Opinion
Isaacson, Rosenbaum, Spiegleman & Friedman, P.C., Sheldon E. Friedman, Denver, for plaintiff-appellant.
C. J. Berardini, Denver, for defendants-appellees.
RULAND, Judge.
Plaintiff-appellant (Mile-Hi) appeals from a judgment of the trial court dismissing its complaint. We affirm.
Mile-Hi (as lessor) and defendant Mr. Lucky's, Inc., (as lessee) entered into a lease which provided for construction of a building by Mile-Hi at a cost of $200,000 in consideration of minimum fixed monthly lease payments plus a percentage of gross sales. Performance of the lease terms by Mr. Lucky's, Inc., was guaranteed by the other defendants. The present dispute arose as a result of the defendants' refusal to pay construction costs in excess of $200,000. The amount of this overage totalled $56,627.02.
At the close of Mile-Hi's evidence in a trial to the court, defendants rested their case and moved to dismiss. The trial court's findings of fact, which are supported by the evidence, delineate the following transactions between the parties. At least two meetings were held between two officers of Mile-Hi (Davidson and Ceronsky) and defendant George Xericos to discuss and finalize the terms of the lease. During these meetings, it was acknowledged that building costs would exceed $200,000. Davidson was an experienced investor in enterprises involving leases similar to that involved in the present case, and he prepared the lease signed by the parties based upon forms utilized in prior transactions. The lease was twenty-four pages in length and contained thirty-five separate clauses. However, no written provision was included in the lease covering payment for the overage which the parties anticipated.
Following execution of the lease, Davidson was aware that the initial $200,000 had been expended because all construction invoices were presented to him for review; nevertheless, Davidson still advanced additional funds without protest. Subsequent to a determination of the overage, Davidson and later Davidson's attorney wrote letters to Xericos requesting some agreement relative to payment of the overage, and the language of the letters indicated to the trial court that there was never any firm agreement between the parties relative to payment of the overage through the date of this correspondence. None of the exhibits introduced at trial were included as part of the record on appeal.
The trial court noted that both Davidson and Ceronsky testified that Xericos promised to pay any overage on various occasions both before and after execution of the written lease. However, the trial court concluded that because of Davidson's business acumen and especially due to certain prior unsatisfactory experiences in business ventures with Xericos, Davidson would not have permitted expenditures in excess of the planned investment based solely upon conversation with Xericos.
The trial court granted defendants' motion to dismiss on the basis, Inter alia, that there was no agreement by any of the defendants to pay the overage and that Mile-Hi ultimately would not suffer any loss by payment of the overage since Mile-Hi was the owner of the building. In ruling upon plaintiff's motion for new trial, the trial court made additional findings to the effect that no evidence was introduced showing the amount of the overage the parties agreed would be repaid, the due date of any obligation to repay, the interest rate to be charged, or the terms for repayment.
Plaintiff contends that since the testimony of Davidson and Ceronsky was uncontradicted that Xericos made a separate oral agreement to pay the overage, plaintiff established its case and should have been awarded the relief requested. The trial court as trier of fact is not bound to accept even uncontradicted testimony as fact. Thiele v. State, 30 Colo.App. 491, 495 P.2d 558. Moreover, in order to establish the existence of a contract, it must appear that the parties reached complete agreement on all essential terms. See Stice v. Peterson, 144 Colo. 219, 355 P.2d 948. The findings of the trial court based upon the testimony of the witnesses are amply supported by the record, and we must assume the correctness of its findings based upon the exhibits introduced in evidence but not made a part of the record on appeal. See Teets v. Richardson, 131 Colo. 592, 274 P.2d 233. These findings support the conclusion that there was no agreement by defendants to pay any overage.
Mil-Hi argues that recovery should have been allowed upon a theory of quasicontract or unjust enrichment. Mile-Hi asserts that the lease was entered into upon the premise of a 12% Return to the lessor and that Xericos was informed of such during negotiations. However, because of the overage, the return to the lessor will be less than 12%.
A copy of the lease is not included in the record on appeal. However, the trial court noted that the lease provided for rental payments based, in part, on gross sales by the lessee. Thus, it does not necessarily follow that the return to Mile-Hi will be less than 12%. Moreover, since the overage was expended for the building which Mile-Hi owns, the trial court correctly concluded that Mile-Hi has not suffered any loss (other than the possibility that additional time will be required to recoup the building costs). The doctrine of quasi-contract is a fiction of law adopted to enforce a legal duty when no contract exists. Brown's Estate v. Stair, 25 Colo.App. 140, 136 P. 1003. Absent a showing of unjust enrichment, the doctrine does not apply. See Wistrand v. Leach Realty Co., 147 Colo. 573, 364 P.2d 396.
Mile-Hi finally contends that defendants should be estopped to deny liability for payment of the overage. The estoppel theory was not pled or urged before the trial court and may not be asserted for the first time on appeal. See Kimmel v. Batty, 168 Colo. 431, 451 P.2d 751.
Judgment affirmed.
SILVERSTEIN, C.J., and COYTE, J., concur.