Overland Development Co. v. Marston Slopes Development Co., 87CA1612

Citation773 P.2d 1112
Case DateApril 20, 1989
CourtCourt of Appeals of Colorado

Page 1112

773 P.2d 1112
No. 87CA1612.
Colorado Court of Appeals,
Div. V.
April 20, 1989.

Page 1113

Baker & Hostetler, Fred M. Winner, Andrew B. Prosser, Denver, for plaintiff-appellant.

Timothy J. Flynn, Englewood, for defendant-appellee.


Plaintiff, Overland Development Co., appeals from the judgment dismissing its claims of contract violation, fraud, and negligent misrepresentation against defendant, Marston Slopes Development Co., a land developer. It asserts that (1) the trial court's findings mandate the entry of a judgment for money damages and attorney fees under its contract claim, (2) the exclusion of certain testimony of an expert proffered by plaintiff was prejudicial error, and (3) the trial court applied the wrong legal standard in dismissing its claim for negligent misrepresentation. We affirm in part and reverse in part.

Pursuant to two written agreements, plaintiff purchased five building sites from defendant in Marston Slopes Subdivision, a subdivision that defendant had previously developed. By these agreements, defendant undertook to landscape certain areas within the subdivision, although no time for the completion of the landscaping was set. As of the date of trial, this landscaping had not been completed.

These agreements also provided that, should any litigation result between plaintiff and defendant relating to the agreements or their subject matter, the "prevailing party" would be "entitled" to an award of reasonable attorney fees as damages.

During the negotiations leading to the execution of these agreements, the question of the continued existence of a neighboring trap shooting range operated by a recreation district was discussed. Plaintiff was shown a letter from the United States Department of Interior which indicated that the range would be moved to another location by 1987, and defendant's agent expressed the opinion that the shooting range would be removed in the reasonably near future. At the same time, defendant had knowledge of another letter from an official of the recreation district which said that, while another site for the range was available, there were "real and pragmatic concerns of financing and location" with respect to its relocation. The range had not been relocated as of the date of trial.

After plaintiff's acquisition of the building sites, it proceeded to build residences on two of them which it sold for less than it had expended to build them. Thereafter, it initiated this action based on defendant's failure to complete the landscaping of the area or to enforce certain restrictive covenants upon the property and on the failure of the shooting range to be relocated as represented by defendant. It claimed as damages the difference between their sale

Page 1114

prices and the construction costs and expenses, plus the amount it had paid defendant for the sites.

After a bench trial, the district court found generally in defendant's favor. While it concluded that defendant had breached the obligation that it owed to install certain landscaping, it found that the losses sustained by plaintiff from its erection and sale of the two residences were the result of unfavorable market conditions and other factors for which defendant was not responsible. It also found that the opinion expressed by defendant respecting the relocation of the shooting range was not a material consideration to plaintiff at the time of the execution of the agreements. Further, it found and concluded that defendant was not guilty of fraud or negligent misrepresentation because it entertained the good faith opinion that the shooting range was to be relocated within a reasonable time and, based on all of the information in its possession, defendant had not acted unreasonably in forming or expressing this opinion.

In addition, the court awarded defendant a judgment for some $129,000, representing the principal and interest due on a purchase money note and deed of trust, together with attorney fees called for by those instruments.


Plaintiff argues that, because the trial court found that defendant had breached its obligation to landscape some of the areas it had agreed to landscape, plaintiff was entitled, as a matter of law, to recover the actual damages it sustained or, at the least, nominal damages. Further, it asserts that, since it "prevailed" upon this issue of contract violation, the provisions of the agreements required that it be awarded its attorney fees. While we agree that plaintiff was entitled to a judgment for nominal damages, we conclude that the trial court's denial of actual damages is supported by the record. We also conclude that plaintiff is not entitled to an award of attorney fees.


Relying upon the well-accepted principle that a damage award will not be withheld when it is only the amount, and not the fact, of damage that is uncertain, plaintiff asserts that the record here required the trial court to enter a judgment for actual damages to compensate plaintiff for defendant's failure to landscape. We disagree.

The principle, reiterated by this court in Hein Enterprises, Ltd. v....

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16 cases
  • Dennis I. Spencer Contractor, Inc. v. City of Aurora, 93SC529
    • United States
    • Colorado Supreme Court of Colorado
    • November 7, 1994
    ...and must have achieved some of the benefits that he sought in the lawsuit." Overland Development Co. v. Marston Slopes Development Co., 773 P.2d 1112, 1115 (Colo.App.1989). Here, Aurora succeeded in arguing that any breach of the settlement agreement did not result in damages to Spencer. As......
  • Rogers v. Board of Trustees of Town of Fraser, s. 91CA0793
    • United States
    • Colorado Court of Appeals of Colorado
    • April 8, 1993
    ...judicial declaration that one of [his] legal assertions is correct." See Overland Development Co. v. Marston Slopes Development Co., 773 P.2d 1112, 1115 Page 289 Fraser maintains that Rogers is not entitled to an award of attorney fees unless he obtains a verdict from a jury properly instru......
  • Interbank Investments, LLC v. EAGLE RIVER, 02CA0556.
    • United States
    • Colorado Court of Appeals of Colorado
    • March 27, 2003
    ...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. In Staffing America, the court did not address preclusion of a quasi-contract claim by an express contract covering the same subjec......
  • Wheeler v. TL Roofing, Inc., 02CA0713.
    • United States
    • Colorado Court of Appeals of Colorado
    • May 22, 2003
    ...issue in the case and achieve some of the benefits that it sought in the lawsuit. See Overland Dev. Co. v. Marston Slopes Dev. Co., 773 P.2d 1112 Plaintiff argues that the trial court abused its discretion in finding that defendant prevailed because this finding necessarily ignores the hold......
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