author: Judge ROY.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Sharon Lee GARDNER, Defendant-Appellant.
    No. 01CA0282.
    Colorado Court of Appeals, Div. III.
    April 11, 2002.

      Ken Salazar, Attorney General, Cynthia A. Greenfield, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge ROY.

Defendant, Sharon Lee Gardner, appeals the trial court order denying her Crim. P. 85 motion for postconviction relief, We affirm.

Defendant was convicted after a jury trial of retaliation against a witness, a class three felony, and third degree assault, a class one misdemeanor. Because defendant was on probation for felony income tax evasion at the time of these offenses, the trial court was required to sentence her to a term of at least the midpoint in the presumptive range for the class three felony under § 18-1-105(9)(a)(III), C.R.8.2001. The presumptive range for a class three felony is between four and sixteen years in the Department of Corrections (DOC) under § 18-1-105(1)(a)(IV), C.R.S.2001, with a midpoint of ten years. Defendant therefore was sentenced to ten years in DOC, the mandatory minimum for her offense under the relevant sentencing statutes.

A division of this court affirmed defendant's convictions on direct appeal. People v. Gardner, 919 P.2d 850 (Colo.App.1995). The mandate issued on July 24, 1996.

On January 2, 2001, defendant filed a pro se motion in the trial court to correct her allegedly illegal aggravated sentence. In this motion, defendant argued that the recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), required that her sentence be set aside because the jury did not determine beyond a reasonable doubt that she was on probation when these offenses were committed.

In the trial court, defendant relied on Crim. P. 85(a), arguing that the trial court could correct an illegal sentence at any time. She also relied on Crim. P. 85(c), alleging that justifiable excuse or excusable neglect existed for the late filing of her motion because Apprendi constituted a "recent change in a pertinent legal standard."

The trial court denied the motion, concluding that Apprendi was inapplicable. This appeal followed.

I.

As a preliminary matter, we note that defendant cited both Crim. P. 85(a) and (c) in her motion to the trial court. On appeal, the People argue that defendant's claims under Crim. P. 35(c) are time-barred by § 16-5-402, C.R.9.2001. We may consider this argument. See § 16-5-402(1.5), C.R.S.2001 (appellate court may deny relief on a Crim. P. 35(c) motion if it can determine from the record that a collateral attack is untimely).

Defendant's motion is cognizable under Crim. P. 35(c) and therefore is subject to the limitations of § 16-5-402. See People v. Green, 36 P.3d 125 (Colo.App.2001)(challenge to manner in which guilty plea was taken determined to be a constitutional challenge properly brought under Crim. P. 85(c)); see also Crim. P. 35(c)(2)(D) (allowing postconviction relief if sentence was imposed "in violation of the Constitution or laws of the United States or the constitution or laws of this state").

The timeliness issue was not presented in the trial court, but § 16-5-402(1.5), C.R.9S.2001, gives us discretion to deny relief on appeal on that ground nonetheless. However, because defendant's motion is premised on recent authority of constitutional magnitude and because the statute gives us discretion, we choose to address defendant's motion on its merits. See People v. Kilgore, 992 P.2d 661 (Colo.App.1999)(electing to address merits of Crim. P. 35(c) motion despite its untimeliness); see also People v. Chambers, 900 P.2d 1249 (Colo.App.1994).

IL

Defendant contends that § 18-1-105(9)(a){II1) is unconstitutional as applied to her because it denies her due process of law pursuant to the rationale of Apprendi v. New Jersey, supra. She specifically argues that the allegation that she was on probation at the time of the offenses here should have been submitted to the jury. We disagree.

Section 18-1-105(9)(a), as pertinent here, provides:

The presence of any one or more of the following extraordinary aggravating circumstances shall require the court, if it sentences the defendant to incarceration, to sentence the defendant to a term of at least the midpoint in the presumptive range but not more than twice the maximum term authorized in the presumptive range for the punishment of a felony:
(III) The defendant was on probation ... for another felony at the time of the commission of the felony....

This statute increases both the minimum and maximum sentences in the presumptive range and makes a sentence of at least the increased minimum sentence mandatory.

Here, the presentence report indicated that defendant was not a candidate for DOC and recommended probation. However, defendant was not eligible for probation because she was subject to a pending charge in another case then scheduled for trial and because she had one previous felony convietion and the present offense is a class three felony. See § 16-11-201(2), C.R.8.2001. It is clear that the trial court sentenced defendant to the minimum required by the statute without any consideration of a greater sentence. It is also clear that defendant's probationary status at the time of the offenses dictated that, at a minimum, she receive the ten-year sentence ultimately imposed.

Defendant's ten-year sentence fell within the original presumptive range, between four and sixteen years in the DOC, as provided by § 18-1-105(1)(a)(IV), and that sentence could have been imposed even if § 18-1-105(9)(a)(III) were not applicable. See People v. Allen, 43 P.3d 689 (Colo.App.2001).

Therefore, the issue here is limited to whether Apprendi applies to the portion of § 18-1-105(9)(a)(III) that increases the minimum sentence to a point within the original presumptive range. We need not address here the portion of the statute that increases the maximum sentence beyond the presumptive range.

In Apprendi the Supreme Court determined that any fact, other than the fact of a prior conviction, that increases the maximum penalty for a crime beyond the prescribed statutory maximum for that erime must be submitted to the jury and proved beyond a reasonable doubt. Apprendi v. New Jersey, supra, 580 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455; see also People v. Martinez, 32 P.3d 520, 530 (Colo.App.2001)(defendant must be given notice of any fact, other than the fact of a prior conviction, that may increase the maximum penalty, and jury must determine whether such fact was proved beyond a reasonable doubt).

The Supreme Court determined in Ap-prendi that a New Jersey statute that allowed an increase in a sentence based upon a judge's determination by a preponderance of the evidence that the offense constituted a hate crime violated the petitioner's right to due process and a trial by jury. The Court stated:

If a defendant faces punishment beyond that provided by statute when an offense is committed under certain cireumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should not-at the moment the State is put to proof of those cireumstances-be deprived of protections that have, until that point, unquestionably attached.

Apprendi v. New Jersey, supra, 530 U.S. at 484, 120 S.Ct. at 2359, 147 LEd.2d at 451. The Court also stated that, with the exception of prior convictions, "(ilt is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed." Apprendi v. New Jersey, supra, 530 U.S. at 490, 120 S.Ct. at 2363, 147 L.Ed.2d at 455 (quoting Jones v. United States, 526 U.S. 227, 252, 119 S.Ct. 1215, 1228, 143 LEd.2d 311, 332 (1999)(Ste-vens, J., concurring)).

Post-Apprendi courts have reached differing conclusions as to whether a judge-determined fact that mandates an increased minimum sentence is unconstitutional. Some courts have held that the aggravating fact must be proved beyond a reasonable doubt to the jury when the only impact of the aggra-vator is to increase the minimum sentence. See, e.g., United States v. Ramirez, 242 F.3d 348, 351-52 (6th Cir.2001)(holding that, in light of Apprendi, "[alggravating factors ... that increase the penalty from a nonmanda-tory minimum sentence to a mandatory minimum sentence, or from a lesser to a greater minimum sentence, are now elements of the crime to be charged and proved"); United States v. Guevara, 277 F.3d 111 (2d Cir.2001)(applying Apprendi where fact found by judge resulted in mandatory minimum that exceeded top of the sentencing guideline range).

In State v. Johnson, 166 N.J. 523, 766 A.2d 1126 (2001), the New Jersey Supreme Court adopted the reasoning of Justice Thomas' concurrence in Apprendi. There, Justice Thomas indicated that he would apply the principles of Apprendi to every aggravating circumstance:

[A] "erime" includes every fact that is by law a basis for imposing or increasing punishment (in contrast with a fact that mitigates punishment). Thus, if the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact-of whatever sort, including the fact of a prior conviction-the core crime and the aggravating fact together constitute an aggravated crime .... The aggravating fact is an element of the aggravated crime .... One need only look to the kind, degree, or range of punishment to which the prosecution is by law entitled for a given set of facts. Each fact necessary for that entitlement is an element.

Apprendi v. New Jersey, supra, 530 U.S. at 501, 120 S.Ct. at 2368-69, 147 LEd.2d at 461-62 (Thomas, J., concurring).

Other courts have reached the opposite conclusion, holding that Apprendi does not apply to mandatory minimum sentences. See, e.g., United States v. Rodgers, 245 F.3d 961 (7th Cir.2001) (cert.pending); United States v. Harris, 243 F.3d 806 (4th Cir.2001), cert. granted - U.S. -, 122 S.Ct. 663, 151 L.Ed.2d 578 (2001); United States v. Robinson, 241 F.3d 115 (Ist Cir.2001) cert. denied, - U.S. -, 122 S.Ct. 130, 151 L.Ed.2d 84 (2001); United States v. Garcia-Sanchez, 238 F.3d 1200 (9th Cir.2001); United States v. Keith, 230 F.3d 784 (5th Cir.2000); United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir.2000), cert. denied, 531 U.S. 1026, 121 S.Ct. 600, 148 LEd.2d 513 (2000).

These latter cases, for the most part, rely on McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 LEd.2d 67 (1986). In McMillan, a divided Supreme Court rejected a due process challenge to a Pennsylvania statute that imposed a mandatory minimum sentence upon the sentencing judge's finding by a preponderance of the evidence that the defendant "visibly possessed a firearm" in committing an offense.

The Apprendi majority, while not overruling McMillan, limited it to cases not involy-ing a sentence more severe than the statutory maximum for the offense of conviction. The Court reserved the question of whether stare decisis considerations precluded reconsideration of this narrower holding. See Apprendi v. New Jersey, supra, 530 U.S. at 487 n. 13, 120 S.Ct. at 2361, 147 L.Ed.2d at 453.

The Supreme Court has agreed to review United States v. Harris, supra, and the decision to review is pending in United States v. Rodgers, supra. In both cases the circuit courts relied on McMillan. Thus, the continued viability of McMillan may be resolved in one or both of these cases.

However, under Colorado jurisprudence, divisions of this court have relied on the continued, albeit limited, validity of McMillan, post-Apprendi. Thus, in People v. Clifton, -- P.3d -- (Colo.App. No. 00CA0977, Dec. 20, 2001), a division of this court, relying in part on McMillan, held that Apprendi applies only when the statute mandates an increase in the maximum sentence and is not implicated in mandatory consecutive sentences for crimes of violence, each sentence being within the initial presumptive range for the offense. Further, in People v. Allen, supra, a division of this court held that Ap-prendi was not implicated by Colorado's sentencing scheme, which permits discretionary sentencing in an aggravated range based on unenumerated extraordinary aggravating circumstances, reasoning that a defendant was subject to such discretionary enbanced sentencing upon conviction of the offense charged.

Therefore, we conclude that § 18-1-105(9)(a)(III) is not unconstitutional as applied here and that the trial court did not err in denying defendant's postconviction motion.

Defendant also raises arguments in her appellate briefs that were not raised in her Crim. P. 85 motion in the trial court. We will not consider these arguments for the first time on appeal. See People v. Cagle, 751 P.2d 614 (Colo.1988); People v. Boyd, 30 P.3d 819 (Colo.App.2001).

The order is affirmed.

Judge NEY and Judge DAILEY concur.


source: Caselaw Access Project

author: Judge DAILEY.

license: Public Domain

text:
    CURRAGH QUEENSLAND MINING LIMITED, a Delaware corporation, Plaintiff-Appellee and Cross-Appellant, v. DRESSER INDUSTRIES, INC., a Delaware corporation; and Global Industrial Technologies, Inc., a Delaware corporation, Defendants-Appellants and Cross-Appellees, and TMPSC, Inc., a Delaware corporation, Plaintiff-Counterdefendant-Appellant and Cross-Appellee, v. Curragh Queensland Mining Limited, a Delaware corporation, Defendant-Counterclaimant-Appellee and Cross-Appellant.
    No. 00CA1049.
    Colorado Court of Appeals, Div. III.
    April 25, 2002.
    As Modified on Denial of Rehearing June 13, 2002.
    Certiorari Dismissed Oct. 4, 2002.

      Greenberg Traurig, LLP, David G. Palmer, Brian L. Duffy, Naomi G. Beer, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant/Defendant-Counterelaimant-Ap-pellee and Cross-Appellant.
    Hall & Evans, LLC, Alan Epstein, Thomas L. Beam, Denver, Colorado (on the briefs); Kennedy & Christopher PC, John R. Mann, Denver, Colorado; Godwin Gruber, PC, Donald E. Godwin, David J. White, David L. Patterson, Dallas, Texas, for Defendant-Appellant and Cross-Appellee Dresser Industries, Inc.
    Hall & Evans, LLC, Alan Epstein, Thomas L. Beam, Denver, Colorado; Spain & Hastings, H. Daniel Spain, Houston, Texas, for Defendant-Appellant and Cross-Appellee (Hobal Industrial Technologies, Inc., and Plaintiff-Counterdefendant-Appellant and Cross-Appellee TMPSC, Inc..
   Opinion by

Judge DAILEY.

Dresser Industries, Inc.; Global Industrial Technologies, Inc.; and TMPSC, Inc. (collectively, Sellers), appeal from a judgment entered in favor of Curragh Queensland Mining Limited (Buyer) on various contract and warranty claims. Buyer eross-appeals the judgment entered in favor of Sellers on one of its claims. We affirm in part, reverse in part, and remand for further proceedings.

In 1990, Sellers sold Buyer a Planetary Swing Drive Dragline, a large machine used in the reclamation of coal. The Dragline, however, had significant mechanical defects, which Sellers attempted to fix over the course of the next seven years.

After Sellers twice unsuccessfully attempted a "final fix," Buyer filed suit in October 1998 against Dresser and Global, alleging, as pertinent here, breach of contract, breach of express and implied warranties, and a Colorado Consumer Protection Act (CCPA) violation. TMPSC filed suit against Buyer, alleging breach of contract, and Buyer counterclaimed, alleging, as pertinent here, the same claims it alleged against Dresser and Global.

The trial court granted summary judgment against Sellers on their statute of limitations defense and against Buyer on its CCPA claim. Following a three-week trial, the jury found for TMPSC in the amount of $348,000 on its breach of contract claim against Buyer, and for Buyer in the amount of $14,280,000 on its breach of contract and warranties claims against Sellers. Buyer's damages encompassed $2,278,000 in past repair costs and $12,002,000 to correct all of the Drag-line's defects ("true fix").

I. Parties Proceeding with the Appeal

Prior to oral argument, (lobal and TMPSC informed this court that they had recently filed petitions in bankruptcy and that all portions of this appeal affecting their interests were automatically stayed under § 362 of the Bankruptcy Code. See 11 U.S.C. § 862(a)(1); Farley v. Henson, 2 F.3d 273, 275 (8th Cir.1993). But see In re Lyngholm, 24 F.3d 89, 92 (10th Cir.1994)(adopting minority position that appellate proceedings initiated by debtor-defendants are not automatically stayed).

Consequently, only those parts of the appeal and cross-appeal concerning Buyer and Dresser (Seller) proceed here.

II Summary Judgments

Seller and Buyer each contend that the trial court erred in its summary judgment rulings barring Seller's statute of limitations defense and Buyer's CCPA claim. We find no basis to reverse either of those rulings.

"The purpose of summary judgment is to permit the parties to pierce the formal allegations of the pleadings and save the time and expense connected with trial when, as a matter of law, based on undisputed facts, one party could not prevail." Peterson v. Halsted, 829 P.2d 373, 375 (Colo.1992). Because summary judgment is a drastic remedy, it is appropriate only where there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Churchey v. Adolph Coors Co., 759 P.2d 1336, 1340 (Colo.1988).

With these standards in mind, we examine the contentions of the parties.

A. Statute of Limitations

Seller contends that the trial court erred in barring its statute of limitations defense. We disagree.

Because the contract at issue concerned a sale of goods, the Uniform Commercial Code (UCC) is applicable. The UCC provides, "An action for breach of any contract for sale must be commenced within the time period prescribed in section 13-80-101, C.R.S. This period of limitation may not be varied by agreement of the parties." Section 4-2-725(1), -C.R.S8.2001. Section 183-80-101(1)(a), C.R.S.2001, provides that a UCC action must be commenced within three years of the date the underlying claim accrues.

In the trial court, Seller argued that, because Buyer's cause of action acerued at the latest in 1991 when Buyer became aware of the Dragline's defects, Buyer's October 1998 lawsuit was untimely. The trial court ruled

otherwise, however, relying upon the repair doctrine recognized by a division of this court in Highline Village Associates v. Hersh Cos., 996 P.2d 250, 257 (Colo.App.1999)(Highline I).

In Highline I, the division held that under the repair doctrine, the limitations period on breach of contract and breach of warranty claims is tolled from the time a seller undertakes efforts to repair the defective goods until the time it abandons those efforts where: (1) the seller either expressly or impliedly promises or represents that such repairs will remedy such defect; and (2) the buyer reasonably relies upon such promise or representation and, as a result, does not institute legal action against the seller.

On certiorari review, the supreme court held that the repair doctrine was inapplicable to the breach of contract claim and unnecessary to salvage the breach of warranty claims because the contract contained a five-year repair or replace defect warranty, which was not breached until a year before the lawsuit was filed. See Hersh Cos. v. Highline Village Associates, 30 P.3d 221, 226 (Colo.2001)(Highline II). Significantly, the supreme court did not reject the repair doctrine; it simply said the doctrine was either inapplicable or unnecessary under the facts of that case.

Consistent with the supreme court's ruling in Highline II, we examine the provisions of the contract in this case to determine their impact upon a statute of limitations analysis and consider the applicability of the repair doctrine only if one or more of Buyer's claims would be untimely when measured against the provisions of the contract.

In the present case, Seller provided a repair or replace warranty, but different from that in Highline II. Here, the repair or replace warranty addressed only defects that arose within twelve months from the delivery of the Dragline. Based on our review of the record, this warranty would have expired in 1992, and claims based thereon would have been barred under the three-year limitations period by 1995.

However, Seller also guaranteed Buyer that the Dragline would achieve eighty-seven percent availability for successive three-month intervals until March 1997. This guarantee effectively delayed commencement of the limitations period for seeking a "true fix" remedy of the Dragline until that time. Cf. In re Church, 833 P.2d 813, 814 (Colo.App.1992)("if a money obligation is payable in installments, a separate cause of action arises on each installment and the statute of limitations begins to run against each installment when it becomes due"). Consequently, Buyer's October 1998 claim for a "true fix" was timely filed.

The same rationale and result do not apply to Buyer's claim for past repair damages, which acerued at the various times when it expended funds to repair the Drag-line. Consequently, Buyer could not recover repair expenditures made prior to October 1995 unless the three-year limitations period was tolled by the repair doctrine.

We reject Seller's contention that the repair doctrine cannot apply to claims for past repair damages. Requiring a buyer to institute suit for past repairs while a seller is still attempting to make repairs would be inconsistent with the policy underlying the repair doctrine, which favors the voluntary settlement of disputes without unnecessary litigation. See Highline I, supra, 996 P.2d at 256. See also Highline II, supra, 30 P.3d at 225 (disapproving approach that "would promote unnecessary litigation, in turn compromising business relationships and burdening courts with unripe claims").

The record discloses uncontradicted evidence that, from the time the Dragline was delivered until Sellers implemented an unsuccessful "final fix" some seven years later, Sellers attempted various repairs or made various promises that they would stand behind their product until it was fixed. From this evidence, no reasonable factfinder could find that, under the repair doctrine, Buyer's action was untimely.

At oral argument on appeal, Seller attempted, for the first time, to separate itself from Global and TMPSC for purposes of applying the repair doctrine. Seller argued that, because any post-1992 repairs and promises had been made exclusively by those entities, only they (and not it) should be burdened with the effects of the repair doe-trine. However, because Seller elected, with Global and TMPSC, to litigate these issues jointly both here and in the trial court, we will not, at this late date, consider this new argument. See Timm v. Reitz, 39 P.3d 1252, 1255 (Colo.App.2001) ("arguments ... not presented to the trial court in connection with a motion for summary judgment will not be considered on appeal"); Board of County Commissioners v. City of Greenwood Village, 30 P.3d 846, 849 (Colo.App.2001)(court will not consider arguments raised for the first time in reply brief or during oral argument).

Based on the foregoing, we conclude that the trial court properly rejected Seller's statute of limitations defense.

B. CCPA Violation

We also conclude that the trial court did not err in granting summary judgment against Buyer on its CCPA claim.

A private remedy is available under the CCPA if a plaintiff shows:

(1) that the defendant engaged in an unfair or deceptive trade practice; (2) that the challenged practice occurred in the course of defendant's business, vocation, or occupation; (8) that it significantly impacts the public as actual or potential consumers of the defendant's goods, services, or property; (4) that the plaintiff suffered injury in fact to a legally protected interest; and (5) that the challenged practice caused the plaintiff's injury.

Hall v. Walter, 969 P.2d 224, 235 (Colo.1998).

Here, the trial court granted summary judgment because it determined that as a matter of law Buyer could not establish the third element of this test, namely, that Seller's allegedly unfair or deceptive trade practice "significantly impacts the public as actual or potential consumers" of Seller's goods or services.

The purpose of the CCPA is to provide "consumers who are in a position of relative bargaining weakness with protection against a range of deceptive trade practices." Martinez v. Lewis, 969 P.2d 213, 222 (Colo.1998).

In this case, it was undisputed that: (1) although Seller advertised its Dragline to about 8000 mining companies, only a very few could muster the financial resources necessary to purchase a $38 million Dragline; (2) Buyer was neither economically valnera-ble nor unsophisticated in matters pertaining to mining equipment; (8) Buyer, represented by counsel, negotiated at length with Seller the terms of the purchase agreement and several subsequent modifications; and (4) Buyer negotiated a number of custom-made features for the Dragline.

These cireumstances persuade us that the trial court correctly determined, as a matter of law, that the parties' transaction would not significantly affect the public as actual or potential consumers. See Martines v. Lewis, supra (no CCPA significant public impact from doctor's misrepresentation to insurance company, which held a position of relative bargaining strength because of its sophistication, experience, and resources).

Thus, the trial court properly granted Seller's motion for summary judgment on Buyer's CCPA claim.

IIL Buyer's Recovery of Future Lost Profits

Relying on a provision in the contract barring Buyer from recovering consequential damages, including lost profits, Seller contends that the trial court erred in allowing Buyer to recover future lost profits We disagree.

Initially, we reject Buyer's assertion that the damages awarded to it included only past repairs and the diminution in the Drag-line's value. Only one expert testified to the various ways in which damages could be calculated. He testified that the diminution in value was $10,755,000. However, as evidenced by the verdiet form, the jury rejected this method of calculating damages.

Instead, the jury awarded Buyers "true fix" damages in the amount of $12,002,000. The same expert provided three separate "true fix" damages figures, which averaged a little over $12,002,000. Each of the three figures included $8,895,000 in future lost profits, and there was no mathematical way to arrive at a $12,002,000 "true fix" verdict without including future lost profits.

Seller argues that inasmuch as the parties' contract barred Buyer from recovering lost profits, the trial court erred in not barring Buyer's recovery of such damages. Seller also argues that, in any event, the jury necessarily rejected the only conceivable legal basis upon which Buyer could recover lost profits. We are not persuaded.

A. Contractual Bar

Although parties to a contract may limit or alter the measure of damages recoverable for breach of contract, see § 4-2-719(1)(a), C.R.98.2001, "[where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in [the UCC]." Section 4-2-719(2), C.R.S.2001. See Cooley v. Big Horn Harvestore Systems, Inc., 813 P.2d 736, 748 (Colo.1991).

A limited remedy fails of its essential purpose if it deprives a party of the substantial benefit of the bargain. When a seller cannot cure defects by repeated repair attempts, a remedy limited to repair fails of its essential purpose. See Rose v. Colorado Factory Homes, 10 P.3d 680, 684 (Colo.App.2000). See also Leprino v. Intermountain Brick Co., 759 P2d 835, 837 (Colo.App.1988){action or inaction of the seller can cause a limited remedy to fail of its essential purpose).

Here, in determining whether the court should have resolved the issue as a matter of law, we consider the evidence in the light most favorable to Buyer and must deny Seller relief if evidence exists from which a reasonable fact finder could find in Buyer's favor. See Bob Blake Builders, Inc. v. Gramling, 18 P.3d 859, 865-66 (Colo. App.2001)(directed verdict standard).

When considered in the light most favorable to Buyer, the evidence revealed that, despite numerous attempts over the course of seven years, Sellers were unsue-cessful and then abandoned their attempts to cure the defects in the Dragline, which failed to operate at the guaranteed eighty-seven percent capacity. This evidence was sufficient for a reasonable fact finder to conclude that the contract's limited repair or replace remedy had failed of its essential purpose. Thus, the issue of whether lost profits should be awarded to Buyer, despite a waiver of such damages in the contract, was left for the jury to resolve.

B. Jury Instructions and Verdict Form

Alternatively, Seller asserts that, inasmuch as the jury necessarily rejected application of the essential purpose doctrine when it failed to award Buyer damages for past lost profits, no legal basis existed for awarding Buyer future lost profits as pat of "true fix" damages. Again, we are not persuaded.

The record sheds no light on the reason why the jury rejected an award of past lost profits. It may have rejected such an award because it adjudged the disputed evidence of past lost profits insufficient. See Margenau v. Bowlin, 12 P.3d 1214, 1219 (Colo.App. 2000)(in awarding damages, it "is for the jury to determine the weight of, and to resolve conflicts and inconsistencies in, the evidence").

The jury may also have rejected an award of past lost profits, while allowing future lost profits, because it only partially rejected the essential purpose doctrine or because it misunderstood the doctrine's application to the lost profits part of "true fix" damages. This could have occurred because neither the instructions nor the verdict form: (1) explicitly linked the essential purpose doctrine to future lost profits as opposed to past lost profits; (2) indicated that rejection of the essential purpose doctrine as to past profits required rejection for all purposes, including future profits; or (8) indicated that the jury should segregate various components of "true fix" damages.

Under these cireumstances, we refuse to speculate upon a basis for invalidating the jury's award of damages, particularly because Seller neither objected to any deficiencies in the instructions or verdict form, nor tendered instructions of its own with respect to these matters. Consequently, Seller may not now claim that the jury's "true fix" damage award improperly included future lost profits. See Decker v. Browning-Ferris Industries, 931 P.2d 436, 448 n. 12 (Colo.1997)(party's failure to raise specific objection to special verdict form, which allowed jury to award noneconomic damages for contractual claims, waived issue for purposes of appeal); Bear Valley Church of Christ v. DeBose, 928 P.2d 1315, 1328-30 (Colo.1996)(party's failure to object to or tender instructions or verdict forms waived claim that instructions and verdict forms allowed inconsistent or duplicative jury awards).

IV. Prejudgment Interest

Finally, Seller contends that the trial court erred in awarding Buyer prejudgment interest with respect to "true fix" damages. We agree.

Under § 512-102, C.R.S8.2001, judgment creditors may receive prejudgment interest calculated from the date money is wrongfully withheld or becomes due to the date of payment or the date judgment is entered, whichever first occurs.

Section 5-12-102 is liberally construed to permit recovery of prejudgment interest. Mesa Sand & Gravel Co. v. Landfill, Inc., 776 P.2d 362, 365 (Colo.1989); Vento v. Colorado National Bank-Pueblo, 907 P.2d 642, 647 (Colo.App.1995). However, prejudgment interest is allowed only on past, not future, losses. James v. Coors Brewing Co., 73 F.Supp.2d 1250, 1257 (D.Col0.1999).

Here, because the jury's award of "true fix" damages was based upon Buyer's anticipated, rather than past, expenditures, it could not be a basis for awarding prejudgment interest. Subtracting the $12,002,000 "true fix" damage figure, we conclude that prejudgment interest may be awarded on only $2,278,000 of Buyer's judgment.

Accordingly, that portion of the judgment awarding Buyer prejudgment interest is reversed, and the case is remanded for an award of prejudgment interest in accordance with the views expressed in this opinion. The judgment is affirmed in all other respects.

Judge NEY and Judge ROY concur.


author: Judge WEBB.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Carol GARCIA, Defendant-Appellant.
    No. 01CA0188.
    Colorado Court of Appeals, Division II.
    April 25, 2002.

      Ken Salazar, Attorney General, Evan W. Jones, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Cynthia Camp, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge WEBB.

Defendant, Carol Garcia, appeals from the sentence imposed following her guilty plea to theft and unauthorized use of a financial transaction device. We dismiss the appeal in part and affirm the sentence.

Pursuant to a plea bargain, defendant pleaded guilty to theft and unauthorized use of a financial transaction device in exchange for the dismissal of other charges against her. The plea agreement provided for a sentencing cap of twelve years. Defendant also agreed to pay restitution of $136,053 plus accrued finance charges on several ered-it card accounts.

The trial court sentenced defendant to concurrent terms of twelve years in the Department of Corrections (DOC) for the two counts, with a five-year period of mandatory parole. The court further ordered her to pay $138,777.10 in restitution.

I.

Defendant contends that the trial court abused its discretion by emphasizing punishment to the exclusion of other sentencing objectives and refusing to consider a community corrections sentence. The People contend that defendant's appeal is barred by § 18-1-409(1), C.R.S.2001, and, therefore, is not properly before us. We agree with the People and dismiss this part of the appeal.

As applicable here, § 18-1-409(1) provides for appellate review of the propriety of a sentence except in cases where the sentence imposed is "within a range agreed upon by the parties pursuant to a plea agreement." Here, defendant seeks review of the propriety of a sentence imposed within the limits for which she bargained. Under § 18-1-409(1), she is precluded from doing so. See People v. O'Dell, 53 P.3d 655 (Colo.App. No. 00CA1656, 2001 WL 1135646, Sept. 27, 2001). Accordingly, this portion of the appeal is dismissed.

IL

Defendant also contends that the trial court erred in imposing a twelve-percent interest rate on the amount of restitution it ordered her to pay. Specifically, she argues that the court violated her right to protection against ex post facto application of the law by imposing the twelve-percent interest rate under § 16-18.5-103, Alternatively, she argues that the rule of lenity requires that the interest rate be set at eight percent. We disagree.

Section 16-18.5-108 provides in pertinent part:

(1) Every order of conviction of a felony, misdemeanor, petty, or traffic misdemean- or offense ... shall include consideration of restitution....
(4)(a) Any order for restitution entered pursuant to this section shall be a final civil judgment in favor of the state and any victim. Notwithstanding any other civil or criminal statute or rule, any such judgment shall remain in force until the restitution is paid in full.
(b) Any order for restitution made pursuant to this section shall also be deemed to order that:
(I) The defendant owes interest from the date of the entry of the order at the rate of twelve percent per annum....

(Emphasis supplied.)

Where a law either imposes punishment for an act that was not a erime when it was committed or makes the punishment for a crime more onerous than it was when the crime was committed, the law violates the constitutional prohibitions against ex post facto laws. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 LEd2d 894 (1964); People v. Woodward, 11 P.3d 1090 (Colo.2000).

A statute is not rendered unconstitutional as an ex post facto law merely because some of the facts upon which it operates occurred before the adoption of the statute. See People v. McCreadie, 938 P.2d 528 (Colo.1997); People v. Bowring, 902 P.2d 911 (Colo. though one of the incidents relied on by prosecution to prove pattern sexual abuse may have occurred before effective date of statute, there was no ex post facto violation where the triggering act occurred after the statute's effective date).

A.

Defendant first argues that because the offenses to which she pleaded guilty were all committed before the effective date of § 16-18.5-103, the court could not impose the twelve-percent interest rate provided under the statute. We do not agree.

In construing a statute, we give effect to the intent of the General Assembly by looking first to the language of the statute. The words and phrases used are to be read in context and accorded their plain meaning. Vega v. People, 893 P.2d 107 (Colo.1995).

Section 16-18.5-108 expressly provides that interest is to be calculated at twelve percent for every order of conviction of a felony. The enabling legislation further provides that § 16-18.5-103 shall apply to "orders for convictions entered on or after the applicable effective date of this act," here September 1, 2000. Colo. Sess. Laws 2000, ch. 282, see. 25 at 1053.

Although the offenses to which defendant pleaded guilty were committed between January 1, 1996, and April 13, 2000, the order of conviction was entered on October 6, 2000, when defendant entered her plea and the trial court accepted it. See § 16-18.5-102(2), C.R.S.2001 (conviction means a verdict of guilty that is accepted by the court). Thus, the triggering event under the plain language of the statute is the entry of the order of conviction, here on October 6, 2000. The applicable interest rate for an order of restitution is the one in effect at that time, twelve percent.

B.

Nevertheless, defendant argues that the court erred in imposing the twelve-percent interest rate because it illegally increased the punishment to which she was subject at the time the offenses were committed and therefore violated the prohibition against ex post facto legislation. For purposes of an ex post facto analysis, we must look at the date the offense was completed, not the date of conviction. ' Even from that perspective, however, we are not persuaded that the prohibition against ex post facto legislation was violated.

Generally, the right to interest is created and regulated by statute. Clark v. Hicks, 127 Colo. 25, 252 P.2d 1067 (1953). Interest represents just compensation for use of money rightfully belonging to someone else. Stone v. Currigan, 138 Colo. 442, 334 P.2d 740 (1959).

Restitution is intended to make the victim whole. People v. Engel, 746 P.2d 60 (Colo.App.1987). Although historically an award of interest was not to be included in an order of restitution, People v. Emgel, supra, courts have since recognized cireumstances where including interest in restitution is appropriate. See People v. Acosta, 860 P.2d 1376 (Colo.App.1998); Valenzuela v. People, 893 P.2d 97 (Colo.1995)(noting that court has discretionary power to make victim whole).

We conclude that the imposition of a twelve-percent interest rate from the date of the order of conviction properly recognizes that, if restitution is not paid immediately, then victims are entitled to compensation for the delay in return of their money. Section 16-18.5-103 merely codifies this discretionary power and sets a uniform interest rate of twelve percent, which a defendant can avoid entirely by immediate payment. Here, defendant does not claim the twelve-percent rate to be unreasonable. Thus, imposing prospective interest at a reasonable rate on an order of restitution does not, by itself, make the punishment more onerous in violation of the prohibition against ex post facto legislation.

Accordingly, the trial court did not err in imposing the twelve-percent interest rate on the order of restitution.

Contrary to defendant's contention, we also do not agree that the court should have imposed interest at a lesser rate which, defendant argues, the victim would have obtained by investing the money in the current financial environment. The court was required to impose interest at this statutory rate. Setting a uniform rate, as opposed to case-by-case determination, lies within the province of the legislature, so long as the rate falls within a reasonable range. Cf. Church v. American Standard Ins. Co., 764 P.2d 405 (Colo.App.1988)(statutory interest rate of 8% precluded court from awarding interest at 9%, absent agreement).

C.

Alternatively, defendant argues that the rule of lenity requires the trial court to impose an eight-percent interest rate because § 16-18.5-103 conflicts with §§ 5-12-101 and 5-12-102(4)(b), C.R.S8.2001, setting forth differing interest rates. We perceive no conflict.

If legislative intent cannot be discerned using other maxims of statutory interpretation then the rule of lenity requires that courts resolve ambiguities and conflicts in the statutes in the defendant's favor. See People v. Pierrie, 30 P.3d 816 (Colo.App.2001); People v. Gonzales, 973 P.2d 732 (Colo.App.1999)

Section 5-12-101, entitled "Legal rate of interest," provides "If there is no agreement or provision of law for a different rate, the inferest on money shall be at the rate of eight percent per annum, compounded annually." Under § 512-102(4)(b), entitled "Statutory Interest," interest to creditors accrues at eight percent per annum in all cases where no rate is specified.

Section 16-18.5-108 is a provision of law expressly providing for a different rate, as contemplated under §§ 512-101 and 5-12-102(4)(b). Therefore, the statutes do not conflict, and the rule of lenity does not apply. Thus, the trial court did not err in imposing interest at the rate of twelve percent.

That part of the appeal challenging the propriety of the DOC sentence is dismissed, and the sentence is affirmed.

Judge PLANK and Judge JONES concur.


author: Judge TAUBMAN.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joel H. BECKER, Defendant-Appellant.
    No. 01CA0151.
    Colorado Court of Appeals, Div. IV.
    May 23, 2002.

      Ken Salazar, Attorney General, Matthew S. Holman, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge TAUBMAN.

Defendant, Joel H. Becker, appeals the sentences imposed upon his convictions for first degree sexual assault and second degree burglary. We affirm.

Defendant broke into the victim's apartment at night and, by threatening her life with a scissors, forced her to submit to oral, vaginal, and anal sex.

Pursuant to a plea agreement in which other charges were dismissed, defendant pleaded guilty to first degree sexual assault (forcing submission by using a deadly weapon to threaten death), a class two felony in violation of Colo. Sess. Laws 1975, ch. 171, § 18-3-402(1)(b) at 628; Colo. Sess. Laws 1983, ch. 199, § 18-8-402(1) at 698; and Colo. Sess. Laws 1985, ch. 151, § 18-3-402(8)(c) at 666. Defendant also pleaded guilty to second degree burglary committed as a class four felony in violation of § 18-4-203, C.R.S.2001. The plea agreement did not contain any sentence stipulation other than that defendant's sentences in this case would be served concurrently with his sentences in two unrelated cases.

The trial court imposed an eight-year sentence to the custody of the Department of Corrections (DOC) on the conviction for see-ond degree burglary and, on the first degree sexual assault conviction, an indeterminate sentence of forty-eight years to defendant's natural life under the Colorado Sex Offender Lifetime Supervision Act of 1998, § 16-183-804, C.R.S.2001. The court ordered that the sentences be served consecutively to each other and, in accordance with the stipulation of the plea agreement, concurrently with defendant's sentences in his other cases.

I. Minimum Length of Indeterminate Sentence

Defendant first argues that the trial court exceeded its authority by imposing an indeterminate sentence of forty-eight years to life because the relevant provision of the Lifetime Supervision Act does not permit an indeterminate sentence with a minimum length that is greater than the midpoint of the presumptive range applicable to the underlying offense. We disagree.

As set forth above, defendant was convict, ed of first degree sexual assault committed as a class two felony. The applicable sentencing provision of the first degree sexual assault statute then in effect provided as follows: "Any person convicted of sexual assault committed on or after November 1, 1998, under any of the cireumstances described in this section shall be sentenced in accordance with the provisions of [the Lifetime Supervision Act]." Section 18-8-402(6), C.R.S.2001 (formerly codified at § 18-3-402(4)(b)).

The relevant provisions of the Lifetime Supervision Act provide as follows:

(a) ... [T]he district court having jurisdiction shall sentence a sex offender to the custody of the department for an indeterminate term of at least the minimum of the presumptive range specified in section 18-1-105, C.R.S., for the level of offense committed and a maximum of the sex offender's natural life.
(b) If the sex offender committed a sex offense that constitutes a crime of violence, as defined in section 16-11-8309, the district court shall sentence the sex offender to the custody of the department for an indeterminate term of at least the midpoint in the presumptive range for the level of offense committed and a maximum of the sex offender's natural life.

Section 16-18-804(1), C.R.S8.2001 (emphasis added).

First degree sexual assault committed by means of a deadly weapon is a crime of violence under § 16-11-809(2), C.R.S.2001. Section 16-11-809(1)(c), C.R.S.2001, of the crime of violence sentencing statute, provides:

Notwithstanding the provisions of paragraph (a) of this subsection (1), any person convicted of a sex offense, as defined in section 16-13-808(5), committed on or after November 1, 1998, that constitutes a crime of violence shall be sentenced to an indeterminate term of incarceration of at least the midpoint in the presumptive range up to a maximum of the person's natural life, as provided in section 16-18-804(1).

(Emphasis added.)

Therefore, under §§ 16-11-809(1)(c) and 16-18-804(1)(b), the trial court in this case was required to impose a sentence of "at least" sixteen years, the midpoint in the presumptive range. See § 18-1-105(1)(a)(V)(A), C.R.S.2001 (the presumptive sentencing range for a class two felony is eight to twenty-four years imprisonment).

An indeterminate sentence was also required under § 18-1-105(9)(e.5), C.R.98.2001, which provides as follows:

If the defendant is convicted of the class 2 felony of sexual assault in the first degree under section 18-3-402(8), commission of which offense occurs on or after November 1, 1998, the court shall be required to sentence the defendant to an indeterminate sentence of at least the midpoint in the presumptive range for the punishment of that class of felony up to the defendant's natural life.

(Emphasis added.)

Defendant concedes that the trial court was required to impose an indeterminate sentence of "at least" sixteen years under the foregoing provisions. However, defendant contends that the words "at least" in §§ 16-11-309(1)(c), 16-18-804(1)(b), and 18-1-105(9)(e.5) denote a fixed minimum length and that the trial court was therefore without authority to impose an indeterminate sentence with a minimum length greater than sixteen years. We are not persuaded.

Recently, in People v. Smith, 29 P.3d 347 (Colo.App.2001), a division of this court analyzed the "at least" language of § 16-183-804(1)(a) and rejected the statutory construction and supporting arguments advanced by defendant here. The division concluded that "defendant's interpretation of the statute renders meaningless the General Assembly's insertion of 'at least," " and that term "by its plain meaning provides the court with the option to impose an increased minimum sentence." People v. Smith, supra, 29 P.3d at 349.

We find the reasoning of Smith to be persuasive and, following it here, conclude that it is dispositive of defendant's arguments. Accordingly, we reject defendant's claim that it is necessary to apply the rule of lenity.

II. Minimum Length and Equal Protection

Alternatively, defendant argues that if the Lifetime Supervision Act vests a trial court with discretion to establish the minimum length of a sex offender's indeterminate sentence, then the Act violates equal protection principles because such discretion may give rise to sentencing disparities among similarly situated sex offenders. We conclude, for the reasons set forth in People v. Smith, supra, 29 P.3d at 849-50, that defendant lacks standing to make such a challenge premised on a hypothetical assertion that such disparities may occur.

III. Maximum Length of Indeterminate Sentence

Defendant next contends the trial court did not properly exercise its sentencing discretion because, under $ 16-13-804(1)(b), it had authority to impose an indeterminate sentence with a maximum length less than defendant's "natural life." Defendant bases this argument on §§ 16-11-809(1)(c) and 18-1-105(9)(e.5), both of which provide that the court may impose an indeterminate sentence "up to" the defendant's natural life. We are not persuaded.

Resolution of this issue requires us to consider various rules of statutory construction. Our task in construing a statute is to ascertain and give effect to the intent of the General Assembly. To determine that intent, we look first to the plain and ordinary meaning of the statutory language. People v. District Court, 718 P.2d 918 (Colo.1986).

When the language is clear and unambiguous, the statute must be construed as written, without resort to interpretive rules of statutory construction. People v. Zapotocky, 869 P.2d 1234 (Colo.1994).

However, if the statutory language lends itself to alternative constructions, and its intended seope is unclear, a court may apply other rules of statutory construction to determine which alternative construction is in accordance with the objectives sought to be achieved by the legislation. People v. Terry, 791 P.2d 374 (Colo.1990).

If the statutory language does not unambiguously establish the General Assembly's intent, we may also consider the consequences of a given construction of the statute and the end to be achieved by the statute. Martin v. People, 27 P.3d 846 (Colo.2001). In addition, we must read and consider the statutory scheme as a whole to give consistent, harmonious, and sensible effect to all its parts. People v. Cooper, 27 P.3d 348 (Colo.2001).

Statutes should be interpreted, if possible, to harmonize and give meaning to other potentially conflicting statutes. People v. Martinez, 844 P.2d 1203, 1205 (Colo.App.1992). If statutes conflict irreconcilably, we consider special rules of statutory construction to determine which statute will prevail. See §§ 2-4-204 to 2-4-2074, C.R.$.2001. Under § 2-4-205, if a general statute conflicts with a specific statute, the more specific prevails, unless the general statute is the later adoption and the manifest intent is that the general provision prevail. See People v. Cooper, supra.

Here, we conclude that the two statutes upon which defendant relies, §§ 16-11-309(1)(c) and 18-1-105(9)(e.5), conflict irreconcilably with the statute upon which the People rely, § 16-18-804(1)(b). Applying the rules of statutory construction noted above, we further conclude that § 16-183-804(1)(b) must prevail and that the trial court did not have authority to impose an indeterminate sentence with a maximum length less than defendant's natural life.

Section 16-11-809(1)(c) indicates that if the defendant is convicted of a sex offense constituting a crime of violence, the court is to impose "an indeterminate term of incarceration of at least the midpoint in the presumptive range up to a maximum of the person's natural life, as provided in § 16-13-804(1)." (Emphasis added.) Similarly, § 18-1-105(9)(e.5) states that if the defendant is convicted of first degree sexual assault as a class two felony, "the court shall be required to sentence the defendant to an indeterminate sentence of at least the midpoint in the presumptive range for the punishment of that class of felony up to the defendant's natural life." (Emphasis added.)

In our view, the words "up to" in these statutes unambiguously mean that a trial court has discretion to impose an indeterminate sentence with a maximum length that is less than the defendant's natural life.

However, § 16-13-804(1)(b) requires the court to impose an "indeterminate term of at least the midpoint of the presumptive range for the level of offense committed and a maximum of the sex offender's natural life." Under the plain language of this section, a trial court has no discretion to impose an indeterminate sentence with a maximum length other than the defendant's natural life.

Thus, § 16-18-804(1)(b) appears to conflict irreconcilably with §§ 16-11-809(1)(c) and 18-1-105(9)(e.5).

Here, we may not employ the rule of statutory construction providing that the later adopted conflicting statute prevails because all three of the statutory sections at issue were enacted in 1998 as part of the same bill. Colo. Sess. Laws 1998, ch. 808, § 16-13-804(1)(b) at 1280, § 18-1-105(9)(e.5) at 1290, § 16-11-309(1)(c) at 1291.

Nonetheless, we may consider the rule of statutory construction that a more specific provision prevails over a more general one. As in People v. Cooper, supra, and Martin v. People, supra, we must carefully determine which provisions are general and which are specific, to give full and sensible effect to the entire statutory scheme.

Classifying the three statutes at issue as specific or general is not susceptible of ready analysis. Nevertheless, we conclude that § 16-13-804(1)(b) is a specific provision, because it refers to sex offenses that constitute crimes of violence. In contrast, while § 16-11-309(1)(c) refers specifically to sex offenses and crimes of violence, it is contained within the general statute relating to mandatory sentences for violent crimes. Similarly, while § 18-1-105(9)(e.5) refers specifically to sexual assaults in the first degree, it is contained within the general statute describing sentencing ranges for all felonies. Thus, we view § 16-183-804(1)(b) as the most specific of the three statutes.

We are further aided in our interpretation by the language of § 16-11-809(1)(c). Even though that statute uses the phrase "up to" in describing the upper end of the presumptive range of a defendant's sentence, it then contains the limiting phrase, "as provided in § 16-183-804(1)," which, as we have noted, is the statute that does not contain the phrase "up to." Thus, this language suggests that § 16-183-804(1) controls as between the two statutes.

Our conclusion is further supported by consideration of the consequences of applying defendant's proposed statutory interpretation. Under defendant's analysis, a trial court could sentence a defendant convicted of sexual assault under § 18-3-402 to a maximum term of less than the defendant's natural life, for example, twenty-five years. In contrast, another defendant convicted of a less serious sex offense, such as enticement of a child under § 18-88-8305, C.R.S.2001, would be required to receive an indeterminate sentence whose upper end was that defendant's natural life. Because we presume that the General Assembly intended a just result, we reject defendant's proposed interpretation as illogical.

Finally, because we have been able to discern the intent of the General Assembly, we need not apply the rule of lenity in favor of defendant. See People v. Sorrendino, 37 P.3d 501, 503-04 (Colo.App.2001)(rule of lenity only applies when a statute is susceptible of more than one reasonable interpretation and a court is unable to discern controlling legislative intent after having employed rules of statutory construction).

Based on the foregoing, we conclude that the trial court was required to impose an indeterminate sentence with a maximum term equal to defendant's natural life.

IV. Sentences as Abuse of Discretion

Finally, defendant argues that the trial court abused its discretion by imposing consecutive DOC sentences of twelve years and forty-eight years to life. We disagree.

The trial court concluded that a lengthy minimum period of imprisonment was required because defendant was on probation for two prior felony convictions when he committed these heinous offenses that had a devastating impact on the victim. Contrary to defendant's claim, our review of the record indicates that the trial court considered all relevant sentencing factors, including defendant's age, his rehabilitative potential, and his criminal history. Accordingly, we conclude the trial court acted within its discretion. See People v. Smith, supra, 29 P.3d at 350.

The sentences are affirmed.

Judge MARQUEZ and Judge VOGT concur.


text:
    CITY AND COUNTY OF DENVER, a Colorado municipal corporation, and its Department of Zoning Administration; Brian Volkman; and AGR, LLC, Plaintiffs-Appellees, v. The BOARD OF ADJUSTMENT FOR the CITY AND COUNTY OF DENVER and David P. Spencer, Defendant-Appellant.
    No. 01CA0762.
    Colorado Court of Appeals, Div. III.
    May 23, 2002.
    Certiorari Denied Oct. 15, 2002.

      J. Wallace Wortham, Jr., Denver City Attorney, Patrick A. Wheeler, Assistant City Attorney, Denver, Colorado, for Plaintiff Ap-pellee City and County of Denver and its Department of Zoning Administration.
    Banks & Imatani, P.C., Edward Imatani, Lakewood, Colorado, for Plaintiffs-Appellees Brian Volkman and AGR, LLC.
    Peterson Dymond Reagor, LLP, David D. Schlachter, Englewood, Colorado, for Defendant-Appellant.
   Opinion by

Judge ROY.

In this proceeding pursuant to C.R.C.P. 106(a)(4) brought by plaintiffs, City and County of Denver, Brian Volkman, and AGR, LLC (developer), defendant, David P. Spence-er (neighbor), appeals from a district court judgment reversing an order of the Board of Adjustment of the City and County of Denver (board) revoking developer's zoning permit. We reverse and remand.

This case concerns the construction of a multifamily residential development as a use by right in the Glenn Court/Stoneman's Row subarea of the Platte River Valley (PRV) zoning district. The subarea zoning standards are set forth in § 59-502E of the Denver Revised Municipal Code (the code).

On November 5, 1999, the zoning administrator approved developer's zoning permit for construction of the development. The application for the permit was submitted as a small development under § 59-499(d)(1) of the code, which excused developer from providing notice to all landowners in the subarea. See Denver Rev. Mun.Code 59-499(d)(1)(b.5) (1982). The adjoining landowners therefore were not notified of developer's application, nor of its approval.

Developer began construction on February 11, 2000. On February 16, 2000, neighbor filed an objection with the zoning administrator, requesting that the permit be revoked because it violated the code. The zoning administrator denied the request in a letter the next day, which informed neighbor that he could appeal to the board. On February 24, 2000, neighbor appealed from the denial of his request for revocation and asked that the board revoke the permit and direct developer to cease construction pending the outcome of the review. The board scheduled an evidentiary hearing, but declined to order developer to cease construction.

Following the evidentiary hearing, the board unanimously reversed the zoning administrator's decision and revoked the zoning permit. The city sought review pursuant to C.R.C.P. 106(a)(4), and developer intervened. The district court reversed the findings and conclusions of the board. Neighbor appeals from that decision.

L.

Review of a governmental body's decision pursuant to C.R.C.P. 106(a)(4) calls into question the decision of the body itself, not the district court's determination on review. See City of Colorado Springs v. Securcare Self Storage, Inc., 10 P.3d 1244 (Colo.2000). Our review is based solely on the record that was before the board, and the decision must be affirmed unless there is no competent evidence in the record to support it such that it was arbitrary or capricious. See Krupp v. Breckenridge Sanitation District, 1 P.3d 178 (Colo.App.1999), aff'd, 19 P.3d 687 (Colo.2001).

We consider whether the board abused its discretion or exceeded its jurisdiction, as well as whether it applied an erroneous legal standard. See Puckett v. City & County of Denver, 12 P.3d 313 (Colo.App.2000). Generally, a reviewing court should defer to the construction of a statute by the administrative officials charged with its enforcement. See Platte River Environmental Conservation Organization, Inc. v. National Hog Farms, Inc., 804 P.2d 290 (Colo.App.1990). If there is a reasonable basis for an administrative board's interpretation of the law, we may not set aside the decision on that ground. See Wilkinson v. Board of County Commissioners, 872 P.2d 1269 (Colo.App.1993).

Administrative proceedings are accorded a presumption of validity and regularity, and all reasonable doubts as to the correctness of administrative rulings must be resolved in favor of the ageney. The burden is on the party challenging an administrative agency's action to overcome the presumption that the agency's acts were proper. See Van Sickle v. Boyes, 797 P.2d 1267 (Colo.1990); Wildwood Child & Adult Care Program, Inc. v. Colorado Department of Public Health & Emvironment, 985 P.2d 654 (Colo.App.1999).

IL.

Neighbor argues that the district court erred by concluding that the board exceeded its jurisdiction in hearing his appeal because it was untimely. Neighbor contends that his February 24 appeal was timely from the zoning administrator's February 17 letter. We agree.

The city's home rule charter states:

Appeals to the board of adjustment may be taken by any person aggrieved or by an officer, department, board or bureau of the municipality affected by any decision of an administrative officer. Such appeal shall be taken within a reasonable time, as provided by the rules of the board by filing with the officer from whom the appeal is taken and with the board of adjustment a notice of appeal, specifying the grounds thereof.

Denver Rev. Mun.Code B1.19-8 (1982){em-phasis added). Further, the board is empowered to "hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this amendment or of any ordinance adopted pursuant thereto." Denver Rev. Mun.Code B1.19-6 (1982)(emphasis added). Section 59-39(a) of the code adds that "[alny person aggrieved ... may appeal to the board of adjustment from any order or decision of the department [of zoning administration]" (emphasis added). The relevant board rule provides that an appeal "must be filed in the office of the Board within fifteen (15) days of the action appealed." Board of Adjustment Restated Rules of Procedure art. III, § 1.

A city ordinance must be construed according to its plain and ordinary meaning. See Denver Rev. Mun.Code 59-16(c)(1982); Catholic Archdiocese v. City & County of Denver, 741 P.2d 333 (Colo.1987); Steamboat Springs Rental & Leasing, Inc. v. City & County of Denver, 15 P.3d 785 (Colo.App.2000).

Construing each of the above ordinances in accordance with their plain and ordinary meaning, it is apparent that they permit neighbor to appeal from the zoning administrator's decision not to review the approval of developer's zoning permit,. Our opinion is supported by the zoning administrator's own interpretation of the ordinances in the letter advising neighbor of his right to appeal, as well as by the board's construction and conclusion that "[the appeal was timely filed February 24, 2000, from a letter of the Zoning Administrator dated February 17, 2000."

We are mindful of developer's argument that permitting a right of appeal from a decision not to review a prior decision minimizes the usefulness of the fifteen-day time limit. However, in light of the ordinances' plain language and intent to create a right of appeal, and the lack of notice to neighbors or other interested parties of the granting of the zoning permit, we cannot hold that neighbor's right of appeal was extinguished fifteen days after the issuance of the permit. 'To do so would extinguish the right of appeal where the aggrieved party is not notified of the application or zoning administrator's decision until after the expiration of the fifteen-day period, and thus would undermine the enforcement of the ordinances and the intent to grant a right to such an appeal. We therefore conclude that neighbor's appeal was timely filed from the zoning administrator's decision not to review the permit approval.

IIL

Neighbor contends that the trial court erred by concluding that the board lacked the authority and power to review the zoning administrator's decision de novo. We agree.

In exercising its powers on appeal, the board

may ... reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken.

Denver Rev. Mun.Code B1.19-7 (1982). Further, § 59-54 provides:

Subject to the limitations enumerated herein, the board shall have and exercise the following powers; in the exercise of its powers, the board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made and, to that end, shall have all the powers of the officer or department from whom the appeal is taken:
(1) Administrative Review. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this chapter.

Denver Rev. Mun.Code 59-54(1) (1982). These powers are limited in Denver Rev. Mun.Code 59-55, which provides in pertinent part:

Limitations on powers.
(b) Findings of fact Every decision of the board shall be based upon findings of fact and every finding of fact shall be supported in the record of its proceedings. The enumerated conditions required to exist on any matter upon which the board is required to pass under this chapter shall be construed as limitations on the power of the board to act. A mere finding or recitation of the enumerated conditions unaccompanied by findings of specific facts shall not be deemed compliance with this chapter.
(f) Presumption. Any determination or finding of the zoning administrator shall be presumed to be correct until evidence is introduced which would support a contrary determination or finding.

These ordinances require only that a party appealing the zoning administrator's decision introduce evidence before the board that the decision was erroneous. Thus, in this C.R.C.P. 106(a)(4) action, the board's decision must be affirmed unless there is no competent evidence in the record before the board to support its conclusion that the zoning administrator's decision was arbitrary or capricious. See Krupp v. Breckenridge Sanitation District supra. Alternatively, the board's decision may be reversed if it applied an erroneous legal standard. See Puckett v. City & County of Denver, supra.

Plaintiffs argue on appeal that the board applied an erroneous legal standard by reviewing the zoning administrator's decision de novo and that the board's decision was arbitrary and capricious because neighbor introduced no evidence of error by the zoning administrator. We disagree with both contentions.

A.

Sections B1.19-7 and 59-54 of the code expressly provide that the board has all the powers of the officer or department from whom the appeal is taken. In effect, the board steps into the shoes of the zoning administrator because it is granted the power to do that which ought to have been done in the first place. The board's review therefore is de novo.

We do not read the presumption of correctness of the zoning administrator's decision under § 59-55(f) as creating a more stringent standard of review for the board, akin to that contained in C.R.C.P. 106(a)(d4) for review by the court. To do so would be inconsistent with the plain and unambiguous language in §§ B1.19-7 and 59-54 and would enlarge the limitation provided in § 59-55(f) beyond that actually written. Seq, eg., Jones v. Martinez, 799 P.2d 385 (Colo.1990)(when statute is clear and unambiguous, judicial construction is unwarranted, and statute must be enforced as written); State Board of Equalization v. American Airlines, Inc., 773 P.2d 1033 (Colo.1989)(same); see also Catholic Archdiocese v. City & County of Denver, supra (refusing to read more restrictive interpretation into ordinance than that written).

Rather, the presumption in § 59-55(f) allocates the burden of proof to the party appealing to the board. The zoning administrator initially determines whether the project complies with the zoning ordinances and regulations. Then § 59-55(F) shifts the burden to an appealing party to provide to the board evidence that, as applicable here, an approved use in fact did not satisfy the zoning requirements. The presumption in § 59-55(f) that the zoning administrator's decision is correct "until evidence is introduced which would support a contrary determination or finding" supports this conclusion. Permitting the introduction of evidence supporting a contrary finding is meaningless if the zoning administrator's decision must be affirmed on a mere showing that competent evidence supports it.

Plaintiffs rely on City of Colorado Springs v. Givan, 897 P.2d 753 (Colo.1995), in support of their position that the zoning administrator's decision must be affirmed if supported by competent evidence. However, that case is inapposite because the legislation there expressly provided that the reviewing administrative authority apply the same standard of review as specified in C.R.C.P. 106(a)(4). The supreme court, on C.R.C.P. 106(a)(4) review, therefore was in the same position as the reviewing administrative authority and so could review directly the initial decision from which the appeal was taken.

In this case, however, neither § 59-55(F) nor any other ordinance cited by plaintiffs expressly provides for board review by the same competent evidence standard found in C.R.C.P. 106(a)(4). Thus, because we are not in the same position as the board was in its review, we may not "pierce the administrative hierarchy" and review directly the zoning administrator's decision to determine whether it was supported by competent evidence. Givan does not mandate that the board apply a competent evidence standard where there is no express statutory requirement that it do so.

The board therefore appropriately applied a de novo review to the zoning administrator's decision.

B.

Having concluded that the board applied an appropriate standard of review, we review the record before the board and find ample competent evidence supporting its findings and conclusions.

In its written decision, the board concluded that "a desire to encourage development in the area should [not] lead to neglect of clear technical requirements, such as the process of measurement set out at Section 59-2(28.5) D.R.M.C." Later, the board elaborated:

The Board finds that the Zoning Administrator's order was in error.
The Board finds that it is the intent of the PRV zoning district to allow flexibility, but this flexibility is not meant to cireumyvent the code as a whole. The Administrator erred in not following the Code's technical requirements, which were clearly described in the subarea requirements set out in the PRV district Code section, as well as in the neighborhood plan, and in certain specific sections of the code (e.g., in the measurement of building heights as described at Section 59-2(28.5) D.RM.C. and at Sections 59-494, 59-499, 59-502(a) and 502E D.R.M.C.).

The board also expressly found that the proposed height of the development was sixteen feet taller than code requirements and that the zoning administrator improperly calculated height measurements without reference to § 59-2(28.5), and the board concluded that "it was thus an error for Zoning to have issued such a permit."

Further, the board found that "[bloth the PRV subarea code and the neighborhood plan call for low density residential development, with a density of 14.5 units per acre. The proposed project would have a density of approximately 22 units per acre. ..." Finally, the board regarded as error the zoning administrator's promotion of the goals of flexibility in the PRV code section at the expense of the guidelines in the neighborhood plan. These findings sufficiently satisfy the requirements of § 59-55(b) and (f) that the appealing party provide evidence of the zoning administrator's error and the board make findings of fact.

The board's findings and conclusions are supported by the record. Several witnesses testified regarding height and density requirements, and both developer and the zoning administrator admitted that they did not follow the height measurement requirements of § 59-2(28.5). The zoning administrator also admitted that he chose to promote flexibility in residential development ahead of adherence to the neighborhood plan requirements, despite Denver Rev. Mun.Code 59-5025.10.(b), which states that developments "shall match existing residential building heights" (emphasis added). Accordingly, § 59-5026.10.(b) provides a reasonable basis for the board's interpretation that the PRV zoning district's allowance for flexibility may not cireumvent the code's technical requirements as a whole, and we defer to the board's construction. See Wilkinson v. Board of County Commissioners, supra; Platte River Environmental Conservation Organization, Inc. v. National Hog Farms, Inc., supra.

The district court's judgment is reversed, and the case is remanded for entry of judgment affirming the board's decision.

Judge NEY and Judge DAILEY concur.


author: Judge METZGER.

text:
    KELLER CATTLE CO., a Kansas corporation, Plaintiff-Appellant, v. Stephen R. ALLISON, a/k/a S.R. Allison, Defendant-Appellee.
    No. 00CA1118.
    Colorado Court of Appeals, Div. I.
    Aug. 1, 2002.

      Phillip D. Barber, P.C., Phillip D. Barber, Denver, Colorado, for Plaintiff-Appellant.
    Pendleton, Friedberg, Wilson & Hennes-sey, P.C., Alan C. Friedberg, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge METZGER.

In this action concerning a nonparticipating royalty interest in oil and gas, plaintiff, Keller Cattle Co., appeals the summary judgment entered in favor of defendant, Stephen R. Allison. We affirm in part, reverse in part, and remand the case for further proceedings.

On May 3, 1972, Allison and his wife (since deceased), as sellers, and Keller's predecessors, as buyers, entered into a specific performance contract for the purchase and sale of a 6,200-acre ranch in Yuma County. The contract provided:

Sellers reserve 1/2 of royalties now owned by sellers. Also reserve 1/2 of royalties reverting back to ranch in 1973. Such reservations will expire 7-11-97.

On May 30, the parties met again and executed an "Amendment to Contract," which set out who would keep certain abstracts of title and described the allocation of certain rentals under an existing oil and gas lease. After Keller's predecessors had left the meeting, Allison and his attorney prepared and executed the warranty deed. The royalty reservation stated:

As to any oil, gas or other mineral rights, whether metallic or nonmetallic, now owned by the Sellers, including reservations, in, on, or under the above-described property, said Sellers expressly except[sl and reserve[s] an undivided 1/2 of the 1/8 royalty interest in and to all 8/8 of such oil, gas and other minerals now owned by said Sellers, in, on and under and that may be produced and saved from the lands herein-above described, to be delivered to the credit of said Sellers herein, free and clear of all costs into pipe line or other receptacles into which said oil, gas or other minerals are delivered. Provided, however, that in the event the royalty interest provided for in any future leases shall be greater or less than 1/8, said Sellers shall own and hold and be entitled to receive an undivided 1/2 of said royalty interest and of any production bonuses, overriding royalties and other payment out of production that may be provided for the benefit of the holder of the exclusive leasing privilege. This conveyance includes all water and water rights of the Grantors.

In 1998, Keller requested that Allison execute a document verifying that his royalty reservations would expire on July 1, 1997. Allison refused to do so.

Keller then filed this action in 1999 for a declaratory judgment that the language of the contract controlled over the language of the deed, for reformation of the deed, and for damages for breach of contract and unjust enrichment. In the alternative, Keller asked the trial court to interpret the royalty provision in the deed as a perpetual, nonparticipating royalty interest, which either was void under Colorado law or which served to create a fee mineral interest in the property of 6.25%.

Allison moved for summary judgment, arguing that the doctrines of merger and lach-es precluded entry of judgment for Keller on the declaratory judgment and unjust enrichment claims. Keller's response presented legal argument and evidence in opposition. Allison replied to the response, raising for the first time a statute of limitations defense to the breach of contract claim and supplying an affidavit from a previously undesignated expert. Keller moved to strike the affidavit, but the trial court entered summary judgment for Allison four days later without ruling on Keller's motion or giving Keller an opportunity to respond to the new argument raised in Allison's reply. The court held:

The Court agrees with [Allison] that, even if there is a factual dispute with reference to the question of whether the parties' intention as stated in their contract of purchase and sale was represented correctly in the parties' deed, the doctrine of laches and the statutes of limitation bar this action. As to the declaratory judgment claim, the Court agrees with [Allison] that, as a matter of law, nonparticipating royalty interests were valid at the time of the contract and deed involved in this case.

L.

Keller contends the trial court erred in granting summary judgment in favor of Allison on the basis that the doctrine of laches barred its equitable claims. We agree.

Summary judgment is a drastic remedy, appropriate only if the pleadings and supporting documents demonstrate both that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The moving party bears the burden of establishing that no genuine issue of material fact exists, and any doubts in this regard must be resolved against it. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988). All doubts concerning the existence of a triable factual issue must be resolved against the moving party, and the nonmoving party has the benefit of all favorable inferences that could be drawn from the facts. Van Alstyne v. Housing Authority, 985 P.2d 97 (Colo.App.1999). Our review of a summary judgment is de novo. Continental Air Lines, Inc. v. Keenan, 731 P.2d 708 (Colo.1987).

The doctrine of laches permits a court to deny a party equitable relief. Manor Vail Condominium Ass'n v. Town of Vail, 199 Colo. 62, 604 P.2d 1168 (1980). The elements of laches are: (1) full knowledge of the facts; (2) unconscionable or unreasonable delay in the assertion of an available remedy; and (8) intervening reliance by and prejudice to another. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo.1996). Whether the elements of laches have been established is a question of fact. Montezuma County Department of Social Services v. Laner, 937 P.2d 908 (Colo.App.1997). A party asserting laches as a basis for summary judgment must establish that no genuine issue of material fact remains, that the other party unreasonably delayed the proceedings, and that such delay caused substantial prejudice. See Cullen v. Phillips, 30 P.3d 828 (Colo.App.2001).

Here, as the trial court noted, genuine issues remain concerning the parties' intent. There is a real question whether Keller had "full knowledge" of the facts and their effect. For example, while Keller's predecessors received a copy of the deed in 1972 shortly after Allison had signed it, they also had a copy of the specific performance contract, which limited Allison's right to royalties to a twenty-five-year period. Because laches is not applicable to a party who has no duty to act, of City of Thornton v. Bijou Irrigation Co., supra, Keller asserts that nothing was required to be done for twenty-five years until the royalty limitation in the contract came due and that Allison has not shown that Keller had "full knowledge" of the significance of the factual discrepancy between the deed and the contract. These considerations militate against the entry of summary judgment.

Additionally, we note that the deed does not contain a merger clause and that it was executed by Allison alone shortly after he and Keller's predecessors had signed the "Amendment to Contract" and they had left.

Allison stated he did not agree to a limitation on the duration of the royalty interest and that, when he discovered the twenty-five, year term in the contract, he obtained Keller's predecessors' agreement to remove it. Keller denied any such agreement and pointed to Allison's contradictory statement that he unilaterally instructed "his lawyer" (who was representing both parties) to delete the limitation in drafting the deed. The lawyer did so, but did not inform Keller's predecessors.

Additionally, the purpose and significance of the 1981 Stipulation of Interest, arguably concerning only an unrelated five percent royalty interest on the property in the 1980s, are hotly disputed.

Consequently, because several genuine issues of material fact remain concerning the first element of laches-full knowledge of the facts and their significance-the entry of summary judgment is precluded.

Similarly, the issues surrounding the see-ond element of laches-whether any delay by Keller's predecessors was unconscionable or unreasonable-remain in dispute.

The length of time elapsed alone is not sufficient to establish laches. Warren v. Adams, 19 Colo. 515, 86 P. 604 (1894). What is or is not an unreasonable delay is a question of fact, Falls v. Lahmer, 157 Colo. 521, 404 P.2d 542 (1965), that is dependent upon the circumstances of each case. Duncan v. Colorado Investment & Realty Co., 116 Colo. 12, 178 P.2d 428 (1947).

As we have noted, the parties do not agree when Keller's predecessors become aware of the discrepancy between the contract and the deed. Allison argues that this awareness occurred in 1972, shortly after Keller's predecessors received the recorded deed. Keller denies this assertion and, relying on the rule announced in Hooper v. Capitol Life Insurance Co., 92 Colo. 376, 20 P.2d 1011 (1933), maintains that its predecessors were entitled to presume that the deed was consistent with the contract. Keller also points to Falls v. Lahmer, supra, which held that a twelve-year delay in bringing suit on a discrepancy between a contract and a deed did not constitute laches.

Given these polar litigation positions and the numerous factual disputes surrounding them, the trial court's determinations that a delay existed and that that delay was uncon-seionable cannot stand.

For similar reasons, we conclude that it is questionable at best whether Allison has demonstrated the third element of laches-intervening reliance by and prejudice to another. While it is true that some witnesses have died and others have only dim recollections of the events in 1972, other witnesses, including Allison himself, are still available or have made statements about the intent of the parties at the time of the transaction.

Additionally, laches "is not available to one whose position is not changed by virtue of delinquencies on the part of the opposing party." Seaton-Hayden Mines Co. v. Renshaw, 101 Colo. 342, 345, 73 P.2d 999, 1000 (1937). We note that Allison has received his fifty percent royalties for the twenty-five years from 1972-1997 and evidently is still receiving them.

Consequently, because several genuine issues of material fact remain and because all doubts as to the existence of a triable factual issue must be resolved against Allison, the entry of summary judgment was error.

IL

Keller next contends the trial court erred in granting summary judgment on its breach of contract claim on the basis of the statute of limitations. Again, we agree.

Statutes of limitation are enacted to promote justice, discourage unnecessary delay, and forestall prosecution of stale claims. Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094 (Colo.1996). Whether the statute of limitations bars a particular claim is usually a question of fact. See Bad Boys of Cripple Creek Mining Co. v. City of Cripple Creek, 996 P.2d 792 (Colo.App.2000).

Allison raised the statute of limitations argument for the first time in his reply to Keller's response to his summary judgment motion. The trial court entered judgment only four days later, and Keller had no opportunity to respond to the reply. Because the argument was untimely raised and Keller was not given an opportunity to counter it, to the extent the summary judgment was granted on that basis, it must be reversed. See Union Insurance Co. v. Kjeldgaard, 775 P.2d 55 (Colo.App.1988).

IIL

Because the issue may arise on remand in the event it is determined that the reservation in the deed controls, we must determine the nature of the interest in the deed and whether its creation here was legally permissible. Keller argues the trial court erred in ruling, as a matter of law, that nonparticipating royalty interests were valid in 1972 when the contract and deed were signed. We find no error.

A nonparticipating royalty is an expense-free interest in oil or gas, if, as, and when produced. The owner of the royalty interest does not share in bonus or rental, nor in the right to execute leases or to explore and develop. This royalty interest is in contrast to a mineral interest, which is the property interest created in oil and gas after a severance by mineral deed or by oil and gas lease. The duration of a mineral interest is like that of common law estates, namely, in fee simple, in fee simple determinable, for life, or for a fixed term of years. The prime characteristic of a mineral interest is the right to enter the land to explore, drill, produce, and otherwise carry on mining activities. 1B Krendl, Colorado Methods of Practice § 9.2 (1997).

Keller relies on Simson v. Langholf, 133 Colo. 208, 293 P.2d 302 (1956), and Corlett v. Cox, 138 Colo. 325, 333 P.2d 619 (1958), which can be read to hold, as a rule of property law and not as a matter of construction, that when a person holds the right to the profits or a share of the profits that a mineral fee estate might yield, that person owns a portion of the mineral fee estate itself, However, these decisions seem to rely on a rule described as one of "considerable antiquity":

Under the feudal law, the whole beneficial interest in land consisted in the right to take the rents and profits thereof, and accordingly the general rule has always been, in the language of Coke, that "if a man seised of land in fee by his deed granteth to another the profits of those lands, to have and to hold to him and his heirs, and maketh livery secundum for-mam chartae, the whole land itself doth pass. For what is the land but the profits thereof?"

W.W. Allen, Annotation, What Constitutes Oil or Gas "Royalty", 4 AL.R.2d 492, 495 n. 9 (1949).

In virtually all jurisdictions, the current view is that the legal principle enunciated by Lord Coke is merely a rule of construction, which will not control or override an intention to the contrary expressed in the language of the document under consideration. See Richard W. Hemingway, The Law of Oil and Gas § 2 (3d ed.1991); see also Davis v. Hardman, 148 W.Va. 82, 133 S.E.2d 77 (1963).

In any event, we conclude Simson and Corlett are distinguishable from the cireum-stances here. In both those cases, no mineral leases existed on the properties at the time of the relevant conveyances. Here, in contrast, the property had at least one outstanding mineral lease when the 1972 deed was executed.

Further, the most basic rule of construction dictates that the intent of the parties is the paramount factor to be determined in any agreement. The conveyance here clearly entailed a transfer of approximately 6200 acres of land and also contemplated Allison's reservation of nonparticipating royalties in existing oil and gas leases. The contract provided that the royalty reservations would expire on July 1, 1997, but the deed contained no such time limitation. Thus, the discrepancy concerned only the duration of Allison's royalty interest, not the nature of his interest.

In contrast, in Simson v. Langholf, supra, the parties intended that a fee interest be transferred. The opinion noted the grantor's testimony that "he didn't understand the difference between royalty and ownership; and that to him they meant the same thing," and the grantee's testimony that the grantor "sold him 49% of the oil and gas on the property." Simson v. Langholf, supra, 133 Colo. at 212, 293 P.2d at 305.

In Corlett v. Cox, supra, 138 Colo. at 331, 333 P.2d at 622, the court emphasized that the reservation of the oil and gas was explicitly "a part payment of said land." No such explicit quid pro quo appears in either the contract or the deed here.

Consequently, Keller's reliance on such uncertain and distinguishable authority is misplaced.

Moreover, we note that the decision in Mull Drilling Co. v. Medallion Petroleum, Inc., 809 P.2d 1124 (Colo.App.1991), expressly recognizes that in Colorado the owner of a mineral interest has a right to convey the executive right to lease such an interest. Although the precise question here, namely, whether a nonparticipating royalty interest existed in Colorado before 1991, was not raised in Mull Drilling, the opinion of logical necessity assumed that it was permissible to split the mineral fee estate.

We are also unpersuaded by Keller's argument that the General Assembly's 1991 passage of § 38-80-107.5, C.R.S.2001, evidenced a change in the law. That statute expressly permits the creation of a nonparticipating royalty interest. See F. Erisman & D.G. Ebner, Grant or Reservation of Royalty Interests in Colorado: Senate Bill 91-84, 20 Colo. Law. 1198 (June 1991). While we recognize that enactment of a statute may evidence a change in the law, such is not always the case.

The pertinent legislative history indicates that a wholesale change in the law pertaining to oil and gas royalties was not contemplated by the General Assembly. In testimony before the House Committee on Agriculture, Livestock, and Natural Resources, David Eb-ner, then chairman of the Mineral Law Seetion of the Colorado Bar Association, introduced his discussion of the bill later enacted as § 38-30-107.5 by saying:

This legislation actually was drafted by members of this section to resolve a problem that has troubled us for quite some time-very simply as we all know it is possible for different people to own the surface and the minerals in a piece of property. One question is, if you do own minerals and not the surface of the property is it also possible to further separate the ownership so that one party can own a right to proceeds of production, a royalty, but not have right to lease the property or otherwise cause it to be developed. In every state in the union, that answer is yes, except possibly in Colorado where some confusing case law makes it impossi-bie for a lawyer to tell a client definitively-yes, it may be done here. So in order to provide landowners greater flexibility for dealing with their property we are suggesting that the laws specifically recognize that such an interest is possible which will make the law in Colorado uniform with the law in the other 49 states.

Hearings on S.B. 34 before the House Committee on Agriculture, Livestock, and Natural Resources, 58th General Assembly, First Session (Feb. 27, 1991). These statements reflect an intent only to clarify disagreements about the state of the law in Colorado, not to change it.

The questionable applicability of Simson v. Langholf, supra, and Corlett v. Cox, supra, to the facts here, and the legislative history of § 38-30-107.5, cause us to hold that the interest described in the deed is a nonparticipating royalty interest in oil and gas and that it was legally permissible to create such an interest in 1972.

IV.

In light of its entry of summary judgment for Allison, the trial court did not rule whether the doctrine of merger barred Keller's claims or whether the deed must be reformed to conform to the terms of the contract. Because we have reversed the summary judgment, the trial court should revisit those issues on remand.

The judgment is affirmed to the extent it determined that creation of a nonparticipating royalty interest was legally permissible. The judgment is reversed in all other respects, and the case is remanded for further proceedings.

Judge DAVIDSON and Judge ROY concur.