Mile High Paving v. Alpha Milling

25CA1162 Mile High Paving v Alpha Milling 06-25-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1162
Adams County District Court No. 23CV30820
Honorable Teri L. Vasquez, Judge

Mile High Paving Co. d/b/a Elliott Investments,

Plaintiff-Appellant,

v.

Alpha Milling Company, Inc.,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE JOHNSON
Freyre and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 25, 2026

Johnson & Ytterberg, P.C., Deborah A. Ytterberg, Craig D. Johnson,
Broomfield, Colorado, for Plaintiff-Appellant

McConaughy & Sarkissian, P.C., Ivan A. Sarkissian, David C. Taylor, Denver,
Colorado, for Defendant-Appellee
¶1 In this construction dispute, plaintiff, Mile High Paving Co.

(Mile High), appeals the district court’s judgment awarding it

$28,000 in damages against defendant, Alpha Milling Company,

Inc. (Alpha).1 Mile High alleges that the district court erred by (1)

preventing Mile High’s expert from testifying about breach and

causation and (2) relying on speculation and lay witness testimony

to reach its damages determination. We disagree with both

contentions and, therefore, affirm the judgment.

I. Background

¶2 A general contractor overseeing a property development in

Thornton contracted with Mile High to perform asphalt paving for a

residential subdivision. After the paving was completed, an

inspector with the City of Thornton determined that the streets

needed to be milled and overlaid, a process by which machinery

destroys and removes the asphalt so that another layer may be

placed to bring it to the appropriate level. Mile High contracted

with Alpha to perform this milling work. After Alpha completed the

work, Mile High’s representative observed that some of the concrete

1 Mile High brought claims against other defendants, but they were

all dismissed before trial, leaving only Alpha.

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curb next to the asphalt was chipped and damaged. The parties

agreed that Alpha caused some damage to the concrete during its

milling operations. Under the terms of the paving contract, Mile

High was responsible for repairing the damaged concrete because it

related to work done by its subcontractor. But after Mile High hired

other contractors to complete the repairs, it brought suit against

Alpha for breach of contract and negligence.

¶3 Following a bench trial, the district court entered judgment in

favor of Mile High and against Alpha in the amount of $28,000.

Mile High now appeals.

II. Expert Testimony

¶4 Mile High contends that the district court erred by

disqualifying its expert, Dr. David Amori (Dr. Amori), from offering

breach or causation testimony and instead qualifying him to testify

about only the standards of care in concrete milling and paving.

We disagree.

A. Additional Facts

¶5 During trial, Mile High sought to admit Dr. Amori as an expert

in “geotechnical engineering, including application to industry

standards of care for paving, concrete, and milling contractors.”

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Alpha objected to Dr. Amori tendering “opinions . . . regarding

damage resulting from asphalt milling.” After confirming with Mile

High that part of Dr. Amori’s planned testimony would opine on

damage from Alpha’s milling work, the district court noted that his

qualifications relating to standards of care “sound[ed] different than

damages caused by milling activities” and that he could “talk about

the standard of care,” but not “whether that standard of care was

breached.” The court’s colloquy with Dr. Amori follows:

THE COURT: [I]f I understood his testimony
. . . his scope of work included inspecting
damages, but he himself did not do it. Is that
correct?

WITNESS: My . . . scope of work would have
included identifying any damage that would
have been done by the milling process or
anything else.

THE COURT: . . . And the rest of your
testimony was you couldn’t — you don’t
believe that you performed — while it was
within your scope of work, you didn’t actually
do that?

WITNESS: Well, what . . . I think my testimony
is that that would have been part of my scope
of work, but I don’t have a specific address or
date for . . . when I did that.

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THE COURT: . . . Have you, in your
experience, . . . actually inspected and given
opinions on damage from milling activities?

WITNESS: I have to say I have. I don’t have
any specifics for you.

....

THE COURT: I’m asking about specific
experience. Are you guessing that you’ve done
that, or do you know you’ve done it, you just
don’t know specific projects?

WITNESS: . . . I know I’m an expert in damage
to concrete and I’ve looked at thousands and
thousands of . . . projects along those lines. I
can’t tell you right now if any of those were
specific to a milling machine.

¶6 Because the district court felt it was “not getting straight

answers” from Dr. Amori, it found that he was qualified as “an

expert in geotechnical engineering and its application to the

standard of care in paving concrete and milling. But opinions

regarding damage from milling [we]re excluded.” Mile High

attempted to rehabilitate Dr. Amori in light of the court’s decision,

but the court “did not hear anything specific in his [rehabilitation]

testimony in terms of his educational degrees and how it relates to

the ability to assess damage from milling activities” and maintained

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its ruling. Dr. Amori then testified without opining on breach or

causation, consistent with the court’s decision.

B. Preservation

¶7 Alpha contends that Mile High did not preserve this issue. We

disagree.

¶8 To preserve an argument for appeal, a party must present the

“sum and substance of the argument” to the district court.

Marquez v. Schaefer, 2025 COA 44, ¶ 30 (quoting Gebert v. Sears,

Roebuck & Co., 2023 COA 107, ¶ 25). And a party may claim error

in a ruling to exclude evidence only if the error affects a substantial

right of the party and “the substance of the evidence was made

known to the court by offer or was apparent from the context.” CRE

103(a)(2).

¶9 After Alpha objected to Dr. Amori testifying beyond the

standard of care, the district court offered Mile High an opportunity

to rehabilitate the witness. After Mile High’s rehabilitative

questioning, it retendered Dr. Amori as an expert qualified to testify

about breach and causation, but the district court did not change

its ruling.

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¶ 10 After Dr. Amori testified about the relevant standard of care,

Mile High sought to “preserve for appeal the issue of whether an

expert qualified to testify to a standard of care can be disqualified

from testifying to the breach of the same standard. In this case, Dr.

Amori.” Through these exchanges, Mile High presented the “sum

and substance” of its argument to the district court. Marquez, ¶ 30.

And but for the court’s ruling, Mile High sought to have Dr. Amori

testify about breach, causation, and the resulting damages he

attributed to Alpha’s milling work in addition to his opinion on the

standard of care. Therefore, Mile High’s argument regarding the

court’s ruling denying Dr. Amori from testifying beyond the

standard of care is preserved for appellate review.

C. Standard of Review and Applicable Law

¶ 11 District courts have discretion to determine the admissibility

of expert testimony, and the exercise of that discretion “will not be

overturned unless manifestly erroneous.” Bocian v. Owners Ins.

Co., 2020 COA 98, ¶ 64. This deference reflects the “superior

opportunity of the [district court] to gauge both the competence of

the expert and the extent to which his opinion would be helpful to

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the jury.” Id. (quoting People v. Ramirez, 155 P.3d 371, 380 (Colo.

2007)).

¶ 12 To testify as an expert, a witness must be qualified by

“knowledge, skill, experience, training, or education.” CRE 702. A

district court determines whether expert testimony is reliable by

considering, in part, whether the expert is qualified to opine on the

matter. See Est. of Ford v. Eicher, 250 P.3d 262, 271 (Colo. 2011).

D. Analysis

¶ 13 Mile High contends that Gresser v. Banner Health, 2023 COA

108, supports the proposition that, because Dr. Amori was qualified

to give an expert opinion on the standard of care, he should have

also been qualified to opine about breach and causation. We

disagree and do not read the case as broadly as Mile High does.

¶ 14 In Gresser, a division of this court upheld a district court’s

qualification of a medical expert to testify about the relevant

standard of care and causation in a medical malpractice lawsuit.

Id. at ¶ 49. Mile High attempts to analogize this case to Gresser,

contending that Dr. Amori, just like the medical expert in Gresser,

should have been qualified to testify about breach and causation.

But nothing in Gresser indicated that an expert must be permitted

7
to testify about breach and causation; simply, the division held that

the expert witness in that case had the requisite experience to opine

on these issues. See id. at ¶¶ 52-53.

¶ 15 This makes Gresser factually distinguishable from this case.

Here, Dr. Amori could not point to direct, specific experience

inspecting and giving an opinion on milling damage to asphalt.

Therefore, Mile High’s reliance on Gresser does not support its

position.

¶ 16 Instead, in its gatekeeping role, the district court properly

exercised its discretion to determine that Dr. Amori did not possess

the requisite specific experience to opine on breach, causation, and

damage resulting from the milling work. While Dr. Amori indicated

he had overseen thousands of projects that included milling and

overlay work, he could not, when asked by the court or Mile High’s

counsel, specify “if any of those were specific to a milling machine.”

Even after Mile High’s counsel attempted to rehabilitate Dr. Amori,

the district court noted that the witness testified that he had

observed milling damage during his position with the Department of

Transportation. But the court stated this was not sufficient

because he did not say “anything specific . . . in terms of his

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educational degree and how it relates to the ability to assess

damage from milling activities.”

¶ 17 From what we can discern, the court wanted specifics as to

how Dr. Amori’s prior experience demonstrated his expertise to

assess damage from a milling machine and how, when such

damage is caused, to apportion fault and estimate the cost to

remedy it. Instead, his vague answers demonstrated that he was

generally aware that paving could cause damage to concrete, that

milling work was the remedy, and that he had observed such work

and damage. But his testimony did not establish with specificity

how his experience, general knowledge, or observations were

sufficient to qualify him to assess the specific damage and

apportion fault in this case. See People v. Douglas, 2015 COA 155,

¶ 72 (affirming the district court decision not to qualify a witness

because, while the witness had on the job training with medical

marijuana grows, the witness’s responses did not address what the

district court wanted to know, which “was the basis of [the

witness’s] knowledge of the construction of marijuana grows”); see

also People v. Tidwell, 706 P.2d 438, 439 (Colo. App. 2005)

(affirming a court’s decision not to qualify a witness as an expert

9
due to her “vague explanation of her experience and the lack of

identifiable standards for membership in the organizations she

belonged to”).

¶ 18 Thus, we discern no abuse of discretion in the district court’s

decision to limit Dr. Amori’s testimony.

III. Damages

¶ 19 Mile High asserts that the district court erred by reaching a

damages determination that was based on (1) speculation and

(2) lay witness testimony that required specialized knowledge. We

disagree with the first contention and, even assuming the district

court erred as to the latter contention, any resulting error was

harmless and not reversible.

A. Additional Facts

¶ 20 The district court found that Mile High had proved by a

preponderance of the evidence that Alpha failed to perform its

obligations under the parties’ contracts due to defective

performance. It noted that there was “much testimony and

evidence regarding the damages at issue.” Mile High, the court

found, “offered evidence that it spent over $1.2 million on [repair

and replacement] work.” Alpha, on the other hand, “presented

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evidence that, at most, the cost to repair concrete in those areas

within [Alpha]’s scope of work was $462,000.” But despite these

competing figures, the court also noted, there was “little to no

evidence of the cost to repair damage likely caused by Defendant.”

(Emphasis added.)

¶ 21 As it related to damages, the court found the following:

• Even before Alpha began work, thirty-two stones of

concrete needed to be replaced by Mile High.

• Neither party provided the court with any description

of what a “stone of concrete” represented in terms of

linear feet or the cost to repair one stone.

• There was no evidence presented of the linear feet of

concrete that required replacement based on damage

from Alpha’s milling work.

• One of Mile High’s witnesses admitted that some of the

concrete damage that required repair and replacement

was not Alpha’s responsibility.

• There was further concrete damage during Mile High’s

repair and replacement process that was not part of

the original damage.

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• The cost of replacing all of the concrete where Alpha

milled was $462,000, but this did not account for the

concrete replacement caused by Alpha’s damage — it

accounted for the entire replacement in the areas

where Alpha performed milling work.

• The invoices tendered by Mile High to support its

damages request were related to the paving project,

but the documents did not break down where the work

was performed, which was important because Alpha

did not mill the entire subdivision area.

• No witnesses from the subcontractors who were

invoiced as part of the project testified about their

specific scope of work reflected in the invoices; Mile

High’s witness provided the only testimony about the

invoices, but that witness did not have any personal

knowledge of the particular scope of the work per

subcontractor based on the invoices.

• When Alpha’s witness examined the damaged stones

in person, he estimated the damage at roughly $200-

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$600 per concrete stone for a total estimate of

approximately $28,000 attributable to Alpha.

¶ 22 The district court explained that, for Alpha to be assessed

damages on the basis of the invoices alone, there needed to be “at

least some facts connecting the work billed in the invoices to areas

within [Alpha]’s scope of work,” and that there also needed to be

“some evidence that the work billed for in the invoices involved

[repair and replacement] of concrete damaged by [Alpha].” Based

on this rationale, the district court found that Mile High had

submitted “no evidence in this regard regarding either of these

issues.” And to award damages “based on the invoices alone would

[have] require[d] the [district] court to impermissibly speculate

about the correlation between those invoices, the scope of [Alpha]’s

work, and the damage cause by [Alpha] that necessitated [repair

and replacement].” As a result, the district court found that

“neither the invoices nor the calculation provided by [Mile High’s

witness] constitute[d] competent evidence of [Mile High]’s damages

due to [Alpha]’s milling work.”

¶ 23 The district court analogized this case to Roberts v. Adams, 47

P.3d 690 (Colo. App. 2001), where the plaintiff sought damages for

13
carpet repair but did not provide evidence sufficient for the court to

estimate the amount of damages. The court determined that, like

the plaintiff in Roberts, “[Mile High]’s [invoices] do not provide

evidence sufficient to estimate the amount of damages caused by

[Alpha].” But, unlike Roberts, the district court found that there

was some evidence of the costs relating to concrete damaged by

Alpha — namely, Alpha’s witness who testified that Alpha “caused

damage that required $28,000 to [repair and replace].” Thus, the

district court found that this evidence established that Mile High

had proved by a preponderance of the evidence that it sustained

$28,000 in damages due to Alpha’s breach of contract and entered

judgment reflecting that amount. It is this damages determination

that Mile High now appeals.

B. Standard of Review

¶ 24 We review a district court’s “assessment of the amount of

damages for clear error.” Veolia Water Techs., Inc. v. Antero

Treatment LLC, 2024 COA 126, ¶ 131 (cert. granted Sep. 2, 2025).

And we review de novo whether the district court misapplied the law

when determining the measure of damages to be awarded. Id.

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C. Analysis

¶ 25 The district court did not err or misapply the law in

determining the amount of damages to be awarded to Mile High.

¶ 26 We reject the argument that the district court based its

damages award on speculation. Rather, the district court’s ruling

avoided basing a damages calculation on speculation when it found

that Mile High’s proffered evidence — the invoices and witness

testimony about the invoices — was insufficient evidence of

damages caused by Alpha’s milling work. In effect, because Mile

High and its subcontractors caused some of the damage and the

invoices and testimony did not specify which costs were attributable

to Alpha’s work, the district court determined there was no “non-

speculative method . . . to determine what value should be assigned

to the further damage or the damage caused by [Mile High] and/or

its subgrade contractor.”

¶ 27 Instead, like the plaintiff in Roberts, Mile High did not present

sufficient evidence from which the district court could compute its

damages. Thus, the district court correctly determined that it could

not award damages based on the invoices and witness testimony

Mile High presented. See Roberts, 47 P.3d at 696-97.

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¶ 28 But unlike Roberts, there was testimony from Alpha’s witness

that estimated that the damage caused by Alpha’s milling work

would cost roughly $28,000 to repair and replace based on a cost-

per-stone estimate. Consistent with this more specific evidence, the

district court found that the only damages Mile High had proved by

a preponderance of the evidence due to Alpha’s breach of contract

amounted to $28,000. This award was not based on speculation;

rather, it was based on an estimate from a witness who observed

the damage firsthand.

¶ 29 Nonetheless, Mile High contends that the district court erred

by calculating damages based on Alpha’s witness because, as a lay

witness, he could not testify about an issue that required expert

testimony. We note that Mile High’s witness who testified about the

invoices was likewise not endorsed as an expert. Even assuming

the measure of damages required expert testimony, we conclude

that any error was harmless.

¶ 30 In the civil context, an error is harmless if it does not affect the

substantial rights of the parties. C.R.C.P. 61. “An error affects a

substantial right only if ‘it can be said with fair assurance that the

error substantially influenced the outcome of the case or impaired

16
the basic fairness of the trial itself.’” People in Interest of R.D., 2012

COA 35, ¶ 25 (quoting Bly v. Story, 241 P.3d 529, 535 (Colo. 2010)).

Courts have determined that an error is harmless if it benefits the

person asserting it. See Orsinger Outdoor Advert., Inc. v. Dep’t of

Highways, 752 P.2d 55, 66 (Colo. 1988) (concluding that, if errors

inured to appellant’s benefit, they must be deemed harmless); see

also Prospect Dev. Co. v. Holland & Knight, LLP, 2018 COA 107, ¶ 24

(we need not reverse district court errors if the error was harmless).

¶ 31 Had the district court followed Mile High’s reasoning and not

relied on the $28,000 estimate, it appears that Mile High would

have received $0 in damages — an outcome less preferable to Mile

High than the one reached by the district court. Therefore, even

assuming the district court erred by relying on lay witness

testimony to reach its damages determination, we conclude it was

harmless because it inured to Mile High’s benefit. We decline to

reverse the district court’s damages award.

IV. Conclusion

¶ 32 The district court’s judgment is affirmed.

JUDGE FREYRE and JUDGE KUHN concur.

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