Gold Medal v. Byers Peak

20CA1183 Gold Medal v Byers Peak 11-24-2021 modified

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA1183

Grand County District Court No. 14CV30133

Honorable Mary C. Hoak, Judge

Gold Medal Ranch, LLC,

Plaintiff-Appellee,

v.

Byers Peak Downhill Properties, LLC, Byers Peak Properties, LLC, C. Clark

Lipscomb, Meredith C. Lipscomb, and Colorado Adventure Park, LLC,

Defendants-Appellants.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE FREYRE

J. Jones and Tow, JJ., concur

Opinion Modified and

Petition for Rehearing DENIED

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

Announced November 24, 2021

The Whitmer Law Firm, LLC, Kent H. Whitmer, William G. Berry, Hot Sulphur

Springs, Colorado, for Defendants-Appellants

Campbell, Wagner, Frazier & Dvorchak, LLC, Michael O. Frazier, Kirsten M.

Dvorchak, Joel A. Richardson, Greenwood Village, Colorado, for Plaintiff-

Appellee

OPINION is modified as follows:

Added footnote on page 12 reads:

3 Byers Peak asserts in their petition for rehearing that their

argument about three alleged mapping errors was preserved

for appeal because the locations of trails and roads were

contested throughout the bench trial. They also assert that

the Gold Medal I division found the errors preserved. As to the

latter assertion, the division found the burden of proof issue

preserved, Gold Medal Ranch, LLC v. Byers Peak Downhill

Props., LLC, slip op. at ¶ 70 (Colo. App. No. 18CA1263, Oct.

17, 2019) (not published pursuant to C.A.R. 35(e)), and the

interpretation of the easement agreement preserved, id. at

¶¶ 20-22. We disagree that the remand language “including

the three alleged mapping errors” constitutes a preservation

finding.

We are also not convinced that the argument related to

the facial inconsistencies between Exhibits 18 and U was

sufficiently specific to preserve the argument about the three

alleged mapping errors for our review. See Vikell Invs. Pac.,

Inc. v. Hampden, Ltd., 946 P.2d 589, 596 (Colo. App. 1997)

(“[C]ounsel must state the specific grounds of his or her

objections for consideration of the court and only the grounds

so specified shall be considered on appeal.”) (citation omitted).

These alleged errors were never brought to the court’s

attention as necessitating a ruling and were mentioned for the

first time in the post-judgment motion. Moreover, Exhibit

U-D, attached to the closing argument but never admitted at

trial, could not properly be considered by the trial court. See

Acierno ex rel. Acierno v. Garyfallou, 2016 COA 91, ¶ 32

(closing arguments are not evidence); see also Boulder Plaza

Residential, LLC v. Summit Flooring, LLC, 198 P.3d 1217, 1222

(Colo. App. 2008) (declining to consider document that was not

admitted into evidence at trial). Nor may we consider it on

appeal. See McCall v. Meyers, 94 P.3d 1271, 1272 (Colo. App.

2004) (our review is limited to the record provided on appeal).

1

¶ 1 This easement dispute returns to us following a remand to the

trial court for new findings of fact. The division in Gold Medal

Ranch, LLC v. Byers Peak Downhill Props., LLC, (Colo. App. No.

18CA1263, Oct. 17, 2019) (not published pursuant to C.A.R. 35(e))

(Gold Medal I), instructed the trial court to identify the location of

roads and trails subject to the 1974 easement agreement after

allocating the proper burden of proof to the plaintiffs. Defendants,

Byers Peak Downhill Properties, LLC; Byers Peak Properties, LLC;

C. Clark Lipscomb; Meredith C. Lipscomb; and Colorado Adventure

Park, LLC (collectively, Byers Peak), appeal the trial court’s new

findings and its judgment in favor of plaintiff, Gold Medal Ranch,

LLC (Gold Medal). We affirm.

I. Background

¶ 2 This appeal arises from a dispute concerning an easement

agreement created in 1974 granting the owners of the East Ranch

(owned by Byers Peak) and the West Ranch (owned by Gold Medal)

the right to use and enjoy all roads and trails then existing on the

properties in the manner that they had been “customarily used.”

During the litigation, the trial court was tasked with interpreting

the easement agreement and identifying the roads and trails that

2

existed and were used in 1974. The parties offered different survey

maps depicting the roads and trails that they contended were

subject to the easement agreement. After hearing testimony and

reviewing the competing survey maps, the court found that Byers

Peak had not proved by a preponderance of the evidence that the

additional roads and trails identified on its survey map (Exhibit U)

were in use before or in 1974. Instead, it found that Gold Medal’s

survey map (Exhibit 18) depicted all the roads and trails that

existed on the two properties in 1974 when the easement agreement

was created.

¶ 3 On appeal, the Gold Medal I division held that the trial court

had misallocated the burden of proof to Byers Peak to prove the

location of the roads and trails in 1974 and that the burden of proof

resided with Gold Medal. No. 18CA1263, slip op. at ¶ 78. Because

this error was not harmless, the division reversed the trial court’s

factual findings related to the location of the roads and trails and

remanded the case for the court to allocate the burden of proof to

Gold Medal and to make new factual findings under the properly

allocated burden of proof. Id. at ¶¶ 79-80. The remand applied to

the “court’s order relating to the location of roads and trails,

3

including issues raised by Byers Peak about the purported errors

on Gold Medal’s survey.” Id. at ¶ 80. The division declined to order

a new trial and, instead, directed the trial court to make new

factual findings based on the existing trial record. Id. at ¶ 69. The

division also reversed the judgment prohibiting real estate

development, but it affirmed the judgment in all other respects. Id.

at ¶ 94.

¶ 4 On remand, the trial court made the following factual findings:

The established roads and trails that existed

on the Byers Peak Ranch on December 18,

1974, are depicted on Exhibit 18. [Gold Medal]

proved to this Court by a preponderance of the

evidence that the roads and trails found on

Exhibit 18 are the roads and trials that were in

use prior to 1974. Although Exhibit 18 is a

survey performed well after 1974, the

established roads and trails did not change

between 1974 and the time of the survey.

[Gold Medal] proved to this Court by a

preponderance of the evidence that the roads

and trails found on Exhibit U are not the roads

and trails in use in or prior to 1974. There

were not significant trails and roads on the

ranch prior to 1974 and after, other than the

Access Road and the spur. Many of the trails

the Defendants claim are roads and trails in

use on the West Ranch prior to 1974 are only

cow trails, i.e., paths made by cattle not by

humans or they are trails used for logging after

the turn of the most recent century, well after

1974, to rid the ranch of beetle kill trees. Mr.

4

Kervin, [Byers Peak’s] expert, plotted the trails

and roads on Exhibit U and while he testified

some of them look old, he could not testify that

any of them existed in 1974 or before and

there is no evidence before this Court that the

roads and trails, aside from the Byers Peak

Access Road and the spur, existed in 1974 or

before. Mr. Kervin also agreed that some of

the roads he found could be trails made by

logging trucks when the West Ranch was

extensively logged in approximately 2010 and

that some of the hiking trails could be cow

paths from cattle on the property. [Gold

Medal’s] expert, Tim Shenk, was more

persuasive in his testimony regarding the

roads and trails in place in 1974, than the

Defendant’s expert, Mike Kervin. The same is

true of the non-expert witnesses put forth by

[Gold Medal] regarding the roads and trails in

1974 and before. These witnesses, such as

Donald K. Norgren and Pamela Powell, were on

the ranch in 1974 and before and testified as

to the existence of the roads and trails on the

Byers Peak Ranch at that time. Their

testimony was in accord with Exhibit 18, not

Exhibit U.

¶ 5 Byers Peak now appeals the trial court’s factual findings after

remand and contends that the court did not comply with Gold

Medal I’s mandate because it (1) misallocated the burden of proof

and (2) failed to address the alleged mapping errors in Exhibit 18.

We address and reject each contention.

5

II. The “Mandate Rule”

¶ 6 The requirement that the trial court comply with a prior

appellate ruling is called the mandate rule. Hardesty v. Pino, 222

P.3d 336, 339 (Colo. App. 2009). Under the mandate rule, the trial

court must follow the law of the case as established by the appellate

court. People v. Roybal, 672 P.2d 1003, 1005 (Colo. 1983). While

the trial court has discretion to deviate from its own prior rulings in

a case, it has no discretion to disregard a prior appellate ruling.

Hardesty, 222 P.3d at 340.

¶ 7 We review de novo whether the trial court complied with the

court of appeals’ mandate on remand. Thompson v. Catlin Ins. Co.

(UK) Ltd., 2018 CO 95, ¶ 20. But we review the court’s post-remand

factual findings for clear error, “meaning that we won’t disturb such

findings if there is any evidence in the record supporting them.”

Woodbridge Condo. Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34,

¶ 24, aff’d, 2021 CO 56.

A. Additional Facts

¶ 8 Before purchasing the West Ranch in the fall of 2013, Gold

Medal hired survey expert Tim Shenk to complete a survey of the

ranch. Shenk prepared an American Land Title Association survey

6

of the West Ranch depicting boundary lines, easements associated

with property, access points, and other significant features, such as

rivers and buildings. As part of the survey, Shenk created Exhibit

18 to combine all the survey results into one map.

¶ 9 At trial, Shenk testified that Exhibit 18 depicts all significant

roads or trails on the West Ranch then existing in the fall of 2013.

He did not include any “little,” or internal, roads or trails that came

off the access road because it was questionable whether they could

be considered roads. Many of these internal roads were attributed

to logging activity that occurred after 1974 to rid the ranch of beetle

kill trees. When asked if he could determine whether a road or trail

on the property existed in 1974, Shenk assumed that the access

road existed in 1974 based on documents he saw during the

survey. But he was not willing to say that any other road or trail on

the property existed in 1974. He further opined that it would be

presumptuous to survey roads and trails in the present and overlay

that survey with historical aerial photographs to determine the

roads or trails that existed previously.

¶ 10 Byers Peak’s survey expert, Mike Kervin, prepared Exhibit U in

the spring of 2015 with the objective of identifying all existing two-

7

track and one-track roads and trails on the West Ranch. During

his testimony, Kervin refused to opine on whether any of the roads

and trails on Exhibit U existed in 1974. He was also unable to

determine whether the two-track roads were the result of logging or

whether the one-track trails were hiking trails or cow paths.

1

A

geographic information systems expert overlaid Exhibit U on

historical aerial photographs of the West Ranch from 1975 to 2004

to show where the roads and trails aligned with missing vegetation.

¶ 11 Donald Norgren, the prior owner of the East Ranch and the

party who entered into the 1974 easement agreement with the prior

owner of the West Ranch, testified about his prior use of the West

Ranch. He also said that Exhibit 18 was an accurate depiction of

the roads and trails that existed in 1974. Moreover, he testified

that he did not use any other roads or trails not depicted in Exhibit

18.

¶ 12 Additionally, Pamela Powell, the granddaughter of the prior

owner of the West Ranch in 1974, testified that Exhibit 18

accurately depicted the roads and trails that existed in 1974 and

1

The East Ranch and the West Ranch were operated as small-scale

commercial cattle operations from the late 1940s to 2007.

8

said those roads and trails were the only ones used by the East

Ranch owners. Norgren and Powell were not questioned about

Exhibit U.

B. Burden of Proof

¶ 13 Byers Peak first contends that the trial court did not apply the

proper burden of proof because Gold Medal failed to prove a

negative by a preponderance of the evidence — that the roads and

trails depicted in Exhibit U did not exist in 1974. However, the

mandate did not require Gold Medal to prove the negative. Rather,

it required the court to determine whether Gold Medal proved by a

preponderance of the evidence the location of the roads and trails in

use in 1974, based on the existing trial record. Indeed, Gold

Medal I specifically declined to order a new trial or to permit the

trial court to take new evidence that would permit Gold Medal to

prove that negative. Therefore, we conclude, for three reasons, that

the trial court correctly applied the burden of proof based on its

new factual findings.

¶ 14 First, neither Shenk nor Kervin surveyed the West Ranch to

locate all the roads and trails that existed in 1974. Shenk created

Exhibit 18 for the sale of the West Ranch in 2013, and Kervin

9

created Exhibit U to identify all roads and trails in existence and in

use in 2015. Exhibit U depicted more roads and trails on the West

Ranch, but Kervin could not determine which, if any, roads and

trails were used in 1974, and he agreed that it was possible that the

roads and trails shown on Exhibit U could have been logging roads

or cow paths.

¶ 15 Shenk testified that because the property underwent extensive

logging, many of the internal roads and trails resulted from that

activity. The only road Shenk was willing to assume existed in

1974 was the access road because of documents he reviewed during

the course of his survey. This evidence supports the trial court’s

finding that the additional roads and trails depicted in Exhibit U

were not in use in 1974 but, instead, were cow paths or trails used

for logging.

¶ 16 Second, the trial court found Shenk’s testimony more

persuasive than Kervin’s. And it is for the trier of fact alone to

determine the persuasive effect of the evidence. See Metro Moving &

Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo. App. 1995).

¶ 17 Third, Norgren and Powell, who lived on and used the ranches

in 1974, testified that Exhibit 18 was an accurate depiction of the

10

roads and trails in use by the owners of the East Ranch in 1974.

Norgren also testified that there were no additional roads or trails

that were not depicted in Exhibit 18.

¶ 18 Because the trial court’s factual findings are supported by the

record, we discern no error in those findings or any legal error in

the court’s allocation of the burden of proof.

2

C. Purported Mapping Errors

¶ 19 Byers Peak next contends that the trial court did not comply

with the mandate because it did not make specific findings

concerning three alleged mapping errors in Exhibit 18. It asserts

that the Gold Medal I division, using the following language,

directed the trial court to specifically address these errors in its new

factual findings:

We remand the case to the trial court to make

new factual findings consistent with the proper

allocation of the burden of proof. This remand

applies to the portion of the trial court’s order

relating to the location of roads and trails,

2

Byers Peak also contends that the trial court misallocated the

burden of proof when the court found that its recreational uses of

the roads and trails were prohibited. However, this argument is

beyond the limited scope of the remand, so we will not consider it.

See People v. Notyce, 2014 COA 52, ¶ 2.

11

including issues raised by Byers Peak about

the purported errors on Gold Medal’s survey.

Gold Medal I, No. 18CA1263, slip op. at ¶ 80.

¶ 20 Even assuming this language required the trial court to

address the purported errors in its new findings, we conclude that

Byers Peak did not preserve this issue.

3

3

Byers Peak asserts in their petition for rehearing that their

argument about three alleged mapping errors was preserved for

appeal because the locations of trails and roads were contested

throughout the bench trial. They also assert that the Gold Medal I

division found the errors preserved. As to the latter assertion, the

division found the burden of proof issue preserved, Gold Medal

Ranch, LLC v. Byers Peak Downhill Props., LLC, slip op. at ¶ 70

(Colo. App. No. 18CA1263, Oct. 17, 2019) (not published pursuant

to C.A.R. 35(e)), and the interpretation of the easement agreement

preserved, id. at ¶¶ 20-22. We disagree that the remand language

“including the three alleged mapping errors” constitutes a

preservation finding.

We are also not convinced that the argument related to the

facial inconsistencies between Exhibits 18 and U was sufficiently

specific to preserve the argument about the three alleged mapping

errors for our review. See Vikell Invs. Pac., Inc. v. Hampden, Ltd.,

946 P.2d 589, 596 (Colo. App. 1997) (“[C]ounsel must state the

specific grounds of his or her objections for consideration of the

court and only the grounds so specified shall be considered on

appeal.”) (citation omitted). These alleged errors were never brought

to the court’s attention as necessitating a ruling and were

mentioned for the first time in the post-judgment motion.

Moreover, Exhibit U-D, attached to the closing argument but never

admitted at trial, could not properly be considered by the trial

court. See Acierno ex rel. Acierno v. Garyfallou, 2016 COA 91, ¶ 32

(closing arguments are not evidence); see also Boulder Plaza

12

¶ 21 The trial record reveals that Byers Peak never alleged mapping

errors when it stipulated to the admission of Exhibit 18 before trial,

that counsel never questioned Shenk about these alleged errors

during cross-examination, and that Byers Peak never argued the

alleged errors in its closing argument briefs. Instead, Byers Peak

raised the alleged mapping errors for the first time in a post-trial

motion. Indeed, the court’s order denying Byers Peak’s

postjudgment motion noted that Byers Peak “cite[d] no authority in

their motion or their reply that would allow a Court to alter a trial

exhibit in a post-trial motion.” It also did not find that Shenk had

made errors in the survey in Exhibit 18 and, instead, found that

Exhibit 18 was “a detailed document that is a precise survey of the

properties at the heart of this matter.” Finally, the trial court stated

that it would “not now find the existence of other roads on the

parties’ property under the guise of correcting errors on an exhibit.”

Residential, LLC v. Summit Flooring, LLC, 198 P.3d 1217, 1222

(Colo. App. 2008) (declining to consider document that was not

admitted into evidence at trial). Nor may we consider it on appeal.

See McCall v. Meyers, 94 P.3d 1271, 1272 (Colo. App. 2004) (our

review is limited to the record provided on appeal).

13

¶ 22 Because Byers Peak failed to timely raise these alleged errors

before the trial court entered a final judgment, they are not

preserved for our review. See Briargate at Seventeenth Ave. Owners

Ass’n v. Nelson, 2021 COA 78M, ¶ 66 (“Arguments made, as here,

for the first time in a post-trial motion are too late and,

consequently, are deemed waived for purposes of appeal.”).

III. Conclusion

¶ 23 The judgment is affirmed.

JUDGE J. JONES and JUDGE TOW concur.