*1 light of the evidence modification. such had parties operated record that plan modificationof a de facto disrupted would least the children sleepover ar-
continuing their current that it was perceive we do not
rangements, modify plan to
an abuse of discretion chil- the best interests
accommodate
dren.
III. brief, makes number reply
In her mother not made in her arguments that were brief, and,
opening apparently, were not consider trial court. We will
made Marriage re arguments. See In these
Atencio, (Colo.App.2002)
(issue the trial court will not raised before Marriage In re appeal); be addressed on Smith, (Colo.App.1999) (issue in appellant’s time raised for first considered). not be
reply brief will
The orders are affirmed. Judge
Judge HAWTHORNE VOGT
concur. CAPITAL, INC. and Phoenix
PHOENIX Services,
Analytic Inc., Plaintiffs-
Appellants Cross-Appellees, DOWELL, Defendant-Appellee
Robert M. Cross-Appellant.
No. 05CA2712. Appeals, Court of
Div. V.
July 2007.
Certiorari Denied Feb.
838 *3 Forbes, LLP, Forbes,
Horowitz Peter C. Colorado; Denver, Neuwirth, P.C., Dean Neuwirth, Denver, Colorado, Dean Plain- tiffs-Appellants Cross-Appellees. Reichert, LLP, Shepherd Barry Kamlet & Schwartz, Denver, Colorado, A. for Defen- dani>-Appellee Cross-Appellant. Opinion Judge DAILEY. Plaintiffs, (PCI) Capital, Inc. *4 Services, Analytic (PAS), appeal Inc. denying trial court’s order their mo- defendant, preliminarily enjoin tion to Robert Dowell, violating M. noncompetition agreement injunctive denying relief against beyond one-year Dowell limit time specified in agreement. a nonsolicitation Do- cross-appeals well pre- trial court’s order liminarily enjoining him violating agreement nonsolicitation for the remainder specified period. part, affirm in part, vacate and remand with directions. Background I. is an provides
PCI investment bank that analytic brokerage assistance to financial sell, buy, institutions and investors who manage servicing certain rights associated pools with large mortgages. Those servic- ing rights mortgage payments, collect —to taxes, and on mortgages interest residential proceeds and then to remit these mortgage independently holder —exist underlying mortgage obligations themselves. initially employed PCI as a Dowell senior portfolio analyst. In Dowell signed an PCI, agreement with which he was prohibited, in employ, the event he left PCI’s from competing with soliciting PCI or or employees year. customers for one agreement provided binding that it was would “inure to the parties, benefit assigns.” and [PCI’s] successors and By was Dowell the head of PCI’s analytics Subsequently, division. PCI independent formed PAS as an company to analytical undertake its functions and trans- manage analytics ferred Dowell to divi- sion at PAS. PAS, CO/Bluffs, Apartments, 159 L.L.C. forming executed a transfer
In
PCI
(Colo.2007),
voluntarily
Phoenix had
pertinent part,
provided,
agreement which
transfer,
“sell,
scope
those
agreed
limit the
closing, PCI would
PAS,
only
efforts
clients or
“active”
to solicit
assign,
properties,
all
and deliver
assets,
every
employees.
kind
and business
goodwill,
personal,
both real and
description,
1(a)(3), Phoenix and
Pursuant
to C.A.R.
intangible,
analytic ser-
tangible
appeal
aspects
each
those
of the trial
Dowell
(‘the
division,
as set forth on Schedule
vices
injunction
preliminary
ruling that
court’s
Assets’).”
original.) PCI’s
(Emphasis in
respective
their
were adverse to
interests.
employment agreements were not listed
nor,
matter,
any-
1;
for that
Schedule
Preliminary Injunction
II.
Standards
thing else.
prelim
granting or
of a
“The
denial
resigned from PAS
In March
injunction
adju
inary
does not amount to an
forming a
join
competitors in
one of PCI’s
controversy.
rights
dication
the ultimate
According to PCI and PAS
company.
new
injunction,
preliminary
granting
Phoenix),
actively
began to
(collectively,
attempt
what
court should not
to do
can
clientele,
company
his new
solicit
assist
PCI’s
hearing
full
done
after a
final de
work,
brokerage
competing
with PCI
Querard,
Litinsky v.
cree.”
*5
key employ-
try
of PAS’s
to convince two
(citation omitted). Thus,
(Colo.App.1984)
819
join
company.
to
his new
ees
prelimi
findings
by a trial
after a
made
court
action,
present
the
injunction hearing
Phoenix instituted
nary
not determina
enforce,
injunctive
to
and dam-
seeking
relief
of the ultimate merits of the case. Car
tive
of,
noncompeti-
ages
past
Stancato,
18,
the
for
violations
v.
144
junctive respect to the non- relief with following meaningful a a trial render decision provisions solicitation preliminary injunction is the A on merits. agreement. warranted, however, unless the trial has moving party finds the demon that Phoenix The trial court determined (1) following each of the six factors: probability reasonable strated had not established a moving probabili a party has reasonable the and thus was not the of success on merits (2) merits; ty danger of of success on respect to relief with the noncom- entitled (1) real, immediate, injury Dowell, irreparable exists at the petition provision because relief; may injunctive prevented by “pro- signed agreement, time was not (3) plain, speedy, moving party has no [or] fessional staff executive (4) law; remedy adequate grant meaning § 8-2- personnel” within the of thus, injunction will dis- 113(2)(d), C.R.S.2006, ing preliminary of a noncom- (5) interest; initio; public of balance provision void ab serve petition injunction; granting given equities favors provision initio could not be the void ab injunction preserve quo when, will the status subsequently, Dowell effect attained v. pending a trial on merits. Rathke managerial position with PCI and prominent (Colo. 648, MacFarlane, P.2d 648 PAS. 1982); Collegiate v. Nat’l Athletic see Bloom was, that Phoenix The trial court ruled Ass’n, 621, (Colo.App.2004). 93 623 P.3d however, enforce the entitled to case, presents present side In the neither addressing nonsolieitation of customers because, argument the last five Rathke Atmel about employees consistent with Instead, appeal and Corp., both Phoenix’s Corp. 30 factors. v. Vitesse Semiconductor turn the trial court’s 789, abrogated cross-appeal in Dowell’s (Colo.App.2001), P.3d 796 is, factor, first that wheth- by Ingold AIM part grounds v. assessment on other 840 probabili- management personnel.”
er shown a unper- Phoenix has reasonable areWe ty of success on the merits. suaded. grant We review a trial court’s Operative A. Date the Covenant of injunction preliminary denial of a for abuse Three divisions of this court have standard, Under that discretion. ex 8-2-113, C.R.S.2006, § interpreted to mean ruling amine the court’s determine wheth that “a right covenant which restricts application er it is on an based erroneous person compensation to receive for work law, manifestly arbitrary, or is otherwise performed any employer is void ab ini- unreasonable, or unfair. Bloom Nat’l Col tio,” Management than “rather voidable.” Ass’n, legiate P.3d at Athletic 93 Boulder, Miller, Recruiters Inc. 762 (Colo.App.1988); P.2d 765 accord In re n Noncompetition III. The Provision Fischer, (Colo. Marriage 272 P.2d Phoenix contends that the trial court erred Machs., App.1992); Accounting Colo. Inc. v. ruling that it had not established a reason- Mergenthaler, 156-57, 44 Colo.App. request able probability success' on (1980). 1125, 1127 noncompetition enforce provision. A provision covenant or that is void disagree. beginning, ab initio is “[n]ull compete, “Covenants not to from the first moment when contract is exceptions, contrary some narrow Dictionary entered into.” Black’s Law public policy of Colorado and are void.” (7th ed.1999)' initio”); (defining “void ab see Enters., DBA Findlay, City County & Bd. County Denver v. (Colo.App.1996). preliminary in Comm’rs,
junction context, employer has the bur (Colo.App.1982)(equating ab void initio with *6 den to establish the covenant not to void, stating, meaning and “The of the term compete within falls one of those narrow ‘null, ineffectual, void nugatory.’ A.‘void’ Indus., exceptions. Porter Inc. v. Hig judgment, example, for is one. which ‘has gins, 1339, (Colo.App.1984). 680 P.2d 1341 (citation incipience.’” neither life nor omit ted) (quoting Black’s Dictionary Law and 8-2-113(2)(d) here, § pertinent As pro- Chevrolet, City County Davidson Inc. v. & vides prohibition that the on covenants not to of Denver, 175, 171, 1116, 138 Colo. compete not apply “shall to ... [executive (1958))). 1118 personnel management and officers and employees professional who constitute staff 35(f), Under C.A.R. the trial court to management executive personnel.” obliged was to follow the in decisions Man Here, Boulder, the trial court denied Phoenix’s agement re- Recruiters Inc. v. Mil of quest preliminary injunction ler, for a because it Fischer, supra, Marriage In re of found that Phoenix had not established a Machines, Accounting and Colorado that, probability reasonable the time Do- Mergenthaler, supra. Consequently, per we agreement, signed well the he fell within “the ceive no of abuse the trial court’s discretion statutory exception professional for staff.” decisions, in concluding, consistent with those validity of a noncompetition provi Phoenix asserts that the court trial erred sion is determined as of agree the time the First, respects. in applica- two it the asserts into, any ment is entered of and not as time bility exception § of the contained in 8-2- thereafter. 113(2)(d), of is determined not as the time 2000, but, signed agreement result, Dowell the in In reaching necessarily we re- rather, ject employ as of time he left PAS’s in supreme the the Phoenix’s reliance on 2005, Second, Whalen, was a manager. when he it court’s in Shepler decision v. 119 1084, asserts if applicability (Colo.2005), even the of the P.3d in 1088 which the exception is phrase determined as of time Do- court noted that “shall be void” in was, signed agreement, well even at governing “conveyances statute to de- time, “professional interpreted staff executive fraud had creditors” [in “been
841 Anderson, 308, conveyance (Colo.App P.2d 976 ease to mean that the prior law] .1998) case, (discussing appellate court present we standard In the deal is voidable.” fact). findings statute, 8-2-113, review trial court’s of How § has of which been with ever, error our use clear standard consistently interpreted twenty-five for over premised upon the court’s review is trial upon by the years in manner relied trial having correctly applied making law persuasive perceive rea court. And fact, findings we review novo de that line to abandon or decline to follow son application the trial court’s law. See Court, 907 authority. Smith v. Dist. Cf. J.R.T., People 219 in Interest P.3d (Colo.1995)(“Considerations P.2d (Colo.App.2002), People sub nom. v. uniformity, certainty, stability, which are aff'd (Colo.2003). Martinez, P.3d 474 objectives decisis doctrine stare govern court of this state.” should decisions Here, Phoenix that the trial court’s asserts omitted)). (citation factual is marred an erro- determination understanding meaning neous persuaded by Phoenix’s asser- Nor phrase “professional staff executive adhering to of those tion that the decisions personnel.” disagree. employers unprotected divisions leaves who, employees qualifying per- while not as Assembly General did define 8-2-113(2)(d) § when sonnel described phrase “professional staff executive and contracts, they into enter in management personnel,” two promoted key positions compa- later appellate expounded have our courts stances ny. may always An enter into new employer meaning of upon phrase. In Boulder employment agreements employees (Colo. as its Moore, v. Medical Center responsibilities, and the take additional App.1982), a division of this refused to employer, employee, than has the rather “professional physicians exclude staff’ obligation protect employer’s best in- employees” been “professional because had terests. persons legal, law defined in case as “such engineering, personnel and medical scientific found, Thus, as trial court the determi- junior together professional their assis whether, question is native Moore, supra, tants.” Boulder Med. Ctr. “professional staff to and man- executive (quoting at 465 NLRB Bell Aero agement personnel.” Co., space 284 n. 416 U.S. 94 S.Ct. (1974)). *7 1757, 1767, in 40 134 And L.Ed.2d B. to Executive Professional Staff Sellers, 15, (Colo.App 17 Smith 747 P.2d v. Management Personnel and .1987), division, citing Webster’s Third preliminarily found that The trial court (1986), Dictionary New 2219 International “professional not fall within the Dowell did responsible personnel “staff’ as “the defined because, provision although report- he staff’ functioning or the for the of an institution executives, managers to and most them ed carrying out an as establishment or the eighty ninety to salespersons and doubled as signed overall or task an director performed in percent of Dowell’s work was head.” staff, support rather than in of the sales disagree “profes- that Phoenix does not support management or func- of executive legal, engineering, include sional staff’ would tions. scientific, personnel, as well as and medical assistants, junior professional their who Ordinarily, determination “[t]he responsible functioning of institu- or for the an employee whether an is executive man staff, carrying out tion or the personnel, professional or is a or the establishment agement court,” an director Manage assigned of an task under overall question of for the trial fact Miller, Boulder, “profes- or But asserts the head. ment Recruiters of exception enough to is broad we will not sional staff’ supra, 762 P.2d at who, Dowell, are persons like encompass unless disturb trial court’s determination highly respective areas sup find skilled their clearly it is so erroneous as to report managers Tiger v. to or executives. port generally See the record. 842 statute, Thus, issue, view, construing a a in our is
When whether give to management per- court must ascertain effect the was “staff to executive and Assembly and refrain intent General sonnel.” judgment is rendering a that inconsis respect The statute is silent with legisla To tent with intent. determine interaction, type quality in terms of or intent, first to the words of tive we look time, quantity person a must have Nieto, statute. State v. 993 500 management personnel quali- or executive to (Colo.2000). acquired Unless words have fy “professional to staff executive and by particular meaning legisla a or technical personnel.” Section 8-2- otherwise, they given or tive definition 113(2)(d) added). (emphasis according commonly their effect under assessing legislative After his text 2-4-101, § accepted usage. stood and See statute, tory of the one set of com C.R.S.2006; Prop. Nat’l Farmers Union & purpose mentators has concluded Mosher, v. Cas. Co. Estate § underlying exception contained in 8-2- (Colo.App.2000). 113(2)(d) protect employers “to from the If the words used are clear and disruption operations upon which occur unambiguous import, apply we the statute key the loss of a or executive member his Nieto, supra, as written. State v. 993 P.2d at Krendl, Cathy staff.” James H. Krendl & S. If, however, ambiguous 500. the words are Noncompetition Covenants in Colorado: A unclear, or such that “the chosen words do Solution?, Statutory Den. L.J. result,” inexorably single to a lead (1975). regard, In this another commentator consider, may among things, other legis noted, “By allowing employers require has declaration, object sought lative to be management personnel executive and attained, consequences particu and the aof professional their to sign noncompeti staff Nieto, supra, lar construction. State agreements, employ tion the statute assures Ultimately, 501. statute must be very enterprise— ers that their heart of legislative construed further intent plans high-level strategies business —will represented by statutory the entire scheme. (or intentional) subject not be to accidental Nieto, supra, State P.2d at competitor.” to a disclosure Christine M. Here, commonly accepted meaning of O’Malley, Compete Covenants Not is, “professional” argues, the term as Phoenix Industry: Assessing Massachusetts Hi-Tech than simply broader member of a “learned Solution, Legislative the Need 79 B.U. Webster’s, profession.” at 1811 (Dec.1999)(footnote L.Rev. omit (defining adjective “professional” as “en- ted). gaged professions in one of the learned or in purpose, In accord with this con requiring occupation high level of train- phrase clude “professional staff ing proficiency ...: characterized management personnel” executive and is lim conforming to the technical or ethical stan- who, persons ited to qualifying those while *8 profession dards a or an occupation: of mani- “professionals” reporting managers to or festing artistry workmanship fine or based executives, primarily key serve as members knowledge on sound and conscientiousness: manager’s of the or in executive’s staff the education,
reflecting the results of
training,
implementation management
of
or executive
,
experience”).
functions.
Thus,
that,
readily perceive
we
edu-
may
experience,
person
cation and
a
be con-
statutory
This construction of the
(1)
“professional,”
phrase
to be
comports
public
sidered
a
in
with
policy of
sense,
may
that
disfavoring
Dowell
well have been a Colorado
covenants not to com
Enters.,
“professional”
pete,
Findlay,
in
member
PCI’s staff
see DBA
su
However,
(“Covenants
reported
persons
pra,
Dowell
to
who
staff’ Similarly, do not view the Atmel divi- we noncompetition provision could be enforced. unpublished as a cases sion’s reliance uphold court’s Consequently, reason, itself, the trial At- questioning and of Further, that Phoenix had not shown viability. although determination the su- mel’s probability of with re- reasonable success preme may not have embraced limitation, spect rejected to this claim. it has Atmel time also And at one other of this it. least division it, TV. Provisions Tele- Employment Nonsolicitation court has followed see Enters., Barocas, LLC v. vision court erred Phoenix contends trial (“the should (Colo.App.2004) trial court length extending in not of time which injunction light scope of the reconsider the in ef- provisions the nonsolieitation could be purchase agreement”), terms of the beyond one-year period specified in fect do here. and we likewise employment agreement. cross- his however, in the Consequently, discern no error appeal, contends finding terms of refusing trial court that the nonsolici- trial court’s to extend the erred preliminary injunction beyond at all the one- tation were enforceable Phoenix, agree- disagree year parties’ him. but term against specified part agree in with Dowell. ment. Extending B. Dowell’s Contentions
A. Phoenix’s Contention: the Nonsolicitation Provisions *9 the nonsolicitation Dowell contends (1) the preliminarily provisions ruled unenforceable because trial noncompetition provision is provisions accompanying were nonsolicitation (2) enforceable; employment his contract period forth in the not enforceable for the set (that is, personal contract which could year one from the was a services provision itself assigned; qualify not as not be PAS did termination of Dowell’s 2005). entity employment contract ruling, to which his March In so the trial court an was, any assigned; working employer could be there for another business”). event, assignment evidence of recruitment insufficient agree from PCI to with Dowell’s PAS. respect With to covenants not to solicit assertion, first as it to his insofar relates customers, reject applicability we customers; agreement not to Phoenix’s solicit passive Atmel distinction active and between however, reject his as assertions insofar policy underly- solicitation efforts. The core they agreement not solicit relate to his ing unenforceability noncompetition employees. Phoenix’s prohibition is a on the restraint of or, here, pertinent right
trade
to make
In
Accompanying,
living.
living,
order to make a
Effect of
Unenforceable
employee
former
needs to
free to solicit
Noncompetition Provision
customers,
(actively
passively)
or
former
Prohibiting
a. Provision
Solicitation
long
employer’s
as he
she does not use the
Employees
§ 8-2-113(2)(b),
trade secrets to do so. See
(recognizing
validity
C.R.S.2006
of con-
reject
Initially, we
Dowell’s assertion
protection
secrets);
tracts for the
of trade
law,
agreement
as a
an
matter of
not to
see,
Stewart,
e.g.,
Supply
Colo.
Co.
employer’s employees
solicit
former
cannot
(Colo.App.1990) (analyz-
1306-07
accompanying-
be enforced
an
noncom-
when
secrets).
ing customer lists as trade
In con-
provision
petition
is determined to be invalid.
trast,
agreement
employees
not
solicit
provision
Where
nonsolicitation
is limited
impair
employee’s
would not
the former
abili-
initiating
prohibiting only
or “ac
contacts
ty
living.
to make a
employer’s employees,
tive” solicitation of the
court,
trial
initially alleged,
enforceable,
despite
invalidity
it
of an
pursue,
but then determined not to
a claim of
accompanying noncompetition provision. See
improper
use
trade secrets
Dowell.
Corp.
Corp.,
Atmel
v. Vitesse Semiconductor
Because, as Phoenix
opening
conceded
its
supra,
brief, appeal any present does not issues secrets, relating perceive to trade legal Prohibiting b. Provision Solicitation distinguish upon basis which to the unen- Customers noncompetition agreement forceable from the The Atmel division did not discuss agreement not to solicit Phoenix’s customers. validity agreement of an not to solicit the employer’s accompanying customers when an c.Conclusion noncompetition provision is invalid. In our that, although invalidity We conclude view, legal there is no basis to enforce an noncompetition provision did not ren- customers, agreement not to solicit where agreement der invalid Dowell’s not to solicit 8-2-113(2) § agreement invalidate an would employees, Phoenix’s it rendered invalid Do- compete. agreement well’s not to solicit Phoenix’s cus- Thus, tomers. the trial in pre- court erred
This agreement follows because an not to liminarily enjoining from soliciting Dowell agreement solicit customers is form of an customers, Phoenix’s not from actively but compete. Paddock, Jr., John R. soliciting employees. Employment Law and Practice 5.30, (2d ed.2005) § (agreements pro- 2. Personal Services Contract hibiting employees competing for exist- ing “precisely type” points customers are correctly out that noncompetition agreements encompassed by generally Colorado law “does not allow as 8-2-113(2)); § Management signments see also Re- personal for matters of trust or Boulder, Miller, confidence, cruiters personal or for services.” Rob (invalidating Hart, P.2d at § 8-2- erts v. Holland & 113(2) a prohibiting clause (Colo.App.1993). Setting the solicitation aside the issue of customers because it “would noncompetition have had whether and nonsolicitation effect of restricting employee] agreements assignable [the former independently of
845
conjunction
they ap-
bingo-
of
with a
in which
“successor”
employment
the
contracts
statute,
least,
Lemons,
107,
licensing
in part
raffle
be-
119 Colo.
pear, see Cantrell v.
use
911,
cause the
of this definition would allow
111,
(noncompeti-
200 P.2d
912-13
multiple
in violation
licenses
of constitutional
assignable),
law
tion
Thus,
statutory provisions.
the division
exception
against
to the rule
recognizes an
concept
contracts,
excluded from the “successor”
personal services
where
assigning
had
statute entities that
assumed
“cer-
assignment.
employee
consents
functions, activities,
parts
tain
or
of an or-
79,
White,
220
Colo.
See Matson
ganization.” Ginny’s Kids
Sec’y
Int’l v.
(1950);
Campbell
see also
P.2d
of
State, supra, 29
at 336.
Ventures, LLC,
132 N.M.
Millennium
(Ct.App.2002)(discussing
we,
Here,
court,
trial
like the
see
reason
subject).
law on the
ease
why
ordinary understanding of the
term
applied.
not be
“successor” should
And be-
employment
Assuming that Dowell’s
con
noted,
cause,
court
“the
as
trial
more
qualify
personal
as a
services
tract would
successor” includes a
usual definition of
busi-
do
contract —an
not decide—we
issue
part
to the
or
ness that succeeds
whole
of
that
to its
nonetheless conclude
he consented
company,
of
the trial
business
another
court
part
to the
of
assignment when he assented
preliminarily
did
abuse
discretion in
not
agreement
that
employment
said
concluding PAS was a successor to PCI.
binding upon
shall be
and shall
“Agreement
parties,
to the
inure
benefit
Assignment
Sufficiency
Evidence:
L
assigns.”
See Pino v.
successors
[PCI’s]
Florida,
Inc.,
Spanish
Sys.
reject
Finally,
Broad.
Dowell’s conten
186, 189 (Fla.Dist.Ct.App.1990) (accept
So.2d
tion
insufficient
that
evidence was
ing
to show
language
finding
similar
sufficient
court’s
that PCI
support
trial
had
employee
assign
“consented
his
assigned
employment contract
PAS.
original employment
writing
ment in
her
premises
largely
his contention
on
contract”).
Agreement
the fact that
the Transfer
that
his
purported
to transfer
con-
PAS’s
as Successor to PCI
Status
tract, along
every
proper-
other kind of
Relying
Ginny’s
Kids Interna
ty, from PCI to PAS was left blank.
State,
tional,
Secretary
Inc. v.
V. manager’s or imple- executive’s staff management mentation executive func- Based on Phoe- his successful defense of tions, where a legitimate but there would be appeal overturning part nix’s of the and his question employee as to whether the injunction, preliminary contends “professional staff.” entitled, “prevailing party” he is provision agreement, statutory lack definition of the term attorney appeal. an award of fees incurred “professional presents problem staff’ thus empowered areWe to order such an award. likely litigation. that will arise in future Be- Zambruk v. Perlmutter 3rd Generation (1) noncompetition cause and nonsolicitation Builders, Inc., Colo.App. agreements are in wide circulation busi- (1978). ongoing Given the ness, expensive litigation concerning such case, however, nature of the we think it best significant employers issues is a risk for both determine, appro- that the trial employees, agreements such time, priate Do- whether and to what extent impede employee’s ability could to work attorney is “prevailing party” well entitled to living employment, earn future I fees, including appeal. fees incurred this commend this issue attention See C.A.R. 39.5. Assembly. General
The court’s is vacated to extent order preliminarily enjoins soliciting
it Dowell from Otherwise,
Phoenix’s order customers. affirmed, and the case is remanded for proceedings
further consistent with the views expressed in opinion. this RINGQUIST Ringquist, Steve Diana Plaintiffs-Appellees,
Judge CARPARELLI concurs. Judge TERRY specially concurs. HOMES, LLC, CUSTOM WALL David Judge specially concurring. TERRY Wall, Carter and William Winston Wall, Defendants-Appellants. concur in analysis I the result and majority opinion. separately bring I write No. 06CA2256. issue, attention to an not resolved this Appeals, Colorado Court of decision, likely that will result in future liti- Div. V. gation. Dec. appeal primarily by resolve focus- ing on whether Dowell was “staff to execu- personnel.”
tive and We do