Yale v. AC Excavating, Inc.

2013 CO 10, 295 P.3d 470, 2013 WL 441895
CourtSupreme Court of Colorado
DecidedFebruary 4, 2013
DocketSupreme Court Case No. 10SC709
StatusPublished
Cited by3 cases

This text of 2013 CO 10 (Yale v. AC Excavating, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yale v. AC Excavating, Inc., 2013 CO 10, 295 P.3d 470, 2013 WL 441895 (Colo. 2013).

Opinion

JUSTICE MARQUEZ

delivered the Opinion of the Court.

T 1 In this case, we address whether funds received by a limited liability company from one of its members to capitalize the company must be held in trust for the payment of subcontractors, laborers, and material suppliers under Colorado's construction trust fund statute, section 38-22-127, CRS. (2012). We conclude that the LLC member's voluntary injection of capital into the company in this case did not constitute "funds disbursed to [a] contractor ... on [a] construction project" under section 38-22-127(1), CRS. (2012), and, therefore, such money was not required to be held in trust under that provision. Because such funds were not required to be held in trust, the court of appeals erred in remanding the case for further proceedings to determine whether the petitioner, a member and manager of the LLC, is civilly liable for theft under sections 38-22-127(5), 18-4-401, and 18-4-405, C.R.S. (2012), for using the funds to pay other corporate obligations rather than paying the respondent subcontractor in full for the work it did for the LLC. We therefore reverse the judgment of the court of appeals.

I.

T2 Antelope Development, LLC (the "LLC") was formed in the late 1990s for the purpose of developing and operating the Antelope Hills subdivision, a residential golf course community near Bennett, Colorado. To finance the construction of the residential development and golf course, the LLC received construction loans from First National Bank and, later, Horizon Bank. By 2005, [473]*473however, the LLC had exhausted its construction financing and was in financial dire straits.

{3 In 2006, the LLC entered into oral agreements with Respondent AC Exeavating, Inc., for excavation work on a golf course retention pond and for remedial grading work on several Antelope Hills residential lots owned by the Coxsey family. AC Exea-vating completed work on both the pond and Coxsey projects, The LLC paid AC Exea-vating $150,000 of the $190,680.80 invoiced for the pond project, and nothing on the $7,707.50 invoiced for the Coxsey Project. AC Exeavating's unpaid invoices totaled $48,387.80.

T 4 Petitioner Donald A. Yale, a member of the LLC, became the sole manager of the LLC on June 30, 2006. At that time, the LLC's single bank account contained about $100,000. Realizing that the LLC had insufficient funds to meet its obligations, Yale voluntarily deposited a total of $157,5001 of his own money into the LLC's account in several installments. He testified at trial that these personal funds were "survival loans" made in an attempt to keep the LLC in business. In his discretion as manager, Yale then applied these funds to the LLC's general business expenses and some of the outstanding subcontractor invoices. _ Although Yale used some of these "survival loan" proceeds to pay AC Excavating (as well as other subcontractors), AC Excavating was not paid in full.

[ 5 Yale gave up on the LLC in late 2006. Thereafter, AC Excavating sued Yale,2 alleging, among other things, that the LLC violated Colorado's construction trust fund statute, section 88-22-127(1), by failing to hold the funds in the LLC's bank account in trust for payment to AC Excavating and instead using those funds for other purposes. AC Excavating further alleged that Yale thereby had committed theft, permitting it to claim treble damages, attorney fees, and costs against Yale under the Rights in Stolen Property statute, section 18-4-405.

16 Following a one-day bench trial, the trial court issued a detailed written order and entered judgment for Yale. Relevant here, the trial court noted that AC Execavat-ing asserted for the first time at trial that the $157,500 in personal funds that Yale voluntarily deposited into the LLC's account constituted the corpus of a trust subject to the obligations of section 38-22-127(1).3 The trial court held that, even assuming the argument was properly raised, the LLC was not required to hold the $157,500 in trust under section 38-22-127. Based on the evidence presented at trial, including Yale's undisputed testimony, the trial court concluded that these funds were not disbursed on a construction project but instead were a "survival loan" to capitalize a struggling company:

Even assuming AC Excavating could properly advance this assertion [regarding Yale's $157,500 voluntary deposit] for the first time at trial, the Court refuses its invitation to extend C.R.S. § 88-22-127 to such funds. An investor or lender, who is under no current obligation to fund a developer, has the right to dictate the terms of the funds provided. If he is also serving as manager, how that new investment is used should be within his sole discretion. Any contrary result would provide an incentive to business managers to abstain from investing additional funds into struggling development companies in order to salvage them.
[474]*474The $157,500 funds Mr. Yale deposited into the [LLC] account ... were not part of a construction loan or a loan for a construction project. Rather, they were part of a survival loan to attempt to salvage a struggling company.

T7 The trial court also rejected AC Excavating's theft claim, finding that "no evidence was presented that Mr. Yale intended to exercise control over anything of value, or intended to intentionally deprive AC Exea-vating of money." See § 18-4-401(1)(a), C.R.S. (2012) (providing that "[al person commits theft when he knowingly obtains or exercises control over anything of value of another without authorization" and "[iJntends to deprive the other person permanently of the use or benefit of the thing of value"). To the contrary, the trial court reasoned, the testimony and exhibits reflected that Yale "did just the opposite when he deposited the $157,500 into [the LLC's] general operating account in an effort to extend [the LLC's] life and provide some measure of reimbursement to creditors like AC Excavating in this case." The trial court concluded that Yale could not be held personally liable for the LLC's debt to AC Excavating.

T 8 The court of appeals reversed, holding that Yale's loans fell within the scope of the statute because section 88-22-127(1) "encompasses all funds disbursed on a construction project." - AC Excavating, Inc. v. Yale, No. 09CA2184, 297 P.3d 937, 2010 WL 3432219, at *8 (Colo.App. Sept. 2, 2010). It concluded that the trial court erred in relying on Yale's stated intent for the use of the money. - Id. at 940-41, at *4. Relying on Flooring Design Associates, Inc. v. Novick, 923 P.2d 216 (Colo.App.1995), the court of appeals observed that a subcontractor "need not show that the disburser of the funds specifically intended that a trust be created; nor need it show that the disburser intended the disbursements to be allocated for the payment of subcontractors." AC Excavating, 297 P.3d at 940, 2010 WL 3432219, at *4 (citing Novick, 923 P.2d at 220). Therefore, the court of appeals reasoned, the trust fund statute applies "irrespective of the disbur-ser's intended use for the funds." _ Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Fuller v. Clasby
D. Colorado, 2024
Calderon v. American Family Mutual Insurance Co.
2014 COA 70 (Colorado Court of Appeals, 2014)
Byerly v. Bank of Colo.
411 P.3d 732 (Colorado Court of Appeals, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
2013 CO 10, 295 P.3d 470, 2013 WL 441895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yale-v-ac-excavating-inc-colo-2013.