In Re: Antero Treatment v. Veolia Water

• Court: Supreme Court of Colorado
• Decided: December 4, 2023
• Docket: 23SA133
• Status: Published

Opinion

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

2023 CO 59

Supreme Court Case No. 23SA133 Original Proceeding Pursuant to C.A.R. 21 District Court, City and County of Denver, Case Nos. 20CV31009 & 20CV31008 Honorable Martin Egelhoff, Judge Honorable Marie Avery Moses, Judge

In Re Plaintiff:

Antero Treatment LLC,

v.

Defendant:

Veolia Water Technologies, Inc.

*****

Veolia Water Technologies, Inc.,

Defendants:

Antero Treatment LLC; Antero Resources Corporation; Antero Midstream Partners LP; and Antero Midstream Corporation.

Rule Discharged en banc December 4, 2023

Attorneys for Antero Treatment LLC; Antero Resources Corporation; Antero Midstream Partners LP; and Antero Midstream Corporation: Lewis Roca Rothberger Christie LLP Kendra N. Beckwith Frances Scioscia Staadt Denver, Colorado

Davis Graham & Stubbs LLP Michael J. Gallagher James R. Henderson Kristin L. Arthur Denver, Colorado

Vinson & Elkins LLP James D. Thompson Phillip B. Dye, Jr. Stephanie L. Noble Matthew C. Hoffman Houston, Texas

Attorneys for Veolia Water Technologies, Inc.: Fox Rothchild LLP Marsha M. Piccone Risa B. Brown Denver, Colorado

Troutman Pepper Hamilton Sanders LLP Misha Tseytlin Chicago, Illinois

Attorneys for the Colorado Attorney General: Philip J. Weiser, Attorney General Michael Kotlarczyk, Senior Assistant Attorney General Brittany Limes Zehner, Assistant Solicitor General Megan A. Embrey, Assistant Attorney General Denver, Colorado

2 Attorneys for Amici Curiae Colorado Civil Justice League, Colorado Defense Lawyers Association, American Tort Reform Association, DRI Center for Law and Public Policy, and Chamber of Commerce of the United States of America: Evans Fears Schuttert McNulty Mickus Lee Mickus Denver, Colorado

Attorneys for Amicus Curiae Colorado Trial Lawyers’ Association: The Paul Wilkinson Law Firm LLC Nelson Boyle Denver, Colorado

Attorneys for Amicus Curiae Colorado Creditor Bar Association: Greenberg Sada & Moody PC Kimberly L. Martinez Alan Greenberg Englewood, Colorado

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

3 JUSTICE HOOD delivered the Opinion of the Court.

¶1 In this post-trial original proceeding, we consider petitioner Antero

Treatment LLC’s (“Antero”’s) assertion that the $25,000,000 supersedeas bond cap

set by section 13-16-125(1), C.R.S. (2023) (“the Statute”) is unconstitutional. We

conclude that the Statute does not unconstitutionally infringe on this court’s

rulemaking authority as exercised in C.R.C.P. 121, section 1-23(3)(a) (“the Rule”).

Nor does it violate equal protection principles. We also conclude that the trial

court did not abuse its discretion by refusing to order respondent, Veolia Water

Technologies, Inc. (“Veolia”), to provide post-judgment discovery or security

beyond the $25,000,000 supersedeas bond. We therefore discharge the rule to

show cause.

I. Facts and Procedural History

¶2 After a fifteen-day trial, the trial court awarded Antero $280,105,869. Those

damages resulted from breach-of-contract and fraud claims based on Veolia’s

failure to complete and commission a wastewater treatment facility for natural gas

extraction. Veolia appealed. To stay execution of judgment while it appealed,

Veolia filed a $25,000,000 bond with the trial court. Veolia maintained that

$25,000,000 was the maximum bond amount permitted in Colorado under the

Statute.

4 ¶3 Antero disagreed. It asserted that the Rule requires Veolia to post a bond

for 125% of its more than quarter-billion-dollar judgment. In support of this

argument, Antero contended that the legislature’s bond cap is unconstitutional

because it clashes with the Rule’s 125% directive, which Antero sees as a

procedural matter that the judiciary controls. Antero also sought additional

security and post-judgment discovery to investigate whether Veolia was moving

assets to evade the judgment.

¶4 Veolia responded by defending the Statute’s constitutionality, but it also

pointed to a guarantee, which its parent company Veolia France had entered years

earlier. The guarantee stipulated that Veolia France would “indemnify and pay”

Antero for any breach of the contractual obligations at issue here. Veolia also

presented an affidavit from the CEO of Veolia France stating, “I hereby reaffirm

that this legally binding obligation continues to be in full force and effect.” Lastly,

to address Antero’s concern about Veolia’s assets, Veolia noted that the CEO’s

affidavit reassured Antero that “[n]either Veolia nor Veolia France is presently

diverting, dissipating, hiding, or otherwise disposing of assets to avoid paying the

judgment.” Antero countered that these unsecured pledges were woefully

inadequate to protect such a large judgment.

¶5 The trial court deemed the Statute constitutional. First, the court

determined that the Statute and Rule didn’t conflict; and second, it concluded that

5 the Statute concerned substantive matters within the legislature’s purview. The

court also denied Antero’s request for additional security and discovery.

¶6 Antero filed a C.A.R. 21 petition, and we issued a rule to show cause.1

II. Analysis

¶7 We begin by addressing our exercise of original jurisdiction. We then

identify the applicable standard of review and revisit familiar principles of

statutory interpretation before turning our attention to the core substantive

questions before us: (1) whether the Statute violates the separation of powers, (2)

1 We agreed to review the following issues:

1. Whether section 13-16-125, concerning the procedure for setting bond amounts in civil actions, is an unconstitutional invasion of this Court’s exclusive authority to promulgate procedural rules. 2. Whether section 13-16-125 violates the equal protection clause because the statute’s creation of two classes of judgment-creditors based on a $25 million cap on supersedeas bonds lacks any legitimate purpose and is arbitrary. 3. Whether the district court may accept as security for a stay of execution an over seven-year-old guarantee and a bald promise from the judgment-debtor’s foreign parent corporation that neither it nor the judgment-debtor are diverting or dissipating assets and “will not do so” when the governing Rule of Colorado Civil Procedure does not allow such an arrangement. 4. Whether the district court can prohibit post-judgment discovery when section 13-16-125 expressly contemplates that a judgment- creditor may engage in discovery to monitor the judgment- debtor’s finances and demonstrate the need for additional security.

6 whether the Statute violates equal protection requirements, and (3) whether the

trial court otherwise abused its discretion.

A. Original Jurisdiction under C.A.R. 21

¶8 The decision to exercise original jurisdiction under C.A.R. 21 “is an

extraordinary remedy limited in purpose and availability,” People v. Owens,

2018 CO 55, ¶ 4, 420 P.3d 257, 258, and rests within this court’s sole discretion,

People v. Kelley, 2023 CO 32, ¶ 22, 530 P.3d 407, 412. We exercise original

jurisdiction when “an appellate remedy would be inadequate, a party may suffer

irreparable harm, or a petition raises an issue of first impression that has

significant public importance.” People v. A.S.M., 2022 CO 47, ¶ 9, 517 P.3d 675, 677.

¶9 This case presents all three grounds. The supersedeas bond is meant to

protect Antero’s judgment during the appeal, so any remedy arriving after the

appeal could be too late. A direct appeal would be inadequate if Veolia loses the

appeal, is unable to pay the judgment, and the bond fails to cover the full judgment

amount. See, e.g., Nickerson v. Network Sols., LLC, 2014 CO 79, ¶ 8, 339 P.3d 526, 529

(concluding that “no other adequate remedy is available” when the delay of an

appeal “‘may endanger [the petitioner’s] ability to recover on [his] judgment lien’”

(second alteration in original) (quoting Goodman Assocs., LLC v. WP Mountain

Props., LLC, 222 P.3d 310, 314 (Colo. 2010))). Moreover, we have never considered

7 whether the Statute fatally conflicts with the Rule, which is a matter of importance

given the increasing frequency of Colorado judgments that exceed $25,000,000.

¶10 For these reasons, we choose to intervene now.

B. Standard of Review and Principles of Statutory Interpretation

¶11 We interpret statutes de novo. Justus v. State, 2014 CO 75, ¶ 17, 336 P.3d 202,

208. “Our primary duty in construing statutes is to give effect to the intent of the

General Assembly, looking first to the statute’s plain language.” Vigil v. Franklin,

103 P.3d 322, 327 (Colo. 2004). And in doing so, “we afford the language

of . . . statutes their ordinary and common meaning” and “construe

statutory . . . provisions as a whole, giving effect to every word and term contained

therein, whenever possible.” Bd. of Cnty. Comm’rs v. Vail Assocs., Inc., 19 P.3d 1263,

1273 (Colo. 2001).

¶12 Here, we are also asked to declare the Statute unconstitutional. Because

“declaring a statute unconstitutional is one of the gravest duties impressed upon

the courts,” we presume that a statute is constitutional unless the challenging

party proves its unconstitutionality beyond a reasonable doubt. City of Greenwood

Vill. v. Petitioners for the Proposed City of Centennial, 3 P.3d 427, 440 (Colo. 2000)

(explaining that “the judiciary respects the roles of the legislature and the

executive in the enactment of laws”).

¶13 With these principles in mind, we shift to the merits of Antero’s petition. 8 C. Section 13-16-125(1) and the Separation-of-Powers Doctrine

¶14 Antero contends that the Statute is unconstitutional because it conflicts with

the Rule on a procedural issue reserved to the courts. See Colo. Const. art. VI, § 21

(granting this court the authority to “make and promulgate rules governing

practice and procedure in civil and criminal cases”). In other words, Antero claims

that the Statute violates the separation of powers among the three branches of our

state government. See Colo. Const. art. III (declaring that no branch of our

tripartite government can “exercise any power properly belonging to either of the

other[]” branches). We disagree that such a violation occurred here.

¶15 True, both the Rule and the Statute govern supersedeas bonds. This court

promulgated the Rule, and the legislature enacted the Statute. C.R.C.P. 62(d)

permits an appellant to stay execution of a civil judgment “by giving a supersedeas

bond.” The Rule then establishes parameters for that bond: “Unless the court

otherwise orders, or any applicable statute directs a higher amount, the amount of

a supersedeas bond . . . shall be 125% of the total amount of the judgment entered

by the court.” C.R.C.P. 121, § 1-23(3)(a). Meanwhile, the Statute provides that the

“total amount of the supersedeas bonds that are required collectively of all

appellants during the appeal of a civil action may not exceed twenty-five million

dollars in the aggregate, regardless of the amount of the judgment that is

appealed.” § 13-16-125(1). But such overlap is common. And overlap doesn’t 9 necessarily mean irreconcilable conflict. See People v. McKenna, 585 P.2d 275, 279

(Colo. 1978) (“[W]e recognize that legislative policy and judicial rulemaking

powers may overlap to some extent so long as there is no substantial conflict

between statute and rule,” and although separate, “the three branches of our

government . . . cannot operate in mutually exclusive, watertight

compartments.”).

¶16 Where, as here, a rule and statute govern the same general topic, a two-step

inquiry guides our determination of whether the legislature has unconstitutionally

infringed on the rulemaking authority of this court. First, we determine whether

the rule and statute irreconcilably conflict. See People v. G.S., 2018 CO 31, ¶ 32, 416

P.3d 905, 913. During this first step, “we strive to avoid any unnecessary

‘[c]onfrontation[s] of constitutional authority,’ and instead seek to reconcile the

language and intent of the legislative enactment with our own well-established

rules of procedure.” Borer v. Lewis, 91 P.3d 375, 380 (Colo. 2004) (alterations in

original) (emphasis added) (quoting McKenna, 585 P.2d at 279).

¶17 Second, if the rule and statute cannot be reconciled, “the question becomes

whether the affected matter is procedural or substantive.” G.S., ¶ 32, 416 P.3d at

913 (cleaned up). If the affected matter is procedural, the statute is

unconstitutional; but if the matter is substantive, the statute prevails. Id. The

reason for this distinction is rooted in the Colorado Constitution, which grants this

10 court the authority to promulgate procedural rules but reserves to the legislature

the authority to enact substantive statutes. People v. Wiedemer, 852 P.2d 424, 436

(Colo. 1993); Colo. Const. art. VI, § 21.

¶18 We consider these two questions in turn.

1. Does Section 13-16-125(1) Irreconcilably Conflict with C.R.C.P. 121, Section 1-23(3)(a)?

¶19 We begin with the plain language of the Rule, which states that the bond

amount “shall be 125%” of the judgment. C.R.C.P. 121, § 1-23(3)(a) (emphasis

added). “‘Shall’ is mandatory unless there is a clear indication otherwise.” Walton

v. People, 2019 CO 95, ¶ 13, 451 P.3d 1212, 1216. Here, the Rule carves out

exceptions to the 125% bond requirement when it says, “[u]nless the court

otherwise orders, or any applicable statute directs a higher amount.” C.R.C.P. 121,

§ 1-23(3)(a). The words “otherwise orders” empower the trial court to order a bond

amount other than the 125%. Id. (emphasis added). Thus, based on the plain

language of the Rule, the 125% bond amount is not mandatory. See also

C.R.C.P. 121, § 1-23(3)(a) cmt. 2 to 2006 amend. (stating that the Rule “sets the

presumptive amount of a supersedeas bond” (emphasis added)).

¶20 As a result, the Statute and Rule can be harmonized. Read together, the

Statute and Rule dictate that a court should order a bond set at 125% of the

judgment, unless the trial court “otherwise orders” a different amount.

C.R.C.P. 121, § 1-23(3)(a). So, in cases such as this one where 125% of a judgment 11 exceeds the Statute’s cap, a court must “otherwise order[]” the amount to be

$25,000,000 (or less) instead of 125% of the judgment. Because the Rule’s plain

language allows a trial court to order bond amounts other than 125% of the

judgment—whether as a matter of discretion or statutory fiat—there is no

irreconcilable conflict. Thus, the Statute doesn’t unconstitutionally infringe on this

court’s rulemaking authority.2

¶21 But even if the Statute and Rule conflicted, we would still conclude that the

Statute is constitutional under the second step of our analysis.

2. Is Section 13-16-125(1) Procedural or Substantive?

¶22 Recall that our separation-of-powers jurisprudence dictates that if the

affected matter is substantive, the statute prevails, but if the matter is procedural,

the rule prevails. G.S., ¶ 32, 416 P.3d at 913. To help parse procedural from

substantive, we have held that procedural matters are those that “permit the courts

2 Antero asserts two additional arguments in support of an irreconcilable conflict:

first, Antero says C.R.C.P. 62 and 121, § 1-23(3)(a) require bonds for each individual judgment in a case to obtain a stay, but the Statute caps the amount of all judgments “in the aggregate”; and second, Antero argues that by using the present tense “is” to describe an appellant’s diversion of assets, section 13-16-125(2) requires that an appellee suffer harm before a court is authorized to enter orders to further protect an appellee’s interest in its judgment, yet the Rule includes no such prerequisite. Antero did not raise either of these arguments before the trial court. So, we conclude that Antero waived those arguments, and we need not address them. See Paine, Webber, Jackson & Curtis, Inc. v. Adams, 718 P.2d 508, 513 (Colo. 1986). 12 to function and function efficiently.” Id. (quoting Wiedemer, 852 P.2d at 436). Thus,

a statute is procedural if it “attempt[s] to regulate the day-to-day procedural

operation of the courts.” McKenna, 585 P.2d at 278. Substantive matters, on the

other hand, concern “matters of public policy,” G.S., ¶ 32, 416 P.3d at 913 (quoting

Wiedemer, 852 P.2d at 436), or “matters other than the orderly dispatch of

business,” McKenna, 585 P.2d at 277 (quoting Charles W. Joiner & Oscar J. Miller,

Rules of Practice and Procedure: A Study of Judicial Rule Making, 55 Mich. L. Rev. 623,

630 (1957)). At its core, we simply ask whether “[t]he basic purpose” of a statute

“is one of [p]ublic policy.” Id. at 278.

¶23 We conclude that setting the amount of a supersedeas bond cap is a

substantive matter. The amount implicates two matters of public policy: the

appellee’s right to protect its interest in the judgment, Muck v. Arapahoe Cnty. Dist.

Ct., 814 P.2d 869, 872 (Colo. 1991), and the appellant’s practical ability to appeal,

cf. G.S., ¶ 34, 416 P.3d at 913 (“[T]he scope of appealable orders . . . is a ‘matter[] of

public policy’ that is an ‘appropriate subject[] for legislation.’” (quoting Wiedemer,

852 P.2d at 436)).

¶24 The legislature’s decision to limit an appellee’s insurance for its judgment

through a bond cap was a judgment call rooted in public policy, which renders the

Statute substantive. What’s more, the goal of ensuring that an appellee receives

13 complete security for its judgment does not concern a court’s day-to-day orderly

dispatch of business.

¶25 The legislature also designed the bond cap to protect an appellant’s practical

ability to appeal. Though section 13-16-125 does not contain a legislative

declaration, the legislative history is instructive. See Jenkins v. Panama Canal Ry.

Co., 208 P.3d 238, 241 (Colo. 2009) (“[O]n occasion we look to a statute’s legislative

history to determine the General Assembly’s intent.”). The Statute’s primary

sponsor laid out its purpose at numerous hearings: it was designed to ensure that

defendants with “outrageous verdict[s]” awarded against them “will be able to

pursue an appeal by posting an amount that hopefully they can cover without

the[m] having to seek bankruptcy.” Hearing on H.B. 1366 before the H. Fin.

Comm., 64th Gen. Assembly, 1st Sess. (Apr. 23, 2003) (“Hearing on H.B. 1366”)

(emphasis added); see also Third reading of H.B. 1366 before the House, 64th Gen.

Assembly, 1st Sess. (Apr. 25, 2003) (Rep. White, the bill’s primary sponsor,

explaining that the bill would “guarantee [defendants] the ability to appeal their

case” and “ensure access to the courts”). Thus, because the Statute addresses a

matter of public policy, the Statute is substantive.

¶26 To be sure, the Statute does incidentally affect the procedure of obtaining a

stay of execution. But we have held that so long as a statute is “primarily an

expression of public policy,” its “incidental effect upon procedure” doesn’t turn it

14 procedural. Wiedemer, 852 P.2d at 436 (quoting People v. Robinson, 833 P.2d 832,

836 (Colo. App. 1992)). By setting a cap amount, the Statute doesn’t improperly

interfere with this court’s rulemaking authority to establish appellate procedures.

See BDO Seidman, LLP v. Banco Espirito Santo Int’l., Ltd., 998 So. 2d 1, 2 (Fla. Dist.

Ct. App. 2008) (concluding that the supersedeas bond cap “concern[ed]

substantive rights to property and to appeal and [was] not an impermissible

intrusion on the procedural practices of the courts”). But see Grassie v. Roswell Hosp.

Corp., 185 P.3d 1091, 1093 (N.M. Ct. App. 2008) (“[T]he setting of the amount of a

supersedeas bond is a procedural matter.”).

¶27 Antero also argues that the bond amount has no impact on substantive

appellate rights at all because we have held that a defendant may still appeal

without posting a supersedeas bond. See O’Donnell v. State Farm Mut. Auto. Ins.

Co., 186 P.3d 46, 53 (Colo. 2008). But whether the bond is a formal prerequisite is

beside the point. We ask instead if the “purpose” or “affected matter” of the

statute is substantive. Therefore, we cannot ignore the General Assembly’s

concern: a party may forego appeal if it must post a bond of more than $25,000,000

to stay execution of the judgment against it. And that disincentive exists

regardless of whether the bond is a formal precondition to appeal.

¶28 We are similarly unmoved by Antero’s argument that the Statute must be

procedural since this court promulgated a rule concerning supersedeas bond

15 D. Antero’s Equal Protection Challenge

¶30 Antero’s next argument is that the Statute runs afoul of equal protection

principles because it treats appellees differently depending on the size of their

judgments. Antero didn’t present this argument to the trial court, and “issues not

presented in the trial court are deemed waived and cannot be raised on appeal.”

Paine, Webber, Jackson & Curtis, Inc. v. Adams, 718 P.2d 508, 513 (Colo. 1986).

Further, Antero is mistaken to suggest that Rule 21 petitioners are exempt from

this requirement. On the contrary, parties must still provide trial courts an

opportunity to weigh in on the arguments before seeking this court’s invocation

of its original jurisdiction under Rule 21. See, e.g., People v. Hernandez, 2021 CO 45,

¶ 35, 488 P.3d 1055, 1063 (concluding, in a Rule 21 original proceeding, that

respondent “waived []his claim” because he “did not raise th[e] argument

below”).

¶31 Antero counters that it did challenge the Statute’s constitutionality below.

But a constitutional argument based on separation of powers doesn’t preserve

every conceivable constitutional challenge. See Est. of Stevenson v. Hollywood Bar &

Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992) (“Arguments never presented to,

considered or ruled upon by a trial court may not be raised for the first time on

appeal.”). Thus, we conclude that Antero waived its equal protection challenge.

17 ¶32 Even if Antero’s equal protection claim were properly before this court,

however, it would fall short. For one, both parties agree that review of the

Statute—which is patently economic and draws no distinction among protected

classes—would trigger the highly deferential rational basis review. See Hernandez,

¶ 38, 488 P.3d at 1063–64 (“Where no suspect class is identified and no

fundamental right is at issue, we apply a rational basis standard of review.”).

Second, the Statute easily survives rational basis scrutiny because it balances two

“legitimate legislative purpose[s]”: securing an appellee’s judgment on one hand

and preserving appellant’s practical opportunity to appeal on the other. Id., 488

P.3d at 1064. And third, the bond cap “bears [a] rational relationship” to those

interests because the General Assembly reasonably determined that bonds up to

$25,000,000 are not only able to secure an appellee’s right to its judgment but are

also less likely to render appeals cost prohibitive. Id.; see also Hearing on H.B. 1366

(Rep. White explaining that $25,000,000 “seem[ed] to be an amount that is

sufficiently high without being backbreaking”); Duran v. Indus. Claim Appeals Off.,

883 P.2d 477, 483 (Colo. 1994) (explaining that “equal protection will tolerate ‘a

rough accommodation of variant interests,’” and thus “distinctions created by the

legislature [that] are not made with ‘mathematical nicety’” are constitutional

under rational basis review (quoting Dawson ex rel. McKelvey v. Pub. Emps.’ Ret.

18 Ass’n, 664 P.2d 702, 708 (Colo.1983))). So, we reject Antero’s equal protection

argument.

E. Post-Judgment Security and Discovery

¶33 That leaves Antero’s final two arguments. First, Antero asserts that the trial

court should have ordered further security, beyond the $25,000,000 bond. Second,

Antero contends that the court was required to order post-judgment discovery so

Antero could see if Veolia was intentionally dissipating or diverting funds to get

around paying the judgment.

¶34 As to both issues, deference abounds. We review a trial court’s ruling on

the sufficiency of a supersedeas bond for abuse of discretion. See O’Donnell, 186

P.3d at 48 n.2 (“[T]he specific amount of the [supersedeas] bond is at the court’s

discretion.”). We also review a trial court’s management of discovery for abuse of

discretion. See Fox v. Alfini, 2018 CO 94, ¶ 17, 432 P.3d 596, 600. “A court abuses

its discretion only if its decision is ‘manifestly arbitrary, unreasonable, or unfair.’”

Churchill v. Univ. of Colo. at Boulder, 2012 CO 54, ¶ 74, 285 P.3d 986, 1008 (quoting

Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dep’t, 196 P.3d 892, 899 (Colo. 2008)).

So, instead of asking “whether we would have reached a different result,” we ask

“whether the trial court’s decision fell within a range of reasonable options.” Id.

(quoting E-470 Pub. Highway Auth. v. Revenig, 140 P.3d 227, 230–31 (Colo. App.

2006)).

19 ¶35 We conclude that the trial court’s orders fell within the range of reasonable

options before it. First, the trial court did not abuse its discretion by setting the

bond amount at $25,000,000. The Rule grants a trial court discretion to deviate

from the presumptive bond amount of 125%, but that discretion doesn’t extend to

setting the bond at an amount above the cap set by the legislature.4 Second, the

trial court’s refusal to order additional discovery wasn’t arbitrary, unreasonable,

or unfair. For this argument, Antero relies on section 13-16-125(2), which states

that “a court may enter orders that are necessary to protect the appellee or that

require the appellant to post a supersedeas bond in an amount” beyond the

$25,000,000 cap. The court, however, may only do so once an appellee “proves by

a preponderance of the evidence that [the] appellant . . . is intentionally dissipating

or diverting assets outside the ordinary course of its business for the purpose of

avoiding payment of the judgment.” § 13-16-125(2). Without additional

discovery, Antero argues that it’s impossible for an appellee to prove that an

appellant has the intent to avoid paying the judgment by dissipating or diverting

funds. More broadly, Antero posits that the purpose of section 13-16-125(2) is

impossible to fulfill absent an order for additional discovery.

4 Antero also relies on subsections (5) and (9) of C.R.C.P. 121, section 1-23 to argue

that the trial court shouldn’t have considered the contract between Veolia’s parent company and Antero. Antero waived this argument by failing to make it below. Therefore, we do not address it. 20 ¶36 Perhaps. But the specific order of operations in section 13-16-125(2)

undercuts Antero’s argument that discovery orders are mandatory. Before a court

has discretion to enter any additional orders, including post-judgment discovery

orders, section 13-16-125(2) requires that an appellee first make the required

showing by a preponderance of the evidence. No doubt, the burden section

13-16-125(2) places on appellees—proving an appellant’s intent to dissipate or

divert funds—is tough to meet without further discovery. But the plain language

of the Statute suggests that the General Assembly determined that section

13-16-125(2)’s purpose could be fulfilled with that hurdle in place. We may not

rewrite the statute. See Owens v. Carlson, 2022 CO 33, ¶ 30, 511 P.3d 637, 643 (“[W]e

have no authority to rewrite a statute.”).

¶37 Moreover, section 13-16-125(2) provides that a court “may” issue additional

orders as “necessary to protect the appellee.” Here, the trial court decided that no

additional discovery order was necessary to protect Antero, and that conclusion

was not an abuse of discretion considering the $25,000,000 bond and the additional

assurances from Veolia.

III. Conclusion

¶38 We discharge the rule to show cause and remand for further proceedings

consistent with this opinion.