dissenting.
I respectfully dissent. In my view, the majority erroneously approves a trial court change in substance to the jury verdiet that deprives the School District of $2,000,000, plus substantial attorney fees, without a fair trial on the valuation of the entire condemned property.
The majority's analysis and judgment stem directly from the mischaracterization of this case as two condemnation actions. The case was actually tried, upon agreement of both parties, as one condemnation action with two condemnation scenarios. Under the first scenario, the School District would take only part of the property; under the second see-nario, the School District would take the entire property. Ultimately, the School District chose to take the entire property and has built a middle school, high school, and sports field on it.
I would hold that the trial court abused its discretion by changing the substance of an inconsistent jury verdict resulting from a verdict form and jury instructions that confused and misled the jury. In my view, the appropriate remedy is to remand for a new valuation trial regarding the entire property.
1. The Trial Court Impermissibly Amended the Verdict
The School District and Security Life both agreed to the unusual manner in which the case was tried, as well as to the jury instructions and verdict form. Using a stock verdict form and instructions they attempted, unsuccessfully, to adapt them to the two alternative scenarios: (1) taking Parcel A and not taking Parcel B but damaging it, or (2) taking the entire property. The verdict form to which the parties agreed irreconcilably confused the jury by introducing the concept of interim damaged property based on the dates of possession of Parcel A and Parcel B, a concept that does not exist under Colorado law.
The verdiet form the jury completed reads as follows:
We, the jury, ascertain and assess:
(1) Parcel A is described on Exhibit A attached hereto.
(2) The value of Parcel A, which is actually taken, on February 19, 2004, was $5,619,-240.00.
(3) The damages to the residue of such property, or Parcel B, if not actually taken, are $2,000,000.00.
(4) Parcel B is described on Exhibit B attached hereto.
(5) The value of Parcel B on February 7, 2005, if actually taken is $1,655,280.00.
The verdiet's inconsistency is facially apparent because the jury awarded more money for damaging Parcel B than it did for condemning Parcel B outright. To rectify the jury's inconsistent verdict, the trial court made a calculation that the verdict form does not call for. It impermissibly added together the monetary amounts the jury inserted into the second and third blank lines of the verdict form to reach the value of Parcel B if the School District chose to take the entire property.
However, the verdict form specifically requires the jury to state the value of Parcel B in the third blank line of the verdict form. The trial court's impermissible intervention in amending the jury's completed verdict form highlights the confusion the jury instructions and verdict form engendered. To avoid this confusion, something comparable to the following language should have been included on the verdict form following the third blank:
(THE AMOUNT OF MONEY TO BE INSERTED INTO THIS BLANK LINE IS THE ACTUAL VALUE YOU DETER MINE FOR PARCEL B AS OF FEBRUARY 7, 2005 WITHOUT ANY CONSIDERATION OF DAMAGES, BECAUSE NO DAMAGES WILL HAVE OCCURRED IF THE SCHOOL DISTRICT TAKES BOTH PARCELS A AND B)
In the absence of such an explanation, the jury instructions together with the verdict form confused and misled the jury. Jury Instruction No. 11 stated, "[The School District] may decide to acquire Parcel B, in which case, there will be no residue" and "you are to determine the amount of compen-sable damages, if any, to Parcel B, in the event Parcel B is not acquired by [the School *793District]." The obvious error with this jury instruction, as well as with the other instructions, is that they do not clarify, in light of the alternative scenarios, that no damages oceur if the School District chooses to also acquire Parcel B.
In its statement of different possession dates for Parcels A and B, Jury Instruction No. 2 also added to jury confusion by implanting the concept of interim damaged property, a legal concept that does not exist in Colorado condemnation law. The unusual manner in which the parties agreed to try the case-including the verdiet form and jury instructions as written and agreed to-prompted the trial court to alter the jury's verdict in a substantive way and implicitly accepted the nonexistent legal concept of interim damaged property. The trial court stated:
The only fair and logical reading of the verdict is that the jury found that, as of the taking on February 19, 2004, the value of the property taken ("A") was $5,619,240 and the damages to the remainder ("B") was $2,000,000. Subsequently, as of February 7, 2005, and after the $2,000,000 had been paid, if the School District wished to purchase parcel "B", the value of that would be an additional $1,655,280, for a total of $9,274,520.
(Emphasis added).
In addition, the court of appeals was so confounded when examining the verdict form and jury instructions that it explicitly recognized the nonexistent legal concept of interim damages. However, both parties conceded in their briefs and at oral argument before us that no such concept exists in Colorado condemnation law.
In my view, the trial court amended the jury's verdict improperly. It did so because it recognized that the jury should have stated in one figure-on the third blank line-the total value of Parcel B in the seenario of the School District taking the entire property. However, because the jury inserted a relatively low monetary figure as the value of Parcel B, $1,655,280, the trial court conjectured that the jury had broken the total value of Parcel B into two figures. It then made a calculation that the jury did not make, adding $2,000,000 to the amount the jury had stated as being the value of Parcel B.
In making a calculation the jury did not make, the trial court engaged in speculation about the jury's intent and made an impermissible change in substance to the jury's verdict. When there are misleading instructions, confusing verdict forms, or conflicting answers in the jury's completed verdict form, neither a trial court nor an appellate court should attempt to correct the jury verdict. See Boulder Valley Sch. Dist. R-2 v. Price, 805 P.2d 1085, 1093-94, (Colo.1991), rev'd on other grounds by Cmty. Hosp. v. Fail, 969 P.2d 667, 670 (Colo.1998).
2. A New Valuation Trial of the Entire Property Should Occur
In my view, the appropriate remedy in this case is a new trial for valuation of the entire property. Our seminal case on whether it is permissible to grant a partial retrial instructs us that "it should clearly appear that the issue to be retried is entirely distinct and separable." See Bassett v. O'Dell, 178 Colo. 425, 427, 498 P.2d 1134, 1135 (1972) (emphasis added). A partial retrial is possible only if retrying part, but not all, of the issues will not result in an injustice to either party. Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 934 (Colo.1997).
Because the dispute in this case surrounds the valuation of the entire property, an examination of whether a partial or entire retrial is appropriate turns on the valuation method used by the parties at trial and the fairness of only retrying the value of Parcel B as ordered by the court of appeals.
At trial, the School District and Security Life's experts used the same comparable sales valuation methodology,. but disputed each other's valuation adjustments. In addition, each party's experts approached the valuation differently given the various condemnation scenarios presented to the jury. The original trial was a single condemnation action for one piece of contiguous and similarly zoned property owned by Security Life, not two separate condemnation actions. See Jury Instruction No. 2 ("The property that the [School District] seeks to acquire is approximately 138 acres.... The [School Dis*794trict] seeks to acquire the property in two parcels."). Thus, at the end of the first trial, the School District was entitled, if it so chose, to take the entire property or only Parcel A.
Despite the two condemnation seenarios, the parties agreed to conduct only one valuation trial and provided jury instructions and a verdict form with the intent of arriving at a fair value for the entire property. Under a retrial of Parcel B, as the court of appeals ordered, the second jury would be prohibited from receiving and making a determination on all the relevant interrelated valuation evidence regarding the property as a whole. Thus, in my view, a retrial on the valuation of the entire property should occur.
3. The Attorney Fee Award Improperly Turns on the Invalid Concept of Interim Damaged Property
I also dissent from the majority's attorney fee decision. By adding $2,000,000 in damages to the School District's possession of Parcel A, the majority's decision erroneously results in an award of attorney fees to Seeu-rity Life. However, under the facts of this case, damages to the property never occurred because the School District condemned the entire property. Thus, in my view, the majority's decision incorrectly inserts the nonexistent legal concept of interim damages into an attorney fee calculation. Under the unique cireumstances of this case, where a single condemnation was tried by agreement of the parties in two different scenarios, the court should not approve an attorney fee award.
In sum, I would reverse the judgment of the court of appeals and order it to return this case for a new valuation trial regarding the entire property the School District took in this case.
Accordingly, I respectfully dissent.
I am authorized to state that Justice RICE and Justice COATS join in this dissent.