Monthly Archives: August 2006

August 10, 2006

Remititur Not Proper Vehicle To Strike Previously-Undisclosed Lost Profits Claim

By Tim Gordon

Belfor USA v. Rocky Mtn. Caulking (Colo. App. 2006)

Decided August 10, 2006, the Court of Appeals reverses the trial court’s remititur, basically allowing the claimaint to seek lost profits at the last minute. Belfor had hired Rocky Mountain to install caulking and waterproof coatings on 161 exterior decks of an apartment complex for a lump sum of $184,831. Rocky Mountain partially completed the work, and Belfor paid Rocky Mountain only $65,380. The parties then went to court, both alleging that the other had breached the contract.

Rocky Mountain indicated throughout the preliminary stages of the lawsuit that it was seeking only $12,582.90 for unpaid work performed. Rocky Mountain’s mechanics’ lien was for $12,582.90. In the Trial Management Order, Rocky Mountain identified that it was seeking $12,582.90. And Rocky Mountain’s principal testified at trial that only four invoices totaling $12,582.90 remained unpaid. Thus, Belfor and the trial court apparently presumed that Rocky Mountain was only seeking $12,582.90.

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