Stansbury v. Colorado Natural Gas

• Court: Colorado Court of Appeals
• Decided: May 29, 2025
• Docket: 24CA1147
• Status: Unpublished

Opinion

24CA1147 Stansbury v Colorado Natural 05-29-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1147 Jefferson County District Court No. 23CV91 Honorable Christopher C. Zenisek, Judge

Dean Stansbury and James Stansbury,

Plaintiffs-Appellants,

v.

Colorado Natural Gas, Inc.,

Defendant-Appellee.

APPEAL DISMISSED IN PART AND JUDGMENT AFFIRMED

Division VII Opinion by JUDGE JOHNSON Lipinsky and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 29, 2025

Dean Stansbury, Pro Se

James Stansbury, Pro Se

Overturf McGath & Hull, P.C., Steven W. Boatright, Sarah A. Thomas, Denver, Colorado, for Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Plaintiffs, Dean Stansbury and James Stansbury (collectively

the Stansburys),1 appeal the district court’s order granting

summary judgment in favor of defendant, Colorado Natural Gas,

Inc. (Colorado Natural). The Stansburys also appeal the court’s

alternative grounds for dismissing their negligence claim — as a

sanction under C.R.C.P. 37 for their “flagrant disregard” of their

discovery obligations. The Stansburys contend that the district

court erred by (1) concluding there were no genuine issues of

material fact concerning their negligence claim; (2) dismissing their

negligence claim under Rule 37; (3) exhibiting bias against them;

(4) failing to provide a complete record on appeal; and (5) awarding

Colorado Natural its costs.

¶2 We affirm the district court’s grant of summary judgment in

favor of Colorado Natural. Because of our disposition, we need not

address the court’s dismissal of the Stansburys’ negligence claim

under Rule 37. We decline to address both the Stansburys’

incomplete record claim, because they failed to comply with C.A.R.

1 We later refer to Dean Stansbury by his first name for clarity

because the Stansburys share the same last name. We intend no disrespect by doing so.

1 10, and their undeveloped judicial bias claim. And we dismiss for

lack of jurisdiction the Stansburys’ appeal of the court’s cost award

to Colorado Natural. We therefore dismiss the appeal in part but

otherwise affirm the judgment.

I. Background

¶3 On November 15, 2022, Dean called Colorado Natural’s

customer service number to request an inspection of potentially

hazardous fence pillars at a neighbor’s property and to request a

callback from a technician. On December 1, 2022, Colorado

Natural’s district manager, Joe Berry (Berry), informed Dean that

the pillars were safely positioned.

¶4 Later that day, Dean called Colorado Natural to report a

natural gas odor near the gas meter at the Stansburys’ property in

Conifer. Colorado Natural requested that Dean meet the

technicians at the property to show them the location of the odor.

During the call, Dean instructed Colorado Natural that its

employees were not permitted to enter the property beyond the “no

trespassing” sign. Dean was not home at the time he made the call

or when Colorado Natural came to the home.

2 ¶5 The Stansburys alleged that they later discovered Colorado

Natural employees entered their property to shut off the gas valve

and locked the gas meter. They claim that, because they were not

notified in advance that the gas supply would be shut off, a pipe

froze and burst, resulting in a flood causing substantial property

damage. But Colorado Natural’s position was that Berry contacted

the Stansburys on the afternoon of December 1 to inform them that

their service had been temporarily discontinued and instructed him

on the process for restoring service once he returned to the

property.

¶6 In April 2023, the Stansburys filed this lawsuit against

Colorado Natural, asserting trespass, negligence, breach of

contract, and breach of the duty of good faith and fair dealing

claims. They alleged that Colorado Natural had no cause to

disconnect any gas service or to lock their gas meter. The

Stansburys further alleged that the flooding caused over $1.5

million in damage to their property, including the cost to repair

their real property and to replace personal items and scientific

equipment. Because of the damage to their property, they also

alleged that they incurred moving and temporary housing expenses.

3 ¶7 Colorado Natural moved to dismiss the Stansburys’ claims.

The district court granted the motion except as to the negligence

claim. The court reasoned that the Stansburys asserted plausible

allegations that Colorado Natural breached a duty it owed to the

Stansburys by failing to notify them of the gas shutoff.

¶8 After Colorado Natural made numerous attempts to obtain

discovery from the Stansburys, including through a C.R.C.P.

34(a)(2) request for inspection of the allegedly damaged property

and repeated demands for documentation of damages, Colorado

Natural sought summary judgment. In the motion, Colorado

Natural argued that the Stansburys failed to produce evidence that

(1) Colorado Natural breached a duty by failing to give the

Stansburys notice of the interrupted natural gas service;

(2) Colorado Natural caused, through an act or omission, the

Stansburys’ pipe to freeze and burst, resulting in damage to the

Stansburys’ property; and (3) the Stansburys were entitled to

damages.

¶9 After briefing, the district court granted summary judgment in

favor of Colorado Natural. It held that, even if Colorado Natural

was not entitled to summary judgment, it would dismiss the

4 Stansburys’ negligence claim as a sanction under C.R.C.P. 37

because of their failure to provide discovery as the court had

ordered.

II. Summary Judgment

¶ 10 We conclude that the district court did not err by granting

summary judgment in favor of Colorado Natural.

A. Standard of Review and Applicable Law

¶ 11 We review de novo a district court’s grant of summary

judgment. P.W. v. Child.’s Hosp. Colo., 2016 CO 6, ¶ 11.

¶ 12 In considering whether summary judgment is appropriate, a

court grants the nonmoving party the benefit of all favorable

inferences that may reasonably be drawn from the undisputed facts

and resolves all doubts against the moving party. Dep’t of Revenue

v. Agilent Techs., Inc., 2019 CO 41, ¶ 15.

¶ 13 Summary judgment is a drastic remedy and, therefore, is only

appropriate upon a showing that “there is no genuine issue as to

any material fact and . . . the moving party is entitled to a judgment

as a matter of law.” C.R.C.P. 56(c); Sanchez v. Moosburger, 187

P.3d 1185, 1187 (Colo. App. 2008). A fact is material if it will affect

the outcome of the case, and an issue is genuine if the evidence

5 presented demonstrates “that a reasonable jury could return a

verdict for the non-moving party.” Andersen v. Lindenbaum, 160

P.3d 237, 239 (Colo. 2007).

¶ 14 “The burden of establishing the nonexistence of any genuine

issue of material fact is on the moving party.” S. Cross Ranches,

LLC v. JBC Agric. Mgmt., LLC, 2019 COA 58, ¶ 15 (citing Civ. Serv.

Comm’n v. Pinder, 812 P.2d 645, 649 (Colo. 1991)). “The opposing

party is entitled to the benefit of all favorable inferences that may

reasonably be drawn from the undisputed facts, and all doubts as

to the existence of a triable issue of fact must be resolved against

the moving party.” Id. at ¶ 12 (citing Martini v. Smith, 42 P.3d 629,

632 (Colo. 2002)).

B. The District Court’s Order

¶ 15 The district court concluded that the Stansburys had not

established genuine issues of material fact on three of the four

negligence elements.

¶ 16 To prevail on a negligence claim, the plaintiff must prove

(1) the existence of a legal duty of the defendant to the plaintiff;

(2) breach of that duty; (3) injury and damages to the plaintiff; and

6 (4) a sufficient causal connection between the defendant’s breach

and the plaintiff’s damages. Leaf v. Beihoffer, 2014 COA 117, ¶ 12.

¶ 17 The court first concluded that the Stansburys failed to prove

that Colorado Natural breached a duty to them because Colorado

Natural notified Dean that it was shutting off the gas to the

Stansburys’ property in response to Dean’s odor complaint.

¶ 18 Colorado Natural provided an affidavit from Berry, who

attested that Dean called Colorado Natural to report the smell of

natural gas emitting from the Stansburys’ property. Berry said in

the affidavit that he and another technician went to the property

and turned off the gas. Berry spoke with Dean later that same

afternoon and provided him with instructions for how to request

restoration of his gas service. Colorado Natural also provided a

telephone recording between Dean and Colorado Natural’s

technician Chris Farrier (Farrier) that took place on December 1.

Dean can be heard on the telephone call expressing anger that

Colorado Natural “trespassed” on “his property” to turn off the gas

and threatening to sue and file a criminal complaint.

¶ 19 The court also determined that there was no genuine issue of

material fact as to causation. The Stansburys had argued that

7 genuine issues of material fact existed because the accountholder

at the property, Donna Boreck (Boreck), had not been provided with

notice that the gas would be shut off. But the district court rejected

this argument, reasoning that Boreck was not a party to the action.

¶ 20 And the court reasoned that, despite the minimal photographs

and estimated amounts the Stansburys submitted as part of the

summary judgment briefing to prove their damages, they had not

produced any evidence that Colorado Natural’s action of turning off

the gas was the proximate cause of the burst pipe or that a flood

had even occurred on the property.

¶ 21 Finally, the court determined that the Stansburys’ “self-

created list of [damaged] personal property and scientific

equipment,” as well as their estimate of the cost of repairing the

items, which they based on the cost of “items by similar listing on

websites such as Ebay.com,” was insufficient to establish a genuine

issue of material fact on their alleged damages. The court also

concluded that the Stansburys failed to designate “a qualified

expert witness who could testify to the repairs needed [to the

property] and the approximate costs of such repairs.”

8 ¶ 22 Despite the court’s summary judgment order, the Stansburys

argue that (1) Dean was qualified to serve as an expert to prove the

Stansburys’ damages; (2) Colorado Natural’s affidavits from Berry

and Farrier had little to no evidentiary value; and (3) the

Stansburys’ version of how events unfolded on December 1

materially differed from Colorado Natural’s representation.

C. Analysis

¶ 23 For four reasons, we conclude the district court did not err by

granting summary judgment to Colorado Natural on the

Stansburys’ negligence claim.

¶ 24 First, even assuming — as the district court did — that

Colorado Natural owed a duty of care to the Stansburys, the

Stansburys failed to produce any evidence establishing that

Colorado Natural breached that duty. The Stansburys contend that

they established the existence of genuine issues of material fact as

to a breach because (1) Colorado Natural fabricated a reason to

trespass on their property; (2) Colorado Natural did not provide

them notice that the gas would be shut off; and (3) Farrier’s

affidavit, in which he said he had notified Dean of the gas shutoff,

was inadmissible hearsay.

9 ¶ 25 Colorado Natural does not dispute that it turned off the gas to

the Stansburys’ property on December 1, 2022. For this reason,

the Stansburys’ picture depicting a locked gas meter as part of the

summary judgment briefing does not prove the breach element of

their negligence claim.

¶ 26 The record shows that Colorado Natural fulfilled its obligation

to maintain customer safety by responding to the natural gas

concern, which Dean himself reported, by temporarily

disconnecting the Stansburys’ gas. The Public Utilities

Commission, which regulates utility companies like Colorado

Natural, has promulgated regulations that authorize such entities

to discontinue natural gas service due to safety concerns. Dep’t of

Regul. Agencies Rule 4407(a)(V), 4 Code Colo. Regs. 723-4.

¶ 27 The district court relied on the Berry and Farrier affidavits, in

which those witnesses asserted that Colorado Natural had informed

Dean about the gas being shut off and that Dean had confirmed

such notice. Specifically, the court noted that Colorado Natural

submitted a recording of a call between Farrier and Dean in which

Dean discussed how angry he was that the gas supply had been

shut off after he had complained about the gas odor emanating

10 from his neighbor’s property. Thus, the court determined that the

Stansburys did not provide evidence to rebut the fact that they had

notice on December 1, 2022, that the gas supply to the property

was being shut off in response to Dean’s odor complaint.

¶ 28 And while the Stansburys’ challenge to Colorado Natural’s

affidavits as “inadmissible hearsay” may be a proper objection to

oppose summary judgment, see People v. Hernandez & Assocs., Inc.,

736 P.2d 1238, 1240 (Colo. App. 1986) (“[A]ffidavits based upon

inadmissible hearsay are insufficient to support summary

judgment.”), it was the Stansburys, not Colorado Natural, who

relied on inadmissible hearsay. Under C.R.C.P. 56(e), an affidavit

submitted in support of or in opposition to a summary judgment

motion must be “made on [the affiant’s] personal knowledge.” Berry

and Farrier attested that the statements in their affidavits were

based on their personal knowledge and the Stansburys do not

dispute the affidavits in this regard. Regardless, the telephone call

recording — the accuracy of which the Stansburys do not dispute

— includes Dean’s identification of himself. Therefore, Dean’s

statements are nonhearsay, as they are statements of a party

opponent admissible under CRE 801(d)(2)(A).

11 ¶ 29 Farrier’s statements from the call would likely be admissible

under CRE 106, as Dean’s statements would only make sense if the

entire call — or at least portions of what Farrier said to Dean — was

also admitted. See People v. Montoya, 2024 CO 20, ¶ 48 (“[W]hen a

writing or recorded statement or part thereof is introduced by a

party, an adverse party may require him at that time to introduce

any other part or any other writing or recorded statement which

ought in fairness to be considered contemporaneously with it.”

(quoting CRE 106)). And although the recording of the call between

Farrier and Dean is not dated, Farrier attests in his affidavit that

the metadata for the recording shows it was created on December 1,

2022. The Stansburys submitted no evidence contradicting that

the telephone call took place on that date.

¶ 30 While the Stansburys challenged Colorado Natural’s affidavits,

they did not submit an affidavit from Boreck supporting their claim

that she did not receive advance notice of the gas being shut off.

Boreck’s statements may be inadmissible hearsay. Regardless, the

Stansburys failed to rebut that Dean did not know about the gas

being shut off on December 1 in response to Dean’s recorded

statements during his call with Farrier. See People in Interest of

12 S.N. v. S.N., 2014 CO 64, ¶ 17 (“[R]eliance upon allegations or

denials in the pleadings will not suffice when faced with an affidavit

affirmatively showing the absence of a triable issue of material fact.”

(quoting Ginter v. Palmer & Co., 585 P.2d 583, 585 (Colo. 1978)));

Olson v. State Farm Mut. Auto. Ins. Co., 174 P.3d 849, 858 (Colo.

App. 2007) (holding that “[m]ere conclusory statements are not

sufficient to raise genuine factual issues” in opposition to a motion

for summary judgment).

¶ 31 Second, the Stansburys failed to demonstrate that Colorado

Natural’s disruption to their gas service was the actual and

proximate cause of the alleged flood and resulting damage to the

Stansburys’ real and personal property. We agree with the district

court that to prove causation, a plaintiff must show that, but for the

alleged negligence, the harm would not have occurred. Reigel v.

SavaSeniorCare L.L.C., 292 P.3d 977, 985 (Colo. App. 2011). The

requirement of but-for causation is satisfied “if the negligent

conduct in a ‘natural and continued sequence, unbroken by any

efficient, intervening cause, produce[s] the result complained of,

and without which that result would not have occurred.’” Smith v.

State Comp. Ins. Fund, 749 P.2d 462, 464 (Colo. App. 1987)

13 (quoting Stout v. Denver Park & Amusement Co., 287 P. 650, 650

(Colo. 1930)); see also Groh v. Westin Operator, LLC, 2013 COA 39,

¶ 50 (causation may be found where the negligent actor “sets in

motion a course of events” that leads to the plaintiff’s injury), aff’d,

2015 CO 25.

¶ 32 The Stansburys argue that a causal connection exists between

Colorado Natural’s actions and their alleged injuries because their

pipe would not have frozen and burst and, thus, there would not

have been a flood that caused property damage had Colorado

Natural not cut off the gas supply to the property. In support of

this argument, they point to a timeline of events they submitted to

the court. But they failed to authenticate the information in that

timeline. In fact, as the district court noted, there is no proof in the

record that a flood even occurred at the property.

¶ 33 In support of their assertion that there is a genuine issue of

material fact as to causation, the Stansburys argue that “any

homeowner should know” that an “expert witness is not necessary

to establish causation as it is common knowledge that water will

freeze and burst copper waterline during winter if there is no

natural gas supply to the heating source.” (Emphasis added.) This

14 conclusory statement, however, does nothing to advance their

position.

¶ 34 A finding of negligence does not impose liability on a defendant

unless the negligence proximately caused the plaintiff’s alleged

injury. See Vititoe v. Rocky Mountain Pavement Maint., Inc., 2015

COA 82, ¶ 37. While some confusion persists in the terminology

used to explain principles of causation, see Rocky Mountain Planned

Parenthood, Inc. v. Wagner, 2020 CO 51, ¶ 27, for the purpose of

our decision, we need not look beyond some well-established rules.

¶ 35 For instance, the district court ordered the Stansburys to

allow Colorado Natural access to the property for an inspection, but

the Stansburys failed to cooperate with defense counsel on

scheduling the inspection. Under C.R.C.P. 34(a)(2), a party can

inspect the plaintiff’s alleged property damage by serving a request

“[t]o permit entry upon designated land . . . in the possession or

control of the party upon whom the request is served.” Although

email exchanges between Dean and defense counsel indicated the

Stansburys would permit the court-ordered inspection of their

property, the record reflects that the inspection never occurred.

15 ¶ 36 As the district court noted, the Stansburys made Colorado

Natural’s inspection of the property extremely difficult by

demanding that Colorado Natural’s inspectors sign nondisclosure

agreements and pass security background checks before they could

access the property. The Stansburys also claimed that the property

was completely inaccessible for months at a time due to snowpack,

the presence of high voltage equipment, or their own personal

scheduling conflicts. And they failed to designate an expert for

many months, only identifying Dean as their expert on damages

after the discovery cutoff had passed. One example of the

Stansburys’ intransience is an email that Dean sent to Adrian

Castro (Castro), Colorado Natural’s original defense counsel,

indicating, “You are incorrect in assuming that . . . I am required to

grant you access to damaged property . . . . You as a hostile entity

have no technical standing in damaged materials, therefor [sic] you

are not invited to be present” at any inspection.

¶ 37 We conclude that the district court did not abuse its discretion

by determining that Dean was not properly designated as an expert.

Besides the belated disclosure beyond the discovery deadline, the

district court reasoned that the disclosure did not include the

16 information that must be provided under C.R.C.P. 26(a)(2)(B)(II).

For example, while the Stansburys submitted Dean’s curriculum

vitae, they failed to provide any documentation regarding his

expertise or an explanation of the topics on which they anticipated

he would testify. Thus, the district court properly determined that

the Stansburys’ disclosure of Dean as an expert was noncompliant

with the requirements of C.R.C.P. 26(a)(2)(B)(II). See Sovde v. Scott,

2017 COA 90, ¶ 34 (holding that the district court did not abuse its

discretion when it denied the plaintiff’s request to call certain expert

witnesses whom the plaintiff had not disclosed before the expert

endorsement deadline).

¶ 38 Third, despite the Stansburys’ position that they adequately

demonstrated the cost to replace the scientific equipment and other

personal property damaged during the alleged flooding, as well as

the cost to repair the damage to the real property, the record shows

otherwise. As initial proof of the amount of their damages, they

offered a worksheet they created that listed twenty categories of

items with corresponding repair or replacement cost estimates. But

they provided this worksheet without supporting documentation,

such as invoices from contractors or receipts to evidence purchase

17 of replacement items or equipment and materials for the repairs

needed. Instead, the Stansburys insisted they would provide the

relevant documentation at a future date, but they never did so.

¶ 39 The record reflects that defense counsel repeatedly sought to

obtain supporting documentation for the Stansburys’ claim that

they incurred $1.5 million in damages — such as invoices,

manuals, appraisals, repair estimates, photos, and receipts — at

several points during the pretrial proceedings. For example, on

October 20, 2023, the Stansburys emailed a narrative and timeline

to Castro, but they provided nothing else to substantiate their

alleged damage figure. In the email, the Stansburys stated that

they would be producing a “Damage Claims Report” and

photographs the following week.

¶ 40 Then, on October 30, 2023, the Stansburys filed a

supplemental disclosure, but once again, other than an estimate

from a contracting company, they failed to disclose any documents

substantiating whether they had moved forward with the estimate

or paid the contractors for the cost of the damaged items listed.

¶ 41 The Stansburys’ supplemental disclosure also indicated that

the “Damage Claims Report” and photographs would be disclosed

18 by November 9, 2023. But on November 10, the Stansburys left

Castro a voicemail indicating that the digital photographs had been

corrupted. In response, Castro emailed the Stansburys stating,

“Your voice mail indicates the digital photographs cannot be

produced because they are corrupted. Do you still have the camera

or memory stick? If so, we can see if they can be recovered by a

forensic expert.” The email continued, “If not, do you have any

invoices or other supporting documentation for the purchase of

these items, and the damage caused to them.” From November 11

to November 16, 2023, Castro communicated further with the

Stansburys, but the Stansburys did not supplement their

disclosures and declared that they had satisfied their discovery

obligations. In fact, the Stansburys communicated that they did

not “see the need” for a conference with the court to address the

disclosure issues.

¶ 42 Besides the estimate from the contractor, before the court

entered summary judgment, the Stansburys never provided defense

counsel or the district court with any documentation evidencing the

extent of the damage to their real and personal property,

corroborating evidence of the cost to repair the damage to the real

19 property or to repair or replace the damaged personal property, or

receipts or invoices supporting payments they made. See Gibbons

v. Ludlow, 2013 CO 49, ¶ 2 (affirming that the plaintiff’s failure to

present evidence of the fact of damages, beyond mere possibility or

speculation, justified the district court’s grant of summary

judgment); see also Terrones v. Tapia, 967 P.2d 216, 218-19 (Colo.

App. 1998) (holding that summary judgment is appropriate when

the nonmoving party has not identified expert witnesses or

designated documents that support a basis for computing damages

claims).

¶ 43 A final reason for rejecting the Stansburys’ damages argument

is that they provided belated — and insufficient — documentation

in support of their damage claim. The Stansburys contend that the

court erred by failing to take into consideration the photographic

evidence supporting their claim of damages they submitted on June

12, 13, and 24, 2024. But they submitted this evidence after the

court granted summary judgment to Colorado Natural on May 20,

2024.

¶ 44 Courts do not abuse their discretion if they decline to set aside

a summary judgment ruling when the “[n]ewly discovered evidence”

20 under C.R.C.P. 59(d)(4) could have been discovered by the exercise

of reasonable diligence before the briefing on the summary

judgment motion concluded and when the evidence would not have

affected the district court’s ruling. See McDonald v. Zions First Nat’l

Bank, N.A., 2015 COA 29, ¶¶ 86-87; Dubois v. Myers, 684 P.2d 940,

943 (Colo. App. 1984). The Stansburys do not provide any

argument below or on appeal as to how the belatedly produced

photographs showing the purported damage to the property could

constitute “[n]ewly discovered evidence” that would entitle them to

relief under C.R.C.P. 59(d)(4). Even assuming it was newly

discovered evidence, the Stansburys also failed to show how the

photographs would have changed the district court’s finding that

Colorado Natural did not breach any duty owed to the Stansburys

and did not proximately cause any damage to the Stansburys’

¶ 45 And in this case, the district court had no discretion to review

the belatedly submitted evidence because the Stansburys filed their

notice of appeal in this court on June 27, 2024; thus, as of that

date, the district court lost jurisdiction over any issue relating to

the merits of the Stansburys’ negligence claim. C.A.R. 3(a); see

21 Ditirro v. Sando, 2022 COA 94, ¶ 27 (The filing of a notice of appeal

generally “shifts jurisdiction to the appellate court, thus divesting

the [district] court of jurisdiction to conduct further substantive

action related to the judgment on appeal.” (quoting Musick v.

Woznicki, 136 P.3d 244, 246 (Colo. 2006))); see also Musick, 136

P.3d at 248 (“[O]nce an appeal is perfected[,] jurisdiction over the

case is transferred from the [district] court to the appellate court for

all essential purposes with regard to the substantive issues that are

the subject of the appeal.” (quoting Molitor v. Anderson, 795 P.2d

266, 268 (Colo. 1990))).

¶ 46 Therefore, we conclude that, because no genuine issue of

material fact exists as to the elements of breach, causation, and

damages for the Stansburys’ negligence claim, the district court

properly granted summary judgment in favor of Colorado Natural.

III. Remaining Contentions

¶ 47 Of the Stansburys’ remaining claims, we decline to address

both their incomplete record claim, because they failed to comply

with C.A.R. 10, and their undeveloped judicial bias claim, because

they waived the claim, failed to preserve the issue, and presented

underdeveloped arguments. And we dismiss the Stansburys’

22 appeal of the court’s cost award to Colorado Natural because we

lack jurisdiction over it.

A. Incomplete Record

¶ 48 The Stansburys contend that the district court erred by failing

to provide a complete record on appeal. Specifically, they assert

that the appellate record is missing court filings from April 2023 to

June 2023, as well as a thumb drive containing electronic files that

the Stansburys claim they submitted to the court on May 2, 2024.

¶ 49 “It is the appellant’s job to ensure that the reviewing court has

an adequate record.” Knoll v. Allstate Fire & Cas. Ins., 216 P.3d

615, 617 (Colo. App. 2009). C.A.R. 10(f) lays out a process that a

party must undertake to reconstruct a missing record.

¶ 50 The Stansburys did not attempt to reconstruct the record

under C.A.R. 10, as they were required to do if they believed the

record was incomplete. Nor did they seek to supplement the record.

Thus, to the extent the Stansburys contend information is missing

from the record, it was their obligation “to take all steps necessary

under the appellate rules to obtain the necessary record for review.”

Halliburton v. Pub. Serv. Co. of Colo., 804 P.2d 213, 217 (Colo. App.

1990). Accordingly, because they failed to comply with C.A.R. 10,

23 we decline to address the Stansburys’ contention of missing records

further. And because the Stansburys did not attempt to

reconstruct the record with the documents from the thumb drive,

we must presume that the record supports the district court’s grant

of summary judgment to Colorado Natural. See In re Marriage of

McSoud, 131 P.3d 1208, 1211 (Colo. App. 2006) (“[I]f a party fails to

attempt to reconstruct the record as required by” C.A.R. 10, “that

party may not thereafter complain that the record is inadequate.”).

The record is sufficient to establish that the district court did not

err by granting summary judgment to Colorado Natural.

B. Judicial Bias

¶ 51 The Stansburys argue that the district court judge exhibited

bias against them because he (1) continually issued rulings adverse

to them and (2) failed to accommodate them under the “American

Disability Act.”

¶ 52 The Stansburys do not delineate whether their judicial bias

claim is based on actual bias or on an appearance of impropriety.

Litigants can waive a claim of judicial bias based on an appearance

of impropriety, while a claim of actual bias cannot be waived.

People v. Jennings, 2021 COA 112, ¶¶ 19, 21, 26.

24 ¶ 53 Where a party alleges the appearance of impropriety, a judicial

officer must be disqualified “in any proceeding in which the judge’s

impartiality[] might reasonably be questioned.” Code of Judicial

Conduct 2.11(A). But a litigant’s failure to file a motion under

C.R.C.P. 97 seeking recusal of a judge due to an appearance of

impropriety may constitute a waiver of such argument. Richardson

v. People, 2020 CO 46, ¶ 33.

¶ 54 The Stansburys did not seek to disqualify the district court

judge under Rule 97. Thus, we decline to address this claim

further given their failure to preserve it. See In re Marriage of

Zebedee, 778 P.2d 694, 699 (Colo. App. 1988) (declining to address

unpreserved allegations of judicial bias).

¶ 55 Actual bias “exists when, in all probability, a judge will be

unable to deal fairly with a party; it focuses on the judge’s

subjective motivations.” People in Interest of A.P., 2022 CO 24,

¶ 28. Actual bias must be established clearly in the record, as mere

speculative statements and conclusions are insufficient. People v.

Drake, 748 P.2d 1237, 1249 (Colo. 1988).

¶ 56 As we understand the Stansburys’ contention, they view the

district court judge as biased against them because of his rulings.

25 But a judge’s adverse rulings, without more, do not establish actual

bias. See Bocian v. Owners Ins. Co., 2020 COA 98, ¶ 57 (“Unless

accompanied by an attitude of hostility or ill will toward a party, a

ruling by a judge on a legal issue is insufficient to show bias that

requires disqualification.” (citing Brewster v. Dist. Ct., 811 P.2d 812,

814 (Colo. 1991))); see also Saucerman v. Saucerman, 461 P.2d 18,

22 (Colo. 1969) (holding that “rulings of a judge,” even if “erroneous,

numerous and continuous, are not sufficient in themselves to show

bias or prejudice”).

¶ 57 To the extent the Stansburys contend the district court judge

exhibited actual bias, their claim is conclusory and underdeveloped.

And even assuming the Stansburys’ contention of actual bias is

based on more than adverse rulings, such as their underdeveloped

argument that the court failed to accommodate them under the

Americans with Disabilities Act, any such arguments are bare

assertions or speculative. Therefore, we decline to address this

argument further. See In re Marriage of Zebedee, 778 P.2d at 699.

C. Costs Award

¶ 58 The Stansburys contend that the district court erred by

awarding Colorado Natural $7,443.35 in litigation costs. They

26 assert that the district court erred in numerous ways, many of

which are duplicative, so we categorize their arguments as follows:

(1) Colorado Natural failed to provide sufficient information to

support their request for costs; (2) Colorado Natural sought

unreasonable amounts of costs; and (3) Colorado Natural’s fees

were, in part, duplicative of others.

¶ 59 We conclude that we lack jurisdiction over the court’s cost

award to Colorado Natural. Therefore, we dismiss this portion of

the Stansburys’ appeal.

¶ 60 We must independently determine whether we have

jurisdiction over an appeal. In re Estate of Gonzalez, 2024 COA 63,

¶ 12. Subject to certain exceptions not applicable here, we only

have jurisdiction to review final judgments and orders.

§ 13-4-102(1), C.R.S. 2024; see also C.A.R. 1(a).

¶ 61 “[A]n award of attorney fees is distinct and separately

appealable from the judgment on the merits.” Stone Grp. Holdings

LLC v. Ellison, 2024 COA 10, ¶ 31 (quoting Kennedy v. Gillam Dev.

Corp., 80 P.3d 927, 929 (Colo. App. 2003)). This remains true

whether the award is denominated as attorney fees or costs. L.H.M.

Corp., TCD v. Martinez, 2021 CO 78, ¶¶ 25-28.

27 ¶ 62 The Stansburys filed their notice of appeal on June 24, 2024.

It appears they filed a duplicate notice of appeal on July 18, 2024.

The court did not grant Colorado Natural’s request for costs until

August 20, 2024.

¶ 63 An award of costs is not a final appealable order until the

court has reduced the amount to a sum certain. See Stone Grp.

Holdings, ¶ 26 (holding that a damages award is not final for

purposes of appeal until the amount of prejudgment interest is

reduced to a sum certain). At the time the Stansburys filed their

notices of appeal, the district court had not yet reduced Colorado

Natural’s award of costs to a sum certain. To the extent the

Stansburys contend that their notices of appeal included the appeal

of costs, we would lack jurisdiction because the district court had

not yet ruled and, therefore, we lacked a final appealable order.

And because they did not file an amended notice of appeal within

forty-nine days of the court’s August 24, 2024 cost order, we lack

jurisdiction because they did not timely appeal. Id. at ¶ 16; see also

C.A.R. 4(a)(1). Therefore, we dismiss this portion of their appeal.

28 IV. Conclusion

¶ 64 We dismiss the appeal in part but otherwise affirm the

judgment.

JUDGE LIPINSKY and JUDGE HAWTHORNE concur.