630 F. App'x 862
10th Cir.2015Background
- Leoff and S & J formed a partnership that the district court dissolved; the partnership’s sole asset was the White House condominium project.
- Leoff filed a mechanic’s lien and a lis pendens against the property; court held the mechanic’s lien invalid and previously ordered a $1,000 statutory penalty for the lis pendens.
- On first appeal this Court affirmed dissolution, invalidation of the mechanic’s lien, the $1,000 penalty, and remanded for a final partnership accounting and attorney fees for S & J in voiding the lien.
- On remand the district court ordered Leoff to repay a $50,000 profit advance and awarded $24,788.65 in district-court fees to S & J, but did not conduct the full accounting and omitted the $1,000 penalty from its judgment.
- S & J sought additional appellate fees for defending the partial summary judgment on appeal; Leoff cross-appealed raising equitable-estoppel-type arguments not previously litigated below.
Issues
| Issue | Plaintiff's Argument (S & J) | Defendant's Argument (Leoff) | Held |
|---|---|---|---|
| Whether district court complied with mandate to conduct a final partnership accounting | Court must perform full winding-up accounting and apportion profits/losses; include compensation for winding-up services | Court’s sale of asset and limited findings sufficed; S & J’s post-dissolution losses need not be charged to Leoff | Reversed: district court must perform full accounting, apportion net result, and include reasonable winding-up compensation to S & J |
| Whether S & J is entitled to appellate attorney fees for defending the partial summary judgment (mechanic’s lien) | Appellate fees are recoverable under Colo. Rev. Stat. § 38-22-128 for defending the lien on appeal | Fees for appeal not warranted or already compensated | Awarded $5,000 to S & J for defending the partial summary judgment on first appeal |
| Whether $1,000 statutory penalty for improper lis pendens must be included in judgment | Penalty was previously ordered and should be included in judgment | Omission was proper or harmless | Reversed: judgment must be corrected to include the $1,000 penalty |
| Whether Leoff’s equitable-estoppel argument (based on project changes) bars S & J’s accounting claim | (Leoff) Project was pursued on a different basis so damages/accounting should reflect the new course | (S & J) Argument not raised below and is fact-dependent; no basis to apply equitable estoppel | Rejected: Extreme Construction inapplicable; new, fact-heavy equitable-estoppel claim not considered on appeal |
Key Cases Cited
- Ute Indian Tribe of Uintah & Ouray Reservation v. Utah, 114 F.3d 1513 (10th Cir.) (mandate rule requires strict compliance with appellate direction)
- JW Const. Co. v. Elliott, 253 P.3d 1265 (Colo. App.) (awarding attorney fees under Colo. statute for defending appeal of excessive lien)
- Extreme Constr. Co. v. RCG Glenwood, LLC, 310 P.3d 246 (Colo. App.) (elements and fact-intensive nature of equitable estoppel for contract interpretation)
- Stichting Mayflower Recreational Fonds v. Newpark Res., Inc., 917 F.2d 1239 (10th Cir.) (district court should reassess costs when appellate opinion changes relief)
- Elkins v. Comfort, 392 F.3d 1159 (10th Cir.) (do not affirm on new fact-dependent grounds absent opportunity to develop record)