May 19, 2013

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Colorado Court of Appeals: State Agency Cannot Require Submission of Records Containing Protected Information Without Records Retention and Destruction Policy in Place

April 4, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Adolescent and Family Institute of Colorado, Inc. v. Colorado Department of Human Services, Division of Behavioral Health on Thursday, March 28, 2013.

Declaratory Judgment—Confidential Patient Information in Drug Alcohol Coordinated Data System.

Plaintiff, Adolescent and Family Institute of Colorado, Inc., appealed from the district court’s declaratory judgment in favor of defendant, Colorado Department of Human Services, Division of Behavioral Health, Alcohol and Drug Abuse Division (ADAD). The judgment was affirmed.

The Colorado Department of Human Services is responsible for the administration of human services programs in the state, including drug and alcohol abuse treatment programs. ADAD is responsible for formulating and administering a comprehensive state plan for alcohol and drug abuse programs. To do so, defendant is authorized to “establish standards for approved treatment facilities that receive public funds or that dispense controlled substances or both.” Such a facility must be licensed by defendant to operate in Colorado.

Plaintiff is a private, for-profit facility that provides treatment for patients with substance abuse and mental health disorders. Plaintiff does not dispense controlled substances and the record did not disclose that it received public funds. Nonetheless, it had been licensed by defendant since 1984 and sought to maintain that status.

All licensees are responsible for accurate and timely submission of required data to defendant, including Drug Alcohol Coordinated Data System (DACODS) client treatment admission and discharge records. The DACODS form contains a patient’s first and last name, date of birth, social security number, zip code, and other demographic information.

Defendant did not require private treatment facilities to comply with the DACODS submission requirement until 2005. Plaintiff sought a waiver of the requirement to ensure it did not violate state and federal laws protecting the confidentiality of patient records. The request was denied, and defendant initiated administrative license revocation proceedings, which were dismissed with prejudice. Plaintiff then initiated proceedings in district court, seeking a declaratory judgment to determine whether the DACODS submission requirement was preempted by state and federal laws because the regulation and laws conflicted. The trial court ruled that the submission requirement was not preempted because it was not covered by the statutory psychotherapist–patient privilege and fell within certain statutory exceptions to the general prohibition against disclosures. Plaintiff asked the court to stay any licensure action by defendant against it pending appeal; the stay was granted.

Plaintiff first argued it was error to find that the DACODS submission requirement does not violate CRS § 13-90-107(1)(g). The Court of Appeals disagreed. The plain language of the statute refers to a “witness” and is located in Title 13, “Courts and Court Procedure.” The section protects people listed from being questioned in a manner that will result in their disclosures being used at any stage in litigation. It is a “testimonial” privilege. It therefore does not apply to the DACODS submission requirement.

Plaintiff then argued it was error to conclude that the DACODS submission requirement does not violate 42 USC § 290dd-2 and its implementing regulations. The trial court had ruled that defendant could require that plaintiff submit the information on the DACODS forms, but because defendant did not have a data retention and destruction policy, defendant could not enforce the requirement until such a policy had been enacted. The Court found no error.

The district court found that the federal statute did not apply because defendant is the “administrative agency that has direct control” over plaintiff and therefore is exempt under the terms of the statute. The Court found no case law or definition of what “direct administrative control” means in this context. However, it found persuasive the definition used by the Social Security Administration (SSA) to determine whether an institution is public or private for SSA purposes. Using that as guidance, the Court held the district court erred in finding that defendant had direct administrative control over plaintiff.

The Court then examined whether defendant’s collection activities fell within the audit or evaluation exception. It found that although the DACODS information may be used in the aggregate for multiple submissions required to be made under the statute, each such submission was a separate audit or evaluation within the exception, and therefore it did not apply.

The Court turned to whether defendant’s collection of DACODS information complied with the statutory requirements regarding how confidential information must be collected, stored, and destroyed. Defendant had no such policy. The Court agreed with plaintiff that in the absence of such a policy, gathering the DACODS information is a violation of 42 CFR Part 2.

Finally, the Court concluded that the district court erred by issuing the stay order because there had been no exhaustion of administrative remedies and the order was overbroad in staying the agency from taking any action against plaintiff. However, in vacating the post-judgment stay and affirming the declaratory judgment, the Court noted that defendant cannot require DACODS submission compliance until it has a data retention and destruction policy.

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Colorado Court of Appeals: Collection of Arrearages of Child Support and Maintenance from ERISA Account Proper Under Qualified Domestic Relations Order

April 2, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in In re Marriage of Drexler and Bruce, Jr. on Thursday, March 28, 2013.

Dissolution of Marriage—Retirement Funds—Employee Retirement Income Security Act—Qualified Domestic Relations Order—Noncompliance Order.

Husband appealed the trial court’s judgment holding that his retirement funds were not exempt from assignment under a qualified domestic relations order (QDRO) to satisfy domestic support arrearages, and sanctioning husband for noncompliance with the QRDO transfer. The judgment was affirmed.

The parties’ marriage ended in 2010 and husband was ordered to pay wife $5,000 per month in child support and $12,000 per month in maintenance for four years, followed by $8,000 per month for two years. Husband, a tax attorney and partner at a large law firm, did not comply, resulting in the accumulation of $101,486 in support arrearages and the suspension of his law license. Wife then moved for a QDRO to collect the arrearages from the funds held in husband’s Employee Retirement Income Security Act (ERISA) retirement plan at the law firm.

Husband objected, arguing that Colorado and federal law prohibited assigning his retirement funds to wife to pay the arrearages. The trial court disagreed and ordered the transfer. Husband did not comply, so the court ordered that the QDRO transfer be completed without his signature, that he reimburse wife for her attorney fees, and that the suspension of his previous contempt sentence for violating other court orders be lifted. He appealed.

ERISA generally prohibits assignment or alienation of retirement plan funds. However, both ERISA and the Internal Revenue Code (IRC) provide that the anti-alienation provisions do not apply to funds assigned to a former spouse under a QDRO. A QDRO is a “domestic relations order” that assigns to an alternate payee the right to receive all or a portion of the benefits payable to a participant. Such an order is defined as made pursuant to a state domestic relations law that concerns the provision of child or spousal support, or marital property rights of a former spouse of a plan participant. Here, the QDRO was entered to satisfy husband’s unpaid obligations relating to the dissolution, and therefore originated under Colorado domestic relations law, and not, as argued by husband, under Colorado collections law.

A QDRO also may be used under ERISA to enforce maintenance and child support obligations imposed under a divorce decree. Thus, the trial court did not violate the anti-alienation provisions of ERISA and the IRC by issuing the QDRO to enforce husband’s unpaid support obligations.

Husband argued that regardless of the QDRO exception to ERISA’s anti-alienation clause, his retirement benefits are exempt under Colorado law because CRS § 13-54-102(1)(s) exempts pension or retirement fund plans, including those subject to ERISA “from levy and sale under writ of attachment or writ of execution.” The Court of Appeals agreed with wife that the statute is preempted by ERISA because it imposes limitations not imposed by ERISA. It found that CRS § 13-54-101(1)(s) conflicts with ERISA and therefore is preempted by ERISA in accordance with conflict preemption to the extent it imposes additional limitations not imposed by ERISA on a spouse’s right to receive retirement plan funds under a QDRO.

Husband also contended that the trial court erred by entering the noncompliance order without a hearing after he did not cooperate with the QDRO transfer. The Court disagreed. Husband did not request such a hearing, so there was no error in the trial court not holding one.

Summary and full case available here.

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Colorado Court of Appeals: Colorado Governmental Immunity Act Does Not Provide Waiver for Unimproved Areas of State Park

April 2, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Burnett v. State of Colorado, Department of Natural Resources, Division of Parks and Outdoor Recreation on Thursday, March 28, 2013.

Negligence—Camping—Immunity—Waiver—Colorado Governmental Immunity Act—Public Facility—Injuries—Dangerous Conditions.

Sara Burnett appealed the trial court’s judgment dismissing her negligence claim against the Colorado Department of Natural Resources (CDNR). The judgment was affirmed.

Burnett was injured while camping in a designated campground in Cherry Creek State Park, which is operated by the CDNR, when she was struck by a falling tree branch while sleeping in her tent. Burnett contended that the trial court erred in determining that the CDNR did not waive immunity for her injuries under the Colorado Governmental Immunity Act (CGIA). Although the campsite and campground were public facilities under the CGIA, the tree itself was not a public facility and the state retained immunity for injuries resulting from branches falling from trees in unimproved parts of a state park. Because there is no waiver of immunity under the CGIA for dangerous conditions in an unimproved area within a state park, the trial court did not err in dismissing Burnett’s negligence claim.

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Colorado Court of Appeals: Probation is a Privilege, Not a Right, and May Be Revoked for Violation of Any of its Terms

April 2, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Fair on  Thursday, March 28, 2013.

Probation—Revocation—Sex Offender—Request for Stay.

Defendant appealed the district court’s orders revoking his probation and denying his motion to stay the probation revocation proceedings and the sentence imposed on revocation. The orders were affirmed.

Defendant pleaded guilty to sexual assault, a class 4 felony. The trial court agreed with the recommendations contained in the offense-specific evaluation and presentence investigation report,and sentenced defendant to sex offender intensive supervision probation (SOISP) for a term of ten years to life. As part of the sentence, the court ordered defendant to “complete sex offender specific treatment.” Subsequently, defendant’s probation officer filed a motion to revoke defendant’s probation based on defendant’s termination from offense-specific treatment for refusing to admit to committing the offense. The court thereafter revoked defendant’s probation.

Defendant argued that the district court abused its discretion in revoking his probation and sentencing him to a term in the Department of Corrections (DOC). Probation is a privilege, not a right. If a probationer violates any condition of probation, the order of probation may be revoked. Because defendant violated the terms of his probation to complete sex offender specific treatment, the court did not abuse its discretion in revoking his probation and sentencing him to the DOC.

Defendant further contended that the district court’s refusal to continue the revocation proceedings denied him the opportunity to properly litigate his motion to vacate his guilty plea. Defendant cited no legal authority to support this argument, nor did he demonstrate how he would be prevented from litigating his post-conviction motion after this current appeal is discharged. Under these circumstances, the district court did not abuse its discretion in denying his request.

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Colorado Court of Appeals: Medical Marijuana Brought into Correctional Facility Considered Contraband and Properly Seized

April 2, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Iversen on Thursday, March 28, 2013.

Detention Facility—Medical Marijuana—Mens Rea—Prosecutorial Misconduct.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of attempting to introduce marijuana concentrate into a detention facility. The judgment was affirmed.

While detained in a community corrections facility, defendant fell off his bed (top bunk), breaking his hip and injuring his back. To deal with his pain, defendant visited a doctor, who gave him a certificate for medical marijuana. On his return to the community corrections facility, facility officials seized the jar of marijuana concentrate defendant had purchased with the doctor’s certificate.

Defendant contended that, in excluding evidence of his receipt of a doctor’s medical marijuana certificate, the trial court impermissibly infringed on his constitutional right to present a defense. CRS § 18-8-203 requires only that a defendant know that he or she is introducing or attempting to introduce contraband into the detention facility; he or she need not know that the conduct is unlawful. Therefore, the trial court did not err in excluding the evidence concerning defendant’s receipt of a medical marijuana certificate, because it was irrelevant to the crime charged.

Defendant also contended that the prosecutor violated his rights to due process and a fair trial by misstating the law, denigrating the defense, and misleading the jury. The prosecutor correctly stated the law and appropriately responded to defense counsel’s argument. Although the prosecution misled the jury during closing argument by suggesting that defendant’s doctor’s appointment was not legitimate, it was not plain error requiring reversal.

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Colorado Court of Appeals: Hotel Owes Intoxicated Guest Duty of Care; Summary Judgment Reversed

April 2, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Groh v. Westin Operators, LLC on Thursday, March 28, 2013.

Negligence—Hotel Contract—Duty of Care—Reasonableness—Breach—Proximate Cause.

Plaintiff Jillian Groh appealed the summary judgment entered in favor of defendant Westin Operator, LLC (Westin). The judgment was reversed in part and the case was remanded for further proceedings.

The Westin asked Groh and her guests to leave the hotel after Groh and her friends, who were intoxicated, became loud in the hotel. After Westin employees escorted Groh and her friends out of the front entrance to the hotel, one of Groh’s friends, who was also intoxicated, attempted to drive them home and rear-ended a vehicle that was traveling well below the speed limit. Groh sustained severe and permanent injuries.

On appeal, Groh argued that the Westin did not act reasonably in evicting Groh and her friends from the hotel, and that the trial court abused its discretion in granting summary judgment to Westin on her negligence claim. A hotel must evict a guest in a reasonable manner, which precludes ejecting a guest into foreseeably dangerous circumstances resulting from either the guest’s condition or the environment.

Here, a jury could find that the Westin set in motion the chain of events that led to Groh’s injury by entering her room without permission; deciding to evict her notwithstanding the absence of any complaints from other guests; and then—despite knowing that she was intoxicated and was accompanied by others who were as well—escorting her from the premises rather than allowing her to wait for a taxi in the lobby, a public area. Therefore, although the Westin properly terminated its contract with Groh and then could evict her, the disputed facts and favorable inferences in the record preclude finding, as a matter of law, that it did so in a reasonable manner. Because a reasonable jury could find a breach of this duty on the present record, the trial court erred in granting summary judgment to Westin on Groh’s negligence claim.

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Colorado Court of Appeals: Costs of Hospital Care Incurred After Arrest but Before Booking Improperly Charged to Defendant

April 2, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Sinovcic on Thursday, March 28, 2013.

Prosecution Costs—Medical Treatment—Costs of Care.

Defendant appealed the district court’s order assessing prosecution costs against him for hospital care he received after arrest but before booking. That part of the order was reversed and the case was remanded.

Defendant resisted arrest, and officers used a taser gun to subdue and handcuff him. Following his arrest, the officers transported defendant to a hospital for treatment. After defendant was medically cleared, the officers transported him to the Summit County Jail, where he was booked.

On appeal, defendant contended that the district court erred by assessing the hospital costs as costs of prosecution under CRS § 18-1.3-701(2)(j). It was undisputed that the medical treatment was provided before defendant was formally charged and before the criminal proceeding began. Because the costs of defendant’s medical care were not specifically listed in the statute, and were not litigation-related costs incurred after the filing of formal legal charges against a defendant, the court erred in awarding such costs. Furthermore, because defendant did not receive the treatment during his custody in a jail or correctional facility, the district court properly held that the medical costs do not constitute “costs of care” under CRS § 18-1.3-701(5)(a). The district court’s order was vacated as to the hospital costs, and the case was remanded to the district court to reduce the total assessed fines and costs by $2,717.

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Colorado Court of Appeals: Consecutive Sentencing Improper for Counts that Make Up the Same Act

April 1, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Torrez on Thursday, March 28, 2013.

Sexual Assault on a Child—Sentence Enhancers—Illegal Sentence—Concurrent Sentence—Consecutive Sentence—Sexually Violent Predator.

Defendant pleaded guilty to fourteen sex offenses. Among these were five pairs of sex offenses in which, he alleged on appeal, the two counts in each pair were based on identical evidence. The trial court sentenced him to consecutive sentences for the two counts in each of the pairs. Defendant appealed these consecutive sentences. The judgment was affirmed, the sentence was affirmed in part and reversed in part, and the case was remanded.

Defendant argued that counts 3, 7, and 15 of the information charged only sentence enhancers, not substantive crimes. Here, counts 3, 7, and 15 charged both substantive crimes—sexual assault on a child (counts 3 and 15) and sexual assault on a child by one in a position of trust (count 7)—as well as sentence enhancers. The Court of Appeals concluded that these counts identified the elements of the crimes charged and closely tracked the statutory language. Counts 3 and 15 are substantially the same as the statutory language of the crime of sexual assault on a child found in CRS §18-3-405. Count 7, which charged defendant with the crime of sexual assault on a child by one in a position of trust, closely tracked the language of CRS § 18-3-405.3. This substantial similarity means that defendant was adequately notified of the charges he faced so that he could prepare his defense and prevent further prosecution on the same charges if he were to be convicted or acquitted. The additional presence of a sentence enhancer in these counts does not undercut this conclusion.

Defendant also argued that the trial court imposed an illegal sentence when it ordered that he serve consecutive prison terms for counts 2 and 3, 9 and 10, 11 and 12, 14 and 15, and 19 and 20. On its face, the information provides support for the conclusion that the two counts in each pair resulted from the same act, so the evidence of the act is identical. Subsection 408(3) controls this case, and it requires that defendant receive concurrent sentences for the convictions of the paired counts because they relied on identical evidence. Further, subsections 408(3) and 1004(5)(a) do not conflict and can be construed harmoniously. Thus, subsection 1004(5)(a) does not create an exception to the general rule found in subsection 408(3) that a court must impose concurrent sentences for counts based on identical evidence. Therefore, the consecutive sentences for the two counts in each pair are illegal, and, to remedy that problem, concurrent sentences must be imposed for the two counts in each pair. As a result, the aggregate indeterminate sentence in this case was reduced from 300 years to life to 192 years to life.

Defendant further argued that the trial court abused its discretion when it imposed a maximum sentence. The trial court expressly found that the heinous nature of defendant’s crimes, including defendant’s repeated physical and sexual abuse of twins and the fact that he impregnated the girl four times beginning at age 12, justified the maximum possible sentence. Furthermore, there was ample evidence to support the trial court’s finding that defendant was highly likely to reoffend. These findings supported a conclusion that defendant is a sexually violent predator.

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Colorado Court of Appeals: Restitution for Lost Wages Justified but Reversed for New Findings on Value of Damaged Ring

April 1, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Henson on Thursday, March 28, 2013.

Restitution—Fair Market Value—Lost Wages.

Defendant Cassandra Henson appealed the district court’s order imposing restitution in the amount of $8628.31. The order was affirmed in part and reversed in part.

Henson stole the victim’s purse, which contained, among other personal property, a 1.5 carat European cut diamond ring that had belonged to the victim’s grandmother. Ultimately, the victim recovered the ring, but it was returned to her with the diamond in an unfinished state and approximately .2 carats smaller than it had been when it was stolen. The court ordered Henson to pay a total of $8,628.31 in restitution, including $2,925 in lost wages and $4,425.45 for the diamond ring. Henson appealed the restitution order.

Henson argued that the district court abused its discretion in awarding restitution for the victim’s lost wages based on the days that she investigated the theft of her purse, because there was no evidence that the victim had actually lost wages on those days. The evidence sufficiently supported the district court’s finding that work was available to the victim, and the victim was unable to work for six-and-one-half days due to her investigation of and the additional activities necessitated by Henson’s theft. The Court of Appeals concluded that the district court did not abuse its discretion in awarding restitution in the amount of $2,925 for the victim’s lost wages.

Henson next contended that the district court erred in awarding restitution in the amount of $4,425.45 for the diamond ring. The district court properly sought to determine the amount of restitution to be awarded for the ring by (1) adding the replacement value of the diamond and the cost to repair the mount and mount the diamond, and (2) subtracting from that sum the value of the returned ring. Here, there is ample evidence in the record to support the district court’s findings that the cost of the replacement diamond was $4,750.45 and the cost to fix the ring mount and to mount the new diamond was $175. The evidence does not support the district court’s finding, however, that the value of the returned ring, which the victim decided to keep, was $500. Therefore, the district court’s order awarding restitution for the ring was reversed, and the case was remanded with instructions that the court reconsider the amount of such restitution.

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Colorado Court of Appeals: Announcement Sheet, 3/28/13

March 28, 2013 by Leave a Comment

On Thursday, March 28, 2013, the Colorado Court of Appeals issued 13 published opinions and 31 unpublished opinions.

People v. Henson

People v. Torrez

People v. Sinovcic

Groh v. Westin Operator, LLC

People v. Iversen

People v. Fair

Burnett v. State of Colorado, Department of Natural Resources, Division of Parks and Recreation

In re Marriage of Drexler and Bruce

Adolescent and Family Institute of Colorado v. Colorado Department of Human Services, Division of Behavioral Health

City of Golden v. Aramark Educational Services, LLC

Bachelor Gulch Operating Company, LLC v. Board of County Commissioners of Eagle County

Jordan v. Safeco Insurance Company of America, Inc.

United Airlines v. Industrial Claim Appeals Office

The summaries for these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

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Colorado Court of Appeals: Announcement Sheet, 3/21/13

March 22, 2013 by Leave a Comment

The Colorado Court of Appeals issued no published opinions and 36 unpublished opinions on Thursday, March 21, 2013.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

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Colorado Court of Appeals: Mechanics’ Lien Had Priority Over Bank Lien But Lien Cannot Be Filed in Excess of Contract Price

March 21, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Byerly v. Bank of Colorado on Thursday, March 14, 2013.

Excessive Mechanic’s Lien—CRS § 38-22-101(3).

Defendants Bank of Colorado and Delta Properties II, LLC (collectively, Bank) appealed the trial court’s judgment in favor of Daniel Byerly (Contractor). The judgment was reversed and the case was remanded with directions.

In 2006, Widwing Development, LLC (Developer) hired Contractor to help develop a residential subdivision in Timnath. It was a four-phase project with an extensive contract, including a compensation scheme that involved both cash payments and “Lot Compensation.” By late 2009, Developer had sold only half of the thirty-two villa home lots (valued at $110,000 each) and four of the seventy-six single family home lots (valued between $294,500 and $350,000). It had not paid Contractor’s monthly fee for several months. The Bank, which had issued construction loans to Developer, declared a default. Though Developer was in no position to do so, it sent Contractor a letter stating that as of January 5, 2010, Contractor had “earned” Lot Compensation for the first phase. The Bank later foreclosed and acquired the unsold land parcels. Neither Developer nor the Bank ever tendered Lot Compensation to Contractor.

In March 2010, shortly before the Bank’s foreclosure, Contractor recorded a mechanic’s lien on one of the parcels of land for $824,000 (later amended to $641,000) and filed a complaint in foreclosure, naming the Bank as an interested party. The amended lien included $84,000 of unpaid monthly fees and $557,000 in Lot Compensation. At trial, Contractor admitted that the conditions precedent to Developer’s duty to pay the Earned Cash Value portion of the Lot Compensation had not been met. Contractor also asserted a breach of contract claim against Developer and was awarded a default judgment based on eighteen months of unpaid monthly fees ($126,000), plus interest and costs.

Following a bench trial, the trial court made findings regarding the value of Contractor’s lien and concluded that the “full and accurate value” of Contractor’s services totaled $346,000, to which 12% interest was added, for a total of $417,095. The trial court also made findings regarding whether Contractor had knowingly filed an excessive lien under CRS § 38-22-128, and concluded he did not. The court found in favor of Contractor on his mechanic’s lien claim and ruled that Contractor’s lien was prior to the Bank’s lien.

On appeal, the Bank argued that the trial court erred in determining that Contractor’s lien was measured by the “value” of his services, rather than by the contract terms, and that it was unlawful to file a lien that exceeded the contract price. The trial court interpreted CRS § 38-22-101(3) to mean that when a contract is not recorded, a contractor may file a mechanic’s lien for the “value” of his or her services. The Court of Appeals found that interpretation to disregard the plain language of subsection 3 when read in the context of the entire subsection. Subsection 3 applies only to subcontractors and material providers, not to the direct contractor. Subcontractors are the only ones who would have occasion to do work that must be “deemed” to have been done for the owner, given that the direct contractor already has a contract with the owner. Thus, where a direct contractor performs services, the value of which is alleged to have exceeded the contract price, the contract price is the maximum amount for which a lien can be filed. Accordingly, it was error to find that subsection 3 allowed Contractor to file a lien in excess of the contract price.

The Bank also argued that it was error to determine that Contractor did not violate CRS § 38-22-128 by filing an excessive lien. The trial court found that Contractor could have reasonably anticipated receiving Lot Compensation after Developer informed him that he had “earned” it and, from Contractor’s perspective, it was not obvious that the conditions precedent for Lot Compensation could not occur and would never occur. The Court rejected these findings because there was no evidence in the record to support them. The judgment was reversed and the case was remanded for entry of judgment in favor of defendants.

Summary and full case available here.

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