Opinion by Judge ASHBY . OPINION is modified as follows: Page 6, 11 currently reads: To the extent defendant argues on appeal that, regardless of the statute, Mr. Perna breached their contract and so we should apply basic rules of contract construction, we note that this issue was not argued before the district court. Thus, we will not address it. See People v. Salazar, 964 P.2d 502 , 507 (Colo. 1998) ("It is axiomatic that issues not raised in or decided by a lower court will not...
Opinion by JUDGE ASHBY . 1 Surety, Alfred Perna, appeals from the district court's order granting in part the motion of defendant, Thomas Fallis, for return of the bond premium. We vacate because we conclude that section 16-4-110, C.R.S. 2017, does not grant authority to the court to refund a bond premium under the circumstances of this case. I. Background 2 Defendant was charged and arrested for allegedly murdering his wife. The district court set a $500,000 bond. Defendant posted...
Opinion by JUDGE GRAHAM . 1 Defendant, Coleman Backstrom Stewart, appeals the judgment of conviction entered on jury verdicts finding him guilty of felony menacing and misdemeanor obstructing a peace officer. We conclude that there were a number of errors in the trial proceedings — two of them standing alone might serve as the basis for reversal, but collectively they clearly require that we reverse the conviction and remand for a new trial. I. Background 2 When an impetuous youth...
Opinion by JUDGE HARRIS . 1 In this condemnation action, respondent, DPG Farms, LLC (DPG), appeals from a judgment entered on a jury verdict after a valuation trial. The issue on appeal concerns the proper method for determining compensation when the condemned property, and portions of the remainder, are capable of producing income. 2 DPG argues that the district court erred in (1) determining as a matter of law that water storage was not the highest and best use of the property; (2)...
Opinion by JUDGE FOX . 1 Through their legal guardians, Xiuhtezcatl Martinez, Itzcuahtli Roske-Martinez, Sonora Brinkley, Aerielle Deering, Trinity Carter, and Emma Bray (collectively Petitioners), who reside and recreate in Colorado, appeal the district court's order and final judgment affirming a decision of the Colorado Oil and Gas Conservation Commission (the Commission) denying Petitioners' rulemaking petition. The American Petroleum Institute and the Colorado Petroleum Association...
Opinion by JUDGE FREYRE . 1 In this construction defect case involving a senior assisted and independent living facility (senior facility), we must decide whether the parties' contract or relevant Colorado statutes govern the accrual of defect claims. To do so, we must decide a matter of first impression — whether a senior facility constitutes "residential property" that is protected by a provision of the Construction Defect Action Reform Act (CDARA) entitled the "Homeowner Protection...
Opinion by JUDGE HARRIS . 1 The City of Lakewood (City) has an insurance policy that covers losses arising from the workers' compensation or employers' liability laws of any state on account of bodily injury to an employee. 2 After a City police officer was killed by friendly fire, his widow filed a lawsuit under 42 U.S.C. 1983 (2012), alleging that the City and various fellow officers had violated the deceased officer's rights under the Federal Constitution. The City sought...
Opinion by JUDGE FOX 1 In this C.A.R. 4.2 interlocutory appeal, defendant, the Air Quality Control Commission (the Commission), seeks review of the district court's order declining to dismiss the complaint of plaintiffs, Sterling Ethanol, LLC and Yuma Ethanol, LLC (collectively, Companies). 1 The complaint sought review of a May 19, 2016, Commission order affirming two adverse compliance orders that the Colorado Air and Pollution Control Division (the Division) had issued. Neither the...
