author: Judge DAILEY.

text:
    The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of N.D.S., a child and Concerning L.S. and E.S., Respondents-Appellants.
    No. 99CA1459.
    Colorado Court of Appeals, Div. IV.
    June 8, 2000.

      Harden, Hass, Haag & Haliberg, P.C., George Hass, Sean C. McGill, Fort Collins, Colorado, for Petitioner-Appellee.
    Thomas R. French, P.C., Thomas R. French, Fort Collins, Colorado, for Respondents-Appellants.
   Opinion by

Judge DAILEY.

LS. and E.S., the parents of N.D.S., a child adjudicated delinquent, appeal from a district court order affirming a magistrate's order that required them to pay foster care fees. We affirm.

During a hearing on February 20, 1998, the child pled guilty to misdemeanor menae-ing and felony criminal mischief and was adjudicated delinquent. The victims of the child's acts were his parents. Pursuant to a plea agreement, the child was placed on probation for two years. The conditions of probation required the child to undergo mental health and substance abuse evaluations; attend school without problems, complete twenty-fours hours of community service, and pay court costs. In addition, the child was committed to the custody of the Department of Human Services (the Department) for placement.

On February 24, 1998, the magistrate entered a written order vesting temporary custody of the child with the Department. The order further provided that the parents "shall be obligated pursuant to [§ 19-1-115(4)(d), C©.R.S.1999] to pay a fee, based upon the parents' ability to pay, to cover the costs of .... residential care of the [JJuve-nile." A copy of the order was not mailed to the parents.

Thereafter, the parents were served with an administrative notice of financial responsibility pursuant to § 26-18.5-103, C.R.8.1999. After they failed to agree to the cost of residential care during a negotiation conference, a request for hearing was filed in the district court, and notice of the hearing was served on the parents' attorney. See § 26-18.5-105, C.R.S8.1999. Following the hearing, the magistrate ordered ' mother to pay $2,028.82 and father to pay $5,760.12 for reimbursement of foster care fees, together with interest at the statutory rate. The district court affirmed the magistrate's order on review.

I.

The parents contend that their right to due process was violated because the magistrate's order of February 24, 1998, was entered without notice or an opportunity to be heard on the issue of foster care fees. They argue that they were not given a fundamentally fair proceeding because they did not have an opportunity to object to the child's placement, to challenge the reasonableness of the cost of placement, or to object to the calculation of foster care fees. We disagree.

When a child is adjudicated delinquent, the court has the exclusive jurisdiction to determine the placement of the child. People in Interest of M.A.G., 732 P.2d 649 (Colo.App.1986). If the court commits the child to the custody of the Department pursuant to § 19-2-909, C.R.S.1999, the exclusive power to place the child lies with the Department. Sections 19-2-909(2) and 19-2-923, C.R.S.1999. See Leidig v. Delaney, 189 Colo. 186, 539 P.2d 1264 (1975). Therefore, here, the parents were not entitled to object to the Department's choice of placement.

Section 19-1-115(4)(d), C.R.S8.1999, imposes an obligation on parents to contribute to the cost of their child's residential placement. People in Interest of S.M.S., 907 P.2d 739 (Colo.App.1995); People in Interest of M.A.G., supra. Section 26-5-102, C.R.S. 1999, complements this statute by imposing a parental support obligation. M.S. v. People, 812 P.2d 632 (Colo.1991). Under these statutes, the parents' obligation is computed in accordance with their ability to pay. M.S. v. People, supra.

The General Assembly has established an administrative procedure for the assessment and enforcement of parental support obligations. Sections 26-18.5-101, et seq., C.R.S. 1999. Such a proceeding is initiated by the issuance of a notice of financial responsibility by the delegate child support enforcement unit, a unit of the county department of social services or its contractual agent responsible for establishment and enforcement of child support obligation. Sections 26-18.5-108 and 26-18.5-101(7), C.R.S.1999. See § 26-18.5-102(9), C.R.8.1999. If, after a negotiation conference conducted pursuant to § 26-18.5-105, C.R.8.1999, the parties do not agree as to the amount of monthly support, the delegate child support enforcement unit must issue a temporary support order, file a copy of the notice of financial responsibility in the district court of the county in which it was issued, and request the district court to set the matter for hearing. Section 26-18.5-105(8)(c), C.R.8.1999.

Section 19-1-115(4)(d), C.R.S.1999, is mandatory, see M.S. v. People, supra, and does not require that parents be advised of their statutory obligation to pay the cost of residential care of their child. Notice of this obligation is provided pursuant to the administrative procedure for assessment and enforcement of child support. See § 26-18.5-108, C.R.8.1999.

Here, the parents were provided with notice and an opportunity to be heard as to the cost of the child's residential care pursuant to §§ 26-18.5-108 and 26-18.5-105. And, after a contested hearing, they were ordered to pay a portion of the cost of the child's residential care. Thus, we perceive no violation of the parents' right to due process.

IL.

The parents also contend that their right to due process was violated because the Department failed to comply with § 19-1-107(8), C.R.S.1999, which requires a social study that includes the cost of recommended placement, and with its own rules concerning foster care fees. However, these issues were not raised in the proceedings before the magistrate and the district court, and are not properly before us on review. See City and County of Denver v. Desert Truck Sales, Inc., 837 P.2d 759 (Colo.1992); Catholic Charities in Interest of C.C.G., 942 P.2d 1380 (Colo.App.1997).

IIL

Finally, the parents contend that the trial court erred in assessing foster care fees against them because they were the victims of their child's acts. They argue that the assessment of the fees violates the policy of the Colorado Crime Victim Compensation Act, § 24-4.1-101, et seq., C.R.S.1999(Act). We reject this contention.

The express purpose of the Act is to protect and assist victims of crime in order to preserve the victim's individual dignity and to encourage greater public cooperation in the apprehension and prosecution of criminals. Section 24-4.1-101, C.R.S.1999. Towards that end, the Act lessens a victim's financial burden caused by the commission of a crime by providing compensation for certain types of losses. Sections 24-4.1-101, 24-4.1-108, and 24-4.1-109, C.R.S8.1999.

However, parents have a duty to provide reasonable support for their children. Matter of C.G.G., 946 P.2d 603 (Colo.App.1997). Accordingly, the Colorado Children's Code, §§ 19-1-101, et seq., C.R.8.1999 (Code) imposes a mandatory obligation on parents to contribute to the cost of their child's residential placement. Section 19-1-115(4), C.R.S. 1999; M.S. v. People, supra; People in Interest of M.A.G., supra.

Here, the child's parents were the victims of his criminal acts. However, neither the Act nor the Code implicitly or explicitly obviates the parents' duty of support if they are the victims of their child's criminal acts. Nor are the Act and the Code irreconcilable. See People v. Hampton, 876 P.2d 1236, 1240 (Colo.1994)("If a statute potentially conflicts with another statute, a court must attempt to harmonize them to effectuate their purposes.").

As victims under the Act, the parents may be entitled to compensation from the crime victim compensation fund for losses due to injury or property damage. Section 24-4.1-109, C.R.S.1999. See generally Newburn v. RFB Petroleum, Inc., 775 P.2d 93 (Colo.App.1989). And, they could have sought an order obliging the child to pay restitution for "actual pecuniary damages" resulting from the child's delinquent acts. Section 19-2-918, C.R.S 1999. CL § 24-4.1-302.5(1)(b), C.R.S. 1999 (restitution for victims of crime). Nonetheless, they have a statutory obligation to contribute to the cost of their child's residential placement under the Code. See M.S. v People, supra; People in Interest of M.A.G., supra.

For these reasons, we conclude that the trial court did not err in assessing foster care fees against the parents. See People in Interest of M.A.G., supra.

Finally, because restitution was neither requested nor ordered, we decline to address the parents' contention that the purposes of §§ 16-11-501(8) and 19-2-114(1), C.R.8.1999, are violated by the assessment of costs for residential care of the child.

The judgment is affirmed.

Judge MARQUEZ and Judge ROTHENBERG concur.


source: Caselaw Access Project

author: Judge DAVIDSON.

license: Public Domain

text:
    MAGNETIC ENGINEERING, INC., and State Farm Fire and Casualty Co., Petitioners, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE of Colorado and Michael Marshall, Respondents.
    No. 99CA1380.
    Colorado Court of Appeals, Div. III.
    June 8, 2000.

      Clifton, Hook & Bovarnick, P.C., James R. Clifton, Harvey D. Flewelling, Denver, Colorado, for Petitioners.
    No Appearance for Respondent the Industrial Claim Appeals Office.
    Shakeshaft, Chernushin & Donohoe, P.C., Kenneth J. Shakeshaft, Colorado Springs, Colorado, for Respondent Michael Marshall.
   Opinion by

Judge DAVIDSON.

In this workers' compensation proceeding, Magnetic Engineering, Inc., and its insurer, State Farm Fire and Casualty Co., {collectively employer) seek review of the final order issued by the Industrial Claim Appeals Office (Panel) upholding an award of temporary total disability (TTD) benefits to Michael Marshall (claimant). We affirm.

Claimant suffered a compensable injury on April 17, 1996. He subsequently worked in a light-duty position until June 7, 1996, when employer moved its facility out of the country. He remained unemployed until July 1997 when he became a salesperson for a furnace company. That position ended in September 1997.

Claimant received temporary total disability benefits until September 25, 1996, when his treating physician placed him at maximum medical improvement (MMI). Later, claimant requested the reinstatement of TTD benefits based upon the results of a division-sponsored independent medical examination (IME) performed on April 16, 1997, which determined that he was not at MMI as of that date.

Claimant's request for TTD benefits covered the period from January 1, 1997, when claimant's unemployment benefits stopped, through October 27, 1997.

Employer contested liability for the benefits asserting, as grounds, that claimant was at MMI until April 15, 1997, that he had refused to submit to a medical examination pursuant to a request made by employer on May 1, 1997, and that he had returned to regular employment.

Following an evidentiary hearing, the Administrative Law Judge (ALJ) rejected employer's arguments and entered an award of TTD benefits for the requested period.

The Panel upheld the award on review.

I.

Employer first contends that the ALJ erred in awarding claimant TTD benefits from January 1, 1997, to April 15, 1997, because claimant was at MMI during that period. We disagree.

Reaching MMI constitutes one of the statutory conditions for the termination of temporary disability benefits. Section 8-42-105(8)(a), C.R.S.1999; Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App.1996).

A claimant is at MMI when the underlying condition causing the disability has become stable and no further treatment will improve that condition. Section 8-40-201(11.5), C.R.S.1999. The authorized treating physician makes the initial determination of MML See Section 8-42-107(8)(b), C.R.S.1999; Dependents of Nunnally v. Wal-Mart Stores, Inc., 943 P.2d 26 (Colo.App.1996).

Either party may request a division-sponsored IME if a dispute arises concerning the treating physician's finding as to MMI, and the opinion of the IME physician has presumptive effect unless overcome by clear and convincing evidence. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App.1995). Whether a party has overcome the IME's opinion as to MMI is a question of fact for the ALJ as the sole arbiter of conflicting medical evidence. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App.1995).

In his report, the IME physician stated:

I disagree at this time that Mr. Michael Marshall is at maximal medical improvement. I am not stating though by this statement that he has not in the past been at maximal medical improvement but can only state categorically that at this time he is not ... this patient has the potential to benefit from a medial ...

The physician also answered "no" in response to the question on his information sheet which asked whether he agreed with the treating physician's date of MML.

The ALJ specifically referred to the IME physician's opinion regarding MMI and also noted that the physician's report recorded claimant's continued difficulties with uninterrupted sleep, positioning his arm, and a painful burning sensation.

IL.

Employer, in arguing that claimant remained at MMI until the date of the IME, maintains that the IME physician did not dispute the initial finding of MMI by the treating physician. Employer urges, therefore, that claimant was required to prove by clear and convincing evidence that he was not at MMI prior to April 16, 1997. Employer further argues that the ALJ's failure to enter findings regarding whether claimant sustained that burden rendered the ALJ's order fatally defective and demonstrated that the ALJ misapplied the proper legal standard. We are not so persuaded.

Initially, we note that the ALJ is not held to a crystalline standard in articulating his findings of fact, Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App.1992), and we are able to discern from the order the reasoning which underlies the award of TTD benefits for the period prior to the IME.

We also agree with the Panel that the report of the IME physician is subject to conflicting inferences concerning the claimant's MMI status prior to the IME on April 16, 1997. As the Panel points out, the combined effect of the IME physician's report and his response on the information sheet provides sufficient support for the ALJ's inference that the IME physician did not believe claimant to be at MMI prior to April 16, 1997. Moreover, such an inference is particularly reasonable in light of the evidence that claimant had suffered ongoing problems with his right arm and shoulder since September 26, 1996, the treating physician's date of MMI. It also accords with the IME physi-clan's recommendation that surgery be explored.

We, therefore, conclude that the Panel appropriately determined that the meaning of the IME physician's report presented a question of fact for the ALJ to resolve. See Blue Mesa Forest v. Lopes, supra (ambiguous opinions concerning a claimant's status as to MMI involve factual disputes to be resolved by the ALJ); Metro Moving & Storage Co. v. Gussert, 914 P.2d 411 (Colo.App.1995) (question of whether independent medical examination (IME) physician has properly applied medical guidelines for evaluation of permanent impairment in arriving at impairment rating is question of fact). We are further satisfied that the record supports the ALJ's resolution of that question in favor of claimant. See Metro Moving & Storage Co. v. Gussert, supra (conflicts in medical evidence in a workers' compensation proceeding are for resolution by the ALJ).

While we recognize that the ALJ did not explicitly state that he did, in fact, infer that the IME physician had not determined claimant to be at MMI prior to April 16, 1997, such an inference must be implied from the ALJ's determination to award TTD benefits. Thus, we reject employer's assertion that claimant was required to prove by clear and convincing evidence that he had not reached MMI prior to April 16, 1997.

IIL

Employer next contends that the ALJ erred in awarding benefits for the period after claimant refused to submit to a requested exam. Again, we disagree.

Employer's contention is premised upon § 8-48-404(8), C.R.S.1999, which provides in relevant part:

So long as the employee, after written request by the employer or insurer, refuses to submit to medical examination or vocational evaluation or in any way obstructs the same, all right to collect, or to begin or maintain any proceeding for the collection of, compensation shall be suspended. If the employee refuses to submit to such examination after direction by the director or any agent, referee, or administrative law judge of the division appointed pursuant to Section 8-48-208(1) or in any way obstructs the same, all right to weekly indemnity which accrues and becomes payable during the period of such refusal or obstruction shall be barred.

Employer asserts that claimant forfeited all right to temporary disability benefits under this statute when he refused to submit to the requested exam.

In addressing employer's contention, both the ALJ and the Panel relied upon previous decisions of the Panel which have held that the first two sentences of § 8-48-404(8) create a two-tiered system of sanctions for the refusal to submit to medical examinations. According to the Panel, the first sentence permits a temporary suspension of the right to collect benefits for the period during which the claimant refuses to attend the medical examination. The second sentence creates a permanent bar to collection of benefits if the claimant fails to submit to examination after being ordered to do so by an ALJ or the Director.

When a reviewing court construes a statute, it must determine and give effect to the intent of the legislature by affording the language of the statute its plain and ordinary meaning. Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo.1998). Deference also should be given to the interpretation of the statute by the officer or agency charged with its administration. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo.1998). Consequently, the Panel's interpretation will be set aside only if it is inconsistent with the clear language of the statute or with the legislative intent. Support, Inc. v. Industrial Claim Appeals Office, 968 P.2d 174 (Colo.App.1998).

The term "suspended" means temporarily disbarred, inactive, inoperative, or held in abeyance. Webster's Third New International Dictionary 2808. On the other hand, the term "barred" connotes a permanent withholding or prohibition. See Webster's Third New International Dictionary 174. Thus, the Panel's interpretation accords with the plain meaning of the operative terms at issue here. Pursuant to that interpretation, a temporary suspension of benefits may be followed by a reinstatement as long as there has been no order entered which has directed the claimant to submit to the examination.

Although employer suggests that a different ALJ in a prior hearing indicated that claimant had unreasonably refused to attend the examination, no order was entered. Further, claimant agreed in a letter dated August 5, 1997, to cooperate with the exam. However, employer did not reschedule the exam, and the parties subsequently stipulated to an exam by a different physician. Under these cireumstances, the Panel properly held that claimant's right to collect benefits had been restored.

We also perceive no merit to employer's contention that the ALJ erred in failing to bar the benefits or enter findings regarding whether the benefits should be reduced or suspended. We find nothing in the record to substantiate the claim that the refusal to submit to the requested exam resulted in a continuing and detrimental effect on claimant's condition. Further, we note that the ALJ must make specific findings only as to the evidence found persuasive and determinative. The ALJ operates under no obligation to address either every issue raised or evidence which he or she considers to be unpersuasive. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App.1994).

Finally, employer argues that the interpretation of the Panel produces an absurd result because it permits the claimant to obstruct the employer's right to demand an examination for an indefinite period and removes any incentive for the claimant to comply with such request. However, we agree with the Panel that the suspension, albeit temporary, provides adequate incentive for the claimant to cooperate with an employer's request for a medical examination. Further, the statute makes available more stringent sanctions when the claimant's actions so demand.

IV.

Finally, we also disagree with employer's contention that the ALJ erred in awarding TTD benefits for the period after claimant obtained employment.

Section 8-42-105(8)(b), C.R.S.1999, provides that TTD benefits terminate when the claimant returns to regular employment.

Here, the ALJ credited claimant's testimony and found that the restrictions and limitations from his injuries prevented a return to his preinjury job duties The ALJ also found that claimant worked for the furnace company as an independent contractor on a commission only basis and that he made no sales and earned no income in that capacity.

Employer contests the ALJ's additional finding that claimant had difficulty in completing the job duties of driving to different locations and argues that no evidence would support a finding, implicit or otherwise, that it was claimant's disability that prevented him from making the sales necessary to earn income. Thus, employer claims that nothing in the record supports the ALJ's determination that the sales job did not represent a return to regular employment.

We view claimant's testimony and his medical history as more than sufficient support for the ALJ's findings. However, as both the ALJ and Panel recognized, even assuming the sales job constituted actual employment, the fact that no wages were earned means that claimant's disability benefits would still have been calculated at the rate in effect prior to his obtaining the sales position. See § 8-42-106, C.R.8.1999 (when the claimant returns to modified employment at less than his pre-injury rate of pay, temporary partial disability (TPD) benefits are to be calculated based upon sixty-six and two-thirds of the difference between the average weekly wage at the time of the injury and the average weekly wage during the temporary disability). Consequently, we do not discern any basis from claimant's attempt at employment which would relieve employer of responsibility for temporary benefits.

The order is affirmed.

Judge NEY and Judge ROY concur.


author: Judge KAPELKE.

text:
    In the Matter of the Petition of P.A.L. von R., Plaintiff-Appellant, For the Adoption of an Adult, K.M.F.
    No. 99CA1946.
    Colorado Court of Appeals, Div. V.
    June 8, 2000.
    Ronald L. Brown, Fort Collins, Colorado, for Petitioner-Appellant.
   Opinion by

Judge KAPELKE.

PAL. von R. appeals from the judgment of the trial court dismissing the petition to adopt his adult sister, KM.F. We reverse and remand for entry of an adoption decree.

Petitioner filed his petition pursuant to § 14-1-101, C.R.S.1999, together with a consent to the adoption and a waiver and acceptance of service signed by his sister. Following an evidentiary hearing, the trial court denied the petition. No party opposed the requested adoption.

The court found that petitioner, age 60, was seeking the adoption to allow his sister, a German citizen, age 55, to change her name to the original family name. Petitioner stated that his sister had been unable to effect the name change by any court proceeding in Germany, but that an adoption decree would be recognized.

The court also found that there was nothing in the statute that expressly prevented an adult from adopting another adult of any age. However, the court indicated that it would exercise its discretion and decline to decree the adoption because it appeared to the court to violate public policy. The tran-seript shows that the court was concerned with the lack of age differential between petitioner and his sister and with the fact that they were siblings.

Petitioner contends that § 14-1-101 contains no exception based upon age differential or blood relationship. Therefore, he argues that the trial court erred in denying the petition for adoption. We agree.

Section 14-1-101, the adult adoption statute, provides in pertinent part:

(1) Any person desiring to adopt an adult as heir at law shall file his petition in the juvenile court of the county and thereupon summons shall issue ... and be served on the person sought to be adopted. Said person shall file in the court a written answer to the petition ... and shall either consent to such adoption or deny or disclaim all desire to be adopted by such person.
(2) Upon the filing, by the person sought to be adopted, of a disclaimer of all desire to become the heir at law of the petitioner, the petition shall be dismissed by the court, but upon the filing of a consent to such adoption, ... the prayer of the petition shall be gramted, and a decree of adoption shall be rendered and entered by the court declaring such person the heir at law of the petitioner and entitled to inherit from the petitioner any property in all respects as if such adopted person had been the petitioner's child born in lawful wedlock, and such decree may or may not change the name of such adopted person, as the court rendering the decree may deem advisable; ...

(emphasis added).

The statute authorizes the adoption of adults for the purpose of giving the adoptee the status of an heir at law. In re Trust Created by Belgard, 829 P.2d 457 (Colo.App.1991).

An adult adoption has been described as "merely a means of giving effect to a personal transaction mutually agreeable between two adults." Herrera v. Glau, 772 P.2d 682 (Colo.App.1989) (quoting Martin v. Cuellar, 131 Colo. 117, 279 P.2d 843 (1955)).

If we can give effect to the ordinary words used by the General Assembly, we must apply the statute as written. Use of the word "shall" implies a mandatory meaning. In re Adoption of T.K.J., 931 P.2d 488 (Colo.App.1996).

The plain language of § 14-1-101 requires the trial court to grant an adult adoption when there is valid service and the adoptee consents to such adoption. Both requirements were met here. There is no additional requirement that there be a minimum age differential between the adoptor and the adoptee. See In re Adoption of Elizabeth P.S., 134 Misc.2d 144, 509 N.Y.S.2d 746 (1986) (lack of disparity in age not fatal to adoption proceeding). Nor is adoption precluded based upon the prior relationship of the parties. See In re Trust Created by Belgard, supra; see also Berston v. Minnesota Department of Public Welfare, 296 Minn. 24, 206 N.W.2d 28 (1973) (under statute allowing adoption of an adult by "any person," son's petition to adopt mother granted even though admitted motive was to bring her within terms of trust established by father who had divoreed mother).

Finally, we are not aware of any public policy in Colorado that would be violated by permitting a person to adopt his or her own adult sibling.

Accordingly, we conclude that pursuant to the mandatory language of § 14-1-101, the court was required to grant the petition and enter a decree of adoption.

The judgment is therefore reversed, and the cause is remanded for entry of a decree of adoption.

Judge ROTHENBERG and Judge CASEBOLT coneur.


author: Judge RULAND.

text:
    DYNASTY, INC., a Colorado corporation, Counterclaim-Defendant and Plaintiff-Appellee, v. WINTER PARK ASSOCIATES, INC., a Colorado corporation, Counterclaimant-Crossclaimant and Defendant-Appellant.
    No. 99CA1068.
    Colorado Court of Appeals, Div. V.
    June 22, 2000.
    Brown, Berardini & Dunning, P.C., Neal K. Dunning, Denver, Colorado, for Counterclaim-Defendant and Plaintiff-Appellee.
    Baker & Hostetler, LLP, James M. King, Denver, Colorado, for Counterelaimant-Crossclaimant and Defendant-Appellant.
   Opinion by

Judge RULAND.

Defendant, Winter Park Associates, Inc., appeals from the judgment determining that plaintiff, Dynasty, Inc., holds title to certain real property. We affirm.

In 1876, a town-site patent was issued to Central City by the United States. The plat included an area designated as Block 42. However, the patent expressly excepted from the conveyance lands contained within either federally patented mining claims or lands known to have valuable mineral claims.

Later, Uranium Company of America (UCA) acquired title to both the surface rights and the mineral rights to the lots and mining claims located within Block 42. In 1955, UCA conveyed the various claims to General American Industries, Inc. (GMA). As pertinent here, the 1955 deed provided that: "It is also the intention [of the grantor] to exclude from this Deed any Central City lots to a depth of twenty (20) feet, whether or not they are specifically named herein." This surface reservation was not referenced or repeated in subsequent deeds from GMA and its successor.

After GMA's successors in interest failed to pay assessed taxes during various years, tax sales were conducted and treasurer's deeds ultimately were issued. The language in the deeds purports to convey both the surface estate and the mineral estate. Plaintiff acquired its claim to title of all of the disputed property based upon the treasurer's deeds as the initial source of title.

Later, plaintiff filed this quiet title action pursuant to C.R.C.P. 105 to determine ownership of eight contiguous parcels in Block 42. Defendant answered and claimed an interest in the surface area of parts of four patented mining claims located partly within Block 42 and designated as the Eillieth, Leavy-itt, Otonagon, and Vulean claims. Defendant also claimed an interest in lot 11 of Block 42. Defendant alleged that, as the successor to UCA's interests, it had acquired the top 20 feet of surface to lot 11 and to the areas where the mining claims overlapped the other city lots. Defendant did not dispute plaintiff's title to the remaining area in Block 42.

After a hearing, the trial court made extensive findings and conclusions and determined that title should be awarded to plaintiff. This appeal followed.

Since the relevant facts are undisputed and the pertinent documents are in the record before us, we are not bound by the trial court's conclusions, and we must resolve the issues by analyzing the applicable law. See Atchison, Topeka & Santa Fe Ry. Co. v. North Colorado Springs Land & Improvement Co., 659 P.2d 702 (Colo.App.1982).

Resolution of the issues requires us to apply § 38-41-111(1), C.R.S8.1999, which provides that:

No action shall be commenced or maintained against a person in possession of real property to question or attack the validity of or to set aside, upon any ground or for any reason whatsoever any ... instrument of conveyance, deed, certificate of sale ... executed by any ... county treasurer ... when such document is the source of ... the title or chain of title or right of the party in possession or any of his predecessors or grantors ... if such document has been recorded and has remained of record in the office of the county clerk and recorder ... for a period of seven years .... (emphasis supplied)

It is undisputed that plaintiff was in possession of Block 42 at the time the complaint was filed, and that the deed had been of record for well in excess of the statutory period. Nor is there any claim of improper notice in regard to any of the various tax sale proceedings that occurred prior to issuance of the treasurer's deeds. See Bald Eagle Mining & Refining Co. v. Brunton, 165 Colo. 28, 437 P.2d 59 (1968).

Nevertheless, defendant contends that the trial court erred in determining that § 38-41-111 prevents it from challenging the treasurer's deeds. According to defendant, it seeks only to determine the nature of the property interest actually conveyed by the treasurer's deeds and not to attack the validity of the instruments. Also, based upon its argument that the deeds conveyed only the mineral estate in the disputed parcels, defendant claims ownership of the surface. However, we agree with the trial court's ruling.

Defendant's argument is based upon two theories. First, relying upon cases such as Mitchell v. Espinosa, 125 Colo. 267, 243 P.2d 412 (1952), defendant argues that the surface estate, not having been separately assessed by the county assessor, was not included in the treasurer's deed. Second, relying upon cases such as Webermeier v. Pace, 193 Colo. 157, 563 P.2d 950 (1977), defendant asserts that plaintiff could acquire only the title of the taxpayer at the time via the treasurer's deeds and that this ownership was restricted to the mineral estate. We are not persuaded by these contentions.

In Mitchell, our supreme court addressed the situation in which "oil rights" had been reserved in a conveyance before the issuance of a treasurer's deed for nonpayment of taxes. The court held that the treasurer's deed did not convey that previously severed mineral interest. The court stated:

It is clear that before a valid tax deed can be issued by a county treasurer for nonpayment of taxes there must have been a valid assessment of the property subjecting it to the payment of taxes followed by a default in the payment thereof.... Where a separate and distinct estate consisting of mines, minerals and quarries ... is created by reservation thereof, a sufficient description of this property for assessment purposes requires specific reference to the severed estate. Thus, there must be in the assessment a sufficient description of the estate in oil, such as 'all oil and gas beneath and underlying the specific ... land. A valid assessment is a prerequisite to the issuance of a valid treasurer's deed. (emphasis supplied)

Mitchell v. Espinosa, supra, 125 Colo. at 276, 243 P.2d at 416. See also Gilpin Investment Co. v. Perigo Mines Co., 161 Colo. 252, 421 P.2d 477 (1966)(certificate for unpaid taxes and treasurer's deed referred to surface estate only and thus previously reserved mineral rights were not included in conveyance).

Here, the 1955 deed created a separate and distinct estate in the minerals by reserving the surface. As a result, for there to be a valid assessment of the mineral estate, Mitchell requires that those rights had to be sufficiently described in a separate assessment. However, the parties agree and the trial court found that separate assessments were not prepared for either the minerals or the surface estate after the severance in the 1955 deed. Hence, in our view Mitchell does not provide legal support for defendant's contention.

In Webermetrer, our supreme court again held that a tax assessment must sufficiently describe the mineral estate once that estate has been severed. The Webermeier court also confirmed that possession of the surface was not deemed to be possession of the severed mineral estate and that, therefore, limitation statutes addressing ownership based upon possession did not apply. See also Kriss v. Mineral Rights, Inc., 911 P.2d 711 (Colo.App.1996)(possession of the surface estate does not constitute possession of the mineral estate under § 38-41-111). The court then held that a party can acquire title via a treasurer's deed to no more than the taxpayer owned.

As a result, because only the interest in coal deposits was owned by the taxpayer in Webermerier, the other mineral interests were not included in the treasurer's deed. See also Denver Trackage & Improvement Co. v. Colorado & Southern Ry. Co., 58 Colo. 313, 145 P. 707 (1915)(property conveyed by treasurer's deed is limited to property included within the legal description).

Here, however, the issue is limited to ownership of the surface estate and not a prior reserved mineral estate. Further, neither the mineral estate nor the surface estate was separately assessed after the reservation. Conversely, if defendant were correct in its interpretation of Mitchell and Webermeier, the treasurer's deeds could not be deemed to convey either the surface estate or the mineral estate because of the reservation in the 1955 deed and the fact that separate assessments were not prepared for either estate. We view that result as absurd and not consistent with the purpose and intent of § 38-41-111(1).

Finally, like the trial court, we accord no particular significance to the fact that the name of the taxpayer appears in the treasurer's deed to lot 11. Defendant uses this designation to argue that the treasurer's conveyance was intended to be of the mineral estate only. However, not all of the treasurer's deeds for the other parcels include the taxpayer's name and none of the deeds contains language of limitation as to the estate conveyed.

Turning then to the correct application of § 88-41-111, we note that plaintiff's possession of the surface estate is undisputed. Hence, based upon the express language of the statute, we hold that title to the surface estate is in plaintiff because the required statutory period has expired following issuance of a treasurer's deed that purports to convey the entire surface estate. Accordingly, the trial court was correct in awarding plaintiff a decree of title.

By reason of our disposition of this issue, it is unnecessary to address defendant's other contentions for reversal of the judgment.

Judgment affirmed.

Judge CASEBOLT and Judge VOGT concur.


author: Judge CASEBOLT.

text:
    SHEARTON SERVICE CORPORATION, Assignee of New West Federal Savings and Loan Association, Plaintiff-Appellant, v. C.B. JOHNSON, a/k/a C. Bernal Johnson, Defendant-Appellee, and Carol Jean Johnson, Intervenor-Appellee.
    No. 99CA0577.
    Colorado Court of Appeals, Div. V.
    June 22, 2000.
    John Turner, Colorado Springs, Colorado, for Plaintiff-Appellant.
    No Appearance for Defendant-Appellee.
    Law Offices of Kelly A-R McCuriey, Kelly A-R McCurley, Monument, Colorado, for In-tervenor-Appellee.
   Opinion by

Judge CASEBOLT.

In this proceeding concerning execution upon a judgment lien, plaintiff, Shearton Service Corporation (Shearton), appeals the order denying its motion to lift a stay of execution and granting the motion of intervenor, Carol Jean Johnson (wife), to remove the judgment lien from certain real property. We reverse and remand.

Before his marriage to wife, defendant, C. Bernal Johnson (husband), executed a promissory note payable to Shearton's predecessor in interest. When, during the marriage, husband failed to pay the note, Shearton's predecessor obtained a judgment against him and recorded the judgment in the records of the El Paso County Clerk and Recorder.

Also during the marriage, wife deeded certain El Paso county real property she had previously separately owned to husband and herself in joint tenancy via quitclaim deed. However, husband did not record the deed until approximately seven years later, some two years after Shearton's judgment had been entered and recorded against him.

After discovering husband's record interest in the real property, Shearton obtained a writ of execution and issued a notice of levy upon the property. Contending that she was the sole owner of the property, wife intervened and requested a stay of execution. She requested the trial court to await an ownership determination concerning the real property from the court in which an action for dissolution of the marriage between her and husband was then pending. The trial court ordered a stay of any seizure or other proceeding concerning the property until the dissolution court could determine whether the real property was marital or separate property.

Shearton then sought and obtained leave to intervene in the dissolution proceeding. The dissolution court held that, because husband and wife did not contemplate a gift of the property, and because of wife's previous ownership, the real property should be wife's separate property.

Shearton appealed the court's decision, but a division of this court concluded that Shear-ton was not a proper party to bring the appeal and therefore dismissed it. In re Marriage of Johnson, Colo.App. No. 97CA0916, (Oct. 8, 1998) (not selected for official publication). However, in its opinion the division stated, in pertinent part:

The creditor, which may have legitimate claims against the husband's assets, is not required to await determination of whether the residence here is marital property in order to assert its rights as creditor. Such interests are resolved in accordance with procedures set forth in the statutes that provide for attachment of judgment liens to property in which the judgment debtor has an interest....
At such time as the property was conveyed, and certainly when the deed was recorded, any interest the husband may have had in the property became subject to the creditor's claims. Thus, we fail to see how the trial court's classification here of the residence vis-a-vis the marital estate would bear on the creditor's claim against any interest the husband might have in the residence. >

Shortly thereafter, Shearton moved to lift the stay of execution in this action. Wife opposed the motion and requested the court to remove the judgment lien from the property. The trial court concluded that, because the dissolution court had found that the real estate should be wife's separate property, it was not subject to execution to satisfy the judgment against husband. Accordingly, the trial court ordered the removal of the judgment lien from the property.

I.

Shearton contends the trial court erred in concluding that the property was not subject to its claims against husband. We agree.

Section 18-52-102, C.R.S.1999, provides that all real estate of a judgment debtor is subject to execution and sale to satisfy the judgment debt. When a transcript of the judgment is filed with a county clerk and recorder, the judgment becomes a lien upon all the real property of the judgment debtor in that county "owned by him or which he may afterward acquire until said lien expires." The statute further defines "real os-tate" as "all interests of the defendant ... held or claimed by virtue of any deed, bond, covenant, or otherwise for a conveyance...." Section 13-52-102(8), C.R.S.1999.

A judgment lien creditor has priority over a person who holds an unrecorded equitable interest in the property. Sky Harbor, Inc. v. Jenner, 164 Colo. 470, 435 P.2d 894 (1968); Nile Valley Federal Savings & Loan Ass'n v. Security Title Guarantee Corp., 813 P.2d 849 (Colo.App.1991).

Prior to the filing of a dissolution of marriage action, a spouse's rights in property held in the name of the other spouse are inchoate. Onee a dissolution proceeding is filed, a spouse may be entitled to a division of the other spouse's property, and such an interest vests at the time the dissolution proceeding is filed. In re Questions Submitted by United States District Court, 184 Colo. 1, 517 P.2d 1331 (1974).

However, the filing of a dissolution action does not give a debtor's spouse any rights that predate the attachment of a judgment lien creditor's rights. Thus, if a judgment lien ereditor perfects a lien on real property before a debtor's spouse asserts and perfects his or her claim to the property in a dissolution proceeding, then the weight of authority holds that the rights of the debtor's spouse to the property are subordinate to those of the judgment lien creditor. In re Tucker, 95 B.R. 796 (Bankr.D.Colo.1989). See In re Fisher, 67 B.R. 666 (Bankr.D.Colo.1986) (where wife had not recorded notice of lis pendens or a copy of property division decree entered in dissolution action, a judgment lien creditor seeking to execute on husband's property took title to husband's property free and clear of interests of ex-wife) In re Harms, 7 B.R. 398 (Bankr.D.Colo.1980) (the filing of a dissolution of marriage proceeding accords wife only an equitable interest in property titled in husband's name and mere equities are junior to judicial liens held by creditors of the legal title holder of property); Lezine v. Security Pacific Financial Services, Inc., 14 Cal.4th 56, 925 P.2d 1002, 58 Cal.Rptr.2d 76 (1996) (if a valid judgment lien attaches to husband's property before it is awarded to wife as her sole and separate property in a dissolution proceeding, wife receives property subject to the lien, and the property is liable for satisfaction of the lien).

Here, applying the above principles, we conclude that once wife's conveyance was completed and the deed was recorded, wife's claim to an interest in husband's part of the joint tenaney property constituted at most an inchoate equitable interest. Therefore, when the judgment lien attached to husband's record interest in the property, thereby rendering it subject to Shearton's claims, the judgment lien was senior to wife's claim to the portion of husband's record interest in the property.

Accordingly, the court erred in ordering removal of the judgment lien from the real property.

II.

We reject wife's contention that husband did not have a "reliable ownership interest" in the subject property because he failed to fulfill promises he made to wife prior to the conveyance and therefore was not a "bona fide purchaser." The fact that husband failed to perform his promises, even if true, does not mean that the deed is void ab initio. Hence, wife's reliance upon Upson v. Goodland State Bank & Trust Co., 823 P.2d 704 (Colo.1992), which addressed void transfers, is misplaced.

Nor do we agree with wife that the dissolution court declared the deed void. To the contrary, the court found that the conveyance was not attended by cireumstances of duress, threats, force, or intimidation. The court simply ruled that the property should be deemed "separate" for purposes of determining the parties' entitlement thereto in the dissolution action.

We also disagree with wife's contention that the dissolution court's determination that the real property was her "separate" property warrants a different conclusion. The dissolution court's determination did not render void, alter, or af-feet the quitclaim deed, nor did it affect the recorded ownership interest that husband had obtained before the commencement of the dissolution proceeding. Instead, the dissolution court found only that wife was entitled to the property as her separate property because she had owned it before the marriage and had paid the mortgage, taxes, and insurance upon it from her own funds during the marriage. However, the court's determination that the property was wife's separate property for purposes of the dissolution proceeding cannot defeat or affect an intervening judgment lien ereditor's perfected rights in the property.

IIL

We also reject wife's contention that Shearton's judgment lien on the property fails because Shearton had notice that the husband's title might be defective.

The race-notice recording statute, § 85-35-109, C.R.S.1999, provides that no unrecorded conveyance of land shall take effect as to anyone who, in good faith and without notice of a prior unrecorded deed or other instrument, acquires an interest in the same tract of land. This statute addresses the priority of ownership of real property between two or more bona fide purchasers, lienors, and/or competing judgment creditors.

Here, however, even if we assume the statute is applicable, nothing in the record indicates that husband's title was defective, or that Shearton's predecessor had notice of any claimed defect in title The fact that the deed was not recorded until seven years following its execution does not, in itself, create a defect.

Accordingly, we conclude the trial court erred in holding that husband's interest in the property was not subject to Shearton's claims and in removing the judgment lien and precluding execution against husband's interest.

The order is reversed, and the cause is remanded to the trial court with directions to reimpose the judgment lien as to husband's interest in the property and to lift the stay of execution.

Judge ROTHENBERG and Judge KAPELKE concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John M. PEAY, Defendant-Appellant.
    No. 98CA1718.
    Colorado Court of Appeals, Div. V.
    June 22, 2000.

      Ken Salazar, Attorney General, Dawn M. Weber, Assistant Attorney General, Denver, Colorado for Plaintiff-Appellee.
    David F. Vela, Colorado State Public Defender, Lisa Dixon, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge KAPELKE.

Defendant, John M. Peay, appeals from the judgment of conviction entered on a jury verdict finding him guilty of one count of criminal impersonation, a class six felony, and one count of harassment, a class three misdemeanor. We affirm in part and reverse in part.

The criminal charges against defendant grew out of a disturbance at a residence where he had previously lived.

A tenant of the residence called the police to report the disturbance and to request that defendant be required to leave because he was intoxicated and "no longer welcome." When they arrived, the police were told by the tenant that defendant was in the kitchen. The tenant referred to defendant as John Peay.

When the police asked to see his driver's license, defendant said he did not have it with him but it might be in his car. When asked his name, defendant identified himself as "John Shaffer," rather than as John Peay. He also gave the police a false birth date.

The police then ran a background check under both names. The check revealed that there was an outstanding arrest warrant for John Peay. When defendant was asked his name a second time, he again identified himself as John Shaffer. He eventually gave his correct birth date and told police that Shaffer was his father's name.

The police placed defendant under arrest, and, as he was being escorted from the residence, he spat in the tenant's face and threatened her.

According to a police officer, while defendant was in the patrol ear on the way to jail, he said that: "[Hle knew he had had a court date that he hadn't gone to." The arrest warrant, however, was not in fact related to defendant's failure to appear in court.

Defendant's driver's license, which was examined during a custodial search at the detention facility, identified him as John Peay, and evidence at trial revealed that to be his true name. The tenant did testify, however, that she had heard him use the name Shaffer on previous occasions when calling a cab.

Defendant was charged with one count of criminal impersonation pursuant to § 18-5-113(1)(e), C.R.S.1999, and one count of harassment pursuant to § 18-9-111(1)(a), C.R.8.1999.

Prior to trial, defendant filed a motion to have the court declare § 18-5-113(1)(e) unconstitutional, asserting that the statute violated his equal protection rights because it prohibits the same conduct as that proscribed by § 18-8-111(1)(d), C.R.S.1999, which defines the less serious crime of false reporting to authorities. The trial court denied the motion.

At the close of the prosecution's case-in-chief at trial, defendant moved for a judgment of acquittal, arguing that the prosecution had failed to prove beyond a reasonable doubt that defendant was guilty of criminal impersonation. The court denied the motion, and the convictions here at issue followed.

L.

Defendant first contends that the evidence was insufficient to support his conviction for criminal impersonation because the prosecution failed to prove that he committed "any other act with intent to unlawfully gain a benefit for himself," as required by the statute. We agree.

Initially, we reject the People's contention that defendant failed to preserve the issue of the sufficiency of the evidence as to the charge of criminal impersonation because he failed to raise it in his motion for aequit-tal. We are unaware of any authority supporting the People's contention. According ly, we will address the sufficiency issue.

Section 18-5-113(1)(e) provides, in pertinent part, that:

A person commits criminal impersonation if he knowingly assumes a false or fictitious identity or capacity, and in such identity or capacity he:
(e) Does any other act with intent to unlawfully gain a benefit for himself or another or to injure or defraud another. (emphasis added)

The People argue that they presented sufficient evidence of the commission of such an additional act by showing that defendant gave the police not only a false name, but also a false birth date. In response to that argument, defendant urges that providing a false birth date would simply be part and parcel of the false identification itself and would not constitute an "other act" done with intent to gain a benefit unlawfully. We find defendant's position persuasive.

In People v. Cole, 23 Cal.App.4th 1672, 28 Cal.Rptr.2d 788 (1994), the California Court of Appeal considered essentially the same issue and arguments presented here under a statute that also included as an element of the felony offense the commission of "any other act" beneficial to the defendant or another person.

In Cole, as here, the People argued that their evidence that defendant provided a false birth date sufficiently established the additional act required for the felony convietion.

In rejecting the People's argument, the court stated:

[Gliving a false birthdate and middle name was no more than part of the act of providing the false information upon which the false identity was based. Each statement made in the course of providing contempo-rancous statements amounting to false identification logically cannot be construed as separate acts compounding each prior statement.

People v. Cole, supra, 23 Cal.App. 4th at 1676, 28 Cal.Rptr.2d at 791.

We agree with the analysis of the Cole court and thus reject the People's assertion that proof of defendant's giving of a false birth date satisfied the "any other act" element of criminal impersonation under § 18-5-113(1)(e). Accordingly, we conclude that there was insufficient evidence to support defendant's conviction on the eriminal impersonation count.

In light of our holding, we need not address defendant's other challenges to his conviction of that offense.

IL

Defendant next contends that the evidence was insufficient to support his conviction for harassment. We disagree.

The applicable statute, 111(1)(a), C.R.$.1999, provides that: § 18-9-

(1) A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she:
(a) Strikes, shoves, kicks, or otherwise touches a person or subjects him to physical contact. (emphasis added)

As noted, while being escorted from the residence by the police, defendant spat in the tenant's face. Relying on dictionary definitions of "contact" that refer to the touching of some part of the body, defendant argues that his spitting in the tenant's face did not constitute a physical contact within the meaning of the statute. We are not persuaded.

We reject defendant's narrow construction of "physical contact." If we were to adopt defendant's interpretation, we would have to conclude that it would not constitute harassment if one were to strike another with a weapon or an object rather than with one's hands or some other part of the body. We see no basis for adopting such an interpretation.

Accordingly, we conclude that defendant's spitting on the tenant constituted "physical contact" within the meaning of the statute.

Courts of other jurisdictions have reached the same conclusion in interpreting the meaning of the term "physical contact." See State v. Keller, 40 Or.App. 143, 594 P.2d 1250 (1979) (spitting on another can constitute "offensive physical contact"); People v. Walker, 291 Ill.App.3d 597, 225 Ill.Dec. 633, 683 N.E.2d 1296 (1997) (throwing urine on another person amounts to "physical contact of an insulting or provoking nature").

IIL.

Finally, defendant contends that because the court failed to give him a proper and complete advisement, pursuant to People v. Curtis, 681 P.2d 504 (Colo.1984), he did not knowingly, intelligently, and voluntarily waive his right to testify. We disagree.

At his trial, defendant was advised, in pertinent part, as follows:

The Court: Also if you get on the witness stand and testify, then the district attorney will be allowed to bring up any prior felony convictions that you might have for purposes of impeachment or as it might affect your eredibility only. The jury couldn't use it for any other purpose, but they would learn about them in that way. Do you understand?
Defendant: Yes, I do.

After consulting with his counsel, defendant elected not to testify. The trial court found that defendant had "knowingly, voluntarily, and intelligently given up [his] right to testify."

A proper trial court advisement regarding the right to testify must inform defendant that: 1) the right to testify exists; 2) the right to testify is a personal right; 8) the defendant will be subject to cross-examination; 4) felony convictions may be disclosed; and 5) the convictions may be used to impeach credibility. People v. Blehm, 983 P.2d 779 (Colo.1999). Here, the trial court's advisement included all five elements and was thus proper.

In Blehm, as here, the trial court did not advise defendant that the jury would receive an instruction that evidence of prior felony convictions could be considered only for purposes of credibility impeachment. Nevertheless, the supreme court concluded that, while it is a desirable practice to do so, a trial court need not inform defendant "of the process by which the fact-finder may learn of this limited use of the convictions...." People v. Blehm, supra, 983 P.2d at 794. Blehm is dispositive.

Accordingly, the trial court did not err in determining there was a valid waiver by defendant of his right to testify.

The judgment of conviction for eriminal impersonation is reversed, and the judgment of conviction for harassment is affirmed.

Judge ROTHENBERG and Judge CASE-BOLT concur.


author: Judge ROTHENBERG.

text:
    Shirley E. POLK, Plaintiff-Appellant, v. HERGERT LAND & CATTLE COMPANY, Donald Hergert, Dolores Hergert, and Alan Hergert, Defendants-Appellees.
    No. 99CA1298.
    Colorado Court of Appeals, Div. IV.
    June 22, 2000.

      Black, Allely, Ryon & Maus, LLP, Daniel S. Maus, Craig M.J. Allely, Denver, Colorado, for Plaintiff-Appellant.
    Clangahan, Tanner, Downing & Knowlton, David M. Rich, Chad M. McShane, Denver, Colorado, for Defendant-Appellee Hergert Land & Cattle Company.
    Kenneth S. Copple & Associates, P.C., Kenneth S. Copple, Fort Collins, Colorado, for Defendants-Appellees Donald Hergert, Dolores Hergert and Alan Hergert.
   Opinion by

Judge ROTHENBERG.

Plaintiff, Shirley E. Polk, appeals a summary judgment in favor of defendants, Her-gert Land & Cattle Co. (Hergert Land), Donald Hergert, Dolores Hergert, and Alan Hergert (Hergerts), determining that the statute of limitations had run on Polk's claim seeking judicial dissolution of Hergert Land under § 7-114-301(2)(b), C.R.S.1999. We reverse and remand for further proceedings.

I.

Hergert Land is a closely held family corporation engaged in the business of agriculture. The Hergerts are the majority shareholders, directors, and officers of Hergert Land, and work the farm.

Donald and Dolores Hergert are married, and Alan Hergert is their son. Polk is Donald's sister, and a minority shareholder of Hergert Land. Polk and her brother Richard Hergert, another minority shareholder, filed this action on February 10, 1998, alleging that the Hergerts are engaging in illegal, oppressive, or fraudulent conduct and requesting that Hergert Land be dissolved.

After deposing Polk, the Hergerts moved for summary judgment, asserting that all of the alleged misconduct occurred before the three-year statute of limitations began to run on February 10, 1995. Polk responded with an affidavit filed by Richard Hergert, also a director of Hergert Land.

In the affidavit, Richard Hergert alleged several acts of misconduct within the limitations period including: (1) conflicts of interest and self-dealing related to the Hergerts' personal businesses; (2) intentional diminution of corporate assets after the filing of the lawsuit; and (8) an illegal $14,000 bonus paid to Donald Hergert.

The Hergerts responded with an affidavit by Donald Hergert, which refuted Richard Hergert's allegations. According to the Her-gerts, many of the actions complained of were business decisions protected by the business judgment rule.

The trial court granted the Hergerts' motion for summary judgment, concluding that the language of § 7-114-301(2)(b) did not exempt judicial dissolution actions from the statute of limitations, and further concluding that all of the actions complained of within the limitations period were "decisions made within the discretion of the corporation's shareholders and directors," and :could not be characterized as illegal, oppressive, or fraudulent.

Only Polk appeals the trial court's judgment.

IL

. Polk contends that there are disputed issues of material fact concerning whether the Hergerts acted in an illegal, oppressive, or fraudulent manner within the period of the statute of limitations and, therefore, that the trial court erred in granting summary judgment. We agree.

A. Standard of Review

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 novo. Westerman v. Rogers, 1 P.3d 228 (1999)(1999 WL 569302).

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.

B. Judicial Dissolution

A corporation may be judicially dissolved in a proceeding brought by a shareholder if it is established that: "The directors or those in control of the corporation have acted, are acting, or will act in a manner that is illegal, oppressive, or fraudulent." Section 7-114-301(2)(b).

Neither the General Assembly nor the Colorado appellate courts has defined the term "oppressive" for the purposes of § 7-114-801(2)(b). We therefore look for guidance to other jurisdictions that have construed similar statutes allowing for judicial dissolution on the grounds of oppressive conduct.

The definition of oppressive conduct generally employed for the purpose of such a statute is:

[BJurdensome, harsh and wrongful conduct; a lack of probity and fair dealing in the affairs of the company to the prejudice of some of its members; or a ... departure from the standards of fair dealing, and a violation of fair play on which every shareholder who entrusts his money to a company is entitled to rely.

Jorgensen v. Water Works, Inc., 218 Wis.2d 761, 783, 582 N.W.2d 98, 107 (Wis.App.1998)(gathering cases).

This definition includes consideration of the reasonable expectations of minority shareholders. Jorgensen v. Water Works, Inc., supra. See In re Kemp & Beatley, Inc., 64 N.Y.2d 63, 73, 473 N.E.2d 1173, 1179, 484 N.Y.S.2d 799, 805 (1984) ("Oppression should be deemed to arise only when the majority conduct substantially defeats expectations that, objectively viewed, were both reasonable under the cireumstances and were central to the [plaintiffs] decision to join the venture.").

The definition of oppressive conduct is intended to be broad and flexible In the context of a close corporation, oppressive conduct of those in control is closely related to breach of the fiduciary duty owed to minority shareholders. Jorgensen v. Water Works, Inc., supra.

C. Fiduciary Duty

The officers, directors, and controlling shareholders of a corporation have a fiduciary duty to act in good faith and in a manner they reasonably believe to be in the best interests of the corporation and all of its shareholders. Michaelson v. Michaelson, 939 P.2d 835 (Colo.1997).

The business judgment rule acts to protect from liability directors of a corporation acting in good faith. Wolf v. Rose Hill Cemetery Ass'n, 914 P.2d 468 (Colo.App.1995). Nevertheless, even if a director is acting in good faith, the use of corporate funds for a director's personal benefit without repayment to the corporation constitutes a breach of fiduciary duty. It is not a legitimate corporate activity to give away corporate resources or divert funds from the corporation to officers and directors without lawful reason. Rifkin v. Steele Platt, 824 P.2d 32 (Colo.App.1991).

Whether a party acted in good faith is a question of fact which must be determined on a case by case basis. Amoco Oil Co. v. Ervin, 908 P.2d 493 (Colo.1995).

D. Statute of Limitations

An action for breach of fiduciary duty between directors and shareholders is subject to the three-year statute of limitations set out in § 13-80-101(1)(f), C.R.S.1999. Michaelson v. Michaelson, 923 P.2d 237 (Colo.App.1995), rev'd on other grounds, 939 P.2d 835 (Colo.1997). The statute begins to run when the plaintiffs cause of action accrues. Section 183-80-101(1), C.R.S.1999.

A cause of action accrues when the injury, loss, damage, or conduct giving rise to the cause of action is discovered or should have been discovered by the exercise of reasonable diligence. Section 13-80-108(8), C.R.S.1999.

Because Polk filed this action on February 10, 1998, only claims based upon actions by the Hergerts that took place within the three-year period between February 10, 1995, and February 10, 1998, or later, fall within the applicable statute of limitations. We agree with the trial court that all of Polk's claims that were based on actions which took 'place before February 10, 1995, were time barred. "

Polk was a director of Hergert Land until 1991, and she admitted at her deposition that she regularly received information about Hergert Land. Thus, the trial court properly concluded that she either knew about the allegedly improper actions of the Hergerts, or through the exercise of reasonable dili-genee, should have discovered such actions before the expiration of the limitations period. See § 13-80-108(8).

Contrary to Polk's contention, the "continuing violation" doctrine is inapplicable to these time-barred acts. Under that doctrine, if a defendant has engaged in a series of unlawful acts over an extended period, a plaintiff may be allowed to obtain relief for a time-barred act by linking it with an act that occurs within the limitations period. However, the continuing violation doctrine has been limited to discrimination cases. See Harmon v. Fred S. James & Co., 899 P.2d 258 (Colo.App.1994).

We reach a different conclusion as to Polk's allegations that the Hergerts (1) were using corporate assets, including houses and feed lots, for personal use without compensating the corporation; (2) owned businesses which competed with the corporation, and contracted work for Hergert Land to their personal businesses; (3) were intentionally diminishing corporate assets; and (4) illegally distributed corporate profits as a $14,000 bonus to Donald, rather than as dividends.

All of these acts were alleged to have occurred within the period of the statute of limitations, and if true, these allegations would constitute a breach of the Hergerts' fiduciary duty to Polk and Hergert Land. See Rifkin v. Steele Platt, supra (it is a breach of fiduciary duty to use corporate assets for one's personal benefit without repayment to the corporation, or to divert funds to officers and directors without lawful reason).

A breach of the Hergerts' fiduciary duty to Polk would be evidence of oppressive conduct that could justify the judicial dissolution of Hergert Land. See Jorgensen v. Water Works, Inc., supra. But see Bahls, Judicial Approaches to Resolving Dissension Among Owners of the Family Farm, 73 Neb. L.Rev. 14 (1994) (because of the unique attributes of the family farm and the public policy favoring continuation of family farms, courts have often hesitated to dissolve them, especially farms operated as corporations; the better remedy is a foreed buyout of the minority shareholder's interest in the farm, paid by installment if necessary).

The Hergerts deny that they have diminished or continue intentionally to diminish the corporation's assets. They maintain that none of the other actions complained of harmed Hergert Land, that such actions were taken for the good of the corporation, and that they contracted Hergert Land's business to their private enterprises because the arrangement was mutually beneficial and cheaper than contracting the business to third parties. The Hergerts further deny that their businesses compete with Hergert Land, and claim that the bonus and homes were legitimate compensation.

These assertions, however, only emphasize that there are disputed issues of material fact concerning actions within the limitations period, and that summary judgment is inappropriate. See Van Alstyne v. Housing Authority, supra (all doubts whether a triable issue of fact exists must be resolved against the moving party).

Nor does application of the business judgment rule justify summary judgment. That rule applies only to actions taken in good faith, see Wolf v. Rose Hill Cemetery Ass'n, supra, and the Hergerts' good faith is a disputed issue of fact. Whether their actions were protected by the business judgment rule cannot be resolved on summary judgment.

We therefore conclude that there are disputed issues of material fact regarding actions within the limitations period, and that the trial court erred in granting summary judgment.

In light of this conclusion, we need not consider Polk's remaining contention.

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.


author: WINCHESTER, J. BOUDREAU, J.,

text:
    2000 OK 32
    Fred E. NORTON, D.D.S., Plaintiff-Appellant v. Carl HUGHES, Leo Winters, II, and Hughes & Grant, Defendants-Appellees
    No. 92,357.
    Supreme Court of Oklahoma.
    April 18, 2000.

      Kyle Wayne Goodwin, Hughes, Artus & Goodwin, Oklahoma City, Oklahoma, For Defendants/Appellees Carl Hughes and Hughes & Grant.
    Robert Jackson, Jackson, Hall & Associates, Oklahoma City, Oklahoma, For Defendant/Appellee Leo Winters, II.
    Jon W. MeLanahan, Oklahoma City, Oklahoma, For Plaintif{/Appellant Fred E. Norton, D.D.S.
   WINCHESTER, J.

T1 This matter concerns the legal mail-practice action brought by plaintiff/appellant Fred E. Norton, D.D.S., (Norton) against defendants/appellees Carl Hughes, Leo Winters, II, and Hughes & Grant (attorneys) and defendants Joe E. White, Jr., Allan Mitchell, and Kyle Goodwin. This litigation had its roots in an action filed by attorneys on behalf of Norton against third parties, to recover damages for fraud, breach of contract, breach of warranties, and violations of the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA) codified at V.T.C.A., Bus. & C. § 17.41 et. seq. Norton voluntarily dismissed defendants Joe E. White, Allan Mitchell, and Kyle Goodwin and proceeded against defendants/appellees before the trial court.

FACTS AND PROCEDURAL HISTORY

« 2 Norton hired attorneys to file an action against the operator of an exotic animal ranch in Texas, Charles Kuhn (Kuhn), arising out of the purchase of three pairs of emus in November 1992, for the approximate purchase price of $82,500.00. Pursuant to the contract, Kuhn agreed to deliver certain emus proven to be compatible, successful breeding pairs to Norton. The emus were identified by micro chips embedded in their bodies. After a disappointing breeding season, Norton verified through his veterinarian that the emus Kuhn delivered to him may have been different from the ones Kuhn agreed to sell him.

1 3 In the spring of 1994, Norton contacted attorneys, specifically Leo Winters, II, to file a lawsuit against Kuhn. Norton signed a generic, standard employment contract on May 19, 1994, wherein Carl Hughes and Leo Winters, II, of the law firm Hughes, White, Adams & Grant, agreed to represent him in a lawsuit arising out of the purchase of the three emu breeding pairs. In May 1994, Hughes and Winters in fact filed a lawsuit against Kuhn in the United States District Court of the Western District of Oklahoma, Case No. CIV-94-812. By written correspondence dated June 2, 1994, Mr. Winters notified Norton that Kuhn might contest in personam jurisdiction or service of process in his responsive pleading. The original complaint subsequently was amended on December 16, 1994, to include additional parties, to-wit: Alton Goodrich, deceased (Kuhn's partner in the exotic animal ranch who died in October 1998), the Estate of Alton C. Goodrich and the Goodrich Living Trust a/k/a Alton C. Goodrich Living Trust. The amended complaint alleged causes of action for fraud, breach of contract, breach of warranties and violations of the DTPA. The federal trial court dismissed the action for lack of in personam jurisdiction over the Texas defendants in June 1995.

T4 After the dismissal, Norton apparently decided to pursue his claims against the Texas defendants in the state of Texas. Attorneys advised Norton they could not file an action in Texas, because they were not licensed to practice law in that state. Attorneys contacted numerous Texas attorneys, all of whom declined to represent Norton. In December 1995, Mr. Allan Mitchell of Hughes & Grant contacted a Dallas attorney, Robert R. Roby, regarding Norton's lawsuit. Norton traveled to Dallas, Texas, to meet with Mr. Roby on February 8, 1996. On May 9, 1996, by written correspondence to Norton, Mr. Roby declined to pursue Norton's claims against Kuhn. Written correspondence of September 20, 1996, and October 11, 1996, confirms additional attempts by the law firm of Hughes & Grant to locate a Texas attorney willing to file the lawsuit for Norton.

¶5 In May 1997, Norton filed an action in Oklahoma County District Court against attorneys wherein he alleged professional negligence. Norton contended attorneys breached their duty to provide the minimum standard of care in their legal representation. He alleged attorneys filed his lawsuit in the wrong venue and allowed the applicable statute of limitations to expire. In short, Norton contended attorneys' failure to file his lawsuit in Texas against Kuhn and the other Texas defendants constituted legal malpractice. Defendants/appellants Hughes, Hughes & Grant and Winters all moved for summary judgment. The trial court sustained their motions for summary judgment, finding attorneys had no duty to file a lawsuit in a foreign jurisdiction in which they were not licensed to practice law.

16 In an unpublished opinion, the Court of Civil Appeals, Division I, reversed the trial court's grant of summary judgment and remanded the cause, finding disputed issues of material facts. Upon de novo review, we find summary judgment for attorneys was indeed appropriate, and additionally hold an Oklahoma attorney has no duty to file a lawsuit in a foreign jurisdiction in which the attorney is not licensed to practice law. The other issues before the trial court on attorneys' motion for summary judgment, addressed by the appellate court pursuant to Norton's appeal, are not raised in the petition for certiorari and therefore are not dealt with herein. See Rule 1.180(b), Supreme Court Rules.

REVIEW OF SUMMARY PROCEEDINGS

17 Summary judgment is appropriate where it appears there is no substantial controversy as to any material fact and one party is entitled to judgment as a matter of law. Daugherty v. Farmers Coop. Ass'n, 1984 OK 72, ¶ 5, 689 P.2d 947, 949; Crockett v. McKenzie, 1994 OK 3, ¶ 3, 867 P.2d 463, 464. "[The inquiry on appeal concerning the propriety of the entry of summary judgment is limited to potential controversies concerning any issue raised by the pleadings." Wabaunsee v. Harris, 1980 OK 52, ¶ 9, 610 P.2d 782, 785. Our ruling must be made on the record that the parties actually presented and not on a record that is potentially possi ble. Weeks v. Wedgewood Village, Inc., 1976 OK 72, ¶ 12, 554 P.2d 780, 784. An order that grants summary relief disposes of legal issues. Therefore, on appeal, the review we conduct is de movo. Brown v. Nicholson, 1997 OK 32, ¶ 5 n. 1, 935 P.2d 319, 321 n. 1; Manley v. Brown, 1999 OK 79, ¶ 22, n. 30, 989 P.2d 448, 456 n. 30. "An appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court's legal rulings." Manley, 1999 OK 79, ¶ 22, n. 30, 989 P.2d at 456, n. 30.

DUTY OF AN OKLAHOMA ATTORNEY TO FILE A CAUSE OF ACTION IN A FOREIGN JURISDICTION IN WHICH THE ATTORNEY IS NOT LICENSED TO PRACTICE LAW

T8 The sole issue we address on certiorari is whether an Oklahoma attorney has a duty to file a cause of action in a foreign jurisdiction in which that attorney is not licensed to practice law. The issue is one of first impression in the state of Oklahoma, although we note that other jurisdictions have visited this issue and through recent holdings have placed it within the public's serutiny.

T9 In the instant matter, Norton bases his claim for legal malpractice on the premise attorneys owed him a duty to file his lawsuit in Texas, and when attorneys failed to do so, they breached that duty. In addition, Norton contends attorneys allowed the statute of limitations to run on the DTPA claim, by their failure to file his lawsuit in Texas. We note that Norton's malpractice claim against attorneys is status based, as opposed to contractual.

110 The elements of a legal malpractice claim are well established in the state of Oklahoma.

| "The plaintiff in a legal negligence action must prove (1) the existence of an attorney-client relationship; (2) breach of a lawyer's duty to the client, (8) facts constituting the alleged negligence, (4) a causal nexus between the lawyer's negligence and the resulting injury (or damage) and (5) but for the lawyer's conduct, the client would have succeeded in the action." Manley v. Brown, 1999 OK 79, ¶ 8, 989 P.2d 448, 452.

111 The sovereign state of Texas has not conferred upon Oklahoma attorneys the right to practice law within its borders. In its use in jurisprudence, duty may be recognized as the correlative of right. In the instant case, since no right exists, no corresponding duty may be imposed. In the absence of a duty, no claim can be made.

"Prosser, Torts (8 ed.) § 58, states that a duty in negligence cases may be defined as an 'obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another' Actionable negligence is a failure to discharge a legal duty to the one injured. Lacking duty, there can be no negligence." Rasmussen v. Prudential Ins. Co., 277 Minn. 266, 268-269, 152 N.W.2d 359, 362 (1967).

112 Attorneys' duty, in this case, was to see that the ascertainable rights of Norton were protected as fully as possible under the prevailing circumstances within the bounds of common sense and proper professional practices. Birchfield v. Harrod, 1982 OK CIV APP 2, ¶ 32, 640 P.2d 1003, 1009. When attorneys filed the complaint and amended complaint in federal court, Case No. CIV-94-812, they fulfilled their duty to Norton. Norton does not contest the fact attorneys filed a lawsuit in the jurisdiction in which they were licensed to practice law. To file the case in the state of Texas when attorneys were not licensed by the State Bar of Texas would offend common sense and proper professional practices. Public policy interests prohibit this Court from requiring attorneys to perform an illegal act, such as the unauthorized practice of law.

118 An attorney from a foreign jurisdiction who attempts to practice law in the state of Oklahoma is subject to disciplinary proceedings for the unauthorized practice of law, that partake of elements of both civil and criminal proceedings. In re Evinger, 1979 OK 127, ¶ 4, 604 P.2d 844, 844. The unauthorized practice of law violates the rules of professional conduct, thereby exposing the attorney to disciplinary sanctions. The Rules of Professional Conduct governing attorneys and the state bar, found in 5 0.8. Ch. 1, App. 3-A, address the unauthorized practice of law in Rule 5.5 that provides, in pertinent part:

"A lawyer shall not:
(a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction;"
[Adopted effective July 1, 1988.]

T 14 The former disciplinary rule regarding Rule 5.5(a), to-wit: DR-8-101(B) of the Code of Professional Responsibility provides that "a lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction." It is important to note that the state of Texas adopts a similar Code, along with Rule 5.5(a) and DR-3-101(B). See Rule 5.05 of the Texas Disciplinary Rules of Professional Conduct. In the state of Texas, an attorney may be disciplined for an act such as the unauthorized practice of law.

115 The conduct permissible for attorneys in the state of Oklahoma, as well as in the state of Texas, does not include the unauthorized practice of law. That is to say, an attorney who is not licensed to practice law in the state may not do so, absent special cireumstances such as pro hac vice admission-a privilege, not a right, that is subject to the sound judicial discretion of the state trial court. Smith v. Brock, 1975 OK 27, ¶¶ 20-21, 532 P.2d 843, 848. Therein, we held that the admission of an out-of-state lawyer pro hac vice, under the rules that govern the practice of law in Oklahoma, rests within sound judicial discretion.

116 This Court has the inherent power to control the practice of law in Oklahoma. Smith v. Brock, 1975 OK 27, ¶ 15, 532 P.2d 843, 847. Similarly, the state of Texas views regulation of the practice of law as a judicial function. See Unauthorized Practice Comm. v. Cortez, 692 SW.2d 47, 50 (Tex.1985), cert. denied, 474 U.S. 980, 106 S.Ct. 384, 88 L.Ed.2d 337 (1985), wherein the Texas Supreme Court stated, "[ojur holding presumes we have concluded that when the activities alleged to be the practice of law are disputed, it is for the court to decide whether those activities amount to practicing law.... " See also, Green v. Unauthorized Practice of Law Comm., 883 S.W.2d 293, 297 (Tex.Civ.App.-Dallas 1994, no writ).

{17 The record clearly establishes that attorneys made reasonable efforts to help Norton find a Texas attorney. And indeed, the value of a local attorney cannot be. underestimated-it is a public policy issue that supports the current unauthorized practice of law statutes and pro hac vice requirements in both Oklahoma and Texas. "The importance of knowledge of the local situation is fully demonstrated by the well recognized practice among the lawyers of this State in associating local counsel in the trial of most important jury cases." Cook et ux. v. Irion et al., 409 S.W.2d 475, 477 (Tex.Civ.App.-San Antonio 1966). Knowledge of the local situation is, in many cases, imperative. Norton's case against Kuhn is no exception. See correspondence dated September 6, 1996, from attorney Jimmy L. Browning of the Breckenridge, Texas, law firm Browning & Wimber-ley, a law firm familiar with the local situation involving the potential Texas defendant Kuhn. In pertinent part, Mr. Browning states: '

"We have carefully reviewed the materials you sent to us to determine if we could effectively present Dr. Norton's case here in our District Court of Stephens County.
sooo sk
4. Both my partner and I both belong to the same church as Charles Kuhn. Charles and I are very active in the church.... Charles is very well known in the community and while [sic] does not have a good business reputation, he is local, and a lot of people who will be on a jury panel come into contact with him every week just as we do. They are not likely to want to make an enemy of him for the benefit of a mindless citizen of another State.
ome ok
However, there are two lawyers in town who do not have strong local ties and I suggest you might try them.... "

1 18 Attorneys clearly advised Norton they could not file the lawsuit in Texas because they were not licensed to practice law there. See correspondence of September 20, 1996; correspondence of October 11, 1996; affidavit of Carl Hughes dated March 24, 1998, wherein he states that in November, 1995, he explained to Norton's daughter and wife that he and his firm could not file the lawsuit in Texas. The onerous burden on attorneys to accept employment to represent Norton and determine to file the lawsuit in the state of Oklahoma, then suddenly to be confronted with the demands of time, expenses, and civil as well as eriminal liability attendant to unauthorized practice of law in the state of Texas, is not one this Court will impose.

T19 The sovereign state of Texas confers no right upon an Oklahoma attorney to file a lawsuit within its borders. Therefore, we hold no corresponding duty exists for an Oklahoma attorney to file a lawsuit in the state of Texas, or in any other foreign jurisdiction where the attorney is not licensed to practice law. To hold otherwise would subject the attorney to unauthorized practice of law statutes and professional discipline. We refuse to place the members of our state bar in such an untenable position. Norton's malpractice claim clearly is status based. Norton fails to present any fact or inference from facts that attorneys breached their duty to him. No substantial controversy as to any material fact exists, and attorneys are entitled to judgment as a matter of law.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; ORDER ,.OF THE TRIAL COURT SUSTAINED.

SUMMERS, C.J., OPALA, WATT, JJ., STRUBHAR, LILE, §.JJ.-CONCUR.

HARGRAVE, V.C.J., LAVENDER, BOUDREAU, JJ.-DISSENT.

BOUDREAU, J.,

dissenting:

1 1 I respectfully dissent from the majority opinion. Norton hired attorneys to represent him in an action against Kubn arising out of the purchase of 3 pairs of Emu birds. Norton and attorneys reduced their contract of employment to a writing. The first paragraph of the parties' contract consists of one sentence which identifies the parties and authorizes Counsel's "representation ... and other investigations ... as they deem necessary to properly effectuate such representation in regard to the matter of the investigation, preparation and trial of any and all claims against any and all persons, companies, and others arising out of the purchase of three (8) Emu breeding pairs from Charles Kuhn, a citizen of Texas." (Emphasis added.)

I. The Court of Civil Appeals correctly determined that the specific question of duty in this case should be resolved by reference to the contract of employment between Norton and the attorneys.

12 In its opinion, the Court of Civil Appeals correctly determined that the question of whether attorneys had a duty to file Norton's claims in a Texas court had to be resolved by reference to the contract of employment. In examining the contract of employment, the Court of Civil Appeals opinion concluded that the parties contract was ambiguous on this question. The opinion further found that the evidentiary materials submitted in connection with the summary judgment motion raised a mixed question of law and disputed fact that cannot be decided on summary judgment.

1 3 In reversing the Court of Civil Appeals, the majority opinion states that an Oklahoma attorney has no duty to file a lawsuit in the state of Texas or in any other foreign jurisdiction where the attorney is not licensed to practice. In determining that no such duty exists, the majority opinion makes virtually no reference to the contract of employment between Norton and the attorneys. Instead, the majority opinion simply declares, without any discussion whatsoever, that Norton's malpractice action is based on the status of his attorneys and not on the employment agreement with his attorneys.

14 I cannot agree. In the petition alleging his malpractice claim, Norton continually referred to the contract of employment with his lawyers and even attached it as an exhibit. It is quite clear that Norton based his malpractice claim on what he perceived as the failure of the attorneys to exercise ordinary skill and diligence in performing the tasks which they undertook in the employment agreement. I imagine that he will be quite surprised with the manner in which the majority opinion has transformed his malpractice claim from one where liability is based on the contract of employment to one where liability is based on the status of his attorneys.

15 While legal malpractice constitutes a tort, in reality, lability rests on the attorney's employment by the client. See, Funnell v. Jones, 1985 OK 73, 737 P.2d 105, 107. Before an attorney can be held liable, it must appear that the loss suffered by the client arose from the attorney's failure or neglect to discharge some duty which was fairly within the purview of his employment. See, Vanguard Production, Inc. v. Martin, 894 F.2d 375 (1990 10th Cir) (attorney owes common-law duty of ordinary care and workmanlike performance on underlying contract with client); State ex rel. OBA v. Green, 1997 OK 39, 936 P.2d 947, 956 (attorney has obligation to provide services for which he was hired). In my opinion, the Court of Civil Appeals correctly determined that the specific ques tion of duty in this case should be resolved by reference to the contract of employment between Norton and the attorneys.

II. Even within a malpractice claim that is so-called 'status based," the issue of duty should not be resolved in such a categorical fashion.

T6 The majority opinion reasons that public policy interests prohibit this Court from imposing a duty upon an attorney to file a lawsuit in a jurisdiction where the attorney is not licensed to practice. In the view of the majority, imposing such a duty would subject the attorney to discipline for the unauthorized practice of law. Rule 5.5, Rules of Professional Conduct, 5 0.8.1991, ch. 1, app. 3-A.

T7 I do not view Norton as seeking to impose a duty upon attorneys that would subject them to discipline for professional misconduct. As recognized by the majority decision, Texas (and every other state and federal court throughout the United States) has a procedure by which an attorney may seek temporary admission to practice law in a case by pro hac vice motion. Although admission is within the sound discretion of the court, it is rarely denied to an attorney who is licensed by and in good standing in another jurisdiction.

18 Because the majority opinion categorically refuses, upon public policy grounds, to impose a duty on an Oklahoma attorney to file a lawsuit in a state where the attorney is not licensed to practice law, a question remains as to whether those same public policy grounds prevent an attorney from contractually assuming such'a duty. May an Oklahoma attorney agree to file a personal injury case on behalf of his client if he is not licensed to practice in Kansas? Based on the majority opinion, I can only conclude that he cannot without engaging in the unauthorized practice of law.

T9 In today's modern technological society, the legal profession is increasingly engaged in national and even global controversies. Lawyers routinely represent clients in cases that require appearances in state or federal courts throughout the United States. Lawyers today are often unable to forecast the jurisdictions in which their clients will need representation. Frequently they are not active members of the bar in jurisdictions in which they are called to represent their clients. In my opinion, the holding in the majority opinion flies in the face of modern practice of law.

IH. Summary

110 In summary, I1 cannot accept the notion that a lawyer has no duty under any cireumstances to file a case in a jurisdiction where the lawyer is not licensed to practice law simply because he is not a member of the bar. The issue of duty should be resolved by reference to the attorney-client relationship as defined by the employment agreement and not by reference to the bar membership of the attorney.