24CA0399 West Cornell v Kidwell 02-13-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0399 Arapahoe County District Court No. 22CV31929 Honorable Ben L. Leutwyler III, Judge
West Cornell Holdings, LLC,
Plaintiff-Appellee,
v.
Jay Kidwell,
Defendant-Appellant.
JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE SCHUTZ Welling and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 13, 2025
Murr Siler Eckels Delaney, PC, Joseph A. Murr, Daniel J. Hamilton, Denver, Colorado, for Plaintiff-Appellee
Fairfield and Woods, P.C., Lee Katherine Goldstein, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Jay Kidwell, appeals the district court’s entry of
summary judgment against him on a breach of contract claim
brought by plaintiff, West Cornell Holdings, LLC (West Cornell), and
the district court’s awards of specific performance and attorney fees
to West Cornell. We affirm the judgment and awards and remand
with directions for the district court to determine appellate fees and
costs.
¶2 Background
¶3 Kidwell owned a commercial building in Colorado. Cyrus
Pourjavaheri contracted with Kidwell to purchase the property.
When the parties negotiated and executed the contract, they were
unrepresented by counsel. The contract was prepared by a
transaction broker using the form contract approved by the
Colorado Real Estate Commission (CREC) for commercial real estate
purchases.
¶4 The contract called for a purchase price of $1.625 million with
a down payment of $325,000. The contract also contained a seller-
finance provision, which required Kidwell to loan $1.3 million to be
credited toward the purchase price. The loan was to be evidenced
by a note signed by Pourjavaheri and secured by a deed of trust on
1 the property. The contract also required Pourjavaheri to enter into
a lease agreement with the existing tenant in the building.
¶5 The parties included an additional provision, section 29.1, not
provided for in the CREC form contract, which granted Pourjavaheri
the right to assign his interest therein:
[Pourjavaheri] may assign this Contract to an entity which is “affiliated” with [Pourjavaheri] without obtaining [Kidwell’s] prior written consent, provided that [Pourjavaheri] gives [Kidwell] written notice of such assignment and any such assignee expressly assumes the obligations and liabilities of [Pourjavaheri] under this Contract. For purposes hereof, an entity shall be deemed to be ‘affiliated’ with [Pourjavaheri] if [Pourjavaheri] (or any principal or constituent owner of [Pourjavaheri]) shall, directly or indirectly through one or more intermediaries, control such entity or own any portion of the stock, membership or partnership units of such entity.
¶6 The parties set the initial closing date for September 2022.
Two days before the September closing date, Kidwell was informed
that Pourjavaheri intended to assign his rights under the contract
to a newly formed Texas limited liability company, West Cornell,
which was solely owned by Pourjavaheri. Kidwell objected to the
2 assignment and requested an extension of the closing date.
Pourjavaheri declined to grant the request.
¶7 Ultimately, Pourjavaheri did not assign his rights in the
contract to West Cornell before the September closing. There is
some dispute about whether Kidwell was aware of Pourjavaheri’s
decision not to do so.
¶8 At the appointed date and time for closing, Pourjavaheri
appeared with the necessary funds to consummate the purchase.
Kidwell did not appear and did not execute closing documents at
any point.
¶9 Shortly after the September closing date, Pourjavaheri
executed the contemplated assignment of his rights under the
contract, and he and West Cornell signed an assumption
agreement. West Cornell then retained counsel and filed the
underlying suit. After subsequent discussions, the parties set a
second closing date in November 2022.
¶ 10 The parties negotiated several new documents before the
November date, including a contemplated lease agreement with the
building’s current tenant. Pourjavaheri also agreed to sign the note
personally, as a borrower, in addition to West Cornell. Four days
3 before closing, Kidwell’s attorney sent all required closing
documents to the title company. On the morning of the November
closing, Kidwell’s attorney sent another document to West Cornell’s
attorney, which included proposed changes to the lease agreement.
The parties’ attorneys exchanged several emails throughout the day
regarding Kidwell’s proposed changes, which Pourjavaheri
ultimately rejected.
¶ 11 Pourjavaheri once again appeared at the November closing to
execute the necessary documents and deliver the unfinanced
portion of the purchase price. Once again, Kidwell did not appear
and did not execute any closing documents.
¶ 12 West Cornell’s complaint contained a single claim for breach of
contract alleging that Kidwell failed to complete the September
closing. West Cornell’s motion for summary judgment argued that
there were no disputed facts, and the undisputed facts established
that Kidwell had breached the contract when he failed to appear for
both the September and November closings.
¶ 13 The district court granted West Cornell’s motion for summary
judgment and ordered specific performance of the contract. Kidwell
appeals the judgment, claiming that he was never in breach, and
4 even if he was, specific performance was an inappropriate remedy.
West Cornell argues that it never breached and that Kidwell’s
failure to close was a breach of the contract, and therefore the
district court correctly entered judgment in its favor.
I. Analysis
A. Kidwell’s Breaches of Contract
¶ 14 West Cornell argues that Kidwell breached the contract by
failing to close. Kidwell argues that his failure to close was excused
because Pourjavaheri had already breached by assigning his rights
under the contract to West Cornell. We conclude the district court
correctly determined that Kidwell was the breaching party.
1. Standard of Review
¶ 15 Contract interpretation presents a question of law that we
review de novo. Sch. Dist. No. 1 v. Denver Classroom Tchrs. Ass’n,
2019 CO 5, ¶ 11. “In reviewing a breach of contract case, we defer
to the trial court’s findings of fact if the record supports them, and
we review its conclusions of law de novo.” Albright v. McDermond,
14 P.3d 318, 322 (Colo. 2000). Specifically, “[i]n determining
whether certain provisions of a contract are ambiguous, we focus
on the words employed and construe any undefined words ‘in
5 harmony with the[ir] plain and generally accepted meaning.’” Sch.
Dist. No. 1, ¶ 13 (quoting Cheyenne Mountain Sch. Dist. No. 12 v.
Thompson, 861 P.2d 711, 715 (Colo. 1993)). “If the contract is
complete and free from ambiguity, we deem it to represent the
parties’ intent and enforce it based on the plain and generally
accepted meaning of the words used.” Id. at ¶ 14.
¶ 16 “Generally, absent an express provision to the contrary,
executory contracts are assignable unless they involve a matter of
personal trust or confidence or are for personal services.” Scott v.
Fox Bros. Enters., Inc., 667 P.2d 773, 774 (Colo. App. 1983) (citing
Matson v. White, 220 P.2d 864 (Colo. 1950)). Every contract
contains an implied obligation of good faith and fair dealing. Univ.
of Denver v. Doe, 2024 CO 27, ¶ 51. The implied obligation may be
relied upon when a contract term grants either party discretion in
its performance. Id. The implied good faith provision may not,
however, be relied upon to contradict any terms or conditions for
which another party has bargained. Id. Whether a party has acted
in good faith presents an issue of fact that we review de novo. Id.
6 2. September Closing
¶ 17 Kidwell contends that he did not breach the contract by failing
to close in September because Pourjavaheri breached the contract
by notifying Kidwell that he planned to assign his contractual rights
to West Cornell after the expiration of the deadline for objecting to
financing conditions. Because West Cornell breached the contract,
the argument continues, Kidwell was excused from closing in
September. Kidwell does not specifically reference the implied
obligation of good faith and fair dealing in his briefs. But it appears
he is relying upon the principles of that doctrine because he
attempts to portray Pourjavaheri’s assignment as a breach because
its timing “unreasonably” deprived him of the right to object to the
assignment within the financing conditions objection deadline.
¶ 18 West Cornell contends that neither it nor Pourjavaheri
breached the contract before either the September or November
closing dates. Indeed, West Cornell notes that the contract
expressly granted Pourjavaheri the right to assign his interests
without Kidwell’s consent and without any restriction on when that
right could be exercised.
7 ¶ 19 We reject Kidwell’s argument because, as West Cornell argues,
section 29.1 expressly gave Pourjavaheri the right to assign the
contract to an affiliated entity without Kidwell’s consent. In
addition, section 29.1 placed no restriction on when Pourjavaheri
could exercise his assignment right. Thus, we perceive no bad faith
in Pourjavaheri’s exercise of his contractual rights. Given the law’s
favorable view of the assignability of contracts, Scott, 667 P.2d at
774, and the broad rights granted Pourjavaheri under section 29.1,
we perceive no “unreasonable” or bad faith actions that run afoul of
the contract’s express terms or the implied obligation of good faith
and fair dealing. See Univ. of Denver, ¶ 51.
¶ 20 As previously stated, there is some ambiguity about whether
Kidwell knew that Pourjavaheri had refrained from assigning the
contract to West Cornell before the September closing. However,
ultimately, whether Kidwell knew that Pourjavaheri had not
completed the assignment is immaterial because Pourjavaheri had
bargained for the broad right to assign his rights and therefore
there was no breach regardless of whether Pourjavaheri ultimately
completed the assignment.
8 ¶ 21 When presented with clear language, we interpret the contract
according to its terms. Sch. Dist. No. 1, ¶¶ 13-14. Based on the
plain language of section 29.1, we conclude that Pourjavaheri was
permitted to assign his rights to an entity that he was “affiliated
with,” which included West Cornell because Pourjavaheri was the
sole owner and member of it.
¶ 22 Because Pourjavaheri was within his rights under the contract
to assign his interest to West Cornell, even if he had completed the
assignment prior to the September closing, he would not have been
in breach. Therefore, regardless of whether Kidwell knew
Pourjavaheri had not completed the assignment, Pourjavaheri did
not breach the contract.
¶ 23 Thus, Kidwell’s argument that he was excused from
performing because Pourjavaheri first breached the contract fails.
It necessarily follows that Kidwell is the breaching party because of
his failure to appear or otherwise execute the necessary contract
documents prior to the September closing. Thus, the district court
did not err by entering summary judgment in West Cornel’s favor
based on Kidwell’s breach.
9 3. November Closing
¶ 24 At the November closing date, Pourjavaheri again appeared
and was prepared to close. Kidwell once again did not appear for
closing, execute any closing documents, or make any material
objections prior to closing. He again offers various arguments in an
effort to excuse his nonappearance. But we need not address these
arguments further because Kidwell’s failure to attend the
September closing, standing alone, justified the entry of summary
judgment against him.
B. Specific Performance
¶ 25 Kidwell argues that even if he did breach the contract, the
district court erred by granting the remedy of specific performance.
He contends that the contract to purchase and the related seller-
financing relationship created the equivalent of a personal services
contract that did not lend itself to specific performance. We are not
persuaded.
1. Standard of Review and Applicable Law
¶ 26 “Specific performance is a remedy developed by courts of
equity to provide relief when the legal remedies of damages and
restitution are inadequate.” Air Sols., Inc. v. Spivey, 2023 COA 14,
10 ¶ 48 (quoting 12 Joseph M. Perillo, Corbin on Contracts § 63.1, at
215 (rev. ed. 2012)). Whether specific performance is an
appropriate remedy depends on the unique circumstances of each
case. “We therefore review a trial court’s decision whether to order
specific performance for an abuse of discretion. A court abuses its
discretion when its decision is manifestly arbitrary, unreasonable,
or unfair, or based on a misapprehension or misapplication of the
law.” Id. at ¶ 50.
¶ 27 Personal services contracts typically involve “personal skill,
trust, or confidence.” Matson, 220 P.2d at 866 (citation omitted);
see also Scott, 667 P.2d at 774. They are often contracts with terms
that “require protracted supervision and direction, with the exercise
of special knowledge, skill, or judgment in such oversight.” Antero
& Lost Park Reservoir Co. v. Lowe, 194 P. 945, 955-56 (Colo. 1920).
Personal services contracts can also include “[c]ontracts for
personal care and attention or personal services.” Oles v. Wilson,
141 P. 489, 495 (Colo. 1914) (quoting Oswald v. Nehls, 84 N.E. 619,
622 (Ill. 1908)). Personal services contracts “are not, as a rule,
specifically enforced.” Antero, 194 P. at 956.
11 ¶ 28 The supreme court has characterized various other
agreements as personal services contracts, but none of these cases
lend credence to Kidwell’s argument that this contract or the related
seller-finance obligations were tantamount to a personal services
contract that could not be specifically enforced. See In re Estate of
Haywood, 599 P.2d 976, 979 (Colo. App. 1979) (holding that a
personal services contract existed between a niece and her aunt
when the niece maintained the house and cared for her aunt’s
physical and emotional needs with the expectation of an
inheritance; in such circumstance specific performance could be an
appropriate remedy for aunt’s breach); Albert-Ross Refrigerator &
Fixture Co. v. Pastore, 111 P.2d 231, 231-32 (Colo. 1941)
(determining that a business agreeing to pay overtime to a highly
skilled employee constituted a personal services contract and that
type of contract could be specifically enforced).
2. Analysis
¶ 29 Kidwell argues that the district court erred by finding that the
contract and seller-financing provisions did not amount to a
personal services contract, particularly given the hostility between
12 the parties. But the cases Kidwell relies on are all materially
different from this one.
¶ 30 Oles involved the adoption (via contract) of a seven-year-old
girl and allegations that the adoptive father did not sufficiently
perform his end of the contract because he did not leave the child
one-third of his estate. 141 P. at 490-91. The adopted daughter
sued the executor of the adoptive father’s estate for specific
performance to transfer her one-third of father’s estate. Id. at 491.
The supreme court acknowledged that adoptive daughter’s services
were personal in nature but nonetheless granted her the remedy of
specific performance. Id. at 498. Thus, the rationale of Oles
actually works against Kidwell’s argument that specific performance
was improper here.
¶ 31 Moreover, personal services contracts, like the one in Oles, are
highly specific and individual in nature. Kidwell’s seller-financing
obligation, on the other hand, was neither highly personal nor
specific — it was merely a commercial loan, a transaction that
occurs routinely in the marketplace. True, seller financing is not as
common as third-party financing. But the ongoing financial
relationship is not personal in nature or subjective. While it may
13 require de minimis ongoing contacts, they are governed by objective
standards. We don’t perceive how performance of these contractual
obligations could be materially colored by personal animosity or the
exercise of subjective judgment.
¶ 32 Likewise, Kidwell’s reliance on Antero is also misplaced.
Antero involved the construction of a canal, the performance of
which was subject to plans and standards that required ongoing
supervision and the exercise of judgment. 194 P. at 956. In
rejecting the plaintiff’s request for specific performance, the court
noted that the remedy was not appropriate because the contract
required “protracted supervision and direction, with the exercise of
special knowledge, skill, or judgment in such oversight.” Id. at 955-
56. These subjective performance standards counseled against a
remedy of specific performance. Id. In contrast, the seller-finance
provisions required no such special knowledge, skill, or subjective
exercise of judgment. Thus, Antero does not support Kidwell’s
arguments.
¶ 33 This case is also materially different from Air Solutions, which
Kidwell leans on in support of his argument that the district court
did not adequately consider the animosity between Pourjavaheri
14 and him. In Air Solutions, two people contracted to form a closely
held company which in turn would purchase an existing closely
held company. The relationship deteriorated rapidly, and one party
sued seeking specific performance for an agreement to convey an
interest in the nascent company. Air Sols., ¶ 1. The district court
denied specific performance. Id. at ¶ 92. On appeal, the majority of
the division concluded that the trial court had abused its discretion
by denying specific performance because damages were not an
adequate remedy in the case and the contract was sufficiently
specific to allow for specific performance, notwithstanding the
ongoing animosity between the parties. Id. at ¶ 87.
¶ 34 Kidwell points to the partial dissent in Air Solutions, which
reasoned that specific performance was not appropriate because it
would compel joint ownership of a closely held company — with the
attendant ongoing fiduciary relationship requiring extensive
subjective decisions — between two parties who did not trust each
other. Id. at ¶ 158 (Schutz, J., concurring in part and dissenting in
part). In contrast, the contemplated relationship between Kidwell
and West Cornell is a purely commercial one and would not require
15 the parties to be heavily involved with joint decision-making or
applying subjective standards or judgment.
¶ 35 In sum, Kidwell points to no authority or issues of disputed
fact that would support his contention that the seller-financing
obligation was a personal services contract. Accordingly, the
district court did not abuse its discretion or misapply the law by
ordering specific performance.
C. Fees and Costs
¶ 36 In the event of litigation over its enforcement, the contract
required the court to “award to the prevailing party all reasonable
costs and expenses, including attorney fees.” The district court
awarded fees and costs to West Cornell on the grounds that it was
the prevailing party.
¶ 37 Kidwell argues that the district court’s award of fees and costs
should be reversed if we reverse the district court’s order for
summary judgment. However, we affirm the district court’s
summary judgment order; therefore, we affirm the district court’s
award of fees and costs to West Cornell.
¶ 38 West Cornell is also the prevailing party on appeal and
therefore is entitled to an award of fees and costs incurred on
16 appeal. Because the district court is uniquely suited to undertake
the factfinding necessary to determine such an award, we exercise
our discretion and remand to the district court to determine and
award West Cornell its reasonable appellate attorney fees under
C.A.R. 39.1 and C.A.R. 39(c)(1).
II. Disposition
¶ 39 The district court’s summary judgment, specific performance,
and attorney fee orders are affirmed, and we remand to the district
court with directions.
JUDGE WELLING and JUDGE KUHN concur.