LSV, Inc. v. Pinnacle Creek, LLC

996 P.2d 188, 1999 Colo. J. C.A.R. 3356, 1999 Colo. App. LEXIS 161, 1999 WL 373984
CourtColorado Court of Appeals
DecidedJune 10, 1999
DocketNo. 97CA1674
StatusPublished
Cited by5 cases

This text of 996 P.2d 188 (LSV, Inc. v. Pinnacle Creek, 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
LSV, Inc. v. Pinnacle Creek, LLC, 996 P.2d 188, 1999 Colo. J. C.A.R. 3356, 1999 Colo. App. LEXIS 161, 1999 WL 373984 (Colo. Ct. App. 1999).

Opinion

Opinion by

Judge DAVIDSON.

In this contract action, plaintiff, LSV, Inc. (LSV), appeals from the trial court’s judgment entered in its favor against defendant, Pinnacle Creek, LLC (Pinnacle), on a breach of contract claim and from the judgment entered against LSV, finding that it had filed an excessive lien against Pinnacle’s real property. Pinnacle cross-appeals the court’s award of attorney fees to it on the excessive lien claim. We affirm in part, reverse in part, and remand for further proceedings.

LSV and Pinnacle entered into a contract under which LSV would provide construction management services to Pinnacle for a fee based on the costs of development and a percentage of the amount of cost savings. After a substantial portion of the development work had been completed, a dispute arose between LSV and Pinnacle concerning additional compensation. Subsequently, the parties abandoned the contract.

LSV filed a lien against the project and filed suit to foreclose on the lien. Pinnacle, in its answer, asserted several counterclaims.

Following a bench trial, the court found that LSV, as the construction manager, was entitled to receive a fee equal to 4% of the development costs and 35% of the development costs savings when the construction was in place and that, at the time the parties had abandoned the contract, 85% of the infrastructure work had been completed. The court then awarded LSV a fee based on those findings.

I.

LSV first contends that the trial court erred in its interpretation of the nature of the contract and in its findings in determining the amount of compensation due it when the parties abandoned the contract. We disagree.

If the record contains sufficient evidence to sustain a trial court’s findings, a reviewing court is bound by the trial court’s determination even though it might be possible for a reasonable person to arrive at a different conclusion based on the same facts. Dahl v. Young, 862 P.2d 969 (Colo.App.1993).

Interpretation of a contract is a question of law and will be reviewed de novo. Dorman v. Petrol Aspen, Inc., 914 P.2d 909 (Colo.1996).

A.

LSV first argues that the trial court mis-perceived the nature of the contract. Specifically, LSV argues that the court calculated the award due it based on the construction costs expended on the project and not the development costs that preceded such construction. If, LSV argues, the court had based its ruling on the infrastructure work completed by LSV, the award would have been significantly higher. However, contrary to LSV’s contention, the court expressly noted that the contract between LSV and Pinnacle was a construction management contract for LSV’s services and based its findings and calculations on that determina[190]*190tion. It did not award LSV a fee based on expended construction costs but on the development costs reflecting the percentage of the infrastructure that had been completed at the time the parties had abandoned the contract. We perceive no error in the trial court’s characterization of the contract.

B.

LSV also argues that the trial court erred in determining the amount of the management fee to which it was entitled. Again, we disagree.

Under the plain language of the contract, LSV was entitled to a project management fee of 4% of the development costs. The trial court, based on its finding that 85% of the project development had been completed under the contract, awarded 4% of 85% of the development costs incurred at the time that the parties had abandoned the contract.

LSV’s claim that it is entitled to 4% of 85% of a base fee is contrary to the plain language of the contract. The figure LSV claims as a base fee is the fixed budget cost, an amount agreed upon by the parties as the anticipated cost of the project. In contrast, the figure upon which the court relied in determining LSV’s fee reflected the actual amount incurred as development costs up to the time the parties had abandoned the contract. Therefore, although the fixed budget cost was to be used in determining the cost savings bonus, that figure is not the same as the development costs of the project.

Thus, LSV’s fee appropriately was based on the development costs of the project as provided for under the contract. See USI Properties East, Inc. v. Simpson, 938 P.2d 168 (Colo.1997) (contract to be enforced according to its plain and ordinary language).

C.

We also disagree with LSV’s argument that the trial court erred in determining the amount of the cost savings bonus to which it was entitled.

Here, the trial court found, and the parties agreed, that the fixed budget cost of the project was $876,847.10 and that the contracts for the project were bought out for $733,323.29 for a savings of $143,523.81. The court then awarded LSV 85% of 35% of the cost savings under the contract based on its determination that 85% of the development project had been completed at the time the parties had abandoned the contract and that LSV was not entitled to receive the benefit of any work which it did not perform. Nevertheless, LSV argues that it is entitled to the full amount of the cost savings bonus because the savings resulted from LSV’s efforts and were realized at the time the contracts were signed. However, LSV’s argument ignores its own evidence that, at the time the parties abandoned the contract, only 85% of the development work was in place and that Pinnacle was required to incur further costs to finish the development work. Thus, we perceive no error in the trial court’s computation of the cost savings bonus.

D.

LSV contends that the trial court erred in not awarding it an additional $10,000 fee later negotiated for and agreed upon by the parties because the scope and duration of the contract had changed. We reject this contention.

LSV approached Pinnacle with a request for additional compensation. According to testimony presented by Pinnacle, Pinnacle agreed to pay the extra fee only if the. project were completed under budget. LSV presented evidence that the offer to pay was unconditional. However, the trial court found that efforts at renegotiating the contract failed and, therefore, did not award LSV any additional compensation. In so doing, the trial court acted within its discretion to determine the credibility of the witnesses before it and accept or reject the evidence presented. Its determination that attempts to renegotiate the contract were unsuccessful and that LSV was not entitled to further compensation has support in the record, and we will not disturb its ruling. See In re Marriage of Bregar, 952 P.2d 783 (Colo.App.1997) (determination of credibility of witnesses, weight, probative force and sufficiency of evidence and inferences and conclusions to be drawn from the evidence are within the [191]*191court’s discretion); Dahl v. Young, supra (findings with support in the record are binding on reviewing court).

II.

LSV next contends that the trial court erred in determining that the lien it filed against Pinnacle’s real property was excessive.

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996 P.2d 188, 1999 Colo. J. C.A.R. 3356, 1999 Colo. App. LEXIS 161, 1999 WL 373984, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lsv-inc-v-pinnacle-creek-llc-coloctapp-1999.