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.
1 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.”
2 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.
3 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
4 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.
5 ¶ 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
6 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
8 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.
¶ 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
10 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.
11 • 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-
12 $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.
14 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.
15 ¶ 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.