2022 COA 50
Colo. Ct. App.2022Background
- The Frederiksens contracted with Gravina on Nov. 29, 2017 to replace cedar siding with steel for $42,116; they paid a $10,000 deposit. Gravina estimated start in 10–14 weeks and completion in about four weeks.
- Subcontractors began in late March 2018; multiple crews were used, work was slow and partially unsatisfactory, and by Aug. 7, 2018 the job remained substantially incomplete.
- The Frederiksens terminated the contract and denied further access; Gravina sued for payment and asserted related claims; Frederiksens counterclaimed and third‑partied certain Gravina employees.
- The trial court found Gravina materially breached, allowed contract termination, rejected the Frederiksens’ negligent supervision claim, and nevertheless awarded Gravina $19,000 in restitution on an unjust enrichment/quantum meruit theory (net of the $10,000 deposit, Gravina was owed $9,000).
- The Frederiksens appealed (challenging unjust enrichment, contract damages, negligent supervision, exclusion of roof‑damages expert evidence, and denial of fees); Gravina cross‑appealed the breach finding.
- The Court of Appeals affirmed breach, upheld several rulings, but reversed and remanded for clearer findings about the unjust enrichment/restitution calculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gravina materially breached, allowing termination | Gravina: performance was substantially completed; not a material breach | Frederiksens: delays and poor work were material and frustrated timing expectations | Court: Gravina materially breached (reasonable‑time term implied; work untimely/unsatisfactory) — Gravina’s cross‑appeal denied |
| Whether a breaching party may recover in unjust enrichment | Gravina: may recover restitution for benefit conferred where contract is silent on remedy for that default (Restatement §36) | Frederiksens: contract bars unjust enrichment; Gravina has unclean hands and conferred no benefit | Court: Breaching party can recover restitution when contract does not specify remedies for the particular default; unjust enrichment claim allowed; remanded for detailed net‑benefit calculation |
| Negligent supervision / applicability of res ipsa loquitur | Frederiksens: res ipsa applies; supervisory defendants were responsible | Gravina: plaintiff failed to show duty to supervise or elimination of other causes | Court: No negligent supervision liability; plaintiffs failed to show requisite duty or facts supporting res ipsa |
| Exclusion of roof‑damage expert evidence (pretrial disclosure) | Frederiksens: exclusion unfair; estimates provided when available | Gravina: disclosures were untimely; prejudice warranted exclusion under C.R.C.P. 26/37 | Court: Exclusion proper (disclosure rules and Todd factors support preclusion); no abuse of discretion |
| Attorney fees (trial and appeal) | Frederiksens: seek fees under §13‑17‑102 and C.R.C.P.11 | Gravina: sought contractual fees on appeal | Court: Trial court did not abuse discretion denying fees under §13‑17‑102 and Rule 11; no appellate fee award (contract fee clause inapplicable because Frederiksens not found in breach) |
Key Cases Cited
- Coors v. Sec. Life of Denver Ins. Co., 112 P.3d 59 (Colo. 2005) (party who first violates contract cannot claim its benefit)
- Dudding v. Norton Frickey & Assocs., 11 P.3d 441 (Colo. 2000) (example of contract "failure" allowing restitution claim)
- Interbank Invs., L.L.C. v. Eagle River Water & Sanitation Dist., 77 P.3d 814 (Colo. App. 2003) (unjust enrichment applies when no contractual remedy available)
- New Windsor Volunteer Ambulance Corps., Inc. v. Meyers, 442 F.3d 101 (2d Cir. 2006) (breaching party may recover in restitution for partial benefit conferred)
- United Coastal Indus. v. Clearheart Constr. Co., 802 A.2d 901 (Conn. Ct. App. 2002) (subcontractor recovering for partial performance via restitution)
- David M. Somers & Assocs., P.C. v. Busch, 927 A.2d 832 (Conn. 2007) (breaching party may recover on unjust enrichment/quantum meruit in limited circumstances)
- ARC LifeMed, Inc. v. AMC‑Tenn., Inc., 183 S.W.3d 1 (Tenn. Ct. App. 2005) (quantum meruit recovery by breaching party, with offset for damages to nonbreaching party)
- Todd v. Bear Valley Vill. Apartments, 980 P.2d 973 (Colo. 1999) (factors for assessing prejudice and justification for discovery nondisclosure)