Kwesell v. LSL Management

• Court: Colorado Court of Appeals
• Decided: November 26, 2025
• Docket: 24CA2040
• Status: Unpublished

Opinion

24CA2040 Kwesell v LSL Management 11-26-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA2040 El Paso County District Court No. 23CV30085 Honorable Eric Bentley, Judge

Richard Kwesell; Michael Kwesell; and KBG, LLC, a Colorado limited liability company,

Plaintiffs-Appellees,

v.

LSL Management, LLC, a Missouri limited liability company,

Defendant-Appellant.

JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division III Opinion by JUDGE DUNN Lipinsky and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 26, 2025

Mulliken Weiner Berg & Jolivet P.C., Murray I. Weiner, Erin Leach, Colorado Springs, Colorado, for Plaintiffs-Appellees

Spencer Fane LLP, Jacob F. Hollars, Jose A. Castro, Denver, Colorado; McCarthy, Leonard & Kaemmerer, L.C., S. Jay Dobbs, Michael P. Herrmann, Chesterfield, Missouri, for Defendant-Appellant ¶1 Defendant, LSL Management, LLC, appeals the judgment

entered in favor of plaintiffs, Michael Kwesell; Richard Kwesell; and

KBG, LLC, following a bench trial on the parties’ competing breach

of contract claims. We refer to the Kwesells and KBG collectively as

plaintiffs unless a distinction is required.

¶2 LSL contends that the district court erred by (1) finding it

failed to comply with the contracts’ termination provisions;

(2) finding that plaintiffs substantially performed under the

contracts; and (3) miscalculating the damages awarded to plaintiffs.

Because we disagree with these contentions, we don’t reach LSL’s

final contention — that the court erred by finding that LSL had not

proved damages. We affirm the judgment.

I. Background

A. The Parties

¶3 Brothers Michael and Richard Kwesell co-founded and co-own

KBG, a Colorado cannabis business. KBG is a vertically integrated

business that includes cultivation, manufacturing, and retail

operations.

¶4 In 2018, Missouri legalized the cultivation and sale of medical

marijuana. Soon after, Andrew Lammert, Brandt Stiles, and Kyle

1 Lenzen formed LSL to develop a Missouri cannabis business. LSL

representatives later traveled to Colorado, met with the Kwesells,

and toured KBG’s facilities. LSL expressed an interest in a

consulting relationship with plaintiffs to help LSL develop its

cannabis operations.

B. The Contracts

¶5 In July 2019, LSL and KBG entered into a management

agreement under which plaintiffs agreed to provide, among other

things, consulting and business management services to LSL. The

Kwesell brothers each signed a separate management agreement

obligating them to support the KBG-LSL management agreement.

Because all three agreements are substantially similar and have

identical termination and notice provisions, we refer to them

collectively as the contracts.

¶6 Under the contracts, which are governed by Missouri law,

plaintiffs agreed to provide services in three main areas: cultivation,

extraction, and retail operations. The specific scope of services is

outlined in a schedule attached to the contracts. In exchange for

these services, LSL agreed to compensate plaintiffs through a

combination of fees and a percentage of gross monthly sales.

2 C. Deterioration of the Parties’ Relationship

¶7 The first couple of years of the relationship went much as

expected. But challenges for plaintiffs and LSL began developing

roughly in early 2022. Plaintiffs faced financial challenges in their

Colorado operations as decreasing demand and oversupply led to a

decline in marijuana prices. These financial problems led to

significant KBG employee layoffs, including the layoff of Samuel

Thoman, who was a key manager under the contracts with

responsibilities for providing services to LSL.

¶8 Around the same time, LSL faced problems with its

greenhouse, including humidity control issues that led to crop loss.

After Thoman was laid off in June 2022, he quickly accepted a

position with LSL. Soon after starting work at LSL, Thoman fixed

the greenhouse humidity problem. Thoman also reported to LSL

that, while employed by KBG, he prioritized his responsibilities to

KBG over his obligations to LSL.

¶9 By July 2022, LSL viewed the contracts as “totally breached”

and began to prepare a calculation of lost profit damages and a

“demand letter.” LSL, however, did not notify plaintiffs at that time

3 that it considered the contracts breached or ask plaintiffs to cure

any identified breach.

D. Notices of Material Breach and Termination

¶ 10 In August 2022, the parties had a phone call to discuss the

contracts and whether they should renegotiate any portions of

them. The parties also disputed responsibility for LSL’s crop loss

and ultimately agreed to talk further.

¶ 11 Three months later, LSL sent plaintiffs three letters captioned

“Notice of Material Breach,” one for each contract. The notices

detailed a myriad of alleged general breaches, including, for

example, failures to manage and train, which LSL claimed resulted

in “catastrophic monetary damages.” The notices advised plaintiffs

that they could cure the alleged breaches by (1) paying $9,084,290

in damages and (2) replacing “all the [k]ey [m]anagers [who had

been laid off] with personnel of the same skill and experience.” The

notices threatened that, if payment was “not made within sixty (60)

days,” LSL would be “forced to pursue its full legal remedies,”

including termination of the contracts. The notices, however, didn’t

say anything about the length of the cure period to hire new

4 employees or ask KBG to perform any specific services under the

contracts.

¶ 12 Plaintiffs responded in writing that they “ha[d] always

performed, and w[ould] continue to perform, [their] obligations

under the respective [contracts].”

¶ 13 After the sixty-day cure period expired, LSL sent three letters

captioned “Termination Notice,” terminating each contract.

E. The Litigation

¶ 14 Plaintiffs then filed this action against LSL, asserting three

breach of contract claims, one for each contract. LSL

counterclaimed, asserting three competing breach of contract

claims.

¶ 15 After a four-day bench trial that included conflicting testimony

and over one hundred exhibits, the district court issued a detailed

written order with its findings of fact and conclusions of law.

¶ 16 The court found that each party breached the contracts,

entered judgment in favor of LSL on plaintiffs’ claims, entered

judgment in favor of plaintiffs on LSL’s counterclaims, found

neither party was the prevailing party under the contractual fee-

shifting provisions, and awarded no damages.

5 F. Post-Trial Motions

¶ 17 Plaintiffs filed a motion to amend the findings and judgment

under C.R.C.P. 59, arguing that because LSL “did not comply with

its contractual obligations of notice and a meaningful opportunity

to cure, LSL did not properly terminate the [c]ontracts and they

remain[ed] in effect through the end of their terms.”

¶ 18 The district court granted the motion, concluding that it had

“erred in its interpretation of the contractual language” and that

this error compelled a “substantial amendment of [its] findings and

judgment.” In its order, the court found that plaintiffs’

nonperformance in 2022 “entitled LSL to give notice, provide a

reasonable opportunity to cure, and to then terminate the

[c]ontracts for cause if the circumstances remained uncured.”

Because it found that LSL “failed to provide [p]laintiffs a reasonable

opportunity to cure,” the court concluded that plaintiffs had not

breached the contracts. Rather, by failing to comply with the notice

and cure provisions, the court found that LSL breached the

contracts by declaring them terminated.

¶ 19 The court issued written amended findings of fact and

conclusions of law, entering judgment in favor of plaintiffs on the

6 competing breach of contract claims and awarding them damages.

The court also found plaintiffs were the prevailing parties under the

contractual fee-shifting provisions and awarded them reasonable

attorney fees and costs.

¶ 20 LSL responded with its motion to amend the amended findings

and judgment, arguing that (1) plaintiffs “failed to prove they

performed” under the contracts, and (2) LSL complied with the

termination clause by providing oral notice to plaintiffs during the

August 2022 phone call.

¶ 21 The court denied the motion. It reaffirmed its amended

findings that “LSL was required to follow the [c]ontracts’ notice-and-

cure provision before terminating the [c]ontracts” and that, “viewing

the [c]ontracts and the course of performance as a whole, [p]laintiffs

substantially performed their contractual obligations.” The court

also rejected LSL’s second argument, finding that the contracts

required written notice.

¶ 22 The court then denied LSL’s alternative post-trial motion,

seeking to amend plaintiffs’ damages award.

7 G. The Appeal

¶ 23 LSL now asks us to reverse the court’s judgment or,

alternatively, remand for recalculation of plaintiffs’ damages award.

Plaintiffs respond that we do not have jurisdiction over this appeal,

but, if we do, they ask us to affirm the judgment.

II. Jurisdiction

¶ 24 Plaintiffs contend that because LSL filed its notice of appeal

before the court ruled on LSL’s post-trial motions (and did not file

an amended notice of appeal after the court ruled), this court lacks

jurisdiction over the appeal.

¶ 25 Even assuming that LSL’s notice of appeal was premature, an

appellate court may exercise jurisdiction over the appeal if the

jurisdictional defect has been cured, and the appellee is not

prejudiced by the early filing. See Ditirro v. Sando, 2022 COA 94,

¶ 28; see also Musick v. Woznicki, 136 P.3d 244, 246-47 (Colo.

2006) (holding that, if a party files a premature notice of appeal, an

appellate court may exercise jurisdiction over the appeal once the

jurisdictional defect has been cured by entry of a final judgment).

8 ¶ 26 Because any jurisdictional defect has since been cured, and

plaintiffs allege no prejudice from the premature filing of the notice

of appeal, we conclude that we have jurisdiction.

III. LSL’s Termination of the Contracts

¶ 27 LSL contends the district court erred by finding that (1) the

notice and cure provisions required written notice, and (2) it

breached the termination provisions by not providing plaintiffs with

a reasonable opportunity to cure.

A. Standard of Review

¶ 28 We review a judgment following a bench trial as a mixed

question of fact and law. State Farm Mut. Auto. Ins. Co. v. Johnson,

2017 CO 68, ¶ 12; accord JD Wealth LLC v. U.S. Bank Nat’l Ass’n,

ND, 681 S.W.3d 320, 326 (Mo. Ct. App. 2023). That means we defer

to the district court’s credibility determinations and will disturb its

factual findings only if they are clearly erroneous and not supported

by the record. Amos v. Aspen Alps 123, LLC, 2012 CO 46, ¶ 25;

accord JD Wealth, 681 S.W.3d at 326. But we review questions of

law — such as contract interpretation — de novo. Sch. Dist. No. 1 v.

Denv. Classroom Tchrs. Ass’n, 2019 CO 5, ¶ 11; accord JD Wealth,

681 S.W.3d at 326; see also Lopez v. GMT Auto Sales, Inc., 656

9 S.W.3d 315, 321 (Mo. Ct. App. 2022) (noting that contract

interpretation is reviewed de novo).

¶ 29 Because the contracts have Missouri choice of law provisions,

we apply that state’s substantive law but Colorado’s procedural law.

See Target Corp. v. Prestige Maint. USA, Ltd., 2013 COA 12, ¶¶ 13,

15.

B. The Contracts’ Termination and Notice Provisions

¶ 30 The termination for cause provisions list three “occurrences”

for which the contracts “may be terminated for [c]ause by [LSL],

immediately upon notice to [plaintiffs] delivered in accordance with

the provisions of [the contracts].” The provisions then continue:

[I]n the event that [LSL] believes that [plaintiffs have] materially failed or refused to adhere to the provisions of [the contracts], or [have] failed or refused to faithfully and diligently perform the Services, then [LSL] shall provide notice to [plaintiffs] of the circumstances of such determination; and [plaintiffs] shall have a reasonable period of time, commensurate with the nature and gravity of the circumstances, to cure said circumstances. However, said reasonable period of time shall never exceed sixty (60) days. If the circumstances remain uncured following such reasonable period of time, [LSL] shall be permitted to terminate [the contracts] for cause after giving ten (10) days prior written notice to [plaintiffs].

10 (Emphasis added.)

¶ 31 The notice provisions state:

Any and all notices or other communications or deliveries required or permitted to be given or made pursuant to any of the provisions of [the contracts] shall be deemed to have been duly given or made for all purposes: (i) if hand delivered, on the day delivered; (ii) if sent by email or telephone facsimile transmission during normal business hours on a business day (with prompt oral confirmation of receipt), on the day sent; (iii) if sent by a nationally recognized overnight courier, costs prepaid, on the next business day after being deposited with such courier; or (iv) if mailed by first-class mail, postage prepaid and return receipt requested, on the third (3rd) day after being deposited in the mail, in each case to the applicable address set forth below or to such other address as such party has designated by notice so given to the other party . . . .

(Emphasis added.)

C. Written Notice

¶ 32 LSL disputes that the contracts required written notice and an

opportunity to cure. It maintains that it complied with the

contracts’ termination and notice provisions because it provided

“verbal notice” of the “circumstances” of its determination of

plaintiffs’ failure to perform under the contracts during the August

2022 call.

11 ¶ 33 We disagree for two reasons. First, the argument is not

consistent with the plain and unambiguous contract language. See

Andes v. Albano, 853 S.W.2d 936, 941 (Mo. 1993) (“[L]anguage that

is plain and unambiguous on its face will be given full effect within

the context of the agreement as a whole . . . .”). The notice

provisions clearly contemplate written notice for “any and all

notices or other communications or deliveries required” under the

contracts. And notice and a reasonable opportunity to cure are

required before LSL can terminate the contracts. Reading the

provisions together, we have little trouble concluding that written

notice and an opportunity to cure were required under the

¶ 34 Second, LSL’s claim is without record support. The court

never found that LSL provided “verbal” notice and an opportunity to

cure during the August 2022 call. Regarding that call, all the court

said was that plaintiffs disputed that they had not performed and

12 that the parties “came to an impasse and closed by agreeing to

continue to talk.”1

D. Opportunity to Cure

¶ 35 LSL contends that its written notices complied with the notice

and cure provisions. It says that the written notices provided

sufficient notice of the “circumstances” of plaintiffs’ performance

failures and identified two issues requiring cure — payment of over

$9 million and the replacement of “key managers.” And it insists

that the district court did not explain why the notice letters failed to

satisfy the notice and cure provisions or “how [p]laintiffs were

prejudiced.”

¶ 36 But the record belies these contentions. The court specifically

found, among other things, as follows:

• The notice and cure provisions were “a material and

essential part of the [c]ontracts.”

1 It’s unclear to us — and LSL doesn’t explain — why the form of

the notice to cure matters. After all, the court’s finding that LSL did not comply with the notice and cure provisions did not turn on the timing of the notices or the technical failure to comply with the termination provisions. The court instead found that the notices — which primarily demanded over $9 million — did not provide a reasonable opportunity to cure any alleged performance failures under the contracts.

13 • The contracts “obligated [plaintiffs] with innumerable

responsibilities” covering cultivation, extraction and retail

and that failure to perform required “a highly subjective

evaluation.”

• The notices “failed to provide [p]laintiffs a reasonable

opportunity to cure,” which was “the primary condition”

of the notice and cure provisions.

• Instead of contemporaneously notifying plaintiffs of

performance problems when they could be cured, LSL

waited several months and then sent notices when “there

was no longer any reasonable possibility of cure.”

• By July 2022, LSL treated the contracts as “totally

breached.”

• Instead of notifying plaintiffs of a breach in July 2022,

LSL “hid in the weeds,” concealed its intentions, and

prepared a damages calculation.

• The notices of material breach sent in November 2022

largely lacked the specificity necessary to permit an

opportunity to cure.

14 • LSL’s demand for a $9 million payment to “cure” was

“utterly untethered from reality.”

• LSL’s conduct with respect to the notices was in bad faith

and violated the contracts’ duty of good faith and fair

dealing.

¶ 37 Thus, the court found that, “through both their timing and

substance,” the notices provided plaintiffs with no opportunity to

cure. Because the court found that LSL failed to comply with the

notice and cure provisions, the court found that “its termination

was ineffective.”

¶ 38 LSL does not challenge the court’s factual findings, and, in

any event, they have record support. Indeed, LSL admitted that it

treated the contracts as being “totally breached” by July 2022. And

the evidence shows that LSL then waited several months before

sending plaintiffs the purported notices to cure.2 The $9 million

that LSL demanded in the purported notices appeared to be simply

a demand for contract damages. It wasn’t tethered to any

2 In his trial testimony, an LSL representative referred to the

purported notice to cure as a “demand letter,” perhaps evidencing its true purpose.

15 contractual requirement that plaintiffs share in profit loss or any

other specific performance failings under the contracts. And

critically, an LSL representative testified that LSL knew the $9

million demand wasn’t realistic because plaintiffs didn’t have “that

kind of money around.” He also admitted that he had testified at

his deposition that he “assume[d]” plaintiffs would not be able to

satisfy the cure demands and that he had spent months on “the

plan to terminate” the contracts.

¶ 39 LSL seems to suggest that sending notices with two purported

cure demands — one of which it assumed plaintiffs could not

meet — and providing the required sixty-day cure period was

sufficient under Missouri law to satisfy the contracts’ notice and

cure provisions. But Missouri recognizes that every contract

imposes upon each party a “duty of good faith and fair dealing” in

the performance and enforcement of the contract. Martin v. Prier

Brass Mfg. Co., 710 S.W.2d 466, 473 (Mo. Ct. App. 1986) (citation

omitted). “That duty prevents one party to the contract to exercise

a judgment conferred by the express terms of agreement in such a

manner as to evade the spirit of the transaction or so as to deny the

other party the expected benefit of the contract.” Id. The contracts

16 empowered LSL with the exclusive determination of whether

plaintiffs “failed or refused to faithfully and diligently perform” the

services and required LSL to provide plaintiffs notice of its

determination and an opportunity to cure any identified

deficiencies. As explained, the court found LSL never intended for

plaintiffs to cure, acted in bad faith, “hid in the weeds,” concealed

its intentions, and breached its duty of good faith and fair dealing.

These findings are supported by the record, and we will not disturb

them.3

¶ 40 LSL spills much ink over Homefield Commons Homeowners

Ass’n v. Roy H. Smith Real Estate Co., 500 S.W.3d 910 (Mo. Ct. App.

2016). It argues that because the court in that case found that a

written notice to cure letter satisfied a similarly worded notice and

cure provision, the district court erred by not reaching the same

result in this case. But as the district court noted, the cases are

3 LSL briefly states the district court erred by finding it breached its

duty of good faith and fair dealing. But, beyond simply citing a case, it does not develop this argument or explain its relevance in the context of the case. And “[w]e don’t consider undeveloped and unsupported arguments.” Woodbridge Condo. Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34, ¶ 41 n.12, aff’d, 2021 CO 56; accord Lemay v. Hardin, 108 S.W.3d 705, 709 (Mo. Ct. App. 2003).

17 factually distinct. The court in Homefield Commons did not find

that one party acted in bad faith or sent a notice designed to

prevent the other party from curing the breach. Thus, Homefield

Commons adds little to the issue of whether LSL satisfied the notice

and cure provisions. Because the record supports the court’s

findings that LSL breached the notice and cure provisions, and

because notice and an opportunity to cure were preconditions to

contract termination, the court correctly concluded that the

termination was ineffective. See id. at 914 (“A contract covering a

certain period of time, but containing a conditional provision that it

might be terminated before that time, will remain effective the full

term, unless the condition of termination is fully complied with.”

(citation omitted)); see also Deutsch v. Boatmen’s Nat’l Bank of St.

Louis, N.A., 991 S.W.2d 206, 208 (Mo. Ct. App. 1999) (“Performance

of conditions precedent is an essential element of a claim for breach

of contract.”).

18 ¶ 41 Given all this, we affirm the district court’s finding that LSL

did not comply with the notice and cure provisions and that LSL’s

termination was not effective.4

IV. Substantial Performance

¶ 42 LSL argues that the district court erred by “concluding that

[p]laintiffs’ material failures to perform were ‘excused or cured’ by

LSL’s alleged deficiencies in terminating the [c]ontracts — after

learning of [p]laintiffs’ breaches — thereby absolving [p]laintiffs of

their burden to prove performance of their contractual obligations.”

¶ 43 But LSL’s premise that the court found that plaintiffs

breached the contracts either misapprehends or ignores the court’s

amended findings of fact and conclusions of law. It’s true that the

court initially found that plaintiffs breached the contracts, and,

under Missouri’s “first to breach rule,” plaintiffs were barred from

recovery. Barnett v. Davis, 335 S.W.3d 110, 112 (Mo. Ct. App.

2011) (discussing Missouri’s “first to breach rule,” which provides

4 Having so concluded, we necessarily do not consider LSL’s

contention that the district court erred by finding that LSL failed to prove its damages.

19 that “a party to a contract cannot claim its benefit where he is the

first to violate it” (citation omitted)).5

¶ 44 The court, however, later amended its findings of fact and

conclusions of law and found the opposite. Specifically, after

finding that LSL did not give plaintiffs an opportunity to cure any

material performance failures in the summer of 2022, the court

found that LSL’s contract termination was not effective. And

because LSL deprived plaintiffs of the contractually required

opportunity to cure, the court found that plaintiffs’ “failure to

perform never matured into a breach.” Even more significantly, the

court found that, after considering plaintiffs’ performance over the

course of the contract (including the period of nonperformance) and

5 Though not cited in the appellate briefs or in the district court’s

original or amended findings of fact and conclusions of law, Barnett v. Davis, 335 S.W.3d 110, 112 (Mo. Ct. App. 2011), provides that Missouri’s “first to breach rule” only applies if the breach is material. It then outlines factors a court should consider in determining whether a breach is material. Id. at 114-15. Had the district court expressly considered the factors — which include the “extent to which the injured party will be deprived” of the contract benefit and the likelihood the breaching party will cure “considering all relevant circumstances” — along with its findings that LSL acted in bad faith, it’s unclear to us whether the court would have characterized plaintiffs’ 2022 performance problems as “material.” Id.

20 the fact that LSL did not intend for plaintiffs to cure, plaintiffs

substantially performed under the contracts. Indeed, the court

clarified in a post-trial ruling, “[I]n case it was not clear

previously, . . . viewing the [c]ontracts and the course of

performance as a whole, [p]laintiffs substantially performed their

contractual obligations.”

¶ 45 Thus, to the extent LSL maintains that plaintiffs breached (or

were the “first to breach”) the contracts, that’s not what the court

found. And LSL does not suggest that the court’s factual findings

are without record support or provide any reason for us to depart

from them. See Smith-Scharff Paper Co. v. Blum, 813 S.W.2d 27, 28

(Mo. Ct. App. 1991) (in Missouri, it is “well settled law” that

deference is “not limited to determinations as to the credibility of

witnesses” but “extend[s] to all fact issues found in accordance with

the result reached by the trial court.”).

¶ 46 Even so, LSL contends that the court “effectively excus[ed]

[p]laintiffs from proving the performance element” because it

excused plaintiffs’ nonperformance for the period that LSL failed to

allow plaintiffs an opportunity to cure. But, again, the record belies

this contention. The court found that plaintiffs substantially

21 performed over the course of the contract. To the extent LSL claims

that the court erred by excusing plaintiffs’ performance for that

period in which LSL did not inform plaintiffs of any performance

problems and then later breached the notice and cure provision, we

disagree. After all, a party can’t cure any claimed performance

problems unless it is notified of the problem and given the chance

to cure it. And even if plaintiffs were not materially performing at

some point in 2022, “a party in breach may cure [its] breach ‘by

correcting the deficiency in [its] performance.’” Barnett, 335 S.W.3d

at 113 (citation omitted). That’s only true, of course, if the

breaching party is given the opportunity to cure. The court found

that LSL didn’t provide that opportunity. Cf. Consol. Serv. Grp., LLC

v. Maxey, 452 S.W.3d 768, 770 (Mo. Ct. App. 2015) (“[I]f [one party]

is prevented from completing the work on a construction project by

the actions of the [other party], the [obstructing party has] breached

the contract.” (citation omitted)).

¶ 47 For that reason, we again disagree with LSL that Homefield

Commons informs our analysis. In that case, a homeowners

association entered a contract with a management company to

manage a subdivision. 500 S.W.3d at 911. The contract had a

22 termination provision that required notice and an opportunity to

cure. Id. at 912. The association purported to comply with the

termination clause and then terminated the contract. The parties

filed competing breach of contract claims. After a bench trial, the

court found that the association had satisfied the termination

clause and did not address the management company’s breach of

contract counterclaim. Id. at 913. The appellate court reversed,

concluding that because the association did not “fully comply” with

the contract’s termination conditions it “did not properly terminate

the contract.” Id. at 916. But because the trial court never

considered the management company’s breach of contract

counterclaim, it made “no factual findings” on that claim. Id. For

that reason, the court remanded the counterclaim for the trial

court’s consideration. Id. at 917.

¶ 48 Unlike Homefield Commons, the district court considered and

ruled on plaintiffs’ breach of contract claims and found that,

considering plaintiffs’ performance over the course of the contract

period, plaintiffs substantially performed the contracts. And

when — as here — performance issues are disputed, whether a

party has substantially performed is a question of fact. See C.A.

23 Bianco, Inc. v. Hoechst, 661 S.W.2d 567, 571 (Mo. Ct. App. 1983).

We cannot say that the district court’s finding that plaintiffs

substantially performed was clearly erroneous. See JD Wealth, 681

S.W.3d at 326.

V. The Damages Award

¶ 49 LSL next asks us to remand for recalculation of plaintiffs’

damages award because it says that the district court erred by

including intercompany sales in the damages award.

A. Legal Principles and Standard of Review

¶ 50 “To recover lost profits stemming from a breach of contract, a

plaintiff need only prove the fact of damages with reasonable

certainty and provide an adequate basis for the [fact finder] to

estimate the lost profits with reasonable certainty.” Midwest Coal,

LLC v. Cabanas, 378 S.W.3d 367, 371 (Mo. Ct. App. 2012).

“‘[C]ertainty’ means that damages have been suffered and not exact

proof of the amount of the damages.” Harvey v. Timber Res., Inc.,

37 S.W.3d 814, 819 (Mo. Ct. App. 2001).

¶ 51 Because the amount of damages is a factual question, see

High Life Sales Co. v. Brown-Forman Corp., 823 S.W.2d 493, 502

24 (Mo. 1992), we will not set aside a damage award unless it is clearly

erroneous, see JD Wealth, 681 S.W.3d at 326.

B. Sufficient Evidence Supports the Damages Award

¶ 52 The contracts provide that plaintiffs “shall receive a

management fee” during the contract term equal to three percent of

LSL’s gross monthly sales. Gross monthly sales “means the actual

cash collected for overall sales of [LSL], unadjusted for costs

incurred in generating those sales.”

¶ 53 LSL argues that because intercompany sales do not qualify as

“actual cash collected,” intercompany sales are not included in

gross monthly sales. Thus, LSL says that the court erred by

including intercompany sales in the damages award. The

contracts, however, don’t define “actual cash collected” and say

nothing about whether intercompany sales are included in “actual

cash collected.” We therefore disagree that the damages award

“contradicts” the contractual definition of gross monthly sales.

¶ 54 LSL also faults the court for relying on plaintiffs’ damages

expert who included intercompany sales in his damages calculation.

But the court considered the damages testimony and found that the

expert’s calculations were based on LSL’s financial statements,

25 which did not “break out intercompany transactions from other

sales,” and at least one LSL document that included intercompany

sales. Because LSL offered no competing damages expert or an

alternative damages calculation, and because the court found

plaintiffs’ expert credible, the court adopted the expert’s damages

calculation. See State v. Mackey, 698 S.W.3d 853, 858 (Mo. Ct.

App. 2024) (the district court is “free to credit all, part, or none of

the expert’s testimony.”).

¶ 55 In the end, it was for the court to consider and weigh the

damages evidence. The court’s damages award is supported by the

record and consistent with the law. We therefore will not disturb it.

VI. Appellate Attorney Fees and Costs

¶ 56 Both parties request an award of appellate attorney fees and

costs under the contracts’ prevailing party provisions and C.A.R.

39.1. Because we affirm the judgment, we grant plaintiffs’ request

and deny LSL’s request. We exercise our discretion to remand the

case to the district court to determine plaintiffs’ reasonable

appellate attorney fees and costs. See C.A.R. 39.1.

26 VII. Disposition

¶ 57 The judgment is affirmed, and the case is remanded to the

district court to determine the amount of appellate attorney fees

and costs to be awarded to plaintiffs.

JUDGE LIPINSKY and JUDGE KUHN concur.