Volume 196 — Colorado Reports

1. <bold>TRIAL</bold> — <italic>Mistrial — Definition</italic>. A mistrial is an erroneous, invalid, or nugatory trial; it is a trial of an action which cannot stand in law because of want of jurisdiction, or a wrong drawing of jurors, or disregard of some other fundamental principle. 2. <bold>NEW TRIAL</bold> — <italic>Definition</italic>. A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury or court. 3. <bold>TRIAL</bold> — <italic>Mistrial — New Trial — Unlike</italic>. A mistrial and a new trial are unlike in both name and effect. A mistrial is equivalent to no trial; it is a nugatory trial. A new trial recognizes a completed trial which for<page_number>Page 64</page_number> sufficient reasons has been set aside so that the issues may be tried <italic>de</italic><italic>novo</italic>. 4. <bold>NEW TRIAL</bold> — <italic>Mistrial — Verdict — Trial Complete — Appellate Review —</italic><italic>Order</italic>. Prior to the entry of a verdict by a jury, a mistrial is procedurally correct; but once a verdict has been rendered, the trial is complete for purposes of appellate review, and a new trial motion can only result in the entry of an order for a new trial. 5. <italic>Motion — Initial Step — Appellate Process</italic>. A motion for new trial, although filed in the trial court, is the initial step in the appellate process. 6. <italic>Order — Reversal on Appeal — Similar — Speedy Trial — Six-Month —</italic><italic>Rule — Statute</italic>. A new trial order pursuant to a new trial motion is similar to a reversal on appeal for purposes of the speedy trial provisions and results in a six-month speedy trial period within the purview of Crim. P. 48(b)(2) and section <cross_reference>18-1-405</cross_reference>(2), C.R.S. 1973.

1. <bold>JUDGES</bold> — <italic>Motion to Disqualify — Prejudice — Timeliness — Legal</italic><italic>Sufficiency</italic>. When a party moves, pursuant to Crim. P. 21(b) and section<cross_reference>16-6-201</cross_reference>, C.R.S. 1973, to disqualify judge for prejudice, it is the judge's duty initially to consider the timeliness and legal sufficiency of the motion. 2. <italic>Truth or Falsity — Statements of Fact — Affidavits — Prohibited</italic>. The judge may not pass upon the truth or falsity of statements of fact in the motion to disqualify and supporting affidavits. 3. <italic>Motion to Disqualify — Timely — Grounds — Questions of Law —</italic><italic>Review</italic>. Whether the motion to disqualify judge is timely and whether it states legally adequate grounds for disqualification are questions of law subject to plenary review. 4. <italic>Motion to Disqualify — Legal Sufficiency — Motion and Affidavits —</italic><italic>True</italic>. For purposes of determining legal sufficiency of the motion to disqualify judge, the motion and affidavits must be considered at face value, <italic>i.e</italic>., the facts set out must be accepted as true. 5. <italic>Motion to Disqualify — Legal Sufficiency — Affidavits — Facts —</italic><italic>Bias or Prejudice</italic>. To be legally sufficient, the motion to disqualify judge and affidavits must state facts from which it may reasonably be inferred that the respondent judge has a bias or prejudice that will in all probability prevent him or her from dealing fairly with the petitioner. 6. <italic>Motion to Disqualify — Opinion or Conclusion — Unsubstantiated —</italic><italic>Insufficient</italic>. With regard to motion to disqualify judge, it is not sufficient merely to state an opinion or conclusion, unsubstantiated by supporting facts, that the respondent judge is biased. 7. <italic>Motion to Disqualify — Facts — Denied — Review — Face Value</italic>. Although many of the asserted facts in the motion to disqualify and affidavits have been denied or controverted by respondent judge, reviewing court must take them at face value for purposes of review.<page_number>Page 71</page_number> 8. <italic>Motion to Disqualify — Insufficient — Conclusory Statements — Bias</italic>. A motion to disqualify judge and affidavits are not sufficient if they contain only conclusory statements that the judge is biased. 9. <italic>Motion to Disqualify — Suspicion — Surmise — Speculation —</italic><italic>Conclusions — Substitute — Facts — Prohibited</italic>. In motion to disqualify judge, suspicion, surmise, speculation, rationalization, conjecture, innuendo, and statements of mere conclusions of the pleader may not be substituted for a statement of facts. 10. <italic>Disqualification — Subjective Conclusions — Discourteous or Rude —</italic><italic>Improper</italic>. It would not comport with sound judicial policy or the intent of Crim. P. 21(b) or section <cross_reference>16-6-201</cross_reference> to require disqualification of a judge solely on the basis of subjective conclusions that he or she was discourteous or rude; other than these conclusory impressions, the motion to disqualify and affidavits in instant case establish only that on a particularly busy day the respondent judge chose not to hear the petitioner's motion for a stay of execution, which was not on the docket for that day. 11. <italic>Decision — Administration — Undocketed Courtroom Business —</italic><italic>Inference of Prejudice — Disqualification — Negative</italic>. Because of pressing circumstances in instant case, it may have been an abuse of discretion not to hear petitioner's motion for a stay of execution of sentence that particular day, but any error which might have resulted was corrected by reviewing court's action in granting a stay; beyond that, reviewing court cannot opine that a decision regarding administration of undocketed courtroom business in and of itself warrants an inference of judicial prejudice; accordingly, reviewing court concludes that motion and affidavits, even if true, were legally insufficient to require respondent judge to disqualify herself.

1. <bold>HEALTH AND ENVIRONMENT</bold> — <italic>"Historical and/or Architectural Character" —</italic><italic>Ordinance — Sufficiently Definite — Constitutional</italic>. "Historical and/or architectural character" language of city's historical preservation ordinance, when considered in conjunction with objective factors contained in ordinance, and in context of the public purposes to be achieved, is sufficiently definite to pass constitutional muster; the ordinance contains<page_number>Page 90</page_number> sufficient standards to advise ordinary and reasonable men as to the type of conduct permitted, permits reasonable application by the Commission, and limits the Commission's discretionary powers. 2. <italic>Ordinances — Failure to Delineate — Areas — Certificate of</italic><italic>Appropriateness — Unreviewable Discretion — Void for Vagueness</italic>. Where city's historical preservation ordinances failed to delineate various relevant areas within the district and would thereby cause a reasonable property owner to be unable to reasonably ascertain the designs which would entitle him to a certificate of appropriateness from the Commission prior to construction of townhouses on his property, and would vest unreviewable discretion in the Commission, <italic>held</italic>, under such circumstances, the ordinances are void for vagueness; areas entitled to protection must be clearly delineated in the ordinance.

1. <bold>PRACTICE AND PROCEDURE</bold> — <italic>Rules — Liberally Construed — Just and</italic><italic>Speedy Determination</italic>. C.R.C.P. 1 mandates that rules of civil procedure be liberally construed to secure the just, speedy and inexpensive determination of every action. 2. <bold>DISCOVERY</bold> — <italic>Information — Relevant — Proceed — Without Interruption</italic>. Discovery procedures and depositions whose purpose is to secure information relevant to the subject matter of an action must be permitted and allowed to proceed without interruption or obstruction. 3. <italic>Question — Witness — Hospital Policies — Nurses — Objections — Not</italic><italic>Proper Basis — Protective Order — Admissible Evidence</italic>. In action against several physicians and a hospital for damages caused by alleged acts of negligence which eventually led to residual brain atrophy of patient, where question propounded to witness sought information regarding hospital policies and procedures concerning the duties and responsibilities of<page_number>Page 103</page_number> nurses, the objection that a proper foundation had not been laid for the question, that the question was formulated poorly, or that it sought evidence which would not be admissible at trial, is not a proper basis for obtaining a protective order from a trial court under the rules of civil procedure concerning the conduct of a deposition; thus, respondent court improperly precluded further discovery concerning information which — regardless of its admissibility at trial — was reasonably calculated to lead to the discovery of admissible evidence. 4. <italic>Regardless of Admissibility — Use — Trial — Preserve Objection —</italic><italic>Rules</italic>. The very purpose of C.R.C.P. 25(b)(1) is to permit the discovery of material regardless of its admissibility at trial; furthermore, should the deposition eventually be used at trial, the pertinent rules allow a party to preserve his objection for trial by simply objecting to the wording of the question at the time the deposition is taken. 5. <bold>MANDAMUS</bold> — <italic>Judicial Discretion — Abuse — Original Writ — Proper</italic>. In certain circumstances, as shown in instant case, where judicial discretion has been abused and the damage to a party could not be cured on appeal, an original writ in the nature of mandamus is a proper remedy. 6. <bold>DISCOVERY</bold> — <italic>Physicians — Hospital — Negligence — Question — Answer —</italic><italic>Denied — Abuse</italic>. In action against several physicians and a hospital for damages caused by alleged acts of negligence, where district court denied petitioners' (plaintiffs') motion to require a witness to answer a question regarding hospital policies and procedures concerning the duties and responsibilities of nurses, reviewing court concludes that trial court abused its discretion in denying petitioners' motion; accordingly, district court is ordered to vacate its denial of petitioners' motion and grant the motion, thus, compelling an answer to the question involved and related questions.

1. <bold>PERPETUITIES</bold> — <italic>Unreasonable Restraints — Alienation</italic>. With reference to section <cross_reference>38-30-165</cross_reference>, C.R.S. 1973 (1977 Supp.), pertaining to "Unreasonable restraints on the alienation of property," statutory paragraph, which provides that said section would not be applicable to instruments executed prior to July 1, 1975, was applicable to all paragraphs in the Act; moreover, according to the language of section <cross_reference>38-30-165</cross_reference> itself the use of the word "section" refers to the entire section, while parts (b) and (d) are denominated "paragraphs." 2. <bold>INTEREST</bold> — <italic>Section — Limit — Interest Rate — Loan — Inapplicable</italic>. The provisions of section <cross_reference>38-30-165</cross_reference>(1)(b), C.R.S. 1973 (1977 Supp.), which limit the amount that the interest rate on a loan secured by real estate can be increased are not applicable to instruments executed prior to July 1, 1975. 3. <bold>MORTGAGES</bold> — <italic>Increase — Interest Rate — Condition for Assumption —</italic><italic>Proper</italic>. Where deed of trust was executed in 1963, provisions of 1975 statute relating to unreasonable restraint on alienation of property and limiting increase of interest rate were not applicable to it and did not preclude lender from making an increase in the interest rate as a condition for assumption of the deed of trust. 4. <bold>APPEAL AND ERROR</bold> — <italic>Lower Court — Motion For New Trial — Not</italic><italic>Considered — — Not Reviewable</italic>. Generally, issues which were not considered by the lower court nor raised in a motion for a new trial are not properly reviewable on appeal.<page_number>Page 180</page_number>

1. <bold>WATER RIGHTS</bold> — <italic>Ground Water Management Act — Application — Utilized —</italic><italic>Land Designated — Statute — Authorization</italic>. Under section <cross_reference>37-90-107</cross_reference>(1), C.R.S. 1973, of the Colorado Ground Water Management Act, the amount of water applied for must only be utilized on the land designated on the application; also, the place of use must not be changed without first obtaining authorization from the Colorado Ground Water Commission. 2. <italic>Rule — Local District — Reasonable Regulation — Conserve Ground</italic><italic>Water — Protection</italic>. Rule 10 — one of the many rules adopted by the local district pursuant to its power to make reasonable rules and regulations in administering and enforcing the Ground Water Management Act — is a reasonable regulation designed to conserve the ground water in the Northern High Plains Basin; it is not arbitrary or capricious, but is reasonably designed to "protect several appropriators against unreasonable injury, foster the full economic development of designated ground water resources, and conserve designated ground water resources." 3. <italic>Ground Water — Permission — Change — Place of Use — Statute —</italic><italic>Authorization</italic>. Under section <cross_reference>37-90-107</cross_reference>(1), a change of place of use of ground water must first be authorized by the ground water commission. 4. <italic>Failure to Make — Written Request — Change — Place of Use — Oral —</italic><italic>Inappropriate — Denial — No Abuse</italic>. Where property owners did not make an application to the ground water commission for a change in "place of use" before commencement of district board hearing as required by statute, and where it was only during closing argument at hearing concerning their misuse of the ground water that they made an oral request for such change,<italic>held</italic>, under these circumstances, the matter was not properly before the district board for its consideration and was not an issue to be decided by the district board; no ruling was made on the oral request and none was necessary in view of the inappropriate manner in which the matter was presented to the district board; there was no abuse of discretion in these circumstances.<page_number>Page 231</page_number> 5. <italic>Discretion — Board — Change — Place of Use — Rule — Disapproved —</italic><italic>Commission — Approval</italic>. To the extent that Rule 10 purports to vest in the district board discretion to allow a change of place of use of ground water to land other than that described in the permit, without prior commission approval, reviewing court disapproves the rule. 6. <italic>Conditional Permit — Beneficial Use — Failure to Perform —</italic><italic>Retroactive Legislation — Negative — Due Process</italic>. A conditional permit does not give the holder a perfected and indefeasible right to ground water; rather, the ground water must be put to a beneficial use before a valid right to water can arise; thus, where property owners in instant case did not put the water to beneficial use until after the effective dates of section <cross_reference>37-90-107</cross_reference>(1) and Rule 10, they are not — under such circumstances — victims of retroactive legislation in violation of the Due Process Clause.

1. <bold>WITNESSES</bold> — <italic>Statute — Device — Elicit Testimony — Grand Jury</italic>. Section<cross_reference>13-90-118</cross_reference>, C.R.S. 1973 provides a device to elicit testimony from a witness called before a court or grand jury. 2. <italic>Testimony — Necessary to Public Interest — Court — Grant — Immunity —</italic><italic>— Exceptions</italic>. Where the witness' testimony is "necessary to the public interest," the court may grant the witness immunity and order him to testify; the terms of the grant immunize the witness from prosecution or subjection to any penalty or forfeiture on account of his compulsory testimony except prosecution for perjury or contempt. 3. <italic>Immunity — Excused — Negative — Incrimination — Penalty or</italic><italic>Forfeiture</italic>. In return for the grant of transactional immunity, the witness shall not be excused from testifying on the grounds that the testimony required of him may tend to incriminate him or subject him to a penalty or forfeiture. 4. <italic>Immunity — Statute — Transactional</italic>. The immunity granted a witness under the statute, section <cross_reference>13-90-118</cross_reference>, C.R.S. 1973, is clearly and necessarily transactional. 5. <bold>CONTEMPT</bold> — <italic>Civil — Disobedience — Rules</italic>. The civil contempt provisions of the Colorado Rules of Civil Procedure, particularly Rule 107(a), expressly provide that disobedience of any person to any lawful order of the court shall constitute contempt. 6. <italic>Conduct — Not Personally Observed — Hearing — Necessary — Judge —</italic><italic>Aware — Summary Procedure — Appropriate</italic>. Where the judge did not personally observe the contemptuous conduct, a hearing is necessary to ascertain the facts of the occurrence and to permit the defendant to explain his behavior and offer evidence to mitigate the penalty; however, where the judge is aware of the contemptuous conduct from personal observation, where no justification exists for the contemptuous behavior, and where the penalty is not of the type that can be mitigated by any evidence offered, a full-fledged evidentiary hearing is not necessary; hence, in such circumstances, the summary procedure — as followed in this case — was appropriate.<page_number>Page 277</page_number> 7. <italic>Summary Procedure — Rules — Presence of Court — Due Process</italic>. The summary procedure authorized by C.R.C.P. 107(b) — pertaining to contempt committed in the presence of the court — and utilized in the present case complied fully with the requirements of constitutional due process. 8. <bold>CONSTITUTIONAL LAW</bold> — <italic>Due Process — Flexible Concept</italic>. Due process is a flexible concept, and procedures must be tailored to the exigencies of each factual setting. . <bold>GRAND JURY</bold> — <italic>Procedure Followed — Constitutional — Protection —</italic><italic>Testify — — Immunity</italic>. Where defendant's blanket refusal to testify was uncontradicted and unjustified and was observed first hand at specified proceeding by named judge, <italic>who was present with the grand jury</italic> in the courtroom, and where said judge thoroughly advised defendant of the protection afforded by a grant of immunity and of his obligation to testify and gave him a final opportunity to rethink his position, <italic>held</italic>, under these circumstances, the procedure followed by the judge was constitutionally sufficient. 10. <bold>CONTEMPT</bold> — <italic>Witness — Immunity — Refusal — Grand Jury — Fifth</italic><italic>Amendment — — Punishment — Rules</italic>. A witness who, despite recurring immunity, persists before a trial court judge in refusing on Fifth Amendment grounds to supply grand jury testimony, commits contempt "in the presence of the court" and may be punished summarily pursuant to C.R.C.P. 107(b). 11. <bold>CRIMINAL LAW</bold> — <italic>Imprisonment — Right to Counsel — Sixth Amendment —</italic><italic>United States Supreme Court</italic>. The United States Supreme Court has expressly guaranteed to a defendant the Sixth Amendment right to retained or appointed counsel, whenever imprisonment is imposed. 12. <bold>CONTEMPT</bold> — <italic>Civil — Incarceration — Refusal to Testify — Imprisonment —</italic><italic>Right to Counsel — Federal Courts</italic>. Labelling the contempt civil and conditioning the incarceration on a continued refusal to testify does not alter the burden of imprisonment; thus, the <italic>witness' right to counsel</italic> at these civil contempt proceedings has been upheld by various federal courts. 13. <italic>Right to Counsel — Colorado — Extended — All Proceedings —</italic><italic>Imprisonment of Witness</italic>. The right to counsel in Colorado must be extended to all contempt proceedings, whether labeled civil or criminal, which result in the imprisonment of the witness. 14. <italic>Refusal of Counsel — Harmless Error — Continuance Order — Attorney</italic><italic>Present</italic>. The refusal of certain named district judges to permit defendant's counsel to appear at the contempt proceedings was harmless error, since these proceedings did nothing more than continue an order made at the contempt proceeding before one of these judges on a specified date<italic>at which defendant's attorney was present</italic>. 15. <bold>APPEAL AND ERROR</bold> — <italic>Contempt — Exclusion — Portions of Record — Harmless</italic><italic>Error</italic>. Where appellant — who appealed judgment ordering his summary incarceration for contempt of court despite receiving a grant of transactional immunity — now challenges the trial court's decision to<page_number>Page 278</page_number> exclude portions of his designation of record, <italic>held</italic>, even if trial court's decision to exclude is erroneous, reviewing court is of the view that such error is harmless.

1. <bold>TRIAL</bold> — <italic>Evaluation — Quality — Fairness — Perfect — Negative — Goal —</italic><italic>Perfect Justice</italic>. In evaluating the quality of a trial for essential fairness, although an accused is entitled to a fair trial, he is not necessarily entitled to a perfect trial; this is not to say, however, that courts and prosecutors should not continually strive toward the achievement of the goal of perfect justice.<page_number>Page 341</page_number> 2. <bold>CRIMINAL EVIDENCE</bold> — <italic>Sufficiency — Review — Standard</italic>. In reviewing the sufficiency of the evidence, the standard for review is whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt. 3. <bold>HOMICIDE</bold> — <italic>Murder — Assault — Arson — Prima Facie Case — Prosecution —</italic><italic>Evidence</italic>. In prosecution for first-degree murder, first-degree assault, first-degree arson, and aggravated robbery, reviewing court holds that the prosecution met its burden of proving a prima facie case against the defendant; moreover, record reflects substantial evidence connecting defendant with the scene of the crime. 4. <bold>PROSECUTING ATTORNEYS</bold> — <italic>Question by Prosecutor — Unfair —</italic><italic>Insufficient — — New Trial</italic>. Although question asked by prosecutor — whether witness was ever with defendant when defendant was in process of killing somebody — in beginning his cross-examination of one of defendant's witnesses, was "manifestly improper," supreme court, however, in the circumstances of this case and in the absence of other prejudicial error, does not believe that the effect, if any, of the ill-framed question was of sufficient magnitude to require a new trial; of course, presuming that the jury followed the instruction of the court to disregard the improper question. 5. <bold>CRIMINAL EVIDENCE</bold> — <italic>Mustache — Korean Pastor — Folkways — Excluded —</italic><italic>Relevancy</italic>. Where trial court excluded the testimony of a Korean pastor proffered by defendant as to pastor's opinion, as a native Korean, that facial hair was culturally significant as mark of dignity, age, and respect in Korea, that it was a "folkway" in Korea, and that victim of crime, as a Korean, would have paid particular attention to mustache had one been worn by her assailant, <italic>held</italic>, in excluding this evidence in the context in which it was offered, trial court did not abuse its discretion: first, a proper foundation was not laid preparatory to the offering of the evidence; and second, absent a showing of victim's knowledge of this Korean "folkway" reviewing court fails to see how this aspect of Korean culture could be relevant to her ability to more accurately observe her assailant. 6. <bold>PROSECUTING ATTORNEYS</bold> — <italic>In-Court Identification — Assist-Witness —</italic><italic>Lack of Merit</italic>. In prosecution for first-degree murder, first-degree arson, first-degree assault, and aggravated robbery, contention of defendant — that the prosecutor improperly assisted victim, the sole identification victim, when she hesitated in making an in-court identification — is without merit, since what the prosecutor was attempting to do is essentially similar to requiring a defendant to stand, or to put on a garment, or to expose a tattoo on his body, as an aid to his identification; there was no denial of due process in manner in which in-court identification was handled by the prosecutor. 7. <bold>TRIAL</bold> — <italic>Murder — Arson — Assault — Robbery — Able Counsel —</italic><italic>Representation — Judge — Well-Controlled — Guilty</italic>. In prosecution for first-degree murder, first-degree arson, first-degree assault, and aggravated robbery, where record reflects that defendant was well-represented by able counsel, and the conduct of the trial was well-controlled by the presiding judge, <italic>held</italic>, under these circumstances,<page_number>Page 342</page_number> reviewing court finds no reason requiring that the guilty verdicts be overturned.

1. <bold>ROBBERY</bold> — <italic>Simple — Aggravated — Statutes — Violent Offender.</italic> "Robbery" as used in the violent offender statutes includes both simple robbery (section <cross_reference>18-4-301</cross_reference>, C.R.S. 1973) and aggravated robbery (section <cross_reference>18-4-302</cross_reference>, C.R.S. 1973) since they are but two degrees of the same offense. 2. <italic>Aggravated — "Crime of Violence" — Violent Offender Statute</italic>. Aggravated robbery is a "crime of violence" within the meaning of the violent offender statute, section <cross_reference>16-11-309</cross_reference>(2), C.R.S. 1973 (1976 Supp.). 3. <bold>CRIMINAL LAW</bold> — <italic>Equal Protection — Meaning — Same Conduct — Equal</italic><italic>Treatment</italic>. The equal protection clause requires that when essentially the same criminal conduct is involved all persons be treated equally in the guilt determination process. 4. <italic>Violent Offender Statute — Does Not Enhance Punishment — Equal</italic><italic>Protection</italic>. Violent offender statute does not enhance punishment because it mandates minimum sentencing, forecloses indeterminate sentencing, and precludes probation, nor does it increase term of allowable sentence under the statute defining substantive offense; hence, it is not violative of equal protection. 5. <italic>Violent Offender Statute — Contention of Vagueness — Lack of Merit</italic>. Violent offender statute is sufficiently definite to give reasonable notice of proscribed conduct to one who would avoid its application, to guide trial judge in its application, and to guide counsel in defending one charged with its violation; thus, defendant's contention — that the violent offender statute is unconstitutionally vague because it fails to explicitly include aggravated robbery within its ambit — is without merit. 6. <bold>ROBBERY</bold> — <italic>Aggravated — Sentencing — Violent Offender Statute — Equal</italic><italic>Protection — Conviction — Affirmed</italic>. Conviction of defendant for aggravated robbery, coupled with sentencing under violent offender statute, was not violative of defendant's right to equal protection; accordingly, the conviction is affirmed.<page_number>Page 350</page_number>

1. <bold>WORDS AND PHRASES</bold> — <italic>Letters of Credit — Use — Title Documents</italic>. Traditionally letters of credit have been used in sale of goods transactions where a seller demands that a buyer secure from a bank an irrevocable assurance of payment to seller, on behalf of buyer, upon condition that delivery be made to the bank of the documents specified in the letter of credit, usually title documents to the goods sold. 2. <bold>BANKS AND BANKING</bold> — <italic>Letter of Credit — Advantage</italic>. The advantage of the traditional letter of credit lies in the ease by which a bank meets its obligations; it simply acts on the basis of specified documents, thereby avoiding factual disputes over performance of the underlying transactions. 3. <italic>Letter of Credit — New Uses</italic>. Recent new uses of letter of credit indicate that they do not involve the passing of documents of title to the bank; rather, the bank's issuance of a letter of credit is secured by the promissory note of its customer on whose behalf the letter was issued. 4. <italic>Letter of Credit — Evidence — Custom and Usage — Properly Refused</italic>. In action by beneficiary against bank on irrevocable letter of credit, trial court acted properly in refusing to admit bank's proffered evidence of banking custom and usage to show that letter of credit in question was not the traditional documentary variety, but rather was a "guaranty of<page_number>Page 423</page_number> credit" requiring different documentation from that provided by lender; to arrive at a contrary conclusion and allow evidence of custom and usage to explain an unambiguous letter of credit — whether it be of the traditional or "guaranty" variety — would undermine the utility of the letter of credit as a stabilizing device in the business and commercial world. 5. <italic>Letter of Credit — U.C.C. — Definition — Proper</italic>. In action by beneficiary against bank on the latter's irrevocable letter of credit, the said letter of credit clearly falls within the ambit of Article 5 of the Uniform Commercial Code; it not only is a credit issued by a bank requiring a documentary demand but also conspicuously states that it is a letter of credit; moreover, it falls squarely within the definition of letter of credit as defined in section <cross_reference>4-5-103</cross_reference>(1)(a), C.R.S. 1973. 6. <italic>Letter of Credit — U.C.C. — Case Law — Transactions — No Bearing —</italic><italic>Primary Liability of Bank</italic>. In action by beneficiary against bank on the latter's irrevocable letter of credit, an analysis of relevant U.C.C. provisions and case law fully supports the conclusion that the transactions or contracts underlying the bank's issuance of the letter of credit have no bearing whatsoever on the bank's primary liability to the beneficiary of the letter. 7. <italic>Letter of Credit — Contract</italic>. The letter of credit is essentially a contract between the issuer and the beneficiary and is recognized by Article 5 of the U.C.C. as independent of the underlying contract between the customer and the beneficiary; thus, it is the primary obligation between the issuer-bank and the beneficiary. 8. <italic>Letter of Credit — Refusal to Honor — Bank — Waiver — Formal</italic><italic>Requirement of Draft</italic>. Where bank refused to honor demands on letter of credit on specified grounds, none of which included the absence of a draft,<italic>held</italic>, as such, bank, which issued letter of credit, waived formal requirement of draft.

1. <bold>ATTORNEYS AT LAW</bold> — <italic>Failure to File Suit — Statute of Limitations —</italic><italic>Conservator — Opening of Estate — Violation</italic>. Where attorney failed to file suit within period of statute of limitations, failed to have conservator appointed for client's estate, and further delayed opening of estate because client's new counsel had difficulty obtaining file from attorney,<italic>held</italic>, as such, attorney neglected legal matters entrusted to him in violation of DR6-101(A)(3) and thereby failed to act competently.<page_number>Page 459</page_number> 2. <italic>Delay — Transfer of Property — Filing Inheritance Tax Application —</italic><italic>Violation</italic>. Where attorney delayed transferring property in estate in manner directed by client, and delayed filing inheritance tax applications relating to simple, non-taxable estate, <italic>held</italic>, as such, attorney neglected legal matters entrusted to him in violation of DR6-101(A)(3) and thereby failed to act competently. 3. <italic>Findings — Evidence — Review</italic>. Where evidence in record supports finding that attorney-respondent knowingly gave false testimony before grievance committee, <italic>held</italic>, as such, its findings would not be disturbed on review by the supreme court. 4. <italic>Disbarment — Inconsistent — Reinstatement</italic>. Disbarment constitutes legal death and is inconsistent with the right to apply for reinstatement at any time that the attorney can present evidence of rehabilitation. 5. <italic>Supreme Court — Responsibility — Disciplinary Proceedings</italic>. The supreme court has, as part of its inherent powers, the ultimate and exclusive responsibility for the structure and administration of disciplinary proceedings against lawyers. 6. <italic>Disciplinary Proceedings — Basis — Facts — Standards — Determination</italic>. Each individual case involving disciplinary proceedings against attorneys must be determined on the basis of the facts in that case and the standards for discipline which have been established by the supreme court. 7. <italic>Grievance Committee — Report and Recommendations — Advisory —</italic><italic>Supreme Court — Power to Review — Sanctions — Increase or Decrease</italic>. The report and recommendations of the grievance committee are advisory, and the supreme court has the duty to review the recommendations and increase or decrease the sanction imposed by the committee. 8. <italic>Neglect and Failure — Complete Legal Services — False Testimony —</italic><italic>Suspended — Six Months — Right to Apply — Reinstatement — Evidence —</italic><italic>Rehabilitation</italic>. Attorney — who neglected and failed to complete legal services within a reasonable period of time and who gave false testimony to grievance committee thereby violating Code of Professional Responsibility — — is suspended for six months, assessed costs of proceedings, and given right to apply for reinstatement at such time, not less than six months from date of opinion, as he is able to present evidence of rehabilitation to justify reinstatement.