MG Dyess v. MarkWest

24CA0585 MG Dyess v MarkWest 05-22-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0585
City and County of Denver District Court No. 18CV34745
Honorable Andrew J. Luxen, Judge

M.G. Dyess, Inc., a Mississippi corporation,

Plaintiff-Appellee,

v.

MarkWest Liberty Midstream & Resources, L.L.C., a Delaware limited liability
corporation,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE FOX
Gomez and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 22, 2025

Wheeler Trigg O’Donnell LLP, Meghan Frei Berglind, Denver, Colorado;
Kilpatrick Townsend & Stockton LLP, Adam H. Charnes, Dallas, Texas;
Kilpatrick Townsend & Stockton LLP, R. Lee Mann III, Atlanta, Georgia, for
Plaintiff-Appellee

Snell & Wilmer L.L.P., James D. Kilroy, Ellie Lockwood, Denver, Colorado, for
Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 In this construction contract dispute, defendant, MarkWest

Liberty Midstream & Resources, L.L.C. (MarkWest), appeals the

remand court’s order setting the amount of quantum meruit

damages awarded to plaintiff, M.G. Dyess, Inc. (Dyess), at

$31,702,197.14 and denying MarkWest’s motion for a new trial. We

affirm the district court’s judgment.

I. Background

¶2 MarkWest, a corporation that processes and transports

natural gas, entered into three contracts with Dyess, a pipeline

construction company, to install thousands of feet of pipeline. Each

contract concerned a particular length of pipeline, called a “spread,”

and each spread was assigned a lump sum payment amount and a

“mechanical completion date” after which liquidated damages would

accrue if the spread remained incomplete.

¶3 According to Dyess, MarkWest materially hindered its work,

increasing the costs and duration of the project. Dyess sued

MarkWest, asserting claims for breach of contract, negligent

misrepresentation, fraudulent nondisclosure, fraud, promissory

estoppel, and quantum meruit. MarkWest countered that it had

not hindered Dyess’s work and that Dyess had failed to achieve

1
mechanical completion by the contractual deadlines. MarkWest

counterclaimed for liquidated damages under the three operative

contracts. Both parties demanded a jury trial, and the multi-day

trial began February 3, 2020.

¶4 MarkWest maintained that Dyess’s promissory estoppel and

quantum meruit claims were not triable to the jury because they

were equitable claims. Dyess argued that these claims were legal

and that MarkWest had waived any objection to a jury trial.

¶5 Concluding that Dyess had brought “a mix of legal and

equitable claims,” the trial court submitted all the claims to the jury

under C.R.C.P. 39(c), which allows courts to “try any issue with an

advisory jury” in “all actions not triable by a jury.” The court also

noted that, if the jury awarded relief on an “arguably equitable

claim,” the court could allow further briefing.

¶6 The jury rejected Dyess’s claims, except its quantum meruit

claim, and awarded $26,039,641 in damages. It also awarded

MarkWest $4,500,000 in liquidated damages for its counterclaim.

MarkWest immediately moved to treat the jury’s quantum meruit

verdict as advisory, asking the court to decide the issue.

2
¶7 MarkWest urged the court to conclude that MarkWest was not

liable to Dyess for the quantum meruit claim, and in the

alternative, that Dyess could only recover $934,436, the

approximate amount for the items listed in Jury Instruction 60 —

outlining the elements for a quantum meruit recovery. Dyess

countered that its expert had testified to overall losses equal to or

greater than the amount awarded, so the $26,039,641 verdict had

evidentiary support.

¶8 As relevant here, the trial court concluded that quantum

meruit is “an equitable theory of recovery . . . triable by the court

and not by a jury, subject to the right of the court to impanel an

advisory jury under C.R.C.P. 39(c).” It accepted the jury’s “advisory

verdict” — finding that MarkWest was liable under a quantum

meruit theory — but reduced the damages to $934,436.1

¶9 Dyess next asked for a judgment notwithstanding the verdict

(JNOV) on MarkWest’s counterclaim, asserting that it had achieved

mechanical completion before the final mechanical completion

dates, which it claimed MarkWest had extended. The trial court did

1 Dyess submitted six invoices — totaling $934,436 — that

MarkWest failed to pay.

3
not rule on the motion, and it was therefore deemed denied by

rule.2 See C.R.C.P. 59(j).

¶ 10 Dyess appealed (1) the order treating the verdict in its favor as

advisory and reducing the damages award; (2) the denial of its

motion for JNOV on MarkWest’s counterclaim; and (3) the denial of

its motion for pre- and post-judgment interest. MarkWest cross-

appealed the denial of its motion for pre- and post-judgment

interest.

¶ 11 A division of this court reversed the judgment insofar as the

trial court (1) “reduced the amount of damages awarded to Dyess on

its quantum meruit claim” and (2) “failed to award pre- and post-

judgment interest.” M.G. Dyess, Inc. v. MarkWest Liberty Midstream

& Res., L.L.C., 2022 COA 108, ¶ 38. It affirmed the judgment

insofar as the trial court accepted the jury’s liability verdict on the

quantum meruit claim and denied Dyess’s motion for JNOV. Id. at

¶¶ 23, 34. The case was then remanded for further proceedings.

Id. at ¶ 38.

2 Both parties filed C.R.C.P. 59(c)(4) motions to amend the judgment

to include pre- and post-judgment interest. These motions were
also deemed denied. See C.R.C.P. 59(j).

4
¶ 12 On remand, the court recognized that the court of appeals had

affirmed the finding of liability on quantum meruit damages in favor

of Dyess. Because the jury had awarded $26,039,641 in favor of

Dyess (on quantum meruit) and $4,500,000 in favor of MarkWest

(on its contract counterclaim), the remand court subtracted the

latter from the former to arrive at a judgment of $21,539,641 in

favor of Dyess. The court then added prejudgment interest of

$2,712,319.08 (eight percent, compounded annually) and

postjudgment interest of $7,450,237.06, for a total judgment of

$31,702,197.14.

¶ 13 As expected, MarkWest asked for a new trial and Dyess

opposed that request. MarkWest continued to argue that, unless

Dyess agreed to a reduced judgment of $934,436, the court should

grant a new trial because the jury’s damage award was manifestly

5
excessive and unsupported by the evidence.3 MarkWest’s theory at

trial, and on remand, was that any excess charges by Dyess were

subject to the contract’s change order process.

¶ 14 Dyess countered that the jury heard ample evidence that

MarkWest directed Dyess to perform out-of-scope work, work which

benefited MarkWest and for which Dyess was not paid. Moreover,

Dyess refuted MarkWest’s suggestion that Jury Instruction 60

limited (to $934,436) the recoverable out-of-scope work expenses.

¶ 15 Indicating that it had reviewed the record, the remand court

(with a new judge presiding after the trial judge retired) concluded

that the jury’s damages award was not “manifestly excessive” given

the evidence presented and denied MarkWest’s request for a new

trial. See Murphy v. Glenn, 964 P.2d 581, 586 (Colo. App. 1998)

(successor judge has discretion to rule on post-trial motion

3 Liability for quantum meruit was affirmed by the prior division of

this court, so it is not at issue here. See M.G. Dyess, Inc. v.
MarkWest Liberty Midstream & Res., L.L.C., 2022 COA 108, ¶ 38.
To the extent MarkWest argues for a new trial on anything other
than the amount of damages, we will not entertain that argument.
See Saint John’s Church in Wilderness v. Scott, 2012 COA 72, ¶ 8
(“The law of the case doctrine protects parties from relitigating
settled issues, on the grounds that courts generally ‘refuse to
reopen what has been decided.’” (quoting People ex rel. Gallagher v.
Dist. Ct., 666 P.2d 550, 553 (Colo. 1983))).

6
challenging the sufficiency of the evidence). The court also

acknowledged that Dyess did not agree to a remittitur.

¶ 16 MarkWest now appeals the remand court’s orders. See

Simpson v. Yale Invs., Inc., 886 P.2d 689, 699 (Colo. 1994) (“When a

case is remanded to the trial court and subsequently appealed, the

reviewing court will consider only those issues arising after the

remand and whether the trial court complied with the order of

remand.”).

II. Applicable Law

A. Standards of Review

¶ 17 “We review a trial court’s order for a new trial for an abuse of

discretion. A trial court abuses its discretion when its ruling is

‘manifestly arbitrary, unreasonable, or unfair,’ or when it

misapplies the law.” Rains v. Barber, 2018 CO 61, ¶ 8 (citations

omitted).

¶ 18 In determining whether a party may recover for unjust

enrichment, we “defer to the trial court’s factual findings unless

they are clearly erroneous.” French v. Centura Health Corp., 2022

CO 20, ¶ 24. However, we review de novo contentions that an

express contract bars an unjust enrichment claim. See Interbank

7
Invs., LLC v. Eagle River Water & Sanitation Dist., 77 P.3d 814, 816

(Colo. App. 2003).

B. Grounds for a New Trial Under Rule 59(d)

¶ 19 Rule 59 governs motions for new trials. C.R.C.P. 59(a)(1).

Rule 59(d) lists six distinct grounds for a new trial:

(1) Any irregularity in the proceedings by
which any party was prevented from having a
fair trial; (2) Misconduct of the jury;
(3) Accident or surprise, which ordinary
prudence could not have guarded against;
(4) Newly discovered evidence, material for the
party making the application which that party
could not, with reasonable diligence, have
discovered and produced at the trial;
(5) Excessive or inadequate damages; or
(6) Error in law.

Rains, ¶ 11 (quoting C.R.C.P. 59(d)(1)-(6)). The following principles

guide our review of whether the remand court abused its

considerable discretion, see Averyt v. Wal-Mart Stores, Inc., 265

P.3d 456, 462 (Colo. 2011), in denying a new trial for the jury’s

allegedly excessive damage award:

• The amount of damages is within the jury’s sole province, and

an award will not be disturbed unless it has no record

support. Id.; Hildebrand v. New Vista Homes II, LLC, 252 P.3d

1159, 1170 (Colo. App. 2010).

8
• The verdict’s excessive nature must clearly and definitely

indicate that the jury (1) ignored the court’s instructions and

the undisputed evidence; or (2) was swayed by prejudice,

passion, or another improper consideration. Martinez v.

Affordable Hous. Network, Inc., 109 P.3d 983, 992 (Colo. App.

2004), rev’d on other grounds, 123 P.3d 1201 (Colo. 2005); see

also Averyt, 265 P.3d at 462-63 (an award may be adjusted

where there is an indication that the “jury acted out of

passion, prejudice, or corruption”).

C. Legal Principles of Quantum Meruit

¶ 20 A party asserting an unjust enrichment claim must prove

“that (1) at the plaintiff’s expense (2) the defendant received a

benefit (3) under circumstances that would make it unjust for the

defendant to retain the benefit without paying.” Bd. of Governors of

Colo. State Univ. v. Alderman, 2025 CO 9, ¶ 35. However, a party

typically cannot assert an unjust enrichment claim “if a valid

contract covers the same subject matter.” Id. at ¶ 36. Colorado

appellate courts recognize two exceptions to this rule: “(1) the

express contract fails or is rescinded or (2) the claim covers matters

that are outside of or arose after the contract.” Id. at ¶ 37; accord

9
M.G. Dyess, ¶ 17; Specialized Grading Enters., Inc. v. Goodland

Constr., Inc., 181 P.3d 352, 354-55 (Colo. App. 2007).

III. Analysis

¶ 21 While the remand court did not fully explain what evidence

supported the jury’s damages award, it indicated that its review of

the evidence supported that award, and it identified the legal

authority upon which it relied in declining to reduce the jury’s

award or grant a new trial on damages. Without the benefit of a

detailed analysis to review, we rely on the record, as outlined below,

for our analysis. See Interbank Invs., 77 P.3d at 816 (reviewing de

novo whether an express contract bars an unjust enrichment

claim).

A. Additional Background

¶ 22 Dyess and MarkWest’s operative contracts for the subject

pipelines were effective in August 2017. The contracts

contemplated that the first spread (spread 1A, .32 miles) and the

third spread (spread 2, 6.18 miles) would be completed by January

15, 2018, and the second spread (spread 1B, 7.52 miles) by October

1, 2017. The parties agree that the deadline for the first and third

spreads was extended once, but they dispute whether MarkWest

10
granted additional extensions.4 M.G. Dyess, ¶ 31 n.4. In any event,

each party blames the other for work delays and associated

expenses.

¶ 23 According to Dyess, its inability to construct the pipelines in

tandem, as its bid documents indicated, and on schedule resulted

from MarkWest’s delayed property access, inspector limits, weather

stoppages, and repeated safety shutdowns. So it had to expend

substantially more in labor and materials to meet its obligations to

MarkWest.

¶ 24 MarkWest argues here, as it argued to the remand court, that

(1) the express contracts precluded Dyess from recovering for

unjust enrichment, and (2) the jury could only award quantum

meruit damages for the work identified in Jury Instruction 60 (or

$934,436). Dyess disagrees that its quantum meruit damages are

limited in either way.

4 There was conflicting testimony about whether MarkWest

extended the completion dates for one or more of the spreads.
Ultimately, the prior division of this court indicated that the jury
could have reasonably inferred that any extension was conditional
on successful completion of the parties’ (ultimately unsuccessful)
attempts to negotiate the matter. M.G. Dyess, ¶¶ 28-34.
Consistent with this finding, the division did not disturb the jury’s
$4,500,000 award in MarkWest’s favor. Id.

11
¶ 25 Before turning to the delays and expenses Dyess detailed to

the jury, and MarkWest’s rebuttal to those, we provide an overview

of the key contract provisions.

B. Contract Provisions Invoked

¶ 26 Section 1.1 of each contract required that Dyess perform “all

workmanship, labor, materials, and equipment set forth in Exhibit

‘A’ [the Scope of Work], and as subsequently added by [MarkWest]

in accordance with the terms of th[e] Contract.” Section 4 detailed

that

Changes to the Scope of Work (for work in
addition to that covered under the Lump Sum
Fixed Price . . . and which is consistent with
the original terms and intent of this Contract)
shall be made only by a written change order
specifying the requested changes or additions,
including changes to the Lump Sum Fixed
Price.

¶ 27 MarkWest reiterates that the scope of work was broad and

covered installing the specified lengths of pipe for each spread. It

also points to the following provisions as limiting Dyess’s recovery:

• Sections 2.17 and 3.1, requiring that any extra work be

authorized through approved change orders; and

12
• Section 4.7, identifying the approving authorities for

change orders.

¶ 28 As relevant to Dyess’s position, Section 3.18 provides that

changes that increase or decrease the scope of work will be handled

via a negotiated adjustment, and Dyess tried to negotiate for time

extensions and additional payments.5 When a settlement proved

elusive, Dyess sued to recover the labor and materials it provided,

and MarkWest countered by demanding contractual delay damages.

C. Access Issues

¶ 29 During the bid process, MarkWest representatives disclosed

that they had not secured all necessary legal land access but

indicated the access would soon be resolved and certainly before

Dyess planned to begin the pipeline work. The access required to

complete spread 1B was belatedly secured near the end of

September 2017.

5 During trial, MarkWest claimed that, in extending the pipeline

completion deadlines, it effectively compensated Dyess for any
expenses incurred before the end of December 2017. The jury
agreed that (even with the extension) Dyess did not timely complete
the pipeline segments (as the delay payments verdict reflects), but it
seemingly rejected MarkWest’s claim that Dyess contractually
waived any claim to overages.

13
D. Inspector Delays

¶ 30 After the contracts were signed, Dyess learned that most of its

ground disturbance activities needed to be inspected by a

MarkWest-provided inspector. Dyess’s original work plan called for

nine or ten work crews working simultaneously to expedite pipeline

progress. With only two inspectors, Dyess could only mobilize two

crews. And coordinating the two inspectors’ presence on site

proved difficult. MarkWest disputes any surprise, but Dyess was

not the only contractor requesting more inspectors.

¶ 31 Although Brian McRaney, Dyess’s project manager, asked for

additional inspectors so Dyess could deploy more work crews, he

did not receive more inspectors until mid-December, well after

spread 1B was due (October 1, 2017) and shortly before the other

two spreads were to be delivered (January 15, 2018).6 As it turned

out, the additional three inspectors (five in total) did not provide the

6 Michael Hoy, MarkWest’s construction manager, acknowledged

that because Dyess did not have access to the land for spread 1B
until September 25 or 26, 2017, it was unrealistic for MarkWest to
expect Dyess to construct 7.52 miles of pipeline in a few days, or by
the October 1, 2017, due date in the contract.

14
relief Dyess needed because a December 2017 MarkWest incident

on a different spread further delayed Dyess’s work.

E. Weather Delays, Fatality, and “No Slip” Policy

¶ 32 The fall of 2017 was a wet season in the area where the

pipeline was being installed. In addition to the challenges the rain

and snow posed to the pipeline workers, there was a fatality on

spread 4 (Dyess was not working on that segment) caused by heavy

equipment sliding into a worker and crushing him against another

piece of equipment. That fatality lead MarkWest to implement its

“no slip” (or heavy equipment) policy. Dyess agreed to abide by

MarkWest’s no slip policy, which did not allow pipeline contractors

to work when weather conditions limited workers’ ability to safely

manage heavy equipment or otherwise endangered pipeline

crewmembers.

¶ 33 Dyess lost workdays because of this policy and soon realized it

would not meet the January 2018 spread deadlines. MarkWest

extended the due dates into March 2018, but Dyess continued to

work into July 2018 even though it was unsuccessful in negotiating

another extension.

15
F. Claimed Harm

¶ 34 The remand court was largely tasked with determining

whether the jury’s $26,039,641 quantum meruit award enjoyed

record support. Without the benefit of the remand court’s analysis,

we must look at the evidence in the record to determine whether the

record supports the award.

¶ 35 Dyess presented expert testimony from Jens Baker detailing

the additional expense Dyess incurred as the project continued.

Baker explained the components of the figures he provided for the

jury to consider as follows7:

7 The jury also heard that Dyess incurred $67,004,011 in added

expenses. But MarkWest had paid $40,964,370 of Dyess’s billings,
so the difference — without any expected profit — was $26,039,641.
This testimony likely explains how the jury arrived at its damages
award. According to Baker, the jury should have awarded
$28,303,383 (without the 23.3% contractual markup) or
$34,205,285 (with the markup). To the extent Baker looked to the
contract to add a markup to cover home-office and other such
costs, that markup came from the contract itself. As the jury did
not award breach of contract damages to Dyess, it would have been
inappropriate to award Dyess any amount for markups. Baker’s
calculations also relied, in part, on the fee schedules Dyess
supplied to MarkWest (but MarkWest provided no alternative fee
structure for the jury to consider). Baker also testified that he
updated change order 8 using the negotiated rates in the contacts,
agreeing that those rates included a markup.

16
Costs (*indicates 23.3% markup applied) Amount
Extended Performance Costs Due to $9,782,152
MarkWest Interferences*
Move-Arounds Caused by Right-of-Way $169,326
Restrictions
Schedule Revisions and Crew Changes $6,607,568
Directed by MarkWest*
MarkWest Failure to Supply Operations $1,946,584
Personnel (after 12/7/17 and before
12/16/17)
Shutdowns (directed by MarkWest due to $6,456,985
winter weather and no slip policy)*
Additional costs (coordination, potholing, $3,340,768
winter weather conditions*) (markup only
applied to winter conditions)
Total Costs Before Markup Applied $28,303,383
Total Costs with Markup of $5,901,902 $34,205,285

¶ 36 The jury’s damage award loosely aligns with Baker’s testimony

about how (and in what amount) MarkWest’s actions damaged

Dyess after the contracts were signed.

¶ 37 As mentioned, and as McRaney testified, section 3.18 of each

contract contemplated that the parties would negotiate an

adjustment for changes to the scope of work. Dyess asked for an

adjustment, but MarkWest repeatedly refuted, ignored, or delayed

Dyess’s efforts to negotiate for the additional labor and materials

Dyess provided.

17
¶ 38 A party may recover for unjust enrichment if “substantial

changes occur that are not covered by the contract and are not

within the contemplation of the parties, and when the effect of such

changes is to require extra work or to cause substantial loss to one

party.” Specialized Grading Enters., Inc., 181 P.3d at 354-55; see

also V.C. Edwards Contracting Co. v. Port of Tacoma, 514 P.2d 1381,

1386 (Wash. 1973) (applying the same principle and noting that

“[t]he critical factor . . . is whether the [party] should have

discovered or anticipated the changed condition”).

¶ 39 In Specialized Grading Enterprises, a subcontractor brought

an unjust enrichment claim for extra work, and “[t]he contractor

argued that the [extra work] . . . was expressly provided for in the

general contract” and that the contract’s change order procedure

provided “an adequate contractual remedy.” 181 P.3d at 355. A

division of this court reversed the district court’s entry of a directed

verdict in the contractor’s favor on the unjust enrichment claim,

reasoning that (1) the parties did not follow the change order

procedure; (2) the work the subcontractor performed was the

contractor’s responsibility; (3) “[t]he subcontractor could not have

reasonably anticipated that the contractor” would not perform; and

18
(4) “the contractor was aware of the problem and the

subcontractor’s efforts.” Id. at 356.

1. Evidence Supporting a Quantum Meruit Recovery

¶ 40 As noted, the contracts were executed in August 2017, but the

inadequacy of the number and availability of the inspectors

MarkWest provided was evident only after the contracts’ effective

date. Relatedly, Michael Hoy (MarkWest’s construction manager)

testified that he was immediately under pressure to keep costs

down for his portion of the overall project and that the operations

budget (which funded the inspectors) was reduced to serve that

directive. Not only were there insufficient inspectors, but the few

inspectors were not available when and where Dyess needed them.

Indeed, Hoy admitted he was aware of the coordination and

communication challenges.

¶ 41 As mentioned, MarkWest implemented the no slip policy after

the workplace fatality in December, well after the contracts’ effective

date. Once the policy was in effect, MarkWest largely dictated when

Dyess could work. Dyess employees testified they could not have

reasonably anticipated losing so many workdays. Moreover,

according to McRaney, Dyess’s proposal contemplated

19
approximately five days of adverse weather, but actual rainouts

were closer to thirty-seven days.

¶ 42 Neither the contracts nor the parties contemplated the extent

of work stoppages or all the difficulties they would later encounter.

See id. at 354-56. Dyess always expected to finish most of its work

before winter. However, the delays required Dyess to work into and

past the winter season, when conditions made the work more

challenging and more expensive. See, e.g., George Sollitt Constr. Co.

v. United States, 64 Fed. Cl. 229, 239 (2005) (recognizing that

construction “during winter months may be more expensive than

the same work performed during temperate weather”). Indeed, Hoy

warned that further delays would result in increased construction

costs for winter work.8

¶ 43 It is true that MarkWest presented evidence to argue that not

all of the delays were directly attributable to it. For example,

MarkWest presented evidence of as many as twenty-one incidents

as of December 12, 2017 — ranging from suspected drug ingestion

8 MarkWest issued its first bid on May 11, 2017, but it had to re-bid

later that summer because no company bid to complete the
challenging spread 1.

20
by untrained Dyess crew members to a piece of heavy equipment

tipping into a ditch — requiring work stoppages, arguing it should

not be faulted for them. It is also unclear whether Baker’s analysis

accounted for (1) the $189,168 MarkWest paid for the clearing

subcontractor who was on standby pending resolution of the land

access issues; (2) the portion of the work MarkWest removed from

Dyess — the hot tap work — and assigned to a different contractor

(with no corresponding reduction in Dyess’s compensation); (3) the

$500,000 MarkWest paid to Dyess for the safety training it required

in January 2018 (after the fatality); (4) inefficiencies generated by

Dyess personnel changes;9 and (5) MarkWest’s expenditures

associated with locating and fixing a Dyess-installed leaky pipe.

Working into the winter contributed (in part) to some of the

incidents, but, as noted, some of the trial evidence may have

9 For example, (1) Steve Greenway, Dyess’s superintendent, felt the

strain of the project and asked to be re-assigned to a different
project, so, effective December 4, 2017, Jody Broom replaced him;
(2) Dyess fired a supervisor for leaving his post; and (3) three
laborers disappeared to avoid drug testing. Worker shortages in the
area forced Dyess to hire some inexperienced crew. That
inexperience showed in the various incidents.

21
suggested that fault for each work stoppage could not be laid solely

at MarkWest’s feet.

¶ 44 To the extent there was conflicting testimony about what the

parties viewed as included in the contracts’ scope and the cause of

delays, however, we must defer to the jury’s assessment of witness

credibility and conflicting testimony. See Vaccaro v. Am. Fam. Ins.

Grp., 2012 COA 9M, ¶ 34; see also Vititoe v. Rocky Mountain

Pavement Maint., Inc., 2015 COA 82, ¶ 34 (appellate court will

review the entire record to determine if there “is competent evidence

from which the jury logically could have reached its verdict”).

Indeed, we may not disturb the jury’s determination of the amount

of damages unless it has no record support, which is not the case

here. See Averyt, 265 P.3d at 462; Hildebrand, 252 P.3d at 1170.

Nor does the jury’s verdict clearly and definitely show that it ignored

the court’s instructions or undisputed evidence, or that it was

motivated by improper considerations. See Martinez, 109 P.3d at

992; see also Averyt, 265 P.3d at 462-63.

¶ 45 As a result, we cannot say that the remand court erred by

concluding that the record supported Dyess’s unjust enrichment

claim. See Alderman, ¶ 37.

22
2. Change Orders and Quantum Meruit

¶ 46 We next engage with MarkWest’s argument that Dyess had to

follow the change order process to recover labor or material costs.

The record reflects that MarkWest selectively ignored Dyess’s

change order requests. Significantly, MarkWest observed Dyess

performing the now-challenged work without objecting or

requesting change order submittals before the work proceeded. See

Jarosz v. Caesar Realty, Inc., 220 N.W.2d 191, 193 (Mich. Ct. App.

1974) (allowing recovery for unjust enrichment, notwithstanding a

change order provision, “because defendants were aware of and

authorized changes . . . [and] had either waived th[e] [change order]

requirement . . . or [the] requirement did not extend to extra work”).

¶ 47 So MarkWest knew of its right to request and receive change

orders, but it selectively ignored the change order process — or

simply refused to pay Dyess — for the work it now claims required

change orders. On these facts, we cannot say that the jury erred by

effectively concluding that MarkWest waived its right to rely on the

change order process (after all, the jury agreed Dyess was entitled

to quantum meruit damages). See Tarco, Inc. v. Conifer Metro. Dist.,

23
2013 COA 60, ¶ 33; Avicanna Inc. v. Mewhinney, 2019 COA 129,

¶ 25.

¶ 48 But whether a party waived a contractual provision and

whether such waiver entitles the other party to pursue an unjust

enrichment claim are different questions. The rationale underlying

“waiver as an excuse for nonperformance . . . is based in large part

on the policies against . . . unjust enrichment.” 13 Richard A. Lord,

Williston on Contracts § 39:15, Westlaw (4th ed. database updated

May 2025). Therefore, waiver of a contractual right generally

precludes the waiving party from “seek[ing] judicial enforcement of

the contract with regard to the waived performance.” Id.; see also

Assocs. of San Lazaro v. San Lazaro Park Props., 864 P.2d 111, 111,

115-16 (Colo. 1993) (holding that a breach of warranty action

should have been dismissed where the party claiming breach

waived the right to rely on the contract’s warranty).

¶ 49 Thus, because courts will not enforce waived provisions, we

conclude that waiver is sufficiently analogous to the provision

having failed that it satisfies the exception under which a party to

an express contract may seek restitution for unjust enrichment

when the contract (in whole or in part) fails or is rescinded. See

24
Alderman, ¶ 37. When a party waives a contractual provision that

could otherwise block an unjust enrichment claim, the waiving

party can no longer rely on that provision, even if the contract as a

whole has not failed.

¶ 50 We also conclude that waiving a contractual provision is

distinguishable from the circumstances in Alderman. There,

Alderman and other students sued Colorado State University (CSU)

to recover tuition and fees after the university transitioned to

remote services during the COVID-19 pandemic. Id. at ¶¶ 7-11.

Although the students “contracted for an in-person education,” a

“statutory provision . . . granted CSU the authority to suspend

university operations in the event of ‘the prevalence of fatal

diseases, or other unforeseen calamity.’” Id. at ¶¶ 10, 41 (quoting

§ 23-30-111, C.R.S. 2024). Because the statute was “incorporated

into the parties’ contract, meaning that the contract explicitly

allowed the university to temporarily suspend operations,” the court

concluded that Alderman could not bring an unjust enrichment

claim. Id. at ¶¶ 38, 41, 44.

¶ 51 The Alderman court held that the statutory provision — which

became part of the contract — did not render the contract (or any

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portion of it) unenforceable. Id. at ¶¶ 4, 41. It reasoned that

Alderman’s inability to state a claim for breach of contract due to

the statutory provision differed from the contract being

unenforceable. Id. A contract fails, the court held, “when it

becomes legally unenforceable,” not when “it does not provide all

the services and protections to which a party claims they are

entitled.” Id. at ¶ 40. Thus, although the contract was silent as to

CSU’s obligation to issue refunds when it transitioned to remote

services, the court held that unjust enrichment is not “a gap-filler

provision to provide a remedy when a contract is silent about a

desired term.” Id. at ¶¶ 16-17, 43.

¶ 52 In Alderman, the statute effectively created an explicit

contractual exception to the requirement that CSU provide in-

person services. So Alderman could not sue for breach of contract

or unjust enrichment because an express provision of the contract

allowed the allegedly prohibited conduct. By contrast, waiver is not

an explicit provision or exception that becomes part of a contract;

instead, it effectively eliminates the waived provision. In short,

Alderman’s claims were barred because there was an express

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provision, while a waiving party cannot enforce or rely on an

express provision that it has disavowed.

¶ 53 Just as a contract’s failure or rescission creates an avenue for

unjust enrichment recovery because there are no enforceable

contractual provisions, waiver results in the waived contractual

provision becoming legally unenforceable. See id. at ¶ 40; 13

Williston on Contracts § 39:15. Waiver is also different from the

parties omitting a term from their agreement, see Alderman, ¶ 43,

because the parties contemplated the term, but it failed. Allowing

claims for unjust enrichment when a contractual provision fails or

is rescinded is not the same as allowing unjust enrichment claims

to serve as a gap-filler for overlooked terms. See id. Otherwise, the

exceptions discussed in Alderman, ¶ 37, would be meaningless.

¶ 54 The parties’ contract originally provided a contractual way for

Dyess to be compensated for its additional work: it could (1) submit

change orders or (2) negotiate an adjustment pursuant to section

3.18. Admittedly, MarkWest honored the first few change orders.

But witnesses testified that Dyess tried to submit other change

orders and MarkWest largely ignored or otherwise rejected Dyess’s

later change order submittals. MarkWest’s waiver meant that there

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was no longer an enforceable contractual provision covering out-of-

scope work, and any such work fell outside of the contract. See id.

So to the extent the disputed work and materials were subject to a

change order requirement, the jury could have reasonably

concluded that MarkWest’s waiver of these sections allowed Dyess

to recover under unjust enrichment.

¶ 55 Relatedly, MarkWest also posits that any quantum meruit

recovery was necessarily limited by Jury Instruction 60 and Dyess’s

counsel’s purported concession that the damages sought under that

instruction were under a million dollars.10 Dyess rejects any such

limitation.

¶ 56 The plain language of Jury Instruction 60 shows that it did

not limit Dyess’s potential quantum meruit recovery to costs

associated with the limited specific examples of extracontractual

work it provided. Jury Instruction 60 explicitly stated that

“[d]epending on your findings, items not covered by the contracts

10 MarkWest also consistently claimed that Dyess could not advance

multiple theories of recovery, but Colorado law allows a party to
advance multiple theories of recovery while allowing for only one
monetary recovery. See Hemmann Mgmt. Servs. v. Mediacell, Inc.,
176 P.3d 856, 860 (Colo. App. 2007).

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and not within the contemplation of the parties include items such

as: slip work, drains, timber mats, rock ditch, extra spool piece at

the kickoff, and test leads misfire work.” (Emphasis added.) The

“such as” language plainly shows Jury Instruction 60 did not

explicitly limit Dyess’s quantum meruit damages to costs related to

the enumerated specific examples.11

¶ 57 From the jury’s verdict and award, it is evident that the jury

found that MarkWest received substantial value from work and

materials Dyess provided. The verdict also shows that the jury

rejected MarkWest’s theory — reiterated several times during

trial — that, by accepting the first extension to the completion

schedule and a lower payment, Dyess waived any claim that it was

owed more. And the jury’s verdict shows it rejected MarkWest’s

repeated suggestion that Dyess accepted the $3,000,000 MarkWest

offered after Dyess demanded $7,500,000.

11 Moreover, because MarkWest represented to the remand court

that it did not seek a new trial “based on an erroneous instruction,”
specifically referencing Jury Instruction 60, it cannot complain of
the instruction now. See Gebert v. Sears, Roebuck & Co., 2023 COA
107, ¶ 25 (“[A]rguments never presented to, considered by, or ruled
upon by a district court may not be raised for the first time on
appeal.”).

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¶ 58 Collectively, because evidence in the record supports the jury’s

quantum meruit damage award, we may not second-guess the

jury’s decision. See Averyt, 265 P.3d at 462; Hildebrand, 252 P.3d

at 1170. We therefore affirm the remand court’s judgment denying

MarkWest a new trial and affirm its netted quantum meruit

damages award of $21,539,641.

IV. Disposition

¶ 59 The judgment is affirmed.

JUDGE GOMEZ and JUDGE HAWTHORNE concur.

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