August 16, 2017

Colorado Court of Appeals: Set-Off to Other Liable Parties Should be Applied to Jury Verdict before Contractual Limitation

The Colorado Court of Appeals issued its opinion in Taylor Morrison of Colorado, Inc. v. Terracon Consultants, Inc. on Thursday, May 18, 2017.

Contract—Limitation on Liability—Setoff—Jury Award—Statutory Costs—Prejudgment Interest—Post-Judgment Interest—Expert Testimony—Willful and Wanton—Settlement Statute—Costs.

Taylor Morrison of Colorado, Inc. (Taylor) was the developer of a residential subdivision. Taylor contracted with Terracon Consultants, Inc. (Terracon) to provide geotechnical engineering and construction materials testing services for the development of the subdivision. Taylor and Terracon agreed to cap Terracon’s total aggregate liability to Taylor at $550,000 (Limitation) for any and all damages or expenses arising out of its services or the contract. After homeowners notified Taylor about drywall cracks in their houses, Taylor investigated the complaints and then sued Terracon and other contractors for damages relating to those defects. After trial, the jury awarded Taylor $9,586,056 in damages, but also found that Terracon’s conduct was not willful and wanton. The court concluded that the Limitation includes costs and prejudgment interest and applied it to reduce the jury’s $9,586,056 damages award to $550,000. It also deducted the $592,500 settlement received from the other liable parties to arrive at zero dollars. The court found that neither party prevailed for purposes of awarding statutory interest and further concluded that neither Terracon’s deposit of $550,000 into the court registry nor its email to Taylor addressing a mutual dismissal constituted a statutory offer of settlement that would have allowed Terracon a costs and fees award.

On appeal, Taylor contended that the trial court erroneously deducted the setoff from the Limitation instead of deducting it from the jury damages verdict. The correct approach is to first apply the setoff against the jury verdict and then apply the contractual limitation against this reduced amount. Thus, Terracon’s liability according to the Limitation should have been a final judgment of $550,000 for Taylor.

Taylor next contended that the trial court erred when it concluded that the Limitation, by its terms, includes statutory costs and prejudgment interest. The pertinent contract language states that the Limitation applies to “any and all” expenses “including attorney and expert fees.” Thus, the Limitation’s language covers costs associated with interpreting and enforcing the contract.

Taylor further argued that the trial court erred in ruling that the Limitation does not include prejudgment interest within its cap on liability. The Limitation caps Terracon’s liability for “any and all injuries, damages, claims, losses, or expenses.” (Emphasis in original.) Because prejudgment interest is a form of damages, the Limitation also covers prejudgment interest. Taylor also asserted that post-judgment interest is not covered by the Limitation. The Court of Appeals agreed because post-judgment interest is not an element of compensatory damages.

Taylor next argued that the trial court’s exclusion of expert testimony concerning willful and wanton conduct was reversible error. Here, the court allowed the experts to testify about the factual conduct and opine on Terracon’s performance using characterizations within their expertise, but prevented testimony about legal concepts outside their expertise and whether a legal standard was met.

Terracon argued on cross-appeal that the trial court erred by not awarding it costs under Colorado’s settlement statute. Terracon’s deposit of $550,000 into the court registry pursuant to C.R.C.P. 67(a) was not a settlement offer because Taylor did not have the option to reject it. The statute requires both an offer and a rejection; thus the statute was not triggered, and Terracon is not entitled to costs. Further, Terracon’s email did not comply with C.R.S. § 13-17-202 because this alleged “settlement offer” contained nonmonetary conditions that extended the offer beyond the claims at issue. Therefore, there was no error in denying costs to Terracon.

The judgment was reversed as to the final award and the case was remanded with instructions. The judgment and orders were affirmed in all other respects.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Jury Foreman’s Affidavit Allowable Under CRE 606(b) Due to Mistake in Entering Verdict

The Colorado Court of Appeals issued its opinion in Malpica-Cue v. Fangmeier on Thursday, April 6, 2017.

Mistake on Special Verdict Form—CRE 606(b).

Malpica-Cue sued Fangmeier for damages resulting from a car accident. After trial, the jury filled out a Special Verdict Form B that included three different damages amounts. All six jurors signed the form, and the judge read the verdict and each separate amount of damages aloud in open court. The jury foreman confirmed the verdict. Counsel for both parties declined to poll the jury.

Fangmeier filed a post-trial motion averring that while the jurors were still in the courthouse, defense counsel spoke with some of them about the amount of damages they had awarded. They said they had intended to award $2,500 for noneconomic losses, $18,373.38 for economic losses, and $0 for physical impairment or disfigurement. The total damages intended, $20,873.38, had mistakenly been added together and inserted on the line for physical impairment and disfigurement, making the total damages $41,746.76. Defense counsel told the court clerk that all six jurors agreed they had made a mistake on the verdict form and wanted to fix it. The judge denied counsel’s request to reconvene the jury that day and told him to file a motion.

Fangmeier filed a motion asking the court to vacate the jury verdict awarding $41,746.76 and enter judgment awarding $20,873.38. The motion included an affidavit from the jury foreman saying the jury had made a mistake. The district court denied the motion, stating that CRE 606(b) precluded it from considering the foreman’s affidavit.

On appeal, Fangmeier argued that the foreman’s affidavit should not have been precluded because an exception to Rule 606(b) allows jury testimony regarding “whether there was a mistake in entering the verdict onto the verdict form.” Here, all the jurors agreed that there should have been no recovery for physical impairment or disfigurement and the foreman misread the jury form, so the exception applies. While the affidavit by itself does not require the verdict to be changed, Fangmeier is entitled to an evidentiary hearing on the issue. Thus, it was error to not reconvene the jurors on the day the trial ended and in later failing to reconvene the jurors to ascertain the true verdict in response to the post-trial motion.

The order was vacated and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Contract Exception to the Collateral Source Statute is Applicable in Post-Verdict Proceedings to Reduce Damages

The Colorado Court of Appeals issued its opinion in Pressey ex rel. Pressey v. Children’s Hospital Colorado on Thursday, March 9, 2017.

Medical Malpractice—Health Care Availability Act—Damages Cap—Medicaid—Collateral Source Statute—Contract Exception—Pre-majority Economic Damages—Minor—Statute of Limitations.

Naomi Pressey (Naomi), by and through her conservator Jennifer Pressey, sued Children’s Hospital Colorado (Hospital) for negligence. The case was tried to a jury, which found the Hospital negligent and awarded Naomi $17,839,784.60. The damages award included past medical expenses, past noneconomic losses, future medical expenses, future lost earnings, and future noneconomic losses. After trial, the court reduced the damages to $1 million based on the legislative directive in C.R.S. § 13-64-302(1)(b) of the Health Care Availability Act (HCAA). The court approved Naomi’s motion to exceed the damages cap for good cause and entered judgment in her favor for $14,341,538.60.

On appeal, the Hospital argued that the court erred in excluding evidence of Medicaid benefits and private insurance available to Naomi in the post-verdict proceeding to exceed the damages cap. Sound public policy supports both the cap and the contract exception to the collateral source statute. The Colorado Court of Appeals concluded that the contract exception to the collateral source statute is applicable in post-verdict proceedings to reduce damages in medical malpractice actions under the HCAA. Medicaid benefits are paid on behalf of the injured party and are thus collateral sources subject to the contract exception. Accordingly, the trial court correctly did not consider Medicaid payments and private insurance in determining whether to exceed the HCAA damages cap.

The Hospital also argued that the trial court erred in denying its motion for judgment notwithstanding the verdict because Naomi failed to establish that she, rather than her parents, was entitled to her pre-majority economic damages. Parents own the legal right to seek reimbursement for a minor’s pre-majority economic damages. Here, Naomi’s parents did not relinquish this right and failed to institute a claim within the applicable statute of limitations.

The Hospital further argued that irrespective of the evidence of Medicaid and private insurance benefits, Naomi did not establish good cause to exceed the damages cap. The trial court considered a multitude of factors in concluding there was good cause. Its decision was not manifestly arbitrary, unreasonable, or unfair, and was not a misapplication of the law.

Lastly, the Hospital argued that Naomi received a duplicate award for future medical care and lost future earnings. The court concluded there is record support for the trial court’s findings that the damage award does not overlap with the future lost earnings award.

That portion of the judgment awarding pre-majority economic damages to Naomi was reversed. The judgment was affirmed in all other respects. The case was remanded for recalculation of the total amounts owed by the Hospital.

Summary provided courtesy of The Colorado Lawyer.

HB 17-1124: Local Governments that Ban Fracking Liable to Mineral Interest Owners for Damages

On January 26, 2017, Rep. Perry Buck and Sen. Tim Neville introduced HB 17-1124, “Concerning a Requirement that a Local Government that Interferes with Oil and Gas Operations Compensate Persons Damaged by the Interference.”

The bill specifies that a local government that bans hydraulic fracturing of an oil and gas well is liable to the mineral interest owner for the value of the mineral interest and that a local government that enacts a moratorium on oil and gas activities shall compensate oil and gas operators, mineral lessees, and royalty owners for all costs, damages, and losses of fair market value associated with the moratorium.

The bill was introduced in the House and assigned to the State, Veterans, and Military Affairs Committee. It is scheduled for hearing in committee on February 22, 2017, at 1:30 p.m.

Colorado Court of Appeals: Death of Insurance Beneficiary Does Not Extinguish Action Where Judgment Entered

The Colorado Court of Appeals issued its opinion in Estate of Casper v. Guarantee Trust Life Insurance Co. on Thursday, November 17, 2016.

Cancer Insurance Policy—Jury Verdict—Punitive Damages—Noneconomic Damages—Judgment—C.R.S. § 14-20-101—Attorney Fees—Actual Damages—C.R.S. § 10-3-1116—Jury Instruction.

Casper bought a cancer insurance policy from defendant, Guarantee Trust Life Insurance Company (GTL). Casper was diagnosed with cancer seven months later, and GTL refused to pay his claims. Casper sued GTL for breach of contract, bad faith breach of an insurance contract, and statutory unreasonable denial of benefits. A jury awarded him punitive and other noneconomic damages. The trial court immediately entered an oral order making the verdict a judgment, but Casper died nine days later, before the court had reduced its oral order entering judgment to a written judgment as required by C.R.C.P. 58. Subsequently, Casper’s estate (Estate) was substituted as plaintiff. The court later entered a judgment for the estate nunc pro tunc to the date of the verdict. The court awarded attorney fees and costs as part of the Estate’s actual damages.

On appeal, GTL argued that as a matter of law, under C.R.S. § 13-20-11 (Colorado’s survival statute), the delay in entering the written judgment meant the Estate was entitled only to the $50,000 awarded as economic damages for the breach of contract claim. Under Colorado law, the death of a plaintiff in a personal injury action extinguishes his entitlement to recover noneconomic and punitive damages. Here, because the verdict resolved the merits of the case, and judgment would necessarily follow, the survival statute did not extinguish Casper’s right to damages.

GTL also asserted that attorney fees and costs awarded by the trial court under C.R.S. § 10-3-1116 do not constitute actual damages upon which the court may base its determination of punitive damages under C.R.S. § 13-21-102(1)(a). Under the plain meaning of C.R.S. § 10-3-1116, which is remedial in nature, reasonable attorney fees and court costs in this case are actual damages and do not constitute penalties or other types of damages.

GTL next asserted that the district court erred by not reducing by two-thirds the supplemental request for attorney fees. Even if apportionment was required, the district court did not abuse its discretion in awarding supplemental fees.

Finally, GTL argued that the trial court erred by instructing the jury on Regulation 4-2-3, which regulates advertising by the insurance industry. The trial court found that the instruction related to Casper’s theory that GTL’s marketing and sale of the insurance policy, through Platinum, was evidence of GTL’s bad faith. The standard of care related to the sale and marketing of the policy was relevant to Casper’s claims, and it is undisputed that the instruction was a correct statement of the law. Therefore, the court did not abuse its discretion in instructing the jury on this regulation.

The judgment was affirmed and the case was remanded to determine the Estate’s appellate fees and costs.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Trial Court Did Not Err in Considering Unredacted Invoices on Remand

The Colorado Court of Appeals issued its opinion in Thompson v. United Securities Alliance, Inc. on Thursday, September 8, 2016.

Judgment—Garnishment—Mandate—Prejudgment Interest—Post-judgment Interest.

Plaintiffs obtained a judgment against United Securities Alliance, Inc. (United), and then instituted garnishment proceedings against Catlin Insurance Company (UK) Ltd. (Catlin), United’s insurer. The district court deducted from the policy limit the amount of attorney fees incurred by Catlin in defending the underlying arbitrations against United, and entered judgment for plaintiffs for the remainder of the policy. The court denied plaintiffs’ requests for pre- and post-judgment interest.

On appeal, plaintiffs contended that the district court acted beyond the scope of the court of appeals’ mandate because, by considering the unredacted attorney fees invoices submitted after the mandate, the district court expressly disregarded the mandate’s instruction to review “the existing record.” Given the unusual procedural posture of this case and the largely “indiscernible” unredacted invoices, the language to review “the existing record” was permissive rather than restrictive, and the remand order meant that the district court could rely exclusively on the existing record to calculate reasonable fees, not that it had to. Accordingly, the district court did not err in considering the unredacted invoices.

Plaintiffs next contended that the district court erred in declining to award prejudgment interest pursuant to C.R.S. § 5-12-102(1). This statute, however, governs contract and property damage cases. Because garnishment actions do not result in damages to the garnishor, prejudgment interest is not appropriate.

Plaintiffs also argued that an award of post-judgment interest was mandatory under C.R.S. § 5-12-106(1)(b) and the district court erred by denying their request. Because the court of appeals’ mandate did not direct the district court to award post-judgment interest and plaintiffs did not request that the court amend its mandate, the district court correctly held that it lacked jurisdiction to make such an award.

The judgment was affirmed.

Summary available courtesy of The Colorado Lawyer.

Tenth Circuit: No Error where District Court Granted Summary Judgment Prior to Rule 26(f) Meeting

The Tenth Circuit Court of Appeals issued its opinion in Trans-Western Petroleum, Inc. v. United States Gypsum Co. on Tuesday, July 26, 2016.

United States Gypsum (USG) owns the oil and gas underlying 1,700 acres of land in Utah. USG entered into an oil and gas lease in 1995 that was subsequently assigned to Wolverine Oil & Gas Corp. and extended through August 17, 2004. In 2004, Douglas Isern, the owner and sole officer of Trans-Western, called USG and expressed interest in leasing the oil and gas rights when the Wolverine lease expired. Trans-Western sent USG a proposed five-year lease beginning August 17, 2014, and a check for $32,680. USG executed the lease on September 15, 2004 but did not cash the check.

On October 1, 2004, Wolverine protested the recording of the lease, claiming its lease remained valid. USG then rescinded the Trans-Western lease both orally and in writing. Trans-Western brought suit against Wolverine in 2006, seeking a declaratory judgment that Wolverine’s lease had expired on August 17, 2004. The district court determined that the lease had expired and granted the parties’ joint motion for a Rule 54(b) certification and stay. The Tenth Circuit affirmed on appeal. Thereafter, USG and Trans-Western executed a Ratification and Lease Extension for a primary five-year term beginning December 11, 2009.

In 2010, Trans-Western filed a second amended complaint, seeking a declaratory judgment that its lease with USG was valid and damages for breach of contract and breach of the covenant of quiet enjoyment. Trans-Western moved for partial summary judgment, which USG opposed. The district court granted partial summary judgment but denied attorney fees due to disputed material facts on damages. At a bench trial on damages, Trans-Western contended it was entitled to expectation damages because USG deprived it of the opportunity to assign. The district court disagreed, finding Trans-Western was entitled to only nominal damages based on the contract’s value on the date of the breach. The parties appealed.

The Tenth Circuit certified a question to the Utah Supreme Court regarding how expectation damages should be measured for the breach of an oil and gas lease. The Utah Supreme Court responded that consequential damages are those that are reasonably foreseeable by the parties at the time the contract was made. The court also held that the trial court may exercise its discretion to allow for the use of post-breach evidence to help calculate expectation damages.

The Tenth Circuit first evaluated USG’s cross-appeal, in which it argued that the district court should have granted its Rule 56(d) motion and deferred ruling on its partial summary judgment motion so that USG could conduct discovery. The district court determined that USG had a correct understanding of certain facts and constructive notice of others, thereby allowing the case to be resolved as a matter of law. In the district court, USG argued that extra time would allow it to discover evidence that Trans-Western was aware that USG was under a mistaken impression. On appeal, USG argued that discovery would have shown there was no meeting of the minds due to a lack of consideration from Trans-Western. The Tenth Circuit found these arguments different, and ruled that USG waived its argument. The Tenth Circuit further noted, though, that even if it were to consider the argument, USG did not meet the requirements for Rule 56(d) deferral because its allegations were vague and non-specific.

USG also argued the district court violated a scheduling order by granting summary judgment prior to the Rule 26(f) meeting. The Tenth Circuit found no abuse of discretion, noting that nothing suggested that USG sought to enforce the scheduling order and the order did not preclude motions practice. USG next argued the district court erred by granting Trans-Western’s motion for partial summary judgment because the lease failed for want of mutuality and consideration. The Tenth Circuit again disagreed. Trans-Western issued a bank draft in 2004, and USG had the ability to negotiate the draft from the moment of its delivery. Because the parties exchanged promises with adequate consideration, the district court did not err in granting partial summary judgment.

The Tenth Circuit affirmed the district court but remanded for calculation of damages consistent with the Utah Supreme Court’s opinion.

Colorado Court of Appeals: Res Gestae Evidence Appropriate when it Shows Defendant’s Prior Conduct with Victim

The Colorado Court of Appeals issued its opinion in People v. Galang on Thursday, May 5, 2016.

Victim moved to California from the Philippines in 2004, and met Defendant at work that same year. Defendant and Victim maintained a “very close” relationship, and when Victim moved to Colorado and married, she continued to see Defendant when she visited California.

In 2011, Victim began receiving emails from a Yahoo email account under the name “Holycrap Imbatman” (Batman). Batman requested that Victim send photos and videos of herself doing sexual acts, and threatened to tell immigration officials she had “married for papers” or tell her then-boyfriend she was having sex with other men if she did not send the photos and videos.

Victim reported the emails to the Douglas County Sheriff’s Office, and that office continued corresponding with Batman as if it were the victim. The sheriff’s office set up a rendezvous with Batman in California, and defendant showed up. Defendant was arrested and charged with computer crime, extortion, criminal impersonation, stalking, and harassment.

The trial court dismissed the computer crime charge and Defendant was convicted on the other four charges. He appealed, and the People cross-appealed the trial court’s dismissal of the computer crime charge.

The court of appeals disagreed with defendant’s contention that the trial court erred in admitting evidence of his prior requests for naked pictures of Victim. On plain error review, the court of appeals found the evidence was admissible res gestae evidence. The evidence tended to show why defendant would have wanted naked pictures of the victim, because he had asked for such pictures before.

As to the People’s cross-appeal, the court of appeals agreed that the trial court should not have dismissed the computer crime charge, and disapproved of the dismissal. The trial court asserted that the charge was unnecessary because there was not an assigned penalty, but the court of appeals disapproved of this reasoning. The court of appeals noted that the elements of computer crime were met, and although Victim suffered no damages, the court of appeals read the statute as not requiring a showing of damages. The court of appeals disapproved of the trial court’s judgment of acquittal on the computer crime charge.

The judgment of conviction was affirmed and the computer crime acquittal was disapproved.

Colorado Court of Appeals: Foreseeability of Arson Fire During Burglary Relevant to Determination of Damages

The Colorado Court of Appeals issued its opinion in Core-Mark Midcontinent Inc. v. Sonitrol Corp. on Thursday, February 11, 2016.

Core-Mark distributed merchandise to convenience stores, and it hired Sonitrol to install and monitor a security system for its warehouse. In 2002, burglars broke into Core-Mark’s warehouse and looted it for several hours, eventually setting a fire that destroyed the building and its contents. Core-Mark sued Sonitrol, asserting tort and breach of contract claims. The district court dismissed the tort claims and granted summary judgment to Sonitrol on the breach of contract claims based on a limitation of liability. Core-Mark appealed, and the court of appeals affirmed the dismissal of the tort claims but reversed summary judgment on the breach of contract claims.

On remand, a jury found that Sonitrol had breached its contract, and awarded $7,348,732 to Core-Mark and $10,965,777 to its insurers. Sonitrol appealed, and the court of appeals in Sonitrol II affirmed the award as to Sonitrol’s liability but reversed the damages award. The Sonitrol II division held that the district court erred in excluding testimony from Sonitrol’s experts on the foreseeability of the extent of Core-Mark’s losses. The division remanded for a new trial on damages, and the jury in that trial awarded $2,750,000 to Core-Mark.

Core-Mark appealed, arguing (1) the district court erred in allowing Sonitrol to present evidence that the arson was not foreseeable, (2) the district court erred in refusing Core-Mark’s tendered jury instruction on the phrase “natural and probable consequence” as used in the damages instruction, and (3) the district court abused its discretion in excluding evidence of how Sonitrol breached its contract.

Addressing the first claim, the court of appeals found that the district court did not err in allowing Sonitrol to present evidence about the foreseeability of arson. The district court specifically allowed testimony on the rarity of arson in burglary cases, the excessive amount of flammable materials in Core-Mark’s warehouse, and the inadequacy of Core-Mark’s sprinkler system. Core-Mark argued that the testimony exceeded the scope of remand, because the Sonitrol II division had made a statement that it assumed the fire was foreseeable. The district court rejected Core-Mark’s argument that the statement was the law of the case, noting it was not necessary to the holding. The court of appeals affirmed, finding that arson was not a type of damages but rather a cause of damages, and the foreseeability of the loss from the fire was relevant to the general magnitude of damages.

Turning to Core-Mark’s contention regarding the jury instruction, the court of appeals found no error in the district court’s rejection of Core-Mark’s proposed instruction. Core-Mark did not contend that the foreseeability instruction incorrectly stated the law, but rather that it should have been allowed to further define a term in the instruction. The court of appeals found that Core-Mark was incorrect that “probable” does not mean “likely” in the context of the jury instructions, and found no error in the district court’s rejection of Core-Mark’s tendered instruction.

Finally, Core-Mark argued the district court abused its discretion by not allowing evidence of the nature of Sonitrol’s breach of contract as set forth in the first trial. The court of appeals analyzed the proffered evidence and found it was not relevant to the determination of damages. The district court read a statement to the jury about the events leading to the fire, but excluded evidence of the specifics of Sonitrol’s conduct or alarm system. The court of appeals found no abuse of discretion.

The court of appeals affirmed the district court.

Colorado Court of Appeals: Contractual Option Between Actual and Liquidated Damages Not Inherently Void

The Colorado Court of Appeals issued its opinion in Ravenstar LLC v. One Ski Hill Place LLC on Thursday, January 28, 2016.

Ravenstar and the other plaintiffs are Colorado companies who entered into separate contracts with One Ski Hill Place (OSHP) to purchase not yet built condominium units. Plaintiffs paid earnest money of 15% of the purchase price but were unable to obtain financing and failed to close on the units by the deadline. The contracts between OSHP and all plaintiffs contained an identical provision allowing OSHP to choose between actual or liquidated damages in the event of default. OSHP chose liquidated damages. Plaintiffs brought suit against OSHP, raising several claims, including breach of contract. Many claims were dismissed prior to the litigation at issue. On cross-motions for summary judgment, the district court ruled against plaintiffs on all their remaining claims and imposed attorney fees on plaintiffs.

Plaintiffs appealed, arguing the contract clause that allowed OSHP to choose between actual and liquidated damages was unenforceable because there was no mutual intent to liquidate damages as required under Colorado law. The Colorado Court of Appeals declined to adopt reasoning from other jurisdictions that the mere presence of an option between actual and liquidated damages renders a contract unenforceable. The court noted that the option to choose liquidated damages did not operate as a penalty in every case, and since the parties stipulated that the amount of liquidated damages was reasonable, they could not show that they were being penalized by the imposition of liquidated damages.

The court of appeals affirmed the district court, also affirming the attorney fee award.

Tenth Circuit: Liquidated Damages Provisions Allowable in Order to Protect Parties from Uncertainty, Difficulty, and Expense of Litigation

The Tenth Circuit Court of Appeals issued its opinion in Wahlcometroflex, Inc. v. Westar Energy, Inc. on Tuesday, December 2, 2014.

Westar is an electric company that owns several sources of electricity, including the Jeffrey Energy Center (JEC). Westar contracted with Wahlcometroflex (Wahlco) to manufacture and deliver equipment to JEC’s three units for a total purchase price of $6,229,185.50. In the contract, dates for the absolute latest delivery of the equipment were set forth, and a liquidated damages provision was included in the event Wahlco did not timely deliver the equipment assessing damages of 1.5 percent of the total contract price per week the equipment was late, not to exceed 10 percent of the total contract price. Wahlco was late delivering the equipment for all three units – for Unit 1, the equipment was 2 1/2 months late; for Unit 2, the equipment was 2 months late; and for Unit 3, the equipment was over 4 months late. Westar withheld $367,511.28 of the contract price from its payment to Wahlco pursuant to the liquidated damages provision.

Wahlco filed suit in Kansas federal district court to recover the withheld amount. Westar counterclaimed, seeking a declaratory judgment that it was entitled to retain or recover $622,918.55 pursuant to the liquidated damages provision and bringing a breach of contract claim for the same amount. After discovery, the parties filed cross-motions for summary judgment addressing whether Westar was required to prove actual delay in order to recover under the contract’s liquidated damages provision. The district court granted Westar’s motion for partial summary judgment, holding Westar did not need to show actual delay to recover liquidated damages under to the unambiguous language of the contract. The court entered final judgment in favor of Westar, and Wahlco appealed.

Wahlco contended on appeal that its contract with Westar required a showing of actual delay in order to trigger the liquidated damages provision. However, the plain language of the contract referenced only Wahlco’s delay in providing the material, not Westar’s delay in completion of the upgrades to the JEC. The Tenth Circuit noted that, despite Wahlco’s best efforts to create ambiguity in the contract, there was none, and the courts will not rewrite the terms of an unambiguous contract.

Wahlco next argued that, under Kansas law, a plaintiff must establish causation as an element of any breach of contract claim. Wahlco concedes that liquidated damages are allowable under Kansas law regardless of actual damages, but contends there still must be a causal connection between the breach of contract and the anticipated event for which the liquidated damages were intended to compensate. The Tenth Circuit construed Wahlco’s argument as another attempt to rewrite its contract with Westar, and found that the contract language amounted to a concession that Wahlco’s breach would cause damages to Westar in the form of delay to the project. The Tenth Circuit also noted that adopting Wahlco’s position would undermine the effectiveness of liquidated damages provisions, which are designed to allow parties to protect themselves against the difficulty, uncertainty, and expense involved with litigating damages in court.

Finally, Wahlco argued that allowing Westar to collect liquidated damages without proving actual damage would amount to an impermissible penalty. The Tenth Circuit disagreed. Under Kansas law, liquidated damages provisions are acceptable to compensate for actual or anticipated harm. Because the contract’s provisions expressly stated the anticipated harm that would come from Wahlco’s late delivery, and the contract specifically stated the liquidated damages were not a penalty, the Tenth Circuit found Wahlco was bound by the terms of the contract. Wahlco argued that the terms of the contract were unreasonable in light of the actual damages suffered by Westar, but made no showing that the contract’s terms were unreasonable at the time the parties entered into it.

The district court’s summary judgment was affirmed.

Tenth Circuit: Damages Award on Default Judgment Upheld in Complex Litigation

The Tenth Circuit Court of Appeals issued its opinion in Niemi v. Lasshofer on Tuesday, November 4, 2014.

John Niemi, along with co-plaintiffs Robert Naegele, III, and Jesper Parnevik, was working on a large-scale development project in Breckenridge, Colorado, known as the Fairmont Breckenridge. Azco, LLC and Azco II, LLC, as well as Mesatex, LLC – companies run by Niemi, collectively known as the Azco entities – were the purchasers of the properties for the Fairmont. Based on the success of Phase I of the project, Niemi and the co-investors sought $200-$220 million in financing for Phase II. Defendants Lasshofer and Michael Burgess represented that they could provide financing for Phase II, but required the investors to agree to stop looking for other financing and to provide a $180,000 loan commitment fee. The investors agreed and wired the money. Following an extensive due diligence process, plaintiffs provided an additional $2 million “upfront collateral deposit” to Lasshofer and Burgess. The loan proceeds never materialized, despite repeated assurances from Burgess and Lasshofer that the funds were coming, and eventually Burgess was indicted on criminal fraud charges and sentenced to 180 months’ imprisonment. As part of his plea bargain, Burgess indicated that the funds from the investors were deposited in an account belonging to Innovatis Asset Management, SA (IAM), a company associated with Lasshofer. Burgess implicated Lasshofer as his co-defendant and stated that IAM was continuing to defraud investors. Even after Burgess’s arrest, Lasshofer continued to assure the investors that their funds were coming, but no money ever materialized.

The three investors met to discuss how they would recover from the fraud, and during the conversation Niemi, acting on behalf of the Azco entities, expressly assigned all causes of action and claims to Parnevik, Naegle, and himself. The three filed a Verified Complaint in April 2012, initiating the lawsuit and identifying the various parties and their relationships. The amended complaint filed in July 2012 alleged 17 claims for relief, including a claim under the Colorado Organized Crime Control Act (COCCA) against the Lasshofer defendants and a common law fraud claim against all defendants. In March 2012, the district court issued a TRO to guard against dissipation of the Lasshofer defendants’ assets, and in June 2012 the court issued a preliminary injunction, effectively freezing the worldwide assets of the Lasshofer defendants. After a hearing in March 2013, the court found the Lasshofer defendants to be in contempt of its June 2012 preliminary injunction. In a joint filing between the investors and the Lasshofer defendants, the Lasshofer defendants declared they would no longer devote resources to the case at the district court level, would not participate in discovery, and would not answer Plaintiffs’ amended complaint. The district court eventually entered default judgment against the Lasshofer defendants and awarded over $61 million to the plaintiffs, trebled to $185 million. Lasshofer appealed.

Prior to reaching the merits, the Tenth Circuit had to resolve issues related to its authority to decide the appeal. Plaintiffs had requested the Tenth Circuit to employ the “fugitive disentitlement doctrine” to dismiss the Lasshofer defendants’ appeal. The Tenth Circuit could find no circumstances that would warrant application of the doctrine. Plaintiffs also contend that the Lasshofer defendants must post a bond on the default judgment before appealing, but the Tenth Circuit disagreed, finding that would be sharply at odds with the rules of procedure. Since all issues were ripe due to the district court’s dismissal of claims with prejudice, the Tenth Circuit evaluated the merits of the appeal.

First, the Lasshofer defendants raised several issues related to the district court’s authority to hear the case. They contended (1) Plaintiffs lacked standing to bring their claims, and the district court thus lacked subject matter jurisdiction, (2) the court lacked personal jurisdiction over the Lasshofer defendants, and (3) venue was not proper in the District of Colorado. The Tenth Circuit first addressed the standing claim. Defendants argued that the plaintiffs were not proper parties, because the loan agreement listed Azco as the borrower. However, after reviewing the record, the Tenth Circuit was satisfied that plaintiffs possessed proper standing to bring their claims. The defendants argued that the Loan Agreement barred transfer of the right to sue, but the district court held, and the Tenth Circuit agreed, that the Loan Agreement was a tool of defendants’ broader fraudulent enterprise, and therefore its terms were void and unenforceable.

The Tenth Circuit likewise disposed of defendants’ arguments that the court lacked personal jurisdiction over them. Plaintiffs had many connections to Colorado, and although the Loan Agreement specified jurisdiction was proper in the District of New York, the defendants contended they would have disputed New York jurisdiction also. Therefore, the U.S. District Court for the District of Colorado was the proper venue for the claims. The court also concluded that sufficient minimum contacts existed to confer personal jurisdiction over Lasshofer.

Finally, defendants argued several errors in the determination of damages. The Tenth Circuit reviewed the record and found no error in the court’s calculation. After entry of default judgment, the court requested that plaintiffs present evidence regarding their damages. Plaintiffs presented two different damages calculations, based on two different methods of arriving at the damages amount, that were nearly identical in the total amount. The district court chose the actual damages and trebled it. There was no error in its decision.

The Tenth Circuit denied plaintiffs’ motion to dismiss based on the fugitive entitlement doctrine, denied defendants’ motion to file a surreply based on that motion, denied plaintiffs’ motion to require defendants to post a bond, and denied the requests to award fees and costs. The district court’s award of damages was affirmed, except to the extent it applied to one defendant that did not exist at the time of the controversy. The Tenth Circuit ordered the district court to vacate its order of contempt. The case was remanded for further proceedings.