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Hottinger Excavating & Ready Mix, LLC v. R. E. Construction, LLC

United States District Court, D. Colorado

March 30, 2016



Kathleen M. Tafoya, Magistrate Judge.

This matter is before the court on “Defendants R.E. Crawford Construction, LLC’s and Jeff Uselton’s Motion for Summary Judgment” (Doc. No. 71), to which Plaintiff has responded (Doc. No. 73) and Defendants have replied. (Doc. No. 75.) Also before the court is “Plaintiff’s Motion for Summary Judgment” (Doc. No. 72), to which Defendants have responded (Doc. No. 74) and Plaintiff has replied. (Doc. No. 76.)


In 2012, Akron Family Dollar Store, LLC (“Akron FDS”) hired independent contractor, Defendant R.E. Crawford Construction LLC (“Crawford” or “Crawford Construction”), to construct a Family Dollar Store in Akron, Colorado (the “Project”). (Doc. Nos. 71-1, 71-2, 71-3.) Crawford Construction received total disbursements from Akron FDS in the amount of $523, 249 for the Project. (Doc. No. 74-2 at 124.) Jeff Smith of Crawford Construction testified that these disbursements were handled consistent with his general practice of maintaining an accounting sheet, or escrow sheet, which lists all of Crawford Construction’s active projects. (Doc. No. 72-4 at 36-37.) Within each project, Mr. Smith keeps an accounting of moneys paid in and out. (Id.) The money received for each project is held in escrow in this manner until it becomes due to the vendors. (Doc. No. 72-4 at 36-37; Doc. No. 77-2 at 2-3; Doc. No. 77-3.)

In or around April 2012, Crawford Construction hired various subcontractors for the Project, including Defendant Coastal Elite, LLC (“Coastal Elite”). (Doc. No. 71-4; Doc. No. 72-2 at 1.) Coastal Elite was hired to complete the building erection and under the terms of the original contract, Crawford Construction was to pay Coastal Elite $126, 000. (Doc. No. 71-4 at 8-9.) On May 25, 2012, the contract was increased to $152, 000. (Doc. No. 71-8.)

Coastal Elite hired various subcontractors, including Plaintiff. (Doc. No. 72-2 at 1; Doc. No. 74-1 at 11-12.) Coastal Elite and Plaintiff did not enter into a written contract at any point but instead relied on four verbal agreements. (Doc. No. 71-6 at 2-3.) First, Coastal Elite hired Plaintiff to erect the building for the Project, for which Coastal Elite was supposed to pay Plaintiff $18, 800. (Doc. No. 71-5 at 27-28; Doc. No. 71-6 at 2-3.) Second, Coastal Elite asked Plaintiff to do the “dirt work” for the job, which included digging the foundation for the building, hauling in filling material, spreading it in layers and compacting it. (Doc. No. 71-5 at 19.) Coastal Elite was supposed to pay Plaintiff only its employees’ hourly rate plus the cost of equipment and other items needed for the project. (Id.) Third, Plaintiff agreed to finish grading the parking lot. (Doc. No. 71-5 at 124.) Finally, Plaintiff agreed to do work related to curbs and sidewalks. (Doc. No. 71-5 at 85-88.)

On July 17, 2012, Coastal Elite submitted draw paperwork to Crawford Construction, along with a Sworn Statement indicating the total amounts owed to Coastal Elite’s subcontractors and the supporting documentation. (Doc. No. 71-9.) The Sworn Statement indicated Coastal Elite owed $147, 176.35 to its subcontractors, even though the total contract with Crawford Construction was $152, 000. (Doc. No. 71-8; Doc. No. 71-9 at 6.) It also indicated Coastal Elite had not paid any funds to any of its subcontractors and that Plaintiff’s work on the Project was 100% complete. (Doc. No. 71-9 at 6.) Crawford Construction became concerned by the small difference between Coastal Elite’s total contract and the total amount due to its subcontractors, as well as by the fact that no funds had been paid out. (Doc. No. 74-2 at 101-02.) Based on this, Crawford decided to pay Coastal Elite’s subcontractors directly. (Id.)

On July 18, 2012, Crawford Construction requested various additional paperwork from Coastal Elite and noted that the balance of submitted invoices from Plaintiff totaled only $36, 983.19, yet Coastal Elite had stated on its Sworn Statement it owed Plaintiff $49, 816.15, a difference of $12, 832.96. (Doc. No. 71-10.) Ed Cox, Coastal Elite’s Vice President, contacted Eugene Hottinger, Plaintiff’s owner, and instructed him to create an invoice in the amount of $12, 832.96 with a work description of “additional site work” because that was the amount left on the contract. (Doc. No. 71-5 at 138-39.) Plaintiff created Invoice # 8739 in this manner. (Doc. No. 71-5 at 138-39; Doc. No. 71-12.)

On July 19, 2012, Coastal Elite submitted Plaintiff’s Invoice # 8739 to Crawford Construction stating, “Sorry I left this one out.” (Doc. No. 71-10.) The invoice raised red flags for Crawford as it noted that the invoice totaled $12, 832.96, the exact amount of the previously referenced discrepancy, and was dated the day after Crawford was informed Plaintiff’s work was completed. (Doc. No. 71-9 at 14-19; Doc. No. 71-10; Doc. No. 71-12.) Crawford was also concerned by the invoice because it was not aware of any “additional site work” that needed to be completed at that time. (Doc. No. 75-1 at 68-69, 97-98, 104.) On August 7, 2012, Crawford Construction issued a check to Plaintiff in the amount of $36, 983.19, the total amount of the invoices submitted by Plaintiff, with the exception of Invoice # 8739 for which Crawford Construction requested further information from Coastal Elite. (Doc. No. 72-2; Doc. No. 74-2 at 85-88; Doc. No. 75-1 at 100, 104-05.)

On August 17, 2012, Plaintiff submitted additional invoices totaling $37, 675.92 directly to Crawford Construction, including Invoice # 8695 dated June 20, 2012, Invoice # 8744 dated July 25, 2012, Invoice # 8745 dated July 25, 2012, and Invoice # 8747 dated July 25, 2012, with a statement that these invoices had not been paid by Coastal Elite and requesting payment from Crawford Construction. (Doc. No. 71-11 at 2-6.) The four invoices arriving in August considerably heightened Crawford’s concern. (Doc. No. 71-11; Doc. No. 74-2 at 68-69, 84-88, 101-02, 104; Doc. No. 75-1 at 100-02.) Crawford noted that one of the four invoices was dated June 20, 2012, over one month prior to the submission of Plaintiff’s original invoices, while three were dated one week after Coastal Elite told Crawford that Plaintiff’s work was completed. (Doc. No. 71-11; Doc. No. 75-1 at 68-69, 102.) Crawford also noted the fact that #8739, which remained outstanding, was not included in the new invoices and total demanded. (Doc. No. 71-11; Doc. No. 75-1 at 68-69, 97-99, 102, 105.)

When Crawford received the new invoices, it continued to hold $12, 832.96 in trust to pay Invoice #8739, presuming it eventually received the additional information it requested regarding the same. (Doc. No. 75-1 at 83-84, 85; Doc. No. 77-2; Doc. No. 77-3.) It also requested further information pertaining to the new invoices. Though it is not clear exactly when this request took place, Plaintiff has stated that, in response to Crawford’s request for more information, it submitted Daily Job Reports in support of its invoices “well before the lawsuit at issue was filed.” (Doc. No. 73 at 15.) However, Crawford Construction found, and Mr. Hottinger admitted, a number of inconsistencies between the Daily Job Reports and Plaintiff’s invoices. (Doc. No. 71-5 at 101-03, 106-07, 112, 114-17.)

For example, with regard to Invoice # 8745, Mr. Hottinger initially testified that the invoice pertained to work performed on June 13, 2012, even though the invoice is dated July 25, 2012. (Doc. No. 71-5 at 107.) This invoice included a work description of “labor and equipment use to fill and grade parking lot, ” “labor, ” and “installing water and sewer lines.” (Doc. No. 71-18 at 4.) Plaintiff’s Daily Job Report from June 13, 2012 contains the description “Remove asphalt and concrete.” (Doc. No. 71-5 at 106.)[1] Plaintiff acknowledged that a third party would have no way of knowing that the work described in the June 13, 2012 Daily Job Report was encompassed within Invoice # 8745, dated July 25, 2012. (Doc. No. 71-5 at 106-11.) Specifically, Mr. Hottinger explained, “Well, there is nothing in that invoice that tells you that. I just - - I know in my mind that that’s what it is.” (Doc. No. 71-5 at 110.)

Additionally, the amounts indicated in the invoice were flat rates rather than certain amounts owed for hours worked. (Doc. No. 71-13.) For example, it provided that the amount owed for “labor and equipment use to fill and grade parking lot” was “12, 000” at a rate of “12, 000.” (Id.) Mr. Hottinger later admitted that Mr. Cox called him a few days before July 25, 2012 (the date of Invoice # 8745) and told him that Coastal Elite had $16, 500 left on the contract with Crawford Construction for Plaintiff to bill out. (Doc. No. 71-5 at 161-62.) Thus, the amount owed as reflected on Invoice # 8745 does not represent hours worked or costs expended. (Id.)[2]

Plaintiff claims that the total amount of the invoices it submitted to Crawford Construction was $74, 659.11 (this total does not include the $12, 832.96 from #8739, but does include the $16, 500 from #8745), however, Crawford has only paid $36, 983.19. (Doc. No. 72-2 at 2.)[3] Plaintiff filed a mechanic’s lien with the Washington County Clerk & Recorder on October 10, 2012 in the amount of $37, 675.92, the total of the invoices submitted in August and the amount Plaintiff contends represents the value of the services it provided for the Project. (Doc. No. 72-2 at 2, 26.)

In the present case, certain of Plaintiff’s claims were previously dismissed by this court. (Doc. No. 47.) Plaintiff’s remaining claims against Crawford Construction are based upon civil theft, breach of fiduciary duty, breach of contract, and unjust enrichment. Plaintiff also asserted claims against Defendant Uselton for civil theft and breach of fiduciary duty. Defendants initially moved for summary judgment on all of Plaintiff’s remaining claims, but have conceded that Plaintiff’s unjust enrichment claim is not appropriate for summary judgment.[4] (Doc. No. 75 at 14.) Plaintiff has requested summary judgment as to its claim for civil theft or, in the alternative, its claim for unjust enrichment.[5]


Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works, Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A disputed fact is “material” if “under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S. at 248).

When ruling on a motion for summary judgment, a court may consider only admissible evidence. See Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment. Concrete Works, 36 F.3d at 1517. At the summary judgment stage of litigation, a plaintiff’s version of the facts must find support in the record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court ...

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