26 CO 54, 26SA15 In re: Arrowhead v. Roxborough Park Foundation

OCR transcription for search; preserved printed pages are authoritative

The opinion summaries are not part of the Colorado
Supreme Court's opinion. They have been prepared solely for
the reader's convenience. As such, they may not be cited or
relied upon. If there is any discrepancy between the language in
the summary and the opinion, the language in the opinion
controls.

ADVANCE SHEET HEADNOTE
June 23, 2026

2026 CO 54

No. 26SA15, In Re Arrowhead v. Roxborough Park Foundation-Eminent
Domain Proceedings - Condemnation Hearings - Civil Procedure.

In this original proceeding under C.A.R. 21, the supreme court concludes
that the trial court erred in finding it lacked discretion to order prehearing
discovery in condemnation proceedings. Instead, the supreme court holds that
C.R.C.P. 26(d) and 26(b)(2) grant trial courts the discretion to order discovery,
while C.R.C.P. 16(b)(1) grants trial courts the authority to deem a case "at issue"
which then enables the court to authorize discovery. Accordingly, the supreme
court makes the order to show cause absolute and remands the case to the trial
court to determine, in its discretion, whether to grant or deny the Foundation's
request for prehearing discovery.

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# The Supreme Court of the State of Colorado 2 East 14th Avenue . Denver, Colorado 80203

2026 CO 54

Supreme Court Case No. 26SA15
Original Proceeding Pursuant to C.A.R. 21
Douglas County District Court Case No. 25CV31109
Honorable Ben Leutwyler, Judge

In Re
Petitioner:

Arrowhead Colorado Metropolitan District, a quasi-municipal corporation and
political subdivision of the State of Colorado,

V.

Respondents:

Roxborough Park Foundation, a Colorado nonprofit corporation; City and
County of Denver, acting through its Board of Water Commissioners, a Colorado
home rule municipality; Public Service Company of Colorado, a Colorado
Corporation; Red Rocks Cablevision Limited Partnership, a Colorado limited
partnership; Roxborough Water and Sanitation District, a quasi-municipal
corporation and political subdivision of the State of Colorado; Bradley J. Phillips,
an individual; Tisha K. Fujii, an individual; Polly P. Lawrence, an individual;
Roye Varghese, an individual; Tinsy Elizabeth Varghese, an individual; Stanley
R. Brown Trust; Marilynn M. Brown Trust; Carpenter Trail LLC, a Colorado
limited liability company; Eagles Nest Owners Association Inc., a Colorado
nonprofit corporation; Denver Vista LLC, a Colorado limited liability company;
The Board of County Commissioners of the County of Douglas, Colorado, a
political subdivision of the State of Colorado; Core Electric Cooperative, a
Colorado Cooperative Association, formerly known as Intermountain Rural
Electric Association; West Metro Fire Protection District, a quasi-municipal
corporation and political subdivision of the State of Colorado; Naul Hahn
Manthe, an individual; Tanna Rae Manthe, an individual; and David Gill, in his
official capacity as the Treasurer of Douglas County.

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Order Made Absolute
en banc
June 23, 2026

Attorneys for Petitioner:
Alderman Bernstein LLC
Carrie S. Bernstein
Amanda A. Bradley
Joshua T. Mangiagli
Denver, Colorado

Attorneys for Respondent Roxborough Park Foundation:
Montgomery Little & Soran, P.C.
Steven Nagy
Alyson Evett
Sherri Giger
Greenwood Village, Colorado

No appearance on behalf of: City and County of Denver, acting through its Board
of Water Commissioners; Public Service Company of Colorado; Red Rocks
Cablevision Limited Partnership; Roxborough Water and Sanitation District, a
quasi-municipal corporation and political subdivision of the State of Colorado;
Bradley J. Phillips; Tisha K. Fujii; Polly P. Lawrence; Roye Varghese; Tinsy
Elizabeth Varghese; Stanley R. Brown Trust; Marilynn M. Brown Trust;
Carpenter Trail LLC; Eagles Nest Owners Association Inc .; Denver Vista LLC;
Board of County Commissioners of the County of Douglas, Colorado; Core
Electric Cooperative; West Metro Fire Protection District; Naul Hahn Manthe;
Tanna Rae Manthe, and David Gill.

JUSTICE BLANCO delivered the Opinion of the Court, in which CHIEF
JUSTICE MÁRQUEZ, JUSTICE BOATRIGHT, and JUSTICE HOOD, JUSTICE
GABRIEL, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.

.

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JUSTICE BLANCO delivered the Opinion of the Court.

11
This case involves a discovery dispute between a community association,
Roxborough Park Foundation ("the Foundation"), and a quasi-municipal
corporation and political subdivision, Arrowhead Colorado Metropolitan District
("Arrowhead"). Arrowhead seeks to exercise the power of eminent domain to
condemn easements over two of the Foundation's private roads.

12 Before the trial court's hearing on whether Arrowhead could take
immediate possession of the roads, the Foundation moved for expedited
prehearing discovery, which Arrowhead opposed. The trial court denied the
motion, concluding that neither the eminent domain statutes nor the Colorado
Rules of Civil Procedure (the "Rules") allowed for prehearing discovery. Because
we conclude that C.R.C.P. 26(d), C.R.C.P. 26(b)(2), and C.R.C.P. 16(b)(1) grant trial
courts discretion to order prehearing discovery, including in condemnation
proceedings, we make the order to show cause absolute and remand the case to
the trial court to exercise its discretion and rule on the Foundation's discovery
motion.

## I. Facts and Procedural History

T3
This case arises from the proposed condemnation of easements around a
plot of land located in Roxborough Park, Douglas County, known as the
"Homestead Parcel." The Foundation owns the land, roads, and pathways around

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the Homestead Parcel, while Arrowhead's related entity, Arrowhead Colorado
Propco, LLC, owns the Homestead Parcel. For that reason, Arrowhead sought
easements across the Foundation's land and filed a petition in condemnation.
Further, in line with Colorado's eminent domain statutory scheme, Arrowhead
asserted that it was entitled to immediate possession of this property, specifically
under section 38-1-105(6)(a), C.R.S. (2025). An immediate possession hearing was
expedited and set for January 30, 2026. On November 18, 2025, the Foundation
moved the trial court for limited and expedited discovery, asserting that such
discovery was essential to its preparation for the January hearing.

14 The trial court denied the motion, concluding that neither sections 38-1-101
to -122, C.R.S. (2025), nor the Rules allowed for prepossession discovery.
Arrowhead Colo. Metro. Dist. v. Roxborough Park Found., No. 25CV31109, at 2, (Dist.
Ct., Douglas Cnty., Dec. 22, 2025) (unpublished order). First, it concluded that
sections 38-1-101 to -122 make no provision for discovery; therefore, the Rules
control. Id. Next, the court noted that the Rules permit discovery only after a case
management order is served, which in turn requires a case to be "at issue." See
C.R.C.P. 26(d), 16(b)(1). The court then interpreted Rule 16(b)(1) to mean that trial
courts may deem a case "at issue" only once all necessary pleadings had been filed.
Arrowhead, at 2. The court concluded that because condemnation proceedings do

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not require responsive pleadings, such a case can never be "at issue," and
therefore, discovery is not permitted. Id.

15 The Foundation sought relief under C.A.R. 21, asserting that it was entitled
to prehearing discovery. We issued an order to show cause.1

## II. Analysis

16 We start by explaining our decision to exercise our original jurisdiction and
then discuss the applicable standard of review. Next, we examine the plain
language of the Rules before applying them to this case.

### A. Original Jurisdiction

17
Relief under C.A.R. 21 is an extraordinary remedy, and the decision to
exercise original jurisdiction rests solely in our discretion. C.A.R. 21(a)(2); In re
Marriage of Green, 2024 CO 24, 1 8, 547 P.3d 1095, 1097. We have previously held
that we may exercise our original jurisdiction by granting a C.A.R. 21 petition to
"review a trial court's pretrial orders when an appellate remedy would be
inadequate." People v. Sotade, 2025 CO 38, 1 11, 570 P.3d 491, 494. This rule applies
here. Although this pretrial discovery order is appealable through the ordinary
appellate process, the order would not be curable through the ordinary appellate

1 The issue present by the Foundation in its C.A.R. 21 petition is as follows:
Whether a respondent landowner who has a good faith basis for
challenging condemnation should be afforded the opportunity to
conduct discovery prior to an immediate possession hearing.

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process. Without review at this stage, Arrowhead could take immediate
possession of the Homestead Parcel and potentially damage the property before
any appeal process could even begin. See Direct Sales Tire Co. v. Dist. Ct., 686 P.2d
1316, 1318 (Colo. 1984) (exercising our C.A.R. 21 original jurisdiction over a pretrial
discovery order because it "may cause unwarranted damage to a litigant that
cannot be cured on appeal").

### B. Standard of Review

18 We generally review a trial court's discovery order for an abuse of
discretion. Trenshaw v. Jennings, 2025 CO 23, 1 24, 568 P.3d 413, 421. However, in
the case at hand, we address a trial court's interpretation of a statute and the Rules,
which presents a legal question that we review de novo. Miller v. Amos, 2024 CO
11, 1 11, 543 P.3d 393, 396.

19 In interpreting the Rules, we use the same canons that guide our
interpretation of statutes. People v. Bueno, 2018 CO 4, 1 18, 409 P.3d 320, 325. When
doing so, we look to "the plain meaning of the language used, considered within
the context of the statute as a whole." Bly v. Story, 241 P.3d 529, 533 (Colo. 2010).
If the language is clear, then there is no need to resort to other rules of statutory
construction and we will apply the text as written. People in Int. of B.C.B., 2025 CO
28, T 26, 569 P.3d 74, 79. Additionally, we avoid constructions and interpretations
that would render any statutory words or phrases superfluous or that would lead

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to illogical or absurd results. N. Integrated Supply Project Water Activity Enter. v.
VIMA Partners, LLC, 2026 CO 29, 1 10, 588 P.3d 727, 731. Accordingly, we will
neither add words to nor subtract words from a rule or statute. Byers Peak Props.,
LLC v. Byers Peak Land & Cattle, LLC, 2026 CO 7, 1 25, 583 P.3d 97, 103.

### C. Prehearing Discovery

110 In this case, the trial court concluded that it lacked authority to grant the
Foundation's motion for expedited discovery under either sections 38-1-101 to -122
or the Rules. Arrowhead, at 2. We agree regarding the statutory sections but
disagree regarding the Rules.

111 First, we agree with the trial court that sections 38-1-101 to -122 make no
explicit provision for discovery. This does not, however, indicate that the
legislature intended to either eliminate or confer any particular rights regarding
discovery in condemnation actions. See Turbyne v. People, 151 P.3d 563, 568 (Colo.
2007) (explaining that when a statute is silent on a subject, we may not infer the
legislature's meaning). Rather, it simply means that these sections are not
determinative of the discovery issue here.

112 Additionally, section 38-1-121(3), C.R.S. (2025), indicates that the legislature
did not intend for parties in condemnation proceedings to be divested of otherwise
available discovery rights. Section 38-1-121(3) states that "[n]othing in this section
shall be construed as in any way ... limiting the discovery rights of parties to

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eminent domain proceedings." In this context, "eminent domain proceedings" are
not confined to any single type of hearing or trial (such as a valuation trial) but
rather encompass all hearings that form the eminent domain process. See Town of
Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30, 35 (Colo. 2000) (stating that
"[i]n assessing the plain language, the court should not read a statute to create an
exception that the plain language does not suggest, warrant, or mandate"). Thus,
the statute suggests that discovery rights extend to condemnation proceedings as
well.

113 Although section 38-1-121(3) suggests that discovery rights apply to
condemnation hearings, it does not directly address a trial court's authority to
order discovery. Accordingly, we turn to the Rules. See C.R.C.P. 1(a); see, e.g.,
Myers v. Myers, 135 P.2d 235, 236 (Colo. 1943) (reasoning that, in the divorce
context, the Rules govern because the relevant statute was silent on the necessary
procedure).

114 We hold that the Rules empower the trial court with discretion to order
discovery in condemnation proceedings. Rule 26(d), Rule 26(b)(2), and Rule
16(b)(1) each grant trial courts discretion to authorize discovery in condemnation
proceedings.

115 At the outset of its analysis, the trial court noted that Rule 26(d) provides
that "a party may not seek discovery from any source before the service of the Case

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Management Order pursuant to C.R.C.P. 16(b)." Arrowhead, at 2. For this reason,
the trial court turned to Rule 16(b)(1). Id. But this reading overlooks the Rule's
crucial introductory language. Rule 26(d) begins by stating: "Except when
authorized by these Rules, by order, or by agreement of the parties .... "
C.R.C.P. 26(d) (emphases added). Under the plain language of the rule, a trial
court may order discovery before a case management order has been served. Had
the court found the Foundation's motion for prehearing discovery persuasive, it
could have authorized discovery based on Rule 26(d) alone.

116 Rule 26(b)(2) likewise vests the trial court with discretion to order discovery
in a condemnation proceeding. Generally, Rule 26(b) "defines the permissible
scope of discovery in any given case." DCP Midstream, LP v. Anadarko Petroleum
Corp., 2013 CO 36, 15, 303 P.3d 1187, 1190. Black's Law Dictionary defines the
"scope of discovery" as "[t]he limits within which a court allows litigants to
employ pretrial procedures aimed at finding or ascertaining information relevant
to the litigation." Scope of Discovery, Black's Law Dictionary (12th ed. 2024). Rule
26(b)(2), in particular, grants trial courts discretion to limit discovery orders for
"good cause shown." C.R.C.P. 26(b)(2).

117 Applying these Rules and definitions, a trial court may limit or otherwise
manage the parties' participation in pretrial discovery based on its own finding of
good cause. Good cause is determined by any of the four factors set out in C.R.C.P.

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26(b)(2)(F) or by any other factors a court may consider pertinent given the needs
of the case. See DCP Midstream, 1 9, 303 P.3d at 1191; see also In re Marriage of
Gromicko, 2017 CO 1, 1 30, 387 P.3d 58, 63. Therefore, in condemnation
proceedings, a trial court may consider any factors it deems pertinent and exercise
its discretion to grant or deny the motion.

118 Thus, the trial court did not need to reach the question of whether the case
was "at issue" under Rule 16(b)(1), because it could have ordered discovery under
Rule 26(d) or Rule 26(b)(2).

119 The trial court did, however, reach Rule 16(b)(1) and ended its inquiry after
noting that a case becomes "at issue" when all parties have been served and the
required responsive pleadings are filed. See C.R.C.P. 16(b)(1). That is correct, but
Rule 16(b)(1) further provides that a case may also be deemed "at issue" -and
discovery may be ordered-"at such other time as the court may direct." Id.
Specifically, Rule 16(b)(1) states:

A case shall be deemed at issue when all parties have been served and
all pleadings permitted by C.R.C.P. 7 have been filed or defaults or
dismissals have been entered against all non-appearing parties, or at
such other time as the court may direct. The proposed order shall state
the at issue date.

C.R.C.P. 16(b)(1) (emphasis added).

120 The trial court understood this provision to mean that a case is not deemed
"at issue" until all parties have been served and all pleadings permitted under

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Rule 7 have been filed, or defaults entered as described in the first clause of Rule
16(b)(1). And given that the language of section 38-1-109, C.R.S. (2025) does not
require responsive pleadings, the trial court concluded that condemnation cases
brought under section 38-1-109 could never satisfy Rule 16(b)(1).

121 However, this reading of Rule 16(b)(1) overlooks the rule's plain and
relevant language "or at such other time as the court may direct." We generally
presume that the word "or" is used in the disjunctive, presenting alternative
possibilities. See Armintrout v. People, 864 P.2d 576, 581 (Colo. 1993) ("[W]hen the
word 'or' is used in a statute, it is presumed to be used in the disjunctive sense,
unless legislative intent is clearly to the contrary."); see also Campos-Chaves v.
Garland, 602 U.S. 447, 457 (2024) ("The word 'or' is 'almost always
disjunctive.""(quoting Encino Motorcars, LLC v. Navarro, 584 U.S. 79, 87 (2018))).
Thus, the plain language of Rule 16(b)(1) establishes two alternative paths for
deeming a case "at issue." The first applies when all parties have been served, all
relevant pleadings have been filed, and defaults or dismissals have been entered
against non-appearing parties. The second permits a court to deem a case "at
issue" whenever it determines that doing so is appropriate.

122 Therefore, trial courts retain discretion to determine when a case is "at
issue" even when the first pathway is inapplicable. By failing to give effect to the
language "or at such other time as the court may direct," the trial court departed

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from our long-established principle that courts may not subtract words from rules
or statutes. See Turbyne, 151 P.3d at 567. In concluding that it lacked authority to
order discovery, the trial court rendered this language superfluous, and therefore
erred. N. Integrated Supply Project Water Activity Enter., 1 10, 588 P.3d at 731.

123 Notwithstanding the plain language of the rules, Arrowhead contends that
Carousel Farms Metropolitan District v. Woodcrest Homes, Inc., 2019 CO 51, 1 36,
442 P.3d 402, 411, supports its position that discovery is precluded in an
immediate possession hearing due to the hearing's expedited nature. We disagree.
Carousel Farms discussed the public use requirement within eminent domain
proceedings, not the timeliness or propriety of discovery. Nothing in Carousel
Farms precluded discovery in the context of an immediate possession hearing.
Furthermore, we see Carousel Farms as factually distinguishable from the case at
hand. In Carousel Farms, the taking at issue was for a public benefit. [ 27, 442 P.3d
at 409. Thus, Carousel Farms did not hold that condemnation is permissible in all
circumstances where there is a legitimate factual dispute about whether the
condemnation serves a public purpose, as is the case here.

T24 Arrowhead also relies on American Family Mutual Insurance Co. v. American
National Property & Casualty Co., 2015 COA 135, 1 46, 370 P.3d 319, 330, where, in
the context of a hearing on a motion to dismiss, the court of appeals affirmed a
trial court's denial of discovery prior to the case being "at issue" because "no good

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cause has been shown." Arrowhead likens that C.R.C.P. 12(b)(5) hearing to the
immediate possession hearing at hand here, asserting that both involve expedited
requests and therefore allow discovery only upon a showing of good cause. We
deem this case distinguishable. Discovery related to a Rule 12(b)(5) hearing, which
concerns the sufficiency of a complaint's allegations and a party's ability to meet
pleading standards, is fundamentally different from discovery in an immediate
possession hearing, which is a merits-based proceeding. Therefore, the parties'
discovery needs in each context differ significantly.

125 In sum, Rules 26(b)(2), (d), and 16(b)(1) grant trial courts both the discretion
to order discovery and the authority to determine when a case is "at issue,"
enabling the court to authorize discovery. Here, the trial court should exercise that
discretion in deciding whether to grant or deny the Foundation's request for
discovery.

## III. Conclusion

126 For these reasons, we make the order to show cause absolute and remand
the case to the trial court to exercise its discretion in determining whether to grant
or deny the Foundation's request for pretrial discovery.