author: Judge ROTHENBERG.

text:
    In re the PARENTAL RESPONSIBILITIES OF H.Z.G., a Child, Upon the Petition of S.M.G., Petitioner-Appellee, and Concerning D.C., Respondent-Appellant.
    No. 02CA0227.
    Colorado Court of Appeals, Div. IV.
    May 8, 2003.
    Certiorari Denied Sept. 22, 2003.

      Jeffrey H. Cahn, P.C., Jeffrey H. Cahn, Boulder, Colorado, for Petitioner-Appellee.
    Warren & Carlson L.L.P., Bruce W. Warren, Niwot, Colorado, for Respondent-Appellant.
   Opinion by

Judge ROTHENBERG.

In this paternity action, D.C. (father) appeals from the judgment based on the trial court's determination that it acquired personal jurisdiction over him, a nonresident, to establish child support payable to S.M.G. (mother). We affirm.

The evidence established that father had an ownership interest in a closely held corporation located in Idaho. Mother met father in March 2000 while she was working for the company in Idaho.

After they began a personal relationship there, she learned she was pregnant. In April, May, and June 2000, father provided her with some support,. When the relationship ended in June or July, she informed father she intended to move to Colorado. She moved in July, and he assisted her with the move.

After mother arrived in Colorado, mother informed father she was applying for Medicaid and Colorado Child Care Assistance Program benefits for the child and she needed documentation of her sources of income, including the prebirth support father was paying. He mailed a letter to her dated July 17, 2000. He admitted understanding that his letter would be submitted as part of her application.

Father's letter stated: "I intend to pay [mother] $300.00 per month from August until January, at which time child support payments will be determined. The check will go out on or about the 10th of each month." Father mailed monthly payments from August through November 2000, and the child was born in Colorado in January 2001. When father did not send any further support, mother filed this action to establish paternity, to allocate parental responsibility, and to set child support and other costs and expenses. She served the petition and summons on father by mail.

Father responded with a motion to dismiss the petition for lack of jurisdiction, which the trial court denied. As relevant here, the trial court found father "knew and intended that his letter of intent would be relied upon ... by Colorado authorities in providing financial assistance to [mother and the child]." The court concluded that while the letter father sent to mother probably would have been insufficient alone to establish jurisdiction, when viewed in conjunction with father's other actions and their intended consequences, there was sufficient evidence to support the exercise of personal jurisdiction over father based on his transaction of business in Colorado within the meaning of the long-arm statute, § 18-1-124(1)(a), C.R.8.2002.

At a later hearing, the court entered permanent orders regarding child support, ar-rearages, parental responsibility, parenting time, and related issues. The court rejected mother's claim that father also owed her money for prebirth support and expenses pursuant to a contract between them.

Father appeals from the trial court's ruling regarding personal jurisdiction over him to establish his child support obligation. He does not appeal from the portions of the judgment allocating parental responsibilities or parenting time.

1.

Initially, we reject mother's contention that father waived his objection to personal jurisdiction by participating in the proceedings, after his jurisdictional arguments were rejected, to defend his position on the issues of child support and arrearages.

In support of her argument, mother relies on cases in which nonresident litigants objected to jurisdiction, but then sought affirmative relief from the Colorado courts. See T.L. Smith Co. v. Dist. Court, 163 Colo. 444, 431 P.2d 454 (1967)(defendant waived jurisdiction by filing a permissive counterclaim seeking damages for plaintiff's breach of contract); Fagerberg v. Webb, 678 P.2d 544, 548 (Colo.App.1983)("By invoking the jurisdiction of the court in filing these permissible cross-claims and third-party complaints, [the nonresident defendant] waived any objection to the issue of in personam jurisdiction."), aff'd in part and rev'd in part on other grounds sub nom. Webb v. Dessert Seed Co., 718 P.2d 1057 (Colo.1986).

By filing claims in the litigation that were not required to be filed, and that did not arise from the transactions on which the court based its initial assertion of jurisdiction, the nonresident defendants subjected themselves to the jurisdiction of the court for all purposes. Harman v. Stillwell, 944 P.2d 665, 668 (Colo.App.1997)( earlier cases, and concluding defendant did not submit himself to jurisdiction by filing claim required by probate code).

Here, father has filed no documents analogous to a permissive counterclaim or cross-claim, and his requests for relief from the court arose from the paternity action filed by mother. Accordingly, we reject mother's contention that father waived his objection to personal jurisdiction by his participation in the proceedings.

IL.

Father contends the trial court erred in exercising personal jurisdiction over him. He maintains that such jurisdiction is not permitted by Colorado's long-arm statute and violates the Due Process Clause of the United States and Colorado Constitutions. We disagree.

A.

Whether a court may properly assert personal jurisdiction over a party is a question of law, to be reviewed de novo by this court. Union Pac. R.R. v. Equitas Ltd., 987 P.2d 954 (Colo.App.1999).

As relevant here, Colorado's long-arm statute provides that a person submits to the jurisdiction of the courts of this state concerning any cause of action arising from "{tlhe transaction of any business within this state." Section 13-1-124(1)(a).

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

A party invoking the Colorado long-arm statute must allege sufficient facts to support a reasonable inference that the nonresident defendant has engaged in conduct under the statute which subjects the nonresident to the personal jurisdiction of the court. A prima facie showing of threshold jurisdiction is sufficient and may be determined from allegations in the complaint or evidence introduced at any hearing conducted in the matter. Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra.

Due process requires that individuals have fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign. Individuals have fair warning when their conduct and connection with the forum state are such that they should reasonably anticipate being haled into court there. Hence, unilateral activity by those who claim some relationship with a nonresident defendant cannot.in itself satisfy the requirement of contact with the forum state. Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra.

It is essential that there be some act by which the nonresident purposefully avails himself or herself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra. The "purposeful availment" requirement ensures that a nonresident will not be haled into a jurisdiction solely as a result of random or fortuitous contacts. 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 [or her] activities there, those activities must be continuous and systematic, of a general business nature." Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra, 40 P.3d at 1271. However, "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, 471 U.S. 462, 472, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985)).

In certain situations, a single act may support specific jurisdiction. However, in addition to the requirement of purposeful availment, the contact also must proximately result from actions of the nonresident that create a substantial connection with the forum state. Single or occasional acts related to the forum may not be sufficient to establish jurisdiction if their nature and quality and the cireumstances of their commission create only an attenuated affiliation with the forum. Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra.

B.

In concluding that father had engaged in the transaction of business here and that the purposeful availment requirement had been met, the trial court relied on father's sending mother the July 2000 letter for the purpose of assisting her in applying for public assistance benefits for their child. The trial court specifically found that father "knew and intended that his letter of intent would be relied upon ... by Colorado authorities" for that purpose.

When a nonresident has deliberately created continuing obligations between himself or herself and residents of the forum state, he or she has manifestly availed himself or herself of the privilege of conducting business there. Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra.

The Colorado Child Care Assistance Program (C-CAP) is a state public assistance program provided through the counties. See § 26-2-801, et seq., C.R.9.2002. Any payment of public assistance by a county department of social services made for the benefit of a child "creates a debt, which is due and owing to the county department of social services, recoverable by the county as a debt due to the state by the parent or parents who are responsible for support of the dependent child." Section 14-14-104(1), C.R.S.2002; see § 14-14-102(7), C.R.S 2002, (payments and services provided under title 26, article 2, are included in definition of "public assistance").

Where no child support order has been issued, a county's delegate child support enforcement unit may initiate an action to establish the amount of child support debt accrued. Section 14-14-104(2), C.R.8.2002.

Although Medicaid is not a public assistance program, see § 26-4-101, et seq., C.R.S.2002, mother's eligibility for Medicaid was also impacted by the amount of father's support payments. Mother testified that she submitted father's letter to "[slocial services and C-CAP" and that she knew the support documented in the letter "would actually reduce the amount [she would] receive from the state." Father testified he knew she "was going to submit [the letter] to Colorado's [Clhild [Care] [Alssistance [Plrogram and to Medicaid." The evidence thus supports the trial court's finding that father "knew and intended that his letter of intent would be relied upon ... by Colorado authorities" for that purpose.

Under these circumstances, we agree with the trial court that father transacted business in Colorado by sending the letter. The purpose of father's letter was to help mother obtain public assistance and Medicaid benefits in Colorado on behalf of the child, for whose support he is in part responsible. The natural consequence of requesting and obtaining such public assistance was the creation of a debt by operation of law. See § 14-14-104(1). Father purposefully availed himself of a benefit of this state, and he therefore reasonably should have anticipated he might be haled into a Colorado court as a result. See Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958)("II]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws."); Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra.

A number of other jurisdictions have approved the use of the transaction of business as a basis for jurisdiction in dissolution and child support actions. We perceive no reason why the transaction of business may not similarly be a basis for jurisdiction under Colorado's long-arm statute.

In a postdecree petition for maintenance and child support, the Delaware Family Court rejected the nonresident father's argument that the state's long-arm statute was inapplicable in a support proceeding. The court observed that "[rlapid technological developments improving the speed and facility of transportation necessitate an expanded seope of jurisdiction." Prybolsky v. Prybolsky, 430 A.2d 804, 806 (Del.Fam.Ct.1981)(quoting Egbert v. Egbert, 125 N.J.Super. 171, 309 A.2d 746, 748-49 (1973)). The court acknowledged the state's right to seek "reimbursement for public funds, if any, expended for the welfare of [nonresident's] dependents." Prybolsky v. Prybolsky, supra, 430 A.2d at 806; see also Van Wagenberg v. Van Wagenberg, 241 Md. 154, 215 A.2d 812 (1966)(rejecting contention that the transaction of business should be limited to activities that are essentially commercial in nature and should exelude marital separation agreements); Underwood v. Underwood, 92 Misc.2d 359, 399 N.Y.S.2d 967 (N.Y.Sup.Ct.1977)(rejecting argument that execution of a domestic relations stipulation will not sustain long-arm jurisdiction where nonresident acted purposefully in connection with agreement); Lawrenz v. Lawrenz, 65 Misc.2d 627, 318 N.Y.S.2d 610 (N.Y.Fam.Ct.1971)(transaction of business is not limited strictly to commerce, and society has strong interest in the security of family life) cf. N.S. v. S.S., 709 P.2d 6 (Colo.App.1985)(in paternity action against a nonresident defendant involving a child not conceived in Colorado, evidence showing that a New York corporation was defendant's alter ego was sufficient to establish personal jurisdiction over defendant based on corporation's transaction of business in Colorado).

C.

In the family law context, the United States Supreme Court has rejected the proposition that a noneustodial parent's acquiescence concerning a child's residence confers jurisdiction over him or her in whatever state the custodial parent decides to live, see Kulko v. Superior Ct., 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978), and Colorado has followed suit. See In re Marriage of Ness, 759 P.2d 844 (Colo.App.1988); see also In re Marriage of Zinke, 967 P.2d 210 (Colo.App.1998); Goldenhersh v. Febrey, 711 P.2d 717 (Colo.App.1985).

However, contrary to father's contention, Kulko v. Superior Court, supra, does not require a different result here. In Kulko, the United States Supreme Court concluded the father's conduct was a product solely of the mother's unilateral action, and it rejected the argument that the child's presence within the forum state of California conferred benefits on the father, such as police and fire protection, public schooling, hospital services, recreational facilities, libraries, and museums.

The Kulko Court concluded that "[such public] services provided by the State were essentially benefits to the child, not the father, and in any event were not benefits that [the father] purposefully sought for himself." Kulko v. Superior Court, supra, 436 U.S. at 94 n. 7, 98 S.Ct. at 1698.

The Kulko Court further concluded personal jurisdiction also was not warranted by the financial benefit the father derived from the child's absence from his household. Distinguishing issues of jurisdiction from those of liability for child support, the Court noted that the mother could have moved to modify the father's child support obligation in New York, where the parties were divorced and where permanent orders were entered. Thereafter, the mother could have sought enforcement of such modification in California or any other jurisdiction. The Supreme Court concluded any financial advantage to the father from the child's presence in California was attributable to the mother's failure to seek such modification in New York.

By contrast, father's testimony here established that his conduct in sending the letter to Colorado was a purposeful act, not a random or fortuitous contact, in that he affirmatively assisted mother in seeking public assistance for the child from this state. Unlike the circumstances in Kulko, his conduct went beyond merely realizing through his child the benefit of incidental services made available to the public at large, such as police and fire protection.

In this case, the trial court found that mother's higher income, as described in the letter, would have resulted in a lower amount of benefits. Hence, the significance of father's act was not tied to any concrete financial benefit or detriment in relation to child support, but arose from his role in soliciting and anticipating the child's receiving public assistance and the resulting statutorily created debt. Thus, the circumstances here are distinguishable from those in Kulko.

This case also is distinguishable from In re Marriage of Malwitz, - P.3d -, 2003 WL 21026719 (Colo.App. No. 02CA0056, May 8, 2003). There, a division of this court held the trial court erred in exercising personal jurisdiction over a father pursuant to the Uniform Interstate Family Support Act (UIFSA), $ 14-5-101, et seq., C.R.8.2002, because the trial court did not make a finding that the father had minimum contacts with this state.

UIFSA enumerates additional bases for Jurisdiction over nonresidents in proceedings to establish support orders or to determine parentage. It provides, inter alia, that a Colorado court may exercise personal jurisdiction over a nonresident individual if "ItJhere is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction." Section 14-5-201(7), C.R.98.2002.

In Malwitz, the child was conceived in Texas while the father and the mother were living there as common law spouses. After the father allegedly threatened her with acts of domestic violence, the mother moved to Colorado while she was pregnant. She filed an action here seeking a dissolution, child support, and permanent orders. The father was personally served in Texas, and he contested Colorado's jurisdiction. Following a hearing, the trial court concluded it had personal jurisdiction over him because his acts of violence foreed the mother to move from Texas.

A division of this court reversed, concluding minimum contacts were not established by the trial court's finding that the "father was aware that most of mother's family ties were in Colorado and that it was foreseeable that Colorado would be a likely place for her to go with the minor child to escape domestic violence." The division further concluded that even assuming the father's actions in Texas were tortious, they occurred before the mother's move to Colorado. Accordingly, the division concluded the mother did not meet her burden of establishing a prima facie showing of threshold jurisdiction.

Here, mother did not bring her petition under UIFSA, nor did she allege a tortious act. She asserted jurisdiction under § 183-1-124(1)(3), which specifically authorizes the exercise of personal jurisdiction over a nonresident based on his transaction of business in Colorado. The trial court found, and we agree, that the purposeful availment requirement was met. See Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra.

D.

We also conclude the assertion of personal jurisdiction over father comports with fair play and substantial justice.

Where 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. These considerations may sometimes establish the reasonableness of jurisdiction upon a "lesser showing of minimum contacts than would otherwise be required." Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra, 40 P.3d at 1272.

Father has described the burdens of litigating in a distant forum, including costs and attorneys fees. The record reflects that he appeared for numerous hearings by telephone.

However, Colorado has a strong interest in adjudicating this dispute. States generally have an interest in providing their residents with a convenient forum for redressing injuries inflicted by out-of-state actors. See Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra.

The child that is the subject of this paternity action was born in Colorado, she continues to reside here, and she has no continuing connection with any other state. When mother filed this action, no other state had assumed jurisdiction over the matter, Colorado's assertion of jurisdiction does not interfere with the jurisdiction of any other state, and the trial court found the child has a significant interest "in obtaining convenient and effective relief" in Colorado. We therefore conclude that Colorado's exercise of jurisdiction over father is not unreasonable and satisfies due process.

In summary, we conclude that father's letter, sent with the intention of assisting in mother's obtaining public assistance for the child from the State of Colorado, constituted the transaction of business and was a significant contact with this state sufficient to confer personal jurisdiction over him. Accordingly, the trial court did not err in exercising personal jurisdiction over him.

TIL

Given our conclusion that the court properly exercised jurisdiction over father under § 13-1-124(1)(a), we need not address father's additional contention that the trial court lacked jurisdiction over him after it denied mother's contract claim.

Judgment affirmed.

Judge KAPELKE and Judge DAILEY concur.


source: Caselaw Access Project

author: Judge CARPARELLI.

license: Public Domain

text:
    Jo Ann MONDAY, Plaintiff-Appellant, v. ROBERT J. ANDERSON, P.C. and Robert J. Anderson, Defendants-Appellees.
    No. 02CA1080.
    Colorado Court of Appeals, Div. II.
    May 22, 2003.
    Certiorari Denied Oct. 14, 2003.

      Robert Dunlap, Colorado Springs, Colorado, for Plaintiff-Appellant.
    Farry & Rector, LLP, Edward T. Farry, Jr., Colorado Springs, Colorado, for Defendants-Appellees.
    Gaddis, Kin & Herd, P.C., Thomas J. Herd, Colorado Springs, Colorado, for Ami-cus Curiae Colorado Trial Lawyers Association.
   Opinion by

Judge CARPARELLI.

In this action to recover attorney fees paid on a contingent fee contract, the client, plaintiff Jo Ann Monday, appeals a judgment entered in favor of her attorney, defendant Robert J. Anderson and his law firm, Robert J. Anderson, P.C. We affirm.

Attorney represented client pursuant to a contingent fee agreement under which attorney was to receive one-third of any amount client recovered as damages arising from an automobile accident. Client's claim was settled for $50,000 in cash and $50,000 in the form of an annuity. Attorney retained $33,833.33 as his fee.

Client then filed this lawsuit seeking recovery of "money had and received" by attorney on the basis that the fee was "unreasonable." Client requested a jury trial and did not ask the trial court to review the fee under its supervisory authority. See Anderson v. Kenelly, 37 Colo.App. 217, 547 P.2d 260 (Colo.App.1975).

Prior to trial, the court ruled that because the legal sufficiency of the fee agreement was undisputed, client had "the burden of coming forward with a prima facie showing that she is entitled to return of monies paid." However, the court further ruled that the risk of nonpersuasion, or the ultimate burden of persuasion, was on attorney "to show the services performed were reasonably worth the amount in the agreement."

At trial, client testified that attorney represented her and that, under their contingent fee agreement, attorney withheld approximately $33,000 as fees. Client did not testify that she thought the fee was unreasonable or that she asked attorney to reduce the fee. Although she described various services attorney performed on her behalf, she presented no evidence regarding the reasonable worth of those services.

After client rested, the court entered a directed verdict in favor of attorney. The court ruled that client did "not establish a prima facie case with regard to a claim for damages or return of money." The court determined that:

I have viewed all the evidence that's been presented in the light most favorable to [pllaintiff with regard to this specific cause of action and ... while, as I said, there was a substantial amount of dissatisfaction ... I am not satisfied there's prima facie evidence under this cause of action.

Client contends that the trial court erred when it ruled that she was required to present a prima facie case that attorney's fee was unreasonable. Specifically, client argues that, because it was attorney's ultimate burden to prove reasonableness, she was only required to prove that attorney had represented her and that he charged her $33,833.33. We disagree.

At trial, the plaintiff must present a prima facie case, which is defined as "the evidence necessary to require defendant to proceed with his case." E.E.O.C. v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.1997)(citing Black's Law Dictionary 1190 (6th ed.1990)); see also Am. Ins. Co. v. Naylor, 101 Colo. 34, 70 P.2d 349 (1937); Montes v. Hyland Hills Park & Recreation Dist., 849 P.2d 852, 853 (Colo.App.1992)(when "there is no basis upon which a verdict in favor of the plaintiff may be supported as a matter of law, it becomes the duty of the trial court to direct a verdict in favor of defendant").

In other words, the plaintiff must present evidence regarding each essential allegation of the complaint to demonstrate that there is some factual basis for relief before the defendant will be required to present evidence. The plaintiff bears this burden even when, as here, the defendant has the ultimate burden of persuasion regarding the reasonableness of the fees. See Restatement (Third) of Law Governing Lawyers § 42 cmt. c (2000)(the lawyer has the burden of persuading the trier of fact in a suit by the client for refund of a fee); see also McKenzie Constr., Inc. v. Maynard, 758 F.2d 97 (3d Cir.1985).

A plaintiff can maintain an action for money had and received whenever the defendant "has received money which, in equity and good conscience, he ought to pay over." Spencer v. Brundage, 69 Colo. 520, 523, 194 P. 1104, 1105 (1921)(quoting Zang Brewing Co. v. Bernheim, 7 Colo.App. 528, 529, 44 P. 380, 381 (1896)). For example, a person who receives money but has no right to retain it, may be required in equity to give up the money to another who has a right to it. See Mumford v. Wright, 12 Colo.App. 214, 55 P. 744 (1898), overruled on other grounds by Public Cab Co. v. Colo. Nat'l Bank, 139 Colo. 205, 338 P.2d 702 (1959).

Here, client presented testimony regarding her injuries, medical expenses, impairment, and related expenses. At best, this evidence might imply that attorney owed her a moral duty to give up some of his fee. However, because there was a written fee agreement, client could not prevail absent some evidence that the fee provided for in the agreement was legally improper or inequitable, or that attorney withheld more than the amount provided for in the agreement, Contrary to this requirement, client presented no evidence that would tend to show that attorney's fee was unreasonable, that his services were lacking, or that she had requested that he reduce the fee.

As the party seeking relief, client was required to present evidence regarding each allegation that was essential to state her cause of action. Only after she presented such evidence would attorney be required to respond and attempt to carry his burden of persuasion. See generally People v. Heilman, 52 P.3d 224 (Colo.2002); Blesch v. Denver Publ'g Co., 62 P.3d 1060 (Colo.App.2002)(discussing the burden of going forward on the party seeking modification}.

In support of her argument that her evi-dentiary burden did not require proof of unreasonableness, client refers us to cases in which a plaintiff asserts a breach of fiduciary duty or a claim of negligence against a bailee. See Burroughs Corp. v. Rocky Mountain Prestress, Inc., 431 F.2d 1185 (10th Cir.1970); In re Estate of Heyn, 47 P.3d 724 (Colo.App.2002). We find these cases inapposite.

When a plaintiff asserts a breach of fiduciary duty claim and presents prima facie evidence of the existence of the fiduciary relationship and the receipt or use of trust property by the fiduciary, Colorado courts will apply a rebuttable presumption of breach to require the fiduciary to go forward with some evidence that the fiduciary's transactions regarding the property were fair and reasonable. See In re Estate of Heyn, supra. Such a presumption is appropriate because, in such cases, once a plaintiff establishes the existence and nature of the relationship and the fiduciary's or bailee's receipt or use of an asset on behalf of that plaintiff, the plaintiff has established that a duty is owed.

Contrary to client's argument, her claim for "money had and received" is not analogous. Here, client's evidence indicated that, when client retained attorney, she agreed that he was entitled to retain one-third of the settlement proceeds. However, she presented no evidence that she had any ownership interest in the contingency fee portion of the settlement proceeds or that attorney held that portion of the settlement for any purpose other than to satisfy her fee obligation to him.

Thus, this case is distinguishable from cases involving breaches of fiduciary duties or negligent bailments in which plaintiffs present sufficient evidence to demonstrate an ownership interest in the property held by the fiduciary or the bailee. Here, client was obligated to present a prima facie case that included some basis upon which a jury could conclude that she had a right to the money attorney had withheld. To do so in this case, she had to present evidence that the fee agreement was unreasonable. Had she done so, attorney would then bear the burden of proving otherwise.

Accordingly, the judgment is affirmed.

Judge NEY and Judge MARQUEZ, concur.


author: Judge WEBB.

text:
    In re the MARRIAGE OF Katherine CROWDER, Appellee, and Jerry Crowder, Appellant.
    No. 02CA0838.
    Colorado Court of Appeals, Div. A.
    May 22, 2003.
    As Modified on Denial of Rehearing July 24, 2003.

      Katherine Crowder, pro se.
    Frascona Joiner Goodman & Greenstein, P.C., Gregg A. Greenstein, Boulder, Colorado, for Appellant.

       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 WEBB.

In this post-dissolution of marriage proceeding, Jerry Crowder (father) appeals from the trial court's order requiring that he contribute to the college costs of the parties' son. He contends that under the parties' separation agreement, this obligation has lapsed because of the son's emancipation and, if not, the obligation is limited by § 14-10-115(1.5), C.R.S.2002. We affirm in part, reverse in part, and remand for further proceedings.

The marriage of father and Katherine Crowder (mother) was dissolved by decree on January 1, 1991. As pertinent to child support and college costs, the parties' separation agreement, which was incorporate into the decree, provides: ©

5. Child Support:
a). Husband shall pay child support to wife in the amount of
c). Higher Education Costs: The parties agree that both of their children are entitled to a four year college education or an equivalent vocational or technical education. The parties therefore agree that each shall contribute to the costs of such education in amounts and proportions to be mutually agreed upon no later than each child's junior year in high school, and annually thereafter. In the event the parties are unable to agree, the issue of contribution to the educational expenses of the children shall be submitted to mediation/arbitration as provided in paragraph (8) above.
f). Emancipation The child support obligations specified above shall terminate upon the death or emancipation of the children. For purposes of this Agreement, emancipation shall occur upon the following occurrences:
1). Attainment of age 21 years by the child;
2). Marriage of the child;
3). Entry into the Armed Forces by the child;
4). Separation of the child from the home of either party, and establishment by the child of self-sufficiency and financial independence. Leaving home for purposes of attending college does not constitute emancipation; and
5). Any other grounds for declaration of emancipation as provided by law.

Father moved to modify the decree concerning child support on the basis that his obligation to contribute to college costs terminated when the son reached nineteen years of age because, for child support orders entered prior to July 1, 1997, under § 14-10-115(1.5)(a), C.R.S.2002, emancipation now occurs at age nineteen and child support then terminates. He also asserted that even if the separation agreement requires him to contribute to college costs despite the son's emancipation, the statute precludes an obligation exceeding the presumptive monthly amount under the statutory child support guideline and the obligation lapses at the earlier of the son's twenty-first birthday or college graduation.

The motion was heard before a magistrate. Although the order in the record is unsigned, the parties and the trial court agree that the magistrate rejected father's emancipation argument, entered findings as to each party's income, and ordered father to pay forty-four percent of the son's college costs related to tuition, books, and fees. Payment of forty-four percent of room and board expenses was ordered if the child resides in the home of one parent while attending school or during periods of time in excess of thirty days when school is not in session until the child attains the age of nineteen. The magistrate apparently also ordered father to reimburse mother for his forty-four percent share of $10,884.74 in expenses she testified to having previously paid for the son's college costs.

Father filed a timely motion for review in the trial court, but did not dispute that a comparison of the parties' incomes supported his forty-four percent share. The trial court first concluded that the parties had waived the mediation and binding arbitration provision of the separation agreement.

The trial court then found that the separation agreement was ambiguous as to the effect of emancipation on the college costs obligation. The court determined that sub-paragraph 5(c) of the agreement, which specifically contemplated a four-year college education, was inconsistent with termination of this obligation at age twenty-one. The court concluded that "subsection (c) was indicative of the parties' clear intent to contribute to four years of college expenses even if they were incurred beyond age twenty-one."

The court also upheld the magistrate's determination that the parties' contribution toward college costs should be proportionate to their respective gross incomes. Finally, the court concluded that the separation agreement controlled over § 14-10-115(1.5)(a) and confirmed the magistrate's order that father was obligated to pay forty-four percent of the college costs already incurred and to be incurred in the son's four-year degree program.

L.

Father first contends the trial court erred in determining that subparagraph 5(c) of the separation agreement concerning college costs controlled over the termination provisions set forth in subparagraph 5(F) and in § 14-10-115(1.5)(a). We disagree as to the separation agreement, but agree as to the statute.

A.

The interpretation of a written contract and the determination whether the contract is ambiguous are questions of law on which we need not defer to the trial court. Dorman v. Petrol Aspen, Inc., 914 P.2d 909 (Colo.1996); In re Marriage of Thomason, 802 P.2d 1189 (Colo.App.1990).

-In construing a contract, our goal is to give effect to the intention of the parties as determined primarily from the language of the contract itself. USI Properties East, Inc. v. Simpson, 938 P.2d 168 (Colo.1997). Extrinsic evidence of intent is relevant only if, upon examination of the entire contract, the terms are ambiguous. The fact that the parties to a contract disagree over its meaning does not render the agreement ambiguous. In re Marriage of Anderson, 711 P.2d 699 (Colo.App.1985).

To determine whether ambiguity exists, the language of the contract must be construed by application of the accepted meaning of the words and with reference to all its provisions. The nature of the transaction that forms the contract subject matter also must be considered. In re Marriage of Norton, 757 P.2d 1127 (Colo.App.1988). An ambiguity will exist if the language of the contract is susceptible of more than one reasonable interpretation, and, absent ambiguity, the court is constrained to determine the meaning intended by the parties from the four corners of the agreement. Ad Two, Inc. v. City & County of Denver, 9 P.3d 373 (Colo.2000).

We agree with the trial court that the structure of the agreement creates an ambiguity. Subparagraph 5(c), which appears under the heading of child support, expressly states the agreement of the parties that "both of their children are entitled to a four-year college education" and contemplates that each party will each contribute to the costs of such an education. Assuming normal educational progress, a child would be unable to complete a four-year undergraduate program by age twenty-one, the emanei-pation age for child support set forth in the separation agreement.

The sole extrinsic evidence presented by father involved a 2000 stipulation in which the parties agreed, among other things, that the son would be emancipated on his nineteenth birthday in 2001 and support for the other child would then be reduced. However, the stipulation does not address college costs. Henee, we look elsewhere to resolve the ambiguity.

The obligation to fund higher education created by subparagraph 5(c) is more specific than the language in subparagraph 5(F)(1) terminating all forms of "child support" described in paragraph 5 upon emaneci-pation. In resolving conflict between terms of an agreement, specific provisions prevail over general provisions. E-470 Public Highway Authority v. Jagow, 30 P.3d 798 (Colo.App.2001), aff'd, 49 P.3d 1151 (Colo.2002).

Accordingly, we conclude that the parties' intention in subparagraph 5(c) to share four years of college costs prevails over the emancipation language in subparagraph 5(f)(1).

Father also argues that In re Marriage of Robb, 934 P.2d 927 (Colo.App.1997), is dis-positive of this issue. We are not persuaded.

That case involved the interpretation of a 1987 separation agreement providing that the father was required to pay child support in the amount of $150 per month for each child until that child reached "the age of 21, or has completed four years of college, whichever shall occur later, or is emancipated by law, dies, or until further order of the Court." In re Marriage of Robb, supra, 934 P.2d at 928. The father moved to terminate his support obligation for two of the children who were then nineteen and twenty-two years old. He argued that termination was required under the version of the statute then in effect, which provided in terms substantially similar to the current statute that:

(a) Unless a court finds that a child is otherwise emancipated, emancipation occurs and child support terminates when the child attains nineteen years of age unless one or more of the following conditions exist:
(I) The parties agree otherwise in a written stipulation after July 1, 1991.
(I1) If the child is mentally or physically disabled [support may be ordered].
(III) If the child is still in high school or an equivalent program ... [and if] there is an order for postsecondary education ... support continues through postsecondary education as provided in [§ 14-10-115(1.5)(b)(T), C.R.S.2002].

Colo. Sess. Law 1991, ch. 838, § 14-10-115(1.5)(a) at 285; Colo. Sess. Laws 1994, ch. 266, § 14-10-115(1.5) at 1586-37.

The division in In re Marriage of Robb, supra, first noted that no order had been requested or entered respecting higher education pursuant to § 14-10-115(1.5)(b)(D. The division further noted that the parties' agreement specifically provided that the father's support obligation was to terminate when each child became emancipated by law. Thus, the division concluded that the father's support obligation terminated when each child reached age nineteen under the statute.

Here, the issue involves the parties' obligation to pay college costs, which the separation agreement addresses specifically and in a separate subparagraph from child support. In contrast, the agreement in In re Marriage of Robb used completion of four years of college as one of several benchmarks for termination of child support, not to describe a separate obligation.

Accordingly, we conclude that In re Marriage of Robb does not control the separation agreement.

B.

Nevertheless, we agree with father that the trial court's order is subject to § 14-10-115(1.5)(b)(I), which provides in pertinent part, "lf the court finds that it is appropriate for the parents to contribute to the costs of a program of postsecondary education," certain limitations apply, including "[the order for postsecondary education support may not extend beyond the earlier of the child's twenty-first birthday or the completion of an undergraduate degree."

Had the magistrate or the trial court ordered the parties to mediate and, if necessary, arbitrate this dispute, as provided in the separation agreement, § 14-10-115(1.5)(b)(I) might not be controlling. See Byerly v. Kirkpatrick Pettis Smith Polian, Inc., 996 P.2d 771 (Colo.App.2000)(arbitrators not bound by substantive or procedural law). However, instead both the magistrate and the trial court entered orders requiring contribution to "costs of a program of post-secondary education."

Subsection (1.5) applies "to all child support obligations established or modified as a part of any proceeding ... prior to July 1, 1997." Section 14-10-115(1.5)(c), C.R.8.2002. The obligation here at issue was established by decree in 1991.

The plain language of the statute creates no exemption for separation agreements entered into under and consistent with earlier legislation. Mother has not raised, and we express no opinion concerning, application of the constitutional prohibitions against impairing the obligation of contracts. See generally U.S. Const. art. I, § 10, cl. 1; Colo. Const. art. II, § 11.

In re Marriage of Channell, 797 P.2d 819 (Colo.App.1990), cited by the trial court, does not preclude this relief because father did not appeal the 1991 decree. Father seeks modification of the original decree based on a later statutory change, which could not have been raised in an appeal from entry of the decree.

Accordingly, on remand the trial court shall modify its order to reflect, among other things, that father's college cost obligation terminates upon the earlier of the son's twenty-first birthday or his completion of a four-year program.

IL

Father next contends the trial court erred by failing to limit his college cost obligation to the presumed monthly child support guideline amount as required by § 14-10-115(1.5)(b)(I) and to "[tluition, books, and fees" under § 14-10-115(1.5)(e), C.R.S.2002. We agree only as to the child support guideline amount.

A.

In ordering a parent to contribute to college costs, "the court shall be limited to an amount not to exceed the amount listed under the schedule of basic child support obligations." Section 14-10-115(1.5)(b)(D). For the reasons discussed above, we conclude that the order enforcing the decree is also subject to this limitation.

Our conclusion that father's college cost obligation cannot exceed the presumed child support guideline amount also has potential application to the arrearage for expenses already incurred by mother. Before the magistrate, mother testified from an itemized printout of those expenses. The printout was never made a part of the record, and mother's testimony did not identify either particular expenses or the period of time over which the expenses were incurred. Hence, the trial court must determine father's forty-four percent share of the expenses incurred by mother, averaged on a monthly basis, and then apply the monthly child support guideline limitation.

Accordingly, on remand the trial court must clarify its order to establish that the college costs for which father is responsible, both retrospectively and in the future, do not exceed the lesser of his forty-four percent share of the expenses incurred or the presumed child support guideline amount on a monthly basis.

B.

However, father did not seek modification of the decree or challenge the arrear-age on the basis of § 14-10-115(1.5)(e), which limits "postsecondary education support" to "Itluition, books, and fees." He also did not make this argument to the trial court in seeking review of the magistrate's order. Hence, we will not entertain it on appeal. See Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718 (Colo.1992).

III.

Father finally argues that his college cost obligation should be deducted from his gross income for purposes of calculating his support obligation for the parties' younger child. We are unable to discern whether the trial court in this proceeding entered any orders with respect to the support obligation for the younger child. If so, the court on remand shall make the adjustment requested pursuant to § 14-10~115(1.5)(b)(I); if not, then father can pursue the requested adjustment through another motion to modify.

The order is reversed to the extent it provides that father's obligation for child support (1) extends beyond the earlier of the son's twenty-first birthday or completion of a four-year program and (2) exceeds father's forty-four percent share of the lesser of the expenses incurred or the presumptive guideline amount. In all other respects, the order is affirmed. The case is remanded to the trial court for further proceedings and entry of a revised order consistent with this opinion.

Justice ERICKSON and Judge METZGER, concur.


author: Judge NEY.

text:
    Woodrow W. HANNA, Jr., Petitioner, v. PRINT EXPEDITERS INC., State Farm Insurance Companies, and Industrial Claim Appeals Office, Respondents.
    No. 02CA2237.
    Colorado Court of Appeals, Div. II.
    June 5, 2003.
    Certiorari Denied Oct. 6, 2003.

      Irwin & Boesen, P.C., Joseph J. Fraser, III, Denver, Colorado, for Petitioner.
    No Appearance for Respondent Industrial Claim Appeals Office.
    Ritsema & Lyon, P.C., Eliot J. Wiener, Denver, Colorado, for Respondents Print Expediters Inc. and State Farm Insurance Companies.
   Opinion by

Judge NEY.

In this workers' compensation case brought against Print Expediters Inc. and its insurer, State Farm Insurance Companies (collectively employer), Woodrow W. Hanna, Ir. (claimant) seeks review of a final order of the Industrial Claim Appeals Office (Panel) striking his application for hearing on the issue of post-MMI medical benefits. We affirm.

Employer applied for a hearing to contest the opinion of a physician who performed a division-sponsored independent medical examination as to claimant's impairment from an admitted injury. Claimant's response to the application for hearing did not endorse any additional issues. Based upon the evidence presented at a hearing on August 1, 2001, the first administrative law judge (ALJ) issued an order dated September 11, 2001, which awarded permanent disability benefits. The order did not reserve any issue for future determination, and no appeal was taken from the order.

Meanwhile, on September 4, 2001, claimant filed an application for hearing that requested medical treatment after maximum medical improvement (MMI) and a change of physician. Employer moved to strike the application on the ground that the claim was closed. A second ALJ denied the motion, concluding that claimant preserved the claim for future medical benefits by filing an application for hearing prior to the date the first ALJ issued the order awarding permanent disability benefits.

When the issue of medical benefits came on for hearing before a third ALJ, employer requested reconsideration of the denial of the motion to strike the application for hearing. The third ALJ determined that the issue of continuing medical benefits was waived because it was not raised at the time of the first hearing on permanent disability, and the application for a second hearing, filed after the first hearing, did not preserve the issue. Furthermore, the third ALJ found that the first ALJ's order awarding permanent disability benefits closed the claim. Therefore, the third ALJ struck claimant's application for hearing, and the Panel affirmed.

I.

Claimant contends that the issue of future medical benefits was not closed because waiver should not, as a matter of policy, apply to a workers' compensation claim. Alternatively, claimant argues that even if waiver could apply, it was not applicable here because he was unaware of all relevant facts at the time of the hearing on permanency. We perceive no error in the Panel's decision.

The ALJ may order payment for future medical treatment if there is substantial evidence in the record that such treatment is reasonably necessary to relieve the claimant from the effects of the industrial injury. Grover v. Indus. Comm'n, 759 P.2d 705 (Colo.1988); Holly Nursing Care Ctr. v. Indus. Claim Appeals Office, 992 P.2d 701 (Colo.App.1999). Thus, the claimant is entitled to future medical benefits where there is substantial evidence in the record to support a determination that future medical treatment will be reasonable and necessary to relieve the effects of an industrial injury or prevent further deterioration of the claimant's condition. Stollmeyer v. Indus. Claim Appeals Office, 916 P.2d 609 (Colo.App.1995).

Onee the claimant establishes the probability of a need for future treatment, the claimant is entitled to a general award of future medical benefits, subject to the employer's right to contest compensability, reasonableness, or necessity. Grover v. Indus. Comm'n, supra; Snyder v. Indus. Claim Appeals Office, 942 P.2d 1337 (Colo.App.1997).

While we recognize that public policy considerations may militate against applying the doctrine of waiver to claims for workers' compensation benefits, see Johnson v. McDonald, 697 P.2d 810 (Colo.App.1985), those considerations do not preclude waiver in all cases. Indeed, the doctrine has been used, albeit sparingly, in appropriate cireum-stances. See Winters v. Indus. Comm'n, 736 P.2d 1256 (Colo.App.1986) waived right to formal retraining in another field).

Thus, the right to future medical benefits may be waived if not requested at the time permanent disability is heard. See Grover v. Indus. Comm'n, supra, 759 P.2d at 711-12 ("[if at the hearing on the final award of permanent disability there is substantial evidence of such need for future treatment," the employer may be ordered to pay the costs of future medical treatment); Milco Constr. v. Cowan, 860 P.2d 539 (Colo.App.1992)({need for future medical benefits must be substantiated at the time of hearing on the final award for permanent disability).

Here, it is undisputed that claimant did not request future medical benefits at the first hearing, and his posthearing position statement to the first ALJ was limited to the issue of permanent disability. Therefore, the third ALJ did not err in finding that claimant waived his claim for future medical benefits.

Furthermore, the claimant need not be receiving treatment at the time of MMI to obtain a general award of future medical benefits. Holly Nursing Care Ctr. v. Indus. Claim Appeals Office, supra. Accordingly, we reject claimant's alternative assertion that he could not litigate his claim for future medical benefits until he was prepared to establish his entitlement to a particular treatment.

IL.

Claimant next contends that his claim remained open because he filed his application for hearing before the first ALJ issued the order for permanent disability benefits. Again, we disagree.

A claim may be closed by a "final award" resulting from an admission or order after a contested hearing, and an "award" includes an order that grants or denies benefits. Burke v. Indus. Claim Appeals Office, 905 P.2d 1 (Colo.App.1994). Thus, unless an ALJ's award of benefits expressly reserves other issues for future determination, the "award" closes the claim and requires the parties to satisfy the reopening requirements of § 8-43-303, C.R.S.2002, before litigation of any further issues. See Brown & Root, Inc. v. Indus. Claim Appeals Office, 833 P.2d 780, 784 (Colo.App.1991)(order that denied temporary disability benefits, but contained express reservation of jurisdiction over the subject of permanent disability, did not close the claim; however, absent express reservation, order would "normally" have been considered an award requiring a reopening prior to granting any other benefits).

Admittedly, claimant filed his appli-eation for hearing on the issue of medical benefits prior to the date of the first ALJ's award of permanent partial disability benefits and prior to the date that order became final. See § 8-43-301(2), C.R.S.2002 (petition to review must be filed within twenty days of the date of mailing of the order, and the ALJ's order is final if no petition to review is timely filed). However, the first ALJ's order did not contain any clause that reserved the issue of medical benefits. Thus, the first ALJ's order awarded permanent disability benefits, but effectively denied all further benefits because it did not reserve any issues. See Brown & Root, Inc. v. Indus. Claim Appeals Office, supra.

Consequently, insofar as claimant was dissatisfied with the denial of all other benefits and sought to preserve a right to litigate an entitlement to future medical benefits, he was required to appeal the first ALJ's order. His failure to do so resulted in that order becoming a "final award" that closed the claim and precluded claimant from litigating the claims for future medical benefits. See Brown & Root, Inc. v. Indus. Claim Appeals Office, supra. And, contrary to claimant's assertion, the finality that attaches in no way contravenes the intent and purpose of the Workers' Compensation Act because the reopening provisions provide the necessary safeguards. See Renz v. Larimer County Sch. Dist. Poudre R-1, 924 P.2d 1177 (Colo.App.1996) (reopening provisions of § 8-48-303 are indicative of a strong legislative policy that, in workers' compensation matters, the goal of achieving a fair and just result overrides the interest of litigants in obtaining a final resolution of their dispute).

For similar reasons, claimant could not litigate a change of physician absent an order reopening the claim. Claimant's reliance on Story v. Industrial Claim Appeals Office, 910 P.2d 80, 82 (Colo.App.1995), is misplaced, inasmuch as that case involved a claimant's entitlement to a change in treating physicians "at any time" in the context of an open claim.

III.

Claimant also contends that because employer's final admission of lability denied liability for future medical benefits, he should have been allowed to proceed on this issue. However, inasmuch as claimant failed to include the final admission in the record on appeal, we have no means of reviewing this contention. See Sheron v. Lutheran Med. Ctr., 18 P.3d 796 (Colo.App.2000)(burden is on appellant to provide record justifying reversal, and absent such a record, we presume the regularity of the trial court proceedings).

The order of the Panel is affirmed.

Judge CASEBOLT and Judge WEBB concur.


author: Chief Judge DAVIDSON.

text:
    MAJOR MEDICAL INSURANCE FUND, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE of Colorado; St. Mary Corwin Hospital; Hartford Accident & Indemnity Co.; and Nora Bachicha, Respondents.
    No. 02CA1846.
    Colorado Court of Appeals, Div. IV.
    July 31, 2003.

      Ken Salazar, Attorney General, Joseph F. Haughain, Assistant Attorney General, Denver, Colorado, for Petitioner.
    Ken Salazar, Attorney General, Eric Ro-thaus, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.
    Blackman & Levine, LL.C., Tama L. Levine, Denver, Colorado, for Respondents St. Mary Corwin Hospital and Hartford Accident & Indemnity Co.
    Steven U. Mullens, P.C., Steven U. Mul-lens, Pattie J. Ragland, Pueblo, Colorado, for Respondent Nora Bachicha.
   Opinion by

Chief Judge DAVIDSON.

In this workers' compensation case, the Major Medical Insurance Fund (MMIF) seeks review of a final order of the Industrial Claim Appeals Office (Panel) granting Nora Bachicha (claimant) medical benefits. At issue is whether an order declaring that claimant is no longer eligible for benefits from the MMIF constitutes a denial of benefits such that claimant was entitled to a hearing, or whether it is a final order which was subject to review by the Panel. We conclude the order denied claimant benefits and she was entitled to a hearing on the issue. Therefore, we affirm the order of the Panel.

Claimant sustained a compensable back injury in 1971 and underwent surgery. In 1974, her employer, St. Mary Corwin Hospital, and its insurer, Hartford Accident & Indemnity Co. (collectively employer), filed a special admission of liability for permanent partial disability benefits.

In 1975, at the request of employer, claimant was admitted to the MMIF because payments for medical expenses exceeded the then existing cap. The MMIF reimbursed employer for $1062 it had paid in excess of that cap.

By 1992, claimant began to experience recurrent back pain, although the etiology of the pain was not determined. In 1994, she was referred for a surgical evaluation of her low back pain.

In 1994, the Division of Workers' Compensation determined that there had been no request for payment of medical expenses by the MMIF since the 1976 payment to employer. Therefore, the Director of the Division issued an order to cease payments from the MMIE.

The 1994 order stated that claimant "is not currently receiving medical care to promote recovery, alleviate pain or reduce disability from" the industrial injury and that claimant "has no need of further medical care." The order also stated that claimant "is no longer eligible" for benefits from the MMIF and that the claim "is closed subject to the reopening provisions" of the Workers' Compensation Act. The order concluded with the provision that the "decision of the Director is final unless a PETITION TO REVIEW is filed within twenty (20) days."

Copies of the order were mailed to claimant and her then attorney of record. The copy sent to the attorney was returned as undeliverable.

In 1996, claimant received a prescription for medication and submitted the bill to the MMIF for payment. After the MMIF declined to pay in reliance on the Director's 1994 order, claimant filed a petition to reopen the claim based on a worsened condition. She attached a physician's report opining that the continuing back symptoms were causally related to the surgery performed after the 1971 industrial injury.

In a 2002 order, the administrative law judge (ALJ) found that claimant's "current back condition and need for treatment" were related to the 1971 industrial injury. Nevertheless, the ALJ concluded that the Director's 1994 order was a final order because it denied benefits, and inasmuch as claimant failed to petition for review, the claim was closed. Furthermore, the ALJ determined that the petition to reopen was barred by the statute of limitations, and denied the petition to reopen and, by implication, the claim for medical benefits. Claimant's due process arguments were rejected.

The Panel found that regardless of the Director's "misleading" notice that claimant was required to file a petition to review, the Director's order was not final and was insufficient to close the claim in light of the applicable rules of procedure. Therefore, the Panel concluded that the statute of limitations on reopening was inapplicable Because the ALJ found that claimant proved a causal relationship between the injury and her need for treatment, the denial of the claim for medical benefits was set aside, and the MMIF was ordered to pay for the pre-seription.

The MMIF contends that the Director's order did not deny benefits, but is nonetheless final and was therefore subject to review by the Panel. The MMIF argues that the notice regarding the need to file a petition to review was therefore correct, and claimant's failure to petition for such review rendered her petition to reopen untimely. We disagree.

The purpose of the MMIF is to provide additional financial resources after an employer has paid $20,000 of medical benefits to an injured employee. White v. State Comp. Ins. Fund, 700 P.2d 923 (Colo.App.1985)(decided under prior statute). The MMIF Act, § 8-46-201, et seq., C.R.S. 2002, provides that the Director is responsible for administering the MMIF, including the expenditure of sums of money. Sections 8-46-202(2), 8-46-208(2), C.R.S.2002; see Husson v. Meeker, 812 P.2d 731 (Colo.App.1991).

In every case in which an MMIF award is made, the Director is required to review the case when the total medical expenditures reach specific levels and, depending on whether further expenditure of funds will promote recovery, alleviate pain, or reduce disability, enter an order either continuing or ceasing further payments. Section 8-46-208(2). The order entered here was, by its terms, issued pursuant to this section.

The Director has all the powers provided in the Workers' Compensation Act to implement the provisions pertaining to the MMIF. Section 846-206, C.R.S.2002. Thus, the Director has the power to enact rules governing the determination of claims under § 8-46-208(2). Section 8-47-107, C.R.S.2002; see Romans v. Hewitt Elec. Corp., 723 P.2d 161 (Colo.App.1986)(decided under predecessor version of MMIF Act).

One rule of procedure adopted by the Director pertains to the payment of benefits from the MMIF and provides that "[a] party who is dissatisfied with an order dismissing or denying an application for admission or dissatisfied with a written denial of benefits may request mediation services and/or apply for a hearing." Dep't of Labor & Employment Rule VI(B)(1), 7 Code Colo, Regs. 1101-8 (emphasis added).

In support of its argument that the order to cease payments did not constitute a denial of benefits which would trigger the application of Rule VI(B)(1), MMIF relies on Brothers v. Industrial Commission, 733 P.2d 1217 (Colo.App.1987). In that case, a division of this court held that an order granting admission to the MMIF was not an award of benefits, but merely provided a source for payment of medical benefits to which the claimant was or might become entitled. MMIF asserts that it necessarily follows that expulsion from the MMIF makes claimant ineligible to apply for benefits, but does not actually deny her benefits.

We disagree with this logic. Once claimant was admitted to the MMIF, removing her was, in effect, a denial of her right to apply for medical benefits, The Director determined that because claimant was "not currently receiving medical care," she had "no need of further medical care." The determination of need is an integral part of claimant's entitlement to benefits, see § 8-46-208(2) (claimants are entitled to further medical benefits from the MMIF only if the benefits promote recovery, alleviate pain, or reduce disability), and presents a situation distinguishable from the initial admission to the MMIF, as in Brothers v. Industrial Commission, supra.

Accordingly, the determination that claimant did not "need" benefits constituted a denial of benefits for purposes of the due process protection afforded by Rule VI(B)(1). When an administrative adjudication turns on questions of fact, due process requires that the parties be apprised of all the evidence to be submitted and considered and that they be afforded a reasonable opportunity to confront adverse witnesses and to present evidence and argument in support of their positions. Kroupa v. Indus. Claim Appeals Office, 53 P.3d 1192 (Colo.App.2002). A petition for review does not provide these same safeguards, as the Panel and the ALJ are governed by different standards. See Metro Moving & Storage Co. v. Gussert, 914 P.2d 411 (Colo.App.1995)(evidentiary standard of proof applied by the ALJ is not the same as the standard of review applied by the Panel in determining the correctness of an underlying order).

Because Rule VI(B)(1) envisions further proceedings following a denial of benefits, we agree with the Panel that the Director's order was not a final order subject to appeal. See Bestway Concrete v. Indus. Claim Appeals Office, 984 P.2d 680 (Colo.App.1999)(a reviewable order is one that finally disposes of the issue). See also Ortiz v. Indus. Claim Appeals Office, - P.3d -, 2003 WL 21664824 (Colo.App. No. 02CA1723, July 17, 2003). Compare Rule VI(B)(1) (Director's denial of benefits entitles claimant to request hearing before ALJ) with § 8-48-301(2), C.R.S.2002 (ALJ's denial of benefits is a final order which entitles claimant to file petition for review by Panel). Thus, the Director's advisement in the 1994 order to file a petition to review within twenty days was incorrect and ineffective. See Scofield v. Indus. Comm'n, 697 P.2d 815 (Colo.App.1985)(in unemployment case, notice concerning time for appeal to court was insufficient where it failed to notify claimant of pending change in requirements for service of petition).

It follows that claimant's failure to seek review of the 1994 order did not close the claim, and the statute of limitations on reopening is not applicable. Accordingly, the Panel correctly determined that the MMIF was liable for the cost of the preseription, given that the ALJ's resolution of the causation issue in claimant's favor dispensed with the need for further hearing.

We do not address employer's request for a declaration as to its liability, as no petition for review was filed on this issue. See Ehrle v. Dept of Admin., 844 P.2d 1267 (Colo.App.1992)(generally, party must file a cross-appeal for an appellate court to consider an alleged error prejudicial to that party).

The order of the Panel is affirmed.

Judge NIETO and Judge GRAHAM concur.


text:
    LARRY H. MILLER CORPORATION-DENVER, d/b/a Larry Miller Toyota; and Universal Underwriters Insurance Company, Plaintiffs-Appellants, v. BOARD OF COUNTY COMMISSIONERS, ADAMS COUNTY, Colorado, Defendant-Appellee.
    No. 02CA0545.
    Colorado Court of Appeals, Div. IV.
    July 31, 2003.

      Mendenhall DelPiccolo Ragland & Potry-kus, Robert D. Mendenhall, Denver, Colorado, for Plaintiffs-Appellants.
    James D. Robinson, County Attorney, Hal B. Warren, Deputy County Attorney, Brighton, Colorado, for Defendant-Appellee.
   Opinion by

Chief Judge DAVIDSON.

Plaintiffs, Larry H. Miller Corporation-Denver and Universal Underwriters Insurance Company, appeal from the judgment of the trial court dismissing their negligence claim against defendant, the Board of County Commissioners of Adams County, Colorado. We affirm in part, reverse in part, and remand with directions.

This action arose out of the reconstruction of a highway off-ramp adjacent to a car dealership owned by Miller and insured by Universal. The Colorado Department of Transportation (CDOT) undertook the reconstruction. The pertinent underlying facts are set forth in a companion case. See Larry H. Miller Corp. v. Urban Drainage & Flood Control Dist., 64 P.3d 941 (Colo.App.2003)(Miller I).

Plaintiffs' complaint alleged that the reconstructed off-ramp exacerbated flooding problems on the property in which Miller held a leasehold interest. Plaintiffs alleged that "the installation of the revised and elevated J-Z ramp, without the installation of the other improvements to control storm drainage, has altered the manner and amount of storm flows on the property and amounts to the improper operation and maintenance of a public water facility or sanitation facility." Plaintiffs asserted a negligence claim against Adams County, as well as other claims not relevant to this appeal.

Adams County filed a motion to dismiss, asserting that under C.R.C.P. 12(b)(5), plaintiffs complaint failed to state a claim upon which relief could be granted. Adams County also argued that under C.R.C.P. 12(b)(1), plaintiffs' negligence claim should be dismissed for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.8.2002.

The trial court granted Adams County's motion to dismiss under C.R.CP. 12(b)(5), finding that there was no clear expression of legislative intent in any statute providing that Adams County would be liable in negli-genee for failure to prevent CDOT from constructing the off-ramp without providing adequate flood control. Based on this disposition, the trial court did not resolve whether Adams County was operating or maintaining a public water or sanitation facility as plaintiffs had alleged, nor did it address whether Adams County had waived its sovereign immunity under the GIA.

On appeal, plaintiffs argue that the court's dismissal of their negligence claim was incorrect. We agree in part.

To determine whether a complaint sets forth a valid negligence claim against a governmental entity for breach of a statutory duty, a court must first decide whether the claim falls within one of the waiver provisions of the GIA and, if so, whether the plaintiff has a private tort remedy pursuant to the applicable statutes. See State Dep't of Highways v. Mountain States Tel. & Tel. Co., 869 P.2d 1289 (Colo.1994); State v. Moldovan, 842 P.2d 220 (Colo.1992); Miller I, supra. Here, we conclude that, because pivotal factual disputes remain, the threshold issue of waiver under the GIA must be determined on remand by the trial court. If it is determined that Adams County was operating or maintaining a public water or sanitation facility as plaintiffs have alleged, we further conclude that plaintiffs have stated a valid claim for relief.

L.

Whether Adams County has waived immunity under the GIA involves an issue of subject matter jurisdiction, which is properly resolved by the trial court under C.R.C.P. 12(b)(1). See Medina v. State, 35 P.3d 443 (Colo.2001). Under C.R.C.P. 12(b)(1), the trial court is the trier of fact and must determine whether the claim falls within one of the provisions waiving immunity. When there are disputed issues of fact, the trial court should hold an evidentiary hearing before ruling on the jurisdictional issue. However, if the facts are undisputed, the issue of subject matter jurisdiction is one of law, and we may decide the jurisdictional question based on the documents filed by the parties. See Padilla v. Sch. Dist. No. 1, 25 P.3d 1176 (Colo.2001)(when there is no evidentiary dispute, the trial court may rule on the jurisdictional issue without a hearing); see also Johnson v. Reg'l Transp. Dist., 916 P.2d 619 (Colo.App.1995).

As pertinent here, § 24-10-106(1)(F), C.R.S.2002, provides that a public entity's immunity under the GIA is waived for injuries resulting from the entity's operation and maintenance of a public water or sanitation facility.

Although there is no dispute that Adams County is a public entity, the parties contest whether Adams County constructed, owned, operated, and maintained the structures in question-a parking lot "detention pond," which collected stormwater on the Miller property, and the Page Gulch drainage system and subterranean concrete-lined channel. Furthermore, the trial court made no findings as to whether such structures constitute water or sanitation facilities under the GIA.

These unresolved factual issues are dispos-itive, and we cannot otherwise determine on the record before us if these structures are water or sanitation facilities or whether they were owned, operated or maintained by Adams County. See Trinity Broad., Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993)(trial court acts as finder of fact to determine motion to dismiss under C.R.C.P. 12(b)(1)); cf. Miller I, supra (plaintiffs acknowledged that public entity had no ownership or proprietary interest in the property or drainage facilities at issue, and appellate court could determine the immunity question on the undisputed facts).

IL

The effect of a waiver of immunity is merely to allow the liability of the public entity to be determined as if it were a private person. See § 24-10-107, C.R.S.2002. However, before a public entity can be held liable for injury resulting from obligations legislatively imposed and unknown at common law, a clear expression of legislative intent to create a private cause of action must be found. See State v. Moldovan, supra; Springer v. City & County of Denver, 13 P.3d 794 (Colo.2000).

In its motion to dismiss, Adams County contended that its enabling statutes, §§ 30-11-107 and 830-20-402, C.R.9S.2002, which grant it the power to operate and maintain sewerage facilities, do not manifest the requisite legislative intent. See § 80-20-401(4), C.R.S.2002 (sewerage facilities are defined as "devices used in the collection, treatment, or disposition of ... storm, flood, or surface drainage waters"). The trial court agreed and dismissed plaintiffs' claims. Plaintiffs contend that this was error, and we agree in part.

Initially, we conclude that the permissive grants of power in §§ 30-11-107 and 30-20-402, which allow the county to construct, operate, improve, and extend storm water facilities and to levy taxes to finance the acquisition, construction, operation, improvement, and extension thereof, do not impose a mandatory duty to remedy a particular harm. See Miller I, supra (holding that statutes authorizing flood control district to operate and maintain flood control facilities did not impose a statutory duty to do so), cf. Springer v. City & County of Denver, supra (premises liability statute imposes direct duty on the city as a property owner); State v. Moldovan, supra (statute imposes express duty on division of highways to maintain fences adjacent to state highways).

Rather, Adams County is granted discretion regarding which properties to acquire, develop, and maintain for flood control purposes. See § 830-11-107(1)(u), (w), C.R.S. 2002 (authorizing county to expend money for the maintenance of drainage structures and facilities); § 80-20-402(1)(a), (®, (b), C.R.S.2002 (authorizing county to acquire property for sewerage facilities by various means, collect fees and issue bonds to finance sewerage facilities, and enter into and perform contracts with regard to sewerage facilities); see also Miller I, supra (noting that General Assembly's use of the term "may" is indicative of a discretionary power to choose among alternatives).

Similarly, because we discern no indication of a legislative intent to deviate from the plain meaning of the permissive terms used in Adams County's enabling statutes, we find plaintiffs' reliance on People ex rel. Rollins v. Board of County Commissioners, 7 Colo.App. 229, 42 P. 1032 (1895), and Board of Supervisors v. United States, 71 U.S. (4 Wall.) 435, 18 L.Ed. 419 (1866), which involved whether a local government was required to levy taxes to pay its debts, to be misplaced.

We also disagree with plaintiffs that Adams County had a common law duty to take affirmative steps to decrease the risk of flooding caused by CDOT's construction of the ramp or to implement certain portions of the master drainage plan prepared by the Urban Drainage and Flood Control District (UDFCD). 'We conclude that the trial court properly dismissed those portions of plaintiffs' complaint on the basis that, although Adams County had the discretion to construct a detention facility or implement the recommendations made by the UDFCD, it had no statutory or common law duty to do so. See Bd. of County Comm'rs v. Moreland, 764 P.2d 812 (Colo.1988)(no common law duty to protect plaintiff from injury prior to adoption of statute); Miller I, supra (no common law duty to aequire property or drainage systems).

Nevertheless, we conclude that onee Adams County chose to operate and maintain a public water or sanitation facility, it had a duty not to do so in a negligent manner. See Springer v. City & County of Denver, supra (in determining whether city's immunity was waived, the court noted that a public entity may not avoid liability for negligently constructing or maintaining a building); Docheff v. City of Broomfield, 623 P.2d 69 (Colo.App.1980)(city's storm drainage system flooding plaintiff's adjacent property constituted continuing trespass); Salazar v. City of Sheridan, 44 Colo.App. 443, 618 P.2d 708 (1980)(plaintiffs were entitled to sue the city for injuries incurred in an explosion of a storm sewer filled with methane gas because the city had a duty arising from its contractual acceptance of the responsibility for maintenance of the sewer entrance).

We read the statutory waiver of governmental immunity for damages resulting from the operation and maintenance of a public water or sanitation facility as an acknowledgment of such a duty by the General Assembly. See § 24-10-106(1)(f); Scott v. City of Greeley, 931 P.2d 525 (Colo.App.1996)(valid negligence claim against public entity when water backed up in storm sewer and flooded owner's property); Smith v. Town of Estes Park, 944 P.2d 571 (Colo.App.1996)(public entity properly sued for injuries resulting from ice in cross-pan that was part of town's water drainage system); Burnworth v. Adams County, 826 P.2d 368 (Colo.App.1991)(valid suit against public entity for damages resulting from storm drain operated and maintained by the county).

Furthermore, the statutory definition of "operation" necessarily includes acts of commission and omission. See City of Colorado Springs v. Powell, 48 P.3d 561, 567 (Colo.2002) (citing Springer v. City & County of Denver, supra, 13 P.3d at 801, and noting that "a public entity may proximately cause a condition not only by affirmatively creating it, but also by its omission in failing to reasonably discover and correct the unsafe condition").

Here, it is undisputed that Adams County was aware of the flooding problem on Miller's property and that it took no action to correct the problem. Plaintiffs alleged, inter alia, that Adams County could have enlarged the subterranean pipe, improved the capacity of the Page Gulch system, or constructed a new detention pond to accommodate increased storm flow and alleviate the concentration of floodwater on the property during peak rainfalls.

Assuming these structures are water or sanitation facilities under the GIA, and assuming that they were owned or operated by Adams County, to the extent that Adams County engaged in their operation and maintenance, it was required to exercise reasonable care in doing so. Consequently, it may be held liable for the breach thereof if it knew or should have known that a condition existed which involved an unreasonable risk of harm to plaintiffs and it failed to take reasonable precautions to correct such condition. See Morrison v. City of Aurora, 745 P.2d 1042 (Colo.App.1987)(city's act of providing specifications and design for pipe to be used in resolving floodway restrictions gave rise to a duty to design the pipe with reasonable care); Salazar v. City of Sheridan, supra (city's acceptance of the responsibility for maintenance of the sewer entrance created a duty to use reasonable care in doing so).

The judgment is reversed with regard to whether Adams County negligently operated and maintained a public water or sanitation facility causing damage to the Miller property, and the case is remanded to the trial court with directions to reinstate that claim and hold an evidentiary hearing pursuant to C.R.C.P. 12(b)(1) to determine whether governmental immunity was waived and for additional proceedings as necessary. In all other respects, the judgment is affirmed.

Judge NIETO and Judge GRAHAM concur.