Lansford v. Poudre River

25CA0200 Lansford v Poudre River 03-05-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0200
Weld County District Court No. 22CV30450
Honorable Shannon D. Lyons, Judge

Zelma Lansford, individually and as personal representative for the Estate of
Harold Lansford, and Harold and Landford Trustees, Lansford Family Trust,
U/D/T January 3, 2020 F/B/O The Lansford Trust,

Plaintiffs-Appellants and Cross-Appellees,

v.

Poudre River Ranch Company Inc. and Ed Orr,

Defendants-Appellees and Cross-Appellants.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE LIPINSKY
Tow and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 5, 2026

Martinez Law Colorado, LLC, Anna N. Martinez, Denver, Colorado; Vanguard
Justice LLC, Elisabeth L. Owen, Denver, Colorado, for Plaintiffs-Appellants and
Cross-Appellees

Fox Rothschild LLP, Marsha M. Piccone, Risa B. Brown, Denver, Colorado;
Lasater & Martin, P.C., Janet B. Martin, Greenwood Village, Colorado, for
Defendants-Appellees and Cross-Appellants

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Harold and Zelma Lansford lived on property in Greeley (the

property) that their family trust — the Lansford Family Trust — had

purchased. The day after they moved in, Mr. Lansford saw water

flowing onto the property. In response, he contacted various

individuals, including a neighboring farmer, an employee of the City

of Greeley, and a representative of the developers of the Lansfords’

subdivision (the subdivision). But the water kept coming.

¶2 During a rainstorm thirteen years later, the water turned into

a torrent and the property was flooded. The Lansfords filed suit

against the developers of the subdivision, alleging that the

subdivision’s drainage facilities had design and construction

defects.

¶3 The case proceeded to trial. At the conclusion of trial, the jury

found in favor of the Lansfords. But the trial court took the case

away from the jury and entered a judgment notwithstanding the

verdict (JNOV) in favor of the developers after determining that the

Lansfords had waited too long to sue under the applicable statute of

limitations. The trial court concluded, however, that the applicable

statute of repose does not apply to developers.

1
¶4 Zelma Lansford, individually and as personal representative

for the Estate of Harold Lansford, and the Lansford Family Trust,

U/D/T January 3, 2020 F/B/O The Lansford Trust (jointly, the

Lansfords), appeal the trial court’s entry of JNOV in favor of the

developers — Poudre River Ranch Company Inc. and Ed Orr

(jointly, the Poudre defendants). In their cross-appeal, the Poudre

defendants argue that, even if we disagree with the trial court’s

analysis of the statute of limitations, the statute of repose for

construction defect actions bars the Lansfords’ claims and that the

trial court erred by entering judgment in favor of the Lansfords on

their noneconomic damage claims.

¶5 Applying the statute of repose, we affirm the trial court’s entry

of JNOV, albeit on different grounds.

I. Background

A. Facts

¶6 The Poudre defendants’ development work at the subdivision

included planning its infrastructure, which encompassed

“everything from [the location of] the streets and the sidewalks” to

where “the storm drains [would] go.” They determined “where

utilities and water, and sewer would hook up” so the lots in the

2
subdivision would be “permit ready” for the “homebuilders who

[would] come in and . . . construct home[s] for various

homebuyers.” Construction of the subdivision was substantially

completed in 2006.

¶7 In 2008, Zelma and Harold Lansford moved onto the property,

which was located in the subdivision. The next day, Mr. Lansford

saw a “noticeable” and “unrestrained flow” of water from the farm

“right into [the property’s] back yard.”

¶8 Water continued to flow onto the property without materially

damaging it until July 2021, when a ten-to-twenty-five-year flood

(the 2021 flood) caused water to pour into the property’s basement.

The basement filled with “six feet of water and mud,” and the force

of the onrushing water caused the door leading to the basement to

bend and break in half.

B. Procedural History

¶9 On June 29, 2022, the Lansfords sued the Poudre defendants

and others for allegedly designing and constructing defective

stormwater drainage facilities at the subdivision. (The Poudre

defendants were the only remaining defendants by the time of trial.)

The Lansfords pleaded claims for negligence, nuisance, and

3
trespass, in which they sought to recover the costs of remedying the

property damage caused by the 2021 flood.

1. The Trial

¶ 10 At the close of the Lansfords’ case, the Poudre defendants

moved for a directed verdict, asserting that the Lansfords’ claims

were time barred. (The Poudre defendants had previously asserted

their timeliness arguments in an unsuccessful motion for summary

judgment.) The Poudre defendants argued that, under the

Construction Defect Action Reform Act (CDARA), §§ 13-20-801

to -808, C.R.S. 2025, the Lansfords had been required to assert

their claims within two years of accrual. See § 13-80-104(1)(a),

C.R.S. 2025. According to the Poudre defendants, the Lansfords’

claims accrued when Mr. Lansford observed water flowing onto the

property thirteen years before the 2021 flood, and, for that reason,

the Lansfords filed their lawsuit years too late.

¶ 11 Alternatively, the Poudre defendants asserted that the

Lansfords’ claims were untimely under CDARA’s statute of repose,

section 13-80-104(1)(a). That subsection of the statute bars any

action against an “architect, contractor, builder or builder vendor,

engineer, or inspector performing or furnishing the design,

4
planning, supervision, inspection, construction, or observation of

construction of any improvement to real property” brought more

than six years “after the substantial completion of the improvement

to the real property.” § 13-80-104(1)(a).

¶ 12 In their response to the Poudre defendants’ motion for directed

verdict, the Lansfords argued, as relevant here, that CDARA’s

statute of repose does not apply to claims against real estate

developers like the Poudre defendants.

¶ 13 The trial court denied the Poudre defendants’ motion for

directed verdict, in relevant part. (The trial court dismissed the

Lansfords’ trespass claim because the evidence did not establish

they had been harmed through an intentional act.) The trial court

concluded that the Lansfords were entitled to a jury trial on their

CDARA claims and agreed with them that, although the Poudre

defendants were entitled to present their statute of limitations

defense to the jury, CDARA’s statute of repose did not apply to the

Poudre defendants because they were developers.

¶ 14 The jury found in favor of the Lansfords and awarded them

$140,000 for their economic losses and $750,000 for their

noneconomic losses. The jury also found that the statute of

5
limitations did not bar the Lansfords’ claims. The court did not

provide the jury with an instruction or a verdict form on the statute

of repose.

2. The JNOV Motion

¶ 15 In their motion for a JNOV, the Poudre defendants reiterated

their argument that the Lansfords’ claims were untimely under both

CDARA’s statute of limitations and statute of repose. In the

alternative, the Poudre defendants asserted that the jury’s award of

$750,000 in noneconomic damages to the Lansfords exceeded

CDARA’s damages cap.

3. The JNOV Order

¶ 16 In its order granting the JNOV motion, the trial court reversed

course on the applicability of CDARA’s statute of limitations. The

trial court concluded that it had erred by denying the Poudre

defendants’ motion for directed verdict. It found that the Lansfords’

claims were untimely under CDARA’s statute of limitations.

However, the trial court reaffirmed its prior determination that “the

statute of repose is not a defense available for developers” like the

Poudre defendants.

6
¶ 17 The trial court then vacated the jury verdict and entered

judgment in favor of the Poudre defendants. In light of its

determination that the CDARA statute of limitations barred the

Lansfords’ claims, the court did not reach the Poudre defendants’

argument regarding the statutory cap on noneconomic damages in

CDARA cases.

C. This Appeal

¶ 18 On appeal, the Lansfords challenge the trial court’s grant of

JNOV because the jury verdict was “well-supported by evidence.” In

addition, the Lansfords contend that the trial judge created the

appearance of bias or was actually biased when he entered the

JNOV because of his alleged “close relationship” with the Poudre

defendants.

¶ 19 In a cross-appeal, the Poudre defendants argue, as relevant

here, that the trial court erred by not applying CDARA’s six-year

statute of repose as an alternative ground for concluding that the

Lansfords’ claims were untimely. Further, the Poudre defendants

assert that, if we reverse and reinstate the jury verdict and remand

the case to the trial court, we should instruct the trial court to cap

7
the Lansfords’ noneconomic damages award at the statutory

maximum.

II. Analysis

A. JNOV

1. Standard of Review

¶ 20 Under C.R.C.P. 59(e), a court may grant a JNOV in the

absence of a “genuine issue as to any material fact and [if] the

moving party [is] entitled to judgment as a matter of law.” C.R.C.P.

59(e)(2).

¶ 21 Because the facts underlying the JNOV order are undisputed,

we review de novo the trial court’s ruling on the JNOV motion. See

M.G. Dyess, Inc. v. MarkWest Liberty Midstream & Res., L.L.C., 2022

COA 108, ¶ 27, 522 P.3d 204, 211.

2. Preservation

¶ 22 Before we address the merits of the Poudre defendants’ statute

of repose argument, we turn to the Lansfords’ contention that the

Poudre defendants failed to preserve — and therefore waived — that

argument. The Lansfords assert that the Poudre defendants are

precluded from arguing the statute of repose on appeal because

8
they did not request a jury instruction or a verdict on their statute

of repose affirmative defense. We disagree.

¶ 23 The Poudre defendants are entitled to raise the statute of

repose on appeal because they pleaded it in their answer and

presented arguments regarding it in their motion for a directed

verdict. By raising the issue in that motion, the Poudre defendants

properly gave the trial court an opportunity to rule on the statute’s

applicability (and the court did so). See Tisch v. Tisch, 2019 COA

41, ¶ 48, 439 P.3d 89, 102 (To preserve an issue brought “in a

denied motion for summary judgment, a party must raise the issue

in a motion for a directed verdict or [JNOV] during trial. Put

differently, the party must give the trial court an opportunity to rule

on the issue as a matter of law at trial.” (citation omitted)). The

Poudre defendants were not required to raise the issue again in the

trial court after presenting it in their motion for a directed verdict.

See Maes v. Lakeview Assocs., Ltd., 892 P.2d 375, 376 (Colo. App.

1994) (“A party is not required to prepare and submit jury

instructions which are in conflict with a pre-trial ruling or otherwise

continuously object during trial to preserve a pre-trial ruling for

appeal.”), aff’d, 907 P.2d 580 (Colo. 1995).

9
¶ 24 Accordingly, we now turn to the merits of the Poudre

defendants’ statute of repose argument.

3. The CDARA Statute of Repose Bars
the Lansfords’ Claims

¶ 25 The Lansfords contend that the trial court erred by granting

the JNOV motion for two reasons — (1) because the jury reasonably

found that the Poudre defendants failed to prove their statute of

limitations defense and (2) because the design and construction

defects that caused the Lansfords’ damages were latent or not

discoverable by reasonable inspection. We disagree that the trial

court erred, but for reasons different from those supporting the

JNOV order.

¶ 26 CDARA applies to “civil action[s] . . . brought against a

construction professional . . . for damages or loss to, or the loss of

use of, real or personal property or personal injury caused by a

defect in the design or construction of an improvement to real

property.” § 13-20-802.5(1), C.R.S. 2025. In enacting CDARA, the

General Assembly sought to “streamlin[e] construction litigation,”

Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1190 (Colo.

2010), and to “encourage the timely resolution of construction

10
disputes,” Thermo Dev., Inc. v. Cent. Masonry Corp., 195 P.3d 1166,

1170 (Colo. App. 2008), overruled on other grounds by, Goodman v.

Heritage Builders, Inc., 2017 CO 13, 390 P.3d 398.

¶ 27 Section 13-80-104(1)(a) specifies that “in no case shall . . . an

action” against “any architect, contractor, builder or builder vendor,

engineer, or inspector performing or furnishing the design,

planning, supervision, inspection, construction, or observation of

construction of any improvement to real property” be brought “more

than six years after the substantial completion of the improvement

to the real property.” (The limited exception applicable to “cause[s]

of action aris[ing] during the fifth or sixth year after substantial

completion of the improvement to real property,” § 13-80-104(2),

does not apply here.)

¶ 28 Unlike a statute of limitations, which “takes effect when a

claim arises, . . . a statute of repose bars the bringing of a suit after

a set period of time, regardless whether an injury has occurred or a

claim has arisen.” Two Denv. Highlands Ltd. Liab. Ltd. P’ship v.

Stanley Structures, Inc., 12 P.3d 819, 821 (Colo. App. 2000); see

Lewis v. Taylor, 2016 CO 48, ¶ 22, 375 P.3d 1205, 1209 (A statute

of repose “limits the right to bring a claim to a specific time period

11
that begins to run not when the claim accrues, but when the

defendant’s last culpable act or omission takes place.”).

¶ 29 Because there is no dispute that the Lansfords filed their

lawsuit against the Poudre defendants more than six years after

substantial completion of the subdivision, their CDARA claims are

barred if the statute of repose applies to the Poudre defendants.

¶ 30 In the JNOV order, the trial court determined that the General

Assembly intentionally omitted “developers” from the list of possible

defendants in section 13-80-104(1)(a). The court said that the

General Assembly was “aware of the distinction between developers

and the other construction professionals identified in the statute of

repose because it included ‘developer’ among the professionals

listed under the definition of ‘constructional [sic] professional’” in

section 13-20-802.5(4).

¶ 31 Thus, in the trial court’s view, the General Assembly

purposefully excluded developers from section 13-80-104 because it

“could have, if it intended, included ‘developer’ among the other

professionals listed in the statute of repose.” The trial court noted

that, alternatively, the General Assembly “could have simply used

the phrase, ‘all actions against any constructional [sic] professional

12
as defined at [section] 13-20-802.5(4)’” in section 13-80-104(1)(a),

which “would have been simpler and included all construction

professionals, including developers.”

¶ 32 For these reasons, the trial court concluded that “the statute

of repose is not a defense available for developers, even though it is

available to other professionals engaged in the construction of

improvements to real property.”

¶ 33 Although the trial court’s textual analysis is not an

unreasonable reading of CDARA, the court was not writing on a

blank slate. The decisions interpreting the statute of repose,

including a decision by the Colorado Supreme Court, make clear

that its applicability does not hinge on whether a defendant comes

within the list of entities contained in section 13-80-104(1)(a) but,

instead, whether the plaintiff is seeking a remedy for construction

defects. CDARA “was intended to limit actions against building

professionals . . . for claims of injury arising from defects in the

improvement they create.” Irwin v. Elam Constr., Inc., 793 P.2d

609, 611 (Colo. App. 1990) (emphasis added). “The conduct at

issue must originate from an activity that the statute was designed

to protect, namely, the process of building an improvement to real

13
property.” Two Denv. Highlands Ltd. Liab. Ltd. P’ship, 12 P.3d at

821.

¶ 34 Two Denver Highlands concerned claims against the company

that had “designed, manufactured, and installed precast concrete

products for use in the structural framework” of the plaintiff’s

parking garage. Id. at 820. The plaintiff garage owner sued the

defendant after discovering that certain of the concrete products

used in the construction of the parking garage were defective and

consequently rendered the garage unstable. Id. The defendant

moved for summary judgment, arguing that CDARA’s statute of

repose barred the plaintiff’s action. Id. at 820-21. The district

court agreed and granted the motion. Id. at 821. The garage owner

appealed. Id.

¶ 35 The central issue in the appeal was “whether a manufacturer

who has also designed and installed an allegedly defective product

in an improvement to real property is exempt from liability under

[the CDARA statute of repose] six years after the substantial

completion of the improvement.” Id. at 822.

¶ 36 The division affirmed after concluding that the statute of

repose applies to claims asserted against defendants “involved in

14
the actual process of construction” and that a defendant’s

“designation alone, such as ‘manufacturer,’ does not determine

whether [that] defendant is protected. A court must examine the

activities performed by the defendant in the building process.” Id.

The division explained that, “[u]nder this ‘activity analysis,’ a court

must not only examine the label placed on a party who was involved

in the building process but must also look to whether that

individual’s actions f[e]ll within the statute’s protected class of

activities.” Id. at 823.

¶ 37 Applying this functional approach, the division noted “it is

undisputed that although defendant was the manufacturer of the

product, it also engaged in a substantial off-site and on-site role in

the construction of the garage. . . . Experts for both parties agreed

that defendant, using the products it manufactured, had erected

the garage.” Id. The division concluded that the defendant’s

actions “fell within the class of activities delineated in [section]

13-80-104, specifically, ‘design’ and ‘construction’ of an

improvement to real property” and that, accordingly, the defendant

was “one of the persons specified in [section] 13-80-104, a

‘builder.’” Id. For these reasons, the division affirmed the trial

15
court’s determination that “defendant was protected by the

construction statute of repose.” Id.

¶ 38 The supreme court’s interpretation of the statute of repose in

Anderson v. M.W. Kellogg Co., 766 P.2d 637, 640-41 (Colo. 1988),

informed the division’s analysis in Two Denver Highlands.

Anderson arose from an accident in which the plaintiff was

seriously injured when his arm was caught in a conveyor at the

manufacturing plant where he worked. Id. at 639. The defendant’s

predecessor in interest “performed the engineering, design, and

construction management for the entire . . . plant, including the

construction of the . . . conveyor.” Id. The conveyor went into

operation twenty years before the accident. Id.

¶ 39 The defendant successfully moved for summary judgment

premised on, among other theories, its argument that the CDARA

statute of repose barred the plaintiff’s claims. Id. On appeal, the

plaintiff argued, as relevant here, that the statute of repose did not

apply to manufacturers such as the defendant because it did not

include manufacturers in its “list of protected persons.” Id. at 641.

¶ 40 The supreme court disagreed and focused on whether the

defendant had engaged in the type of conduct described in the

16
statute. “We need not be concerned with attempting to define any

subtle distinctions between the defendant’s role as a ‘manufacturer’

of the conveyor and its conduct as a ‘contractor’ or ‘builder’ of the

conveyor” because the defendant “was performing exactly the

conduct described by the statute: ‘furnishing the design, planning,

supervision, inspection, construction, or observation of

construction of . . . [an] improvement to real property.’” Id. (quoting

§ 13-80-127(1)(a), C.R.S. 1985 (current version at § 13-80-104)).

¶ 41 Turning to the evidence regarding the defendant’s activities at

the plant, the supreme court observed that the defendant “acted as

both a general contractor and engineer for the construction of the

plant[;] contracted out much of the construction work for the . . .

conveyor”; and “exercised control and supervision over the design,

construction, assembly, and installation of the . . . conveyor.” Id.

Accordingly, the supreme court concluded that CDARA’s statute of

repose barred the plaintiff’s claims. See id.

¶ 42 Following the reasoning of Two Denver Highlands and

Anderson, we hold that the Lansfords’ claims are subject to the

CDARA statute of repose. They sought a remedy for the Poudre

defendants’ alleged negligent design and construction of the

17
subdivision’s drainage facilities. CDARA applies to claims arising

from this type of activity — “actual construction, or modification of

construction, of an improvement to real property.” Gleason v.

Becker-Johnson Assocs., Inc., 916 P.2d 662, 665 (Colo. App. 1996).

Moreover, as noted above, the undisputed evidence at trial

established that the Poudre defendants planned the subdivision’s

infrastructure, including its drainage facilities, so the subdivision’s

lots would be “permit ready” for the homebuilders. As Orr testified,

the Poudre defendants “[laid] out all of the infrastructure for [the

homebuilders] to come and build the homes” on the subdivision’s

lots.

¶ 43 Accordingly, the Poudre defendants were entitled to JNOV

because the CDARA statute of repose barred the Lansfords’ claims.

Thus, we affirm the trial court’s grant of JNOV, albeit on different

grounds from those underlying the JNOV order. In light of this

determination, we need not address the Poudre defendants’

arguments regarding the statute of limitations and the Lansfords’

noneconomic damages claim.

18
B. Judicial Bias

1. Standard of Review

¶ 44 “In a civil case, the trial judge’s decision whether to disqualify

himself . . . is discretionary and will not be reversed unless an

abuse of discretion is shown.” Black v. Black, 2020 COA 64M,

¶ 118, 482 P.3d 460, 485 (quoting Zoline v. Telluride Lodge Ass’n,

732 P.2d 635, 639 (Colo. 1987)).

2. Applicable Law

¶ 45 C.R.C.P. 97 states, in relevant part, that “[a] judge shall be

disqualified in an action in which he is interested or prejudiced . . .

or is so related or connected with any party or his attorney as to

render it improper for him to sit on the trial, appeal, or other

proceeding therein.” The Rule is consistent with the principle that

“[a] judge must not preside over a case if [the judge] is unable to be

impartial.” People in Interest of A.P., 2022 CO 24, ¶ 25, 526 P.3d

177, 183. “But, ‘[u]nless a reasonable person could infer that the

judge would in all probability be prejudiced against [a party], the

judge’s duty is to sit on the case.’” Id. (quoting Smith v. Dist. Ct.,

629 P.2d 1055, 1056 (Colo. 1981)).

19
¶ 46 A judge may be disqualified for perceived bias or actual bias.

“Under C.R.C.P. 97, disqualification is appropriate when the motion

and supporting affidavits allege sufficient facts from which it may

reasonably be inferred that the judge is prejudiced or biased, or

appears to be prejudiced or biased, against a party or counsel to the

litigation.” Bocian v. Owners Ins. Co., 2020 COA 98, ¶ 13, 482 P.3d

502, 509. “The record must clearly demonstrate the alleged bias;

mere speculative statements and conclusions aren’t enough.”

People v. Jones, 2025 COA 43, ¶ 35, 571 P.3d 947, 955 (cert.

granted Jan. 20, 2026); see Bocian, ¶ 15, 482 P.3d at 509 (“Where

the motion and supporting affidavits merely allege opinions or

conclusions, unsubstantiated by facts supporting a reasonable

inference of actual or apparent bias or prejudice, they are not

legally sufficient to require disqualification.”); People v. Schupper,

2014 COA 80M, ¶ 59, 353 P.3d 880, 894-95 (For bias to warrant

reversal, the “record must clearly establish bias,” meaning that

“more than mere speculation concerning the possibility of prejudice

must be demonstrated.” (quoting People v. Coria, 937 P.2d 386, 391

(Colo. 1997))).

20
¶ 47 When a party moves for disqualification based on the judge’s

actual bias, “the focus must be ‘on the subjective motivations of the

judge.’” Rea v. Corr. Corp. of Am., 2012 COA 11, ¶ 24, 272 P.3d

1143, 1147 (quoting People in Interest of A.G., 262 P.3d 646, 651

(Colo. 2011)). “To disqualify a judge for actual bias, a party must

show that the judge had a ‘substantial bent of mind against him,’”

Jones, ¶ 35, 571 P.3d at 955 (quoting People v. Drake, 748 P.2d

1237, 1249 (Colo. 1988)), or a “deep-seated favoritism or

antagonism that would make fair judgment impossible,” id. (quoting

People in Interest of A.P., ¶ 31, 526 P.3d at 184). In short, “[a]ctual

bias exists if ‘a judge has a bias or prejudice that in all probability

will prevent him . . . from dealing fairly with a party.’” Bocian, ¶ 14,

482 P.3d at 509 (quoting People v. Julien, 47 P.3d 1194, 1197 (Colo.

2002)).

¶ 48 A party may waive a perceived basis claim but not an actual

bias claim. People in Interest of A.G., 262 P.3d at 650; see Jones,

¶ 34, 571 P.3d at 955 (When “defense counsel doesn’t move for

disqualification, the defendant waives any argument that the judge

should have disqualified himself based on an appearance of

impropriety, and [the appellate court] review[s] only for actual

21
bias.”); Rea, ¶ 22, 272 P.3d at 1147 (“Disqualification for an

appearance of impropriety must be distinguished from

disqualification for actual bias. While the former may be waived,

the latter may not.”).

3. Additional Facts

¶ 49 One week before trial, the Poudre defendants’ counsel learned

that the trial judge lived in the same subdivision as the Lansfords

and had purchased his home from Poudre River Ranch Company.

The Poudre defendants’ counsel disclosed this information to the

Lansfords’ counsel and asked the trial court to set a hearing on the

matter.

¶ 50 The trial court attempted to conduct a virtual hearing on the

bias issue, but an electrical outage disrupted it. “In recognition of

the short time between [the failed virtual hearing] and the beginning

of trial,” the trial judge issued an order (the disclosure order)

explaining his home purchase from Poudre River Ranch in 2003

and his lack of interactions with Orr. In the disclosure order, the

trial judge reported the following:

I do not know [the Lansfords] and have not
had occasion to interact with them. To the
best of my knowledge, we have never met.

22
Their home is located about four blocks from
my home, in a part of the subdivision that was
developed several years after the majority of
homes on my street. My home has never
flooded. . . . Prior to the filing of this case, I
was unaware of the flooding event described in
the [c]omplaint.

Long before [the Poudre defendants] raised the
[bias] issue, the [c]ourt considered whether
either C.R.C.P. 97 or the Code of Judicial
Conduct Canon 2.11 suggested that
disqualification might be required. The [c]ourt
was satisfied, and remains so, that a
20[-]year[-]old arms-length business
transaction with [the Poudre defendants] and
shared residence in the same neighborhood as
[the Lansfords] is not grounds for
disqualification under either the Rule or the
judicial canons.

In addition, the trial court offered to “entertain additional

questions” on the bias issue on the morning of trial.

¶ 51 But the Lansfords did not raise any questions concerning the

trial judge’s possible bias on the morning of trial and did not move

to disqualify him until two weeks after the trial court granted the

JNOV. (In the motion to disqualify, the Lansfords also requested

that the trial court vacate the JNOV order.) The trial court,

however, said it would not rule on the disqualification motion

23
because the Lansfords’ notice of appeal had divested it of

jurisdiction over this case.

4. The Lansfords’ Bias Argument

¶ 52 The Lansfords contend that the trial judge acted with

perceived or actual bias when he entered JNOV because of his

alleged “close relationship” with the Poudre defendants.

Specifically, the Lansfords assert that the trial judge should have

disqualified himself because

• he had a relationship with the Poudre defendants dating

back to his home purchase;

• any judgment entered against the Poudre defendants

would affect the value of the trial judge’s home and his

homeowners’ insurance rates;

• he had personal knowledge of the disputed facts; and

• he expressed bias when he said to Orr on the record, “I

know most of the neighborhoods in [Greeley] and I’m

biased, but it’s my opinion that [Poudre River Ranch’s

properties were] the premier development in [Greeley].

You should be rightfully proud of it.”

24
¶ 53 We conclude that the Lansfords waived their perceived bias

argument and failed to establish actual bias.

a. The Lansfords Waived Their Perceived Bias Argument

¶ 54 Although no rule specifies when a disqualification motion

must be filed, “good faith and orderly process dictate that if grounds

for disqualification are known at the time the suit is filed and a

party desires to proceed thereon, a motion to disqualify should be

filed prior to taking any other steps in the case.” People in Interest

of A.G., 262 P.3d at 652 (quoting Aaberg v. Dist. Ct., 319 P.2d 491,

494 (Colo. 1957)). Significantly, “when a party knows of grounds

for disqualification but waits to file a motion until after an adverse

judgment has been issued, the motion is barred by waiver.” Id.

¶ 55 We acknowledge that, at the time they filed their complaint,

the Lansfords did not know the facts that they later argued required

the trial judge’s disqualification. But they learned those facts

before trial. Yet they did not move for the judge’s disqualification

until he ruled against them by entering the JNOV order. Moreover,

the Lansfords declined the trial judge’s invitation to inquire on the

first day of trial into the facts outlined in the disclosure order.

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Under these circumstances, the Lansfords waived their argument

that the trial judge acted with perceived bias. See id.

b. The Lansfords Did Not Establish Actual Bias

¶ 56 For four reasons, we disagree with the Lansfords’ contention

that the trial judge acted with actual bias when he entered the

JNOV order.

¶ 57 First, the trial judge’s “prior relationship” with the Poudre

defendants arose from an arm’s-length business transaction that

occurred decades before he granted the JNOV.

¶ 58 Second, the Lansfords do not provide any support for their

allegation that the trial judge only entered the JNOV because a

judgment in favor of the Lansfords would have affected the trial

judge’s home value and homeowners’ insurance rates.

¶ 59 Third, the trial judge’s statements in the disclosure order

undercut the Lansfords’ accusation that the trial judge possessed

personal knowledge of facts relevant to the Poudre defendants’

statute of limitations defense. In the disclosure order, the trial

judge reported that he had never met the Lansfords and he was

unaware of the 2021 flood until he read about it in the complaint.

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¶ 60 Fourth, the Lansfords’ allegation that the trial judge

“expressed bias” on the record when he said that the Poudre

defendants should be proud of their work in developing the

subdivision in which he and the Lansfords lived does not establish

that the trial judge could not adjudicate the case fairly. Before

making the statement that the Lansfords quoted, the trial court

said, “I’m very sorry you had to experience this, Mr. and Mrs.

Lansford, nobody wants to see their home be flooded.” These

statements did not come close to showing that the trial judge had “a

bias or prejudice that in all probability [would] prevent him . . . from

dealing fairly with a party.” Julien, 47 P.3d at 1197.

¶ 61 Although it would have been preferable if the trial judge had

not praised the quality of Poudre River Ranch Company’s work on

the subdivision, his statements did not show he “had a ‘substantial

bent of mind against’” the Lansfords, Jones, ¶ 35, 571 P.3d at 955

(quoting Drake, 748 P.2d at 1249), or a “deep-seated favoritism or

antagonism that would make fair judgment impossible,” id. (quoting

People in Interest of A.P., ¶ 31, 526 P.3d at 184).

¶ 62 In addition, in the background section of their opening brief,

the Lansfords allege that the trial judge (1) “expressed his opinion

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as to the value of the Lansfords’ case” when he said there was “no

evidence to support [an award of noneconomic] damages of

$500,000”; (2) was “visibly dismayed” when he read the jury’s

verdict; and (3) improperly requested a copy of the transcript of Mr.

Lansford’s testimony during what should have been “a perfunctory

conversation about the deadlines” for post-trial motions. But the

Lansfords do not reassert or expand on those undeveloped

allegations in the argument section of their brief or explain how

they support the Lansfords’ bias argument. In any event, “[j]udicial

remarks during the course of a trial that are critical or disapproving

of, or even hostile to, counsel, the parties, or their cases” and

“[e]xpressions of impatience, dissatisfaction, annoyance, and even

anger” do not establish bias. People in Interest of A.P., ¶ 31, 526

P.3d at 184 (quoting Liteky v. United States, 510 U.S. 540, 555-56

(1994)).

¶ 63 For these reasons, we reject the Lansfords’ actual bias

argument.

III. Disposition

¶ 64 The judgment is affirmed.

JUDGE TOW and JUDGE BERGER concur.

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