Colorado Springs v. Serna

23CA1710 Colorado Springs v Serna 09-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1710

El Paso County District Court No. 17CV31927

Honorable Eric Bentley, Judge

City of Colorado Springs, Colorado,

Petitioner-Appellee,

v.

Francisco Serna and BirdDog LLC, n/k/a Ajhalei Snoddy,

Respondents-Appellants.

JUDGMENT AFFIRMED

Division V

Opinion by JUDGE LUM

Brown and Berger*, JJ., concur

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

Announced September 5, 2024

Wynetta P. Massey, City Attorney, Anne H. Turner, Assistant City Attorney,

Colorado Springs, Colorado, for Petitioner-Appellee

Francisco Serna, Pro Se

BirdDog LLC, n/k/a Ajhalei Snoddy, Pro Se

*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

¶ 1 In this condemnation case, respondents, Francisco Serna and

Ajhalei Snoddy (owners), appeal the district court’s judgment

conveying all right, title, and interest in the relevant property to

petitioner, the City of Colorado Springs (the City). We affirm.

I. Background

A. Condemnation Proceedings

¶ 2 In March 2017, the City identified owners’ property as

necessary to complete a public transportation and safety

improvement project. The City sent two offer letters to owners in

March and May, which owners didn’t accept.

¶ 3 After negotiations failed, the City Council unanimously

adopted Resolution 66-17, which authorized the City to “take all

action necessary” to acquire and seek immediate possession of the

property. The City made a final offer to owners, but they didn’t

accept, counteroffer, or respond.

¶ 4 In August 2017, the City filed a petition in condemnation to

acquire the property in fee simple, served owners with the petition,

and moved for immediate possession of the property. The district

court held a contested hearing, after which it granted the City

immediate possession. The City deposited the necessary funds

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under section 38-1-105(6), C.R.S. 2024, and owners withdrew

them.

¶ 5 Later, the City moved for summary judgment as to the value of

the property, which the district court granted. Owners appealed,

and a division of this court reversed. See City of Colorado Springs v.

Serna, (Colo. App. No. 19CA0856, Aug. 20, 2020) (not published

pursuant to C.A.R. 35(e)). The Colorado Supreme Court denied the

City’s petition for writ of certiorari. See City of Colorado Springs v.

Serna, (Colo. No. 20SC791, Mar. 29, 2021) (unpublished order).

¶ 6 After the case was remanded in 2021, owners filed a motion to

dismiss the condemnation action, alleging that the City had not

complied with the federal Uniform Relocation Assistance and Real

Property Acquisition Policies Act (URA), 42 U.S.C. §§ 4601-4655,

and that they were owed a comparable dwelling under the URA.

The district court denied the motion, reasoning that “[t]he URA does

not afford landowners a right to a due process hearing prior to the

taking of their property through condemnation” and that the motion

was untimely because affirmative defenses are required to be raised

earlier in the case.

3

¶ 7 The case proceeded to a valuation trial in 2023 before a

commission of three freeholders. See § 38-1-105.

1

Serna testified

on behalf of both owners, and the City presented testimony from

Kyle Wigington, an expert in real property appraisal. The

commission returned a certificate of ascertainment and assessment,

which valued the property at $103,203.75.

B. Post-Trial Motions

¶ 8 Owners orally moved for a new trial, arguing that they were

precluded from introducing exhibits to support their valuation of

the property. They requested two weeks to submit written briefing

to support their motion. The district court set a briefing schedule.

¶ 9 Two weeks later, owners filed a motion under C.R.C.P. 59(a)(3).

Instead of raising the preclusion issue, owners argued that the

district court was required to amend its October 2017 order

granting immediate possession because the City didn’t have legal

authority to condemn due to deficiencies in Resolution 66-17.

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“Eminent domain proceedings are conducted using a hybrid model

where some responsibilities are accorded to the trial court while

others are accorded to the commission.” Reg’l Transp. Dist. v. 750

W. 48th Ave., LLC, 2013 COA 168, ¶ 3, aff’d in part and rev’d in part

on other grounds, 2015 CO 57.

4

¶ 10 The district court construed the motion as one to reconsider

the 2017 immediate possession order under C.R.C.P. 121, section

1-15 and found it untimely because such motions must be filed

within fourteen days from the date of the challenged order.

Moreover, the court held that owners’ objections were untimely

because they were required to be raised at the immediate

possession hearing.

2

¶ 11 In the two months after trial, owners also filed a “renewed

motion to strike” Wigington’s testimony and two more post-trial

motions under various subsections of Rule 59. As relevant here,

these motions argued that

• Wigington’s testimony should be struck because, in

response to a complaint raised by owners some months

before the valuation trial, the board of real estate

appraisers had found that there were reasonable grounds

to believe Wigington hadn’t followed certain appraisal

standards in appraising owners’ property;

2

The district court also ruled on some of the substantive arguments

raised by owners.

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• owners were improperly barred from introducing evidence

to support their opinion of their property’s value at the

valuation trial; and

• the district court lacked subject matter jurisdiction due

to the deficiencies in Resolution 66-17.

¶ 12 The district court denied all these motions and entered its

final rule and order in the matter, conveying all right, title, and

interest in the property to the City.

¶ 13 Owners appeal.

II. Subject Matter Jurisdiction

¶ 14 Owners first contend that the district court lacked subject

matter jurisdiction over the condemnation action. We disagree.

A. Legal Principles

¶ 15 A challenge to the district court’s subject matter jurisdiction is

an issue that may be raised at any time, including on appeal. Town

of Carbondale v. GSS Props., LLC, 169 P.3d 675, 681 (Colo. 2007).

The existence of subject matter jurisdiction is a question of law that

we review de novo. In re J.C.T., 176 P.3d 726, 729 (Colo. 2007).

¶ 16 “A court has subject matter jurisdiction where it has been

empowered to entertain the type of case before it by the sovereign

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from which the court derives its authority.” Wood v. People, 255

P.3d 1136, 1140 (Colo. 2011). Thus, the determination of whether

a court has subject matter jurisdiction “is generally only dependent

on the nature of the claim and the relief sought.” Trans Shuttle, Inc.

v. Pub. Utils. Comm’n, 58 P.3d 47, 50 (Colo. 2002).

¶ 17 “In Colorado, district courts are courts of general jurisdiction,

and have original jurisdiction in ‘all civil, probate, and criminal

cases, except as otherwise provided’ in the constitution.” Wood,

255 P.3d at 1140 (quoting Colo. Const. art. VI, § 9); see also State

ex rel. Suthers v. Johnson L. Grp., PLLC, 2014 COA 150, ¶ 16 (“The

Colorado Constitution vests district courts with general jurisdiction,

giving them original jurisdiction in all civil cases.”).

B. Analysis

¶ 18 Owners contend that the district court lacked subject matter

jurisdiction because (1) Resolution 66-17 was defective, and (2) the

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City failed to notify owners of their rights to receive a “comparable

replacement dwelling” under the URA.

3

We disagree.

1. Resolution 66-17

¶ 19 As best we understand them, owners contend that because

Resolution 66-17 is defective, the City did not have authority to

condemn the property. And because the City lacked authority to

condemn the property, the district court lacked subject matter

jurisdiction to hear the condemnation proceedings. We disagree.

¶ 20 As described above, the district court is a court of general

jurisdiction. See Colo. Const. art. VI, § 9. This general jurisdiction

includes jurisdiction to preside over condemnation proceedings.

See § 38-1-102(1), C.R.S. 2024 (authorizing a condemning authority

to file a petition in condemnation with “the judge of the district

court where the property or any part thereof is situate”).

3

To the extent owners argue that the district court lacked

jurisdiction because it improperly conveyed their mineral rights to

the City, this argument is unpreserved and is not properly before

us. And, even if it were preserved, this argument is cursory and

underdeveloped, so we do not consider it. Antolovich v. Brown Grp.

Retail, Inc., 183 P.3d 582, 604 (Colo. App. 2007) (declining to

address “underdeveloped arguments”).

8

¶ 21 Sections 38-1-101 through 38-1-122, C.R.S. 2024, describe,

among other things, the court’s role in condemnation proceedings.

Although these sections restrict the court’s role in certain ways —

for example, the court doesn’t decide the amount of compensation

due for the condemned property absent agreement by the parties,

§ 38-1-101(2)(a) — there is nothing that restricts the court’s subject

matter jurisdiction to deal with condemnation proceedings

generally. See Minto v. Lambert, 870 P.2d 572, 575 (Colo. App.

1993) (“[S]ubject matter jurisdiction concerns the court’s authority

to deal with the class of cases in which it renders judgment, not its

authority to enter a particular judgment in that class.”). This is the

case even if the entity requesting condemnation commits procedural

errors. Id. (holding that even though engaging in good faith

negotiations with a landowner is required before a city can bring

petition for condemnation, a city’s failure to negotiate in good faith

doesn’t affect the court’s subject matter jurisdiction); § 38-1-105(1)

(The “court shall hear proofs and allegations of all parties interested

touching the regularity of the proceedings and shall rule upon all

objections thereto.”).

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¶ 22 Likewise, the district court’s subject matter jurisdiction isn’t

affected by the City’s purported lack of authority to condemn the

property. In fact, whether an entity has authority to condemn a

property is a question the district court must answer before

ordering possession, and the court expressly did so here. See Town

of Silverthorne v. Lutz, 2016 COA 17, ¶ 20 (“In an immediate

possession hearing, a district court hears challenges to a public

entity’s condemnation based on an alleged lack of authority.”);

Wassenich v. City & Cnty. of Denver, 186 P. 533, 536 (Colo. 1919) (a

district court must settle the question of whether the petitioner is

entitled to condemn the property in advance of possession); see also

Pine Martin Mining Co. v. Empire Zinc Co., 11 P.2d 221, 223-24

(Colo. 1932) (whether an act authorizing condemnation proceedings

is constitutional is a question for the court).

¶ 23 Accordingly, defects in Resolution 66-17, if any, don’t deprive

the district court of subject matter jurisdiction.

¶ 24 To the extent owners raise non-jurisdictional challenges to the

City’s condemnation authority as a result of the alleged defects in

Resolution 66-17, we reject these contentions.

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¶ 25 Owners assert that the resolution was defective because (1)

owners were entitled to, but did not receive, notice of the June 2017

City Council meeting at which the City Council adopted Resolution

66-17; (2) the wrong employee sought eminent domain authority

from City Council; and (3) the resolution failed to disclose federal

funds that were used in the project design.

¶ 26 Owners’ first two claimed defects stem from the City’s

purported failure to follow the procedures in the City’s Procedure

Manual for the Acquisition and Disposition of Real Property

Interests (acquisition manual). We note that owners do not provide

any authority explaining why failure to follow the manual would

invalidate a City Council resolution or deprive the City of

condemnation authority. But assuming, without deciding, that it

would, owners’ claims still fail.

¶ 27 The notice provision relied on by owners in support of the first

defect is found in the City’s 2021 acquisition manual. Colo.

Springs, City of Colorado Springs Procedure Manual for the

Acquisition and Disposition of Real Property Interests § 4.3(k) (Mar.

2021), https://perma.cc/QQV3-G5FH. But the 2016 acquisition

manual, which was the version in effect during the 2017

11

proceedings, doesn’t contain any similar provision. Colo. Springs,

City of Colorado Springs Procedure Manual for the Acquisition and

Disposition of Real Property Interests (Mar. 2016),

https://perma.cc/W86N-A84G.

4

¶ 28 For the second purported defect, owners contend that the

acquisition manual requires that a “project manager” seek

condemnation authority from the City Council, but approval in this

case was sought by a contractor who wasn’t a project manager.

Owners don’t cite any provision of the acquisition manual (1)

mandating that the project manager, and only the project manager,

ask the City Council to authorize condemnation; or (2) saying that

the City Council cannot pass a resolution authorizing

condemnation if it isn’t requested by the project manager.

4

Neither the 2016 nor the 2021 acquisition manual appears in the

record, but both parties reference and link to the manuals in their

briefing. The parties don’t dispute the contents of the website, and

the City’s website is self-authenticating, so we take judicial notice of

both manuals. See Shook v. Pitkin Cnty. Bd. of Cnty. Comm’rs,

2015 COA 84, ¶ 12 n.4; see also CRE 201(b) (the contents of a

webpage on a specific date and time are not subject to reasonable

dispute); CRE 902(5) (a public authority’s publications are self-

authenticating).

12

¶ 29 As best we can discern, the 2016 acquisition manual says only

that the project manager “may seek City Council approval for

condemnation” if the property owner doesn’t sign a possession and

use agreement, and “[i]f City Council authorizes condemnation, all

statutory procedures will be followed.” Id. § 4.3(l), (m) (emphasis

added). This language doesn’t preclude the City Council from

passing a resolution authorizing condemnation if requested by

someone other than a project manager.

¶ 30 As to the third asserted defect — the failure to disclose federal

funds — owners provide no legal authority, and we can find none,

supporting their position that the resolution was required to

disclose federal funding sources or that the failure to do so

invalidates the resolution.

¶ 31 Furthermore, even if the resolution was invalidated, owners

don’t explain, and we can’t discern, why an invalid resolution

deprives the City of condemnation authority. As a home rule

municipality, the City has the authority to exercise eminent domain

powers under article XX of the Colorado Constitution. Colo. Const.

art. XX, §§ 1, 6; see also Town of Silverthorne, ¶ 18. The city

charter mirrors the constitution’s grant of authority. See Colo.

13

Springs City Charter § 1-20(d). Owners cite no provision of the

constitution or the city charter requiring that the City pass a valid

resolution to secure its condemnation authority.

¶ 32 Finally, even if owners had a legally persuasive argument as to

why the City lacked condemnation authority, they were required to

raise that argument at the immediate possession hearing in 2017.

Town of Silverthorne, ¶ 20 (“In an immediate possession hearing, a

district court hears challenges to a public entity’s condemnation

based on an alleged lack of authority.”); § 38-1-109, C.R.S. 2024.

We therefore agree with the district court that any challenges to the

City’s authority were untimely. See Town of Silverthorne, ¶ 20;

§ 38-1-109.

2. Notification Under the URA

¶ 33 Owners next argue that the district court lacked subject

matter jurisdiction because the City failed to notify them of their

rights under the URA. Owners also contend that the district court

misconstrued this argument below as an assertion of an affirmative

defense to condemnation. Regardless of how the district court

construed the claim, we address owners’ jurisdictional challenge de

novo. J.C.T., 176 P.3d at 729.

14

¶ 34 The URA was enacted in 1970 to ensure fair compensation

and assistance for those whose property was compulsorily acquired

for public use through eminent domain, or those who move as a

direct result of a project receiving federal funds. See 42 U.S.C.

§ 4621(a)-(c). The URA outlines a variety of relocation benefits that

may be available to those affected, such as moving expenses, id.

§ 4622, and replacement housing, id. §§ 4623-4624.

¶ 35 Owners and the City dispute whether owners were entitled to

receive URA benefits. However, we need not resolve that dispute

because even if the City had failed to notify owners of relocation

benefits to which they were entitled, we don’t see how this would

deprive the district court of its jurisdiction to hear condemnation

proceedings. Owners rely on Trinity Broadcasting of Denver, Inc. v.

City of Westminster, 848 P.2d 916 (Colo. 1993), and Brown v.

Walker Commercial, Inc., 2022 CO 57, to support their argument.

But both Trinity and Brown analyzed the notice provisions of the

Colorado Governmental Immunity Act, §§ 24-10-101 to -120, C.R.S.

2024, which are expressly labeled as a “jurisdictional prerequisite.”

§ 24-10-109(1), C.R.S. 2024; Trinity, 848 P.2d at 923; Brown, ¶ 44.

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Owners don’t cite, and we can’t find, any similar provision in the

URA.

¶ 36 For all these reasons, we see no reason for reversal on

jurisdictional grounds.

III. Preclusion of Owners’ Evidence

¶ 37 Owners next contend that the district court erred by entering

a trial management order (TMO) precluding them from introducing

evidence at trial. We disagree.

A. Additional Facts

¶ 38 On March 17, 2023, twenty days before trial, the City notified

the district court that owners had not disclosed their witness and

exhibit lists for the proposed TMO, nor had they provided copies of

their exhibits as previously directed by the court. On March 19, the

district court ordered owners to disclose their exhibits to the City by

March 21, and their witness and exhibit lists for the proposed TMO

by March 22. The order advised owners that, “[a]bsent

extraordinary circumstances,” they would not be allowed to present

any witnesses or exhibits at trial that were not disclosed per the

order’s instructions.

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¶ 39 In the proposed TMO, owners provided only a statement that

they did not consent to the trial. Owners did not submit a witness

or exhibit list and did not disclose exhibits to the City.

¶ 40 On March 24, the district court held a trial management

conference. Owners did not appear. The district court issued the

TMO, which ordered that, since owners failed to disclose any

witnesses or exhibits, they needed to demonstrate good cause or

exceptional circumstances for their failure to disclose if they wanted

to call any witnesses other than themselves or introduce any

exhibits at trial.

¶ 41 At trial, owners attempted to introduce exhibits, but the

commission chair excluded the exhibits because owners hadn’t

demonstrated good cause or exceptional circumstances for why the

exhibits weren’t disclosed by the deadline.

B. Analysis

¶ 42 As best we understand them, owners first contend that section

38-1-105(2) prohibits the district court from issuing a TMO placing

deadlines on the submission of evidence. However, this section

merely states that the commissioners “may request the court to

make rulings upon the propriety of the proof.” § 38-1-105(2).

17

Contrary to owners’ suggestion, this provision does not prohibit the

district court from entering a TMO concerning courtroom

procedures.

¶ 43 Owners also appear to contend that they weren’t required to

make pretrial disclosures because portions of the rules of civil

procedure don’t apply to condemnation proceedings. But even

assuming that’s the case, nothing in the rules of civil procedure, the

condemnation statutes, or the Constitution prohibits a court, in its

broad discretion, from ordering a party to timely disclose its

witnesses and exhibits or sanctioning the party for failure to

comply. Accordingly, we perceive no error in the district court’s

ruling precluding owners from presenting undisclosed witnesses or

exhibits absent good cause.

¶ 44 We also reject owners’ arguments based on the Colorado Rules

of Evidence. The commissioners were bound by the evidentiary

rulings set forth in the district court’s TMO. See Reg’l Transp. Dist.,

¶ 23 (noting that the commission is bound by judicial evidentiary

rulings). The commission chair didn’t preclude owners’ evidence

because it was inadmissible under the evidentiary rules, but

18

because owners failed to establish good cause for their failure to

comply with the TMO’s disclosure requirements.

¶ 45 Finally, we note that, even if the court or the commissioners

improperly precluded owners from presenting witnesses or

evidence, owners don’t provide us with any detail about what

exhibits or witnesses they would have introduced or how that

evidence would have affected the commissioners’ ascertainment of

value. Accordingly, we perceive no reversible error. 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.”).

IV. The City’s Appraiser

¶ 46 Owners next contend that Wigington (the City’s appraisal

expert) wasn’t competent to testify at the commission proceedings

because the appraisal “was found to have been deemed unlawful by

the board of real estate appraisers.”

¶ 47 In support of their argument, owners cite meeting minutes

from the Board of Real Estate Appraisers evaluating a complaint

owners raised against Wigington some months before trial. The

Board concluded that “reasonable grounds exist[ed] to believe that

19

violations of appraisal law” occurred, though the minutes do not

specify which appraisal standards weren’t followed. As best we can

discern, the Board recommended that the complaint be dismissed

upon Wigington’s completion of additional education.

¶ 48 Contrary to owners’ suggestion, a violation of professional

appraisal standards doesn’t render Wigington incompetent to testify

as an expert. See CRE 702 (setting forth the requirements to

qualify an expert). And owners don’t set forth any detailed or legally

supported argument explaining which standards Wigington violated

or why the violations would render his opinion unreliable,

irrelevant, or otherwise inadmissible. People v. Ornelas-Licano,

2020 COA 62, ¶ 43 (noting that expert testimony is admissible if it

is “reliable and relevant”).

¶ 49 We therefore perceive no reversible error in the admission of

Wigington’s testimony.

V. Disposition

¶ 50 The judgment is affirmed.

JUDGE BROWN and JUDGE BERGER concur.

Case Details

Case Name: Colorado Springs v. Serna

Court Name: Colorado Court of Appeals

Date Published: Sep 5, 2024

Docket Number: 23CA1710

Court Abbreviation: Colo. Ct. App.