Count the negatives: “noncompliance with nonclaim statutes deprives a court of subject matter jurisdiction” (Opinion), and CRS 38-26-106 is not a nonclaim statute. That statute requires public-works-project contractors to post a bond. Here, Tarco did not post a bond when constructing an overpass and infrastructure around a shopping center for the Conifer Metro District (CMD). It did not get paid by CMD and sued. The District, after a two-year delay, claimed that Tarco couldn’t sue because of its noncompliance with the statute. The trial court dismissed Tarco’s claims. The court of appeals reversed in part, holding: 1) CMD’s pleadings didn’t prejudice Tarco, 2) the contracts were for “public works” under the statute, 3) the statute is not a nonclaim statute, 4) the CMD lacked the power to waive the bond requirement, and 5) fact issues saved Tarco’s equitable estoppel argument.
Tag Archives: Equitable Estoppel
Ambiguity keeps lawyers employed. In this case, a construction contract had an ambiguous “Cost/Plus” price provision that “included, without limitation” “wages [of] construction workers directly employed.” Owner believed the price was limited to the actual cost of wages. Builder believed “costs” referred to fixed wage rates that included unemployment insurance, workers’ compensation, and other expenses. Owner did not object to Builder’s interpretation until after litigation arose. The court of appeals held that Owner was estopped from arguing his interpretation was correct because he had full knowledge of the facts, unreasonably delayed, and Builder detrimentally relied on Owner’s delay. This was the first time a Colorado court applied the equitable estoppel doctrine to the interpretation of an ambiguous contract. It was remanded to recalculate damages.
Marc Giuliani, Footprints Health and Wellness, Inc., et. al., v. Jefferson County Board of County Commissioners, 2012COA190 (November 1, 2012)
A medical marijuana dispensary/center is not a medical office or clinic, retail sales or services establishment, drug store, medical supply distributor or seller of medical equipment and services. Here, the court upheld a zoning violation notice to a dispensary located in a retail shopping center zoned for only the above purposes. Specifically, the court found that: 1) neither Amendment 20 nor the regulatory statutes barred the zoning restriction, 2) Jefferson County was immune to equitable estoppel claims, and 3) the record supported the zoning violation citation. It also found that a ban on all medical marijuana centers in unincorporated areas, issued after the center opened, mooted certain claims because zoning compliance would be impossible. The remaining constitutional challenges were not preserved for appeal and the dispensary’s challenge was dismissed in full.