     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
                                                              March 21, 2019

                                2019COA44

No. 17CA2160, Whiting-Turner v. Guarantee Co. of N. Am. USA
— Construction Law — Suretyship and Guaranty —
Performance Bonds; Contracts — Condition Precedent

     For the first time in Colorado, a division of the court of appeals

applies to surety bonds cases the contract law principles governing

a party’s satisfaction of conditions precedent. In addition, the

division considers the proper calculation of the “Balance of the

Contract Price,” which is a key term in the standard form of surety

bond used throughout the construction industry. The division

affirms the trial court’s finding that the general contractor satisfied

the conditions precedent in the surety bond and thus triggered the

surety’s obligation to perform.
COLORADO COURT OF APPEALS                                        2019COA44


Court of Appeals No. 17CA2160
City and County of Denver District Court No. 14CV34166
Honorable Andrew P. McCallin, Judge


Whiting-Turner Contracting Company,

Third-Party Plaintiff-Appellee,

v.

Guarantee Company of North America USA,

Third-Party Defendant-Appellant.


                             JUDGMENT AFFIRMED

                                  Division II
                         Opinion by JUDGE LIPINSKY
                        Dailey and Furman, JJ., concur

                           Announced March 21, 2019


Husch Blackwell LLP, Jeffrey D. Whitney, Jeffrey M. Van der Veer, Denver,
Colorado, for Third-Party Plaintiff-Appellee

Woods & Aitken LLP, Kory D. George, Colin P. Baumchen, Denver, Colorado,
for Third-Party Defendant-Appellant
¶1    Performance bonds, like other forms of surety bonds, are

 critical to managing the risk inherent in construction projects. If a

 subcontractor fails to complete its work at a construction site, the

 surety that underwrote the performance bond assumes

 responsibility for the subcontractor’s obligations. Without

 performance bonds, a construction project could come to a halt if a

 single subcontractor walked off the job.

¶2    Performance bonds specify the actions that will trigger the

 surety’s obligations. In this appeal, a surety, Guarantee Company

 of North America USA (GCNA), and a general contractor, Whiting-

 Turner Contracting Company, dispute whether Whiting-Turner

 triggered GCNA’s obligations under a performance bond after a

 subcontractor, Klempco Construction (2013) Inc., stopped work at

 Whiting-Turner’s construction project. The parties’ disagreement

 centers on whether Whiting-Turner paid GCNA the “Balance of the

 Contract Price,” a key term in the performance bond, thereby

 satisfying one of the bond’s conditions precedent.

¶3    Following a bench trial, the trial court entered judgment in

 favor of Whiting-Turner and against GCNA. The trial court found


                                   1
 that Whiting-Turner had complied with the condition precedent set

 forth in section 3.3 of the performance bond and that GCNA had

 failed to perform its obligations under the bond.

¶4        On appeal, GCNA contends that the trial court applied the

 wrong legal standard in determining whether Whiting-Turner

 complied with section 3.3 of the performance bond, erred in finding

 that GCNA had waived its argument regarding Whiting-Turner’s

 compliance with section 3.3, erroneously found that Whiting-Turner

 satisfied the condition precedent in section 3.3, awarded duplicative

 damages to Whiting-Turner, and improperly awarded attorney fees

 to Whiting-Turner.

¶5        We affirm.

          I.      Whiting-Turner’s Disputes with Klempco and GCNA

     A.        Klempco Signs a Subcontract for Work at Whiting-Turner’s
                                       Project

¶6        Whiting-Turner served as the general contractor for an office

 building construction project in Denver (the Project). Whiting-

 Turner and Klempco entered into an agreement (the Subcontract)

 for Klempco’s construction of an anchor system at the Project’s

 underground parking garage. The anchor system was necessary to

                                       2
 keep the sides of the excavated site from collapsing during the

 initial phases of construction. Klempco’s work included the

 installation of sprayed concrete, known as shotcrete, to support the

 anchoring system. Whiting-Turner and Klempco agreed to a

 Subcontract price of $1,785,783.00.

     B.     GCNA Provides a Performance Bond and a Payment Bond

¶7        Whiting-Turner required Klempco to furnish a performance

 bond and a payment bond. (A surety that underwrites a payment

 bond is obligated to pay the sub-subcontractors if the

 subcontractor fails to do so.) Klempco obtained the bonds from

 GCNA. The bonds, which followed American Institute of Architects

 form A312, incorporated the Subcontract by reference. See 4A

 Philip L. Bruner & Patrick J. O’Connor, Jr., Bruner & O’Connor on

 Construction Law § 12:16, Westlaw (database updated June 2018)

 (explaining that the A312 surety bond is a standard form in the

 construction industry).

¶8        Section 3 of the performance bond specified the three

 conditions precedent that Whiting-Turner would need to satisfy to

 trigger GCNA’s obligations as surety:


                                      3
           • provide notice to Klempco and GCNA that Whiting-

             Turner was considering declaring Klempco in default

             (section 3.1);

           • declare Klempco in default, terminate the Subcontract,

             and notify GCNA of these actions (section 3.2); and

           • “pay the Balance of the Contract Price in accordance

             with the terms of the [Subcontract] to [GCNA] or to a

             contractor selected to perform the [Subcontract]”

             (section 3.3).

¶9     The performance bond defined “Balance of the Contract Price”

  as “[t]he total amount payable by [Whiting-Turner] to [Klempco]

  under the [Subcontract] after all proper adjustments have been

  made, . . . reduced by all valid and proper payments made to or on

  behalf of [Klempco] under the [Subcontract].” (Emphases added.)

                C.   Klempco Stops Work at the Project

¶ 10   Klempco fell behind schedule almost immediately and stopped

  paying its sub-subcontractors. Klempco subsequently directed

  Whiting-Turner to assume responsibility for the shotcrete




                                   4
  installation and to work directly with two of Klempco’s sub-

  subcontractors.

¶ 11   Whiting-Turner sent Klempco and GCNA a letter declaring

  Klempco in default under the Subcontract. In the letter, Whiting-

  Turner stated that Klempco was incapable of completing its work at

  the Project and “is apparently unable to complete payments to its

  sub-subcontractors for previously completed work, and by its own

  admissions is unable to cure such default.” Whiting-Turner

  requested a meeting with Klempco representatives “to discuss the

  details of Klempco’s request that Whiting-Turner take over its

  work.” Whiting-Turner asked GCNA to attend the meeting “to

  advise Whiting-Turner on how [GCNA] wishes for Whiting-Turner to

  proceed in connection with the completion of Klempco’s work and

  payment of its vendors.”

¶ 12   Representatives of Whiting-Turner, Klempco, and GCNA met

  on April 30, 2014, to discuss, among other issues, Klempco’s

  request that Whiting-Turner take over the shotcrete work and pay

  Klempco’s sub-subcontractors directly. At the meeting, Whiting-

  Turner and Klempco amended the Subcontract to reduce Klempco’s


                                   5
  payment by $553,707.00 — the price of the shotcrete work.

  Whiting-Turner, Klempco, and GCNA agreed that the shotcrete sub-

  subcontractor would invoice Whiting-Turner directly.

¶ 13   Two days later, Klempco notified Whiting-Turner that, because

  Whiting-Turner had declared Klempco in default and was refusing

  to pay Klempco, Klempco would demobilize from the Project.

  Whiting-Turner asked GCNA how Whiting-Turner should proceed in

  light of Klempco’s decision to leave the Project. GCNA did not

  respond.

        D.   Whiting-Turner Terminates Klempco’s Subcontract

¶ 14   Whiting-Turner terminated the Subcontract after Klempco

  failed to cure its default. GCNA did not respond to Whiting-

  Turner’s repeated demands that, in light of the termination of the

  Subcontract, GCNA honor its obligations under the performance

  bond and advise Whiting-Turner how GCNA intended to proceed.

¶ 15   On June 24, 2014, Whiting-Turner provided GCNA with its

  calculation of the “Balance of the Contract Price.” Whiting-Turner

  said that it had paid $1,064,919.00 of the “Balance of the Contract

  Price” to Klempco and its sub-subcontractors, leaving a balance of


                                   6
  $720,819.00. Whiting-Turner deducted certain expenses from this

  balance:

             • $256,897.90 for Whiting-Turner’s payments to five

               unpaid sub-subcontractors who had recorded, or were

               threatening to record, mechanic’s liens against the

               Project; and

             • $553,707.00 for the shotcrete work for which Whiting-

               Turner had assumed responsibility.

  These adjustments resulted in a negative “Balance of the Contract

  Price.”

  E.    The Trial Court Enters Judgment Against Klempco and GCNA

¶ 16   Klempco filed suit against Whiting-Turner claiming, among

  other allegations, that Whiting-Turner had breached the

  Subcontract by failing to pay sums due to Klempco. Whiting-

  Turner asserted a counterclaim for breach of the Subcontract.

  Whiting-Turner also filed third-party claims against GCNA for

  breach of the performance bond and the payment bond.

¶ 17   GCNA argued that Whiting-Turner had failed to comply with

  the condition precedent set forth in section 3.3 of the performance


                                     7
  bond and, therefore, never trigged GCNA’s obligations under the

  bond. Specifically, GCNA asserted that Whiting-Turner

  miscalculated the “Balance of the Contract Price” and,

  consequently, failed to pay the correct sum to GCNA pursuant to

  section 3.3.

¶ 18   The case proceeded to a bench trial. In its findings of fact and

  conclusions of law, the trial court found that Klempco had breached

  the Subcontract. In addition, the trial court found that Whiting-

  Turner had complied with the condition precedent set forth in

  section 3.3 of the performance bond. The trial court further found

  that GCNA had breached the performance bond and the payment

  bond. The trial court held that GCNA was jointly and severally

  liable with Klempco for Whiting-Turner’s damages.

¶ 19   Alternatively, the trial court found that GCNA had waived its

  arguments regarding Whiting-Turner’s compliance with section 3.3

  by failing to respond to Whiting-Turner’s repeated requests for

  guidance after Klempco stopped performing under the Subcontract.

¶ 20   The trial court found that, as a consequence of GCNA’s breach

  of the performance bond, Whiting-Turner had incurred $798,248.93


                                    8
  in damages, including $124,146.95 in prejudgment interest. The

  trial court calculated Whiting-Turner’s damages by first determining

  how much Whiting-Turner had paid the sub-subcontractors to

  complete the work specified in the Subcontract. The trial court

  subtracted from this number the sum that Whiting-Turner had

  agreed to pay Klempco in the original Subcontract.

¶ 21   The trial court later revised its damage calculations to reflect

  two adjustments to the $798,248.93 figure: (1) a reduction of

  $3,322.90 for unrecoverable overhead and (2) additional

  prejudgment interest in the amount of $37,334.21. The trial court

  awarded Whiting-Turner $832,260.24 in damages against Klempco

  and GCNA, jointly and severally.

¶ 22   Whiting-Turner moved for an award of attorney fees and costs

  against Klempco and GCNA under the Subcontract; Colorado’s

  mechanic’s lien statute, section 38-22-128, C.R.S. 2018; and the

  performance and payment bonds. GCNA opposed Whiting-Turner’s

  request for attorney fees and argued, in the alternative, that GCNA

  was liable only for those fees attributable to Whiting-Turner’s

  claims against GCNA. GCNA contended that it was not liable for


                                     9
  Whiting-Turner’s fees attributable to its defenses to Klempco’s

  claims, Whiting-Turner’s claims against Klempco, or Whiting-

  Turner’s claim against GCNA for breach of the payment bond.

¶ 23   The trial court found that it could not apportion Whiting-

  Turner’s fees among the various claims and defenses litigated in the

  case, however, because “all of the claims of both parties ar[o]se out

  of the same operative facts.” The trial court held Klempco and

  GCNA jointly and severally liable to Whiting-Turner for $504,785.27

  in attorney fees and costs and $18,990.14 in interest.

¶ 24   GCNA appeals the trial court’s post-trial rulings on damages

  and attorney fees. (The trial court subsequently increased the

  amount of attorney fees awarded to Whiting-Turner. GCNA did not

  file an amended notice of appeal to obtain review of this decision,

  however. We therefore address the two appealed orders only. See

  Baldwin v. Bright Mortg. Co., 757 P.2d 1072, 1074 (Colo. 1988)

  (holding that attorney fees award is separately appealable from

  judgment on the merits).)




                                    10
   II.    The Record Does Not Indicate that the Trial Court Applied an
         Incorrect Legal Standard in Analyzing Whether Whiting-Turner
               Complied with Section 3.3 of the Performance Bond

¶ 25     GCNA contends that the trial court erred in finding that

  Whiting-Turner was required only to substantially comply, rather

  than strictly comply, with the condition precedent set forth in

  section 3.3 of the performance bond. GCNA asks us to hold that

  contractors must strictly comply with the conditions precedent in a

  performance bond and, therefore, reverse the trial court’s finding

  that Whiting-Turner complied with section 3.3.

¶ 26     The record does not support GCNA’s contention, however.

  Because the trial court did not find that Whiting-Turner only

  substantially complied with section 3.3, we need not address in this

  context the proper legal standard for determining whether a

  contractor satisfied a condition precedent in a performance bond.

  See Zingone v. Zingone, 136 Colo. 39, 43, 314 P.2d 304, 306 (1957)

  (holding that appellate court may not consider a party’s version of

  what transpired in the lower court that does not appear in the

  record).




                                    11
¶ 27   GCNA’s argument regarding the substantial compliance

  standard rests on a single sentence in the trial court’s discussion of

  Whiting-Turner’s compliance with the notice provision in the

  payment bond. The trial court said that “only substantial

  performance with bond notice requirements is required . . . .”

¶ 28   This is a correct statement regarding the standard for

  compliance with the notice provision in a surety bond. Brighton

  Sch. Dist. 27J v. Transamerica Premier Ins. Co., 923 P.2d 328, 334

  (Colo. App. 1996), aff’d, 940 P.2d 348 (Colo. 1997). But this case

  does not concern Whiting-Turner’s compliance with a notice

  requirement.

¶ 29   GCNA does not point to anything in the record demonstrating

  that the trial court found that Whiting-Turner was required only to

  substantially comply with the condition precedent in section 3.3 of

  the performance bond. Moreover, GCNA does not contend that the

  trial court found that Whiting-Turner only substantially complied,

  and did not strictly comply, with section 3.3.

¶ 30   We therefore decline to address this argument.




                                    12
          III.   We Need Not Address GCNA’s Waiver Argument

¶ 31   GCNA contends that the trial court erred in finding that GCNA

  waived its argument that Whiting-Turner failed to satisfy the

  condition precedent set forth in section 3.3. The trial court inserted

  a single sentence regarding waiver in the midst of its extensive

  discussion of Whiting-Turner’s compliance with section 3.3,

  however.

¶ 32   The trial court’s ruling in favor of Whiting-Turner rested not

  only on waiver but also on the trial court’s thorough analysis of the

  merits of Whiting-Turner’s claims. The trial court’s reference to

  waiver therefore reflected, at most, an alternative basis for its

  findings of fact and conclusions of law.

¶ 33   We need not address whether GCNA waived its arguments

  concerning Whiting-Turner’s compliance with section 3.3 because,

  as we explain in Part IV below, we agree with the trial court that

  Whiting-Turner properly triggered GCNA’s obligations under the

  performance bond. See Archuleta v. Gomez, 140 P.3d 281, 285

  (Colo. App. 2006) (declining to address the trial court’s alternative

  ruling when the record supported the trial court’s findings and


                                     13
  verdict on the claim). We therefore now turn to the merits of

  GCNA’s argument regarding section 3.3.

       IV.    The Trial Court Did Not Err in Finding that Whiting-Turner
              Satisfied the Condition Precedent Set Forth in Section 3.3 of
                                 the Performance Bond

¶ 34         GCNA contends that the trial court erred in finding that

  Whiting-Turner satisfied the condition precedent in section 3.3 of

  the performance bond. GCNA asserts that Whiting-Turner did not

  comply with section 3.3 because it miscalculated the “Balance of

  the Contract Price” and did not pay the correct amount to GCNA.

  GCNA specifically argues that Whiting-Turner improperly reduced

  the “Balance of the Contract Price” by

               • the amount of Whiting-Turner’s anticipated payments to

                  five unpaid sub-subcontractors that had recorded, or

                  were threatening to record, mechanic’s liens against the

                  Project;

               • the $553,707.00 reduction in the “Balance of the

                  Contract Price” to which Whiting-Turner and Klempco

                  agreed at the April 30 meeting (which GCNA also

                  attended); and


                                        14
          • a back charge of $30,702.00.

  Lastly, GCNA asserts that we should adopt the reasoning of an

  unpublished New York state trial court decision that, according to

  GCNA, supports its position that Whiting-Turner failed to comply

  with section 3.3.

¶ 35   The record supports the trial court’s finding that Whiting-

  Turner satisfied the condition precedent in section 3.3 of the

  performance bond.

                        A.    Standard of Review

¶ 36   We review de novo questions of law, such as the interpretation

  of a provision in a surety bond. See Brighton Sch. Dist. 27J, 923

  P.2d at 333. We review a court’s findings of fact for clear error. Id.

  A factual finding is clearly erroneous if nothing in the record

  supports it. Loveland Essential Grp., LLC v. Grommon Farms, Inc.,

  251 P.3d 1109, 1117 (Colo. App. 2010).




                                    15
       B.    The Trial Court Did Not Err in Finding that Whiting-Turner
              Correctly Calculated the “Balance of the Contract Price”

       1.    Whiting-Turner Properly Deducted from the “Balance of the
               Contract Price” Its Payments to the Five Unpaid Sub-
                                   Subcontractors

¶ 37        GCNA contends that the trial court erred in finding that

  Whiting-Turner properly reduced the “Balance of the Contract

  Price” by the $256,897.90 that Whiting-Turner paid to the five

  unpaid sub-subcontractors. We disagree.

¶ 38        The Subcontract authorized Whiting-Turner to pay Klempco’s

  unpaid sub-subcontractors and to subtract those payments from

  the “Balance of the Contract Price.” Under the Subcontract,

  Klempco was required to “. . . take any and all necessary actions to

  keep the Project free and clear of all claims for liens . . . .” If

  Klempco failed to take the “necessary actions,” Whiting-Turner

  could “take all actions which it deems reasonable or necessary to

  protect the Project from liens and claims and the costs of any such

  actions . . . shall be deducted from amounts payable by [Whiting-

  Turner] to [Klempco]” under the Subcontract.

¶ 39        Despite this language, GCNA asserts that the “Balance of the

  Contract Price” became fixed in place as of the moment Whiting-

                                       16
  Turner terminated the Subcontract. Therefore, according to GCNA,

  Whiting-Turner’s post-termination payments to Klempco’s unpaid

  sub-subcontractors, who were clamoring for payment and

  threatening to record liens against the Project, could not reduce the

  “Balance of the Contract Price.”

¶ 40   No language in either section 3.3 or the Subcontract barred

  Whiting-Turner from reducing the “Balance of the Contract Price”

  by the amount of its post-termination payments to unpaid sub-

  subcontractors, however. The five sub-subcontractors had already

  completed their work on the Project and had either recorded or were

  threatening to record liens against the Project. Thus, Whiting-

  Turner paid Klempco’s sub-subcontractors “to protect the Project

  from liens and claims . . . .”

¶ 41   GCNA cites to several cases to support its assertion that none

  of Whiting-Turner’s payments postdating the termination of the

  Subcontract properly reduced the “Balance of the Contract Price.”

  These cases do not assist GCNA, however. They hold that, when a

  general contractor hires a replacement subcontractor without the

  surety’s consent, the general contractor has failed to satisfy the


                                     17
conditions precedent in the performance bond. Under those

circumstances, the general contractor cannot reduce the “Balance

of the Contract Price” by the amount of its payments to replacement

subcontractors. See LaSalle Grp., Inc. v. JST Props., L.L.C., No. 10-

14380, 2011 WL 3268099, at *6 (E.D. Mich. July 29, 2011) (“[T]he

hiring of a replacement contractor fails to satisfy the requirement of

paragraph 3.3 [of a form A312 bond].”) (emphasis added); Enter.

Capital, Inc. v. San-Gra Corp., 284 F. Supp. 2d 166, 177 (D. Mass.

2003) (explaining that the “notice requirement in the Construction

Contract exists precisely to provide the surety an opportunity to

protect itself against loss by participating in the selection of the

successor contractor”) (emphasis added); Sch. Bd. v. TIG Premier Ins.

Co., 110 F. Supp. 2d 1351, 1354 (N.D. Fla. 2000) (obligee “could not

contract with another party . . . prior to giving [the surety] notice”)

(emphasis added); Solai & Cameron, Inc. v. Plainfield Cmty. Consol.

Sch. Dist. No. 202, 871 N.E.2d 944, 954 (Ill. App. Ct. 2007)

(“[R]eplacement is a form of mitigation available only to [the surety]

under the provisions of [the performance bond].”) (emphasis added).




                                    18
¶ 42    None of the sub-subcontractors Whiting-Turner paid was a

  replacement contractor. Klempco had selected all five of the sub-

  contractors. Accordingly, we conclude that the $256,897.90

  Whiting-Turner paid to the five unpaid sub-subcontractors after the

  termination of the Subcontract properly reduced the “Balance of the

  Contract Price.” (GCNA also contends that the trial court

  improperly reduced the “Balance of the Contract Price” by

  $99,901.65 that Whiting-Turner paid to sub-subcontractors. The

  record reflects, however, that these payments were included within

  the $256,897.90 Whiting-Turner paid to the five sub-

  subcontractors.)

   2.    Whiting-Turner Properly Subtracted from the “Balance of the
         Contract Price” the $553,707.00 Reduction in Its Payment to
                                   Klempco

¶ 43    GCNA also contends that the trial court improperly reduced

  the “Balance of the Contract Price” by the $553,707.00 reduction in

  the price payable to Klempco under the Subcontract for the

  shotcrete work. We conclude that the trial court did not err by

  reducing the “Balance of the Contract Price” by this amount.




                                   19
¶ 44        The trial court found that, at their April 30 meeting with

  GCNA, Whiting-Turner and Klempco agreed to reduce the amount

  payable to Klempco by the $553,707.00 specified in the

  Subcontract for the shotcrete work. Whiting-Turner advised GCNA

  and Klempco in letters dated May 2, 2014, and May 9, 2014, that it

  intended to incur the expense of completing the shotcrete work.

  When Whiting-Turner asked GCNA in a May 2, 2014, email if it was

  acceptable for Whiting-Turner to pay for the shotcrete work directly,

  GCNA responded “Yes.” GCNA therefore at least tacitly consented

  to reduction of the “Balance of the Contract Price” by $553,707.00.

¶ 45        Whiting-Turner and Klempco had the right to amend their

  agreement memorialized in the Subcontract, and did so when they

  reduced Klempco’s payment by $553,707.00. Accordingly, we

  conclude that the trial court did not err in finding that Whiting-

  Turner properly reduced the “Balance of the Contract Price” by the

  $553,707.00 reduction in the Subcontract price.

       3.    Whiting-Turner Correctly Subtracted the Back Charge from
                        the “Balance of the Contract Price”

¶ 46        GCNA lastly contends that the trial court improperly reduced

  the “Balance of the Contract Price” by a back charge of $30,702.00

                                        20
  because the trial court disallowed the amount of the back charge as

  an item of damages. (GCNA fails to acknowledge that the trial court

  adjusted the amount of the back charge to $5,915.00.) We

  disagree.

¶ 47        As GCNA notes, the trial court reduced Whiting-Turner’s

  damages by the amount of the back charge. GCNA provides no

  explanation, beyond a one-sentence, conclusory statement, to

  support the proposition that, because Whiting-Turner could not

  recover the amount of the back charge as a component of its

  damages, the payment could not also reduce the “Balance of the

  Contract Price.” We decline to address an undeveloped argument

  without legal support. See Holley v. Huang, 284 P.3d 81, 87 (Colo.

  App. 2011) (declining to address “bald assertions of error”

  unsupported by legal authority).

       4.     The New York Trial Court Decision on Which GCNA Relies
              Does Not Support GCNA’s Argument that Whiting-Turner
               Failed to Satisfy the Condition Precedent in Section 3.3

¶ 48        We are not persuaded that the New York unpublished trial

  court decision cited by GCNA supports its argument that Whiting-

  Turner failed to comply with the condition precedent in section 3.3.


                                       21
¶ 49   In East 49th Street Development II, LLC v. Prestige Air &

  Design, LLC, 938 N.Y.S.2d 226, 2011 WL 4599708 (N.Y. Sup. Ct.

  Oct. 6, 2011) (unpublished table decision), the contractor failed to

  tender the balance of the contract price to the surety, even though

  the balance of the contract price was positive, in violation of section

  3.3 of the form A312 performance bond. Id. at *9. The East 49th

  Street court explained that an offer to pay the contract balance,

  even if the balance was negative, was sufficient to satisfy section

  3.3 of the performance bond. Id. at *10.

¶ 50   Unlike the contractors in East 49th Street, Whiting-Turner

  acknowledged in its June 24, 2014, letter that it was required to

  pay GCNA the remainder of the “Balance of the Contract Price.”

  Based on Whiting-Turner’s tender of the “Balance of the Contract

  Price” to GCNA — albeit a negative balance — the trial court

  correctly found that Whiting-Turner had satisfied section 3.3 of the

  performance bond.

¶ 51   The law supports this conclusion. See U.S. Fid. & Guar. Co. v.

  Braspetro Oil Servs. Co., 369 F.3d 34, 59 (2d Cir. 2004) (“[T]he

  relevant inquiry is whether the Obligees actually agreed to pay the


                                    22
  Balance of the Contract Price — not, as the Sureties urge, whether

  the Obligees agreed with the Sureties’ assessment of what the

  respective Balances were at the time of the declarations of

  default.”). Accordingly, East 49th Street does not support GCNA’s

  argument that Whiting-Turner failed to comply with section 3.3.

       V.   The Trial Court Did Not Award Duplicative Damages to
                               Whiting-Turner

¶ 52    GCNA contends that “Whiting-Turner essentially ‘triple-

  dipp[ed]’ in that it sought the very same dollars in three ways” by (1)

  reducing the “Balance of the Contract Price” payable to GCNA; (2)

  seeking payment of the same amount under the performance bond;

  and (3) attempting to recover this sum under the payment bond.

¶ 53    The record does not reflect that the trial court awarded

  Whiting-Turner any duplicative damages, however. The trial court

  reduced the amount of the judgment to permit Whiting-Turner to

  recover only under the performance bond. In doing so, the trial

  court correctly subtracted from the judgment the sum that Whiting-

  Turner would have been required to pay Klempco had Klempco not

  breached the Subcontract.



                                    23
¶ 54    Therefore, the trial court’s judgment did not reflect “triple

  dipping.” GCNA appears to acknowledge this fact in both its

  opening and reply brief. Accordingly, we disagree with GCNA that

  the trial court awarded duplicative damages to Whiting-Turner.

  VI.   The Trial Court Properly Awarded Whiting-Turner Its Attorney
                                    Fees

¶ 55    GCNA lastly contends that the trial court erroneously awarded

  attorney fees to Whiting-Turner under the performance bond.

  GCNA asserts that, because Whiting-Turner did not satisfy the

  condition precedent in section 3.3, Whiting-Turner could not

  recover attorney fees. Alternatively, GCNA argues that the trial

  court improperly failed to segregate the fees awardable to Whiting-

  Turner for its claim against GCNA from the fees attributable to

  Whiting-Turner’s other claims and defenses. We disagree with both

  contentions.

                         A.    Standard of Review

¶ 56    When awarding attorney fees and costs under a contractual

  fee-shifting provision, “[t]he determination of which party prevailed

  is committed to the discretion of the trial court and is subject to an

  abuse of discretion standard of review on appeal.” Dennis I. Spencer

                                     24
  Contractor, Inc. v. City of Aurora, 884 P.2d 326, 328 n.6 (Colo. 1994)

  (citing Smith v. Freeman, 921 F.2d 1120, 1122 (10th Cir. 1990)).

  A court abuses its discretion when its decision is manifestly

  arbitrary, unreasonable, or unfair, or when it is based on an

  erroneous view of the law. Zeke Coffee, Inc. v. Pappas-Alstad P’ship,

  2015 COA 104, ¶ 12, 370 P.3d 261, 265. We will not disturb such

  a decision if it is supported by the record. Double Oak Constr.,

  L.L.C. v. Cornerstone Dev. Int’l, L.L.C., 97 P.3d 140, 151 (Colo. App.

  2003).

                  B.   The Law Governing Attorney Fees

¶ 57   “[I]f the parties agree, in a contract clause known as a fee-

  shifting provision, . . . the prevailing party will be entitled to recover

  its attorney fees and costs.” S. Colo. Orthopaedic Clinic Sports Med.

  & Arthritis Surgeons, P.C. v. Weinstein, 2014 COA 171, ¶ 10, 343

  P.3d 1044, 1047.

¶ 58   A party can recover all of its attorney fees for a lawsuit

  containing “multiple claims ‘involv[ing] a common core of facts’ or

  ‘based on related legal theories,’ [when] counsel’s efforts on an

  individual claim [cannot] be distinguished from work on the whole


                                      25
  of the litigation . . . .” Rocky Mountain Festivals, Inc. v. Parsons

  Corp., 242 P.3d 1067, 1073 (Colo. 2010) (quoting Hensley v.

  Eckerhart, 461 U.S. 424, 435 (1983)). However, when the party

  “presented ‘distinctly different claims for relief that [were] based on

  different facts and legal theories,’” the party may recover only those

  legal fees attributable to the claims on which the party prevailed.

  Id. (quoting Hensley, 461 U.S. at 435).

                               C.   Discussion

       1.    The Trial Court Properly Awarded Attorney Fees to Whiting-
                        Turner Under the Performance Bond

¶ 59        Because Whiting-Turner complied with section 3.3, we agree

  with the trial court that Whiting-Turner had the right to recover

  attorney fees under the performance bond. The performance bond

  bound Klempco and GCNA, “jointly and severally, . . . to [Whiting-

  Turner] for the performance of the [Subcontract], which is

  incorporated herein by reference.” The Subcontract required

  Klempco to pay “[t]he amount of completion costs, as well as any

  other costs, damages, or expenses, including [Whiting-Turner’s]

  legal fees and expense[s], incurred as a result of [Klempco’s]

  default . . . .” The Subcontract also required Klempco to indemnify

                                      26
  Whiting-Turner “against any and all claims, suits, liens, judgments,

  damages, losses and expenses, including, but not limited to,

  attorney’s fees, arising in whole or in part and in any manner for

  the acts or omissions of [Klempco] . . . in the performance of the

  [Subcontract] . . . .”

¶ 60   The language of the Subcontract demonstrates that Klempco

  and Whiting-Turner intended that Klempco would pay any legal fees

  that Whiting-Turner incurred as a consequence of Klempco’s

  default. See Powder Horn Constructors, Inc. v. City of Florence, 754

  P.2d 356, 365 (Colo. 1988) (language of the contract determines

  intent (citing Gen. Ins. Co. of Am. v. City of Colorado Springs, 638

  P.2d 752, 757 (Colo. 1981))). Because the performance bond

  provided that GCNA was jointly and severally liable with Klempco

  for all sums that Klempco owed Whiting-Turner under the

  Subcontract, GCNA was liable to Whiting-Turner for the attorney

  fees that Klempco owed to Whiting-Turner. We therefore conclude

  that the trial court did not abuse its discretion in awarding attorney

  fees to Whiting-Turner under the performance bond.




                                    27
       2.   The Trial Court Did Not Err in Not Segregating the Fees
                         Awarded to Whiting-Turner

¶ 61    GCNA challenges the lack of segregation between Whiting-

  Turner’s fees attributable to Whiting-Turner’s claims against GCNA

  arising under the performance bond and Whiting-Turner’s fees

  relating to the other claims and defenses in the case. The trial

  court found, however, “that it is improper[ ] to segregate out

  Whiting-Turner defense costs against Klempco versus the cost and

  fees that [Whiting-Turner] incurred in bringing its claims against

  Klempco for completion of the [P]roject.” The trial court explained

  that “all of the claims of both parties arise out of the same operative

  facts . . . .” (Emphasis added.)

¶ 62    To prosecute its claim for breach of the performance bond,

  Whiting-Turner had to prove its compliance with each of the three

  conditions precedent set forth in the performance bond: (1)

  notification to Klempco and GCNA that Whiting-Turner was

  considering declaring Klempco in default; (2) notification to GCNA

  that Whiting-Turner had declared a default and terminated the

  Subcontract; and (3) payment of the “Balance of the Contract Price”

  to GCNA or a designated replacement subcontractor. Whiting-

                                     28
  Turner therefore could not prove its claim under the performance

  bond unless it established, among other facts, that it had properly

  declared Klempco in default and terminated the Subcontract.

¶ 63   All the claims in the case, including Whiting-Turner’s claim

  under the performance bond, therefore “involv[ed] a common core of

  facts.” Rocky Mountain Festivals, Inc., 242 P.3d at 1073 (quoting

  Hensley, 461 U.S. at 435). We discern no error in the trial court’s

  finding that Whiting-Turner’s attorney fees could not be

  apportioned amongst Whiting-Turner’s claims against GCNA, claims

  against Klempco, and defenses to Klempco’s claims, as all such

  claims and defenses were intertwined. The trial court thus correctly

  held that, under the performance bond, GCNA was liable to

  Whiting-Turner for all of Whiting-Turner’s attorney fees incurred in

  the litigation.

¶ 64   For these reasons, we conclude that the trial court did not

  abuse its discretion in awarding Whiting-Turner its attorney fees

  incurred in this litigation or in calculating the amount of such fees.

                            VII. Conclusion

¶ 65   The judgment is affirmed.


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JUDGE DAILEY and JUDGE FURMAN concur.




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