25CA1537 Lotus Church v 5071 Inc 06-25-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA1537 Jefferson County District Court No. 24CV31080 Honorable Jeffrey R. Pilkington, Judge
Lotus Church Ranch LLC, MK Church Ranch LLC, and KC Church Ranch LLC,
Plaintiffs-Appellees,
v.
5071 Inc., d/b/a Caliper Holdings,
Defendant-Appellant.
JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE KUHN Freyre and Bernard*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 25, 2026
Coaty and Woods, P.C., John D. Coaty, Tony Basile, Dylan Woods, Jayna Patel, Denver, Colorado, for Plaintiffs-Appellees
Berg Hill Greenleaf Ruscitti, LLP, Rudy E. Verner, Benjamin M. Wilson, Andrew C. Fischer, Boulder, Colorado, for Defendant-Appellant
*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, 5071 Inc., d/b/a Caliper Holdings, appeals the
trial court’s judgment in favor of plaintiffs, Lotus Church Ranch
LLC, MK Church Ranch LLC, and KC Church Ranch LLC
(collectively, Lotus). We affirm.
I. Background
¶2 In December 2019, Caliper entered into a lease agreement
with Potens Partners, LLC, for office space. Among other
obligations, the lease agreement required Caliper to pay rent “and
its share of operating costs.” Potens, as the landlord, was required
to “keep and maintain [the premises] in good repair and working
order.”
¶3 In May 2020, Caliper emailed Potens about a water leak near
the windows in its suite. Potens promptly responded and had an
individual stop by the office to fix the leak. In July 2021, Caliper
again emailed Potens about “two ceiling leaks along the windows”
after experiencing heavy rains. Potens responded shortly after and
said that it was “working towards resolving the issue and [had] bid
out vendors for the repair.”
¶4 On March 25, 2022, Caliper emailed Potens about “a new
sizable leak” (the New Leak) in the ceiling. Potens responded to the
1 email and said that it would send somebody to address the leak “as
soon as possible.” On March 31, Caliper emailed Potens and
thanked it for its “quick resolution” in getting the New Leak fixed.
In the email, Caliper also stated that when Potens’s maintenance
personnel, Jose, fixed the New Leak, he noted that the leak near the
windows (the Ongoing Leak) was “still occurring despite the
numerous attempted repairs.”
¶5 In the spring of 2022, Potens sold its property, including the
leased office space, to Lotus. During the pendency of the sale and
“[a]s part of the due diligence surrounding the purchase, [Caliper
was] required to complete a Tenant Estoppel Certificate (‘TEC’).”
Caliper’s staff signed the TEC in front of a notary.1 In the TEC,
Caliper agreed that there were no existing defaults or breaches of
the lease by Potens.
¶6 In May 2022, Caliper’s legal counsel asked for a meeting with
Lotus’s new property manager. Counsel indicated he wanted to talk
about “efforts to find a subtenant, the [Ongoing Leak,] . . . and
1 Caliper’s staff signed the TEC on March 22, 2022 — before Caliper
sent Potens the March 25 and March 31 emails notifying Potens about the New and Ongoing Leaks.
2 different alternatives to termination of the lease.” Lotus learned
about the Ongoing Leak as a result of those conversations. It
subsequently investigated the issue and scheduled vendors to help
remediate the Ongoing Leak.
¶7 Then in early June 2022, Caliper moved out of the premises.
On June 30, Caliper emailed a letter to Lotus purporting to
terminate the lease “pursuant to Article 27, Landlord’s Default and
Right to Cure, for violation of Article 17.” Caliper also stopped
paying rent. Lotus rejected Caliper’s attempted termination of the
lease and reminded Caliper that it was still bound to the terms of
the lease.
¶8 In July 2024, Lotus filed suit against Caliper, seeking unpaid
rent through the end of Caliper’s lease in April 2025. Caliper
answered, asserting numerous defenses and three counterclaims.
One of the counterclaims, as relevant here, was a breach of contract
claim in which Caliper alleged that Lotus failed to commence
repairs for the Ongoing Leak within thirty days of being notified, as
required by the lease agreement.
¶9 After a bench trial, the trial court ruled in favor of Lotus. This
appeal followed.
3 II. Analysis
¶ 10 Caliper contends that the trial court erred because it (1) found
that Lotus was not in default of the lease agreement when Caliper
terminated the lease and (2) added a materiality requirement when
interpreting the default clause in the lease agreement. Both parties
also contend that (3) they are entitled to their attorney fees under
C.A.R. 39.1. We address each issue in turn.
A. Applicable Law and Standard of Review
¶ 11 “The primary goal of contract interpretation is to determine
and give effect to the intent of the parties.” Ad Two, Inc. v. City &
County of Denver, 9 P.3d 373, 376 (Colo. 2000). To determine the
intent of the parties, we primarily look at the language of the
agreement. Id. “[C]ontract interpretation is a question of law that
is reviewed de novo[,] and we need not defer to a lower tribunal’s
interpretation of the contract.” Id.
¶ 12 “We review a judgment following a bench trial as a mixed
question of fact and law. We defer to the court’s findings of fact
unless they are clearly erroneous, and we review the court’s
conclusions of law de novo.” Premier Members Fed. Credit Union v.
Block, 2013 COA 128, ¶ 27 (citation omitted). A court’s finding of
4 fact is clearly erroneous only when it has no record support. Cronk
v. Bowers, 2023 COA 68M, ¶ 12.
B. Lotus’s Default
¶ 13 Caliper first contends that the trial court erred by not finding
that Lotus was in default of the lease agreement. More specifically,
Caliper argues that (1) its March 31 email constituted written notice
under Article 27;2 (2) Potens and Lotus failed to commence repairs
within thirty days of Caliper’s March 31 email; and (3) the “trial
court’s findings regarding Caliper’s supposed non-leak motivations
for terminating the Lease [are] irrelevant.”
1. Additional Background
¶ 14 As the trial court noted, there was a history of leaks at the
premises. There appear to be four leaks that Caliper notified the
2 Lotus argues that Caliper’s emails did not constitute written
notice because, under Article 33 of the lease agreement, written notice must be in writing, sent either by the United States Postal Service as registered or certified mail or by overnight express courier. However, because the parties don’t dispute that Lotus received actual notice of the leak issues from the emails, like the trial court we assume, without deciding, for the purposes of our analysis that the emails constituted sufficient notice under the lease.
5 previous landlord, Potens, about. But ultimately only two of those
leaks are relevant to our analysis.
¶ 15 The first leak occurred in May 2020. After receiving notice,
Potens had somebody fix the leak. It appears that this leak was
resolved. Caliper does not claim that the May 2020 leak was a
default under the lease agreement.
¶ 16 The second leak occurred in July 2021 after heavy rains.
Caliper claimed that there were multiple leaks near some of the
windows. After Caliper notified Potens of the second leak, Potens
replied and said that it was working towards resolving the issue and
had “bid out vendors for the repair.” The trial court found that it
was unclear whether the July 2021 leak was related to, or a
continuation of, the May 2020 leak. However, like the May 2020
leak, Caliper doesn’t cite the July 2021 leak as a basis for default.
¶ 17 Then, on March 25, 2022, Caliper emailed Potens about the
New Leak. Potens had someone fix the leak, and Caliper thanked
Potens for the “quick resolution.” Caliper also does not cite the New
Leak as a basis for default.
¶ 18 However, while Potens’s maintenance man, Jose, was working
on the New Leak, he noted that there was still a leak near the
6 windows, the Ongoing Leak. He also replaced the stained ceiling
tile next to the Ongoing Leak. On March 31, Caliper emailed Potens
again about the Ongoing Leak near the windows, and Potens
responded that it was still working to resolve the issue. Caliper
claims that the Ongoing Leak was the leak that ultimately
constituted a default under the lease agreement.
2. The Lease Agreement
¶ 19 Caliper argues that the trial court erred by finding that Lotus
was not in default of the lease agreement. Several provisions of that
lease agreement are relevant to our analysis.
¶ 20 Article 17.1 requires Lotus to maintain the premises, but it
also requires Caliper to “promptly” provide Lotus with written notice
of any problems. And Caliper must then allow Lotus “a reasonable
time” to start repairs. The pertinent portions of Article 17.1 read as
follows:
Article 17 Maintenance and Repair
17.1 [Lotus] shall, subject to reimbursement for Operating Costs, keep and maintain in good repair and working order, reasonable wear and tear excepted: (1) structural elements of the Building; (2) standard mechanical (including HVAC), electrical, plumbing and fire/life safety systems
7 serving the Building generally, together with air filters provided by [Lotus] for the HVAC serving the Premises, if any, and standard light fixtures provided by [Lotus] to the Premises, if any; (3) Common Areas; (4) the roof of the Building; (5) exterior windows of the Building; and (6) elevators serving the Building. [Caliper] shall give prompt written notice of any required repairs to [Lotus] and [Lotus] shall have a reasonable time after receipt of such written notice in which to commence repairs.
(Emphasis added.)
¶ 21 Article 27, in turn, addresses what happens if Lotus fails to
perform its obligations under the agreement. If Lotus fails to
commence repairs within a commercially reasonable time —
presumptively thirty days — Caliper must provide written notice
and an opportunity to cure. Only if Lotus fails to cure will it be
found in default under the lease:
Article 27. [Lotus’s] Default and Right to Cure
[Lotus] shall not be in default unless [Lotus] fails to commence performance of obligations required of [Lotus] within a commercially reasonable time, but in no event later than thirty (30) days after written notice by [Caliper] to [Lotus] and to the holder of any first mortgage or deed of trust covering the Premises whose name and address shall have
8 theretofore been furnished to [Caliper] in writing, specifying wherein [Lotus] has failed to perform such obligation; provided, however, that if the nature of [Lotus’s] obligation is such that more than thirty (30) days are required for performance then [Lotus] shall not be in default if [Lotus] commences performance within such thirty (30) day period and thereafter diligently pursues the same to completion.
3. Caliper’s March 31 Email
¶ 22 Caliper argues that its March 31 email satisfied Article 27’s
written notice requirement and notified Lotus that it had failed to
perform its obligations under the lease. We disagree for several
reasons.
¶ 23 Recall that under the lease agreement, Caliper had to give
Lotus notice of an issue that needed to be repaired under Article
17.1. Only if Lotus failed to repair the issue could Caliper go on to
give Lotus a notice of default and trigger a cure period under Article
27.
¶ 24 First, Caliper seems to argue that the emails it sent to Potens
about the May 2020 leak and the July 2021 leak constituted
written notice under Article 17.1 of the need to repair what
9 eventually became the Ongoing Leak. But that can’t be the case.
Caliper signed the TEC on March 22, 2022 — long after it notified
Potens of those two leaks. And in the TEC, Caliper acknowledged
that there was “no uncured default, event of default, or breach” by
Potens or Caliper. Further, Caliper acknowledged that it “ha[d] no
claim against [Potens] under the Lease and no offset or defense to
the enforcement of the terms of the Lease.” Accordingly, by signing
the TEC, Caliper acknowledged that Potens had no existing default
or failure to perform under the lease as of March 22, 2022. So
Caliper can’t rely on the May 2020 or July 2021 leaks as
constituting notice under Article 17.1.
¶ 25 Second, Caliper argues that its March 31 email to Potens
constituted notice of a failure to perform under Article 27. But the
email contains no language supporting that suggestion. The email
noted that the leak near the window was “still occurring” and that
“it’s been an issue for nearly the entire duration of [Caliper’s]
occupancy.” But nowhere in the email did Caliper state that Potens
had failed to perform, that Caliper was invoking Article 27, or that if
Potens didn’t cure within thirty days, Potens would be in default.
The email simply notified Potens that the Ongoing Leak — contrary
10 to its representations in the TEC signed eight days earlier — was
still an issue. Thus, at most, the March 31 email could have
constituted notice under Article 17.1 that there was a problem that
needed to be fixed.
¶ 26 But third — and critically — the March 31 email was sent to
Potens, not Lotus. The trial court found that “[n]either Lotus [n]or
[its property manager] had any knowledge of the prior water leaks
or efforts to repair those leaks until early May 2022.” This finding
has record support and thus we have no basis to disturb it. See
Cronk, ¶ 12. Given this finding, the March 31 email didn’t
constitute notice under either article.
¶ 27 Therefore, the trial court did not err by concluding that
Caliper’s March 31 email did not constitute written notice under
Article 27.
4. Failure to Commence Repairs
¶ 28 Caliper next argues that the trial court conflated the New Leak
Caliper emailed Potens about on March 25 with the Ongoing Leak
near the windows that it emailed Potens about on March 31 into a
single “Final Leak.” And because the trial court conflated the two
leaks, Caliper contends that the trial court erred by finding that
11 Potens commenced repairs when it replaced the ceiling tile for the
New Leak but did not address the Ongoing Leak.
In its March 31 email, a Caliper representative wrote,
I wanted to follow up and let you know that Jose came by on Friday and addressed the [N]ew [L]eak. Thank you for your help with a quick resolution! When he came by, he noted that the leak along the windows is still occurring despite the numerous attempted repairs. He changed out the stained ceiling tile but I’m not sure if there is a plan to revisit this leak.
¶ 29 In this email, Caliper acknowledges that the New Leak was
resolved but also noted a reoccurrence of the Ongoing Leak.
Caliper said that Potens’s maintenance man replaced the ceiling
tile — apparently for the Ongoing Leak, not the New Leak.3
¶ 30 Nevertheless, we agree with Caliper that replacing the ceiling
tile for the Ongoing Leak on March 25 didn’t “commence repairs” for
that leak. When Potens responded to Caliper’s March 31 email
about the Ongoing Leak, it stated that it was “still working to get
[the leaks near the windows] taken care of, as it turns out it seems
3 Whether Potens changed the ceiling tile for the New Leak, the
Ongoing Leak, or both leaks does not affect our subsequent analysis.
12 to be another entry point right when we think we have solved it.”
Therefore, Potens, and eventually Lotus, had thirty days after the
March 31 email notifying them of the leak to commence repairs.4
The March 25 ceiling tile replacement didn’t commence repairs on
Caliper’s notice of the Ongoing Leak.
¶ 31 The trial court noted that Potens acknowledged that it was still
working to get the Ongoing Leak taken care of before the sale to
Lotus was complete. The trial court also found that once Lotus
found out about the Ongoing Leak, it took further action. Caliper
argues that Lotus’s continued efforts to investigate the Ongoing
Leak — after it found out about it — also didn’t commence repairs.
In particular, Caliper claims that the lease agreement required
“effective response[s]” to their needs for repair, and not only the
landlord’s “best efforts.” Caliper cites 5860 Chicago Ridge, LLC v.
United States, 104 Fed. Cl. 740 (2012), to support its assertion. In
4 As we note supra Part II.B.3, while Caliper provided written notice
about the May 2020 and July 2021 leaks, it acknowledged in the TEC that they had been resolved. It also appears from the record that there were multiple entry points for each leak near the windows. Accordingly, we conclude that the March 31 email about a leak near the window constituted a new notice for repairs under Article 17.1.
13 that case, which also involved ongoing water leaks, the United
States Court of Federal Claims held that “the relevant clauses in the
[l]ease did not merely command [the landlord’s] diligence in
responding to the [b]uilding’s leaks; they demanded an effective
response that would stop the leaks.” Id. at 761. But that case, like
this one, was highly fact intensive. We do not find 5860 Chicago
Ridge to be persuasive under these circumstances.
¶ 32 As the trial court found with record support here, when Lotus
learned about the Ongoing Leak, it started its investigation into the
issue. Lotus looked through the engineer’s report to see if there
was mention of a leak, had an individual inspect the leak and talk
to a Caliper employee about the leak’s history, sought to hire a
plumber and roofer to inspect and resolve the issue, and
recommended that the carpet be cleaned to remove “the stain.” As
the trial court noted, Lotus also scheduled vendors to investigate
the leak and considered whether the building had ever been “wet
sealed.” The record, therefore, supports the trial court’s finding
that Lotus commenced repairs by investigating the root cause of the
issue and hiring vendors to help resolve the matter. We perceive no
clear error on this point.
14 5. Other Motivations For Terminating the Lease
¶ 33 Finally, Caliper argues that the trial court’s findings about its
“supposed non-leak motivations for terminating the Lease prove
irrelevant.” Caliper further argues that these non-leak-related
motivations for terminating the lease “ha[ve] no bearing on whether
[Lotus] was ‘in default’ under the Lease at the time Caliper
terminated the Lease.”
¶ 34 In its final judgment, the trial court noted that “[i]n trying to
understand why Caliper abruptly vacated the Premises, it is
important to understand Caliper’s earlier efforts to get out of the
Lease.” The trial court then went on to explain that Caliper was in
“grave financial distress” and had to take steps to reduce costs. For
example, it laid off “a large portion of its employees and attempted
to get relief from the Lease.” Caliper also tried to sublease the
premises, but to no avail.
¶ 35 We agree with Caliper that these facts are irrelevant to
interpreting the language of the lease agreement itself. But in a
bench trial, the court must assess the evidence and determine
witness credibility. Morris v. Belfor USA Grp., Inc., 201 P.3d 1253,
1258 (Colo. App. 2008). Those witness credibility determinations —
15 along with the inferences and conclusions to be drawn from the
evidence — are within the trial court’s province. Id. We do not
agree that the trial court erred in any way by trying to understand
the full situation and the motivations of the parties. To the
contrary, understanding why the parties took the actions they took
properly informed the court’s factfinding. Moreover, these facts
helped to contextualize the court’s ruling: They help explain why
the court found that Caliper vacated the premises “abruptly” and in
the middle of Lotus’s investigation and attempt to fix the Ongoing
Leak. Accordingly, we disagree that the court erred by considering
these facts in determining whether Lotus was in default.
C. Materiality Standard for Breach
¶ 36 Caliper next contends that the “trial court erred when it added
a materiality requirement to the default clause in the [lease
agreement].”
1. Preservation
¶ 37 Lotus argues that Caliper waived or invited any error in
connection with this issue. Lotus asserts that Caliper waived the
materiality issue because it did not raise the issue in its post-trial
motions. And Lotus argues that Caliper invited the error by asking
16 the trial court to equate “default” with “material breach” in its
proposed findings of fact and conclusions of law. In response,
Caliper argues that “Colorado law does not prohibit a party from
raising an issue on appeal that the party did not raise in post-trial
motions.”
¶ 38 In general, in order to preserve an issue for appeal, it must be
“brought to the [trial] court’s attention so that the court has an
opportunity to rule on it.” Grant Bros. Ranch, LLC v. Antero Res.
Piceance Corp., 2016 COA 178, ¶ 11. We generally will not review
issues that were “not raised in or decided by a lower court . . . for
the first time on appeal.” Melat, Pressman & Higbie, L.L.P. v.
Hannon L. Firm, L.L.C., 2012 CO 61, ¶ 18.
¶ 39 We can’t say that Caliper waived this issue. As Lotus points
out, Caliper did bring the question to the trial court’s attention in
its proposed findings of fact and conclusions of law. And Caliper
was not required to address any error in a post-trial motion to
preserve its appeal. See C.R.C.P. 59(b) (“Filing of a motion for post-
trial relief shall not be a condition precedent to appeal or cross-
appeal, nor shall filing of such motion limit the issues that may be
raised on appeal.”). And finally, we cannot say that Caliper invited
17 any error here. Caliper asked the trial court to conclude that any
default under the lease agreement constituted a material breach
under contract law. On appeal, it argues that the trial court
misapplied that law and instead imported a materiality requirement
into defaults under the lease agreement. So it did not urge the trial
court to adopt the error it complains of on appeal. We therefore
conclude that the issue is not waived or invited.
2. The Trial Court Didn’t Err by Adding a Materiality Requirement to the Default Clauses in the Lease Agreement
¶ 40 Caliper claims that the parties modified “the typical material
breach standard through the language of the contract, requiring
less than a material breach for a party to terminate the contract.” It
says that the parties modified the standard by including default
clauses in the contract, which permitted termination for less than a
material breach. Caliper therefore argues that the trial court
improperly added a material breach standard to the lease
agreement’s default clauses.
¶ 41 Under the common law, if there is a material breach of the
contract by one party, it excuses the other party’s performance
under the contract. Kaiser v. Mkt. Square Disc. Liquors, Inc., 992
18 P.2d 636, 641 (Colo. App. 1999). A material breach “goes to the
root of the matter or essence of the contract.” Interbank Invs.,
L.L.C. v. Vail Valley Consol. Water Dist., 12 P.3d 1224, 1229 (Colo.
App. 2000) (quoting 6 Walter H. E. Jaeger, Williston on Contracts
§ 842, at 165 (3d ed. 1962)). “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.” Id. at 1228.
¶ 42 A default clause is “[a] contract provision defining what
constitutes an act of default and the consequences of it.” Black’s
Law Dictionary 526 (12th ed. 2024). For example, Article 29 of the
lease agreement states that the tenant, Caliper, will be in default if
it fails to pay rent, sublets the premises without written consent
from the landlord, or abandons the premises, among other default-
worthy actions. Upon an “Event of Default” by the tenant, the
landlord can re-enter the property and take possession, remove any
property, or sue the tenant, among other remedies.
¶ 43 As Lotus points out, the word “‘material’ appears . . . six times
in the trial court’s Judgment. Three of those instances appear as
19 portions of direct quotes to non-overruled decisions of this [c]ourt
and are not cited by Caliper.” The fourth reference appears in a
footnote, and the final two appear in the text.
¶ 44 As to the quotes of authority from this court, Caliper argues
that the material breach standard “constitute[s] part of the trial
court’s comprehensive discussion of the typical material breach
standard.” We see no error in the court’s summary of applicable
law.
¶ 45 As to the next two references in the trial court’s judgment,
they each address both a breach and a default. In the first, located
in one of the trial court’s footnotes, the court stated that the water
leaks “did not rise to the level of a material breach or default.” A
couple paragraphs later in the text, the court wrote that “the Final
Leak and Lotus’[s] responses were not breaches (certainly not
material breaches) of the Lease.” We see no indication that the trial
court interjected a material breach standard into the lease
agreement as Caliper suggests. To the contrary, the plain language
of the court’s judgment indicates that it did not find Lotus’s actions
to be either a default under the lease agreement’s terms or a
common law material breach of the agreement.
20 ¶ 46 In the sixth reference, the trial court said, “Caliper unilaterally
and without good reason terminated the Lease on June 30, 2022.
As noted above, it failed to provide notice and an opportunity to
cure. These were material breaches of the lease.” It’s true that the
trial court only referred to “material breach” here and not default.
But based on our reading of the contract, the actions that the court
found constituted a material breach would also certainly have
constituted a default under the lease agreement. The court did not
apply an improper standard in interpreting the contract by using
the term “material breach,” rather than “default,” in this portion of
its analysis.5
¶ 47 In the final analysis, it appears that the trial court addressed
the claims both under the plain language of the agreement and
under the common law breach of contract standards, likely at
5 Caliper also argues that Articles 27 and 29 are default clauses
that do not mention a material breach requirement, which is true. Article 29 lists the remedies available to Lotus if Caliper defaults. Article 27, however, doesn’t list any remedies in the event Lotus defaults. Caliper claims that as the tenant, it “must have the same right [as Lotus] to terminate the Lease at any time after [Lotus] defaults,” even though this remedy is not in the lease agreement. Because we affirm the trial court’s conclusion that Lotus did not default, we need not resolve this issue.
21 Caliper’s urging in its proposed findings of fact and conclusions of
law. See People v. Fueston, 749 P.2d 952, 956 (Colo. 1988) (noting
that a court “may appropriately look to the common law as an
interpretive aid in determining the proper scope of [an agreement]”).
We perceive no error in the court resolving the claims in this
manner or in its resolution of those claims.
D. Attorney Fees
¶ 48 Caliper requests attorney fees and costs under C.A.R. 39.1.
Lotus objects to Caliper’s request and requests its fees and costs
under Rule 39.1. It argues that Caliper not only materially
breached the lease agreement by failing to pay rent, but that it also
“failed to identify any statutory, contractual, or rule-based authority
that would entitle it to an award of fees in this appeal.”
¶ 49 A request for attorney fees on appeal “must include a specific
request, under a separate heading, and must explain the legal and
factual basis for an award of attorney fees. Mere citation to . . . a
statute, without more, does not satisfy the legal basis requirement.”
C.A.R. 39.1.
¶ 50 Article 32.7 of the lease agreement provides for an award of
attorney fees and costs under certain circumstances:
22 In the event either party initiates legal proceedings or retains an attorney to enforce any right or obligation under this Lease or to obtain relief for the breach of any covenant hereof, the party ultimately prevailing in such proceedings or the non-defaulting party shall be entitled to recover all costs and reasonable attorneys’ fees.
¶ 51 Lotus initiated legal proceedings to enforce the lease
agreement because of Caliper’s failure to pay rent. Lotus was the
prevailing party in the trial court, and it likewise prevails on appeal.
We therefore conclude that Lotus is entitled to its appellate attorney
fees and costs under Article 32.7 of the lease agreement.
¶ 52 Thus, we grant Lotus’s request for attorney fees and costs
under Rule 39.1, and we remand this matter to the trial court to
determine the amount of the appellate attorney fees award.
Caliper’s request for attorney fees and costs is denied.
III. Disposition
¶ 53 The judgment is affirmed, and the matter is remanded to the
trial court to determine the amount of appellate attorney fees and
costs Lotus is entitled to.
JUDGE FREYRE and JUDGE BERNARD concur.