Bruce v. Pikes Peak
Bruce v. Pikes Peak
Bruce v. Pikes Peak
Opinion
20CA0531 Bruce v Pikes Peak 10-21-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 20CA0531
El Paso County District Court No. 19CV362
Honorable Frances R. Johnson, Judge
Douglas Bruce,
Plaintiff-Appellant,
v.
Pikes Peak Regional Building Department, City of Colorado Springs, Colorado,
and El Paso County Public Trustee,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE FOX
Welling and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 21, 2021
Douglas Bruce, Pro Se
Sparks Wilson, P.C., Eric V. Hall, Colorado Springs, Colorado, for Defendant-
Appellee Pikes Peak Regional Building Department
Wynetta P. Massey, City Attorney, W. Erik Lamphere, Assistant City Attorney,
Colorado Springs, Colorado, for Defendant-Appellee City of Colorado Springs
Diana K. May, County Attorney, Steven Klaffky, Senior Assistant County
Attorney, Colorado Springs, Colorado, for Defendant-Appellee El Paso County
Trustee
1
¶ 1
Plaintiff, Douglas Bruce, appeals the district court’s dismissal
of his complaint against defendants Pikes Peak Regional Building
Department (Department), City of Colorado Springs (City), and El
Paso County Public Trustee (Trustee). We affirm.
I. Background
¶ 2
We glean the following facts from the allegations in Bruce’s
complaint and the district court’s construal of those allegations.
A. Factual Basis of Claims Against the Trustee
¶ 3
Bruce owned a residential building located at 1326 W. Kiowa
Street in Colorado Springs (the Building) — the subject of this
action. In 2016, he sold the Building to Renovation Management
Group 106, LLC (Renovation), of which Joseph Graeve soon became
the sole member. The sale of the Building was secured by a deed of
trust in Bruce’s favor.
¶ 4
In early 2018, Renovation defaulted on payments it owed to
Bruce for the sale of the Building. Bruce then initiated proceedings
to foreclose on the deed of trust, and the Trustee scheduled a
foreclosure sale for November 7, 2018.
¶ 5
On November 6, 2018, Graeve filed for bankruptcy and listed
the Building as one of his assets, which, pursuant to federal law,
2
automatically stayed any foreclosure action against the Building.
However, Graeve did not notify Bruce or the Trustee that he had
filed for bankruptcy, and the foreclosure sale took place as
scheduled the next day. Bruce was declared the successful bidder
at the sale.
¶ 6
The Trustee became aware of Graeve’s bankruptcy filing and
withheld recording a deed of sale because the sale violated the
automatic stay. Bruce met with the bankruptcy trustee and
attempted to file a motion for relief from the stay with the
bankruptcy court; however, Bruce apparently did not pay the
required filing fee and the court rejected Bruce’s motion. Bruce
instead opted to wait until the bankruptcy case closed to attempt to
recover the Building, which he believed would be in March 2019.
¶ 7
Around September 20, 2019, Bruce claims that the
bankruptcy court issued an order allowing secured creditor
foreclosures against Graeve’s property to proceed. Bruce then
requested that the Trustee record the foreclosure deed of sale
withheld pending the bankruptcy proceedings. The Trustee,
however, refused to so; such time had elapsed that he believed he
was statutorily obligated to withdraw the 2018 sale.
3
B. Factual Basis of Claims Against the City and the Department
¶ 8
Meanwhile, the structural integrity of the Building had
substantially deteriorated, largely because Renovation had removed
the roof, siding, and porch from the Building in 2017.
¶ 9
In early 2018, Bruce notified the City that the Building, which
was apparently vacant, had become an “attractive nuisance” and
asked the City to fence it off. In January 2019, the Department,
acting pursuant to section 112 of the Pikes Peak Regional Building
Code (RBC), issued a notice and order declaring the Building to be a
“dangerous building,” requiring that it be vacated, and ordering that
the Building be repaired, rehabilitated, or demolished. The
Department served the notice and order on Renovation with a copy
to Bruce as a lienholder of the Building.
¶ 10
Bruce appealed the “dangerous building” designation, and an
administrative hearing was held on the matter before the
Department’s board of appeals on March 20, 2019, and April 4,
2019. The board of appeals affirmed the designation and the
accompanying notice and order on April 17, 2019. The written
decision stated that it was “a final agency decision for all purposes
under Colorado law.”
4
¶ 11
To prevent the demolition of the Building, Bruce sought a
permit from the Department allowing him to repair the Building by
installing a roof, siding, and porch. He did not, however, pursue a
certificate of habitability of the Building; he merely wanted it
restored to its 2016 condition, have it remain vacant, and then
eventually sell it to a buyer who would finish renovations. The
Department denied his request on May 16, 2019, finding that Bruce
did not submit sufficient plans to repair the Building and that his
request was untimely. Bruce appealed to the Department’s board of
review, which, after an administrative hearing, affirmed the permit
denial on August 21, 2019. That written decision also stated that it
was “a final agency decision for all purposes under Colorado law.”
C. District Court Proceedings
¶ 12
On October 22, 2019, Bruce filed a complaint in district court
outlining a litany of cursory claims. Against the Department and
the City, he alleged claims of tortious conduct, asserted several
violations of his constitutional rights, and sought injunctive relief
from the Department’s rulings. As to the Trustee, he raised a
number of claims seeking to compel the Trustee to record the deed
5
of sale that was issued contrary to the bankruptcy court’s
automatic stay in November 2018.
¶ 13
The three defendants independently filed motions to dismiss,
arguing that Bruce’s claims should be dismissed for lack of
jurisdiction under C.R.C.P. 12(b)(1) and for failure to state a claim
under C.R.C.P. 12(b)(5). In three separate orders, the district court
granted each defendant’s motion to dismiss. Together, the court’s
orders dismissed with prejudice all of the claims Bruce raised in his
complaint.
II. Request for Oral Argument
¶ 14
Bruce requests oral argument, but he does so only in his
opening brief. Because “[a] request for oral argument must be made
in a separate document entitled ‘request for oral argument,’” his
request is denied and his appeal stands submitted on the briefs.
C.A.R. 34(a) (emphasis added).
III. Compliance with C.A.R. 28
¶ 15
We first note that Bruce’s opening brief is substantively
deficient and fails to comply with C.A.R. 28. Though Bruce appeals
the district court’s three dismissal orders, he does not make any
specific, developed argument as to why the court erred by
6
dismissing any of his claims. Instead, his brief reads as a long list
of grievances and bald legal assertions and largely reiterates — in
conclusory fashion — the claims he made in his complaint. In fact,
his entire “argument” section is all of five sentences, and it does not
include any mention of the trial court’s orders, explanation as to
why the trial court erred, or citation to legal authority. See C.A.R.
28(a)(7)(B) (Arguments “must contain . . . appellant’s contentions
and reasoning, with citations to the authorities and parts of the
record on which the appellant relies.”). And, among other failures
to comply with C.A.R. 28, his brief does not include any recitation
of the standard of review, statement of preservation, or proper
citation to the record. See C.A.R. 28(a)(7)(A) (Arguments “must
contain . . . statements of the applicable standard of review with
citation to authority, whether the issue was preserved, and if
preserved, the precise location in the record where the issue was
raised and where the court ruled.”).
¶ 16
Despite the deficiencies in Bruce’s brief, however, we opt to
address the merits of his appeal as best we can, which we construe
as a general challenge to the district court’s three dismissal orders.
But we reiterate the admonishment from a previous division of this
7
court: Bruce is “cautioned that, in the future, his failure to comply
with C.A.R. 28 or other applicable appellate rules may result in
striking the noncomplying brief or other appropriate sanctions,
including dismissal.” Bruce v. City of Colorado Springs, 252 P.3d
30, 32 (Colo. App. 2010).
IV. Standard of Review and Applicable Law
¶ 17
The Department, City, and Trustee moved to dismiss Bruce’s
claims under C.R.C.P. 12(b)(1) and 12(b)(5).
¶ 18
A C.R.C.P. 12(b)(1) motion to dismiss challenges a court’s
subject matter jurisdiction. Where the facts underlying a
jurisdictional issue are undisputed, we review the district court’s
dismissal of a claim under C.R.C.P. 12(b)(1) de novo. Tulips Invs.,
LLC v. State ex rel. Suthers, 2015 CO 1, ¶ 11.
¶ 19
A C.R.C.P. 12(b)(5) motion to dismiss for failure to state a
claim “serves as a test of the formal sufficiency of a plaintiff’s
complaint.” Norton v. Rocky Mountain Planned Parenthood, Inc.,
12(b)(5) is proper “where the factual allegations in the complaint
cannot, as a matter of law, support the claim for relief.” Bewley v.
Semler, 2018 CO 79, ¶ 14 (quoting Colo. Ethics Watch v. Senate
8
Majority Fund, LLC, 2012 CO 12, ¶ 16). To survive a C.R.C.P.
12(b)(5) motion, a complaint must include factual allegations
sufficient to raise a right to relief “above the speculative level.”
Warne v. Hall, 2016 CO 50, ¶ 9 (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). “[O]nly a complaint that states a
plausible claim for relief survives a motion to dismiss.” Id. (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
¶ 20
“We review a C.R.C.P. 12(b)(5) motion to dismiss de novo and
¶ 7. “[W]e accept all factual allegations in the complaint as true,
viewing them in a light most favorable to the plaintiff.” Bewley,
¶ 14. We are not, however, bound to accept the truth of bare legal
conclusions presented as fact. Warne, ¶ 9.
V. Dismissal was Proper
¶ 21
Like the district court, we understand Bruce’s complaint as
raising the following claims: (1) a request for an injunction; (2) a
challenge to the Department’s rulings; (3) various tort claims; (4) a
substantive due process claim; (5) an impairment of contract claim;
and (6) several claims seeking to compel the Trustee to record a
9
deed of sale. We address the district court’s dismissal of each claim
in turn, and for the reasons below, we discern no error.1
A. Request for Injunction and Challenges to the Department’s
Rulings
¶ 22
Bruce’s complaint appeared to challenge two specific
Department rulings: (1) its determination that the Building qualified
as a “dangerous building” under the RBC and (2) its denial of his
request for a building permit to restore the roof, siding, and porch
of the Building. Because the district court found that the
Department’s rulings were quasi-judicial in nature, it construed
Bruce’s challenges as claims made pursuant to C.R.C.P. 106(a)(4).
See C.R.C.P. 106(a)(4) (permitting review of “any governmental body
or officer or any lower judicial body exercising judicial or
quasi-judicial functions”); see also Bd. of Cnty. Comm’rs v.
Sundheim, 926 P.2d 545, 548 (Colo. 1996) (“C.R.C.P. 106(a)(4)
provides the exclusive remedy for reviewing a quasi-judicial decision
1 Bruce does not argue that the district court improperly
characterized his claims in its dismissal orders. Thus, we assume
the district court properly construed Bruce’s complaint.
10
made by a government entity.”). We agree that the court properly
characterized his challenges as C.R.C.P. 106(a)(4) claims.2
¶ 23
As the district court noted, a complaint seeking review under
C.R.C.P. 106(a)(4) must be filed in the district court “not later than
[twenty-eight] days after the final decision of the body or officer.”
C.R.C.P. 106(b). Because the twenty-eight-day filing requirement is
jurisdictional, Citizens for Responsible Growth v. RCI Dev. Partners,
Inc., 252 P.3d 1104, 1106 (Colo. 2011), “a [C.R.C.P.] 106(a)(4)
complaint that is not filed in the district court by the [twenty-eight]-
day jurisdictional deadline must be dismissed for lack of subject
matter jurisdiction,” Maslak v. Town of Vail, 2015 COA 2, ¶ 17.
Bruce did not file his complaint until October 22, 2019 — 187 days
after the Department’s final decision to designate the Building a
“dangerous building” on April 17, 2019, and 62 days after its final
2 Bruce characterizes his claims as constitutionally based. But
even constitutional claims, excluding a claim brought under 42
U.S.C. section 1983 seeking monetary damages, must be brought in
a complaint seeking Rule 106(a)(4) review. See Bd. of Cnty.
Comm’rs v. Sundheim, 926 P.2d 545, 548-49 (Colo. 1986) (excluding
time bar in C.R.C.P. 106(b), as any interest in government efficiency
and finality “must give way to the compelling federal interest of
giving § 1983 actions a broad berth”). To the extent Bruce’s
complaint raised a claim under 42 U.S.C. section 1983, the district
court correctly dismissed any such claim under C.R.C.P. 12(b)(5).
11
decision denying Bruce’s permit request on August 21, 2019. Thus,
the court properly dismissed Bruce’s challenges to those rulings for
lack of jurisdiction under C.R.C.P. 12(b)(1). See Maslak, ¶ 17.
¶ 24
Relatedly, Bruce also sought to enjoin the Department and the
City from taking any action to demolish the Building or prevent him
from restoring it. So, in addition to directly challenging the
Department’s rulings, Bruce sought injunctive relief from the effects
of those rulings. However, while a party can seek injunctive relief in
connection with a C.R.C.P. 106(a)(4) action, the effects of the
quasi-judicial decision cannot be enjoined separate and apart from
the C.R.C.P. 106(a)(4) action. See Sundheim, 926 P.2d at 548
(Because “C.R.C.P. 106(a)(4) provides the exclusive remedy for
reviewing a quasi-judicial decision made by a government entity . . .
a C.R.C.P. 106(a)(4) complaint must include all causes of action . . .
in a single C.R.C.P. 106(a)(4) action.”). Thus, Bruce’s request for
injunctive relief could not be made apart from his C.R.C.P. 106(a)(4)
claims, which were properly dismissed as untimely. Indeed,
substantively, Bruce’s request sought nothing more than the two
time-barred claims: judicial review of the Department’s rulings.
Framing his request as one for injunctive relief could not allow him
12
to circumvent the twenty-eight-day filing deadline for such claims.
See Danielson v. Zoning Bd. of Adjustment, 807 P.2d 541, 544 (Colo.
1990) (A plaintiff “cannot escape the time limitation of C.R.C.P.
106(b) by labelling his request for judicial review as a prayer for
declaratory judgment.”). Accordingly, the district court properly
dismissed Bruce’s request for injunctive relief.
B. Tort Claims
¶ 25
Bruce sought damages from the Department and the City for
the following claims: “wrongful infliction of emotional distress, bad
faith interference in a business contract, abuse of process, [and]
related torts.” In addition, as to the Department, he asserted that it
“repeatedly engaged in invidious retaliation . . . with malice and in
bad faith.”
¶ 26
The district court found that Bruce’s claims either lay in tort
or could lie in tort. Thus, because the Department and the City
were public entities, the court determined that Bruce’s claims fell
within the purview of the Colorado Governmental Immunity Act
(CGIA), §§ 24-10-101 to -120, C.R.S. 2020. See § 24-10-106(1),
C.R.S. 2020 (The CGIA grants immunity to public entities “from
liability in all claims for injury which lie in tort or could lie in
13
tort . . . except as provided otherwise in this section.”). We agree
with the district court’s conclusion as to the applicability of the
CGIA, which Bruce does not appear to contest on appeal.
¶ 27
The CGIA requires that “[a]ny person claiming to have suffered
an injury by a public entity or by an employee thereof . . . shall file
a written notice as provided in this section within one hundred
eight-two days after the date of the discovery of the injury.” § 24-
10-109(1), C.R.S. 2020. “‘[T]he statute plainly requires’ a claimant
to file this notice with either the governing body of the public entity
or the entity’s attorney.” Johnson v. Toohey, 2021 COA 43M, ¶ 9
(quoting Jefferson Cnty. Health Servs. Ass’n v. Feeney, 974 P.2d
1001, 1003 (Colo. 1998)); see also § 24-10-109(3)(a). It is
undisputed that Bruce never provided the City or the Department
any such notice. Because compliance with the CGIA’s notice
provision is “a jurisdictional prerequisite to any action brought
under the [CGIA],” the district court properly dismissed his tort
claims under C.R.C.P. 12(b)(1). § 24-10-109(1); accord Finnie v.
Jefferson Cnty. Sch. Dist. R-1, 79 P.3d 1253, 1255-56 (Colo. 2003);
see also Kratzer v. Colo. Intergovernmental Risk Share Agency, 18
P.3d 766, 769 (Colo. App. 2000) (“Because it is undisputed that no
14
notice of claim was served on defendants, we conclude that
plaintiff’s [CGIA] claims should have been dismissed on that
basis.”).
C. Substantive Due Process Claim
¶ 28
Bruce’s complaint also asserted that he “has a right to own an
empty building,” and that he “is being denied that right and due
process of law under the Fifth and Fourteenth Amendments to the
U.S. constitution.” The district court construed this as a claim
made under 42 U.S.C. section 1983 alleging that Bruce had a
substantive due process right to own a vacant building, and
sections of the RBC requiring repair and permitting demolition of
the Building violated that right. Addressing the merits of Bruce’s
contention, the court, accepting all of Bruce’s factual allegations as
true, concluded that the RBC did not impermissibly infringe on
Bruce’s right to substantive due process. Thus, it dismissed
Bruce’s claim under C.R.C.P. 12(b)(5).
¶ 29
On appeal, Bruce reiterates that he “is being denied a permit
and due process of law under the Fifth and Fourteenth
Amendments to the U.S. Constitution,” and he asserts conclusory
allegations that describes the RBC as “patently unconstitutional.”
15
But he does not explain why owning a vacant building is a
fundamental right guaranteed by the Due Process Clause. Nor does
he explain why, if such a right exists under the Federal
Constitution, the RBC impermissibly infringed on that right. In
fact, Bruce does not even purport to assert with any specificity that
the district court’s analysis of his substantive due process claim
was erroneous. Thus, to the extent Bruce challenges the district
court’s dismissal of his claim, we decline to address it.3 See, e.g.,
Barnett v. Elite Props. of Am. Inc., 252 P.3d 14, 19 (Colo. App. 2010)
(“We will not consider a bald legal proposition presented without
argument or development.”).
¶ 30
Moreover, as the district court pointed out, Bruce’s claim as
set forth in his complaint was equally deficient. In support of his
claim, he merely cited to the Due Process Clause; he offered no
developed argument explaining how a right to own a vacant
3 Bruce also appears to suggest, for the first time on appeal, that
the RBC violated his procedural due process rights guaranteed by
the Colorado Constitution. However, because the issue is not
preserved, we do not address it. Melat, Pressman & Higbie, L.L.P. v.
Hannon Law Firm, L.L.C., 2012 CO 61, ¶ 18 (“It is axiomatic that
issues not raised in or decided by a lower court will not be
addressed for the first time on appeal.”).
16
building is recognized in the constitution, and as a result, how he
was legally entitled to the relief requested. Thus, while the court
dismissed his claim on the merits under C.R.C.P. 12(b)(5), dismissal
of the claim was also proper for failure to comply with C.R.C.P.
8(a)(2). See C.R.C.P. 8(a)(2) (“A pleading which sets forth a claim for
a relief . . . shall contain . . . a short and plain statement of the
claim showing that the pleader is entitled to relief.”); see also Taylor
v. Taylor, 2016 COA 100, ¶ 31 (“An appellate court may . . . affirm
on any ground supported by the record.”).
D. Impairment of Contract Claim
¶ 31
We turn next to Bruce’s impairment of contract claim, which
asserted that the Department unconstitutionally infringed on his
contractual right to repair and restore the Building as contemplated
in the deed of trust.
¶ 32
The United States Constitution provides that “[n]o State
shall . . . pass any . . . Law impairing the Obligation of Contracts.”
U.S. Const. art. I, § 10, cl. 1. Colorado has a “virtually identical”
constitutional provision, Sch. Dist. No. 1 v. Masters, 2018 CO 18,
¶ 16, which provides that “[n]o . . . law impairing the obligation of
contracts . . . shall be passed by the general assembly,” Colo.
17
Const. art. II, § 11. “Colorado courts apply the same three-party
inquiry for claims brought under both: ‘(1) does a contractual
relationship exist; (2) does the change in the law impair that
contractual relationship; and if so, (3) is the impairment
substantial?’” Sch. Dist. No. 1, ¶ 16 (quoting Justus v. State, 2014
CO 75, ¶¶ 18-19). “If all three prongs are answered affirmatively,
the impairment may nonetheless be constitutional if it is
‘reasonable and necessary to serve an important public purpose.’”
¶ 33
Bruce did not specify what provision of the deed of trust
actually granted, as he alleged, “a contractual right . . . to make
repairs to the building to restore its condition to time of sale in
2016.” Indeed, as the district court found, no provision in the deed
of trust stated as much. Nonetheless, the court assumed, as do we,
that Bruce was referring to the following provision: Bruce “may . . .
take such action as is necessary to protect Lender’s interest . . .
including . . . [paying] . . . repair and maintenance costs and
expenses.”
¶ 34
But even if Bruce had established the first prong of the
Contracts Clause test, he failed to allege facts that could establish
18
the second or third prongs, thus entitling him to relief. His
complaint identifies no specific ordinance that the Department
enacted or changed that affected his alleged contractual rights
under the deed of trust.4 And even if we were to assume, as the
district court did, that Bruce was referring to sections of the RBC
regulating “dangerous building” designations, he did not allege that
those sections had been enacted or changed after the subject deed
of trust was created. Nor does the record indicate as much. Thus,
he failed to allege facts sufficient to establish that there had been
any change in the law, yet alone one that had substantially
impaired his contractual relationship. Accordingly, the district
court properly dismissed his claim under C.R.C.P. 12(b)(5).5 See
Sch. Dist. No. 1, ¶ 16; Bewley, ¶ 14.
4 As discussed below, Bruce alluded to a new state law governing
foreclosure sales during bankruptcy proceedings. But he did so
only in the context of his claims against the Trustee. He did not
identify or otherwise describe any specific change in the law in the
context of his claim against the Department.
5 The district court dismissed Bruce’s claim on slightly different
grounds. It generally assumed that Bruce alleged sufficient facts to
satisfy the three prongs of the Contracts Clause test, but it
nonetheless appeared to conclude that the relevant sections of the
RBC were constitutional because they were “reasonable and
necessary to serve an important public purpose.” Justus v. State,
19
E. Attempts to Compel the Trustee to Record the Deed of Sale
¶ 35
Finally, Bruce raised at least four claims, as we understand
them, seeking to compel the Trustee to record a deed of sale, which
was voided by the federal bankruptcy automatic stay. We discuss
each in turn.
1. Challenge to the Bankruptcy Proceedings
¶ 36
First, to the extent Bruce challenged Graeve’s inclusion of the
Building in his bankruptcy filing, the district court properly
determined that it had no jurisdiction to consider such a claim. See
Bright v. Fred C. Sproul, Inc., 44 Colo. App. 542, 544, 616 P.2d 189,
191 (1980) (“The bankruptcy court’s jurisdiction over the
administration of the affairs of an insolvent is essentially
exclusive.”).
2. Obligation to Record the Deed of Sale
¶ 37
Second, Bruce generally argued that the Trustee was legally
obligated to record a deed of sale. However, as the district court
pointed out, the Trustee was statutorily precluded from doing so.
2014 CO 75, ¶ 19 (quoting U.S. Tr. Co. of N.Y. v. New Jersey, 431
U.S. 1, 25 (1977)). However, we may affirm on any ground
supported by the record. E.g., Taylor v. Taylor, 2016 COA 100,
¶ 31.
20
¶ 38
Section 38-38-109(2)(c), C.R.S. 2020, addresses circumstances
where, as here, a foreclosure sale has been requested or is pending
but the debtor filed for bankruptcy before the sale was completed.
As pertinent here, it provides that
[i]f a sale is held in violation of the automatic
stay provisions of the federal bankruptcy code
. . . and an order is subsequently entered by a
bankruptcy court of competent jurisdiction . . .
closing the bankruptcy case . . . then the . . .
deed of trust . . . being foreclosed shall
immediately be deemed reinstated.
Immediately upon reinstatement, the power of
sale provided therein, if any, shall be deemed
revived.
§ 38-38-109(2)(c)(I). However, to reinitiate the sale, the holder of
the deed of trust must notify the public trustee conducting the
foreclosure sale of the bankruptcy court’s order in writing “no later
than fifty calendar days prior to the last possible sale date pursuant
to subsections (1)(a) and (2)(e) of [section 38-38-109].” § 38-38-
109(2)(c)(II). If the holder fails to do so, the public trustee is
required to administratively withdraw the sale. § 38-38-
109(2)(c)(III).
¶ 39
The district court correctly determined that the last possible
date of sale under section 38-38-109 was November 6, 2019 —
21
twelve months after the originally designated date. See § 38-38-
109(1)(a) (“No sale shall be continued to a date later than twelve
months from the originally designated date in the combined notice,
except as provided in subsection (2) of this section.”). Thus, to
reinitiate the sale, Bruce was required to notify the Trustee of the
bankruptcy court’s order closing Graeve’s bankruptcy case by
September 17, 2019. See § 38-38-109(2)(c)(II). It is undisputed
that Bruce failed to do so. Thus, as the district court concluded,
the Trustee was required to administratively withdraw the sale
under section 38-38-109(2)(c)(III). Accordingly, the court properly
dismissed Bruce’s claim under C.R.C.P. 12(b)(5). See Bewley, ¶ 14.
3. Ex Post Facto Claim
¶ 40
Third, apparently recognizing that he failed to comply with
section 38-38-109(2)(c), Bruce argued that the statute violated the
Colorado Constitution’s prohibition against ex post facto laws. See
Colo. Const. art. II, § 11 (“No ex post facto law . . . shall be passed
by the general assembly.”). However, the statute, not being criminal
in nature, could not be considered an ex post facto law. See, e.g.,
People v. DeWitt, 275 P.3d 728, 731 (Colo. App. 2011) (An ex post
facto law is one that “imposes a punishment for an act which was
22
not punishable at the time it was committed; or imposes additional
punishment to that then prescribed.” (quoting Weaver v. Graham,
450 U.S. 24, 28 (1981))). Thus, the district court properly
dismissed Bruce’s claim under C.R.C.P. 12(b)(5). See Bewley, ¶ 14.
4. Impairment of Contract Claim
¶ 41
Finally, Bruce also challenged the constitutionality of section
38-38-109(2)(c) under the Contracts Clause. Specifically, he argued
that, as applied, the statute “interfered with the obligations of
contract contained in the [deed of trust].” But the effect of the
statute was to preclude the Trustee from recording a deed of sale.
And the deed of trust contained no provision requiring the Trustee
to do so. Nor did Bruce make any such allegation in his complaint.
Thus, Bruce did not establish any discernable violation of the
Contracts Clause. See Sch. Dist. No. 1, ¶ 16 (an impairment of
contract claim must show that a change in law substantially
impaired a contractual relationship). Accordingly, the district court
23
properly dismissed the claim under C.R.C.P. 12(b)(5).6 See Bewley,
¶ 14.
VI. Remaining Contentions
¶ 42
To the extent Bruce purports to advance other contentions on
appeal, we decline to review them because they are not properly
before us, they are undeveloped, and Bruce cites no authority to
support them. See Melat, Pressman & Higbie, L.L.P. v. Hannon Law
Firm, L.L.C., 2012 CO 61, ¶ 18 (“It is axiomatic that issues not
raised in or decided by a lower court will not be addressed for the
first time on appeal.”); Barnett, 252 P.3d at 19 (“We will not
consider a bald legal proposition presented without argument or
development.”); Vallagio at Inverness Residential Condo. Ass’n, Inc.
v. Metro. Homes, Inc., 2017 CO 69, ¶¶ 39-40 (we do not consider
undeveloped arguments lacking citation to controlling authority).
6 The district court also appears to have reviewed a claim for breach
of contract against the Trustee premised on a contractual
relationship created by the deed of trust. However, we agree with
the district court that to the extent Bruce raised such a claim, he
did so merely in one conclusory sentence. Thus, the court properly
dismissed the claim under C.R.C.P. 12(b)(5). See Warne v. Hall,
24
VII. Conclusion
¶ 43
The judgment is affirmed.
JUDGE WELLING and JUDGE JOHNSON concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.