24CA2120 Hooks v Myers 10-30-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA2120 Bent County District Court No. 23CV30012 Honorable Samuel Scott Vigil, Judge
Anthony Hooks III and Leigh Ann Hooks,
Plaintiffs-Appellees,
v.
Everett M. Myers,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE HAWTHORNE* Fox and Meirink, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 30, 2025
Randa Davis-Tice, Lamar, Colorado, for Plaintiffs-Appellees
Everett M. Myers, Pro Se
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Defendant, Everett M. Myers, appeals the district court’s
judgment partially in his favor and partially in favor of plaintiffs,
Anthony Hooks III and Leigh Ann Hooks (the Hookses). We affirm.
I. Background
¶2 In 2017, Myers and the Hookses entered into a “Contract for
the Sale of Real and Personal Property.” The real and personal
property consisted of a furnished house and approximately 165
acres of land in Bent County, Colorado. Under the contract, the
Hookses agreed to pay a down payment of $5,000 and $1,000 a
month for a total of $200,000. The Hookses were also responsible
for the annual cost of insurance, irrigation water, and taxes. The
contract specified that Myers would “maintain insurance coverage
on the house” but the Hookses “may use an insurance company of
[their] own choosing as long as the coverage remains the same (full
replacement costs) and said policy is in the name of [Myers].” The
contract stated that the home “was fully furnished and [the
Hookses] may have full use of any and all personal items,” but “[i]f
[the Hookses] do not wish to use these items they need to inform
[Myers] so that he (Seller) may dispose of these items.” The contract
also contained a clause stating that, “[i]n case of destruction of over
1 [fifty percent] of the house, insurance proceeds will go to [Myers] for
liquidation of amount owed on this contract for sale” (the
destruction clause).
¶3 The contract provided that, if the Hookses performed all the
covenants and made all payments, Myers would convey the
property to them, in fee simple, by warranty deed.
¶4 In 2022, a fire damaged the property, and the Hookses
submitted an insurance claim. It is undisputed that the Hookses
had obtained an insurance policy listing themselves as the policy
holders and Myers as the first mortgagee. In February 2023, the
insurance company agreed to pay a cash value settlement of
$136,901.74 to the Hookses, but Myers asserted that he was
entitled to the full amount of the insurance proceeds. Because of
the dispute, the insurance proceeds were not released to either
party.
¶5 In December 2023, the Hookses filed a complaint requesting a
declaratory judgment as to the rights and duties under the contract
and regarding the insurance proceeds. The Hookses asked the
district court to determine that Myers was only entitled to a portion
of the insurance proceeds to cover the remaining amount owed on
2 the contract, approximately $103,000 at the time the suit was filed.
The Hookses also asked that the court order Myers to convey the
property to them once full payment was made.1
¶6 Myers counterclaimed, alleging breach of contract and bad
faith, and requested liquidated and exemplary damages. He
asserted that the Hookses breached the contract by failing to (1) list
him as the insured on the insurance policy and (2) notify him
regarding his personal property. Myers also argued that the parties
should be released from the contract, that he was entitled to all of
the insurance proceeds under the destruction clause, and that he
was entitled to $50,000 in damages based on the breach related to
his personal property.
¶7 After a bench trial and written closing arguments, the court
determined that (1) the destruction clause unambiguously entitled
Myers to the remaining amount owed on the contract, not the full
amount of insurance proceeds; (2) the clause was triggered because
over fifty percent of the house was destroyed and the Hookses were
1 It was undisputed that the Hookses had made all required
monthly payments and were continuing to make monthly payments while the suit was ongoing.
3 required to pay Myers the “amount currently remaining due on the
installment land contract”; (3) the Hookses breached the contract
by failing to designate Myers as the insured on the policy, but he
was only entitled to nominal damages; and (4) the Hookses
breached the contract by failing to notify Myers that they did not
want some of his personal property, but Myers was only entitled to
nominal damages.2 Lastly, the court ordered that any other claims
or counterclaims that were not addressed were considered
abandoned.
II. Standard of Review
¶8 The interpretation of a contract, and whether there is a
breach, is a legal question that we review de novo. French v.
Centura Health Corp., 2022 CO 20, ¶ 24.
¶9 We construe pro se appellate briefs broadly, focusing on their
substance rather than their form. See Jones v. Williams, 2019 CO
2 The district court also concluded that (1) the Hookses were not
entitled to interest on the insurance proceeds; (2) Myers was not entitled to exemplary damages; and (3) there was no prevailing party. It ordered each party to bear their own attorney fees and costs. Because neither party raises an argument on appeal regarding these rulings, we consider them abandoned. See Armed Forces Bank, N.A. v. Hicks, 2014 COA 74, ¶ 38 (arguments raised in the trial court and not pursued on appeal are deemed abandoned).
4 61, ¶ 5. But it is not our role to rewrite a pro se appellant’s briefs
or to act as their advocate. Johnson v. McGrath, 2024 COA 5, ¶ 10.
III. Analysis
¶ 10 As best we can discern, Myers contends that the district court
erred by (1) concluding that the destruction clause was
unambiguous or, alternatively, by interpreting an unambiguous
contract contrary to the parties’ mutual understanding and creating
ambiguity; (2) concluding that the Hookses did not materially
breach the contract; (3) labelling the contract as a “land installment
contract”; (4) treating his unjust enrichment claim as abandoned;
(5) allowing the Hookses to raise a new argument after trial; and
(6) treating him unequally from the Hookses. We perceive no error.
A. Ambiguity
¶ 11 Myers contends that the district court erred by concluding
that the contract’s destruction clause was unambiguous or,
alternatively, that the court’s interpretation conflicted with the
parties’ mutual understanding and created ambiguity. We are not
persuaded.
5 1. The Contract Is Not Ambiguous
¶ 12 Myers contends that the contract is ambiguous (1) based
on the district court’s order denying his motion for summary
judgment and (2) because the destruction clause language is
subject to multiple interpretations. We disagree.
a. Denial of Summary Judgment
¶ 13 The denial of a motion for summary judgment is not
reviewable on appeal as it is not a final order. CadleRock Joint
Venture LP v. Esperanza Architecture & Consulting, Inc., 2021 COA
119, ¶ 28. To preserve an issue raised in a denied motion for
summary judgment, a party must raise the issue in a motion
addressed to the verdict, such as a motion for directed verdict or
judgment notwithstanding the verdict. See Feiger, Collison &
Killmer v. Jones, 926 P.2d 1244, 1249 (Colo. 1996).
¶ 14 Because Myers failed to provide the trial transcript on appeal,
we are unable to discern whether he re-raised any of the arguments
he asserted in his denied motion for summary judgment. See
C.A.R. 10(d)(3) (Appellants “must include in the record transcripts
of all proceedings necessary for considering and deciding the issues
on appeal.”). So we decline to address his challenge to the court’s
6 order denying his summary judgment motion. Castillo v.
Koppes-Conway, 148 P.3d 289, 291-92 (Colo. App. 2006) (declining
to review trial court’s order due to appellant’s failure to comply with
appellate rules).
b. Ambiguity
¶ 15 Myers next contends that the district court erroneously
concluded that the destruction clause was unambiguous because
(1) the term “liquidated” has multiple definitions and (2) the clause
does not contain limiting language. He argues that, because the
clause is ambiguous, extrinsic evidence should be considered. We
are not persuaded.
¶ 16 Our primary goal in interpreting a contract is to give effect to
the parties’ intent, which is discerned primarily from the contract’s
language. French, ¶ 25. We first determine if the contract terms
are ambiguous by examining the contract’s language and affording
the words their plain and ordinary meaning. Id. The language’s
plain meaning is “examined and construed in harmony” with
reference to all parts of the contract. Cheyenne Mountain Sch. Dist.
No. 12 v. Thompson, 861 P.2d 711, 715 (Colo. 1993). If the written
contract is unambiguous, we enforce it as written. French, ¶ 25. If
7 the contract is ambiguous — that is, if the words are susceptible of
more than one reasonable interpretation — extrinsic evidence is
admissible to establish the parties’ intent. Id. However, extrinsic
expressions of intent cannot contradict the plain language or justify
a different interpretation. Fort Lyon Canal Co. v. High Plains A & M,
LLC, 167 P.3d 726, 729 (Colo. 2007).
¶ 17 The destruction clause states, “In case of destruction of over
[fifty percent] of the house, insurance proceeds will go to [Myers] for
liquidation of amount owed on this contract for sale.” The court
examined the plain and ordinary meanings of the word “liquidation”
and concluded that it referred to “liquidation of the debt on the
contract,” which was limited to the remaining amount owed on the
contract. The court also determined that the clause did not state
“all insurance proceeds are to go to the seller,” and it found that
“[l]iquidation of the debt necessarily means payment of the
remaining amount owed, not payment of the entirety of the
insurance proceeds.” The court concluded that the contract was
not ambiguous and, upon full payment, Myers was required to
convey title to the Hookses.
8 ¶ 18 Although we are not bound by the court’s interpretation, see
Ad Two, Inc. v. City & County of Denver, 9 P.3d 373, 376 (Colo.
2000), we agree with its conclusion. “Liquidation” is defined as
“[t]he act of determining by agreement or by litigation the exact
amount of something (as a debt or damages) that before was
uncertain”; “[t]he act of settling a debt by payment or other
satisfaction”; or “[t]he act or process of converting assets into cash,
esp. to settle debts.” Black’s Law Dictionary 1114 (12th ed. 2024).
And the destruction clause explicitly states that the insurance
proceeds “go to” the “amount owed on this contract for sale.” Thus,
we agree with the district court and conclude that the contract’s
plain language states that Myers is only entitled to the portion of
the insurance proceeds required to pay any remaining balance owed
on the contract.
¶ 19 But Myers asserts that “liquidated” has multiple dictionary
definitions, so it must be ambiguous. True, “liquidated” has more
than one definition, but merely having multiple dictionary
definitions does not make a word ambiguous. Ybarra v. Greenberg
& Sada, P.C., 2016 COA 116, ¶ 16 (“The fact that an undefined
word in a statute has more than one dictionary definition does not
9 necessarily render either the word or the statute ambiguous.”),
aff’d, 2018 CO 81. In the context of the contract, see id. at ¶ 22,
the only reasonable interpretation of the destruction clause is that
“liquidation” refers to the act of settling the debt, which consists of
the amount owed on the contract.
¶ 20 We are not persuaded otherwise by Myers’ argument that the
parties’ intent cannot be discerned from the written contract absent
specific language stating the clause was for “debt reduction only.”
Myers cites Union Rural Electric Ass’n v. Public Utilities Commission,
661 P.2d 247, 252 (Colo. 1983), and McCoy v. People, 2019 CO 44,
¶¶ 43-49, to support his argument. Neither case is applicable. In
Union Rural Electric Ass’n, 661 P.2d at 251, the court did not
address the absence of limiting language and instead discerned the
parties’ intent from the contract’s language. And in McCoy, ¶ 44,
the court examined an ambiguous criminal statute and legislative
intent. Because Myers failed to develop his argument, we decline to
address it further. See S. Colo. Orthopaedic Clinic Sports Med. &
Arthritis Surgeons, P.C. v. Weinstein, 2014 COA 171, ¶ 35 (declining
to address conclusory argument presented without authority);
Barnett v. Elite Props. of Am., Inc., 252 P.3d 14, 19 (Colo. App. 2010)
10 (Appellate courts “will not consider a bald legal proposition
presented without argument or development.”).
¶ 21 Because the destruction clause is not ambiguous, we
necessarily reject Myers’ argument that we should look to extrinsic
evidence to interpret the contract. See Cheyenne, 861 P.2d at 715
(“Only after a contract is deemed ambiguous may the trial court use
extrinsic evidence to assist it in ascertaining the intent of the
parties.”).
2. District Court Did Not Create Ambiguity
¶ 22 Myers contends that the contract language is unambiguous
and the parties understood the destruction clause as a liquated
damages clause entitling him to all of the insurance proceeds. He
argues that the district court’s interpretation conflicted with that
mutual understanding and created ambiguity. We are not
persuaded for two reasons.
¶ 23 First, Myers does not explain how the destruction clause
constitutes a liquidated damages provision. A liquidated damages
provision identifies a stipulated amount of damages to be paid in
the event of a breach. See Black’s Law Dictionary 490 (12th ed.
2024) (defining “liquidated damages” as “[a]n amount contractually
11 stipulated as a reasonable estimation of actual damages to be
recovered by one party if the other party breaches”); Ravenstar, LLC
v. One Ski Hill Place, LLC, 2017 CO 83, ¶ 10 (explaining that a
liquidated damages provision has three elements: (1) the parties’
intention to liquidate damages; (2) the amount of liquidated
damages is a reasonable estimate of actual damages resulting from
a breach; and (3) actual damages resulting from a breach were
difficult to determine as of the date of the contract). The
destruction clause does not mention a breach, nor does it identify a
stipulated amount to estimate reasonable damages in the event of a
breach. The destruction clause is not a liquidated damages
provision. See Ravenstar, ¶ 10. So, to the extent that Myers
contends that he is entitled to “liquidated damages,” we reject that
argument.3
¶ 24 Second, as discussed, the contract plainly entitles Myers to
the remaining amount owed on the contract — not to all the
3 Myers also asserts that the district court erroneously awarded him
“actual damages” by ordering payment of the remaining amount owed on the contract. However, the court’s order does not award him damages; it orders that the Hookses pay the amount owed under the destruction clause.
12 insurance proceeds. To the extent that the parties’ past treatment
of the clause suggests otherwise, we do not consider extrinsic
expressions of intent. See Fort Lyon Canal, 167 P.3d at 729
(“[E]xtrinsic evidence of intent can never contradict or change the
language of a contract or justify an interpretation not reasonably
derivable from the contract itself.”). So we perceive no error with
the court’s interpretation. See French, ¶ 24.
B. The Hookses’ Breaches
¶ 25 Myers contends that the district court’s conclusion that the
Hookses’ breaches were not material is unsupported by the record.4
We disagree.
¶ 26 “Whether there has been a material breach of contract turns
upon the importance or seriousness of the breach and the
likelihood that the injured party nonetheless received, or will
receive, substantial performance under the contract.” Interbank
4 To the extent that Myers attempts to raise a claim for conversion,
he does not develop that argument so we decline to address it. See S. Colo. Orthopaedic Clinic Sports Med. & Arthritis Surgeons, P.C. v. Weinstein, 2014 COA 171, ¶ 35 (declining to address conclusory argument presented without authority); Barnett v. Elite Props. of Am., Inc., 252 P.3d 14, 19 (Colo. App. 2010) (Appellate courts “will not consider a bald legal proposition presented without argument or development.”).
13 Invs., L.L.C. v. Vail Valley Consol. Water Dist., 12 P.3d 1224, 1228
(Colo. App. 2000). A material breach renders substantial
performance impossible. Id. at 1229. Whether a party materially
breached a contract is a factual question that we will only disturb if
it is clearly erroneous and unsupported by the record. Id.
¶ 27 The district court determined that the Hookses had breached
the contract by failing to designate Myers as the named insured on
the insurance policy. But the court found that the insurance
payout was more than what was owed on the contract. Because
Myers was only entitled to the amount owed on the contract, his
inability to participate in the insurance payout negotiations was
irrelevant and the breach did not cause him any damages. The
court similarly concluded that the Hookses breached the contract
by failing to notify Myers that they did not want his personal
property before destroying it, but Myers was only entitled to the
value of the property that was destroyed, and he failed to prove
actual damages at trial. Thus, the court awarded nominal damages
of one dollar for each breach. The court also rejected Myers’
assertion that the parties should be released from the contract
14 because “the breaches [were] not substantial [and] the injury
caused [was] not irreparable.”
¶ 28 By concluding that the Hookses’ breaches did not result in any
damages to Myers, the court impliedly concluded that Myers was
still able to receive the benefit of the contract and substantial
performance was not rendered impossible. See id. at 1229.
Because the breaches were not material and Myers failed to
establish any damages, we perceive no error in the court’s
conclusion. See id. (concluding the trial court properly found a
developer’s breach was nonmaterial when the water districts could
not show they were damaged).
¶ 29 We are not otherwise persuaded by Myers’ contention that
“actual damages are evident because the Hookses received over
$365,900 in insurance proceeds.” As discussed, Myers is only
entitled to the amount of insurance proceeds necessary to pay the
remaining balance owed on the contract. And as to Myers’ personal
property damages claim, he did not provide a trial transcript or
specific record cites to support his contention. So we assume that
the record supports the court’s finding that he failed to prove those
damages. See In re Marriage of Dean, 2017 COA 51, ¶ 13 (“Where
15 the appellant fails to provide . . . a transcript, the [appellate] court
must presume that the record supports the judgment.”); Clements
v. Davies, 217 P.3d 912, 916 (Colo. App. 2009) (absent an adequate
record to demonstrate their claims of error, we presume the
evidence fully supports the court’s ruling); C.A.R. 28(a)(7)(B)
(Arguments “must contain . . . a clear and concise discussion of the
grounds upon which the party relies in seeking a reversal or
modification of the . . . rulings of the lower court or tribunal, with
citations to the authorities and parts of the record on which the
appellant relies.”).
¶ 30 Myers also contends that the Hookses’ breaches amount to
unsatisfied conditions precedent or noncompliance with the
contract’s covenants that preclude conveyance of title to the real
property. Because Myers fails to cite where in the record he raised
this argument before the district court, we decline to address his
contention. See C.A.R. 28(a)(5) (an appellant’s brief must include
the relevant facts and procedural history with appropriate
references to the record); Gebert v. Sears, Roebuck & Co., 2023 COA
107, ¶ 25 (“In civil cases, arguments never presented to, considered
by, or ruled upon by a district court may not be raised for the first
16 time on appeal.”); Brighton Sch. Dist. 27J v. Transamerica Premier
Ins. Co., 923 P.2d 328, 335 (Colo. App. 1996) (“[I]t is not the duty of
the reviewing court to search the record for evidence to support
bald assertions.”), aff’d, 940 P.2d 348 (Colo. 1997).
¶ 31 We perceive no error in the court’s ruling that the Hookses did
not materially breach the contract or that Myers must convey title
to the real property to the Hookses on full payment of the remaining
amount owed on the contract. See Interbank, 12 P.3d at 1228;
French, ¶ 24.
C. Land Installment Contract
¶ 32 Myers contends that the district court erroneously labelled the
“rent to own” contract as a “land installment” contract. He argues
that a land installment contract has “certain statutory rights” but
acknowledges that those rights “were never raised or pleaded here,”
nor were they asserted as an affirmative defense. He also argues
that “[t]he court’s erroneous label as a ‘installment land contract’
fundamentally altered the legal framework of the contract,” but he
does not explain how the court’s label did so. Because Myers’
argument is undeveloped and conclusory, we decline to address it.
See Weinstein, ¶ 35; Barnett, 252 P.3d at 19.
17 D. Unjust Enrichment Claim
¶ 33 Myers contends that the district court erred by concluding
that his unjust enrichment claim was abandoned. We reject this
contention because an unjust enrichment claim cannot stand when
a legally enforceable contract exists. See Bd. of Governors of Colo.
State Univ. v. Alderman, 2025 CO 9, ¶ 44 (“[A] party cannot properly
state a claim for unjust enrichment when a legally enforceable
contract exists that covers the same subject matter and that
contract has not been abrogated or rescinded.”).
E. “New Argument”
¶ 34 Myers contends that the district court erroneously allowed the
Hookses to introduce the new argument post-trial that the
destruction clause only entitled Myers to the remaining amount
owed on the contract. We are unable to discern whether the
Hookses raised that argument during trial, or if Myers objected to it
during trial, because Myers did not provide the trial transcripts on
appeal. Without those transcripts, we assume that the record
supports the court’s order. Dean, ¶ 13.
18 F. Unequal Treatment
¶ 35 Myers contends that the district court required him to prove
his claimed damages for his personal property while not requiring
the Hookses to prove their damages. He argues that this unequal
treatment resulted in the Hookses benefiting from receiving the
insurance proceeds. We are not persuaded.
¶ 36 Notably, it does not appear that the Hookses ever requested
damages — their complaint only requests a declaratory judgment.
And the court did not award them damages — indeed, it ordered the
Hookses to pay, from the insurance proceeds, the remaining
amount owed on the contract to Myers. Moreover, Myers has failed
to show any other instance of the court treating the parties
unequally or with any prejudice beyond taking issue with the
court’s ruling. See People in Interest of A.P., 2022 CO 24, ¶ 30 (The
party asserting a trial judge was biased must allege more than
“[b]are assertions and speculative statements” to show “the judge
had a substantial bent of mind against him or her.” (citations
omitted)). To the extent that Myers asserts that the court’s ruling
should be reversed, we reject his request because we have
19 concluded above that the court interpreted the contract correctly.
See supra Part III.A.
IV. Disposition
¶ 37 We affirm the district court’s judgment.
JUDGE FOX and JUDGE MEIRINK concur.