author: Judge VOGT.

text:
    Richard ABRAHAMSON, Plaintiff-Appellant, v. CITY OF MONTROSE, Defendant-Appellee.
    No. 02CA0649.
    Colorado Court of Appeals, Div. I.
    March 27, 2003.
    Rehearing Denied May 22, 2003.
    Certiorari Granted Sept. 22, 2003.

      Woodrow & Roushar, Frank J. Woodrow, Montrose, Colorado, for Plaintiff-Appellant.
    Younge & Hockensmith, P.C., Earl G. Rhodes, Grand Junction, Colorado, for Defendant-Appellee.

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

   Opinion by

Judge VOGT.

Plaintiff, Richard Abrahamson, appeals the trial court judgment dismissing his complaint against defendant, the City of Montrose, and awarding attorney fees and costs to the City. We affirm.

Plaintiff sued the City for damages, alleging that his house and garage had settled and sustained structural damage as a result of saturation of the underlying soil, which he attributed to faulty repairs made by the City to his sewer line in the fall of 1997.

The City filed a C.R.C.P. 12(b)(1) motion to dismiss for failure to comply with the requirement of the Colorado Governmental Immunity Act (CGIA), § 24-10-101, et seq., C.R.8.2002, that notice of a claimed injury by a public entity be given within 180 days after discovery of the injury. According to the City's motion, plaintiff's deposition testimony established that he had knowledge of the claimed injury by September 1998, but he did not notify the City of his claim until October 1999, which was beyond the 180-day limit.

Plaintiff asserted in response that he had misspoken during his deposition regarding the date he discovered the injury, and he requested an evidentiary hearing. At the conclusion of the hearing, the trial court denied the City's motion. It later denied the City's second motion to dismiss, filed after additional discovery had taken place, because it concluded that a factual issue remained as to when plaintiff discovered the injury.

At the conclusion of a two-day bench trial, the trial court found that plaintiff had knowledge of the injury by August 1998, and it accordingly dismissed his complaint for failure to give notice to the City within 180 days thereafter. The court subsequently awarded the City its costs and attorney fees pursuant to § 18-17-201, C.R.8.2002.

L.

Plaintiff contends that the trial court erred in finding that he failed to give the City timely notice of his claim. We disagree.

The CGIA requires a person claiming to have suffered an injury by a public entity to provide written notice of the claim within 180 days after the date of the discovery of the injury, "regardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury." Section 24-10-109(1), C.R.S.2002. Compliance with this requirement is a jurisdictional prerequisite to suit. Gallagher v. Board of Trustees, 54 P.3d 386 (Colo.2002).

The CGIA does not permit an injured party to ignore evidence that would cause a reasonable person to know that he or she has been injured by the tortious conduct of another. Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993). Thus, to start the running of the CGIA notice period, a claimant need only have discovered that he or she has been wrongfully injured, and need not yet know the cause of the injury or the extent of the damage. See Gallagher v. Board of Trustees, supra; Morrison v. City of Aurora, 745 P.2d 1042 (Colo.App.1987).

Whether a claimant has satisfied the notice requirements of § 24-10-109(1) presents a mixed question of law and fact.. When there are disputed issues of fact regarding when an injury is discovered, we defer to the trial court's findings and will not set them aside unless they are clearly erroneous. Mesa County Valley School District No. 51 v. Kelsey, 8 P.3d 1200 (Colo.2000). Additionally, where the findings are based on testimony, we recognize that the credibility of the witnesses and the sufficiency, probative effect, and weight of all the evidence, as well as the inferences and conclusions to be drawn therefrom, are within the province of the trial court. See Cottonwood Hill, Inc. v. Ansay, 709 P.2d 62 (Colo.App.1985).

Here, although plaintiff contended that he did not discover the injury resulting from the City's alleged negligence until September 1999, there was substantial evidence presented at trial to support the court's conclusion that plaintiff in fact discovered the injury by August 1998.

Plaintiff testified that, after the City repaired a sinkhole in the alley behind his house in November 1997, he continued to have problems with slow drainage. He called a plumber in January 1998, and the plumber told him there was a sewer line problem. A second plumber, whom plaintiff called in August 1998, investigated and told him to call the City. The City then reconnected the line, and his drainage problem was fixed.

On cross-examination, plaintiff responded "yes" when asked: "Isn't it true that in August 1998, you knew that the City had done something wrong by cutting your private service line which was supposed to go into the main [sewer] line?" Plaintiff also acknowledged having testified at his deposition that: (1) he knew, when he took photos of the City workers in August 1998, that the City "had done something wrong"; (2) he had water in his basement in 1998; and (8) when a cracked window was replaced in September 1998, he thought the problem might be due to stress on the window.

The plumber whom plaintiff called in August 1998 testified that he told plaintiff that the blockage of the sewer line was at the same site where the City had repaired the sinkhole and that the line had possibly settled or been damaged during the repair. According to the plumber, he knew the cause of the backup in plaintiffs house after the City workers came out to do the repairs, and he was "sure" that plaintiff knew it as well.

Finally, a City employee who worked on the sewer line behind plaintiffs house in August 1998 testified that plaintiff had told him at that time that the corner of his shed was "falling in due to sewer ... in the alleyway" [sic].

In light of this testimony, we cannot say that the trial court's finding that plaintiff had knowledge of the injury by August 1998 was clearly erroneous. Further, contrary to plaintiff's contention, the knowledge that he had been injured by the City's tortious conduct triggered the CGIA notice period even though he had incurred only minimal expenses as of that date. See Morrison v. City of Aurora, supra (no requirement that elaim-ant be aware of full extent of damage before notice period starts to run).

IL.

Plaintiff also contends that, because the action was not dismissed until the conclusion of trial, the trial court erred in awarding attorney fees and costs to the City. Again, we disagree.

The City sought attorney fees pursuant to § 18-17-201, which states:

In all actions brought as a result of a death or an injury to person or property occasioned by the tort of any other person, where any such action is dismissed on motion of the defendant prior to trial under rule 12(b) of the Colorado rules of civil procedure, such defendant shall have judgment for his reasonable attorney fees in defending the action. This section shall not apply if a motion under rule 12(b) of the Colorado rules of civil procedure is treated as a motion for summary judgment and disposed of as provided in rule 56 of the Colorado rules of civil procedure.

(Emphasis added.) See also § 18-16-118(2), C.R.S.2002 (providing for award of costs to defendant in the circumstances described in § 18-17-201).

In enacting § 183-17-201, the General Assembly sought to discourage and deter the institution or maintenance of unnecessary litigation concerning tort claims. To this end, the statute requires a court to award reasonable attorney fees whenever an entire tort action is dismissed under C.R.C.P. 12(b). See Employers Insurance v. RREEF USA Fund-II (Colorado), Inc., 805 P.2d 1186 (Colo.App.1991); see also Jaffe v. City & County of Denver, 15 P.3d 806 (Colo.App.2000).

Before the supreme court decided Trinity Broadcasting of Denver, Inc. v. City of Westminster, supra, issues of subject matter jurisdiction in governmental immunity cases were commonly resolved under C.R.C.P. 56; thus, § 18-17-201, which by its terms is inapplicable to C.R.C.P. 56 motions, did not afford a basis for awarding attorney fees in such cases. However, Trinity Broadcasting authorized courts to consider evidence bearing on a C.R.C.P. 12(b)(1) motion under the CGIA without converting the motion to a summary judgment motion. In light of that holding, a division of this court concluded, in Smith v. Town of Snowmass Village, 919 P.2d 868 (Colo.App.1996), that fees were also recoverable under § 13-17-201 when the defendant's motion to dismiss on the basis of governmental immunity was granted after an evidentiary hearing. The division stated:

[WJhile the consequences may be harsh, we conclude that, consistent with the supreme court's analysis in Trinity Broadcasting, and the plain language of § 13-17-201, an award of attorney fees is mandatory when a trial court dismisses an action under the [CGIA] for lack of subject matter jurisdiction.

Smith v. Town of Snowmass Village, supra, 919 P.2d at 873; see also Jaffe v. City & County of Denver, supra, 15 P.3d at 814 (§ 13-17-201 "is applicable to a motion to dismiss under C.R.C.P. 12(b)(1) for lack of subject matter jurisdiction under the [CGIA]*).

Here, after the trial court dismissed plaintiff's complaint, the City filed motions for attorney fees pursuant to § 18-17-201 and for costs under that statute, under § 13-16-122, C.R.8.2002, and under C.R.C.P. 54 and 121 as the prevailing party in the litigation. Plaintiff did not object to the reasonableness of the requested fees and costs, but contended that they were not recoverable because §§ 13-17-201 and 13-16-113 permitted an award of attorney fees and costs only if the dismissal order was entered prior to trial.

The trial court acknowledged the statutory reference to "prior to trial," but concluded that the City was nevertheless entitled to recover its attorney fees. The order awarding fees states: (1) although the court initially denied the City's two pretrial motions to dismiss, "after hearing all the evidence, the court concluded that plaintiff in fact had knowledge of his injury in excess of 180 days prior to filing his notice of intent to sue"; (2) the court thus "did dismiss the complaint based on the subject matter jurisdiction defect" raised in those motions; and (8) in those cireumstances, an award of attorney fees was mandatory under Smith v. Town of Snowmass Village, supra.

We conclude that the trial court did not err in so ruling.

Section 18-17-201 is ambiguous, in that the phrase "prior to trial" could refer either to the time of dismissal-that is, "where any such action is dismissed prior to trial on motion of the defendant"-or to the time of the motion-that is, "where any such action is dismissed on motion of the defendant made prior to trial." We must accordingly construe the statute in a manner that will give effect to the legislative purpose underlying its enactment, and we must avoid a statutory construction that leads to an absurd result. See § 2-4-203, C.R.S.2002; Colorado State Board of Medical Examiners v. Saddoris, 825 P.2d 39 (Colo.1992).

In Employers Insurance v. RREEF USA Fund-II (Colorado), Inc., supra, the division upheld the trial court's refusal to assess attorney fees under § 13-17-201 when the plaintiff confessed the defendant's C.R.C.P. 12(b) motion to dismiss. The division acknowledged that a literal interpretation of § 1317-201 would have required an award of attorney fees, but concluded that such a construction of the statute would "exalt form over substance without advancing any public policy interest, and would lead to an absurd and illogical result." Employers Insurance v. RREEF USA Fund II (Colorado), Inc., supra, 805 P.2d at 1188.

Similarly here, we conclude that construing the statute as plaintiff urges would lead to an absurd and illogical result.

Well in advance of trial, the City filed a motion to dismiss based on plaintiff's deposition testimony. After plaintiff recanted that testimony and the trial court denied the motion, the City conducted further discovery and, still prior to trial, filed a second motion to dismiss. The court declined to grant the motion until it had heard the evidence presented at trial. Thus, this is not a situation in which a defendant delayed seeking dismissal and thereby incurred attorney fees that a timely motion to dismiss could have avoided.

In these cireumstances, denying the City its attorney fees under § 18-17-2011 would, in our view, lead to an illogical result and would not give effect to the General Assembly's intent to deter the institution or maintenance of unnecessary litigation concerning tort claims.

Finally, we note that, for the reasons supporting an award of attorney fees under § 13-17-201, the cost award was also proper under $ 13-16-1132).

The judgment is affirmed.

Judge GRAHAM and Judge STERNBERG, concur.


source: Caselaw Access Project

author: Judge NIETO.

license: Public Domain

text:
    James C. QUINN and Jacqueline R. Quinn, Plaintiffs-Appellants, v. CASTLE PARK RANCH PROPERTY OWNERS ASSOCIATION, INC., Defendant-Appellee.
    No. 02CA0942.
    Colorado Court of Appeals, Div. V.
    April 10, 2003.
    Certiorari Denied Sept. 22, 2003.

      Tobey & Toro, P.C., Jeanne M. Toro, En-glewood, Colorado, for Plaintiffs-Appellants.
    White and Steele, P.C., John M. Lebsack, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge NIETO.

In this appeal concerning limits on common interest community assessments, plaintiffs, James C. Quinn and Jacqueline R. Quinn, appeal the judgment entered in favor of defendant, Castle Park Ranch Property Owners Association, Inc. We reverse and remand.

In 1997, plaintiffs purchased a parcel of land described as Tract 1, Castle Park Ranch, Phase 1. A "Declaration of Protective Covenants for Castle Park Ranch" (Original Declaration) was recorded in August 1998. A "Supplemental Declaration of Protective Covenants for Castle Park Ranch" was recorded in 1994.

The Original Declaration states that the Association will operate according to bylaws that shall provide that every property owner in Castle Park Ranch will be a member of the Association. It also states that the bylaws shall provide that the Association's purposes will be to: (1) own, maintain, and improve utility, access, and roadway easements; (2) enforce the protective covenants; (8) assess property owners annual dues; (4) see that assessment funds are used as intended; and (5) provide upkeep and improvement to all noncounty roads in Castle Park Ranch.

The Original Declaration includes a provision governing the common expense liability of members:

Members shall pay assessments to the Association and the Association shall have the power and right to make assessments and to collect such assessments from the members.... The average annual common expense liability to the Association of each parcel restricted to residential purposes, exelusive of optional user fees and any insurance premiums paid by the Association, shall not exceed Three Hundred Dollars ($300.00).

In 1999, the Association conducted two meetings at which its members voted to pave a private road within Castle Park Ranch. As a result of the meetings, the Association levied a "special assessment" of $17,500 against each member to be paid in 1999 for the cost of paving the road. This assessment was in addition to the assessment on each property owner for 1999 annual dues to the Association.

Plaintiffs refused to pay the special assessment and sued the Association for, as pertinent to this appeal, a declaratory judgment that the Association does not have authority to make assessments on their property exceeding an average of $300 per year and that the Supplemental Declaration is not applicable to plaintiffs' tract. The Association filed an answer denying plaintiffs' claims and asserted a counterclaim for the unpaid special assessment plus interest, attorney fees, and costs.

Both parties filed motions to determine questions of law pursuant to C.R.C.P. 56(h) and cross-motions for summary judgment. The trial court granted the Association's motions and entered judgment declaring that the Association had authority to make the assessments, that plaintiffs' property was subject to the Supplemental Declaration, and that the Colorado Common Interest Ownership Act (CCIOA), § 88-38.3-101, et seq., C.R.8.2002, does not govern the issues in this case. It also entered judgment in favor of the Association for the special assessment plus interest, attorney fees, and costs. This appeal followed.

I.

Plaintiffs contend that the trial court erred in ruling that the Association was authorized to impose the special assessment on their property. They argue that the Association's authority to make assessments on their property on their property is limited by the Original Declaration and the CCIOA to an average annual common expense liability not exceeding $300. We agree.

Appellate courts review summary judgments de novo. Summary judgment is appropriate when the pleadings and supporting documents demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56, West Elk Ranch, L.L.C. v. United States, 65 P.3d 479 (Colo.2002); Walter v. City & County of Denver, 983 P.2d 88 (Colo.App.1998).

Construction of a covenant is a question of law that is reviewed de novo. Courts must follow the dictates of plain English in interpreting a covenant, and a covenant that is clear on its face will be. enforced as written. Covenants are construed as a whole, keeping in mind their underlying purpose. Buick v. Highland Meadow Estates at Castle Peak Ranch, Inc., 21 P.3d 860 (Colo.2001); Rossman v. Seasons at Tiara Rado Associates, 943 P.2d 34 (Colo.App.1996).

The language of the Original Declaration clearly limits the Association's authority to impose assessments for its annual common expenses. -It is not disputed that the special assessment far exceeds this limitation. Thus, the special assessment of $17,500 was not authorized by the Original Declaration.

The Association argues that the Original Declaration authorized the creation of the Association and that the Association's bylaws provide for assessments for road improvements without limitation, if such expenditures have been properly approved by the members. Thus, the Association argues, the special assessment was authorized under the Original Declaration and the bylaws. We are not persuaded.

Article II of the bylaws provides that a proportionate part of the common expenses of the Association shall be assessed against each parcel owner, "as provided in the [Original Declaration]." Article X of the bylaws states that:

Whenever, in the judgment of the Board, common facilities such as roads shall require additions, alterations or improvements costing in excess of $1,000.00, said alterations and improvements shall not be made unless they have been approved by a majority of the members present and voting at a meeting at which a quorum is present. When said approval has been obtained, all members shall be assessed for the cost thereof as a common charge.

The Association interprets Article X to authorize the special assessment for road improvements. In urging this interpretation, the Association ignores the Original Declaration's express limitation on the common expense liability of property owners, the obligation of the Association to enforce the covenants contained in the Original Declaration, and the mandate of Article II for the board to assess and collect the common expenses of the Association "as provided in the [Original Declaration].

Moreover, as plaintiffs contend, Article. X can be interpreted in a manner that is harmonious with the Original Declaration and with Article II, if it is read as only providing a method for obtaining approval for expenditures in excess of $1,000. Because this interpretation makes Article X consistent with both Article II and the Original Declaration, we give it such an interpretation. See Buick v. Highland Meadow Estates at Castle Peak Ranch, Inc., supra (covenants to be construed as a whole and doubts about restrictions are resolved in favor of unrestricted use of property).

Interpreting Article X as urged by the Association would eliminate the common expense limitation in the Original Declaration, which was recorded and intended to run with the land. The Original Declaration is clear on its face and must be enforced as written. See Wilson v. Goldman, 699 P.2d 420 (Colo.App.1985).

Further, certain provisions of the CCIOA lead us to conclude that Article X cannot eliminate the common expense limitation in the Original Declaration.

The trial court found that the CCIOA did not govern the issues in this case because the Original Declaration provided for common expense limitations under § 38-88.3-116(1), C.R.S.2002, and thus, the Association was exempted from most of the CCIOA provisions. Neither party contests this finding.

The CCIOA is intended to "establish a clear, comprehensive, and uniform framework for the ereation and operation of common interest communities." Section 38-33.8-102(1)(a), C.R.S8.2002. Generally, common interest communities created after July 1, 1992, are governed by the CCIOA. Section 38-33.8-115, C.R.8.2002. However, "if a planned community provides, in its declaration, that the annual average common expense liability of each unit restricted to residential purposes, exclusive of optional user fees and any insurance premiums paid by the association, may not exceed three hundred dollars, it is subject only to [certain limited provisions of CCIOA]." Section 88-38.3-116(1).

As the trial court found, the Association is exempted from the CCIOA because the Original Declaration specifically limits each member's annual average common expense liability to $300. Thus, it would undermine the purpose of the CCIOA to allow the Association to be exempted from the CCIOA and, at the same time, not be bound by the very restriction that allows for the exempted status. Having opted for exemption from the CCIOA, the Association cannot refuse to be bound by the limitation on common expenses incorporated into the Original Declaration. Thus, the Association's interpretation of Article X is untenable.

Accordingly, we conclude that the special assessment is contrary to the plain language of the Original Declaration and that the bylaws do not authorize the Association to make such an assessment. Further, the Association's election under § 38-33.3-116(1) of the CCIOA prevents it from making the special assessment. Therefore, the special assessment is invalid with respect to plaintiffs. See Lovering v. Seabrook Island Property Owners Ass'n, 289 S.C. 77, 344 S.E.2d 862 (S.C.Ct.App.1986), aff'd as modified, 291 S.C. 201, 352 S.E.2d 707 (S.C.1987) (association not authorized to levy special assessments where neither the protective covenants nor the bylaws give association such power); Brooks v. Northglen Ass'n, 76 S.W.3d 162 (Tex.App.2002)(homeowners association lacked authority to impose assessments in excess of limitation stated in restriction); Anderson v. Lake Arrowhead Civic Ass'n, 253 Va. 264, 483 S.E.2d 209 (1997)(covenant limiting the amount community association could assess precluded association from increasing assessment).

II.

Plaintiffs also contend that the trial court erred in concluding that the Supplemental Declaration applies to their property. Again, we agree.

The Supplemental Declaration specifically states that it supplements the Original Declaration "but only as to the lands described on Exhibit I hereto and the lands described in the Addendum hereto." The Addendum states that the owners of tracts of land in Castle Park Ranch signing the Addendum agree to join and affirm the provisions and covenants contained in the Supplemental Declaration. Plaintiffs assert that the Addendum does not refer to their property and does not contain their signatures or the signatures of any prior owner of plaintiffs' tract and that their tract is not contained in the property described in Exhibit I. Defendant does not any either of these assertions.

The plain terms of the Supplemental Declaration provide that it does not apply to plaintiffs' tract. The trial court erred in concluding otherwise. See Wilson v. Goldman, supra.

Having determined that the special assessment was invalid as to plaintiffs, we necessarily conclude that the judgment against plaintiffs based on that assessment must be reversed.

The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

Judge TAUBMAN and Judge CASEBOLT concur.


text:
    In re the Marriage of Sammy J. MARTINEZ, Appellant, v. Gloria N. GUTIERREZ-MARTINEZ, Appellee.
    No. 02CA0559.
    Colorado Court of Appeals, Div. V.
    April 10, 2003.
    Certiorari Denied Oct. 6, 2003.

      Brian DeBauche & Associates, L.L.C., Brian DeBauche, Denver, Colorado, for Appellant. >
    Scheideler & Associates, P.C., Joseph Scheideler, Chris Matz, Dwight H. Mann, Denver, Colorado, for Appellee.
   Opinion by

Judge NIETO.

In this dissolution of marriage proceeding between Sammy J. Martinez (husband) and Gloria N. Gutierrez-Martinez (wife), husband appeals from the property division entered as part of the trial court's permanent orders. We affirm in part, reverse in part, and remand for further proceedings.

The parties married in 1992. They had no children together and the primary issues concerned the valuation and division of the marital estate. The decree dissolving their marriage was entered by the court on May 3, 2001.

L.

Husband first contends that the trial court erred in failing to include certain real property as a marital asset. We disagree.

The trial court found, with record support, that this property was previously owned by wife's sister and was her residence. The sister began having difficulties and was in jeopardy of losing her house to foreclosure. The court further found that, because the sister was unable to refinance her mortgage, she transferred title to the house to wife, who then refinanced it on her sister's behalf. The evidence was undisputed that the sister continued to reside in the property and remained solely responsible for its upkeep, maintenance costs, insurance premiums, and mortgage payments. Wife testified that her sister owned the house, and wife disclaimed any beneficial ownership of the house. Nothing in the record suggests that wife received any beneficial interest from the title transfer. The court held that the sister was the owner of the property notwithstanding that title was in wife's name.

The presumption that property acquired during the marriage is marital property may be overcome by showing that the property was obtained by one of the methods listed in § 14-10-1182), C.R.8.2002. However, the form in which title is held is not dispositive in determining whether property is marital. In re Marriage of Stumpf, 932 P.2d 845 (Colo.App.1996).

The trial court, in effect, held that a resulting trust arose when the sister conveyed title to wife. "A resulting trust is a trust implied by law when the cireumstances surrounding the transfer of property raise the inference that the parties intended to create a trust." Mancuso v. United Bank, 818 P.2d 732, 738-39 (Colo.1991). The record supports this conclusion.

-It is fundamental that a trustee holds trust property separate from his or her personal estate, and the trust property is not subject to claims from the trustee's personal creditors. See Lagae v. Lackner, 996 P.2d 1281, 1284 (Colo.2000)("A fundamental tenet of trust law is the protection of the trust estate from a trustee's personal ereditors."); Mancuso v. United Bank, supra (trust funds on deposit with bank may not be applied to trustee's personal debt).

Accordingly, we conclude that where a spouse takes title to property under cireum-stance that give rise to a resulting trust, that property has not been "acquired" for purposes of § 14-10-118(8), and therefore, the trust property is not part of the marital estate. Thus, the trial court correctly excluded the sister's house as an asset of the marital estate.

Also, because the property was held in trust by wife, it constituted neither an economic cireumstance to be weighed in the overall property division nor evidence that husband's economic resources allowed wife to live beyond her ordinary means. Similarly, we conclude that it was unnecessary for the trial court to consider either the value of the car owned by wife's sister under a similar arrangement or the value of the car that wife and her former husband gave to wife's daughter.

IL.

Husband next contends that the trial court erred by failing to determine whether two houses owned separately by the parties prior to their marriage had appreciated in value and by failing to consider that appreciation in value when dividing the marital estate. We agree.

The first property (Colgate residence) was owned by husband prior to the marriage and was used as the marital residence. Husband continued to make the mortgage payments out of his salary. At the time of the permanent orders hearing, the outstanding balance for the mortgage loan on that property was $32,000.

The second property (W. 32nd residence) was owned by wife prior to the marriage. The parties refinanced that home in 1996 and added husband to the title. They used funds obtained from the refinance to make repairs on the property. Despite the joint ownership, wife continued to make the mortgage payments for that property from her own earnings. At the time of the permanent orders hearing, the balance on the mortgage loan for the W. 32nd residence was approximately $86,000.

The trial court found that the evidence was insufficient to determine the increase in value of the properties or the portion of increased value that was marital property. The court found that each property was the separate property of the party who owned it prior to the marriage and then awarded the separate property and the marital equity in that property, if any, to that party.

Generally, property acquired by either spouse during the marriage is presumed to be marital property. Section 14-10-113(3), C.R.S.2002; In re Marriage of Bartolo, 971 P.2d 699 (Colo.App.1998). Marital property also includes any appreciation in the value of separate property or any income produced by separate assets during the marriage. Section 14-10-113(4), C.R.S.2002; In re Marriage of Seewald, 22 P.3d 580 (Colo.App.2001).

A property division in permanent orders that omits property without any explanation cannot stand. In re Marriage of Sim, 939 P.2d 504 (Colo.App.1997).

Here, the record contained evidence of the premarital value of each property. Husband submitted a 1992 property tax statement for the Colgate property that indicated a value at that time of $109,100. Husband also submitted a copy of the 1990 sale contract for the W. 82nd residence, which showed that it had been purchased for $30,000. We recognize that this evidence may not be the best source for determining the premarital property values, and the quality of the evidence may affect the weight given to it. However, when we consider this evidence in combination with the parties' evidence that valued each property in excess of $200,000, we are satisfied that the trial court had a sufficient basis to determine the amount of marital appreciation realized in both properties.

The court awarded each party his or her premarital residence, and we do not find such an allocation to be improper. However, because the trial court did not take the properties' appreciation in value into consideration in dividing the martial estate, this matter must be remanded for a new hearing. The court must determine the properties' appreciation in value and the part of the increase that is marital property and then redetermine the property division taking those values into consideration. See In re Marriage of Wells, 850 P.2d 694 (Colo.1993)(where property division is remanded for rehearing, the character and value of property are established as of the date of decree of dissolution, but in dividing the marital estate, the court must consider the economic cireum-stances of the parties at the time of rehearing).

IIL.

Husband contends that the trial court erred in its valuation of his VALIC annuity. Wife concedes this issue and agrees that the trial court must reconsider its valuation. Because the trial court must reconsider the entire property division, the allocation of this asset must also be reconsidered. Wife concedes that the trial court's classification of the entire asset as marital property is incorrect, and on remand, the trial court should clarify what portion of the annuity is husband's separate property and what portion belongs to the marital estate.

IV.

Husband further contends that the trial court erred in finding that he had improperly dissipated certain funds and incorrectly calculated the amount dissipated. We disagree.

Husband prefaces his argument by alleging that the trial court's errors occurred because it adopted the permanent orders drafted and proposed by wife. However, a trial court's adoption of one party's proposed findings and conclusions is not necessarily improper and does not warrant reversal unless the findings themselves are inadequate. Aztec Minerals Corp. v. State, 987 P.2d 895 (Colo.App.1999).

Generally, property must be valued as of the date of the decree or as of the date of the hearing on the disposition of property, whichever is earlier. Section 14-10-113(5), C.R.S.2002; In re Marriage of Huston, 967 P.2d 181 (Colo.App.1998). This statutory provision is mandatory, but if marital assets have been dissipated by a party, those assets must be valued as of the last date they existed as marital property. In re Marriage of Finer, 920 P.2d 325 (Colo.App.1996).

Here, the trial court found that husband controlled all investments and had the freedom to withdraw money from the investment accounts as he pleased. It noted that although wife took no active interest in the parties' investments, the funds nevertheless remained marital. The court further found that husband withdrew the disputed funds from the investment accounts in anticipation of the dissolution of marriage and deposited them in accounts not accessible to wife.

These findings provide a reasonable basis for the trial court's conclusion that husband dissipated the amounts in question. It was incumbent upon husband to establish that the funds were used for proper expenses. See In re Marriage of Meisner, 715 P.2d 1273 (Colo.App.1985)(inelusion of $45,000 in expended funds as part of marital property did not constitute error where husband controlled the funds and did not establish that such funds were expended in the usual course of business or for necessities).

Despite husband's insistence that the expenditures were legitimate, the trial court was free to believe all, any part, or none of his testimony, even when it was uncontro-verted. See In re Marriage of Bowles, 916 P.2d 615 (Colo.App.1995). It is clear from the trial court's findings that it was not persuaded by husband's claim that the withdrawals were used by wife to purchase a house, vehicles, or jewelry.

We have also reviewed the trial court's calculations and find no error. If the withdrawals from the DPS account and the First Bank account are added to the balance remaining in the First Bank account, the sum equals the amount the court considered as marital property and divided between the parties. The withdrawal from the Charles Schwab account was deposited into the First Bank account, and therefore, it was taken into account in the calculation. See In re Marriage of Finer, supra (if marital funds are dissipated by one party, the trial court may include their value in the division of marital property); In re Marriage of Paulsen, 677 P.2d 1389 (Colo.App.1984)(court properly credited wife with a setoff for marital funds husband kept for himself prior to the parties' separation). However, because the trial court must reconsider the entire property division, the allocation of these marital funds, including the dissipated funds, must also be reconsidered.

v.

Finally, husband argues that because the value of wife's jewelry represented an investment, the trial court erred in failing to include it in the marital estate. Again, we disagree.

The records contain no evidence that wife's wedding ring and a second diamond ring were purchased as investments. The fact that the diamonds may have been investment grade indicates the quality of the gems, but does not establish they were actually intended to be an investment of marital funds. Moreover, the record reflects that the parties stipulated to a division of their personal property. Consequently, we reject husband's claim that the jewelry was improperly omitted from the property division.

However, the trial court must take this stipulation for division of personal property into, account when it reconsiders the entire property division.

Because we must remand for a new hearing on the appreciation in value of the separate properties, we need not consider husband's contention that the trial court improperly received expert testimony on the value of these properties.

The judgment is affirmed as to the exclusion of the sister's house from the marital estate and the determination that husband dissipated marital assets. In all other respects the judgment dividing the marital estate is reversed, and the case is remanded for further proceedings in accordance with this opinion.

Judge TAUBMAN and Judge CASEBOLT concur.


author: Judge KAPELKE. Judge ROTHENBERG

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas ALLEE, Defendant-Appellant.
    No. 01CA2240.
    Colorado Court of Appeals, Division IV.
    April 10, 2003.
    Certiorari Denied Oct. 6, 2003.

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

Judge KAPELKE.

Defendant, Thomas Allee, appeals the judgment of conviction entered upon a jury verdiet finding him guilty of second degree assault with a deadly weapon. We affirm.

The victim was defendant's girlfriend, who lived with him. According to the prosecution's evidence, defendant grabbed the victim by the hair, dragged her along the ground, struck her in the head with a shovel, kicked her, and threw rocks at her head. The vice-tim suffered numerous injuries as a result of the attack.

Following the attack, defendant drove the victim to his aunt's house, and the police were called. The victim told the responding officers that defendant had attacked her and hit her with a shovel. The aunt told the officers that defendant admitted he had hit the vietim in the head with a shovel.

The victim was taken to the hospital where, in response to questioning as to the cause of her injuries, she told the emergency room physician that defendant had attacked her and struck her in the head with a shovel.

Defendant was arrested and charged with, as relevant here, first degree assault, domestic violence, and crime of violence.

At trial, both the victim and defendant's aunt said they did not remember any of the events of the day of the alleged assault, including making their statements to the police.

L.

Defendant contends that the trial court committed reversible error in admitting hearsay statements made by the victim to the emergency room physician. We perceive no basis for reversal.

A.

CRE 808(4) provides an exception to the hearsay exclusion when a statement is "made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." See King v. People, 785 P.2d 596, 600 (Colo.1990). Statements that fall within this exeeption are presumptively reliable because a patient generally believes that the effectiveness of the medical treatment may depend upon the accuracy of the information provided. W.C.L. v. People, 685 P.2d 176 (Colo.1984); People v. Galloway, 726 P.2d 249 (Colo.App.1986).

Such statements are admissible if they meet a two-part test of reliability: first, the declarant's motive in making the statement must be consistent with the purpose of promoting treatment or diagnosis; and see-ond, the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis. People v. Galloway, supra.

While statements ascribing fault or identifying the perpetrator of an assault are generally not admissible under CRE 808(4), an exception exists where that portion of the statement is itself perceived by the medical provider as necessary for diagnosis and treatment. Thus, some courts have admitted such statements if they are relevant for diagnosis and treatment of psychological and other injuries accompanying domestic assault. See United States v. Joe, 8 F.3d 1488 (10th Cir.1993); 2 McCormick on Evidence 238 (John W. Strong ed., 1999).

The rationale in such cases is that the physician is required to treat the psychological and emotional injuries which accompany such abuse. See Oldman v. State, 998 P.2d 957 (Wyo.2000)(identity of attacker pertinent to treatment in domestic assault). Moreover, appropriate treatment of the abuse may require referral to domestic violence resources or assistance in leaving the home in which the abuse occurred. See United States v. Joe, supra, 8 F.3d at 1494 (stating that identity of abuser is reasonably pertinent to treatment in "virtually every domestic sexual assault case"); Nash v. State 754 NE.2d 1021, 1025 (Ind.Ct.App.2001)("where injury occurs as the result of domestic violence, which may alter the course of diagnosis and treatment, trial courts may properly exercise their discretion in admitting statements regarding identity of the perpetrator").

Here, the emergency room physician who treated the victim testified that it was part of his standard procedure to find out how the individual was injured and that he elicited the challenged statement to assist in his medical diagnosis and treatment. He stated that the victim said she had been assaulted by her boyfriend, thrown down the stairs, and struck in the head with a shovel and that she complained of arm and leg pain and pain from the laceration of her eye.

However, the record does not indicate that the identification of defendant as the victim's assailant was necessary for or pertinent to the physician's diagnosis or treatment or that he made any referral to domestic abuse resources or took any other action based on that identification. Under these circumstances, we agree with defendant that the challenged statement was not admissible.

Nevertheless, because the physician's testimony concerning defendant's identity was essentially cumulative of testimony given by the investigating officers, the admissibility of which is not challenged here, we conclude that any error in admitting the statements was harmless under the circumstances. See People v. Perez, 972 P.2d 1072 (Colo.App.1998).

B.

We reject defendant's assertion that the physician's testimony regarding the victim's statements violated defendant's federal and state constitutional rights to confrontation because at trial the victim said she was unable to recall her statements. Defense counsel had the opportunity to cross-examine the victim about her statements, but apparently chose not to do so. Accordingly, there was no violation of defendant's confrontation rights. See People v. Pineda, 40 P.3d 60 (Colo.App.2001)(no denial of confrontation rights where the hearsay declarant testified at trial and was subject to cross-examination). The fact that at the time of trial the victim no longer recalled the statements or events does not alter this conclusion. See United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988).

IL.

Defendant next contends that prosecutorial misconduct violated his right to a fair trial. We disagree.

A.

First, defendant argues that reversal is required by the prosecution's statements during closing argument concerning the veracity of the victim. Because defendant did not object to the statements at trial, we review for plain error. We find none.

Prosecutorial misconduct mandates reversal for plain error only where there is a substantial likelihood that it affected the verdict or deprived the defendant of a fair and impartial trial, People v. Constant, 645 P.2d 843 (Colo.1982).

While it is permissible for counsel to draw reasonable inferences from the evidence as to witness credibility and point to cireumstances casting doubt on a witness's testimony, it is improper for counsel to express a personal belief as to the truth or falsity of the testimony. Wilson v. People, 743 P.2d 415 (Colo.1987). In particular, a prosecutor's assertion of personal opinion concerning the credibility of witnesses poses two distinct dangers:

[Sluch comments can convey the impression that evidence not present[ed] to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence.

Wilson v. People, supra, 743 P.2d at 418-19 (quoting United States v. Young, 470 U.S. 1, 18-19, 105 S.Ct. 1038, 1048, 84 L.Ed.2d 1 (1985)).

Contentions of improper argument must be evaluated in the context of the argument as a whole and in light of the evidence before the jury. People v. Kerber, 64 P.3d 930 (Colo.App.2002). The determination whether closing argument is improper is a matter committed to the discretion of the trial court. People v. Shepherd, 43 P.3d 693 (Colo.App.2001).

Here, in closing argument, the prosecutor said several times that the victim had "told the truth" about having been assaulted by defendant when she spoke to defendant's aunt, the emergency room physician, and the investigating officers. The prosecutor also argued to the jury that when the victim testified she did not remember what happened, she "told you a lie." Defendant made no objection.

Neither of the dangers discussed in Wilson v. People, supra, is implicated here. The comments do not suggest to the jury that the prosecutor had formed an opinion of guilt based on evidence not presented at trial, nor do they purport to carry the imprimatur of the government so as to induce the jury to trust the prosecutor's judgment rather than its own view of the evidence. Instead, the prosecutor's statements highlighted the argument that the victim's original accusations of defendant were credible, while her trial testimony that she did not recall the events or statements lacked credibility. In discussing the victim's credibility, the prosecutor pointed to specific evidence demonstrating that the assault had occurred and that the victim may have lacked the strength to confront defendant.

Under the cireumstances, we conclude that the prosecution's comments did not rise to the level of plain error.

B.

Next, we reject defendant's contention that plain error occurred when the prosecution advised the jury in opening statement that the victim had broken her "arm" rather than her "hand." No objection was made to the brief misstatement, and the jury heard testimony and other evidence demonstrating that a bone in the vietim's hand, not her arm, was broken. Moreover, the misstatement was corrected in closing argument. Accordingly, we find no plain error. See People v. Shields, 701 P.2d 133 (Colo.App.1985).

C.

Next, defendant asserts that the prosecution misled the jury by misstating elements of the charged offense in closing argument. We perceive no basis for reversal.

In her closing argument, the prosecutor stated, "The defendant is charged with the crime of first degree assault, and all that is required for [that crime] is that the defendant used a deadly weapon, and he caused serious bodily injury to [the victim]." Defense counsel objected, pointing out that the prosecution had omitted the mental state element. The court overruled the objection.

In his own closing argument, defense counsel advised the jury of the prosecution's failure to list all the elements and emphasized the requirement for a finding as to defendant's mental state. Furthermore, the court properly instructed the jury on all the elements of the applicable charges and also advised the jury that "while the lawyers may have commented during trial" on the rules of law to be applied in the case, the jury was to be guided by the court's instructions. See People v. Shields, supra. Under the cireum-stances, the prosecution's failure to mention the mental state element was harmless beyond a reasonable doubt.

D.

Defendant argues that the prosecution's remark that the jury should not be distracted by the defense "tactic" was reversible error. Again, we disagree.

A prosecutor's reference in closing argument to defense counsel's "tactics" may be improper because it is directed to opposing counsel rather than to the law and facts of the case. People v. Coria, 937 P.2d 386 (Colo.1997)(trial court should have sustained defendant's objections to prosecutor's references to "Theatrics 101," "smoke and mirrors," and "diversionary tactics").

Here, the prosecutor advised the jury during closing argument that it was unnecessary to prove that the victim's blood or defendant's fingerprints were on the shovel. She then stated, "Do not be confused by the [dlefense tactic to look for things that aren't there." The court overruled defendant's objection to the comment.

Because the prosecutor's brief comment was made in the context of attempting to draw the jury's focus to relevant evidence and was not intended to denigrate opposing counsel, we find no abuse of discretion in the trial court's ruling.

E.

Defendant further argues that the trial court committed reversible error by allowing the prosecution to comment, during closing argument, that the case could have been a "made for TV movie." Again, we perceive no basis for reversal.

In closing argument, counsel may employ rhetorical devices and engage in oratorical embellishment and metaphorical nuance, so long as he or she does not thereby induce the jury to determine guilt on the basis of passion or prejudice, attempt to inject irrelevant issues into the case, or accomplish some other improper purpose. Harris v. People, 888 P.2d 259 (Colo.1995); People v. Hastings, 983 P.2d 78 (Colo.App.1998), aff'd sub nom. Gorman v. People, 19 P.3d 662 (Colo.2000).

The prosecution's statement here was no more than an oratorical embellishment and was not unfairly prejudicial. Therefore, we find no abuse of discretion warranting reversal.

F.

Finally, we also reject defendant's assertion that the prosecutor impermissibly commented on defendant's exercise of his right to remain silent by saying, "How injured does this woman have to be before the defendant will recognize what he did?" We do not read the statement as implicating defendant's Fifth and Fourteenth Amendment rights. Thus, we again find no basis for reversal.

The judgment is affirmed.

Judge DAILEY concurs.

Judge ROTHENBERG specially concurs.

Judge ROTHENBERG

specially concurring.

I concur with the majority that the judgment should be affirmed. However, I write separately because I conclude the trial court did not err in admitting the victim's statements to the emergency room physician. Thus, I perceive no need to reach the issue of harmless error.

Section 16-10-201(1), C.R.8.2002, provides:

Where a witness in a criminal trial has made a previous statement inconsistent with his [or her] testimony at the trial, the previous inconsistent statement may be shown by any otherwise competent evidence and is admissible not only for the purpose of impeaching the testimony of the witness, but also for the purpose of establishing a fact to which his [or her] testimony and the inconsistent statement relate, if [a foundation is shown].

A proper foundation is shown under the statute if the witness is available to give testimony at trial and the prior inconsistent statement "purports to relate to a matter within the witness's own knowledge." Section 16-10-201(1)(a)-(b), C.R.8.2002.

The requirement of a prior inconsistent statement is satisfied if the witness either denies or cannot recall the transaction or event in issue. See People v. Aguirre, 839 P.2d 483, 486 (Colo.App.1992); see also CRE 613(a) (permitting the admission of extrinsic evidence "[where the witness denies or does not remember" making a prior inconsistent statement, but limiting use of extrinsic evidence "to prove that the prior inconsistent statement was made").

Here, the victim testified at trial that she could not recall the events that led to the charges against defendant. Although the prosecution did not offer the victim's statements to the emergency room physician under § 16-10-201, the statements were nevertheless admissible on that basis, and I conclude the trial court did not err in admitting them. See People v. Quintana, 882 P.2d 1366, 1375 (Colo.1994)("A defendant's conviction will not be reversed if a trial court reaches the correct result although by an incorrect analysis.").


author: Judge CASEBOLT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Scott Alan FRAZIER, Defendant-Appellant.
    No. 02CA1585.
    Colorado Court of Appeals, Div. V.
    April 24, 2003.
    Rehearing Denied May 29, 2003.
    Certiorari Granted Oct. 6, 2003.
    Ken Salazar, Attorney General, Catherine P. Adkisson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Earl S. Wylder, Greenwood Village, Colorado, for Defendant-Appellant.
   Opinion by

Judge CASEBOLT.

In this appeal concerning the version of § 42-4-1801(9) in effect from July 1 to September 25, 2001, defendant, Seott Alan Frazier, appeals the sentence imposed by the trial court following his guilty plea to vehicular homicide. We affirm.

In August 2001, defendant was driving a motorcycle when he was involved in an accident. The victim, a passenger on the back of defendant's motoreycle, was thrown from the motorcycle and died at the scene. Defendant's blood alcohol content was determined to be 0.145 grams of alcohol per one hundred milliliters of blood.

Pursuant to a plea agreement, defendant pleaded guilty to vehicular homicide under § 18-3-106(1)(a) and (b), C.R.S.2002. At the providency hearing, the trial court advised defendant that the crime of vehicular homicide committed while driving under the influence was a class three felony and that he could be sentenced to the custody of the Department of Corrections (DOC) for a term between two and twenty-four years. Defendant acknowledged that he understood the advisement. The court accepted his plea and set the matter for sentencing.

Before the sentencing hearing, defendant filed a motion in which he argued that under the version of § 42-4-1301(9)(a)(II) enacted in Colo. Sess. Laws 2001, ch. 229, at 789 (Senate Bill 01-168), the maximum sentence for vehicular homicide was one year in the county jail. Relying in part upon the subsequently amended version of that section enacted in Colo. Sess. Laws 2001, ch. 1 at 2 (2d Extraordinary Session)(Senate Bill 0182 008), the trial court rejected defendant's argument and sentenced him to six years in the custody of the DOC. This appeal followed.

Defendant contends that under Senate Bill 01-168 he was subject to a maximum possible punishment of one year in the county jail for his vehicular homicide conviction under § 18-3-106(1)(b)(I), C.R.S.2002. We disagree.

The interpretation of statutes is a question of law subject to de novo review. Hendricks v. People, 10 P.3d 1231 (Colo.2000).

In construing a statute, we must ascertain and effectuate the legislative intent, which is to be discerned, when possible, from the plain and ordinary meaning of the statutory language. People v. Longoria, 862 P.2d 266 (Colo.1993). Constructions that defeat the obvious legislative intent should be avoided, and, where possible, a statute must be read and considered as a whole and interpreted to give consistent, harmonious, and sensible effect to all its parts. People v. Dist. Court, 713 P.2d 918 (Colo.1986). We presume that the General Assembly intends a just and reasonable result when it enacts a statute, and we will not follow a statutory construction that defeats the legislative intent or leads to an unreasonable or absurd result. People v. Drake, 983 P.2d 135 (Colo.App.1999).

When the statutory language is clear and unambiguous, it must be construed as written, without resort to interpretive rules of statutory construction. People v. Zapotocky, 869 P.2d 1234 (Colo.1994). If, however, the statutory language lends itself to alternative constructions and its intended scope is unclear, a court may apply rules of statutory construction to determine the construction that accords with the objective of the legislation. People v. Terry, 791 P.2d 374 (Colo.1990). -If the language of the statute is ambiguous or in conflict with other provisions, we then look to legislative history, prior law, the consequences of a given construction, and the goal of the statutory scheme. People v. Luther, 58 P.3d 1013 (Colo.2002).

As relevant here, a person commits vehicular homicide when he or she "operates or drives a motor vehicle while under the influence of alcohol ... and such conduct is the proximate cause of the death of another." Section 18-3-106(1)(b)(ID). This strict liability crime is a class three felony. See § 18-3-106(1)(c), Under the general sentencing statute, the available sentencing range for class three felonies committed on or after July 1, 1998, is two to twenty years in the custody of the DOC. See § 18-1.3-401(1)(a)(V)(A), C.R.98.2002.

Senate Bill 01-168, titled "Concerning the requirement of the completion of level II alcohol treatment for persistent drunk drivers, and making an appropriation therefor," was passed by the General Assembly during the 2001 legislative session. It amended § 42-4-1301(9)(a), which sets out the penalties for the misdemeanor offense of driving a motor vehicle while under the influence of aleohol.

As pertinent here, § 42-4-1301(9)(a)(ID) was amended to read as follows:

An offender shall be punished by imprisonment in the county jail for not less than ninety days nor more than one year, and in addition, the court may impose a fine of not less than five hundred dollars nor more than one thousand five hundred dollars upon a conviction of a violation of any of the following:
(B) Section 18-3-106(1)(b)(I), C.R.S. [vehicular homicide-driving under the influence]. ...

Colo. Sess. Laws 2001, ch. 229 at 789-90. Before that amendment, § 42-2-1301(9)(a)(II) provided such penalties for violations of certain parts of § 42-4-18301(1) occurring within five years after another violation of, inter alia, § 18-8-106(1)(b)(D). Senate Bill 01-168 similarly amended § 42-4-1801(0)(a)(IV), (b)(II), and (b)(IV). See Colo. Sess. Laws 2001, ch. 229 at 790-92.

In its second extraordinary session in 2001, the General Assembly passed Senate Bill 0182-008. Colo. Sess. Laws 2001, ch. 1 at 2 (2d Extraordinary Session). As pertinent here, the bill stated that Senate Bill 01-168 "was intended as a conforming amendment only but may inadvertently have created ambiguity in the applicable penalties for the crimes of vehicular assault, vehicular homicide, and second and subsequent convictions for driving under the influence." Senate Bill 0182-008 re-amended § 42-4-1801(9) accordingly, and specifically stated:

«The applicable penalties for [vehicular assault and vehicular homicide] were never intended to be, and never were, reduced as a result of any provision in Senate Bill 0l-168, and the penalties set forth for such crimes in title 18, C.R.S., have at all relevant times continued to apply... .

Colo. Sess. Laws 2001, ch.1, § 1(a)-(b) at 1 (2d Extraordinary Session).

It is undisputed that Senate Bill 01-168 was in effect from July 1 until September 25, 2001, when Senate Bill 0182-008 became effective, and that defendant committed the crime during that period. Thus, defendant contends that he cannot be imprisoned for more than one year in the county jail.

In our view, the language of Senate Bill 01-168, purporting to provide a maximum penalty of one year in the county jail for persons convicted of vehicular homicide, conflicts with § 18-8-106(1)(b)(ID), and the sentencing statute, § 18-1.3-401(1)(a)(IV)(A), which provide for a much longer sentence in the custody of the DOC. To resolve that conflict, we examine legislative history, prior law, the consequences of the proposed construction, and the goal of the statutory scheme. See People v. Luther, supra.

By enacting Senate Bill 0182-008, the General Assembly has provided persuasive evidence of its intent concerning the interpretation of § 42-4-1801(9)(a)(II), making it clear that Senate Bill 01-168 was not intended to modify the penalties for vehicular homicide. See People v. Holland, 708 P.2d 119 (Colo.1985)(while subsequent legislative declarations concerning the intent of an earlier statute are not controlling, they are entitled to significant weight); BQP Indus., Inc. v. State Bd. of Equalization, 694 P.2d 337 (Colo.App.1984)(noting that the same General Assembly enacted both provisions at issue there, and holding that, while subsequent legislative pronouncement of intent is not a part of the legislative history, such statements may be considered in construing the statute in question); cf. State v. Nieto, 993 P.2d 493 (Colo.2000)(courts cannot infer the intent of an earlier legislature from the views of a subsequent one).

Moreover, before § 42-4-1301(9) was amended by Senate Bill 01-168, it provided additional penalties for persons who had been convicted of multiple aleohol-related offenses. It would be incongruous to interpret the amendment to decrease penalties, as defendant asserts.

In addition, § 42-4-1801 classifies as misdemeanors the enumerated crimes of driving under the influence of aleohol or drugs and driving while ability impaired. See § 42-4-1801(1)(a)(c). And §$ 42-4-1301(9)(a)(I) defines various punishments for "[elvery person who is convicted of a violation of [§ 42-4-1301(1)(a) or (c) or (2)(a) ]." The references in § 42-4-1801(9)(@a)(II), (a)(IV), (b)(ID), and (b)(IV) to "an offender" are specific references to a person who has been convicted under § 42-4-1801(1)(a) or (c) or (2)(a) and is therefore guilty of a misdemeanor. Further, the penalties set forth in § 42-4-1801(9) involve fines and detention in a county jail and, thus, are consistent with misdemeanor convictions, not felony convictions.

Here, defendant was not convicted of a misdemeanor under either § 42-4-18301(1) or (2). He was convicted of a class three felony under § 18-3-106(b)(1). And the amendment that defendant relies upon does not purport to change the felony classification of that crime.

Defendant acknowledges that his proposed interpretation of the Senate Bill 01-168 version of § 42-4-1801(9)(a)(I1) would lead to an absurd result, and is only plausible when that paragraph is read in isolation. Such a construction would require us to ignore the balance of the statute and would render meaningless the designation of vehicular homicide as a felony. We reject such a construction, See Martin v. People, 27 P.3d 846, 851 (Colo.2001); People v. Dist. Court, supra.

Furthermore, defendant does not advance any reason for the amending language of Senate Bill 01-168, if it were interpreted as he suggests. Nor does he identify any reason the General Assembly would have had for placing the penalty for felony vehicular homicide in the traffic statutes applicable to misdemeanors.

We reject defendant's contention that the rule of lenity should be applied here. That rule, which requires construction of ambiguous statutes in favor of defendants in erimi-nal cases, applies only if legislative intent cannot be discerned using other aids to statutory interpretation. See People v. Pierrie, 30 P.3d 816 (Colo.App.2001).

We also reject defendant's contention that the penalty described in Senate Bill 01-168 is the more specific provision and thus should prevail over the general sentencing provisions of § 18-1.3-401. The rule of statutory construction providing that a specific provision prevails over a general one does not apply unless the statutes conflict irreconcilably. See People v. Cooper, 27 P.3d 348 (Colo.2001). We find no such conflict.

We also disagree with defendant's contention that this interpretation violates the prohibition against ex post facto legislation.

When a law makes the punishment for a crime more onerous than it was when the crime was committed, the law violates the constitutional prohibition against ex post fac-to laws. People v. Woodward, 11 P.3d 1090 (Colo.2000). Here, however, under our interpretation, the penalties for vehicular homicide were not changed.

For similar reasons, we reject defendant's equal protection challenge in which he asserts that our interpretation would result in disparate penalties for the same conduct. There was only one statutory penalty in effect at the time of defendant's offense under our interpretation. See People v. Young, 859 P.2d 814 (Colo.1993)(equal protection prohibits punishment of identical conduct with disparate penalties).

Accordingly, we perceive no error in the trial court's decision to sentence defendant to six years in the custody of the DOC.

The sentence is affirmed.

Judge TAUBMAN and Judge NIETO concur.


author: Judge ROY.

text:
    260 GREGORY LLC and Daniel E. Cooper, Plaintiffs-Appellants, v. BLACK HAWK/CENTRAL CITY SANITATION DISTRICT, Defendant-Appellee.
    No. 02CA0207.
    Colorado Court of Appeals, Div. III.
    May 8, 2003.
    Certiorari Denied Oct. 6, 2003.

      Astrella & Rice, P.C., TR. Rice, Denver, Colorado, for Plaintiffs-Appellants.
    Seter & Vander Wall, P.C., Kim J. Seter, Greenwood Village, Colorado, for Defendant, Appellee.
   Opinion by

Judge ROY.

Plaintiffs, 260 Gregory LLC and Daniel E. Cooper (owner), appeal from the summary judgment in favor of defendant, Black Hawk/Central City Sanitation District (the district). We affirm.

This dispute involves a statutory lien which attached to real property pursuant to § 32-1-1001(1)(), C.R.S.2002. The previous owners of the property (debtors) failed to pay for sanitation services provided by the district and filed for bankruptcy under Chapter 11 of the Bankruptey Act, 11 U.S.C. § 1101, et seq. (2002). The district filed a proof of claim for $28,752 and asserted that it was secured by real property pursuant to statute.

Subsequently, debtors filed their third amended plan of reorganization, which the bankruptcy court confirmed. The plan contemplated the sale of the debtors' real property and the payment to other secured creditors from the proceeds of the sale. From our review of the record, it appears that the plan did not make any provision for the district's claim or lien.

Owner purchased the subject property at an auction held without reserve. After having difficulty closing the sale of the subject property, debtors filed a motion to sell property free and clear of liens with the bank-ruptey court. The motion listed all liens of record against the property, exeept the dis-triect's lien, which appeared as a standard exception in the title insurance commitment. The bankruptey court issued an order granting debtors' motion, but the order again did not include the district's lien.

Debtors and owner then closed the sale after owner escrowed sufficient funds to pay for the district's lien. Subsequently, the district submitted a bill to owner for fees incurred during the debtors' ownership, which owner paid under protest.

Owner then brought this declaratory judgment action claiming that the bankruptcy court's approval of the plan of reorganization discharged all debts relating to the property and that he received the property free and clear of the district's lien. The district responded that the charges incurred by the debtor survived the bankruptey and remained a lien against the property.

The parties filed cross-motions for summary judgment, and the trial court granted the district's motion. This appeal followed.

The single issue on appeal is whether the trial court erred in finding that the district's lien survived bankruptey. We agree with the trial court conclusion but not its analysis.

We review the order granting summary judgment de novo. See Aspen Wilderness Workshop, Inc. v. Colorado Water Conserva-tion Board, 901 P.2d 1251 (Colo.1995).

Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c). Summary judgment is appropriate when there is no doubt concerning material facts. See Roderick v. City of Colorado Springs, 193 Colo. 104, 563 P.2d 3 (1977). All doubts as to the existence of an issue of material fact must be resolved against the moving party. See Ridgeway v. Kiowa School District C-2, 794 P.2d 1020 (Colo.App.1989).

There is no dispute that the district had a valid lien on the property before the bank-ruptey proceedings began, that its priority is not pertinent, and that the district properly filed its secured claim in the bankruptcy proceedings.

The trial court relied on 11 U.S.C. § 545 (2002) for the proposition that the district's lien could not be extinguished without an adversary hearing. On appeal, the district appears to concede, and we agree, that § 545 has no application to this case. Further, we reject the district's argument that its lien survives because it was not subject to § 545.

We are also unpersuaded by the parties' arguments that their positions are supported by express language in the plan. The district asserts that the following provision of the plan preserves its lien:

6.7 Retention of Liens. Except as may be otherwise provided for in this Plan, creditors whose claims are secured by lien(s) against the Debtors' property or otherwise claim an interest in such property shall retain such liens to the same extent and in the same priority as their pre-petition liens or shall retain their interest in such property to the same extent and in the same priority as their pre-petition interests.

Owner counters that paragraph 6.7 must be read in the context of the plan, which also provides:

6.9 Debtors' Property. Exeept as provided for in the Plan or in the Confirmation Order, upon Confirmation of the Plan, the Reorganized Debtors shall be vested with full ownership of and dominion over their property and assets free and clear of all claims, liens, charges and other interests of creditors arising prior to the filing of the bankruptey petition.

(Emphasis added.)

Owner argues, and we agree, that paragraph 6.7 is effective during the pendency of the bankruptey proceedings and paragraph 6.9 is effective and governs following confirmation of the plan or its effective date, known as the "payment day."

However, in our opinion, the question whether the district's lien was extinguished in the bankruptcy proceedings is governed by 11 U.S.C. § 1141(c) (2002) of the Bank-ruptey Code, not by the plan. As relevant here, § 1141(c) states:

Except as ... provided in the [reorganization] plan or in the order confirming the plan, after confirmation of a plan, the property dealt with by the plan is free and clear of all claims and interests of creditors, equity security holders, and of general partners in the debtor.

A lien is a security interest, and thus § 1141(c) applies. Matter of Penrod, 50 F.3d 459 (7th Cir.1995). Although the general rule is that liens pass through bankruptcy unaffected, § 1141(c) provides an exception. See In re Regional Building Systems, Inc., 251 B.R. 274 (Bankr.D.Md.2000), aff'd, 254 F.3d 528 (4th Cir.2001).

The seminal case appears to be Matter of Penrod, supra. In that case, the debtor granted the creditor a security interest in breeding livestock and shortly thereafter commenced a Chapter 11 proceeding. The creditor filed a proof of claim asserting that its loan was secured by the livestock. In the plan, the creditor's claim was placed in a class that called for monthly payments based on a seven-year amortization, but was silent as to the creditor's security interest. Shortly after the plan went into effect, the female livestock became ill with a disease of the reproductive system which caused them to miscarry and they were sold for slaughter. The creditor brought an action in state court to enforce its lien against the proceeds from the sale of the livestock. The issue presented was whether the creditor's security interest in the livestock survived the bankruptey proceedings, and the court concluded that it did not. The court held that under § 1141(c) the lien is extinguished unless the plan of reorganization, or the order confirming the plan, says that a lien is preserved or the holder of the lien participated. in the reorganization and its property was dealt with by the plan. In characterizing its holding, the court stated:

Our suggested interpretation reconciles the language of section 1141l(c) with the principle, which we have pointed out cannot be maintained without careful qualification, that liens pass through bankruptcy unaffected. They do-unless they are brought into the bankruptey proceeding and dealt with there.

Matter of Penrod, supra, 50 F.3d at 463.

A noted reference, relying on both Penrod and FDIC v. Union Entities, 83 F.3d 1020, 1027 (8th Cir.1996), summarizes the predominant view as follows:

Discomfort with the idea of extinguishing liens, however, has led a number of appellate courts to add an additional requirement to section 1141(c), requiring that before a lien will be deemed extinguished, not only must the property or claim be dealt with in the plan, but the creditor must have "participated in the reorganization." ... [The Court of Appeals for the Eighth Cireuit [in FDIC v. Union Entities ], starting from the premise that liens pass through bankruptcy unaffected, stated that "where a plan does not expressly preserve a lien, a lienholder may lose it after confirmation of the plan, provided that the lienholder participated in the reorganization and its property was dealt with by the plan."
The Court of Appeals for the Seventh Circuit, in In re Penrod, similarly construed section 1141(c). The Seventh Cireuit described section 1l14l(c) as the "default rule" for secured creditors who file claims for which provision is made in the plan of reorganization for extinguishing of the claim. -If a lHenholder did not participate in the reorganization, then its lien would not be property dealt with in the plan and section 1141(c) would not apply.

8 Lawrence P. King, Collier on Bankruptcy § 1141.04[2], at 1141-14 (2002)(emphasis added).

In Penrod, the security interest was extinguished because the reorganization plan provided for the payment 'of the creditor's claim on an amortized basis and was silent concerning the lien. In Union Entities the lien survived because it was not dealt with in the plan and the creditor was a member of an unsecured creditor's committee and was not allowed to vote as a secured ereditor.

Owner relies on In re Regional Building Systems, Inc., 251 B.R. 274 (Bankr.D.Md. 2000), in which the bankruptcy court criticized Penrod. There, the debtor listed the creditor as a secured creditor, but asserted the collateral had no value. The creditor filed a claim, but did not assert any security interest until seven months after the plan for reorganization, which made no provision for the claim or the security interest, had been confirmed. The creditor was treated as an unsecured creditor, "participated" as a member of the unsecured creditors committee, and shared pro rata in the estate without reference to any security. The court held that if the debtor's property in which the creditor had a secured interest was dealt with by the plan and the plan was silent on the survival of the creditor's secured interest, then under the plain meaning of § 1l141(c), the creditor's security was extinguished.

After pointing out what it considered to be a meaningless distinction from Penrod-that is, in Penrod the creditor filed a claim and asserted its security at the outset-the court attacked the holding and rationale of Penrod. Characterizing Penrod's requirement that the creditor participate in the proceedings as a gloss on the statute grounded in erroneous dictum because in Penrod the creditor had timely filed a secured claim and, in its view, § 1141(c) would have been operative even if no claim had been filed, the court concluded that the creditor's lien or security interest is not property which must be dealt with in the plan in order to extinguish the security interest. See In re Regional Building Systems, Inc., supra.

While Regional Building Systems may be well reasoned and provides support for owner's position, it is not the predominant view; Penrod is. Further, most of the court's discussion in Regional Building Systems is, in our view, dictum, because the creditor there did not attempt to assert its security until seven months following the confirmation of the plan.

The requirement that the ereditor "participate" in the reorganization and that its property be dealt with in the plan is a judicial gloss on the statute traceable to Penrod. Under the rationale of Penrod, the lien is not extinguished by silence in the plan as to its survival unless it is dealt with by the plan, that is, provision is made in the plan for the payment or securing of the claim. Hence, we need not explore the limits of the term "participate" because here no provision was made in the plan for the district's lien.

Accordingly, because the plan here made no provision for the district's lien, we conclude that the lien was not extinguished pursuant to § 1141(c) upon the confirmation of the plan.

The judgment is affirmed.

Chief Judge DAVIDSON and Judge WEBB concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Natalie JOHNSON, Defendant-Appellant.
    No. 01CA1509.
    Colorado Court of Appeals, Div. III.
    May 8, 2003.
    Certiorari Denied Oct. 14, 2003.

      Ken Salazar, Attorney General, John T. Bryan, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge ROY.

Defendant, Natalie Johnson, appeals the judgment of conviction entered after she pleaded guilty to attempted escape. We affirm.

Defendant was charged with escape from custody after she left without permission from a facility where she was serving a previous sentence for possession of a controlled substance.

Before defendant pleaded guilty to a lesser offense, she filed an "Objection to the County Court Acting Outside of Its Jurisdiction." She argued that the Colorado Constitution prohibited the county court judge from presiding over her felony case. However, the county court judge overruled the objection on the ground that she had jurisdiction over the case pursuant to the orders of the Chief Justice of the Colorado Supreme Court and the Chief Judge of Adams County. The county court judge then accepted defendant's guilty plea to attempted escape, a class five felony pursuant to § 18-8-208.1, C.R.8.2002. This appeal followed.

The sole issue on appeal is whether the county court judge properly exercised jurisdiction over defendant's felony case. We conclude that she did.

L

Colorado Constitution article VI, § 17 provides in pertinent part that "[clounty courts shall have such civil, criminal, and appellate jurisdiction as may be provided by law, provided such courts shall not have jurisdiction of felonies." Section 9 article VI provides that district courts have jurisdiction over felony cases.

However, article VI, § 58) states that county judges may be assigned to other courts:

Whenever the chief justice deems assignment of a judge necessary to the prompt disposition of judicial business, [she may: (a) Assign any county judge, or retired county judge who consents, temporarily to perform judicial duties in any county court if otherwise qualified under section 18 of this article, or assign, as hereafter may be authorized by law, said judge to any other court ....

Section 18-6-218, C.R.S8.2002, corroborates this authority when it provides that "[alny county judge ... may be assigned by the chief justice of the supreme court ... to perform judicial duties in any district court."

Furthermore, Colorado Constitution article VI, § 5(4) authorizes the chief justice to delegate such authority to the chief judges of each district as she deems appropriate: "Each chief judge shall have and exercise such administrative powers over all judges of all courts within his district as may be delegated to him by the chief justice."

Defendant argues that we should interpret § 5(8) as allowing the chief justice to assign county court judges to only those court positions that comply with the jurisdictional limits in § 17. We do not agree.

When interpreting the constitution, we must determine the intent of those who adopted it. That intent is first determined by looking at the language of the provision itself, giving words and phrases their commonly understood meaning. Mason v. Adams, 961 P.2d 540 (Colo.App.1997). It is presumed that a just and reasonable result was intended. Smith v. Zufelt, 880 P.2d 1178 (Colo.1994). When the language of the provision is plain and the meaning is clear, it should be interpreted and applied as written. Southard v. Miles, 714 P.2d 891 (Colo.1986). Furthermore, we must read all sections as a whole. See City of Grand Junction v. Sisneros, 957 P.2d 1026 (Colo.1998).

Although § 17 states that county courts cannot hear felonies, § 5(8) limits such prohibition and allows judges of the county courts to be assigned to other courts where judicial economy deems it necessary. Section 5(8) clearly states that the chief justice may assign county court judges to "any other court." Section 5(8) clearly allows the chief justice to assign county court judges to any court, including the district court. See In re Marriage of Glenn, 60 P.3d 775 (Colo.App.2002). Moreover, the chief justice may delegate this authority to the chief judges of the districts pursuant to § 5(4).

Accordingly, we conclude that county court judges may sit as district court judges and exercise the jurisdiction of the district court provided that the chief justice has made such an assignment or she has delegated this authority to a chief judge who has made the assignment.

It follows, therefore, that because courts, not judges, have jurisdiction, county court judges sitting as district judges may hear cases within the jurisdiction of the district court. See In re Marriage of Glenn, supra.

IL

We further conclude that the county judge in this case was properly assigned to hear defendant's felony case.

The Chief Justice of the Colorado Supreme Court has exercised his powers pursuant to article VI, § 5(8) in Chief Justice Directive 95-01(5)(b) which delegates to the chief judge of each judicial district the authority to appoint qualified county judges "to any court in the district when necessary."

Subsequently, the Chief Judge of Adams County authorized all county court judges to accept pleas and conduct sentencing hearings, "in all felony filings where the most serious crime the defendant pleads guilty to is a Class 4, 5, or 6 felony." Order of the Chief Judge, Seventeenth Judicial District, Adams County (Dec. 6, 2000). In doing so, the Chief Judge authorized those county court judges to sit as district judges with the jurisdiction of the district court. The order states that "[the County Judge, sitting as an acting District Judge, may impose whatever sentence is permitted by statute."

Here, the district attorney filed an information in the county court, which was accepted by the court. See § 16-5-101(1)(c), C.R.8.2002 (providing that a criminal action may be commenced in the county court). The county court's minute order states that after defendant entered her objection to jurisdiction, the county judge, "acting as a district court judge, by appointment of the chief of the judicial district[,] accept[ed] [the] felony plea." The judge then entered a written judgment of conviction in the district court.

Based on the record before us, it is clear that the county court judge was acting under authority from the Chief Justice of the Colorado Supreme Court delegated to the Chief Judge of the Seventeenth Judicial District. We thus conclude that at the time of the acceptance of the plea and sentencing, the county court judge, acting as a district court judge, exercised lawful jurisdiction of the district court.

Accordingly, we conclude the county court judge did not err when it denied defendant's motion based on lack of subject matter jurisdiction.

The judgment is affirmed.

Chief Judge DAVIDSON and Judge WEBB concur.