23CA1512 Havana v JERB 07-10-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1512 City and County of Denver District Court No. 21CV33157 Honorable J. Eric Eliff, Judge
Havana Operator, LLC, a Colorado limited liability company, and 51st Property Management Group, LLC, a Colorado limited liability company,
Plaintiffs-Appellants,
v.
JERB Limited, a Colorado limited liability company,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE WELLING Schock and Berger*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 10, 2025
Wysocki Law Group, P.C., Jeremy S. Wysocki, Zachary Crow, Denver, Colorado, for Plaintiffs-Appellants
Holland & Hart LLP, Matthew J. Smith, Nicholas W. Katz, Denver, Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Plaintiffs, Havana Operator, LLC (Havana) and 51st Property
Management Group, LLC (51st Property), appeal the trial court’s
entry of judgment against them in their breach of contract action
against defendant, JERB Limited (JERB). We affirm.
I. Background
A. Factual Background
¶2 Havana owned state and local marijuana cultivation licenses
that allowed for the cultivation of marijuana at a unit located on
East 101 Avenue (Unit 101). 51st Property held the commercial
leasehold interest for Unit 101 and Havana subleased Unit 101
from 51st Property. 51st Property leased the location from 51st
Montebello, LLC (the Landlord). Although Unit 101 was licensed for
marijuana cultivation, the plaintiffs only used the space for storage.
51st Property’s lease with the Landlord was set to expire in April
2023 and contained a three-year renewal option.
¶3 On March 4, 2021, JERB sent Havana a letter of intent for an
asset purchase agreement (APA) that contemplated JERB’s
purchase of Havana’s marijuana cultivation licenses for Unit 101
and the remainder of 51st Property’s leasehold interest in Unit 101.
In this letter of intent, JERB stated that its obligation to close the
1 proposed transaction was conditioned on “a new lease for [Unit 101]
on terms satisfactory to [JERB],” among other things.
¶4 On March 24, 2021, the plaintiffs and JERB entered into the
APA. In the APA, JERB agreed to purchase the remainder of 51st
Property’s leasehold interest in Unit 101 and the corresponding
marijuana cultivation licenses from Havana. But the APA
conditioned closing on the execution of an assignment and
assumption agreement for Unit 101 and final governmental
approval — both state and local — for a change in ownership to the
marijuana cultivation licenses.
¶5 Section 4 of the APA provided as follows:
At Closing, [JERB] and 51st Property shall enter into an assignment and assumption agreement in a form to be agreed upon by Landlord, 51st Property, and [JERB] (the “Assignment and Assumption Agreement”) whereby the Leasehold Interest and all other rights and obligations of 51st Property under the Lease Agreement shall be assigned by 51st Property to [JERB] and shall be assumed by [JERB]. 51st Property represents and warrants that the Leasehold Interest shall be free and clear of any and all Liens and shall be in good standing and not in default as of April 1, 2021[,] and as of Closing.
2 ¶6 Section 3 of the APA required JERB to make periodic
payments into an escrow account toward the purchase price for the
assets contemplated by the APA and the rent accruals on Unit 101
between April 11, 2021, and the closing date. Section 11 of the APA
allowed JERB to conduct a due diligence investigation of Unit 101,
including building inspections. Under section 17 of the APA, JERB
could terminate the agreement if final governmental approval wasn’t
granted within six months of the March 24, 2021, effective date.
¶7 The plaintiffs drafted the language of the APA, including
section 4.
¶8 At the time that the parties entered into the APA, JERB
intended to use Unit 101 for marijuana cultivation and needed to
invest approximately $2.5 million into the space to bring it into
compliance with local and state codes and make it suitable for its
intended use. While Unit 101 had two grow rooms that could be
used immediately, JERB’s anticipated build-out was expected to
take four to five months for design and permitting, and another six
months for construction. Given JERB’s contemplated investment
and improvement to Unit 101, JERB wanted a longer lease term
than the three-year option to extend that 51st Property currently
3 held. Havana understood that JERB and the Landlord would
negotiate terms of a lease extension. 51st Property understood that
nothing in the APA, including section 4, prevented JERB from
seeking an extension of the lease once the lease had been assigned
to JERB. Nor did the APA expressly prevent JERB from seeking an
extension as part of the assignment.
¶9 Within days of executing the APA, JERB reached out to the
Landlord to start negotiating a lease term extension as part of the
assignment. JERB also communicated to the Landlord its hope
that the Landlord would reduce the rent for an initial period of the
extended lease given JERB’s anticipated investment in improving
Unit 101. The Landlord seemed open to discussing a lease term
extension with JERB but communicated to JERB that it wouldn’t
agree to an assignment of the current lease on Unit 101 until 51st
Property became current on rent and paid the approximately
$120,000 balance owed.
¶ 10 While JERB and the Landlord began negotiating the lease term
for the assignment of Unit 101, JERB and Havana worked together
to submit a change of ownership application to the Colorado
Marijuana Enforcement Division (MED) for Unit 101’s marijuana
4 cultivation licenses. In the application to the MED, the parties
included a letter of conditional consent for the lease assignment
from the Landlord, stating that the assignment of the lease for Unit
101 was contingent on the Landlord and JERB coming to “mutually
agreeable terms for any contemplated extension of the Lease
Agreement.” JERB sent a copy of this letter to Havana on March
31, 2021.
¶ 11 On April 1, 2021 — the day the APA provided that 51st
Property would be “in good standing and not in default” on
Unit 101 — 51st Property owed $128,000 in unpaid rent.
¶ 12 On April 27, 2021, the MED conditionally approved Havana
and JERB’s change in ownership application contingent on two
things: (1) the parties’ agreement on an effective date for the change
in ownership to take place and (2) local approval.
¶ 13 On May 7, 2021, the Landlord told 51st Property that it
couldn’t agree to a lease assignment with JERB for Unit 101
because 51st Property still owed past due rent. That same day, the
Landlord told JERB the same thing.
¶ 14 On May 13, 2021, 51st Property came current on its unpaid
rent to the Landlord.
5 ¶ 15 On May 18, 2021, Havana and JERB received conditional local
approval contingent on the parties’ ability to provide a copy of a
lease or lease assignment reflecting that JERB legally possessed
Unit 101.
¶ 16 In mid-June 2021, the Landlord emailed 51st Property and
JERB and asked if the parties could connect to help facilitate “the
heavily negotiated lease assignment.” On June 30, 2021, Landlord
asked Havana and 51st Property to participate in the lease
negotiations with JERB to help facilitate the assignment.
¶ 17 Thereafter, 51st Property and the Landlord executed an
assignment and assumption agreement that didn’t include terms for
a lease extension or rent abatement. 51st Property sent the
executed assignment and assumption agreement to JERB, which
was the first proposed assignment and assumption agreement
JERB had received after months of negotiations with the Landlord.
JERB immediately responded and explained that the proposed
agreement wasn’t in a form it could agree to and that it sought “rent
relief” as part of the assignment and assumption agreement. JERB
referred to the Landlord’s previous representations — including the
representation that the Landlord made to the MED in the change in
6 ownership application — that any assignment of Unit 101 was
contingent on a contemplated extension of the lease. JERB also
stated that it was “willing to be completely creative in getting to a
place where all the parties can agree” on the assignment and
assumption agreement.
¶ 18 JERB and the Landlord continued to negotiate the assignment
of Unit 101 for three more months. But JERB and the Landlord
disagreed on terms, including the rental rate for the contemplated
fifteen-year extended lease. Around this time, JERB exercised its
right to perform a due diligence inspection of Unit 101. This
inspection revealed significant damage that required costly repairs
as well as “excessive microbial growth” and “possible mold growth”
in the drywall, increasing JERB’s anticipated investment into Unit
101 improvements.
¶ 19 On September 14, 2021, JERB made its final lease extension
counteroffer to Landlord and explained that the offered terms were
based on changes to the local marijuana market, including “over
supply [and] shaky market fundamentals,” as well as an increased
cost of construction to Unit 101. The Landlord responded with a
counteroffer on September 27, 2021. JERB declined Landlord’s
7 counteroffer and terminated further negotiations with the Landlord
regarding the lease extension for Unit 101. JERB then refused to
sign the assignment and assumption agreement that 51st Property
had sent three months prior. Consequently, state and local
authorities never granted final governmental approval for a change
in ownership to Unit 101’s marijuana cultivation licenses within the
six months provided for under the APA.
¶ 20 On September 28, 2021, JERB notified the plaintiffs that it
was exercising its right to terminate the APA under section 17.
Over the course of its negotiations with the Landlord, JERB had
paid $820,867.04 into the escrow account and promptly sought
return of the funds per section 3 of the APA after it terminated the
APA. The plaintiffs refused to approve the return of the escrow
funds to JERB.
B. Procedural History
¶ 21 The plaintiffs sued JERB for breach of contract, including
alleging JERB breached its duty of good faith and fair dealing under
the APA, and asserted the equitable claims of promissory estoppel
and unjust enrichment. JERB countersued, alleging, among other
things, that the plaintiffs breached the APA by preventing the
8 return of the escrow funds to JERB1 and breached their duty of
good faith and fair dealing. The parties filed cross-motions for
summary judgment. The trial court determined that the issue of
whether JERB breached its duty of good faith and fair dealing
during negotiations of the assignment was still a disputed issue of
material fact and denied both summary judgment motions as to
that issue.
¶ 22 Of particular import to our analysis, the trial court noted the
following undisputed facts in its order: (1) during negotiations of the
APA, JERB communicated to both 51st Property and Havana its
intent to negotiate a new lease or lease extension with the Landlord
as part of the transaction contemplated by the APA; (2) on the date
the parties executed the APA, JERB emailed Havana referencing its
desire to either take over the existing lease “via assumption or
negotiate a net new lease” with the Landlord; (3) for JERB and
Havana to obtain final governmental approval for the change in
1 The trial court held an evidentiary hearing on February 16, 2022,
to narrowly decide the issue of whether JERB was entitled to the return of the escrow funds. After hearing the evidence, the trial court concluded that JERB was entitled to the return of the escrow funds and ordered that the escrow agent return the escrow funds to JERB on March 4, 2022.
9 ownership to the marijuana cultivation licenses, JERB and the
Landlord had to mutually agree on a contemplated lease extension
and 51st Property and Havana knew that these negotiations were
ongoing; and (4) the due diligence inspection report created a large
issue in JERB’s assessment of the viability of using Unit 101 as
contemplated.
¶ 23 Although the trial court ultimately concluded that the APA
unambiguously provided JERB the discretion to reject an
assignment and assumption agreement that didn’t include a lease
extension, it sent the plaintiffs’ breach of contract claim to trial to
determine whether JERB breached its duty of good faith and fair
dealing under the APA when it did just that. After a five-day jury
trial, the jury returned a verdict against the plaintiffs on their
breach of the duty of good faith and fair dealing claim and in favor
of JERB on its counterclaim, awarding JERB one dollar in nominal
damages. The plaintiffs appeal; JERB doesn’t.
II. Analysis
¶ 24 On appeal, the plaintiffs contend that the trial court erred by
(1) relying on extrinsic evidence to conclude that the APA
unambiguously gave JERB discretion to reject an assignment and
10 assumption agreement that didn’t include a lease extension;
(2) barring evidence that JERB expressly breached two provisions of
the APA — namely, sections 10(c) and 16(b) — for lack of relevance;
(3) referring to the plaintiffs’ counsel as “disingenuous” in front of
the jury; (4) advocating for JERB by offering the basis for
evidentiary objections in front of the jury; and (5) instructing the
jury that the plaintiffs’ conduct was “wrongful.” The plaintiffs
preserved issues (1) and (2) but issues (3) through (5) are
unpreserved.
¶ 25 We address, and reject, each of the plaintiffs’ contentions in
turn.
A. Whether Section 4 of the APA Unambiguously Required JERB to Assume the Lease
¶ 26 The plaintiffs first contend that the APA unambiguously
required JERB to assume the lease on Unit 101 and the trial court
therefore erred by determining that section 4 of the APA
unambiguously gave JERB the discretion to “refuse an assignment
that did not include an extension” and erroneously relied on
extrinsic evidence to do so. We agree with the plaintiffs that the
trial court erroneously concluded that the APA was unambiguous,
11 but we conclude that summary judgment was nevertheless proper
because the undisputed evidence regarding the parties’ conduct
surrounding the making of the APA and under the APA supports
the conclusion that a lease extension was part of the “form [of the
assignment and assumption agreement] to be agreed upon” by the
parties. Thus, though on different grounds, we conclude that the
trial court correctly determined that the APA required the parties’
agreement on the terms of the lease as a prerequisite to closing.
1. Standard of Review and Applicable Legal Principles for Contract Interpretation
¶ 27 “We review questions of contract interpretation de novo.”
Gagne v. Gagne, 2014 COA 127, ¶ 50. We also review questions of
law de novo, including whether a contract is ambiguous. Id.
¶ 28 “The primary goal of contract interpretation is to determine
and give effect to the intent of the parties.” Vu, Inc. v. Pac. Ocean
Marketplace, Inc., 36 P.3d 165, 167 (Colo. App. 2001). A contract is
ambiguous if it is susceptible of more than one reasonable
interpretation. Cheyenne Mountain Sch. Dist. No. 12 v. Thompson,
861 P.2d 711, 715 (Colo. 1993). Where an ambiguity exists, a court
may look at extrinsic evidence to discern the parties’ intent. Vu, 36
12 P.3d at 167; see also Pepcol Mfg. Co. v. Denver Union Corp., 687
P.2d 1310, 1314 (Colo. 1984) (“It is only where the terms of an
agreement are ambiguous or are used in some special or technical
sense not apparent from the contractual document itself that the
court may look beyond the four corners of the agreement in order to
determine the meaning intended by the parties.”).
¶ 29 A court may look to extrinsic evidence to discern the parties’
intent even when a contract contains a merger clause, so long as
the extrinsic evidence isn’t used to “demonstrate an intent that
contradicts or adds to the intent expressed in the writing.” Nelson
v. Elway, 908 P.2d 102, 107 (Colo. 1995); see also KN Energy, Inc.
v. Great W. Sugar Co., 698 P.2d 769, 777 n.9 (Colo. 1985). The
extrinsic evidence a court may consider includes local usage, the
circumstances surrounding the making of the contract, or “any
pertinent circumstances attendant upon the transaction, including
the conduct of the parties under the agreement.” Pepcol, 687 P.2d
at 1314; see KN Energy, 698 P.2d at 777.
2. Application
¶ 30 We first discuss whether section 4 of the APA unambiguously
required JERB to assume the lease on Unit 101 or whether the
13 provision is susceptible of more than one reasonable interpretation.
After concluding the phrase “in a form to be agreed upon” in
section 4 is ambiguous, we look at the undisputed evidence
regarding the parties’ conduct both surrounding the making of the
APA and under the APA to discern the parties’ intent, if we can.
a. Whether Section 4 of the APA is Ambiguous
¶ 31 On appeal, the plaintiffs argue that section 4 unambiguously
required JERB to assume the lease on Unit 101, and the trial court
therefore erroneously relied on extrinsic evidence to arrive at the
opposite conclusion. On the other hand, JERB contends on appeal
that the plain language of section 4, including the phrase “in a form
to be agreed upon,” unambiguously created a condition to closing;
namely, that the parties to the APA — the plaintiffs, JERB, and the
Landlord — had to come to a mutual agreement on the lease
assignment and assumption agreement before JERB was required
to assume the lease and marijuana cultivation licenses as
contemplated by the APA, and the trial court correctly concluded as
much.
¶ 32 We first conclude that the phrase “in a form to be agreed
upon” in section 4 of the APA is susceptible of more than one
14 reasonable interpretation. Based on our independent review, we
can reasonably arrive at either party’s interpretation of section 4
and JERB’s corresponding rights and duties under the APA. From
the four corners of the agreement, it isn’t clear whether “form”
means the structure of the agreement, as the plaintiffs contend, or
the terms of the agreement, as JERB contends.
¶ 33 Because we can’t discern the parties’ intent based on the four
corners of the agreement, we conclude that the provision is
ambiguous. Therefore, it is appropriate to look at extrinsic evidence
to discern what the parties’ meant by the directive in section 4 that
the parties “shall enter into an assignment and assumption
agreement in a form to be agreed upon” at closing and whether a
condition to closing was created by this language.
b. The Parties’ Intent Under the APA
¶ 34 We next examine the undisputed evidence of the parties’
conduct both during the making of the APA and under the APA to
discern what the parties intended this provision to mean.
¶ 35 Ordinarily, after concluding that a relevant portion of a
contract is ambiguous, we would remand to the trial court to
determine the factual question of the intended meaning of the
15 ambiguous provision, respecting the allocation of responsibilities in
a case tried to a jury. See, e.g., Sch. Dist. No. 1 v. Denver Classroom
Tchrs. Ass’n, 2019 CO 5, ¶ 14 (When a court determines that a
contract is ambiguous, “the meaning of its terms is generally an
issue of fact to be determined in the same manner as other
disputed factual issues.” (quoting Dorman v. Petrol Aspen, Inc., 914
P.2d 909, 912 (Colo. 1996))). As discussed below, however, on the
specific record presented in the context of the parties’ cross-motions
for summary judgment, we conclude (drawing all reasonable
inferences in favor of the plaintiffs) that the facts relevant to the
determination of the meaning of the contract allow only one
possible interpretation: JERB had the right to terminate the
contract because no lease containing terms and conditions to its
satisfaction (both as to form and content) was executed. Because
this is the same meaning that the trial court accorded to the
contractual provision, the fact that the trial court did so on a
different, and what we conclude to be erroneous, basis renders that
error harmless. See C.A.R. 35(c) (“The appellate court may
disregard any error or defect not affecting the substantial rights of
the parties.”); cf. Emp. Television Enters., LLC v. Barocas, 100 P.3d
16 37, 42-43 (Colo. App. 2004) (holding that a court’s erroneous failure
to consider evidence of trade usage in interpreting a contract was
harmless because doing so wouldn’t have changed the outcome of
the court’s ambiguity analysis).
¶ 36 We begin our analysis by addressing the plaintiffs’ argument
that because the APA contains a merger clause, under Nelson a
court can’t look at extrinsic evidence to discern the parties’ intent.
Contrary to the plaintiffs’ contention, Nelson doesn’t stand for the
premise that anytime an ambiguous contract contains a merger
clause a court can’t consider extrinsic evidence to discern the
parties’ intent. Rather, Nelson provides that a court can rely on
extrinsic evidence to discern the parties’ intent so long as the court
doesn’t use it to contradict or add to the intent expressed by the
writing itself. 908 P.2d at 107. Because we merely aim to discern
what the parties meant by the directive in section 4 — namely, that
agreement in a form to be agreed upon” at closing — we will look at
extrinsic evidence to ascertain the meaning the parties’ assigned to
the phrase “in a form to be agreed upon” under the APA. Pepcol,
687 P.2d at 1314.
17 ¶ 37 To discern the parties’ intent of section 4, we, like the trial
court, look at the parties’ conduct under the agreement, as well as
the circumstances surrounding the making of the APA and any
other “pertinent circumstances attendant upon the transaction.”
Pepcol, 687 P.2d at 1314; KN Energy, 698 P.2d at 777. All of this
evidence points to the interpretation urged by JERB and reached by
the trial court.
¶ 38 Based on our independent review of the undisputed evidence
before the court at summary judgment and drawing all reasonable
inferences in favor of the plaintiffs, we conclude that the parties
intended the phrase “in a form to be agreed upon” to mean that all
parties to the APA had to come to an agreement about the terms of
the assignment and assumption agreement as a precursor to
closing. In addition to the undisputed evidence the trial court relied
on during the summary judgment stage, the record also establishes
that (1) JERB intended to use Unit 101 for marijuana cultivation
and needed to substantially invest into the property to bring it into
compliance with local code; (2) JERB expressly communicated its
desire to condition the transaction on the contemplated lease
extension in its letter of intent, which was sent to Havana prior to
18 execution of the APA; (3) within days of executing the APA, JERB
reached out to the Landlord to discuss a lease term extension as
part of the assignment and assumption agreement; (4) while the
Landlord was open to granting a lease term extension to JERB, the
Landlord couldn’t agree to an assignment of the lease on Unit 101
until 51st Property came current on its rent and the Landlord
communicated this to the parties; (5) in the change of ownership
application for Unit 101’s marijuana cultivation licenses that JERB
and Havana sent to the MED, the Landlord expressed in a letter
that the lease assignment was contingent on the Landlord and
JERB coming to “mutually agreeable terms for any contemplated
extension” of the lease on Unit 101; (6) for the six months following
the execution of the APA, the Landlord and JERB negotiated a lease
extension as part of the assignment and assumption agreement;
and (7) JERB only ceased negotiations with the Landlord after the
six-month timeline for final governmental approval provided for
under section 17 of the APA had lapsed. Based on this evidence in
the record, we conclude that the lease extension was a “pertinent
circumstance[] attendant upon the transaction” contemplated by
the APA. Pepcol, 687 P.2d at 1314.
19 ¶ 39 On the other side of the balance, the plaintiffs point to one
thing favoring their urged interpretation: the plain language of
section 4 of the APA. Indeed, the plaintiffs don’t identify any
evidence in the record beyond the language of section 4 itself to
support their urged interpretation. Given that all of the evidence
before the court on summary judgment lined up against this
interpretation, the only way the plaintiffs’ urged interpretation
could have carried the day would have been if the disputed
provision unambiguously had the meaning that they urged. But for
the reasons discussed in Part II.A.2.a above, we reject the
contention that the language is unambiguous — in either side’s
favor. Thus, given the weight and undisputed nature of the
evidence in the record, we conclude that even though the meaning
of the language is ambiguous, there isn’t a triable issue regarding
the meaning of that language.
¶ 40 Having determined that the meaning of section 4 didn’t
present a triable issue, we further conclude that the court’s error in
its ambiguity determination was harmless. After all, it’s undisputed
that after JERB and the Landlord negotiated for six months, the
parties never agreed on the form of the assignment and assumption
20 agreement, which the trial court correctly found at the summary
judgment stage. That left only the remaining question of whether
JERB breached its duty of good faith and fair dealing during
negotiations when it ceased negotiations with the Landlord and
terminated the APA. This question was litigated at trial and after a
five-day trial, the jury returned a verdict in the negative.
Consequently, the trial court’s error in its ambiguity analysis was
harmless because we reach the same conclusion as the trial court
regarding the meaning of section 4 of the APA.
B. The Evidentiary Issue Preserved by Objection
¶ 41 The plaintiffs next contend that the trial court erred by barring
evidence of JERB’s alleged breach of two provisions of the APA for
lack of relevance because, the plaintiffs argue, this evidence was
probative of the material issue in dispute — namely, whether JERB
acted in bad faith during the transaction. Specifically, the plaintiffs
assert that the trial court precluded evidence showing that JERB
breached two sections of the APA: section 10(c), which barred JERB
from engaging a real estate broker, and section 16(b), which
memorialized that all parties would “take all steps reasonably
necessary to carry out the intent” of the APA. JERB argues that the
21 plaintiffs have mischaracterized the record by claiming that the trial
court excluded evidence of JERB’s alleged breach of the APA,
pointing out that the court admitted evidence at trial that JERB
engaged a real estate consultant, Atlas Realty, and further allowed
the plaintiffs to both present evidence of section 16(b) and argue
how it was relevant to JERB’s breach of its duty of good faith and
fair dealing. We agree with JERB.
¶ 42 We review a trial court’s evidentiary rulings for an abuse of
discretion. Hock v. N.Y. Life Ins. Co., 876 P.2d 1242, 1251 (Colo.
1994). A court abuses its discretion if its decision is manifestly
arbitrary, unfair, or unreasonable, or if the court misapplies the
law. Tisch v. Tisch, 2019 COA 41, ¶ 33. A trial court doesn’t abuse
its discretion when it precludes a party from presenting evidence of
a claim that isn’t included in the trial management order. Ehrlich
Feedlot, Inc. v. Oldenburg, 140 P.3d 265, 272-73 (Colo. App. 2006).
¶ 43 In the trial management order, the plaintiffs’ sole breach of
contract theory was that JERB had breached its duty of good faith
and fair dealing under the APA. During trial, each time the
plaintiffs attempted to introduce evidence of JERB’s alleged breach
of sections 10(c) and 16(b), JERB objected on relevance grounds.
22 The trial court sustained many of JERB’s objections but overruled a
few of them.
¶ 44 We conclude that the trial court didn’t abuse its discretion.
While the court sustained some of JERB’s objections to evidence
that it consulted a real estate consultant, it was in the context of
the plaintiffs attempting to introduce evidence that JERB breached
an express term of the APA by hiring a broker, which wasn’t a
litigated claim in the case.
¶ 45 Regarding evidence of JERB’s obligations under section 16(b),
again, the court merely sustained objections when the plaintiffs
attempted to introduce evidence that JERB expressly breached this
provision, which wasn’t a claim in dispute. In fact, the plaintiffs
were allowed to present other testimony regarding section 16(b) over
JERB’s objection to the relevance of this evidence.
¶ 46 Accordingly, the trial court didn’t abuse its discretion when it
sustained JERB’s objections at trial and precluded evidence of
JERB’s alleged breach of two sections of the APA for lack of
relevance because any claim of JERB’s alleged breach of these
provisions wasn’t included in the trial management order and
wasn’t an issue at trial.
23 C. 51st Property and Havana’s Unpreserved Issues
¶ 47 Finally, the plaintiffs argue that the trial court erred by
referring to the plaintiffs’ counsel as “disingenuous” in front of the
jury; “advocating” for JERB by offering the basis for evidentiary
objections in front of the jury; and instructing the jury that the
plaintiffs’ conduct was “wrongful.” The plaintiffs acknowledge that
none of these issues are preserved for our review.
¶ 48 Generally, appellate courts don’t review issues raised for the
first time on appeal. Marcellot v. Exempla, Inc., 2012 COA 200,
¶ 11. The plaintiffs nevertheless urge us to exercise our discretion
and apply plain error review. But “[s]uch discretion . . . is exercised
very rarely in civil cases, typically only where necessary to prevent
manifest injustice.” Id. This standard is a stringent one and to
warrant plain error review in a civil case, a party must demonstrate
that the error “almost surely affected the outcome of the case.”
Robinson v. City & Cnty. of Denver, 30 P.3d 677, 685 (Colo. App.
2000) (quoting Champagne v. United States, 40 F.3d 946, 947 (8th
Cir. 1994)).
¶ 49 Here, the plaintiffs don’t demonstrate that any of these alleged
errors “almost surely affected the outcome of the case.” Id. (quoting
24 Champagne, 40 F.3d at 947). Rather, the plaintiffs merely make
conclusory assertions, without citing any record support, that they
suffered prejudice as a result of the court’s “disingenuous” remark;
they were “deprived of a fundamentally fair trial” as a result of the
court’s alleged “advocacy” for JERB; and “no reasonable jury could
find in favor of [the plaintiffs] when instructed . . . that their
conduct was ‘wrongful.’” None of these contentions merit review for
plain error.
¶ 50 Accordingly, we decline to address the plaintiffs’ issues raised
for the first time on appeal.
III. Disposition
¶ 51 For the reasons discussed above, we affirm the judgment of
JUDGE SCHOCK and JUDGE BERGER concur.