author: Judge KAPELKE.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Terry S. DASHNER, Defendant-Appellant.
    No. 00CA1958.
    Colorado Court of Appeals, Div. IV.
    Feb. 27, 2003.
    Rehearing Denied April 24, 2003.
    Certiorari Denied Sept. 22, 2003.

      Ken Salazar, Attorney General, John T. Bryan, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Kathy Goudy, Carbondale, Colorado, for Defendant-Appellant.

       Justice KOURLIS and Justice RICE would grant as to the following issues:
      Whether the court of appeals erred when it concluded that a trial court may not deem a motion to suppress evidence abandoned or waived when a criminal defendant chooses not to appear for the hearing.
      Whether the court of appeals erred when it concluded that the trial court should have considered defendant's suppression motion in absentia when he declined to appear for the hearing.

   Opinion by

Judge KAPELKE.

Defendant, Terry S. Dashner, appeals the judgment of conviction entered upon a jury verdict finding him guilty of one count of aggravated robbery and three counts of menacing with a deadly weapon. We remand for a hearing on defendant's motions to suppress.

According to the prosecution's evidence, in July 1999, defendant entered an insurance ageney office and robbed the occupants at gunpoint. At the time, defendant was wearing black clothing, gloves, and a bandana, which covered his face. Several bystanders alerted a nearby police officer of defendant's suspicious appearance and indicated that he was inside the insurance office. The officer arrived as defendant was leaving the office. Following a brief chase, during which defendant discarded the bandana, as well as a cocked and loaded gun, the officer arrested defendant. The police discovered in defendant's pocket the cash and check he had taken from the office.

At trial, defendant testified that on the morning of the incident he had consumed some tea, which so impaired his mental capacity that he was unable to remember the robbery or anything else that occurred that day prior to his arrest.

I. Juror Challenges

Defendant first contends that the trial court erred in denying his request to excuse two jurors for cause. We disagree.

The trial court must sustain a challenge for cause to a prospective juror who has a state of mind evincing enmity or bias toward the defendant. However, no potential juror shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused if the court is satisfied, from examination of the juror, that he or she will render an impartial verdict according to the law and the evidence submitted to the jury at the trial, Section 16-10-108(1)(), ©.R.8.2002.

We review a trial court's ruling on a challenge for cause to a prospective juror under an abuse of discretion standard. Carrillo v. People, 974 P.2d 478 (Colo.1999). Because the trial court is in the best position to view the demeanor of a juror claiming impartiality, we will overturn its determination on appeal only if the record affirmatively demonstrates that the court abused its discretion. People v. Christopher, 896 P.2d 876 (Colo.1995).

In ascertaining whether the trial court abused its discretion in ruling on a challenge for cause, we must review the entire voir dire of the prospective juror. Also, a reviewing court generally should not see-ond-guess the trial court's determinations in this regard based on a cold record. Carrillo v. People, supra. The deference accorded the trial court's rulings extends to its evaluation of inconsistent or self-contradietory statement of prospective jurors. Morrison v. People, 19 P.3d 668 (Colo.2000).

A.

Defendant argues that one of the potential jurors should have been excluded for cause because his son's house had recently been broken into and the potential juror was uncertain as to the effect of that incident on his ability to be impartial in this case. We disagree. *

The juror initially expressed his uncertainty during questioning by the court and defense counsel. After defendant requested that the prospective juror be excluded for cause, the court posed additional questions:

[THE COURT]: ... the question that we need to answer here and I realize that you don't know how you're going to react in this situation but can you, in spite of your prior incident that you had, will you base your decision in this case on the evidence you hear in this matter?
[PROSPECTIVE JUROR]: That's what I say I would want to do.
[THE COURT]: Do you think you can do that?
[PROSPECTIVE JUROR]; It may be that I should be able to do that. I would say that but ...
[THE COURT]; Would you agree to follow my instructions on the law?
[PROSPECTIVE JUROR]: I would try sir,. I know exactly what we're doing here.
[THE COURT]: If you felt that the evidence did not establish this defendant's guilt of these charges beyond a reasonable doubt, would you be able to return verdicts of not guilty in spite of what happened to you and your family?
[PROSPECTIVE JUROR]: If there was not enough evidence, yes.

The court denied the challenge for cause, and defendant used one of his peremptory challenges to exclude the juror.

The trial court determined that the juror would be willing and able to follow the court's instructions and decide the case based on the evidence presented at trial. The juror's answers to the court sufficiently support the determination, and the record does not affirmatively demonstrate that the court's ruling was an abuse of discretion. We therefore find no basis for reversal.

B.

Defendant next argues that a juror should have been removed for cause because she had relatives in law enforcement and, as a former forensic psychologist, had had contact with the criminal justice system. We reject the contention.

Although the prospective juror expressed some doubt whether she could set aside her sympathy for law enforcement, her statements in voir dire indicated that she could serve as a fair and impartial juror. We thus find no error.

II. Suppression Motions

Defendant next contends that the trial court erred in ruling that his failure to appear at the suppression hearing resulted in an abandonment of his pretrial suppression motions. We agree and conclude that a remand is necessary.

Defendant filed two pretrial motions to suppress. The first sought suppression of all evidence or statements stemming from the officer's stop, questioning, search, and arrest of defendant. Defendant argued that because the police officer lacked reasonable suspicion to detain him and probable cause to arrest him, his rights under the Fourth Amendment of the United States Constitution and article II, § 7 of the Colorado Constitution were violated. He also argued that his statements made to law enforcement officers were unconstitutionally obtained as a result of custodial interrogation before he was advised pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Defendant's second motion sought suppression of any identification of him at trial by prosecution witnesses. He argued that the one-on-one showups were unduly suggestive and violated his due process rights under the Fourteenth Amendment and article II, § 25 of the Colorado Constitution.

Defendant failed to appear at the suppression hearing, and the court vacated the hearing. At a later hearing, defendant's attorney advised the court that defendant had forgotten about the suppression hearing. Thereafter, defendant's mother testified that defendant had been with friends on the day of the suppression hearing and that she did not know why he had not appeared. The trial court ruled that defendant's motion to suppress had been abandoned as a result of his failure to appear, which the court described as "basically unexplained."

The People rely, as did the trial court, on People v. Ulibarri, 671 P.2d 1325 (Colo.App.1983), in which a division of this court held that by voluntarily leaving a suppression hearing before it was concluded, the defendant impliedly waived the issues raised in the motion to suppress. That case is factually distinguishable from the situation here. While the defendant in Ulibarri intentionally left the courtroom during the hearing, the record here does not demonstrate that defendant's absence was deliberate.

Courts in other jurisdictions have held that even where a defendant unjustifiably fails to appear at a suppression hearing, he or she does not thereby abandon the right to object to the admission of evidence unconstitutionally obtained. State v. Canty, 278 N.J.Super. 80, 650 A.2d 391 (App.Div.1994)(where defendant escapes during pendency of motion to suppress, court should either postpone hearing or proceed in absentia). Further, while a defendant's failure to appear at a suppression hearing may result in a waiver of the right to be present at the hearing, the defendant's absence does not empower the trial court to refuse to hold a hearing on the motion or address the issues on the merits. People v. Logan, 271 A.D.2d 549, 708 N.Y.S.2d 411 (2000); People v. Whitehead, 143 A.D.2d 1066, 533 N.Y.S.2d 753 (1988); State v. Fox, 165 Or.App. 289, 995 P.2d 1193 (2000); State v. Desirey, 99 Or.App. 283, 782 P.2d 429 (1989). We agree with that analysis and those holdings.

As the court pointed out in State v. Canty, supra, 650 A.2d at 393, "A motion to suppress resolves questions pertaining to the admissibility of evidence. Even where the defendant unjustifiably fails to appear and the trial proceeds without him, the rules of evidence and constitutional protections are not thereby suspended."

To the extent that People v. Ulibarri, supra, can be read to hold that a defendant's failure to attend a suppression hearing automatically triggers an abandonment of the right to seek exclusion of or object to the challenged evidence, we decline to follow it.

In addition to People v. Ulibarri, supra, the People rely on People v. Abbott, 638 P.2d 781 (Colo.1981), and People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974), which hold that a defendant implicitly waives a preliminary hearing by failing to appear after having received notice of the hearing.

However, as Justice Blackmun stressed in his dissenting opinion in Gannett Co. v. DePasquale, 443 U.S. 368, 437, 99 S.Ct. 2898, 2935, 61 L.Ed.2d 608 (1979), a case involving the right to public trial, preliminary hearings "are not critical to the criminal justice system in the way the suppression-of-evidence hearing is and they are not close equivalents of the trial itself in form."

Further, there is no indication in the record that any testimony by defendant was critical to the presentation or resolution of the motions to suppress. Under these circumstances, had the court determined that defendant had waived the right to be present, the court could have heard and decided the motions on the merits despite defendant's absence.

Because we conclude that the trial court erred in holding, on this record, that defendant had abandoned the motions to suppress, we conclude that a remand is required for a hearing on the motions. See State v. Fox, supra, 995 P.2d at 1196. If the trial court denies the motions, the judgment shall stand affirmed. If either motion is granted, defendant shall receive a new trial.

III. Closing Arguments

Defendant next contends that the prosecutor's closing arguments exceeded the limits of proper advocacy and undermined the fundamental fairness of his trial. We disagree.

While counsel may draw from the evidence reasonable inferences as to witness credibility and point to cireumstances casting doubt on a witness's testimony, it is improper for counsel to express a personal belief as to the truth or falsity of the testimony. Wilson v. People, 743 P.2d 415 (Colo.1987); People v. Kerber, 64 P.3d 930, 2002 WL 31600882 (Colo.App. No. 01CA1173, Nov. 21, 2002).

A prosecutor's assertion of this type of personal opinion poses two distinct dangers:

[I] such comments can convey the impression that evidence not presented] to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury; and [2] the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence.

Wilson v. People, supra, 743 P.2d at 418-19 (quoting United States v. Young, 470 U.S. 1, 18-19, 105 S.Ct. 1038, 1048, 84 L.Ed.2d 1 (1985)).

Claims of improper argument must be evaluated in the context of the argument as a whole and in light of the evidence before the jury. People v. Kerber, supra. The determination whether closing argument is improper is a matter committed to the discretion of the trial court. People v. Shepherd, 43 P.3d 693 (Colo.App.2001). Accordingly, the trial court's ruling will not be disturbed on review in the absence of an abuse of discretion. Dunton v. People, 898 P.2d 571 (Colo.1995); People v. Fernandez, 883 P.2d 491 (Colo.App.1994).

A.

Defendant argues that the prosecutor improperly expressed her opinion as to his veracity. We disagree.

In her rebuttal, the prosecutor compared defendant's testimony about blanking out after drinking tea to a young boy's breaking a window and then, while holding a baseball glove and bat, telling his parents that he drank Kool-Aid earlier in the day and therefore does not recall anything, including what happened to the window. The prosecutor stated, "Little Johnny is lying. And what does that tell you in this case? Terry Dash-ner lied. He lied to you when he took the stand."

Defendant objected to the comments, and the trial court overruled the objection, stating, "I think it's a reasonable comment on the evidence that was presented."

Neither of the dangers discussed in Wilson v. People, supra, is implicated here. The comments do not suggest that the prosecutor had formed an opinion of guilt based on evidence not presented at trial, nor do they purport to carry the imprimatur of the government. Rather, the statements merely served to highlight for the jury the prosecution's argument that defendant's testimony about drinking tea and blanking out was unbelievable.

As the division pointed out in People v. Kerber, supra, other courts have held that a prosecutor's use of the words "lie" or "liar" is not per se prosecutorial misconduct. See also United States v. Hernandez-Muniz, 170 F.3d 1007, 1012 (10th Cir.1999). The Kerber division also cited with approval Clayton v. State, 765 A.2d 940 (Del.2001), in which the court concluded that a prosecutor may refer to statements or testimony as a "lie" "(1) if one may legitimately infer from the evidence that the statement is a lie, and (2) if the prosecutor relates the argument to specific evidence that tends to show the testimony or statement is a lie." People v. Kerber, supra, 64 P.3d at 934.

In making the comments concerning defendant's credibility here, the prosecutor pointed to specific evidence that refuted defendant's account concerning the effects of the tea. The prosecutor highlighted the testimony of other witnesses who had been with defendant throughout the day and had seen nothing unusual in his appearance or behavior. Thus, it could be legitimately inferred from the evidence that defendant's account was untrue, and the prosecutor's remarks were related to specific evidence supporting that assertion. See People v. Merchant, 983 P.2d 108, 115 (Colo.App.1999)(prosecutor's statement in closing argument-"I. think the evidence is clear that [defendant] is guilty, and I'd ask you to return ... with that verdict"-held to be proper comment on the evidence and reasonable inferences to be drawn from it).

Under the cireamstances, we find no abuse of discretion warranting reversal here.

B.

Defendant also contends that the prosecutor's references to him as "amnesia boy" and to the tea he allegedly drank as "magical tea" or "gross tea" so denigrated defendant and his theory of defense that justice requires reversal or a new trial. We perceive no basis for reversal.

Because defendant made no contemporaneous objection to these statements, we review them for plain error. See Wilson v. People, supra. Under the plain error standard, reversal is required only if, after examining the record, the reviewing court may say with fair assurance that the prosecutorial misconduct so undermined the basic fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. Wilson v. People, supra; People v. Kerber, supra.

In closing argument, a prosecutor may employ rhetorical devices and engage in oratorical embellishment and metaphorical nuance, so long as he or she does not thereby induce the jury to determine guilt on the basis of prejudice or passion, inject irrelevant issues or evidence into the case, or accomplish some other improper purpose. Harris v. People, 888 P.2d 259 (Colo.1995); People v. Hastings, 983 P.2d 78 (Colo.App.1998), aff'd sub nom. Gorman v. People, 19 P.3d 662 (Colo.2000).

While sarcasm and denigrating references are to be avoided by all counsel, we nevertheless find no reasonable likelihood that the prosecutor's comments here, evaluated in the context of the argument as a whole and in light of the evidence before the jury, affected the verdict or deprived defendant of a fair and impartial trial. See Harris v. People, supra.

We thus find no plain error regarding these statements.

IV. Witness Sequestration

Finally, defendant contends that the trial court erred in not granting a mistrial or imposing sanctions for an alleged violation of its witness sequestration order. We disagree.

"The purposes of a sequestration order are to prevent a witness from conforming his [or herl testimony to that of other witnesses and to discourage fabrication and collusion." People v. Wood, 743 P.2d 422, 429 (Colo.1987). Determinations relating to alleged violations of sequestration orders are within the trial court's discretion, and reversal is not required absent a finding of abuse of that discretion. People v. Wood, supra; People v. Gomez, 632 P.2d 586 (Colo.1981). To demonstrate an abuse of discretion, the defendant must show prejudice resulting from the trial court's ruling. People v. Scarlett, 985 P.2d 36 (Colo.App.1998).

Here, defendant's mother testified that, while sitting outside the courtroom, she saw law enforcement witnesses discussing their testimony and sharing among themselves what appeared to be a report.

The record does not indicate that defendant suffered any prejudice from this alleged violation of the sequestration order, We therefore find no abuse of discretion.

The case is remanded for a hearing on defendant's pretrial motions to suppress. If the court grants either or both motions, the judgment of conviction will be vacated, and defendant will be granted a new trial. If the court denies both motions, the judgment will stand affirmed, subject to any appeal of the ruling on the motions to suppress.

Judge ROTHENBERG and Judge DAILEY concur.


source: Caselaw Access Project

author: Judge JONES.

license: Public Domain

text:
    Alfred T. WHATLEY and Mary Siekman, Plaintiffs-Appellants, v. SUMMIT COUNTY BOARD OF COUNTY COMMISSIONERS, Gary M. Lindstrom, Tom Long, William Wallace, their predecessors Joe Sands and Marsha Osborne and their successors; Summit County Upper Blue Planning Commission, Bobby Craig, Verna Enyeart, Leigh Girvin-Yule, Randy Griffin, Dawn Smith, Jim Stover and Mike Turek and their successors, all individually and in their capacity as members of said commissions; Brian Peters, individually and in his capacity as former Summit County Planning Director and any successors; Bud & Dot, L.L.L.P., a Colorado Limited Partnership; Gary Carlston and Nancy Carlston, Defendants-Appellees.
    No. 01CA2293.
    Colorado Court of Appeals, Div. I.
    March 13, 2003.
    Rehearing Denied May 1, 2003.
    Certiorari Denied Oct. 6, 2003.

      Susan Morath Horner, Boulder, Colorado, for Plaintiffs-Appellants.
    Hall & Evans, LLC., Josh A. Marks, Melanie B. Lewis, Denver, Colorado, for Defendants-Appellees, Summit County Board of County Commissioners and it members, Summit County Upper Blue Planning Commission and its members, and Brian Peters.
    Berg Hill Greenleaf & Ruscitti, L.L.P., George V. Berg, Jr., Heidi C. Potter, Boulder, Colorado, for Defendants-Appellees Bud & Dot L.L.L.P., Gary Carlston, and Naney Carlston.

       Justice KOURLIS would grant as to the following issues:
      Whether the Planned Unit Development Act of 1972 properly can be interpreted to require the consent of owners of property within the planned unit development ("PUD") only as to the initial designation of the PUD, but not to any amendments.
      Whether an amendment to a PUD in 1995 added an additional unit of density and was, therefore, a "major amendment" as that term is defined under the Summit County Land Use Code, thereby requiring notice and an opportunity to be heard.

   Opinion by

Judge JONES.

In this action, for relief under 42 U.S.C. § 1983, and for declaratory and injunctive relief under C.R.C.P. 57 and 65, plaintiffs, Alfred T. Whatley and his wife, Mary Siek-man (the Whatleys), appeal the summary judgment entered against them and in favor of all defendants, the Summit County Board of County Commissioners and its members, Summit County Upper Blue Planning Commission and its members, and Director of Planning Brian Peters (the county defendants); and Bud & Dot, LL.L.P., and Gary and Naney Carlston (the Carlston defendants). We affirm in part, reverse in part, and remand.

The underlying dispute concerns the development process for approximately 480 acres of land in Summit County. The land, known as the Whatley Ranch, is within a few miles of the town of Breckenridge.

In 1965, Alfred T. Whatley received fee title to the entire tract of land, and in 1987, as the owner and developer of the ranch, Whatley applied for and was granted approval for the rezoning of the ranch from an agricultural status to a planned unit development (PUD). The PUD did not approve extensive development on the land, but merely created separate lots for the three existing log cabins on the ranch. Each of two newer cabins was given its own lot (lots one and two), which together with lot three, containing the original homestead house, made up the remainder of the PUD.

In 1989 and 1990, Whatley obtained amendments to the PUD. By 1990, the net result of the changes was to establish new lot lines on the ranch. Lots one and two remained with their existing structures, and another small, undeveloped lot was created, allowing the addition of one single family home. The cluster of the three small lots became known as the Whatley Reserve. The remainder of the ranch, 475 acres, contained the original homestead house. Thus, the entire ranch was approved to contain four residential units.

As part of a personal bankruptcy proceeding in 1998, the Whatleys sold the entire tract of land to a third party, except that they reserved a life estate for themselves in lot one of the Whatley Reserve, where they continued to live.

Soon after the sale, the Whatleys filed suit against the third party, alleging a number of claims related to the sale of the land. As part of the lawsuit, the Whatleys filed a notice of lis pendens, clouding title to the ranch. During the pendency of the lawsuit, the Carlston defendants began negotiating with the third party for the purchase of Whatley Ranch, but the sale could not be closed until title was cleared of the lis pen-dens.

In 1995, to facilitate their purchase of the ranch, the Carlston defendants entered into a settlement agreement with the Whatleys and the third party. As relevant here, the parties agreed that the lis pendens would be released, clearing the title to the land; the Cariston defendants would pay the Whatleys $50,000 and convey to them fee title to lot one of the Whatley Reserve; and the Car-stons would have the right to submit the Whatleys' lot one to rezoning.

In addition, the parties agreed that the Carlstons would pay the Whatleys an additional amount for the sale of the ranch in the event that the Carlstons obtained a rezoning of the land in excess of twenty-four lots; Whatley agreed to execute, at the Carlstons' request, a letter indicating that he consented to the resubdivision of the ranch into ten additional residential units or home sites; and the Whatleys granted the Carlston defendants the option to purchase lot one of the ranch if the Whatleys should choose to sell it, or both died, whichever came first.

Both in 1995, before the Carlston defendants had completed purchase of the ranch, and in 1996, after the Carlstons had purchased the ranch under their new business entity, Bud & Dot, LLLP., and had transferred title to lot one to the Whatleys, the Carlston defendants applied for and received county approval for amendments to the Whatley Ranch PUD. The amendments changed lot lines, increased the number of permitted home sites, and altered several other aspects of the ranch.

The Whatleys were not aware of these amendments until 1997. In 1999, they initiated this action in the trial court. In their amended complaint, the Whatleys' first claim sought injunctive relief under C.R.C.P. 106, alleging that county officials had acted outside the scope of their authority in approving the amendments; their second claim sought damages and attorney fees under 42 U.S.C. § 1983, alleging generally that the defendants' failures to obtain the Whatleys' consent or give them notice of the PUD amendments violated the Whatleys' rights to procedural due process; and their third claim sought declaratory and injunctive relief under C.R.C.P. 57 and 65 for the allegedly improper manner in which the amendments were enacted.

The county defendants filed a motion for partial dismissal of the Whatleys' first and second claims for relief. The court granted the motion as to the Whatleys' first claim for relief under C.R.C.P. 106, and deferred ruling as to the second claim under. § 1988. The court's dismissal of the first claim for relief is not at issue here.

Because the parties had submitted matters outside the pleadings in support of and in response to the motion for partial dismissal, the court proceeded, pursuant to C.R.C.P. 12(c), to treat the motion as one for summary judgment and disposed of all the claims remaining against the county defendants as required by C.R.C.P. 56.

The Whatleys then filed a motion seeking partial summary judgment as to the § 1983 claim, and the Carlston defendants filed their own motion for summary judgment requesting judgment in their favor on all the What-leys' claims against them.

The court eventually decided all claims for relief as a matter of law, granting both the County defendants' and the Carlston defendants' motions for summary judgment and denying the Whatleys' motion for partial summary judgment.

I.

The Whatleys first contend that the trial court erred in denying their § 1983 claim and that the lack of notice to them before the 1995 and 1996 amendments were passed amounted to the deprivation of a constitutionally protected property interest without due process of law. We do not agree.

We conduct a de novo review of a trial court's grant of summary judgment. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251 (Colo.1995). Summary judgment is proper if the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c). In the context of summary judgment, a material fact is a fact that affects the outcome of the case. Keybank v. Mascarenas, 17 P.3d 209 (Colo.App.2000).

The moving party has the initial burden to show that the nonmoving party's case is not supported by the evidence. Once the moving party meets its initial burden, the burden shifts to the nonmoving party to establish that there is a triable issue of fact. Civil Serv. Comm'n v. Pinder, 812 P.2d 645 (Colo.1991). To meet its burden, the nonmoving party must present specific facts establishing a genuine issue for trial; simply relying on allegations from the pleadings is not enough. C.R.C.P. 56(e). If the court has any doubts concerning the absence of disputes over material facts, the court must resolve its doubts against the moving party. Elm Distribs., Inc. v. Tri-Centennial Corp., 768 P.2d 215 (Colo.1989).

To state a claim for relief under § 1988, plaintiffs must establish that they were deprived of a right recognized by the Constitution or laws of the United States and that the alleged deprivation was committed under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999); Hillside Cmty. Church v. Olson, 58 P.3d 1021 (Colo.2002).

"The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in 'property' or liberty"" Am. Mfrs. Mut. Ins. Co. v. Sullivan, supra, 526 U.S. at 59, 119 S.Ct. at 989. It is necessary to consider whether a property right has been identified, whether government action with respect to that property right amounted to a deprivation, and whether the deprivation, if one is found, occurred without due process of law. Hillside Cmty. Church v. Olson, supra.

A protected interest in property exists when a person has a legitimate claim of entitlement to the property. Bd. of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Ewy v. Sturtevant, 962 P.2d 991 (Colo.App.1998).

The parameters of protected property interests are largely established by state law. However, state laws establishing procedures related to the regulation of property cannot themselves create a protected property interest, as "there can be no property right in mere procedure." Hillside Cmty. Church v. Olson, supra, 58 P.3d at 1026. And a state's failure to follow its own procedural requirements "does not create a violation of constitutional proportions." Hillside Cmty. Church v. Olson, supra, 58 P.3d at 1027.

The Due Process Clause guarantees that the substantive rights of life, liberty, and property cannot be deprived without compliance with constitutionally adequate procedures; yet, "[the categories of substance and procedure are distinct." Thus, a protected property interest cannot be defined by "the procedures provided for its deprivation any more than can life or liberty." Hillside Cmty. Church v. Olson, supra, 58 P.3d at 1026.

Here, the Whatleys assert that state statutes and local ordinances that set forth the procedural requirements for enacting changes to land use status themselves established constitutionally protected rights to due process for the property owners both within and adjacent to the subject land.

The Whatleys' assertion and the facts and issues of this case are analogous to those addressed in the recent supreme court case of Hillside Community. Church v. Olson, supra. While Hillside did not involve a PUD, the court's holding broadly addresses the nature of property rights within the land use context and can be given full effect here. Therefore, the supreme court's decision controls our analysis.

In Hillside, the supreme court considered, for the first time, whether state Iaw procedural protections create a cognizable property right in the land use context and concluded that they did not.

The plaintiffs in Hillside owned residential property that bordered a church's property. The church began construction of an addition without obtaining a building permit and without requesting a special use permit, which was required because the structure would exeeed the zoning area's height limits.

The city eventually issued a building permit to the church, but not a special use permit. This error came to the city's attention after the addition was substantially complete, but the city attorney did not then require a special use permit to be obtained, nor did he revoke the building permit or require the addition to be modified or removed.

The church belatedly obtained a height variance for the structure, and the city issued a certificate of occupancy. The plaintiffs sued the city and the church, alleging, among other things, that the city's failure to hold a public hearing before issuing a special use permit for the addition to the church, as required by the municipal code, amounted to a deprivation of their due process rights and entitled them to relief under § 1983.

The supreme court stated that the plaintiffs had "no property right at issue in this case"; that they did not have a "preexisting entitlement" to the procedure; that "[al state procedural failure alone ... does not create a violation of constitutional proportions"; and that, while the failure to follow procedures did not rise to the level of a procedural due process claim, state law remedies were properly pursued. The court concluded: "[Wle hold that [the plaintiffs] did not have a cognizable property interest in their claimed right to notice of, and opportunity to participate in, a special use permit hearing...." Hillside Cmty. Church v. Olson, supra, 58 P.3d at 1025, 1027.

Similarly, here, to prove that a protected property interest existed and was violated without due process, the Whatleys rely on the Planned Unit Development Act of 1972 (PUD Act), §§ 24-67-1011 through -108, C.R.S.2002; §§ 30-28-116 and 31-28-8304, C.R.9.2002; and the Summit County Land Use and Development Code, §§ 12202.08(D) and 13508.01 through .03 (1988)(the development code), all of which establish procedures for the amendment of a PUD. We conclude that none of those provisions relates to a federally protected substantive property interest, and "there can be no property right in mere procedure." Hillside Cmty. Church v. Olson, supra, 58 P.3d at 1026.

Accordingly, we agree with the trial court's conclusion that the Whatleys have not met their burden to establish that they were deprived of a protected property right. See Civil Serv. Comm'n v. Pinder, supra. Having so concluded, we need not analyze the other elements of a § 1988 claim.

Thus, the trial court properly entered summary judgment denying the Whatleys' claim for relief under § 1983.

IL

The Whatleys next contend that the trial court erred in denying their claim that the Whatley Ranch PUD amendments are void because of defendants' failures to obtain the Whatleys' consent. The Whatleys argue that the PUD Act, specifically § 24-67-105, C.R.S.2002, requires that no PUD amendment can be enacted without the consent of all landowners within the PUD and that any amendment enacted without such consent is void. We do not agree.

Statutory interpretation is a matter of law. United Airlines, Inc. v. Indus. Claims Appeals Office, 993 P.2d 1152 (Colo.2000). If statutory language is clear and unambiguous, statutes are to be construed as written, giving the ordinary meaning and full effect to the words chosen. City of Lakewood v. Mavromatis, 817 P.2d 90 (Colo.1991). A court must interpret a statute as a whole to give a consistent, harmonious, and sensible effect to all of its parts. People v. Dist. Court, 713 P.2d 918 (Colo.1986).

Section 24-67-105, titled, "Standards and conditions for planned unit development," reads, in part:

Every resolution or ordinance adopted pursuant to [the PUD Act] article shall set forth the standards and conditions by which a proposed planned unit development shall be evaluated.... No planned unit development may be approved by a county or municipality without the written consent of the landowner[s] whose properties are included within the planned unit development.

Section 24-67-105(1), C.R.S.2002 (emphasis added).

In contrast, § 24-67-106, C.R.8.2002, titled "Enforcement and modification of provisions of the plan," provides, in part:

No substantial modification, removal, or release of the provisions of the plan by the county or municipality shall be permitted except upon a [specified] finding by the county or municipality, following a public hearing called and held in accordance with the provisions of section 24-67-104(1)(e). ...

Section 24-67-106(8)(b), C.R.9S.2002 (emphasis added).

Viewed as a whole, the statute's structure differentiates between the procedures for the initial creation of a PUD and the procedures for the subsequent enforcement and modification of an existing PUD. Plainly, § 24-67-105 requires that, before county "approval" of a PUD, all landowners within the "proposed" PUD consent to their inclusion. However, § 24-67-106 only requires notice and hearing, and not consent, before a "modification" may be enacted to an existing PUD. Because "it is presumed that the General Assembly meant what it clearly said," State v. Nieto, 993 P.2d 493, 500 (Colo.2000), § 24-67-106 necessarily governs the procedures for amending a PUD.

Hence, we agree with the trial court's conclusion that the Whatleys' consent was not required before an amendment to the What-ley Ranch PUD could be enacted. It is a separate question, however, whether the procedures required by § 24-67-106 were followed.

IIL

The Whatleys also contend that the trial court erred in granting summary judgment in favor of defendants because the PUD amendments are void based on the defendants' failures to provide proper notice of the proposed changes. We agree.

Section 24-67-106(8) of the PUD Act requires that, before an amendment may be approved, the provisions of § 24-67-104(1)(e), C.R.98.2002, must be followed. Section 24-67-104(1)(e) requires that the board designated to review PUDs hold at least one public hearing, in accordance with § 30-28-116 or § 81-23-8304, before making any decision on the proposed amendment.

According to § 30-28-116, a board of county commissioners may amend the characteristics of any type of zoning district. But before adoption of any such amendment, the board "shall hold a public hearing thereon, and at least fourteen days' notice of the time and place of such hearing shall be given by at least one publication in a newspaper of general cireulation in the county."

Similarly, according to § 31-28-3804, a municipality's governing body shall define the manner in which regulations and restrictions within a municipality's districts can be modified. Yet, no change shall become effective until there has been "a public hearing thereon in which parties in interest and citizens shall have an opportunity to be heard," and "[alt least fifteen days' notice of the time and place of such hearing shall be published in an official paper or a paper of general cireulation in such municipality."

Further, the county's development code, in § 12202.03(D), provides that PUD amendments "shall be reviewed and acted upon as a rezoning application, subject to the County's procedures for zoning amendments and to the requirements for findings under [§ 24-67-106(8)(b)] unless such amendment is determined to be minor in nature." The procedures for zoning amendments follow the requirements for all public hearings and are set forth in § 13500 of the development code. Section 18508.02(E) specifies that notices for public hearings shall include, among other things, "[hlearing, date, time and place." Section 18508.01 requires that whenever notice of a public hearing is required to be given, notice shall be published "at least onee in a newspaper of general circulation for the time period specified in section 13508.03," which is "at least 14 days prior to public hearings held by the Board of County Commissioners."

In addition to the general notice provision, § 13503.01(B)(2) sets forth special notice requirements for certain PUD modifications. It reads:

PUD Modifications: Written notice of the public hearing shall be delivered or mailed, first-class postage prepaid, at least fifteen days prior to the public hearing to adjoining landowners. Written notice as specified above shall also be sent to property owners within the PUD as follows:
a. Modifications where the impact is limited to the immediate area around a specified site and the overall intent of the PUD is not affected: To all property owners within 300 feet of the boundary of the site except the Community Development Director may extend the radius used for the noticing based on the nature of the proposal and its potential impacts.
b. Modifications where the impact is general within the PUD: To all property owners within the PUD.

When legislative authority is delegated to an inferior body with a restriction that it is to be exercised after notice to persons whose interests are affected, compliance with those notice requirements is a prerequisite to the lawful exercise of the delegated authority. Holly Dev., Inc. v. Bd. of County Comm'rs, 140 Colo. 95, 342 P.2d 1032 (1959); People v. Schaeffer, 100 Colo. 70, 65 P.2d 699 (1937). Hence, flaws in the prescribed notice procedure constitute "failures to comply with mandatory conditions precedent to the proper exercise of the power." Holly Dev., Inc. v. Bd. of County Comm'rs, supra, 140 Colo. at 103, 342 P.2d at 1037.

To be sufficient, a notice must set forth the information "reasonably necessary to provide adequate warning" to all persons whose rights may be affected by the proposed action. At a minimum, a notice must provide "the date, time, and place of the hearing and apprise the public of the subject matter of the hearing and the nature of the proposed zoning change." Hallmark Builders & Realty v. City of Gunnison, 650 P.2d 556, 559 (Colo.1982).

The interpretation of a zoning ordinance by an administrator and zoning body is entitled to deference. Nevertheless, a reviewing court is not bound by such a decision if there is no competent evidence to support it or if the decision misconstrues or misapplies the law. Anderson v. Bd. of Adjustment, 931 P.2d 517 (Colo.App.1996).

A.

In 1995, before the Carlstons' purchase of the ranch was complete, the Carlstons initiated an amendment to the Whatley Ranch PUD. The director of planning and the board of county commissioners treated the application as a "proposed minor modification" to the PUD; accordingly, no written notice regarding the pending modification was sent to any person connected with Whatley Ranch prior to the public hearing and the board's vote on the matter.

The 1995 amendment purportedly added no new density to the PUD which, since 1990, had approval for four units of density (three existing and one new). The amendment stated that its purpose was to vacate the lot lines for lot three, which contained a development right for one new single family residence, and to transfer that development right to the balance of the ranch. The amendment, thus, had the effect of increasing the density of the ranch because, at that time, the balance of the ranch had no right for new development, but was misinterpreted as having approval for one new single family residence. As a result, after the 1995 amendment, the What-ley Ranch PUD had county approval for the three existing residential units and two new units of development.

Further, the Whatleys were not aware that the 1995 amendment had been proposed or approved, even though Alfred T. Whatley's name had been listed as the "Owner/Developer" of the property on the "Planned Unit Development Designation" form, which appears to be an agreement to the amendment's terms by the "Owner/Developer" of the PUD and the board of county commissioners. Further, Alfred T. Whatley's name had been typed on that form in a manner that suggested his actual signature as "Owner/Developer" had appeared on an original document.

The development code, in § 12209.02, reads:

The Planning Director shall determine whether the proposed modification is considered major or minor in nature. For the purposes of a PUD review, a proposed amendment is considered minor upon a determination by the Planning Director that the proposed amendment is not substantial and conforms to the intent and integrity of the original planned development unit, that no increase in total number of units or commercial square footage or new use is requested and no decrease in open space is requested.

In addition, § 12209.05 sets forth the standards for approving PUD modifications. Before the approval of any amendment, the board of county commissioners must make several findings about the impact of the proposed modification. However, in order to make a minor PUD modification, which does not require public notice or hearing, the board also must find that the proposed amendment is "not substantial and conforms to the intent and integrity of the original planned unit development, that no increase in total number of units or commercial square footage or new use is requested and no decrease in open space is requested." Summit County Land Use and Development Code, § 12209.05(D).

Here, when the director of planning reported the proposed 1995 amendment to the board, the Whatley Ranch PUD was misinterpreted as having been approved for an additional unit of development. This mistake apparently occurred because the Carlston defendants' letter that accompanied the application for the amendment so characterized the status of the land.

It is unclear when, why, or how the misinterpretation of the status of the Whatley Ranch PUD occurred. Moreover, it is unclear whether the misinterpretation, which, in effect, increased the total number of units approved for the PUD, making it a major modification, could have triggered the development code's notice requirements.

When this mistake and its possible implications are considered in light of the other irregularities that occurred in the amendment process, judgment as a matter of law is precluded.

Thus, genuine issues of material fact exist, the resolution of which could affect the outcome of the case. If the required notice procedures were not properly followed, the county did not meet the prerequisites to the lawful exercise of its delegated authority. See Holly Dev., Inc. v. Bd. of County Comm'rs, supra.

B.

In 1996, the Carlstons initiated another proposed amendment to the Whatley Ranch PUD, which was also approved. The director of planning and the board of county commissioners treated this amendment as a major modification to the PUD and attempted to follow statutory and development code requirements for providing notice to the appropriate landowners before the amendment was put to a vote.

Among other things, the 1996 amendment proposed to increase the density of the PUD by adding approval for ten new single family homes, including several approved auxiliary buildings per home. As with the prior amendment, the record reflects that the "Planned Unit Development Designation" form appears to have included several irregularities. The form listed Bud & Dot, LLLP., as the "Owner/Developer," but again listed Alfred T. Whatley on the signature page with no accompanying signature, indicating that he, and not Bud & Dot, L.L.L.P., was representing the PUD. Of most relevance here, there are flaws in the county's process used to give notice of the proposed changes to the affected landowners. The notice, as published, listed the wrong date for the public hearing on the issue, and the mailed notices may not have been sent to all the required landowners.

Notice is not rendered invalid when the incorrect date listed on the published notice falls before the actual hearing date, because people who arrive on the early date may still be informed of the correct date and attend the actual hearing. Grant v. Bd. of County Comm'rs, 164, Colo. 69, 164 Colo. 69, 432 P.2d 762 (1967). However, we agree with the trial court that the notice published in this case, with a date that fell after the date of public hearing, was invalid.

The failure to include an accurate date also means the notice failed to comply with the county's own requirement, in § 18503.02(BE), that notices of public hearing shall include the "[bhlearing, date, time and place." Yet, more importantly, this flaw constitutes a failure to comply with one of the "mandatory conditions precedent to the proper exercise of power," effectively invalidating the county's statutory grant of authority and rendering the county powerless to act on the proposed amendment.

For this reason alone, summary judgment in favor of the defendants on the Whatleys' claim for relief under C.R.C.P. 57 and 65 was improper.

Another failure to comply with the notice requirements also precludes judgment in the defendants' favor as a matter of law. The county deemed the 1996 amendment to be a major modification, which triggers the requirements in § 18501.01 for published notice and mailed notice to landowners whose property adjoins the PUD.

In addition, major modifications trigger other requirements to mail notice to some or all landowners within the PUD, depending on the anticipated impact of the modification. When the impact of the amendment will be limited to the immediate area around the site of the change and the overall intent of the PUD will not affected, § 18508.01(B)2)(a) requires additional notice to be mailed to all property owners within 8300 feet of the boundary of the site. The county followed this provision here. Thus, the mailing to property owners only within the 800-foot radius of the site did not include mailed notice to the Whatleys.

However, when the impact of the modification will be general, § 18508.01(B)(2)(b) requires notice to be mailed to all property owners within the PUD.

Here, the amendment added ten new single family residences, each of which could have one additional caretaker unit, a garage, storage buildings or sheds, and residential outdoor storage for items such as recreational vehicles, boats, and utility trailers. In addition, the amendment governs many environmental matters relating to wetlands, forest management, roads, bridges, and wildlife.

Thus, we agree with the trial court that the proposed modification is "not a modification limited to an immediate area, nor is it limited to a specific site," and that the "new home sites quadruple the density within the PUD and wholly change its character." Consequently, as the trial court found, this amendment must be considered to have a general impact on the PUD, requiring that notice be mailed to all landowners within the PUD, including the Whatleys.

C.

While we agree with the trial court's conclusion that the 1996 amendment was one of general impact, we question its conclusion that the error in classifying it as one with limited impact is inconsequential. Specifically, we conclude that there are genuine issues of material fact that preclude summary judgment regarding whether, by their settlement agreement with the Carlston defendants, the Whatleys unconditionally waived their rights to complain about the density increase. Generally waiver is an issue for the trier of fact. See Hallmark v. Westland Meadows Owners Ass'n, 983 P.2d 170 (Colo.App.1999).

In finding that the Whatleys had "voluntarily, knowingly, and intelligently waived their rights to complain about the density increase and to be entitled to notice and opportunity to be heard," the trial court specifically referred to three provisions in the settlement agreement: the Whatleys agreed to allow the Carlston defendants to reserve the right to submit lot one to rezoning; the Carlston defendants agreed to pay the What-leys an additional purchase price if they ever obtained a rezoning of the Whatley Ranch in excess of twenty-four lots; and the Whatleys agreed to execute, upon request, a letter consenting to the resubdivision of Whatley Ranch into ten additional residential units or homesites.

For several reasons, we do not agree that these provisions can entitle both sets of defendants to judgment as a matter of law.

First, as to the county defendants, the record is not clear as to how, even assuming, without deciding, a waiver existed between the Whatleys and the Carlston defendants, the Whatleys could have waived the county's duty to provide proper published notice to the public of the hearing date for the proposed 1996 amendment or could have otherwise relieved the county defendants of their duty to comply with statutory and development code procedural requirements. In addition, it is unclear how, if the 1996 amendment were a modification of general impact, the Whatleys could have waived the rights of other landowners within the PUD to receive mailed notice of the proposed amendment.

Secondly, as to the Carlston defendants, it is unclear whether or how the Whatleys' apparent consent to allow the Carlston defendants to submit lot one to rezoning and to the addition of ten additional residential units can also be characterized as a valid waiver of their rights to notice as guaranteed by statutes and the development code.

While the Whatleys may have consented to the changes, there are genuine issues of fact as to whether they "voluntarily, knowingly, and intelligently" waived their right to receive notice of the public hearing, attend the hearing, and comment on exactly how such changes should be implemented. As the 1996 amendment shows, beyond the simple addition of units of development, many details of the PUD were changed. If given the opportunity, the Whatleys may have voiced their opinions about those changes.

Again, the resolution of these issues would affect the outcome of the case; therefore, the existence, seope, and effect of the agreement between the Whatleys and the Carlston defendants cannot be decided as a matter of law.

Accordingly, the judgment is affirmed to the extent it denies the. § 1983 claim. The judgment is reversed as to the claims for injunctive and declaratory relief, and the case is remanded for further proceedings on those claims consistent with this opinion.

Judge VOGT and Judge GRAHAM concur.


author: Judge GRAHAM.

text:
    RANDALL & BLAKE, INC., Plaintiff-Appellant, v. METRO WASTEWATER RECLAMATION DISTRICT, a political subdivision of the State of Colorado, Defendant-Appellee.
    No. 02CA0884.
    Colorado Court of Appeals, Div. I.
    March 27, 2003.
    Certiorari Denied Oct. 6, 2003.

      Stettner, Miller & Cohn, P.C., John S. Finn, Denver, Colorado, for Plaintiff-Appellant.
    Inman, Flynn & Biesterfeld, P.C., Joel A. Moritz, Robert J. Thomas, Denver, Colorado, for Defendant-Appellee.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 53), and § 24-51-1105, C.R.$.2002.

   Opinion by

Judge GRAHAM.

Plaintiff, Randall & Blake, Inc. (RBI), appeals the summary judgment in favor of defendant, Metro Wastewater Reclamation District (Metro) We reverse and remand for further proceedings in accordance with this opinion.

The parties stipulated to the following facts. Metro, a political subdivision of the State of Colorado, and RBI, a Colorado corporation, entered into an agreement for the construction of the P.A.R. 784 South Platte River Segment 15 Phase II Improvements Project. Metro also retained Camp Dresser & McKee, Inc. (CDM) as the engineer for the project.

Metro accepted sealed bids on the project. RBI bid a total base contract price of $2,742,222, Included in that amount was RBI's lump sum bid of $1,409,528 for the construction of a new reaeration structure (RSS).

A portion of the work on the entire project required the placement of boulders, riprap, and filter gravel at specific locations, including the RS3 site. The materials were required to be placed on filter bedding having certain qualities specified in the contract.

After the necessary portion of the river was drained, CDM conducted a gradation test, pursuant to the contract specifications, and determined that the materials from the river bottom complied with the contract specifications for filter bedding. These materials are referred to as type II bedding material.

During construction, RBI compléted all work required under the contract, which included furnishing "all labor, materials, equipment, and incidentals to place rock boulders, riprap revetments and blankets, and appurtenances as shown on the Drawings and as specified herein." The complying type II bedding material discovered at the project site was used as bedding for the riprap in the river and on the banks throughout the project, including RS3. No other type II bedding material was imported by RBI.

By April 2000, the work involving the type II bedding material had been completed. The parties thereafter began to discuss a possible change in the contract price. CDM attempted to calculate a change in the contract price based upon a unit price for type II bedding material. CDM suggested that a quantity change in type II bedding material-resulting from the use of on-site bedding material-justified a unit price reduction and, consequently, a contract price change. The parties failed to reach an agreement on any change to the contract price.

In January 2001, CDM and Metro issued two change orders to the contract. The first purported to delete the "type II bedding material as part of the foundation for [RS3]." The second changed the contract price based upon the cost savings afforded by not having to purchase and supply the bedding material. CDM's calculation was based in part on unit cost savings of the bedding material. The contract price was reduced by $101,384 in Metro's favor.

Metro accepted all remaining work on the project, and RBI filed suit against Metro, seeking the balance of the contract price of $101,884, plus interest. The parties filed cross-motions for summary judgment.

Although the parties agreed that the portion of the contract regarding the construction of RS3 used a "lump sum" price provision, the trial court determined "that the contract at issue was a unit price and not a lump sum contract." The trial court ruled that the type II bedding material was bid on a unit price basis and that the contract price should be adjusted to reflect that the estimate of type II bedding material differed materially from that which RBI had to supply. This appeal followed.

L.

We review a summary judgment de novo, applying the same standards that govern the trial court's determination. Where, as here, the facts are undisputed, the sole issue is whether the moving party was entitled to judgment as a matter of law. State Farm Mut. Auto. Ins. Co. v. Kastner, 56 P.3d 1144 (Colo.App.2002).

The interpretation of a contract is a question of law for the court. Roemmich v. Lutheran Hosps. & Homes Soc'y, 934 P.2d 873 (Colo.App.1996). A court's duty is to interpret a contract in a manner that effectuates the manifest intention of the parties at the time the contract was signed. Main Elec., Ltd. v. Prints Servs. Corp., 980 P.2d 522 (Colo.1999); Roemmich v. Lutheran Hosps. & Homes Soc'y, supra. "The touchstone in determining the intention of the parties is the language of the written agreement." Roemmich v. Lutheran Hosps. & Homes Soc'y, supra, 934 P.2d at 875.

If the language is plain, clear, and unambiguous, a contract must be enforced as written. Christmas v. Cooley, 158 Colo. 297, 406 P.2d 333 (1965). In addition, the words and phrases in the contract should be interpreted, not in isolation, but by examination of the contract as a whole. Finally, documents executed together as part of a single transaction should be considered together in ascertaining the intent of the parties. Roemmich v. Lutheran Hosps. & Homes Soc'y, supra.

Courts possess no authority to rewrite contracts and must enforce unambiguous contracts in accordance with their terms. Radiology Prof'l Corp. v. Trinidad Area Health Ass'n, 195 Colo. 253, 577 P.2d 748 (1978).

II.

We first address whether the trial court erred in finding that the contract at issue is a unit price and not a lump sum contract. We conclude that the trial court so erred.

The trial court determined that the contract here is identical to the contract in Platte Valley Ditch & Reservoir Co. v. H.C. Lallier Constr. & Eng'g Co., 91 Colo. 317, 14 P.2d 1079 (1932), and therefore, the outcome should be the same. In Platte Valley Ditch, a contractor built a diversion dam across the South Platte River and sued to collect the balance due under the contract. After reviewing schedules to the contract, the court determined that it was a unit price contract, which required that the contractor be paid for the added cost of steel sheet piling needed to build the dam on bedrock. There was testimony in Platte Valley Ditch that the engineer who drafted the contract intended it to be a unit price contract, and schedules and specifications convinced the court that it was such a contract.

Here, the trial court's reliance on Platte Valley Ditch is misplaced because the actual specifications and schedules in Platte Valley Ditch were not part of that case, and the particulars were not discussed in detail. There is therefore no basis for concluding that the contract terms here are "identical" to the contract terms in Platte Valley Ditch.

The contract here plainly includes both unit price and lump sum provisions, which are applied to different facets of the project. However, the parties agree, and the contract plainly states, that the RS3 work was to be performed on a lump sum basis: the bid form specifies that RSS shall be bid on a "lump sum" basis; RBI bid a lump sum price of $1,409,528 for RS3 work; and the specifications state that the "measurement and payment for [RS3] shall be on a lump sum basis." This lump sum price includes full compensation for all costs associated with the construction of RS3.

Thus, the unambiguous contract language and the parties' stated understanding clearly support the determination that this is a lump sum contract. The trial court's construction and interpretation of the contract is therefore incorrect. See Radiology Prof'l Corp. v. Trinidad Area Health Ass'n, supra.

IIL

RBI contends that because the work was bid on a lump sum basis, the trial court erred as a matter of law in finding that Metro was entitled to a credit for a deletion of work by change order related to the construction of RS3 and a corresponding price change based upon the use of on-site excavated material in lieu of imported type II bedding material. We agree.

Metro concedes that the RS8 contract provision was negotiated on a lump sum basis, but argues that whether the contract is viewed as a lump sum or unit price contract is irrelevant. According to Metro, RBI's use of the type II bedding material found at the site entitled Metro to delete a portion of the specified work in either case, and it was therefore entitled to the resulting credit. The contract documents and the facts in the record do not support Metro's arguments.

Under the express terms of the contract here, a change order could result in an adjustment to the lump sum contract price. A change order is signed by the owner and "authorizes an addition, deletion, or revision in the Work, or an adjustment in the Contract Price or the Contract Times, and issues on or after the Effective Date of the Agreement." "Work" is defined as:

The entire completed construction of the various separately identifiable parts thereof required to be furnished under the Contract Documents. Work includes and is the result of performing or furnishing labor and furnishing and incorporating materials and equipment into the construction, and performing or furnishing services and furnishing documents, all as required by the Contract Documents.

Under the RS3 portion of the project, RBI was required to place grouted boulders and riprap in the river channel and on the river banks. The riprap had to be placed onto type II bedding material consisting of gravel or crushed stone meeting certain specified gradation requirements. Contrary to the trial court's conclusion and Metro's suggestion, there is no separate requirement in the contract that type II bedding material be imported or purchased.

Paragraph 3.2(A) of the "Boulders, Rip-rap, and Filter Gravel" section directs the contractor to "[elxpose and test gradation of subgrade where rock is to be placed and "[slubmit gradation tests of subgrade materials and review subgrade conditions in the field with the Engineer." Paragraph 8.8(C) further requires that "[sluitable excavated material ... shall be used for fill embankments or backfill on the different parts of the work as required and as acceptable to the Engineer." There is no provision that a credit be issued to Metro if excavated materials are used.

Further, if paragraph 8.8(c) were intended to serve as a basis for price reduction as Metro suggests, a cost adjustment provision should have been included.

Here, it is undisputed that RBI completed all work required under the "Boulders, Rip-rap and Filter Gravel" section of the specifications. The complying type II bedding material discovered at the project site was used in lieu of importing other material. Accordingly, Metro received exactly what it bargained for: placement of type II bedding material under the riprap. There was no deletion of work. Thus, a change order for the deletion of type II bedding material should not have been issued. Under this lump sum arrangement, RBI's bargain was that it could complete the work and supply the materials for less than the contract price, and its risk was that it would be subject to the vagaries of the market, perhaps having to supply materials and labor at a cost greater than it had estimated.

Furthermore, at no time during the construction of RS3 was RBI notified by a change order that the work should be deleted. A change in the work must be made by a written amendment to the contract through issuance of a written change order:

Any claim for an adjustment in the Contract Price shall be based on written notice delivered by the party making the claim to the other party and to ENGINEER promptly (but in no event later than thirty days) after the start of the occurrence or event giving rise to the claim and stating the general nature of the claim. Notice of the amount of the claim with supporting data shall be delivered ... and shall be accompanied by claimant's written statement that the adjustment claimed covers all known amounts to which the claimant is entitled as a result of said occurrence or event. All claims for adjustment in the Contract Price shall be determined by ENGINEER ... if OWNER and CONTRACTOR cannot otherwise agree on the amount involved. No claim for an adjustment in the Contract Price will be valid if not submitted in accordance with this paragraph....

This provision clearly contemplates that change orders be issued before completion of work so that the contractor can adjust its work and comply with the change.

IV.

Metro argues that this notice provision was waived when the parties began to negotiate a change to the contract price. We conclude that further proceedings are required to determine whether the parties, by their conduct, modified the contract price, thereby precluding RBI from recovering a sum inconsistent with that modified price.

The record suggests that Metro attempted to use an after-the-fact deletion of work change order to substitute for a unit price adjustment to which it was not entitled. RBI's response, however, was to begin negotiation of a change to the contract price while concomitantly rejecting the notion that work could be deleted. Based upon the correspondence in the record, it appears that the parties may have intended to modify the price term. However, there has been no resolution of the facts concerning that attempt.

If the parties intended to modify the price term, they were free to do so, providing that there was consideration for the modification.

Thus, questions remain concerning whether the parties may have agreed to adjust the lump sum price and the extent to which an adjustment to the lump sum price was effected under the applicable contract terms. In these circumstances, summary judgement may not enter.

The judgment is reversed, and the case is remanded for further proceedings in accordance with this opinion.

Judge VOGT and Judge STERNBERG concur,


author: Judge DAILEY.

text:
    Charles M. KOHN, Plaintiff-Appellee, v. BURLINGTON NORTHERN AND SANTA FE RAILROAD, Defendant-Appellant.
    No. 00CA2305.
    Colorado Court of Appeals, Div. IV.
    March 27, 2003.
    Certiorari Denied Oct. 14, 2003.

      Haddon, Morgan, Mueller, Jordan, Mack-ey, & Foreman, P.C., Norman R. Mueller, Rachel A. Bellis, Denver, Colorado, for Plaintiff-Appellee.
    Hall & Evans, LL.C., Alan Epstein, Frederick T. Martinez, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge DAILEY.

Defendant, Burlington Northern and Santa Fe Railroad, appeals the judgment entered , in favor of plaintiff, Charles M. Kohn, on a claim of negligence brought pursuant to the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60 (2000). We affirm.

Plaintiff, a switchman for the railroad, was injured when he stepped off a locomotive engine stopped on a bridge and fell twenty feet into a ravine. The bridge had a walkway, but only on the other side of the engine.

Plaintiff sued under FELA, alleging that the railroad was negligent in failing to provide him with a reasonably safe workplace. In support of his claim, plaintiff presented evidence that: (1) he was neither qualified for the switchman's job nor familiar with this territory; (2) the railroad had not acquainted him with the hazards of the job; (8) he had not been informed about the existence of the bridge; (4) the engine was missing a step light; (5) there was no lighting at the bridge; (6) there was no sign warning of a drop-off at the bridge; and (7) there was no walkway on the side of the engine he descended.

The railroad requested that plaintiff be precluded from arguing, and the jury be precluded from considering, the railroad's failure to build a second walkway as evidence of its negligence. In support of its position, the railroad relied upon an order issued in 1977 by the Federal Railroad Administration (FRA) pursuant to § 202 of the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20101, et seq. (2000). In this order terminating rulemaking proceedings, the FRA concluded "that the issuance of a Federal rule requiring walkways on railroad bridges, trestles, and similar structures cannot be justified at the present time." 42 Fed.Reg. 22184, 22185 (1977).

The railroad asserted that, because the FRA explicitly rejected a requirement of walkways over railroad bridges, plaintiff was precluded from relying upon the lack of a walkway to establish a claim of negligence under FELA. The trial court disagreed.

The jury found for plaintiff on his FELA claim, and the trial court entered judgment accordingly.

I. FELA Negligence Claim Based on Lack of Walkway

On appeal, the railroad again contends that the trial court should have precluded plaintiff from claiming, and the jury from considering, the lack of a walkway as a basis for finding negligence. The railroad rests its contention upon two premises: (1) FRSA supersedes and thus precludes liability under FELA to the same extent that FRSA preempts liability under state law; and (2) as a result of the FRA's order, FRSA preempts state liability based on the lack of walkways over railroad bridges. We are not persuaded.

FELA provides the exclusive remedy in tort for a railroad employee injured as a result of his or her employer's negligence. Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 442 (6th Cir.2001). Although no specific standards of care are set forth in FELA, certain duties have become an integral part of the statute, including the duty to provide a reasonably safe workplace. See Rannmals v. Diamond Jo Casino, 265 F.3d 442, 448 (6th Cir.2001).

FRSA was enacted "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101. It authorizes the United States Secretary of Transportation to "pre-seribe regulations and issue orders for every area of railroad safety." 49 U.S.C. § 20103(a).

Whether FRSA supersedes FELA is unclear. Compare Failing v. Burlington N.R.R., 815 P.2d 974, 976-77 (Colo.App.1991)(a finding of railroad negligence under FELA was not barred by evidence of compliance with FRSA statutes and regulations), and Earwood v. Norfolk S. Ry., 845 F.Supp. 880, 887-88 (N.D.Ga.1993)(FRSA does not preclude use of evidence in FELA action merely because it precludes use of such evidence in state action), with Lane v. R.A. Sims, Jr., Inc., supra, 241 F.3d at 442 (FELA is superseded by FRSA to the extent FRSA preempts state law; liability may not be imposed under state law or FELA where railroads have complied with FRSA statutes, regulations, or orders addressing specific railroad safety concerns), and Waymire v. Norfolk & W. Ry., 218 F.3d 773, 775-76 (7th Cir.2000)(same).

We need not resolve this issue, however, because even assuming we agreed with the railroad on this point, we disagree with its view of the preemptive effect of the FRA's order. )

The preemption doctrine, derived from the Supremacy Clause, United States Const. Art. VI, mandates that state law give way when it conflicts with federal law. See Banner Adver., Inc. v. City of Boulder, 868 P.2d 1077, 1080 (Colo.1994).

Preemption may be either express or implied:

Absent explicit pre-emptive language, we have recognized at least two types of implied pre-emption: field pre-emption, where the scheme of federal regulation is "so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it," and conflict pre-emption, where "compliance with both federal and state regulations is a physical impossibility," or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."

Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98, 112 S.Ct. 2374, 2383, 120 L.Ed.2d 73 (1992) (citations omitted).

Federal preemption is a question of law subject to de novo review by this court. See, e.g., Choy v. Redland Ins. Co., 103 Cal.App.4th 789, 796, 127 Cal.Rptr.2d 94, 99 (2002); Doty v. Frontier Communications, Inc., 272 Kan. 880, 888, 36 P.3d 250, 257 (2001). The decisions of lower federal courts may be persuasive, but they are not binding upon us. See Cmty. Hosp. v. Fail, 969 P.2d 667, 672 (Colo.1998)("neither federal supremacy nor any other [principle] of federal law requires that a state court's interpretation of federal law give way to a federal court's interpretation other than that of the United States Supreme Court"); see also Carlisle v. Philip Morris, Inc., 805 S.W.2d 498, 505 (Tex.App.1991)(preemption context).

Here, in support of its preemption argument, the railroad relies upon 49 U.S.C. § 20106 of the FRSA, which provides, in pertinent part:

Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable. A State may adopt or continue in foree a law, regulation, or order related to railroad safety or security until the Seere-tary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order-
(1) is necessary to eliminate or reduce an essentially local safety or security hazard; (2) is not incompatible with a law, regulation, or order of the United States Government; and
(8) does not unreasonably burden interstate commerce.

49 U.S.C. § 20106 (as amended by Pub.L. No. 107-296, § 1710(c), 116 Stat. 2819 (Nov. 25, 2002)).

In CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 1737, 123 L.Ed.2d 387 (1993), the United States Supreme Court held that "egal duties imposed on railroads by the common law fall within the seope" of state "law[sl, rule[s], regulation[s], order[s], or standard[s]" which may be subject to preemption under 49 U.S.C. $ 20106. The issue, the Court said, was whether federal regulations covered the same subject matter as the allegations brought against the railroad under state law. Whether something is "cover[ed]" within the meaning of § 20106, however, should be determined with "considerable solicitude for state law." CSX Transp., Inc. v. Easterwood, supra, 507 U.S. at 665, 113 S.Ct. at 1738.

The railroad argues that, because the FRA order dealt with the subject of walkways over bridges, it "covered" that subject and, thus, preempted state law liability in connection therewith. We disagree.

In this regard, the railroad relies on a type of implied conflict preemption known as negative preemption. Under this type of preemption, "where failure of ... federal officers affirmatively to exercise their full authority takes on the character of a ruling that no such regulation is appropriate or approved pursuant to the policy of the statute, States are not permitted to use their police power to enact such a regulation." Ray v. Atl. Richfield Co., 435 U.S. 151, 178, 98 S.Ct. 988, 1004-05, 55 L.Ed.2d 179 (1978)(internal quotation marks omitted). We are not persuaded.

For negative preemption, "what is needed is proof in some form that the agency concluded 'that no such [state] regulation is appropriate." " Pearson v. Columbus & Greenville Ry., 737 So.2d 390, 401 (Miss.Ct.App.1998)(quoting Ray v. Atl. Richfield Co., supra); see also Burlington N.R.R. v. Minnesota, 882 F.2d 1349, 1353 (8th Cir.1989)({negative preemption occurs when federal agency's inaction carries with it determination that no state regulation is appropriate).

In Norfolk & Western Railway v. Public Utilities Commission, 926 F.2d 567 (6th Cir.1991), the court applied the negative preemption doctrine in considering the impact of the same FRA order at issue here, as well as a 1978 FRA policy statement that "FRA has affirmatively determined that issuance of Federal regulations governing walkways on bridges is not warranted based on the projected cost of installation and the collateral safety problems which would be created." See 43 Fed.Reg. 10586 (1978). Concluding that "[the FRA has purposefully declined to implement a national regulation requiring railroad walkways on bridges," the Norfolk court held that state regulation of walkways over bridges was preempted because, under Ray v. Atlantic Richfield Co., supra, the FRA had affirmatively determined that "no regulation is appropriate." Norfolk & W. Ry. v. Pub. Utils. Comm'n, supra, 926 F.2d at 570, 572.

We agree with the Norfolk court's determination that the FRA purposefully declined to implement a national regulation. However, we disagree with its conclusion that state regulation or liability is barred because the FRA determined that "no regulation is appropriate." We interpret the 1977 order differently.

In the 1977 order, the FRA noted a concern that "(tlhe issuance of a Federal standard for walkways might be counterproductive since it would generally preempt the States from carrying out their responsibilities under existing State laws except where an essentially local safety hazard could be identified." The FRA concluded, in pertinent part:

[Thhe issuance of a Federal rule requiring walkways on railroad bridges, trestles, and similar structures cannot be justified at the present time. First, any such rule would impose significant added burdens in terms of the large dollar cost to the railroad industry for construction of the walkways, the added hazard to persons and property and additional liability exposure for the railroads because of increased trespassing, and the possible decrease in overall railroad safety because of the diversion of resources from other maintenance and improvement projects. Secondly, neither the commenters nor the FRA has been able to demonstrate that such a rule would result in a definite or measurable improvement to railroad employee safety. Finally, if an employee safety problem does exist because of the lack of walkways in a particular area or on a particular structure, regulation by a State agency that is in a better position to assess the local need is the more appropriate response.

42 Fed.Reg. 22185 (May 2, 1977)(emphasis added).

The 1977 order does not deny the existence of a safety issue. And the emphasized portion of the FRA's order explicitly recognized the propriety of state regulation in the area. See Missouri Pac. R.R. v. R.R. Comm'n, 833 F.2d 570, 576 (5th Cir.1987)(1977 order and 1978 policy statement "in no way suggest that the FRA has decided as a matter of policy that walkway regulations must be national in character and must preempt state action"); S. Pac. Transp. Co. v. Publ. Utils. Comm'n, 647 F.Supp. 1220, 1226 (N.D.Cal.1986)("When the FRA decided not to adopt a regulation requiring walkways on trestles and bridges, its reasons related specifically to conditions affecting those structures.... [The 1978 policy statement] did not purport to limit state jurisdiction.. .. [Tlhe FRA thus did not claim to have adopted regulations covering that subject."), aff'd, 820 F.2d 1111 (9th Cir.1987) cf. Sprietsma v. Mercury Marine, 537 U.S. 51, 52, 123 S.Ct. 518, 528, 154 L.Ed.2d 466 (2002){rejecting state court's determination that liability under state law was preempted under the Federal Boat Safety Act (FBSA) as a result of the Coast Guard's decision not to require propeller guards for boats, in part because "the Illinois Supreme Court's conclusion does not accurately reflect the Coast Guard's entire explanation for its decision").

In our view, the FRA's explanation is not inconsistent with a tort verdict premised on a jury's finding that a walkway should have been installed on this particular bridge. And the FRSA's generic concern for uniformity does "not justify the displacement of state common-law remedies that compensate accident victims and their families and that serve the Act's more prominent objective, emphasized by its title, of promoting [railroad] safety." See Sprietsma v. Mercury Marine, supra, 53 U.S. at 70, 123 S.Ct. at 530 (analyzing FBSA preemption).

Accordingly, we conclude that the FRA's order does not preempt state law negligence claims based on the lack of walkways over railroad bridges. Consequently, the trial court did not err in denying the railroad's motion to preclude evidence or argument about the lack of a walkway in aid of the plaintiff's negligence claim under FELA.

II. Admission of Accident Analysis Report

The railroad also contends that the trial court erred in admitting evidence pertaining to a railroad accident analysis report in which a railroad supervisor attributed the accident to several causes, including the lack of a walkway. According to the railroad, reversal is required because the FRA's order precluded the use of the report and related testimony to establish a missing walkway as a basis for a finding of negligence. However, we reject this assertion for the reasons previously stated in Part I of this opinion.

We also reject the railroad's contention that the report and related testimony included inadmissible hearsay because it referenced not only the supervisor's out-of-court statements, but also the out-of-court statements of other railroad employees. See Schmutz v. Bolles, 800 P.2d 1307, 1312 (Colo.1990)(CRE 803(6) business records exception encompasses documents "prepared by, or from information transmitted by, a person 'with knowledge' of the matters recorded").

Accordingly, the judgment is affirmed.

Judge ROTHENBERG and Judge KAPELKE concur.


author: Judge WEBB.

text:
    INTERBANK INVESTMENTS, LLC, Plaintiff-Appellee, v. EAGLE RIVER WATER AND SANITATION DISTRICT, f/k/a Vail Valley Consolidated Water District, Defendant-Appellant.
    No. 02CA0556.
    Colorado Court of Appeals, Div. III.
    March 27, 2003.
    Certiorari Denied Oct. 6, 2003.

      Lottner Rubin Fishman Brown & Saul, P.C., Richard I. Brown, Michael D. Murphy, Denver, Colorado, for Plaintiff-Appellee.
    Paul C. Rufien, P.C., Paul C. Rufien, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge WEBB.

In this contract dispute, defendant, Eagle River Water and Sanitation District (district), appeals the trial court's judgment awarding damages for unjust enrichment in favor of plaintiff, Interbank Investments, LLC. We reverse. ~

The dispute arises from two similar contracts among a land developer, plaintiff's predecessor, and two other water districts, since consolidated into the district. Under these contracts, the predecessor districts would pay the developer its expenses of constructing a water distribution system in its project, after transfer of the system to the districts and to the extent that tap fees later collected by those districts from the project exceeded certain of their costs. Although the predecessor districts received the system and collected tap fees well above their costs, nothing was paid to either the developer or plaintiff.

Plaintiff, as successor to the developer, sued the district for breach of contract, unjust enrichment, and an accounting. The district asserted various defenses, including the unavailability of equitable relief where an adequate legal remedy exists. Following a bench trial, the court found that plaintiff failed to prove actual damages for breach of contract and that this claim was time barred. The trial court indicated that unjust enrichment "may apply" and unjust enrichment awards totaling $234,481.80 "might be" appropriate, but concluded that the unjust enrichment claim was also untimely. Plaintiff appealed and the district eross-appealed.

As relevant here, a division of this court affirmed the trial court's finding that plaintiff failed to prove actual damages for breach of contract, but reversed the court's determination that the contract and unjust enrichment claims were time barred. The division concluded that "plaintiff is entitled only to nominal damage awards on its contract claims." As to unjust enrichment, given the "tentative nature" of the trial court's rulings, the division was "unable to determine whether plaintiff should recover restitution for unjust enrichment in lien of the nominal damage awards." The division remanded to determine whether plaintiff "is entitled to recover restitution for unjust enrichment, and, if so, in what amount." Interbank Invs., L.L.C. v. Vail Valley Consol. Water Dist., 12 P.3d 1224, 1231-32 (Colo.App.2000)(Interbank I).

On remand, the district argued, among other defenses, that plaintiff could not recover for unjust enrichment because the division's opinion recognized a valid express contract covering reimbursement of the water system construction expenses. The trial court found the district had been unjustly enriched and awarded plaintiff $234,481.80 plus interest, representing tap fees collected less certain costs. The court did not address the district's express contract argument.

L.

The district first argues the trial court erred because plaintiff's unjust enrichment claim was precluded by enforceable express contracts covering the same subject matter. We agree.

A party who has been unjustly enriched generally must make restitution to the other party by returning that party to the position it previously occupied. Salzman v. Bachrach, 996 P.2d 1263 (Colo.2000)(quoting Restatement of Restitution § 3 (1937)).

Unjust enrichment does not depend on the existence of an express or implied-in-fact contract. Cablevision of Breckenridge, Inc. v. Tannhauser Condo. Ass'n, 649 P.2d 1093 (Colo.1982). Instead, courts may imply a contract in law, often termed a quasi-contract, and allow recovery to serve the "law of natural immutable justice and equity." See DCB Constr. Co. v. Central City Dev. Co., 965 P.2d 115, 119 (Colo.1998), aff'g 940 P.2d 958, 962 (Colo.App.1996)(quoting Valley Realty & Inv. Co. v. McMillan, 160 Colo. 109, 112, 414 P.2d 486, 488 (1966)).

In general, a party cannot recover for unjust enrichment by asserting a quasi-contract when an express contract covers the same subject matter because the express contract precludes any implied-in-law contract. Printz Servs. Corp. v. Main Elec., Ltd., 949 P.2d 77 (Colo.App.1997), aff'd in part and rev'd in part, 980 P.2d 522 (Colo.1999); Stanford v. Ronald H. Mayer Real Estate, Inc., 849 P.2d 921 (Colo.App.1993). However, this principle recognizes two exceptions.

First, a party can recover on a quasi-contract when the contract covers conduct outside the express contract or matters arising subsequent to the express contract. Scott Co. v. MK-Ferguson Co., 832 P.2d 1000 (Colo.App.1991).

Second, a party can recover on a quasi-contract when the party "will have no right under an enforceable contract." Backus v. Apishapa Land & Cattle Co., 44 Colo.App. 59, 62, 615 P.2d 42, 44 (1980). For example, quasi-contractual recovery may be allowed when an express contract failed or was rescinded. See Dudding v. Norton Frickey & Assocs., 11 P.3d 441 (Colo.2000); Alien, Inc. v. Futterman, 924 P.2d 1063 (Colo.App.1995).

Resolution of this issue presents a mixed question of law and fact. The existence of an express contract is a question of fact. Beach v. Beach, 56 P.3d 1125 (Colo.App.2002). Application of the rule that an express contract supersedes a quasi-contract covering the same subject is a question of law. Scott Co. v. MK-Ferguson Co., supra.

A.

Initially, we agree with the district that plaintiff's claim of unjust enrichment, which "is a legal claim in quasi-contract for money damages based upon principles of restitution," DCB Constr. Co. v. Central City Dev. Co., supra, 965 P.2d at 118, covers conduct within the scope of the predecessors' express contracts.

The Interbank I division's conclusions that the contract claims were not barred by the statute of limitations and that the contracts, which had not been materially breached by plaintiff or its predecessors, entitled plaintiff to nominal damages show that the contracts are enforceable.

Nevertheless, plaintiff asserts that the collection of tap fees arose subsequent to the express contracts and that the failure to pay any portion of those fees was unexpected. However, the contracts contemplated payment from tap fees to be collected over time, and the risk of nonpayment inheres in these as well as in most other contracts. Indeed, the trial court calculated unjust enrichment based on the contracts' reimbursement formula of tap fees collected less certain costs.

Accordingly, we conclude that enforceable express contracts cover the same subject matter as plaintiff's unjust enrichment claim.

B.

Nonetheless, plaintiff argues that the Interbank I division resolved the preclusion issue in its favor by concluding that it was entitled to nominal damages on its contract claims, but then remanding "to determine whether plaintiff should recover restitution for unjust enrichment in lieu of the nominal damage awards." Interbank I, supra, 12 P.3d at 1232. We are not persuaded.

Conclusions of an appellate court, and rulings logically necessary to those conclusions, become the law of the case and generally must be followed in later proceedings. In re Marriage of Burford, 26 P.3d 550 (Colo.App.2001). However, the law of the case doctrine recognizes limited exceptions to one division of this court being bound by the decision of another division in an earlier appeal. Vashone-Caruso v. Suthers, 29 P.3d 339 (Colo.App.2001).

The Interbank I division's opinion did not address the principle that an express contract precludes an implied-in-law contract on the same subject matter. The parties' briefs in the prior appeal did not raise this principle. Thus, we cannot conclude that the division's remand expressly resolved the conflict between the breach of contract and unjust enrichment claims, once both claims were resurrected on appeal.

Nor is an implicit determination that plaintiff's unjust enrichment claim survives the enforceable contracts logically necessary to the division's direction that on remand the trial court consider whether plaintiff could recover restitution for unjust enrichment. The division did not conclude that either the express contracts covered the same subject matter as the unjust enrichment claim or an award for unjust enrichment must be granted. And, the trial court had not addressed whether the contracts covered the same subject matter as the unjust enrichment claim.

E.H. Boly & Son, Inc. v. Schneider, 525 F.2d 20 (9th Cir.1975), cited by the division in explaining the remand, only holds that damages and restitution can be pleaded in the alternative. Alternative pleading, however, does not limit the principle that an express contract precludes an implied contract on the same subject matter.

In Backus v. Apishapa Land & Cattle Co., supra, the division recognized that the plaintiff could proceed alternatively on a claim for unjust enrichment, but explained, "[Ilf [the plaintiff's} assignment claim fails, he will have no right under an enforceable contract. Under such cireumstances, [the plaintiff] may be able to recover for unjust enrichment." Backus v. Apishapa Land & Cattle Co., supra, 44 Colo.App. at 62, 615 P.2d at 44. These circumstances do not pertain here.

Accordingly, we conclude that the Interbank I division did not decide whether availability of nominal damages under the express contracts precludes relief for unjust enrichment.

C.

We also reject plaintiff's contention that the trial court's restitution award was correct because recovery of only nominal damages under the express contracts would leave the district unjustly enriched.

Plaintiff mistakenly analyzes its inability to recover more than nominal damages for breach of enforceable contracts under the rationale of unjust enrichment cases discussing wn enforceable contracts. See, e.g., Dudding v. Norton Frickey & Assocs., supra. See generally Dan B. Dobbs, Law of Remedies § 4.1(1), at 552 (2d ed.1993).

Here, the division concluded the contracts were enforceable, but upheld the trial court's finding that "plaintiff failed to prove the amount of its damages by a preponderance of the evidence," noting "unexplained apportion-ments" of the developer's costs to construct the water system, lack of invoices from which those costs could be determined, and noncompliance with the "contractual requirement to provide precise construction documents." Interbank I, supra, 12 P.3d at 1231. Thus, the remedy in the express contracts-recoupment of construction costs to the extent of tap fees collected-did not fail of its essential purpose because of cireumstances beyond the control of plaintiff.

Plaintiff cites no Colorado case supporting its assertion that an express contract fails to preclude a quasi-contract on the same subject matter merely because only nominal damages are recoverable on the express contract. Plaintiff cites United Coastal Industries, Inc. v. Clearheart Constr. Co., 71 Conn.App. 506, 802 A.2d 901 (2002), and Staffing America v. Titan Distribution Services, Inc., (Ohio Ct.App. No. C-990679, Sept. 29, 2000)(not officially published)(2000 WL 1434172), to support this argument. We find them inapposite.

In United Coastal Industries, the court allowed a subcontractor who breached its contract with the general contractor, and therefore had no remedy under that contract, to recover on the basis that the general contractor had been unjustly enriched by the subcontractor's partial performance. The court explained that unjust enrichment "applies when no remedy is available based on the contract." United Coastal Indus., supra, 71 Conn.App. at 512, 802 A.2d at 906.

Here, in contrast, the division agreed with the trial court that plaintiff had not materially breached the contracts, held that the contract claim was timely, and concluded that plaintiff was entitled to the remedy of nominal damages. Proof of actual damages is not an essential element of a breach of contract claim. When a plaintiff establishes breach, but does not prove actual damages, the plaintiff is entitled to nominal damages. Overland Dev. Co. v. Marston Slopes Dev. Co., 773 P.2d 1112 (Colo.App.1989).

In Staffing America, the court did not address preclusion of a quasi-contract claim by an express contract covering the same subject matter. The court's paraphrase of Dobbs, Handbook on the Law of Remedies (1973)("Even if the plaintiff cannot prove the amount of damages with sufficient certainty for relief on the contract, such failure does not preclude alternative relief under a theory of restitution or unjust enrichment."), emphasized by plaintiff, was at most dictum. Cf. BTA Oil Producers v. MDU Res. Group, Inc., 642 N.W.2d 873, 885 (N.D.2002)("Dobbs is addressing restitution as an element of damages for breach of contract, not the separate equitable remedy for unjust enrichment based upon quasi-contract.").

We have found no case reconciling this tension between allowing recovery for unjust enrichment when the parties' express contract is unenforceable, but denying that recovery under otherwise similar cireumstances because the parties' express contract is enforceable, but only nominal damages are recoverable. Indeed, we recognize that under both cireumstances, retention of the benefit may seem equally unjust.

However, we conclude permitting quasi-contractual recovery under the cireum-stances of this case would inappropriately allow implied-in-law contracts to encroach on express contracts. If the threshold for judicial implication of a quasi-contract became the adequacy of the remedy under an express contract, rather than the enforceability of that contract, the outcome would be determinable only on a case-by-case basis, after all of the evidence had been presented, and without either predictability or precise standards." Cf. Town of Alma v. Azco Constr., Inc., 10 P.3d 1256 (Colo.2000)(economic loss rule promotes the predictability of contracts by allowing the parties to allocate loss and risk and decrease their uncertainty on future liability). Moreover, failure to prove actual damages could become a litigation tactic available when a party perceives that unjust enrichment might be more favorable than the remedy provided by an express contract.

We also reject plaintiff's argument that Scott Co. v. MK-Ferguson, Co., supra, permits an election between breach of express contract and unjust enrichment. There, after explaining that the parties' express contract covered the bases for the promissory estoppel and other claims, the division concluded that the trial: court erred in allowing the plaintiff to proceed on theories other than breach of contract. Thus, we discern no endorsement of the election for which plaintiff argues.

Hence, we adhere to the previous Colorado cases holding that an express contract precludes a quasi-contract on the same subject, although here only nominal damages are available under the express contract.

Accordingly, we conclude the trial court erred in awarding plaintiff restitution for unjust enrichment.

IL

In light of our conclusion that the trial court erred in entering its unjust enrichment award, we need not consider the district's alternative arguments. See Smeal v. Oldenettel, 814 P.2d 904 (Colo.1991).

The judgment is reversed.

Judge DAVIDSON and Judge ROY, concur.