source: Caselaw Access Project

author: Judge PLANK,

license: Public Domain

text:
    Eva Marie SPRINGS, Plaintiff-Appellant, v. Ricki R. PERRY, Defendant-Appellee.
    No. 98CA2599.
    Colorado Court of Appeals, Div. III.
    Jan. 20, 2000.
    Certiorari Denied Aug. 28, 2000.

      Kiel & Trﬁeax, P.C., Joseph Kiel, Engle-wood, Colorado, for Plaintiff-Appellant.
    White and Steele, P.C., John M. Lebsack, Roland A. Soler, John P. Craver, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge PLANK,

Plaintiff, Eva Marie Springs, appeals a judgment in her favor against defendant, Ricki R. Perry. We'affirm.

I.

Before addressing plaintiff's contention, we first reject defendant's assertion that this court is without jurisdiction to consider this appeal. Plaintiff's notice of appeal was filed three days late which, absent a showing of excusable neglect, would constitute a jurisdictional bar. See C.A.R. 4(a). However, another division of this court determined that plaintiff's late filing was the result of exceusa-ble neglect, and we decline to revisit that decision.

II.

Plaintiff, apparently dissatisfied with the amount of the jury's verdict, contends that the trial court erred when it improperly instructed the jury after substituting the alternate juror, asserting that the instructions were inadequate to overcome the presumption of prejudice to her right to a fair trial raised by such a substitution. We disagree.

The relevant facts are undisputed. Six regular jurors and one alternate heard the evidence over a period of approximately nine days. The alternate was then discharged, and the remaining jurors deliberated for approximately four hours before recessing for the evening. The following morning, one juror did not appear and could not be found. After the trial court summoned the alternate and questioned her as to whether she had discussed the case with anyone, done any research, formed any conclusions about the case, or had any contact with the parties, attorneys, or anyone else involved in the case, plaintiff acquiesced to reinstating the alternate and continuing deliberations.

The trial court instructed the reconstituted jury, which then deliberated for approximately four hours before returning its verdict in plaintiff's favor.

In the context of a criminal trial, there is no clear statutory authority for recalling a previously discharged alternate juror, nor is there a clear statutory prohibition of the practice. Carrillo v. People, 974 P.2d 478 (Colo.1999). When the parties consent to the substitution, however, the court's authority to make the substitution is not at issue. People v. Patterson, 8832 P.2d 1083 (Colo.App. 1992).

There is a rebuttable presumption that a criminal defendant's right to a fair trial is prejudiced by reinstating a previously discharged alternate juror. People v. Bur-nette, TTS P.2d 588 (Colo.1989). If, however, the trial court takes extraordinary precautions and adequately instructs the jury, that presumption of prejudice may be overcome. Carrillo v. People, swpra. The trial court must instruct the reconstituted jury to begin its deliberations anew, and the trial court should inquire of the jurors whether they are capable of disregarding the previous deliberations and any opinions they may have formed, and whether they can be receptive to the replacement juror's views or non-conforming opinions. People v. Burnette, supra.

No appellate decision has determined if the same standards and presumption apply in the context of a civil trial. However, we conclude that the standard would be no higher in a civil action than in a eriminal case and so, if the requirements of People v. Burnette, supra, were met and the presumption of prejudice was overcome, there can be no error in the trial court's decision. Accord Griesel v. Dart Industries, Inc., 28 CalS3d 578, 591 P.2d 508, 158 Cal.Rptr. 213 (1979), overruled on other grounds, Privette v. Superior Court, 5 Cal4th 689, 854 P.2d 721, 21 CalRptr.2d 72 (1998) (same standards and presumption apply in civil actions where state constitution guarantees right to a civil jury and statute regarding substitution of alternate jurors in civil cases was the same as that governing substitutions in criminal cases).

Plaintiff does not claim that the trial court's voir dire of the alternate prior to resuming deliberations was deficient Instead, she claims only that the trial court erred in its instructions to the reconstituted jury when it failed to direct that deliberations must be restarted from the beginning, completely disregarding the deliberations involving the replaced juror. We perceive no error.

After examining the alternate, the trial court gave the reconstituted jury the following instructions:

THE COURT: Now I need to ask the rest of you if you are willing to proceed-well, proceed is the wrong word. What I have to ask is for you to restart your deliberations. What that means is to bring [the alternate] up to speed in terms of whatever conversations you had yesterday afternoon and allow her to express any views she may have on the things that you have already discussed. It doesn't mean that you have to replay the whole deliberation process you went through word-for-word, but at least bring her up to speed, what views were exchanged, get her views so that you all are up to the same place and can go forward and complete deliberations at this time. (emphasis added)

The court then inquired of each juror if it was possible to "proceed in that fashion," and each juror responded affirmatively. The court then instructed the jury:

THE COURT: All right, and just to make it clear, I am instructing you to begin your deliberations anew by bringing [the alternate] up to speed and geiting her views and then moving forward from there. (emphasis added) _ -

Plaintiff did not object to these instructions, but only inquired whether all the requirements of People v. Burnette, supra, had been complied with. The trial court responded that it was instructing the jury based upon People v. Patterson, supra, a case following People v. Burnette, to which plaintiff's attorney responded, "I'm fine then."

The trial court's precautions cured any prejudice to plaintiff. The trial court twice told the reconstituted jury that it must begin its deliberations anew. While some ancillary language in the trial court's instructions may have implied to the contrary, we perceive that language as merely suggesting to the jury what procedure might be followed to restart its deliberations. The trial court adequately instructed the jurors that they must take the alternate's views into account in reaching a verdict, Accordingly, the presumption of prejudice was overcome by the trial court's precautions, and we perceive no

reversible error in the trial court's procedure.

The judgment is affirmed.

Chief Judge HUME and Judge DAVIDSON concur.


author: Judge CRISWELL.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard D. COLLINS, Defendant, Appellant.
    No. 98CA1629.
    Colorado Court of Appeals, Div. II.
    Jan. 20, 2000.
    Rehearing Denied March 2, 2000.
    Certiorari Granted Sept. 5, 2000.
    Ken Salazar, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Richard D. Collins, Pro Se.
   Opinion by

Judge CRISWELL.

Defendant, Richard D. Collins, appeals from the trial court order denying without a hearing his Crim. P. 35(c) motion. That court concluded both that defendant's motion was time-barred and that it was substantively meritless. Because we conclude, as a matter of law, that the motion was time-barred, we affirm without reaching the merits of defendant's contentions.

In 1986, defendant was convicted after a jury trial of first degree arson, intimidating a witness, conspiracy to intimidate a witness, and four counts of being an habitual criminal. On direct appeal, a division of this court reversed the conviction of conspiracy to intimidate a witness, but all other convictions were affirmed. People v. Collins (Colo.App. No. 86CA0600, Oct. 12, 1989) (not selected for official publication). The supreme court denied certiorari on February 20, 1990.

On April 17, 1997, more than seven years later, defendant filed a motion for appointment of counsel referring to a "concurrently" filed motion to vacate the judgment of convietion. The trial court denied the motion because no motion to vacate the judgment had been filed. Defendant then filed his "second supplemental motion to vacate" on June 16, 1997, which included among the attachments a motion to vacate, signed January 26, 1997, and a supplement to motion to vacate, signed March 5, 1997. He asserted that his motion to vacate was mailed to the court shortly after it was signed.

The trial court ordered defendant to show cause why his motion was not time-barred by § 16-5-402, C.R.8.1999. In his response, defendant asserted that he could not have filed his motion until the announcement of People v. Thomas, 867 P.2d 880 (Colo.1994) (holding Colo. Sess. Laws 1981, ch. 190 at 927, now codified as $ 16-5-402(8), C.R.98.1999, unconstitutional) and that his motion was filed on January 27, 1997, within three years of the announcement of Thomas. Relying upon Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), he argued that submission of his motion to the mailroom staff where he was incarcerated set the date of filing of the motion.

The trial court assumed that People v. Thomas, supra, did apply and that defendant's motion had to be filed no later than January 31, 1997, to avoid the time bar of § 16-5-402.

Rejecting defendant's assertion that he had mailed the motion on January 27, 1997, the trial court concluded that he had merely shown that he had submitted some documents for mailing to someone on that date. The trial court then proceeded to reject all the claims raised in the motion to vacate judgment.

On appeal, the defendant asserts that the trial court erred in concluding that his motion was time-barred, arguing that his motion was filed within three years after the announcement of People v. Thomas, supra. We are not persuaded.

In People v. Germany, 674 P.2d 345 (Colo.1983), our supreme court held that Colo. Sess. Laws 1981, ch. 190 at 926, now codified as § 16-5-402(1), C.R.S.1999, was unconstitutional because, as then in effect, it prohibited collateral attacks outside the statutorily specified time limits even if the failure to act within those limits resulted from justifiable excuse or excusable neglect. Although the constitutionality of the absolute bar in § 16-5-402(8), C.R.8.1999, for convictions that had been affirmed on appeal was not directly at issue in Germany, the supreme court cited it as one example of the statute's "capricious effects" and opined that subsection 3 contained "even greater restrictions" than the provision of § 16-5-402(1) that it specifically held to be unconstitutional. People v. Germany, supra, 674 P.2d at 351-53.

In response to Germany, the General Assembly amended § 16-5-402(2) to include a justifiable excuse or excusable neglect exception to the time limitations. However, it did not repeal the provision of § 16-5-402(8) which completely denied post-conviction relief to defendants whose convictions had been affirmed on direct appeal. See § 16-5-402(2) and § 16-5-402(8), C.R.8.1999.

Subsequently, in People v. Thomas, supra, the supreme court reiterated the concerns it had expressed in Germany respecting § 16-5-402(8). The court in Thomas then explicitly declared § 165-4028) unconstitutional, while noting that it was "arguable" that it had already done so in Germany. People v. Thomas, supra, fn. 7. Thus, because the decision in Germany pre-dated defendant's convictions, the tenuous existence of § 16-5-402(8) cannot constitute justifiable excuse or excusable neglect for failing to pursue collateral relief. Indeed, the later ruling in Thomas would have been anticipated by any reasonable person.

Although the issue of justifiable excuse or excusable neglect is ordinarily a question of fact to be determined by a hearing in the trial court, see People v. Abad, 962 P.2d 290 (Colo.App.1997), here, defendant's assertions upon the subject were based upon the premise that the time for filing his motion did not begin to run until the date of the Thomas decision. However, because the time for filing a collateral attack commenced in February 1990, rather than from the announcement of Thomas in 1994, these allegations cannot, as a matter of law, establish justifiable excuse or excusable neglect for failing to file an appropriate motion earlier.

Accordingly, because defendant's motion was not timely, the trial court properly denied that motion without a hearing.

The order denying defendant's Crim. P. 35(c) motion is affirmed.

Judge MARQUEZ, and Judge RULAND, concur. .

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, sec. 5(3), and § 24-51-1105, C.R.S.1999.


author: Judge MARQUEZ.

text:
    ANIMAS VALLEY SAND AND GRAVEL, INC., a Colorado corporation, Plaintiff-Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF LA PLATA, Colorado, Defendant-Appellee.
    No. 98CA1474.
    Colorado Court of Appeals, Div. II.
    Feb. 3, 2000.
    Certiorari Granted Aug. 21, 2000.

      Abadie & Zimsky, LLC, William E. Zim-sky, Durango, Colorado, for Plaintiff-Appellant.
    Goldman, Robbins & Rogers, LLP, Mi-. chael A. Goldman, Jeffery P. Robbins, Du-rango, Colorado, for Défendant-Appellee.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, sec. 5(3), and § 24-51-1105, C.R.S.1999.

   Opinion by

Judge MARQUEZ.

In this action for inverse condemnation, plaintiff, Animas Valley Sand and Gravel, Inc. (AVSG), appeals the trial court's judgment in favor of defendant, the Board of County Commissioners of the County of La Plata (County). We reverse and remand for further proceedings.

According to the stipulated facts, AVSG purchased approximately 46.5735 acres of real property in 1961 in La Plata County. It later subdivided the property into two tracts: Tract A, comprising 4.6493 acres, more or 'less, and Tract B, containing 41.924 acres, more or less. Since 1960, under a permit issued by the Mined Land Reclamation Division to mine sand and gravel in a ten-acre area, AVSG has operated a sand and gravel pit on portions of both tracts. Approximate ly eight of the ten acres are located on Tract B.

In 1998, the County adopted the Animas Valley Land Use Plan (Plan), which designated the approximately eight acres of Tract B that were used for the sand and gravel pit as industrial district and which allowed AVSG to mine sand and gravel on this portion of the tract. The remaining portion of Tract B, approximately 83 acres, is not covered by the mining permit and was designated as a river corridor district. Although mining sand and gravel within the river corridor district is prohibited, the Plan provides for certain uses permitted by right or by special use permit.

Following the adoption of the Plan, AVSG requested that the County designate the entire Tract B as part of the industrial district, but the County denied AVS@G's request. AVSG sought relief from the County's decision pursuant to C.R.C.P. 106(a)(d4), but the trial court denied its request and also denied AVSG's motion to reconsider.

AVSG then filed a petition for inverse condemnation. AVSG alleged that designation of approximately 38 acres of its real property as part of the river corridor district deprived it of all reasonable uses of the property and that such designation substantially reduced the value of the 383 acres so as to constitute a taking within the meaning of Colo. Const. art. II, § 15. The trial court bifurcated the proceedings to determine separately the issues of taking and damages.

The trial management order stated that the issue before the court in the first phase of trial was whether a regulatory taking had occurred as a result of the downzoning of an area of land owned by AVSG. It defined the legal issues as:

1. Whether, in making the takings analysis, the Court should look only at the 338 acres of Tract B that have been designated as part of the River Corridor District or whether the Court should consider the effect of the [Plan] on the entirety of Tract B? -
2, Whether any of the uses allowed under the [Plan] for the Subject Property, either by right or by special use, constitute "reasonable use" as that term is used in Colorado takings jurisprudence?
8. Whether the inability to mine sand and gravel and heavy minerals from the Subject Property constitutes a taking of the mineral interests of AVSG which is com-pensable under Art. II, See. 15 of the Colorado Constitution?

After a bench trial, the trial court found that AVSG had failed to establish that it could not put its property to reasonable use and denied AVSG's petition.

I.

Asserting that the burden of proof in an inverse condemnation claim is by a preponderance of the evidence, AVSG contends that the cases cited by the court indicate that it used either a "beyond a reasonable doubt" or "clear and convincing standard." We conclude that the record is unclear in this regard.

Colo. Const. art. II, § 15, provides, in relevant part, that "[private property shall not be taken or damaged, for public or private use, without just compensation."

To pursue an inverse condemnation claim under the Colorado Constitution, that is, to compel a public entity to provide compensation to a property owner, the property owner must establish, among other things, that there has been a taking or damaging of a property interest. Fowler Irrevocable Trust 1998-1 v. City of Boulder, 992 P.2d 1188 (Colo.

Here, the parties agree that the burden of proof in this case is by a preponderance of the evidence. Thus, we will accept that position for purposes of our analysis. See § 18-25-1274(1), C.R.S.1999. - However, when it determined that the burden falls upon the aggrieved landowner to prove that no reasonable use for the land exists, the trial court did not state which burden of proof it applied. In three of the four cases cited in the trial court's order, the appellate courts applied a standard of beyond a reasonable doubt or clear and convincing evidence in addressing the validity of particular ordinances. See Bird v. City of Colorado Springs, 176 Colo. 82, 489 P2d 324 (1971)(one claiming invalidity of county zoning must establish such invalidity beyond a reasonable doubt); Roeder v. Miller, 159 Colo. 486, 412 P.2d 219 (1966)(in an attack on zoning ordinance on the basis that zoned land is not susceptible to any reasonable or lawful use or that restrictions violate due process, landowner must prove such facts by clear and convincing evidence); Baum v. City and County of 147 Colo. 104, 368 P.2d 688 (1961)(burden on plaintiffs to establish beyond a reasonable doubt that ordinance deprives them of property without due process of law).

Thus, we cannot determine from the order which standard the trial court applied. Accordingly, we must remand for new findings using a preponderance of the evidence standard.

IL

Because we cannot determine whether the trial court applied the proper burden of proof, we are unable to address AVSG's contention that the designation of the subject property as part of the river corridor district of the Plan constituted a taking of its property because it leaves AVSG with no reasonable or economically viable use of the subject property.

A governmental regulation that prohibits all reasonable uses of property con-

stitutes a taking under Colo. Const. art. II, § 15. US West Communications, Inc. v. City of Longmont, 948 P.2d 509 (Colo.1997). However, so long as the regulation leaves some reasonable use for the property, it does not violate state constitutional standards. The burden of proving that no reasonable use exists for the land falls on the aggrieved landowner. Jafay v. Board of County Commissioners, 848 P.2d 892 (Colo.1993).

We do, however, reject the County's assertion that we must consider AVSC@'s property as a whole rather than only the approximately 33 acres affected by the Plan. We do so because the 38 acres were the subject of AVSG's petition, they were the only portion affected by the Plan, and, as noted by the trial court, "it is this 88-acre portion of Tract B which is the subject matter of this action."

IIL.

AVSG further contends that, even if the subject property does retain some reasonable or economically viable use, a taking occurs if the complained of regulation "goes too far" and substantially diminishes the value of the property. It asserts that Colorado law recognizes "partial taking" claims when a regulation significantly diminishes the value of property. We disagree.

A.

In support of its argument, AVSG relies on a statement in State v. The Mill, 887 P.2d 993, 999 (Colo.1994), that a "[rlegulation which does not prevent all economic use may also constitute a taking if it goes too far." That reliance is misplaced.

The term "partial taking" normally refers to a taking of only a portion of one's property. See La Plata Electric Ass'n v. Cummins, 728 P.2d 696 (Colo.1986); City of Westminster v. Jefferson Center Associates, 958 P.2d 495 (Colo.App.1997)(determining value of land taken and value of remainder). We understand AVSG's use of that term here to mean significantly diminishing the value of an entire tract.

The determination whether a regulation goes "too far" is essentially an ad hoe factual inquiry. When determining whether governmental action has gone beyond regulation and effects a taking, the following must be considered: (1) the character of the governmental action; (2) its economic impact; and (3) its interference with reasonable investment-backed expectations. State v. The Mill, supra. Such an inquiry does not support AVSG's position.

Historically, Colorado courts have held that whether there is a taking within the meaning of Colo. Const. art. II, § 15 is determined by, whether a government regulation forecloses all reasonable use of property. Jafay v. Board of County Commissioners, supra (issue central to a taking inquiry claim is whether the governmental regulation as applied to the aggrieved landowner's property forecloses all reasonable use of that property); Van Sickle v. Boyes, 797 P.2d 1267 (Colo.1990)(enforcement of safety code did not constitute a taking because enforcement did not deprive owner of all reasonable use of building); Sellon v. City of Manitou Springs, 745 P.2d 229 (Colo.1987)(Iandowners failed to prove they could not put their property to any reasonable use); Bird v. City Colorado Springs, supra (landowner must show that he has been deprived of all reasonable uses of his land).

In a zoning case, a division of this court held that, because zoning restricts an owner's right to use the property, it constitutes a partial taking that is constitutionally permissible so long as it is reasonable. The division held that there is no constitutional violation when the zoning does not deny a landowner all economically viable use of the property. See Applebaugh v. Board of County Commissioners, 837 P.2d 304 (Colo.App.1992).

Additionally, a landowner is not constitutionally entitled to use the property in a manner that results in the maximum available profit. See Van Sickle v. Boyes, supra.

Thus, as noted, under the law prior to State v. The Mill, supra, the issue central to a taking inquiry was whether the governmental regulation, as applied to the aggrieved landowner's property, foreclosed all reasonable use. Jafay v. Board of County Commissioners, supra.

In State v. The Mill, supra, the supreme court considered two consolidated cases, one involving inverse condemnation and regulatory taking, and another involving eminent domain. . In discussing the regulatory taking claim, the supreme court stated:

A land use regulation constitutes a taking under the Colorado and United States constitutions if it prevents all economically viable use of the property. Lucas, [505] U.S. at [1015], 112 S.Ct. at 2893; Van Sickle v. Boyes, 797 P.2d 1267, 1271 (Colo.1990). Regulation which does not prevent all economic use may also constitute a taking if it goes "too far." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 822 (1922).

State v. The Mill, supra, 887 P.2d at 999. We do not read this statement as changing prior law that all reasonable use must be foreclosed.

The statement in State v. The Mill, supra, must first be considered in the context of the factual circumstances of that case. Of primary concern in the discussion of the regulatory taking issue was whether The Mill was on notice of the significant risk of further regulation of use of its site. The supreme court held that it was unreasonable for The Mill to claim it had no notice of such regulation and that any use limitations could not have constituted a taking because the uses were never lawfully available to The Mill. Thus, the question was whether the state could regulate the use, not whether the value of the property had been significantly diminished.

Nor did the analysis of the eminent domain action in State v. The Mill, supra, depart from the prior rule. The issue in that proceeding centered on the interpretation of the federal statute.

Further, the cases upon which the supreme court relied in the State v. The Mill, supra, do not compel a different result. At issue in Pennsylvania Coal Co. v. Mahon, supra, was a state statute forbidding mining of coal in such a way as to cause the subsidence of, among other things, any structure used as a human habitation, not whether a regulation went too far. In Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 LEd.2d 798 (1992), the Supreme Court was addressing a regulation that denied the landowner all economically beneficial or productive uses of the land.

Finally, more recent Colorado cases continue the requirement for prohibition of all reasonable use. See U.S. West Communications, Inc. v. City of Longmont, supra, (a governmental regulation that prohibits all reasonable use of property constitutes a taking); Williams v. City of Central, 907 P.2d 701 (Colo.App.1995) (a governmental regulation that prohibits all reasonable use constitutes a taking).

B.

As additional support for its contention, and in reliance upon Central Colorado Water Conservancy District v. Simpson, 877 P.2d 8385 (Colo.1994), AVSG asserts that a taking occurs under Colo. Const. art. II, § 15 when "property has been substantially damaged by governmental action." We conclude that the issue of the applicability of the "damaged" provision of Colo. Const. art. II, § 15 was not presented to the trial court at trial when determining the issue of taking, and thus, the merits of this contention will not be addressed here.

The intent of including the word "damaged" in the Colorado Constitution was to grant relief to property owners who had been substantially damaged by the making of public improvements abutting their lands, but whose land had not been physically taken by the government. City of Northglenn v. Grynberg, 846 P.2d 175 (Colo.1998).

As noted above, the trial management order set forth the three issues to be tried. Although plaintiff refers to the word "damaged" as provided in Colo. Const. art. II, § 15 in its petition and its response to the County's motion for summary judgment, there is no indication in the record, including AVSG's trial brief, that AVSG objected to the omission of an issue regarding the "or damaged" provision of the Colorado.Constitution. Nor did AVSG rely on this provision in its arguments during trial. Further, in quoting Colo. Const. art. II, § 15, the trial court's order specifically omits the words "or damaged" from the quote, and the order makes no findings or conclusions on this provision.

Accordingly, we do not address the applicability of this provision here. See Diamond Back Services, Inc. v. Willowbrook Water & Sanitation District, 961 P.2d 1134 (Colo.App.1997)(an appellate court may consider only issues that have actually been determined in the first instance by a trial court).

C.

While AVSG also relies on Florida Rock Industries, Inc. v. United States, 18 F.3d 1560 (Fed.Cir.1994), and Florida Rock Industries, Inc. v. United States, 45 Fed. Cl. 21 (Fed.Cl.1999), the views regarding partial taking set forth in those cases are not universally accepted. See Clajon Production Corp. v. Petera, 70 F.3d 1566 (10th Cir.1995)(expressly rejecting the Florida Rock approach and holding that if a regulation prohibits all economically beneficial use, then that regulation categorically effects a taking in the same sense as a physical taking).

Additionally, AVSG points to language in Central Colorado Water Conservancy District v. Simpson, supra, stating that a taking oceurs when an entity clothed with the power of eminent domain substantially deprives a property owner of the use and enjoyment of that property. See also Northglenn v. Grynberg, supra. To the extent that this language may be read to support AVSG's position, the supreme court's most recent use of this language in US West v. City of Longmont, supra, is followed by another statement that a governmental regulation that prohibits all reasonable use of property constitutes a taking. Weread US West as consistent with our holding here.

Accordingly, AVSG's contentions regarding substantially diminishing the value of the property must fail.

IV.

AVSG further contends that the designation of the subject property as part of the river corridor district constitutes a taking of AVSG's property because the regulation goes "too far" and substantially deprives AVSG of the use and enjoyment of its property. AVSG premises this contention on this court's holding that a partial taking is com-pensable under the takings clause of the Colorado Constitution.

In view of our holding in Part III, we reject AVSG's contention and its request for a remand to develop the record further.

v.

In view of our disposition, we also reject AVSG's final contention that the prohibition against mining the subject property constitutes a compensatory taking of AVSG's mineral rights. As set forth above, the trial court is to determine by a preponderance of the evidence whether adoption of the Plan prohibited all reasonable use of the property. See Van Sickle v. Boyes, supra.

Accordingly, the judgment is reversed, and the cause is remanded for additional findings consistent with the views set forth here.

Judge RULAND and Judge CRISWELL concur.


author: Judge NEY.

text:
    Randolph L. QUINTANA, Plaintiff-Appellant, v. The CITY OF WESTMINSTER and Timothy Torres, Defendants-Appellees.
    No. 98CA2240.
    Colorado Court of Appeals, Div. I.
    Feb. 3, 2000.
    Certiorari Denied Sept. 5, 2000.

      Fasing Law Firm, P.C. Gregory J. Fasing, Denver, Colorado, for Plaintiff Appellant.

      Martin McCullough, City Attorney, Jeffrey M. Betz, Assistant City Attorney, Westminster, Colorado, for Defendant-Appellee City of Westminster.
    Senter, Goldfarb & Rice, LL.C., Thomas S. Rice, Peter H. Doherty, for Defendant Appellee Timothy Torres.
   Opinion by

Judge NEY.

Plaintiff, Randolph L. Quintana, appeals the trial court's judgment dismissing his complaint against defendants, City of Westminster and Timothy Torres, a City of Westminster police officer, for lack of subject matter jurisdiction based on sovereign immunity. Because the trial court failed to make complete findings, we remand with instructions.

The police officer attempted to stop a car because he suspected the occupants were involved in an armed robbery. The car sped away, and a police chase ensued. The officer pursued the suspects at a high rate of speed with his siren and overhead lights activated. The actual speeds of the vehicles were contested. The plaintiff was injured when the suspects' vehicle hit his.

The plaintiff filed this action against the City and the police officer involved in the chase. The City moved to dismiss for lack of subject matter jurisdiction, under C.R.C.P. 12(b)(1), pursuant to the Colorado Governmental Immunity Act, $ 24-10-101, et seq., C.R.S.1999 (Act).

After an evidentiary hearing, the trial court granted the City's motion to dismiss, ruling that the officer's actions were legally justified, that probable cause existed, and that the plaintiff's claims were barred by the emergency vehicle exception of the Act. The plaintiff appeals from this dismissal.

I.

Plaintiff argues that the trial court erred in determining that the City is immune. We agree with plaintiff's contention that the trial court did not make a necessary finding whether the officer, while speeding, endangered life or property. Therefore, we remand for further findings.

The Act provides immunity for public entities and their employees from liability for claims which lie in tort or could lie in tort. Section 24-10-106. This immunity is waived for actions based on the operation of motor vehicles. Section 24-10-106(a).

As pertinent here, an exception to the immunity waiver exists for drivers of authorized emergency vehicles when they are "in pursuit of an actual or suspected violator of the law." Section 42-4-108(2), C.R.S.1999. However, this emergency exception to the waiver of immunity is limited in that an emergency vehicle may:

Exceed the lawful speeds ... or exceed the maximum lawful speed limits ... so long as said driver does not endanger life or property.

Section 42-4-108(2)(c) (emphasis added). See also City of Grand Junction v. Sisneros, 957 P.2d 1026 (Colo.1998).

Whether immunity has been waived under the Act is an issue of subject matter Jurisdiction. The burden of proving jurisdiction is on the plaintiff, and the trial court's findings of fact supporting a determination under the Act will not be reversed unless clearly erroneous. Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993) (the trial court is the factfin-der regarding jurisdictional determinations under the Act, and appellate review is highly deferential).

Any factual dispute upon which the existence of jurisdiction may turn is for the trial court to resolve, and the issue is one of law only if the underlying facts are undisputed. Swieckowski v. City of Ft. Collins, 934 P.2d 1380 (Colo.1997).

In this case, the trial court found that the officer initially had reasonable grounds to stop the suspects' vehicle. Additionally, the court concluded that probable cause was established after the vehicle sped away, and that the officer had the right to use reasonable efforts to apprehend the suspects.

The court also found that the officer exceeded posted speed limits during the chase. However, the court did not specifically find, as required by the limitation set forth in § 42-4-108(2)(c), whether the officer endangered life or property while exceeding the lawful speed limit.

Plaintiff argues that the applicable standard is whether the driver operated with "reckless disregard of others," citing Zapp v. Kukuris, 847 P24 150 (Colo.App.1992). However, we agree with the City's contention that this standard, found at § 42-4-108(4), C.R.S.1999, is not applicable. In Fogg v. Macaluso, 892 P.2d 271 (Colo.1995), the supreme court held that to fall within the exception to an immunity waiver, emergency vehicle drivers need only comply with § 42-4-108(2) and (8), C.R.$.1999. The duty set forth in § 42-4-108(4), to drive with due regard for the safety of all persons, is inapplicable in this context. Fogg v. Macaluso, supra, 892 P.2d at 277 (§ 24-10-106(1)(a) of the Act "does not require emergency vehicle operators to comply with section 42-4-106(4) in order to qualify for sovereign immunity").

Contrary to defendant's contention, we do not read the statute so as to limit the court's analysis to how the officer drove his vehicle, in isolation. Instead, we conclude that the officer's driving must be evaluated in the context of all relevant cireumstances.

Therefore, because the trial court did not make any finding resolving whether the officer's actions endangered life or property, we conclude that the cause must be remanded for an additional finding on this issue and, if necessary, for additional evidentiary proceedings. Springer v. City and County of Denver, 990 P.2d 1092 (Colo.

IL.

Plaintiff also contends the trial court erred in excluding certain testimony from two eyewitnesses and from plaintiff's expert. He argues that one of the eyewitnesses should have been permitted to testify that he observed the officer traveling approximately 70 miles per hour during the chase, and that a different eyewitness should have been permitted to give her opinion whether the officer's actions were reckless. Plaintiff also argues his expert witness should have been able to give his opinion on whether the officer's actions were reckless.

The standard of review of a trial court's ruling on admissibility or exclusion of «mon knowledge or experience." evidence is abuse of discretion. Bonser v. Shainholtz, 988 P.2d 162 (Colo.App.1999). "A trial court has broad latitude in determining whether a lay witness is qualified to testify as to any conclusions based on com-Hock v. New York Life Insurance Co., 876 P.2d 1242, 1258 (Colo.1994).

With regard to the eyewitness' testimony that the police car was traveling at about 70 m.p.h., the trial court properly excluded the testimony for lack of proper foundation. Under CRE 701, a lay witness' testimony in the form of an opinion must be "rationally based on the perception of the witness." CRE 701(b). Here, the witness said that he could testify that the cars were going fast, but that any specific speed would only be a guess. Consequently, we conclude the trial court did not abuse its discretion in excluding the witness' specific speed testimony for lack of proper foundation. See People v. Jones, 907 P.2d 667 (Colo.App.1995).

The record indicates that the eyewitness who was not initially allowed to opine whether the officer was "reckless," in fact, ultimately testified concerning that issue. The witness testified, without objection, that she did not think that the officer "was driving safely with due regard for the safety of persons and property." As a result, the witness expressed her opinion concerning the officer's degree of care and, we conclude, plaintiff's argument regarding this eyewitness must fail.

Finally, the trial court sustained an objection to testimony by plaintiff's expert, that the officer's actions were "reckless in nature and disregarded the safety of [other] individuals," because the testimony was an ultimate legal conclusion under C.R.E. 704.

Although opinion testimony is not objectionable merely because it embraces an ultimate issue of fact, C.R.E. 704, an expert may not usurp the function of the court by expressing an opinion of the applicable law or legal standards. People v. Lesslkie, 989 P.2d 448 (Colo.

Here, as noted, the trial court erred by not making a finding as to whether the officer endangered life or property pursuant to § 42-2-208(2)(c). - Therefore, the expert's opinion that the officer was reckless was not relevant to the issue to be decided to determine jurisdiction.

Thus, on remand, the trial court may consider the expert's testimony as it relates to the officer's endangerment of life or property. .

The cause is remanded for additional findings consistent with this opinion. In making its determination, the court, in its discretion, may rely upon the record or it may take additional evidence.

If the court determines, after considering all relevant cireumstances, that the officer did not endanger life or property, the cause must be dismissed for lack of subject matter jurisdiction subject to the right of appeal on that determination. If the court finds that the officer's conduct, under all circumstances, did endanger life or property the matter should proceed to trial on the merits subject to the right of appeal on that holding.

The judgment is vacated and the cause is remanded for further proceedings.

Judge METZGER and Judge RULAND coneur.


author: Opinion by Judge DAVIDSON.

text:
    CRISSEY FOWLER LUMBER COMPANY, a Colorado corporation; Transit Mix Concrete Company; Annie G. Taylor; Arlington E. Taylor; and Rustic Floor Covering, d/b/a The Wetta Corporation, Plaintiffs-Appellees, v. FIRST COMMUNITY INDUSTRIAL BANK, Defendant-Appellant.
    No. 97CA2167.
    Colorado Court of Appeals, Div. V.
    Feb. 3, 2000.
    Rehearing Denied April 6, 2000.
    Certiorari Denied Sept. 11, 2000.

      Anderson, Dude & Lebel, P.C., Stephen J. Lebel, Colorado Springs, Colorado, for Plaintiffs-Appellees Crissey Fowler Lumber Company and Transit Mix Concrete Company.
    Tom W. Armour, Twin Lake, Michigan, for Plaintiffe-Appellees Annie G. Taylor and Arlington E. Taylor.
    Kleinsmith & Associates, P.C., Philip M. Kleinsmith, Colorado Springs, Colorado, for Plaintiff-Appellee Rustic Floor Covering d/b/a The Wetta Corporation.
    Vaglica & Meinhold, LL.C., Don H. Mein-hold, Su-Lyn Combs, Colorado Springs, Colorado, for Defendant-Appellant First Community Industrial Bank.
   Opinion by Judge DAVIDSON.

Defendant, First Community Industrial Bank (FCIB), appeals from the trial court's entry of judgment in favor of plaintiffs, Cris-sey Fowler Lumber Company (Crissey Fowler), Transit Mix Concrete Company (Transit Mix), Annie G. and Ariington E. Taylor (Tay-lors), and Rustic Floor Covering, d/b/a The Wetta Corporation (Rustic). The court found that under § 38-22-126(6), C.R.S.1999, defendant was obligated to disburse construction funds directly to plaintiffs. We affirm.

FCIB was the construction lender for a number of prospective homeowners in a housing development project. Plaintiffs include several of the subcontractors and the Taylors, who were among the prospective homeowners. Construction began early in 1995. In November 1995, prior to completion, the general contractor, Craftmark, abandoned the project The homeowners were forced to hire a new general contractor and new subcontractors to complete construction of the homies. See Crissey Fowler Lumber Company v. First Community Industrial Bank, 8 P.3d 536 (Colo.App. No. 98CA2338, February 3, 2000).

In September 1995, Crissey Fowler and Transit Mix submitted disburser notices to FCIB for building materials and supplies furnished to a number of the properties. Rustic filed its notice to disburser in January 1996, after Craftmark had abandoned the project.

In late September 1995, Craftmark submitted a draw request to FCIB, which FCIB paid immediately. In October 1995, Crissey Fowler submitted a bill to Craftmark; FCIB paid Crissey Fowler only a small portion of the amount owed on the Taylor home.

Craftmark subsequently submitted other draw requests to FCIB, allegedly for charges incurred in all seven projects Although FCIB paid Craftmark, plaintiffs were not paid from these funds. FCIB contended in its affidavit that the funds drawn from the account were owed to "other" unspecified subcontractors.

Crissey Fowler, Transit Mix, and Rustic subsequently brought this action against FCIB, alleging that FCIB breached its duty as disburser by not paying them directly pursuant to § 38-22-126(6). The Taylors, who had paid the subcontractors out of their own funds after Craftmark abandoned the project, joined Crissey Fowler, Transit Mix, and Rustic. The Taylors' status as plaintiffs is not an issue in this appeal.

The plaintiffs filed motions for summary judgment. In granting summary judgment to plaintiffs, the trial court determined that § 38-22-126(6) required FCIB to pay plaintiffs directly upon their filing of disburser notices or to impound the disputed funds for later judicial determination.

On appeal, FCIB contends that the trial court's interpretation of $ 88-22-126(6) was incorrect. We disagree.

We review a judgment granting a motion for summary judgment de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995). Summary judgment is appropriate if no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. The burden of showing that no such issue exists is on the moving party, and all doubts are to be resolved in favor of the nonmoving party. Vargas v. State Farm Mutual Automobile Insurance Co., 916 P.2d 652 (Colo.App.1996).

I.

Section 88-22-126(6) states in pertinent part:

Upon such notice being received by the disburser, it is the duty of the disburser, before disbursing any funds to the person designated in said notice with whom said claimant has contracted, to ascertain the amount due to the claimant on any disbursement date, and to pay such amount directly to the claimant out of any undis-bursed funds available for and due to said person designated in said notice on such date; except that if the amount claimed by said claimant is disputed by said person designated in said notice, the disburser may impound such amount until the amount due is settled by agreement or final judicial determination.

This statute imposes duties on a dis-burser to see that subcontractors receive payment for their labor and materials It requires that, upon appropriate notice, the disburser pay the subcontractor directly rather than pay the contractor. Flooring Design Associates, Inc. v. Novick, 923 P.2d 216 (Colo.App.1995).

It is undisputed that FCIB was the disbur-ser. Here, as noted, the subcontractors-the claimants under the statute-served notice on FCIB, seeking payment for their services. According to § 38-22-126(6), after ascertaining the amount due to plaintiffs from the general contractor, referred to in the statute as "said person," FCIB was required to pay the plaintiffs from any undisbursed funds "available for and due to" the general contractor, or to impound such amount.

FCIB, however, did not pay plaintiffs or impound the funds. FCIB did not dispute that the notices it received were proper. Instead, FCIB argued that the statutory phrase, "available for and due to," referred only to funds owed directly to the general contractor, eg., profit, overhead, supervision and labor, funds which generally are not earned by the general contractor until construction is completed. The trial court rejected this interpretation, and so do we.

The words and phrases in statutes are to be construed according to their familiar and generally accepted meaning, and when the language of the statute is plain and its meaning clear, a court should avoid an inconsistent interpretation, and no absurdity should result. See Harding v. Industrial Commission, 183 Colo. 52, 515 P.2d 95 (Colo.1973). The primary goal of statutory construction is to give effect to the intent of the legislature. See Smith v. Myron Stratton Home, 676 P.2d 1196 (Colo.1984).

Under these rules of statutory construction, we conclude that the phrase set forth in § 38-22-126(6), "available for and due to," refers to the construction loan proceeds in full, and not merely to those funds paid to the general contractor upon completion of a project.

As noted, a statute should not be read to create an absurd result. Section 38-22-126(6) plainly states that the disburser, here FCIB, should pay the claimed amount "directly to the claimant out of any undisbursed funds available for and due to" the general contractor. See Flooring Design Associates, Inc. v. Novick, supra. However, under the interpretation urged by FCIB, subcontractors and suppliers would have no avenue for direct payment of their fees and costs. Instead, the loan proceeds would only be available indirectly to subcontractors and suppliers should the general contractor opt to pay them after making a draw request. Under this interpretation, by not allowing for direct payment, the practical effect of the statute is completely nullified.

Similarly, the primary purpose of the mechanies' lien act is to benefit and protect those who supply labor, materials, or services to enhance another's property. - However, under FCIB's interpretation, a subcontractor could not recoup earned monies despite a timely filing of a disburser's notice. See Flooring Design Associates, Inc. v. Novick, supra. Thus, FCIB's interpretation is in complete conflict with the General Assembly's expressed intent.

Moreover, the purpose of a construction loan is to provide funds to enable a property owner to construct improvements upon that property. Generally, a construction loan agreement creates a loan account from which funds are disbursed as the construction proceeds. Thus, under a construction loan such as those here, the homeowner allows the general contractor to make periodic draw requests against the loan proceeds in order to pay the expenses incurred in each period. See generally G. Nelson and D. Whitman, Real Estate Finance Law 147, 154 (19983).

From this, it follows ineluctably that the loan proceeds are available for and due to the contractor throughout the term of the loan. Accordingly, notwithstanding FCIB's contention, the phrase "available for and due to," in the context here, indicates merely that the funds are accessible to the general contractor during the construction period.

IL.

FCIB also argues that the trial court erred in awarding plaintiffs the full amount of their losses even though a lesser amount had been disbursed to the general contractor prior to its abandonment of the project. In response, plaintiffs assert that FCIB did not raise this issue in the trial court and, therefore, did not properly preserve this issue for appeal.

From our review of the record, except as to one award to Crissey Fowler for $15,-000, we agree with plaintiffs, As to the latter award, the record indicates that FCIB raised a question as to that sum at a hearing to determine the amount of plaintiffs' judgment. Because FCIB only challenged this one particular award, therefore, we will not address FCIB's contention concerning damages awarded to any other plaintiff or to Crissey Fowler in the other consolidated cases. See Bolen v. Ferry Trust, 949 P.2d 82 (Colo.App.1997) (appellate court will not address issue on appeal when issue required factual determination and was not addressed by trial court).

Concerning the $15,000 award to Crissey Fowler, FCIB argued at the hearing that it should be liable for only the approximately $11,000 in charges billed by Crissey Fowler prior to its last disbursement of $45,000 to Craftmark. However, the $45,000 payment to Craftmark was the last payment to Craftmark before Craftmark abandoned the project, not the final payment of loan proceeds. In other words, the loan remained active, and funds could still be drawn from it. Thus, even though FCIB, as it turned out, had made its last payment to Craftmark, FCIB was still able to pay Crissey Fowler its further expenses directly.

Furthermore, Crissey Fowler filed its dis-burser notice a month and a- half before FCIB's final disbursement to Craftmark. This notice alerted FCIB and Craftmark that Crissey Fowler's total costs could be as high as $22,000. Because FCIB was aware of Crissey Fowler's potential expenses and, even after its last payment to Craftmark, its construction loan was still active, the court correctly awarded Crissey Fowler its full charges.

IIL

FCIB next contends that the trial court erred in awarding attorney fees to plaintiffs Crissey Fowler and Transit Mix pursuant to § 138-17-101 et seq., C.R.8.1999. The court found that FCIB's actions met both the frivolous and vexatious standards set forth in § 13-17-102(4), C.R.8.1999. In addition, the court determined that an award of fees was warranted under the common law "wrong of another" theory. See Alexander Co. v. Packard, 754 P.2d 780 (Colo.App.1988). FCIB asserts that an award of fees was improper because its arguments were based on a good faith interpretation of the law. However, since we find no error in the trial court's determination that FCIB's defense was vexatious, we need not address the other grounds relied on by the trial court to support its award of fees.

The trial court made extensive findings in its order and, after having reviewed the factors delineated in § 13-17-108, C.R.S. 1999, determined that an award of attorney fees was warranted. Specifically, with record support, the court, found, inter alia, that FCOIB: (1) refused to answer correspondence before these actions were filed; (2) failed to comply with discovery; (8) forced plaintiffs to engage in six lawsuits with multiple defendants, claimants, and homeowners, and involving different causes of action; (4) rested its entire case upon an unreasonable interpretation of the disburser statute; and (5) refused to discuss settlement.

The determination whether attorney fees should be awarded under the statute authorizing assessment of fees for a vexatious action is within the discretion of the trial court and will not be disturbed on review if it is supported by the evidence. See M Life Insurance Co. v. Sapers & Wallack Insurance Agency, Inc., 962 P.2d 385 (Colo.App.1998).

Given the court's findings, we conclude that the trial court's award of attorney fees under § 18-17-102, C.R.8.1999, was proper. FCIB's defense was "stubbornly litigious," in that it forced plaintiffs to engage in multiple actions involving the same issues on which plaintiffs repeatedly prevailed. Further, the court's finding that the defense was conducted at least, in part, in bad faith, is amply supported by the record. See Engel v. Engel, 902 P.2d 442, 446 (Colo.App.1995).

As noted, because we agree that FCIB's actions were vexatious, we do not reach the court's other grounds for the award of fees. However, we decline plaintiffs' request for an award of attorney fees for this appeal either under § 13-17-102(4) or CAR. 38(d). See Wood Bros. Homes, Inc. v. Howard, 862 P.2d 925, 935 (Colo.1993) (under either § 13-17-101 or CAR. 38(d), "arguments that are extremely unlikely to prevail on appeal cannot be said necessarily to be frivolous").

IV.

FCIB's remaining issues were not properly raised in the trial court. Therefore, we will not consider them on appeal. See Bolen v. Ferry Trust, supra.

The judgment is affirmed.

Judge TAUBMAN and Judge CASEBOLT concur.


text:
    CRISSEY FOWLER LUMBER COMPANY; DMS Custom Counter, Inc.; Academy Drywall, Inc.; Campbell Roofing, Inc.; Window Center, Inc.; Jolly Plumbing and Heating, Inc; William W. Schaefer d/b/a W.W. Masonry; Western Fireplace Supply, Inc.; Can America Drilling, Inc.; Pro Builder Supply n/k/a Metal Industries, Inc.; and Rustic Floor Covering, d/b/a The Wetta Corporation, Plaintiffs-Appellees, v. FIRST COMMUNITY INDUSTRIAL BANK; David L. Taylor and Sandra K. Taylor, Defendants-Appellants.
    No. 98CA2338.
    Colorado Court of Appeals, Div. V.
    Feb. 3, 2000.
    Rehearing Denied April 6, 2000.
    Certiorari Denied Sept. 11, 2000.
    Anderson, Dude & Lebel, P.C., Stephen J. Lebel, Colorado Springs, Colorado, for Plaintiffs-Appellees Crissey Fowler Lumber Company and DMS Custom Counter, Inc.
    Jack A. Holst, P.C., Jack A. Holst, Colorado Springs, Colorado, for Plaintiff-Appellee Academy Drywall, Inc.
    Dean T. Ogawa, Colorado Springs, Colorado, for Plaintiff-Appellee Campbell Roofing, Inc.
    Kane, Donley & Johnson, P.C., Jerry A. Donley, Colorado Springs, Colorado, for Plaintiff-Appellee Window Center, Inc.
    Alpern Myers Stuart Scheueman, Howard J. Alpern, Colorado Springs, Colorado, for Plaintiff-Appellee Jolly Plumbing and Heating, Inc.

      Peggy A. Hayes, Colorado Springs, Colorado, for Plaintiff-Appellee William W. Schaefer d/b/a W.W. Masonry.
    William H. Wiedemann, Colorado Springs, Colorado, for Plaintiffs-Appellees Western Fireplace Supply, Inc., and Can America Drilling, Inc.
    Law Offices of Phillip S. DeCaro, Phillip S. DeCaro, Colorado Springs, Colorado, for Plaintiff-Appellee Pro Builder Supply n/k/a Metal Industries, Inc.
    Kleinsmith & Associates, P.C., Philip M. Kleinsmith, Colorado Springs, Colorado, for Plaintiff-Appellee Rustic Floor Covering, d/b/a The Wetta Corporation.
    Vaglieca & Meinhold, L.L.C., Don H. Mein-hold, Su-Lyn Combs, Colorado Springs, Colorado, for Defendant-Appellant First Community Industrial Bank.
    No Appearance for Defendants-Appellants David L. Taylor and Sandra K. Taylor.
   Opinion by Judge DAVIDSON.

In this consolidated action, defendants, First Community Industrial Bank (FCIB), and homeowners, David L. and Sandra K. Taylor (the Taylors), appeal from the judgment entered by the trial court in favor of plaintiffs, Crissey Fowler Lumber Company; DMS Custom Counter, Inc.; Academy Drywall, Inc.; Campbell Roofing, Inc.; Window Center, Inc.; Jolly Plumbing and Heating, Inc.; William W. Schaefer d/b/a W.W. Masonry; Western Fireplace Supply, Inc.; Can America Drilling, Inc.; Pro Builder Supply n/k/a Metal Industries, Inc.; and Rustic Floor Covering, d/b/a The Wetta Corporation. The court found that § 38-22-102(8.5), C.R.S.1999, the homeowner's affirmative defense against the assertion of mechanics liens, did not apply. We affirm.

In the trial court, the parties agreed that the claims and issues in the case of the Taylors adequately represented the common facts and issues of six other consolidated cases. They agreed, therefore, that the disposition of that case would be the law of the case in the other actions. We will, at the parties' request, also treat this appeal in the same manner.

In January 1995, the Taylors purchased property in Colorado Springs and subsequently contracted with a general contractor to build a home on the property for $135,000. The Taylors obtained a loan for $134,180 from FCIB to finance the construction.

The general contractor hired numerous subcontractors, including the plaintiffs here. In September 1995, the Taylors and the contractor entered into a change order agreement that raised the cost of the home to approximately $146,500.

The contractor continued work on the home until November 1995, when it abandoned the project without fully paying the subcontractors. At this point, through the construction loan, the Taylors had paid the general contractor approximately $130,000. See Crissey Fowler v. First Industrial Bank, 8 P.3d 5381 (Colo.App. No. 97CAZ167, February 3, 2000).

The Taylors subsequently hired a new general contractor who in turn hired new subcontractors to finish construction of the home. In January 1996, the Taylors modified and extended their loan agreement with FCIB to cover these expenses, and the bank began to make disbursements to the new contractors. In the interim, plaintiffs had recorded mechanies' liens against the Tay-lors' property, totaling approximately $50,-000.

The parties filed eross-motions for summary judgment. Defendants claimed that § 38-22-102(8.5) protected them from the assertion of these liens.

In its order granting summary judgment to plaintiffs, the trial court determined that the Taylors could not avail themselves of the protection provided for in $ 38-22-102(8.5) because they had not paid the full contract price before the liens were asserted and because they were aware of the liens before hiring a new contractor. Defendants filed this appeal.

We conclude that the trial court properly determined that defendants were not protected under § 88-22-102(8.5). - Specifically, we conclude that, because defendants had paid their original contractor only part of the purchase price before the liens were recorded, the cireumstances did not trigger the intended protection of § 88-22-102(8.5) against liens filed after the payment of the full purchase price.

We review a summary judgment de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995). Summary judgment is appropriate if no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. The burden of showing that no such issue exists is on the moving party, and all doubts are to be resolved in favor of the nonmoving party. Vargas v. State Farm Mutual Automobile Insurance Co., 916 P.2d 652 (Colo.App.1996).

Section 38-22-102(8.5) states, in pertinent part:

[I]t shall be an affirmative defense in any action to enforce a lien pursuant to this article that the owner or some person acting on his behalf has paid an amount sufficient to satisfy the contractual and legal obligations of the owner, including the initial purchase price or contract amount plus any additions or change orders, to the principal contractor or any subcontractor for the purpose of payment to the subcontractors or suppliers of materials or services to the job, when:
(b)The property is a residence constructed by the owner or under a contract entered into by the owner prior to its occupancy as his primary residence.

Section 88-22-102(8.5) was enacted to protect homeowners from paying for their home twice simply because a general contractor had not paid its subcontractors. Onee the homeowner pays the general contractor the full purchase price, § 38-22-102(3.5) immediately applies. - Wholesale Specialties, Inc. v. Village Homes, Ltd., 820 P.2d 1170 (Colo.App.1991).

Defendants contend that the trial court erred in finding that they could not assert the homeowner's defense. Specifically, they argue that they are entitled to the protection provided by § 38-22-102(8.5) because they ultimately paid more than the original purchase price for their home. We disagree.

Here, as noted, defendants' original contractor abandoned the project midway without paying plaintiffs either in part or in full. At that point, defendants had paid the contractor $130,000 of the $146,500 purchase price. Thus, because they had to hire a second general contractor and new subcontractors, eventually defendants paid the original purchase price, and more, for their home. - Accordingly, defendants contend, they satisfied the statutory requirement of paying "the initial purchase price or contract amount plus any additions or change orders."

Rejecting this argument, however, the trial court concluded that, because they knew of plaintiffs' liens prior to completing payment, the Taylors were in a different position from that of a homeowner who does not learn of any mechanies' liens until after full payment. The court reasoned that under the plain language of § 38-22-102(8.5), defendants could not assert the homeowner's defense because they had not paid "the initial purchase price" prior to plaintiffs' liens being recorded. We agree with that interpretation.

The primary goal of statutory construction is to effectuate the intent of the General Assembly. Wholesale Specialties, Inc. v. Village Homes, Litd., supra. The words and phrases in statutes are to be construed according to their familiar and generally accepted meaning, and when the language of the statute is plain and its meaning clear, a court should avoid strained interpretation. Harding v. Industrial Commussion, 188 Colo. 52, 515 P.2d 95 (Colo.1978).

Here, in pertinent part, the language of § 38-22-102(8.5) is not ambiguous. It states plainly that a homeowner may assert the affirmative defense only when he or she "has paid ... the initial purchase price" (emphasis added). By phrasing the payment obligation in the present perfect tense, the General Assembly intended that, prior to the assertion of the defense, the owner already must have paid the contractor the full purchase price. See Wholesale Specialties, Inc. v. Village Homes, Litd., supra, 820 P.2d at 1174 ("§ 38-22-102(8.5) protects an owner who

has paid the purchase or contract price from subsequent mechanics' liens").

This is consistent with the primary purpose of the general mechanies' lien statute, which is to benefit and protect those who supply labor, materials, or services to enhance another's property. See City of Westminster v. Brannan Sand & Gravel Co., 940 P.2d 393 (Colo.1997); Skillstaff of Colorado, Inc. v. Centex Real Estate Corp., 978 P.2d 674 (Colo.App.1998) (discussing equitable nature of the mechanies' lien act); Ridge Erection Co. v. Mountain States Telephone & Telegraph Co., 37 Colo.App. 477, 549 P.2d 408 (Colo.App.1976) (act's underlying principle is to prevent unjust enrichment).

Here, even if we use the original purchase price set by the general contractor rather than that set by the subsequent contractor to measure payment, defendants had not paid the full purchase price at the time the Hens were filed.

Moreover, we disagree with defendants that, because they had incurred new, additional costs after the original contractor abandoned the project, they have paid twice for their home. To the contrary, the inequity the statute seeks to avoid is a homeowner paying the same costs twice. Here, however, it was undisputed that the new subcontractors did not redo plaintiffs' work, but simply finished the remaining undone work on the home. And, although aware of plaintiffs' liens, defendants did not "fully pay" for their work even once.

In light of our conclusion that the trial court properly determined that the homeowner's defense was inapplicable under the cireumstances here, we need not address defendants' other contentions.

The judgment is affirmed.

Judge TAUBMAN and Judge CASEBOLT concur.


author: Judge JONES. Judge TAUBMAN

text:
    In re the MARRIAGE OF Barbara BOHN, Appellee, and Daniel Bohn, Appellant.
    No. 98CA1859.
    Colorado Court of Appeals, Div. III.
    Feb. 3, 2000.
    Rehearing Denied April 6, 2000.
    Certiorari Denied Sept. 11, 2000.

      Joyee K. Sanchez, Colorado Springs, Colorado, for Appellee.
    Robert M. Moyers, Colorado Springs, Colorado, for Appellant.
   Opinion by

Judge JONES.

In this post-dissolution of marriage proceeding, Daniel Bohn (father) appeals the order increasing his child support obligation to Barbara Bohn (mother) and awarding her attorney fees. We affirm.

When their marriage was dissolved in 1996, the father was ordered to pay the mother $352 per month for the support of their daughter. This amount was based on monthly gross incomes of $1,982 for the mother, and $2,472 for the father.

Two years later, the father won a prize of $1.2 million gross from the Colorado State Lottery. Once the required taxes were withheld, the net amount the father received in 1998 was $816,000, since he chose the cash option rather than an annuity. After reading in the newspaper of the father's good fortune, the mother filed a motion to modify child support.

The trial court determined that the entire $1.2 million was gross income for the 1998 calendar year, and, therefore, that the father's monthly gross income for 1998 was $104,743.17. After considering the taxes the father would pay for 1998 income, the needs of the daughter, and the benefits she would have received had the marriage not been dissolved, the trial court ordered father to pay child support in the amount of $4,208 per month during 1998 beginning April 23, 1998, when the mother filed the motion to modify.

The trial court also found that the father "has invested a portion of his winnings and can expect to experience a significant increase in income in future years from that source." Accepting the estimate that his income in 1999 would be $70,090, the trial court ordered that child support for 1999 was to be based on that income. Finally, the father was ordered to pay mother's attorney fees of $1,984.64.

I.

The father contends that child support should be based on the after-tax or net amount of his lottery winnings, rather than the gross amount. We disagree.

Child support is based on gross income, and gross income specifically includes "monetary prizes, excluding lottery winnings not required by the rules of the Colorado lottery commission to be paid only at the lottery office." Section 14-10-115(7)(a)(I)(A), C.R.S. 1999; see In re Marriage of McCord, 910 P.2d 85 (Colo.App.1995)(under earlier version of statute which included as gross income "gifts and prizes," but did not exclude certain lottery winnings, such winnings were gross income). Section 14-10-115(7)(a@a) does not provide for deduction of federal and state income taxes in computing gross income for purposes of calculating child support. In re Marriage of Stress, 939 P.2d 500 (Colo.App.1997).

The father argues that the gross amount should not be used to calculate support because he will never have access to the withheld portion of his winnings. However, even though taxes withheld are income which is unavailable to the recipient, they are still a component of gross income. See In re Marriage of Stress, supra.

The father also argues that under In re Marriage of Fain, 794 P.2d 1086 (Colo.App.1990), whenever a large one-time sum of money is received, the actual amount received should be used to calculate support. However, in that case, the father received a structured settlement of a personal injury claim, which was tax-free. A division of this court held that an amount should not be imputed to represent the amount of tax the father would have paid if the settlement were subject to taxation. Thus, the amount the father actually received there was the "gross" amount of his income and, therefore, support was properly based on that amount.

The circumstances here are distinguishable in that the father's winnings are taxable. Even so, the result in Fain supports the use of the gross amount under the plain language of § 14-10-115(7)(a).

Recently, a division of this court in In re Marriage of Zisch, 967 P.2d 199 (Colo.App.1998), relying upon In re Marriage of Bregar, 952 P.2d 7838 (Colo.App.1997), considered issues, concerning matters of capital gains, similar to those presented here. However, the father's reliance on those cases here is misplaced because those cases stand for the proposition that net income should be used in determining the amount of investment income a large, one-time sum of money may be expected to generate. Indeed, Zisch specifically holds that when a large one-time capital gain is received, the gross amount should be used in calculating income in the year of its receipt.

Section 14-10-115(7)(a) plainly states that the gross amount of income is to be used when calculating child support, and we will not judicially legislate an exception for lottery winnings. See In re Marriage of Lishnevsky, 981 P.2d 609 (Colo.App.1999) (cert. denied August 16, 1999) (declining to read a provision into § 14-10-115). Furthermore, whenever a large sum of money is received by one party, a trial court always has the option to deviate from the presumed amount of support if that amount is inequitable, unjust, or inappropriate See § 14-10-115(8)(a), C.R.9.1999.

Thus, the trial court did not err here in considering the entire $1.2 million the father won in the lottery.

II.

Next, the father contends the trial court erred in counting his winnings twice: once in 1998, by annualizing the gross income for the year, and again in each subsequent year as an income producing asset. We disagree.

The amount received as gross income is used to calculate child support for the year in which the income is received. Thereafter, if a parent invests a portion of the funds which were received as income in one year, any interest earned in the subsequent years is properly included as gross income for purposes of child support. See In re Marriage of Zisch, supra.

IIL

The father also contends that the trial court erred in entering a child support order that is twice the amount which mother testified was necessary or desirable. We disagree.

Nothing in the child support statute precludes the trial court from ordering a support payment that exceeds the known needs of the child. In re Marriage of Nimmo, 891 P.2d 1002, 1007 (Colo.1995) ("The guidelines were not enacted to prevent an increase in a child's standard of living by denying a child the fruits of one parent's good fortune."); In re Marriage of McCord, supra. Rather, a child support order is calculated to serve the best interests of children and to mitigate the potential harm to them caused by the dissolution of marriage. In re Marriage of Aldrich, 945 P.2d 1370 (Colo.1997).

We find no abuse of discretion in the amount awarded here. The child was entitled to benefit from her father's windfall, and the evidence showed that as of the date of the hearing, she had not. In fact, the mother testified that the father "never bothered to tell [his teenage daughter] he had won." Furthermore, the father testified that he had provided financial help to himself and his extended family, but he did not testify that he had spent any of the funds directly on his daughter. These circumstances support the award here.

IV.

The father's final contention is that the trial court erred in awarding the mother her attorney fees incurred in bringing the motion to modify child support. Again, we disagree.

Section 14-10-119, C.R.S$.1999, permits the trial court to apportion attorney fees and costs in dissolution and post-dissolution matters based upon the relative economic cireumstances of the parties. In re Marriage of Aldrich, supra; In re Marriage of McNamara, 962 P.2d 330 (Colo.App.1998).

Here, after making findings as to both parties' financial resources for purposes of child support, the trial court found that the father "is far better able to pay the cost of this proceeding than the [mother]." This is a sufficient basis to support the award. Cf. In re Marriage of Aldrich, supra (insufficient findings required remand); In re Marriage of Zisch, supra (same).

The order is affirmed.

Judge NEY concurs.

Judge TAUBMAN specially concurs.

Judge TAUBMAN

specially concurring.

I write separately to reiterate the view expressed in my special concurring opinion in In re Marriage of Zisch, 967 P.2d 199, 204 (Colo.App.1998), that a large one-time receipt of income should be considered as income only in the month in which it was received, and thereafter as a financial resource. Because I believe the trial court would have reached the same result under the analysis which I believe is correct, I concur with the result reached by the majority.

Fisch involved a one-time receipt of a large capital gain. The majority in that opinion expressed the view that the gross amount of such capital gain should be considered as income for the year in which the capital gain was received. That was the approach used by the trial court here. The trial court averaged father's gross $1.2 million lottery winnings over the entire year of 1998, even though such lottery winnings were not received until April, and mother's motion to modify child support was not filed until April as well. Consequently, the trial court attributed more than $300,000 of father's lottery winnings to the months of January, February, and March, and therefore, did not consider such amount in any way with respect to mother's motion to modify child support.

For the reasons set forth in my special concurring opinion in In re Marriage of Zisch, I believe that this approach was incorrect. As I indicated there, nothing in the child support statute, $ 14-10-115, C.R.S. 1999, specifies how a large, one-time receipt of income should be treated. In Fisch, I noted that anomalous results would follow from spreading out a large capital gain received in November over a two-month period, as opposed to spreading out a capital gain of the same amount received earlier in the year over a greater number of months.

Here, the trial court's approach was not one which I had envisioned when I wrote my special concurring opinion. However, as noted above, the disadvantage of the trial court's approach here was that it did not consider over $300,000 of father's lottery winnings, which the trial court had allocated to the months of January, February, and March.

Indeed, the effect of the trial court's approach would have been even more arbitrary had father received his lottery winnings in November. In that event, the trial court would have apportioned father's winnings over the entire year, but would have considered as income only approximately $200,000 attributed to November and December. Under such an approach, more than one million dollars of father's lottery winnings would not have been considered as income.

In contrast, my view is that father's lottery winnings should have been considered as income only for the month of April 1998. In subsequent months, the unspent amount of his lottery winnings would be considered a "substantial and continuing changed cireum-stance" pursuant to § 14-10-122(1)(a), C.R.S. 1999. As new wealth, the unspent portion of father's lottery winnings, beginning in May 1998, would have provided a basis for deviating from the child support guidelines under § 14-10-115@8)(a), C.R.S.1999. Further, I believe that beginning in May 1998, the trial court should have begun to compute a reasonable amount of investment income which father's unspent lottery winnings could reasonably be expected to generate. Beginning in May, such income also should have been used to determine an appropriate amount of child support.

Finally, I continue to urge that either the Colorado Child Support Commission or the General Assembly address the issue of how large, one-time receipts of income should be considered for purposes of child support modification and whether such amounts should be treated as income, assets, or both.

Because it is likely that the application of my approach would have led to the same result in the determination of father's child support obligation for 1998, I concur with the result reached by the majority.


author: Opinion by Judge ROY.

text:
    Jannine MOHR and Charlotte McDaniel, Plaintiffs-Appellants, v. Guy KELLEY, Defendant-Appellee.
    No. 98CA1271.
    Colorado Court of Appeals, Div. III.
    Feb. 17, 2000.
    Certiorari Denied Sept. 5, 2000.

      Jannine Mohr, Pro Se.
    Thomas R. French, P.C., Thomas R. French, Fort Collins, Colorado, for Plaintiff-Appellant Charlotte McDaniel.
    Bennington Johnson & Reeve, P.C., Thomas C. Reeve, Kathleen E. Craigmile, Denver, Colorado, for Defendant-Appellee.
   Opinion by Judge ROY.

In this action arising out of an employment wage dispute, plaintiffs, Jannine Mohr and Charlotte McDaniel, appeal a partial summary judgment entered in favor of defendant, Guy Kelley. We affirm.

McDaniel and Mohr were initially volunteers with defendant's campaign committee for election to the United States House of Representatives from the Fourth Congressional District in the 1996 general election (the Campaign). In their amended complaint, the plaintiffs allege they were each hired by the Campaign: McDaniel in January of 1996, and Mohr, as Campaign chairman, in March of 1996. Both Mohr and McDaniel occupied paid positions.

In October of 1996, Mohr was discharged, and the following day McDaniel resigned. Following their departure from the Campaign, plaintiffs claimed they were owed back wages. The Campaign refused to pay, stating that it did not have sufficient funds to pay the salaries.

Consequently, plaintiffs commenced this action against defendant, individually, asserting claims for breach of contract, quantum meruit, promissory estoppel, and a violation of the Colorado Wage Claim Act, §§ 8-4-101 to 8-4-127, C.R.$.1999 (the Wage Act).

After some preliminary discovery was conducted, and based upon the undisputed facts revealed, defendant moved for summary judgment on all of plaintiffs' claims. The trial court granted defendant's motion on the grounds that defendant was not individually liable to plaintiffs pursuant to the. Uniform Unincorporated Nonprofit Association Act (the Association Act), § 7-30-101, et seq., C.R.98.1999, most particularly § 7-80-106, C.R.9.1999. In addition, the trial court concluded there was no issue as to any material fact that the obligation to pay a salary or wages for the plaintiffs' services was contingent on the availability of funds, and no funds were available. Plaintiffs sought and obtained a C.R.C.P. 54(b) order, and this appeal followed.

Appellate review of an order granting summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo. 1995).

When reviewing a summary judgment order, we are required to determine whether any genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law. Churchey v. Adolph Coors Co., T59 P.2d 1886 (Colo.1988). In making this determination, all doubts as to the existence of a triable factual issue must be resolved against the moving party, Travelers Insurance Co. v. Savio, 406 P.2d 1258 (Colo.1985), and the opposing party is given the benefit of all favorable inferences that may be drawn from the facts. Kaiser Foundation Health Plan v. Sharp, 741 P.2d 714 (Colo.1987).

However, onee the moving party establishes that no material fact is in dispute, the burden of proving the existence of a factual issue shifts to the opposing party. Failure of the opposing party to satisfy its burden entitles the moving party to summary judgment. Gifford v. City of Colorado Springs, 815 P.2d 1008 (Colo.App.1991).

In addition, arguments or evidence not presented to the trial court in connection with a motion for summary judgment will not be considered on appeal. See County Court v. Ruth, 194 Colo. 852, 575 P.2d 1 (1977), appeal after remand, 198 Colo. 6, 595 P.2d 287 (1979) (appellate jurisdiction limited to issues which had been before the district court in proper procedural posture).

I.

Plaintiffs contend that the trial court erred in holding that the defendant was not personally liable for the obligations of the Campaign under the Association Act. We disagree.

The Association Act was originally proposed by the Commissioners on Uniform State Laws in 1992, and was adopted in Colorado in 1994. Colo. Sess. Laws 1994, ch. 222, § 1.

Prior to the Association Act's adoption, unincorporated associations, profit and nonprofit, were treated the same as general partnerships, thus members could be individually liable for obligations of the association in both tort and contract. See Thomas v. Dunne, 181 Colo. 20, 279 P.2d 427 (1955). Section 7-830-106 substantially changes the law with respect to unincorporated nonprofit associations. It provides in pertinent part as follows:

(1) A nonprofit association is a legal entity separate from its members for the purposes of determining and enforcing rights, duties, and liabilities in contract and tort. (2) A person is not liable for a breach of a nonprofit association's contract merely because the person is a member of the nonprofit association, is authorized to participate in the management of the affairs of the nonprofit association, or is a person considered to be a member by the nonprofit association.

There is no case law construing or applying this provision of the Association Act. The Association Act makes a nonprofit unincorporated association a legal entity separate and apart from its members. Therefore, logically, nonprofit unineorporat-ed associations are more in the nature of corporations, limited partnerships, or limited liability companies. This basic and fundamental change has a considerable impact on the liability of members and others for the liabilities of nonprofit unincorporated associations. The official comments make these changes, and their implications, clear. Two of the official comments state:

3. - Subsections [2] through [5] are applications to common cases of the basic principle in subsection [1]. Because a nonprofit association is made a separate legal entity, its members are not co-prineipals. Consequently they are not liable on contracts or for torts for which the association is liable. Subsection [2] specifies that result with respect to contracts.
4. Subsection [2] applies the principle in subsection [1] to relieve members and others from vicarious liability for the contracts of a nonprofit association.

Plaintiffs allege that they were hired by the Campaign and that defendant negotiated their respective employment agreements, and made most, if not all, of the management decisions for the Campaign. It is undisputed that the defendant, as the candidate, was the person to be benefited by the activities of the Campaign and participated in its management. There was, however, no formal organizational structure to the Campaign.

It is clear from the plain meaning of § /- 30-106 that the defendant is not liable for the contracts of the Campaign merely because he was the candidate, was a member of the Campaign, had management responsibilities within the Campaign, or negotiated the plaintiffs employment contracts on behalf of the Campaign.

Having so concluded, we need not address the trial court's alternative holding that the obligation of the Campaign to pay the plaintiffs a salary was contingent on the availability of funds.

II.

Plaintiffs argue that the Wage Act which makes an employer liable for wages and which, in § 8-4-101(6), C.R.S.1999, defines "employer" as persons and entities "and any agent or officer thereof," renders defendant liable for their pay, the provisions of the Association Act notwithstanding. - While plaintiffs alleged claims in their original and amended complaints under the Wage Act, they failed to make this argument before the trial court either prior to, or following, the entry of summary judgment. We will not address an argument raised for the first time on appeal. Horrell v. City of Aurora, 976 P.2d 815 (Colo.App.1998).

Judgment affirmed.

Judge PLANK and Judge CASEBOLT concur.


author: Judge NIETO.

text:
    Rebecca A. SWAN, Plaintiff-Appellant, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a Wisconsin corporation, Intervenor-Appellee.
    No. 98CA1768.
    Colorado Court of Appeals, Div. L
    March 2, 2000.
    Certiorari Denied Sept. 5, 2000.

      Vernon K. Sessions, Denver, Colorado, for Plaintiff-Appellant.
    Harris, Karstaedt, Jamison & Powers, P.C., Lee Lindsay, Englewood, Colorado, for Intervenor-Appellee.
   Opinion by

Judge NIETO.

Plaintiff, Rebecca A. Swan, appeals from the judgment of the trial court modifying an arbitration award against the intervenor, American Family Mutual Insurance Company (American Family). We affirm.

Plaintiff was involved in an automobile accident with an uninsured motorist, and subsequently brought suit seeking damages. The defendant failed to answer or appear in the case. Plaintiff's own automobile insurance carrier, American Family, intervened prior to the damages hearing. The trial court then ordered that, pursuant to the insurance contract, the case would be held in abeyance pending resolution of the uninsured motorist insurance arbitration between the plaintiff and American Family.

On April 17, 1998, the arbitrators entered the initial award of $150,000 plus interest and costs for the plaintiff. On April 28, 1998, American Family filed an application with the arbitrators requesting modification of the award. They asserted that the award should be reduced to $100,000, the policy limit of the uninsured motorist insurance. 1998, in response to American Family's application, the arbitrators entered the following order (amended award): On May 18,

The arbitrators decline to modify their award, Order that the maximum amount recoverable under law and the insurance contract is $100,000, which would include interest. Plus the additional costs awarded under this Order. [sic].

Within thirty days following entry of the amended award but more than thirty days after the initial award, American Family asked the trial court to vacate and modify the arbitration award. Plaintiff filed a motion requesting that the trial court confirm the initial award. After hearing, the trial court modified the arbitration award to $100,000 plus interest and costs, and entered judgment in favor of plaintiff and against American Family.

I

On appeal to this court, the plaintiff asserts that the initial award became final when American Family failed to ask the court to vacate or modify the award within thirty days of delivery to the parties, as required by §§ 13-22-214 and 183-22-215, C.R.S$.1999. Relying on Kutch v. State Farm Mutual Automobile Insurance Co., 960 P.2d 93 (Colo.1998), plaintiff asserts that American Family's application to the arbitrators to modify their award pursuant to § 13-22-211, C.R.9$.1999, did not toll the time limits in §§ 18-22-214 and 18-22-215. In Kutch the supreme court held that failure to apply to the court for vacation or modification of an arbitration award within the time period mandated by §§ 13-22-214 and 18-22-215 acts as a bar to modification. However, in Kutch there was no application to the arbitrators for modification of the award pursuant to § 18-22-211. Therefore, Kutch did not consider the tolling issue raised by American Family.

American Family argues that the application filed with the arbitrators to modify the initial award in effect tolled the thirty-day requirement in §§ 18-22-214 and 18-22-215. We agree.

Section 18-22-211 provides that, on application of a party within twenty days after delivery of the award, the arbitrators may modify or correct the award "upon the grounds stated in section 183-22-215(1)(a) and (1)(c) or for the purpose of clarifying the award." The statute also provides that the modified or corrected award "is subject to the provisions of sections 13-22-218 to 13-22-215."

« The effect § 13-22-211 has upon the other time limits in the Uniform Arbitration Act of 1975, §§ 18-22-201 through 18-22-2283, C.R.S.1999, is a matter of first impression in Colorado. The issue has been addressed by the courts in other jurisdictions. In Konicki v. Oak Brook Raequet Club, Inc., 110 Ill. App.3d 217, 65 Ill.Dec. 819, 441 N.E.2d 1333 (1982), the court, in construing similar statutes, held that application to the arbitrator tolls the time for seeking review in the trial court regardless of whether the relief requested is granted or denied. Other jurisdictions have reached a contrary result,. See Groves v. Groves, 704 N.E2d 1072 (Ind.Ct.App.1999); Teleometrics International, Inc. v. Hall, 922 S.W.2d 189 (Tex.App.1995). We find the reasoning in Konicki more persuasive because it gives effect to all the provisions of the statutes involved and reflects due concern for the efficiency of the arbitration process and for judicial economy.

Therefore, we hold that an application to the arbitrators pursuant to § 18-22-211 tolls the time limits in §§ 18-22-214 and 13-22-215. These time limits begin to run anew upon delivery of the arbitrators' order to the parties.

We find support for our conclusion in § 13-22-2022, C.R.S.1999, which states the legislative intent to make the arbitration process efficient while promoting judicial economy. The act gives parties the right to ask the arbitrator to modify an award, but does not set a time within which the arbitrator must act on the request. If an application to the arbitrators pursuant to § 18-22-211 does not toll the time limits of §§ 13-22-214 and 13-22-215, given the very short time limits, a party would have to proceed in both forums to guarantee that the issues would be considered. - Requiring duplicate filings, which would be almost automatic, is not consistent with the stated legislative intent to make the arbitration process effective and efficient. It also would not promote judicial economy to require filing petitions with the court when the issues may be resolved by the arbitration. If parallel petitions are filed, it could lead to the anomalous result of the arbitrators modifying an award at the same time the court is vacating it.

II

Plaintiff argues that the court committed reversible error by modifying the arbitrators' award upon grounds other than those provided in § 13-22-215. Plaintiff is correct that § 18-22-215 limits the authority of the court to modify an arbitration award. Foust v. Aetna Casualty & Insurance Co., 786 P.2d 450 (Colo.App.1989). However, the decision in Kutch makes it clear that in an uninsured motorist insurance arbitration, an award beyond the policy limits exceeds the powers of the arbitrators and can be vacated pursuant to $ 18-22-214. American Family's motion requested relief under both §§ 13-22-214 and 18-22-215. Therefore, the court could have vacated that portion of the award which exceeded the policy limits.

If an arbitrator makes an award which is outside the scope of the issues submitted, that portion of the award which goes beyond the matters submitted to it for resolution is void for lack of jurisdiction (emphasis added).

Lynch v. Three Ponds Co., 656 P.2d 51 (Colo.App.1982).

Here, the trial court couched its order in terms of "modification," but the effect of the order was the same as if it had vacated that portion of the award which exceeded the powers of the arbitrators. Under these circumstances, we conclude that the error was harmless. See Biel v. Alcott, 876 P.2d 60 (Colo.App.1993).

TIL

Plaintiff asserts that she is entitled to the full amount of interest on the award from the date of her injury. That may be so as it relates to the tortfeasor, but the issue here is her entitlement to compensation from her own insurance company.

Prejudgment interest is an element of damages. Allstate Insurance Co. v. Starke, 797 P.2d 14 (Colo.1990). Therefore, plaintiff was entitled to recover prejudgment interest from American Family from the date of her injury until the issuance of the initial arbitration award, but only to the limits of the uninsured motorist insurance policy. Allstate Insurance Co. v. Allen, 797 P.2d 46 (Colo.1990). Here the parties agree that the policy limits were $100,000. - Therefore, plaintiff cannot require American Family to pay prejudgment interest in this case because it would be beyond the policy limits.

The court entered judgment for "interest and costs." The plaintiff is entitled to receive post-judgment interest on the award of $100,000 from the date of the initial award, April 17, 1998, until it is paid. $ 512-102, C.R.S.1999; Wilson v. Estate of Lawrence, 910 P.2d 67 (Colo.App.1995)

The trial court's judgment for $100,000 plus interest and costs in favor of plaintiff and against American Family is affirmed.

Judge METZGER and Judge RULAND concur.