Always prepare for the unexpected, especially in construction contracts. In this case, a company that contracted with Denver Water to build a dam and reservoir encountered unanticipated wet muck that substantially increased the costs of excavation. Fortunately, the parties anticipated unexpected conditions and included an “equitable adjustment” provision in their contract. The issue was the amount of the adjustment. The trial court did not award the contractor legal damages or the full amount of the additional costs. Rather, it awarded an equitable amount based on a division of responsibility for the increased costs. The court of appeals, after finding the appeal was timely filed, agreed. It held that the contract itself provided for an equitable remedy. Thus, the trial court did not clearly err by awarding an additional but reduced amount to the contractor.
Tag Archives: Commissions or Boards
Parker Excavating, Inc. v. City of Denver, through its Board of Water Commissioners, 2012COA185 (October 25, 2012)
Question: “Are you saying ‘no’ just to say ‘no’?” Answer: “No.” In this case, a complaint against a social worker led the Board of Social Worker Examiners to believe that a violation may have occurred. Instead of disciplining her, the Board made her a settlement offer. The social worker did not accept or reject the offer. Instead, she requested a declaratory order as to whether she could even be disciplined for her actions. The Board refused to issue a decision on that question. The social worker appealed the refusal to make a decision. To be appealable, an agency action must be an “action subject to judicial review.” For the first time, the court of appeals held that, to be appealable, an agency’s decision must be a final agency action. Here, a refusal to make a decision was not a final decision because the social worker’s disciplinary matter was still pending before the Board.
John Stulp, Commissioner of Agriculture, v. Dean Schuman and Schuman Cattle, LLC, 2012COA144 (August, 30, 2012)
The Constitution does not protect a right to own cattle if the evidence overwhelmingly shows that animals under his care were subjected to severe abuse and neglect. Here, a court entered a permanent injunction in a civil action preventing a rancher from even owning cattle. The rancher had already been convicted of 14 counts of cruelty to animals. In this case, the rancher argued a total ban was too broad and it violated his Constitutionally protected property rights. The court of appeals, comparing his actions to parental neglect, and noting the lack of any remorse or willingness to change, found the remedy of a complete ownership ban appropriate. The determination that the rancher was unfit to own livestock was upheld.
Colorado Off-Highway Vehicle Coalition, et. al. v. Colorado Board of Parks and Outdoor Recreation 2012COA146 (August 30, 2012)
Gone is the age of back office deals between government officials—mostly. Colorado’s Open Meetings Law (OLM) protects the participation of citizens in the legislative decision making process. So, meetings between government officials, held by Email or telephone, in which any public business is discussed, violate the OML. In this case, the Colorado Parks and Wildlife Board admittedly violated the OML three times by holding Email, telephone and in-person meetings. It held a subsequent properly noticed and open public meeting, where the public provided input, and the Board engaged in “renewed deliberations” of the wrongly discussed issues. For the first time, the court of appeals squarely held that OML violations can be “cured” at later meetings that comply with the OML, if genuine discussion occurs, and the meeting is not merely to “rubber stamp” a decision already made.
Designated Outdoor Activity Area (DOAA) could describe nearly all of Colorado. So could “oil and gas bonanza.” This case chronicles the struggle of the Colorado Oil and Gas Conservation Commission (COGCC) to balance its power to locate well sites on private property while protecting the landowner’s property. After examining COGCC’s authority, the case turned on the interpretation of one ambiguous rule: to be a DOAA (and there are no oil wells in a DOAA), the area must be “occupied” by at least twenty people for forty days or more. A playground is a DOAA. To be consistent with other rules, the court held that all twenty people need not be present at any one time. It remanded so COGCC could make appropriate findings of fact in deciding the landowner’s request for the designation. But, the COGCC can also consider if the designation would be economically wasteful.