24CA2004 Holder v Cisneros Mosqueda 04-02-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA2004 Adams County District Court No. 23CV30170 Honorable Sarah E. Stout, Judge
William F. Holder,
Plaintiff-Appellee,
v.
Oscar A. Cisneros Mosqueda,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE SCHOCK Grove and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 2, 2026
Anderson Hemmat, L.L.C., Chad P. Hemmat, Cameron O. Hunter, Greenwood Village, Colorado, for Plaintiff-Appellee
Baker & Hostetler LLP, Sammantha J. Tillotson, Denver, Colorado; Baker & Hostetler LLP, G. Karl Fanter, Cleveland, Ohio, for Defendant-Appellant ¶1 Defendant, Oscar A. Cisneros Mosqueda, appeals the
judgment in favor of plaintiff, William F. Holder, on Holder’s
negligence claim. He contends that the district court erred by
denying his motion to enforce a settlement agreement. We affirm.
I. Background
¶2 This case arises out of a car accident between Cisneros
Mosqueda and Holder for which Cisneros Mosqueda was at fault.
A. Settlement Communications
¶3 In December 2022, Holder’s attorney, Kylan J. King of the
Bendinelli Law Firm (Bendinelli), made a demand upon Cisneros
Mosqueda’s insurer, Fred Loya Insurance (FLI), for payment of
Cisneros Mosqueda’s policy limit. FLI agreed to pay the policy limit
of $25,000 in exchange for a release of liability.
¶4 On January 5, 2023, Holder executed a release of his claims
against Cisneros Mosqueda and FLI. The release provided:
That [Holder] . . . for sole consideration of Twenty Five Thousand Dollars . . . to be paid to [Holder] do/does hereby . . . release, acquit and forever discharge [Cisneros Mosqueda and FLI] . . . of and from any and all claims, actions, causes of action, demands, liens known and unknown . . . resulting or to result from the accident . . . .
1 ¶5 The next day, King sent FLI the executed release and stated
that Holder accepted FLI’s offer of $25,000 “to resolve this matter.”
King explained that Holder was “in desperate need of this
settlement” and asked if FLI could “expedite” the payment.
¶6 Days after receiving the executed release, FLI learned that
Holder was subject to a medical lien. On January 24, FLI told King
that it would need a lien agreement or a lien release before it could
finalize payment. According to an FLI claims adjuster, King agreed
to “get the [lien] resolved” and told the claims adjuster how to
“divide the checks up” between Holder and the lienholder.
¶7 Having still not received payment three weeks after signing the
release, Holder retained a new attorney, Chad Hemmat from the law
firm of Anderson Hemmat. On January 27, Hemmat sent FLI a
letter explaining that he had “been asked to intervene as counsel”
for Holder. He asserted that the settlement agreement “says
nothing about any holdback of proceeds for liens” and that FLI had
breached the agreement by “refusing to issue any portion of the
check until the health insurance lien is resolved.” Then, after
noting that the lien was for $1,745.07, the letter concluded:
2 To avoid me declaring a breach of the settlement agreement and then suing your insured where limits settlement will never be discussed again, we demand you tender the balance of the settlement proceeds minus the [medical] lien to be issued payable to William Holder and the Bendinelli Law Firm ONLY with written confirmation to me that this check has been tendered on or before end of business one week from today. If we have no assurance that the check has been tendered by then, consider the agreement in breach and your insured will be sued without any further warning or discussion.
¶8 On February 3 — the deadline for payment set by the demand
letter — FLI prepared two checks: one to Bendinelli and Holder for
$23,254.93, and one to the lienholder for $1,745.07.1 The mailing
address on the check to Bendinelli and Holder was incorrect,
mistakenly showing the state as Texas rather than Colorado. FLI
also sent a letter dated February 3 to Bendinelli — again with the
erroneous Texas address — confirming that FLI had issued the two
checks and mailed them to Bendinelli at the Texas address.
¶9 The record is not clear as to when FLI sent the checks, which
were never cashed. Holder’s wife attested that an FLI representative
1 More precisely, the check to Bendinelli and Holder was dated
February 3, and the check for the lien was dated February 2.
3 told her on February 8 that the checks had not yet been sent. That
same day, King instructed FLI by email to “void both checks sent to”
Bendinelli. And months later, during this litigation, King told FLI
that Bendinelli never received the checks. But months after that,
Bendinelli found the check to Holder in its files, with a date stamp
of February 10, and provided a copy to Anderson Hemmat.
¶ 10 Either way, Hemmat did not receive notice by February 3 that
the checks were sent (and did not learn of the checks’ existence
until months into this lawsuit). He therefore filed a complaint on
Holder’s behalf shortly after the close of business that day, suing
Cisneros Mosqueda for negligence.
B. Motion to Enforce Settlement
¶ 11 Cisneros Mosqueda filed a motion to enforce the settlement
and dismiss the case. He argued that the parties had entered into a
valid settlement agreement on January 6, 2023, when Holder
returned the signed release, and that FLI had fulfilled its obligations
under that agreement by sending the checks to Bendinelli. Though
acknowledging the error in the mailing address, Cisneros Mosqueda
asserted that the checks “should have reached the correct address.”
4 ¶ 12 In response, Holder argued that (1) there was no meeting of
the minds regarding the resolution of liens; (2) if there was a valid
settlement agreement, FLI materially breached it by refusing to
make payment until the lien issue was resolved; and (3) Hemmat’s
January 27 letter was a renewed settlement offer that FLI did not
properly accept because it did not provide written confirmation to
Hemmat and could not show the checks were ever delivered.
¶ 13 Cisneros Mosqueda replied that the parties “expected” that the
amount Holder would actually receive would be “$25,000 minus the
amount necessary to satisfy the lien.” He therefore asked the court
to “supply[] a term to the settlement agreement that allows FLI to
pay from the settlement proceeds the amount necessary to satisfy
the medical lien directly to the lien holder, then pay the balance to”
Holder. Alternatively, he argued that he accepted Holder’s
counteroffer by issuing the checks on February 3 and mailing them
to Bendinelli — albeit, with a “clerical error” in the address.
¶ 14 After an evidentiary hearing, the district court denied the
motion to enforce the settlement. It first found that the initial
release was a valid settlement agreement that required FLI to pay
Holder $25,000 in exchange for release of Holder’s claims, with no
5 withholding of such funds for payment of the lien. The court found
that FLI materially breached that agreement by failing to pay Holder
$25,000, thus allowing Holder to terminate the agreement.
¶ 15 As to the January 27 letter, the court found that it was a new
offer of settlement with two conditions: (1) issuance of the checks to
Bendinelli; and (2) written confirmation to Hemmat. Because FLI
did not provide timely written confirmation to Hemmat, the court
concluded that there was no acceptance and, thus, no contract.
¶ 16 The case proceeded to a jury trial. The jury found Cisneros
Mosqueda liable and awarded Holder $450,000 in damages.
II. Analysis
¶ 17 In arguing that the district court erred by denying his motion
to enforce the settlement agreement, Cisneros Mosqueda identifies
three potential sources of that agreement: (1) the January 5 signed
release; (2) King’s subsequent agreement to have the lien paid out of
the settlement proceeds; and (3) Hemmat’s January 27 letter. We
conclude that Cisneros Mosqueda failed to carry his burden of
showing that any of these gave rise to an enforceable contract that
barred Holder from suing.
6 A. Applicable Law and Standard of Review
¶ 18 Colorado public policy favors the settlement of disputes. Colo.
Ins. Guar. Ass’n v. Harris, 827 P.2d 1139, 1142 (Colo. 1992). But a
settlement agreement is just a contract, and it must be construed
and enforced like any other contract. Resol. Tr. Corp. v. Avon Ctr.
Holdings, Inc., 832 P.2d 1073, 1075 (Colo. App. 1992). A contract is
formed “when one party makes an offer and the other accepts it,
and the agreement is supported by consideration.” Sumerel v.
Goodyear Tire & Rubber Co., 232 P.3d 128, 133 (Colo. App. 2009).
¶ 19 The party seeking to enforce a contract bears the burden of
proving its existence. Tuscany Custom Homes, LLC v. Westover,
2020 COA 178, ¶ 52. To satisfy the burden, the party must show
by a preponderance of the evidence that the parties agreed to all
material terms and that the terms are sufficiently definite. Id.
¶ 20 When one party to a contract materially breaches the contract,
the other party is excused from its obligations. Gravina Siding &
Windows Co. v. Gravina, 2022 COA 50, ¶ 12. A material breach is
one that “‘goes to the root of the matter or essence of the contract’
and renders substantial performance under the contract
impossible.” Interbank Invs., L.L.C. v. Vail Valley Consol. Water
7 Dist., 12 P.3d 1224, 1229 (Colo. App. 2000) (citations omitted).
Moreover, a party who anticipatorily breaches or repudiates a
contract cannot later enforce it. Technics, LLC v. Acoustic Mktg.
Rsch. Inc., 179 P.3d 123, 126 (Colo. App. 2007), aff’d, 198 P.3d 96
(Colo. 2008). Anticipatory repudiation occurs when a party
“manifests a definite and unequivocal intent” not to perform as the
contract requires. Id.
¶ 21 When an enforceable settlement agreement exists, a court may
enforce the agreement and dismiss the case. See Yaekle v.
Andrews, 195 P.3d 1101, 1111 (Colo. 2008). Whether a contract
exists, whether it was breached, and whether a breach was material
are all questions of fact that we review for clear error. Id.; Ute Water
Conservancy Dist. v. Fontanari, 2022 COA 125M, ¶ 35; Coors v. Sec.
Life of Denv. Ins. Co., 112 P.3d 59, 64 (Colo. 2005). We therefore
are bound by the district court’s factual findings on these issues so
long as they have record support. Yaekle, 195 P.3d at 1111. The
interpretation of a contract is a legal issue that we review de novo.
Fed. Deposit Ins. Corp. v. Fisher, 2013 CO 5, ¶ 9.
8 B. January 5 Release
¶ 22 The parties agree on appeal that the release that Holder signed
on January 5 and sent to FLI on January 6 was an enforceable
settlement agreement. But we agree with Holder that the district
court did not clearly err by finding that FLI materially breached that
agreement by refusing to pay Holder $25,000 and conditioning its
payment of any settlement funds on resolution of the lien issue.
¶ 23 The release unambiguously required FLI to pay $25,000 to
Holder. The district court found, with record support, that FLI did
not do so. Instead, FLI refused to make any payment until Holder
had taken care of the lien — either through a lien agreement or a
lien release — and, at best, only ever agreed to pay Holder $25,000
minus the amount of the lien. As the district court concluded, the
release included no such condition to payment.2 Thus, because
payment of $25,000 to Holder was the essence of the contract —
2 Cisneros Mosqueda contends that the district court erred by
concluding that FLI would not have been liable for the lien if it had paid Holder the full settlement amount. See Strunk v. Goldberg, 258 P.3d 334, 338 (Colo. App. 2011). But as Cisneros Mosqueda acknowledges in his reply brief, that point is immaterial because, even if true, it would not change the terms of the agreement between FLI and Holder. FLI does not argue that its potential liability to a third party excused its performance of that agreement.
9 indeed, the only benefit Holder was owed — FLI’s failure to make
that payment was a material breach that released Holder from his
obligation not to sue. See Gravina Siding & Windows, ¶¶ 12-13.
¶ 24 Cisneros Mosqueda characterizes FLI’s communication about
the lien as nothing more than an “inquiry” or an “offer to modify”
the release, which he argues was not a breach. But the record
supports the district court’s finding that FLI did more than inquire.
In particular, FLI’s own claim notes indicate that FLI twice told
Holder’s attorney that it would need a lien agreement or a lien
release before it would issue payment. FLI’s claims adjuster
similarly testified at the evidentiary hearing that he told Holder’s
attorney he “need[ed] [the lien] addressed before [he could] process
the funds.” This evidence supports the district court’s finding that
FLI “demanded” — not suggested — “a separate lien release or
agreement before releasing the funds.” Because the parties’
agreement did not allow FLI to withhold funds on that basis, such a
demand was less an “inquiry” than an expression of “unequivocal
intent that [FLI] [would] not perform as required by the contract.”
Technics, 179 P.3d at 126; cf. Scott v. Crown, 765 P.2d 1043, 1047
10 (Colo. App. 1988) (holding that a demand for “performance beyond
that required by the contract[]” was an anticipatory repudiation).
¶ 25 But we need not decide whether FLI anticipatorily repudiated
the contract (and neither did the district court) because, as the
district court found, FLI never paid $25,000 to Holder. Certainly, it
did not do so in the weeks after Holder signed the release, despite
knowing he was “in desperate need” of the payment. See Gravina
Siding & Windows, ¶ 20 (“[I]f a contract contains no explicit
provision concerning the time for a party’s performance of
obligations, the party must perform within a ‘reasonable time’ as
determined by the circumstances of the case.” (citation omitted)).
And when FLI eventually did send a check to Holder, it was for just
$23,254.93. The district court correctly found that FLI’s failure to
pay Holder $25,000, as the release required, was a material breach
that excused Holder from his obligations under that release.
C. Lien Communication Between FLI and King
¶ 26 Cisneros Mosqueda next contends that the parties reached a
second settlement agreement when King agreed FLI could pay the
lien out of the settlement. He points to the claims adjuster’s
testimony and notes indicating that King agreed to “get [the lien]
11 resolved” and told FLI how to “divide the checks.” We agree with
Holder that Cisneros Mosqueda did not preserve this argument.
¶ 27 In Cisneros Mosqueda’s motion to enforce the settlement, he
argued that the parties’ settlement agreement was the written
release and, alternatively, that FLI accepted the counteroffer in
Hemmat’s January 27 letter. Although he asserted at the hearing
that FLI and King “agreed to send a final lien amount . . . and a
release from that lien so that the lien could be paid out of the
settlement proceeds,” he never suggested that this discussion gave
rise to a separate agreement. Instead, though he did not explicitly
address the legal significance of the exchange, his argument implied
that it was part of FLI’s performance of the original agreement.
¶ 28 Cisneros Mosqueda’s failure to argue in the district court that
the communications between King and FLI formed a “second
settlement agreement” matters here. Although a party need not use
“talismanic language” to preserve an argument for appeal, the party
must give the district court “an adequate opportunity to make
findings of fact and conclusions of law on any issue before we will
review it.” People v. Melendez, 102 P.3d 315, 322 (Colo. 2004).
Cisneros Mosqueda’s passing reference to King’s agreement to
12 resolve the lien did not afford the district court that opportunity.
Without any argument that a second agreement was formed, the
district court had no reason to make factual findings as to the
existence of such an agreement.3 Nor did it have any reason to
address the legal arguments the parties make on appeal regarding
whether that purported agreement had adequate consideration.
¶ 29 Moreover, the record on this issue is scant — likely because
Cisneros Mosqueda did not frame it in this manner in the district
court. The entirety of the evidence Cisneros Mosqueda cites on this
point is that (1) King “told [the claims adjuster] how much to pay
and divide the checks up”; (2) King “agreed to get [the lien] resolved”
and (3) the claims adjuster “informed [King] [FLI] would need a lien
agreement or a lien release in order to finalize payment” and “King
“agreed and said [he] would get back to [him].”4 Given the limited
3 Cisneros Mosqueda cites the district court’s statement that the
claims adjuster “acknowledged that [Bendinelli] agreed to pay the . . . lien from settlement proceeds.” But the court was summarizing the claims adjuster’s testimony, not making a factual finding, much less a finding that an enforceable agreement was formed.
4 Notably, “divid[ing] the checks up” — i.e., FLI paying the lien —
and “get[ting] the lien resolved” — i.e., Holder discharging the lien — appear to be two different options for addressing the lien.
13 focus on this issue at the hearing, we cannot fault the district court
for failing to sua sponte consider whether a second agreement was
formed. And without a factual finding, we have nothing to review.
¶ 30 Thus, we conclude that Cisneros Mosqueda failed to preserve
his argument that the communications between King and FLI gave
rise to a second enforceable agreement. We therefore decline to
further address the issue. See Gestner v. Gestner, 2024 COA 55,
¶ 18 (“In civil cases, issues not raised in or decided by the district
court generally will not be addressed for the first time on appeal.”).
D. January 27 Letter
¶ 31 Cisneros Mosqueda’s final theory is that Hemmat’s January 27
letter was a new settlement offer that FLI accepted by sending
payment and providing written notice to Bendinelli. Alternatively,
he argues that the letter was an offer for a unilateral contract that
FLI accepted by its substantial performance. We disagree.
¶ 32 If an offeror “prescribes a particular time, place, or other
condition of acceptance, then the offer can be accepted only in the
manner prescribed.” Extreme Constr. Co. v. RCG Glenwood, LLC,
2012 COA 220, ¶ 44. When, as in this case, the offeror requests “a
return performance rather than a promise to perform,” the offer is
14 one for a unilateral contract. Scoular Co. v. Denney, 151 P.3d 615,
619 (Colo. App. 2006). Such an offer is accepted “when substantial
performance has been rendered by the offeree.” Stortroen v.
Beneficial Fin. Co. of Colo., 736 P.2d 391, 399 (Colo. 1987).
¶ 33 There is no dispute that FLI did not accept the January 27
offer “in the manner prescribed” by Hemmat. Extreme Constr., ¶ 44.
The letter stated that FLI could accept the new offer only by
tendering payment to Holder and Bendinelli and providing written
confirmation to Hemmat on or before February 3 that the check had
been tendered. Setting aside the lack of clarity in the record as to
when the payment was made, FLI did not present evidence at the
hearing that it notified anyone — much less Hemmat — before the
February 3 deadline that the checks had been tendered.
¶ 34 Citing general agency law, Cisneros Mosqueda asserts that
FLI’s notice to Bendinelli was enough. See Strong Bros. Enters., Inc.
v. Est. of Strong, 666 P.2d 1109, 1112 (Colo. App. 1983) (“[N]otice to
an agent is constructive notice to the principal.”). But we need not
decide this point because Cisneros Mosqueda failed to present any
evidence that FLI provided timely notice to Bendinelli either.
15 ¶ 35 As the party seeking to enforce the settlement agreement,
Cisneros Mosqueda bore the burden of proving its existence.
Tuscany Custom Homes, ¶ 52. But the only evidence that he
presented on that point was a letter — dated February 3 and
erroneously addressed to Texas — that the claims adjuster testified
had been “sent.” The claims adjuster did not explain how the letter
was sent, and Cisneros Mosqueda did not otherwise present
evidence demonstrating that the letter was received, or even
delivered, on February 3 (or ever). And while Cisneros Mosqueda
refers to this letter in his opening brief as a “fax,” he does not cite
anything in the record indicating that the letter was in fact faxed.
¶ 36 Whether or not it was material who the notice was sent to,
Hemmat’s January 27 letter made clear that notice by February 3
was material. That letter explained that Holder was preparing to
sue Cisneros Mosqueda and would do so “without any further
warning” if he did not have “assurance that the check ha[d] been
tendered” by February 3. In other words, simply placing the check
in the mail was not enough. Holder needed timely notice that FLI
had done so; that was the only way to forestall suit. Because
Cisneros Mosqueda failed to present any evidence that Holder
16 actually received such notice — through anyone — he failed to meet
his burden of proving that he accepted the January 27 offer. See
Suss Pontiac-GMC, Inc. v. Boddicker, 208 P.3d 269, 271 (Colo. App.
2008) (“[C]ourts generally disallow alternative delivery methods that
fail to resolve questions about timeliness and actual receipt.”).
¶ 37 We also reject Cisneros Mosqueda’s argument that FLI
accepted the January 27 offer by substantial performance, despite
failing to comply with its express terms of acceptance. Initially, it is
not clear when the payment was sent, and the record appears to
indicate that it was not received until February 10 — a week after
Hemmat’s deadline for “tender[ing]” payment. See Werne v. Brown,
955 P.2d 1053, 1055 (Colo. App. 1998) (“Generally, payment by
mail is not effective until receipt . . . .”). Although the check was
dated February 3, Holder’s wife attested that an FLI representative
told her on February 8 that it had not yet been sent. And whenever
the check was sent, it was mailed to an erroneous address. See id.
(“If payment by mail is directed or authorized . . . , the time of
delivery is the time that the payment, properly addressed with
postage prepaid, is put in the mail.” (emphasis added)). Given the
17 offer’s emphasis on timing, simply placing a check in the mail to
somewhere at some point would not be substantial performance.
¶ 38 But even if FLI mailed the check to Holder (via Bendinelli) on
February 3, that alone would not be substantial performance if FLI
did not provide timely notice that it had done so. For the reasons
above, the circumstances establish that timely notice was a
material term of the offer — particularly if the check was simply
going to be placed in the mail on the day the offer expired. In short,
FLI could not accept Holder’s offer not to file suit as of February 3
unless it notified Holder by that date that it was doing so.
¶ 39 Thus, because FLI did not accept the January 27 offer in the
manner prescribed and did not prove that it otherwise gave notice
by February 3 that it accepted the offer, the January 27 letter did
not give rise to an enforceable settlement agreement.
III. Disposition
¶ 40 The judgment is affirmed.
JUDGE GROVE and JUDGE YUN concur.