Colorado School v. Rocky Mountain

• Court: Colorado Court of Appeals
• Decided: June 11, 2026
• Docket: 25CA0679
• Status: Unpublished

Opinion

25CA0679 Colorado School v Rocky Mountain

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0679 Arapahoe County District Court No. 23CV30301 Honorable Michelle Amico, Judge Honorable Elizabeth Beebe Volz, Judge

Colorado School District Self Insurance Pool and Widefield School District No. 3,

Plaintiffs-Appellees,

v.

Rocky Mountain Construction Company,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V Opinion by JUDGE YUN Lipinsky and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 11, 2026

Hall & Evans, LLC, Ryan L. Winter, Matthew J. Ninneman, Ethan E. Zweig, Denver, Colorado, for Plaintiffs-Appellees

Lorber, Greenfield & Olsen, LLP, Thomas F. Olsen, Konrad R. Schreier, Greenwood Village, Colorado, for Defendant-Appellant ¶1 Defendant, Rocky Mountain Construction Company (RMCC),

appeals the district court’s denial of its motion for directed verdict

and subsequent denial of its motion for post-trial relief after a jury

returned a verdict in favor of plaintiffs, the Colorado School District

Self Insurance Pool (SIP) and Widefield School District No. 3 (the

school district), on their breach of contract claim. We affirm the

judgment.

I. Background

¶2 After two summer hailstorms damaged Mesa Ridge High

School, the school district and SIP contacted RMCC to perform

mitigation and repair work. With the SIP’s approval, RMCC began

mitigation efforts at the school in September 2018. RMCC then

submitted three estimates, covering three phases of work at the

school, totaling $3,929,710.12, to be paid through a series of

progress payments.

¶3 Each estimate specified work to be performed in more than

150 areas of the school, including classrooms, offices, hallways,

and common spaces. Extensive repairs were required in any room

or hallway with a drop ceiling. The school district agreed to work

with RMCC, and the SIP issued progress payments as RMCC

1 completed certain percentages of the work set forth in the

estimates.

¶4 During the second phase of work, the SIP’s claims adjuster

requested that RMCC’s chief executive officer (the CEO) provide

documentation substantiating RMCC’s incurred costs because this

phase involved the acquisition and installation of materials. By

that point, the school district and SIP had already paid RMCC

$3,278,643.12, but the claims adjuster needed to verify costs before

issuing further payments. The CEO initially agreed to supply the

documentation but later insisted that the original estimates were

sufficient. Because RMCC did not provide the documentation, the

SIP paused all payments to RMCC in January 2020.

¶5 The school district and SIP retained an independent building

consultant to audit the costs before resuming payments. In an

April 2020 report, the consultant found that RMCC had billed

$846,318.88 for work it had never performed. Most of this

overbilling resulted from RMCC overcounting rooms with drop

ceilings — listing many rooms with drywall ceilings, where no work

was needed, as rooms with drop ceilings, where substantial work

2 was required. The school district and SIP notified RMCC of this

overbilling, but RMCC again declined to verify its costs.

¶6 In February 2023, the school district and SIP filed a complaint

alleging, among other claims, breach of contract. RMCC moved for

summary judgment, arguing that the statute of limitations barred

the breach of contract claim. RMCC contended that such a claim is

subject to a three-year statute of limitations that begins when the

breach should have been discovered by the exercise of reasonable

diligence. See §§ 13-80-101(1)(a), -108(6), C.R.S. 2025. RMCC

asserted that the February 2023 complaint was “not timely”

because the school district and SIP should have discovered the

breach before they received the consultant’s April 2020 report.

Since all three estimates were available by December 2019 and drop

ceilings are easily identifiable, RMCC argued that the statute of

limitations began running when “the estimates were provided to

[the school district and SIP].”

¶7 The district court denied RMCC’s motion for summary

judgment, finding “that determining when [the school district and

SIP] knew, or should have known, of any alleged breach is a

3 disputed question of fact precluding summary judgment on this

issue.”

¶8 During trial, after the school district and SIP presented their

case-in-chief, RMCC moved for a directed verdict on the breach of

contract claim under C.R.C.P. 50. RMCC reiterated its statute of

limitations argument, asserting that the school district and SIP —

specifically, the school district’s operations manager and the SIP’s

claims adjuster — should have discovered the breach by comparing

the estimates to the work performed onsite. Additionally, RMCC

argued that the SIP “[does not] have any witness who will testify . . .

that they have a contract with [RMCC].”

¶9 The district court denied RMCC’s motion for directed verdict,

rejecting its arguments regarding the statute of limitations and the

existence of a contract. As for the existence of the contract, the

court observed the following:

The very first question the jury asked in the beginning of this case was: Was this a fixed price contract or was it a time and material[?] And no witness so far has been able to answer that question. I don’t know what contract you had. But I also find that it’s so up in the air there could be unjust enrichment. There could be waiver.

4 . . . I do think it is for the jury to decide when whoever was paying — I mean, obviously, [the SIP] was paying for the claim. The [school district] was getting the services. It’s difficult for me to understand why, if you’re going to pay over a million dollars you don’t have any idea of whether or not the work you paid for was the work you wanted. . . . I’m looking at both sides here.

The court decided to “leave [these issues] up to the jury” because

“there’s so much information here and so many ways that a claim

could potentially be made.”

¶ 10 After a five-day trial, the jury returned a verdict for the school

district and SIP. Specifically, the jury answered the following

questions in the special verdict form:

QUESTION NO. 1: Do you find that a contract was formed between plaintiffs [the SIP] or [the school district] and defendant [RMCC]? (yes or no)

ANSWER NO. 1: Yes

....

QUESTION No. 4: Did [RMCC] breach the contract? (yes or no)

ANSWER NO. 4: Yes

5 QUESTION NO. 6: If you determined that [RMCC] breached the contract, did [RMCC] prove by a preponderance of the evidence its affirmative defense based on the statute of limitations? (yes or no)

ANSWER NO. 6: No.

In accordance with the jury verdict, the court awarded the school

district and SIP $846,318.88 in damages.

¶ 11 RMCC then moved for post-trial relief under C.R.C.P. 59,

requesting either “an amended verdict on the statute of limitations

because the jury’s [verdict] is irreconcilable with . . . the law,

testimony, and the evidence admitted at trial” or a “new trial on the

[s]tatute of [l]imitations issues.” The district court observed that

RMCC’s motion was, in essence, a request for judgment

notwithstanding the verdict (JNOV) or, in the alternative, for a new

trial. The court denied both requests, reiterating that the statute of

limitations was a factual question properly resolved by the jury.

¶ 12 RMCC now appeals.

II. Analysis

¶ 13 RMCC contends that the district court erred by denying its

directed verdict motion because the SIP and school district failed to

prove the existence of a contract during their case-in-chief. RMCC

6 also maintains that the court erred by denying its motions for

directed verdict and JNOV on the grounds that the statute of

limitations barred the lawsuit as a matter of law.1 We begin by

providing the applicable standard of review and relevant law, then

address each contention in turn.

A. Standard of Review and Applicable Law

¶ 14 We review de novo a district court’s rulings on motions for

directed verdict and JNOV, employing the same standards used by

the district court. M.G. Dyess, Inc. v. MarkWest Liberty Midstream

& Res., L.L.C., 2022 COA 108, ¶ 27. When considering either

motion, the court must view the evidence and all reasonable

inferences therefrom in the light most favorable to the nonmovant.

Id.; see also Salstrom v. Starke, 670 P.2d 809, 811 (Colo. App. 1983)

(“A motion for directed verdict in a jury trial admits the truth of the

1 On appeal, RMCC summarily asserts that the district court erred

by not dismissing the case based on the statute of limitations issue raised in its post-trial motion. The record shows that this motion requested a JNOV or, in the alternative, a new trial. But because RMCC does not specifically appeal the denial of a new trial or develop this argument, we do not address further the district court’s denial of RMCC’s request for a new trial. See In re Estate of Chavez, 2022 COA 89M, ¶ 26 (“We don’t consider undeveloped and unsupported arguments.” (quoting Woodbridge Condo. Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34, ¶ 41 n.12)).

7 [nonmovant’s] evidence and of every favorable inference of fact

which may legitimately be drawn from it.”). “If the facts are

sufficiently in dispute such that reasonable people could reach

different conclusions, it is the function of the jury to resolve those

disputes.” M.G. Dyess, ¶ 27. Applying these standards, a court

should not grant a motion for directed verdict or JNOV “unless

there is no evidence that could support a verdict against the

[movant] on the claim” from the standpoint of a reasonable juror.

Smith v. Surgery Ctr. at Lone Tree, LLC, 2020 COA 145M, ¶ 8

(citation omitted).

¶ 15 To prevail on a breach of contract claim, the plaintiffs must

prove the following by a preponderance of the evidence: (1) the

existence of a contract; (2) the plaintiffs’ performance of the contract

or justification for nonperformance; (3) the defendant’s failure to

perform the contract; and (4) the plaintiffs’ damages as a result of

the defendant’s failure. Univ. of Denv. v. Doe, 2024 CO 27, ¶ 46.

¶ 16 As relevant here, a contract exists “when an offer is made and

accepted and the agreement is supported by consideration.”

Marquardt v. Perry, 200 P.3d 1126, 1129 (Colo. App. 2008) (citation

omitted). Whether the parties entered into a contract is a question

8 for the jury. I.M.A., Inc. v. Rocky Mountain Airways, Inc., 713 P.2d

882, 887 (Colo. 1986). Specifically, when the existence of a contract

is at issue and the evidence is conflicting or subject to more than

one inference, it is for the jury to determine whether a contract

exists. Id. at 888 (explaining that “there was evidence from which

the jury could have concluded that a binding contract was entered

before the parties learned of the discrepancy between the estimated

and actual liabilities”). We are bound by the jury’s determination if

competent evidence in the record supports it. Id.

¶ 17 Even if the plaintiffs establish a prima facie case for breach of

contract, the defendant may raise the statute of limitations as an

affirmative defense. C.R.C.P. 8(c); see Crosby v. Am. Fam. Mut. Ins.

Co., 251 P.3d 1279, 1283 (Colo. App. 2010). To succeed on this

affirmative defense, the defendant must establish (1) the statute of

limitations applicable to the plaintiffs’ claim; (2) the accrual of the

claim; and (3) the expiration of the limitations period before the

plaintiffs filed suit. Crosby, 251 P.3d at 1283.

¶ 18 The statute of limitations for breach of contract is three years.

§ 13-80-101(1)(a). A cause of action for breach of contract accrues

“on the date the breach is discovered or should have been

9 discovered by the exercise of reasonable diligence.” § 13-80-108(6).

“Ordinarily, the accrual date of a claim and the corresponding issue

of whether the statute of limitations has expired are questions of

fact for a jury to resolve.” City & County of Denver v. Bd. of Cnty.

Comm’rs, 2024 CO 5, ¶ 26. However, if “the material facts are

undisputed and reasonable persons could not disagree about their

import, these questions may be decided as a matter of law.”

Sterenbuch v. Goss, 266 P.3d 428, 432 (Colo. App. 2011). Only in

the clearest cases should the question of accrual date be taken from

the jury. See Mastro v. Brodie, 682 P.2d 1162, 1169 (Colo. 1984);

Salazar v. Am. Sterilizer Co., 5 P.3d 357, 363 (Colo. App. 2000).

B. Existence of Contract

¶ 19 RMCC first contends that the district court should have

granted its motion for directed verdict because the school district

and SIP “failed to establish [the existence of a contract] during their

case in chief,” supposedly based on the district court’s comment

that it “had no idea what the contract was.” But this

mischaracterizes the court’s comment and misapprehends the

standard of review on appeal.

10 ¶ 20 While the district court noted that the type of contract was

unclear and that unjust enrichment could be viable if no contract

existed, this passing observation was not a finding that there was

“no evidence” to support the existence of a contract. Smith, ¶ 8

(citation omitted). To the contrary, the school district and SIP

presented substantial evidence during their case-in-chief

supporting the existence of a contract, including:

• Evidence of an offer: The school district and SIP contacted

only RMCC — not other construction companies — to

perform this work, based on their prior relationship working

together. The SIP advised the school district to “engage in

whatever contract [RMCC] wanted to with the District.”

Both the operations manager and claims adjuster

repeatedly testified to authorizing, agreeing to, and

approving RMCC’s continued work.

• Evidence of acceptance: At the school district’s request,

RMCC inspected the damage and immediately began work.

RMCC submitted three estimates itemizing the work to be

performed and the corresponding charges to the school

district and SIP. RMCC also obtained the operations

11 manager’s signature on a document accompanying the

phase two estimate, which purported to “memorialize our

project scope.” The claims adjuster received this document

as well.

• Evidence of consideration: The SIP issued progress

payments to RMCC as work was completed under each

phase. Once the school district confirmed that RMCC had

completed a certain percentage of work on the estimate, the

SIP issued payments to RMCC. RMCC ultimately received a

total of $3,278,643.12 for its work at the school.

¶ 21 Viewing the evidence and all reasonable inferences therefrom

in the light most favorable to the school district and SIP, a

reasonable jury could conclude that a contract existed. See M.G.

Dyess, ¶ 27; see also Gilley v. Oviatt, 2025 COA 27, ¶ 12 (holding a

directed verdict is appropriate only when “there is no evidence to

support an element of a claim”). While RMCC argues that the

contract’s existence was unclear and that the witnesses’ testimony

was at times contradictory, when “the evidence is conflicting or

admits of more than one inference, it is for the jury to decide

whether a contract in fact exists.” I.M.A., Inc., 713 P.2d at 887.

12 Accordingly, by denying RMCC’s motion for directed verdict, the

district court properly left this issue for the jury to resolve.

C. Statute of Limitations

¶ 22 RMCC next contends that the district court erred by denying

its motions for directed verdict and JNOV because the school

district and SIP filed their February 2023 complaint after the

statute of limitations had expired. RMCC argues that the school

district and SIP should have exercised reasonable diligence to

discover RMCC’s alleged breach before the April 2020 report.

Specifically, RMCC claims that the SIP’s cessation of payments in

January 2020 marked the start of the limitations period. RMCC

points to the following evidence in support:

• The construction work took place from September 2018

through the end of 2019.

• The operations manager and claims adjuster each received

all three estimates detailing the work for each area. Both

had access to the site while work was underway, and the

operations manager visited the site multiple times.

• Both the operations manager and claims adjuster could tell

the difference between drop ceilings and drywall ceilings.

13 ¶ 23 But contrary to RMCC’s contentions, other evidence in the

record supports the jury’s finding that the school district and SIP

neither knew nor, through reasonable diligence, should have known

about RMCC’s breach before the consultant’s April 2020 report.

The jury heard the following evidence:

• During construction, both the claims adjuster and

operations manager had limited capacity to oversee RMCC’s

work. Hailstorms had damaged at least twenty buildings in

the district, including five other schools, all of which were

under the operations manager’s responsibility and insured

by the SIP.

• For Mesa Ridge High School alone, RMCC’s estimates for

the three phases of work totaled 498 pages and identified

4,295 line items.

• The CEO testified that he was too busy to review the

estimates for accuracy and stated it was not the

14 responsibility of the school district or SIP to ensure his

company was “being honest.”2

• Both the operations manager and claims adjuster trusted

RMCC to bill accurately for the work, as they had previously

worked with RMCC without issue.

• Both testified that auditing the scope of RMCC’s contracted

work was not part of their job responsibilities.

• When the SIP requested documentation of costs for

materials, RMCC refused, prompting the SIP to hire the

independent consultant.

• Both the operations manager and claims adjuster testified

that they first learned RMCC might have overbilled when

the consultant issued the April 2020 report. Believing that

the overbilling was likely a “simple mistake,” the claims

adjuster contacted the CEO to share the consultant’s

2 The fact that the CEO testified during RMCC’s case, rather than

during the school district and SIP’s case-in-chief, does not alter our conclusion regarding RMCC’s motion for directed verdict. The other evidence introduced in the school district and SIP’s case-in-chief independently established a genuine factual dispute as to when they knew or should have known about the excessive billing.

15 findings, request supporting documentation, and

collaborate on further investigation.

• The CEO hired his own consultant to review the April 2020

report and conduct an independent audit. This consultant,

like the claims adjuster, requested documentation of costs

of materials. The CEO never provided the requested

documentation and eventually ceased communication with

the consultant.

• In early 2023, the CEO was continuing to dispute the April

2020 report’s findings, maintaining that no overbilling had

occurred. RMCC retained a second consultant to review the

April 2020 report and conduct its own audit.3

¶ 24 Again, considering the evidence and all reasonable inferences

therefrom in the light most favorable to the school district and SIP,

a reasonable jury could infer: (1) RMCC was responsible for

providing accurate project estimates; (2) the school district and SIP

were not responsible for identifying discrepancies between the

3 This consultant concluded that RMCC overbilled, but by a

significantly smaller margin than the amount the school district and SIP claimed.

16 estimates and the onsite work; (3) the school district and SIP

exercised reasonable diligence by retaining an independent

consultant to audit the project; and (4) the question of overbilling

was a matter of ongoing dispute between the parties. Under these

circumstances, a reasonable jury could conclude that the school

district and SIP neither knew nor should have known about

RMCC’s breach until April 2020.

¶ 25 Our conclusion is not altered by RMCC’s attempt to reframe

the accrual date and expiration of the statute of limitations as

purely legal questions. The accrual date may be resolved as a

matter of law only when the material facts are undisputed and

reasonable minds could not disagree about their significance.

Sterenbuch, 266 P.3d at 432. Here, by contrast, the evidence —

viewed in the light most favorable to the school district and SIP —

was disputed and supported more than one reasonable inference

regarding the accrual date. See I.M.A., Inc., 713 P.2d at 887. The

district court therefore properly denied RMCC’s motions for directed

verdict and JNOV and allowed the jury to determine the accrual

date.

17 III. Disposition

¶ 26 The judgment is affirmed.

JUDGE LIPINSKY and JUDGE SCHUTZ concur.