2007-05-10_ENFORCEMENT - C1981013

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141 P.3d 863 141 P.3d 863 (Cite as: 141 P.3d 863) res judicata, from obtaining recovery under the Col- orado Surface Coal Mining; Reclamation Act for damage to their home caused by coal mine subsid- ence, notwithstanding that ;homeowners had re- covered against the owner of the mine three years earlier; since homeowners based their present suit on a separate injury that occurred later, there was no identity of subject matter between the two lawsuits, making res judicata inapplicable. West's C.R.S.A 34-13-101 et seq. i 161 Judgment E=584 228k584 Most Citcd Cases Res judicata precludes a claim!that was or could have been raised in a previous litigation. L71 Judgment X584 228k584 :l lost Cited Cases The doctrine of res judicata will only be applied if in both proceedings there is identity of subject matter, identity of cause of action, identity of parties, and identity of capacity in the persons for whom or against whom the claim is made. Evidence X555.9 157055A Most Ciced Case Testimony of homeowners' expert witness concerning damages to homeowners' residence was admissible in action for recovery under the Colorado Surface Coal Mining Reclamation Act for damage to their home caused by coal mine subsidence; expert testified that, absent any subsidence damage or threat of future sub- sidence damage, homeowners' iresidence would have had an appraised fair market value of $850,000, but that fair market value was only $180,000 as a result of the damage. I 191 Appeal and Error X971(2) 3Ok971(2) :VlOst Cited Cases i M Evidence X546 157k546 Most Cited C as" The determination of whether a witness is qualified to testify as an expert witness is committed to the dis- cretion of the trial court and will not be disturbed ab- sent a clear abuse of discretion. 1( Oj Evidence X508 157k508 Most Cued Cases Page 2 I 101 Evidence X555.2 157k555.2 'vlost Cited Cases In general, when an objection is filed to the testimony of an expert witness on the ground. that such testi- mony is based on improper legal and factual assump- tions, the trial court should enter specific findings set- ting forth the reasons supporting the trial court's de- termination of the reliability and relevancy of such testimony. Rules of I vid.. Rule 702. 11 Appeal and Error Cz=?1071.6 30k 1071.6 Most Cited Cases Trial court's failure to make specific findings in over- ruling defendant mine operator's objection to expert testimony, which was offered in support of homeowners' claim for damages under the Colorado Surface Coal Mining Reclamation Act, did not re- quire reversal; in denying mine operator's objection, the trial court impliedly determined that the testi- mony satisfied the evidentiary requirements for ex- pert testimony, and given that the case was tried to the court rather than to a jury, the failure to make specific findings respecting determinations of reliab- ility and relevancy did not substantially influence the verdict or affect the fairness of the trial. Rule; of E.vid.. Rule 702. 12 Appeal and Error X931(6) 30k931(6) Most Cited Cases When a civil case is tried to the court, not to a jury, the presumption on appeal is that the trial court dis- regarded all incompetent and immaterial evidence. 13 Witnesses &0336 41 Ok336 Most Cited Cases Evidence of disciplinary record of attorney, in attor- ney's claim as a homeowner for damages under the Colorado Surface Coal Mining Reclamation Act, was not admissible for purposes of impeaching the attor- ney; although one of attorney's disciplinary proceed- ings, based on commingling of funds and other alleg- ations, may have suggested dishonest conduct, the other disciplinary proceedings involved improper conduct to a judge and untimely filing of an appellate brief, which did not involve dishonest conduct. Rules ofEvid.. Rule 608(b). jU4 Witnesses X0344(1) 020 : 07 Thomson/West. No Claim to Orig. U.S. Govt. Works. i