Extreme Construction Co. v. RCG Glenwood, LLC

2012 COA 220, 310 P.3d 246, 2012 WL 6700552, 2012 Colo. App. LEXIS 2102
CourtColorado Court of Appeals
DecidedDecember 27, 2012
DocketNo. 12CA0084
StatusPublished
Cited by8 cases

This text of 2012 COA 220 (Extreme Construction Co. v. RCG Glenwood, LLC) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Extreme Construction Co. v. RCG Glenwood, LLC, 2012 COA 220, 310 P.3d 246, 2012 WL 6700552, 2012 Colo. App. LEXIS 2102 (Colo. Ct. App. 2012).

Opinion

Opinion by

Judge GABRIEL.

1 1 In this action concerning the interpretation of a payment provision in a construction contract, plaintiff, Extreme Construction Co. (Extreme), appeals the amount of the monetary judgment that it obtained against defendant, RCG Glenwood, LLC (RCG), and the judgment entered in favor of defendant, Mike Spradlin. RCG cross-appeals the trial court's award of attorney fees, costs, and certain prejudgment interest to Extreme, and the court's denial of RCG's own request for fees and costs.

[249]*2492 As an apparent matter of first impression in Colorado, we conclude that the equitable estoppel doctrine can be applied in the context of a dispute over the interpretation of an ambiguous contract provision. We then conclude that the trial court erred in finding that RCG was not equitably estopped from contesting Extreme's interpretation of the contract. Next, we conclude that the trial court did not err in finding that Extreme never accepted Spradlin's offer of a personal guarantee and that, under the contract's fee-shifting provision, Extreme was the prevailing party on its claim against RCG. Finally, we conclude that RCG has failed to show that the trial court erred in rejecting its assertions that under section 18-17-202, C.R.S. 2012, (1) the interest awarded to Extreme should have abated from the date of RCG's offer of settlement, and (2) RCG was entitled to an award of costs.

T3 Accordingly, we vacate the award of damages to Extreme and remand to the trial court to recalculate those damages, based on our conclusion that RCG was estopped from contesting Extreme's interpretation of the contract. In all other respects, we affirm.

I. Background

T4 RCG, through its owner, Spradlin, negotiated for Extreme to remodel a portion of a building in exchange for RCG's payment. During the negotiations, Extreme prepared for Spradlin a budget that estimated the total price to RCG. This budget included amounts for superintendence and labor, which were derived by multiplying the estimated time for superintendence work by $68.50 per hour and the estimated time for labor by $38.50 per hour.

15 Extreme and RCG ultimately entered into a contract for the project, but the contract did not include the above-noted hourly rates or calculations. Rather, paragraph 4 of the contract provided, in pertinent part:

Contract Price Financing; Payment. Owner [RCG] shall pay Builder [Extreme] in good funds on a Cost/Plus basis to a Guaranteed Maximum Price of $585,699.64 for the performance of the Work.... The Contract Price shall include, without limitation:
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b. Wages of construction workers directly employed by the Builder to perform the Work, including welfare, unemployment compensation, social security and other benefits.
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i. Builder's overhead and construction management fee of 5.5%, and Builder's profit of 5.5%, for a total of 11%.

16 When Extreme began construction, it mailed monthly bills to Spradlin reflecting that RCG was being billed $68.50 per hour for superintendents and $38.50 per hour for laborers, consistent with the previously-supplied budget. Spradlin subsequently discussed two of these invoices with one of Extreme's superintendents. Spradlin's main concern was that he felt that Extreme was not paying the onsite crew the labor rates reflected in the invoices, as he believed was required by the cost/plus term of the contract. The superintendent explained to Spradlin that the labor rates were preset and that they included more than just the actual hourly wages of the employees. For example, the rates included payroll taxes, workers' compensation, and unemployment insurance. After these conversations, Spradlin did not pursue the issue further. To the contrary, when he paid Extreme's invoices (or portions of them), he did so without objecting to the manner in which Extreme had billed for superintendence and labor.

T7 Some of RCG's checks bounced, and Extreme's owner spoke with Spradlin each time this occurred. At no time did Spradlin dispute the hourly rates contained in Extreme's invoices. Rather, he said that he was working on obtaining new financing.

[ 8 Because RCG had failed to pay its bills, Extreme had the "absolute right" under the contract to cease all construction activity. Based on the conversations with Spradlin, however, Extreme decided to continue working and ultimately completed the project on time, to Spradlin's satisfaction, and for approximately $45,000 less than the Guaranteed Maximum Price.

T9 RCG, however, still failed to pay Extreme's outstanding invoices in full. There[250]*250after, Spradlin wrote to Extreme and proposed a payment schedule and "a promissory note, personally guaranteed." He asked that Extreme not file a lien against the property, with the caveat, "If you cant [sic] I1 understand." After receiving this letter, Extreme did not file a lien and prepared a promissory note for Spradlin's signature. Although this note does not appear to be in the record, it is undisputed that Spradlin never signed the note.

T 10 Thereafter, Extreme filed this lawsuit, claiming that RCG had breached the contract and that Spradlin had breached his personal guarantee. In response, RCG and Spradlin asserted that Extreme had overbilled RCG. As pertinent here, they argued that the contract was unambiguous and only allowed Extreme to bill RCG at Extreme's "cost" (Le., the actual costs from vendors and the actual wages paid to Extreme's employees) plus 11% for profit and overhead. RCG and Spradlin contended that Extreme was not permitted to bill for superintendence and labor on an hourly basis.

111 Extreme replied that paragraph 4 of the contract was ambiguous and that extrinsic evidence, including the parties' precon-tractual agreement on the budget, favored its interpretation of that provision. Extreme also argued, among other things, that RCG was estopped from contesting Extreme's interpretation of the contract, because (1) RCG had full knowledge of the facts and unreasonably delayed in asserting its position as to the superintendence and labor costs, and (2) Extreme prejudicially relied on RCG's acquiescence in Extreme's contrary interpretation. In addition, Extreme argued that Spradlin had personally guaranteed the remaining amount due in exchange for Extreme's agreement not to exercise its lien rights. The court ultimately found that paragraph 4 was ambiguous but that the extrinsic evidence supported RCG's and Spradlin's interpretation, namely, that the contract required superintendence and labor to be billed at Extreme's actual costs and precluded Extreme from charging $68.50 per hour for superintendence and $38.50 per hour for labor. In addition, the court rejected Extreme's estoppel argument and further found that, to the extent Spradlin had offered to guarantee RCG's debt, there was no evidence that Extreme had ever accepted that offer.

{12 The court then entered judgment in favor of Extreme and against RCG in the amount of $18,523.65. Because this amount was significantly less than the amount that Extreme had sought at trial, RCG argued that it was the prevailing party under a fee-shifting provision in the contract.

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Bluebook (online)
2012 COA 220, 310 P.3d 246, 2012 WL 6700552, 2012 Colo. App. LEXIS 2102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/extreme-construction-co-v-rcg-glenwood-llc-coloctapp-2012.