2007-05-10_ENFORCEMENT - C1981013

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141 P.3d 863 141 P.3d 863 (Cite as: 141 P.3d 863) At trial, the expert witness testified that, absent any subsidence damage or threat of future subsidence damage, homeowners' residence would have an ap- praised fair market .value of $850,000. The witness then testified that with the damage that had occurred and with an ongoing threat 'of subsidence damage present, the property would have a fair market value of $180,000 and would only lie viable as agricultural land. On cross-examination, the expert conceded that his calculations assessed the diminution in property value as a whole since the time that homeowners first acquired the. land and did not distinguish between loss in value prior to December 1, 1997, and loss in value after that date. i Basin argues the trial court erred in relying on this testimony because the expert witness was required to determine the fair market value of the property before the second incidence of subsidence and the fair mar- ket value after the second incidence, which he admit- tedly did not do. We do not agree. In its December 19, 2002 judgment, the trial court, incorporating the calculations of homeowners' expert witness, determined the diminution in the value of homeowners' property according to a measure of damages "as specified by the Colorado Surface Coal Mining Reclamation Act, and regulations adopted i pursuant to this Act." That statute contains the fol- lowing relevant provision: If material damage results from subsidence caused by underground coal mining' operations to any oc- cupied residential dwelling and related structures or any noncommercial building, the operator of the underground coal mining operations conducted on or after April 7, 1995, shall either: (A) Promptly repair the dami age by rehabilitating, restoring, or replacing the damaged occupied resid- ential dwelling and related structures or noncom- mercial building; or (B) Compensate the owner of the damaged occu- pied residential dwelling and elated *870'structure or noncommercial building in the full amount of the diminution in value resulting from the subsid- ence. Section 4-33-121(2)(a)(11)( )-('B) C R S 2005. The applicable regulation of the Colorado Mined Page 7 Land Reclamation Board for Coal Mining provides that a coal mining operator who causes material sub- sidence damage to a residential dwelling must either "[p]romptly repair, rehabilitate, restore, or replace damaged occupied residential dwellings" or "[c]ompensate the owner of the damaged occupied residential dwelling ... in the full amount of the di- minution in value resulting from the subsidence." Mined Land Reclamation Bd. Reg. 4.20.3(b)(i)-(ii), Code Colo Re(,,;. 407-2 (2003). Pursuant to these provisions, the trial court determ- ined the total diminution of homeowners' property value to be $670,000. To preclude any double recov- ery for the loss in value suffered prior to December 1, 1997, the court deducted the $48,000 homeowners had previously recovered from the diminution. We conclude the trial court's determinations are suppor- ted by the record. Therefore, the trial court did not err in relying on the expert's testimony. III. 13 Basin contends the trial court abused its discre- tion in sustaining homeowners' objection to Basin's effort to introduce evidence concerning homeowner Jim Tatum's attorney disciplinary record as character evidence to impeach his credibility. In support of its argument, Basin relies on People v. Disf,,L 759 P .2d 654 (Colo. 1988); United States v. Ifeichert 783 F .2d 23 (2d Cir.1986); and United States v. Whitehead 6t S F 2d 523 (4th Cir. 1980). We find no error. ! 4 A court may, in its discretion, admit evidence of specific instances of a witness's conduct on cross- examination if it is probative of truthfulness or un- truthfulness. CRE 608(b); People v. Jones. 971 P .2d 243 (Colo.App.1998 . As a general rule, however, specific instances of prior conduct may not be admit- ted as evidence to impeach the credibility of a wit- ness. Per,nle v. CaltAvel! 43 P .3d 663 (Colo.Apo 2001). In determining the admissibility of such impeachment evidence, the trial court must ex- ercise its sound discretion to preclude inquiries that would have little bearing on the witness's credibility but would substantially impugn his or her character. f'corle v. Cule. 654 P .2d 830 (Colo 1982). The record establishes that homeowner Jim Tatum, i 0 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.