Bruce v. Pikes Peak

20CA0531 Bruce v Pikes Peak 10-21-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA0531

El Paso County District Court No. 19CV362

Honorable Frances R. Johnson, Judge

Douglas Bruce,

Plaintiff-Appellant,

v.

Pikes Peak Regional Building Department, City of Colorado Springs, Colorado,

and El Paso County Public Trustee,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division VI

Opinion by JUDGE FOX

Welling and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced October 21, 2021

Douglas Bruce, Pro Se

Sparks Wilson, P.C., Eric V. Hall, Colorado Springs, Colorado, for Defendant-

Appellee Pikes Peak Regional Building Department

Wynetta P. Massey, City Attorney, W. Erik Lamphere, Assistant City Attorney,

Colorado Springs, Colorado, for Defendant-Appellee City of Colorado Springs

Diana K. May, County Attorney, Steven Klaffky, Senior Assistant County

Attorney, Colorado Springs, Colorado, for Defendant-Appellee El Paso County

Trustee

1

¶ 1

Plaintiff, Douglas Bruce, appeals the district court’s dismissal

of his complaint against defendants Pikes Peak Regional Building

Department (Department), City of Colorado Springs (City), and El

Paso County Public Trustee (Trustee). We affirm.

I. Background

¶ 2

We glean the following facts from the allegations in Bruce’s

complaint and the district court’s construal of those allegations.

A. Factual Basis of Claims Against the Trustee

¶ 3

Bruce owned a residential building located at 1326 W. Kiowa

Street in Colorado Springs (the Building) — the subject of this

action. In 2016, he sold the Building to Renovation Management

Group 106, LLC (Renovation), of which Joseph Graeve soon became

the sole member. The sale of the Building was secured by a deed of

trust in Bruce’s favor.

¶ 4

In early 2018, Renovation defaulted on payments it owed to

Bruce for the sale of the Building. Bruce then initiated proceedings

to foreclose on the deed of trust, and the Trustee scheduled a

foreclosure sale for November 7, 2018.

¶ 5

On November 6, 2018, Graeve filed for bankruptcy and listed

the Building as one of his assets, which, pursuant to federal law,

2

automatically stayed any foreclosure action against the Building.

However, Graeve did not notify Bruce or the Trustee that he had

filed for bankruptcy, and the foreclosure sale took place as

scheduled the next day. Bruce was declared the successful bidder

at the sale.

¶ 6

The Trustee became aware of Graeve’s bankruptcy filing and

withheld recording a deed of sale because the sale violated the

automatic stay. Bruce met with the bankruptcy trustee and

attempted to file a motion for relief from the stay with the

bankruptcy court; however, Bruce apparently did not pay the

required filing fee and the court rejected Bruce’s motion. Bruce

instead opted to wait until the bankruptcy case closed to attempt to

recover the Building, which he believed would be in March 2019.

¶ 7

Around September 20, 2019, Bruce claims that the

bankruptcy court issued an order allowing secured creditor

foreclosures against Graeve’s property to proceed. Bruce then

requested that the Trustee record the foreclosure deed of sale

withheld pending the bankruptcy proceedings. The Trustee,

however, refused to so; such time had elapsed that he believed he

was statutorily obligated to withdraw the 2018 sale.

3

B. Factual Basis of Claims Against the City and the Department

¶ 8

Meanwhile, the structural integrity of the Building had

substantially deteriorated, largely because Renovation had removed

the roof, siding, and porch from the Building in 2017.

¶ 9

In early 2018, Bruce notified the City that the Building, which

was apparently vacant, had become an “attractive nuisance” and

asked the City to fence it off. In January 2019, the Department,

acting pursuant to section 112 of the Pikes Peak Regional Building

Code (RBC), issued a notice and order declaring the Building to be a

“dangerous building,” requiring that it be vacated, and ordering that

the Building be repaired, rehabilitated, or demolished. The

Department served the notice and order on Renovation with a copy

to Bruce as a lienholder of the Building.

¶ 10

Bruce appealed the “dangerous building” designation, and an

administrative hearing was held on the matter before the

Department’s board of appeals on March 20, 2019, and April 4,

2019. The board of appeals affirmed the designation and the

accompanying notice and order on April 17, 2019. The written

decision stated that it was “a final agency decision for all purposes

under Colorado law.”

4

¶ 11

To prevent the demolition of the Building, Bruce sought a

permit from the Department allowing him to repair the Building by

installing a roof, siding, and porch. He did not, however, pursue a

certificate of habitability of the Building; he merely wanted it

restored to its 2016 condition, have it remain vacant, and then

eventually sell it to a buyer who would finish renovations. The

Department denied his request on May 16, 2019, finding that Bruce

did not submit sufficient plans to repair the Building and that his

request was untimely. Bruce appealed to the Department’s board of

review, which, after an administrative hearing, affirmed the permit

denial on August 21, 2019. That written decision also stated that it

was “a final agency decision for all purposes under Colorado law.”

C. District Court Proceedings

¶ 12

On October 22, 2019, Bruce filed a complaint in district court

outlining a litany of cursory claims. Against the Department and

the City, he alleged claims of tortious conduct, asserted several

violations of his constitutional rights, and sought injunctive relief

from the Department’s rulings. As to the Trustee, he raised a

number of claims seeking to compel the Trustee to record the deed

5

of sale that was issued contrary to the bankruptcy court’s

automatic stay in November 2018.

¶ 13

The three defendants independently filed motions to dismiss,

arguing that Bruce’s claims should be dismissed for lack of

jurisdiction under C.R.C.P. 12(b)(1) and for failure to state a claim

under C.R.C.P. 12(b)(5). In three separate orders, the district court

granted each defendant’s motion to dismiss. Together, the court’s

orders dismissed with prejudice all of the claims Bruce raised in his

complaint.

II. Request for Oral Argument

¶ 14

Bruce requests oral argument, but he does so only in his

opening brief. Because “[a] request for oral argument must be made

in a separate document entitled ‘request for oral argument,’” his

request is denied and his appeal stands submitted on the briefs.

C.A.R. 34(a) (emphasis added).

III. Compliance with C.A.R. 28

¶ 15

We first note that Bruce’s opening brief is substantively

deficient and fails to comply with C.A.R. 28. Though Bruce appeals

the district court’s three dismissal orders, he does not make any

specific, developed argument as to why the court erred by

6

dismissing any of his claims. Instead, his brief reads as a long list

of grievances and bald legal assertions and largely reiterates — in

conclusory fashion — the claims he made in his complaint. In fact,

his entire “argument” section is all of five sentences, and it does not

include any mention of the trial court’s orders, explanation as to

why the trial court erred, or citation to legal authority. See C.A.R.

28(a)(7)(B) (Arguments “must contain . . . appellant’s contentions

and reasoning, with citations to the authorities and parts of the

record on which the appellant relies.”). And, among other failures

to comply with C.A.R. 28, his brief does not include any recitation

of the standard of review, statement of preservation, or proper

citation to the record. See C.A.R. 28(a)(7)(A) (Arguments “must

contain . . . statements of the applicable standard of review with

citation to authority, whether the issue was preserved, and if

preserved, the precise location in the record where the issue was

raised and where the court ruled.”).

¶ 16

Despite the deficiencies in Bruce’s brief, however, we opt to

address the merits of his appeal as best we can, which we construe

as a general challenge to the district court’s three dismissal orders.

But we reiterate the admonishment from a previous division of this

7

court: Bruce is “cautioned that, in the future, his failure to comply

with C.A.R. 28 or other applicable appellate rules may result in

striking the noncomplying brief or other appropriate sanctions,

including dismissal.” Bruce v. City of Colorado Springs, 252 P.3d

30, 32 (Colo. App. 2010).

IV. Standard of Review and Applicable Law

¶ 17

The Department, City, and Trustee moved to dismiss Bruce’s

claims under C.R.C.P. 12(b)(1) and 12(b)(5).

¶ 18

A C.R.C.P. 12(b)(1) motion to dismiss challenges a court’s

subject matter jurisdiction. Where the facts underlying a

jurisdictional issue are undisputed, we review the district court’s

dismissal of a claim under C.R.C.P. 12(b)(1) de novo. Tulips Invs.,

LLC v. State ex rel. Suthers, 2015 CO 1, ¶ 11.

¶ 19

A C.R.C.P. 12(b)(5) motion to dismiss for failure to state a

claim “serves as a test of the formal sufficiency of a plaintiff’s

complaint.” Norton v. Rocky Mountain Planned Parenthood, Inc.,

2016 COA 3, ¶ 12, aff’d, 2018 CO 3. Dismissal under C.R.C.P.

12(b)(5) is proper “where the factual allegations in the complaint

cannot, as a matter of law, support the claim for relief.” Bewley v.

Semler, 2018 CO 79, ¶ 14 (quoting Colo. Ethics Watch v. Senate

8

Majority Fund, LLC, 2012 CO 12, ¶ 16). To survive a C.R.C.P.

12(b)(5) motion, a complaint must include factual allegations

sufficient to raise a right to relief “above the speculative level.”

Warne v. Hall, 2016 CO 50, ¶ 9 (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007)). “[O]nly a complaint that states a

plausible claim for relief survives a motion to dismiss.” Id. (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

¶ 20

“We review a C.R.C.P. 12(b)(5) motion to dismiss de novo and

apply the same standards as the trial court.” Norton, 2018 CO 3,

¶ 7. “[W]e accept all factual allegations in the complaint as true,

viewing them in a light most favorable to the plaintiff.” Bewley,

¶ 14. We are not, however, bound to accept the truth of bare legal

conclusions presented as fact. Warne, ¶ 9.

V. Dismissal was Proper

¶ 21

Like the district court, we understand Bruce’s complaint as

raising the following claims: (1) a request for an injunction; (2) a

challenge to the Department’s rulings; (3) various tort claims; (4) a

substantive due process claim; (5) an impairment of contract claim;

and (6) several claims seeking to compel the Trustee to record a

9

deed of sale. We address the district court’s dismissal of each claim

in turn, and for the reasons below, we discern no error.1

A. Request for Injunction and Challenges to the Department’s

Rulings

¶ 22

Bruce’s complaint appeared to challenge two specific

Department rulings: (1) its determination that the Building qualified

as a “dangerous building” under the RBC and (2) its denial of his

request for a building permit to restore the roof, siding, and porch

of the Building. Because the district court found that the

Department’s rulings were quasi-judicial in nature, it construed

Bruce’s challenges as claims made pursuant to C.R.C.P. 106(a)(4).

See C.R.C.P. 106(a)(4) (permitting review of “any governmental body

or officer or any lower judicial body exercising judicial or

quasi-judicial functions”); see also Bd. of Cnty. Comm’rs v.

Sundheim, 926 P.2d 545, 548 (Colo. 1996) (“C.R.C.P. 106(a)(4)

provides the exclusive remedy for reviewing a quasi-judicial decision

1 Bruce does not argue that the district court improperly

characterized his claims in its dismissal orders. Thus, we assume

the district court properly construed Bruce’s complaint.

10

made by a government entity.”). We agree that the court properly

characterized his challenges as C.R.C.P. 106(a)(4) claims.2

¶ 23

As the district court noted, a complaint seeking review under

C.R.C.P. 106(a)(4) must be filed in the district court “not later than

[twenty-eight] days after the final decision of the body or officer.”

C.R.C.P. 106(b). Because the twenty-eight-day filing requirement is

jurisdictional, Citizens for Responsible Growth v. RCI Dev. Partners,

Inc., 252 P.3d 1104, 1106 (Colo. 2011), “a [C.R.C.P.] 106(a)(4)

complaint that is not filed in the district court by the [twenty-eight]-

day jurisdictional deadline must be dismissed for lack of subject

matter jurisdiction,” Maslak v. Town of Vail, 2015 COA 2, ¶ 17.

Bruce did not file his complaint until October 22, 2019 — 187 days

after the Department’s final decision to designate the Building a

“dangerous building” on April 17, 2019, and 62 days after its final

2 Bruce characterizes his claims as constitutionally based. But

even constitutional claims, excluding a claim brought under 42

U.S.C. section 1983 seeking monetary damages, must be brought in

a complaint seeking Rule 106(a)(4) review. See Bd. of Cnty.

Comm’rs v. Sundheim, 926 P.2d 545, 548-49 (Colo. 1986) (excluding

time bar in C.R.C.P. 106(b), as any interest in government efficiency

and finality “must give way to the compelling federal interest of

giving § 1983 actions a broad berth”). To the extent Bruce’s

complaint raised a claim under 42 U.S.C. section 1983, the district

court correctly dismissed any such claim under C.R.C.P. 12(b)(5).

11

decision denying Bruce’s permit request on August 21, 2019. Thus,

the court properly dismissed Bruce’s challenges to those rulings for

lack of jurisdiction under C.R.C.P. 12(b)(1). See Maslak, ¶ 17.

¶ 24

Relatedly, Bruce also sought to enjoin the Department and the

City from taking any action to demolish the Building or prevent him

from restoring it. So, in addition to directly challenging the

Department’s rulings, Bruce sought injunctive relief from the effects

of those rulings. However, while a party can seek injunctive relief in

connection with a C.R.C.P. 106(a)(4) action, the effects of the

quasi-judicial decision cannot be enjoined separate and apart from

the C.R.C.P. 106(a)(4) action. See Sundheim, 926 P.2d at 548

(Because “C.R.C.P. 106(a)(4) provides the exclusive remedy for

reviewing a quasi-judicial decision made by a government entity . . .

a C.R.C.P. 106(a)(4) complaint must include all causes of action . . .

in a single C.R.C.P. 106(a)(4) action.”). Thus, Bruce’s request for

injunctive relief could not be made apart from his C.R.C.P. 106(a)(4)

claims, which were properly dismissed as untimely. Indeed,

substantively, Bruce’s request sought nothing more than the two

time-barred claims: judicial review of the Department’s rulings.

Framing his request as one for injunctive relief could not allow him

12

to circumvent the twenty-eight-day filing deadline for such claims.

See Danielson v. Zoning Bd. of Adjustment, 807 P.2d 541, 544 (Colo.

1990) (A plaintiff “cannot escape the time limitation of C.R.C.P.

106(b) by labelling his request for judicial review as a prayer for

declaratory judgment.”). Accordingly, the district court properly

dismissed Bruce’s request for injunctive relief.

B. Tort Claims

¶ 25

Bruce sought damages from the Department and the City for

the following claims: “wrongful infliction of emotional distress, bad

faith interference in a business contract, abuse of process, [and]

related torts.” In addition, as to the Department, he asserted that it

“repeatedly engaged in invidious retaliation . . . with malice and in

bad faith.”

¶ 26

The district court found that Bruce’s claims either lay in tort

or could lie in tort. Thus, because the Department and the City

were public entities, the court determined that Bruce’s claims fell

within the purview of the Colorado Governmental Immunity Act

(CGIA), §§ 24-10-101 to -120, C.R.S. 2020. See § 24-10-106(1),

C.R.S. 2020 (The CGIA grants immunity to public entities “from

liability in all claims for injury which lie in tort or could lie in

13

tort . . . except as provided otherwise in this section.”). We agree

with the district court’s conclusion as to the applicability of the

CGIA, which Bruce does not appear to contest on appeal.

¶ 27

The CGIA requires that “[a]ny person claiming to have suffered

an injury by a public entity or by an employee thereof . . . shall file

a written notice as provided in this section within one hundred

eight-two days after the date of the discovery of the injury.” § 24-

10-109(1), C.R.S. 2020. “‘[T]he statute plainly requires’ a claimant

to file this notice with either the governing body of the public entity

or the entity’s attorney.” Johnson v. Toohey, 2021 COA 43M, ¶ 9

(quoting Jefferson Cnty. Health Servs. Ass’n v. Feeney, 974 P.2d

1001, 1003 (Colo. 1998)); see also § 24-10-109(3)(a). It is

undisputed that Bruce never provided the City or the Department

any such notice. Because compliance with the CGIA’s notice

provision is “a jurisdictional prerequisite to any action brought

under the [CGIA],” the district court properly dismissed his tort

claims under C.R.C.P. 12(b)(1). § 24-10-109(1); accord Finnie v.

Jefferson Cnty. Sch. Dist. R-1, 79 P.3d 1253, 1255-56 (Colo. 2003);

see also Kratzer v. Colo. Intergovernmental Risk Share Agency, 18

P.3d 766, 769 (Colo. App. 2000) (“Because it is undisputed that no

14

notice of claim was served on defendants, we conclude that

plaintiff’s [CGIA] claims should have been dismissed on that

basis.”).

C. Substantive Due Process Claim

¶ 28

Bruce’s complaint also asserted that he “has a right to own an

empty building,” and that he “is being denied that right and due

process of law under the Fifth and Fourteenth Amendments to the

U.S. constitution.” The district court construed this as a claim

made under 42 U.S.C. section 1983 alleging that Bruce had a

substantive due process right to own a vacant building, and

sections of the RBC requiring repair and permitting demolition of

the Building violated that right. Addressing the merits of Bruce’s

contention, the court, accepting all of Bruce’s factual allegations as

true, concluded that the RBC did not impermissibly infringe on

Bruce’s right to substantive due process. Thus, it dismissed

Bruce’s claim under C.R.C.P. 12(b)(5).

¶ 29

On appeal, Bruce reiterates that he “is being denied a permit

and due process of law under the Fifth and Fourteenth

Amendments to the U.S. Constitution,” and he asserts conclusory

allegations that describes the RBC as “patently unconstitutional.”

15

But he does not explain why owning a vacant building is a

fundamental right guaranteed by the Due Process Clause. Nor does

he explain why, if such a right exists under the Federal

Constitution, the RBC impermissibly infringed on that right. In

fact, Bruce does not even purport to assert with any specificity that

the district court’s analysis of his substantive due process claim

was erroneous. Thus, to the extent Bruce challenges the district

court’s dismissal of his claim, we decline to address it.3 See, e.g.,

Barnett v. Elite Props. of Am. Inc., 252 P.3d 14, 19 (Colo. App. 2010)

(“We will not consider a bald legal proposition presented without

argument or development.”).

¶ 30

Moreover, as the district court pointed out, Bruce’s claim as

set forth in his complaint was equally deficient. In support of his

claim, he merely cited to the Due Process Clause; he offered no

developed argument explaining how a right to own a vacant

3 Bruce also appears to suggest, for the first time on appeal, that

the RBC violated his procedural due process rights guaranteed by

the Colorado Constitution. However, because the issue is not

preserved, we do not address it. Melat, Pressman & Higbie, L.L.P. v.

Hannon Law Firm, L.L.C., 2012 CO 61, ¶ 18 (“It is axiomatic that

issues not raised in or decided by a lower court will not be

addressed for the first time on appeal.”).

16

building is recognized in the constitution, and as a result, how he

was legally entitled to the relief requested. Thus, while the court

dismissed his claim on the merits under C.R.C.P. 12(b)(5), dismissal

of the claim was also proper for failure to comply with C.R.C.P.

8(a)(2). See C.R.C.P. 8(a)(2) (“A pleading which sets forth a claim for

a relief . . . shall contain . . . a short and plain statement of the

claim showing that the pleader is entitled to relief.”); see also Taylor

v. Taylor, 2016 COA 100, ¶ 31 (“An appellate court may . . . affirm

on any ground supported by the record.”).

D. Impairment of Contract Claim

¶ 31

We turn next to Bruce’s impairment of contract claim, which

asserted that the Department unconstitutionally infringed on his

contractual right to repair and restore the Building as contemplated

in the deed of trust.

¶ 32

The United States Constitution provides that “[n]o State

shall . . . pass any . . . Law impairing the Obligation of Contracts.”

U.S. Const. art. I, § 10, cl. 1. Colorado has a “virtually identical”

constitutional provision, Sch. Dist. No. 1 v. Masters, 2018 CO 18,

¶ 16, which provides that “[n]o . . . law impairing the obligation of

contracts . . . shall be passed by the general assembly,” Colo.

17

Const. art. II, § 11. “Colorado courts apply the same three-party

inquiry for claims brought under both: ‘(1) does a contractual

relationship exist; (2) does the change in the law impair that

contractual relationship; and if so, (3) is the impairment

substantial?’” Sch. Dist. No. 1, ¶ 16 (quoting Justus v. State, 2014

CO 75, ¶¶ 18-19). “If all three prongs are answered affirmatively,

the impairment may nonetheless be constitutional if it is

‘reasonable and necessary to serve an important public purpose.’”

Id. (quoting Justus, ¶ 19).

¶ 33

Bruce did not specify what provision of the deed of trust

actually granted, as he alleged, “a contractual right . . . to make

repairs to the building to restore its condition to time of sale in

2016.” Indeed, as the district court found, no provision in the deed

of trust stated as much. Nonetheless, the court assumed, as do we,

that Bruce was referring to the following provision: Bruce “may . . .

take such action as is necessary to protect Lender’s interest . . .

including . . . [paying] . . . repair and maintenance costs and

expenses.”

¶ 34

But even if Bruce had established the first prong of the

Contracts Clause test, he failed to allege facts that could establish

18

the second or third prongs, thus entitling him to relief. His

complaint identifies no specific ordinance that the Department

enacted or changed that affected his alleged contractual rights

under the deed of trust.4 And even if we were to assume, as the

district court did, that Bruce was referring to sections of the RBC

regulating “dangerous building” designations, he did not allege that

those sections had been enacted or changed after the subject deed

of trust was created. Nor does the record indicate as much. Thus,

he failed to allege facts sufficient to establish that there had been

any change in the law, yet alone one that had substantially

impaired his contractual relationship. Accordingly, the district

court properly dismissed his claim under C.R.C.P. 12(b)(5).5 See

Sch. Dist. No. 1, ¶ 16; Bewley, ¶ 14.

4 As discussed below, Bruce alluded to a new state law governing

foreclosure sales during bankruptcy proceedings. But he did so

only in the context of his claims against the Trustee. He did not

identify or otherwise describe any specific change in the law in the

context of his claim against the Department.

5 The district court dismissed Bruce’s claim on slightly different

grounds. It generally assumed that Bruce alleged sufficient facts to

satisfy the three prongs of the Contracts Clause test, but it

nonetheless appeared to conclude that the relevant sections of the

RBC were constitutional because they were “reasonable and

necessary to serve an important public purpose.” Justus v. State,

19

E. Attempts to Compel the Trustee to Record the Deed of Sale

¶ 35

Finally, Bruce raised at least four claims, as we understand

them, seeking to compel the Trustee to record a deed of sale, which

was voided by the federal bankruptcy automatic stay. We discuss

each in turn.

1. Challenge to the Bankruptcy Proceedings

¶ 36

First, to the extent Bruce challenged Graeve’s inclusion of the

Building in his bankruptcy filing, the district court properly

determined that it had no jurisdiction to consider such a claim. See

Bright v. Fred C. Sproul, Inc., 44 Colo. App. 542, 544, 616 P.2d 189,

191 (1980) (“The bankruptcy court’s jurisdiction over the

administration of the affairs of an insolvent is essentially

exclusive.”).

2. Obligation to Record the Deed of Sale

¶ 37

Second, Bruce generally argued that the Trustee was legally

obligated to record a deed of sale. However, as the district court

pointed out, the Trustee was statutorily precluded from doing so.

2014 CO 75, ¶ 19 (quoting U.S. Tr. Co. of N.Y. v. New Jersey, 431

U.S. 1, 25 (1977)). However, we may affirm on any ground

supported by the record. E.g., Taylor v. Taylor, 2016 COA 100,

¶ 31.

20

¶ 38

Section 38-38-109(2)(c), C.R.S. 2020, addresses circumstances

where, as here, a foreclosure sale has been requested or is pending

but the debtor filed for bankruptcy before the sale was completed.

As pertinent here, it provides that

[i]f a sale is held in violation of the automatic

stay provisions of the federal bankruptcy code

. . . and an order is subsequently entered by a

bankruptcy court of competent jurisdiction . . .

closing the bankruptcy case . . . then the . . .

deed of trust . . . being foreclosed shall

immediately be deemed reinstated.

Immediately upon reinstatement, the power of

sale provided therein, if any, shall be deemed

revived.

§ 38-38-109(2)(c)(I). However, to reinitiate the sale, the holder of

the deed of trust must notify the public trustee conducting the

foreclosure sale of the bankruptcy court’s order in writing “no later

than fifty calendar days prior to the last possible sale date pursuant

to subsections (1)(a) and (2)(e) of [section 38-38-109].” § 38-38-

109(2)(c)(II). If the holder fails to do so, the public trustee is

required to administratively withdraw the sale. § 38-38-

109(2)(c)(III).

¶ 39

The district court correctly determined that the last possible

date of sale under section 38-38-109 was November 6, 2019 —

21

twelve months after the originally designated date. See § 38-38-

109(1)(a) (“No sale shall be continued to a date later than twelve

months from the originally designated date in the combined notice,

except as provided in subsection (2) of this section.”). Thus, to

reinitiate the sale, Bruce was required to notify the Trustee of the

bankruptcy court’s order closing Graeve’s bankruptcy case by

September 17, 2019. See § 38-38-109(2)(c)(II). It is undisputed

that Bruce failed to do so. Thus, as the district court concluded,

the Trustee was required to administratively withdraw the sale

under section 38-38-109(2)(c)(III). Accordingly, the court properly

dismissed Bruce’s claim under C.R.C.P. 12(b)(5). See Bewley, ¶ 14.

3. Ex Post Facto Claim

¶ 40

Third, apparently recognizing that he failed to comply with

section 38-38-109(2)(c), Bruce argued that the statute violated the

Colorado Constitution’s prohibition against ex post facto laws. See

Colo. Const. art. II, § 11 (“No ex post facto law . . . shall be passed

by the general assembly.”). However, the statute, not being criminal

in nature, could not be considered an ex post facto law. See, e.g.,

People v. DeWitt, 275 P.3d 728, 731 (Colo. App. 2011) (An ex post

facto law is one that “imposes a punishment for an act which was

22

not punishable at the time it was committed; or imposes additional

punishment to that then prescribed.” (quoting Weaver v. Graham,

450 U.S. 24, 28 (1981))). Thus, the district court properly

dismissed Bruce’s claim under C.R.C.P. 12(b)(5). See Bewley, ¶ 14.

4. Impairment of Contract Claim

¶ 41

Finally, Bruce also challenged the constitutionality of section

38-38-109(2)(c) under the Contracts Clause. Specifically, he argued

that, as applied, the statute “interfered with the obligations of

contract contained in the [deed of trust].” But the effect of the

statute was to preclude the Trustee from recording a deed of sale.

And the deed of trust contained no provision requiring the Trustee

to do so. Nor did Bruce make any such allegation in his complaint.

Thus, Bruce did not establish any discernable violation of the

Contracts Clause. See Sch. Dist. No. 1, ¶ 16 (an impairment of

contract claim must show that a change in law substantially

impaired a contractual relationship). Accordingly, the district court

23

properly dismissed the claim under C.R.C.P. 12(b)(5).6 See Bewley,

¶ 14.

VI. Remaining Contentions

¶ 42

To the extent Bruce purports to advance other contentions on

appeal, we decline to review them because they are not properly

before us, they are undeveloped, and Bruce cites no authority to

support them. See Melat, Pressman & Higbie, L.L.P. v. Hannon Law

Firm, L.L.C., 2012 CO 61, ¶ 18 (“It is axiomatic that issues not

raised in or decided by a lower court will not be addressed for the

first time on appeal.”); Barnett, 252 P.3d at 19 (“We will not

consider a bald legal proposition presented without argument or

development.”); Vallagio at Inverness Residential Condo. Ass’n, Inc.

v. Metro. Homes, Inc., 2017 CO 69, ¶¶ 39-40 (we do not consider

undeveloped arguments lacking citation to controlling authority).

6 The district court also appears to have reviewed a claim for breach

of contract against the Trustee premised on a contractual

relationship created by the deed of trust. However, we agree with

the district court that to the extent Bruce raised such a claim, he

did so merely in one conclusory sentence. Thus, the court properly

dismissed the claim under C.R.C.P. 12(b)(5). See Warne v. Hall,

2016 CO 50, ¶ 9.

24

VII. Conclusion

¶ 43

The judgment is affirmed.

JUDGE WELLING and JUDGE JOHNSON concur.