author: Judge ROTHENBERG.

text:
    ARCHANGEL DIAMOND CORPORATION, Plaintiff-Appellant and Cross-Appellee, v. ARKHANGELSKGEOLDOBYCHA, Defendant-Appellee and Cross-Appellant, and Lukoil, Defendant-Appellee.
    No. 02CA2368.
    Colorado Court of Appeals, Div. II.
    March 25, 2004.
    Rehearing Denied June 17, 2004.

      Dorsey & Whitney, LLP, Tucker K. Traut-man, Scott P. Sinor, Denver, Colorado; Marks & Sokolov, LLC, Bruce S. Marks, Philadelphia, Pennsylvania, for Plaintiff-Appellant and Cross-Appellee.
    Davis, Graham & Stubbs, LLP, Anthony J. Shaheen, Tom McNamara, Denver, Colorado; Winston, & Strawn, LLP, Michael D. Burrows, Robert M. Buschmann, Catherine B. Schumacher, New York, New York, for Defendant-Appellee and Cross-Appellant.
    Rothgerber, Johnson & Lyons, LLP, Frederick J. Baumann, Douglas B. Tummi-nello, Denver, Colorado; Akin, Gump, Strauss, Hauer & Feld, LLP, Michael K. Swan, Trenton T. McKenna, Houston, Texas, for Defendant-Appellee.
   Opinion by

Judge ROTHENBERG.

In this commercial dispute, plaintiff, Archangel Diamond Corporation, appeals the order dismissing its claims and the summary judgment entered in favor of defendants, Arkhangelskgeoldobycha (AGD) and Lukoil, for lack of personal jurisdiction.

The primary issues in this appeal are (1) whether the trial court erred in resolving factual disputes to determine whether it could exercise personal jurisdiction over the nonresident defendants; and (2) whether the court erred in concluding it lacked such jurisdiction. Because we conclude the trial court properly resolved these issues, we affirm.

I. Background

Archangel is a Canadian public company that has maintained its principal place of business in Canada at all relevant times, except between 1998 and 2002 when it moved its principal office to Colorado.

AGD is a Russian public company in the oil, gas, and mining business with its principal place of business in Arkhangelsk, Russia.

Lukoil is a Russian public company. Its principal place of business is in Moscow, Russia. It owns a majority interest in AGD.

In 1993, AGD’s predecessor applied for and obtained a license from the Russian government to explore and develop diamond fields in Arkhangelsk, Russia. The predecessors of Archangel and AGD entered into a contract in which Archangel’s predecessor agreed to finance preliminary stages of the exploration and development, and AGD’s predecessor agreed to perform geological work under the license. The parties agreed that if initial exploration showed the field would be commercially productive, they would establish a joint stock company that would construct a mine and operate the field, and AGD would grant its rights under the license to that company.

The 1993 agreement was negotiated and executed in Russia. It provided for arbitration of disputes before the Stockholm Chamber of Commerce under the rules of the United Nations Commission for International Trade Law.

After the initial exploration of the diamond fields in 1994, Archangel, AGD, and others formed a Russian joint stock company (joint venture) and entered into a joint activity agreement to use the license. This agreement was negotiated and executed in Russia and provided that disputes arising therefrom were to be resolved in the Russian courts.

In 1996, explorers discovered an area containing diamonds with an estimated worth of $5 billion. However, as of 1998, AGD had not yet transferred the license to the joint venture. Archangel asserts that it negotiated a second agreement with AGD in 1999 requiring AGD to transfer the license rights to the joint venture within 180 days, but the transfer did not occur.

In 2001, Archangel filed this action in Colorado seeking compensatory and exemplary damages and injunctive relief. Archangel alleged that it became a Colorado resident in 1998 when it moved its principal place of business from Canada to Colorado. Archangel asserted tort claims against AGD and Lukoil for fraud, aiding and abetting fraud, conspiracy, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, and unjust enrichment.

Archangel also asserted a separate tort claim against Lukoil for intentional interference with contractual relations and separate claims against AGD only for breach of contract and breach of good faith and fair dealing.

AGD and Lukoil moved to dismiss on various grounds. The trial court granted the motion and entered judgment in their favor, concluding that it lacked personal jurisdiction over either defendant and that Archangel’s tort claims were barred by the economic loss rule.

In 2002, Archangel moved its principal place of business back to Canada.

II. Personal Jurisdiction

Archangel contends the trial court erred in granting defendants’ motion to dismiss for lack of personal jurisdiction. According to Archangel, it established personal jurisdiction over AGD and Lukoil because both defendants purposefully availed themselves of the privilege of conducting business activities in Colorado and also committed tortious acts directed into the state. We disagree.

A. Colorado’s Long-Arm Statute

The Colorado long-arm statute was intended to extend the personal jurisdiction of Colorado’s courts to their maximum limits permissible under the United States and Colorado Constitutions. Keefe v. Kirschenbaum & Kirschenbaum, P.C., 40 P.3d 1267 (Colo. 2002).

As relevant here, the Colorado long-arm statute permits the jurisdiction of Colorado courts to extend to causes of action arising from a nonresident defendant’s transaction of business within this state or the commission of a tortious act within this state. Section 13 — 1—124(l)(a)—(b), C.R.S.2003.

To be subject to long-arm statute jurisdiction, a nonresident defendant must have minimum contacts with Colorado or commit some act by which it “purposefully avails itself of the privilege of conducting activities” in Colorado. Scheuer v. Dist. Court, 684 P.2d 249, 251 (Colo.1984)(quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958)).

A plaintiff seeking relief under the long-arm statute must allege sufficient facts to support a reasonable inference that the nonresident defendant has engaged in conduct subjecting the nonresident to personal jurisdiction. A prima facie showing of threshold jurisdiction may be found from allegations in the complaint and from sufficient evidence introduced in any hearing conducted on the matter. Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra; In re Parental Responsibilities of H.Z.G., 77 P.3d 848 (Colo. App.2003); In re Marriage of Malwitz, 81 P.3d 1076 (Colo.App.2003).

Threshold jurisdiction may be established where tortious conduct initiated in another state causes injury in Colorado and where requiring a defendant to appeal- in this state would be consistent with due process of law. D & D Fuller CATV Constr., Inc. v. Pace, 780 P.2d 520, 524 (Colo.1989).

B. Due Process

After determining whether the requirements of the long-arm statute have been met, the court must separately determine whether a defendant has the requisite minimum contacts to satisfy due process. See Int’l Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

Due process requires that individuals have fair warning that a particular activity may subject them to the jurisdiction of another state. They have fair warning when their conduct and connection with the forum state are such that they should reasonably anticipate being haled into court there. Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra.

Unilateral activity by those who claim some relationship with a nonresident defendant does not in itself satisfy the requirement of contact with the forum state. There must be some act by which the nonresident purposefully availed itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of the forum state’s laws. The “purposeful availment” requirement ensures that a nonresident will not be haled into a jurisdiction solely as a result of random or fortuitous contacts. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985); Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra, 40 P.3d at 1270.

“For a nonresident to be subjected to the general jurisdiction of the forum state by his [her, or its] activities there, those activities must be continuous and systematic, of a general business nature.” Keefe v. Kir-schenbaum & Kirschenbaum, P.C., supra, 40 P.3d at 1271. But “for specific jurisdiction to adjudicate claims arising from [a nonresident’s] contacts with the forum state, the fair warning requirement is satisfied as long as the litigation results from alleged injuries that ‘arise out of or relate to’ activities that are significant and purposefully directed by the defendant at residents of the forum.” Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra, 40 P.3d at 1271 (quoting Burger King Corp. v. Rudzewicz, supra).

When minimum contacts with the forum state have been established, the court must determine whether the assertion of personal jurisdiction would comport with fair play and substantial justice. The court should consider factors such as the burden on the nonresident, the forum state’s interest in adjudicating the dispute, and the plaintiff’s interest in obtaining convenient and effective relief. Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra; In re Parental Responsibilities of H.Z.G., supra.

C. Trial Court’s Resolution of Factual Disputes

AGD and Lukoil filed a motion pursuant to C.R.C.P. 12(b)(2) asserting lack of personal jurisdiction, and the trial court resolved certain factual disputes before determining the issue. Relying on Leidy’s, Inc. v. H20 Engineering, Inc., 811 P.2d 38 (Colo. 1991), Archangel contends the trial court was required to resolve all factual disputes in its favor and it erred in failing to do so. We disagree.

In Leidy’s, the Colorado Supreme Court stated: “In ruling on a motion to dismiss for lack of personal jurisdiction, all factual disputes are resolved in the plaintiff’s favor.” Leidy’s, Inc. v. H20 Eng’g, Inc., supra, 811 P.2d at 40. However, because the facts in Leidy’s were “largely undisputed,” the supreme court did not address the manner in which a trial court should resolve factual disputes if necessary to determine whether it may exercise personal jurisdiction. Leidy’s, Inc. v. H20 Eng’g, Inc., supra, 811 P.2d at 39.

Similarly, the cases following Leidy’s for this proposition have not involved challenges to the accuracy, rather than the sufficiency of a plaintiffs jurisdictional facts, and we have been unable to find any reported Colorado decision citing Leidy’s that turned on conflicting evidence. See New Frontier Media, Inc. v. Freeman, 85 P.3d 611, 612 (Colo.App. 2003)(facts recited “[w.e]re not disputed”); Martinez v. Farmington Motors, Inc., 931 P.2d 546 (Colo.App.1996)(discussing evidence submitted by plaintiff); Ranger v. Fortune Ins. Co., 817 P.2d 600 (Colo.App.1991)(defen-dant did not contest jurisdictional allegations); see also Panos Inn Co. v. Dist. Court, 662 P.2d 180 (Colo.1983)(citing same standard as Leidy’s, but deciding on allegations in complaint alone).

However, cases involving challenges to subject matter jurisdiction provide guidance. Such challenges to subject matter jurisdiction are made through a C.R.C.P. 12(b)(1) motion to dismiss and come in two different forms — facial and factual attacks. As one authority has explained, in reviewing the federal rules:

A facial attack questions the sufficiency of the pleading. In reviewing a facial attack, a trial court accepts the allegations in the complaint as true. On the other hand, when a court reviews a complaint under a factual attack, the allegations have no presumptive truthfulness, and the court that must weigh the evidence has discretion to allow affidavits, documents, and even a limited evidentiary hearing to resolve disputed jurisdictional facts.
On a facial challenge, the plaintiff enjoys safeguards similar to those provided in opposing a Rule 12(b)(6) motion. The court will accept the plaintiffs allegations as true, construing them most favorably to the plaintiff, and will not look beyond the face of the complaint to determine jurisdiction.
When the attack is factual, however, “the trial court may proceed as it never could under [Rule] 12(b)(6) or [Rule] 56.” Because a factual Rule 12(b)(1) motion involves the court’s “very power to hear the case,” the court may weigh the evidence to confirm its jurisdiction. “No presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts does not preclude the trial court from evaluating for itself the merits of jurisdictional claims.”

2 James W. Moore, Moore’s Federal Practice § 12.30[4] (3d ed.2003)(footnotes and citations omitted); see Valentin v. Hosp. Bella Vista, 254 F.3d 358, 364 (1st Cir.2001)(rejecting argument that the facts should have been viewed in the light most favorable to plaintiffs position, and stating: “The motions to dismiss in this case plainly constitute factual challenges: they place in issue the accuracy, as opposed to the sufficiency, of the plaintiffs jurisdictional allegation.”); Patton v. Toshiba Am. Consumer Prods., Inc., 967 F.Supp. 283, 285-86 (M.D.Tenn.1997)(“A court evaluating a facial attack [on subject matter jurisdiction] must consider the allegations of fact in the complaint to be true.... Alternatively, if a Rule 12(b)(1) motion contests subject matter jurisdiction factually, the court ‘is free to weigh the evidence.... ’ [And the court] ‘has broad discretion to consider affidavits, documents outside the complaint, and to even conduct a limited evidentiary hearing if necessary.’ ”) (citations omitted).

In Colorado, factual disputes concerning subject matter jurisdiction under C.R.C.P. 12(b)(1) similarly have been resolved by the trial court at an evidentiary hearing. Trinity Broad, of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993).

In Trinity, the trial court entered summary judgment because the plaintiff failed to comply with jurisdictional prerequisites under the Governmental Immunity Act, § 24-10-101, et seq., C.R.S.2003. The supreme court reversed, concluding the issue concerned subject matter jurisdiction and had to be considered under C.R.C.P. 12(b)(1).

There, the parties submitted conflicting evidence regarding when the plaintiff discovered its injury and whether its notice was timely. The Trinity court concluded this disputed factual issue should be determined before trial by the court acting as fact finder. The supreme court looked at the federal rules, which are substantially similar to ours, and reasoned:

If the motion is a factual attack on the jurisdictional allegations of the complaint, such as the timeliness of the notice involved in this case, the trial court may receive any competent evidence pertaining to the motion. Fed.R.Civ.P. 12(b)(1) differs from Fed.R.Civ.P. 12(b)(6) (motion to dismiss for failure to state a claim) because a trial court may consider evidence pursuant to Fed.R.Civ.P. 12(b)(1) without converting the motion to a summary judgment motion as it would be required to do if it considered matters outside the pleadings under a Fed.R.Civ.P. 12(b)(6) motion. Under Fed.R.Civ.P. 12(b)(1):
Any factual dispute upon which the existence of jurisdiction may turn is for the court alone, and not a jury to determine. Appellate review of such a factual determination is on a clearly erroneous basis.
The “clearly erroneous” standard of appellate review under Fed.R.Civ.P. 12(b)(1) differs greatly from the standard of appellate review used if a Fed.R.Civ.P. 12(b)(6) motion is converted to a summary judgment motion under Fed.R.Civ.P. 56. The test for summary judgment is very stringent and gives every benefit of the inferences to the non-moving party_By contrast, under Fed.R.Civ.P. 12(b)(1), the plaintiff has the burden to prove jurisdiction and the standard of appellate review is highly deferential. As the Third Circuit Court of Appeals stated: Under Rule 12(b)(1), the court is “free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” ... In contrast, because a Rule 12(b)(6) motion “results in a determination on the merits at an early stage of plaintiffs ease, the plaintiff is afforded the safeguard of having all its allegations taken as true and all inferences favorable to plaintiff will be drawn.”

Trinity Broad of Denver, Inc. v. City of Westminster, supra, 848 P.2d at 924-25 (emphases added, footnote and citations omit-tedXquoting Boyle v. Governor’s Veterans Outreach & Assistance Ctr., 925 F.2d 71, 74 (3d Cir.1991)); see Valentin v. Hosp. Bella Vista, supra, 254 F.3d at 863 (a defendant who controverts the accuracy of the plaintiffs jurisdictional facts should proffer “materials of evidentiary quality in support of that position”).

We recognize that, here, defendants’ motion to dismiss was based on a lack of personal jurisdiction under C.R.C.P. 12(b)(2), whereas in Trinity, the defendant’s motion was based on lack of subject matter jurisdiction under C.R.C.P. 12(b)(1). However, where there is a factual challenge to personal jurisdiction, we conclude there are compelling reasons for applying the procedure approved in Trinity in determining the C.R.C.P. 12(b)(2) motion.

First, the trial court has discretion to allow discovery and to conduct an evidentiary hearing to decide motions to dismiss for lack of personal jurisdiction. See Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra. There would be no purpose in conducting such discovery if the court could not consider and weigh the facts gleaned from it.

Second, in other contexts, divisions of this court have cited Trinity in determining the extent to which the trial court should engage in fact finding. In Werth v. Heritage International Holdings, PTO, 70 P.3d 627, 629 (Colo.App.2003), a division of this court, relying on Trinity, held that when a court’s subject matter jurisdiction was contested by means of a C.R.C.P. 12(b)(1) motion and there are material issues of fact, the trial court is required to hold an evidentiary hearing to resolve those issues. The division in Werth explained that “the trial courts of this state have rather consistently conducted evi-dentiary hearings to resolve material factual issues upon which their jurisdiction depends.” Werth v. Heritage Int’l Holdings, PTO, supra, 70 P.3d at 628; see Aztec Minerals Corp. v. State, 987 P.2d 895, 898 (Colo. App.1999)(“as to motions under subsections of C.R.C.P. 12(b) other than C.R.C.P. 12(b)(5),” trial court may consider evidence outside the pleadings without converting the motion into a summary judgment motion). Compare Gadlin v. Metrex Research Corp., 76 P.3d 928 (Colo.App.2003)(remanding disputed matters under C.R.C.P. 15(c) relation back issue for determination at an evidentia-ry hearing, relying on Trinity), with Schwindt v. Hershey Foods Corp., 81 P.3d 1144 (Colo.App.2003)(no hearing was required under Trinity because motion to dismiss was for failure to state a claim under C.R.C.P. 12(b)(5); thus, court could consider only matters within the four corners of the pleading and must accept allegations as true).

Third, unlike a dismissal under C.R.C.P. 12(b)(5) or a grant of summary judgment, which resolves the issues on the merits and is with prejudice, Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990), a dismissal for lack of subject matter or personal jurisdiction is not a decision on the merits. Hence, the plaintiff is free to file the lawsuit in another forum or under circumstances that would support jurisdiction. Mann v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 488 F.2d 75 (5th Cir.1973)(dis-missal for lack of jurisdiction is not a dismissal on the merits that makes the action res judicata); see Fed.R.Civ.P. 41(b); C.R.C.P. 41(b).

In Burden v. Greeven, 953 P.2d 205 (Colo. App.1998), as here, the defendants moved to dismiss for lack of personal jurisdiction under C.R.C.P. 12(b)(2). A division of this court held that, unlike a motion for failure to state a claim under C.R.C.P. 12(b)(5), a C.R.C.P. 12(b)(2) motion “was not subject to conversion to a motion for summary judgment” and stated: “A motion to dismiss for lack of personal jurisdiction remains a motion to dismiss regardless of whether affidavits are considered, an evidentiary hearing is conducted, or other matters outside of the pleadings are considered.” Burden v. Greeven, supra, 953 P.2d at 208. But see Sender v. Powell, 902 P.2d 947 (Colo.App.1995)(sum-mary judgment affirmed where defendant moved to dismiss for lack of personal jurisdiction and attached evidence outside the pleadings).

Fourth, the issue of personal jurisdiction— like the issue of subject matter jurisdiction— is a legal determination, the resolution of which requires the balancing of numerous factors. The court must determine whether it has the power over the defendant to hear the dispute. Because that determination cannot be made by a jury, there is no reason to delay the resolution of this issue because of conflicting evidence.

Arguably, the prompt resolution of the personal jurisdiction issue is even more important than the resolution of subject matter jurisdiction because subject matter jurisdiction can be raised at any time, even after judgment. See Mesa County Valley Sch. Dist. No. 51 v. Kelsey, 8 P.3d 1200 (Colo. 2000); Hoyman v. Coffin, 976 P.2d 311 (Colo. App.1998). Personal jurisdiction, however, may be waived if the defendant participates in litigation of the merits, even though the defendant raises the defense in the answer. If the issue of personal jurisdiction is not resolved early in the proceedings, a nonresident defendant is at a significant disadvantage in determining how to proceed in the action while preserving the issue for appeal. See Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 61 (2d Cir.1999)(defendant “forfeited” personal jurisdiction defense by participating in extensive pretrial proceedings, such as discovery and settlement conferences, even though issue was raised in its answer); Cont’l Bank v. Meyer, 10 F.3d 1293, 1296 (7th Cir.1993)(defendants waived their objection to personal jurisdiction by participating in the merits of the lawsuit, “although [they] pled lack of jurisdiction in their answer”); T.L. Smith Co. v. Dist. Court, 163 Colo. 444, 431 P.2d 454 (1967)(defendant waived objection to personal jurisdiction by filing a permissive counterclaim seeking damages for plaintiffs breach of contract).

Where there are factual issues in dispute relevant to personal jurisdiction, we perceive no reason why the trial court should not resolve those issues in the manner prescribed in Trinity. As Professor Moore has explained, “In making its determination with respect to the existence of personal jurisdiction, the court has discretion to rely on written submissions or to hold a full evidentiary hearing.... If the court holds an evidentiary hearing ... the party asserting jurisdiction must demonstrate its existence by a preponderance of the evidence.” 2 Moore, supra, § 12.31[3].

Professor Moore also discusses the standard of review in cases challenging personal jurisdiction:

With undisputed facts, a district court’s determination that it has personal jurisdiction over a nonresident defendant becomes a question of law, reviewable de novo.
If facts going to personal jurisdiction are disputed, the normal “clearly erroneous” standard applies to review of the district court’s application of the law to those facts.

2 Moore, supra, § 12.31[6].

We therefore conclude the Trinity analysis, which requires that the trial court resolve disputed factual issues involving subject matter jurisdiction under C.R.C.P. 12(b)(1), should apply to motions to dismiss for lack of personal jurisdiction under C.R.C.P. 12(b)(2). Applying that analysis, whether a court may properly assert personal jurisdiction over a party is a question of law that we review de novo. Union Pac. R.R. v. Equitas Ltd., 987 P.2d 954 (Colo. App.1999). But we review the trial court’s determination of factual issues under a clearly erroneous standard. Trinity Broad, of Denver, Inc. v. City of Westminster, supra; see Dainippon Screen Mfg. Co. v. CFMT, Inc., 142 F.3d 1266, 1269 (Fed.Cir.1998).

Accordingly, where, as here, there is a factual challenge to personal jurisdiction— that is, the defendants have controverted the accuracy rather than the sufficiency of the jurisdictional facts asserted by the plaintiff and have proffered materials of evidentiary quality in support of their position — -we conclude the trial court did not err in weighing the conflicting evidence and in resolving the legal issues regarding such jurisdiction. We therefore reject Archangel’s contentions that the trial court erred in doing so and that reversal is required on that basis.

D. AGD’s Business Activities in Colorado

We also reject Archangel’s contention that AGD purposefully availed itself of the privilege of conducting business activities within Colorado and that the trial court erred in ruling otherwise.

Archangel alleged in its complaint, inter alia, that AGD directed numerous communications into the state, “including letters, tele-faxes, and telephone calls related to the Agreement and the 1999 Agreement ... [which] were designed to perpetrate [an illegal scheme].”

Archangel relies heavily on AGD’s transmission of communications into Colorado between March 1998 and April 2000, which consisted of telephone calls and letters directed to Archangel’s chief executive officer or to others and copied to him. The letters included general business declarations, draft press releases, and letters concerning the license dispute. The CEO’s notes of telephone communications with AGD agents documented five conversations between June 1999 and April 2000.

However, AGD submitted evidence that it has conducted no business in Colorado or elsewhere in the United States; it owns no property, interests, or assets in Colorado or elsewhere in the United States; it has no bank accounts, conducts no financial transactions, solicits no business, and ships no products to the United States; it performs all its production and sales activities in Russia; and all its employees live and work in Russia.

Based on the submissions, the trial court found that AGD does not own or use real property or conduct business in Colorado; Archangel was not a resident of Colorado at the time the relevant agreements were executed; the contracts at issue were negotiated, were executed, and required performance in Russia by non-Colorado corporations; and Archangel unilaterally decided to move its principal place of business to Colorado after the contractual relationship was established. The court thus determined that AGD did not purposefully avail itself of the privilege of conducting activities within Colorado or invoke the benefits and protections of its laws.

Archangel contends the trial court erred in finding it was not a resident of Colorado when the contracts were executed. However, because our analysis relies primarily upon defendant’s contacts with and activity in Colorado and because the trial court’s remaining findings and conclusions are supported by the record, its finding regarding Archangel’s residency — even if inaccurate — does not require reversal.

We therefore conclude the trial court did not err in determining AGD did not purposefully avail itself of the privilege of conducting business activities within Colorado.

Contrary to Archangel’s contention, Marquest Medical Products, Inc. v. Daniel, McKee & Co., 791 P.2d 14 (Colo.App.1990), does not require a different result. There, the plaintiff alleged that the defendant, a nonresident corporation, made numerous misrepresentations that induced the plaintiff to enter into a credit agreement and, as a result, the plaintiff sustained economic injury. A division of this court concluded the nonresident defendant had sufficient business contacts to support jurisdiction based on seven face-to-face meetings in two states, one mailing, and twenty-eight phone calls over a four-month period.

AGD’s communications with Archangel were far more sporadic, and all its contacts related to the agreements that had no connection to Colorado. Hence, Marquest is distinguishable. See Waterval v. Dist. Court, 620 P.2d 5, 9 (Colo.1980)(diseussing difficulty of facts that do not “neatly fit into either the ‘single contact’ or ‘continuous contact’ category” where nonresident’s contacts with state extended over two years, but were less than continuous); New Frontier Media, Inc. v. Freeman, supra (where all other operative acts occurred out of state, two letters sent from nonresident defendant’s agent to Colorado were insufficient to establish minimum contacts); cf. In re Parental Responsibilities of H.Z.G., supra (father purposefully availed himself of benefits of state by sending letter to help mother obtain public assistance).

Relying on Von Palffy-Erdoed v. Bugescu, 708 P.2d 816 (Colo.App.1986), Archangel next argues that even though the contract was not executed in Colorado, Archangel and AGD continued their contractual relationship after Archangel moved here, and that such “continue[d] performance” was sufficient to establish personal jurisdiction over AGD. We disagree.

In Von Palffy-Erdoed, supra, 708 P.2d at 818, a division of this court held personal jurisdiction over the defendant was proper, explaining that “although defendant did not consent in writing to plaintiffs move to Colorado, following such move, he freely and deliberately chose to continue their contractual relationship.”

Von Palffy-Erdoed is distinguishable because the plaintiff there negotiated and executed a contract to purchase the defendant’s car in California. The plaintiff then moved to Colorado, continued payments to the defendant, corresponded with the defendant about payments, incurred substantial repair expenses for the car, and discovered the ear had previously been in an accident, contrary to assurances made by the defendant. The defendant later repossessed the car in Colorado through an agent. A division of this court concluded the defendant’s conduct satisfied the minimum contacts requirement because the repossession in Colorado and the injury incurred gave rise to the plaintiffs claims.

Those circumstances do not exist in this case, and we conclude, as did the trial court, that AGD’s continuing contractual relationship with Archangel was insufficient to allow personal jurisdiction over it in Colorado.

E. AGD’s Tortious Activity

Archangel next contends the trial court erred in failing to consider AGD’s allegedly tortious acts. Again, we disagree.

We first reject Archangel’s contention that AGD’s intent to cause injury in Colorado supports a finding of personal jurisdiction.

Archangel alleged in its complaint that AGD committed fraud by directing numerous written and verbal statements to Colorado between August 1997 and August 2000; confirming its compliance and intention to comply with the 1993 agreement thereby; inducing Archangel to enter into the 1999 agreement with no present intention to fulfill its promise; acting in a willful and wanton manner; and causing injury to Archangel in Colorado. Archangel further alleged that AGD had a fiduciary duty arising from the agreements, which AGD breached when it failed to transfer its rights under the license. According to Archangel, this conduct caused injury to Archangel while it was in Colorado. In addition, Archangel alleged a civil conspiracy based on AGD’s acts outside of Colorado.

Contrary to Archangel’s contention, D & D Fuller CATV Construction, Inc. v. Pace, supra, does not require a finding of jurisdiction here. There, the nonresident defendants were the paternal grandparents of a child who lived with the plaintiff mother in Colorado pursuant to a custody order issued in Colorado. After the child was kidnapped from Colorado by his father, the mother filed an action against the grandparents for intentional interference with the parent-child relationship, alleging they aided and abetted the kidnapping and had physical custody of the child. The supreme court concluded the mother established a prima facie showing of personal jurisdiction over the grandparents, explaining that, “for purposes of the long-arm statute, tortious conduct in a foreign state which causes injury in Colorado may be deemed to be an act committed in Colorado so as to satisfy the long-arm statute.” D & D Fuller, supra, 780 P.2d at 524.

Here, Archangel’s allegation of AGD’s tor-tious conduct may satisfy the requirement that there be the “commission of a tortious act within this state” under the long-arm statute. See § 13 — 1—124(l)(b). However, we do not interpret D & D Fuller to require a finding of sufficient contacts whenever an intentional tort is alleged.

The court in D & D Fuller also concluded the nonresident grandparents had sufficient contacts with Colorado such that exercising personal jurisdiction over them was reasonable, including (1) a letter to the Colorado Department of Vital Statistics requesting a duplicate copy of the child’s birth certificate; (2) an attempted transfer of the father’s Colorado vehicle title; (3) telephone calls to the mother; (4) negotiation of paychecks from the father’s Colorado employer; and (5) other assistance to the father in abducting the child and preventing his return to the mother. Thus, the nonresident grandparents in D & D Fuller had considerably more contact with Colorado than AGD had here.

Further, in D & D Fuller, the court adopted the rule established in Colder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). In Calder, the California plaintiff sued two Florida residents in a California court for libel and other privacy torts. The plaintiff alleged the defendants wrote and edited a libelous article that concerned the California activities of a California resident, drew from California sources, impugned the professionalism of an entertainer whose television career was centered in California, and caused the plaintiff injury in California. The United States Supreme Court concluded that California was “the focal point both of the story and of the harm suffered” and that jurisdiction over the nonresidents was proper there based on the “effects” of their Florida conduct in California. Calder v. Jones, supra, 465 U.S. at 788-89, 104 S.Ct. at 1486-87.

In D & D Fuller, supra, 780 P.2d at 525-26 (citations omitted), the supreme court explained the “effects” test set out in Calder:

The United States Supreme Court [in Calder 1 has addressed the issue of what contacts are necessary to satisfy due process in the context of an intentional tort. [T]he Court approved an “effects” test and held that where a defendant’s intentional, and allegedly tortious, actions, taken outside the forum, are expressly directed at causing a harmful effect within the forum state, a sufficient nexus exists between the defendant and the state so as to satisfy due process. [Thus], the [nonresident] defendant should reasonably anticipate being haled into court to answer for his intentionally tortious actions.

Calder and D & D Fuller are distinguishable from the circumstances here because AGD’s alleged tortious activity was not attended by other contacts with the forum state. In other words, Colorado was not “the focal point both of the story and of the harm suffered.” Calder v. Jones, supra, 465 U.S. at 789, 104 S.Ct. at 1486; see Burger King Corp. v. Rudzewicz, supra, 471 U.S. at 474, 105 S.Ct. at 2183 (“[T]he constitutional touchstone remains whether the defendant purposefully established ‘minimum contacts’ in the forum State.”); Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra (quoting same language); see also Wallace v. Herron, 778 F.2d 391, 394 (7th Cir.1985)(“We do not believe that the Supreme Court, in Calder, was saying that any plaintiff may hale any defendant into court in the plaintiffs home state, where the defendant has no contacts, merely by asserting that the defendant has committed an intentional tort against the plaintiff.”); Santa Fe Techs., Inc. v. Argus Networks, Inc., 131 N.M. 772, 42 P.3d 1221, 1230 (N.M.Ct.App.2001)(declining to apply Calder and reasoning, “An intentional tort without minimum contacts does not comport with due process.”).

We therefore conclude AGD’s alleged tor-tious acts, without other contacts with Colorado, do not support a reasonable inference that it engaged in conduct subjecting it to personal jurisdiction here. Accordingly, the trial court’s failure, if any, to consider these alleged tortious acts did not affect the result.

Given our conclusion, we also need not address the propriety of the trial court’s reliance on the economic loss rule.

F. Lukoil’s Tortious Acts and Business Activities in Colorado

In view of our conclusion that AGD’s alleged contacts do not establish personal jurisdiction over it in Colorado, we necessarily reject Archangel’s related contention that AGD’s alleged tortious acts are attributable to Lukoil in establishing minimum contacts.

We also reject Archangel’s contention that Lukoil purposefully availed itself of the privilege of conducting business activities within Colorado. As relevant here, Archangel alleged in its complaint that Lukoil (1) is a public corporation “organized and existing under the laws of the Russian Federation and maintains its principal place of business in the Russian Federation”; (2) directly or indirectly managed and controlled AGD during relevant periods and directed AGD to send fraudulent communications into Colorado; and (3) conducts business in Colorado by operating at least one gas station, communicating directly with Archangel, and directing AGD to receive communications from Colorado.

In support of its motion to dismiss, Lu-koil’s Russian counsel submitted an affidavit stating that Lukoil is not and has never been registered to do business as a foreign corporation in Colorado and that it did not acquire a controlling interest in AGD until 2001. Another of Lukoil’s attorneys submitted an affidavit stating that Lukoil has no contracts with Archangel or any entity located in Colorado; is not conducting business with any person in Colorado; does not have any offices, employees, agents, or business interests in Colorado; does not hold meetings, own property, or do business in Colorado; and has not purposefully directed any activity here. Lukoil also submitted the affidavit of the owner and operator of the gas station, which stated Lukoil never had any ownership interest in it, and documentation of the current ownership.

Archangel responded with the affidavit of its chief executive officer, which stated that AGD acted “in concert with Lukoil.” Archangel also submitted photographs of the gas station with “Lukoil” printed on the sign and a 1998 press release stating, “Today there are six stations in Colorado, Virginia, [Maine], and some other states.”

Based on these submissions, the trial court found that (1) Lukoil was not a resident Colorado company; (2) it had refuted the existence of alleged business contacts in Colorado; (3) it did “nothing in connection with the agreements at issue here to have invoked the benefits and protections of this state such that this court should exercise specific jurisdiction”; (4) Lukoil did “nothing such that it should reasonably have anticipated being called into court in Colorado”; and (5) exercising jurisdiction over Lukoil would offend notions of fair play and substantial justice.

The trial court thus determined Lukoil was not subject to personal jurisdiction in Colorado. We agree.

Accordingly, we conclude the court did not err in granting the motion to dismiss filed by AGD and Lukoil based on the lack of personal jurisdiction over them.

III. Forum Non Conveniens

Once the trial court determined it lacked personal jurisdiction over AGD and Lukoil, the court should not have proceeded to consider the issue of foi-um non conve-niens. Accordingly, we do not address that issue, nor do we need to address Archangel’s remaining contentions.

IV. Cross-Appeal

In its cross-appeal, AGD urges affir-mance of the judgment on grounds other than those relied upon by the trial court. However, seeking affirmance of the judgment on other grounds is not a proper basis for a cross-appeal.

Generally, an appellee must file a cross-appeal before an appellate court can consider an alleged error of the trial court which prejudiced the appellee. But an appel-lee “may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it.” Blocker Exploration v. Frontier Exploration, Inc., 740 P.2d 983, 989 (Colo.1987)(quoting United States v. American Ry. Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 564, 68 L.Ed. 1087 (1924)). Accordingly, we do not address the contentions made by AGD in its cross-appeal.

The order dismissing the action and the judgment entered in favor of defendants are affirmed.

Judge NIETO and Judge PICCONE concur.


source: Caselaw Access Project

author: Judge TAUBMAN.

license: Public Domain

text:
    The People of the State of Colorado, Petitioner-Appellee, In the Interest of M.C., a Child, and Concerning J.C., Respondent-Appellant.
    No. 02CA1888.
    Colorado Court of Appeals, Div. I.
    April 8, 2004.

      Bruce T. Barker, County Attorney, Linda L. Goff, Assistant County Attorney, Greeley, Colorado, for Petitioner-Appellee.
    Zapor Law Office, P.C., Rose Mary Zapor, Denver, Colorado; Larry Dean Valente, Westminster, Colorado, for Respondent-Appellant.
   Opinion by

Judge TAUBMAN.

J.C. (father) appeals from the judgment terminating the parent-child legal relationship with his daughter, M.C. We reverse and remand for further proceedings.

M.C. was born in Texas of the relationship between M.T. (mother), and J.C. While both parents were living in Texas, father obtained a temporary restraining order preventing mother from taking M.C. from father, changing M.C.’s residence from Santa Fe, Texas, withdrawing M.C. from school or day care, and removing M.C. beyond the jurisdiction of the Texas court.

In November 2000, father took his daughter to visit mother, who had moved to Colorado. During this visit, father was jailed briefly for creating a public disturbance at mother’s workplace. As a result, a petition in dependency and neglect was filed against both parents on November 30, 2000. The petition did not advise the court of the Texas restraining order.

However, because of the Texas restraining order, the Weld County Department of Social Services concluded that M.C. could not be placed with mother, and, instead, she was placed in the temporary custody of the department.

Father requested that counsel be appointed to represent him, but this request was denied based on his income. Father appeared pro se and the dependency and neglect proceeding continued, resulting in the magistrate terminating both parents’ parental rights in February 2002. Father sought review of the magistrate’s decision and in August 2002 the district court adopted the magistrate’s order.

Mother has not appealed the termination of her parental rights.

After the parties submitted their initial appellate briefs, we noted that documents filed by the department of social services indicated that a Texas restraining order, was in effect when this proceeding commenced. Because we concluded that the determination of our subject matter jurisdiction might depend upon the existence of a restraining order in Texas and the duration of such order, we issued an order of limited remand. We directed the district court to hold an evidentiary hearing and make findings of fact and conclusions of law on the issue of subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), § 14-13-101, et seq., C.R.S.2003. See People in Interest of Clinton, 762 P.2d 1381 (Colo.1988)(any requirement implicating the court’s subject matter jurisdiction cannot be waived and can be raised at any time).

Following a hearing, the district court concluded that Texas was M.C.’s home state and that the district judge and the magistrate had temporary emergency jurisdiction to hear the dependency and neglect proceedings, notwithstanding the existence of the Texas restraining order at the time this matter was filed. The appeal was then recerti-fied to us, and at our request, the parties submitted supplemental briefs on the issue of subject matter jurisdiction.

Concluding that the district court exceeded its limited temporary emergency jurisdiction when this matter was filed, we now reverse.

I. Subject Matter Jurisdiction Under UCCJEA

Effective July 1, 2000, the UCCJEA replaced its predecessor, the Uniform Child Custody Jurisdiction Act (UCCJA). The UCCJEA was enacted to revise the law on child custody jurisdiction in light of federal enactments and over almost thirty years of inconsistent case law under the UCCJA. Part 2 of the UCCJEA is intended to provide clearer standards for the exercise of original jurisdiction over a child custody determination, enunciate a standard of continuing jurisdiction, and clarify modification jurisdiction. See § 14-13-101 prefatory note.

Generally, a Colorado court has jurisdiction to make an initial child-custody determination if Colorado is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state. See § 14-13-201(l)(a), C.R.S.2003. Under the UCCJEA, the “home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. Under the UCCJEA, the court that makes the initial custody determination generally retains exclusive continuing jurisdiction until the child and both parents leave the state or no longer have a significant connection with the state. See In re Mar riage of Pritchett, 80 P.3d 918 (Colo.App. 2003).

As relevant here, the UCCJEA also seeks to eliminate the simultaneous exercise of jurisdiction over custody disputes by more than one state. See In re Marriage of Pritchett, supra. Additionally, the UCCJEA specifies various circumstances when a court outside the home state may exercise temporary emergency jurisdiction to protect a child from the threat of immediate mistreatment or abuse. See § 14-13-204, C.R.S.2003.

A. Simultaneous Proceedings

Father contends that, apart from temporary emergency jurisdiction, the magistrate lacked subject matter jurisdiction under the UCCJEA to hear the dependency and neglect proceeding. We agree.

With respect to simultaneous proceedings, the UCCJEA, § 14-13-206, C.R.S.2003, provides, in pertinent part:

(1) Except as otherwise provided in section 14-13-204 [temporary emergency jurisdiction], a court of this state may not exercise its jurisdiction under this Part 2 if, at the time of the commencement of the proceeding, a proceeding concerning custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this article, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum....
(2) Except as otherwise provided in section 14-13-204, a court of this state, before hearing a child-custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to section 14-13-209. If the court determines that a child-custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with a provision of law adopted by that state that is in substantial conformity with this article, the court of this state shall stay its proceeding and communicate with the court of the other state.

Thus, if a child-custody proceeding was pending in Texas when the dependency and neglect action was filed here, the Colorado court would not have had jurisdiction unless the Texas proceeding had been terminated or stayed by the Texas court, because Colorado was a more convenient forum, or unless there was a basis for exercising emergency jurisdiction.

Here, on remand the district court properly found that the Texas action constituted a child-custody proceeding. That conclusion was correct under the broad definition of “child-custody proceeding” under the UC-CJEA, § 14-13-102(4), C.R.S.2003, as including a proceeding “for divorce, dissolution of marriage, legal separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence and domestic abuse.”

The first two exceptions under § 14-13-206(1) are not applicable. The Texas proceeding was pending when the dependency and neglect action was filed, and it was not dismissed until some three months later. Also, there was no stay entered by the Texas court. Thus, the district court did not have jurisdiction except, as discussed below, with respect to certain temporary emergency jurisdiction.

However, we note that § 14-13-206(2) also requires the Colorado court to examine the court documents and other information supplied by the parties pursuant to § 14^13-209, C.R.S.2003, to determine whether a child-custody proceeding has been commenced in a court of another state and, if so, to stay the proceedings in Colorado and communicate with the court of the other state.

Here, there is no information in the record indicating that the Colorado court ever communicated with the Texas court in response to the information provided by the department’s family services plan concerning the Texas proceeding. As a result, requirements of § 14 — 13—209(l)(b), C.R.S.2003, were not satisfied. Accordingly, we conclude that the magistrate lacked subject matter jurisdiction to proceed unless the court had temporary emergency jurisdiction. We now turn to this issue.

B. Temporary Emergency Jurisdiction

Father next asserts that although the magistrate had temporary jurisdiction to enter an order to protect the child, it erred in not limiting the duration of its exercise of such jurisdiction. We agree.

Section 14-13-204 provides:

(1) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
(3) If there is a previous child-custody determination that is entitled to be enforced under this article, or a child-custody proceeding has been commenced in a court of a state having jurisdiction ... any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction. ... The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.
(4) A court of this state that has been asked to make a child-custody determination under this section, upon being informed that a child-custody proceeding has been commenced in, or a child-custody determination has been made by, a court of a state having jurisdiction ... shall immediately communicate with the other court. A court of this state that is exercising jurisdiction pursuant to sections 14-13-201 to 14-13-203, upon being informed that a child-custody proceeding has been commenced in, or a child-custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.

Here, there is no dispute that the grounds for the exercise of temporary emergency jurisdiction under § 14-13-204(1) were established. Cf. E.P. v. Dist. Court, 696 P.2d 254 (Colo.1985)(decided prior to repeal and reenactment of the UCCJEA; state as parens patriae has jurisdiction to enter protective orders for children within its borders without regard to considerations of domicile).

However, the petition for dependency and neglect shows that the child had resided in Texas with her father and paternal grandparents since September 2000 and was in Colorado over the Thanksgiving holiday only to visit with mother, when both parents were arrested for various charges. Further, the record shows that the child was initially placed in foster care based upon the Texas restraining order prohibiting mother from certain actions. Additionally, the record indicates that father was arrested for causing a disturbance while looking for mother at her place of employment. Subsequently, because mother feared that father would return to Texas with her daughter and she would not see her daughter again, she falsely accused father of stealing money from her. As a result, mother was charged with criminal mischief and false reporting, and father was released from custody shortly thereafter.

Here, on remand, the district court found that the Texas action constituted a child-custody proceeding but did not result in a child-custody determination. In so concluding, the district court erred. Under § 14-13-102(3), C.R.S.2003, a child-custody determination is defined as:

a judgment, decree, or other order of a court providing for the legal custody or physical custody of a child or allocating parental responsibilities with respect to a child or providing for visitation, parenting time, or grandparent visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order.

A temporary restraining order constitutes a “custody determination” within the meaning of the UCCJEA. Cf. G.B. v. Arapahoe County Court, 890 P.2d 1153 (Colo.1995)(de-cided prior to repeal and reenactment of the UCCJEA). Thus, because there was both a child-custody proceeding and a child-custody determination in Texas, the magistrate should have entered only a temporary order for a specified period to allow father to seek an order from the Texas court. Section 14-13-204(3); see, e.g., In re C.T., 100 Cal. App.4th 101, 121 Cal.Rptr.2d 897 (2002); Campbell v. Martin, 802 A.2d 395 (Me.2002); In re Erode, 151 N.C.App. 690, 566 S.E.2d 858 (2002); Saavedra v. Schmidt, 96 S.W.3d 533 (Tex.Ct.App.2002).

In his motion for review of the magistrate’s order of termination, father asserted that the magistrate erred in exceeding the bounds of her temporary emergency jurisdiction. In denying that motion, the district court found that father failed to file any Texas orders establishing that the Texas domestic violence proceeding constituted a custody determination. However, as noted, on remand the district court received into evidence a copy of the Texas restraining order.

Based on the restraining order and the information in the record advising the court of its existence, it was incumbent upon the magistrate to limit the duration of the exercise of temporary emergency jurisdiction. This was not done. We disagree with the district court’s conclusion that temporary emergency jurisdiction could be exercised up to the date of the adjudicatory hearing on February 8, 2001. “Assumption of emergency jurisdiction does not confer upon the state exercising emergency jurisdiction the authority to make a permanent custody disposition.” In re C.T., supra, 100 Cal.App.4th at 108, 121 Cal.Rptr.2d at 904. Likewise, we conclude that the exercise of temporary emergency jurisdiction may not last until the trial court can enter an adjudicatory order finding a child dependent and neglected.

That, indeed, is what occurred here. Because the trial court did not limit the duration of temporary emergency jurisdiction and did not contact the Texas court that issued a restraining order, the purpose of the UC-CJEA was frustrated. As a result, father, who had resided in Texas before and during the commencement of these proceedings, had little opportunity to obtain a determination of permanent custody and attempt to prevent the termination of his parental rights in Texas, the home state of his daughter.

Accordingly, we conclude that the magistrate and the district court exceeded their jurisdiction by not limiting the period they exercised temporary emergency jurisdiction. This error was clearly not harmless, because it resulted in termination of father’s parental rights without affording him the opportunity to litigate custody issues in the child’s home state of Texas.

Accordingly, we reverse the judgment terminating father’s parental rights. However, given the length of time that the child has now resided in Colorado, we remand this matter to the district court to make such temporary protective orders as are necessary for the welfare of the child. See E.P. v. Dist. Court, supra (although Colorado court did not have jurisdiction under UCCJA, it could enter temporary protective orders for the child’s welfare).

II. Jurisdiction of Magistrate

Father contends in his supplemental brief that the magistrate did not have subject matter jurisdiction to preside over the termination hearing because magistrates are not authorized to hear matters involving allocation of parental responsibilities. Because this issue may arise during limited proceedings on remand, we address it and reject father’s argument.

Relying on In re Marriage of Ferris, 75 P.3d 1170 (Colo.App.2003), and § 13-5-301(3)(e)(V), C.R.S.2003, father contends that a magistrate may only preside over matters where the allocation of parental responsibilities is not an issue. However, that reliance is misplaced. By its terms, § 13-5-301(3)(e)(v) regulates magistrate hearings under the Uniform Dissolution of Marriage Act. Significantly, §§ 19-l-108(3)(a) and (c), C.R.S.2003, of the Children’s Code authorize magistrates to conduct termination hearings in dependency and neglect cases unless a specific request is made by any party that the hearing be held before a district judge. No such request was made here. Accordingly, the magistrate had authority to consider the dependency and neglect proceedings before her.

III. Appointment of Counsel

Next, father asserts that he was denied due process by the court’s failure to appoint counsel for him without considering his entire financial circumstances. Because this issue may be implicated in any further proceedings on remand, we address it now. We disagree.

At the first appearance in a dependency and neglect proceeding, a parent must be advised of the right to be represented by counsel at every stage of the proceeding and of the right to seek appointed counsel if he or she is financially unable to secure counsel. Sections 19-1-105(2), 19-3-202(1), C.R.S. 2003. Section 19-3-602(2), C.R.S.2003, provides that, after a motion to terminate is filed, a parent who is not represented by counsel must again be advised of the right to counsel and further provides that “counsel shall be appointed in accordance with the provisions of section 19-1-105.” People in Interest of V.W., 958 P.2d 1132 (Colo.App. 1998); see also People in Interest of L.L., 715 P.2d 334 (Colo.1986).

The person seeking court-appointed counsel bears the initial burden of establishing his or her indigency. Waters v. Dist. Court, 935 P.2d 981 (Colo.1997). The determination of indigency ultimately is a discretionary decision for the trial court. People in Interest of M.N., 950 P.2d 674 (Colo.App. 1997).

Here, father concedes that he received written notice of the right to counsel both at the commencement of the ease and-when the motion to terminate was filed. A review of father’s first application for the appointment of counsel shows that his monthly income was $3200, without any stated expenses, and that he owned three automobiles, with a total value of $13,000.

Thus, under the guidelines for the determination of eligibility for court-appointed counsel set fox*th in Chief Justice Directive 97-02, father was not eligible for the appointment of state-paid counsel, even if his monthly expenses equaled or exceeded his monthly income.

Further, although the court may consider or determine that extraordinary circumstances exist for the appointment of counsel, it was not required to do so. Nor was the court required to provide father with counsel, pending later reimbursement, or with information to assist him in obtaining private counsel.

Neither § 19-3-602(2) nor Chief Justice Directive 97-02 requires that the parent be provided with another application form to establish indigency after a motion to terminate is filed. Rather, the statutory right to appointed counsel at any stage of a dependency and neglect proceeding, including termination, must be invoked by a parent’s request for an attorney. People in Interest of V.W., supra.

The record does not show that father ever requested appointment of counsel, claimed that his monthly income or expenses had changed, or argued that he had unsuccessfully tried to obtain his own counsel. Furthermore, § 19-3-602(1), C.R.S.2003, explicitly states that the separate hearing following adjudication of a child as dependent and neglected is for the purpose of considering the motion for termination of the parent-child legal relationship. Thus, we are not persuaded by the argument that a separate hearing to determine indigency was required.

Accordingly, the judgment terminating father’s parent-child legal relationship is reversed, and the ease is remanded to the trial court for further temporary protective orders consistent with the views in this opinion.

Judge KAPELKE and Judge LOEB concur.


author: Judge GRAHAM.

text:
    Ronald A. PODBOY, Plaintiff-Appellee, v. FRATERNAL ORDER OF POLICE, DENVER SHERIFF LODGE 27, Mike Britton, and C.W. DeNovellis, Defendants-Appellants.
    No. 03CA0862.
    Colorado Court of Appeals, Div. III.
    June 3, 2004.

      Brega & Winters, P.C., Jay John Schnell, Mark E. Honhart, Denver, Colorado, for Plaintiff-Appellee.
    Hamilton & Faatz, P.C., Christopher J.W. Forrest, David R. Osborne, Reid J. Elkus, Denver, Colorado, for Defendants-Appellants.
   Opinion by

Judge GRAHAM.

Defendants, Fraternal Order of Police, Denver Sheriff Lodge 27(FOP), Mike Brit-ton, and C.W. DeNovellis, appeal the trial court’s order denying their motion to dismiss the complaint of plaintiff, Ronald A. Podboy, on the basis of governmental immunity and failure to state a claim upon which relief can be granted. We affirm the order as to governmental immunity and dismiss the appeal as to the order denying the C.R.C.P. 12(b)(5) motion.

FOP is the official collective bargaining agent for the Denver Sheriff Department employees. Britton is the president of FOP, and DeNovellis is the secretary. They are both law enforcement officers employed by the Denver Sheriff Department.

Plaintiff is counsel for the Denver Sheriffs union, a competing collective bargaining agent. Plaintiff and the Denver Sheriffs union submitted a bid to unseat FOP as the exclusive bargaining agent for the 2003-2004 collective bargaining session with the City and County of Denver. During the election of the collective bargaining agent, defendants sent a letter to the Denver Sheriff Department employees stating that plaintiffs “experience is 100% as a Criminal Attorney,” that he has no experience in collective bargaining or labor law, and that he had been convicted of a crime.

Plaintiff sent numerous letters to defendants’ counsel regarding the alleged defamatory statements and demanded monetary damages. Defendants’ counsel denied plaintiffs monetary demand, and plaintiff filed a complaint against defendants for defamation, intentional infliction of emotional distress, and civil conspiracy.

Defendants filed (1) a motion to dismiss for lack of subject matter jurisdiction pursuant to C.R.C.P. 12(b)(1), alleging that they are immune from plaintiffs claims under the Colorado Governmental Immunity Act (CGIA) and that plaintiff failed to satisfy the notice and pleading requirements of the CGIA; and (2) a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to C.R.C.P. 12(b)(5) because plaintiff failed to allege properly the elements of the tort claims. Defendants also filed a motion to suspend discovery and hold an evidentiary hearing to determine the issue of sovereign immunity under the CGIA.

Without holding an evidentiary hearing, the trial court denied defendants’ motions to dismiss. The court summarily concluded that FOP is not a public entity and that Britton and DeNovellis are not public employees as defined by the statute, and therefore, defendants are not entitled to sovereign immunity pursuant to §§ 24-10-108 and 24-10-118, C.R.S.2003. Because the court determined that the CGIA did not apply, it did not address whether plaintiff complied with the notice and pleading requirements of the CGIA. The court also implicitly rejected defendants’ motion to dismiss under C.R.C.P. 12(b)(5). This appeal followed.

I.

Defendants contend that the trial court erred in failing to dismiss the complaint under C.R.C.P. 12(b)(1). We disagree.

The CGIA establishes immunity from tort actions for public entities and employees who are acting within the course and scope of their employment. Sections 24-10-102, 24-10-105, 24-10-108, 24-10-118, C.R.S.2003. Because the CGIA derogates Colorado’s common law, the statute’s immunity provisions are strictly construed, and the provisions withholding immunity in the interest of compensating victims of governmental negligence are broadly construed. See Padilla v. Sch. Dist. No. 1, 25 P.3d 1176 (Colo.2001); Springer v. City & County of Denver, 13 P.3d 794 (Colo.2000).

Governmental immunity under the CGIA is a question of subject matter jurisdiction to be decided pursuant to C.R.C.P. 12(b)(1). Trinity Broad of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993). If all relevant evidence is presented to the trial court and the underlying facts are undisputed, the trial court may decide the jurisdictional issue as a matter of law without conducting an evidentiary hearing, in which case appellate review is de novo. Medina v. State, 35 P.3d 443 (Colo.2001); Trinity Broad of Denver, Inc. v. City of Westminster, supra.

A.

Defendants argue that the trial court erred in finding that FOP is not a public entity. Defendants allege that, pursuant to § 24-10-103(5), C.R.S.2003, FOP is a public entity because the City and County of Denver, through the Denver Municipal Code, gives it governmental authority to act as the sole collective bargaining agent for the Denver Sheriff Department employees, and therefore FOP is a “separate entity created by intergovernmental contract.” We disagree.

Section 24-10-103(5) states:

“Public entity” means the state, county, city and county, municipality, school district, special improvement district, and every other kind of district, agency, instrumentality, or political subdivision thereof organized pursuant to law and any separate entity created by intergovernmental contract or cooperation only between or among the state, county, city and county, municipality, school district, special improvement district, and every other kind of district, agency, instrumentality, or political subdivision thereof.

We must give effect to the legislative purpose underlying the CGIA by reviewing the statute’s plain language. Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991). If the statute’s language is unambiguous, the inquiry ends. Kane v. Town of Estes Park, 786 P.2d 412 (Colo.1990). Finally, we must observe the admonition that the “CGIA’s ... immunity provisions are subject to strict construction.” Walton v. State, 968 P.2d 636, 643 (Colo.1998).

“Intergovernmental” means “between or involving participation by two or more governments or levels of government.” Webster’s Third New International Dictionary 1178 (1986).

FOP is not a separate entity created by an intergovernmental contract with the City and County of Denver. The Denver Code was established unilaterally by the City and County of Denver; it is not a contract between other governmental entities, it did not create FOP, and it does not confer governmental status upon FOP. Rather, the Denver Code governs selection and recognition of the bargaining agent elected to represent the Denver Sheriff Department employees.

Further, labor organizations have traditionally been considered private — not public — entities. Hovan v. United Bhd. of Carpenters & Joiners, 704 F.2d 641 (1st Cir. 1983). Indeed, the federal district court for the District of Colorado has rejected the notion that a labor union representing public employees is a public entity for purposes of the immunity provisions of the CGIA. Walker v. Bd. of Trs., 76 F.Supp.2d 1105 (D.Colo. 1999). Although we are not bound by the federal district court’s opinion, we are persuaded by its holding that a labor union is not a public entity for purposes of CGIA immunity.

Thus, the trial court did not err in concluding that FOP is not a public entity under § 24-10-103(5). Further, because FOP is not a public entity, a fortiori, members and officers of FOP cannot be deemed “public employees” simply by virtue of their employment with FOP. See § 24-10-103(4)(a), C.R.S.2003 (“public employee” is defined as “an officer, employee, servant, or authorized volunteer of the public entity”).

B.

Defendants further contend that the alleged defamatory statements made during the election of the collective bargaining agent were within the scope of Britton’s and DeNo-vellis’s employment as law enforcement officers, and therefore, they are entitled to governmental immunity under § 24-10-103(4)(a). We disagree.

Here, defendants conceded at oral argument that the facts asserted by affidavit were undisputed and that this court may determine as a matter of law whether those factual allegations somehow warrant reversal of the trial court’s decision.

Britton and DeNovellis are currently employed by the Denver Sheriff Department, but are on administrative leave while they occupy the positions of president and secretary, respectively, of FOP. The conduct complained of occurred in the course of FOP directors meetings and concerned FOP business.

The Denver Sheriff Department is a political subdivision of the City and County of Denver and a public entity under § 24-10-103(5). Although a law enforcement officer is a public employee, he is entitled to immunity only if the injury alleged arose “out of an act or omission occurring during the performance of his duties and within the scope of his employment, unless such act or omission was willful and wanton, except as provided in this article.” Section 24-10-105. We must therefore determine whether' the scope of employment of a public employee — a law enforcement officer — includes actions undertaken as an officer of a nonpublic entity— a labor union.

An act of an employee is within the scope of his employment if the work done is assigned to him by his employer, is necessarily incidental to that work, or is customary in the employer’s business. Pediatric Neurosurgery, P.C. v. Russell, 44 P.3d 1063 (Colo. 2002).

The determination whether an injury occurred within the scope of employment depends on an examination of the totality of the circumstances. Capra v. Tucker, 857 P.2d 1346 (Colo.App.1993); see also Kliewer v. Sopata, 797 F.Supp. 1569 (D.Colo.1992)(action against a police officer alleging negligence and negligence per se in connection with an attack by a dog kept at officer’s residence was against the officer in his official capacity even though the officer was off duty at' the time of the attack, because the officer was required by departmental policy to keep the dog at his house and it was only because of his capacity as a police officer that the dog was at his house); City & County of Denver v. Lee, 168 Colo. 208, 450 P.2d 352 (1969)(in determining whether a police officer was within scope of his employment when he sustained a back injury while playing on a police department basketball team, it was significant that all players who were “on shift” at the time of the game were playing “on duty” for the benefit of the police department); Mineral County v. Indus. Comm’n, 649 P.2d 728 (Colo.App.1982)(a sheriff was in the course of his employment at the time of the fatal injury although he was on his way to dinner with his wife and was found lying on the sidewalk in front of a private club where he had stopped on a personal errand, because he was in uniform, was the only member of the sheriff’s department, was considered to be on duty 24 hours every day and did not have a specified work shift, and his activities while in uniform always partook of a dual nature).

Unlike the entities in the cases cited above, the Denver Sheriff Department does not require its law enforcement officers to join a sheriffs union. Nor is membership in FOP for the benefit of the sheriff department members who are not members of FOP.

The federal district court’s opinion in Walker is instructive here. In Walker, the district court examined the duties and responsibilities of individual defendants as members of both a public entity — RTD—and a nonpublic entity — the board of trustees of the union pension fund trust. The court held that, although some members of the board worked for RTD, a “public entity,” “the actions for which they are being sued were not undertaken pursuant to the ‘performance of [their] duties and within the scope of [their] employment’ for RTD.” Walker v. Bd. of Trs., supra, 76 F.Supp.2d at 1109. It further noted:

“[T]he Board of Trustees, and not RTD, [is] the fiduciary and administrator of the plan and [has] the responsibility and authority to manage and operate the plan.” Because the members of the Board allegedly are obligated by law to act in the best interest of the Pension Plan irrespective of RTD’s interests, the duties and responsibilities of the RTD-appointed members of the Board are distinct from those duties and responsibilities associated with their RTD employment.

Walker v. Bd. of Trs., supra, 76 F.Supp.2d at 1109-10 (quoting party’s argument). The court concluded that, under a strict construction of the CGIA’s immunity provisions, the individual defendants were not entitled to immunity under the CGIA. Walker v. Bd. of Trs., supra.

The facts here are similar to those in Walker. Britton and DeNovellis are employees of a public entity — the City and County of Denver — and officers of a nonpublic entity — FOP. Although they would not be members of FOP but for their employment with the City and County of Denver, the actions for which they are being sued were not undertaken pursuant to their duties or within the scope of their employment as law enforcement officers. In their affidavits, Brit-ton and DeNovellis specifically admitted that the conduct alleged in the complaint “occurred in the course of FOP Lodge 27 Board of Directors meetings and in the furtherance of FOP Lodge 27 business concerning collective bargaining between the Denver Sheriff Department employees and the City and County of Denver, and the election to select the collective bargaining agent for the negotiations.”

Because Britton and DeNovellis, as officers of FOP, are expected to act in the best interests of FOP irrespective of the City and County of Denver’s interest, the duties and responsibilities of Britton and DeNovellis as officers of FOP are distinct from those duties and responsibilities associated with their employment as law enforcement officers for the City and County of Denver. Thus, their employment as law enforcement officers for the City and County of Denver and their membership in FOP may, in some respects, be adverse to one another. Consequently, under a strict construction of the CGIA’s immunity provisions, Britton and DeNovellis are not entitled to immunity under the CGIA.

This result also comports with the meaning of “public employee” as defined by the CGIA. Under the common law, the most important factor in determining whether a worker qualifies as an employee is the alleged employer’s right to control the details of performance. Other relevant factors include the right to hire, the payment of salary, and the right to dismiss. Norton v. Gilman, 949 P.2d 565 (Colo.1997).

This list of factors is not exhaustive. Although many factors may be relevant in determining whether a worker qualifies as an employee, each factor need not be discussed in every case. Instead of applying the common law factors as a rigid test, we consider the circumstances of each case. Norton v. Gilman, supra. Therefore, we analyze the employee status of Britton and DeNovellis using only the most relevant factors.

Here, the most relevant factor is that the City and County of Denver does not have the right to control Britton’s and DeNovellis’s performance as officers of FOP, even though it has a right to control their performance as law enforcement officers. See Norton v. Gil-man, supra. Although Britton and DeNo-vellis are employees of the City and County of Denver, the complaint did not allege that they undertook the challenged action pursuant to their responsibilities as employees. Additionally, the City and County of Denver does not have the right to hire, appoint, or dismiss members and officers of FOP. Thus, Britton and DeNovellis, in carrying out their duties as officers of FOP, cannot be considered employees of the City and County of Denver as a matter of law and are thus not entitled to the CGIA’s immunity.

In light of our disposition that the CGIA is inapplicable, we need not address whether plaintiff complied with the notice and pleading requirements of the CGIA.

II.

Defendants also contend that the trial court erred in failing to dismiss plaintiffs complaint for failure to state a claim pursuant to C.R.C.P. 12(b)(5). Plaintiff asserts that the trial court’s determination is not a final judgment. We agree with plaintiff.

Although the legislature provided that the trial court’s CGIA ruling is “subject to interlocutory appeal” and may be certified as a final and appealable order pursuant to § 24-10-108, an order otherwise denying a motion to dismiss a complaint is not a final judgment that can be appealed because it leaves issues to be resolved by the trial court. Richland Dev. Co. v. E. Cherry Creek Valley Water & Sanitation Dist., 899 P.2d 371 (Colo.App.1995); Wales v. State Farm Mut. Auto. Ins. Co., 528 P.2d 394 (Colo.App. 1974)(not published pursuant to C.A.R. 35(f)). Thus, we do not have jurisdiction to entertain that portion of defendants’ appeal related to the trial court’s denial of their C.R.C.P. 12(b)(5) motion to dismiss.

III.

Defendants are not entitled to an award of attorney fees and costs incurred on appeal pursuant to § 13-17-201, C.R.S.2003, because, under that section, an award of attorney fees is only proper when a trial court dismisses an action under C.R.C.P. 12(b). Because the trial court did not dismiss the complaint under C.R.C.P. 12(b), § 13-17-201 is inapplicable.

IV.

Although defendants’ appeal was unsuccessful, we nevertheless deny plaintiffs request for an award of attorney fees and costs on appeal. In re Marriage of Eisenhuth, 976 P.2d 896 (Colo.App.1999)(applying C.A.R. 38(d)).

The order is affirmed to the extent it denies defendants’ C.R.C.P. 12(b)(1) motion, and the appeal of the denial of the C.R.C.P. 12(b)(5) motion is dismissed.

Judge TAUBMAN and Judge DAILEY concur.