Sung v. McCullough

I respectfully dissent.

Application of the doctrine of waiver requires a finding that there was an intentional relinquishment of a known right. Ewing v. Colorado Farm Mutual Casualty Co., 133 Colo. 447, 296 P.2d 1040 (1956). See also Shoemaker v. Mountain States Telephone & Telegraph Co., 38 Colo.App. 321, 559 P.2d 721 (1976). Intent is a question of fact. Williams v. Gulick, 170 Colo. 347, 461 P.2d 211 (1969). Thus, the majority begs the question in addressing waiver as a matter of law.

The majority opinion substitutes its own findings of fact for that of the trial court on the contested issue…