Colorado Court of Appeals, 2024

Lodge v. Eagle County

Colorado Court of Appeals · Decided August 22, 2024

Opinion

23CA1299 Lodge v Eagle County 08-22-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1299

Board of Assessment Appeals Case No. 70454

Lodge Properties, Inc.,

Petitioner-Appellee,

Eagle County Board of Equalization,

Respondent-Appellant

and

Board of Assessment Appeals,

Appellee.

ORDER REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division III

Opinion by JUDGE DUNN

Yun and Moultrie, JJ., concur

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

Announced August 22, 2024

Bryan Cave Leighton Paisner LLP, Michael J. Hofmann, Kaitlin M. DeWulf,

Denver, Colorado; Brownstein Hyatt Farber Schreck, LLP, Justin L. Cohen,

David B. Meschke, Denver, Colorado, for Petitioner-Appellee

Bryan Treu, County Attorney, Christina Hooper, Deputy County Attorney,

Eagle, Colorado; Hoffmann, Parker, Wilson & Carberry, P.C., M. Patrick Wilson,

Denver, Colorado, for Respondent-Appellant

Philip J. Weiser, Attorney General, John August Lizza, First Assistant Attorney

General, Evan P. Brennan, Assistant Attorney General, Denver, Colorado, for

Appellee

¶ 1 This is the second appeal to this court in a property tax

dispute between Lodge Properties, Inc. (LPI), and the Eagle County

Board of Equalization (the County). We must decide whether, on

remand from the first appeal, the Board of Assessment Appeals

(the BAA) followed the law of the case. Because we conclude that

the BAA did not do so, we reverse the BAA’s order and remand with

directions.

I. Factual and Procedural Background

A. The Property

¶ 2 LPI, a subsidiary of Vail Resorts, Inc., owns the Lodge at Vail

(the Lodge), a full-service, luxury resort located at the base of the

Vail Mountain Ski Area.

The Lodge has eighty hotel rooms owned

by LPI.

¶ 3 The Lodge also has seventy-four privately owned condominium

units. Some — but not all — of the private owners rent their

condominiums to the public for a fee. To manage the rental

We relay only the facts and procedural history relevant to this

appeal. For a full history, see generally Lodge Properties, Inc. v.

Eagle County Board of Equalization, 2020 COA 138, rev’d, 2022 CO

9, and Lodge Properties, Inc. v. Eagle County Board of Equalization,

2022 CO 9.

process, many owners contract with Vail/Beaver Creek Resort

Properties, Inc. (VBC), another subsidiary of Vail Resorts. Among

other services, VBC manages and operates condominiums “as . . .

rental unit[s] within the [Lodge],” renting those condominiums to

“transient guests” when unoccupied by the owners or their

nonpaying guests. In return for these services, condominium

owners pay VBC a management fee of forty percent of the gross

rental proceeds (net rental management income).

¶ 4 Despite the differences in ownership, the hotel rooms and

condominiums are physically integrated within the Lodge’s building

envelope, sharing an elevator, several stairways, and hotel

housekeeping and maintenance services. As a result, a typical

resort guest might not know when they are in the hotel and when

they are in the condominiums.

¶ 5 The Lodge also has a variety of amenities, including an

outdoor pool and hot tubs, a spa, a fitness complex, a ski valet,

restaurants, and internet access. Condominium owners offset the

cost of these amenities via required condominium association dues.

But transient guests staying in a hotel room or a condominium

booked through VBC pay for these amenities through a nightly

resort fee.

B. The 2017 Assessment and the BAA’s First Order

¶ 6 For the 2017 tax year, the County included in its calculation

of the Lodge’s assessed value the net rental management income

that VBC received from its contracts with condominium owners.

This inclusion resulted in an assessed actual value of $41,104,470,

reflecting an increase from the previous assessment. LPI appealed

the valuation to the County, which denied it.

¶ 7 LPI then appealed to the BAA, arguing that the County

improperly included VBC’s net rental management income in the

Lodge’s valuation and requesting that the Lodge’s assessed value be

reduced to $22,800,000.

¶ 8 At a hearing, the BAA considered evidence regarding the

Lodge’s actual value. LPI’s assessment excluded VBC’s net rental

management income from the Lodge’s valuation because it

considered that income to be an intangible asset. See § 39-1-118,

C.R.S. 2023 (exempting intangible assets from the levy and

collection of property tax).

¶ 9 In contrast, the County included VBC’s net rental

management income in the Lodge’s valuation because, in its view,

such income was a real estate ownership benefit that would be

factored into the Lodge’s acquisition pricing.

¶ 10 Agreeing with LPI, the BAA concluded that the net rental

management income “constituted an intangible asset that, while it

might be considered in the valuation of a property outside of

taxation, did not reflect additional value to” the Lodge. The BAA

adopted LPI’s expert appraisal report that had excluded VBC’s net

rental management income and — though no one gave it much

attention at the time — some of the resort fees collected from

transient guests (in fact, LPI’s expert testified that he was not aware

that any resort fees had been excluded from the Lodge’s financial

statements). After applying the tax-loaded capitalization rate and

deducting personal property, the BAA assigned the Lodge an actual

value of $26,245,000 for the 2017 tax year.

C. The First Appeal

¶ 11 The County appealed the BAA’s order, asserting that the BAA

erred when it

(1) determined that a real property’s actual

value is different from its market value for tax

valuation purposes; (2) concluded that [the net

rental management income] is an intangible

asset and therefore excludable when

establishing a real property’s actual value; and

(3) relied on [LPI’s] expert appraiser’s adjusted

financial statements that separated the

‘traditional’ hotel room operations from the

condo operations and excluded hotel resort

fees collected from [transient] guests.

Lodge Props., Inc. v. Eagle Cnty. Bd. of Equalization, 2020 COA 138,

¶ 15 (Lodge I), rev’d, 2022 CO 9.

¶ 12 The Lodge I division agreed with the County on all three

issues. For the first issue, the division concluded that the Lodge’s

actual value had to be measured by its market value and that,

because VBC’s net rental management income would be a factor

considered by a willing buyer and seller of the hotel, such income

had to be included in the Lodge’s valuation. Id. at ¶¶ 22-26.

¶ 13 As to the second issue, the division observed that the “income

approach” to property valuation — the methodology applied by both

parties’ appraisers — requires “calculating the income stream (rent)

the property is capable of generating, capitalized to value at a rate

typical within the relevant market.” Id. at ¶ 30 (emphasis omitted)

(quoting Bd. of Assessment Appeals v. E.E. Sonnenberg & Sons, Inc.,

797 P.2d 27, 30 n.8 (Colo. 1990)). The division reasoned that VBC’s

net rental management income was a revenue stream the Lodge

was capable of generating and not an intangible asset because that

income “is, in fact, cash; it is a tangible, inherent benefit in the form

of money that is a direct product of the core income-producing

business of [the Lodge].” Id. at ¶¶ 38-39. Thus, the division

concluded that the BAA misvalued the Lodge by excluding as

intangible a “measurable” and “identifiable” revenue stream

“directly attributable to the [Lodge].” Id. at ¶¶ 40-42.

¶ 14 Regarding the final resort fees issue, the division concluded —

based on LPI’s expert testimony — that the “resort fees are a

revenue stream directly generated by [the Lodge] and should,

therefore, be included under the income approach to [the Lodge’s]

valuation.” Id. at ¶ 45 (citing E.E. Sonnenberg, 797 P.2d at 30 n.8).

Because LPI’s expert appraisal report had, “in part,” excluded resort

fees from its valuation, the division concluded that the BAA erred

by not including those fees in the Lodge’s actual value calculation.

Id. at ¶¶ 44, 46.

D. The Appeal to the Supreme Court

¶ 15 LPI and the BAA each filed a petition for certiorari. It’s

undisputed that neither asked the supreme court to review the

portion of Lodge I that held resort fees should be included in the

Lodge’s actual value calculation.

¶ 16 As relevant here, the certiorari petitions asked the supreme

court to review the portions of Lodge I related to VBC’s net rental

management income and whether that income should be included

in the Lodge’s actual value under the income approach to

valuation.

¶ 17 The supreme court specifically granted review on two issues:

1. Whether the court of appeals erred by holding

that a hotel’s contractual right to net rental

income generated from separately owned, but

physically integrated, condominium units is

not intangible personal property that must be

excluded under section 39-3-118, C.R.S. from

the actual value of the hotel under the income

approach to valuation in section 39-1-

103(5)(a), C.R.S.

2. Whether the court of appeals erred by holding,

for the first time, that the net income

generated from rentals of individually and

separately owned condominium units to guests

The BAA’s certiorari petition raised a single question for review,

while LPI’s petition raised three questions.

of a hotel should be included in the actual

value of the hotel under the income approach

to valuation.

Lodge Props., Inc. v. Eagle Cnty. Bd. of Equalization, 2022 CO 9, ¶ 1

n.1 (Lodge II). The supreme court didn’t grant certiorari on the

portion of Lodge I that held resort fees should be included in the

Lodge’s actual value calculation.

¶ 18 Considering the second certiorari question, the supreme court

concluded that the Lodge I division had misconstrued “the

foundation of the income approach to valuation” as “the

capitalization of such income streams attributable to property

ownership.” Id. at ¶ 43 (emphasis omitted) (quoting Lodge I, ¶ 39).

The supreme court reiterated that the income approach requires an

assessor to consider the income that the “[subject] property is

capable of generating.” Id. (quoting E.E. Sonnenberg, 797 P.2d at

30 n.8). And, it continued, “[b]y including VBC’s net rental

management income within the sweep of income ‘attributable to

property ownership,’ the division impermissibly expanded the

income approach to include in the Lodge’s valuation contractual

rights to revenue generated by a different property.” Id. Thus, the

supreme court held that “the net income generated from rentals of

the individually and separately owned condominium units was not

income generated by the Lodge and therefore should not have been

included in the Lodge’s actual value under the income approach to

valuation.” Id. at ¶ 2.

¶ 19 Given its disposition, the supreme court didn’t reach the first

certiorari question: “whether the net rental income at issue also

constituted intangible personal property, requiring that it be

excluded from the Lodge’s valuation under the income approach.”

Id. at ¶ 58. And with no discussion or mention of the portion of

Lodge I’s holding that resort fees should be included in calculating

the Lodge’s actual value, the supreme court “reverse[d] the

judgment of the division below” and “remand[ed] this case for

further proceedings consistent with this opinion.” Id. at ¶ 60.

E. The Mandate and Modified Mandate

¶ 20 On remand from the supreme court, this court issued a

mandate affirming the BAA’s order and returning the case to the

BAA “for further proceedings consistent with the opinion of the

Colorado Supreme Court.” Lodge Props., Inc. v. Eagle Cnty. Bd. of

Equalization, (Colo. App. No. 19CA0266, June 8, 2022)

(unpublished order).

¶ 21 The County then filed a motion “for stay of mandate to

reconsider and clarify the mandate.” In it, the County explained

that neither LPI nor the BAA asked the supreme court to address

Lodge I’s resort fees holding, the supreme court didn’t grant

certiorari on that issue, and the supreme court didn’t decide it.

Thus, the County asserted that the law of the case applied to

Lodge I’s resort fees holding and asked that the mandate be

modified to reflect the “effective appellate rulings in this case.” The

BAA took no position on the motion, but LPI opposed it, arguing, as

relevant here, that the supreme court’s opinion and mandate

reversed the entire judgment.

¶ 22 This court issued a modified mandate, directing “that the

order of the [BAA] is affirmed in part” and returning the case to the

BAA “for further proceedings consistent with the opinion of the

Colorado Supreme Court.” Lodge Props., Inc. v. Eagle Cnty. Bd. of

Equalization, (Colo. App. No. 19CA0266, July 25, 2022)

(unpublished order) (emphasis added).

F. The Remand Proceedings

¶ 23 Back before the BAA, the parties disagreed on the scope of the

remand proceedings. Attempting to comply with the modified

mandate, the BAA expressed its view that the modified mandate

required it to address only the “very narrow issue” of “how the

resort fee inclusion or exclusion . . . impacts the value.” Ultimately,

the BAA permitted the parties to exchange “some brief documentary

evidence” and introduce “very limited testimony, based on that very

narrow issue.”

¶ 24 At the hearing, LPI began by acknowledging that $197,407 in

resort fees had been excluded from its original expert appraisal

report. But it then proceeded to parse the resort fees into two

categories: resort fees “generated by the hotel,” and resort fees

“generated by the [c]ontracts governing the relationship between the

third-party condo owners and VBC.”

¶ 25 And despite the fact that LPI’s expert testified at the first BAA

hearing that he was not aware that any resort fees had been

excluded from the Lodge’s financial statements, at the remand

hearing LPI introduced a different witness who testified that the

financial statements (which the appraisal report relied on) had

included the first category of resort fees (generated by the Lodge)

but excluded the second category of resort fees (generated by VBC

condominium rentals) because those fees were “an intangible

revenue stream related to other property outside” the Lodge.

Consistent with this theory but again contrary to expert testimony

at the first BAA hearing, LPI’s new witness testified that “resort fees

don’t actually give [g]uests access to the amenities” and that

“[g]uests who don’t rent . . . a third-party-owned condo through

VBC do not pay a resort fee” but “still have access to all the

amenities.” Because the appraisal report that the BAA adopted had

excluded the $197,407 in resort fees purportedly generated by VBC

condominium rentals, LPI asked the BAA to affirm its original

valuation of $26,245,000.

¶ 26 In contrast, the County asserted that, to follow the law of the

case established by Lodge I and Lodge II, the BAA had to include for

valuation the $197,407 of resort fees excluded by the expert

appraisal report. The County again emphasized that certiorari

review was neither sought nor granted on the portion of Lodge I’s

holding that “resort fees are a revenue stream directly generated by

[the Lodge],” Lodge I, ¶ 45, and argued that those fees should be

included in the Lodge’s actual value under the income approach to

valuation.

¶ 27 In its remand order, the BAA framed the remaining issue as

“whether resort fees charged to guests of third-party owned

condominiums managed by VBC are properly included within the

income approach to property.” Crediting LPI’s new evidence, the

BAA concluded that resort fees paid by those who rented the

privately owned condominiums managed by VBC were a “revenue

stream” to VBC and therefore were “not properly included within

the valuation of” the Lodge. Thus, the BAA affirmed its original

$26,245,000 valuation.

¶ 28 In this second appeal, the County again challenges the BAA’s

order, arguing that the BAA erred by (1) failing to “adhere to the law

of the case” with respect to Lodge I’s resort fees holding; (2) violating

the judicial admissions and judicial estoppel doctrines; and (3)

failing to apply established facts to the correct legal standard.

II. Analysis

¶ 29 The County maintains that Lodge II didn’t disturb the portion

of Lodge I’s holding that “resort fees are a revenue stream directly

generated by [the Lodge] and should, therefore, be included under

the income approach to [the Lodge’s] valuation.” Lodge I, ¶ 45

(citing E.E. Sonnenberg, 797 P.2d at 30 n.8). Thus, the County

contends that the BAA erred by failing to follow the law of the case

and by excluding $197,407 in resort fees from the Lodge’s

valuation. Under these circumstances, we agree.

¶ 30 “Conclusions of an appellate court on issues presented to it as

well as rulings logically necessary to sustain such conclusions

become the law of the case.” Super Valu Stores, Inc. v. Dist. Ct., 906

P.2d 72, 79 (Colo. 1995). The law of the case as established by an

appellate court must be followed in later proceedings before the trial

court,

see Cordell v. Klingsheim, 2018 COA 80, ¶ 12, and “is

binding” in later appeals involving the same case, People v. Robbins,

87 P.3d 120, 122 (Colo. App. 2003), aff’d, 107 P.3d 384 (Colo.

2005); see also Simpson v. Yale Invs., Inc., 886 P.2d 689, 699 (Colo.

1994) (“When a case is remanded to the trial court and

subsequently appealed, the reviewing court will consider only those

issues arising after the remand and whether the trial court

complied with the order of remand.”).

Neither LPI nor the BAA suggests that an agency — such as the

BAA — is not required to follow the law of the case established by

appellate courts. See, e.g., Copart, Inc. v. Admin. Rev. Bd., 495 F.3d

1197, 1201 (10th Cir. 2007) (noting the law of the case doctrine

applies to administrative agencies on remand).

¶ 31 We review de novo whether the BAA (or trial court) followed the

law of the case. See Owners Ins. Co. v. Dakota Station II Condo.

Ass’n, 2021 COA 114, ¶ 21.

¶ 32 To start, we look at what Lodge I said about resort fees. And

Lodge I plainly held that “the BAA should have included hotel resort

fees as a revenue stream under the income approach to [the

Lodge’s] valuation.” Lodge I, ¶ 43. Lodge I based this conclusion

directly on LPI’s expert testimony. That expert confirmed that LPI

collects resort fees “from all [transient] guests to cover the expenses

[the] Lodge incurs in providing the guests with free amenities” and

that those fees “go directly to [the] Lodge and not through” VBC. Id.

at ¶ 44 (emphasis added); see also Lodge II, ¶ 12 (noting the resort

fees afford guests “who stay at the hotel and those who rent a

condominium” access to the Lodge’s amenities). And that expert

explained that the resort fees are “income for [LPI]” and “pretty

profitable for the [Lodge]” and that all transient guests — those that

book through VBC or otherwise — get the same access to amenities.

Thus, with support from the record before it, Lodge I concluded that

resort fees are “a revenue stream directly generated” by the Lodge

(not VBC) and directed the BAA on remand to include resort fees in

the Lodge’s valuation (though the amount of those fees wasn’t

known because it had been excluded from the expert appraisal

report). Lodge I, ¶ 45.

¶ 33 Neither LPI nor the BAA disputes this particular holding.

Instead, they argue that law of the case doesn’t apply because by

“revers[ing] the judgment of the division below” and “remand[ing]

this case for further proceedings consistent with this opinion,”

Lodge II, ¶ 60, the supreme court intended to reverse the entire

judgment, not just the judgment as to the one certiorari issue it

decided.

¶ 34 We see a couple of problems with this argument. For one,

neither LPI nor the BAA asked the supreme court to review the

portion of Lodge I that held resort fees should be included in the

Lodge’s valuation (or even mentioned that portion of Lodge I’s

holding in their certiorari petitions). And no one disputes that the

supreme court didn’t grant certiorari to review that holding and

In the first appeal, the resort fees issue took up about a page in

the parties’ respective appellate briefs. LPI generally asserted that

the resort fees were properly allocated. But it didn’t argue that the

resort fees paid by condominium guests (versus those paid by hotel

guests) were generated by different property.

instead granted certiorari on two “specific issues” — both related to

the net rental income generated from the condominium units. Id. at

¶ 1 n.1.

¶ 35 Simply put, the supreme court only reviewed and decided

whether VBC’s net rental management income should be included

in the Lodge’s valuation, not the resort fees. And “[b]ecause our

supreme court limits the scope of its review to the question

presented on certiorari, we cannot presume that an issue beyond

the question presented was decided.” Cordell, ¶ 14 (citations

omitted); see also Fair v. Red Lion Inn, 943 P.2d 431, 433 n.1 (Colo.

1997) (“As our order granting certiorari does not address that

conclusion [upholding a jury verdict on a contract claim], it remains

the law of this case and will not be disturbed by our review.”); State

v. Williams, 2013-0283, p.2 n.2 (La. App. 4 Cir. 9/7/16) (“[T]his

court addressed and resolved the defendant’s eleven assignments of

error. The Supreme Court granted certiorari and vacated this

court’s judgment solely as to one of those assignments of error . . . .

This court’s determination of the other ten assignments of error

addressed in its original opinion was not disturbed and remains the

law of the case . . . .”).

¶ 36 While we recognize that the supreme court has been more

precise in its dispositional language, see, e.g., Rossmiller v. Romero,

625 P.2d 1029, 1029 (Colo. 1981) (reversing “that portion of the

judgment of the court of appeals” on which the supreme court

granted certiorari), we cannot agree that Lodge II reversed a portion

of an appellate decision that no one asked the supreme court to

review, it didn’t grant certiorari to review, and it neither considered

nor decided.

Having so concluded, we necessarily disagree with

the BAA’s related contention that the undisturbed portion of Lodge I

wasn’t a final decision for purposes of the law of the case doctrine.

Cf. Loc. 28 of Sheet Metal Workers’ Int’l Ass’n v. Equal Emp.

Opportunity Comm., 478 U.S. 421, 441 (1986) (refusing to consider

an issue raised in a third appeal that the court of appeals had twice

affirmed because petitioners hadn’t sought certiorari review of

either appellate judgment).

We have some broader concerns about the position staked out by

LPI and the BAA. We often consider several issues in any given

appeal. Adopting LPI and the BAA’s position would mean that if our

supreme court reviewed and reversed a single issue in a criminal

appeal, for example, the entire judgment would be reversed,

including issues not reviewed or considered by the supreme court.

¶ 37 Second, the modified mandate undermines this argument.

Though both LPI and the BAA make much of the fact that the

modified mandate didn’t include “express instructions to enter a

particular order” or otherwise direct the BAA to follow “any part of

the division’s reversed judgment,” LPI and the BAA seemingly ignore

that the modified mandate affirmed the BAA’s original order only “in

part.” And the only part that could have been affirmed is the part

that Lodge II resolved regarding the exclusion of VBC’s net rental

management income from the Lodge’s valuation. See Lodge II,

¶¶ 57-60. That means the modified mandate didn’t affirm the

portion of the BAA’s original order that excluded resort fees from

the Lodge’s valuation. At the very least, that’s how we interpret the

modified mandate. See Thompson v. Catlin Ins. Co. (UK) Ltd., 2018

CO 95, ¶ 24 (“A division of the court of appeals should have some

elbow room in construing another division’s mandate to promote

the efficient administration of justice.”).

¶ 38 Third, we are unpersuaded by LPI and the BAA’s contention

that Lodge II implicitly overruled Lodge I’s resort fees holding. To

get there, LPI and the BAA argue that Lodge II corrected the legal

standard to the income approach to valuation and that Lodge I

applied the incorrect standard by concluding that resort fees should

be included in the Lodge’s valuation. But Lodge I’s resort fees

holding is entirely consistent with the legal standard articulated in

Lodge II. Indeed, Lodge II directs that income generated by the

Lodge (and not VBC) is properly included in the Lodge’s valuation.

See Lodge II, ¶¶ 32-34. And Lodge I plainly held that the “resort

fees are a revenue stream directly generated by [the Lodge] and

should, therefore, be included under the income approach to [the

Lodge’s] valuation.” Lodge I, ¶ 45 (emphasis added) (citing E.E.

Sonnenberg, 797 P.2d at 30 n.8).

¶ 39 Finally, Owners doesn’t require a different result. In Owners,

an insurer and a condominium association disputed, among other

things, whether a property damage appraiser had acted impartially

as required by the insurance policy. Owners, ¶¶ 2-6. The trial

court found that the appraiser had not acted improperly, and a split

division of this court affirmed. Id. at ¶¶ 7-9. The supreme court

reversed on that issue, concluding that the division majority had

employed the wrong impartiality standard. Id. at ¶ 10. In doing so,

the supreme court established the applicable standard for appraiser

impartiality and remanded to the trial court to consider whether the

appraiser’s conduct conformed to that standard. Id.

¶ 40 The remand court held a hearing to determine whether the

appraiser’s conduct conformed to the correct impartiality standard

and issued new findings and conclusions determining that the

appraiser wasn’t impartial. Id. at ¶ 14.

¶ 41 The condominium association appealed to another division of

this court, arguing that the remand court had failed to follow the

law of the case. Id. at ¶ 20. In particular, it asserted that because

“the supreme court reviewed only the appraiser impartiality

standard and [a second issue not relevant here] . . . the other issues

affirmed by the division majority remain the law of the case.” Id. at

¶ 27. The division rejected this argument because “the supreme

court’s articulation of the correct impartiality standard — which

differed from the standards applied by the trial court in the earlier

decision and by the division majority in the prior appeal —

necessarily affected all the issues going to [the appraiser’s]

partiality.” Id. Thus, the remand court “appropriately followed the

supreme court’s direction to determine whether [the appraiser’s]

conduct conformed to this new standard.” Id.

¶ 42 But the facts and circumstances of Owners are very different

from those here. First, unlike the resort fees holding here, Owners

involved an issue that the supreme court actually reviewed and

decided.

¶ 43 Second, the supreme court announced a “new standard” of

impartiality in Owners, and the remand court properly considered

whether the standard was satisfied. Id. But Lodge II reiterated the

existing standard for the income approach to valuation and

concluded the division erred when it “impermissibly expanded” that

standard with respect to the net rental management income. Lodge

II, ¶ 43. And the supreme court explained that an assessor

employing the income approach need “do no more than determine

which real property has generated the income at issue before

including that income in the value calculation.” Id. at ¶ 55. That is

the standard Lodge I used to conclude that resort fees should be

included under the income approach to the Lodge’s valuation. See

Lodge I, ¶ 45; cf. Lodge II, ¶ 43 (faulting the division only for

including “VBC’s net rental management income” in the Lodge’s

valuation, not any resort fees).

¶ 44 To the extent LPI and the BAA now push to characterize the

inclusion of resort fees in the Lodge’s valuation as a factual matter

(to which law of the case doesn’t apply), see Owners, ¶ 28, that’s

not what LPI argued on remand to the BAA. Instead, it represented

to the BAA that “whether the resort fees . . . should or should not

be included” is “a legal matter.” And though we generally will not

consider an argument advanced for the first time on appeal, see

Gebert v. Sears, Roebuck & Co., 2023 COA 107, ¶ 25, we agree with

the position advanced by LPI on remand, which is consistent with

Lodge II’s related conclusion that whether VBC’s net rental

management income should be included in the Lodge’s valuation is

a question of law, Lodge II, ¶ 26.

¶ 45 All this said, we conclude that the BAA violated the law of the

case by reopening the issue of whether resort fees should have been

included in or excluded from the Lodge’s valuation.

We recognize and acknowledge the BAA’s diligent efforts to comply

with the modified mandate. Some of the confusion regarding the

modified mandate’s scope seems to have stemmed from the

County’s efforts to introduce additional evidence and to litigate a

separate issue beyond the mandate’s scope.

¶ 46 Having so concluded, we need not consider the County’s

remaining arguments that the BAA erred by violating the judicial

admissions and judicial estoppel doctrines or by failing to apply

established facts to the correct legal standard.

III. Disposition

¶ 47 We reverse the BAA’s order and remand with directions to

include the $197,407 in resort fees in the Lodge’s valuation. The

BAA shall do so based on the existing record.

JUDGE YUN and JUDGE MOULTRIE concur.

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