Free Proposed Jury Instructions - District Court of Colorado - Colorado

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BIG-D CALIFORNIA' S

AFFIRMATIVE DEFENSES TO

LEPRINO' BREACH OF CONTRACT CLAIM S

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INSTRUCTION NO. ___ BIG-D DEFENSES TO LEPRINO GENERALLY1 ________________________________________________________________________ If you find that Leprino has proved the elements of any of its claims by a preponderance of the evidence, you must then determine whether Big-D has proved, by a preponderance of the evidence, any defense to liability.

1 Authority:

Model Jury Instructions Construction Litigation, No. 9.02.

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INSTRUCTION NO. ___ MITIGATION OF DAMAGES2 ________________________________________________________________________ A person who claims damages as a result of an alleged breach of contract by another has a duty under the law to mitigate those damages-- that is, to take advantage of any reasonable opportunity under the circumstances to reduce or minimize the loss or damage.

If you find that one party is liable and that the claimant has suffered damages, the claimant may not recover for any item of damages that it could have mitigated through reasonable effort. If the claimant unreasonably failed to take advantage of an opportunity to lessen its damages, you should deny recovery for those damages that it could have avoided had it taken advantage of the opportunity.

You must keep in mind that the question whether the claimant acted reasonably with respect to the mitigation of damages is a question for you to decide, as sole judge of the facts Although the law will not allow an injured claimant to site idly by when presented with an opportunity to mitigate its damages, neither does the law require an injured claimant to overly exert itself in an effort to mitigate. It is the defendant' burden of proving by a preponderance of the evidence s that the damages reasonably could have been avoided.

Your determination of whether the claimant acted reasonably to avoid or minimize loss or harm must be based on claimant' situation at the time it became aware of a breach of contract and on s the knowledge, capabilities, and resources that claimant had at that time. It cannot be based on later events or on knowledge, capabilities, or resources that claimant did not have when it became aware of the breach.

In determining whether the claimant acted reasonably to avoid or minimize loss or harm once it

2 Authority:

Model Jury Instructions Construction Litigation, No. 9.08.

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became aware of a beach of contract, you should consider the following:

(1)

The claimant is required to act with reasonable promptness and in good faith and to do all that was reasonable under the circumstances to try to avoid or minimize the resulting loss or harm. If the claimant fulfilled this requirement, it cannot be denied that right to recover damages because its efforts were unsuccessful or because it now appears that some or all of the loss or harm it suffered could have been avoided by steps it did not take.

(2)

The claimant is not required to do things that were impractical or to take risks or make efforts or expenditures that were unreasonable or large in view of the loss or harm to be avoided. The claimant is also not required to go to unusual or extraordinary lengths to avoid or minimize damages or to do things it was unable to do.

(3)

The claimant is not required to assume the burden of doing the things that the defendant agreed to do under the contract.

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INSTRUCTION NO. ___ ESTOPPEL3 ________________________________________________________________________ In this case, Leprino seeks the benefit of a contract terms that provides that Big-D must substantially complete the work by February 1, 2002 and that Big-D must provide proper notice under the contract of any request for additional time or compensation. Big-D responds that Leprino' subsequent conduct in direct opposition to these contract terms waived Leprino' s s ability to take advantage of their effect.

Estoppel is a defense available to a party who has acted to its detriment in reliance on another party' misrepresentations or failure to disclose some material facts. s

To find that Leprino waived its ability to take advantage of the contractual provisions regarding substantial completion and notice, you must find the following three elements:

(1)

Words, acts, conduct, or acquiescence, on the part of Leprino caused Big-D to believe that the contract time had been extended or that formal notice of requests for time extensions or additional compensation were not required;

(2)

Willfulness or negligence, on the part of the Lerpino with regard to the acts, conduct, or acquiescence; and

(3)

Reliance by Big-D on Leprino' words, acts, or conduct as a consequence of which Bigs D changed its position to its detriment.

3
Authority: Model Jury Instructions Construction Litigation, No. 9.12.

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For example, assume that two people have a contract for the delivery of fifty widgets in two weeks. Assume further that after one week, the buyer tells the seller that the buyer actually wants the widgets he week after the original delivery date. The buyer cannot then go into court claiming that seller breached the contract by not delivering the widgets on the original date. The law would say that the buyer would be estopped from doing that.

To successfully claim estoppel against the Leprino, it is Big-D' burden to prove by clear and s convincing evidence that Leprino' conduct or words at any time after making the contract s would have convinced a reasonable person that Leprino was waiving one or more terms of the original contract.

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INSTRUCTION NO. ___ ALLOCATION OF DELAYS4 ________________________________________________________________________ In this case, Leprino seeks damages for Big-D' alleged delay in completing the contract on s time. If you find that Leprino is partly responsible for those delays, then it is appropriate that you reduce the amount awarded to Leprino in accordance with that delay properly attributed to the owner or its architect/engineer. Leprino has the burden of proving by a preponderance of the evidence a proper allocation of damages resulting from delay. If you find that both Leprino and Big-D, or some other party or parties, have all contributed in some manner to the damages Leprino alleged that it suffered, but that Leprino cannot establish with a reasonable degree of certainty the extent to which Big-D is responsible for causing the damages, then Leprino may not recover for any of its damages for delay in this case.

4

Authority:

Model Jury Instructions Construction Litigation, No. 10.05.

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INSTRUCTION NO. _________ BIG-D CALIFORNIA' DEFENSES AND AFFIRMATIVE DEFENSES TO LEPRINO' S S BREACH OF CONTRACT CLAIM Big-D California asserts the following affirmative defenses to Leprino' breach of s Contract claim: 1. 2. 2. Leprino abandoned the Contract; Leprino materially breached the Contract; Leprino failed to satisfy conditions precedent to Big-D California' performance s of its obligations under the Contract; 3. 4. Leprino prevented Big-D California from performing the Contract; Big-D California' performance of the Contract was made impossible and s commercially impracticable by Leprino; 5. 6. Leprino waived one or more rights under the Contract; and Leprino' conduct of approval or ratification of Big-D California' work under the s s Contract constitutes estoppel. 7. Leprino' allowing Big-D California to perform work on the Project after the time s for Contract completion estops Leprino from claiming breach of Contract due to delays. Big-D California has the burden of proving the elements of each of these defenses by a preponderance of the evidence. If you find that Big-D California. has proven any of these defenses, your verdict must be for Big-D California.

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INSTRUCTION NO. ____ BIG-D' DEFENSE OF ABANDONMENT5 S To establish the defense of abandonment of the Contract between Big-D California and Leprino, Big-D California has the burden of proving by a preponderance of the evidence all facts necessary to establish all of the following:

1.

Leprino' positive and unequivocal conduct was inconsistent with Leprino' s s

intent to be further bound by the written Contract between Leprino and Big-D California; and 2. Big-D California acquiesced to Leprino' conduct that was inconsistent with s

terms of the written Contract. Factors you may consider include whether numerous changes, some material and substantial and others trivial, so modified and changed the original Contract that the parties treated the original Contract as abandoned. You may also consider whether the building actually constructed was materially different from the building called for in the original Contract. Such material changes must have been authorized and ordered by the owner. Abandonment may also be implied from the conduct of the parties.

5 Source and Authority: Tripp v. Parga, 847 P.2d 165, 169 (Colo.App. 1992); Martin v. Montezuma-Cortez School
District RE-1, 809 P.2d 1010, 1015 (Colo.App. 1990); H.T.C. Corp. v. Olds, 486 P.2d 463, 466-7 (Colo.App. 1971) cert. denied (Not selected for Official Publication); Harrison v. Albright, 577 P.2d 302, 303-4 (Colo. App 1978) ("the question of whether a contract has been abandoned is ordinarily one of fact"); Coleman Engineering Co. v. North American Avaition, Inc., (1966) 65 Cal.2d 396, 406-7, 55 Cal.Rptr. 1, 420 P.2d 713; C. Norman Peterson Co. v. Container Corp. of America (1985) 172 Cal.App.3d 628, 640 218 Cal.Rptr. 592; 17A C.J.S. Contracts § 412; 13 Am.Jur.2d, Building and Construction Contracts § 97; See also CJI 30:29 (2004)

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INSTRUCTION NO. ______ BIG-D' AFFIRMATIVE DEFENSES MATERIAL BREACH OF CONTRACT6 Big-D California, as an affirmative defense to the breach of Contract claim asserted by Leprino, alleges that Leprino committed a material breach of the Contract which excuses Big-D California from its own obligations under the Contract. A material breach of the Contract by Leprino excuses Big-D California from performing under the Contract, and does not allow it to be liable to the breaching party. A breach is "material" if there is more than a slight and trivial defect in performance, and it affects the essential purpose and conditions of the Contract.

Source and authority: See Utah International, Inc. v. Colorado-Ute Electric Assoc., 425 F.Supp. 1093, 1099 (D.Colo. 1976); Bollech v. Charles County, M.D., 166 F.Supp2d 443 (D.Md. 2001)(a material failure of performance by one party to a contract suspends the duty of the other party to perform); NAS Electronics, Inc. v. Transtech Electronics PTE Ltd., 2003 WL 21048475 (S.D.N.Y. 2002); Carrico v. Kondos, 2003 WL 1948874 (Tex.App.-Ft. Worth 2003)(The breach of a contract by one party excuses performance by non-breaching party.); Totten v. Lampenfeld, 466 A.2d 663 (Sup. Ct. Penn. 1983).

6

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INSTRUCTION NO. ______ BIG-D' AFFIRMATIVE DEFENSES FAILURE TO SATISFY CONDITION PRECEDENT7 Big-D California, as an affirmative defense to the breach of Contract claim asserted by Leprino, alleges that Leprino has failed to satisfy a condition precedent to recovery under the Contract. A "condition precedent" is an event which must occur, unless its non-occurrence is excused, before performance under the Contract becomes due. The failure of a party claiming breach of contract to satisfy a "condition precedent" to the other party' performance of its obligation under that Contract releases the alleged breaching s party from its obligations under the Contract.

Source and authority: CJI-Civ. 4th 30:1 (1998) (Notes on Use) (if the issue of nonperformance or nonoccurrence of a condition precedent is an issue, a separate instruction is required); Hansen v. State Farm Mut. Auto. Ins. Co., 936 P.2d 584, 590 (Colo. App. 1996) (AThe issue for resolution is what, if any, obligations plaintiff must perform in order to become or remain eligible for benefits under a contract with State Farm, i.e., whether a condition precedent existed and was met. The failure of plaintiff to comply with such a condition does not give State Farm a claim against plaintiff; instead, if anything, it releases State Farm from the obligation to pay contractual benefits."); Allstate Insurance Co. v. Orban, 855 P.2d 9, (Colo. App.1992); Jensen v. American Family Mut. Ins. Co. 683 P.2d 1212, 1214 (Colo. App. 1984); Restatement (Second) of Contracts ' 224(1).

7

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INSTRUCTION NO. ___ BIG-D CALIFORNIA AFFIRMATIVE DEFENSEPREVENTION OF PERFORMANCE8 Big-D California is not legally responsible to Leprino on Leprino' claim of breach of s contract if the affirmative defense of prevention is proved. This defense is proved if you find Leprino or Leprino' agent prevented or substantially interfered with Big-D California' s s performance of its contractual obligations.

Source and authority: CJI-Civ. 4th 30:22 (2004). Broadway Roofing and Supply, Inc. v. Cavello, 144 Colo. 562, 357 P.2d 356 (1960); City and County of Denver v. Midwest Plumbing & Heating Co., 125 P.2d 960, 961 (Colo. 1942); See also 6 Corbin on Contracts § 1264 (1962).

8

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INSTRUCTION NO. ________ BIG-D CALIFORNIA' AFFIRMATIVE DEFENSES IMPOSSIBILITY / IMPRACTICABILITY9 Big-D California asserts as an affirmative defense to Leprino' breach of Contract claim s that Leprino made Big-D California' performance impossible and/or commercially s impracticable. In order to find in favor of Big-D California on this defense, you must find all of the following: 1. Big-D California' performance of its Contract was made impossible or s commercially impracticable as a result of the conduct of Leprino, including, for example, the extensive amounts of re-designs created by Leprino or its agents, the providing of incomplete or erroneous designs by Leprino and its agents that were used in the bid package process, the late release of design drawings by Leprino and its agents, the late release of design drawings for Leprino' own contractors s describing where and how the process piping and equipment would be laid out to allow the design and construction of other parts of the Project to be timely performed, Leprino and its agents'failures to timely provide design drawings for Big-D California' scope of work, the additional work requested of Big-D s California after the written Contract was entered, Leprino and its agents failure to provide scheduling information, failure to timely issue AFEs and Owner Change Orders, Leprino and its agents' failure to timely resolve design problems and
Source and authority: CJI-Civ. 4th 30:21 (2004); Littleton v. Employers Fire Insurance Co., 453 P.2d 810, 812 (Colo. 1969); Town of Fraser v. Davis, 644 P.2d 100, 101 (Colo. App. 1982) (A>Where, at the time a contract is made, a party's principal purpose is substantially frustrated without his fault by a fact of which he has no reason to know and the non-existence of which is a basic assumption on which the contract is made, no duty of that party to render performance arises, unless the language or circumstances indicate the contrary.'") (adopting Restatement (2d) of Contracts ' 266 (1981)); Navajo Freight Lines, Inc. v. Moore, 463 P.2d 460, 462 (Colo. 1970) (Aif a promisor is himself the cause of the failure of performance of a condition upon which his own liability depends, he cannot take advantage of that failure.").
9

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issues, by Leprino' re-pricing of bid packages, Leprino' excessive and s s inconsistent directions regarding sequencing and prioritizing of Big-D California' work, Leprino' failure to complete the wastewater pre-treatment s s facility, Leprino' refusal to make certain payments to Big-D California despite s promises to the contrary, Leprino and its agents' lack of coordination of design drawings between the core and shell construction and the process piping and equipment installed by Leprino' own contractors, s 2. This impossibility / commercial impracticability could not have been reasonably foreseen by Big-D California; and 3. Big-D California did not cause the impossibility or impracticability of performance. You should find that Big-D California' performance of the Contract was made s impossible and commercially impracticable if Big-D California could not have performed without incurring extreme and unreasonable difficulty, expense, or risk of injury or loss to persons or property.

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INSTRUCTION NO. _____ BIG-D CALIFORNIA' AFFIRMATIVE DEFENSE-INDUCING BREACH10 S Big-D California is not legally responsible to Leprino, on Leprino' claim of breach of s contract if the affirmative defense of inducing a breach of contract is proved. This affirmative defense is proved if you find both of the following: 1. By words or conduct or both, the Leprino caused Big-D California not to perform

its obligation as required by the Contract; and 2. Leprino actually knew, or knew the substantially likelihood, its words or conduct,

or both would have that result.

10

Source and authority: CJI-Civ. 4th 30:23 (2004) (Modified).

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INSTRUCTION NO. _____ BIG-D CALIFORNIA' AFFIRMATIVE DEFENSE-WAIVER OF BREACH OF S CONTRACT11 Big-D California, is not legally responsible to Leprino, on Leprino' claim for breach of s Contract if the affirmative defense of waiver is proved. This defense is proved if you find all of the following: 1. Leprino knew that Big-D California had not performed its original obligation under the Contract to finally complete the work by June 1, 2002; or 2. Leprino knew that the cost of the work for Big-D California exceeded or was going to exceed Big-D California' original estimated budget; and s 3. Leprino knew that this failure of Big-D California gave it the right to terminate Big-D California for cause or for convenience; 4. 5. Leprino intended to give up this right; and Leprino voluntarily gave up this right.

11 Source and Authority: CJI 30:24 (2004)

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INSTRUCTION NO. ______ BIG-D CALIFORNIA' AFFIRMATIVE DEFENSE-ESTOPPEL TO CLAIM TIME S DELAYS FOR BREACH OF CONTRACT12 Big-D California, is not legally responsible to Leprino for breach of Contract based upon time delays if the affirmative defense of estoppel is proved. This defense is proved if you find all of the following: 1. 2. The Contract contained a "time is of the essence" clause; and Despite the presence of a "time is of the essence" clause in the Contract, Leprino

allowed Big-D California to continue work after the expiration of the prescribed time. Here, because the parties have stipulated to the existence of the Big-D California/Leprino Contract, element (1) has been established. If you also find the second element exists, Leprino is estopped from asserting that a breach due to delay serves to operate as a discharge of Leprino' own contractual duties. s

Source and authority: Houy v. Davis Oil Co., 175 Colo. 180, 186, 486 P.2d 18, 21 (1971); DeVito v. U.S., 188 Ct.Cl. 979, 413 F.2d 1147 (1969); Watson Elec. Constr. Co. v. City of Winston-Salem, 426 S.E.2d 420, 423 (N.C.App. 1993)

12

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INSTRUCTION NO. ______ BIG-D CALIFORNIA' AFFIRMATIVE DEFENSE-ESTOPPEL TO CLAIM DAMAGES S FOR BREACH OF CONTRACT13 Big-D California, is not legally responsible to Leprino, on Leprino' claim of breach of s Contract if the affirmative defense of estoppel is proved. This defense is proved if you find all of the following: 1. Leprino or its agents, by conduct or by remaining silent when they had a duty to

speak and protest the actions of Big-D California, represented to Big-D California that they were forgiving the Big-D California' breach of Contract; s 2. 3. Big-D California reasonably relied upon that representation; Big-D California materially changed its position; and 4. The change was to Big-D California' disadvantage. s

13

Source and authority: CJI-Civ. 4th 30:25 (2004)

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INSTRUCTION NO. BIG-D CALIFORNIA' AFFIRMATIVE DEFENSE-RESCISSION OR S CANCELLATION BY MUTUAL CONSENT 14

Big-D California is not legally responsible to Leprino, on Leprino' claim of breach of s contract if the affirmative defense of cancellation by mutual consent is proved. This defense is proved if you find both of the following: 1. 2. Leprino and Big-D California had entered into a Contract; Before any party to the Contract fully performed all of its obligations under the Contract, Leprino and Big-D California agreed to cancel the Contract. An agreement to cancel a Contract may be oral or in writing, or it may be implied from the conduct of the parties.

14 CJI 30:29 (2004)

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INSTRUCTION NO. ______ DAMAGES - FAILURE TO MITIGATE15 If you find that Leprino has prevailed on its claim for breach of Contract and has incurred actual damages, then you must consider whether Big-D California has proven its defense that Leprino failed to mitigate or minimize damages. Leprino has the duty to take reasonable steps under the circumstances to mitigate or minimize its damages. Damages, if any, caused by Leprino' failure to take such reasonable steps cannot be awarded to Leprino. s This affirmative defense is proven if you find all of the following: 1. 2. Leprino failed to take reasonable steps to lessen the amount of its damages; and Leprino incurred increased damages because it did not mitigate its damages.

If you find that either of these propositions has not been proven by a preponderance of the evidence, then you shall make no deduction from Leprino' damages. s On the other hand, if you find that both of these propositions have been proven by a preponderance of the evidence, then you must determine the amount of damages caused by Leprino' failure to take such reasonable steps. This amount must not be included in your award s of damages.

Source and Authority: CJI-Civ. 4th 5:2 (2004); Tull v. Gundersons, Inc., 709 P.2d 940, 946 (Colo. 1985) (en banc) (AA party injured by a breach of contract has a duty to make a reasonable effort to reduce the damage sustained.").

15

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INSTRUCTION NO. _____________

BIG-D CALIFORNIA' DEFENSE TO LEPRINO CLAIM FOR BREACH BASED ON S CALIFORNIA LITIGATION16

Leprino asserts Big-D California breached the Contract and suffered damages due to BigD California' pursuit of litigation in California instead of Colorado. s As a defense to Leprino' claim, you may consider Big-D California' reliance on s s California law that the county in which the construction Project is situated is the proper court for a lawsuit to pursue the foreclosure of liens arising out of the construction of the Project.

16

California Code of Civil Procedure § 392; Case v. Kirkwood, 119 Cal App 207, 208-9 (4th Dist., 1931); Fed.R.Evid. 201(g); United States v. St. Paul Mercury Ins. Co., 70 F. 3rd 1115, 1117 (10th Cir. 1995) (Application of Miller Act requiring jurisdiction where construction project was performed, over forum selection clause contained in construction contract).

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INSTRUCTION NO. ____ BIG-D CALIFORNIA' DEFENSE OF CONCURRENT DELAY17 S Big-D California is not legally responsible to Leprino, on Leprino' claim of breach of s contract if the defense of concurrent delay is established. A delay is concurrent if you find that the complained of delay by Leprino is due in whole or in part to delays caused by Leprino. Leprino, by a preponderance of the evidence, must apportion delays that occurred at the Project among the responsible parties for the delay.

17

Medema Homes Inc. v. Lynn, 647 P.2d 664, 667 (Colo.1982); City of Westminister v. Centric-Jones Constructors, 100 P.3d 472, 481 (Colo.App. 2003); Essex Electro Engineers, Inc. v. Danzig, 224 F.3d 1283, 1289 (Fed.Cir. 2000).

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INSTRUCTION NO. ___ CORPORATE AGENCY18 An agency is created by an agreement, written or oral, express or implied, by which the persons agree that one of tem is to act for, or in the place of, the other. The person who agrees to act for another is called the agent and the other is called the principal. Big-D California asserts that when its employee spoke to Leprino' project manager, Jack s Towle, and the design professionals hired by Leprino, Mr. Towle and those design professionals were acting as an agent of Leprino. These individuals were acting as Leprino' agents and their s statements were statements of Leprino.

Source and authority: CJI-Civ. 4th 7:3 (2004); Sawyer v. Mid-Continent Petroleum Corp. 236 F.2d 518, 520 (10 Cir. 1995) (ASince a corporation can act only through its officers, agents and employees, it is necessarily chargeable with the composite knowledge of its officers and agents acting within the scope of their authority.").
th

18

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INSTRUCTION NO. ____ RATIFICATION- DEFINITION AND EFFECT19 A person may act as the agent for another without authority. If the person for whom the act was done has full knowledge of all the important facts, that person may, by words or conduct, ratify or accept the action after it was done. Ratification after the action is the same as authorization before the action.

19

CJI 7:16 (2004)

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INSTRUCTION NO. ___ KNOWLEDGE OF CORPORATION20 A principal is considered to know or have notice of information is the principal' agent, s while action within the scope of the agent' authority, learns or receives notice of the s information. The knowledge possessed by one employee of a corporation is imputable to the corporation itself and also to other employees of the corporation.

Source and authority: CJI-Civ 4th 7:17 (1998) and CJI 7:17 (2004); Trinity Universal Ins. Co. v. Rocky Mountain Wholesale Co., 353 F.2d 574, 577-78. (10th Cir. 1966) (knowledge of two employees of a bonding company was necessarily imputed to the company, and thus a less senior employee was chargeable with the information when writing a particular bond); Sawyer v. Mid-Continent Petroleum Corp., 236 F.2d 518, 520 (10th Cir. 1955) (ASince a corporation can act only through its officers, agents and employees, it is necessarily chargeable with the composite knowledge of its officers and agents acting within the scope of their authority.").

20

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INSTRUCTION NO. _______ DAMAGES - SETOFF21 If you find that Leprino is entitled to damages as a result of Big-D California' s breach of the Contract, then the amount of damages you award must be reduced by the amount of any sums which you find Big-D California is owed by Leprino.

21

Source and authority: CJI 30:39 (2004) and CJI 30:43; Black' Law Dictionary, 6th Ed. (1992). s

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INSTRUCTION NO. ____ BIG-D CALIFORNIA' ALTERNATIVE INSTRUCTION ON ALTER-EGO AND S PIERCING THE CORPORATE VEIL22

Leprino claims that Big-D California is a sham corporation used for the purpose of conducting the business affairs of Big-D Corp. and other Big-D corporate entities. Leprino thus claims that Big-D Corp. and the other Big-D corporate entities should be held responsible for any verdict you may enter against Big-D California. This is called "piercing the corporate veil". In order to prevail in its claim to pierce the corporate veil of Big-D California, Leprino has the burden of proving, by a clear showing, all of the facts necessary to establish the following: 1. Big-D California was used to perpetrate a fraud, promote injustice, defeat

a rightful claim, or commit a wrong against Leprino. Factors to consider in determining whether element No. 1 was established above, include the following. Even if you find the factors listed below to be present, you must find that those factors below, if any, establish a clear showing that Big-D California was used to perpetrate a fraud, promote injustice, defeat a rightful claim, or to commit a wrong against Leprino. Standing alone, informalities in the conduct of Big-D California

do not form a basis to pierce the corporate veil. Additionally, Leprino must establish a degree of control was actually exercised over Big-D California by another particular BigD corporate entity, even if Big-D California was wholly owned by another Big-D
22 Source and Authority: Gude v. City of Lakewood, 636 P.2d 691, 697 (Colo. 1981); Jarnagin v. Busby, Inc., 867 P.2d 63, 69 (Colo.App. 1993);Contractors Heating and Supply Company v. Scherb, 432 P.2d 237, 239 (Colo. 1967); FDIC v. First Interstate Bank of Denver, 937 F. Supp 1461, 1466 (D. Colo. 1996); NLRB v.Greater Kansas City Roofing, 2 F.3d 1047, 1052 (10th Cir. 1993); Lowell Staats Mining Co. v. Pioneer Urvan, Inc., 878 F.2d 1259, 1264-5 (10th Cir. 1989).

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corporate entity: 1. 2. 3. 4. 5. 6. 7. 8. whether a corporation has operated as a separate entity; commingling of funds and other assets; failure to maintain adequate corporate records or minutes; the nature of the corporation' ownership and control; s absence of corporate assets and under-capitalization; use of corporation as a mere shell, instrumentality, or conduit of an individual or other corporation; disregard of legal formalities and the failure to maintain an arms' length transaction among related entities; and diversion of the corporation' funds or assets to non-corporate uses. s

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INSTRUCTION NO. ___ DELAY AS A BREACH OF CONTRACT23 ________________________________________________________________________ In this case, Leprino seeks damages from Big-D based on the claim that Big-D failed to complete the contract on time. You have heard evidence that the original contract between Leprino and Big-D required substantial completion by February 1, 2002. If the plaintiff has proved that the construction contemplated by the contract was not substantially complete by the date specified and if you find that the contract was not subsequently modified and that Big-D has no other defenses as may subsequently be explained to you, then you may find that this delay was a breach of contract entitling Leprino to damages.

A delay in completion by the contractor is excusable if it is caused by some action or negligence on behalf of the owner that actively interferes with the contractor' ability to s complete the work on time.

Furthermore, Leprino may be in breach of contract if you find that an extension of time to perform was warranted and requested by the Big-D and Leprino denied a time extension or additional compensation.

23 Authority:

Model Jury Instructions Construction Litigation, No. 6.07.

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INSTRUCTION NO. ___ No Damage for Delay Clauses1 _______________________________________________________________________ Leprino claims that the contract with Big-D includes a provision that says that if there is a delay on the project, Big-D' only remedy is additional time, but no additional money. s Such a provision is commonly referred to as the no damage for delay clause. However, the no damage for delay provision is not enforceable by Leprino against Big-D if you find any of the following: 1. 2. The delay was the result of a breach of the contract by Leprino; If Leprino, by its words or conduct, waived its right to enforce that provision; or 3. If Leprino represented to Big-D that it would compensate Big-D for the delay to induce Big-D to proceed with the work, and Big-D relied on that representation to its detriment.

1 Authorities: Hawley v. Orange County Flood etc. Dist. (1963) 211 Cal. App. 2d 708, 714-717, 27 Cal. Rptr. 478 ; Maurice L. Bein, Inc. v. Housing Authority (1958) 157 Cal. App. 2d 670, 681-682, 321 P.2d 753 ; McGuire & Hester v. City etc. of S.F. (1952) 113 Cal. App. 2d 186, 188-192, 247 P.2d 934 ; Milovich v. City of Los Angeles (1941) 42 Cal. App. 2d 364, 377-378, 108 P.2d 960 .

Case 1:03-cv-02669-MSK-PAC

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