John Doe v. University of Denver

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
May 26, 2022
2022COA57
No. 20CA1545, Doe v. University of Denver — Education —
Higher Education — Student Sexual Misconduct; Contracts —
Breach of Contract — Breach of Covenant of Good Faith and
Fair Dealing; Torts — Negligence — Duty of Care
A division of the court of appeals decides two questions of first
impression in Colorado. First, are the University of Denver’s Office
of Equal Opportunity Procedures 2015-2016 (OEO Procedures)
regarding student sexual misconduct investigations sufficiently
definite to be enforceable in contract? Second, what tort duties, if
any, does a private educational institution owe its students when
investigating and adjudicating claims of sexual misconduct by its
students?
The division holds that the OEO Procedures regarding student
sexual misconduct investigations are sufficiently certain to be
enforced under Colorado contract law. The division also holds that
a private educational institution owes a duty, independent of any
contractual promises, to adopt fair procedures and to implement
those procedures with reasonable care when it investigates and
adjudicates claims of sexual misconduct by one student against
another.
COLORADO COURT OF APPEALS 2022COA57
Court of Appeals No. 20CA1545
City and County of Denver District Court No. 19CV33640
Honorable Morris B. Hoffman, Judge
John Doe,
Plaintiff-Appellant,
v.
University of Denver; University of Denver Board of Trustees; Rebecca Chopp,
individually and as an agent for University of Denver; Kristin Olson,
individually and as an agent for University of Denver; Jean McAllister,
individually and as an agent for University of Denver; Siri Slater, individually
and as an agent for University of Denver; Eric Butler, individually and as an
agent for University of Denver,
Defendants-Appellees.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE BERGER
Brown and Johnson, JJ., concur
Announced May 26, 2022
Campbell Killin Brittan & Ray, LLC, Michael Mirabella, Denver, Colorado, for
Plaintiff-Appellant
Constangy, Brooks, Smith & Prophete, LLP, Jimmy Goh, Erin Mangum,
Denver, Colorado, for Defendants-Appellees
¶1 John Doe appeals the district court’s summary judgment in
favor of the University of Denver (DU), its board of trustees, and the
individuals responsible for the investigation and adjudication that
culminated in John’s expulsion for non-consensual sexual contact
with Jane Roe.1
¶2 This case requires us to decide two questions of first
impression in Colorado. First, are DU’s Office of Equal Opportunity
Procedures 2015-2016 (Aug. 17, 2015), https://perma.cc/6TDL-
4M6S (OEO Procedures), regarding student sexual misconduct
investigations sufficiently definite to be enforceable in contract?
Second, what tort duties, if any, does a private educational
institution owe its students when investigating and adjudicating
claims of sexual misconduct by its students?
¶3 We hold that DU’s OEO Procedures regarding student sexual
misconduct investigations are sufficiently certain to be enforced
under Colorado contract law. We also hold that a private
1John Doe and Jane Roe are pseudonyms used to preserve these
persons’ privacy. None of the parties challenges the propriety of
using pseudonyms in litigation of this type. Respecting the party
presentation principle, neither do we. See Galvan v. People, 2020
CO 82, ¶ 45.
1
educational institution owes a duty, independent of any contractual
promises, to adopt fair procedures and to implement those
procedures with reasonable care when investigating and
adjudicating claims of sexual misconduct by one student against
another. We also hold, however, that a university’s trustees,
employees, and agents do not owe this tort duty.
¶4 Accordingly, we affirm in part and reverse in part the district
court’s judgment and remand for further proceedings.
I. Relevant Facts and Procedural History
¶5 We glean the following facts from multiple sources, including
John’s, Jane’s, and other witnesses’ written submissions to DU, the
correspondence between John and DU’s investigators, and the facts
found in the final investigation report. No evidentiary hearing on
the disputed facts was ever held. We recite these facts solely to
guide our legal analysis; none of the stated facts is binding on the
district court on remand.
A. John and Jane’s Relationship
¶6 In fall 2015, John and Jane enrolled as undergraduate
students at DU. In January 2016, they began a romantic
relationship in which they sometimes spent the night with each
2
other but did not engage in sexual intercourse. In February 2016,
the relationship cooled, and they interacted with each other less
often.
¶7 On a Friday in early March 2016, Jane was drinking alcohol
with friends in a dorm and later at a bar. Jane wanted to talk to
John, so after Jane returned to the dorm where both she and John
lived, she attempted to locate John. After finding John in his
friend’s dormroom, where he had also been drinking alcohol, Jane
brought him to her dormroom. They began kissing and engaging in
sexual contact but did not engage in sexual intercourse that night.
¶8 John and Jane dispute the events that occurred the following
morning. John claimed that he awoke to find Jane on top of him
attempting to engage in intercourse. They then engaged in
consensual sexual intercourse “for a very brief time.” At some
point, Jane abruptly left the room. About ten minutes later, she
returned and wanted to talk about their relationship. John was
unwilling to discuss their relationship and returned to his room.
¶9 Jane’s version of the Saturday morning events differed
materially. She said that she woke up naked to find John fondling
3
her genitals and kissing her. She claimed that John then had
sexual intercourse with her without her consent.
¶ 10 After hearing John discuss the incident with others at a party
and after returning from spring break to discover that John had
told additional people about their sexual encounter, Jane filed a
complaint with DU’s Office of Equal Opportunity (OEO).2
B. The OEO Procedures
¶ 11 As part of the enrollment process, John received a copy of the
OEO Procedures. The OEO Procedures provide that DU will make
an initial assessment when a report alleges a violation of a DU
policy. OEO Procedures at XI.A. “Where the initial assessment
concludes that Corrective Action and/or Outcomes may be
appropriate, [DU] will initiate an investigation.” Id. at XI.E.
¶ 12 The OEO Procedures require DU to designate either an
employee of DU or an external investigator to conduct the
investigation. Id. They require that “[a]ny investigator chosen to
conduct the investigation must be impartial and free of any actual
2 This is the DU office that addresses claims under Title IX of the
Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, including
claims by students that another student engaged in sexual
misconduct.
4
conflict of interest.” Id. The OEO Procedures contain various
provisions designed to ensure that an investigation is “thorough,
impartial and fair.” Id.¶ 13 At the conclusion of the investigation, the investigator must
prepare a “written report that summarizes the information gathered
and synthesizes the areas of agreement and disagreement between
the parties.” Id. at XI.F. In preparing the report, “the investigator
will review all facts gathered to determine whether the information
is material to the determination of responsibility given the nature of
the allegation. In general, the investigator may exclude information
that is immaterial.” Id. Before the report is finalized, the
complainant and respondent are given an opportunity to review the
preliminary report and offer oral and written comments. Id.¶ 14 Upon receipt of additional information from the complainant
or respondent, “the investigator will make a finding as to whether
there is sufficient information to establish, by a preponderance of
the evidence, that a policy violation occurred. The final written
report will include the determination of responsibility and the
rationale for the determination.” Id.5
¶ 15 “When there is a determination of responsibility for a policy
violation[,] the [OEO] will refer the matter to the appropriate
administrator for Corrective Action or Outcomes.” Id. at XI.H.1. If
the respondent is a student, the matter is then referred to the
Outcome Council. Id. at XI.I. The OEO Procedures direct the
Outcome Council to “mak[e] a neutral and impartial review of
investigations and findings, and impos[e] outcomes (sanctions).” Id.at XIII.B.1. “In general[,] violations of the non-consensual sexual
contact provision of [the OEO] Procedures typically result in a
dismissal . . . .” Id. at XIII.D. Once the Outcome Council renders a
finding, it issues a letter describing the outcome and appeal
options. Id. at XIII.E. The OEO Procedures provide that “[a]ppeal
decisions are final.” Id. at XIII.F.
C. The Investigation
¶ 16 On March 24, 2016, the OEO received Jane’s complaint. The
Title IX Coordinator reached out to Jane that same day and held an
informational meeting with her in early April. On April 12, Jane
requested a formal investigation.
6
¶ 17 In late April, the Title IX Coordinator gave John notice of
Jane’s allegations and issued a “no contact order” to John.3 John
submitted to a formal interview with the investigators in early May.
John provided the names of five people he wanted the investigators
to interview: his mother, his legal counsel, his therapist, and two
students. In addition to Jane and John, the investigators
interviewed eleven witnesses whom Jane had identified.
¶ 18 Before submitting her complaint to the OEO, Jane underwent
a sexual assault nurse examination (SANE). During the
investigation, she submitted portions of the SANE report. The
portions she submitted described a dozen observable abrasions and
contusions on her body. Jane did not submit, however, (1)
photographs of her abrasions and contusions; (2) summaries by the
SANE nurse or the attending physician; or (3) her written statement
to the SANE nurse regarding the source of her injuries. The
portions of the SANE report that Jane submitted did not include
any medical analysis as to the possible cause or age of her injuries.
3 None of the parties addresses whether a private educational
institution has legal authority to impose a “no contact order,” so we
do not further address this question. See Galvan, ¶ 45.
7
¶ 19 Though the preliminary report is not in the record, the final
report states that John and Jane “were given the opportunity to
review the preliminary report and offer any factual clarifications and
additional relevant information related to the statements.” After he
reviewed the investigators’ preliminary report, John realized that
the investigators had not interviewed any of his witnesses and
again requested that the investigators interview them. The
investigators then interviewed one of John’s witnesses — his
therapist.
¶ 20 The investigators declined to interview the other witnesses
John identified even though some of those witnesses — students —
were in the dormroom with him when Jane came and brought him
back to her dormroom on the night in question. The final report
stated that interviews of John’s witnesses were unnecessary
because “the [i]nvestigators had already interviewed witnesses [who]
could corroborate the information that [John] expected them to
provide.”
¶ 21 The final report further acknowledged that Jane had not
produced the complete SANE report but nevertheless concluded
8
that the portions of the report she had submitted corroborated
Jane’s version of events.
¶ 22 The final report concluded, “it is more likely than not that
[John] engaged in non-consensual sexual contact with [Jane] on the
morning in question.”
¶ 23 Shortly after the final report was issued, John was informed
that the Outcome Council “determined that dismissal is the only
reasonable outcome” and that his dismissal from DU was effective
immediately.
¶ 24 John appealed, alleging that the investigators’ “strong bias”
affected their ability to conduct a “fair and equal investigation.” He
also alleged that the outcome was “disproportionate to the
violation.” John’s appeal was denied, constituting “a final decision,
with no further route of appeal.”
D. The Federal and State Lawsuits
¶ 25 Following his expulsion, John sued DU, its trustees, and the
individuals responsible for the investigation and adjudication in the
United States District Court for the District of Colorado. He
pleaded federal claims, including a violation of his rights under Title
IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688.
9
See Doe v. Univ. of Denver, Civ. A. No. 17-cv-01962, 2019 WL
3943858, at *3 (D. Colo. Aug. 20, 2019) (unpublished opinion),
rev’d and remanded, 1 F.4th 822 (10th Cir. 2021). He also pleaded
state law claims for breach of contract, breach of the covenant of
good faith and fair dealing, promissory estoppel, and negligence. Id.¶ 26 After the federal district court granted summary judgment on
the federal claims in favor of all defendants and dismissed the state
law claims without prejudice, John filed the lawsuit underlying this
appeal in Denver District Court, raising the same four state law
claims he originally brought in federal court.
¶ 27 The defendants moved for summary judgment on all claims,
which the district court granted. As to John’s contract claim
(including his claim for breach of the duty of good faith and fair
dealing), the court concluded that DU’s promise of a “thorough,
impartial and fair” investigation was too vague to be enforced. The
district court also rejected John’s negligence claim, holding that DU
did not owe John an “extra-contractual duty to non-negligently
10
investigate claims of sexual assault by one student against
another.”4 John appeals.
¶ 28 After completion of briefing in this court, the United States
Court of Appeals for the Tenth Circuit reversed the federal district
court’s grant of summary judgment, holding that genuine issues of
material fact precluded summary judgment on John’s Title IX claim
against DU. Doe v. Univ. of Denver, 1 F.4th 822, 825 (10th Cir.
2021). The Tenth Circuit’s opinion identified several
inconsistencies and deficiencies in DU’s investigation of John and
concluded that there were genuine issues of material fact as to
whether DU’s investigation discriminated against John based on
sex in violation of Title IX. Id. at 832-34.5
4 The district court also granted summary judgment in favor of the
defendants on John’s promissory estoppel claim, but John does not
appeal that portion of the court’s order. Accordingly, we do not
further address John’s promissory estoppel claim.
5 Because the briefing in this court was completed before the Tenth
Circuit announced its opinion in Doe v. University of Denver, 1 F.4th
822, 825 (10th Cir. 2021), we requested that the parties address at
oral argument the effects, if any, of the Tenth Circuit’s opinion on
our analysis and disposition of this appeal. They did so.
11
II. Standard of Review
¶ 29 We review summary judgments de novo. Westin Operator, LLC
v. Groh, 2015 CO 25, ¶ 19. Summary judgment is proper “if the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” C.R.C.P. 56(c); see also
Mullen v. Metro. Cas. Ins. Co., 2021 COA 149, ¶ 14.
III. The OEO Procedures are Sufficiently Definite and Certain to be
Enforced Under Colorado Contract Law
¶ 30 John claims that DU violated its OEO Procedures and thereby
breached its contract with him by failing to conduct a “thorough,
impartial and fair” investigation. See OEO Procedures at XI.E. He
also claims that DU violated the implied covenant of good faith and
fair dealing.
¶ 31 The fundamental question presented to us is whether the term
in the OEO Procedures providing for a “thorough, impartial and
fair” investigation is sufficiently definite to be enforceable in
contract.
12
¶ 32 While no Colorado appellate court has addressed this
question, other courts have. Some courts have concluded that
contractual terms like “fundamental fairness” and “basic fairness”
are sufficiently definite and certain to be enforced under contract
law. See Goodman v. President & Trs. of Bowdoin Coll., 135 F.
Supp. 2d 40, 57 (D. Me. 2001); see also Doe v. Brandeis Univ., 177
F. Supp. 3d 561, 572 (D. Mass. 2016).
¶ 33 Other courts have concluded that general statements
promising a safe and healthy workplace or that dissertation
committee members would be involved in a “very active manner” are
insufficiently certain to be enforced under contract law. See Vasey
v. Martin Marietta Corp., 29 F.3d 1460, 1465 (10th Cir. 1994);
Borwick v. Univ. of Denver Bd. of Trs., Civ. A. No. 11-cv-01216, 2013
WL 1149543, at *8 (D. Colo. Mar. 18, 2013) (unpublished opinion),
aff’d, 569 F. App’x 602 (10th Cir. 2014).
¶ 34 The district court in this case reasoned that the term
“thorough, impartial and fair” was not sufficiently definite to create
an enforceable contract under Colorado law. Based on the specific
investigation and adjudication procedures contained in the OEO
13
Procedures, including the words “thorough, impartial and fair,” we
disagree.
A. Contract Law
¶ 35 To recover for breach of contract, a plaintiff must prove (1) the
existence of a contract; (2) the plaintiff’s performance or some
justification for nonperformance; (3) the defendant’s failure to
perform; and (4) damages to the plaintiff.6 W. Distrib. Co. v.
Diodosio, 841 P.2d 1053, 1058 (Colo. 1992).
¶ 36 Colorado appellate courts have recognized that “[t]he basic
relationship between a student and an educational institution is
contractual in nature.” CenCor, Inc. v. Tolman, 868 P.2d 396, 398
(Colo. 1994); see also Davis v. Regis Coll., Inc., 830 P.2d 1098, 1100
(Colo. App. 1991). “Materials actually provided to a student,
6 Under Colorado contract law, “[n]ominal damages are recoverable
for a breach of contract even if no actual damages resulted or if the
amount of actual damages has not been proved.” City of
Westminster v. Centric-Jones Constructors, 100 P.3d 472, 481 (Colo.
App. 2003). This is in contrast to a tort claim, where damages are
an essential element of the claim; if a plaintiff fails to prove
damages in a tort case, judgment enters in favor of the defendant.
See, e.g., Nunn v. Mid-Century Ins. Co., 244 P.3d 116, 121 (Colo.
2010) (“[A]s with most tort claims, proof of actual damages is an
essential element of a bad faith breach of an insurance contract
claim.”).
14
including enrollment agreements and catalogs, may become part of
the agreement.” CenCor, 868 P.2d at 398. But contract claims
regarding “the general quality of educational experiences provided
to students have generally been rejected.” Id.
¶ 37 “If the parties fail to agree to sufficiently definite and certain
terms, there is no meeting of the minds and, hence, no valid
contract.” Schmidt v. Frankewich, 819 P.2d 1074, 1077 (Colo. App.
1991). On the other hand, contract terms that are “sufficiently
definite to enable the court to determine whether the contract has
been performed or not” are enforceable. Stice v. Peterson, 144 Colo.
219, 224, 355 P.2d 948, 952 (1960) (quoting Newton Oil. Co. v.
Bockhold, 115 Colo. 510, 518, 176 P.2d 904, 908 (1946)).
¶ 38 Contract interpretation is a question of law that we review de
novo. Ad Two, Inc. v. City & Cnty. of Denver, 9 P.3d 373, 376 (Colo.
2000). “The primary goal of contract interpretation is to determine
and give effect to the intent of the parties. The intent of the parties
to a contract is to be determined primarily from the language of the
instrument itself.” Id. (citation omitted). When interpreting a
contract, all terms must be viewed in the context of the contract as
a whole. Cary v. United of Omaha Life Ins. Co., 108 P.3d 288, 293
15
(Colo. 2005). Contract language “must be examined and construed
in harmony with the plain and generally accepted meaning of the
words employed.” AdTwo, Inc., 9 P.3d at 376. “The meaning of a
contract is found by examination of the entire instrument and not
by viewing clauses or phrases in isolation.” U.S. Fid. & Guar. Co. v.
Budget Rent-A-Car Sys., Inc., 842 P.2d 208, 213 (Colo. 1992).
B. The OEO Procedures on Investigations
¶ 39 Section XI.E of the OEO Procedures provides as follows:
The investigation is designed to provide a fair
and reliable gathering of the facts. The
investigation will be thorough, impartial and
fair, and all individuals will be treated with
appropriate sensitivity and respect. . . .
The investigator will conduct interviews as
necessary, review documents, and any other
relevant information concerning the alleged
discriminatory acts. The parties may provide
any relevant information to the investigator,
including the names of witnesses to contact
and/or documents to review at any time before
the investigation is closed. The Complainant
and Respondent will have an equal
opportunity to be heard, to submit
information, and to identify witnesses who
may have relevant information. Witnesses
must have observed the acts in question or
have information relevant to the incident and
cannot be participating solely to speak about
an individual’s character. Investigators will
review and determine the weight and
16
materiality of all submitted information and
including the necessity of interviewing
potential witnesses.
....
After [DU] decides to move forward with an
investigation and the complainant’s initial
interview is completed, the Respondent will be
notified by Title IX or Equal Opportunity staff
that an investigation has been initiated. They
will be notified in writing and invited to an
informational meeting to review the process
and the resources available to them
throughout the process. . . .
After the respondent has completed the
informational meeting or the initial ten (10)
business days from receiving notice have
passed, the respondent will be invited to
complete an initial interview with an
investigator. . . .
In most cases, investigators will have follow-up
questions for the complainant and respondent
after their respective initial interviews. . . .
(Emphasis added.)
C. Application
¶ 40 The words “thorough,” “impartial,” and “fair” are not defined in
the OEO Procedures’ definitional section. But that does not end
our inquiry. Instead, when we examine the entire document, rather
than view the words “thorough, impartial and fair” in isolation, we
17
are able to ascertain the parties’ intent. The specific investigation
requirements give meaning to the words “thorough, impartial and
fair” and are sufficiently definite to determine whether the
contractual terms have been performed or breached.
¶ 41 Consider the following provision in the OEO Procedures: “The
Complainant and Respondent will have an equal opportunity to be
heard, to submit information, and to identify witnesses who may
have relevant information.” OEO Procedures at XI.E. Evidence that
the investigators interviewed eleven of the witnesses Jane identified
but only one of the five witnesses John identified might allow a fact
finder to conclude that DU breached its contractual promise of a
“thorough, impartial and fair” investigation.
¶ 42 The United States District Court for the Eastern District of
Pennsylvania engaged in a similar analysis. Doe v. Trs. of the Univ.
of Pa., 270 F. Supp. 3d 799, 813-14 (E.D. Pa. 2017). The University
of Pennsylvania’s disciplinary procedures promised a “thorough and
fair investigation” and a “fair and impartial” hearing. Id. at 813.
Because the promise of a “thorough and fair investigation” was
“immediately followed by a description of the precise procedures
that the investigating officer and his team w[ould] follow,” the court
18
concluded that the investigation the parties contemplated was that
set forth in the procedures immediately following the promise of
such an investigation, even though the promise of a “thorough and
fair investigation” and a “fair and impartial” hearing may not have
been, by themselves, sufficiently certain to support a breach of
contract claim. Id. at 813-14.
¶ 43 Applying principles of Colorado contract law to construe DU’s
promise of a “thorough, impartial and fair” investigation with
reference to the entirety of the OEO Procedures related to
investigations, we conclude that the contractual term providing for
a “thorough, impartial and fair” investigation is sufficiently definite
and certain to be enforced.
¶ 44 In resolving this question, we need not decide, and therefore
express no opinion, whether the terms “thorough,” “impartial,” and
“fair,” standing by themselves, would be sufficiently certain and
definite to be enforceable under Colorado contract law. See Doe v.
Amherst Coll., 238 F. Supp. 3d 195, 217-18 (D. Mass. 2017)
(denying the defendants’ motion for judgment on the pleadings
because the plaintiff alleged sufficient facts from which the court
could plausibly infer that the investigation was inadequate under
19
policies that promised a “thorough, impartial and fair”
investigation).
¶ 45 We also do not identify which specific investigation procedures
inform the contractual term providing for a “thorough, impartial
and fair” investigation. Our holding is limited to concluding that
the contractual term providing for a “thorough, impartial and fair”
investigation, coupled with the prescribed investigation
requirements, is sufficiently definite and certain to be enforced
under Colorado contract law.
D. Genuine Issues of Material Fact Precluded Summary
Judgment on John’s Contract Claim Against DU
¶ 46 Having concluded that the OEO Procedures are sufficiently
definite to be enforced in contract, we turn to whether the record
permitted summary judgment in favor of DU on John’s contract
claim. We hold that it did not.
¶ 47 At the outset, we note that the Tenth Circuit’s opinion in Doe
held that summary judgment was improperly granted on John’s
Title IX claim; neither the federal district court nor the Tenth
Circuit addressed John’s state law claims. 1 F.4th at 825.
20
¶ 48 Nevertheless, at least some of the factual questions relevant to
John’s Title IX claim are equally relevant to his state law claims, as
he argued on appeal to us. And although we are not bound by the
Tenth Circuit’s analysis in Doe, either under the law of the case
doctrine or otherwise, we conclude that its analysis is persuasive
and relevant to our consideration of whether genuine issues of
material fact preclude summary judgment in this case. See Monez
v. Reinertson, 140 P.3d 242, 245 (Colo. App. 2006) (“[W]e are not
bound by decisions of lower federal courts.”); Kuhn v. State, Dep’t of
Revenue, 897 P.2d 792, 795 (Colo. 1995) (explaining the law of the
case doctrine).
¶ 49 First, John alleges (and the record supports the allegation)
that the investigators did not consider Jane’s possible improper
motivations for filing the complaint against John. As the Tenth
Circuit noted, Jane admitted to investigators that she filed her
complaint only after learning that John had allegedly told other
classmates about their sexual encounter. Doe, 1 F.4th at 833.
Jane initially did not tell her classmates she thought the encounter
was a sexual assault or nonconsensual; “[i]t was not until later —
after Jane saw John talking to another young woman at a party —
21
that she began telling people the encounter was not consensual.”
Id. So far as the record reveals, the investigators apparently did not
consider or address in the preliminary or final reports any of these
motivations for a sexual assault charge.
¶ 50 Second, John points to the eleven witnesses whom the
investigators interviewed at Jane’s request. Through the
preparation of the preliminary report, DU rejected John’s request to
interview any of his proposed witnesses. Only after issuance of the
preliminary report and John’s second request that his supporting
witnesses be interviewed did the investigators interview one of his
five requested witnesses: his therapist. The OEO Procedures state
that the “Complainant and Respondent will have an equal
opportunity to be heard, to submit information, and to identify
witnesses who may have relevant information.” OEO Procedures at
XI.E.
¶ 51 As the Tenth Circuit persuasively explained, two of the
witnesses whom John requested be interviewed were his roommate
and one of his close friends, both of whom he told about the sexual
encounter “very shortly after it happened.” Doe, 1 F.4th at 832.
Perhaps more importantly, these same witnesses also had
22
“witnessed interactions between John and Jane in the hours
surrounding the alleged assault.” Id. The potential relevance of
information provided by such witnesses is obvious.
¶ 52 The investigators’ final report dismissed out of hand the
potential significance of these witnesses’ knowledge, stating that
John’s roommate and friend would likely only provide “duplicative”
information and the investigators wanted to limit those interviewed
given the private nature of the issues. But, again, as the Tenth
Circuit reasoned, “the same could be said for Jane’s eleven
witnesses [whom] investigators opted to interview.” Id. We
therefore conclude that there is a genuine issue of material fact as
to whether John received an “equal opportunity to be heard, to
submit information, and to identify witnesses who may have
relevant information.” See OEO Procedures at XI.E.
¶ 53 The failure of the investigators to consider Jane’s entire SANE
report also gave the Tenth Circuit pause. We acknowledge that DU
may not have had legal authority to compel production of the full
SANE report. But the fact that the investigators relied on selective
portions of the SANE report (chosen by Jane) to reach the
conclusions in the final report has obvious consequences regarding
23
the reliability of the findings made in reliance on the incomplete
SANE report. As the Tenth Circuit observed, a complete SANE
report includes “summaries by the SANE nurse, the attending
physician, and the patient’s written statement regarding the source
of the injuries.” Id. at 833. The investigators did not consider any
of this information because Jane elected not to provide it.
¶ 54 Although the final report acknowledged that Jane had not
provided the complete SANE report, it nevertheless relied on the
self-selected portions of the SANE report, stating that it “seem[ed] to
corroborate [Jane’s] assertion that [John] was ‘manipulating’ her
body by ‘grabbing and pushing’ her legs aside before forcibly
putting his penis inside her.” The final report concluded that the
information from the SANE that Jane provided corroborated her
version of events but discounted other SANE information that might
have been included as speculative. But without the other
information not produced — specifically a medical cause for her
injuries and a date of injury — it is at least open to question by a
fact finder whether the investigators and DU thoroughly,
impartially, and fairly “review[ed] and determine[d] the weight and
24
materiality of all submitted information” as section XI.E of the OEO
Procedures required.
¶ 55 We reject DU’s argument that John has presented no facts,
other than his mere disagreement with the result of the
investigation, to support his breach of contract claim. Instead, we
hold that the arguable deficiencies in DU’s investigation identified
above and in Doe create genuine issues of material fact as to
whether DU abided by its contractual commitments to provide a
“thorough, impartial and fair” investigation as provided in the OEO
Procedures before it expelled John based on its finding that he had
engaged in non-consensual sexual contact.7
E. Genuine Issues of Material Fact Precluded Summary
Judgment on John’s Contract Claim Against DU Premised on
a Breach of the Duty of Good Faith and Fair Dealing
¶ 56 A breach of the implied covenant of good faith and fair dealing
is one way that a party can breach a contract. See City of Golden v.
Parker, 138 P.3d 285, 292 (Colo. 2006). The implied covenant of
7 We emphasize that we are not resolving any of these factual
issues. We have identified factual questions regarding whether DU
complied with its contractual commitments that require further
proceedings. But it is for the district court or a jury, as
appropriate, to resolve these factual questions on remand. We
express no opinion on the ultimate resolution of these questions.
25
good faith and fair dealing applies to every contract in Colorado.
Cary v. United of Omaha Life Ins. Co., 68 P.3d 462, 466 (Colo.
2003). The duty of good faith and fair dealing applies “when the
manner of performance under a specific contract term allows for
discretion on the part of either party.” Parker, 138 P.3d at 292
(quoting Amoco Oil Co. v. Ervin, 908 P.2d 493, 498 (Colo. 1995)).
“Whether a party acted in good faith is a question of fact which
must be determined on a case by case basis.” Amoco Oil Co., 908
P.2d at 499.
¶ 57 As illustrated above, many of the OEO Procedures allow for
DU’s investigators to act with discretion. For example:
“Investigators will review and determine the weight and materiality
of all submitted information and including the necessity of
interviewing potential witnesses.” OEO Procedures XI.E.
¶ 58 For the same reasons identified above, see supra Part III.D, we
conclude that genuine issues of material fact precluded summary
judgment on John’s breach of contract claim premised on a breach
of the duty of good faith and fair dealing.
¶ 59 We therefore reverse the district court’s judgment dismissing
John’s contract claim (including his claim based on breach of the
26
covenant of good faith and fair dealing) and remand for further
proceedings, including, if necessary, a jury trial.
IV. Colorado Law Recognizes a Tort Duty of Care Owed by DU
¶ 60 John asserts, as he did in the district court, that DU owed him
a tort duty of care, independent of DU’s contractual obligations, to
adopt fair procedures and to implement those procedures with
reasonable care when it investigated and adjudicated the
allegations against him. The district court held that no such duty
exists under Colorado law and granted summary judgment to all
defendants on that basis.
¶ 61 We disagree with the district court as to DU and hold that it
owed John that duty of care. We also conclude that genuine issues
of material fact precluded summary judgment on his negligence
claim. But, because we agree with the district court that the
trustees, employees, and agents owed no tort duty of care, we affirm
the summary judgment as to them.
A. Applicable Law
¶ 62 As discussed above, we review summary judgments de novo.
Westin, ¶ 19.
27
¶ 63 To prevail on a claim that a person breached a duty of care, a
plaintiff must prove that (1) the defendant owed the plaintiff a duty
of care; (2) the defendant breached that duty; (3) the plaintiff
suffered an injury; and (4) the cause of the injury was the
defendant’s conduct. Id. at ¶ 23. “Whether a defendant owes a
legal duty to a plaintiff is a question of law.” Id. at ¶ 18.
¶ 64 In a series of cases, the Colorado Supreme Court has
identified a nonexhaustive list of public policy factors that bear on
whether Colorado law recognizes a duty of care in tort. Id. at ¶¶ 25,
33; HealthONE v. Rodriguez, 50 P.3d 879, 888 (Colo. 2002);
Greenberg v. Perkins, 845 P.2d 530, 536 (Colo. 1993); Taco Bell v.
Lannon, 744 P.2d 43, 46 (Colo. 1987); Univ. of Denver v. Whitlock,
744 P.2d 54. 57 (Colo. 1987).8
8 The General Assembly may, by legislation, establish an actor’s
duty of care and enact a statutory cause of action for breach of
such a duty. See, e.g., § 13-20-804, C.R.S. 2021; A.C. Excavating v.
Yacht Club II Homeowners Ass’n, 114 P.3d 862, 868 (Colo. 2005)
(“[T]he General Assembly has explicitly recognized that
subcontractors are under an independent duty of care.”). The
Westin factors come into play only when the General Assembly has
not addressed the subject matter. Neither party claims that the
General Assembly has enacted relevant legislation on this subject.
28
¶ 65 To determine whether a duty should be recognized, we assess
(1) the risk involved in the defendant’s conduct; (2) the
foreseeability and likelihood of injury weighed against the social
utility of the defendant’s conduct; (3) the magnitude of the burden
of guarding against the injury; and (4) the consequences of placing
the burden on the defendant. Westin, ¶ 33; HealthONE, 50 P.3d at
888. As the supreme court has said, no one single factor is
dispositive, as “the question of whether a duty should be imposed in
a particular case is essentially one of fairness under contemporary
standards — whether reasonable persons would recognize a duty
and agree that it exists.” Taco Bell, 744 P.2d at 46. We address
each factor in turn.
29
B. DU Owed John a Duty of Care in Investigating and
Adjudicating the Allegations of Non-Consensual Sexual
Contact9
1. Application of the Westin Factors
a. The Risk Involved in DU’s Conduct
¶ 66 The risks involved in investigating and adjudicating claims of
non-consensual sexual contact are palpable and severe. A mere
allegation of sexual misconduct can be devastating to the accused.
A determination that a person engaged in non-consensual sexual
contact can potentially destroy the accused’s educational,
employment, and other future prospects. Here, DU found John
responsible for non-consensual sexual contact.
¶ 67 The OEO Procedures outline the range of possible outcomes
when a policy violation is found, stating that “violations of the
non-consensual sexual contact provision of these Procedures
typically result in a dismissal.” OEO Procedures at XIII.D. A
9This case requires us to decide if DU owed a tort duty to John.
We are not presented with a claim by Jane that DU owed any tort
duty to her. Therefore, we express no opinion on whether DU owed
a similar tort duty of care to an alleged victim of non-consensual
sexual contact. Nevertheless, we recognize the substantial risks to
both the alleged victim and the accused of an unfair investigation
and adjudication.
30
student who is dismissed “is permanently prohibited from
participating in any University activities, academic or otherwise,
and will be restricted from all University Premises and activities.”
Id. Additionally, “Student Conduct files of students who have been
dismissed from the University will be kept indefinitely” and may be
provided to educational institutions, employers, or others. Id. at
XIII.H.
¶ 68 We are hard pressed to find another activity by a private
educational institution that can be so devastating and long-lasting
in the life of a student.
b. The Foreseeability and Likelihood of Injury Weighed Against
the Social Utility of DU’s Conduct
¶ 69 Injuries resulting from procedurally faulty investigations and
adjudications of allegations of non-consensual sexual contact are
foreseeable and likely. Under the foreseeability factor, “it is not
necessary that the tortfeasor be able to foresee the exact nature and
extent of the injuries or the precise manner in which the injuries
occur, but only that some injury will likely result in some manner
as a consequence of his negligent acts.” HealthONE, 50 P.3d at
889. Indeed, here, such injury to a student resulting from a
31
negligently handled investigation is foreseeable. “When a university
levies charges against a student without proper investigation or
allows a biased committee to decide the student’s guilt, the
foreseeability of harm to the student is great.” Scott R. Sinson,
Note, Judicial Intervention of Private University Expulsions:
Traditional Remedies and a Solution Sounding in Tort, 46 Drake L.
Rev. 195, 226 (1997).
¶ 70 A student who is dismissed after the culmination of a partial
or unfair investigation will likely suffer a diminished earning
capacity and stigma from the expulsion, and may be prevented from
engaging in their chosen profession. See Jansen v. Emory Univ.,
440 F. Supp. 1060, 1062 (N.D. Ga. 1977) (“Since his dismissal, the
plaintiff has applied to and been rejected by every dental school in
the United States, Canada and Puerto Rico.”), aff’d, 579 F.2d 45(5th Cir. 1978).
¶ 71 On the other hand, the social utility of investigations and
adjudications of allegations of non-consensual sexual contact is
significant. Private educational institutions have a substantial
interest in protecting their students and preventing those who
32
engage in non-consensual sexual contact from using their facilities
or interacting with other students.
¶ 72 Congress enacted Title IX with the express goal that “[n]o
person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
Federal financial assistance.” 20 U.S.C. § 1681(a). Title IX’s
implementing regulations provide a grievance process for formal
complaints of sexual harassment. 34 C.F.R. § 106.45 (2021).
¶ 73 When we weigh the significant foreseeability and likelihood of
injury against the significant social utility, we conclude on balance
that “the seriousness of the potential harm militates in favor of
imposing a duty.” Westin, ¶ 35.
c. The Magnitude of the Burden of Guarding Against the Injury
¶ 74 The magnitude of the burden imposed on DU of guarding
against the injury is significant. Training employees to use fair
procedures in investigating and adjudicating allegations of
non-consensual sexual contact and overseeing such investigations
and adjudications demands both economic and personnel
resources.
33
¶ 75 Accordingly, this factor weighs against recognizing a duty of
care.
d. The Consequences of Placing the Burden on DU
¶ 76 In applying this factor, the Taco Bell court explained that the
consequences of placing the burden of taking reasonable measures
to protect restaurant patrons from criminal acts of third persons
“would result in some economic burden on Taco Bell and a
predictable corresponding increase to customers in the cost of Taco
Bell’s food products.” 744 P.2d at 49. The reasonable measures in
Taco Bell included “making sure the restaurant is well illuminated,
installing highly visible video cameras, keeping small amounts of
cash in the registers, posting signs,” training employees, and
locking doors at night. Id. The court concluded it was equitable for
the costs of these reasonable measures to “be borne by the owner,
operator, and, indirectly, the customers of the restaurant.” Id.
¶ 77 Likewise, here, the burden of imposing a duty to use fair
procedures when investigating and adjudicating claims of improper
sexual conduct by students will undoubtedly result in an economic
and personnel burden on DU. For example, DU might be required
to provide additional training and resources to, and maintain
34
oversight over, its employees, particularly because the
investigations may be lengthy and the persons conducting them
must exercise discretion in the performance of their duties. As in
Taco Bell, it is equitable for these costs to be borne by DU and,
indirectly, DU’s students. Just as Taco Bell was the only actor able
to take reasonable measures to protect patrons from the criminal
acts of third persons, DU is the only actor able to ensure that its
investigation and adjudication of a student are fair and impartial.
¶ 78 The consequences of placing the burden on DU weigh in favor
of recognizing a duty to adopt fair procedures and to implement
those procedures with reasonable care in the investigation and
adjudication of allegations of non-consensual sexual contact.
e. Weighing of the Relevant Factors
¶ 79 Although the magnitude of the burden of guarding against the
injury is significant, it does not outweigh the severe risk of harm
inherent in DU’s conduct, the foreseeability and likelihood of injury
to a student weighed against the social utility of DU’s conduct, and
the consequences of placing the burden on DU. Accordingly, we
apply supreme court case law on this question and conclude that
DU had a duty to adopt fair procedures and to implement those
35
procedures with reasonable care in the investigation and
adjudication of allegations that John committed non-consensual
sexual contact.10
2. Cases from Other Jurisdictions Support our Conclusion and
Those that Don’t are Distinguishable
¶ 80 No Colorado appellate court has previously addressed whether
a duty of care arises in these circumstances. But courts in other
jurisdictions have. Those courts have found the consequences of
adjudications of far less serious misconduct sufficient to support
the imposition of a tort duty of care.
10 In Westin Operator, LLC v. Groh, 2015 CO 25, ¶¶ 32, 37, the
supreme court relied both on the similarity of the innkeeper-guest
special relationship to the hotel-guest relationship and the duty
factors to conclude that “the Westin had a duty to exercise
reasonable care while evicting Groh.” In the context of rejecting a
duty of care in a case involving a fraternity member using a
trampoline at a fraternity house, which leased the property from
DU, the Colorado Supreme Court held that “the student-university
relationship is not a special relationship.” Univ. of Denver v.
Whitlock, 744 P.2d 54, 58, 61 (Colo. 1987) (quoting Leake v. Cain,
720 P.2d 152, 160 (Colo. 1986)). But, even absent a special
relationship, we conclude that the duty factors weigh in favor of
recognizing a duty of care by DU. See Westin, ¶ 25 (a duty can
arise from the nature of the relationship between the parties, or
application of public policy factors, or both); see also HealthONE v.
Rodriguez, 50 P.3d 879, 888-90 (Colo. 2002) (finding a duty of care
notwithstanding the fact that the plaintiff and physician did not
have a physician-patient relationship).
36
¶ 81 In the academic misconduct context, the United States Court
of Appeals for the Sixth Circuit reversed summary judgment on the
plaintiff’s claim, holding that the gravity of the harm posed by the
professor’s grading system was severe and that “a wrongful
conviction by a disciplinary committee could ruin a student’s
chances of admittance to graduate school.” Atria v. Vanderbilt
Univ., 142 F. App’x 246, 252 (6th Cir. 2005). The risks involved in
investigating and adjudicating claims of non-consensual sexual
contact are far more severe than the risks posed by the professor’s
grading system in Atria.
¶ 82 Apparently applying factors similar to those set forth by the
Colorado Supreme Court in Westin, the United States District Court
for the Eastern District of Tennessee denied the defendants’ motion
for summary judgment on the plaintiff’s negligence claim because
“a jury could find that the harm caused by the University’s allegedly
and arguably haphazard implementation of its own Sexual Assault
Policies was foreseeable, especially where . . . the harm was severe:
a wrongful conviction by a disciplinary committee.” See Doe v. Univ.
of S., No. 4:09-CV-62, 2011 WL 1258104, at *21 (E.D. Tenn. Mar.
31, 2011) (unpublished opinion).
37
¶ 83 Other courts have dismissed tort claims by students claiming
they were wrongly disciplined for sexual misconduct and that the
educational institutions did not properly apply their policies,
concluding that the defendants owed the students no duty of care.
Doe v. Columbia Coll. Chi., 299 F. Supp. 3d 939, 962 (N.D. Ill.
2017), aff’d, 933 F.3d 849 (7th Cir. 2019); Jackson v. Liberty Univ.,
No. 6:17-CV-00041, 2017 WL 3326972, at *9 (W.D. Va. Aug. 3,
2017) (unpublished opinion); Amherst Coll., 238 F. Supp. 3d at 228.
¶ 84 Those courts largely rely on the common law principle that,
absent a special relationship, a party owes no duty of care to
protect another from the harmful or criminal acts of third persons.
Columbia Coll. Chi., 299 F. Supp. 3d at 962; Jackson, 2017 WL
3326972, at *9; Amherst Coll., 238 F. Supp. 3d at 228.
¶ 85 Those cases are inapposite because John does not allege that
DU had a duty to protect him from the harmful or criminal acts of
third persons. Instead, he alleges that DU itself harmed him by
negligently conducting the investigation and determining that he
engaged in non-consensual sexual contact.
¶ 86 Even assuming these cases rejected the imposition of a duty
owed to a student being disciplined due to a negligent investigation,
38
the supreme court has provided binding guidance on the relevant
factors to be applied to ascertain whether such a tort duty exists.
Westin, ¶ 25.
3. DU’s Arguments Do Not Support the District Court’s Dismissal
of the Tort Claim Against DU
¶ 87 We reject DU’s argument that a duty of care should not be
recognized because “tort obligations generally arise from duties
imposed by law to protect citizens from risk of physical harm or
damage to their personal property.” BRW, Inc. v. Dufficy & Sons,
Inc., 99 P.3d 66, 72 (Colo. 2004). DU ignores the word “generally”
in that quote. It is indisputable that certain types of nonphysical
harm (like reputational harm) may be as devastating or serious as
physical harm. See, e.g., Gordon v. Boyles, 99 P.3d 75, 79 (Colo.
App. 2004) (holding that an allegation of an extramarital affair is an
allegation of serious sexual misconduct and, therefore, defamatory
per se). This is such a situation, and the “general” rule does not
prohibit the recognition of a tort duty in these circumstances.
¶ 88 DU also relies on Williams v. Continental Airlines, Inc., 943
P.2d 10, 15-16 (Colo. App. 1996), for the proposition that Colorado
does not recognize the tort of negligent investigation. Williams was
39
an employment case; it did not address a duty that an educational
institution may owe its students. Moreover, the Williams division
did not consider the factors the Colorado Supreme Court
articulated to determine the existence of a duty in tort. We are
bound by opinions of the Colorado Supreme Court, not opinions of
another division of this court. See In re Estate of Ramstetter, 2016
COA 81, ¶ 40; Campbell v. People, 2020 CO 49, ¶ 41. We must
apply the Westin factors.
¶ 89 We also reject DU’s argument that “[t]he sole purpose of DU’s
investigation into Jane’s allegations against John was for the
benefit of either [DU] or Jane.” See Columbia Coll. Chi., 299 F.
Supp. 3d at 963. This view of the investigation and adjudication
misses the relevant point entirely. When a university adjudicates
allegations of non-consensual sexual contact, the consequences of
that determination rest almost entirely on the student found
responsible. We acknowledge that the purpose of the investigation
can also be for the benefit of either DU or Jane (or both). But the
burden and detriment of an unfair investigation and adjudication is
borne almost entirely by John.
40
¶ 90 Nor are we prohibited from recognizing a duty of care in
non-consensual sexual contact investigations and adjudications
because of the courts’ uniform rejection of educational malpractice
claims. See, e.g., Tolman v. CenCor Career Colls., Inc., Div. of
CenCor, Inc., 851 P.2d 203, 205 (Colo. App. 1992) (holding that
there is no cause of action for educational malpractice), aff’d sub
nom. CenCor, Inc. v. Tolman, 868 P.2d 396 (Colo. 1994). Requiring
procedural fairness in the investigation and adjudication of
allegations of non-consensual sexual contact has little or nothing to
do with an amorphous claim of educational malpractice.
¶ 91 In this case, we determine as a matter of law that DU owed
John a duty in that his “interest that has been infringed by the
conduct of the defendant is entitled to legal protection.”
HealthONE, 50 P.3d at 888 (quoting Metro. Gas Repair Serv., Inc. v.
Kulik, 621 P.2d 313, 317 (Colo. 1980)).
¶ 92 For all of these reasons, we conclude that DU had a duty to
adopt fair procedures and to implement those procedures with
reasonable care in the investigation and adjudication of the
41
allegations against John.11 If DU adopts fair procedures and
implements those procedures with reasonable care, the outcome of
the investigation and adjudication is not open to question.
C. The Individual Defendants Did Not Owe John a Duty of Care
in Investigating and Adjudicating the Allegations of
Non-Consensual Sexual Contact
1. Application of the Westin Factors
¶ 93 In considering the first three Westin factors as to DU’s
trustees, employees, and agents, we come to the same conclusion
that we did with respect to DU. But, unlike our conclusion that the
consequences of placing the burden on DU weighed in favor of
recognizing a duty, we conclude that the consequences of placing
11 In concluding that DU had a duty to adopt fair procedures and
implement those procedures with reasonable care in the
investigation and adjudication of allegations that John committed
non-consensual sexual contact, we express no opinion on the
applicability of the economic loss rule. Though the defendants cite
Town of Alma v. AZCO Construction, Inc., 10 P.3d 1256, 1262 (Colo.
2000), in their answer brief for the proposition that “[a] breach of a
duty which arises under the provisions of a contract between the
parties must be redressed under contract, and a tort action will not
lie,” they do not argue on appeal that the economic loss rule applies
in this case. We do not address underdeveloped arguments.
Antolovich v. Brown Grp. Retail, Inc., 183 P.3d 582, 604 (Colo. App.
2007).
42
the burden on the individual defendants strongly weighs against
recognizing a tort duty.
¶ 94 Unlike DU (or Taco Bell), the individual defendants have no
opportunity to pass on the costs of this significant burden. See
Taco Bell, 744 P.2d at 49; see also Skillett v. Allstate Fire & Cas. Ins.
Co., 2022 CO 12, ¶ 16 (noting, in interpreting a statute, that it
would be odd to impose liability on insurance adjusters to insureds
where such adjusters are not party to the insurance policy).
Additionally, the consequences of placing the burden on the
individual defendants would only be of slight benefit because, as we
have already concluded, that burden already lies with DU.
¶ 95 Accordingly, we conclude that this factor weighs against
recognizing a duty of care.
2. Weighing the Relevant Factors
¶ 96 With respect to the individual defendants, although the risk
and the foreseeability and likelihood of injury from an unfair
investigation and adjudication remain high, the magnitude of the
burden and the consequences of placing that burden on the
individual defendants outweigh the other two factors. So, we
43
conclude that the individual defendants did not owe John a duty of
care.
¶ 97 Because the individual defendants did not owe John a duty of
care, John’s tort claim against the individual defendants necessarily
fails and the district court correctly granted summary judgment to
those defendants. See Westin, ¶ 23.
D. Genuine Issues of Material Fact Precluded Summary
Judgment on John’s Tort Claim Against DU
¶ 98 Having concluded that DU owed a duty of care in the course of
its investigations and adjudications of allegations of
non-consensual sexual contact, we turn to whether the record
permitted summary judgment in favor of DU. We hold that it did
not.
¶ 99 For many of the same reasons articulated above regarding
genuine issues of material fact relating to the contract claim,
including the Tenth Circuit’s analysis of genuine issues of material
fact related to John’s Title IX claim, we conclude that genuine
issues of material fact precluded summary judgment on John’s tort
claim against DU.
44
V. Disposition
¶ 100 The district court’s summary judgment is affirmed in part and
reversed in part. The district court’s summary judgment dismissing
John’s contract claim against DU is reversed, as is the summary
judgment dismissing John’s tort claim against DU. The district
court’s summary judgment in favor of DU’s trustees, employees,
and agents is affirmed. The case is remanded for further
proceedings consistent with this opinion.
JUDGE BROWN and JUDGE JOHNSON concur.
45