BBG Holding Corp. v. K Capital, LLC et al

Filing 73

FINDINGS OF FACT AND CONCLUSIONS OF LAW by Magistrate Judge Michael E. Hegarty on 7/29/2022. (cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-03268-MEH
BBG HOLDING CORP.,
Plaintiff,
v.
K CAPITAL, LLC, and
MIKHAIL G. KAMINISKI,
Defendants.
_____________________________________________________________________________
ORDER
_____________________________________________________________________________
This lawsuit concerns a failed real estate transaction. At issue are Plaintiff’s claims that K
Capital, LLC (through its principal, Mikhail Kaminski,) breached the contract to buy its property
or alternatively induced Plaintiff’s reliance on false promises that it would buy the property. The
parties tried this action to the Court on May 17 and 18, 2022. Based on the evidence admitted at
the bench trial, the legal briefing, and pursuant to Fed. R. Civ. P. 52, the Court issues this Order
containing its Findings of Facts and Conclusions of Law. The Court rules in Plaintiff’s favor on
its breach of contract claim and in Defendants’ favor on Plaintiff’s promissory estoppel claim.
FINDINGS OF FACT
1.

Plaintiff BBG Holding Corp. is a Colorado corporation that does business in the

State of Colorado as a real estate holding company. Michele Evans is one its three owners. She
also is the corporation’s president and day-to-day operations manager. ECF 72 at 40. Ms. Evans
testified at the bench trial in the role of Plaintiff’s representative and the one who on its behalf
participated in the attempted property sale transaction at issue in this lawsuit. ECF 72 at 40-41.

2.

Plaintiff owns a commercial building located in Avon, Colorado. At the time of the

bench trial, four tenants were renting space in that building. Plaintiff also has its own office there.
ECF 72 at 40-42.
3.

Plaintiff decided to sell the building in September 2019. ECF 72 at 42. Plaintiff

hired Jules Sherwood of Kenai Capital Advisors to sell the property. ECF 72 at 42-43, 189. Mr.
Sherwood advised a sale price of $3,400,000.00, although the record is unclear whether a specific
offer price was included in the listing. ECF 72 at 50, 191. Mr. Sherwood has professional
experience handling multi-million-dollar commercial property sales. ECF 72 at 197, 221-222.
4.

Defendant Mikhail Kaminski describes himself as a real estate professional. ECF

70 at 97, 116. The Court found him to be a very bright witness (ECF 70 at 110) and someone who
speaks plainly and intentionally (ECF 70 at 112-113). In addition, he proceeded with this
transaction with the benefit of his own retained transactional attorney, Dan Wolf. ECF 70 at 20,
104-105; ECF 72 at 72, 137-138, 269. Mr. Kaminski incurred legal costs related to this transaction.
ECF 70 at 98.
5.

The evidence suggests that Mr. Kaminski is familiar with the area where the

property is located. Before 2020, a business partner of Steve Sendor (who would serve as K
Capital, LLC’s broker for the transaction at issue in this lawsuit) helped Mr. Kaminski with an
attempted purchase of another local property. ECF 72 at 266. Mr. Dunn of Kresher Capital (who
would serve as K Capital, LLC’s lender for this transaction) provided Mr. Kaminski financing for
an earlier attempted property purchase. ECF 70 at 34. At trial Mr. Kaminski denied that either he
or K Capital, LLC ever had purchased any property before attempting this transaction (ECF 70 at
91), but the overall evidence suggests to the contrary. Moreover, later in his trial testimony, Mr.
Kaminski expressly described himself as “a real estate professional,” in the same vein as the two

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brokers and Plaintiff. ECF 70 at 97, 116.
6.

Mr. Kaminski is the sole member and manager of Defendant K Capital, LLC, a

business entity located in Minnesota. It is a real estate purchasing company that Mr. Kaminski uses
to enter into contracts for the purchase and sale of real estate. ECF 70 at 75-77.
7.

K Capital, LLC retained NAI Mountain Commercial to represent it in negotiations

to buy the property at issue in this lawsuit. The two signed no formal brokerage contract, although
that is consistent with general practice. The letter of intent (which all parties signed) identified
NAI Mountain Commercial as K Capital, LLC’s broker, thereby signaling the brokerage
relationship. ECF 70 at 7, 10; ECF 72 at 238. NAI Mountain Commercial regarded K Capital, LLC
as its client, and it acted in the fiduciary role of K Capital, LLC’s broker for purposes of this real
estate transaction (ECF 72 at 239-241) for which it communicated with Mr. Kaminski as K Capital,
LLC’s representative (ECF 72 at 242; Plaintiff’s Exhibit 41). Mr. Kaminski authorized NAI
Mountain Commercial to act as the broker for this property purchase. ECF 70 at 78-79. Steve
Sendor was the individual from NAI Mountain Commercial who helped Mr. Kaminski. Mr.
Sendor’s business partner at NAI Mountain Commercial was Erich Schmidt who also had
interactions with Ms. Evans and Mr. Kaminski. ECF 72 at 249.
8.

Generally speaking, NAI Mountain Commercial provided both brokerage and

property management services at the time of this attempted property transaction. It provided
property management services for Plaintiff’s building. ECF 72 at 46. Indeed, Mr. Kaminski
contacted NAI Mountain Commercial through the contact information from its leasing sign at the
property. ECF 72 at 238. NAI Mountain Commercial obtained Plaintiff’s permission to represent
K Capital, LLC as its broker to buy the property. ECF 70 at 5, 8-9; ECF 72 at 238. Neither did K
Capital, LLC object to NAI Mountain Commercial contemporaneously serving both it (as broker)

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and Plaintiff (as property manager). ECF 70 at 79. Section 3.1.2 of the sales contract identified
NAI Mountain Commercial as the building’s property manager. Plaintiff’s Exhibit 12.
9.

Mr. Kaminski expressed his interest in buying the property. That prompted NAI

Mountain Commercial to contact Mr. Sherwood to begin negotiations. ECF 72 at 232.
10.

Plaintiff and K Capital, LLC expressed their initial agreed-upon terms in a letter of

intent. Those terms included K Capital, LLC’s offer of $3,300,000.00. Plaintiff’s Exhibit 11; ECF
72 at 44-45. This was the first inquiry by a potential buyer that resulted in the drafting of a letter
of intent. ECF 72 at 106, 220.
11.

From there the parties proceeded to draft the actual Purchase and Sale Agreement

(“PSA). Plaintiff’s attorney negotiated with Mr. Kaminski’s attorney and drafted the PSA. ECF 72
at 45. The PSA is found in the record as Plaintiff’s Exhibit 12. There is no dispute that (1) both
parties entered the PSA; (2) its effective date was February 6, 2020; (3) it accurately reflects the
parties’ intent; and (4) it created a binding agreement between them. Upon entering the PSA, Mr.
Sherwood removed the property from the market and listed it as “under contract.” ECF 72 at 60,
195-196.
12.

Title Company of the Rockies served as the escrow agent for the transaction.

Plaintiff’ Exhibit 12 at § 2.1.1. The PSA set March 24, 2020 as the closing date, and it created a
series of preliminary deadlines and steps in advance of closing and transferring ownership.
13.

The first step was for K Capital, LLC to deposit $25,000.00 in earnest money with

the escrow agent. Plaintiff’ Exhibit 12 at § 2.1.1. However, should “Purchaser does not deposit the
Earnest Money with Escrow Agent by such date,” then “[t]his Agreement shall automatically
terminate.” Id.
14.

Both parties agree that the deadline for making the initial deposit was Thursday,

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February 13, 2020. ECF 69 at ¶ 20(i); ECF 71 at ¶ 46. On the morning of February 11, 2020, Mr.
Schmidt at NAI Mountain Commercial forwarded an email from the escrow agent to Mr. Kaminski
containing instructions on how to pay the deposit by wire transfer. ECF 72 at 254; Plaintiff’s
Exhibit 40. Mr. Kaminski quickly responded that he was “gonna just run a check over there.” Mr.
Schmidt advised him to deliver the payment a few days early if he planned to pay by check. At
1:00 p.m. on February 13, 2020, Mr. Schmidt asked Mr. Kaminski if he had delivered the earnest
money payment to the escrow agent. Mr. Kaminski answered that it “[w]ill be there this afternoon.”
At 11:00 a.m. on the morning of February 14, 2020, Mr. Sendor asked Mr. Kaminski if he had
delivered the deposit. Mr. Kaminski explained that he remained “on bed rest mostly but I believe
it was dropped today.” ECF 40.
15.

The parties do not dispute K Capital, LLC’s failure to make that deposit timely on

or before February 13, 2020. Nor is there any dispute that the failure was sufficient to trigger the
PSA’s automatic termination provision.
16.

K Capital, LLC did not comply with § 2.1.1. However, on the next day, Friday,

February 14, 2022, Mr. Kaminski delivered to the escrow agent a check in the amount of
$25,000.00. Ms. Evans testified that the delayed payment caused her “absolutely no concern.” ECF
72 at 65. She learned from Mr. Sherwood that Mr. Kaminski had reported “some sort of personal
issue [as the reason] why he couldn’t drop it off on the 13th, and that he was going to drop it off
the next day.” ECF 72 at 66-67. The Court observes that Mr. Kaminski frequently blamed delays
on ill health.
17.

NAI Mountain Commercial did not proceed as if the contract had terminated. ECF

72 at 256. Nor did NAI Mountain Commercial communicate to Mr. Sherwood that the PSA
contract had terminated at the end of the day on February 13, 2020. ECF 72 at 197.

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18.

The $25,000.00 check was in the name of K Capital, LLC (Check No. 6135) and

signed by Mr. Kaminski. ECF 70 at 80. Mr. Kaminski testified at trial that he did not intend for
that money to go toward the PSA’s earnest money deposit requirement. His understanding at that
time, he explained, was that the PSA had terminated. He wrote the check “as a deposit to title”
instead for the purpose of securing a contract amendment. ECF 70 at 81, 84, 109. At his deposition,
by contrast, Mr. Kaminski testified that Check No. 6135 was intended as payment of the PSA’s
first earnest money deposit. ECF 70 at 82.
19.

The bank returned Check No. 6135 for insufficient funds. ECF 70 at 95-96.

20.

Mr. Kaminski signed a second check (Check No. 6138) drawn on K Capital, LLC’s

account. ECF 70 at 83. He paid by corporate check drawn from that account contrary to instructions
to use a cashier’s check. ECF 72 at 256; Plaintiff’s Exhibit 41 at 12. The check was dated Tuesday,
February 25, 2020. Plaintiff’s Exhibit 14. Plaintiff’s mother delivered the check to the escrow
agent on her way driving through the area (from Vail to Beaver Creek). ECF 70 at 111, 123. At
trial Mr. Kaminski repeated that he had made this payment as a step towards later requesting the
PSA’s amendment rather than as payment of the first earnest money deposit as required by the
contract. ECF 70 at 86-87. By contrast, Mr. Kaminski had answered an interrogatory about “why
[he had written] and signed check number 6138 for $25,000.00, to Title Company of the Rockies
on February 25th, 2020” by explaining, “[b]ecause they gave me more time, and we were back on
track.” ECF 70 at 100. At trial, he explained that he meant “back on track” in the sense of amending
the contract. ECF 70 at 100.
21.

Check No. 6138 was returned for insufficient funds on Friday, February 28, 2020

(Plaintiff’s Exhibit 47 at 14) as the result of Mr. Kaminski’s stop-payment request to his bank

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(ECF 70 at 124). At trial Mr. Kaminski denied any intention to write bad checks. 1 He attributed it
to simply grabbing the wrong checkbook (regarding the first check) and to his mother making the
same mistake (regarding the second one). ECF 70 at 110-111. The record evidence shows that K
Capital, LLC’s bank rejected eight of its checks for insufficient funds that it processed during this
same period of time. ECF 70 at 127-133. Mr. Kaminski attributed them to the same reason: that
he had the wrong checkbook with him. Id.
22.

K Capital, LLC retained Kresher Capital, LLC to finance the purchase. Kresher

Capital, LLC is a private, non-bank lender, and Patrick Dunn is its director. ECF 70 at 32. The
retainer agreement required K Capital, LLC to make a $10,000 good faith deposit, for which
Plaintiff delivered a check on February 27, 2020. ECF 70 at 36; Plaintiff’s Exhibits 27 & 30. The
check (Check No. 6137) was drawn on K Capital, LLC’s account and signed by Mr. Kaminski
(the same as the preceding two checks). It was for a total of $20,000.00 for two transactions, the
one at issue in this lawsuit and a separate “Stone Creek” transaction. ECF 70 at 74; Plaintiff’s
Exhibit 46 at 40. The bank returned that check for insufficient funds. Plaintiff’s Exhibit 47 at 12.
23.

Despite the fact that no earnest money actually was on deposit with the escrow

agent, all parties proceeded as if the PSA remained in full force and effect. K Capital, LLC
proceeded with its due diligence inquiries (ECF 70 at 89), the next step in the process of completing
the sale.
24.

The contract gave K Capital, LLC thirty days to obtain and review due diligence

documents and to inspect the building’s condition and suitability. The deadline to complete due

Technically speaking, the fact that the bank returned the checks is immaterial. K Capital, LLC’s
purported payment of the earnest money deposit constitutes valid consideration on its part, even if
the bank returned those checks for insufficient funds. Esecson v. Bushnell, 663 P.2d 258, 260
(Colo. App. 1983).
1

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diligence and inspection activities was March 9, 2020. Plaintiff’s Exhibit 12 at § 3.1.1; Plaintiff’s
Exhibit 20. K Capital, LLC had the right “to terminate this Agreement on or before” March 9,
2020 “for any or no reason.” Thereupon, K Capital, LLC would be refunded the earnest money,
and “neither party shall have any liability to the other except for obligations which expressly
survive termination.” Plaintiff’s Exhibit 12 at § 3.1.1.
25.

During the due diligence contingency time period, K Capital, LLC’s broker, Mr.

Sendor, gathered information about the building from Plaintiff and provided it to K Capital, LLC
and Mr. Kaminski. ECF 72 at 244, 246, 251; Plaintiff’s Exhibit 38; Plaintiff’s Exhibit 41 at 6. This
included “estoppel statements” from the building’s tenants confirming information about the status
of their respective leases. ECF 72 at 62-63; Plaintiff’s Exhibit 30. Plaintiff provided a wide range
of additional records about the property (ECF 72 at 51, 198; Plaintiff’s Exhibit 21) that included
commercial information Plaintiff regarded as confidential (ECF 72 at 52-53). Confidentiality was
of special importance to Plaintiff because Mr. Kaminski was contemporaneously seeking to buy
another commercial property in the area. ECF 72 at 58. Plaintiff purchased a title commitment and
delivered it to K Capital, LLC for inspection. ECF 70 at 27-28; ECF 72 at 52-54, 174, 185-186,
188, 235. Plaintiff provided this information to comply with its contractual obligations. ECF 72 at
199-200. Mr. Sendor recalled no issue or complaint by Mr. Kaminski about not receiving due
diligence investigatory information. ECF 72 at 244-245. Mr. Sendor added that from his
perspective, the emerging COVID pandemic was not a source of concern that adversely affected
the deal. ECF 70 at 13-14.
26.

On February 27, 2020, Mr. Dunn conferred with K Capital, LLC’s broker about

conducting an on-site visit. Plaintiff’s Exhibit 30. Mr. Dunn informally visited the property. His
conversations with Mr. Kaminski led him to believe that K Capital, LLC was under contract to

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buy the building. ECF 70 at 45. Indeed, when Mr. Dunn asked Mr. Kaminski to confirm his interest
in the purchase (before Mr. Dunn undertook the extra effort to find a funding source as the now
emerging COVID pandemic was beginning to reduce available liquidity), Mr. Kaminski answered,
“all good lets keep going.” Plaintiff’s Exhibit 28 [sic]. With that assurance, Mr. Dunn secured
funding to finance the purchase, and “[a]ll was back to normal.” Plaintiff’s Exhibit 29. Mr. Dunn
decided to keep moving forward with financing past March 3, 2020. ECF 70 at 46-48; Plaintiff’s
Exhibit 29. It was Mr. Sendor’s understanding that Mr. Kaminski was refinancing another property
in the area, funds from which K Capital, LLC would apply towards the purchase of Plaintiff’s
property. ECF 72 at 258.
27.

K Capital, LLC provided no notice to any party of any intention to terminate the

PSA pursuant to § 3.1.1. Mr. Kaminski never instructed his broker to terminate the PSA. To the
contrary, Mr. Sendor was trying to keep the deal together for Mr. Kaminski’s benefit. ECF 72 at
258. On February 27, 2020, Mr. Sendor emailed Mr. Kaminski to check on the status of
proceedings; to remind him of the upcoming due diligence and second earnest money deposit
deadlines; and to finalize financing arrangements with Kresher Capital. Mr. Sendor concluded the
email by asking Mr. Kaminski if he was “feeling good about this deal” in the sense of moving
forward with it past the due diligence period and onwards toward closing. ECF 72 at 259-263.
Plaintiff’s Exhibit 48.
28.

Mr. Kaminski responded to Mr. Sendor’s inquiry in the affirmative. He was feeling

good about the deal and wanted to proceed. He rejected Mr. Sendor’s advice to terminate the
contract until he could find the money to pay the deposit. ECF 70 at 18, 20; ECF 72 at 264. Indeed,
on March 2, 2020, Mr. Kaminski emailed Mr. Sendor requesting him to obtain three specified
tenant lease agreements for his lender. ECF 72 at 266-267. Plaintiff’s Exhibit 36. Mr. Kaminski

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also asked Mr. Sendor to arrange a personal meeting with Plaintiff (ECF 72 at 268) as well as
indicated that he was changing lenders (ECF 72 at 268; Plaintiff’s Exhibit 41 at 15).
29.

During this period of time, it was Ms. Evans’ understanding that K Capital, LLC

intended to complete the property purchase. ECF 72 at 70. Likewise, no one told Mr. Dunn that K
Capital, LLC wanted to terminate the PSA. ECF 70 at 50-51. He assumed K Capital, LLC was
under contract when he was working on the financing. ECF 70 at 52.
30.

However, as the due diligence contingency period neared its endpoint, the various

parties involved in the transaction began to doubt K Capital, LLC’s interest in following through.
On March 3, 2020, Mr. Sendor informed Mr. Kaminski that his second check to the escrow agent
also had bounced. Plaintiff’s Exhibit 41 at 15. He accused Mr. Kaminski of “wasting people’s time
and money.” Id.
31.

Mr. Kaminski saw no reason for Mr. Sendor “to be freaking out.” As he saw it, the

earnest money was still “soft.” ECF 41 at 16. By that, Mr. Kaminski meant completely refundable
through March 9, 2020 (as opposed to “hard” when it would convert to liquidated damages), Mr.
Sendor explained at trial. ECF 72 at 270. Mr. Kaminski added that he could use the contract’s fiveday cure period to secure alternative financing. Plaintiff’s Exhibit 41 at 16.
32.

Mr. Dunn had already started work on securing a loan for K Capital, LLC. ECF 70

at 38-45. On March 4, 2020, Mr. Dunn learned that the bank returned the check K Capital, LLC.
had written him to pay the good faith financing deposit for insufficient funds. When Mr. Dunn
informed Mr. Kaminski that the check was bad, Mr. Kaminski answered, “that is weird, give me a
call when your [sic] finished with your discussions and we can handle. Good Luck!!” Plaintiff’s
Exhibit 29.
33.

Mr. Sendor “felt, that at the minimum, [Mr. Kaminski was] not being honest with

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[him].” Mr. Sendor wanted to avoid involvement in any possible fraud or other dishonest act by K
Capital, LLC. ECF 70 at 18-19. Mr. Sendor doubted that Mr. Kaminski was engaging in “a goodfaith effort to actually transact for the contract.” ECF 70 at 19. He suspected some sort of serious
flaw behind Mr. Kaminski’s pursuit of this deal. ECF 70 at 19-21.
34.

On March 3, 2020, Mr. Sendor fired Mr. Kaminski as NAI Mountain Commercial’s

client. Mr. Kaminski told Mr. Sendor to advise others to use him as the contact person for all future
communications regarding the property purchase. Plaintiff’s Exhibit 41 at 16. Later that same
afternoon, Mr. Sendor informed Plaintiff’s broker and others of the terminated agency relationship
and the need to communicate with Mr. Kaminski directly. ECF 72 at 271; Plaintiff’s Exhibit 15.
Although Mr. Sendor had ended his brokerage relationship, he did not perceive the underlying deal
as terminated. To the contrary, he “believe[d] that the contract was still alive.” ECF 72 at 271-272.
Nor did Mr. Sendor tell Mr. Sherwood that K Capital, LLC. was terminating the contract. ECF 72
at 271. Erich Schmidt of NAI Mountain Commercial informed Plaintiff’s representative, Ms.
Evans, that K Capital, LLC had not terminated the PSA and that Mr. Kaminski would be
representing K Capital, LLC for this deal.
35.

Ms. Evans spoke with Mr. Schmidt when she learned that NAI Mountain

Commercial had terminated K Capital, LLC as its client. Mr. Schmidt gave no details about the
reasons for the termination. Ms. Evans also asked Mr. Schmidt if Mr. Kaminski remained
interested in buying the property. Mr. Schmidt answered in the affirmative, explaining that Mr.
Sherwood should contact Mr. Kaminski directly to proceed forward. ECF 72 at 76-77.
36.

Both Mr. Sherwood and Mr. Sendor agreed that it was unusual for a broker to

terminate a client. A broker’s act of firing a client does not necessarily terminate the deal, however.
The client may continue with the transaction without a broker. Ultimately, it is the buyer’s

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prerogative to decide whether to terminate the deal. ECF 72 at 230. Indeed, Mr. Sendor asserted
his right to a commission should the purchase still occur without him. ECF 70 at 22; ECF 72 at
233.
37.

Between March 3 and March 5 of 2020, Mr. Sherwood communicated directly with

Mr. Kaminski about the status of the deal. Plaintiff’s Exhibit 24. Mr. Kaminski informed him that
K Capital, LLC wanted to move forward with the purchase. ECF 72 at 201; Exhibit 25. On March
4, 2020, Mr. Sherwood emailed Mr. Kaminski that he had undertaken steps to secure financing
and was willing to “help make this deal happen.” However, Mr. Sherwood “need[ed]
transparency” and a $25,000.00 earnest money deposit. Plaintiff’s Exhibit 25. Mr. Kaminski did
not say the contract was terminated. ECF 72 at 208-209, 278.
38.

Mr. Sherwood also contacted Mr. Dunn at Kresher Capital, LLC. Mr. Dunn

confirmed that Kresher Capital, LLC was performing its due diligence review of the deal.
39.

On March 4, 2020, the escrow agent informed Plaintiff’s broker, Mr. Sherwood,

that K Capital, LLC’s second check for $25,000.00 (Check No. 6138) had bounced. Plaintiff’s
Exhibit 16.
40.

On March 4, 2020, Ms. Evans emailed Mr. Sherwood to express concern about

paying more in attorney fees “to do the addendum in case [Mr. Kaminski] flakes.” Defendant’s
Exhibit 34. Ms. Evans explained at trial that Mr. Sherwood was considering amending the PSA to
reduce the total escrow deposit from $100,000.00 to $50,000.00 as a way to keep the deal on track.
ECF 72 at 125-126, 169. Mr. Sherwood’s response expressing “the probability of success using
this current buyer” (Defendant’s Exhibit 34) indicates that he and Ms. Evans believed that the deal
remained on track. Ms. Evans confirmed that to be their understanding. ECF 72 at 130, 176. She
believed that Plaintiff was proceeding in compliance with the PSA, and she “interpreted . . . the

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actions of the buyer, K Capital, LLC, [as] also progressing with the transaction.” ECF 72 at 145.
K Capital, LLC never gave notice of any default by Plaintiff. ECF 72 at 187.
41.

On March 9, 2020, Mr. Sherwood asked Mr. Kaminski for an update. Mr. Sherwood

complained that Mr. Kaminski has “only lied to [him] so far” in response to his requests for
information. Mr. Sherwood noted that Mr. Kaminski still had paid no deposit money to the escrow
agent or lender. Mr. Sherwood emphasized the need to communicate something of substance to
Plaintiff in order to keep the deal alive. Alternatively, he asked Mr. Kaminski whether he should
recommend that Plaintiff cancel the contract pursuant to its buyer default clauses. Mr. Kaminski
responded that he was unable to provide a substantive answer at that time but would contact him
on March 10. Mr. Sherwood repeated his request for an update about whether Mr. Kaminski
intended to proceed with the purchase. Plaintiff’s Exhibit 26 at 3.
42.

The third step towards completing the sale involved payment of a second earnest

money deposit. If K Capital, LLC did not exercise its right to terminate the contract during the due
diligence contingency period, then he was required to deposit $75,000.00 with the escrow agent
(thereby raising the earnest money total to $100,000.00). The parties agree that the deadline for
making this second deposit was Monday, March 16, 2020. Plaintiff’s Exhibit 12 at § 2.1.2. K
Capital, LLC did not make this payment.
43.

On Tuesday, March 10, 2020, Mr. Sherwood emailed Mr. Kaminski explaining that

he had been trying to reach him by telephone since the previous Friday without any response. Mr.
Sherwood wanted “to discuss where [Mr. Kaminski] was on the . . . transaction.” Mr. Sherwood
reminded Mr. Kaminski that he still had not paid the initial $25,000.00 earnest money deposit
despite being given “more than five business days to cure that default.” To proceed forward with
the purchase, Mr. Sherwood instructed Mr. Kaminski to deliver a cashier’s check in that amount

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to the escrow agent immediately. Because he had raised no objections during the due diligence
inspection period, he further instructed Mr. Kaminski to deliver a cashier’s check to the escrow
agent by March 16, 2020 in the amount of $75,000.00 for the second earnest money deposit.
Plaintiff’s Exhibit 17. Ms. Evans authorized Mr. Sherwood to send that email, and a copy was sent
to Plaintiff’s attorney. ECF 72 at 71.
44.

On March 11, 2020, Mr. Kaminski informed Mr. Sherwood that he had to travel to

Los Angeles to help his sister who had been in a car accident. On March 16, 2020, Mr. Sherwood
again asked for an update on Mr. Kaminski’s intention. Plaintiff’s Exhibit 26 at 2. Neither K
Capital, LLC nor Mr. Kaminski on its behalf made any earnest money deposit by the March 16,
2020 deadline.
45.

Section 7.2 contains the PSA’s terms for how a seller may remedy a buyer’s default.

First, the seller must give the buyer written notice of its material default (defined as the failure to
perform any of its obligations including required payments but excluding the obligation to proceed
to closing). Upon receiving that notice, the buyer has five business days to cure the default. If the
buyer leaves the default uncured, then the “Seller may terminate this Agreement by providing
written notice of termination to Purchaser.”
46.

Section 7.2 furthers that upon the seller’s invocation of the above termination

option, the “Seller shall be entitled to receive and retain the Earnest Money as liquidated damages
(and not as a penalty or forfeiture) and as Seller’s sole and exclusive remedy and relief hereunder
(except for Surviving Obligations), the Earnest Money shall be automatically forfeited to Seller.”
The Seller obtains the escrow money deposit by demanding it in writing from the escrow agent.
47.

Section 7.2 also provides justification for using the earnest money deposit as

liquidated damages. The provision represents the parties’ agreement that “the actual damages to

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Seller that would result from [the Purchaser’s default] would be extremely difficult to calculate or
establish on the date [of the default].” It reflects their express, negotiated agreement “that the
amount of the Earnest Money constitutes reasonable compensation to Seller for such failure by
Purchaser and shall be disbursed to Seller as liquidated damages in the event of such failure by
Purchaser.” Another express purpose for the liquidated damages provision is to limit the buyer’s
potential liability to the seller should the buyer fail to fulfill its contractual obligations.
48.

After regular business hours on March 18, 2020, Plaintiff’s attorney emailed Mr.

Kaminski a copy of the demand letter that she would be placing in the mail on the next day. In that
letter dated March 19, 2020, Plaintiff’s attorney recalled how K Capital, LLC had “indicated to
the Seller and the Seller’s broker that [it] desired to proceed to Closing and continued discussions
with the Seller in that regard.” Nor had K Capital, LLC raised any title or due diligence objections.
Despite those indications of its willingness to complete the transaction, K Capital, LLC had
defaulted on the PSA’s requirement to deposit a total of $100,000.00 in earnest money with the
escrow agent. Plaintiff’s attorney therefore demanded K Capital, LLC to cure that default by
delivering to the Seller $100,000.00 by March 20, 2020 and to pay the remaining purchase price
on March 24, 2020. Should K Capital, LLC fail to comply, Plaintiff would “exercise all rights
available to it under law and equity to recover its damages.” Plaintiff’s Exhibit 18.
49.

Neither K Capital, LLC nor Mr. Kaminski on its behalf undertook any action to

bring K Capital, LLC into compliance with the PSA. The parties did not proceed to closing and
title to the property did not transfer to K Capital, LLC. ECF 72 at 153.
50.

At trial, Mr. Kaminski admitted to engaging in actions such as securing lending and

statements made to Mr. Sherwood that were consistent with moving towards purchasing the
property. He explains that he did so with the intent of amending the PSA, even if he “was not clear”

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about articulating that intention to the others. ECF 70 at 95. Indeed, he never actually instructed
or requested a contract amendment (although he did speak with his attorney about the matter). ECF
70 at 101-102. Mr. Kaminski also admitted that he never notified the other parties that he was
exercising his right to terminate the contract. He assumed that the automatic termination provision
of § 2.1.1, which caused the PSA to terminate at the end of the day on February 13, 2020, rendered
any subsequent termination notification unnecessary. ECF 70 at 96-97. Nor did he see any practical
reason to inform the brokers of his belief that the PSA had terminated because:
They are both real estate professionals[.] I would have assumed they read the full
contract. They are both in this business, where the contract sometimes gets screwy,
and the deal still gets done.
ECF 70 at 97, 101. He assumed the same of Plaintiff whom he described as “the president of a
three-million-dollar company.” Id.
51.

Promptly after K Capital, LLC failed to bring itself into compliance with the PSA,

Mr. Sherwood relisted the property and placed it back on the market for sale. ECF 72 at 83, 216.
By this point, the commercial property market was trending downward. ECF 72 at 216. Plaintiff
received no inquiries near the $3,300,000.00 that K Capital, LLC had offered. ECF 72 at 83, 90,
216-217. In December 2020, two of the property’s tenants did not renew their leases, and in April
2021, a third tenant—the property’s largest—also departed. ECF 72 at 83. Overall demand in
renting office space was waning, making it difficult for Plaintiff to find replacement tenants. ECF
72 at 85.
52.

Plaintiff claims costs incurred as the result of its effort to sell the property to K

Capital, LLC. Ms. Evans testified that Plaintiff paid between $6,500.00 to $7,000.00 in legal fees
related to the negotiation and drafting of the PSA. ECF 72 at 85. This Court notes that in an email
dated March 4, 2020, Ms. Evans said her attorney fee bill for February was $6,500.00. Defendant’s

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Exhibit 34. Plaintiff paid the property manager $650 to obtain the tenant estoppels. ECF 72 at 62,
85. Ms. Evans claims an undetermined amount of time that she spent on the matter. ECF 72 at 85.
53.

Plaintiff still owns the property. Given the difficulty in finding new tenants, it is

converting some of the space into residential units. Plaintiff has spent $1.6 million to complete
that conversion. ECF 72 at 85, 90.
ANALYSIS
Plaintiff seeks relief under the theories of breach of contract and promissory estoppel. The
burden of proof for both is by the preponderance of the evidence. Hildebrand v. Wilmar Corp.,
No. 19-cv-00067-RM-NRN, 2021 WL 4129453, at *4 (D. Colo. Sept. 10, 2021) (breach of
contract); Zick v. Krob, 872 P.2d 1290, 1295 (Colo. App. 1993) (citing Nicol v. Nelson, 776 P.2d
1144, 1147 (Colo. App. 1989) (promissory estoppel)). As a general matter, “the burden of proof
in any civil action shall be by a preponderance of the evidence.” Colo. Rev. Stat. § 13-25-127(1).
Plaintiff originally brought suit in Colorado state court. Defendants removed the civil action to this
federal court in the District of Colorado.
I.

Breach of Contract
There is no dispute that the PSA automatically terminated at the end of the day on February

13, 2020 pursuant to § 2.1.1. Plaintiff itself regards the contract as automatically terminated. ECF
31 at 5. Moreover, the contract’s automatic termination already has been established as the law of
the case. This Court ruled that “[u]nder the plain language of the PSA, it terminated on February
13, 2020” (ECF 27 at 4) and that “Defendants rightfully assert that the Agreement, by its
provisions, terminated automatically upon their initial default” (ECF 41 at 5). This Court later
affirmed “that the Agreement, by its provisions, terminated automatically under its own terms
upon the initial default.” ECF 58 at 2.

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Plaintiff must establish the existence of a contract to allege its breach. Hildebrand, 2021
WL 4129453 at *4 (listing “the existence of a contract” as the first required element of the cause
of action). Plaintiff relies on the doctrine of readoption to satisfy the first element. That requires
Plaintiff to prove the parties’ intention to revive the PSA contract and bring it back into force.
Stated differently, the parties must have intended to ignore the automatic termination.
A.

Readoption/Ratification

Defendants themselves recognize “readoption” as a principle of contract law. Citing Tritch
v. Norton, 15 P. 680, 688 (Colo. 1887), they regard it as “well-settled that a contract is readopted
if, after termination, the parties act in a way that is consistent with the previous contract’s terms
and conditions.” ECF 31 at 5-6. This Court already has determined that despite the age of that
opinion, the concept that parties may readopt a contract drawn from Tritch applies to this
transaction. ECF 27 at 4-5. The Court cited Emley v. Tenenbone, 255 P. 627, 628 (Colo. 1927) for
the equivalent concept of contract ratification. ECF 41 at 5. The Court already has found Plaintiff’s
claim of readoption or ratification plausible: “The parties’ conduct here appears to establish a
readoption of the PSA, whose express terms thereafter governed the parties’ conduct.” ECF 27 at
5. What remained was the disputed fact of whether “the actions and intent of the parties after the
initial failure of the contract” constitutes readoption. ECF 41 at 5. The Court left the answer to that
question for trial. ECF 58.
Having held that trial and heard the evidence, the Court finds the parties’ conduct to
manifest the intent to readopt the PSA and to bring it back into force despite the automatic
termination. It was K Capital, LLC’s non-payment of the initial earnest money deposit on the
February 13, 2020 deadline that triggered § 2.1.1’s automatic termination provision. While there
is no dispute about the late payment, the parties regarded it as only a technical omission. In the

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days leading up to the deadline, Mr. Kaminski represented to his broker that he in fact would be
making the deposit. He missed that deadline, but only by one day. Mr. Kaminski attributed the
delay to ill health. He did not intend for that check to bounce. Mr. Kaminski’s comments and
actions conveyed his intent to comply with § 2.1.1 in substance.
This Court highlights the context surrounding the contract’s automatic termination because
it lends insight into K Capital, LLC’s subsequent conduct. K Capital, LLC continued forward with
the transaction, following the roadmap that the PSA had created. Neither Mr. Kaminski (on K
Capital, LLC’s behalf) nor any other party involved in the transaction acted as if the contract no
longer existed. The contract’s automatic termination did not affect the parties’ conduct. Mr.
Kaminski made a second attempt to pay the earnest money with a check he believed his bank
would honor. He sought due diligence materials and applied for a loan. Importantly, he expressly
reassured his broker and lender of his intent and desire to buy the property. Moreover, he did so
as someone who is intelligent, knowledgeable about commercial property transactions, and with
the benefit of legal counsel. Mr. Kaminski did not communicate to the others that he was walking
away from the deal, but rather, he reassured them that it remained on track. Both sides’ brokers
attempted to keep the deal alive for as long as they could. It was later when the other parties began
to doubt Mr. Kaminski’s true intent or ability.
Both Plaintiff and K Capital, LLC undertook acts that constitute partial performance of the
PSA. As for K Capital, LLC, the only act that the PSA required of it through the end of due
diligence research period was the payment of the initial earnest money deposit. Technically
speaking, K Capital, LLC did not comply with it because the escrow agent never had that money
actually on deposit. However, K Capital, LLC twice did attempt to make that deposit and in a way
that portrayed to the others its good faith compliance. Moreover, Mr. Kaminski directed the

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delivery of those two checks with his own subjective belief that the bank would honor them. At
trial, Mr. Kaminski expressly denied knowingly and intentionally writing bad checks. Thus, the
evidence shows K Capital, LLC’s intention to perform that material term.
B.

Waiver of Automatic Termination

Viewed from a different perspective, no party objected to the contract’s continued
application. In a previous ruling, this Court cited James H. Moore & Assocs. Realty, Inc. v.
Arrowhead at Vail, 892 P.2d 367, 372 (Colo. App. 1994) for the general rule that a party implicitly
waives a contract term if (1) the party’s conduct manifested an intent to relinquish the right or
privilege that the term created or (2) the party’s actions were inconsistent with the assertion of that
contractually created right. ECF 27 at 5. “In general, a party may waive a contract provision where
the party is ‘entitled to assert a particular right, knows the right exists, but intentionally abandons
that right.” Tarco, Inc. v. Conifer Metro. Distr., 316 P.3d 82, 89 (Colo. App. 2013) (citing Burman
v. Richmond Homes Ltd., 821 P.2d 913, 919 (Colo. App. 1991)). To support a finding of implicit
waiver, the party’s conducting “must be free from ambiguity and clearly manifest the intention not
to assert the benefit.” Tarco, 316 P.3d at 89 (citing Dep’t of Health v. Donahue, 690 P.2d 243, 247
(Colo. 1984)); see also In re Autterson, BAP Nos. CO-14-063 and -064, 2015 WL 6789168, at *46 (10th Cir. 2015). The Court has already ruled that Plaintiff waived the ability to base a breach a
contract claim on K Capital, LLC’s payment of that earnest money deposit with a bad check. ECF
27 at 5. This is because Plaintiff “continued by its course of conduct to proceed with the PSA.” Id.
At issue here is whether the contract’s automatic termination provision likewise was waived.
There are two ways to frame this question. The first is from Plaintiff’s perspective. It asks
whether Plaintiff waived the automatic termination provision as its remedy for K Capital, LLC’s
breach. The issue in GJ&L, Inc. v. CNH Indus. Am., LLC, No. CV 117-179, 2020 WL 1491771, at

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*5-6 (S.D. Ga. Mar. 13, 2020) was whether a manufacturer waived a dealership’s violation of a
particular contract requirement “by not following through” on the contract’s automatic termination
provision. The court left that question for the jury to decide. Implicit in its ruling is that the waiver
doctrine can apply in the automatic termination context. The evidence in this case shows that
Plaintiff waived its right to invoke the PSA’s automatic termination provision in response to K
Capital, LLC’s late earnest money payment.
The second way to view this issue is from K Capital, LLC’s position. In this context, the
question becomes whether K Capital, LLC waived the right to invoke the contract’s automatic
termination as a defense to Plaintiff’s request for redress. This inquiry asks whether the termination
of the contract on the whole can be waived. In Slaughter-Cooper, M.D. v. Kelsey Seybold Med.
Grp. PA, 379 F.3d 285 (5th Cir. 2004), the Fifth Circuit explained that only an existing right may
be waived. A contract that automatically terminated leaves nothing that can be waived, including
the contract’s provision that triggered the automatic termination in the first place. Id. at 290-91.
As Slaughter-Cooper itself emphasizes, it is the parties’ intent that is paramount, 379 F.3d
at 290, and the particular circumstances of the case show K Capital, LLC’s intention to proceed
forward with the transaction. In practical terms, K Capital, LLC ignored the contract’s automatic
termination. However, even if Slaughter-Cooper bars the application of the waiver doctrine in the
automatic termination context, the readoption/ratification doctrine results in the same outcome.
The parties revived the PSA either because they waived its termination or because they readopted
it.
C.

Amendment

Section 9.4 of the contract states that it “may be amended only by a written instrument
executed by the party or parties to be bound thereby.” Plaintiff’s Exhibit 12 at 22. This Court

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already has found this provision does not apply because “there was [not] any amendment here.”
ECF 27 at 5. In other words, no party sought to change any particular contract term. There is
evidence that Mr. Sherwood may have proposed lowering the earnest money total from
$100,000.00 to $50,000.00. However, it appears that Plaintiff resisted that option, and in any event,
Plaintiff never expressed it to K Capital, LLC.
At trial, Mr. Kaminski used contract amendment to reconcile how his ongoing substantive
actions towards completing the deal does not show contract readoption. He said his two attempts
to pay the $25,000.00 earnest money deposit was not motivated by the intent to comply with the
PSA. Rather, he used it to create some sort of status quo after which he could pursue a contract
amendment. The evidence does not corroborate his assertion that he was acting with the subjective
intent to seek the contract’s amendment. All of his actions in furtherance of the transaction were
in perfect alignment with the roadmap that the PSA already had created. Mr. Kaminski did not
describe how he wanted to amend the PSA, and he certainly expressed no such intent to the others
at the time. To the contrary, his words and actions signaled an intent to proceed with the PSA as
is, rather than to change it in some way. Implicit in his testimony that he wanted to amend the PSA
is the intention to proceed with the purchase. There is no need to amend a contract that no longer
exists. If, as Defendants stress and Plaintiff concedes, the PSA did automatically terminate, then
the only way to proceed forward would be either to revive it as the still valid expression of their
intent or if its terms were not acceptable, to draft a whole new agreement.
Defendants’ position relies heavily on the occurrence of the automatic termination that his
late payment of the earnest money deposit caused. In practical effect, Defendants’ position is that
the contract’s automatic termination gave K Capital, LLC the freedom to proceed with the
transaction unilaterally on its own terms without any risk of contractual liability. If the doctrine of

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contract readoption/ratification is ignored, Defendants may be correct. The parties simply would
have been going through the motions of the contract. Plaintiff continued to participate in the
process purely of its own accord. Plaintiff, the brokers, and the lender should have known they
were preceding without a binding contract in place. However, the law does permit the revival of a
terminated contract. Just as the parties’ intent defines whether a contract formed in the first place,
it also defines whether they restored it.
D.

Summary Regarding the Existence of a Contract

The evidence does not support Defendants’ position that (1) the PSA never came back into
force after its automatic termination, (2) an express written amendment pursuant to § 9.4 was the
only way to revive the contract, and (3) because there was no § 9.4 written amendment, there is no
valid, enforceable contract between the parties. Rather, the parties’ conduct reflects the intent to
proceed with the PSA either by waiving the automatic breach or by restoring the PSA as their
agreement post-termination. Consequently, the Court finds that the PSA was a binding contract
between the parties, and thus, Plaintiff establishes the first element of a breach of contract claim.
E.

Defendant’s Failure to Meet Its Contractual Obligation

The next two elements of the cause of action are (2) Plaintiff’s performance of the contract
but (3) Defendant’s failure to do so. Hildebrand, 2021 WL 4129453 at *4. Plaintiff performed its
pre-closing obligations under the contract. K Capital, LLC, by contrast, did not. It “materially
defaulted in the performance of any of its obligations under this Agreement other than its
obligation to proceed to Closing,” as § 7.2 provides, when it failed to pay the full $100,000.00
earnest money deposit. Because K Capital, LLC did not exercise its right to terminate the contract
during the due diligence contingency period, § 2.1.2 required it to deposit $75,000.00 with the
escrow agent in addition to the $25,000.00 that already was outstanding (thereby raising the earnest

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money total to $100,000.00). The parties agree that K Capital, LLC did not make this payment by
the March 16, 2020 deadline. Nor did K Capital, LLC cure that default despite being given the
opportunity to do so.
F.

Remedy

The fourth—and final—element of the claim requires Plaintiff to have suffered damages
as a result of the breach. Hildebrand, 2021 WL 4129453 at *4. Plaintiff does not seek specific
performance of the contract. Plaintiff limits its request for relief to what the PSA permits at § 7.2,
which is conversion of the total required earnest money into liquidated damages. One reading of
§ 7.2 is that Plaintiff may recover only what is actually on deposit with the escrow agent. Because
the escrow agent has no money on deposit, there would be nothing for the escrow agent to transfer
to Plaintiff. However, Defendants do not raise this argument. Nor does this Court construe § 7.2
so narrowly as to restrict Plaintiff’s recovery only to what is actually on deposit with the escrow
agent. Section 7.2 also could be read as using the earnest money total as the benchmark for
calculating the amount of liquated damages for which a defaulting buyer is liable. That was the
approach taken in Esecson, 663 P.2d at 261, in which the Colorado Court of Appeals enforced a
liquidated damages clause even though the check that the buyer presented to pay the earnest money
deposit was returned for insufficient funds.
This Court may enforce the agreed-upon $100,000.00 liquidated damages clause if it does
not constitute a penalty. As a general rule, a court may not award liquidated damages if the amount
is excessive in relation to the breach. In re Market Ctr. E. Retail Prop., Inc., 433 B.R. 335, 359
(D.N.M. 2010). Although $100,000.00 is a significant amount of money on its own, it is not when
considered in the context of property contract at issue. It is only three percent of what K Capital,
LLC offered to buy the property. Moreover, Mr. Kaminski (through whom K Capital, LLC acted)

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is a self-described real estate professional who was (or should have been) knowledgeable about
the commercial property buying process. Plaintiff’s broker initially did not doubt K Capital, LLC’s
ability to pay the initial deposit because “[m]ost parties offering on a $3.3 million property have
$25,000.00 to put up for earnest money.” ECF 72 at 196. The total $100,000.00 deposit likewise
is a comparatively insubstantial sum of money to a buyer of a multi-million-dollar property.
Additional factors support finding $100,000.00 to be a reasonable liquidated damages
amount. Mr. Kaminski is a sophisticated actor who negotiated the contract with the additional
benefit of legal counsel. By signing the contract on K Capital, LLC’s behalf, Mr. Kaminski
accepted that valuation as a reasonable form of redress. K Capital, LLC continued to pursue the
transaction through the end of the due diligence period while consistently indicating through
statements and actions the intent to complete it. Ultimately, K Capital, LLC did not follow through.
Plaintiff incurred relatively little direct expense as the result. However, there also is an indirect
cost that is not quantifiable. Potentially, Plaintiff could have sold the property to someone else had
the listing remained open. In light of the overall circumstances, the Court does not find
$100,000.00 to constitute an unenforceable penalty.
II.

Promissory Estoppel
Plaintiff raises promissory estoppel as an alternative claim for relief should the Court find

that no binding contract existed after the automatic termination. Plaintiff argues that it did not relist the property because it relied on K Capital, LLC’s post-termination statements and actions that
the deal would go forward. As redress, Plaintiff asks this Court to enforce that promise and to
compel K Capital, LLC to pay it the $100,000.00 sum.
This Court need not determine whether Plaintiff proves the elements of a promissory
estoppel claim. The finding that the parties readopted the PSA contract and are bound by its terms

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renders the promissory estoppel claim moot. “[U]nder Colorado law, ‘recovery on a theory of
promissory estoppel is incompatible with the existence of an enforceable contract.’” Allred v.
Innova Emergency Med. Assocs., PC, No. 18-cv-03097-DDD-NRN, 2020 WL 3259249, at *5 (D.
Colo. June 16, 2020) (citing Wheat Ridge Urban Renewal Auth. V. Cornerstone Grp. XXII, LLC,
176 F.3d 737, 741 (Colo. 2007)).
CONCLUSIONS OF LAW
I.

As the parties explain in their Final Pretrial Order, this Court has jurisdiction over the

subject matter of this lawsuit pursuant to 28 U.S.C. § 1332. The citizenship of the parties is diverse
(Plaintiff is a citizen of Colorado and Defendants are citizens of Minnesota), and the amount in
controversy exceeds $75,000.00.
II.

Venue is proper under 28 U.S.C. § 1391 because Plaintiff is a citizen of Colorado; the

property subject of the transaction is located in Colorado; and the disputed actions took place in
Colorado.
III.

Because this Court has diversity jurisdiction and because Colorado is the forum state,

Colorado substantive law governs the parties’ dispute.
IV.

Plaintiff proves by a preponderance of the evidence the elements needed to prevail on its

breach of contract claim. First, a valid contract existed between them: the parties readopted the
PSA as a binding contract between them after its automatic termination on February 13, 2020.
Second, Plaintiff performed its obligations under the contract. Third, Defendant K Capital, LLC
did not perform its obligations under the contract when it failed to deposit $100,000.00 in earnest
money with the escrow agent by March 16, 2020. Nor did K Capital, LLC cure that default despite
being given the opportunity to do so. Fourth, the PSA permits Plaintiff to recover $100,000.00 in

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liquidated damages, an amount which the evidence shows to be neither punitive nor excessive, as
the consequent for Defendant’s uncured default and breach of contract.
V.

Because Plaintiff prevails on its breach of contract claim, its alternative claim of

promissory estoppel fails as a matter of law.
VI.

Plaintiff brings both its breach of contract and promissory estoppel claims against only

Defendant K Capital, LLC. As such, Plaintiff prevails on no claim for relief against Defendant
Mikhail Kaminski.
VII.

As the prevailing party on its breach of contract claim, Section 9.9 of the PSA entitles

Plaintiff to an award of reasonable attorney fees and expenses against Defendant K Capital, LLC.
CONCLUSION
The Clerk of Court shall enter Final Judgment in Plaintiff’s favor in the total amount of
$100,000.00 in liquidated damages on its breach of contract claim. The Clerk of Court shall enter
Final Judgment in Defendant’s favor on Plaintiff’s promissory estoppel claim.
Plaintiff shall file a motion for determination of the amount of that reasonable attorney fee
and expense award in compliance with Fed. R. Civ. P. 54(d)(2) and D.C.COLO.LCivR 54.3 on or
before August 26, 2022.
The Clerk of Court shall close this civil action.
SO ORDERED.
Dated at Denver, Colorado, this 29th day of July, 2022.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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