2013 COA 60
Colo. Ct. App.2013Background
- Tarco, Inc. sues CMD for breach of two contracts related to a shopping center development.
- Tarco alleges CMD underpaid on two contracts; contracts related to infrastructure and highway overpass.
- CMD counterclaims for material breach by Tarco and seeks fees and costs.
- Tarco moves for summary judgment arguing bond statute barred recovery for lack of bond.
- District court grants summary judgment holding bond statute is a nonclaim statute; decision appealed.
- Court reverses in part, concluding bond statute is not a nonclaim statute and remands for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the bond statute a nonclaim statute? | Tarco: bond statute is nonclaim, barring recovery absent bond. | CMD: bond statute is a nonclaim bar to recovery. | Bond statute is not a nonclaim statute. |
| Are the contracts public works subject to the bond statute? | Tarco: contracts were not for public works. | CMD: contracts covered by bond statute. | Contracts involve public works and are subject to the bond statute. |
| Did CMD validly waive the bond requirement? | Tarco: CMD could waive bond requirement; estoppel may apply. | CMD: special districts lack power to waive bond requirement. | No genuine issue CMD waived; however, waiver defense is not dispositive. |
| Can Tarco pursue equitable estoppel against CMD regarding the bond defense? | Tarco: CMD’s conduct estops enforcement of bond defense. | CMD: no estoppel due to lack of authority to waive bond. | There is a genuine issue of material fact on equitable estoppel. |
| Was CMD's failure to plead the bond defense timely prejudicial? | Tarco: bond defense should be timely; 8(c)/9(c) addressed. | CMD: pleading defects do notbar consideration; defense is jurisdictional. | Harmless error; defect did not bar consideration. |
Key Cases Cited
- Pueblo West Metro. Dist. v. S. Colorado Water Conservancy Dist., 717 P.2d 955 (Colo. 1986) (jurisdictional defenses may be raised at any time; nonclaim status discussed in context of jurisdiction)
- Hansen v. Long, 166 P.3d 248 (Colo.App. 2007) (topic of summary judgment and prejudice from new issues)
- Ferrera v. Nielsen, 799 P.2d 458 (Colo.App. 1990) (harmless error when response is provided despite procedural misstep)
- Gognat v. Ellsworth, 224 P.3d 1089 (Colo.App. 2011) (summary judgment timing and response considerations)
- Kruse v. Town of Castle Rock, 192 P.3d 591 (Colo.App. 2008) (equitable estoppel for government entities; reliance fact-intensive)
- Piz v. Housing Authority, 132 Colo. 457, 289 P.2d 905 (1955) (equitable estoppel may cut off statutory rights)
- Fanning v. Denver Urban Renewal Authority, 709 P.2d 22 (Colo.App. 1985) (estoppel; rights conferred by statute may be limited by estoppel)
- Town of Carbondale v. GSS Properties LLC, 169 P.3d 675 (Colo. 2007) (affirmative defenses may be raised in summary judgment where no prejudice)