Weld County Bd. of County Com'rs v. Slovek

ERICKSON, Justice,

concurring in part and dissenting in part:

I respectfully dissent from Part III of the majority opinion. While I agree with much of the majority opinion, I do not believe the damage issue is postured in a manner that permits us to direct the trial court to consider on remand the damages issues set forth in Part III. I concur with the majority on all other issues.

The majority correctly notes that the general measure of damages for a trespass action is the diminution of market value. Zwick v. Simpson, 193 Colo. 36, 572 P.2d 133 (1977). While there are exceptions to the general rule, the plaintiff must prove facts showing he is entitled to invoke one of the alternative measures of recovery. See Hoover v. Shott, 68 Colo. 385, 189 P. 848 (1920). Here, the Sloveks failed to establish a basis for application of one of the three Zwick alternatives to the general rule.

I am not persuaded that “the trial court did not exercise [its] discretion.” Majority op. at 1316. When the trial judge communicated his understanding of Colorado law on the subject, see majority op. at 1319-1320, trial counsel was told that the court intended “to follow the decisions of the Colorado Supreme Court on the point,” and that the proper measure of damages “depends on the circumstances.” Trial record at 270. The trial judge also expressed skepticism, which I share, about the propriety of restoration damages where the cost of repair significantly exceeds the value of the property. Id. The judge stated that he was not ruling on the issue but that it was his impression of what the law was. Record at 271. My examination of the record and the pleadings reveals that the alternatives to the diminution-of-market-value issue were not again addressed until the Sloveks’ motion for a new trial. See Andersen v. Edwards, 625 P.2d 282 (Alaska 1981).

In short, the trial court exercised its discretion in view of the fact that the Sloveks neither proved nor offered to prove that they were entitled to anything but the presumptively correct measure of damages. The threshold burden of establishing the applicability of the alternatives in Zwick and the Restatement of Torts was not met.

The majority acknowledges that the proper measure of damages falls within the discretion of the trial court. Unfortunately, the evidence relating to diminution in market value suffers the flaws recognized in both the majority opinion and Justice Vollack’s dissent. However, in my view, the errors which occurred, as reflected in the record before this court, do not warrant a further hearing or a new trial. I would affirm the trial court on the damage issue, and I concur with the majority on all other issues.