24CA1655 White v Peryam 12-04-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1655 Chaffee County District Court No. 20CV30046 Honorable Amanda Hunter, Judge Honorable Douglas S. Walker, Judge
Jonathan White,
Plaintiff-Appellant,
v.
Thomas R. Peryam and Patricia A. Chivvis,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE BROWN Fox and Meirink, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 4, 2025
Jonathan White, Pro Se
The Nettleton Law Firm, Sandra J. Nettleton, Aurora, Colorado; Coruscate PLLC, Catherine Hulme, Fort Collins, Colorado, for Defendants-Appellees ¶1 Plaintiff, Jonathan White, appeals the district court’s
judgment entered after a bench trial resolving his dispute with
defendants, Thomas R. Peryam and Patricia A. Chivvis (collectively,
the landlords). We affirm.
I. Background
¶2 In June 2018, White and the landlords entered into a written
lease allowing White to graze cattle and keep horses on their
160-acre ranch. The lease was for a term of five years and
contained a termination clause allowing either party to terminate
the lease by giving at least one month’s notice.
¶3 In the winter of 2018 to 2019, White left his cattle on the
ranch under the supervision of a hired hand while he worked
elsewhere. White claimed that, when he returned to the ranch in
April 2019, the cattle were malnourished, so he had to remove most
of them from the ranch and move them to another pasture to graze.
The landlords said that White removed his cattle because they
terminated the lease.
¶4 In the summer of 2019, White returned to the ranch to irrigate
the property and perform other work. The landlords said that White
irrigated the ranch to compensate for the damage his cattle had
1 done to the property the prior winter and for the chance to bring his
cattle back in the spring of 2020. White asserted he did the work
on the ranch in exchange for not paying rent in 2019. White also
alleged that the landlords did not terminate the lease until early
September 2019 and that the short notice caused him to have to
sell his cattle quickly at a significant loss.
¶5 In September 2020, White filed a complaint against the
landlords, asserting a claim for fraudulent inducement and seeking
declarations that the lease’s termination provision was
unenforceable and that he retained a leasehold interest in the
ranch. White alleged that, to induce him to enter into the lease,
Peryam “made specific representations” that the landlords “would
never exercise nor attempt to exercise the [t]ermination [c]lause.”
White also alleged that the termination clause was “unconscionable,
and therefore unenforceable,” and was “drafted in plain violation of
the written requirements and timelines” in section 13-40-107,
C.R.S. 2025.
¶6 Alternatively, White asserted claims for breach of the lease and
unjust enrichment. He alleged that the landlords “breached the
[l]ease’s plain terms” through “verbal termination of the [l]ease with
2 less than a month’s notice.” And he alleged that the landlords
received the benefit of services he performed on the ranch without
compensating him for his labor.1
¶7 The landlords counterclaimed for breach of the lease and,
alternatively, unjust enrichment. They alleged that White breached
the lease by failing to do the following: pay rent for 2019, clean out
a ditch, maintain the fences and corral, limit the number of grazing
cattle, and compensate them for damage he or his hired men
caused to the ranch.
¶8 In June 2024, the case proceeded to a three-day bench trial.
The district court issued written findings of fact and conclusions of
law, ruling in relevant part as follows:
• White’s fraudulent inducement claim failed because, even if
Peryam said he would not act on the termination clause, White
did not prove that Peryam knew, when he made the statement
1 White originally asserted claims for fraudulent inducement,
declaratory judgment, and breach of lease (in the alternative). Although White moved to amend his complaint to add several other claims, the district court granted him leave to add only an unjust enrichment claim.
3 or when the lease was signed, that the landlords would later
invoke the termination clause.
• The parties waived application of section 13-40-107, which
requires ninety-one days’ written notice prior to termination,
by agreeing to termination on thirty-days’ notice and not
requiring that the notice be in writing.
• The landlords terminated the lease in the spring of 2019 and
provided more than a month’s notice.
• White proved he did work on the ranch after the lease was
terminated and it would be unjust for the landlords to retain
the benefit of that work without paying for it.
• White was not required to pay rent for 2019 because the
landlords terminated the lease in April 2019 before the end of
the first lease year.
• White breached the lease by having more cattle than the lease
allowed and was responsible for damage caused by the
overgrazing. White was also responsible for damage to the
landlords’ fences, dam, and irrigation ditches.
• The landlords’ unjust enrichment claim failed because the
court awarded damages for breach of the lease.
4 • Both sides proved that they incurred damages. The net award
was in White’s favor in the amount of $1,081.92.
¶9 The landlords moved for “clarification” that they were the
prevailing parties entitled to costs under C.R.C.P. 54(d). White
responded and requested reconsideration of several parts of the
order. The court treated both the landlords’ motion and White’s
response as C.R.C.P. 59 motions (although White’s motion was not
timely filed) and denied them. It clarified that White was the
prevailing party entitled to costs. White appeals.
¶ 10 Although White has been represented by counsel at various
times in the district court, he indicates that he has drafted his own
appellate briefs without the assistance of counsel. As a result, we
construe his briefs broadly to ensure that he is not denied review
because of an inability to articulate his arguments like a lawyer.
Jones v. Williams, 2019 CO 61, ¶ 5. Even so, it is not our role to
rewrite his briefs or act as his advocate. Johnson v. McGrath, 2024
COA 5, ¶ 10.
5 II. Notice of Termination
¶ 11 White contends that the district court erred by concluding that
the parties waived the statutory notice requirements of section
13-40-107.2 We are not persuaded.
A. Standard of Review and Generally Applicable Law
¶ 12 The interpretation of a lease, like any other contract, is a
question of law that we review de novo. Dinnerware Plus Holdings,
Inc. v. Silverthorne Factory Stores, LLC, 128 P.3d 245, 246 (Colo.
App. 2004). Because we “recognize a strong policy of freedom of
contract,” we must interpret contracts “in a way that best
effectuates the intent of the parties and allows each party to receive
the benefit of the bargain.” Ravenstar, LLC v. One Ski Hill Place,
LLC, 2017 CO 83, ¶ 12 (citation omitted).
¶ 13 “Parties to a contract may agree on whatever terms they see fit
so long as those terms do not violate statutory prohibitions or
public policy.” S. Conejos Sch. Dist. RE-10 v. Wold Architects Inc.,
2 To the extent White also cites section 13-40-104, C.R.S. 2025, we
note that statute addresses the notice required to evict a tenant for unlawful detention. Because White was not evicted, this statute does not apply. Even so, the requirements of section 13-40-104 may be waived by contract. See Francam Bldg. Corp. v. Fail, 646 P.2d 345, 349 (Colo. 1982).
6 2023 COA 85, ¶ 24. Parties may even enter into contracts
abrogating or limiting statutory provisions that confer a right or
benefit on them. Francam Bldg. Corp. v. Fail, 646 P.2d 345, 349
(Colo. 1982); Armed Forces Bank, N.A. v. Hicks, 2014 COA 74, ¶ 28.
¶ 14 We also interpret statutes de novo. Ferguson v. Spalding
Rehab., LLC, 2019 COA 93, ¶ 8. In doing so, we strive to give effect
to the legislature’s intent, giving the words and phrases their plain
and ordinary meanings. Id. at ¶ 10.
B. Analysis
¶ 15 Under section 13-40-107(1), (2)(a), a landlord of a
nonresidential real property may terminate a lease for a fixed term
of one year or longer by providing written notice at least ninety-one
days before the end of the term. The statute does not prohibit a
tenant or landlord from waiving the notice requirements or agreeing
to different termination terms. See id. Indeed, where the
legislature has intended to limit parties’ ability to waive statutory
requirements, it has done so expressly. See, e.g., § 38-38-703,
C.R.S. 2025 (“A waiver of or agreement to shorten the time period to
exercise the right to cure a default granted by the provisions of this
article that is made before the date of the default as to which the
7 waiver is granted under a deed of trust, mortgage, or other
instrument evidencing a lien or an evidence of debt secured thereby
shall be void as against public policy.”). We see no such intent
reflected in section 13-40-107.
¶ 16 Under the lease’s termination provision,
[t]he Lease may be terminated by Lessor or Lessee. Lessor shall be required to give Lessee at least one (1) month notice when the Lease is to be terminated. Likewise, Lessee shall be required to give Lessor at least one (1) month notice of termination of the Lease.
¶ 17 The district court determined that the lease’s termination
provision plainly provided for “one month’s notice and there [was]
no requirement that the notice be in writing.” Based on the lease’s
plain terms, the court determined that the parties waived the
statutory notice requirements. We perceive no error.
¶ 18 The termination provision is clear and unambiguous. See Fox
v. I-10, Ltd., 957 P.2d 1018, 1022 (Colo. 1998) (“[W]here a contract
is clear and unambiguous, courts must give effect to the plain and
ordinary meaning of its terms.”). The provision allows the landlords
to terminate the lease with thirty days’ notice. There is no
requirement that the termination be in writing. And White does not
8 assert that he did not understand the provision. When a tenant
agrees to waive the benefit of statutory notice provisions, “he should
be held to his bargain.” Francam, 646 P.2d at 349. Accordingly, we
conclude that the court correctly determined that the parties waived
the statutory notice requirements through the terms of the lease.
¶ 19 Even so, White contends that the court erred for three
reasons: (1) the termination provision was not explicit enough to
waive the statutory notice requirements; (2) a provision allowing for
termination of an agricultural grazing lease with only thirty days’
notice contravenes public policy; and (3) the statute should act as a
gap filler requiring written notice when the lease is silent regarding
the form of notice. We conclude that White did not preserve these
arguments.
¶ 20 White did not argue that the language of the termination
provision was not explicit enough to waive the notice requirements
in section 13-40-107 until his untimely C.R.C.P. 59 motion.
Raising an issue for the first time in a Rule 59 motion does not
preserve that issue for appellate review. See Briargate at
Seventeenth Ave. Owners Ass’n v. Nelson, 2021 COA 78M, ¶ 66
(arguments made for the first time in a post-trial motion are deemed
9 waived for purposes of appeal); People v. Schaufele, 2014 CO 43,
¶ 49 (Boatright, J., concurring in the judgment) (“Motions for
reconsideration are designed to correct erroneous court rulings;
they are not designed to allow parties to present new legal
arguments for the first time and then appeal their denial . . . .”).
And White never argued to the district court that the termination
provision violated public policy or that section 13-40-107 should
act as a gap filler for terms not included in the lease. See Gebert v.
Sears, Roebuck & Co., 2023 COA 107, ¶ 25 (“In civil cases,
arguments never presented to, considered by, or ruled upon by a
district court may not be raised for the first time on appeal.”); In re
Estate of Owens, 2017 COA 53, ¶ 21 (no talismanic language is
required to preserve an issue for appellate review, but the issue
must be brought to the trial court’s attention and ruled upon).
¶ 21 Unpreserved civil claims are “very rarely” reviewed “and only
‘where necessary to prevent manifest injustice.’” In re Estate of
Ramstetter, 2016 COA 81, ¶ 73 (citations omitted); see Wycoff v.
Grace Cmty. Church of Assemblies of God, 251 P.3d 1260, 1269
(Colo. App. 2010) (applying plain error review in civil cases involves
“‘unusual or special’ circumstances” and only “when necessary to
10 avert unequivocal and manifest injustice” (citations omitted)).
White summarily requests that we review his unpreserved
contentions, but he does not explain why we should do so in the
interest of justice. And we fail to see any particular injustice in
enforcing an unambiguous contract provision. Accordingly, we
decline to review White’s unpreserved contentions. See Roberts v.
Am. Fam. Mut. Ins. Co., 144 P.3d 546, 549 (Colo. 2006) (appellate
courts have discretion to review unpreserved civil errors).
¶ 22 We conclude that the district court did not err when it ruled
that the landlords did not have to comply with section 13-40-107
when terminating the lease. See Ravenstar, ¶ 9; Dinnerware Plus
Holdings, Inc., 128 P.3d at 246.
III. Evidentiary Contentions
¶ 23 As best we understand, White challenges the district court’s
decision to exclude three categories of evidence: (1) evidence of how
the landlords became the owners of the ranch; (2) evidence of the
landlords’ motive to enforce the termination clause as retaliation;
and (3) a ranch hand’s statement. We see no reason to reverse.
11 A. Standard of Review
¶ 24 We review a trial court’s evidentiary rulings for an abuse of
discretion. Zapata v. People, 2018 CO 82, ¶ 25. A court abuses its
discretion when its ruling is manifestly arbitrary, unreasonable, or
unfair or if it misconstrues or misapplies the law. People v. Liggett,
2021 COA 51, ¶ 16, aff’d, 2023 CO 22.
B. Additional Background
¶ 25 At a pretrial conference, Judge Amanda Hunter, the first judge
to preside over the case, addressed the landlords’ objections to
several exhibits that White proposed to introduce at trial. These
exhibits pertained to proof of the landlords’ ownership of the ranch
and the competency of their mother before she passed. Although
White was not contesting who owned the ranch, he argued that the
evidence should be admitted because, before the landlords owned
the property, they asked White to falsely testify that their mother
was incompetent when she rewrote her will a month before her
death to exclude the landlords from inheriting her estate, but White
refused. Litigation over the mother’s estate was ongoing when the
landlords entered into the grazing lease with White. White argued
12 that the evidence was relevant to the landlords’ bias, credibility, and
motive to retaliate against him by terminating the lease.
¶ 26 Judge Hunter ruled that the ownership of the ranch was not
relevant because it was undisputed that landlords owned the
property when they entered into the lease with White. She also
ruled that the mother’s competency was not relevant. As a result,
Judge Hunter excluded the exhibits White sought to offer. But she
told White that if he wanted to offer evidence that Peryam asked
White to perjure himself or that the landlords claimed ownership of
property they did not own to show their motive or character for
truthfulness, she would consider that evidence if White made an
adequate showing at trial that it was relevant and admissible under
the procedures set forth in CRE 404, 405, and 608.
¶ 27 After the hearing, White moved the court to reconsider the
admissibility of his exhibits. Judge Hunter denied the motion
based on her ruling at the hearing.
¶ 28 On the first day of trial, White asked Judge Douglas Walker,
the judge who presided over the bench trial, to “rule on [his] last
submission regarding . . . admissibility.” Judge Walker declined to
reconsider Judge Hunter’s ruling, stating that he agreed with her
13 logic and that the evidence was not admissible because it was “too
far afield” and “a waste of all of our time.” But consistent with
Judge Hunter’s ruling, Judge Walker advised White that he could
ask questions about some of the evidence so long as he complied
with the relevant rules of evidence related to character witnesses.
¶ 29 At trial, White sought to offer evidence regarding how the
landlords came to be owners of the ranch, details of the dispute
around the mother’s competency, and a statement a ranch hand
made to him about what Peryam said regarding White’s cattle being
neglected. The district court precluded White from offering evidence
about ownership and competency because it was irrelevant, and it
precluded the ranch hand’s statement because it was hearsay.
C. Motion to Reconsider
¶ 30 White contends that (1) Judge Hunter erred by denying his
motion to reconsider the admissibility of his exhibits without any
substantive analysis, and (2) Judge Walker erred by reversing
Judge Hunter’s ruling that the ownership and competency evidence
was admissible. We disagree.
¶ 31 Judge Hunter preliminarily ruled that evidence of ownership
and the mother’s competency was irrelevant and excluded
14 documentary exhibits addressing those topics. White moved to
reconsider that ruling. To the extent White claims he did not
receive a reasoned ruling on his motion to reconsider, the record
refutes this claim. Judge Hunter denied the motion before trial
based on her ruling at the pretrial conference.
¶ 32 Then, on the first day of trial, Judge Walker declined to reverse
Judge Hunter’s ruling, explaining that the evidence was not
relevant. Even so, Judge Walker said he would allow White to ask
certain questions relating to character as allowed by the rules of
evidence, which was consistent with Judge Hunter’s pretrial ruling
that White could introduce evidence of motive and character for
truthfulness if he complied with CRE 404, 405, and 608. Both
judges explained their reasoning. And contrary to White’s claim,
the “abrupt judicial reassignment of the case” from Judge Hunter to
Judge Walker did not result in a reversal of “previously established
evidentiary rulings without substantive justification.” Judge Walker
did not reverse Judge Hunter’s pretrial ruling.
¶ 33 We conclude that White has failed to show any reversible
error. See Vogel v. Carolina Int’l, Inc., 711 P.2d 708, 715 (Colo. App.
1985) (the party asserting error has the burden to establish it); Rego
15 Co. v. McKown-Katy, 801 P.2d 536, 540 (Colo. 1990) (“[T]he burden
is on the party asserting the error to show reversible error.”).
D. Ownership
¶ 34 White contends that the district court erred by excluding
evidence of how the landlords became owners of the ranch because
it was relevant to his claims, which involved “questions of character
and truthfulness.” We are not persuaded.
¶ 35 All relevant evidence is admissible unless prohibited by the
United States or Colorado Constitutions, a state statute, the rules
of evidence, or any other supreme court rule. CRE 402; see Alhilo
v. Kliem, 2016 COA 142, ¶ 9. Evidence is relevant if it has “any
tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than
it would be without the evidence.” CRE 401.
¶ 36 White never disputed that the landlords owned the ranch
when the parties entered into the grazing lease. White fails to
explain why the events leading up to the landlords becoming the
owners are relevant to his claims of fraudulent inducement, breach
of the lease, or unjust enrichment. In particular, the fraudulent
inducement claim, which is the claim White seems to focus on
16 when arguing that the landlords’ character for truthfulness is
relevant, was based on White’s allegation that Peryam told White
that the landlords would never exercise the termination provision; it
did not relate to how or when the landlords came to own the ranch.
Because White failed to explain how evidence of ownership made
any fact of consequence more or less probable, we conclude the
district court did not abuse its discretion by excluding the evidence.
See CRE 401; Zapata, ¶ 25; Liggett, ¶ 16.
E. Motive
¶ 37 White contends that the district court erred by excluding
evidence that Peryam asked White to perjure himself because it was
admissible under CRE 404(b), 405(b), and 608 as evidence of the
landlords’ motive to enforce the termination clause as retaliation.
We are not persuaded.
¶ 38 Under CRE 404(b), evidence of other crimes, wrongs, or acts
may be admitted, as relevant, to show motive or intent. And CRE
405(b) allows proof of specific instances of a person’s conduct when
the character or trait of a person is an essential element of a claim.
But such evidence may be admitted under CRE 608 in only two
ways: (1) “[t]he credibility of a witness may be attacked or supported
17 by evidence in the form of opinion or reputation,” CRE 608(a); and
(2) “[s]pecific instances of the conduct of a witness, for the purpose
of attacking . . . the witness’ character for truthfulness . . . may not
be proved by extrinsic evidence” but may, “in the discretion of the
court, . . . be inquired into on cross-examination of the witness,”
CRE 608(b).
¶ 39 The evidence White sought to admit — namely, that Peryam
asked White to lie under oath — was a specific instance of Peryam’s
conduct, which White sought to admit to attack Peryam’s character
for truthfulness. Under CRE 608(b), White was only allowed admit
that evidence during cross-examination of Peryam. To the extent
White sought to admit the evidence through Chivvis or his own
testimony, CRE 608(b) prohibited him from doing so.
¶ 40 To the extent White attempted to introduce evidence of motive
through Peryam’s cross-examination — the only authorized method
for its introduction, see CRE 608(b) — White has not persuaded us
that the district court abused its discretion by concluding that the
evidence was irrelevant. As best we understand, White contends
that the evidence shows retaliatory motive — he claims that the
landlords lied to him about enforcing the termination provision to
18 get revenge on him for refusing to perjure himself in their mother’s
competency proceedings. But the court reasoned that the evidence
was “too far afield” to be relevant for that purpose. The court knew
what evidence White intended to offer and concluded that the
evidence was too attenuated to make it more likely that Peryam lied
when he told White that the landlords would not enforce the
termination provision. Based on that rationale, we cannot conclude
that the court abused its discretion by excluding the evidence. See
Hall v. Moreno, 2012 CO 14, ¶ 54 (When reviewing a trial court’s
decision for abuse of discretion, “we ask not whether we would have
reached a different result but, rather, whether the trial court’s
decision fell within the range of reasonable options.” (citation
omitted)).
F. Ranch Hand’s Testimony
¶ 41 White testified that when he returned to the ranch in 2019, he
asked his hired ranch hand what happened to his emaciated cattle.
White continued, “His response was Mr. Peryam told me that was
the only place I could feed your cattle on the ranch . . . .” The
landlords’ counsel objected to hearsay, and the district court
sustained the objection, explaining to White that “what Peryam told
19 somebody else is not [hearsay], but what the young man relayed to
you is.” White contends that the court erred. We disagree.
¶ 42 Hearsay is any “statement other than one made by the
declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.” CRE 801(c). CRE 802
prohibits the admission of hearsay unless the statement falls under
an exception. When a statement contains multiple layers of
hearsay, each layer must be separately analyzed to determine
whether a recognized exception applies. See CRE 805; Bernache v.
Brown, 2020 COA 106, ¶ 14.
¶ 43 Peryam’s statement was not hearsay because it was a
statement by a party-opponent offered against him. See CRE
801(d)(2). Had Peryam made the statement directly to White and
White testified to that statement at trial, there would be no hearsay
problem. But what the ranch hand said to White was hearsay
because it was an out-of-court statement by a third party (the
ranch hand) offered for the truth of the matter asserted (what
Peryam said). CRE 801(c). And White has not explained how the
ranch hand’s statement satisfied any exception to the rule against
hearsay. CRE 802. Accordingly, we conclude that the district court
20 did not abuse its discretion by excluding the testimony. See
Zapata, ¶ 25; Liggett, ¶ 16.
IV. Procedural Irregularities
¶ 44 White contends that the district court erred when it (1) allowed
defense counsel to coach a witness; (2) dispensed with closing
arguments; (3) reassigned the case to a new judge for trial without
notice; (4) denied White’s C.R.C.P. 59 motion as untimely; and
(5) displayed bias. We reject each contention.
A. Coaching a Witness
¶ 45 White contends that the district court erred by failing to stop
the landlords’ counsel from coaching a witness. We disagree.
¶ 46 A trial court “is obligated to administer justice, control the
decorum of the courtroom, and make sure that cases are decided
on appropriate grounds.” Makeen v. Hailey, 2015 COA 181, ¶ 38.
The court has broad discretion to achieve those aims. See id.
¶ 47 On the second day of trial, White told the district court that he
believed counsel was “making facial expressions,” nodding her
head, and making hand gestures to coach Chivvis. The court
indicated that it had heard “some sort of coaching going on from
21 somewhere” but that it had stopped after the court commented on
it. The court said that it trusted the attorneys to act appropriately.
¶ 48 White did not ask the court for further relief; rather, he told
the court, “I just wanted you to be aware of that so that it doesn’t
happen again.” See Forgette v. People, 2023 CO 4, ¶ 24 (“[W]hen a
court takes curative action after a party brings an issue to the
court’s attention and the party fails to object or ask for further
relief, any complaint that the court neglected to do more is
unpreserved.”). White does not point to any instances of coaching
or alleged inappropriate behavior after the court admonished the
parties and counsel. Nor does he identify any prejudice stemming
from the alleged coaching. See C.R.C.P. 61 (“The court at every
stage of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the
parties.”).
¶ 49 On this record, we conclude that the court controlled the
decorum of the courtroom, and we perceive no abuse of discretion
by the court in declining to do more. See Makeen, ¶ 38.
22 B. Closing Argument and Reassignment of the Case
¶ 50 White contends that the district court erroneously denied him
the ability to make a closing argument and that the “abrupt”
reassignment of the case to Judge Walker for trial left White unable
to prepare. But White did not object to Judge Walker presiding over
the trial, nor did he object when the court explained that it would
not allow closing arguments. Thus, we conclude that White failed
to preserve these challenges, and we decline to address them
further. See Ramstetter, ¶ 73.
C. Denial of the Untimely Motion to Reconsider
¶ 51 For the first time in his reply brief on appeal, White appears to
contend that he was unaware of the deadline to file a C.R.C.P. 59
motion and that the district court erroneously denied his motion as
untimely. But we do not address arguments raised for the first time
in a reply brief. IBC Denv. II, LLC v. City of Wheat Ridge, 183 P.3d
714, 718 (Colo. App. 2008).
D. Bias
¶ 52 To the extent White argues that the district court was biased
against him, he does not adequately develop the argument for our
consideration. See S. Colo. Orthopaedic Clinic Sports Med. &
23 Arthritis Surgeons, P.C. v. Weinstein, 2014 COA 171, ¶ 35 (declining
to address conclusory argument presented without authority);
Barnett v. Elite Props. of Am., Inc., 252 P.3d 14, 19 (Colo. App. 2010)
(Appellate courts “will not consider a bald legal proposition
presented without argument or development.”). In addition, White
does not point to anything in the record beyond the court’s adverse
rulings, which are insufficient to support a claim of bias. See In re
Marriage of Johnson, 576 P.2d 188, 190 (Colo. App. 1977) (“Adverse
rulings, standing alone, do not constitute grounds for claiming bias
or prejudice . . . .”).
V. The Lease Termination Date
¶ 53 White contends that the district court erred by finding that the
landlords terminated the lease in April 2019. We are not
persuaded.
A. Standard of Review
¶ 54 “A trial court’s judgment following a bench trial presents a
mixed question of law and fact.” State ex rel. Weiser v. Ctr. for
Excellence in Higher Educ., Inc., 2023 CO 23, ¶ 33. We defer to the
trial court’s determinations of credibility and will not disturb its
findings of fact unless they are clearly erroneous and unsupported
24 by the record. Skyland Metro. Dist. v. Mountain W. Enter., LLC, 184
P.3d 106, 115 (Colo. App. 2007). “If the evidence is conflicting, we
may not substitute our own conclusions for those of the trial court
merely because there may be credible evidence supporting a
different result.” Frisco Lot 3 LLC v. Giberson Ltd. P’ship, LLLP,
2024 COA 125, ¶ 66 (citation omitted).
¶ 55 In civil cases, the court must make its findings by a
preponderance of the evidence. See § 13-25-127(1), C.R.S. 2025.
That standard requires only that the court find a fact to be more
probable than not. See City of Littleton v. Indus. Claim Appeals Off.,
2016 CO 25, ¶ 38.
¶ 56 We first note that the parties dispute preservation. But
because “a party is not required to object to the trial court’s
findings in the trial court to preserve a challenge to those findings,”
People in Interest of D.B., 2017 COA 139, ¶ 30, we address the
merits of White’s contention. See C.R.C.P. 52 (“Neither requests for
findings nor objections to findings rendered are necessary for
purposes of review.”); In re Marriage of Stradtmann, 2021 COA 145,
25 ¶¶ 8-10 (a party was not required to object to a court’s oral rulings
at the conclusion of a hearing to preserve his appellate arguments).
¶ 57 The district court found by a preponderance of the evidence
that the landlords terminated the grazing lease in April 2019. The
court found that the parties had a conversation in the spring of
2019 that a pond would need to be drained and worked on, which
would deprive White’s cattle of water. The court also found that
White’s voluntary removal of the cattle following this conversation
and the fact that White later asked for the landlords’ permission to
use the corral to wean calves were “indicative of knowledge that the
lease [had] ended.”
¶ 58 The record supports the court’s findings. The landlords
testified that they terminated the lease in April 2019. White
acknowledged that he spoke with Peryam in the spring of 2019
about doing work on the pond. Chivvis testified that the landlords
told White to remove his cattle in April 2019 because they had to
drain the pond to do necessary repair work, and there was no other
source of water for White’s cattle. And the landlords testified that
after White removed his cattle, he asked for permission to bring his
calves back to wean.
26 ¶ 59 Still, White highlights the following contradictory evidence:
• the poor health of White’s cattle necessitated their removal
in May of 2019;
• White was present and continued work on the ranch in the
summer of 2019, including storing his belongings, boarding
his horses, and performing irrigation work and lease
obligations, without objection from the landlords;
• Peryam testified that White irrigated pastures during the
summer of 2019, creating feed for the cattle;
• Peryam admitted there was enough water on the ranch for
White’s horses to survive from June to November 2019;
• a water commissioner testified that water to the pond came
from a neighboring property;
• White testified that the ranch had never had an issue with
water availability for twenty years; and
• Peryam testified that the pond was not dug out until March
2020, and receipts corroborated that work on the pond
occurred in the spring of 2020.
¶ 60 But even if there was contradictory evidence, the district court
was in the best position to make credibility determinations and
27 weigh the evidence. See Frisco Lot 3 LLC, ¶ 66. And because the
court’s findings have record support, we cannot disturb them. See
Skyland, 184 P.3d at 115; see also Owens, ¶ 22 (an appellate court
may not reweigh evidence or substitute its judgment for that of the
trial court).
¶ 61 To the extent White contends that the court should have found
that the landlords waived or were estopped from claiming that they
terminated the lease in the spring of 2019, or that equitable
considerations mandated a different finding, White failed to raise
those arguments before the district court, so we decline to address
them. See Ramstetter, ¶ 73.
VI. Damages
¶ 62 White contends that the district court erred in awarding
damages because (1) the economic loss rule did not bar his
noneconomic damages, and (2) its computation of economic
damages was based on erroneous factual findings. We reject these
contentions.
¶ 63 We review a trial court’s assessment of damages for clear
error. Blakeland Drive Invs., LLP IV v. Taghavi, 2023 COA 30M,
28 ¶ 38. The trial court has broad discretion to determine the amount
of damages to award. McDonald’s Corp. v. Brentwood Ctr., Ltd., 942
P.2d 1308, 1311 (Colo. App. 1997). We will not disturb an award of
damages unless it is completely without record support. Hauser v.
Rose Health Care Sys., 857 P.2d 524, 531 (Colo. App. 1993).
B. Economic Loss Rule
¶ 64 White requested both economic and noneconomic damages on
his claims of fraudulent inducement and breach of the lease.
Specifically, White requested economic damages because he was
not given enough time to find an alternative for grazing his cattle
and had to sell the cattle at a loss. White also requested damages
for the emotional pain and mental anguish he suffered from losing
his cattle, which were his passion and livelihood.
¶ 65 White contends that the district court erred by concluding that
the economic loss rule barred his request for noneconomic
damages. But even if the district court erred in its application of
the economic loss rule, any error was harmless because his claims
for fraudulent inducement and breach of lease failed for other
29 reasons.3 See C.R.C.P. 61; Bly v. Story, 241 P.3d 529, 535 (Colo.
2010) (An erroneous ruling only requires reversal if it affects a
party’s substantial right, and “[a]n 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 the
basic fairness of the trial itself.’” (citation omitted)).
C. Computation of Damages
¶ 66 To the extent White argues that the court’s damages award
fails because it is based on an erroneous finding that the landlords
terminated the lease in the spring of 2019, we necessarily reject
that argument for the reasons discussed in Part V.B. To the extent
White argues that the court erred by not awarding damages on his
fraudulent inducement and breach of lease claims, any error is
necessarily harmless because, as noted, those claims fail for other
reasons. Thus, we proceed to address White’s arguments that the
3 The district court also concluded that White did not prove physical
harm, and White does not challenge that part of the order. See IBC Denver II, LLC v. City of Wheat Ridge, 183 P.3d 714, 717-18 (Colo. App. 2008) (when a lower tribunal gives more than one reason for a decision, an appellant must challenge all those reasons on appeal).
30 record evidence does not support the court’s computation of
damages on his unjust enrichment claim. We are not persuaded.
¶ 67 The court found that White irrigated the ranch after the lease
was terminated, the landlords knew about it, and the landlords did
not pay White. Because it would be unjust for the landlords to
retain the benefit of White’s work without paying him, the court
ordered that White was owed $7,350 based on the amount of work
he did at an hourly rate of $15.00. White argues this finding was
erroneous because it is significantly less than the $27,000 he
claimed the work cost.4 But the court awarded White an hourly
wage for the time he irrigated the ranch based on what the
landlords said they paid for day laborers, so we understand the
4 White also argues that the district court failed to (1) consider labor
costs he performed in lieu of rent and (2) distinguish between repairs and improvements. White does not point us to anywhere in the record where he presented evidence of these damages or to the specific part of the court’s order that he is challenging, so we decline to address those contentions further. See C.A.R. 28(a)(7)(B) (Arguments “must contain . . . a clear and concise discussion of the grounds upon which the party relies in seeking a reversal . . . , with citations to the authorities and parts of the record on which the appellant relies.”); Brighton Sch. Dist. 27J v. Transamerica Premier Ins. Co., 923 P.2d 328, 335 (Colo. App. 1996) (“[I]t is not the duty of the reviewing court to search the record for evidence to support bald assertions.”), aff’d, 940 P.2d 348 (Colo. 1997).
31 court’s reasoning and its finding enjoys record support. Notably,
the court applied the same hourly rate when computing the
landlords’ damages on their counterclaims.
¶ 68 White points only to his own testimony to support his claim
for damages, but the court did not have to accept White’s figure.
See In re Marriage of Salby, 126 P.3d 291, 298 (Colo. App. 2005)
(“The trial court can believe all, part, or none of a witness’s
testimony, even if uncontroverted.”). White’s contention that the
court gave too much weight to the landlords’ testimony is similarly
unpersuasive because the resolution “of conflicts in testimony and
determinations of the credibility of the witnesses are solely within
the province of the fact finder.” People v. Rau, 2020 COA 92, ¶ 22,
aff’d, 2022 CO 3. Regardless of whether there was conflicting
evidence, we cannot disturb the court’s finding because it has
record support. See Blakeland, ¶ 38.
VII. Cumulative Error
¶ 69 Finally, White contends that, even if the alleged errors do not
individually require reversal, their cumulative prejudicial impact
does. “The doctrine of cumulative error, although applied regularly
in criminal appeals, has not been extended to civil cases.” Acierno
32 v. Garyfallou, 2016 COA 91, ¶ 66. Other divisions of this court
have declined to extend the doctrine as “[s]uch a significant
expansion of precedent . . . is more properly the province of our
supreme court.” Id. (quoting Neher v. Neher, 2015 COA 103, ¶ 66).
We likewise decline to apply the doctrine here.
VIII. Disposition
¶ 70 We affirm the judgment.
JUDGE FOX and JUDGE MEIRINK concur.