author: Judge ROY.

text:
    In the Matter of the ESTATE OF Sophie H. SCOTT and William C. Scott, Deceased. Mark A. Scott, Petitioner-Appellee, v. Samuel C. Scott, Respondent-Appellant.
    No. 02CA0820.
    Colorado Court of Appeals, Div. III.
    Aug. 14, 2003.

      Sims & Boster, C. Garold Sims, Frank W. Suyat, Denver, Colorado, for Petitioner-Ap-pellee.
    Hamil/Hecht LLC, J. Lawrence Hamil, Fred Furst, Denver, Colorado, for Respondent-Appellant.
   Opinion by

Judge ROY.

This appeal is from an order granting a preliminary injunction requested by the petitioner, Mark Seott (grandchild) enjoining Samuel Scott (trustee) from taking other than ministerial actions in the administration of the Spousal Trust. We affirm.

In 1991, William Scott (husband) and Sophia Scott (wife) executed a trust agreement. William Scott executed the agreement individually and trustee executed it as guardian and conservator for Sophia Seott. Trustee and husband were designated trustees. Simultaneously with the execution of the trust, husband also executed his Last Will and Testament. Trustee is the only child of husband and wife.

The trust agreement created three trusts, a Family Trust, a Spousal Trust, and a Generation Skipping Trust. The Family Trust and the Generation Skipping Trust are not at issue here, but a discussion of the Family Trust is required.

The Family Trust terminates May 80, 2015, and the trust assets are then to be distributed to husband's and wife's grandchildren.

The Spousal Trust exists for the life of the surviving spouse, who holds a testamentary general power of appointment. If the power of appointment is not exercised, the assets of the Spousal Trust pour over into the Family Trust.

Upon wife's death in 1992, the Family Trust was funded with her property and a portion of husband's property. The Spousal Trust was funded with the balance of husband's property.

Husband's Last Will and Testament left his residuary estate in accordance with the provisions of the trust and specifically declined to exercise any power of appointment. In 1994, husband executed a First Codicil to his will in which he exercised the testamentary general power of appointment and appointed a portion of the trust necessary to render his estate tax free to a foundation. He did not, however, disturb the distribution of the residual estate to the Family Trust.

In 1997, husband executed a Second Codicil in which he exercised the testamentary general power of appointment, and, as pertinent here, appointed the residuary to remain in trust for the life and benefit of trustee with the power to invade the principal for the health, maintenance, education, and support of trustee. Upon the death of trustee, the property is to continue in a discretionary trust for the life of husband's grandchildren and then to his descendants by representation.

To make a long story short, if the First Codicil controls, the Spousal Trust terminates on husband's death and its assets are transferred to the Family Trust for ultimate distribution to the grandchildren in 2015; but, if the Second Codiecil controls, the assets of the Spousal Trust remain in trust for the life and benefit of trustee with the power to invade the principal for his health, maintenance, education, and support, and then to a discretionary trust for the life of husband's grandchildren, and finally to husband's de-seendants by representation.

Upon husband's death in 2000, grandchild filed a probate proceeding seeking probate of husband's will and the First Codicil to that will. Trustee then petitioned for probate of the Second Codicil. Grandchild commenced this action against trustee seeking an accounting, damages, disgorgement, and removal of trustee from both trusts.

The probate court bifurcated the case by trust. With respect to the Family Trust, the probate court removed trustee and appointed an independent trustee to prepare an accounting and report. With respect to the Spousal Trust, the probate court concluded that trustee had breached his duty to maintain accounts, found that trustee was liable for his misfeasance and should be surcharged for any loss caused to the beneficiaries of the trust, froze the trust assets, and "enjoined" trustee from performing other than ministerial duties until the determination of which codicil controls the distribution of that trust's assets. The order with respect to the Spousal Trust is before us on appeal.

The parties have informed us that the probate court subsequently denied probate of the Second Codicil and that matter is being appealed separately.

I.

We initially address grandchild's assertion that this appeal is moot because of the later determination that the Second Codicil is invalid. We disagree.

Grandchild argues that, because the Second Codicil was declared invalid and denied probate, there is no ongoing Spousal Trust for trustee to administer as the assets of the Spousal Trust flow immediately into the Family Trust, which is now administered by an independent trustee. Thus, an injunction is no longer necessary and the appeal is moot.

The central consideration in determining whether an action is moot is whether a change in the cireumstances that prevailed at the beginning of litigation has forestalled the prospect for meaningful relief. Zoning Bd. of Adjustment v. DeVilbiss, 729 P.2d 353 (Colo.1986). An issue raised on appeal is not moot unless the appellate court's resolution of it would have no practical legal effect upon an existing controversy. Prefer v. Pharm NetRx, LLC, 18 P.3d 844 (Colo.App.2000).

The probate court has not yet ordered the transfer of the assets of the Spousal Trust to the Family Trust. Nor has it appointed an independent trustee to administer what was formerly the Spousal Trust for the purpose of winding up the affairs of the Spousal Trust. Therefore, trustee still remains in office, albeit with limited powers. For this reason, the restriction on trustee's actions may still be necessary.

Accordingly, we conclude that the case is not moot.

IL.

We next address trustee's assertion that the probate court erred by disregarding the presumptive validity of the Second Codicil. Specifically, he argues the probate court erred in determining that the Second Codicil was insufficient without probate to constitute an exercise of the general power of appointment. We disagree.

Trustee relies, in part, on § 15-15-101(1), C.R.$.2002, which provides:

A provision for a nonprobate transfer on death in [a] ... trust ... is nontestamen-tary. This subsection (1) includes a written provision that:
(c) Any property controlled by or owned by the decedent before death which is the subject of the instrument passes to a person the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later. (emphasis added)

Trustee argues that property outside of the probate estate, such as a trust, is nontestamentary property and is not subject to administration under applicable laws relating to decedent's estates. We agree with that proposition so far as it goes.

The Restatement (Third) of Prop.: Wills and other Don. Trans. § 1.1(a) at 6 (1999), states:

A decedent's 'probate estate' is the estate subject to administration under applicable laws relating to decedent's estates. The probate estate consists of property owned by the decedent at death and property acquired by the decedent's estate at or after the decedent's death.

With respect to "own" the Restatement goes on to state:

Actual ownership, not ownership in substance, is required [to be a part of the probate estate]. The actual ownership must also be beneficial ownership. Non-beneficial ownership, such as that held by a trustee, is not sufficient.
Ownership in substance refers to property that the decedent did not own but over which the decedent had sufficient control, such as through a power to become the owner, to be treated as the owner for some purposes, such as the federal estate tax or the spouse's elective share. Thus, property subject to a revocable trust is part of the decedent's gross estate for purposes of federal estate tax and is subject to the spouse's elective share, but is not part of the decedent's probate estate. The same applies to property in a trust over which the decedent had a general power of appointment. ... Of course, if the decedent exercised the general power in favor of his or her own estate ... [the property is] part of the decedent's probate estate.

Restatement, supra, cmt. b at 7.

Thus, the trust assets are not a part of the probate estate and, but for the requirement that the general power of appointment be exercised by will, no probate would be required on this account.

However, trustee further argues that because the Second Codieil distributes property held in a trust, it is not distributing property owned by husband, the property is not part of the probate estate, and the instrument making the distribution need not meet the formalities required for a will and need not be probated. While the argument has merit under other cireumstances, here it is not persuasive on the latter point.

Trustee's argument overlooks the fact that the trust agreement expressly provides that the power of appointment must be exercised by will, a testamentary instrument, and ignores the implications of § 15-12-102, C.R.S. 2002, which requires that "to be effective to prove the transfer of any property or to nominate an executor, a will must be declared to be valid by an order of informal probate by the registrar, or an adjudication of probate by the court. ..."

In addition, trustee's argument confuses the assets of the Spousal Trust with the means by which husband must exercise his general power of appointment. One of the obvious purposes of granting a testamentary power of appointment is to ensure that the assets subject to the power will be available for the support of the surviving spouse throughout his or her life.

We are not persuaded by In re Meyer, 195 Ariz. 336, 987 P.2d 822 (Ariz.App.1999), in which, the trustee intended to distribute the assets in the trust in accordance with a default distribution contained in the trust instrument because he had not been notified, as the trust required, of the exercise of the power within three months of death. The court construed and applied a statute identical to § 15-15-101(1)(c), and held that the statute obviated probate of a will in which a testamentary limited power of appointment was exercised. As pertinent here, the Meyer court held that, because the statute permits the power of appointment to be exercised in the original instrument or by separate writing including a will, the will is sufficient to exercise the power even if it is not probated. We construe the statute differently.

In our view, the statute is not intended to expand the means by which a testamentary power of appointment may be exercised, nor does it obviate the requirement that a testamentary instrument be probated. The statute merely makes it clear that the exercise of a power of appointment in a will does not make the transfer testamentary, nor does it make the transferred asset a part of the probate estate.

Therefore, we reject trustee's argument that § 15-15-101(1) controls and that the Second Codicil does not need to meet the formalities and requirements for wills nor be probated.

We conclude that when, as here, the trust instrument provides that a power of appointment may only be exercised in a will, the instrument exercising the power must satisfy the statutes relating to wills and be probated in order to exercise and implement the power of appointment.

IIL.

Finally, trustee argues that grandchild failed to establish grounds for a preliminary injunction and thus the probate court erred in entering an injunction against trustee. We perceive no reversible error.

Here, the probate court ordered that the remaining assets of the Spousal Trust may not be distributed, moved, sold, or encumbered until further order of court. Relying on Rathke v. MacFarlane, 648 P.2d 648 (Colo.1982), the probate court further ordered that trustee was prohibited from engaging in any transactions involving the assets of the Spousal Trust other than those which are purely ministerial and necessary to maintain and protect the trust assets. We conclude the probate court had adequate authority to limit trustee without the necessity of resorting to, and satisfying the requirements of, injunctive relief under Rathke v. MacFarlane, supra.

The parties agree that the probate court has authority to freeze the assets of the trust,. The probate court has jurisdiction to determine "every legal and equitable question arising in connection with decedents' ... estates, so far as the question concerns any person ..." Section 18-9-108(8), C.R.S.2002. In addition, the probate court has jurisdiction to determine "every legal and equitable question arising out of or in connection with express trusts." Section 13-9-108(5), C.R.S. 2002.

Moreover, probate courts have the authority to administer the internal affairs of trusts. They have authority over the administration and distribution of trusts, the declaration of rights, and the determination of other matters involving trustees and benefi-claries of trusts. See § 15-16-201, C.R.S. 2002. This authority includes instructing trustees, § 15-16-201(1)(c), to take "actions not expressly within, or even forbidden by, the terms of the trust if necessary to accomplish the purpose of the trust." In Re Matter of First Interstate Bank, 767 P.2d 792, 796 (Colo.App.1988).

The goal of the probate court in entering the orders was to preserve the status quo and not to permit any further depletion of the Spousal Trust until it determined the proper distribution of the trust. Thus, it was necessary for the probate court to order trustee to refrain from taking any further action, other than administrative, with the trust's assets.

We further agree with grandchild that, while the probate court's order sounds in injunction and relies on authority relating to injunctive relief, the probate court does not need to resort to injunctive relief. We conclude that the probate court had the authority, in the appropriate cireumstances, to instruct trustee to act or not act to carry out the court's goal in the administration of such trust without relying on C.R.C.P. 65. See § 15-16-201(1)(c); see also Mitchem v. First Interstate Bank, 802 P.2d 1141 (Colo.App.1990).

Moreover, the probate court found with record support that trustee had breached his fiduciary duties, by misleading the Internal Revenue Service about certain transactions, by failing to submit accountings of his activities; and, after the death of husband, by making several suspect distributions to himself. Accordingly, we conclude that the probate court did not abuse its discretion in ordering trustee to refrain from removing assets from the trust.

The order is affirmed.

Judge MARQUEZ and Judge DAILEY concur.


source: Caselaw Access Project

author: Judge CASEBOLT.

license: Public Domain

text:
    CONTINENTAL WESTERN INSURANCE COMPANY, Plaintiff-Appellant, v. HERITAGE ESTATES MUTUAL HOUSING ASSOCIATION, INC., Defendant-Appellee.
    No. 02CA1111.
    Colorado Court of Appeals, Div. II.
    Aug. 14, 2003.

      Campbell Latiolais & Ruebel, P.C., Colin C. Campbell, Denver, Colorado, for Plaintiff-Appellant.
    Fagre & Benson, LLP, Russell 0. Stewart, Marie E. Williams, Denver, Colorado, for Defendant-Appellee.

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

   Opinion by

Judge CASEBOLT.

In this insurance coverage proceeding, plaintiff, Continental Western Insurance Company, appeals the order awarding attorney fees to defendant, Heritage Estates Mutual Housing Association, Inc. We reverse.

Continental issued property and liability insurance to Heritage for an apartment building that Heritage owned. Heritage submitted a claim under the property insurance coverage for cleanup costs incurred to remediate apartments that required bioha-zard decontamination and restoration. Contending that the policy's pollution exclusion precluded coverage, Continental instituted a declaratory judgment action seeking a declaration that coverage was not available. Heritage counterclaimed for declaratory judgment and breach of contract based on Continental's failure to pay the claim.

Upon stipulated facts and cross-motions for summary judgment, the trial court con-eluded that the pollution exclusion was inapplicable and found that coverage was available. The parties subsequently reached an agreement on the amount to be paid under the policy.

Heritage then filed a motion seeking recovery of its attorney fees, asserting authorization under the insurance policy language and § 10-8-1104(1)(D)(VID), C.R.8.2002. Following a hearing, the trial court determined that an award of attorney fees was appropriate under Huizar v. Allstate Insurance Co., 32 P.3d 540 (Colo.App.2000)(Huizar I), and § 10-3-1104(1)(h)(VII). This appeal followed.

I.

Continental contends that the trial court erred in awarding attorney fees. Specifically, Continental argues that because the supreme court reversed Huizar I in Allstate Insurance Co. v. Huizar, 52 P.3d 816 (Colo.2002)(Huizar II), decided after the appeal here was filed, and because attorney fees are not authorized under the insurance contract or the cited statute, the trial court incorrectly awarded fees. We agree.

In the absence of an express statute, court rule, or private contract to the contrary, attorney fees generally are not recoverable by the prevailing party in a contract or tort action. This reasoning is based on the so-called American Rule, which requires each party in a lawsuit to bear its own legal expenses. Bernhard v. Farmers Ins. Exch., 915 P.2d 1285 (Colo.1996).

As noted, the parties may agree otherwise by express provision in their contract. Agritrack, Inc. v. DeJohn Housemoving, Inc., 25 P.3d 1187 (Colo.2001). Determining whether the contract provides for attorney fees presents a question of interpretation of the insurance policy, which we review de novo. Huizar II, supra; Cruz v. Farmers Ins. Exch., 12 P.3d 307 (Colo.App.2000).

Insurance policies are contracts that must be construed according to their plain meaning and the well-settled principles of contract interpretation. Chacon v. Am. Family Mut. Ins. Co., 788 P.2d 748 (Colo.1990). Strained construction of the contract terms should be avoided. Allstate Ins. Co. v. Starke, 797 P.2d 14 (Colo.1990).

Here, the insurance policy provides two distinct types of coverage, for liability and property, and separates them into different forms and sections. The property coverage form obligates the insurer to pay first-party claims, that is, claims by the insured, for physical loss or damage to the insured's own property. The liability form obligates the insurer to defend and pay those sums the insured becomes legally obligated to pay as damages because of bodily injury or property damages sustained by third parties.

The only policy language that would authorize attorney fees is found under the liability coverage. As pertinent here, that coverage provides:

In addition to the Limit of Insurance, we will pay, with respect to any claim or "suit" we defend:
(4) All reasonable expenses incurred by the insured at our request to assist us in the investigation or defense of the claim or "suit" ....

For a number of reasons, we conclude that this language does not entitle Heritage to an award of attorney fees.

First, as noted above, the provision is found in the liability portion of the policy. When a contract is organized into separate parts, a provision or definition found in one part of the contract is not necessarily intended to apply to other parts. See Huizar II, supra, 52 P.3d at 819. Here, Heritage sought coverage for cleanup costs under the property coverage portion of the policy, which contains no provision addressing payment of the insured's attorney fees.

Second, the term "Hability insurance" generally refers to the insured's Hability to a third party. See Huizar II, supra, 52 P.3d at 820 (liability insurance is an agreement to cover a loss resulting from one's liability to a third party, and the insured's claim under the policy arises once the insured's liability to a third party has been asserted). Because Heritage was not Hable to a third party for damages, but rather sought coverage on its own first-party claim, the attorney fee provision found in the liability coverage does not apply.

And third, the policy provision specifically states that it applies only to instances in which Continental must defend a claim or suit and for which it seeks the assistance of Heritage. A common sense reading leads to the conclusion that the provision applies only when Continental is defending Heritage against a third-party claim or suit.

This result is consistent with the supreme court's analysis in Huizar II. There, the court observed that language obligating the insurance company to pay "other reasonable expenses incurred at [the insurer's] request" was found only in the liability coverage form, and nothing in either the context or specific language of the insurer's promise to defend and pay reasonable expenses suggested any intent for it to apply beyond the part of the contract in which it was found. The policy language here and its placement in the liability portion of the policy are substantially similar to the policy analyzed in Huizar II.

Heritage nevertheless asserts that, because it filed counterclaims, Continental was required "to defend" against those claims and Heritage incurred expenses related to that defense. We reject this contention.

The notion that in this suit Heritage incurred expenses pursuant to Continental's "request to assist [Continental] in the investigation or defense of the claim or suit" is a strained construction at best. Heritage did not assist Continental in this suit, nor did Continental request Heritage's assistance. To interpret that provision to apply when Continental is "defending" a counterclaim brought by its own insured would be an absurd interpretation, which we must avoid. See Huizar II, supra.

Accordingly, because the insurance contract does not contain any applicable express exception to the well-established rule that each party must bear its own legal expenses, Heritage is not entitled to attorney fees based on the contract language.

IL.

Heritage asserts that § 10-3-1104(1)(L)(VII), a provision of the Unfair Competition Deceptive Practices Act (UCD-PA), provides an independent basis for the award of attorney fees here. We disagree.

The cited provision states:

(1) The following are defined as unfair methods of competition and unfair or deceptive acts or practices in the business of insurance:
(h) Unfair claim settlement practices: Committing or performing, either in willful violation of this part 11 or with such frequency as to indicate a tendency to engage in a general business practice, any of the following:
(VII) Compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in an action brought by such insureds.

However, the statute merely defines the actions that constitute unfair methods of competition and unfair practices in the business of insurance. No part of the language of the statute authorizes an award of attorney fees.

Relying upon Showpiece Homes Corp. v. Assurance Co. of Am., 38 P.3d 47 (Colo.2001), Heritage nevertheless argues that it is entitled to recover attorney fees under a section of the Colorado Consumer Protection Act (CCPA), § 6-1-113(2)(b), C.R.8.2002, because the breach of an insurer's duty as enunciated in the UCDPA is actionable through the CCPA. We are not persuaded.

In Showpiece Homes, citing § 10-3-1114, C.R.S.2002, the court held that there is no private right of action under the UCDPA. And a statute cannot form the basis for an award of attorney fees unless it creates a private right of action expressly authorizing recovery of those fees. See Huizar II, supra, 52 P.3d at 821. Further, even assuming that Continental breached a duty owed to Heritage as enunciated in the UCDPA and that Heritage could bring such a' claim under the CCPA, Heritage did not plead or prove such a claim here. The attorney fees at issue here resulted from the declaratory judgment and breach of contract action, not from a claim asserting a right to recover under the CCPA. Thus, Heritage's argument is unavailing.

IH.

We likewise reject Heritage's contention that the attorney fees award was justified under § 18-17-101, et seq., C.R.8.2002, because Continental's action in seeking a declaratory judgment was substantially frivolous and groundless. As in Huizar II, supra, here the trial court was not requested to, and did not find, that any behavior of Continental violated § 13-17-1011. It merely agreed with Heritage that the express provisions of the contract authorized the award. In the absence of findings that Continental's reliance on the pollution exclusion provision was substantially frivolous, groundless, or vexatious, no statutory exception to the general rule permits an award of attorney fees. See Huizar II, supra.

IV.

Heritage contends that Allstate Insurance Co. v. Robins, 42 Colo.App. 539, 597 P.2d 1052 (1979), and public policy grounds dictate a different result. We reject that contention as well.

In Robins, a declaratory judgment action by the insurer concerning insurance coverage, a division of this court determined that an insured could recover attorney fees based on a provision in the insurance policy that obligated the insurer to reimburse the insured for all reasonable expenses incurred at the insurer's request. Essentially, the division held that the filing of a declaratory judgment action constituted a "request" by the insurer to the insured to incur expenses. The division noted that, by recovering attorney fees, the insured was merely restored to the position he would have occupied had the insurer honored its contract in the first instance, a result consistent with the division's view of public policy.

Unlike here, in Robins the reimbursement language was apparently not limited to any particular coverage and was clearly broader than that in Continental's policy. Here, as noted, the reimbursement language applies only in a liability setting, one that is not implicated under these facts.

Heritage nonetheless argues that the same public policy principle applies in this situation, that is, awarding attorney fees would simply restore Heritage to its original position as if Continental had honored its contract in the first place. It notes that another division of this court, in Hedgecock v. Stewart Title Guaranty Co., 676 P.2d 1208 (Colo.App.1983), affirmed an award of attorney fees to the insured in a coverage case although the policy contained no promise by the insurer to pay expenses incurred at the insurer's request. However, in view of the supreme court's holding in Huizar II, and its statement that courts are not permitted to award attorney fees simply because the equities in the case dictate it, we question whether Hedgecock remains good law. To the extent it would dictate a contrary conclusion in this case, we decline to follow it. See Bunnett v. Smallwood, 793 P.2d 157 (Colo.1990)(rejecting argument that equitable principles should allow recovery of attorney fees).

For the same reason, we perceive that the Huizar II decision significantly undercuts the public policy rationale of Robins, even though the court did not cite Robins anywhere in its opinion.

Accordingly, we reject Heritage's contention that public policy justifies the award of attorney fees.

v.

Heritage contends that, if we determine it is not entitled to attorney fees for the reasons stated by the trial court, we should order a remand, directing the court to consider whether attorney fees are available under any other theory. Heritage makes this request because the trial court's decision was based in part on Huizar I, a case subsequently reversed by Huizar II after the notice of appeal was filed here. Alternatively, Heritage requests a remand for trial on its claim for bad faith. We decline the request.

Heritage has cited no authority that would grant it another opportunity to litigate entitlement to attorney fees. Generally, a party should present at one time all grounds justifying the relief it requests. See Restatement (Second) of Judgments § 25 (1982). And a ground not raised in the trial court generally will not be reviewed on appeal. See Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718 (Colo.1992).

Here, Heritage did not argue in the trial court that it was entitled to attorney fees under any authority or on any grounds other than the UCDPA and the insurance policy. Accordingly, the trial court was not presented with such an issue. Hence, we decline to require it to do so on remand.

Concerning the bad faith assertion, in one paragraph of its counterclaim Heritage alleged that Continental acted in bad faith in denying coverage based on the pollution exclusion. However, that allegation was contained in its first counterclaim, entitled "breach of contract," and no separate claim for tortious breach of the insurance contract was alleged.

Further, at the parties' request, the court entered judgment on the first counterclaim for the stipulated cleanup costs and interest. Heritage did not assert that it wished to litigate a claim for attorney fees under that theory, nor did it do so during the subsequent hearing on attorney fees. Under these cireumstances, we conclude that any claim for bad faith was either waived or merged into the judgment. See Restatement (See-ond) of Judgments § 18.

Hence, we decline to grant the remand Heritage requests.

The order is reversed.

Judge WEBB and Judge METZGER concur.


author: Judge MARQUEZ.

text:
    Mohammed BABI, Plaintiff-Appellant, v. COLORADO HIGH SCHOOL ACTIVITIES ASSOCIATION; Bob Ottewill, in his capacity as Commissioner of the Colorado High School Activities Association; Colorado High School Activities Association Executive Committee; Bennett School District No. 29-J; Board of Education, Bennett School District No. 29-J; James Lathrop, in his former capacity as Superintendent of Bennett School District No. 29-J; Gail Hageman, in her former capacity as principal of Bennett High School; and Ron Howard, in his former capacity as athletic director at Bennett High School, Defendants-Appellees.
    No. 02CA1189.
    Colorado Court of Appeals, Div. II.
    Aug. 14, 2003.

      Craig D. Johnson & Associates, P.C., Craig D. Johnson, Susan M. Spaulding, Broomfield, Colorado, for Plaintiff-Appellant.
    Halpern Claney LLC, Alexander Halpern, John P. Clancy, Boulder, Colorado, for Defendants-Appellees.
   Opinion by

Judge MARQUEZ.

Plaintiff, Mohammed Babi, appeals the summary judgment entered in favor of defendants, the Colorado High School Activities Association (CHSAA); Bob Ottewill, commissioner of CHSAA; the CHSAA Executive Committee; Bennett School District No. 29-J; James Lathrop, former superintendent; Gail Hageman, former school principal; and Ron Howard, former school athletic director. We affirm in part, reverse in part, and remand for further proceedings.

CHSAA is a voluntary association of public and private high schools formed for the convenient governance of interscholastic athletics and activities. The District was a member of CHSAA, and plaintiff was registered as a coach through CHSAA. CHSAA's bylaws provide that "Each coach shall be responsible for the contents of the CHSAA Constitution and by-laws and the pre-season and playoff bulletins. Coaches whose programs are in violation of CHSAA policies or by-laws shall be subject to appropriate penalties from reprimand to restriction."

In November 1999, plaintiff was employed by the District to act as head wrestling coach for the 1999-2000 school year. In this capacity, he was injured on January 5, 2000, and unable to attend a series of wrestling practices and events. After plaintiff was injured, the assistant coach took over the coaching duties.

On January 15, 2000, a Bennett wrestler participated in a tournament without complying with certain CHSAA rules. The athletic director was aware of plaintiff's injury and drafted a contract designating the assistant as the head coach, but this contract had not been executed as of the time of the tournament. Plaintiff was present at that tournament, but contends that he was there only as a CHSAA-qualified chaperone and did not act as coach.

Upon discovering the infractions, the ath-letie director reported them to CHSAA on January 18, 2000, and informed it that plaintiff had been suspended. The athletic director met with plaintiff the same day. However, the nature of that meeting and whether it occurred before or after the information was sent to CHSAA are disputed.

The following day, plaintiff met with the athletic director and the school principal. While the nature of that meeting is also disputed, plaintiff was given a letter in a sealed envelope, which he opened and read after the meeting. The letter stated, "I am placing you on suspension without pay for the remainder of the 1999-2000 season." The wrestling season ended in February 2000.

On January 21, 2000, CHSAA placed the District's wrestling program and plaintiff on restriction from all state playoff activities. On the same date, CHSAA notified the District that based on its corrective action of suspending plaintiff, the restriction on the wrestling program was temporarily lifted. The District was advised that if it wished to have the restriction on plaintiff removed, the District would have to submit a written request.

On January 24, 2000, the principal wrote to CHSAA advising that plaintiff had received misinformation on the wrestler in question and that the District had mixed information on the number of practices the wrestler had attended. Further, the District was not aware of the extent of the impairment that medication and pain were causing plaintiff. The letter inquired whether it was possible to rescind plaintiffs suspension and allow him to coach for the remainder of the season.

By letter of the same date, CHSAA responded stating that if the District were reconsidering plaintiff's suspension, CHSAA would be compelled to reconsider the lifting of the restriction on the wrestling program. It noted that it was still reacting to the reported violations committed while plaintiff was coaching, that there was not yet a consistent set of facts, and that unless there were a change in facts regarding the violations, CHSAA would continue its course of action. CHSAA, however, stated that it would consider a new proposed corrective action by the District. The record does not indicate whether the District responded to this letter. CHSAA removed the restriction on plaintiff in April 2000 and placed him on probation for one year.

In October 2000, CHSAA considered plaintiff's appeal. After reviewing evidence from the District and plaintiff, including evidence about plaintiffs physical condition and the alleged wrestling violations, CHSAA denied a motion to remove plaintiff from probation.

Plaintiff filed suit against defendants in November 2000, asserting, among other things, claims for breach of contract, taking of a vested property right, denial of due process, and abuse of discretion. The court granted summary judgment in favor of defendants as to these claims, except the claim for breach of contract. The court determined that the CHSAA rules were adopted to ensure that important public health and safety concerns were addressed and that there was no nexus between CHSAA's disciplinary action and plaintiff's contractual relationship with the District. The trial court also concluded, based on the meetings between plaintiff and District employees, that plaintiff was afforded due process of law before his "termination." It held that the abuse of discretion claim "is also nothing more than a due process claim" and coneclud-ed that this claim must also fail. Plaintiff subsequently dismissed his claim for breach of contract.

L.

Summary judgment is appropriate when the pleadings and supporting documents demonstrate that no genuine issue as to any material fact exists and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c), Martini v. Smith, 42 P.3d 629 (Colo.2002). An appellate court reviews de novo a trial court's order granting summary judgment. Vail/Arrowhead, Inc. v. Dist. Court, 954 P.2d 608 (Colo.1998).

IL

Plaintiff contends that when CHSAA sane tioned him without notice or an opportunity to be heard, the sanction adversely affected his right to work as a wrestling coach under contract with the District, and it amounted to a taking of a vested property right in violation of 42 U.S.C. § 1983(19-). We disagree.

A.

The Fourteenth Amendment mandates that a state may not deprive any person of life, liberty, or property without due process of law. U.S. Const. amend. XIV, § 1.

In bringing a due process claim under § 1983, a plaintiff must show that (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Hillside Cmty. Church v. Olson, 58 P.3d 1021 (Colo.2002).

In evaluating a due process claim, a court must consider:; (1) whether a property right has been identified; (2) whether governmental action with respect to that property right amounts to a deprivation; and (8) whether the deprivation, if any, was visited upon the plaintiff without due process of law. Hillside Cmty. Church v. Olson, supra; Ewy v. Sturtevant, 962 P.2d 991 (Colo.App.1998); see Whiteside v. Smith, 67 P.3d 1240 (Colo.2003).

As a threshold matter, CHSAA assumes, for the purposes of summary judgment and this appeal only, that it is subject to suit under § 1988. We likewise assume, without deciding, that CHSAA's actions are state actions for the purposes of the Fourteenth Amendment. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001).

Next, the trial court here did not address whether plaintiff had a protected interest in his employment. We conclude that while plaintiff had a property right in his employment with the District for the 1999-2000 year, he has not demonstrated that CHSAA deprived him of that right. Plaintiff does not contend that he had a vested property right with CHSAA.

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. The person must have a legitimate claim of entitlement to it. Bd. of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); see Ewy v. Sturtevant, supra.

Sources of property interests include express or implied contracts. The existence of a property interest in employment is a question of law. See Holland v. Bd. of County Comm'rs, 883 P.2d 500 (Colo.App.1994).

In regulating eligibility for a type of professional employment, a state cannot foreclose a range of opportunities in a manner that contravenes due process and, specifically, in a manner that denies the right to a full, prior hearing. Bd. of Regents v. Roth, supra.

Here, plaintiff had a written contract with the District to act as head wrestling coach for the 1999-2000 season, but had no contract with CHSAA. The District contract consists of three sentences: an agreement to employ plaintiff for the 1999-2000 school year; a statement of responsibilities; and an agreement to pay a certain salary. It contains no limiting or "at will" language and no discussion of future employment. Thus, plaintiff had a property interest in his employment with the District for that year, but no property interest with CHSAA.

CHSAA contends that because it was not plaintiff's employer and had no contractual relationship with him, it did not and could not terminate his employment. It further asserts that by the time it imposed sanctions, plaintiff had already been suspended. Plaintiff, however, contends that CHSAA gave the District the choice of losing an opportunity for its wrestlers to participate in state playoffs or suspending him. Thus, plaintiff argues that CHSAA gave the administration no choice but to suspend him or punish all athletes,. We conclude that even if we assume plaintiff's allegation to be true, there is no dispute that the ultimate decision to suspend plaintiff from his employment was left to the District, not CHSAA. Consequently, while genuine issues of material fact may exist regarding defendant's suspension by the District, CHSAA's conduct did not deprive plaintiff of a vested property right in his employment with the District.

B.

Nevertheless, plaintiff alleges that when CHSAA sanctioned him without notice or opportunity to be heard, he was not granted a prompt hearing by CHSAA for purposes of due process under § 1983. He asserts this lack of a hearing adversely affected his right to work as a coach with the District or any other CHSAA school district and injured his liberty interest in his good name, reputation, honor, and integrity within the wrestling community. He also contends he was deprived of the opportunity to rectify the situation because CHSAA did not offer him an opportunity to appeal his sanction before the end of the wrestling season and refused to reconsider his sanction in light of new information provided by the District. We conclude that even if CHSAA did not provide a prompt review, there is no evidence that CHSAA deprived plaintiff of a liberty interest.

CHSAA's written policies provide that the date of the appeal "shall be at the regularly scheduled time of the CHSAA Executive Committee." Although the record indicates CHSAA considered plaintiffs situation at a February 23, 2000, meeting, plaintiff asserts that he was not advised whether he could appear at that meeting. However, even if that were the earliest scheduled meeting, it did not occur until after the wrestling season had ended. Further, plaintiff was allowed to appear at a hearing in the fall of 2000, and after an extensive evidentiary hearing, CHSAA's position was unchanged.

Moreover, a liberty interest exists in a plaintiff's good name and reputation as it affects his or her protected property interest in continued employment. To be actionable, first the statements must impugn the good name, reputation, honor, or integrity of the employee. Second, the statements must be false. Third, the statements must occur in the course of terminating the employee or must foreclose other employment opportunities. And fourth, the statements must be published. Workman v. Jordan, 32 F.3d 475 (10th Cir.1994); see Hartman v. Middleton, 974 P.2d 1007 (Colo.App.1998). Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential. To be deprived not only of present government employment, but also of future opportunity for it, is no small injury. Bd. of Regents v. Roth, supra.

Mere reputational injury or allegations of speculative future harm to prospective employment relationships alone are insufficient to establish such a claim. See Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262 (10th Cir.1989); Harrison v. Bd. of County Comm'rs, 775 F.Supp. 365 (D.Colo.1991).

Here, even if we assume the alleged statements by CHSAA indicating plaintiff had been placed on restriction were published, plaintiff has presented no evidence that CHSAA terminated his employment with the District or foreclosed future employment opportunities.

The District suspended plaintiff, and as long as that suspension continued, plaintiff could not have served as a coach even if CHSAA had lifted the restriction. Further, it is undisputed that the District suspended plaintiff before CHSAA placed him on restriction. Additionally, the effect of CHSAA's statements on other employment opportunities is speculative. In his deposition, plaintiff testified he had not sought other coaching positions for compensation since the 1999-2000 year. When asked to describe any opportunities for compensation from wrestling that he had lost, plaintiff answered, "I have not been approached, so I cannot say if I have lost anything."

Finally, CHSAA initially placed plaintiff on restriction, which was changed to probation. At his deposition, plaintiff testified that probation did not hurt his reputation as much as restriction, which injured his reputation in the eyes of fellow coaches. However, plaintiff offered no specific information on how he was injured and no evidence from fellow coaches that that was the case. See Conaway v. Smith, 853 F.2d 789 (10th Cir.1988)(plaintiff only generally alleged he had suffered damages to his personal and business reputation; neglect of duties and insubordination do not call into question one's good name, reputation, honor, or integrity); Bailey v. Kirk, 777 F.2d 567 (10th Cir.1985)(reason for suspension-failing to conduct an investigation of a police officer to the satisfaction of supervisor-insufficient to call into question plaintiff's good name, reputation, honor, or integrity). Indeed, in support of his motion to reconsider the summary judgment, plaintiff offered a letter from CHSAA, which stated, "Probation carries no penalties, which would prohibit [plaintiff] from coaching in any Colorado high school, nor does [it] prevent him from coaching in regional or state competition next season." In sum, we conclude plaintiff presented no evidence that his other employment opportunities were foreclosed. We also agree with the trial court that there is no nexus between the disciplinary action imposed by CHSAA and the suspension of his current employment with the District.

Thus, we conclude that even if plaintiff was not granted a prompt hearing by CHSAA, it is the District, not CHSAA, that suspended him. Further, there is no evidence that any delay in the hearing process by CHSAA caused injury to a liberty interest.

IIL.

We do, however, agree with plaintiff that a summary judgment was improper with respect to his claims against the District and its superintendent, principal, and athletic director. Plaintiff contends that his suspension by the District for actions or inactions of other employees while he was on temporary total disability was an abuse of discretion. Defendants point to the trial court's order concluding that the abuse of discretion claim is nothing more than a due process claim and that plaintiff was afforded due process prior to his suspension. We conclude that this is a due process claim and that material questions of fact remain.

A presumption of administrative regularity and constitutionality attaches to the multitude of personnel decisions made daily by public agencies. Chiappe v. State Pers. Bd., 622 P.2d 527 (Colo.1981).

An essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case. Adams County Sch. Dist. No. 50 v. Dickey, 791 P.2d 688 (Colo.1990).

Once it is determined that due process rights apply, the question remains what process is due. Due process is flexible and calls for such procedural protections as the particular situation demands,. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

"When a hearing is mere form, where it is merely a delusive shadow without substance, there can be no due process of law." May Stores Shopping Ctrs., Inc. v. Shoemaker, 151 Colo. 100, 112, 376 P.2d 679, 685 (1962). The constitutional right to a hearing is intended to provide an opportunity for a person to refute claims against him or her. Bd. of Regents v. Roth, supra.

Consequently, some kind of hearing is constitutionally required before the discharge of an employee who has a constitutionally protected property interest in his or her employment. Adams County Sch. Dist. No. 50 v. Dickey, supra.

Here, the trial court found that "the uncontroverted evidence" was that plaintiff and the athletic director met on January 18. However, the record reflects that genuine issues of material fact remain as to the nature and seope of that meeting.

Defendants contend that plaintiff met with the athletic director on two occasions before being suspended. They further assert that at these meetings, he was advised of the grounds for suspension, provided with the evidence supporting those grounds, and given time to present his side of the story. Plaintiff, however, contends that he was not afforded an opportunity to address his suspension because he never was told of his suspension. He avers that he learned of the suspension in the letter, which he read sometime after the meeting with the principal and athletic director. Even the principal's January 24 letter suggests suspension was improper. Thus, a material issue of fact exists on this issue.

Therefore, the judgment in favor of the District and District employees on plaintiff's claims for taking of a vested property right and denial of due process is reversed. The remainder of the judgment is affirmed, and the case is remanded for further proceedings in accordance with this opinion.

Judge NEY and Judge CARPARELLI concur.


author: Judge TAUBMAN.

text:
    In re the MARRIAGE OF Mourine J. EMERSON, n/k/a Mourine J. Weaver, Appellant, and Norman D. Emerson, Appellee.
    No. 02CA1584.
    Colorado Court of Appeals, Div. I.
    Aug. 14, 2003.

      March, Liley & Olive, P.C., Stewart W. Olive, Fort Collins, Colorado, for Appellant.
    Thomas W. Metcalf, Fort Collins, Colorado, for Appellee.
   Opinion by

Judge TAUBMAN.

In this post-dissolution proceeding, Mou-rine J. Emerson, now known as Mourine J. Weaver (mother), appeals the district court's order awarding Norman D. Emerson (father) child support, requiring her to pay a portion of the special advocate (SA) fees, and denying her request for attorney fees. We affirm.

In the 1997 permanent orders, mother was named the primary residential custodian of the parties' two children. In 2000, father filed a motion for modification, requesting that he be named the residential parent.

At the same time, father also filed a motion for appointment of an SA to address parenting time, and he stated that he "will pay the initial costs for the [SA] which he understands to be $1,500." Mother agreed to the appointment of an SA "under the condition that [father] pay all costs associated with the appointment including the initial costs of $1,500." In appointing the SA, the magistrate ordered father to pay the $1,500 retainer, and provided that the SA "[elost may be later assessed between the parties."

In her response to the SA's report, mother stated that she "allowed" the children to live with father beginning November 21, 2000, and father agreed to have the children reside with him. That decision by mother became an order in March 2001 when the court named father the residential parent during the school year and awarded mother parenting time.

Citing the switch in residential placement as a continuing change of cireumstances, in July 2001 father filed a motion to modify child support. Mother requested discovery of father's income in connection with the calculation of that support and eventually obtained an order compelling father's discovery responses. The magistrate reserved the issue of attorney fees requested in connection with the motion to compel.

The hearing on child support took place in March 2002. The magistrate calculated child support at two levels based on the number of overnights mother exercised with the children, using worksheet A through the end of March 2002, and worksheet B thereafter. The effective date of mother's child support obligation was December 2000 because the mutually agreed upon change in physical care occurred the previous month. Mother was ordered to pay SA fees of $675, and her request for attorney fees was denied.

On mother's motion for review, the district court adopted the magistrate's order.

I. Child Support Determination Based on Mutually Agreed Change of Residence

Mother contends that her child support obligation should be effective as of July 2001, when father filed his motion to modify child support, rather than be made retroactive to December 2000. Her reasons are twofold, and we reject each in turn.

A.

First, mother argues that the applicable statute was interpreted erroneously. We disagree.

Generally, a modification of child support is effective as of the date of filing of a motion to modify. Section 14-10-122(1)(a), C.R.S. 2002; see In re Marriage of Pickering, 967 P.2d 164 (Colo.App.1997)(finding irreconcilable conflict in prior version of modification statute and concluding that one subsection was repealed by implication). However, under the provisions of § 14-10-122(5), C.R.S. 2002, when a mutually agreed upon change of physical care occurs, the provisions for child support of the obligor under the existing child support order, if modified pursuant to this section, will be modified as of the date when physical care was changed. See also § 14-10-122(1)(d), C.R.8.2002 (providing that if child support is modified pursuant to § 14-10-122(1), the modification should be effective as of the date of the filing of the motion, unless the court finds that it would cause undue hardship or substantial injustice or unless there has been a mutually agreed upon change of custody as provided in subsection (5)).

Mother agrees that under the plain language of § 14-10-122(5), the prior support obligation of the prior obligor completely terminates upon a mutually agreed upon change of physical care. However, she argues that because the statute does not mention the prior obligee, the statute does not require a concomitant and immediate imposition of a support obligation on the prior obligee. Thus, she urges that while father's obligation under the existing support order ceased when the children began living with him, she is not automatically charged with providing support as of that date. We are not persuaded.

Traditional principles of statutory interpretation support our reading of this statute. When construing a statute, we seek to effectuate the legislative intent of the General Assembly. People in Interest of J.R.T., 70 P.3d 474 (Colo.2003). Words and phrases should be given their plain and ordinary meaning unless the result is absurd. If the statutory language is clear and unambiguous, the statute must be applied as written, and the court need not resort to other rules of statutory construction. In re Interest of L.F., 56 P.3d 1249 (Colo.App.2002).

Section 14-10-122(5) clearly provides that when children change their primary residence, "the provisions for child support of the obligor under the existing child support order ... will be modified as of the date when physical care was changed" (emphasis added). It does not provide, as mother asserts, that either parent's obligation terminates for a time; instead, the existing order is to be modified as of the date the children switch residences, This reading comports with the duty of both parents to provide continuing support and prevents a lapse in support. Such a lapse would be unconscionable absent a finding of undue hardship or substantial injustice as provided in § 14-10-122(1)(d), and such a finding was not made here.

Mother's interpretation that either party's obligation terminates for a time would result in depriving the children of one parent's support for that period. However, both parents owe their children a continuing duty of support. See People in Interest of J.R.T., supra; In re Marriage of Salas, 868 P.2d 1180 (Colo.App.1994). We cannot interpret § 14-10-122(5) as affording one parent a temporary reprieve from this duty.

In other contexts, the General Assembly has distinguished between modification and termination. See In re Marriage of McNamara, 962 P.2d 330 (Colo.App.1998)(former provision governing joint custody provided for modification or termination); In Interest of D.R.V., 885 P.2d 351 (Colo.App.1994)(grandparent visitation statute provides for modification or termination); see also Colorado Springs Disposal v. Indus. Claim Appeals Office, 58 P.3d 1061 (Colo.App.2002)(fact that General Assembly had elsewhere drawn distinction supported plain reading of statute).

Indeed, the various subsections of § 14-10-122, C.R.8.2002, list one term or the other. Compare § 14-10-122(1)(a), (4), (5), C.R.S.2002 (governing modification), with § 14-10-122(2), (8), C.R.S.2002 (governing termination). Because child support cannot terminate until a child's emancipation, see § 14-10-122(8), it would be illogical to read § 14-10-122(5) as allowing a lapse in support during a child's minority.

Thus, we conclude that the magistrate correctly interpreted § 14-10-122(5) to mean that the burden of support, along with the identity of the obligor, "shifted" when the children changed residences. Accordingly, the district court did not err in adopting the magistrate's conclusion that the modification was effective December 2000.

B.

Mother's second argument does not persuade us otherwise. She asserts that because she was unable to document father's income until after the court compelled the production of discovery, and she had no determination of her overnights until the March 2001 order, she could not have calculated her child support in December 2000. Therefore, she concludes that the support was not due until the magistrate issued the 2002 order calculating the amount of support. Again, we disagree.

The inability to calculate the amount due does not change the fact that mother became the obligor as of the date of the change in residence. Unless the parties agreed to modify the amount of child support without a hearing pursuant to § 14-10-115(8)(b)(IlD), C.R.S.2002, the court had to determine the new amount of child support. However, in any event, the effective date of mother's obligation remained December 2000. See § 14-10-122(5).

IL Amount of Child Support

Mother also contends that the magistrate erred in calculating the number of overnights for purposes of determining child support. She asserts that after the children moved in with father, she had fewer overnights because father interfered with her parenting time, and therefore father is, in effect, being rewarded with extra child support for interfering with her parenting time. Thus, she asserts that the magistrate should have used worksheet B, rather than A, for the prehearing period. Under the cireum-stances, we disagree.

We recognize that the child support calculation is based, in part, on the number of overnights attributed to each parent. See In re Marriage of Antuma, 8 P.3d 589 (Colo.App.2000)(worksheet B used for 92 or more overnights). Here, however, additional parenting time issues, including father's alleged interference with overnights and mother's entitlement to make-up time, were set for hearing in the future. The magistrate was cognizant of the pending hearing on that issue, and therefore the issue of entitlement to overnights was not yet ripe at the support hearing. Cf. In re Marriage of Marson, 929 P.2d 51 (Colo.App.1996)(amount of parenting time granted to a parent relates to custody, and issues relating to custody and child support are separate; therefore, where parenting time had been established in earlier litigation, and was not an issue in hearing on motion for modification of child support, the magistrate's unilateral change in the amount of parenting time was error).

The order entered in March 2001, which formalized the residential change and awarded mother parenting time, led to considerable confusion concerning the number of overnights allotted to mother. It also left open the possibility that mother would exercise some parenting time with each child individually, which could have further complicated the calculation of the number of overnights. Furthermore, the parties' evidence of the amount of parenting time exercised was conflicting.

Mother testified that she was scheduled to have 101 overnights in 2002 and 89 overnights in 2008, for an average of 95 overnights. However, there was evidence that she had not exercised all that time. Accordingly, we perceive no error in the number of overnights attributed to mother for purposes of calculating child support.

III. SA Costs

Mother next contends that the order that she pay $675 for SA costs is erroneous because father agreed and was ordered to pay the initial, and only, $1,500 fee. She argues that it is unfair to allow father to request reimbursement eighteen months after the order and that he should be estopped from asserting the request. Again, we disagree.

The order of appointment specifically provided that the SA cost "may be later assessed between the parties." That wording is sufficient to preserve the issue, and we perceive no abuse of discretion by the trial court in requiring mother to share in the fee. See § 14-10-116(8), C.R.8.2002.

IV. Attorney Fees

Mother's final contention is that the magistrate erred in failing to award her attorney fees under C.RC.P. 37(4)(a) as a sanction against father for his discovery noncompliance that required her motion to compel discovery of his income. We are unpersuaded.

C.R.C.P. 87 allows a court to impose sanctions on a party for failing to respond to discovery requests. Gordon v. Boyles, 9 P.3d 1106 (Colo.2000). Sanctions may include expenses incurred, including a reasonable attorney fee. Lewis v. J.C. Penney Co., 841 P.2d 385 (Colo.App.1992)(applying predecessor rule). Under C.R.C.P. 37, a trial court has broad discretion to order sanctions and to determine the nature of such sanctions for a party's failure to comply with discovery. Scott v. Matlack, Inc., 39 P.3d 1160 (Colo.2002).

The magistrate found that father was not "so at fault in how he's prosecuted this that he should somehow be punished or sanctioned by having to pay [mother's] attorney fees." Accordingly, the request for attorney fees as a sanction was denied. We perceive no abuse of the court's discretion.

V. Appellate Attorney Fees

Father makes a generic request for attorney fees on appeal.

To the extent that request is made under C.A.R. 38(d), we deny it.

The order is affirmed.

Judge KAPELKE and Judge LOEB concur.


author: Judge ROTHENBERG.

text:
    Loyalle SMITH, as father and next of kin of the minor child, and decedent Desirae R. Smith, Plaintiff-Appellee, v. Edward VINCENT, Defendant-Appellant.
    No. 02CA1650.
    Colorado Court of Appeals, Div. V.
    Aug. 14, 2003.

      Howard Morrison, Colorado Springs, Colorado; J. Stephen Price, P.C., J. Stephen Price, Colorado Springs, Colorado, for Plaintiff-Appellee.
    Kane, Donley, and Johnson, P.C., Mark H. Kane, Colorado Springs, Colorado, for Defendant-Appellant.
   Opinion by

Judge ROTHENBERG.

In this wrongful death action, defendant, Edward Vincent, appeals the trial court's order and judgment in favor of plaintiff, Lo-yalle Smith (Smith), who filed this action as father and next of kin of the deceased minor child, Desirae Smith,. The sole issue on appeal is whether an award under Colorado's solatium statute, $ 18-21-208.5, C.R.8.2002, is subject to reduction by the amount a plaintiff receives from an insurance settlement with a former defendant. We conclude the solatium award is not subject to that reduction and therefore affirm.

This case arose out of an automobile accident wherein Vincent's car collided with a car driven by Shelly R. Smith, who was Smith's wife. The Smith's minor child was a passenger in Shelly Smith's car, and she died as a result of the collision.

Thereafter, the Smiths' marriage was dissolved and Smith filed this wrongful death action naming his former wife and Vincent as defendants. Smith settled with his former wife's insurance company for $25,000, and she was dismissed from the suit. That settlement did not designate the nature of the damages for which the payment was made.

When Smith elected to recover a solatium award of $50,000 in lieu of noneconomic damages, Vincent demanded a setoff of the $25,000 settlement. Smith refused, and after reviewing the parties' submissions, the trial court concluded Vincent was not entitled to the $25,000 setoff.

The parties then stipulated that both Vincent and Smith's former wife were negligent. Smith also waived any claim for economic damages. The trial court entered judgment against Vincent in the amount of $68,250.00, the amount of the solatium award plus a statutorily authorized adjustment for inflation. Under § 183-21-203.7, C.R.98.2002.

L.

Vincent contends the trial court erred in concluding Smith was entitled to recover the full solatium award in addition to the $25,000 settlement. We disagree.

As an alternative to establishing noneco-nomic damages, § 13-21-2083.5 gives wrongful-death plaintiffs the option of electing a $50,000 solatium award upon a finding or admission of the defendant's liability. See Dewey v. Hardy, 917 P.2d 305 (Colo.App.1995). The statute provides:

In any case arising under section 13-21-202, the persons entitled to sue under the provisions of section 183-21-201(1) may elect in writing to sue for and recover a solatium in the amount of fifty thousand dollars. Such solatium amount shall be in addition to economic damages and to reasonable funeral, burial, interment, or cremation expenses, which expenses may also be recovered in an action under this seetion. Such solatium amount shall be in lieu of noneconomic damages recoverable under section 13-21-2088 and shall be awarded upon a finding or admission of the defendant's liability for the wrongful death.

In B.G.'s, Inc. v. Gross ex rel. Gross, 23 P.3d 691 (Colo.2001), the supreme court interpreted the statute, and the parties agree that B.G.'s governs our analysis.

In B.G.'s, the plaintiff brought a wrongful death action and sought solatium damages against a tavern on behalf of her husband, an auto passenger who was killed in an accident. The car in which her husband was riding was driven by a drunk driver who had become intoxicated at the defendant tavern. The tavern designated the driver of the vehicle as a nonparty at fault under § 18-21-111.5, C.R.98.2002, and the jury apportioned a greater percentage of fault to the nonparty than to the tavern, as well as apportioning a percentage of fault to the plaintiff's decedent.

The supreme court concluded the statutory solatium award was not subject to reduction by operation of comparative negligence or prorata liability principles and therefore could not be reduced by the percentage of fault attributed to the nonparty. The court reasoned as follows:

The language of the statute does not merely omit all reference to the comparative negligence and pro-rata lability statutes; taken as a whole, it evidences an intent to offer the solatium as an ultimate award, not subject to further reduction, regardless of the negligence of the plaintiff or the fault of a nonparty.

B.G.'s, Inc. v. Gross ex rel. Gross, supra, 23 P.3d at 695.

In our view, the court's rationale applies with even greater force where, as here, a defendant settles with the plaintiff in a wrongful death action, the settlement does not designate the nature of the damages for which payment is being made, and that defendant is dismissed from the suit. To permit the settlement with the former wife to reduce Smith's recovery from Vincent would run contrary to the supreme court's statement in B.G.'s that the solatium award is intended as "an ultimate award, not subject to further reduction," regardless of the fault of other tortfeasors. B.G.'s, Inc. v. Gross ex rel. Gross, supra, 23 P.3d at 695.

IL.

Relying on B.G.'s and Pierce v. Wiglesworth, 903 P.2d 656 (Colo.App.1994), Vincent next contends that because there were two defendants-he and Smith's former wife-who were jointly liable for the accident, each defendant should share equitably in the responsibility to pay one $50,000 solati-um award. According to Vincent, the trial court's ruling disallowing him a reduction for the former wife's settlement payment allowed Smith "to stack solatium awards due to the presence of multiple defendants." We disagree.

In B.G.'s, the supreme court observed that the General Assembly "has not abolished joint lability in all cireumstances" but has retained it in certain limited circumstances, such as for persons who consciously conspire to commit a tortious act. See § 13-21-111.5(4), C.R.S.2002.

Without further specificity, the court in B.G.'s then applied a joint Hability analysis and concluded the plaintiff there was entitled to recover the full $50,000 solatium award against the defendant tavern, despite the fact that the jury found it only bore 20% of the fault. B.G's, Inc. v. Gross ex rel. Gross, supra, 23 P.3d at 696-97.

Vincent extrapolates three conelusions from the language in B.G.'s; (1) that where, as here, there are multiple defendants, a plaintiff is entitled to only one solatium award of $50,000; (2) that the plaintiff in B.G.'s only received one solatium award, but the trial court here impermissibly allowed Smith "to stack solatium awards"; and (8) because the supreme court applied a joint Hability analysis in B.G.'s, defendants such as Vincent are entitled to a reduction of the solatium award based on "the common law equivalent to joint lability."

We agree with the first conclusion, but disagree with the others.

As previously noted, the record does not indicate whether the $25,000 settlement payment made by Smith's former wife was intended to compensate him for noneconomic damages. Absent evidence that it was so intended, we cannot conclude Smith received two solatium awards.

We also reject Vincent's suggestion that the supreme court in B.G.'s resurrected the common law theory of joint lability. Both the majority and the dissenting opinions in B.G.'s agreed that the General Assembly has abolished joint liability in Colorado with only limited exceptions. Hence, we do not read the case as broadly as Vincent urges. B.G.'s, Inc. v. Gross ex rel. Gross, supra, 23 P.3d at 696-97.

Nor does Pierce v. Wiglesworth, 903 P.2d 656 (Colo.App.1994), support Vincent's arguments. There, a division of this court concluded the defendant and a nonparty tort-feasor, with whom the defendant acted in concert, were jointly liable under the proportionate fault statute. That statute provides that when two or more persons "consciously conspire and deliberately pursue a common plan or design to commit a tortious act," the tortfeasors shall be held jointly liable for the damages resulting from their actions. Section 18-21-111.5(4), C.R.S.2002.

Here, however, there was no allegation or jury finding that Vincent and Smith's former wife deliberately or consciously conspired to commit a tortious act. Thus, Pierce v. Wiglesworth, supra, and its progeny are inappo-site.

Vincent's reliance on Dewey v. Hardy, supra, is also misplaced. There, the plaintiff brought an action based on the death of his son and recovered the statutory solatium award. The trial court reduced the award by $25,000, reasoning that the decedent's mother, a nonparty, had a right to half of the solatium award, which she had assigned to defendants' insurer pursuant to a settlement agreement. On review, a division of this court remanded the case for joinder of the absent parties who had an interest in the judgment.

Here, unlike in Dewey, there has been no assignment of the solatium award, and no absent party claims any interest in it.

Therefore, we conclude the trial court did not err in denying Vincent's request that defendants be required to share equitably in the responsibility to pay the solatftum award.

IIL

Nor do we agree with Vincent that the $25,000 settlement constituted payment from a collateral source and must be set off against the solatium award pursuant to § 13-21-111.6, C.R.S.2002.

Section 18-21-111.6 provides for the reduction of damages in a civil action if payment is received from a collateral source:

In any action by any person or his legal representative to recover damages for a tort resulting in death or injury to person or property, the court, after the finder of fact has returned its verdict stating the amount of damages to be awarded, shall reduce the amount of the verdict by the amount by which such person, his estate, or his personal representative has been or will be wholly or partially indemnified or compensated for his loss by any other person, corporation, insurance company, or fund in relation to the injury, damage, or death sustained; except that the verdict shall not be reduced by the amount by which such person, his estate, or his personal representative has been or will be wholly or partially indemnified or compensated by a benefit paid as a result of a contract entered into and paid for by or on behalf of such person. The court shall enter judgment on such reduced amount.

In Montoya v. Grease Monkey Holding Corp., 883 P.2d 486 (Colo.App.1994), aff'd, 904 P.2d 468 (Colo.1995), a division of this court held that the collateral source rule applies to payments from a collateral source independent of any alleged tort liability and does not apply as between tortfeasors. The division concluded § 18-21-111.6 does not require a reduction from the damages owed by remaining tortfeasors where a joint tortfea-sor entered into a settlement.

Here, Smith named his former wife as a defendant and later stipulated to her negligence. Accordingly, the settlement payment was from a joint tortfeasor. It was not a "collateral source independent of any alleged tort liability," Montoya v. Grease Monkey Holding Corp., supra, 883 P.2d at 490, and § 13-21-111.6 is inapplicable.

IV.

Finally, we reject Vincent's contention that Smith v. Zufelt, 880 P.2d 1178 (Colo.1994), requires the $25,000 offset.

In Smith v. Zufelt, supra, the supreme court held that an offset of nonparty settlements was appropriate and that the amount of offset should be limited by the percentage of lability attributed to the nonparties under § 18-21-111.5, the prorata liability statute. Later, however, in B.G.'s, Inc. v. Gross ex rel. Gross, supra, the supreme court held that the amount of the solatium award may not be reduced according to principles of pro-rata liability.

In summary, we conclude that Smith's so-latium award was not subject to reduction by the $25,000 he received in the settlement with his former wife.

Judgment affirmed.

Judge VOGT and Judge CARPARELLI concur.


author: Judge DAILEY.

text:
    Richard STEVENS; M.T. Notestine; Karen J. Notestine, n/k/a Karen J. Gulkin; T.D. Notestine; and R.T. Notestine, Plaintiffs-Appellees, v. Robert D. MANNIX and Frances K. Mannix, Defendants-Appellants.
    No. 02CA1809.
    Colorado Court of Appeals, Div. III.
    Aug. 14, 2003.

      Bratton & MeceClow, LLC, John H. McClow, Kathleen L. Fogo, Gunnison, Colorado, for Plaintiffs-Appellees.
    Robert D. Mannix and Frances K. Mannix, Pro Se.
   Opinion by

Judge DAILEY.

In this action to have easements declared invalid, defendants, Robert D. Mannix and Frances K. Mannix, appeal from the trial court's judgment quieting title in plaintiffs, Richard Stevens, M.T. Notestine, Karen J. Notestine, T.D. Notestine, and R.T. Notes-tine. We reverse and remand for further proceedings.

The case concerns real property referred to as sites 16, 17, and 18. Condominium complexes exist on portions of sites 16 and 18. Defendants own a condominium unit on site 18; plaintiffs own undeveloped property on sites 17 and 18.

The property is subject to several recorded agreements executed by the parties' predecessors in title A cross-easement agreement, dated March 25, 1981, provided for the coordinated development of sites 16, 17, and 18, and, as pertinent here, easements for ingress and egress to the property. Another agreement, dated July 10, 1981, required that all development of site 17 comply with the cross-easement agreement.

No attempt was made to build walkways or roadways or to otherwise fix the location of the ingress and egress easements on the property.

Plaintiffs brought this C.R.C.P. 105 action to have those easements declared invalid. They moved for summary judgment, arguing that: (1) the agreements and the easements purportedly created thereunder had been abandoned by the property owners; (2) the agreements constituted unreasonable restraints on the right to alienate property; and (3) the agreements inadequately described the location of the easements.

The trial court rejected the first two arguments, finding that material issues of fact existed. It granted summary judgment in favor of plaintiffs, however, on the basis of the third argument, finding that the easements were void or voidable because the agreements failed to describe their size, dimension, or location, other than to refer to their "proposed (subject to change)" location on a site plan. Based on this ruling, the trial court entered judgment quieting title in plaintiffs.

On appeal, defendants contend that the trial court erred in concluding that the easements were void and unenforceable as a matter of law. We agree.

We review de novo the trial court's summary judgment ruling. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251, 1256 (Colo.1995). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions in the record establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); see Vigil v. Franklin, - P.3d -, -, 2003 WL 21197301 (Colo.App. No. 01CA2172, May 22, 2003).

On the issues presented on appeal, the material facts are undisputed; thus, the question is one of law. See City & County of Denver v. Fey Concert Co., 960 P.2d 657, 661 (Colo.1998).

An easement is a right conferred by grant authorizing one to do or maintain something on the land of another that, although a benefit to the land of the former, may be a burden on the land of the latter. Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1234 (Colo.1998).

No particular words are necessary to grant an easement, and a lack of specificity in describing an easement's location will ordinarily not invalidate it. See Isenberg v. Woitchek, 144 Colo. 394, 400, 356 P.2d 904, 907 (1960).

Words which clearly show the intention to give an easement are adequate to demonstrate its creation, provided the language in the instrument is sufficiently definite and certain in its terms. The writing must contain a description of the land that is to be subjected to the easement with sufficient clarity to locate it with reasonable certainty.

Hornsilver Circle, Ltd. v. Trope, 904 P.2d 1353, 1356 (Colo.App.1995) (citations omitted).

-If a valid easement is granted without fixing in writing its location, the location may be determined based on the conduct of the parties. See Isenberg v. Woitchek, supra, 144 Colo. at 400, 356 P.2d at 907.

Alternatively, the parties may mutually agree on the location of the easement; otherwise, its location will be determined by a court. E.g., Maddox v. Katzman, 332 N.W.2d 347, 352 (Iowa Ct.App.1982)(quoting 25 Am.Jur.2d Easements and Licenses § 68 (1966): "Where the grant of an easement does not definitely locate it, and neither the servient nor the dominant owner locates it and they cannot agree on a location, a court of equity may determine its location."); Cheever v. Graves, 32 Mass.App.Ct. 601, 605-06, 592 N.E.2d 758, 761 (1992)("[Thhe parties are free to locate a previously undefined right of access, or in the absence of agreement by the parties as to its location a court may fix the bounds of a right of way not located by the instrument creating it."); Graves v. Gerber, 208 Neb. 209, 214, 302 N.W.2d 717, 720 (1981)("Under certain circumstances, a court of equity may fix the location of a way which the grant does not specifically describe.").

Here, the cross-casement agreement reflects an unequivocal intent to create ingress and egress easements "over and across such portions of the Property designated on the Site Plan." The site plan attached to the cross-agreement depicts the property mutually benefited and burdened by the easements.

Because these documents reasonably designate the land burdened by the easements, we conclude that the easements were not, as a matter of law, invalid because of vagueness. See Hornsilver Circle, Ltd. v. Trope, supra, 904 P.2d at 1356 ("an easement is valid provided the servient tenement is accurately identified"); see also Howard v. Cramlet, 56 Ark.App. 171, 174, 939 S.W.2d 858, 859 (1997)("It is not essential to the validity of the grant of an easement that it be described by metes and bounds or by figures giving definite dimensions of the easement."); Loumar Dev. Co. v. Redel, 369 S.W.2d 252, 255-56 (Mo.1963)(rejecting contention that no easement existed because deeds described easement for a "proposed" road).

Accordingly, the trial court erred in granting summary judgment based on vagueness, and further proceedings are required to resolve plaintiffs' claims. If, on remand, the easements are not determined to be otherwise unenforceable or invalid, their location will need to be fixed by the agreement of the parties or, if necessary, by the court.

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

Judge MARQUEZ and Judge ROY concur.