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2007-05-10_ENFORCEMENT - C1981013
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2007-05-10_ENFORCEMENT - C1981013
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Last modified
8/24/2016 3:16:52 PM
Creation date
8/7/2009 3:58:43 PM
Metadata
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Template:
DRMS Permit Index
Permit No
C1981013
IBM Index Class Name
Enforcement
Doc Date
5/10/2007
Doc Name
DRMS Brief in Support of NOV CV2007001, Civil Penalty & Proposed Decision on SI
Violation No.
CV2007001
Media Type
D
Archive
No
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141 P.3d 863 <br />141 P.3d 863 <br />(Cite as: 141 P.3d 863) <br />an attorney, had been disciplined three times by three <br />different federal and state courts. Two of those pro- <br />ceedings arose from (I) improper comments to a <br />judge and (2) the untimely filing Hof an appellate brief. <br />The third proceeding resulted in'findings of failure to <br />segregate client's funds, failure to deliver funds <br />promptly when due to clients, failure to properly su- <br />pervise an employee, and failure; to disclose a poten- <br />tial conflict of interest. <br />i <br />Under these circumstances, we find Basin's authorit- <br />ies unpersuasive. In Di.wel, the lawyer had been dis- <br />ciplined as a result of allegations of deceit and mis- <br />representation. In 11?eic•hert. the court found that evid- <br />ence of a twelve-year-old disbarment was not overly <br />prejudicial. In Whitehead in determining that a trial <br />court's evidentiary ruling was erroneous but harmless, <br />the court observed that evidence of attorney discip- <br />line may be admissible. <br />While the disciplinary proceeding involving com- <br />mingling of funds, failure to deliver funds promptly <br />to a client, improper supervision of an employee, and <br />failure to disclose a conflict of interest may suggest <br />prior untruthful or dishonest conduct, the other two <br />disciplinary proceedings did not involve such con- <br />duct. On balance, we cannot conclude the trial court <br />abused its discretion in sustaining homeowners' ob- <br />jection to Basin's effort to introduce all three pro- <br />ceedings into evidence. <br />IV. <br />U5 Basin finally contends the trial court erred in <br />failing to rule that, following judgment, Basin could, <br />at its option, elect to either repair homeowners' resid- <br />ence or pay homeowners for they diminution in fair <br />market value of their property. We disagree. <br />16 I7 In construing a statute, courts should not in- <br />terpret it to mean that which it does not express. <br />.hlani.r c Sf*co !n: C'o 674_P2d 999 <br />(Colo.Ap12.1983)I q#d sub nom. *871_:Xrie v. <br />Prrrclential Prop & C'ac lns Cbr 61<6 P'd 1131 <br />(Colo. 1984). Courts may not interpolate into a statute <br />words that it does not contain, orjextract a meaning <br />which is not expressed by it. Mmiash ti-. Rhodes. I 1 <br />Colo.:Al??. 404_53 P 216 (1898), d/fd, 27 Colo. 235 <br />60 P. 369 (1900). <br />Page 8 ' <br />We conclude, contrary to Basin's argument, that the <br />Colorado Surface Coal Mining Reclamation Act and <br />its associated regulations do not confer onto a de- <br />fendant found to have caused subsidence damage to a <br />plaintiff the power to elect which remedy to provide. <br />See i 34-33-12](2)(a)(11)(A)-(B); Reg. <br />4.20.3(b)(i)-(ii). <br />Accordingly, we find no error on the part of the trial <br />court. <br />IJ_K. j Homeowners contend they are entitled to an <br />award of reasonable attorney fees in connection with <br />this appeal, noting that they were awarded attorney <br />fees by the trial court. We agree with this argument. <br />See Lerv-fTc~cn_?rr v (ili;?er 899 I"d 210 <br />(Colo.AErp 1994). The amount of such fees is a mat- <br />ter for determination by the trial court. <br />The judgment is affirmed and the case is remanded to <br />the trial court for a determination of the reasonable <br />attorney fees to be awarded to homeowners for this <br />appeal. <br />MAR0LJEZ and CASEBOL.T, JJ., concur. <br />141 P.3d 863 <br />END OF DOCUMENT <br />i <br />i <br />i <br />10 2007 11 homson/West. No Claim to Orig. U.S. Govt. Works- <br />I
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