[Copyrighted Material Omitted]
Miguel County District Court No. 13CV30050 Honorable David S.
Office of John C. Seibert, LLC, John Seibert, Durango,
Colorado, for Plaintiff-Appellant.
& Law P.C., Curtis R. Henry, Littleton, Colorado, for
Plaintiff-Appellant, Franklin Drilling and Blasting Inc.
(Franklin), was a subcontractor on a Colorado Department of
Transportation (CDOT) road project. Defendant-Appellee,
Lawrence Construction Company (Lawrence), was the general
contractor. Although Lawrence was paid in full by CDOT,
Lawrence refused to pay Franklin. That failure led Franklin
to sue Lawrence on a variety of claims. All but one of
Franklin's claims— a claim for civil theft—
were arbitrated in favor of Franklin.
After the arbitration, the parties tried Franklin's civil
theft claim to the court. That claim was premised on
Lawrence's violation of the Public Works Trust Fund
statute (Trust Fund statute), section 38-26-109, C.R.S. 2017.
At the conclusion of Franklin's case-in-chief, the trial
court granted Lawrence's motion for directed verdict,
finding that Franklin had not proved that Lawrence intended
to permanently deprive Franklin of the monies it was owed.
The theft statute, section 18-4-401(1), C.R.S. 2017,
provides, as relevant here, two separate ways that Lawrence
could possess the culpable mental state required for civil
liability under the theft statute: intent to deprive or
knowing use. Because the trial court's findings and
conclusions either addressed only the first of the two
alternatives, or the trial court misconstrued the second, we
must reverse that portion of the judgment and remand for the
court to address the second alternative. We affirm that
portion of the judgment that rests on the trial court's
finding regarding intent to permanently deprive.
Relevant Facts and Procedural History
The facts, as found by the arbitrator, tell us that this
dispute began when Lawrence was hired by CDOT to reconstruct
the Leopard Creek Bridge on State Highway 145 near Telluride.
Lawrence hired Franklin as its subcontractor to provide
drilling and blasting services on the project. As relevant
here, the subcontract required Lawrence to pay Franklin
within seven days of receipt of payment from CDOT.
Franklin completed its work on the project, and, after
various delays, the project was finished. CDOT paid Lawrence
the full contract price for the work. Lawrence, however, did
not pay Franklin. Instead, it notified Franklin that it
planned to withhold all payments because Franklin allegedly
failed to meet the contractually promised production rates.
Franklin sued in the trial court, alleging that Lawrence
wrongfully withheld those payments in violation of section
38-26-109. That statute provides as follows:
(1) All funds disbursed to any contractor or subcontractor
under any contract or project subject to the provisions of
this article shall be held in trust for the
payment of any person that has furnished labor, materials,
sustenance, or other supplies used or consumed by the
contractor in or about the performance of the work
contracted to be done or that supplies laborers, rental
machinery, tools, or equipment to the extent used in the
prosecution of the work where the person has:
(a) Filed or may file a verified statement of a claim
arising from the project; or
(b) Asserted or may assert a claim against a principal or
surety under the provisions of this article and for whom or
which such disbursement was made.
Id. (emphasis added).
Importantly, the statute also provides that "[a]ny
person who violates the provisions of subsections (1) and (2)
of this section commits theft within the meaning of section
18-4-401, C.R.S." § 38-26-109(4). Section 18-4-405,
C.R.S. 2017, provides a civil remedy for the owner of stolen
The owner may maintain an action not only against the taker
thereof but also against any person in whose possession he
finds the property. In any such action, the owner may
recover two hundred dollars or three times the amount of
the actual damages sustained by him, whichever is greater,
and may also ...