

Judge ROTHENBERG.

This case involves equitable claims between plaintiffs, Robert and Judith Balkind (property owners), and defendant, Town of Telluride (the Town); and legal claims between the property owners and defendants, Telluride Mountain Title Co. (Telluride Mountain); Martin Bregman, the president of Telluride Mountain; and Meredith Muller (seller). The property owners appeal from judgments favoring the Town on the equitable claims and favoring all defendants on the legal claims. The Town cross-appeals the trial court's reduction of its requested attorney fees. We affirm in part, reverse in part, and remand for further proceedings.

The trial court bifurcated the trial and considered the equitable claims first. Following a bench trial on those claims, the trial court entered judgment in favor of the Town. The property owners appeal that judgment, contending that: (1) the judgment is too vague to be enforced; and (2) the trial court erred in denying their post-judgment motion to amend the complaint and join an indispensable party under C.R.C.P. 19.

Following the trial on the equitable claims, the court granted summary judgment on the legal issues in favor of the remaining defendants, dismissing the property owners' remaining claims of fraud, negligent misrepresentation, professional negligence, negligent omission, breach of warranty of title, and breach of contract. The trial court based its ruling on uncontradicted testimony in the trial on the equitable issues. The property owners also appeal this summary judgment.

I. Background

This case concerns two parcels of property in the Town of Telluride, described as Lot 1 and Tract J, Backman Village Subdivision. Lot 1 has a house on it, and Tract J is reserved for public use under a 1984 agreement between the Town and the original developer of the subdivision (the 1984 Agreement).

The evidence at the trial on the equitable issues showed the following. Seller purchased Lot 1 in 1990 and obtained title to Tract J in 1992 through a quitclaim deed. Seller intended to expand her house onto Tract J, and obtained a letter from Bregman, the president of Telluride Mountain, setting forth the opinion that Tract J was no longer reserved for public use. However, after seller was informed by the Town that no improvements would be allowed on Tract J, she decided to sell both it and Lot 1.

In November 1993, the property owners bought the property for a reduced price reflecting the inability to build on Tract J. At trial, seller testified that, before closing on the property, she informed the property owners that the Town would not allow them to build any improvements on Tract J. Robert Balkind responded that, "I'm an attorney and I know how to handle the Town."

The evidence further showed that, before closing, the property owners saw Bregman's letter expressing the opinion that Tract J was not reserved for public use because the conditions in the original covenant and the 1984 Agreement had not been fulfilled. According to Robert Balkind, Bregman later confirmed this opinion in person. The property owners also obtained the opinions of several other attorneys who believed that Tract J was no longer reserved for public use. These opinions supported the opinion of the property owners themselves, both of whom are real estate specialists.

Bregman and his company, Telluride Mountain, insured the property owners' title to their new property, but the title policy specifically excepted the covenants and restrictions on Tract J arising out of the subdivision plat and the 1984 Agreement. The warranty of title issued by seller contained an identical exception. Robert Balkind testified at trial that, before closing on the property, he reviewed all of these documents, including the 1984 Agreement, the policy, and the warranty.

After purchasing the property, the property owners obtained a Certificate of Appropriateness from the Town permitting them to build a shed on Lot 1, and another Certificate of Appropriateness permitting them to improve a fence along the property line of Lot 1 and Tract J. The second Certificate required that the fence be located on the property line and not encroach on any public right of way unless the property owners obtained a permit.

In November 1996, the property owners filed this action, seeking a declaration that Tract J was theirs to do with as they wished. However, in the event that Tract J was found to be reserved for public use, they sought damages against Telluride Mountain, Breg-man, and seller.

The Town counterclaimed, seeking an order requiring the property owners to remove the shed and fence from public rights of way including Tract J and Colorado Highway 145. The Town also sought a declaration that it was the owner of Highway 145 and that the property owners were trespassing. Alternatively, the Town sought to enforce its Land Use Code by making the property owners comply with the terms of the Certificates of Appropriateness and limit their improvements to their own property.

After determining as a matter of law that Tract J was still reserved for public use under the terms of the 1984 Agreement, the trial court granted partial summary judgment in favor of the Town. This determination has not been appealed.

At the bench trial on the equitable claims, the property owners also admitted they had not complied with the conditions in the Certificates of Appropriateness and that their improvements eneroached on the public rights of way. However, they raised the defenses of equitable and promissory estop-pel. The court resolved the credibility issues in favor of seller and against the property owners, finding that equitable estoppel did not apply because the property owners knew about the restrictions on the use of Tract J before they bought the property.

The court similarly rejected the property owners' promissory estoppel argument, and ordered them to remove the fence from Tract J and the fence and shed from the public right of way along Highway 145.

Following the trial, the property owners asked for a stay of the juagment to give them time to locate the boundary line between Highway 145 and Lot 1. The understanding at trial was that the boundary was as set forth in an Improvements Location Certificate admitted into evidence. But, after the trial, the property owners asserted that the boundary line was uncertain and could not be determined by their surveyor.

The trial court granted a stay of thirty days to give the parties an opportunity to reach an agreement, or to give the property owners an opportunity to file a quiet title suit to settle the question. The property owners instead filed a motion to amend the complaint and to join an indispensable party. The motion was based on their belated discovery that San Miguel County, not the Town, was record owner of the portion of Highway 145 at issue. The property owners claimed the County was an indispensable party and had to be joined to the action under C.R.C.P. 19.

The trial court denied the motion, concluding the issue of the County's ownership had nothing to do with the claims between the property owners and the remaining defendants. Nevertheless, it granted the property owners a 60-day stay in which to resolve the problem or to file a quiet title action. If they failed to do so, the court ordered that the judgment incorporate the boundaries set out in the Improvement Location Certificate admitted into evidence at trial. As of the time the property owners filed this appeal, they had taken no such action.

After the bench trial, the remaining defendants - Telluride Mountain, Bregman, and seller - filed a summary judgment motion. Defendants contended that, based on Robert Balkind's testimony and the trial court's findings of fact in the first trial, the property owners had not justifiably relied on Breg-man's letter in purchasing the property and, therefore, could not pursue their claims of fraud and negligent - misrepresentation. Also, because the policy issued by Bregman and his company excepted the 1984 Agreement, defendants contended they had no duty to the property owners and were not negligent. For the same reason, defendants contended the breach of warranty of title claim against seller had to be dismissed.

The trial court agreed and granted summary judgment in favor of the defendants on the legal claims. It found that the property owners had abandoned the breach of contract claim. "

II. Indispensable Party

The property owners first contend the trial court erred in denying their motion to amend the complaint and add San Miguel County as an indispensable party. They maintain that, because the County appears to be the record owner of the section of Highway 145 adjacent to their property, the trial court's judgment in the first trial affected the County's property interest, and therefore, the trial court was required to join the County as an indispensable party under C.R.C.P. 19. We disagree.

Whether a person is an indispensable party is a mixed question of fact and law. The necessity of joinder must be determined on the facts of each case, and a trial court's decision under C.R.C.P. 19 will not be reversed absent an abuse of discretion. Aztee Minerals Corp. v. Romer, 940 P.2d 1025 (Colo.App.1996)

Under C.R.C.P. 19(b), factors to consider in determining whether a person is indispensable include: (1) the extent to which a judgment rendered in the person's absence might be prejudicial to the person or those already parties; (2) the extent to which prejudice can be lessened or avoided by protective provisions in the judgment, by the shaping of relief, or by other measures; (3) whether a judgment rendered in the person's absence will be adequate; and (4) whether the plaintiff will have an adequate remedy if the action is dismissed for non-joinder. Az-tee Minerals Corp. v. Romer, supra.

While injury to the absent party is the most important factor in determining indispensability, other factors include the danger of inconsistent decisions, avoidance of multiplicity of suits, and the reluctance of a court to render a decision that will not finally settle the controversy before it. Dunne v. Shenandoah Homeowners Ass'n, 12 P.3d 340 (Colo.App.2000).

Here, it is undisputed that the Certificates of Appropriateness, which the property owners applied for and received from the Town, gave them permission to build improvements only on their own property. It also is undisputed that the property owners erected the improvements on property which they did not own, contrary to the requirements of the Certificates.

It is true that the Town's counterclaim sought removal of the property owners' improvements from the highway based on the Town's claim of ownership of the highway. However, the Town alternatively asserted its right to enforce the provisions of its Land Use Code by ensuring compliance with the Certificates of Appropriateness. The trial court based its judgment on both grounds.

To the extent the judgment requires the property owners simply to erect their improvements on their own property, as required by the Certificates of Appropriateness, it in no way affects the County's interests. To the contrary, it benefits the County by removing a trespass.

The only possible way in which the County could be adversely affected would be by the trial court's limited resolution of the boundary between Lot 1 and Highway 145. But, with respect to that issue, the trial court merely ordered the parties to seek agreement, and in the event they were unable to reach an agreement over the boundary line, ordered them to resort to the Improvement Location Certificate, a document on which the parties relied at trial.

The court also issued two separate orders in favor of the property owners staying execution of the judgment to allow them to file a quiet title action to settle any unresolved boundary issues. The property owners chose not to do so.

Based on these particular circumstances - the property owners having invoked the regulatory power of the Town by applying for and receiving the Certificates; the property owners' admission that their improvements were erected on property which they do not own; their initiation of .this declaratory judgment action and failure to pursue a quiet title action, despite repeated opportunities to do so; and the limited nature of the trial court's alternative ruling enforcing compliance with the Certificates - we perceive no abuse of discretion by the trial court in ruling that the property owners had failed to meet their burden of showing the County was an indispensable party in this case.

Contrary to the property owners' contention, we further conclude that the judgment can be tailored to avoid adversely affecting any interest the County may have in Highway 145, and that it is adequate to resolve the issue of their failure to comply with the terms of the Certificates.

However, insofar as the judgment also contains language purporting to determine ownership of the highway or to establish a permanent boundary, the trial court is directed to strike such language from the judgment on remand. We agree with the property owners that any such determination must be made in a quiet title action.

III. Summary Judgment

The property owners next contend the trial court erred in granting summary judgment in favor of defendants on the legal claims based on the trial court's findings of fact in the trial on the equitable issues. We disagree.

Summary judgment should be granted only if there is no genuine issue as to any material fact, and the burden so to demonstrate is on the moving party. Appellate review of a summary judgment is de movo. Westerman v. Rogers, 1 P.3d 228 (1999).

A court must consider the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, in determining whether to grant a motion for summary judgment. Westerman v. Rogers, supra. The nonmoving party is entitled to all favorable inferences that may be drawn from the undisputed facts, and all doubts as to whether a triable issue of fact exists must be resolved against the moving party. Van Alstyne v. Housing Authority, 985 P.2d 97 (Colo.App.1999).

Once the moving party makes a convincing showing that there are no genuine issues of material fact, the opposing party must demonstrate with relevant and specific facts that a real controversy exists. The opposing party may not rest upon mere allegations or denials in its pleadings, but must provide specific facts demonstrating the existence of a genuine issue for trial. Westerman v. Rogers, supra.

Because the property owners admitted to the trial court that they were no longer seeking relief under a breach of contract theory, we need not consider that claim on appeal. We address the remaining claims in turn.

A. Fraud and Negligent Misrepresentation

We reject the property owners' contention that the trial court should not have granted summary judgment on their claims of fraud and negligent misrepresentation because the question of the property owners' reliance on Bregman's letter was a disputed issue of material fact.

To establish fraud, the plaintiff must prove that: (1) a fraudulent misrepresentation of material fact was made by the defendant; (2) the plaintiff relied on the misrepresentation; (8) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and (4) the reliance resulted in damages. M.D.C./Wood, Inc. v. Mortimer, 866 P.24 1380 (Colo.1994).

Negligent misrepresentation also requires justifiable reliance by the plaintiff. Jimerson v. First American Title Insurance Co., 989 P.2d 258 (Colo.App.1999).

If the plaintiff has access to information that was equally available to both parties and would have led to discovery of the true facts, the plaintiff has no right to rely upon the misrepresentation. M.D.C./Wood, Inc. v. Mortimer, supra.

Here, uncontradicted testimony at the trial on the equitable issues established that the property owners had access to information setting out the true facts. They had the 1984 Agreement, the original covenants, the title insurance policy, and the warranty of title. They also were informed by the seller that the Town would not allow them to build on Tract J. Based on the property owners' access to this information, the trial court found that they knew about Tract J's restricted use before purchasing the property. The evidence further showed that the property owners did not ask the Town about the status of Tract J before purchasing it.

These undisputed facts support the trial court's conclusion that property owners did not have the right to rely on Bregman's representations. Hence, the court did not err in granting summary judgment dismissing the property owners' claims of fraud and negligent misrepresentation. See M.D.C./Wood, Inc. v. Mortimer, supra (a defendant may not have the right to rely on a misrepresentation when he or she could have learned the truth by reasonable inquiry).

B. Breach of Warranty of Title

We also reject the property owners' argument that the trial court erred in granting summary judgment and thus dismissing their breach of warranty of title claim against seller.

The title insurance policy and the warranty of title issued by seller to the property owners contained an identical exceptions clause. The clause specifically exempted from coverage:

Protective Covenants, Conditions and Restriction for Backman Village Subdivision ... as Supplemented by Agreement Designating the Use of Tract J, Backman Village Subdivision, recorded May 31, 1984 ... the terms of which have not been fulfilled.

(emphasis added)

According to the property owners, the underlined language repeats the alleged misrepresentation contained in Bregman's letter and justified their belief that Tract J was not restricted to public use. However, we perceive no basis on which property owners may impose a duty based on policy language concerning matters exempted from coverage. See Arapahoe Land Title v. Contract Financing, 28 Colo.App. 393, 472 P.2d 754 (1970).

IV. Attorney Fees

In its cross-appeal, the Town contends the trial court erred in reducing the Town's requested attorney fees. We agree.

An award of attorney fees must be reasonable. The determination of reasonableness is a question of fact for the trial court, and its ruling will not be disturbed on review unless clearly erroneous. Tallitsch v. Child Support Services, Inc., 926 P.2d 148 (Colo.App.1996).

The initial estimate by the court of a reasonable attorney fee is reached by calculation of the "lodestar" amount. This amount represents the number of hours reasonably expended multiplied by a reasonable hourly rate and carries with it a strong presumption of reasonableness. Once the lodestar amount is determined, that basis amount may be adjusted upward or downward. Tallitsch v. Child Support Services, Inc., supra.

The existence of a fee arrangement is a factor the court should consider in determining the reasonableness of a requested fee, but an attorney's fee agreement does not of itself require a court to award the amount agreed upon between the attorney and client. Tallitsch v. Child Support Services, Inc., supra.

Although the reasonableness of attorney fees is a question of fact for the trial court, we conclude that it is error to reduce an attorney's hourly rate based solely on the attorney's status as a salaried lawyer paid by a nonprofit entity such as the Town. Salaried and public interest attorneys should be awarded attorney fees based on the prevailing market rate rather than a "cost-plus" approach focusing on the attorney's salary. See California Common Cause v. Duffy, 200 Cal.App.3d 730, 246 Cal.Rptr. 285 (1987). See also Oten v. Colorado Board of Social Services, 738 P.2d 37 (Colo.App.1987.)(awarding attorney fees based on market rate to legal services attorneys); In re Marriage of Swink, 807 P.2d 1245 (Colo.App.1991)(holding that § 14-10-119, C.R.8.1999, authorizes market rate fees to pro bono attorneys who render services in dissolution of marriage actions).

The fact that the attorneys may not personally receive the fees awarded to their employers does not preclude an award based on the prevailing market rate. See Carter v. Rhode Island, 25 F.Supp.2d 24 (D.R.I.1998). Cf. Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984)(hold-ing that "reasonable fees" in a federal civil rights action are to be calculated according to the prevailing market rates in the relevant community, "regardless of whether plaintiff is represented by private or nonprofit counsel"). See also Milgard Tempering, Inc. v. Selas Corp., 761 F.2d 553 (9th Cir.1985)(modern trend is to award attorney fees for in-house counsel based on the market rate). But see Softsolutions, Inc. v. Brigham Young University, 1 P.3d 1095 (2000)(rejecting the market-rate approach because it would award the salaried attorney's employer a windfall profit; holding that cost-plus rate which included calculation of overhead expenses was the more reasonable measure of attorney fees for in-house counsel).

Salaries paid to government attorneys do not reflect the true cost of the services they render because they do not take into account overhead costs or amounts paid to support staff. See Carter v. Rhode Island, supra; California Common Cause v. Duffy, supra (compensation at less than market rate would result in a windfall to the other party); City of Oakland v. McCullough, 46 Cal.App.4th 1, 53 Cal.Rptr.2d 531 (1996)(even where courts have rejected a cost approach to calculating attorney fees in favor of a market-rate approach, the proposed cost approach included salaries plus overhead; successful cost theories have likewise included overhead).

The market-rate approach also has the virtue of being predictable for the parties and easy to administer, whereas the cost-plus approach is cumbersome, intrusive, costly to apply, and may distort the incentives for settlement and reward inefficiency. See PLCM Group, Inc. v. Drexler, 22 Cal.4th 1084, 997 P.2d 511, 95 Cal.Rptr.2d 198 (2000).

Here, the trial court initially awarded attorney fees by calculating the lodestar amount based on the reasonable hourly rate of attorneys in Telluride. The property owners objected to the amount of the award, complaining that the Town attorney was a salaried employee and did not make the reasonable hourly rate generally earned by private counsel.

The trial court agreed, and without making any additional findings, it simply recalculated the attorney fees based on the Town attorney's salary of $50 per hour. The court did not include the cost of overhead and other expenses.

Because the trial court's sole reason for reducing the Town's attorney fees was its attorney's status as a salaried public employee, we conclude the reduction was error. On remand, the trial court should reconsider attorney fees based on the prevailing market rate and such additional factors as the court deems appropriate. See Tallitsch v. Child Support Services, Inc., supra; PLCM Group, Inc. v. Drexler, supra. The trial court should also include reasonable attorney fees resulting from this appeal.

The judgments are affirmed in all respects except as to the Town's claim for attorney fees. That portion of the judgment is reversed, and the cause is remanded for further proceedings consistent with the views expressed in this opinion.

Judge MARQUEZ and Judge DAILEY concur.


source: Caselaw Access Project

license: Public Domain

text:
    In re the MARRIAGE OF Steve N. ANTUNA, Appellant, and Barbara A. Antuna, Appellee.
    No. 98CA1999.
    Colorado Court of Appeals, Div. IV.
    July 6, 2000.

      Joseph D. Bloch & Associates, P.C., Mark D. Chapleau, Denver, Colorado, for Appellant.
    DiManna & Jackson, Michael F. DiManna, Neeti Pawar, Denver, Colorado, for Appellee.
   Opinion by

Judge ROTHENBERG.

In this dissolution of marriage action, Steve N. Antuna (busband) appeals from the permanent orders concerning the division of property, award of maintenance, determination of child support, and attorney fees payable by Barbara A. Antuna (wife) We affirm in part, reverse in part, and remand with directions.

The parties stipulated to joint custody of their daughter, with the wife designated as the primary residential custodian. They also agreed to divide equally a retirement fund in wife's name by a Qualified Domestic Relations Order. The balance of the financial issues were presented to the trial court for resolution.

After hearing the testimony of three experts, the trial court credited the testimony of wife's two experts and valued wife's residence at $370,000, even though it was purchased for a higher amount. The court also found that the testimony of wife's expert regarding the value of her interest in a medical corporation was more credible than that of husband's expert, and it valued that asset at $169,000.

The court further found that all of the assets had been acquired with wife's earnings and that division of the interest in the medical corporation would constitute an unfair windfall to husband. It thus awarded that entire asset to wife without crediting her with its value.

Each party was awarded the personal property in his or her possession.

The court determined that husband would receive property with a net value of $166,527 and also determined, without considering the value of wife's interest in the medical practice, that wife would receive property in the amount of $264,562. In order equitably to divide the property, it ordered wife to pay husband the sum of $49,917.50.

The trial court further found that husband met the threshold of need entitling him to maintenance, and after considering the factors listed in § 14-10-114(2), C.R.S.1999, it ordered wife to pay him maintenance of $2000 per month beginning August 1998, for a period of 24 months.

In computing child support, the court found that husband earned $2000 per month gross income and that wife earned $19,500 per month, for a combined income of $21,500, which exceeded the uppermost level of the child support guidelines. The court found that husband keeps the child 97 overnights per year, but it applied worksheet A to caleu-late husband's child support obligation of $290.05 per month. See § 14-10-115(14)(a), C.R.98.1999. The court did so because it found that application of worksheet B (shared physical care formula), see § 14-10-115(14)(b), would have resulted in wife paying husband child support of $90.73 per month.

After considering the financial resources of the parties, the court further determined that it was appropriate for wife to assist husband with the partial payment of his attorney fees, and ordered her to pay $10,000 directly to his attorney.

I.

Initially, we reject wife's assertion that husband is barred from appealing any portion of the property division because he has received his share of the retirement funds. These funds were divided by agreement of the parties before the hearing on permanent orders.

Acceptance of the benefits of a judgment constitutes a waiver of appeal rights only if such action is inconsistent with the basis for the appeal. It is when the appeal, if successful, will again put into issue the right of the party to receive the benefits already accepted that a waiver of the right to appeal has been found. In re Marriage of Burford, 950 P.2d 682 (Colo.App.1997); see In re Marriage of Jones, 627 P.2d 248 (Colo.1981).

Here, the parties agreed that the retirement funds held by wife would be shared equally between them based on their value on the date of the decree. Permanent orders on all other issues were entered after the hearing.

In a prior motion, husband asserted a financial need for the immediate distribution of the stipulated funds, and a judge of this court ruled that husband could receive the stipulated funds without waiving his appellate rights.

Because husband's acceptance of the retirement benefits is not inconsistent with the basis of his appeal, we conclude he did not waive his right to appeal by accepting such benefits. See In re Marriage of Burford, supra; cf. In re Marriage of Lee, 781 P.2d 102 (Colo.App.1989) (acceptance of maintenance payments did not result in a waiver of the right to appeal; public policy prohibits requiring former spouse to elect between the necessities of life and the right to appeal).

II. Discovery

We also reject husband's contention that the trial court abused its discretion in failing to strike the report of one of wife's experts and in allowing another to testify.

In Todd v. Bear Valley Village Apartments, 980 P.2d 973 (Colo.1999), the supreme court reaffirmed the principle that a party should not be denied his or her day in court because of an inflexible application of the rules of procedure. Further, in determining whether the severe sanction of witness preclusion is appropriate, the trial court should consider a number of factors including whether the opposing party will have an adequate opportunity to defend against the evidence. These principles support the trial court's ruling here.

A.

Husband maintains that wife should not have been permitted to submit the expert's report concerning her interest in the medical practice as an exhibit because it was not timely exchanged under CRCP. 26(a)(2(C)(III), and there was no valid reason given to support the delay. We disagree.

C.R.C.P. 26.2(a)(2)(C) provides that disclosures shall be made in a domestic relations case at least 60 days before the date set for the commencement of the hearing. The disclosure of expert testimony must be accompanied by a written report or summary.

Here, both parties filed a formal disclosure list of witnesses less than 60 days before the date of the permanent orders hearing. In her list, which was filed seven days after husband's list was filed, wife asserted that her accountant would be a rebuttal witness and would testify regarding the value of wife's interest in the medical practice and, therefore, that such expert was not required to file a written report.

At the permanent orders hearing, wife's expert submitted a written report, but only his curriculum vitae was admitted into evidence. Husband's expert testified first and critiqued the opinion that wife's expert had presented in his report regarding the value of her interest in the medical practice.

While husband's expert originally valued the interest at $285,000, without a reduction for present value, he later used other methods to value that interest at greater than $300,000. However, that expert did not disclose the subsequent opinions until his testimony at trial.

Even if we assume that wife should have exchanged her expert's report earlier, husband failed to show he was prejudiced by the late receipt. Accordingly, we conclude the trial court did not abuse its discretion when it declined to strike the testimony of wife's expert.

B.

Husband also asserts that the trial court erred in allowing wife to present rebuttal testimony concerning the sales of homes in Highlands Ranch because she did not timely disclose that expert pursuant to C.R.CP. 26(a)(2)(C)(III). Again, we disagree.

CRCP. 26.2(a)(2)(C)(III) requires the disclosure of rebuttal evidence within 20 days after disclosure made by the other party on the same subject matter. The admission of rebuttal testimony is within the sound discretion of the fact-finder and will not be disturbed absent an abuse of that discretion. Wertz v. People, 160 Colo. 260, 418 P.2d 169 (1966); Rice v. Department of Corrections, 950 P.2d 676 (Colo.App.1997).

The rebuttal expert did not value wife's residence. His testimony was admitted for the limited purpose of addressing issues on which the other experts had disagreed: whether sales in the Highlands Ranch area vary between one neighborhood and another and market trends in the area. This testimony was helpful to the court in resolving a basic disagreement between the experts, and there was no surprise to husband. Further, the testimony was cumulative to that of wife's expert who had already testified that homes in various subdivisions of Highlands Ranch differed significantly in value. Thus, the trial court did not abuse its discretion in allowing the admission of this limited testimony.

IIL, Property Division

A.

Husband contends the trial court abused its discretion in valuing the marital residence at an amount less than its purchase price. We disagree.

Trial courts are vested with broad discretion to fashion an equitable division of the parties' property in a dissolution proceeding. In re Marriage of Gallo, 752 P.2d 47 (Colo.1988). The determinations of value and the sufficiency and credibility of the evidence are within the trial court's disceretion, and may not be disturbed unless they are unsupported by the record. In re Marriage of Elmer, 986 P.2d 617 (Colo.App.1997).

Husband offered the testimony of an expert whose appraisal was based upon comparable homes located in the greater Highlands Ranch area, but not in the more immediate neighborhood of the residence. In contrast, the testimony of wife's expert was based upon comparable homes located within the same or similar subdivision as the wife's residence.

After considering the testimony, the trial court found the testimony of wife's expert more convincing as to the impact of location on the value of homes within various subdivisions of the Highlands Ranch area. In explaining why the residence had decreased in value, wife's expert stated that when an area continues to expand, the market cannot support the value of an older home if a new home with personalized features can be purchased for less than a used one. The weighing of the evidence is within the trial court's discretion, and we perceive no basis for reversal in the court's valuation of the residence.

B.

Husband next contends the trial court failed properly to assess the value of wife's interest in the medical corporation. We disagree.

The weight to be accorded to the valuation techniques of an expert is for the trial court's determination. In re Marriage of Bookout, 888 P.2d 800 (Colo.App.1991).

Here, the trial court found that wife's expert was more persuasive as to the value of her interest in the medical corporation. That expert used as one alternative a capitalization of excess earnings and explained the reasons for his original and final calculations. He also explained the reason why certain figures used in his computation were inaceu-rate and stated his opinion that the effect of such errors on his ultimate valuation was minor.

The expert initially arrived at a value of $118,721, but also concluded that wife's interest could not be worth less than $169,000 which she had paid for her interest in the practice. The expert testified that a new physician entering the business would pay $164,000, when reduced to present value.

The court rejected the opinion of husband's expert concerning the value of wife's interest in the practice because it found that the value the expert placed on wife's interest was contrary to the actual buy-in costs of a new physician. Nor was it reduced to present value. The court concluded that wife's interest should be valued at $169,000.

Again, because it was for the trial court to determine the credibility of the experts concerning the value of wife's interest in the medical practice, we perceive no error in this determination.

Husband claims that the court's finding that a "new physician entering the business today would pay approximately $164,000" was contrary to the evidence. But, read in context, the court simply considered the fact that a new physician would have to pay $8,885 per month for five years or a total of $233,100. The court reduced that amount to its present value. Such reduction was based upon wife's expert testimony.

C.

However, we do agree with husband that the trial court failed to award him an equitable share of wife's interest in the medical practice.

The value of goodwill incident to a practice constitutes property or an asset acquired during the marriage. See In re Marriage of Bookout, supra; In re Marriage of Nichols, 43 Colo.App. 383, 606 P.2d 1314 (1979). In Bookout, a division of this court rejected the argument that an order of maintenance and child support, based upon the same income stream that was used to capitalize excess earnings for the purpose of valuing a business, constituted a double recovery.

Here, in awarding wife all of her interest in the medical practice, the trial court stated that:

[Vlirtually all of the marital asset[s] listed on the asset summary were acquired based upon the earnings of the [wife]. Therefore, because the court has equitably divided the marital property between the parties, it would be inequitable for the court to additionally credit the [wife] with a value for her interest in [the practice]. To do so, would create a double credit to the [husband] ... because the assets acquired with the [wife's] earnings have already been divided between the parties, and to now once again divide the "value" of the [wife's] interest in [the practice] would constitute an unfair windfall to the [husband].

The trial court erred in failing to eredit wife with the value of that asset, to husband's detriment. See In re Marriage of Bookout, supra; In re Marriage of Nichols, supra. Hence, it is necessary to remand this matter for the trial court to reconsider the property division after including the value of the practice as a marital asset that was awarded to wife. However, we do not disturb the property division to which the parties stipulated.

D.

Husband next contends the trial court did not equitably divide the personal property and that such failure demonstrated an abuse of discretion and bias toward him. According to husband, wife received a disproportionate amount of personal property, and the trial court should have ordered an offset of other money or property to him. We are not persuaded.

The division of property must be equitable, not equal. See In re Marriage of Stumpf, 932 P2d 845 (Colo.App.1996). Therefore, the trial court was not required to order an offset for all marital property awarded to either party. See In re Marriage of Fenimore, 782 P.2d 872 (Colo.App.1989).

Here, the parties disagreed as to the value of the personal property. Husband valued certain items at their replacement value, and testified that he wanted certain items, rather than simply their value, and that he already possessed some items that were listed. Wife asserted that husband had overvalued the property and claimed that husband had obtained whatever items he wanted.

Under these circumstances, we conclude it was within the trial court's broad discretion to order that each party retain the personal property in his or her possession, without any offset.

IV. Maintenance

Husband next contends the trial court abused its discretion by limiting his maintenance to $2000 per month for two years, that the trial court's determination of wife's monthly income was contrary to the evidence, and that the amount of maintenance awarded to him is deficient because wife's monthly income exceeds her stated monthly needs by $8500, while his standard of living has decreased considerably from what the parties enjoyed during their 15 year marriage.

However, because we have reversed a portion of the property division award and the issues of property division, maintenance, and attorney fees are inextricably intertwined, we are unable to evaluate the propriety of the court's award regarding maintenance. See In re Marriage of Simon, 856 P.2d 47 (Colo. App.1998); In re Marriage of Wormell, 697 P.2d 812 (Colo.App.1985).

A trial court has broad discretion in determining the amount and duration of a maintenance award, In re Marriage of Huff, 834 P.2d 244 (Colo.1992); and absent an abuse of discretion, a trial court's order will not be reversed. In re Marriage of Huff. swpra.

The standard of living established during the marriage is one of the pertinent factors in determining the amount and duration of maintenance. The trial court must consider the recipient spouse's reasonable needs, although it is not required to ensure that the spouses have an equal lifestyle forever. For purposes of maintenance, the determination of the payor's income is relevant to the extent that it is indicative of that spouse's ability to meet his or her own needs while meeting those of the payee spouse. - In re Marriage of Sim, 989 P.2d 504 (Colo.

While the purpose of maintenance is not to ensure that the parties have an equal lifestyle forever, the court must consider the reasonable needs of a spouse, which depend on the particular facts and circumstances of the parties' marriage. In re Marriage of LeBlanc, 800 P.2d 1884 (Colo. App.1990). The court also should state the reasons upon which it bases the duration of the award. In re Marriage of Fisher, 931 P.2d 558 (Colo.App.1996).

Here, the trial court found that: (1) husband met the threshold of need entitling him to maintenance; (2) his potential for growth in his income and employment was bright and he anticipated being able to earn a comfortable living within the near future; and (8) the length of the marriage and the level of comfort enjoyed by the parties justified maintenance for a limited time.

The court determined that wife's income was $19,500 per month. Although husband previously had earned $40,000 per year as a glazier, he had not been employed in that position since 1989, There was also testimony that his monthly expenses were $2700, and he was expected to be self-supporting in five years. On remand, the court should reconsider the amount and duration of maintenance after correcting the property division and after taking into account all applicable factors.

V. Child Support

A.

Husband next contends the trial court erred as a matter of law in ordering him to pay child support to wife because her income exceeded his income and because the application of worksheet B required wife to pay him support. We disagree.

Shared physical care means that each parent keeps the children overnight for more than 92 overnights each year and that both parents contribute to the expenses of the children in addition to the payment of child support. Section 14-10-115(8), C.R.98.1999. However, there is no statutory requirement that a particular amount be proven by the parent seeking a support adjustment for shared physical care. In re Marriage of Redford, 776 P.2d 1149 (Colo.App.1989).

Worksheet B is used to calculate child support when the parties share custody. It incorporates the 1.5 multiplier mandated by § 14-10-115(10)(c), C.R.S8.1999, which is based upon the presumption that certain basic expenses for the children will be duplicated when the parties share physical care of a child.

In its initial permanent orders, the trial court here found that husband "has been active in his contributions to child care activities, and it is anticipated that those contributions will continue in the future." The court added in its amended permanent orders that husband had not presented sufficient evidence concerning the nature or extent of the financial contributions, if any, that he had made on behalf of the child.

The court concluded that it would be anomalous and against public policy to require the primary caretaker of the child, who exerts most of the time and money in caring for the child, to pay child support to the non-primary caretaker. It relied upon § 14-10-115(14)(b), which provides that:

In no case, however, shall the amount of child support ordered to be paid exceed the amount of child support that would otherwise be ordered to be paid if the parents did not share physical custody.

The quoted portion of § 14-10-115(14)(b), was added to the child support guideline in 1991. See Colo. Sess. Laws 1991, ch. 88, at 237. It was in direct response to the 1990 recommendation of the Colorado Child Support Commission, which observed that:

The amount of child support is calculated differently when the number of overnights with each parent exceeds 25 percent. This takes into account the increased expenses of the parent with less time and the reduced burden on the parent with the majority of time. Due to an idiosynerasy in the statute, the shared custody adjustment sometimes results in an increase in child support instead of a decrease, contrary to legislative intent.

Colorado Child Support Commission Report 19 (1990).

The trial court also concluded that the parties' income exceeded the statutory guidelines and that: (1) the needs of the child and public policy would be best met by requiring husband to carry a more significant share of the financial obligations of raising the child; (2) that husband's income was such that the imposition of a child support obligation would, not unduly burden him; and (8) the child's emotional well-being would be enhanced if both parents contributed to her financial support.

Therefore, as an alternative basis for its ruling, the court chose to exercise its discretion by ordering husband to pay $290.95 per month child support to wife as calculated under worksheet A. As the trial court found, if a worksheet B analysis were to be applied in this case, the amount of child support payable by wife would exceed the amount that she could be ordered to pay under application of worksheet A.

Nevertheless, it does not appear that the General Assembly contemplated the specific cireumstance here in which the application of the shared custody formula results in an award of child support payable from, rather than to, the parent who is the primary caretaker. Nor do we agree with the trial court that public policy would necessarily be defeated if the court were to apply worksheet B to the circumstances of a case in which application of the shared custody formula resulted in the payment of child support to the noncustodial parent.

In fact, in In re Marriage of Fest, 742 P.2d 962 (Colo.App.1987), a division of this court recognized that a trial court could conceivably order a custodial parent to pay child support to the non-custodial parent. In re Marriage of Fest, supra, was decided before the child support guidelines were adopted, and the division relied on the introductory language of § 14-10-115(1), C.R.S.1999. That language provides that "the court may order either or both parents to pay an amount reasonable or necessary for the child's support." That introductory language has remained unchanged, despite numerous amendments to the child support guidelines.

Accordingly, we cannot say that the application of a shared custody formula which results in a support payment by the custodial parent to the noneustodial parent is prohbibit-ed.

Nevertheless, here, because the parties' income exceeded the guidelines, a rebuttable presumption arose that $290.05 was the minimum amount of support, and it was husband's burden to overcome that presumption. Sections 14-10-15(8)(a) and 14-10-115(10)(a), C.R.S.1999. See In re Marriage of Van In-wegen, T57 P.2d 1118 (Colo.App.1988). Given the trial court's finding of an absence of evidence from husband establishing that he contributed to the child's financial needs, there was no basis for application of the shared custody formula under worksheet B.

Under these circumstances, we therefore conclude the trial court did not err as a matter of law in ordering husband to pay the minimum child support of $290.05 per month to wife.

B.

Husband next contends the evidence does not support the court's determination that wife's income was $19,500 per month. He maintains that her income was actually $22,500 per month. We disagree.

The trial court found that wife earned $19,500 per month gross income, apparently based on the amount of income she claimed for a five-month average on her financial affidavit. Although her 1997 pay stubs, which she verified as accurate, showed that she had earned $270,000 as a senior physician after deduction of her pension, the record also shows that she was decreasing her monthly work hours to reduce stress, and to spend more time with their child. Husband has not argued that she is voluntarily underemployed.

Because there is record support for the trial court's determination of wife's income, we may not disturb it on review.

VI Attorney fees

Finally, husband contends that the award of $10,000 toward his attorney fees constituted an abuse of discretion by the trial court because he incurred $41,000 in fees, and because of the parties' financial disparity. As noted earlier, however, because we have reversed a portion of the property division, the attorney fee issue must also be reconsidered. See In re Marriage of Simon, supra; In re Marriage of Wormell, supra.

We do conclude that this appeal is not frivolous and therefore reject wife's request for attorney fees on appeal. Husband's request for attorney fees on appeal pursuant to § 14-10-119, C.R.S.1999, is a matter that may be addressed by the trial court upon application after remand. See In re Marriage of Folwell, 910 P.2d 91 (Colo.App.1995).

The portions of the judgment concerning distribution of wife's interest in the medical practice and the offsetting award to husband, as well as the determination of maintenance and attorney fees are reversed, and the cause is remanded with directions. In all other respects, the judgment is affirmed. Husband's receipt of $150,000 in retirement funds will necessarily precede the trial court's reconsideration of the issues remanded, as it did prior to the initial entry of permanent orders.

Judge MARQUEZ and Judge DAILEY concur. |


author: Judge DAVIDSON.

text:
    Angela C. SANDOVAL, Plaintiff-Appellant, v. The ARCHDIOCESE OF DENVER, a corporation Sole, as Owner and Entity in Control of Holy Family Grade School, and Diana Bennett, Defendants-Appellees.
    No. 99CA1133.
    Colorado Court of Appeals, Div. III.
    July 6, 2000.

      Stafford & Stafford, LL.C., John T. Stafford, Jr., Lakewood, Colorado, for Plaintiff-Appellant.
    Rothgerber, Johnson & Lyons LLP, Charles Goldberg, Samuel M. Ventola, Scott M. Browning, Denver, Colorado, for Defendants-Appellees.
    Kennedy & Christopher, P.C., John R. Mann, Denver, Colorado, for Amicus Curiae Colorado Defense Lawyers Association.
    Law Offices of Richard Werner, Richard Werner, Denver, Colorado, for Amicus Curiae Colorado Trial Lawyers Association.
   Opinion by

Judge DAVIDSON.

While an elementary grade student at a Diocesan school, plaintiff, Angela C. Sandoval, was involved in a four-year sexual relationship with her teacher that ended in 1991. Subsequently in 1998, she filed this action against defendants, the Archdiocese of Denver, a corporation Sole, as Owner and Entity in Control of Holy Family Grade School, and Diana Bennett, former principal of the school, asserting claims of negligence, re-spondeat superior and ratification, and outrageous conduct. The trial court found that plaintiff had failed to file her claims within the two-year limitations period set forth in § 13-80-102(1)(a), C.R.8.1999, and thus granted defendants' motion for summary judgment and dismissed the complaint against these defendants. Plaintiff appeals from that judgment, and we affirm.

Summary judgment is a drastic remedy and should only be granted if there is a clear showing that no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. See Compass Insurance Co. v. City of Littleton, 984 P.2d 606 (Colo.1999). Our review is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995).

I.

Plaintiffs primary contention on appeal is that the trial court erred when it determined that her claims were barred by the two-year statute of limitations. To the contrary, plaintiff argues, because her civil action was based on a sexual assault committed by defendants' employee, her claims were governed by § 18-80-108.7, C.R.S.1999, which provides a six-year statute of limitations for victims of a sexual offense. We disagree.

A.

Originally, civil claims brought by a victim of sexual assault were governed by the various general limitations statutes, the terms of which had been shortened in the General Assembly's extensive tort reform in 1986. In 1990, however, the General Assembly carved out an exception by enacting § 13-80-103.7, which consolidated "any civil action[s] based on a sexual assault or a sexual offense against a child" under a six-year statute of limitations. - The limitations period commenced when a claim for relief accrued or, if the victim was "under a disability," when the disability was removed. A person "under disability" was defined pursuant to § 18-81-101(8), C.R.S.1990, as, for example, a minor under age eighteen.

In 1998, the General Assembly determined that a victim could also be "disabled" by a suppressed memory caused by the psychological and emotional trauma of a sexual assault by someone with whom the victim had a special relationship. Thus, it amended the statute alternatively to allow victims subjected to sexual abuse six years from the date their memory surfaced to pursue a civil action. Hearings on H.B. 1259 before the House Judiciary Committee, 59th General Assembly, First Session (February 11, 19983). See also Hearings on H.B. 1259 before the Senate Judiciary Committee, 59th General Assembly, First Session (March 10, 1998); cf. Sailsbery v. Parks, 988 P.2d 187 (Colo.App. 1999).

As amended, § 18-80-108.7 provides, in relevant part:

(1) Notwithstanding any other statute of limitations ... any civil action based on . a sexual offense against a child shall be commenced within six years after a disability has been removed for a person under disability, as such term is defined in subsection (8.5) of this section, or within six years after a cause of action accrues Nothing in this section shall be construed to extend the statutory period with respect to vicarious Hability.
(8.5)(a) [Plerson under disability also includes a victim of a sexual assault when the victim is in a special relationship with the perpetrator of the assault ... and where the victim is psychologically or emotionally unable to acknowledge the assault or offense and the harm resulting therefrom. For the purpose of this subsection (3.5), "special relationship" means a relationship between the victim and the perpetrator of the sexual assault which is a confidential, trust-based relationship, such as ... teacher-student .... [Als elements of the cause of action, a person under disability ... shall have the burden of proving that the assault or offense occurred and that such person was actually psychologically or emotionally unable to acknowledge the assault ... and the harm resulting therefrom....

B.

The dispositive issue here is whether the phrase, "any civil action 'based on' a sexual offense," restricts application of the extended limitations period to claims brought against a perpetrator or encompasses related claims raised against third parties We hold that the statute of limitations set forth in § 13-80-1083.7 does not apply to claims against parties other than a perpetrator of a sexual offense.

Statutory construction is a matter of law to be decided by the court. Itin v. Bertrand T. Ungar, P.C., 978 P.2d 142 (Colo.App.1998).

Our primary task in interpreting a statute is to give it a construction and interpretation that will render it effective in accomplishing the purpose for which it was enacted. See Civil Service Commission v. Pinder, 812 P.2d 645 (Colo.1991). It must be read and considered as a whole, and construed to give consistent, harmonious, and sensible effect to all of its parts. See United Airlines, Inc. v. Industrial Claim Appeals Office, 993 P.2d 1152 (Colo.2000).

We look first to the plain language of the text. See State v. Nieto, 993 P.2d 493 (Colo.2000). If, however, the General Assembly's intended meaning of a phrase is doubtful, the court should consider the language in the context of the statute and by reference to the meaning of words associated with the word or phrase at issue. Fogg v. Macaluso, 892 P.2d 271 (Colo.1995). And, if the statutory language lends itself to alternative constructions and its intended seope is unclear, a court also may look to pertinent legislative history to determine the purpose of the legislation. See Fishburn v. City of Colorado Springs, 919 P.2d 847 (Colo.App.1995).

1.

Plaintiff contends that the term "based on" should be read alone and given its literal meaning. Thus, because her claims arose from the factual circumstances of the sexual offense by defendants' employee, plaintiff argues that the extended limitations period applied. Indeed, some jurisdictions have accepted a similar argument. See Werre v. David, 275 Mont. 376, 913 P.2d 625 (1996) (because the claim against her stepfather was the starting point or foundation, negligence claim against mother was actionable); C.J.C. v. Corporation of Catholic Bishop, 138 Wash.2d 699, 985 P.2d 262 (1999) (claims of negligence can be considered a subset of intentional sexual abuse; absent the abuse, victim would not have suffered any injury and the negligence claims could not stand).

In support of her position, plaintiff asserts that the 1998 amendment focused on a vie-tim's repressed memory disability. Hence, she argues, the General Assembly intended a "harms-based" statute that would broaden the victim's remedies by extending the time frame in which she or he can identify not only a perpetrator but also third parties responsible for the abuse. In support of this reasoning, she cites Almonte v. New York Medical College, 851 F.Supp. 34 (D.Conn.1994) (statutory focus is on actions flowing from a particular type of harm, and not parties; such a harm-based approach is consistent with the legislative intent to afford a plaintiff sufficient time to recall and come to terms with traumatic childhood events).

Defendants, however, contend that Werre, C.J.C., and Almonte are inapposite because the underlying statutes in those cases, unlike here, encompass claims for damages for "injuries suffered as a result of" a sexual assault.

Instead, here, § 13-80-108.7, C.R.8.1999, links the type of claims to which it applies to offenses listed in the criminal code. See §§ 13-80-108.7(2) and 13-80-108.7(8), C.R.S. 1999. That language, defendants assert, restricts the scope of § 13-80-108.7 to civil claims "based on" the act of the perpetrator of a sexual assault or offense, such as assault, battery, intentional infliction of emotion distress, or breach of fiduciary duty.

Some state courts which have statutes similar to Colorado's have so held. See Kelly v. Marcantonio, 678 A.2d 873 (R.I.1996) (the only intended legislative target is the person who at the time of the abuse would have been subject to criminal prosecution, and does not include his employer unless employer would also have had criminal liability); Debbie Reynolds Professional Rehearsal Studios v. Superior Court, 25 Call App Ath 222, 80 Cal.Rptr.2d 514 (1994) (plaintiff may seek recovery for any act committed by a defendant that would have been proscribed by specified penal code sections; thus, recovery excluded for defendants who are alleged to have contributed to plaintiff's damages by negligence).

Defendants point out that, four years after Debbie Reynolds was decided, California amended its statute expressly to provide that it applies to "an action for liability against any person or entity who owed a duty of care to the plaintiff, where a wrongful or negligent act by that person or entity was the legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff." Cal.Civ.Proc.Code § 340.1(a)(2) (West 1999). Importantly, defendants explain, § 18-80-103.7 contains no similar provision.

Further, defendants argue that while a claim against a perpetrator is necessarily "based on" a sexual assault regardless of the specific legal theory asserted, a claim, such as alleged here against the perpetrator's employer for negligent hiring or supervision, is not. Rather, it is based on the employer's negligence in selecting or supervising a servant or employee.

Again citing Debbie Reynolds, defendants also argue that public policy favors this reading of the statute because application of the extended period to ancillary claims would create a potential for unlimited exposure to liability without culpability for intentional conduct.

We conclude that both plaintiffs and defendants' interpretations are plausible: As it precedes the terms "sexual assault" or "sexual offense against a child," the phrase "based on" may be read to refer to the underlying factual circumstances of that sexual assault or offense or, on the other hand, can be read to reference only the perpetrator's act of sexual misconduct. Thus, in and of itself, the phrase is ambiguous. See State v. Nieto, supra (where the words chosen by the General Assembly are capable of two or more constructions leading to different results, the statute is ambiguous).

2.

We also conclude, however, particularly when viewed within the context of the entire statute, that the term "based on" encompasses only those civil claims brought against the perpetrator arising from his or her sexual assault or offense.

&.

First, we agree with defendants that the references to the criminal code to define "sexual assault" and "sexual offense," see §§ 13-80-108.7(2) and 18-80-108.7(8), are highly significant and indicate that the General Assembly intended that the act upon which claims must be based is that of a perpetrator and not the negligence of a non-complicitous third party. As relevant here, the offenses listed in § 18-8-411 do not include negligently allowing an offense to happen or placing a perpetrator in a position to commit a sexual offense against a child.

Indeed, as defendants point out, their alleged negligent hiring or supervision was no more "based on" the subsequent sexual assault than would a claim of legal malpractice be "based on" a fraud later committed by someone else as a result of that malpractice. Thus, in the latter example, the statute of limitations would be that applicable to malpractice, not to fraud. See Bradley v. Guess, 797 P.2d 749 (Colo.App.1989), rev'd on other grounds sub nom. - Seaward Construction Co. v. Bradley, 817 P.2d 971 (Colo.1991) (when negligence claim is "based on" an assault and battery, statute of limitations for negligence, rather than statute for assault and battery claim, applies). See also CJ.C. v. Corporation of Catholic Bishop, supra (Durham, J., dissenting) (although true that negligence claims would be baseless if plaintiff had not been molested because she then would not have been harmed, negligence claims were not "based on" intentional tort but rather on third parties' failure to prevent the tort).

Moreover, as quoted above, the last sentence of § 13-80-108.4(1) expressly does not permit application of its six-year limitation period to derivative claims involving "viearious lability."

This is significant because a vicarious liability claim against an employer under re-spondeat superior is based entirely on the acts or omissions of the employee, see Arnold v. Colorado State Hospital, 910 P.2d 104 (Colo.App.1995), and, generally, the Hability of an employee becomes the Hability of the employer as well. See Gallegos v. City of Monte Vista, 976 P.2d 299 (Colo.App.1998) (a finding that an employee is not negligent requires a finding that the employer is not legally responsible).

Hence, without the limiting language, a claim involving a sexual assault or offense of a perpetrator, under a vicarious liability theory, could arguably have been brought against the perpetrator's employer under the extended limitations period set forth in the statute. The explicit exclusion from the statute of a claim which theoretically could have imposed liability on a third party, however, confirms that the six-year statute of limitations is to apply only to the perpetrator of the sexual assault.

Consistent with this, another section of the statute, § 18-80-108.7(8.5), enumerates several examples of a confidential, trust-based relationship that may constitute a "special relationship," including that of physician-patient, which give rise to the extended limitations period. According to the statute, a victim of a sexual assault committed by a physician within the context of the practice of medicine can continue to choose to seek damages under a theory of medical malpractice, governed by the two-year limitations period under § 183-80-102.5, C.R.8.1999. Alternatively, the victim may file his or her civil claims under the provisions of § 18-80-108.7, which allow a longer period.

Significantly, however, § 13-80-103.7(5) excludes from its purview any claim alleging negligence in the course of providing professional services in the practice of medicine. See Perez v. Witham, 1 P.3d 262 (Colo.App.1999) (because it is the alleged sexual assault in the providing of medical treatment that forms the basis of plaintiff's claim for negli-genee, under the "unless" clause of the see-ond sentence of § 18-80-108.7(5), the six-year limitation period remains inapplicable). And, the provision is directed only to the physician as perpetrator.

In addition, the statute attributes a vie-tim's delayed memory to the trauma of a sexual assault by the perpetrator who has such "special relationship" with the victim. Consequently, to bring a claim for relief under § 183-80-108.7(8.5), a plaintiff must prove that the assault occurred and that a special relationship with the perpetrator rendered the plaintiff psychologically or emotionally unable to acknowledge the abuse. It does not make sense to interpret this provision as contemplating a third party as a defendant to these allegations.

Similarly, § 13-80-108.7(8.7), C.R.8.1999, prohibits the bringing of an action pursuant to § 13-80-108.7(8.5) if the defendant is deceased or is incapacitated to the extent that the defendant is incapable of rendering a defense to the action. This can only be a reference to the perpetrator.

b.

Our conclusion that the two-year statute of limitations applies is consistent with the statute's legislative history.

In 1990, the General Assembly recognized that many victims of sexual assault did not acknowledge the extent of their injury for, on average, nine years and, consequently, the two-year limitation period on their claims did not afford the victim a meaningful time to be heard.

In the discussion of House Bill 90-1085, its sponsor emphasized that a six-year limitations period would enable the vietim not only to recover the benefits of a judgment but also to provide a sense of vindication against the perpetrator. The sponsor concluded that the statute would "send a message to the perpetrators" that they will "not easily be let off the hook." This statement reflected the focus of the entire debate; every reference to "the defendant" identified that individual as the perpetrator of the sexual assault. Hearings on H.B. 90-1085 before the House Judi-clary Committee, 57th General Assembly, Second Session (January 18, 1990).

The statute was amended in 1998 principally to accommodate a victim's repressed memory disability. However, as initially proposed, House Bill 93-1259 also attempted to clarify the type of claims that would be subject to the longer period of limitations. It read:

[Any civil action based on ... a sexual offense against a child, WHETHER THE CIVIL ACTION IS BASED ON NEGLIGENT OR INTENTIONAL ACTS OR OMISSIONS ....

As discussed, the focus of debate was on the perpetrator. Thus, it appears from the discussion that this amendment was proposed under a misapprehension that there could be a claim against a perpetrator for "negligent" sexual abuse. However, the perpetrator of a sexual assault commits an intentional act, and no claim for negligence can, as a matter of law, be asserted against him or her. See Allstate Insurance Co. v. Troelstrup, 789 P.2d 415 (Colo.1990) (an intent to harm must, as a matter of law, be inferred from a sexual assault); Nikolai v. Farmers Alliance Mutual Insurance Co., 830 P.2d 1070 (Colo.App.1991) (if complaint alleges a sexual assault, the law implies an intent to harm, even though a claim based on negligence is pleaded). Therefore, the proposal to include civil actions based on negligence, if added, would necessarily have to have been read to bring claims against third parties within the purview of the statute.

During the Senate debate, however, the bill's sponsor termed this amendment language "troubling" and moved to delete it. The motion passed unanimously. Senate Journal, 59th General Assembly, First Session (May 11, 1998) at 1415, 11.14-18. Moreover, later debate reaffirmed the concern that incorporation of "negligence" inadvertently would have allowed, for example, a negligence claim against "grandma" for illegal acts committed by "grandpa" decades earlier. Senate Floor Debate on Amendments to H.B. 98-1259, 59th General Assembly, First Session (May 11, 1998).

This discussion emphasized that, in contrast to a third party who, through negli-genee, may have contributed to the harmful cireumstances, the psychological and emotional defense mechanisms adopted by a victim were the responsibility of the defendant who intentionally had caused the harm. As stated by the amendment's sponsor:

[It is the perpetrator that is the cause of the repressed memories. It's because the perpetrator threatened the child that they will either commit suicide ... if the person reveals what happens, threatens the child that the family will break up, or threatens to kill the child if they say something.
Senate Floor Debate on Amendments to HB. 93-1257, 59th General Assembly, First Session (May 11, 1998).

See Sailsbery v. Parks, supra (discussing Cassidy v. Smith, 817 P.2d 555 (Colo.App.1991) as the decision which preceded and apparently prompted the enactment of § 183-80-108.7).

3.

In sum, although plaintiff's argument has intuitive appeal, we are convinced that it was the intent of the General Assembly that the six-year statute of limitations for actions "based on" a sexual assault or offense be limited to those brought against the perpetrator. Consequently, we construe the statute accordingly. See Farmers Insurance Exchange v. Bill Boom, Inc., 961 P.2d 465 (Colo.1998) (task of court is not to make policy, but to effectuate the intent of the General Assembly).

IL.

Next, plaintiff contends that the trial court erred in granting summary judgment because the statute of limitations was tolled by defendants' destruction of material evidence. We are not persuaded.

The limitation period does not begin to run until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the existence of facts forming the basis of a claim for relief. First Interstate Bank v. Piper Aircraft Corp., 744 P.2d 1197 (Colo.1987). Moreover, in order for a statute of limitations to be tolled because of equitable considerations, it is the plaintiff's burden to establish that the defendant's actions prevented her from filing a timely claim. Samples-Ehrlich v. Simon, 876 P.2d 108, (Colo.App.1994).

Here, plaintiff does not dispute that all three of her claims for relief accrued on February 5, 1992, when she reached the age of majority. At that time, plaintiff had knowledge of sufficient facts to form the basis of her claims, in that she had engaged in a sexual relationship with the teacher and was aware that she had suffered damages. She also knew that the teacher was employed by the school, the school was operated by the Archdiocese, and Bennett was the school principal. Further, plaintiff knew, or with the exercise of reasonable diligence should have known, of any likelihood that defendants' hiring and supervision of the teacher contributed to the harmful cireumstances of her assault.

Even if we assume that it had occurred, plaintiff has not shown how any concealment or destruction of some arguably useful evidence interfered with her ability to know of her injury and its cause. Moreover, information which plaintiff alleged that she discovered only after the suit was filed-for example, the principal's statement during discovery that she had observed the teacher's efforts to help plaintiff with school work and personal problems but did not conclude that the contact rose to the level of misconduct-appears to do little to substantiate any of plaintiffs claims. See Restatement (Second) of Torts § 317 comment e (1965) (master may subject himself to liability by retaining servants who, to his knowledge, are in the habit of misconducting themselves in a manner dangerous to others); see also Destefano v. Grabrian, 768 P.2d 275 (Colo.1988).

We conclude that the trial court correctly determined that plaintiff did not present evidence sufficient to create a material issue of fact that the statute of limitations should have been tolled.

IIL

Plaintiff also contends that the trial court erred in denying her request for additional time to conduct discovery and in failing to rule upon her motion to compel prior to ruling on the summary judgment motion. We disagree.

In order to avoid the precipitous and premature grant of a summary judgment, C.R.C.P. 56(f) affords to the non-moving party an extension of time for the purpose of seeking additional evidence before the trial court rules on the motion. DuBois v. Myers, 684 P.2d 940 (Colo.App.1984). A reasonable continuance for discovery purposes may be ordered if it appears that summary judgment would be premature absent the opportunity to conduct this discovery. See Sundheim v. Board of County Commissioners, 904 P.2d 1337 (Colo.App.1995), aff'd, 926 P.2d 545 (Colo.1996).

The record indicates that the court did grant plaintiff an extension, although plaintiff argued that the time was insufficient. Even so, here, summary judgment was granted as a result of plaintiff's failure to file the action within the applicable statute of limitations. And, as plaintiff has not demonstrated that any discovery related to certain witnesses or documents would have precluded that judgment, we find no abuse of discretion in the trial court's actions.

IV.

Plaintiff contends that the trial court erred in denying her motion to amend the complaint allowing additional claims for relief against defendants. We disagree.

Leave to amend a pleading is a matter left to the sound discretion of the trial court. C.R.C.P. 15(a). In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, undue prejudice to the opposing party, and futility of the amendment-the leave sought should, as the rules require, be freely given. See Polk v. Denver District Court, 849 P.2d 23 (Colo.1993).

The movant carries the burden of demonstrating that lack of knowledge, mistake, inadvertence, or other reason for having not stated the amended claim earlier. Gaubatz v. Marquette Minerals, Inc., 688 P.2d 1128 (Colo.App.1984).

Here, the month following defendants' motion for summary judgment, plaintiff moved to add a third-party beneficiary claim against Bennett and the Archdiocese, a claim for breach of fiduciary duty and a federal claim under Title IX against the Archdiocese, and a federal civil rights claim against certain individuals who had been employees of the Denver Department of Social Services (Department). Plaintiff stated that she first learned of the Archdiocese's insurance policy, upon which she based the putative beneficiary claim, during discovery. Plaintiff offered no explanation for the delayed fiduciary duty and federal claims.

The trial court found that the claims could and should have been raised earlier than ninety days prior to trial. The court concluded that to inject the claims at that late date would unduly complicate and delay the case and would inflict incurable prejudice upon defendants. In light of these findings, we cannot say that the trial court abused its discretion.

Moreover, the claims raised by plaintiff in her second amended complaint were already barred at that time by the applicable statutes of limitations. See § 18-80-101(1)(F), C.R.S. 1999 (claim for breach of fiduciary duty subject to three-year limitation); § 13-80-101(1)(a), C.R.S.1999 (claim for breach of contract subject to three-year limitation); § 13-80-102, C.R.8.1999 (claims brought under the federal statutes are subject to a two-year limitations period).

V.

Finally, plaintiff contends that the trial court erred in failing to award her reasonable attorney's fees and costs incurred in response to defendants' designation of non-parties because these parties were dismissed after discovery established that the designation was without merit. We disagree.

A defendant has a right to seek contribution from a joint tortfeasor for the amount the defendant pays in excess of his or her pro rata share of liability for the same injury rendered to the plaintiff, Section 13-21-111.5, C.R.$.1999; see Graber v. Westaway, 809 P.2d 1126 (Colo.App.1991). To designate a potentially liable nonparty, a defendant must file a pleading setting forth, among other things, a brief statement of the basis for believing such party is at fault. See Thompson v. Colorado & Eastern R.R. Co., 852 P.2d 1328 (Colo.App.1993).

Here, defendants moved to designate plaintiff's parents, the Denver Department of Social Services, and the perpetrator's employment references as non-parties at fault. Defendants believed that the parents were wholly or partially at fault for plaintiff's injuries because they knew about the continuing sexual relationship before defendants knew or should have known of it after the perpetrator left defendants' employ; that the Department failed to act on the principal's report of possible sexual abuse; and that, to the extent the perpetrator was found to have flawed qualities for her teaching position, the professional and character references bore some responsibility for defendants' hiring decision.

While plaintiff moved to strike the designation, she also recognized that discovery might yield facts which would support an amendment to the complaint and, thus, alternatively moved to add the Department and the references as defendants.

Accordingly, at the time of designation defendants had no duty to produce evidence that the non-parties were, indeed, negligent. To the contrary, defendants provided sufficient support for their belief that others contributed to plaintiff's injury.

The judgment is affirmed.

Chief Judge HUME and Judge ROY concur.


author: Judge MARQUEZ.

text:
    Adam O. LAWRENCE, an infant, through his mother and next friend, Amy Fritz, Plaintiff-Appellee, v. Sharon K. TAYLOR, Defendant-Appellant.
    No. 98CA2598.
    Colorado Court of Appeals, Div. IV.
    July 20, 2000.

      The Leventhal Law Firm, P.C., Beth L. Krulewitch, Denver, Colorado, for Plaintiff-Appellee.

      Godfrey & Associates, P.C., Brett M. God-frey, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge MARQUEZ.

In this wrongful death action, defendant, Sharon K. Taylor, appeals the judgment entered on a jury verdict in favor of plaintiff, Adam O. Lawrence. We affirm.

Defendant's vehicle struck a motorcycle operated by plaintiff's father (decedent) causing fatal head injuries. Following the decedent's death, plaintiff filed this action through his mother and next friend, Amy Fritz (mother), alleging that defendant's negligence had caused the death.

Although a first trial resulted in a mistrial, after a second trial, the jury found in favor of plaintiff and awarded him $400,000. The award was reduced to $240,000 because the jury found that the decedent was 40% responsible for the accident.

I.

The trial court ruled as inadmissible evidence indicating that decedent was not wearing a motorcycle helmet at the time of the collision. Defendant contends that ruling was reversible error. We are not persuaded.

A trial court has considerable discretion in deciding questions concerning the admissibility of evidence. To show an abuse of discretion, a party must establish that, under the circumstances, the court's decision was manifestly arbitrary, unreasonable, or unfair. Vu v. Fouts, 924 P.2d 1129 (Colo.App.1996).

Under the law of comparative negligence, evidence of a motorcycle operator's failure to wear a protective helmet is inadmissible to show either negligence or a failure to mitigate damages on the part of the operator. Dare v. Sobule, 674 P.2d 960 (Colo.1984).

Here, in granting plaintiff's motion in li-mine to exclude evidence that decedent was not wearing a helmet, the trial court relied on Dare v. Sobule, supra. It found that evidence of decedent's failure to wear a helmet at the time of the accident was irrelevant and inadmissible to establish comparative fault or failure to mitigate damages.

Relying on Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70 (Colo.1998), defendant contends that the mere fact that there exists no statute addressing the use of a helmet does not prevent a fact finder from apportioning fault on this basis. We disagree.

The supreme court in Bayer held that, in the absence of clear legislative intent to the contrary, the creation of a statutory remedy does not bar preexisting common law rights of action. It also noted that the Restatement (Second) of Torts explains that a legislative minimum does not prevent a finding that a reasonable person would have taken additional precautions when the situation calls for them. Here, however, there is no statutory enactment regarding the use of motorcycle helmets, and under Dare v. Sobule, supra, such evidence is inadmissible.

Defendant also argues that, because non-use of a seat belt is now admissible in civil cases to prove evidence of failure to mitigate pain and suffering, see § 42-4-287(7), C.R.$.1999, this change in law reflects a legislative trend toward reduction of a defendant's fault based upon a plaintiff's failure to take reasonable steps to mitigate injury. However, because defendant did not present this argument to the trial court, we do not address it here. See Flagstaff Enterprises Construction, Inc. v. Snow, 908 P.2d 1183 (Colo.App.1995.)

Thus, we conclude that the trial court did not abuse its discretion in ruling that evidence of the decedent's failure to wear a helmet during the accident was inadmissible.

IL.

Defendant also sought unsuccessfully to present evidence that the decedent was operating a motor vehicle without a valid driver's license. Contending that the court erred in barring that evidence, defendant asserts that the decedent's driver's license had been suspended as a result of repeated and recurrent violations of law which would warrant a finding by the trial court that decedent was an habitual offender and that the circumstances of the offenses giving rise to the suspension indicated a habit, practice, and pattern of disregard for traffic regulations. We perceive no error.

A.

In a motion in limine, evidence was presented to the court that the decedent had been convicted of reckless driving two times, driving without a license, driving while his license was under restraint, eluding police, and possessing drug paraphernalia while driving.

In granting plaintiff's motion in limine, the trial court found that, because the decedent bad not been adjudicated an habitual traffic offender under § 424-1713, evidence of his prior traffic convictions or a pattern of reckless driving was inadmissible per se. It further found that, although the decedent's driver's license was suspended, such suspension was presumably under §§ 42-2-127 and 42-2-182, C.R.S.1999, and not under § 42-2-206, C.R.S.1999. Thus, the trial court ruled that any mention or testimony that decedent's license was under suspension at the time of the accident was inadmissible.

Interpretation of a statute is a question of law, and a reviewing court need not defer to a trial court's interpretation. When interpreting a statute, we attempt to implement the intent of the General Assembly. Paraguay Place-View Trust v. Gray, 981 P.2d 681 (Colo.App.1999).

Section 424-1718, C.R.S8.1999, states that, except as provided in §§ 42-2-201 to 42-2-208, C.R.S.1999, no record of the conviction of any person for any violation of the article concerning traffic regulations is to be admissible as evidence in any court in any civil action.

Sections 42-2-201 to 42-2-208 include the provisions defining who is an habitual offender, authority for revocation, appeals, and other related matters.

The habitual traffic offender statute authorizes the Colorado Department of Revenue, Motor Vehicle Division, to conduct hearings to determine whether a person is an habitual traffic offender and to revoke the driver's license of an habitual traffic offender. People v. McKnight, 200 Colo. 486, 617 P.2d 1178 (Colo.1980).

Accordingly, under § 424-1718, evidence of the decedent's traffic convictions was not admissible in this negligence action.

B.

Defendant asserts that, had the decedent survived the accident, he would have been convicted of driving while his license was under suspension and considered to be an habitual offender pursuant to § 42-2-202, C.R.S.1999. Thus, she contends that evidence of the decedent's previous traffic convictions would have been admissible. Such an assertion is highly speculative, and, as such, cannot bring the situation here within the exception provided in § 42-4-1718. Consequently, the evidence was properly excluded.

C.

We also reject defendant's contention that evidence that decedent's license was suspended is separate and distinct from evidence of his driving record and that this fact should have been made known to the jury.

The weight of authority is to the effect that mere lack of a driver's license is not evidence of negligence. See Knutson v. Nielsen, 256 Minn. 506, 99 N.W.2d 215 (1959); Ross v. Scott, 386 N.W.2d 18 (N.D.1986); Amdahl v. Sarges, 405 N.W.2d 638 (S.D.1987); R.P. Davis, Annotation, Lack of Proper Automobile Registration or Operator's License as Evidence of Operator's Negligence, 29 A.L.R.2d 968 (1958); but see Klanseck v. Anderson Sales & Service, Inc., 186 Mich.App. 75, 356 N.W.2d 275 (1984).

Schneider v. Midtown Motor Co., 854 P.2d 1322 (Colo.App.1992), upon which defendant relies, does not compel a different result. In Schneider, plaintiff brought a negligent en-trustment suit against a car dealership after being injured by an allegedly unlicensed driver, who was driving a car he had purchased ten days before the accident. A division of this court held that a causal link may exist between the dealership's entrusting of a car to an unlicensed, dangerous motorist and the resulting injury to plaintiff. Here, however, the defendant is seeking to establish negligence by the operator of the motoreycle, not negligent entrustment. Nor has defendant explained how evidence that the decedent was operating a motorcycle without a license is relevant in deciding whether he was negligent at the time of the accident. Thus, Schneider is not applicable here.

Therefore, the trial court did not err in prohibiting the admission of evidence that the decedent's license was suspended at the time of the accident.

IIL

Urging that it was clearly relevant to the witness' credibility, defendant next asserts that the trial court erred in refusing to admit evidence that plaintiffs mother, at the time of the accident, was employed as a striptease dancer. We perceive no error.

A.

The relevancy of impeaching evidence must be clear, must not raise collateral issues, and must be directed only at the witness' credibility, and not at the witness' moral character. People v. Diaz, 644 P.2d 71 (Colo.App.1981)(evidence as to defendant's previous sexual conduct was irrelevant to offense charged or plea of self defense).

Here, the trial court initially found that, because plaintiff had made a claim for economic loss, mother's as a professional dancer was a relevant consideration. The trial court, however, later reversed its ruling and excluded any evidence concerning the nature of her occupation.

In our view, defendant's attempt to inform the jury of mother's occupation served no useful purpose, but rather was intended to impugn her moral character, and the trial court properly excluded any evidence related to the nature of her occupation. See People v. Couch, 179 Colo. 324, 500 P.2d 967 (1972)(inquiry ought to be directed to the witness' credibility, rather than to his moral character). Further, any possible relevance of this evidence was outweighed by its prejudicial effect. See People v. Diaz, supra.

B.

We similarly reject defendant's contention that mother's occupation was relevant to the issue of paternity and the calculation of damages.

Defendant failed to offer any evidence that mother's occupation was relevant to the issue of paternity, and the trial court properly excluded this evidence as an attempt to discredit her moral character. For similar reasons, any evidence concerning plaintiffs relationship with another father figure was irrelevant to the calculation of damages.

C.

We also disagree with defendant's contention that mother's occupation was relevant to testimony of economic loss by' plaintiff's economic expert.

The court allowed expert testimony regarding the amount of mother's income and that testimony did not indicate that determination of plaintiff's financial loss depended on consideration of mother's occupation.

Thus, mother's occupation was irrelevant to plaintiff's economic loss.

IV.

We also are not persuaded by defendant's contention that the trial court erred in determining, as a matter of law, that the decedent was the natural father of plaintiff.

A motion for a directed verdict may be granted only where the evidence, when so considered, compels the conclusion that the minds of reasonable persons could not be in disagreement and that no evidence, or legitimate inference arising therefrom, has been presented upon which the jury's verdict against the moving party could be sustained. Boryla v. Pash, 960 P.2d 123 (Colo.1998).

In relevant part, § 19-4-105(1)(a), C.R.S. 1999, provides that a man is presumed to be the natural father of a child if;

He and the child's natural mother are or have been married to each other and the child is born during the marriage, within three hundred days after the marriage is terminated by death, annulment, declaration of invalidity of marriage, dissolution of marriage, or divorce, or after a decree of legal separation is entered by a court.

However, the statute also provides that a man is presumed to be the natural father if;

While the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child....

Section 19-4-105(1)(d), C.R.$.1999.

Section 19-4-105(2)(a), C.R.S.1999, provides in pertinent part that:

A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls.

Here, according to the testimony presented by mother at the first trial, decedent was the only man in her life. When asked about the last time she had seen another man other than decedent, mother stated, "Since my ex-husband, a year, longer." Evidence also was presented that mother had filed for a legal separation from her husband in 1991, that she had moved with her daughter to Florida where she met decedent in 1992, that she and the decedent had moved to Colorado, and that plaintiff was born in 1998.

In the first trial, the decedent's brother also testified that plaintiff lived with the decedent and mother, that plaintiff was decedent's only biological child, that he was "a proud dad," and that when plaintiff was born, the decedent handed out cigars.

In directing a verdict on the issue of paternity at the first trial, the trial court acknowledged that a husband is presumed to be the father of a child born into a marriage. However, the court essentially determined that a jury could not, by clear and convincing evidence, conclude that the presumption in support of decedent being plaintiff's father had been overcome.

At the second trial, mother again testified that plaintiff was the decedent's child, and that decedent watched plaintiff while she worked, changed his diapers, made bottles, bathed him, and put him to bed. Plaintiff also called the decedent "da-da."

During the second trial, defendant did not renew her objection or seek reconsideration of the paternity ruling.

Consequently, because defendant did not introduce any evidence that decedent was not plaintiff's father, other than the fact that the mother was still legally married to someone else, we conclude that the trial court did not err in directing a verdict on the issue of paternity.

v.

Defendant contends that the trial court erred in permitting plaintiff's counsel to remark during closing argument that her expert had not been called to testify, in view of the fact that a stipulation was approved by the court and entered in the record to the effect that no remarks could be made concerning the absence of defendant's expert witness. We disagree.

At the first trial, defendant called an expert witness to provide testimony related to the reconstruction of the accident.

During opening statement in the second trial, plaintiffs counsel stated that defendant's expert witness was going to testify there was considerable conflicting information in the witness accounts regarding the color of the traffic lights. However, according to plaintiff's counsel, under either scenario, the expert was going to testify that the prudent maneuver on the part of defendant would have been to initiate the left turn in a slow and cautious manner until she was sure there were no north-westbound vehicles proceeding through the intersection. Nevertheless, plaintiff objected to the expert being called during the second trial.

Although defense counsel agreed not to call the expert, and the court ruled that the expert's evidence would not be mentioned, defense counsel stated in closing argument:

Now, let's look at what happened in this situation. - [Plaintiff's Counsell makes much of the fact that I had planned to bring in an engineer and I didn't call him. And, ladies and gentlemen, the reason I didn't call him is because no engineer in the world can make this light green....

Plaintiff's counsel in closing responded by explaining why he had not called an expert.

We conclude that, because defense counsel attempted to explain to the jury why he did not call the expert, plaintiff's response was reasonable. Consequently, we perceive no error. See Halliburton v. Public Service Co., 804 P.2d 218 (Colo.App.1990)(when a defendant opens the door on a subject by its argument, it is permissible for plaintiffs counsel to respond).

VIL.

Finally, defendant contends that the trial court erred in denying her motion for a directed verdict at the close of the evidence. He alleges that every witness purporting to have firsthand knowledge concerning the col- or of the traffic light controlling decedent's direction of travel, prior to the time he entered the intersection, testified that such light was red. We are not persuaded.

When the facts are in dispute, it is for the jury, and not the judge, to resolve the conflict. In reviewing a motion for a directed verdict, a court must consider all of the facts in the light most favorable to the nonmoving party, and determine whether a reasonable jury could have found in favor of the nonmoving party. Boryla v. Pash, supra.

Here, two witnesses testified that when decedent entered the intersection, the light facing him was red. However, the police officer who responded to the seene testified that none of the six witnesses identified in his report informed him that the decedent had run a red light, that defendant had turned left in front of the decedent, and that the model traffic code requires a driver of a vehicle intending to turn left at an intersection to yield the right-of-way to any vehicle approaching from the opposite direction. The officer further testified, without objection, that one witness had reported that decedent was approaching a green light at the time of the accident and the defendant had caused the accident.

In light of the conflicting evidence, we conclude that the trial court properly denied defendant's motion for a directed verdict.

Accordingly, the judgment is affirmed.

Judge ROTHENBERG and Judge DAILEY concur.