MarkWest v. Rose

• Court: Colorado Court of Appeals
• Decided: April 24, 2025
• Docket: 23CA0139 & 23CA0596
• Status: Unpublished

Opinion

23CA0139 & 23CA0596 MarkWest v Rose 04-24-2025

COLORADO COURT OF APPEALS

Court of Appeals Nos. 23CA0139 & 23CA0596 City and County of Denver District Court No. 18CV34272 Honorable Jill D. Dorancy, Judge Honorable Darryl F. Shockley, Judge

MarkWest Liberty Midstream & Resources, L.L.C., a Delaware limited liability company,

Plaintiff-Appellee and Cross-Appellant,

v.

John W. Rose, as litigation trustee for Meridien Litigation Trust,

Defendant-Appellant and Cross-Appellee.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division II Opinion by JUDGE FOX Gomez and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 24, 2025

Snell & Wilmer L.L.P., James Kilroy, Ellie Lockwood, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant

Davis Graham & Stubbs LLP, Theresa Wardon Benz, Claire E. Mueller, Hannah McCrory, Denver, Colorado, for Defendant-Appellant and Cross-Appellee ¶1 Meridien Energy, L.L.C. (Meridien), through its litigation

trustee, John W. Rose, appeals the district court’s judgment

partially in favor of MarkWest Liberty Midstream & Resources,

L.L.C. (MarkWest). MarkWest, in turn, cross-appeals the district

court’s judgment partially in favor of Meridien. We affirm in part,

reverse in part, and remand with directions.

I. Background

¶2 In 2018, MarkWest hired Meridien to construct an

approximately eleven-mile portion of a longer natural gas liquids

pipeline project in West Virginia. Meridien and MarkWest entered

into a “Lump Sum Pipeline Construction Contract” (the Contract) on

March 9, 2018, which specified Meridien would complete the

pipeline project by November 15, 2018, in exchange for

$34,814,000. The project was greatly delayed, however, and by

October 16, 2018, Meridien had completed only approximately 150

feet of the pipeline. The cause of the delays was heavily contested

at trial.

¶3 On October 8, 2018, Meridien wrote to MarkWest, requesting

the work schedule be amended and demanding $16,099,986.00 in

additional compensation for delays and costs that Meridien

1 attributed to MarkWest and to weather events (the Demand Letter).

On October 16, MarkWest terminated the Contract for cause,

alleging Meridien was responsible for environmental noncompliance

and project delays. MarkWest hired new contractors, but the entire

pipeline project was not finished until July 2019.

¶4 MarkWest sued Meridien in November 2018, and Meridien

soon counterclaimed. As relevant to this appeal, MarkWest and

Meridien both raised claims for breach of contract and breach of the

implied duty of good faith and fair dealing. Meridien also raised a

claim for unjust enrichment that the court decided after trial.

¶5 After a fifteen-day trial, the jury ruled partially in favor of

MarkWest and partially in favor of Meridien. It found that Meridien

(1) breached the Contract and (2) breached the implied duty of good

faith and fair dealing. The jury awarded MarkWest $16,008,831.77

in damages for the former and no damages for the latter. It also

found, however, that MarkWest had similarly breached its implied

duty of good faith and fair dealing, and it awarded Meridien

$1,510,362.00 in damages. The court then decided Meridien’s

counterclaim for unjust enrichment and awarded Meridien

2 $2,562,994.15 plus interest. This appeal and cross-appeal

followed.

¶6 Part II of this opinion addresses Meridien’s appeal, which

pertains to each party’s claims for breach of the implied duty of

good faith and fair dealing, an evidentiary ruling, and a jury

instruction. We affirm the district court’s decisions on each issue.

¶7 Part III addresses MarkWest’s cross-appeal, which pertains to

Meridien’s unjust enrichment counterclaim. In its cross-appeal,

MarkWest argues that the district court (1) erroneously allowed the

counterclaim to proceed and (2) applied the wrong interest rate to

Meridien’s restitution award. We affirm the restitution award for

unjust enrichment but reverse as to the applicable interest rate.

II. Meridien’s Appeal

A. The Jury’s Verdicts

¶8 Meridien first contends that the jury’s verdicts are inconsistent

and irreconcilable.

1. Additional Background

¶9 After the jury issued its verdicts, Meridien moved for judgment

notwithstanding the verdict (JNOV) pursuant to C.R.C.P. 59, or,

alternatively, a new trial. As relevant here, Meridien argued that

3 the jury instructions presented the breach of the implied duty of

good faith and fair dealing claims as substantive claims and

affirmative defenses — therefore the jury could not have awarded

damages when it found both parties breached the implied duty.

Meridien cited several jury instructions and the verdict form to

support its contentions.

¶ 10 Instruction 14 informed the jury about material breaches of

contract, stating that “[a] breach is not material if the other party

receives substantially what it contracted for. In determining

whether a breach is material, you may consider the nature of the

promised performance, the purpose of the contract, and whether

any defects in performance have defeated the purpose of the

contract.” The instruction added that “[a] material breach by one

party excuses performance by the other party to the contract.”

¶ 11 Instruction 16, concerning MarkWest’s breach of contract

claim, provided that if the jury found that MarkWest proved the

elements of breach of contract, the jury “must consider Meridien’s

affirmative defenses,” and if “any one of those affirmative defenses

has been proved by a preponderance of the evidence, then [its]

verdict must be for Meridien.” Instruction 17 stated that

4 “MarkWest has raised breach of the implied duty of good faith and

fair dealing as both a counterclaim and affirmative defense.”

¶ 12 The instructions for Meridien’s claims mirrored these

instructions. Instruction 21 provided that Meridien “raised breach

of the implied duty of good faith and fair dealing as both a

counterclaim and affirmative defense.” Instruction 20 provided that

if the jury found that Meridien proved its claim, the jury was

required to “consider MarkWest’s affirmative defenses. . . . If [it]

[found] that any one of those affirmative defenses ha[d] been proved

by a preponderance of the evidence, then [its] verdict must be for

MarkWest.”

¶ 13 Instruction 25, concerning damages, provided that if the jury

found “in favor of MarkWest on its claim of breach of contract or

breach of the implied duty of good faith and fair dealing, then [it]

may award [MarkWest] damages.” And if the jury found “in favor of

Meridien on its counterclaim of breach of contract or breach of the

implied duty of good faith and fair dealing, then [it] may award

[Meridien] damages.” Instruction 26 informed the jury that if it

found “for either party on more than one claim for relief,” then it

could “award it damages only once for the same damages.”

5 ¶ 14 Using these instructions, the jury answered “yes” to three

questions on the verdict form:

Do you find by a preponderance of the evidence that MarkWest is entitled to recover from Meridien on its claim for breach of contract, after taking into account any affirmative defenses proven by Meridien by a preponderance of the evidence? . . .

Do you find by a preponderance of the evidence that MarkWest is entitled to recover from Meridien on its claim for breach of the implied duty of good faith and fair dealing, after taking into account any affirmative defenses proven by Meridien by a preponderance of the evidence? . . .

Do you find by a preponderance of the evidence that Meridien is entitled to recover from MarkWest on its claim for breach of the implied duty of good faith and fair dealing, after taking into account any affirmative defenses proven by MarkWest by a preponderance of the evidence? . . .

¶ 15 The jury answered “no” to one question:

Do you find by a preponderance of the evidence that Meridien is entitled to recover from MarkWest on its claim for breach of contract, after taking into account any affirmative defenses proven by MarkWest by a preponderance of the evidence?

¶ 16 After a hearing on Meridien’s JNOV motion, the court orally

ruled that the jury’s verdict “finding that both parties breached the

6 contract, . . . and damaged each other in different amounts . . . is

not inconsistent and is in keeping with what the Jury received as

evidence in the case.” The court added that the parties sought “a

lot of different categories of damages and it was . . . within the

Jury’s discretion to award part, percentage, or combination of

those.” It rejected Meridien’s motion for JNOV or a new trial.

2. Analysis

¶ 17 Meridien argues on appeal that the jury’s verdicts are

inconsistent and cannot be reconciled, and the district court should

have granted its JNOV motion. Meridien contends that the jury

could not have found for MarkWest on its breach of contract and

breach of implied duty claims and also for Meridien on its breach of

implied duty claim because the jury instructions provided that the

implied duty claims operated as affirmative defenses. Therefore, the

jury could not have awarded damages to either party. As a result,

Meridien argues each party’s damages awards should be vacated,

or, alternatively, that a new trial is warranted.

¶ 18 MarkWest counters that (1) the jury’s verdicts are reconcilable

because the jury did not find material breaches; (2) the jury

instructions do not support Meridien’s interpretation; and (3) case

7 law does not require the implied duty breach to serve as an

affirmative defense.

a. Standard of Review

¶ 19 We review a district court’s denial of a motion for JNOV de

novo. Parks v. Edward Dale Parrish LLC, 2019 COA 19, ¶ 9. “A

jury verdict will not be disturbed for inconsistency if a review of the

record indicates any basis for the verdict.” City of Westminster v.

Centric-Jones Constructors, 100 P.3d 472, 486 (Colo. App. 2003).

Our task is to examine carefully the instructions, the verdict forms, and the evidence, and to determine from the record whether there is competent evidence from which the jury logically could have reached its verdicts and to attempt to reconcile the jury’s answers to special verdicts, if possible. Also, if there is a view of the case that makes the jury’s answers consistent, they must be resolved that way.

H & H Distribs., Inc. v. BBC Int’l, Inc., 812 P.2d 659, 663 (Colo. App.

1990).

b. Application

¶ 20 The jury’s verdicts can be reconciled. The instructions state

that each party’s implied duty claims were raised as both

affirmative defenses and claims or counterclaims and that the jury

8 was required to consider each party’s respective affirmative

defenses. But merely because the implied duty claims were raised

as counterclaims and affirmative defenses does not mean that the

jury was required to find that the affirmative defenses had been

proved. Instead, the jury could have considered each party’s

affirmative defenses and found that only the substantive claim or

counterclaim had been established — and the best evidence for this

possibility is that the jury awarded each party damages.

¶ 21 “A claim is ‘the aggregate of operative facts which give rise to a

right enforceable in the courts . . . .’” Dinosaur Park Invs., L.L.C. v.

Tello, 192 P.3d 513, 516 (Colo. App. 2008) (citation omitted).

Conversely, “an affirmative defense is not merely a denial of an

element of a plaintiff’s claim, but rather it is a legal argument that a

defendant may assert to require the dismissal of a claim,

notwithstanding the plaintiff’s ability to prove the elements of that

claim.” Soicher v. State Farm Mut. Auto. Ins. Co., 2015 COA 46,

¶ 18. An affirmative defense, therefore, differs from a claim in that

it defeats a potentially enforceable right to damages. In other

words, an affirmative defense is not a means to obtain damages —

it negates a claim for damages.

9 ¶ 22 Instruction 25 made this distinction when it provided that if

the jury found for either Meridien or MarkWest for its respective

“claim” or “counterclaim” “then [the jury] may award it damages.”

(Emphases added.) And Instruction 26 recognized this when it

provided that if the jury “find[s] for either party on more than one

claim for relief, [the jury] may award it damages,” though “only once

for the same damages.” (Emphasis added.)

¶ 23 Using the instructions and the verdict form, we can reconcile

the jury’s verdict in a way that recognizes this distinction. Namely

that the jury considered each party’s affirmative defenses but

declined to find that each party’s affirmative defenses totally

defeated each other’s claims. Instead, the jury found that

MarkWest proved the elements of its breach of contract and breach

of implied duty of good faith and fair dealing claims, but it only

awarded damages for the breach of contract claim. But it also

found that Meridien proved the elements of its breach of implied

duty of good faith and fair dealing counterclaim, meriting damages.

See Centric-Jones Constructors, 100 P.3d at 486; H & H Distribs.,

812 P.2d at 663 (“[I]f there is a view of the case that makes the

jury’s answers consistent, they must be resolved that way.”).

10 Similarly, the jury may have determined that each party’s breaches

of the duty of good faith and fair dealing were not material,

consistent with Instruction 14.

¶ 24 Admittedly, Instructions 17 and 21 were not models of clarity

when they provided identical elements for breaches of the implied

duty with no means for the jury to indicate whether it found the

parties proved them as affirmative defenses or claims. But we have

found no binding authority that requires breaches of the implied

duty of good faith and fair dealing to serve as affirmative defenses.

See Soicher, ¶¶ 10, 26 (contrasting an insured’s duty of good faith

and fair dealing with the duty to cooperate; noting that while

“noncooperation will likely bar a claim for benefits,” a “violation of

the implied covenant of good faith and fair dealing, in contrast, will

not necessarily do so”; and recognizing that the insurer attempted

to raise the implied duty as an affirmative defense).

¶ 25 When the jury awarded Meridien damages for breach of the

duty of good faith and fair dealing, it necessarily decided that

Meridien proved the elements of a counterclaim. However, it could

have decided that the breach wasn’t material — and therefore, that

Meridien had not proved an affirmative defense. Similarly, the jury

11 found MarkWest proved its claims for a breach of the implied duty

and breach of contract. But consistent with Instruction 26, the jury

could not award MarkWest duplicative damages, hence the award of

$0.

¶ 26 Because this view resolves the alleged inconsistency in the

jury’s verdict, we may not disturb it. See Centric-Jones

Constructors, 100 P.3d at 486. The district court did not err.

B. The Smithburg Project and Redlines Evidence

¶ 27 Next, Meridien argues that the district court erred by

excluding evidence of another MarkWest project, Smithburg, that

allegedly would have supported Meridien’s theory at trial.

¶ 28 While Meridien was building its portion of the pipeline,

MarkWest was working on a nearby project — the construction of a

natural gas processing plant called Smithburg. Meridien offered

evidence concerning the Smithburg plant to show that it shared

similarities with the pipeline — namely, that both projects

(1) experienced the same heavy rainfall events; (2) required modified

12 erosion and sediment plans (E&S plans);1 (3) received similar

environmental notices of violations (NOVs); and (4) shared the same

MarkWest personnel. Meridien wanted to argue that, despite their

similarities, MarkWest treated its pipeline project differently.

¶ 29 Meridien offered a PowerPoint presentation prepared for a

meeting between MarkWest and the West Virginia Department of

Environmental Protection (WVDEP) regarding the Smithburg

project. An unredacted version of the PowerPoint showed that (1)

Smithburg received several inches of rain in June through August

of 2018 in short periods and seven inches of rain from a tropical

storm in September; (2) MarkWest modified its E&S plans twice in

June 2018 through “redline and enhanced onsite controls”; and

(3) MarkWest received four NOVs from the WVDEP in 2018 for

Smithburg (two in June and August and two in September),

including for failing to modify its E&S plans.

¶ 30 According to Meridien, the WVDEP found that Meridien, and

in turn MarkWest, violated environmental regulations on the

pipeline project because of the same heavy rainfall experienced at

1 A witness testified at trial that E&S plans are “designed to control

sediment in soil erosion.”

13 Smithburg. Meridien pointed to MarkWest’s July 2018 response to

a WVDEP NOV, which represented that Smithburg’s deficiencies

resulted from “rainfall amounts . . . [before] the inspection.”

Further, in MarkWest’s subsequent corrective actions plan for the

pipeline project, prepared in August 2018, it represented to the

WVDEP that it would redline and modify its E&S plan, but Meridien

never received the redlines.

¶ 31 Meridien also highlighted that MarkWest’s letter terminating

the Contract for cause in October 2018 stated that MarkWest did

not believe redlining plans “was necessary for Meridien to

adequately address the myriad environmental concerns” and that

the existing E&S plans reflected that Meridien should have been

able to adjust the plans in the field.

¶ 32 Meridien sought to introduce the PowerPoint to argue that

MarkWest treated Meridien differently — by claiming that heavy

rain caused the issues at Smithburg, while blaming Meridien for the

issues at the pipeline project — as evidenced by MarkWest’s

willingness to create redlines at Smithburg while not providing

redlines for the pipeline project. Smithburg and redlining came up

several times during trial.

14 2. Pertinent Trial Testimony and Smithburg Evidence

¶ 33 Dustin Vincent, MarkWest’s engineering supervisor, testified

that MarkWest would not have needed to modify its E&S plans for

the project had Meridien properly implemented the existing plans,

and that it was Meridien’s responsibility to make adjustments as

needed. On cross-examination, Vincent testified that MarkWest

never made the redlines it told the WVDEP it would create and that

MarkWest relied on its original E&S plans.

¶ 34 Meridien then sought to introduce the PowerPoint to challenge

Vincent’s testimony. MarkWest objected, arguing that the

Smithburg evidence was irrelevant and prejudicial and that only a

redacted version of the PowerPoint (which only showed information

about the pipeline project) was admissible. The court did not admit

the unredacted PowerPoint, finding that while it may have been

relevant, exploring a “project in which [Meridien] wasn’t actually

involved . . . [risked] confusing the jury more so than they already

may be with all the information that they’ve received.” The court

excluded the unredacted PowerPoint on the basis that the risk of

prejudice and confusion outweighed its relevance.

15 ¶ 35 Meridien’s counsel reiterated that while “this is not to rebut

the redline issues,” the evidence did, in fact, rebut (1) the redline

issues by contravening testimony that MarkWest had “never done

redline plans for another project” and (2) MarkWest’s suggestion

that it was a “great steward[] of the environment.” The court noted

that Meridien could ask Vincent “more questions about the

redlining,” and Meridien’s counsel asked to revisit the matter after

laying more foundation. Meridien’s counsel then asked: “You would

agree . . . that . . . MarkWest has in the past actually submitted

redline plans for projects; right?” Vincent responded, “I’m involved

in projects in my area, unaware of projects outside of my area.

There’s a great possibility that they’ve done that.”

¶ 36 Shannon Miles, MarkWest’s senior environmental coordinator

during the pipeline project in 2018, later testified about an email

her supervisor sent to a third-party environmental inspector,

Shawn Johnston, who oversaw Meridien’s portion of the pipeline.

In the email, the supervisor asked Johnston to “coordinate with the

other [environmental inspectors] on this project in order to ‘red line’

the approved E&S plan” for the various portions of the pipeline, and

once those redlines were approved, they would be “provided to the

16 contractors to implement in the field.” Miles testified that she

understood this to mean that after MarkWest received the WVDEP

NOV “we needed to add . . . redlining or field modifications.”

¶ 37 Miles added, however, that Meridien “had requested that we,

as MarkWest, put those changes on the E&S drawing, which isn’t

something we’ve ever done before that. It’s not the typical process.”

Instead, Miles stated the typical process

would be that those areas would be observed either by the contractor or the environmental inspector on these areas that need [to be] tweaked or added to. It would be a discussion between those two parties, and it would be implemented in the field, and that really would be the highest level it would get to. And those changes would be documented on the E&S plan sheets or reference what’s been added or changed.

¶ 38 Miles also testified that MarkWest attempted to make the

requested redline changes, but it became difficult because it lacked

“a procedure for doing it because we had never done it before.” And

because most of Meridien’s “E&S controls were either implemented

incorrectly or hadn’t been maintained, it was very difficult . . . to

evaluate, if that control would need [to be] field modified or tweaked

because they were unable to evaluate if it was functional during a

17 rain event.” Vincent was referring to these redlines when he

testified that MarkWest eventually abandoned the plan to create

redlines and kept the original E&S plans.

¶ 39 Meridien’s counsel later cross-examined Miles about

Smithburg and whether the same WVDEP inspector worked on

Smithburg and the pipeline project. MarkWest’s counsel objected

for relevance, again arguing that the Smithburg evidence would

cause confusion. In a sidebar discussion, Meridien’s counsel

argued that the questioning was relevant because Miles gave a

presentation — referring to the PowerPoint — “to the West Virginia

DEP trying to explain away problems at not only [Smithburg] but

this project.” Referring to the testimony concerning the email and

field modifications of E&S plans, Meridien’s counsel added that

Miles

testified they didn’t revise the E&S plans here because they had never done that before. This document shows [that on Smithburg] they did it twice when there were failures due to rain events. It’s impeachment. It also shows that they used the same E&S plan in that project and mundane rain caused it to fail, meaning she had that knowledge and could have required upgraded E&S plans from the beginning and certainly knew she needed to modify them once they saw the failures.

18 ¶ 40 Meridien’s counsel further argued in the sidebar that the

evidence was relevant because “there’s been a suggestion that

[Meridien’s] work . . . brought scrutiny to the entire project by” the

WVDEP inspector. Thus, the testimony was relevant because it

“shows that [Miles] had prior relationships with [the WVDEP

inspector] where he wrote [NOVs] for the [Smithburg] Plant. Our

contention is that experience brought him extra scrutiny of our

project, not the other way around.”

¶ 41 The district court excluded the testimony, stating that the

Smithburg project was “a rabbit hole” and that while it understood

that Meridien sought to use the evidence to impeach Miles’ prior

statements, “it’s a completely different project. Not only is it a

different project, obviously the same company is involved, but it’s

not a pipeline . . . . It will open up the possibility of going down a

road that . . . will be confusing.” The court added that

“information . . . about the relationship with the [WV]DEP is

inappropriate under the circumstances,” as it was offered for an

improper purpose.

¶ 42 A few days later, the jury heard Johnston’s video deposition

testimony. As the lead environmental inspector for the entire

19 pipeline project, he testified that he worked on various MarkWest

projects (including Smithburg) and discussed his frustrations with

Meridien’s environmental violations and MarkWest’s failure to

reprimand Meridien. Johnston also stated, “I had a lot of projects

going on. All of them ran beautifully except for the one Meridien

was on. I could handle them by myself, all other ones, because

they ran so perfect. . . . The frustration is from one project. I did

multiple projects from MarkWest flawlessly and good.”

¶ 43 Meridien filed a bench brief during trial, arguing that the

Smithburg evidence was admissible because it was relevant and

that MarkWest had “opened the door” through Miles’ and

Johnston’s testimony. It argued that, without the Smithburg

evidence, MarkWest could mislead the jury into thinking only

Meridien struggled with rainfall and received NOVs from the

WVDEP and that it was not typical or necessary for MarkWest to

redline E&S plans.

¶ 44 The district court excluded the evidence. The court ruled that

“it’s not the same type of project” and that “it will take us into a

black hole of testimony and evidence and rebuttal” while facing

“time constraints at this point into our third week” of trial. Thus,

20 the court excluded the evidence under CRE 401, 402, 403, and

404(b).

3. Analysis

¶ 45 Meridien argues on appeal that the Smithburg evidence was

directly relevant because it (1) would have shown that MarkWest

treated Meridien differently than other contractors by blaming

Meridien for environmental issues and delays while attributing

similar issues to rain at Smithburg; (2) would have refuted

MarkWest’s testimony that MarkWest did not redline E&S plans or

that unmodified E&S plans would have been effective; and (3) would

show that other MarkWest projects did not run “perfectly” —

contradicting Johnston’s testimony. Meridien argues the exclusion

prejudiced it and warrants a new trial.

¶ 46 MarkWest counters that the district court properly excluded

the irrelevant evidence. MarkWest also contends that any alleged

error is harmless because Meridien introduced evidence on redlines

and whether MarkWest was a “good steward of the environment,” so

the evidence would have been cumulative.

21 a. Standard of Review

¶ 47 “In general, all relevant evidence is admissible, and the

Colorado Rules of Evidence strongly favor admission of material

evidence.” Bly v. Story, 241 P.3d 529, 535 (Colo. 2010) (citations

omitted). But a district court may exclude relevant evidence “if its

probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” CRE 403.

¶ 48 “[T]rial courts have broad discretion to determine the

admissibility of evidence,” CORE Elec. Coop. v. Freund Invs., LLC,

2022 COA 63, ¶ 28, so we review “evidentiary rulings for abuse of

discretion,” Ronquillo v. EcoClean Home Servs., Inc., 2021 CO 82,

¶ 12. “A district court abuses its discretion when its decision is

‘manifestly arbitrary, unreasonable, or unfair, or based on an

erroneous understanding or application of the law.’” Gebert v.

Sears, Roebuck & Co., 2023 COA 107, ¶ 29 (citation omitted).

¶ 49 We will not disturb a district court’s evidentiary rulings

“unless a substantial right of the party is affected.” CRE 103(a).

“An error affects a substantial right only if ‘it can be said with fair

22 assurance that the error substantially influenced the outcome of

the case or impaired the basic fairness of the trial itself.’” CORE

Elec. Coop., ¶ 41 (quoting Bly, 241 P.3d at 535). “If an error does

not affect a party’s substantial right, it must be deemed harmless

and is not grounds for reversal.” Bly, 241 P.3d at 535; see also

CRE 103(a); C.R.C.P. 61. Moreover, “any error in excluding . . .

cumulative evidence is harmless and does not constitute reversible

error.” In re Estate of Fritzler, 2017 COA 4, ¶ 12.

¶ 50 The district court did not err by excluding the Smithburg

evidence. To start, Meridien’s chief argument — that the Smithburg

evidence was necessary to refute testimony that MarkWest never

made redlines — seems to stem from a fundamental

misunderstanding about Vincent’s and Miles’ testimony and the

redlines MarkWest initially agreed to make and provide to Meridien.

From our review of the record, no witness asserted that MarkWest

never made redlines.

¶ 51 When reviewed in context, Miles and Vincent testified that

after the WVDEP sent MarkWest and Meridien NOVs, MarkWest

represented to the WVDEP that it would redline its E&S plans.

23 Both witnesses testified that the procedure for redlining was to have

their environmental inspectors work with contractors to identify

necessary changes, which were then submitted to MarkWest for

approval. And Miles testified that Meridien’s request for MarkWest

to visit the sites and make the redlines itself was out of the norm

but was attempted before the effort was deemed unfeasible.

¶ 52 None of this testimony gave the jury the misleading impression

that MarkWest was unwilling to make redlines to E&S plans, or

that it never undertook such modifications. It just explained

MarkWest’s redlining process. Indeed, none of Meridien’s offers of

proof explained how the Smithburg PowerPoint, or the fact that

MarkWest made redlines to the Smithburg E&S plans, explicitly

contradicted this testimony. Simply because MarkWest made

changes to its Smithburg E&S plans does not mean that MarkWest

created the redlines without its contractor’s input. Further, the

district court aptly pointed out that the Smithburg gas processing

plant project was completely different from the pipeline project.

And Meridien’s offers of proof never sufficiently addressed the

significant differences between these unrelated projects.

24 ¶ 53 As a result, the points Meridien sought to make through the

Smithburg evidence, while relevant, were discussed by other

witness testimony and were not essential to refute the testimony of

any witness, including Vincent, Miles, and Johnston. And the

district court did not abuse its discretion by finding that admitting

evidence concerning an entirely new project — one that differed

completely from the pipeline project save for its location and

MarkWest’s involvement — would have been unnecessarily

confusing. See CRE 403.

¶ 54 Moreover, even if the Smithburg evidence was improperly

excluded, we cannot conclude that its exclusion affected Meridien’s

substantial rights by substantially influencing the outcome of the

case or impairing the trial’s basic fairness. See CORE Elec. Coop.,

¶ 41. Other admitted evidence supported the points Meridien

sought to make via the Smithburg evidence. See CRE 403. Indeed,

the jury heard voluminous testimony on the redlining issues,

including (1) about redlining generally; (2) that Meridien did not

receive the redlines; (3) whether MarkWest should have provided

redlines to Meridien; (3) that other contractors did not receive

redlines and received similar environmental NOVs; (4) the

25 difficulties rain caused; (5) whether E&S plan modifications were

necessary; (6) that MarkWest received environmental NOVs; and

(7) whether MarkWest made redlines in response. And the jury

even heard testimony about how the contractors that replaced

Meridien struggled with similar environmental compliance issues,

but Meridien was the only contractor terminated.

¶ 55 Therefore, the district court did not err, and any assumed

error would be harmless. See Bly, 241 P.3d at 535; Fritzler, ¶ 12.

C. The Permissive Adverse Inference Instruction

¶ 56 Next, Meridien argues that the district court erred by giving a

permissive — rather than a mandatory — adverse inference

instruction concerning MarkWest’s destruction of redlined E&S

plans for the pipeline.

¶ 57 Early in the litigation, Meridien filed a motion to compel

MarkWest to produce the partially completed redlines that

MarkWest made in the field before it abandoned the effort, and

which MarkWest failed to produce during discovery. The court

ordered MarkWest to produce the redlines after finding they

remained under MarkWest’s control. But MarkWest notified the

26 court that despite its efforts to locate the redlines, it could not find

them (other than a hardcopy of some “handwritten notes”).

¶ 58 Before trial, Meridien requested that the court “instruct the

jury to draw an adverse presumption, or in the alternative,

inference” that the redlines would have been unfavorable to

MarkWest. Meridien argued that — because there was no dispute

that the redlines existed after litigation commenced but were not

preserved — the court should find that MarkWest willfully, or at

least negligently, destroyed the redline evidence.

¶ 59 Meridien requested, in pertinent part, the following

instruction:

It is the duty of a party not to take action that will cause the destruction or loss of relevant evidence, hindering the other side from making its own examination and investigation of all potentially relevant evidence relating to whether that party’s fault caused the incident in question.

You are instructed that you must presume, by reason of MarkWest’s failure to produce the “redlined” or otherwise modified, altered, or amended E&S Plans, that the evidence contained in those modified plans was unfavorable to MarkWest.

¶ 60 In the jury instructions conference, the court noted,

27 [W]e’ve heard a lot about . . . the redlines, and we’ve heard testimony that some people think there was redlines out there somewhere. I don’t know what happened to them. No one knows. I don’t think there was anything willful or intentional. I think it was just negligence. Probably, they ended up somewhere on the floor of someone’s F150 and never to be seen again.

¶ 61 Ultimately, the court rejected the requested mandatory

instruction, instead tendering a permissive inference instruction:

Before the trial of this case, MarkWest failed to produce any “redlined” or otherwise modified, altered, or amended E&S plans. You may, but are not required to, draw an inference that by reason of the loss of these E&S plans, the lost evidence was unfavorable to MarkWest.

(Emphasis added.)

¶ 62 Meridien argues on appeal that the court should have found

that MarkWest’s conduct was willful and reckless and therefore

should have instructed the jury that it must presume the lost

evidence was unfavorable to MarkWest. Thus, especially combined

with the alleged errors concerning the Smithburg evidence,

Meridien contends a new trial is warranted.

28 ¶ 63 MarkWest responds that Meridien waived this issue for appeal

because it invited any alleged error by requesting a mandatory or

permissive presumption instruction. MarkWest also contends that

the permissive instruction was not an abuse of the district court’s

discretion because the court concluded there was no willful or

intentional destruction of the redlines.

¶ 64 “The ability to provide the jury with an adverse inference

instruction as a sanction for spoliation of evidence derives from the

trial court’s inherent powers. A trial court has broad discretion to

permit the jury to draw an adverse inference from the loss or

destruction of evidence.” Aloi v. Union Pac. R.R. Corp., 129 P.3d

999, 1002 (Colo. 2006) (citation omitted). We review a district

court’s decision for an abuse of discretion, and “we will not overturn

the trial court’s imposition of an adverse inference unless the

sanction is manifestly arbitrary, unreasonable, or unfair. In

determining whether the trial court abused its discretion, we must

examine whether the rationales underlying the adverse inference

supported giving the instruction as a sanction for spoliation.” Id.

(citation omitted).

29 ¶ 65 To this end, “adverse inference instructions serve both a

punitive and a remedial purpose.” Id. The punitive purpose “serves

to deter parties from destroying evidence in order to prevent its

introduction at trial,” while the remedial purpose “serves to restore

the putative prejudiced party to the position it would have held”

absent spoliation. Id.

¶ 66 As for the culpable party’s state of mind, our supreme court

held in Aloi that there was “no useful distinction between destroying

evidence in bad faith and destroying evidence willfully.” Id. at 1003.

Therefore, it is not necessary for a district court to find that the

culpable party acted in bad faith to merit an adverse inference —

willfulness will suffice where it appears the evidence would have

been relevant to an issue at trial. Id. at 1002-04 (holding that when

a defendant had notice of an impending lawsuit but failed to

preserve documents relevant to the litigation, this was sufficient for

a finding of willfulness justifying an adverse inference).

¶ 67 Further, the district court’s “inherent power to impose a

punitive sanction is not limited to intentional spoliation of

evidence.” Pfantz v. Kmart Corp., 85 P.3d 564, 568-69 (Colo. App.

2003). Negligence may justify an adverse inference “to remediate

30 harm when the inference is ‘reasonably likely to have been

contained in the destroyed evidence.’” Id. at 569 (quoting Rodriguez

v. Schutt, 896 P.2d 881, 884 (Colo. App. 1994)).

b. Preservation and Invited Error

¶ 68 MarkWest’s first argument is that Meridien waived this issue

or invited any error when it requested a permissive inference as an

alternative to the mandatory inference. We disagree.

¶ 69 “The doctrine of invited error captures the principle that ‘a

party may not complain on appeal of an error that he has invited or

injected into the case; he must abide by the consequences of his

acts.’” Horton v. Suthers, 43 P.3d 611, 618 (Colo. 2002) (citation

omitted). It may apply when “a party requests that the court take a

particular action and then later complains of that same action” or

“one party expressly acquiesces to conduct by the court or the

opposing party.” Id. at 619. Similarly, “[w]aiver is ‘the intentional

relinquishment of a known right or privilege,’” but “a court must

find some record evidence that the defendant intentionally

relinquished a known right, indulging ‘every reasonable

presumption against waiver’ and examining the totality of the

31 circumstances surrounding a party’s conduct (or lack thereof).”

Bernache v. Brown, 2020 COA 106, ¶ 10 (citations omitted).

¶ 70 While Meridien requested a permissive inference as an

alternative to its desired mandatory inference, raising an alternative

argument does not meet the high bar for waiver or invited error.

Alternative arguments do not necessarily show an intentional

relinquishment of known rights. See Horton, 43 P.3d at 619;

Brown, ¶ 10; see also City of West Palm Beach v. Visionair, Inc., 199

F. App’x 768, 770 n.1 (11th Cir. 2006) (“The doctrine of invited error

does not preclude parties from making alternative arguments.”).

¶ 71 We therefore conclude this issue is preserved.

c. Application

¶ 72 The district court did not abuse its discretion by tendering the

permissive inference instruction. Meridien contends that the

district court should have found MarkWest’s conduct to be willful,

but even assuming the court had found MarkWest acted willfully, it

was not required to issue an instruction mandating the jury impose

an adverse presumption against MarkWest. See Aloi, 129 P.3d at

1001, 1003-04 (a permissive instruction, “you may infer . . . that

the evidence contained in such documents was unfavorable,” was

32 proper when a district court found the defendant acted willfully)

(emphasis added). Therefore, even if the court had found MarkWest

acted willfully, it would have been within its discretion to tender a

permissive inference instruction.

¶ 73 The district court also explicitly found that MarkWest did not

act willfully or intentionally — and the record supports this

determination. Indeed, we “cannot assume the district court’s role

to find facts and determine credibility. The district court was free to

believe or disbelieve the witnesses.” Warembourg v. Excel Elec., Inc.,

2020 COA 103, ¶¶ 35, 75 (citation omitted). And regardless, the

only facts in the record Meridien points to as justification for the

instruction are that the redlines existed and that MarkWest failed to

preserve them — which, to be clear, may support (but do not

require) a willfulness finding. See Aloi, 129 P.3d at 1003-04.

Meridien’s briefing points to no facts in the record that indicate a

harsher instruction was necessary, certainly not to the point that

the court abused its discretion by offering a permissive inference

instruction.

¶ 74 Finally, it is important to note that the jury heard testimony

concerning the redlines. The jury knew that they existed in some

33 form and that MarkWest started to create them but abandoned the

effort. And, thanks to the instruction, the jury also knew that the

redlines were not produced during discovery and that it could infer

the redlines were unfavorable to MarkWest.

¶ 75 Ultimately, the district court tailored its instruction to what it

found was commensurate with MarkWest’s conduct, which was

within its discretion. See Pfantz, 85 P.3d at 568 (“The sanction

should be ‘commensurate with the seriousness of the disobedient

party’s conduct.’”) (citation omitted); see also Warembourg, ¶¶ 57,

77. We may not disturb the court’s findings, Warembourg, ¶ 75,

and a permissive inference instruction served the appropriate

remedial and punitive purpose rationales. See Aloi, 129 P.3d at

1002. We discern no error in the court’s instruction.

III. MarkWest’s Cross-Appeal

¶ 76 In its cross-appeal, MarkWest raises two contentions of error.

First, it argues that the district court erroneously allowed

Meridien’s unjust enrichment claim to proceed despite the

underlying Contract. See Bd. of Governors of Colo. State Univ. v.

Alderman, 2025 CO 9, ¶ 36. Second, it contends that the court

applied the incorrect interest rate to Meridien’s restitution award for

34 unjust enrichment. We perceive no error with respect to the first

argument, but we conclude that the court erroneously applied an

18% interest rate to the restitution award. Therefore, we remand to

the district court to apply the correct interest rate.

A. Background

¶ 77 As mentioned, the court heard Meridien’s unjust enrichment

counterclaim after trial. Meridien’s counterclaim asserted that it

provided work and materials outside the Contract’s scope at

MarkWest’s direction, MarkWest did not pay for those services, and

MarkWest was unjustly enriched. Meridien sought $2,562,994.15

in restitution, the amount stated in Invoice 31-8011 (the Invoice),

which detailed the costs of the disputed work and materials.

¶ 78 Section 1.1 of the Contract required that Meridien perform “all

workmanship, labor, materials, and equipment set forth in Exhibit

‘A’ [the Scope of Work], and as subsequently added by [MarkWest]

in accordance with the terms of th[e] Contract.” Section 4,

“Changes to the Scope of Work,” required that

Changes to the Scope of Work (for work in addition to that covered under the Lump Sum Fixed Price . . . and which is consistent with the original terms and intent of this Contract) shall be made only by a written change order

35 specifying the requested changes or additions, including changes to the Lump Sum Fixed Price . . . .

¶ 79 The allegedly out-of-scope work included (1) slip repair work to

fix soil movement on steep terrain in a right-of-way; (2) road

improvement work on public county roads; (3) work and materials

related to “an unprecedented number of unidentified foreign

[pipe]lines”; and (4) work and materials, including environmental

control devices (ECDs) related to unforeseen and unprecedented

“rainfall and extreme weather events.”

¶ 80 Meridien’s October 2018 Demand Letter to MarkWest detailed

certain costs Meridien had incurred, including the work and

materials underlying its unjust enrichment claim. First, as to the

slip repair work, the Demand Letter noted that “MarkWest asked

Meridien to fix a pre-existing slip on a County Road (near Access

Road 10) outside the Scope of Work.” Vincent testified that the slip

repair work was “[w]ithin the scope of work.” However, in

deposition testimony read to the jury, William Schettine, Meridien’s

chief executive officer, said that the slip repair work “had nothing to

do with our construction” and that Meridien had requested a

change order to cover the costs, which MarkWest rejected.

36 ¶ 81 Later, Vincent discussed a document outlining MarkWest’s

internal responses to the Demand Letter.2 In this document —

responding to Meridien’s assertion about the slip repair work —

MarkWest suggested that Meridien “was not ‘required’ to make any

improvements” and “could have chosen to wait until [West Virginia

Division of Highways (WVDOH)] made the repairs.”

¶ 82 Second, Meridien contended that MarkWest asked it to “build,

grade, stone, compact, and ditch” several miles of state and county

roads, which were “not contemplated by the bid or initial scope of

work” and went beyond the Contract’s requirement that Meridien

maintain roads. MarkWest’s internal response to this assertion

noted that “[i]mproving portions of rural WVDOH Roads should

have been part of Meridien’s bid,” and if Meridien was requesting

“additional compensation,” it was to refer to “[Section] 4.0 Changes

to the Scope of Work.”

¶ 83 Third, Meridien sought compensation for work related to

foreign pipeline crossings that MarkWest failed to identify. James

Schettine, Meridien’s president and general counsel, testified that

2 It is unclear whether MarkWest ever sent this proposed response

to Meridien.

37 MarkWest was responsible for identifying foreign pipelines and that

while MarkWest identified seven foreign pipeline crossings, there

were “50-plus” unidentified foreign lines, “including MarkWest’s

own lines that they failed to identify.”

¶ 84 Construction alignment sheets, incorporated into the Contract

as an exhibit, stated that there would “be no additional

compensation for . . . having to work around existing utilities shown

in the plans or as they are discovered during construction, whether

they are shown or not.” But James Schettine testified that, while it

was common to find a few unidentified foreign lines, he had never,

“in the history of our company, encounter[ed] 50 plus” lines, and

this magnitude warranted additional compensation.3 A pipeline

engineering and development expert also testified that he found

fifty-six unidentified lines. Even Vincent testified that “[i]t was a

record book entry for the number of undisclosed foreign lines.”

¶ 85 Fourth, Meridien sought recovery for out-of-scope work due to

“unprecedented . . . rainfall and extreme weather events,” which

3 Recall that James Schettine is Meridien’s general counsel and

president, while William Schettine is Meridien’s chief executive officer.

38 required unanticipated maintenance to and installation of ECDs.

Using National Oceanic and Atmospheric Administration data, one

witness testified that “2018 was the wettest year on record . . . ,

which is like a 50-year record.” Other witnesses similarly described

extreme rainfall that year. Several witnesses testified that

MarkWest’s E&S plans, which it expected Meridien to follow, could

not withstand such significant rain events.

¶ 86 This required Meridien to install new ECDs and repair and

maintain existing ECDs beyond what was normally required and

beyond what the E&S plans required. However, MarkWest

witnesses also testified that Meridien’s failure to properly install

and maintain the ECDs, not the weather, caused the ECDs’ failure.

¶ 87 The Contract required Meridien to install and maintain “all

environmental controls” described in the E&S plans. But the E&S

plans noted that “[a]dditional [E&S] control measures may be

required as deemed necessary by . . . [MarkWest]” due to

“unforeseen problems.” And a Meridien witness testified that it was

Meridien’s responsibility to “install and maintain any additional

erosion and sediment controls BMPs [best management practices]

39 that may be required.”4 However, the same witness said that

Meridien’s initial bid could not have accounted for the significant

rainfall and adverse weather.5 There was also testimony suggesting

that when Meridien attempted to submit a change order for this

additional work, MarkWest told it not to deviate from the original

E&S plans. But MarkWest’s own reports indicated that it accepted

the additional environmental work; one report noted, without

apparent disproval, that “environmental crews have begun to install

additional ECDs not shown on the E&S Plans.”

¶ 88 Finally, although the Contract required change orders for out-

of-scope-work, James Schettine testified that Vincent said there

would not “be a change order discussion” with respect to the road

work. Vincent also testified that he told James Schettine not to

submit change orders. And Vincent acknowledged that, in a text

message in which he wrote that he was in “deny everything

4 One witness testified that BMPs or “best management practices”

encompass all environmental controls. 5 Internal MarkWest correspondence also included a MarkWest

employee’s email stating that “the contractors use the E[&]S plans for bidding the cost of the controls, so if we don’t show which roads need BMPs installed, they will charge extra[] for those BMPs.” This suggests that MarkWest interpreted the Contract to only include the cost of environmental controls listed within the E&S plans.

40 immediately mode,” he was referring to change orders. In his

deposition, William Schettine testified that Vincent said “he did not

want change orders on this job.”

¶ 89 After MarkWest terminated the Contract, Meridien submitted

the Invoice for the above-mentioned services and materials. At trial,

MarkWest’s counsel said there was no need for live testimony about

the Invoice, and the district court agreed to hear evidence through

offers of proof.

¶ 90 From the evidence presented at trial and the parties’ briefing,

the district court found that Meridien was entitled to the requested

$2,562,994.15 plus interest at a rate of 18% per year. First, it

found that Meridien proved the elements required to prevail on an

unjust enrichment claim. Next, it found that Meridien could

recover for unjust enrichment, despite the underlying Contract,

because (1) the work and materials provided pursuant to the

Invoice fell outside the Contract’s scope and/or were provided after

the Contract’s execution; and (2) even if the items detailed in the

Invoice were subject to Section 4, MarkWest waived any right to rely

on that provision because MarkWest accepted Meridien’s work,

while at the same time rejecting its change order requests.

41 B. Standard of Review

¶ 91 Determining whether a party may recover for unjust

enrichments requires “extensive factual findings.” Lewis v. Lewis,

189 P.3d 1134, 1140 (Colo. 2008). We “defer to the trial court’s

factual findings unless they are clearly erroneous,” French v.

Centura Health Corp., 2022 CO 20, ¶ 24, “meaning that we will not

disturb those findings unless they are unsupported by the record,”

Pinnacol Assurance v. Laughlin, 2023 COA 9, ¶ 11. However, we

review de novo contentions that an express contract bars an unjust

enrichment claim. See Interbank Invs., LLC v. Eagle River Water &

Sanitation Dist., 77 P.3d 814, 816 (Colo. App. 2003). Finally, we

review de novo whether a party is entitled to prejudgment interest.

M.G. Dyess, Inc. v. MarkWest Liberty Midstream & Res., L.L.C., 2022

COA 108, ¶ 35.

C. The Unjust Enrichment Claim

1. Relevant Law

¶ 92 A party asserting an unjust enrichment claim must prove

“that (1) at the plaintiff’s expense (2) the defendant received a

benefit (3) under circumstances that would make it unjust for the

defendant to retain the benefit without paying.” Alderman, ¶ 35.

42 However, a party typically cannot assert an unjust enrichment

claim “if a valid contract covers the same subject matter.” Id.

at ¶ 36. Our appellate courts recognize two exceptions to this rule:

“(1) the express contract fails or is rescinded or (2) the claim covers

matters that are outside of or arose after the contract.” Id. at ¶ 37.

¶ 93 On appeal, MarkWest challenges the district court’s ruling for

Meridien on its unjust enrichment claim.6 MarkWest does not

contest that Meridien provided the additional work and materials

reflected in the Invoice. Instead, it argues that the express Contract

(and the jury’s finding that there was such a contract) precluded

6 In M.G. Dyess, Inc. v. MarkWest Liberty Midstream & Resources,

L.L.C., 2022 COA 108, ¶¶ 12, 14, 21, a division of this court concluded that quantum meruit (unjust enrichment) claims are legal, not equitable, triggering the right to a jury trial. In this appeal, MarkWest does not challenge the propriety of the district court, rather than the jury, deciding Meridien’s unjust enrichment claim. See Melat, Pressman & Higbie, L.L.P. v. Hannon L. Firm, L.L.C., 2012 CO 61, ¶ 18 (“[A]rguments not advanced in the trial court and on appeal are generally deemed waived.”).

43 Meridien’s recovery for unjust enrichment.7 MarkWest also does

not challenge the court’s conclusion that Meridien proved unjust

enrichment, noting that the elements are “irrelevant” because the

cross-appeal concerns only the district court’s conclusion that the

Contract’s express terms did not bar Meridien’s claim. We therefore

consider only whether the Contract precluded Meridien’s unjust

enrichment claim, not the court’s ruling on the merits of that claim.

¶ 94 Meridien contends that MarkWest’s cross-appeal is

underdeveloped and asks us not to reach the merits. We agree that

MarkWest’s opening brief teeters on the edge of being so sparse as

to not warrant our review. It devotes barely more than a page to the

first issue and, although it cites the record, it fails to cite any legal

authority supporting its position; nor does it address the district

court’s application of the exceptions to the rule barring unjust

enrichment claims. See C.A.R. 28(a)(7)(B) (requiring a “discussion

7 MarkWest also contends, in a footnote and without citation, that

the district court improperly allowed Meridien to seek breach of contract damages from the jury and then seek the same damages for unjust enrichment after trial. We do not reach this contention because “[w]e don’t consider undeveloped and unsupported arguments.” Woodbridge Condo. Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34, ¶ 41 n.12, aff’d, 2021 CO 56.

44 of the grounds upon which the party relies . . . with citations to the

authorities” relied on).

¶ 95 Nonetheless, because the district court explained the legal

authority it relied on in reaching the conclusion MarkWest

challenges on appeal, we may review MarkWest’s arguments. See

O’Quinn v. Baca, 250 P.3d 629, 632 (Colo. App. 2010) (reviewing the

record despite the parties’ failure to provide record citations).

¶ 96 In its reply brief, MarkWest argues that, because the Contract

was integrated, the parties’ “future contractual disputes [were

limited] to issues relating to the express provisions of the contract.”

Nelson v. Elway, 908 P.2d 102, 107 (Colo. 1995) (emphasis added).

This misses the point. An unjust enrichment claim typically “does

not depend upon the existence of a contract . . . . Rather, it arises

out of the need to avoid unjust enrichment” absent an agreement

between the parties. Dudding v. Norton Frickey & Assocs., 11 P.3d

441, 444 (Colo. 2000). Therefore, an unjust enrichment claim is

generally not a contractual dispute. And while an unjust

enrichment claim cannot proceed merely because the parties

omitted or failed to agree to a specific contractual term, a party may

recover under unjust enrichment for matters arising outside of or

45 after the contract. Alderman, ¶¶ 37, 43. An integration clause does

not preclude such recovery.

¶ 97 MarkWest further argues that Section 4 of the Contract

contemplated changes to the scope of work and therefore precluded

Meridien’s unjust enrichment claim for out-of-scope work. Beyond

noting the district court’s conclusion that MarkWest waived any

right to rely on Section 4 by refusing to accept change orders,

MarkWest fails to substantively address the court’s waiver holding.

Nor does it address the district court’s conclusion that Section 4 did

not apply to the work detailed in the Invoice because Section 4 only

contemplated out-of-scope work “consistent with the original terms

and intent of th[e] Contract.”

¶ 98 We first address the court’s conclusion that MarkWest waived

Section 4’s change order provision. “[A] party may waive a contract

provision where the party is ‘entitled to assert a particular right,

knows the right exists, but intentionally abandons that right.’’’

Tarco, Inc. v. Conifer Metro. Dist., 2013 COA 60, ¶ 33 (citation

omitted). For example, waiver occurs when a “party acts

inconsistently with the right,” and the other party is prejudiced.

Avicanna Inc. v. Mewhinney, 2019 COA 129, ¶ 25. Whether a

46 provision has been waived “is a factual matter determined by the

trial court.” Id. at ¶ 24.

¶ 99 Here, the district court found — and the record reflects — that

MarkWest repeatedly rejected Meridien’s efforts to submit change

orders. Indeed, as the court noted, MarkWest occasionally

documented and observed Meridien performing the out-of-scope

work without objecting or requesting change orders. See Jarosz v.

Caesar Realty, Inc., 220 N.W.2d 191, 193 (Mich. Ct. App. 1974)

(allowing recovery for unjust enrichment, notwithstanding a change

order provision, “because defendants were aware of and authorized

changes . . . [and] had either waived th[e] [change order]

requirement . . . or [the] requirement did not extend to extra work”).

The evidence also indicated that MarkWest knew Meridien would

request additional compensation (presumably via change orders) for

work not explicitly included in the E&S plans, suggesting that it

knew this work was outside the Contract’s scope. While

MarkWest’s internal responses to the Demand Letter repeatedly

referenced Section 4 and suggested that Meridien should have

submitted change orders for the disputed work, MarkWest made

47 clear to Meridien that it would not accept change orders (while

accepting the work).

¶ 100 Therefore, the record supports the district court’s findings that

MarkWest knew it had a right to request and receive change orders,

it intentionally abandoned that right by rejecting them, and it

refused to pay Meridien — to Meridien’s detriment — for the work it

later claimed required change orders. See Laughlin, ¶ 11; Tarco,

¶ 33; Avicanna, ¶ 25. On these facts, we cannot say that the

district court erred by concluding that MarkWest waived its right to

rely on Section 4 and its change order provision.

¶ 101 But whether a party waived a contractual provision and

whether such waiver entitles the other party to pursue an unjust

enrichment claim are different questions. The rationale underlying

“waiver as an excuse for nonperformance . . . is based in large part

on the policies against . . . unjust enrichment.” 13 Richard A. Lord,

Williston on Contracts § 39:15, Westlaw (4th ed. database updated

May 2024). Therefore, waiver of a contractual right generally

precludes the waiving party from “seek[ing] judicial enforcement of

the contract with regard to the waived performance.” Id.; see also

Assocs. of San Lazaro v. San Lazaro Park Props., 864 P.2d 111, 111,

48 115-16 (Colo. 1993) (holding that a breach of warranty action

should have been dismissed where the party claiming breach

waived the right to rely on the contract’s warranty).

¶ 102 Thus, because courts will not enforce waived provisions, we

conclude that waiver is sufficiently analogous to the provision

having failed that it satisfies the exception under which a party to

an express contract may seek restitution for unjust enrichment

when the contract (in whole or in part) fails or is rescinded. See

Alderman, ¶ 37. When a party waives a contractual provision that

could otherwise block an unjust enrichment claim, the waiving

party can no longer rely on that provision, even if the contract as a

whole has not failed.

¶ 103 We also conclude that waiving a contractual provision is

distinguishable from the circumstances in Alderman. There,

Alderman and other students sued Colorado State University (CSU)

to recover tuition and fees after the university transitioned to

remote services during the COVID-19 pandemic. Id. at ¶¶ 7-11.

Although the students “contracted for an in-person education,” a

“statutory provision . . . granted CSU the authority to suspend

university operations in the event of ‘the prevalence of fatal

49 diseases, or other unforeseen calamity.’” Id. at ¶¶ 10, 41 (quoting

§ 23-30-111, C.R.S. 2024). Because the statute was “incorporated

into the parties’ contract, meaning that the contract explicitly

allowed the university to temporarily suspend operations,” the court

concluded that Alderman could not bring an unjust enrichment

claim. Id. at ¶¶ 38, 41, 44.

¶ 104 The court held that the statutory provision — which became

part of the contract — did not render the contract (or any portion of

it) unenforceable. Id. at ¶¶ 4, 41. The court reasoned that

Alderman’s inability to state a claim for breach of contract due to

the statutory provision, which allowed the university to suspend

operations, differed from the contract being unenforceable. Id. A

contract fails, the court held, “when it becomes legally

unenforceable,” not when “it does not provide all the services and

protections to which a party claims they are entitled.” Id. at ¶ 40.

Thus, although the contract was silent as to CSU’s obligation to

issue refunds when it transitioned to remote services, the court

held that unjust enrichment is not “a gap-filler provision to provide

a remedy when a contract is silent about a desired term.” Id. at

¶¶ 16-17, 43.

50 ¶ 105 In Alderman, the statute effectively created an explicit

contractual exception to the requirement that CSU provide in-

person services. So Alderman could not sue for breach of contract

or unjust enrichment because an express provision of the contract

allowed the allegedly prohibited conduct. By contrast, waiver is not

an explicit provision or exception that becomes part of a contract;

instead, it effectively eliminates the waived provision. In short,

Alderman’s claims were barred because there was an express

provision, while a waiving party is barred from enforcing or relying

on an express provision that it has disavowed.

¶ 106 Just as a contract’s failure or rescission creates an avenue for

unjust enrichment recovery because there are no enforceable

contractual provisions, waiver results in the waived contractual

provision becoming legally unenforceable. See Alderman, ¶ 40; 13

Williston on Contracts § 39:15. Waiver is also different from the

parties omitting a term from their agreement, see Alderman, ¶ 43,

because they did contemplate the term, but it failed. Allowing

claims for unjust enrichment when a contractual provision fails or

is rescinded is not the same as allowing an unjust enrichment claim

51 to serve as a gap-filler for overlooked terms. See id. Otherwise, the

exceptions discussed in Alderman would be meaningless.

¶ 107 Here, there was originally a contractual way for Meridien to

receive compensation for its additional work; it could submit

change orders pursuant to Section 4. Various witnesses testified

that MarkWest requested and/or accepted the out-of-scope work,

and Meridien tried to submit change orders — but MarkWest

repeatedly rejected its attempts, thereby waiving the provision.

MarkWest’s waiver rendered the change order requirement legally

unenforceable, and the parties cite no contractual exceptions or

alternatives to that provision. Accordingly, MarkWest’s waiver

meant that there was no longer an enforceable contractual provision

covering out-of-scope work, and any such work fell outside of the

Contract. See id. at ¶ 37. Therefore, to the extent that the disputed

work and materials were originally subject to Section 4’s change

order requirement, the district court did not err by concluding that

MarkWest’s waiver of this section allowed Meridien’s unjust

enrichment claim to proceed.

¶ 108 Second, even absent MarkWest’s waiver, we cannot say that

the district court erred by concluding that the items in the Invoice

52 were not “consistent with the original terms and intent of th[e]

Contract” and therefore fell outside Section 4’s scope. A party may

recover for unjust enrichment if “substantial changes occur that are

not covered by the contract and are not within the contemplation of

the parties, and when the effect of such changes is to require extra

work or to cause substantial loss to one party.” Specialized Grading

Enters., Inc. v. Goodland Constr., Inc., 181 P.3d 352, 354-55 (Colo.

App. 2007); see also V.C. Edwards Contracting Co. v. Port of

Tacoma, 514 P.2d 1381, 1386 (Wash. 1973) (applying the same

principle and noting that “[t]he critical factor . . . is whether the

[party] should have discovered or anticipated the changed

condition”).

¶ 109 In Specialized Grading Enterprises, a subcontractor brought

an unjust enrichment claim for extra work, and “[t]he contractor

argued that the [extra work] was . . . expressly provided for in the

general contract,” and the contract’s change order procedure

provided “an adequate contractual remedy.” 181 P.3d at 355. A

division of this court reversed the directed verdict on the unjust

enrichment claim, reasoning that (1) the parties did not follow the

change order procedure; (2) the work the subcontractor performed

53 was the contractor’s responsibility; (3) “[t]he subcontractor could

not have reasonably anticipated that the contractor” would not

perform; and (4) “the contractor was aware of the problem and the

subcontractor’s efforts.” Id. at 356.

¶ 110 Here, the district court first found that Meridien’s slip work fell

outside the scope of Section 4. Like Specialized Grading

Enterprises, MarkWest’s internal response to Meridien’s letter

acknowledged that Meridien was not responsible for the slip work

that MarkWest directed it to perform, and William Schettine

testified that the work “had nothing to do with” the underlying

project.

¶ 111 Second, with respect to the roadwork, MarkWest’s internal

document suggested that Meridien should have included the work

in its bid or submitted a change order. However, the Contract was

executed on March 9, 2018, and testimony suggested that the

earliest conversations about potential out-of-scope roadwork began

in late March 2018. Therefore, the evidence indicated that this

work arose after the Contract was executed and could not have

been included in the bid. See Alderman, ¶ 37.

54 ¶ 112 Furthermore, the court found that Meridien’s work to “build,

grade, stone, and ditch” several miles of roads did not align with the

Contract’s original terms and intent. The Contract primarily

addressed Meridien’s duty to repair and maintain existing roads —

not build new roads — and MarkWest specifically asked Meridien to

complete the additional work, suggesting that it knew the work was

not within the Contract’s scope. There was also no testimony about

how this roadwork related to the underlying project.

¶ 113 Third, while the Contract contemplated unidentified foreign

lines and barred additional compensation for work related to such

lines, the evidence established that the number of lines was

unprecedented. In these circumstances, the district court could

reasonably conclude that neither the Contract nor the parties

contemplated the extent of these unidentified lines. See Specialized

Grading Enters., 181 P.3d at 354-55; see also French, ¶ 25 (“In

interpreting a contract, our primary goal is to give effect to the

parties’ intent.”). Moreover, MarkWest was responsible for

identifying the lines, and Meridien could not have reasonably

anticipated that it would fail to identify more than fifty lines

55 (including those belonging to MarkWest). See Specialized Grading

Enters., 181 P.3d at 356.

¶ 114 Finally, there was evidence that the parties could not have

reasonably anticipated the unprecedented rain and adverse weather

events that created unforeseen environmental work. See id. at 354-

56. While the Contract contemplated the need for additional ECDs,

the weather events created a substantial change that required

significant additional work. See id. at 354-55. Seeking to effectuate

the parties’ intent, the district court could reasonably have

interpreted the Contract’s broad language about a potential need for

more environmental controls as not encompassing multiple severe

storms and record amounts of rain. See French, ¶ 25.

¶ 115 And while there was conflicting testimony about what the

parties viewed as included in the Contract’s scope, we defer to the

district court’s findings on witness credibility and conflicting

testimony. See In re Estate of Owens, 2017 COA 53, ¶ 22. In short,

the evidence supported the district court’s factual findings. See

Laughlin, ¶ 11. And we cannot say that the court erred by

concluding that Meridien’s unjust enrichment claim could proceed

under the enumerated exceptions. See Alderman, ¶ 37.

56 D. The Prejudgment Interest Rate

¶ 116 “[T]he remedy for unjust enrichment is payment of the value of

the benefit conferred, otherwise known as restitution.” Air Sols.,

Inc. v. Spivey, 2023 COA 14, ¶ 104. The United States Supreme

Court has recognized that, while a wrongdoer should not profit from

wrongdoing, “the wrongdoer should not be punished by ‘pay[ing]

more than a fair compensation to the person wronged.’” Liu v. Sec.

& Exch. Comm’n, 591 U.S. 71, 80 (2020) (alteration in original)

(citation omitted). Therefore, a party entitled to restitution for

unjust enrichment can generally recover “restitution in the amount

of enrichment received, . . . [which] is often, but not always,

coextensive with the [entitled] party’s loss.” Sterenbuch v. Goss, 266

P.3d 428, 437 (Colo. App. 2011) (citation omitted); see also Maupin

v. Syrian Arab Republic, 405 F. Supp. 3d 75, 89 (D.D.C. 2019)

(noting that an award of prejudgment interest must “not

overcompensate a plaintiff”) (citation omitted).

¶ 117 Divisions of this court have held that a party that prevails on

an unjust enrichment claim is entitled to prejudgment interest. See

Murdock v. Cohen, 762 P.2d 691, 693 (Colo. App. 1988) (citing § 5-

57 12-102(3), C.R.S. 2024); M.G. Dyess, ¶¶ 36-37. However, these

divisions applied the statutory interest rate applicable when there is

no agreement as to a specific interest rate. See Murdock, 762 P.2d

at 693; M.G. Dyess, ¶¶ 35-36. The Restatement (Third) of

Restitution & Unjust Enrichment § 53 cmt. e (Am. L. Inst. 2011),

contemplates a similar approach, suggesting that courts apply the

statutory prejudgment interest rate or, absent a statutory rate, “the

rate that most closely reflects the value to the defendant of the

interim use of the claimant’s funds.”

¶ 118 After the district court awarded Meridien restitution and

prejudgment interest of “1.5% per month (18% per annum),”

MarkWest filed a C.R.C.P. 59(a) motion, requesting an interest rate

of 8%, pursuant to section 5-12-101, C.R.S. 2024, rather than the

Invoice’s 18% interest rate. In an amended judgment, without

explaining its reasoning, the court reiterated Meridien’s entitlement

“to prejudgment interest at a rate of 18% per annum . . . from

December 6, 2018, to entry of judgment.”

¶ 119 On appeal, MarkWest contends that the district court’s finding

for Meridien on its unjust enrichment claim (i.e., a claim not

58 premised on an underlying agreement) necessarily supports the

conclusion that the parties did not agree to the Invoice’s interest

rate; therefore, the statutory rate should apply. Meridien responds

that MarkWest agreed to the Invoice’s interest rate because other

Meridien invoices, which MarkWest paid “without objection,”

reflected the same rate.8

¶ 120 To support its argument, Meridien cites a case in which a

division of this court concluded that evidence of “more than fifty

invoices” submitted over multiple years and all containing an 18%

interest rate was sufficient evidence of a “course of dealing” such

that the jury could conclude that the invoices’ interest rate “was

included in the parties’ agreement.” Murray Equip. Co. v. Curtis,

Inc., 725 P.2d 35, 38 (Colo. App. 1986). But Murray is

distinguishable from the circumstances here. First, Meridien cites

no evidence suggesting that its relationship with MarkWest was as

long (or involved as many invoices) as in Murray. See id.

8 Beyond the Invoice at issue, we identified three mentions of an

18% interest rate in the record: two other invoices and one letter from Meridien.

59 ¶ 121 Second, the award in Murray included breach of contract

damages and “interest under the contract.” Id. at 37-38. Here,

Meridien’s restitution award was explicitly not “under the contract”

and did not arise from a contractual claim. The basis for the award

in Murray was the contract, and the division concluded that the

interest rate was part of that agreement. Id. at 38. Here, the

Contract was not the basis for the award, nor did the district court

find that the Invoice created a new contract or that the Invoice’s

interest rate became part of the Contract. In short, the court could

not award restitution based on the lack of an agreement but then

conclude that the parties had an agreement as to the interest rate

applicable to the restitution awarded.

¶ 122 For the foregoing reasons, we conclude that Meridien was

entitled to the statutory interest rate of 8% per year, not the 18%

interest rate in the Invoice. See § 5-12-101; § 5-12-102(1)(b). This

conclusion aligns with the Restatement’s and other divisions’

applications of the statutory interest rate to unjust enrichment

claims. See Murdock, 762 P.2d at 693; Restatement (Third) of

Restitution & Unjust Enrichment § 53 cmt. e. Applying the lower

interest rate also supports an award that is “coextensive with

60 [Meridien’s] loss,” Sterenbuch, 266 P.3d at 437 (citation omitted),

and avoids overcompensating Meridien. See Maupin, 405 F. Supp.

3d at 89.

¶ 123 Therefore, we remand to the district court to (1) correct the

judgment to reflect an 8% interest rate on Meridien’s restitution

award; and (2) recalculate the interest owed accordingly.

IV. Disposition

¶ 124 The judgment is affirmed in part and reversed in part with

instructions to the district court to correct the final judgment’s

interest rate applicable to Meridien’s unjust enrichment award.

JUDGE GOMEZ and JUDGE LUM concur.