Jim Black v. Coleman

24CA0080 Jim Black v Coleman 11-26-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0080
Jefferson County District Court No. 22CV30319
Honorable Ryan P. Loewer, Judge

Jim Black Construction, Inc.,

Plaintiff-Appellee,

v.

Derek Coleman,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND VACATED IN PART

Division I
Opinion by JUDGE J. JONES
Grove and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 26, 2025

Wilson Elser Moskowitz Edelman & Dicker LLP, Ryan A. Williams, Gabrielle
Lalonde, Denver, Colorado; Mark Champoux, Daniel A. Richards, Nicholas R.
Peppler, Denver, Colorado, for Plaintiff-Appellee

Thomas P. Howard, LLC, Thomas P. Howard, Scott E. Brenner, Sam Thomas,
Louisville, Colorado, for Defendant-Appellant
¶1 Defendant, Derek Coleman, appeals the trial court’s judgment

in favor of plaintiff, Jim Black Construction, Inc. (Jim Black), on its

claims for foreclosure of a mechanic’s lien, breach of contract,

unjust enrichment, and promissory estoppel. We affirm the part of

the judgment on the mechanic’s lien foreclosure and breach of

contract claims and vacate the part of the judgment on the unjust

enrichment and promissory estoppel claims.

I. Background

¶2 Late one night, a fire broke out in Coleman’s home, causing

significant damage. While firefighters were putting out the fire,

representatives from Jim Black met with Coleman in his front yard.

That night, Coleman and Jim Black agreed that Jim Black would

stabilize Coleman’s house to mitigate further damage. Two days

later, Coleman went to Jim Black’s office and engaged the company

to restore Coleman’s house to its pre-fire condition. During this

meeting, Coleman signed two contracts: (1) a restoration “Proposal”

(Proposal), which provided that Jim Black would supply labor and

materials for the project; and (2) a “Work Authorization and

Direction to Pay” (Work Authorization), which, among other things,

allowed Jim Black to begin the restoration process as authorized by

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either Coleman or his insurance company. With the agreements

signed, Jim Black started restoring the property.

¶3 Shortly thereafter, Cogdill Consulting (Cogdill), a third party

working with Coleman’s insurance company, created an estimate

for the project. Jim Black agreed to Cogdill’s estimate and referred

to it throughout the restoration process.

¶4 Several months into the project, Coleman asked Jim Black to

change parts of the house’s pre-fire architectural design, and Jim

Black subsequently added those changes to its restoration plan. To

comply with Coleman’s request, Jim Black had to obtain new bids

from subcontractors and new estimates for the cost of repair, all of

which slowed down the restoration project. As a result of the

slowdown, Coleman became dissatisfied and terminated Jim Black

about twenty months into the project.

¶5 After being terminated, Jim Black sent Coleman its final

invoice for the project, totaling $166,857.44. The invoiced amount

was based on Cogdill’s estimate, a change order sent to Coleman by

Jim Black, and various invoices from Jim Black’s subcontractors.

When Coleman received the invoice, he emailed Jim Black asserting

that there were “a lot of things that [Jim Black] charged more than

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once.” Jim Black representatives offered to meet with Coleman to

discuss the alleged duplicate charges, but Coleman didn’t respond

to the requests. After it didn’t hear from Coleman or receive

payment, Jim Black filed a mechanic’s lien against Coleman’s

property for the final invoice amount. Jim Black then filed suit

against Coleman, asserting claims for foreclosure of the lien, breach

of contract, unjust enrichment, and promissory estoppel. Coleman

asserted counterclaims for breach of contract, promissory estoppel,

fraud, negligent misrepresentation, and recording of an excessive

lien.

¶6 During discovery, Jim Black found a duplicate charge of

$2,160 in its initial billing, which related to engineering fees (an

accounting error) and reduced the claimed lien by that amount,

plus 10% profit and 10% overhead fees (for a total of $2,592),

resulting in a new total of $164,265.44.

¶7 Following a bench trial, the court found in Jim Black’s favor

on all of its claims and all of Coleman’s counterclaims. The court

ordered Coleman to pay Jim Black $164,265.44 (the revised

amount), plus interest, costs of enforcement, and attorney fees.

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Coleman only appeals the portion of the judgment on Jim Black’s

claims.

II. Discussion

¶8 Coleman contends the trial court erred by (1) finding that he

failed to prove that Jim Black’s mechanic’s lien was excessive; (2)

finding that the lien, as recorded, included only $2,592 in excess

charges; (3) failing to enforce the provision in the Proposal

addressing changes to the scope of the work; and (4) entering

judgment in Jim Black’s favor on its unjust enrichment and

promissory estoppel claims. We reject Coleman’s first three

contentions but agree with the fourth.

A. Application of the Mechanic’s Lien Statute

¶9 Coleman initially contends that the trial court applied an

incorrect legal standard in determining whether Jim Black’s

mechanic’s lien was excessive and clearly erred by finding that Jim

Black didn’t know that its lien was excessive when recorded. We

disagree with both contentions.

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1. Correct Legal Standard

a. Standard of Review and Applicable Law

¶ 10 We review the trial court’s interpretation of the mechanic’s lien

statutes de novo. Galiant Homes, LLC v. Herlik, 2025 COA 3, ¶ 22;

Sure-Shock Elec., Inc. v. Diamond Lofts Venture, LLC, 2014 COA 111,

¶ 8.

¶ 11 Section 38-22-128, C.R.S. 2025, governs forfeiture of a

mechanic’s lien when a claimant files a lien for an amount greater

than what’s due. “The intent of section 38-22-128 is to punish and

deter those who abuse the mechanic’s lien statute by knowingly

and intentionally claiming excess amounts . . . .” Honnen Equip.

Co. v. Never Summer Backhoe Serv., Inc., 261 P.3d 507, 510 (Colo.

App. 2011). Thus, a party asserting that a mechanic’s lien is

excessive within the meaning of the statute must show that (1) the

lien amount exceeds what was due when the lien was recorded; (2)

there was no reasonable possibility that the amount of the lien was

then due; and (3) the lien claimant knew that the amount claimed

was greater than the amount due. § 38-22-128; see Honnen Equip.

Co., 261 P.3d at 510 (citing LSV, Inc. v. Pinnacle Creek, LLC, 996

P.2d 188, 192 (Colo. App. 1999)).

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b. Analysis

¶ 12 Coleman argues that while “the court began by applying the

correct legal standard,” it ultimately applied an erroneous standard

by finding that Jim Black didn’t have any reason to believe that

there was an accounting error in the final invoice (concerning the

duplicate charge of $2,592 for engineering fees). But the court

made that finding expressly in the context of determining whether

Jim Black knew that the amount claimed was greater than the

amount actually owed — one of three elements of an excessive lien

claim. The accounting error was the basis of Coleman’s allegation

that Jim Black knew that its lien was excessive. And so the court

was merely addressing that allegation under the applicable element

of the claim. See § 38-22-128; see also Galiant Homes, ¶¶ 23, 35

(the trial court used the terms “reasonable belief” and “knowledge”

interchangeably).

¶ 13 Coleman also argues that the trial court added a new element

to the test by saying that the accounting error in Jim Black’s final

invoice wasn’t so “egregious to render the lien amount facially

excessive.” But, again, the court made this finding in the context of

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determining whether Jim Black knew that its lien was excessive

when recorded.

2. Whether Jim Black Knew its Lien was Excessive

a. Applicable Law and Standard of Review

¶ 14 As noted, to void a lien under section 38-22-128, a party must

prove, among other things, that the lien claimant knew that the lien

was excessive when recorded. In this context, knowledge is “an

awareness . . . of a fact or circumstance.” JW Constr. Co. v. Elliott,

253 P.3d 1265, 1271 (Colo. App. 2011) (quoting Black’s Law

Dictionary 950 (9th ed. 2009)).

¶ 15 In determining whether the lien claimant knew that the lien

was excessive when recorded, the fact finder must consider “the

information available to the lien claimant at the time of filing the

lien statement.” E.B. Roberts Constr. Co. v. Concrete Contractors,

Inc., 704 P.2d 859, 864 (Colo. 1985). And the fact finder should

keep in mind that, while it may turn out that there was no

possibility that the amount claimed was due, the claimant could

have been unaware that there wasn’t a reasonable possibility that

the amount claimed was due. See Galiant Homes, ¶ 34.

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¶ 16 Because the determination whether a lien was excessive is a

question of fact, we review a trial court’s finding for clear error.

Byerly v. Bank of Colo., 2013 COA 35, ¶ 32. “A finding is clearly

erroneous if there is no evidence in the record to support it.” Id.;

see E.B. Roberts, 704 P.2d at 864.

b. Analysis

¶ 17 Coleman contends that his email saying there were “a lot of

things that you . . . charged more than once” and Jim Black’s

acknowledgment of a duplicate charge of $2,592 after filing the lien

show that Jim Black didn’t “lack[] the information necessary to

identify the duplicate charge.” But the test isn’t whether a claimant

had enough information; it’s whether it knew the lien was excessive

at the time of filing. § 38-22-128.

¶ 18 There is evidence in the record showing that Jim Black didn’t

know the lien was excessive when filed. Coleman’s email, referring

to an invoice with hundreds of line items, only mentioned a possible

duplicate asbestos abatement charge, but nothing else that had

been “charged more than once.” And after Coleman emailed Jim

Black, Jim Black reached out multiple times to Coleman offering to

review the invoice with him. Jim Black’s offers to meet with

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Coleman are evidence that it was unaware of what specific

duplicate items Coleman was concerned about. And it was Jim

Black that identified the duplicate engineering fee in the final

invoice during discovery and made clear that it wasn’t seeking to

recover that amount. This adjustment is evidence that Jim Black

believed that the accounting error was the extent of the duplicate

charges. Further, Jim Black employees testified about the process

of creating the final invoice — which included reviewing the invoices

and estimates and having the project manager review the final

invoice after Coleman voiced concerns. From all this, the fact finder

reasonably could conclude that Jim Black didn’t knowingly record

an excessive lien.

¶ 19 In arguing for a contrary conclusion, Coleman references two

cases in which divisions of this court found a mechanic’s lien to be

excessive: Wigham Excavating Co. v. Colorado Federal Savings &

Loan Ass’n, 796 P.2d 23, 24 (Colo. App. 1990); and LSV, 996 P.2d

at 191. But in those cases, the divisions concluded that the record

evidence showed that the lien claimants knew their liens were for

more than what was due when they filed them. Wigham, 796 P.2d

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at 24-25; LSV, 996 P.2d at 191. In this case, however, record

evidence supports the trial court’s contrary finding.

B. Uncollectable Charges

¶ 20 Coleman next contends that the trial court clearly erred by

finding that the lien included only $2,592 in excess charges. We

disagree.1

1. Standard of Review

¶ 21 We review the trial court’s findings concerning excess charges

for clear error. See Byerly, ¶ 32.

2. Duplicate Asbestos Charges

¶ 22 Coleman argues that Jim Black knowingly charged him for

work in the final invoice that he had already been billed for in a

separate asbestos abatement invoice, which he had paid. For

example, in the final invoice, Jim Black charged Coleman for

removing the dishwasher, garbage disposal, and range from the

1 As an initial matter, Jim Black contends that Coleman didn’t

preserve this argument for appeal. But Coleman’s counsel raised
the excess charges issue, in some detail, in his written closing
argument, and “arguments may be preserved for appeal by raising
them during closing argument.” Bachelor Gulch Operating Co. v.
Bd. of Cnty. Comm’rs, 2013 COA 46, ¶ 11 (citing Target Corp. v.
Prestige Maint. USA, Ltd., 2013 COA 12, ¶ 23). Thus, the issue is
preserved.

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house. But Coleman argues that these items had already been

removed by the abatement company. He relies on photos taken by

a forensic engineering firm after the abatement. Because those

items aren’t shown in the photos, he says the abatement company

must have removed them. But those photographs don’t show that

the cost of removing the items was charged in the abatement

invoice, which doesn’t specifically identify any of these items. And

Jim Black’s senior project manager, James Crump, testified at trial

that the photographs don’t indicate who removed an item from the

house.

¶ 23 Considering the ambiguity in the record, and our standard of

review, Coleman asks too much of us. See Carousel Farms Metro.

Dist. v. Woodcrest Homes, Inc., 2019 CO 51, ¶ 18 (appellate courts

aren’t “forced to take a fine-toothed comb to . . . each case”). As

noted, we review factual findings for clear error. The trial court

resolves issues of fact, and we won’t “reweigh evidence or substitute

our own judgment for the trial court’s.” Owners Ins. Co. v. Dakota

Station II Condo. Ass’n, 2021 COA 114, ¶ 50.

¶ 24 In addition to the alleged duplicate charges, Coleman argues

that Jim Black’s accountant, Heather Lovelace-Meyers, falsely

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claimed in an email that there was “additional asbestos found and

abatement happened a second time.” He contends the lien included

charges for this second abatement that never occurred, and

therefore the lien was excessive. But Lovelace-Meyers testified at

trial that she had misunderstood the asbestos-related charge in the

final invoice. Based on that misunderstanding, she mistakenly told

Coleman there was a second asbestos abatement. And, in a

subsequent email, Lovelace-Meyers told Coleman that the asbestos-

related charge in the final invoice was instead “for the micro vac

and full report details,” which cost $2,818.

¶ 25 We note that in the final invoice, there are two asbestos-

related charges, totaling $2,818. The subcontractor charged Jim

Black directly for this work. Thus, the record supports the finding

that these charges are for the micro vac and full report details, and

that Jim Black correctly charged for them in its final invoice to

Coleman. We therefore don’t see any clear error with respect to the

asbestos-related charges.

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3. Charges for Work Not Performed

¶ 26 Coleman also argues that Jim Black invoiced him for over

$40,000 for work that it never performed. The record doesn’t

support this argument.

¶ 27 Coleman identifies six services or items for which Jim Black

charged him that he asserts were never performed: temporary toilet

services, plumbing, concrete work, dumpster services, carpentry,

and additional permits and fees. His assertion is based on

comparing the final invoice to invoices from subcontractors and

suppliers that Jim Black submitted as supporting evidence.

¶ 28 But the evidence provided at trial supports the trial court’s

finding that the final invoice is correct. For example, though

Coleman asserts that Jim Black’s invoice charged an additional

$529.29 for temporary toilet services based on various invoices that

Jim Black received for six months of toilet services, totaling

$827.59, the final invoice was for eight months of such services.

The fact that Jim Black introduced into evidence only six months’

worth of supporting invoices doesn’t mean it wasn’t on the hook to

the supplier for eight months’ worth of services. And the total

amount Jim Black charged Coleman in the final invoice equals the

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amount estimated in the Cogdill estimate, prorated up until

Coleman terminated the agreement. The Work Authorization form

that Coleman signed explicitly authorized his insurance company to

approve the Cogdill estimate, and the insurance company did so.

¶ 29 Similar evidence introduced at trial supports a conclusion that

Jim Black validly charged for the five other services or items as well.

For example, the Cogdill report estimated that five hours of

plumbing winterization would cost $595.15, and that is the amount

Jim Black charged in its final invoice. The Cogdill estimate also

reflects ten dumpster loads for $536.64 per load, while the final

invoice reflects eight loads for the same price. As for the concrete

work, a change order provided to Coleman by Jim Black reflects the

$12,000 price charged in the final invoice.

¶ 30 The record also supports Jim Black’s charge for carpentry

work. Coleman argues that Jim Black charged him for 106 hours

of carpentry work, but the record supports a finding of only 53

hours of work by Jim Black employees. But carpentry work done

by other companies was billed to Jim Black during the restoration

process. And the price in the final invoice reflects the amount

14
charged by Jim Black employees and the subcontractor.2 Thus, the

record supports Jim Black’s invoice amount for carpentry.

¶ 31 Lastly, the record also supports Jim Black’s charge for permits

and fees. Coleman argues that Jim Black overcharged him for

$31,000 in permits and fees that aren’t supported by the record.

He asserts that the only evidence in the record relates to the permit

from the City of Wheatridge, which cost $11,403.87. But the

permits and fees section of the final invoice also includes invoices

for engineering bids and architectural fees. And these invoices

added together equal the amount reflected in the final invoice.

¶ 32 Jim Black also supported its final invoice amount through

Crump’s testimony. He testified that he created the final invoice by

relying on the Cogdill estimate, subcontractor invoices, and the

change order. He also testified that he personally approved the

2 The final invoice charges 160 hours of carpentry at $69.39 per

hour. The invoice for Jim Black’s employee work records fifty-three
hours of carpentry work. And the carpentry subcontractor charged
Jim Black $7,605. If we divide the total price from the
subcontractor by the price per hour (7,605 ÷ 69.39), we get 110
hours. The subcontractor therefore charged for 110 hours of work.
Adding the subcontractor’s 110 hours to Jim Black’s 53 hours
roughly equals the 160 hours Jim Black charged Coleman in the
final invoice.

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payments to subcontractors. And, contrary to Coleman’s

argument, Crump’s testimony didn’t directly contradict the evidence

presented at trial.

¶ 33 The trial court found Crump’s testimony to be more credible

than Coleman’s due to Coleman’s “inconsistency of testimony and

overall demeanor on the witness stand.”

¶ 34 To at least some extent, Coleman, in effect, asks us to find

Crump’s testimony incredible. That we cannot do. In re Estate of

Owens, 2017 COA 53, ¶ 22 (“[A] trial court’s ‘determination of’ a

testifying witness’ ‘credibility [is] entirely within the purview of the

trial court . . . and is binding upon’ an appellate court.” (quoting

People v. Fordyce, 705 P.2d 8, 9 (Colo. App. 1985))); Morgan v. Freel,

538 P.2d 890, 891 (Colo. App. 1975) (not published pursuant to

(C.A.R. 35(f)) (“The credibility of witnesses . . . [is] within the

province of the trial court, and . . . [findings supported by the

record] may not be disturbed on review by this court.”).

C. Contractual Analysis

¶ 35 Coleman contends that the trial court applied an incorrect

analysis in finding him liable on Jim Black’s breach of contract

claim. More specifically, he argues that the court misinterpreted

16
the parties’ agreements by failing to enforce a change orders

provision in the Proposal. We disagree.

1. Standard of Review and Applicable Law

¶ 36 We review an issue of contract interpretation de novo. Fed.

Deposit Ins. Corp. v. Fisher, 2013 CO 5, ¶ 9.

¶ 37 We of course endeavor to determine and give effect to the

contracting parties’ intent. Ad Two, Inc. v. City & County of Denver,

9 P.3d 373, 376 (Colo. 2000). And we do so primarily by looking to

the contract’s language. Id.

¶ 38 “If a simultaneously executed agreement between the same

parties, relating to the same subject matter, is contained in more

than one instrument, the documents must be construed together to

determine the intent as though the entire agreement were contained

in a single document.” O’Reilly v. Physicians Mut. Ins. Co., 992 P.2d

644, 648 (Colo. App. 1999); see also E. Ridge of Fort Collins, LLC v.

Larimer & Weld Irrigation Co., 109 P.3d 969, 975 (Colo. 2005)

(“[S]eparate instruments that pertain to the same transaction

should be read together even though they do not expressly refer to

each other . . . .”).

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¶ 39 A contract may be modified via a subsequent written or verbal

agreement. James H. Moore & Assocs. Realty, Inc. v. Arrowhead at

Vail, 892 P.2d 367, 372 (Colo. App. 1994). This is true even if the

original agreement says that any modifications are to be made in

writing. Id. A contract provision may also be impliedly waived if a

party “acts inconsistently with [the contractual provision’s]

assertion.” Id.

2. Analysis

¶ 40 The Proposal says that “[a]dditional work, not covered by the

Scope of Work, may be accomplished (a) by Change Order (as

described below) or (b) by verbal agreement, if such verbal

agreement is followed by a Change Order within ten (10) days of the

verbal agreement.” It goes on to define “Change Order,” in part, as

“a written order,” agreed to by both Jim Black and Coleman.

Relying on these provisions, Coleman argued in the trial court that

Jim Black wasn’t entitled to recover for work beyond the original

scope of work that wasn’t approved by a written change order. The

trial court, however, rejected that argument, relying on a provision

in the Work Authorization’s “Terms and Conditions” saying that

“supplements or additions to work may be accomplished verbally or

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with a written change order.” (Emphasis added.) It also says that

the scope of work “shall be as referenced on the Work

Authorization.” And it says that the “Work Authorization . . . and

[Jim Black’s] performance of Work are governed solely by

Contractor’s Terms and Conditions.”

¶ 41 Coleman argues that the trial court incorrectly construed the

Proposal and the Work Authorization together, and that the terms

of the Proposal, not the Work Authorization, should control as to

additional work. We aren’t persuaded.

¶ 42 The parties entered into the Proposal and Work Authorization

at the same time, and both related to the restoration of Coleman’s

house. Thus, it was proper to construe them together. E. Ridge of

Fort Collins, 109 P.3d at 975.

¶ 43 Coleman doesn’t contest the trial court’s factual finding that

the parties verbally agreed to additional work that Coleman

requested. And there is no evidence that Coleman ever objected to

Jim Black doing that work based on the lack of a written change

order. These facts support the trial court’s approach, for three

reasons.

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¶ 44 First, the parties’ course of conduct shows that they regarded

the Work Authorization’s provisions in this regard as controlling.

See In re Water Rts. of Town of Estes Park, 677 P.2d 320, 327 (Colo.

1984) (“It is also well-established that the parties’ construction of a

contract before a dispute arises is a particularly persuasive aid in

determining the true meaning of the agreement.”). Second, even

assuming that the Proposal’s modification provision conflicts with

the Work Authorization’s modification provision, the parties were

still free to modify the contract by verbal agreement. See James H.

Moore & Assocs. Realty, 892 P.2d at 372. And third, even if the

Proposal’s provision controlled, the evidence shows that Coleman

waived it by his conduct. See id.; see also Rush Creek Sols., Inc. v.

Ute Mountain Ute Tribe, 107 P.3d 402, 406 (Colo. App. 2004) (“[W]e

may affirm the trial court’s ruling based on any grounds that are

supported by the record.”).

D. Unjust Enrichment

¶ 45 Lastly, Coleman contends that the trial court incorrectly

entered judgment in Jim Black’s favor on its unjust enrichment and

promissory estoppel claims because the court entered judgment in

Jim Black’s favor on its breach of contract claim based on a

20
contract covering the same subject matter as the unjust enrichment

and promissory estoppel claims. We agree.3

1. Standard of Review and Applicable Law

¶ 46 Coleman’s argument presents an issue of law. We review such

issues de novo. See Interbank Invs., LLC v. Eagle River Water &

Sanitation Dist., 77 P.3d 814, 816 (Colo. App. 2003).

¶ 47 Subject to exceptions not applicable in this case, “breach of

contract and unjust enrichment claims involving the same subject

matter are mutually exclusive.” Bd. of Governors of Colo. State Univ.

v. Alderman, 2025 CO 9, ¶ 36. The same rule applies to promissory

estoppel claims (if an enforceable contract is found). Air Sols., Inc.

v. Spivey, 2023 COA 14, ¶¶ 99-101.

3 Jim Black contends that Coleman can’t make this argument on

appeal because he pleaded counterclaims for breach of contract,
unjust enrichment, and promissory estoppel, thus inviting any
error. The invited error doctrine “prevents a party from complaining
on appeal of an error that he or she has invited or injected into the
case.” People v. Rediger, 2018 CO 32, ¶ 34. Coleman pleaded his
counterclaims in the alternative: he didn’t seek recovery on all
claims. Nor did he ever concede in the trial court that Jim Black
could recover on all its claims. Thus, any error wasn’t invited.

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2. Analysis

¶ 48 Because the trial court found a valid contract between the

parties and awarded damages to Jim Black on that contract, it

could not enter judgment in Jim Black’s favor on its unjust

enrichment or promissory estoppel claims. These claims covered

the same subject matter as Jim Black’s breach of contract claim.

Indeed, Jim Black expressly pleaded those claims only “in the

alternative to” its breach of contract claim or in addition to that

claim if the court found that Coleman agreed to work outside the

scope of the contract. The court didn’t find that Coleman agreed to

work outside the scope of the contract, nor did it award Jim Black

any additional or different damages on those claims. It follows that

the part of the judgment in Jim Black’s favor on its unjust

enrichment and promissory estoppel claims cannot stand. Bd. of

Governors, ¶¶ 36, 44; Air Sols., ¶¶ 99-101.

III. Disposition

¶ 49 We vacate that part of the judgment in Jim Black’s favor on its

unjust enrichment and promissory estoppel claims. In all other

respects, the judgment is affirmed.

JUDGE GROVE and JUDGE SCHUTZ concur.

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