     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                June 28, 2018

                                2018COA92

No. 17CA0793, Falcon Broadband, Inc., v. Banning Lewis Ranch
Metropolitan District No. 1 — Contracts; Government — Local
Government Budget Law of Colorado — Expenditures Not to
Exceed Appropriation

     This case concerns a dispute between a residential

development district and a provider of internet and cable services

over whether the contract between them is enforceable. Among the

issues the division addresses is whether the contract violates

section 29-1-110, C.R.S. 2017, which, as a general matter,

precludes governmental entities from entering into contracts that

obligate such an entity to expend funds beyond those already

appropriated. The division holds that the contract violates section

29-1-110, and is therefore void, because it is a multi-year contract

that does not provide that the obligation to pay is subject to annual

appropriations.
COLORADO COURT OF APPEALS                                           2018COA92


Court of Appeals No. 17CA0793
El Paso County District Court No. 16CV30823
Honorable Thomas K. Kane, Judge


Falcon Broadband, Inc., a Colorado corporation,

Plaintiff-Appellant and Cross-Appellee,

v.

Banning Lewis Ranch Metropolitan District No. 1; Oakwood Homes, LLC; Chad
M. Ellington; Charles P. Leder; Jeffrey P. Carlson; Mike Tinlin; William Ritchie;
Bruce Rau; MREC Oakwood Colorado Ranch, LLC; MREC Oakwood Colorado
Investments, LLC; MREC Colorado Land Investments, LLC; MREC Oakwood
Colorado IV-VI, LLC; and MREC Oakwood Colorado, LLC,

Defendants-Appellees and Cross-Appellants.



            JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
                AND CASE REMANDED WITH DIRECTIONS

                                 Division VII
                         Opinion by JUDGE J. JONES
                         Ashby and Harris, JJ., concur

                           Announced June 28, 2018


Hamre, Rodriguez, Ostrander & Dingess, P.C., Donald M. Ostrander, Stephanie
M. Ceccato, Paul Rufien, Denver, Colorado, for Plaintiff-Appellant and Cross-
Appellee

Vaughan & DeMuro, Gordon L. Vaughan, Ann B. Smith, Colorado Springs,
Colorado; Spencer Fane, LLP, Jamie N. Cotter, Jacob F. Hollars, Denver,
Colorado; Gordon & Rees LLP, John R. Mann, Edward J. Hafer, John D. Keen,
Denver, Colorado, for Defendants-Appellees and Cross-Appellants
¶1    In 2007, Falcon Broadband, Inc. (Falcon), signed a contract —

 called the Bulk Services Agreement (BSA) — with Banning Lewis

 Ranch Metropolitan District No. 1 (the District) to provide internet

 and cable services to the residents of the Banning Lewis Ranch

 area. Five years later, Falcon sued the District, Oakwood Homes,

 LLC (the developer), several of Oakwood Homes’ sister companies

 (we refer collectively to all of the related Oakwood entities as

 Oakwood),1 and a number of individuals who are affiliated with

 Oakwood and serve as directors on the District’s board (Directors)

 after the District disavowed the BSA.2 On motions from all

 defendants, the district court dismissed Falcon’s complaint in part

 as barred by the Colorado Governmental Immunity Act (CGIA),

 sections 24-10-101 to -120, C.R.S. 2017, and granted summary

 judgment in defendants’ favor on the remaining claims not subject

 to dismissal under the CGIA.



 1 The affiliated companies are MREC Oakwood Colorado Ranch,
 LLC; MREC Oakwood Colorado Investments, LLC; MREC Colorado
 Land Investments, LLC; MREC Oakwood Colorado IV-VI, LLC; and
 MREC Oakwood Colorado, LLC.
 2 The remaining individual defendants are Chad M. Ellington,

 Charles P. Leder, Jeffrey P. Carlson, Mike Tinlin, William Ritchie,
 and Bruce Rau.

                                    1
¶2    Falcon appeals the judgment. The District and the Directors

 cross-appeal the district court’s denial of their requests for attorney

 fees. Though we conclude that the district court incorrectly applied

 the CGIA in certain respects, we ultimately affirm the judgment in

 favor of all defendants in all respects except one; we reverse the

 judgment for Oakwood on the unjust enrichment claim and remand

 for further proceedings on that claim. We also affirm the district

 court’s denial of the District’s requests for attorney fees. But we

 reverse the district court’s denial of the Directors’ request for

 attorney fees and remand for a determination of the Directors’

 reasonable attorney fees incurred in the district court and on

 appeal.

                            I.   Background

¶3    Under the BSA, the District granted Falcon the exclusive right

 to provide internet and cable services to residents of Banning Lewis

 Ranch in exchange for a monthly per resident fee. The BSA doesn’t

 have a definite duration, but says that it remains in effect until

 2,700 homes in the development are occupied. That hasn’t yet

 occurred.




                                    2
¶4    After the original developers of Banning Lewis Ranch went

 bankrupt, Oakwood acquired the property in 2012, appointed a new

 slate to the District’s board of directors (all of whom have some

 association with Oakwood), and decided it wasn’t happy with the

 BSA. The parties tried to negotiate modifications to the BSA,

 without success. So the District, saying that the BSA was invalid,

 stopped paying Falcon and stopped collecting fees from residents.

¶5    In its amended complaint, Falcon asserts a total of seven

 claims against defendants. Against the District, Falcon asserts

 claims for (1) breach of contract; (2) breach of the implied covenant

 of good faith and fair dealing; (3) promissory estoppel; (4) unjust

 enrichment; (5) civil conspiracy; and (6) declaratory judgment.3

 Against Oakwood, Falcon asserts claims for (1) unjust enrichment;

 (2) tortious interference with contract; (3) civil conspiracy; and (4)

 declaratory judgment. Finally, against the Directors, Falcon asserts

 claims for (1) tortious interference with contract and (2) civil

 conspiracy.


 3 Falcon’s declaratory judgment claim requests a declaration that
 the BSA is enforceable. We don’t discuss that claim separately in
 light of our conclusion that the BSA is void.


                                    3
¶6    Defendants sought dismissal under the CGIA and summary

 judgment under several theories. After an evidentiary hearing

 pursuant to Trinity Broadcasting of Denver, Inc. v. City of

 Westminster, 848 P.2d 916 (Colo. 1993), to determine the court’s

 subject matter jurisdiction under the CGIA, the district court

 granted defendants’ motions.4 Ruling that the CGIA bars the

 promissory estoppel, unjust enrichment, and civil conspiracy claims

 asserted against the District, the district court dismissed them

 “against all defendants.”5 The court then determined that the BSA

 is void and unenforceable for several reasons, and on that basis it

 entered summary judgment in all defendants’ favor. But the court

 denied the District’s and the Directors’ requests for attorney fees.

                         II.   Falcon’s Appeal

¶7    Falcon contends that the district court erred in its application

 of the CGIA, and in granting summary judgment. We conclude that


 4 Under Trinity, a district court, rather than a jury, determines
 issues relating to a governmental immunity claim, “including
 factual issues, regardless of whether those issues are jurisdictional
 in nature.” Martinez v. Estate of Bleck, 2016 CO 58, ¶ 5.
 5 The district court specifically addressed the civil conspiracy claim,

 saying that since the conspiracy claim against the District is
 barred, “there cannot be a conspiracy at all.”


                                    4
 the court erred in applying the CGIA, in part.6 But we agree with

 the district court that the BSA is void. And since the majority of

 Falcon’s claims are premised on the BSA’s validity, summary

 judgment is appropriate for all but one of Falcon’s claims. That one

 claim is Falcon’s claim for unjust enrichment against Oakwood.

                     A. Governmental Immunity

¶8    Because of its jurisdictional implications, we first address

 whether the CGIA bars any of Falcon’s claims against the District,

 Oakwood, or the Directors.

¶9    Falcon argues that the district court erred by dismissing its

 promissory estoppel and unjust enrichment claims against the

 District based on governmental immunity because those claims are

 contract claims, not tort claims. It also argues that the district

 court erred by dismissing its claims against Oakwood based on

 governmental immunity, in part for the same reason but also

 because the Oakwood entities are private, not public. The Directors

 argue that the court should’ve dismissed both of Falcon’s claims


 6Because “we can resolve it ourselves as a matter of law,” we
 needn’t remand on this issue. W.O. Brisben Cos. v. Krystkowiak, 66
 P.3d 133, 137 (Colo. App. 2002), aff’d on other grounds, 90 P.3d
 859 (Colo. 2004).

                                    5
  against them — for tortious interference and civil conspiracy —

  under the CGIA because the Directors are public employees within

  the meaning of the CGIA.7 We agree with all three arguments.

¶ 10   The CGIA provides that “public entit[ies] shall be immune from

  liability in all claims for injury which lie in tort or could lie in tort”

  unless immunity has been expressly waived. § 24-10-106(1), C.R.S.

  2017. It also immunizes public employees from tort claims so long

  as they acted within the scope of their employment. § 24-10-

  118(2)(a), C.R.S. 2017. A “public employee” is “an officer, employee,

  servant, or authorized volunteer of the public entity, whether or not

  compensated, elected, or appointed.” § 24-10-103(4)(a), C.R.S.

  2017. A court lacks jurisdiction to adjudicate tort claims against

  an entity or employee protected by the CGIA. Springer v. City & Cty.

  of Denver, 13 P.3d 794, 798 (Colo. 2000).

¶ 11   Where the facts are undisputed and the issue is one of law, we

  review a district court’s application of the CGIA de novo. Ceja v.

  Lemire, 154 P.3d 1064, 1065 (Colo. 2007).




  7The Directors raised the immunity issue in a motion and at the
  Trinity hearing.

                                       6
                            1.    The District

¶ 12   It’s undisputed that the District is a public entity within the

  meaning and protection of the CGIA. So the district court properly

  dismissed the civil conspiracy claim against the District because

  that claim is undeniably a tort claim. See Resolution Tr. Corp. v.

  Heiserman, 898 P.2d 1049, 1056 (Colo. 1995); Double Oak Constr.,

  L.L.C. v. Cornerstone Dev. Int’l, L.L.C., 97 P.3d 140, 148-49 (Colo.

  App. 2003).

¶ 13   But we agree with Falcon that the court improperly dismissed

  its unjust enrichment and promissory estoppel claims as sounding

  in tort. Governmental immunity doesn’t apply to actions “grounded

  in contracts.” Berg v. State Bd. of Agric., 919 P.2d 254, 258 (Colo.

  1996). “The essential difference between a tort obligation and a

  contract obligation is the source of the parties’ duties.” Carothers v.

  Archuleta Cty. Sheriff, 159 P.3d 647, 655 (Colo. App. 2006).

  “Contract obligations arise from promises made between parties,”

  whereas “[t]ort obligations generally arise from duties imposed by

  law, and tortious conduct is a breach of a duty imposed by law, not

  by contract.” Id. at 655-56. We apply a “case by case analysis” to




                                     7
  determine whether the claims in this case could sound in tort. See

  Berg, 919 P.2d at 259.

¶ 14   Promissory estoppel “involves a promise by a government

  agency or official.” Allen Homesite Grp. v. Colo. Water Quality

  Control Comm’n, 19 P.3d 32, 35 (Colo. App. 2000). The supreme

  court has recognized that “promissory estoppel is a distinct contract

  claim,” so the CGIA doesn’t bar such a claim when the plaintiff

  pleads the claim in terms of a promise that the governmental entity

  failed to fulfill. Berg, 919 P.2d at 259.

¶ 15   “Unjust enrichment is a form of quasi-contract or contract

  implied in law” that “can be predicated on either tort or contract

  law.” Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1007 (Colo.

  2008). To determine which is the predicate in a given case, a court

  must assess “the nature of the injury and the relief requested.” Id.

¶ 16   In support of its promissory estoppel claim, Falcon alleges that

  “[t]hrough negotiation of the [BSA] and as reflected in the [BSA],

  [the] District promised Falcon that it would [perform as agreed in

  the BSA]” and that Falcon reasonably relied on that promise to its

  detriment. Similarly, Falcon alleges in support of its unjust

  enrichment claim that the District unjustly benefited from the BSA.


                                      8
¶ 17   The District argues that these claims are based on its allegedly

  fraudulent — that is, tortious — actions. But neither claim is based

  on an alleged misrepresentation or duty independent of the BSA;

  rather, the source of both claims is the BSA. Indeed, both are

  essentially asserted in the alternative in the event the BSA is

  declared invalid. And the type of relief Falcon seeks is enforcement

  of contractual promises through the quasi-contractual theory of

  promissory estoppel and the restitution theory of unjust

  enrichment. Thus, these claims sound firmly in contract. Cf.

  Robinson, 179 P.3d at 1005 (claims brought based on allegations

  that the Colorado State Lottery Division misrepresented the

  possibility of winning the lottery were tort claims); CAMAS Colo., Inc.

  v. Bd. of Cty. Comm’rs, 36 P.3d 135, 139 (Colo. App. 2001)

  (contractor’s claim for quantum meruit sounded in contract while

  claims for fraud, negligent misrepresentation, and interference with

  future contracts sounded in tort); Lehman v. City of Louisville, 857

  P.2d 455, 457 (Colo. App. 1992) (equitable estoppel claim sounded

  in tort because it was based on a misrepresentation).




                                    9
¶ 18   We therefore conclude that the CGIA doesn’t bar either of

  these claims. But, as discussed below, the District is entitled to

  judgment anyway.

                                 2.     Oakwood

¶ 19   All the Oakwood entities are private associations; none is a

  public entity. The district court therefore erred in dismissing some

  of Falcon’s claims against Oakwood under the CGIA. § 24-10-

  103(5) (defining a “[p]ublic entity” for purposes of the CGIA); § 24-

  10-106(1) (“[a] public entity shall be immune from liability”); see

  also Podboy v. Fraternal Order of Police, 94 P.3d 1226, 1229 (Colo.

  App. 2004) (employee union wasn’t a public entity and therefore

  wasn’t entitled to the protection of the CGIA).8

                            3.        The Directors

¶ 20   As noted, Falcon asserts two claims against the Directors —

  tortious interference and civil conspiracy — both of which are

  clearly tort claims. And, as officers of the District, the Directors are




  8Oakwood doesn’t defend the district court’s judgment on this
  basis.


                                        10
  public employees for purposes of the CGIA. See Tallman Gulch

  Metro. Dist. v. Natureview Dev., LLC, 2017 COA 69, ¶ 17.

¶ 21   Nonetheless, Falcon argues that it has sued the Directors in

  their private capacities as agents of Oakwood rather than as

  directors of the District.9 We therefore look at the totality of the

  circumstances to decide whether the acts in question were

  “necessarily incidental to [public] employment.” First Nat’l Bank of

  Durango v. Lyons, 2015 COA 19, ¶ 47 (quoting Gallagher v. Bd. of

  Trs. for Univ. of N. Colo., 18 P.3d 837, 843 (Colo. App. 2002)). This

  determination turns on whether the acts bear a relationship to the

  business or are customary in the business. Id.

¶ 22   We don’t see any evidence in the record to support Falcon’s

  argument that it has sued the Directors in their private capacities.

  Falcon characterizes the Directors as “individuals who have been

  elected or appointed to serve or have served on the Board of

  Directors of the District and who are or have been employees,



  9 Alternatively, in its reply brief, Falcon argues for the first time that
  the Directors’ actions were willful and wanton and thus excluded
  from the protection of the CGIA. We won’t consider arguments
  raised for the first time on appeal. See Estate of Stevenson v.
  Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992).

                                     11
  agents or representatives of Oakwood.” But in the Trinity hearing,

  Falcon’s president, Randy DeYoung, testified that Falcon is suing

  the Directors because they’re on the District’s board of directors.

  And Falcon’s amended complaint similarly emphasizes the

  individuals’ positions as board members. Falcon alleges that the

  District, “acting through its Board of Directors,” breached the BSA,

  and that “Oakwood met with the District, through the [Directors].”

  According to Falcon, Oakwood told the Directors what to do. But

  Falcon doesn’t allege that the Directors did anything outside the

  scope of their roles as District directors or otherwise acted as

  private individuals.

¶ 23   In short, Falcon sued the Directors because they, as District

  directors, decided to stop honoring the BSA; it didn’t allege, much

  less present any evidence at the Trinity hearing indicating, that the

  Directors, as private individuals, caused the District to stop

  honoring the BSA.

¶ 24   Because the Directors allegedly acted in their roles as directors

  of the District, governmental immunity protects them. It follows

  that the district court should’ve dismissed the claims against them

  under C.R.C.P. 12(b)(1). W.O. Brisben Cos. v. Krystkowiak, 66 P.3d


                                    12
  133, 137 (Colo. App. 2002) (where the plaintiff improperly postured

  his motion to dismiss as a C.R.C.P. 12(b)(1) motion, the reviewing

  court analyzed it under the proper standard without remand), aff’d

  on other grounds, 90 P.3d 859 (Colo. 2004); Norsby v. Jensen, 916

  P.2d 555, 559 (Colo. App. 1995) (district court improperly treated a

  C.R.C.P. 12(b)(1) motion as a C.R.C.P. 12(b)(5) motion, but

  reviewing court applied governing rule without remand).

                    B.    Falcon’s Other Contentions

¶ 25   Falcon also contends that the district court erred by

  determining that the BSA is void and by entering summary

  judgment on its tortious interference and civil conspiracy claims

  regardless of the BSA’s validity. Both contentions fail.

                         1.   Standard of Review

¶ 26   Falcon’s arguments present issues of statutory interpretation,

  contract interpretation, and summary judgment. We review all

  such issues de novo. Burton v. Colo. Access, 2018 CO 11, ¶ 19

  (summary judgment and statutory interpretation); Laleh v. Johnson,

  2017 CO 93, ¶ 18 (contract interpretation). Summary judgment is

  proper where there is no genuine issue as to any material fact and




                                    13
  the moving party is entitled to judgment as a matter of law.

  C.R.C.P. 56(c).

                  2.   The BSA Is Void and Unenforceable

¶ 27   The district court determined that the BSA violates four

  different statutes, and that each violation is sufficient to render the

  BSA void and unenforceable.10 We needn’t address each reason

  because we agree with the district court that the BSA is void under

  section 29-1-110, C.R.S. 2017. See Saunders v. Muratori, 251 P.3d

  550, 556 (Colo. App. 2010) (where appellate court affirmed ruling

  on one of two alternative grounds, it wasn’t necessary to address

  the other); Bolser v. Bd. of Comm’rs, 100 P.3d 51, 54 (Colo. App.

  2004) (same).

                       a.   Additional Background

¶ 28   The fees provision of the BSA says that “Metro District shall

  pay to [Falcon] the Bulk Services fee as set forth on Exhibit B.” The



  10  The court ruled that (1) the BSA violates section 29-1-110(1),
  C.R.S. 2017, because the District’s payment of fees could exceed
  annual appropriations; (2) the directors who negotiated it failed to
  file conflict disclosures required by section 24-18-201, C.R.S. 2017;
  (3) it wasn’t approved at a District meeting as required by section
  24-6-402(8), C.R.S. 2017; and (4) it violates sections 6-2-108 and
  -109, C.R.S. 2017, as an illegal contract to share money and
  destroy competition.

                                    14
  District then bills the residents for recoupment of the fees. This

  arrangement is to last “until 2700 homes in the Development [have

  been] [o]ccupied.”

¶ 29   The district court found that “by the plain language of the

  document,” the fee provision requires “payment of fees that could

  exceed annual appropriations in violation of C.R.S. 29-1-110(1).”

  Falcon had argued that the statute applies only to the fiscal year in

  which a contract is formed, but the district court wasn’t persuaded,

  and neither are we.

                         b.   Section 29-1-110

¶ 30   “[L]ong term agreements involving expenditures of municipal

  funds are looked upon with disfavor . . . .” 10A Eugene McQuillin,

  The Law of Municipal Corporations § 29:101, at 58 (3d ed., rev. vol.

  2009). Colorado has codified that sentiment in section 29-1-110 by

  limiting a governmental entity’s power to contract without a prior

  appropriation of funds. It reads as follows:

            (1) During the fiscal year, no officer, employee,
            or other spending agency shall expend or
            contract to expend any money, or incur any
            liability, or enter into any contract which, by
            its terms, involves the expenditures of money
            in excess of the amounts appropriated. Any
            contract, verbal or written, made in violation of


                                    15
             this section shall be void, and no moneys
             belonging to a local government shall be paid
             on such contract.

             (2) Multiple-year contracts may be entered into
             where allowed by law or if subject to annual
             appropriation.

  § 29-1-110.

¶ 31   Our aim in construing a statute is to give effect to the General

  Assembly’s intent. Hernandez v. Ray Domenico Farms, Inc., 2018

  CO 15, ¶ 6. Our first step is to determine whether the statute has a

  plain and unambiguous meaning. Id. To do this, we look at the

  language of the statute (applying the plain and ordinary meanings

  of the words), the context in which the language is used, and the

  context of the statute as a whole. See Burton, ¶ 23; see also

  Hernandez, ¶ 6 (“[W]e must consider the statute in its entirety,

  giving ‘harmonious and sensible effect to all its parts.’” (quoting

  Leonard v. McMorris, 63 P.3d 323, 326 (Colo. 2003))). A “cardinal

  principle of statutory construction” is that no clause, sentence, or

  word is “superfluous, void, or insignificant.” TRW Inc. v. Andrews,

  534 U.S. 19, 31 (2001) (citation omitted).

¶ 32   If, after doing this, we determine that the statute is

  unambiguous, we apply it as written. But if we determine that the


                                    16
  statute is ambiguous, we lean on other rules of statutory

  construction to discern the General Assembly’s intent. People in

  Interest of O.C., 2013 CO 56, ¶¶ 13, 15.

¶ 33   With these rules of statutory construction in mind, we turn to

  the meaning of section 29-1-110 and Falcon’s argument that

  section 29-1-110 doesn’t apply to the BSA because it only requires

  an appropriation for the fiscal year in which the contract was

  executed.

¶ 34   It isn’t completely clear whether the phrase “[d]uring the fiscal

  year” in subsection (1) limits the section’s application to the year in

  which a contract was entered into, as Falcon argues, or whether it

  imposes a prohibition that applies to every year of a contract’s

  existence, as defendants argue. We think the correct reading of the

  statute conditions contractual validity on prior appropriation of

  funds for the year in which the contract was entered into and any

  subsequent years. The broader context of the statute as well as its

  history supports this interpretation.

¶ 35   First, Falcon overlooks subsection (2) of section 29-1-110,

  which says that “[m]ultiple-year contracts may be entered into

  where allowed by law or if subject to annual appropriation.” The


                                    17
  statute therefore expressly says when multi-year contracts are

  allowed. This provision would be meaningless if the appropriation

  requirement only applied to the fiscal year the contract was entered

  into. And we won’t read a statute to render any part meaningless.

  Johnson v. Sch. Dist. No. 1, 2018 CO 17, ¶ 17; Krol v. CF & I Steel,

  2013 COA 32, ¶ 18.

¶ 36   Second, the statute is part of the “Local Government Budget

  Law of Colorado.” § 29-1-101, C.R.S. 2017. The purposes of these

  statutes collectively are “to protect the taxpayer against improvident

  use of tax revenue, to encourage citizen participation and debate

  prior to the institution of public projects, to insure public disclosure

  of proposed spending, and to encourage prudence and thrift by

  those elected to direct expenditure of public funds.” Shannon Water

  & Sanitation Dist. v. Norris & Sons Drilling Co., 29 Colo. App. 48, 52,

  477 P.2d 476, 478 (1970). These purposes are served by requiring

  advance appropriations for the entire term of a contract.

¶ 37   Third, previous versions of this statute evidence the General

  Assembly’s continual unease over allowing contracts that bind

  governmental entities without prior appropriations. The original

  version of the statute said:


                                    18
            When contracts and expenditures are
            prohibited. No officer, department, board,
            commission, or other spending agency shall,
            during the fiscal year, expend or contract to be
            expended any money, or incur any liability, or
            enter into any contract which, by its terms,
            involves the expenditure of money for any of
            the purposes for which provision is made in
            the appropriation ordinance in excess of the
            amounts appropriated in said ordinance, for
            such officer, department, board, commission,
            or other expending agency, or purpose, for
            such fiscal year. Any contract, verbal or
            written, made in violation of this Section shall
            be null and void as to the local government,
            and no moneys belonging thereto shall be paid
            thereon; Provided, however, that nothing
            herein contained shall prevent the making of
            contracts for governmental services or for
            capital outlay in school districts of the first
            class for a period exceeding one year, but any
            contract so made shall be executory only for the
            amounts agreed to be paid for such services to
            be rendered in succeeding fiscal years.

  Ch. 125, sec. 10, 1933 Colo. Sess. Laws 671-72 (emphasis added);

  C.S.A. 1935, Ch. 103, § 13.

¶ 38   The word “executory” indicates that no contract would be

  enforceable absent the satisfaction of a condition precedent —

  specifically, an appropriation. See Mitchell Bank v. Schanke, 676

  N.W.2d 849, 857 (Wis. 2004) (an executory contract is conditioned

  on a future activity); Gaugert v. Duve, 579 N.W.2d 746, 748 (Wis.



                                   19
  Ct. App. 1998) (“At law, when a contract is missing one of the

  essential elements which would make it binding, it is known as an

  ‘executory’ contract and a party is under no obligation to perform.”);

  Black’s Law Dictionary 393 (10th ed. 2014) (an executory contract

  is “[a] contract that remains wholly unperformed or for which there

  remains something still to be done on both sides, often as a

  component of a larger transaction and sometimes memorialized by

  an informal letter agreement, by a memorandum, or by oral

  agreement”).

¶ 39   Thus, the first iteration of the statute rendered all multi-year

  contracts unenforceable subject to the satisfaction of the

  appropriation condition precedent. Subsequent versions of the

  statute followed in these footsteps, but the current version goes

  further: multi-year contracts aren’t merely executory if money

  hasn’t been appropriated — they’re void. § 29-1-110(1), (2).11

¶ 40   The BSA creates an economic commitment the District wasn’t

  at liberty to make because it requires the District to pay Falcon



  11Subsection (2) of the statute also allows multi-year contracts if
  otherwise allowed by law. Falcon doesn’t argue that any other
  provision of law allows multi-year contracts like the BSA.

                                    20
  regardless of appropriations.12 Even though the BSA didn’t require

  the District to pay anything during the fiscal year in which it was

  signed, it did require expenditures without appropriation in the

  following fiscal years in violation of section 29-1-110. The BSA is

  therefore void. See Town of Alma v. AZCO Constr., Inc., 985 P.2d 56,

  58 (Colo. App. 1999) (“Section 29-1-110(1), C.R.S. [2017], prohibits

  municipalities from spending any funds in excess of amounts

  appropriated in the adopted budget, and renders any contract

  entered in violation of this section void.”), aff’d, 10 P.3d 1256 (Colo.

  2000).

              c.    Falcon Isn’t Entitled to Equitable Relief

¶ 41   Falcon next contends that it’s entitled to equitable relief even if

  the BSA is void. But a party contracting with a governmental entity

  has the duty to “ascertain whether the contract complies with the

  constitution, statutes, charters, and ordinances so far as they are


  12Falcon argues that even if the statute applies, the District
  couldn’t have exceeded appropriations absent fraud because the
  amount paid to Falcon is recouped from the residents. But the BSA
  requires the District to expend funds before recouping from
  residents and doesn’t account for potential nonpayment by the
  residents. That is, it doesn’t condition payment to Falcon on the
  District’s ability to recoup.


                                     21
  applicable.” 10 McQuillin, § 29:10, at 351. And so the party

  contracting with a governmental entity bears the risk that “all

  recovery, including quantum meruit, [will be] denied” if the contract

  isn’t valid. Normandy Estates Metro. Recreation Dist. v. Normandy

  Estates, Ltd., 191 Colo. 292, 295, 553 P.2d 386, 388-89 (1976); see

  also 10A McQuillin, § 29:91, at 8-9 (a municipal corporation isn’t

  “required to restore status quo or to compensate for benefits

  received under [a void] agreement”). This rule can produce “harsh

  results,” but it protects the taxpayers against improper

  expenditures. Shannon Water & Sanitation Dist., 29 Colo. App. at

  52, 477 P.2d at 478.

¶ 42   There is, however, a limited exception. “[W]here property is

  furnished to a municipal corporation under an unenforceable

  contract, and the municipality has not paid for the property, then

  the seller or person supplying the property may, upon equitable

  terms, recover it in specie.” Normandy Estates, 191 Colo. at 296,

  553 P.2d at 389.

¶ 43   In Normandy Estates, a contract to transfer property and

  recreational facilities on that property was void for failure to comply

  with a statutorily required vote. Id. Nonetheless, the supreme


                                    22
  court allowed the corporation to recover either the remaining

  balance or specific property transferred. Id. at 297, 553 P.2d at

  390.

¶ 44     But this exception is extremely limited. Id. The only equitable

  recovery theoretically available to Falcon would be the recovery of

  any property it transferred to the District. Id. And Normandy

  Estates makes clear that “there can be no recovery where the

  property is no longer in existence or identifiable.” Id. Addressing

  this exception, a division of this court held in another case that a

  contractor wasn’t entitled to recover upon equitable terms where

  property couldn’t be restored without “serious damage to the

  property of the municipality.” F. J. Kent Corp. v. Town of Dillon, 648

  P.2d 669, 670 (Colo. App. 1982).

¶ 45     The BSA was a contract for services; the only tangible property

  transferred was the infrastructure and wiring required to provide

  the services. Falcon asked for recovery for its provision of services,

  not for its provision of infrastructure. And, even if it had asked, the

  infrastructure couldn’t be returned without serious damage to the

  District’s property. It follows that Falcon isn’t entitled to equitable

  relief under Normandy Estates.


                                     23
       3.     Because the BSA Is Void, All of Falcon’s Claims, Save One,
                                        Fail

¶ 46        Because all of Falcon’s claims are premised on the BSA’s

  validity, only its unjust enrichment claim against Oakwood

  survives.

                            a.   Contract-type Claims

¶ 47        Initially, we affirm the district court’s judgment on the breach

  of contract and breach of the implied covenant of good faith and fair

  dealing claims because both claims require a valid contract. See

  City of Golden v. Parker, 138 P.3d 285, 292 (Colo. 2006) (covenant

  of good faith and fair dealing is implied in every contract and

  requires good faith in the discretionary performance of contractual

  obligations); W. Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo.

  1992) (the existence of a contract is an element of a breach of

  contract claim); see also Schmidt v. Wells Fargo & Co., ___ F. Supp.

  3d ___, ___, 2018 WL 1522609, * 5 & n.2 (D. Colo. Mar. 28, 2018) (a

  void contract can’t support a claim for breach of the implied

  covenant of good faith and fair dealing; applying Colorado law);

  Restatement (Second) of Contracts § 7 cmt. a (Am. Law Inst. 1981)

  (there is no remedy for breach, nor is there any duty of performance



                                        24
  under a void contract because it “is not a contract at all”). Falcon

  doesn’t argue otherwise.

¶ 48   Next, where a contract with a governmental entity is void for

  the reason discussed above, there is no option for recovery under

  any theory, save the limited exception not applicable in this case.

  Normandy Estates, 191 Colo. at 295, 553 P.2d at 388-89; Rocky

  Mountain Nat. Gas, LLC v. Colo. Mountain Junior Coll. Dist., 2014

  COA 118, ¶ 31 (“[W]here a contract is void because it is not within a

  municipality’s power to make, the municipality cannot be estopped

  to deny the validity of the contract.”). And so neither the BSA itself

  nor the District’s actions in connection therewith can support a

  cause of action for either promissory estoppel or unjust enrichment

  against the District. See 10A McQuillin, § 29:117, at 160-62 (“The

  fiction of an implied promise or agreement, or the theory of a

  liability based on quantum meruit cannot be substituted for an

  express contract which is void for noncompliance with mandatory

  terms of the statutes or charter.”).13



  13The district court dismissed this claim as barred by section 24-
  10-103, C.R.S. 2017, of the CGIA. As discussed above, the court
  shouldn’t have dismissed this claim as to the District under the

                                     25
¶ 49   Falcon also asserts the unjust enrichment claim against

  Oakwood, however, alleging that Oakwood benefited from the

  provision of the services Falcon provided.14 The only reason the

  district court gave for dismissing this claim against Oakwood was

  that it’s barred by governmental immunity. But because the

  Oakwood entities are private entities, not public ones, governmental

  immunity doesn’t apply to this claim.

¶ 50   We note that whether a party is entitled to an equitable

  remedy for unjust enrichment is a discretionary call for the district

  court, and that in making that call the court may need to make

  extensive factual findings. Lewis v. Lewis, 189 P.3d 1134, 1140

  (Colo. 2008). Oakwood doesn’t argue on appeal that there’s an

  alternative legal basis for entering judgment in its favor on this

  claim, and so we think the wisest course is to reverse the judgment

  and remand for further proceedings.



  CGIA, but rather should’ve done so on summary judgment under
  section 29-1-110. Likewise, Oakwood isn’t entitled to dismissal of
  this claim on governmental immunity grounds.
  14 Oakwood argues that Falcon waived this issue because it didn’t

  appeal the judgment on this claim. But Falcon did appeal as to this
  claim; it argues in its opening brief that the Oakwood entities are
  private and therefore not entitled to CGIA protection — the only
  basis for the judgment given by the district court on this claim.

                                    26
                             b.   Tort Claims

¶ 51   Falcon contends that even if the BSA is void, its tortious

  interference and civil conspiracy claims remain viable. We disagree.

  Because, as explained above, the CGIA protects the Directors from

  both of these claims and protects the District from the civil

  conspiracy claim (Falcon doesn’t assert the tortious interference

  claim against the District, presumably because a party can’t

  tortiously interfere with its own contract), we need only address

  these claims further as they pertain to Oakwood.

                        i.   Tortious Interference

¶ 52   In arguing that its tortious interference claim remains viable

  because that claim doesn’t depend on the BSA’s validity, Falcon

  ignores its own factual allegations and misapprehends the

  applicable law.

¶ 53   As pleaded in the amended complaint, Falcon’s claim for

  tortious interference expressly relies on the validity of the BSA.

  Falcon alleges that

              “[t]he [BSA] is a valid contract between the District and

               Falcon”;




                                    27
              Oakwood and its officers, employees, and “interested

                parties” on the District’s board knew about the BSA;

                and

              Oakwood told the Directors to cease the District’s

                performance under the BSA.

  It is therefore clear that Falcon’s claim is premised on the BSA

  alone, and not some prospective business arrangement.

¶ 54   The law, also, isn’t on Falcon’s side. “One who intentionally

  and improperly interferes in the performance of a contract between

  another and a third person is liable in tort to the other for the

  pecuniary loss resulting from the nonperformance of the contract.”

  W.O. Brisben Cos., 66 P.3d at 136 (citing Trimble v. City & Cty. of

  Denver, 697 P.2d 716, 726 (Colo. 1985)). “[A]n essential element of

  this tort is the existence of a contract between the plaintiff and a

  third party.” Grimm Constr. Co. v. Denver Bd. of Water Comm’rs,

  835 P.2d 599, 601 (Colo. App. 1992); see also Condo v. Conners,

  271 P.3d 524, 526 (Colo. App. 2010) (“For a claim for tortious

  interference with a contract to be viable, a valid contract must

  exist.”), aff’d, 266 P.3d 1110 (Colo. 2011). So “if for any reason [a

  contract] is entirely void, there is no liability for causing its breach.”

                                      28
  Restatement (Second) of Torts § 766 cmt. f (Am. Law Inst. 1979);

  accord Restatement (Second) of Torts § 774 & cmts. a, b; see also

  Condo, 271 P.3d at 530 (because the contract at issue was void, the

  tortious interference claim necessarily failed).15 This is so because

  a void contract is no contract at all. Restatement (Second) of Torts

  § 774 cmt. b; see also Restatement (Second) of Contracts § 7 cmt. a.

       It follows that Falcon’s claim for tortious interference against

  Oakwood (and the Directors, were the CGIA not applicable) fails as

  a matter of law.16

                          ii.   Civil Conspiracy

¶ 55   “[T]he elements for a civil conspiracy claim require that the

  underlying acts be unlawful and create an independent cause of

  action.” Double Oak Constr., 97 P.3d at 146. Given our conclusions

  that the BSA is void and that there was no tortious interference, no

  unlawful overt act arguably supports Falcon’s civil conspiracy

  claim. So that claim also fails. Condo, 271 P.3d at 530.


  15The rule is different as to contracts that are merely voidable. See
  Restatement (Second) of Torts § 766 cmt. f (Am. Law Inst. 1979).
  But the BSA is void, not merely voidable.

  16None of the cases on which Falcon relies in this context pertain to
  void contracts.

                                    29
                             III.     Cross-Appeals

¶ 56   The District and the Directors cross-appeal, arguing that the

  court erred by failing to award them attorney fees under section 13-

  17-201.17 We agree only with the Directors.

                        A.          Standard of Review

¶ 57   We review de novo questions of law, including whether a

  statute requires an award of attorney fees. Crandall v. City of

  Denver, 238 P.3d 659, 661 (Colo. 2010).

                             B.      Applicable Law

¶ 58   Section 13-17-201 provides in relevant part as follows:

            In all actions brought as a result of a death or
            an injury to person or property occasioned by
            the tort of any other person, where any such
            action is dismissed on motion of the defendant
            prior to trial under rule 12(b) of the Colorado
            rules of civil procedure, such defendant shall
            have judgment for his reasonable attorney fees
            in defending the action.

¶ 59   The statute unambiguously requires an award of attorney fees

  where an action is dismissed under C.R.C.P. 12(b). See Crandall,


  17 The Oakwood entities don’t ask for attorney fees, presumably
  because they are private entities not entitled to the protection of the
  CGIA. Section 13-17-201, C.R.S. 2017, allows an award of attorney
  fees only in an action dismissed under C.R.C.P. 12(b). As
  discussed, the claims against Oakwood, except the unjust
  enrichment claim, should’ve been resolved under C.R.C.P. 56.

                                         30
238 P.3d at 663 (statute “unequivocally mandate[s]” attorney fees);

Gagne v. Gagne, 2014 COA 127, ¶ 74 (same). But sometimes

applying it isn’t as simple as looking to whether the defendant

prevailed on a motion filed under that rule. For instance, by its

own terms, the statute doesn’t apply to a Rule 12(b) motion that is

“treated as a motion for summary judgment.” § 13-17-201. Nor

does it apply if the court doesn’t dismiss all the tort claims against

a certain defendant or “if an action contains both tort and non-tort

claims and the defendant obtains C.R.C.P 12(b) dismissal of only

the tort claims.” Dubray v. Intertribal Bison Coop., 192 P.3d 604,

607 (Colo. App. 2008); see also Barton v. Law Offices of John W.

McKendree, 126 P.3d 313, 314 (Colo. App. 2005) (no recovery where

one of the tort claims was dismissed for failure to file a certificate of

review); First Interstate Bank of Denver, N.A. v. Berenbaum, 872 P.2d

1297, 1302 (Colo. App. 1993) (no recovery where one of the tort

claims was disposed of on summary judgment). In other words, for

the statute to apply, the court must’ve dismissed the entire action

pursuant to a Rule 12(b) motion, and that action must be a tort

action.




                                   31
¶ 60   For purposes of this statute, how the plaintiff chose to plead

  the claim (as a tort or not) controls. Robinson, 179 P.3d at 1010;

  Castro v. Lintz, 2014 COA 91, ¶ 16. And, when a plaintiff brings

  both tort and non-tort claims against a particular defendant, an

  award of attorney fees is required only if “the essence of the action

  was one in tort.” Castro, ¶ 16.

                               C.   Analysis

¶ 61   To recap, of the various claims Falcon asserts against the

  District, we’ve concluded that (1) the district court properly granted

  the District summary judgment on the breach of contract, breach of

  the implied covenant of good faith and fair dealing, and declaratory

  judgment claims; (2) the district court should’ve granted summary

  judgment to the District on the promissory estoppel and unjust

  enrichment claims rather than dismissing them under the CGIA;

  and (3) the district court properly dismissed the civil conspiracy

  claim under the CGIA. As for the claims Falcon asserts against the

  Directors (for tortious interference and civil conspiracy), the district

  court should’ve dismissed them under C.R.C.P. 12(b)(1) as barred

  by the CGIA.




                                     32
¶ 62   Because the statute applies to the claims against each

  defendant individually, Colo. Special Dists. Prop. & Liab. Pool v.

  Lyons, 2012 COA 18, ¶ 60, we address the District’s and the

  Directors’ requests for fees separately.

                             1.    The District

¶ 63   Of the six claims Falcon brought against the District, only one

  is a tort claim that was properly dismissed under C.R.C.P. 12(b)(1)

  as barred by the CGIA.18 The rest are contract-type claims that the

  court resolved on summary judgment or should’ve resolved on

  summary judgment. And the gist of Falcon’s action against the

  District was the District’s failure to perform the BSA, not its

  commission of any tort. And so the District isn’t entitled to fees.

  Compare Castro, ¶¶ 29-33 (dismissal didn’t entitle a party to

  attorney fees because the essence of the action wasn’t tort), with

  Crow v. Penrose-St. Francis Healthcare Sys., 262 P.3d 991, 997




  18 The District’s arguments to the contrary notwithstanding, the
  promissory estoppel and unjust enrichment claims are even more
  clearly contract-type claims in this context than they are for CGIA
  purposes. See Robinson v. Colo. State Lottery Div., 179 P.3d 998,
  1010 (Colo. 2008) (“[W]e will not read the CGIA’s concern for claims
  that ‘lie or could lie in tort’ into the plain language of section 13-17-
  201.”).

                                     33
  (Colo. App. 2011) (the defendant was entitled to attorney fees

  because tort claims sought relief beyond that available under a

  breach of contract theory, and there were an equal number of tort

  and non-tort claims).

                           2.   The Directors

¶ 64   But with respect to Falcon’s action against the Directors, it’s a

  different story. The only claims Falcon brought against the

  Directors were tort claims. The district court should’ve dismissed

  both claims under C.R.C.P 12(b)(1) because the Directors, as public

  employees, are entitled to the protection of the CGIA.

¶ 65   Because Falcon’s entire action against the Directors should’ve

  been dismissed under C.R.C.P. 12(b)(1) as tort claims barred by the

  CGIA, the Directors are entitled to an award of their reasonable

  attorney fees under section 13-17-201.

                     IV.   Attorney Fees on Appeal

¶ 66   The Directors are also entitled to an award of their reasonable

  attorney fees incurred in their successful appeal under section 13-

  17-201. State Farm Fire & Cas. Co. v. Weiss, 194 P.3d 1063, 1065

  (Colo. App. 2008). We direct the district court to determine those

  fees. See C.A.R. 39.1.


                                    34
                             V.   Conclusion

¶ 67   We affirm the judgment on all claims except as to Falcon’s

  unjust enrichment claim against the Oakwood entities. We reverse

  the judgment as to that claim. We affirm the district court’s denial

  of the District’s request for attorney fees. And lastly, we reverse the

  district court’s denial of the Directors’ request for attorney fees and

  remand that issue for a determination of the Directors’ reasonable

  attorney fees incurred in the district court and on appeal.

       JUDGE ASHBY and JUDGE HARRIS concur.




                                    35
