20CA0923 Pacific Express v Anderson 11-24-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 20CA0923
City and County of Denver District Court No. 18CV30070
Honorable Andrew P. McCallin, Judge
Pacific Express Stables, LLC, a Colorado limited liability company,
Plaintiff-Appellant,
v.
Ryan Anderson and CF LoDo, LLC, a Colorado limited liability company,
Defendants-Appellees.
JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE FURMAN
Lipinsky and Brown, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 24, 2021
Andrew Oh-Willeke, Denver, Colorado, for Plaintiff-Appellant
Business Management Law Group, Stanley V. Jezierski, Broomfield, Colorado,
for Defendants-Appellees
1
¶ 1 In this commercial lease case, Tenant, CF LoDo, LLC, leased
the basement of a downtown Denver building from Landlord, Pacific
Express Stables, LLC, to run a weight training and exercise
business. The Lease had a three-year term that began in July
2013. CF LoDo’s owner, Ryan Anderson, personally guaranteed the
Lease on behalf of CF LoDo.
¶ 2 In October 2014, a dispute arose between the parties about
both an increase in the amount of certain lease payments, called
“triple net charges,” and CF LoDo’s right to audit the building’s
operating costs. CF LoDo vacated the basement at the expiration of
the Lease in September 2016, without the dispute being resolved.
¶ 3 Pacific Express then sued CF LoDo and Anderson, as
guarantor, for breach of the Lease. Pacific Express alleged that CF
LoDo breached the Lease by not making certain Lease payments,
including the increased triple net charges, and by causing excessive
wear and tear to the basement. Pacific Express sought
$407,669.70 in damages.
¶ 4 After a bench trial, the court found for CF LoDo on “all of
[Pacific Express’s] claims,” except for a few “minor,” undisputed
claims. The court then awarded Pacific Express $2,760.00 in
2
damages on the “minor” undisputed claims and $2,172.70 in
pre- and post-judgment interest. The court found that Anderson
was jointly and severally liable for these damages as CF LoDo’s
guarantor on the Lease.
¶ 5 After determining that CF LoDo was the “prevailing party” for
purposes of a fee-shifting provision in the Lease, the trial court
awarded CF LoDo $51,435.00 in attorney fees and costs.
¶ 6 On appeal, Pacific Express contends that the trial court (1)
erred by finding that CF LoDo was not liable to pay the increased
triple net charges under Paragraph 6(i) of the Lease and (2) abused
its discretion by determining that CF LoDo was the “prevailing
party” under the fee-shifting provision of the Lease. Because we
disagree with Pacific Express’s contentions, we affirm the judgment.
¶ 7 Both Pacific Express and CF LoDo request an award of their
appellate attorney fees and costs. We deny Pacific Express’s
request, but we grant CF LoDo’s request.
I. Increased Triple Net Expenses
¶ 8 We first conclude that the trial court did not err in finding that
CF LoDo was not liable to pay the increased triple net charges
under Paragraph 6(i) of the Lease.
3
A. Standard of Review
¶ 9 Interpreting a lease is a question of law we review de novo.
See Vu, Inc. v. Pac. Ocean Marketplace, Inc., 36 P.3d 165, 167 (Colo.
App. 2001). Our “primary goal” when interpreting a lease “is to
determine this intent primarily from the language of the lease itself.
See id. And when a written lease is “complete and free from
ambiguity,” we will consider it as expressing the intent of the
parties and will enforce it according to its plain language. Id.
¶ 10 But whether a party has performed its obligations under a
lease or has breached is a question of fact. See Lake Durango Water
Co. v. Pub. Utils. Comm’n, 67 P.3d 12, 21 (Colo. 2003). We must
defer to a trial court’s findings of fact unless they are so clearly
erroneous as to find no support in the record. See Loveland
Essential Grp., LLC v. Grommon Farms, Inc., 251 P.3d 1109, 1116-
17 (Colo. App. 2010); see also Van Gundy v. Van Gundy, 2012 COA
194, ¶ 12 (“We review a court’s factual findings following a trial to
the court only for clear error.”).
¶ 11 When a trial court sits as fact finder, it “is charged with
assessing the witnesses’ credibility and determining the evidence’s
4
sufficiency, probative effect, and weight.” State ex rel. Suthers v.
Mandatory Poster Agency, Inc., 260 P.3d 9, 15 (Colo. App. 2009).
So, “we must defer to the trial court’s determinations, unless they
are clearly erroneous or unsupported by the record.” Id. And, if
“evidence conflicts, we may not substitute our judgment for the trial
court’s.” Id.
B. Paragraph 6(i) of the Lease
¶ 12 Paragraph 6(i) of the Lease reads:
Tenant shall pay its Proportionate Share of the
Building’s operating costs (NNN) in monthly
installments, on the 15th of each month (in the
instance where the 15th falls on a Saturday or
Sunday, the Tenant shall pay its Proportionate
Share of the Building’s operating costs on the
following Monday), based upon Landlord’s
good faith estimate, from time to time, of the
Building’s operating costs. Tenant’s initial
payment is based upon Landlord’s estimate of
the building’s operating costs for the year in
question, and the monthly payments thereof
(and future payments) are subject to increase
or decrease as determined by Landlord from
time to time to reflect an accurate estimate of
actual operating costs. Within one hundred
twenty (120) days or a reasonable time
thereafter after the end of each calendar year,
Landlord shall deliver to Tenant a statement of
operating costs for such calendar year and
Tenant shall pay Landlord or Landlord shall
credit Tenant (or, if such adjustment is at the
end of the Term, pay Tenant), within thirty (30)
5
days of receipt of such statement, the amount
of any excess or deficiency in Tenant’s
payment of its portion of operating costs for
the calendar year. Tenant shall have the right
to audit Landlord’s operating costs.
¶ 13 Thus, under Paragraph 6(i), CF LoDo had to pay its
proportionate share of the building’s operating costs as “triple net
charges.” The “initial” amount of triple net charges that CF LoDo
had to pay was based on Pacific Express’s estimate of its operating
costs for the first year of the Lease. But Pacific Express had the
right to increase the amount of triple net charges that CF LoDo had
to pay on a monthly basis if the increase reflected an “accurate
estimate” of Pacific Express’s “actual” operating costs.
¶ 14 And, under Paragraph 6(i), Pacific Express had to deliver a
statement of its operating costs for the calendar year to CF LoDo
within 120 days or a reasonable time after the end of that calendar
year. CF LoDo then had to pay any deficiency in its payment of its
share of triple net charges for the calendar year, or Pacific Express
had to credit or pay CF LoDo for any excess amounts CF LoDo had
paid for its share of triple net charges for the calendar year, within
thirty days of receiving the statement of Pacific Express’s operating
costs. See id.
6
¶ 15 Paragraph 6(i) also granted CF LoDo the right to audit Pacific
Express’s operating costs.
C. The Trial and the Court’s Findings
¶ 16 Pacific Express claimed, among other things, that CF LoDo
breached Paragraph 6(i) of the Lease by not paying the increased
triple net charges. To support this claim, Pacific Express relied on
the testimony of its manager and on Exhibit 3, a spreadsheet
prepared by the manager that purported to show the building’s
operating costs and CF LoDo’s payment history during the relevant
time period.
¶ 17 In response, CF LoDo argued that it was not liable to pay any
increase in triple net charges. It argued that the manager was not
credible; some numbers in Exhibit 3 “were made up, in some cases,
out of whole cloth”; and the increased triple net charges was an
“overreach” by Pacific Express. Relying on Anderson’s testimony
and emails exchanged between Anderson and the manager, CF
LoDo argued that Pacific Express breached Paragraph 6(i) of the
Lease by not allowing CF LoDo to audit the records of the building’s
operating costs in a timely manner and by not providing the records
to CF LoDo in a format that would allow CF LoDo to audit them.
7
¶ 18 Following the trial, the court entered detailed oral findings of
fact and conclusions of law. The court addressed Pacific Express’s
claim for increased triple net charges.
¶ 19 The trial court interpreted Paragraph 6(i) of the Lease as
follows. CF LoDo is required “to pay its proportionate share of the
building’s operating expenses described as triple net.” Pacific
Express will “set forth an initial estimate of what these triple net
costs are.” But Pacific Express may pass on an increase in these
costs to CF LoDo. So, Pacific Express can “revise [its estimate of CF
LoDo’s amount of triple net charges] at the end of a calendar year.”
Pacific Express must deliver a statement of its operating costs to CF
LoDo within 120 days of the end of the calendar year, and CF LoDo
must pay “the amount of any excess or deficiency in [its] payment of
its portion of operating cost for [the] calendar year” within thirty
days of receipt of the statement. CF LoDo also “has a right to audit
the operating costs.”
¶ 20 The court then made findings regarding the events in this
case:
8
• Pacific Express’s “initial estimate” of CF LoDo’s proportionate
share of triple net charges “was set at $1,500 in 2013 when
[the] Lease started.”
• On October 8, 2014, the manager “on behalf of [Pacific
Express] sent an email to [Anderson] on behalf of the
Defendants and stated to him that the triple net costs [had]
increased.” The manager attached a spreadsheet to this email
that purported to show the building’s operating costs.
• “[T]wo days after receiving this statement, [Anderson] sent a
short email on” October 10, 2014, “to [Pacific Express] in
which he stated he would like to exercise his right to conduct
an audit.”
• Nothing happened for “five to six months.”
• On March 9, 2015, Pacific Express sent an email to Anderson
in which “it demand[ed] that the increase[d] triple net costs be
paid.”
• “At some point in either March or April” of 2015, Anderson
went to the manager’s home to attempt an audit of the
building’s operating costs, and the manager laid out the
receipts for these costs on her kitchen table.
9
• But Anderson could not conduct an “audit of these receipts
because they were so disorganized” and “in such disarray.”
• On May 22, 2015 — in “the last word on this audit” — the
manager emailed Anderson “stating that she will hire someone
and bill [CF LoDo] in order to organize her records.”
¶ 21 The trial court found there was “no credible evidence” of “the
increased triple net cost.”
¶ 22 The trial court also found that Pacific Express was obligated
under Paragraph 6(i) of the Lease “to provide meaningful records so
that [CF LoDo] can conduct an audit.” But the court found that
“the lack of organization, the disarray in the records, and the lack of
any credible evidence of the increased costs prevented [CF LoDo]
from exercising a meaningful audit.” So, the trial court found:
[Pacific Express] has breached its obligation . .
. to provide any verification of the actual costs
that would support an increase in the triple
net [charges]. So the Court finds that [CF
LoDo] was not obligated to pay the increase[d]
triple net cost that [Pacific Express] maintains
were due.
¶ 23 Regarding Exhibit 3 — the spreadsheet that the manager
maintained — the court found as follows:
10
I’m unable to find any aspect of [the
manager’s] testimony credible. So I do not
accept this spreadsheet as any credible
evidence of the increased triple net costs and
find that no credible evidence at all was
presented by [Pacific Express] of any increased
triple net costs that would trigger an increased
payment obligation by [CF LoDo] under
Paragraph 6([i]) of the Lease.
D. Analysis
¶ 24 On appeal, Pacific Express contends that the trial court erred
by interpreting Paragraph 6(i) of the Lease to mean that (1) CF
LoDo’s obligation to pay the increase in its amount of triple net
charges was “postponed by the Lease provision allowing [CF LoDo]
to request an audit of” Pacific Express’s operating costs and (2)
“audits were [to be] conducted at [Pacific Express’s] expense.”
¶ 25 But we need not address these contentions because the trial
court found that CF LoDo had no obligation to pay the increased
triple net charges. Pacific Express presented no credible evidence
that its claimed increase in operating costs was based on an
“accurate estimate of actual operating costs” as required by
Paragraph 6(i). And because Pacific Express presented no evidence
showing that its demand for increased payment from CF LoDo
“reflect[ed] an accurate estimate of actual operating costs,” it could
11
not demonstrate that CF LoDo breached the Lease by failing to pay
¶ 26 Yet, Pacific Express contends that it did not have to prove to
the trial court that its operating costs had increased because CF
LoDo had to pay the increased triple net charges “on the basis of
[the] statement” Pacific Express delivered to CF LoDo. This does
not help Pacific Express. Paragraph 6(i) says that Pacific Express
can only increase CF LoDo’s triple net charges (and CF LoDo is only
obligated to pay these charges) if the increase reflects an “accurate
Pacific Express did not prove to the trial court that the increase in
CF LoDo’s triple net charges reflected an “accurate estimate” of
Pacific Express’s “actual operating costs.” The record supports the
trial court’s finding that “no credible evidence at all was presented
by [Pacific Express] of any increased triple net costs that would
trigger an increased payment obligation by [CF LoDo] under
Paragraph 6(i) of the Lease.” See State ex rel. Suthers, 260 P.3d at
15; Loveland Essential Grp., 251 P.3d at 1116-17.
¶ 27 Pacific Express’s reliance on Koerner v. Wilson, 85 Colo. 140,
142-45, 274 P. 737, 738 (1929), for the proposition that CF LoDo
12
had to prove, as an affirmative defense, that “the statement
provided by [Pacific Express] to [CF LoDo] was inaccurate in some
specific way” is misplaced. In Koerner, the lessee of an orchard
sued both the sheriff of Fremont County and the lessee’s father’s
creditor to recover damages for the conversion of some of the
lessee’s apples and apple boxes. See id. at 140-45, 274 P. at 737-
38. The sheriff, at the request of the creditor, entered the orchard,
seized the apples and apple boxes, and sold them to satisfy a
judgment against the lessee’s father. See id. After a trial, the court
entered judgment for the lessee and against defendants. See id. at
140-42, 274 P. at 737. On review to our supreme court, defendants
contended that even though they did not plead fraud as a defense,
the trial court erred by not admitting certain evidence of fraud
between the lessee and the lessee’s father. See id. at 142-45, 274 P.
at 738. In rejecting this contention, the supreme court concluded:
“Fraud is, under the circumstances of this case, clearly an
affirmative defense, and must be pleaded before evidence thereof
¶ 28 But, unlike in Koerner, CF LoDo did not seek to admit
evidence that Pacific Express committed fraud. Instead, CF LoDo
13
denied that it had to pay the increase in its amount of triple net
charges. So, it was the burden of Pacific Express, as plaintiff, to
prove that CF LoDo had to pay the increase in its amount of triple
net charges but did not. See Saturn Sys., Inc. v. Militar, 252P.3d
516, 529 (Colo. App. 2011) (concluding that “a party attempting to
recover on a claim for breach of contract must prove,” among other
things, “the existence of a contract . . . [and] failure to perform the
contract by the defendant” (quoting W. Distrib. Co. v. Diodosio, 841
P.2d 1053, 1058 (Colo. 1992))). The trial court found that Pacific
Express did not meet its burden. See State ex rel. Suthers, 260 P.3d
at 15; Loveland Essential Grp., 251 P.3d at 1116-17.
II. Prevailing Party
¶ 29 We also conclude that the trial court did not abuse its
discretion by determining that CF LoDo was the prevailing party to
apply the fee-shifting provision of the Lease.
¶ 30 When a claim exists for violating a contractual obligation, “the
party in whose favor the decision or verdict on liability is rendered
is the prevailing party” for purposes of awarding attorney fees under
the fee-shifting provision of the contract. Dennis I. Spencer
Contractor, Inc. v. City of Aurora, 884 P.2d 326, 327 (Colo. 1994);
14
see Wheeler v. T.L. Roofing, Inc., 74 P.3d 499, 503-04 (Colo. App.
2003) (A “party prevails if the issue of liability is resolved in its
favor, even where damages are not awarded.”). But, when “both
parties have prevailed in part on the question of liability, the trial
court is free to determine which is prevailing for purposes of
applying [the] fee-shifting” provision. Wheeler, 74 P.3d at 504.
¶ 31 We review a trial court’s determination of which party is the
prevailing party for an abuse of discretion. See id. at 503. A court
abuses its discretion if its decision is manifestly arbitrary,
unreasonable, or unfair, or when it misapplies the law. See Genova
v. Longs Peak Emergency Physicians, P.C., 72 P.3d 454, 458 (Colo.
App. 2003).
¶ 32 Paragraph 20(f) of the Lease contains the following fee-shifting
provision: “In case suit shall be brought to enforce any provisions of
this Lease, the prevailing party shall (in addition to other relief
granted) be awarded all reasonable attorney’s fees and costs
resulting from such litigation.”
¶ 33 In the trial management order, Pacific Express claimed that
CF LoDo “breached the Lease with Pacific Express by not making
payments due under the Lease for rent including triple net Lease
15
payments, when due, and also owes late fees and interest under the
Lease as a consequence of failing to pay these amounts when due
under the Lease.” Pacific Express claimed that “the total amount
due for unpaid Lease payments, interest and late fees,” minus CF
LoDo’s security deposit, was $97,815.
¶ 34 Pacific Express also asserted numerous “claims” that CF LoDo
“breached the Lease with Pacific Express by physically damaging
the Premises, in excess of ordinary wear and tear, in a manner not
permitted by the Lease.” These “claims” included:
• “Damage to the cement floor of the Premises with a repair cost
actually incurred of approximately $30,000.”
• “Damage to other surfaces on the Premises such as walls,
pillars and doors with a repair cost actually incurred of
approximately $9,000.”
• “Damage to the garage wall caused when an invitee or licensee
of [CF LoDo] backed a truck into the wall estimated to require
approximately $5,000 to repair.”
• “Damages to the ceiling and roof estimated to require
approximately $5,000 to repair.”
16
• “Damages to the paint on a handicapped ramp estimated to
require approximately $4,000 to repair.”
• “Damages to a fire escape which was used so heavily that it
failed in non-emergency circumstances, in violation of City
and County of Denver ordinances, despite the fact that it was
not part of the portion of the building [that CF LoDo] was
authorized to use, in an amount that is estimated to cost
$50,000 to repair.”
• “There were other miscellaneous instances of damage to other
parts of the premises such as cabinets, doors, windows,
screens, in an amount of incurred and estimated costs
combined to repair of approximately $2,000 or more.”
Pacific Express provided a list of the costs of repairing the concrete
floor, which included “Concrete floor spot repairs” at a cost of
$1,180.
¶ 35 Pacific Express stated that it was seeking damages for breach
of the Lease in a total amount of $407,669.70. Pacific Express also
claimed that “Anderson is jointly and severally liable for all
amounts for which [CF LoDo] is liable” because “Anderson
personally guaranteed all obligations of [CF LoDo] under the Lease.”
17
¶ 36 CF LoDo’s defenses included, among other things, that
“[d]efendants have paid all amounts due under the Lease,” “[Pacific
Express] has not provided proof to substantiate its alleged operating
costs and other charges of additional rent,” “[d]efendants deny that
it caused any damages to the Premises beyond normal wear and
tear,” and “[defendants deny that some of the alleged damages were
the result of actions of the Defendants, including any damage to the
railings and fire escape.”
¶ 37 Both parties called numerous lay and expert witnesses to
testify. Most of this testimony addressed Pacific Express’s claim of
excessive wear and tear.
¶ 38 The manager testified extensively about Pacific Express’s
claims of unpaid Lease payments and excessive wear and tear.
¶ 39 At closing arguments, CF LoDo admitted liability for unpaid
rent for September 2016; unpaid triple net expenses (at the initial
estimate) for July, August, and September 2016; some excessive
wear and tear to the concrete floor (in the form of nails or screws
put into the concrete floor) with a repair cost of $1,180; and some
excessive wear and tear to two columns, drywall, baseboards, and
18
painting. But CF LoDo denied liability on all Pacific Express’s other
claims for breach of the Lease.
¶ 40 In its oral findings of fact and conclusions of law, the court
found as follows regarding the claims of excessive wear and tear:
[B]ecause the evidence that was provided of
this, of the damage that is [caused] by [Pacific
Express] primarily . . . came from [the
manager]. And I want to talk about her
testimony with regard to this excessive wear
and tear because it gave the Court a very
troubling insight into her theory as to what [CF
LoDo] caused by way of damage to the
building.
And quite frankly, after I was able to review all
of this, and reflect on her testimony, and
reflect on exactly what it is that she is claiming
from the Defendants here by way of excessive
wear and tear, I was unable to find any portion
of her testimony credible at all.
. . . .
As I go through this and I discuss just how
[Pacific Express] views the wear and tear
claim, this really is a case of an attempted
overreaching by [Pacific Express]. And this
overreaching of the damages that Pacific
Express claims was caused by [CF LoDo] in
this case causes me to question the reliability
of any of the information that [she] testified to.
¶ 41 The court then made specific findings that Pacific Express had
presented no credible evidence to support its claims of excessive
19
wear and tear to the fire escape, handicap ramp, garage wall, most
of the concrete floor, and the ceiling.
¶ 42 The trial court then found:
So the Court finds that . . . the major items of
damage to the property was simply not
supported by any credible evidence presented
by [Pacific Express]. And so therefore, I reject
[Pacific Express’s] theory as to any excessive
wear and tear.
. . . .
So I find that [Pacific Express] has failed to
sustain its burden of proof as to breach of
contract for excessive wear and tear. And
except for the minor items I’ll talk about at the
end, I am going to enter judgment for [CF
LoDo] on this aspect of [Pacific Express’s]
breach of the Lease claim.
¶ 43 The court found, as discussed, that there was no credible
evidence to support Pacific Express’s claim that CF LoDo breached
the Lease by failing to pay increased triple net charges.
¶ 44 The court then found:
[W]ith the exception of what I’m about to say, I
find in favor of [CF LoDo] and against [Pacific
Express] on all of [Pacific Express’s] claims in
this case. I find under the Lease that . . . [CF
LoDo] is a prevailing party, with the exception
of the minor items here.
20
The Defense admitted that they failed to pay
any triple net costs in July, August, and
September of 2016. The triple net cost that is
applicable is the initial estimate of $1,500 per
month for . . . these three months. [CF LoDo]
also admitted that . . . it failed to pay the
September rent. So these triple net costs for
these months and this rent payment shall be
due.
And then the Defense also admitted that there
were some . . . damage to the property that it
would be appropriate and fair for it to pay,
such as the nails that were in the floor . . . .
This is the only damage that was supported,
the damage to the floor from nails or the
screws . . . was $1,180. The Court will grant
that as an element of excessive wear and tear.
However, the other damages to the property
that [CF LoDo] admitted would be appropriate.
There’s some damage to the drywall, there was
some damage to columns in the middle, and
then there was some painting, all of which [CF
LoDo] admitted would be appropriate as
elements of excessive wear and tear. However,
no specific dollar figures could be generated for
the cost of repairing these specific damaged
items.
And as the Court found, [Pacific Express] failed
to present any credible testimony in support of
an excessive wear and tear claim. So while [CF
LoDo] is admitting that it would pay for these
kinds of things, there’s been a failure of
[Pacific Express’s] burden of proof by a
preponderance of the evidence to show what
the cost of these elements of damages would
be.
21
So the only element of damage that the Court
will impose against [CF LoDo] for excessive
wear and tear is the $1,180 for repairing the
concrete floor where the screws and nails were
. . . . So at closing argument, the Defense
stated that after the credit is given for the
$8,600 for the security deposit, there -- there
is $1,680 owing for triple net and rent costs,
and then also $1,180 owing for excessive wear
and tear, for a total damage of $2,760. And
I’m going to grant that in favor of [Pacific
Express] on these discrete items and against
[CF LoDo].
¶ 45 We conclude that the trial court did not abuse its discretion by
determining that CF LoDo was the prevailing party for purposes of
¶ 46 Both CF LoDo and Pacific Express prevailed in part on the
the disputed issues of liability. See Dennis I. Spencer Contractor,
884 P.2d at 332 (“[W]here a party prevails on the disputed main
issue [in a case], even though not to the extent of his original
contention, he will be deemed to be the successful party for the
purpose of taxing costs and attorney’s fees.”) (citation omitted). The
trial court found that CF LoDo was not liable to pay the increased
triple net expenses and was not liable for most of the alleged
22
excessive wear and tear, including excessive wear and tear to the
fire escape, handicap ramp, garage wall, most of the concrete floor,
and the ceiling.
¶ 47 But Pacific Express prevailed on a few — ultimately
undisputed — issues of liability. The trial court found that CF
LoDo was liable to pay one month of unpaid rent and three months
of unpaid triple net expenses at the initial estimate and was liable
for some items of excessive wear and tear to the concrete floor,
drywall, columns, and painting. Pacific Express also prevailed on
whether Anderson was liable for any damages assessed against CF
LoDo as guarantor.
¶ 48 Because both CF LoDo and Pacific Express prevailed in part
on the question of liability, the trial court had proper authority to,
and was in the best position to, determine who the prevailing party
was for the fee-shifting provision of the Lease. See Wheeler, 74 P.3d
at 504.
¶ 49 Yet, Pacific Express contends that it was the prevailing party
because there were only two claims in this case — one against CF
LoDo for breach of the Lease and one against Anderson as
guarantor — and it “was the party in whose favor the verdict on
23
liability was rendered on all of the claims in the case.” We disagree.
Even assuming there were only two claims, Pacific Express ignores
that CF LoDo prevailed in part on the question of liability. The trial
court found that CF LoDo was not liable to pay the increased triple
net expenses and was not liable for most of the claimed excessive
wear and tear. So, because both Pacific Express and CF LoDo
prevailed in part on the question of liability, regardless of how many
claims were brought, the trial court could determine the prevailing
party. See id.
¶ 50 Pacific Express also contends that CF LoDo only prevailed on
some “factual elements in the damages component of [the] breach of
contract claim,” not on the question of liability. We disagree. The
trial court found that CF LoDo did not breach the Lease when it
refused to pay the increased triple net expenses and did not breach
the Lease by causing excessive wear and tear to, among other
things, the fire escape, handicap ramp, garage wall, most of the
concrete floor, and the ceiling. These were findings on whether CF
LoDo was liable for breach of the Lease, not on the question of the
damages owed due to a breach of the Lease.
24
¶ 51 Pacific Express’s reliance on Dennis I. Spencer Contractor for
the proposition that it was the prevailing party is misplaced. In
Dennis I. Spencer Contractor, a contractor brought two claims
against the City of Aurora: one claim for breach of a construction
contract (which did not include a fee-shifting provision) and one
claim for breach of a settlement agreement (which included a
fee-shifting provision). See 884 P.2d at 327. A jury found the City
liable for breach of both the construction contract and the
settlement agreement. After finding that the City’s conduct in
breaching the settlement agreement gave rise to the breach of the
construction contract, the jury only awarded damages to the
contractor for breach of the construction contract. See id. at
327-28, 334. The trial court then determined that because the City
avoided paying damages for its breach of the settlement agreement,
the City was the “prevailing party” under the fee-shifting provision
of the settlement agreement and awarded attorney fees to the City.
Id. at 328. Our supreme court reversed the trial court’s
determination that the City was the “prevailing party,” and
concluded that “where a claim exists for a violation of a contractual
obligation, the party in whose favor the decision or verdict on
25
liability is rendered is the prevailing party for purposes of awarding
attorney fees.” Id. at 327.
¶ 52 But, unlike Dennis I. Spencer Contractor, in which the
contractor prevailed entirely on the question of liability, both Pacific
Express and CF LoDo prevailed in part on the question of liability
under the Lease. So, the trial court could determine, as between
Pacific Express and CF LoDo, the prevailing party. See Wheeler, 74
P.3d at 504.
¶ 53 Pacific Express’s opening brief on appeal provides quotes from
Paragraphs 11, 14, 20(b), 21(a), and 22(a) of the Lease, but Pacific
Express did not argue that, or how, these paragraphs applied.
Instead, in the opening brief, Pacific Express consistently argued
that it was the “prevailing party” under Paragraph 20(f) of the Lease.
In its reply brief, Pacific Express argued that Paragraphs 11, 14,
20(b), 21(a), and 22(a) of the Lease “provide a separate and
independent basis entitling the Landlord to an award of attorney
fees, even if attorney fees are not available under the prevailing
party clause of the Lease,” so “a prevailing party analysis is
unnecessary, and Landlord is entitled to its attorney fees and
costs.”
26
¶ 54 But Pacific Express has not cited to, and we are not aware of,
any place in the record where it raised this argument to the trial
court or where the trial court ruled on this argument. See C.A.R.
28(a)(7)(A) (In the opening brief, the appellant must state “whether
the issue was preserved, and if preserved, the precise location in
the record where the issue was raised and where the court ruled.”);
O’Quinn v. Baca, 250 P.3d 629, 631 (Colo. App. 2010) (concluding
that appellate courts are under “no obligation” to undertake a
search of the record “to determine whether (and, if so, how) issues
had been raised and resolved in the trial courts”). Thus, we will not
address this argument for the first time on appeal. See Kinney v.
Keith, 128 P.3d 297, 310 (Colo. App. 2005) (“Arguments not
presented to or ruled on by the trial court are deemed waived and
cannot be raised for the first time on appeal.”).
III. Pacific Express’s Request for Appellate Attorney Fees and Costs
¶ 55 Pacific Express requests its appellate attorney fees and costs
as the “prevailing party” under C.A.R. 39.1 and the “contractual
fee-shifting agreement in the Lease.” Because Pacific Express has
not prevailed on any issue on appeal, we deny this request.
27
IV. CF LoDo’s Request for Appellate Attorney Fees and Costs
¶ 56 CF LoDo requests its appellate attorney fees and costs as the
prevailing party under Paragraph 20(f) of the Lease. We grant this
request. CF LoDo has prevailed on all issues in this appeal and
therefore is the prevailing party.
¶ 57 We remand the case to the trial court to determine CF LoDo’s
reasonable attorney fees and costs on appeal and to award this
amount to CF LoDo.
V. Conclusion
¶ 58 The judgment is affirmed, and the case is remanded to the
trial court to determine CF LoDo’s reasonable attorney fees and
costs on appeal and to award this amount to CF LoDo as the
prevailing party under Paragraph 20(f) of the Lease.
JUDGE LIPINSKY and JUDGE BROWN concur.