West Ridge Group v. First Trust Company of Onaga

FILED
United States Court of Appeals
Tenth Circuit

February 23, 2011
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

WEST RIDGE GROUP, LLC and DOES
1-100,

Plaintiffs-Appellants,
v.

FIRST TRUST COMPANY OF ONAGA;
ROGER CROUCH; MORRILL and No. 09-1358
JANES BANK and TRUST; NEILL H. (D.C. No. 1:07-CV-01587-WYD-BNB)
TAYLOR; and ROES [DOES] 2-100, (Dist. of Colorado)

Defendants-Appellees.

______________

PHILLIP ANSELMO,

Attorney - Appellant.

ORDER AND JUDGMENT*

Before HARTZ, HOLLOWAY and TACHA, Circuit Judges.

This litigation arises from a real estate transaction. Plaintiff-appellant West Ridge

Group, LLC commenced the action in state court in Colorado against two individuals –

Neill H. Taylor and Roger Crouch – and two banks – the First Trust Company of Onaga,

*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
and Morrill and Janes Bank and Trust (the Bank Defendants). The Defendants removed

the action to federal district court on the ground that the claims pleaded included one for

violation of the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. §§ 2601-

2617, and thus came within the federal district court’s jurisdiction.

The federal district court eventually granted the Defendants’ motions for summary

judgment in substantial part, holding that the Bank Defendants were entitled to summary

judgment on all claims against them and that Defendants Crouch and Taylor were entitled

to summary judgment on all claims except a breach of contract claim. After a bench trial,

the district court granted judgment for Crouch and Taylor on that claim as well. Plaintiff

brings this appeal.1

I

In 2000, Plaintiff West Ridge Group purchased a property of about 160 acres in

Delta County, Colorado, from Head Acres, Inc. In the transaction, West Ridge gave a

promissory note in the original amount of $530,000 for a portion of the purchase price

and executed a deed of trust on the real property to secure the debt. The description of

the property in the deed of trust refers to “parcel one” and “parcel two,” with parcel two

further described as including “parcel A” and “parcel B.” A hand-drawn diagram

introduced in evidence in this litigation shows the property divided into four parcels,

1
Plaintiff earlier attempted to appeal from the summary judgment ruling, but
quickly dismissed that appeal. Plaintiff separately sought in this court a writ of
mandamus to compel the district court to grant a jury trial on the breach of contract claim
and to reverse the summary judgment against it on several claims. This court denied the
writ.

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labeled A, B, C, and D. The dispute underlying this litigation concerns “Parcel C,” which

consists of about 40 acres, and the following provision of the note:

Borrower may pay, in addition to other required and scheduled payments, a
pro-rata share of any outstanding indebtedness to obtain a corresponding
pro-rata partial release of the aforesaid deed of trust, at any time.

In 2004, Crouch and Taylor purchased the note from Head Acres.

Soon after purchasing the property, Plaintiff had begun construction of a lodge on

Parcel C, which was planned to be the housing portion of a “dude ranch” operation.

Construction was slowed for several years by difficulty in obtaining financing, but during

this time Plaintiff proceeded to the extent that it could finance the project itself. Then, in

2006, Plaintiff was able to obtain a loan to complete the lodge. The new lender, Farm

Credit Services, required a first mortgage on Parcel C as a condition for the loan. Thus,

Plaintiff contacted Crouch and Taylor with a request to repay a portion of the debt in

exchange for a release of the deed of trust on Parcel C.

Plaintiff proposed paying one-fourth of the outstanding balance of the loan in

exchange for the release of the deed of trust as to Parcel C, basing its offer on the fact that

Parcel C represented about one-fourth of the land subject to the deed of trust. Crouch and

Taylor rejected that proposal, and eventually obtained an appraisal of Parcel C and the

remainder of the ranch. That appraisal estimated the value of Parcel C at about four

million dollars, with the remainder of the ranch valued at about $300,000. Using the ratio

of the appraised values, Crouch and Taylor offered to release Parcel C for $476,795.53,

plus legal and appraisal fees of slightly more than $4,600.00. The balance due on the

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note at the time was calculated to be $523,378.85.

At some point, the proceeds of the Farm Credit loan were placed in escrow. In

January 2007, Crouch and Taylor effected the withdrawal from the escrow account of a

sum equal to the amount they claimed for the partial release of the deed of trust plus their

claimed expenses, and executed a release of the deed of trust as to Parcel C. Plaintiff

alleges that this was done without notice to it. Plaintiff commenced this litigation some

months later.

II

The district court found that Plaintiff had waived trial by jury. On motions for

summary judgment by all of the Defendants, the court found in favor of the Bank

Defendants on all claims and granted the motions of Defendant Crouch and Defendant

Taylor on all claims except the breach of contract claim. That claim was tried to the court

over two days. After trial, the judge issued findings and conclusions and entered

judgment in favor of Crouch and Taylor.

III

A

Among the plethora of issues Plaintiff raises – or at least alludes to – on appeal,

the denial of trial by jury is last in the opening brief. But because reversal on this issue

would moot a number of other issues for purposes of this appeal, we will address it first.

Plaintiff contends that it was wrongfully deprived of its right to a jury trial on all of

its claims. Plaintiff’s motion for jury trial was referred to a magistrate judge for initial

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consideration, along with a motion by the Bank Defendants to strike Plaintiff’s untimely

jury demand. The magistrate judge denied Plaintiff’s motion and granted the motion of

the Bank Defendants. Because we, like the district judge, find the magistrate judge’s

analysis comprehensive and persuasive, we will summarize it in detail.

In a twelve-page order addressing these cross-motions, the magistrate judge first

reviewed the relevant procedural chronology. Plaintiff filed this action in state court on

May 18, 2007. Defendants filed notice of removal to federal court on July 26, 2007.2 On

October 11, 2007, the parties agreed to a scheduling order in which they stated that they

anticipated a “3-5 day bench trial.” Plaintiff filed a notice of demand for jury trial on July

13, 2008, which, the magistrate judge noted, was nearly ten months after the last pleading

had been filed in the case. Two weeks after filing the demand, the Plaintiff filed a motion

for jury trial.

Under Fed. R. Civ. P. 81(c)(3)(A), the magistrate judge noted, Plaintiff could have

filed a demand for jury trial in state court before removal, and that demand would have

been sufficient after removal. Plaintiff, however, had not done so. As a result, the issue

was governed by Fed. R. Civ. P. 38 and 39. Under Rule 38(d), failure to make a timely

demand for jury trial is a waiver.3 But under Rule 39(b), the trial court may nevertheless

2
Defendant Taylor had answered and filed a counterclaim for abuse of process
before removal; the other Defendants filed answers after removal (and Crouch also filed a
counterclaim for abuse of process).
3
Rule 38(b) provides, in pertinent part, that a party may demand a jury trial by
“serving the other parties with a written demand – which may be included in a pleading –
no later than 14 days after the last pleading directed to the issue is served” and filing the

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grant a jury trial “on motion” and “on any issue for which a jury might have been

demanded.”

The magistrate judge noted that district courts should exercise their discretion to

grant motions for jury trials under Rule 39(b) absent strong and compelling reasons not to

do so. See Nissan Motor Corp v. Burciaga, 982 F.2d 408, 409 (10th Cir. 1992). On the

other hand, it is not an abuse of discretion to deny a Rule 39(b) motion when the failure to

timely demand a jury is the result of “mere inadvertence.” Dill v. City of Edmond, 155

F.3d 1193, 1208 (10th Cir. 1998).

The magistrate judge found that a “strong and compelling reason” existed in this

case for denying the belated jury request – the fact that Plaintiff had early in the case

consented to a non-jury trial in the scheduling order. The late request for a jury “is based

on an apparent change of strategy,” the magistrate judge said, and such a deliberate

waiver of the right to a jury that is followed by a change of tactics is “even less

justification than mere inadvertence.”

Even apart from the express waiver, the magistrate judge reasoned, the late jury

demand should be rejected due to the excuses offered by Plaintiff’s counsel. These

included that he was inexperienced in federal court; that he was unfamiliar with the

“new” federal rules; and that Defendants had engaged in “forum shopping” by removing

the case to federal court, inter alia. Most of these excuses amounted to inadvertence, the

magistrate judge concluded. There was no improper “forum shopping” involved in the

demand with the court.

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Defendants’ exercise of their right to remove the case to federal court. The length of

Plaintiff’s delay and the apparent fact that the request was based on a change of strategy

were determinative, the magistrate judge concluded.

Finally, the magistrate judge noted the “cryptic” argument Plaintiff made. Plaintiff

had asserted that there were “extant several pleadings motions” (apparently referring to

motions Plaintiff had filed in response to counterclaims by Taylor and Crouch), and that

if its motion to dismiss the counterclaims were denied, it would be required to answer the

counterclaims, following which it would have ten days to demand a jury trial. The

magistrate judge first noted that it was unclear what “pleading motions” were referred to

in this contention.4

In any event, Plaintiff had never answered the counterclaims, and Defendants had

not moved for default. The magistrate judge concluded that the parties had treated the

Plaintiff’s various motions as a general denial of the counterclaims and that he would

“deem” the allegations denied and not require an answer. Contrary to the assertion on

which Plaintiff’s argument was based, there were no pending motions addressing the

counterclaims which would allow further pleadings by the Plaintiff. Moreover, even if

there were, that would only permit the Plaintiff to demand a jury trial as to matters raised

4
Three separate filings with various labels had been stricken by the district judge
for failure to comply with the judge’s practice standards and another had been denied
without prejudice when the case had been administratively closed (during a time when
Plaintiff’s counsel had given notice that he would be in Africa doing humanitarian work
and would not always be able to timely respond to the court or to counsel for
Defendants).

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in the counterclaims. It would not permit what Plaintiff desired: another opportunity to

demand a jury trial on the Plaintiff’s claims.

In its opening brief, Plaintiff discusses only the procedural tangle (which was

apparently of its own making) that it asserts had extended the time for making a jury

demand, mentioning neither the finding that it had affirmatively waived trial by jury early

in the proceedings nor the inference that its change of position was tactical. In their brief,

Defendants rely in part on Plaintiff’s express waiver of trial by jury in the scheduling

order. In its reply brief, Plaintiff alleges that Defendants “snuck this in the version [of the

scheduling order] adopted by the court . . . .” This scurrilous allegation is not supported

by any reference to facts of record.

We review the trial court’s denial of an untimely jury demand for abuse of

discretion. See Dill v. City of Edmond, 155 F.3d 1193, 1208 (10th Cir. 1998) (no abuse of

discretion in denial of Rule 39(b) motion where untimeliness of jury demand was due to

“inadvertence or oversight”); Nissan Motor Corp v. Burciaga, 982 F.2d 408, 409 (10th

Cir. 1992) (not an abuse of discretion to deny Rule 39(b) motion when failure to make

timely demand results from “mere inadvertence”). Consistent with these holdings, we

find no abuse of discretion in this case.

Plaintiff’s argument here is significantly weaker than those that were found

insufficient in the two cases just cited. Plaintiff has made no response to the district

court’s finding that the belated jury demand resulted from a change of litigation strategy.

The district court’s finding that Plaintiff had intentionally waived jury trial in the

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scheduling order was not addressed in Plaintiff’s opening brief, resulting in waiver of that

issue on appeal. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th

Cir. 1994). Addressing the issue only in the reply brief is not acceptable, because it does

not permit the other side to respond. See Stump v. Gates, 211 F.3d 527, 533 (10th Cir.

2000). And addressing the issue in the reply brief by means of a scurrilous allegation

unsupported by the record is simply beyond the pale. And we have not even addressed

counsel’s attempts in the district court to excuse his inadvertence by claiming ignorance

of the Federal Rules of Civil Procedure and of the Local Rules of the District of

Colorado, which necessarily involved an admission that Plaintiff’s counsel had violated

his professional duties to his client and the requirements for admission to practice before

the district court.

Because Plaintiff has made no legitimate attempt to respond to the finding that it

had intentionally waived its right to trial by jury and because all other facts and

circumstances also lead to this conclusion, we find no abuse of discretion in the denial of

trial by jury.

B

We next address another procedural issue which, if there were any merit to it,

might impact our analysis of the substantive issues. In analyzing the cross-motions for

summary judgment, the district court first considered the Defendants’ motion to strike the

affidavit of Joseph Cisler, which Plaintiff had submitted in support of its brief in

opposition to the Defendants’ motion.

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 The Defendants’ motion did not actually ask the court to strike the affidavit in its

entirety, but listed specific paragraphs of the affidavit that, Defendants contended, did not

state facts that would be admissible in evidence. More specifically, Defendants

contended that certain portions of the affidavit contained only hearsay statements rather

than statements based on personal knowledge, that certain portions contained only

“generalized and conclusory statements” that were not admissible evidence, and that other

paragraphs improperly referred to documents that were not attached to the affidavit.

Defendants objected to a number of paragraphs on both of the first two grounds just

stated, and all of the paragraphs objected to on the third ground had also been objected to

on one or both of the first two grounds. The district judge agreed with Defendants’

contentions and struck all portions of the affidavit that Defendants had challenged.

Decisions on the admissibility of evidence are reviewed for abuse of discretion.

See, e.g., Cartier v. Jackson, 59 F.3d 1046, 1048 (10th Cir. 1995). We see no abuse in

the ruling at issue here.

Plaintiff’s appellate argument on this issue is fundamentally flawed. Plaintiff

begins by mischaracterizing the district judge’s ruling: “The Judge ruled that because Mr.

Cisler is not a member of [West Ridge Group] that his affidavit is hearsay and

inadmissible.” Opening Brief at 21. This fictitious basis for the ruling would of course

be unsupported in the law of evidence. Plaintiff repeats the error, phrased slightly

differently, in its Reply Brief at 8.

Plaintiff further asserts that it was error to strike the affidavit without granting

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leave to amend, citing Fed. R. Civ. P. 15(a). That rule addresses amendments to

pleadings, not affidavits, and is inapplicable here on its face. Moreover, Plaintiff does not

say – and the record does not reveal – that leave to amend was sought in the district court.

What Plaintiff does not assert on appeal is any reasoned basis for the contention

that the district court erred. Not a single paragraph of the affidavit is specifically asserted

to have been a statement admissible in evidence, for example. Moreover, most of the

issues that were decided against Plaintiff on summary judgment were, as our analysis

infra will show, clearly correct rulings of law on which the Cisler affidavit, had it been

admitted in its entirety, would have been of no assistance to Plaintiff or to the court.5

C

Plaintiff argues that the district court erred in dismissing its claim of negligence

and in disallowing punitive damages, two of the rulings made on Defendants’ motions for

summary judgment. We conclude that the district court’s rulings were correct. In

Colorado, a party to a contract who suffers economic loss from an alleged breach may not

bring an action in tort, such as a negligence action, unless a duty independent of the

contract existed and was also breached. Town of Alma v. Azco Const., Inc., 10 P.3d 1256,

1264 (Colo. 2000). Plaintiff makes a conclusory statement that there exists in this case a

duty of care independent of any contractual obligations, without specifying what duty that

might be and without further explication.

5
Also, our record review reveals that when the breach of contract claim was tried
to the court, Plaintiff was able to establish through admissible evidence many of the
points that were included in the Cisler affidavit.

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 We do note, nevertheless, that Plaintiff makes a passing reference to the

“methodology of the appraisals and the conclusions reached.” As we discuss infra,

allegations by Plaintiff about the appraisal process are certainly troubling and, unlike far

too many of the allegations and contentions advanced by Plaintiff in this court and in the

district court, these allegations do find some support in the evidence. But Plaintiff does

not support this reference with any legal argument as to whether or why the appraisal

process should be considered to be independent of the contractual relationship. Thus,

Plaintiff fails to present an adequate argument on this issue, and we can only affirm the

district court. See Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1547 (10th Cir. 1995).

Plaintiff makes a similarly deficient presentation in support of its contention that it

should have been allowed to claim punitive damages. Because we hold that Plaintiff has

failed to show reversible error that would resuscitate any claim under which punitive

damages could be recovered, we affirm the district court on this point as well. We note,

additionally, that in the four sentences devoted to the presentation of this issue, Plaintiff

refers to an action for injury to property and to a fraud claim. We have found no assertion

of such claims in the record.

D

Plaintiff addresses four sentences in its opening brief to its claim under the Real

Estate Settlement Procedures Act, 12 U.S.C. §§ 2601-2617. As with a number of the

issues touched on in this appeal, the briefing is inadequate. First, as the district court

noted, RESPA is inapplicable to commercial transactions. Plaintiff’s argument simply

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assumes that this court should apply the procedural protections of the act without stating,

much less discussing, the coverage of the act and why it could be held to apply here. We

decline to make the argument for Plaintiff.

Plaintiff does offer one reason – a totally specious one – for applying RESPA here.

It says that the district court had determined that the act applied when it denied Plaintiff’s

motion to remand the case to state court. Counsel does not consider the difference

between pleading a claim and offering evidence to support the claim in response to a

motion for summary judgment. The district court previously had ruled, in consideration

of the Plaintiff’s motion to remand the case to state court, that Plaintiff had alleged a

claim under RESPA. On summary judgment, the judge pointed out that the prior ruling

was not on the merits. We agree and need say no more. Plaintiff has not provided any

authority that would lead us to conclude that the district court erred in its ruling on this

claim, and we are quite certain that the ruling was correct.

E

Plaintiff also alleged injury from violation by the Defendants of the Colorado

Unfair Practices Act, Colo. Rev. Stat. §§ 6-2-101 et. seq. The district court very briefly

noted a number of reasons for granting summary judgment for the Defendants on this

claim. First, the court noted that, while Plaintiff alleged that “Defendants” were in the

business of making loans and holding notes, it was unclear to which Defendants the

allegations referred. Moreover, Plaintiff proffered no evidence in the district court to

support that assertion. But even if that assertion were assumed to be true, the district

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judge continued, Plaintiff had not attempted “to tie any alleged action or inaction by any

of the Defendants to conduct prohibited” by the state statutes. Plaintiff had “made no

attempt,” the judge said, to articulate a “challenged practice,” i.e., the conduct underlying

the claim.

In addition, an element of a claim under the state act is that the defendant’s “unfair

or deceptive trade practice” be one that “significantly impacts the public as actual or

potential consumers of the defendant’s goods, services, or property . . . .” Hall v. Walter,

969 P.2d 224, 235 (Colo. 1998). Plaintiff failed to show that any genuine issue of

material fact existed as to whether these Defendants’ actions significantly affected the

public so as to bring the claim within the purview of the act, the judge held.

On appeal, to convince us that the district judge erred in these holdings, Plaintiff

repeats, without citation to the record, that “the evidence” shows that “defendants are in

the business of making loans and holding notes and trust deeds.” This is followed by the

bald assertion that at least half-a-dozen loans “to people in the public were extant” during

the time that Plaintiff’s note was outstanding. Plaintiff concludes that this is “sufficient

public impact” for liability under the state act. Neither evidence nor legal authority is

provided to support these conclusory statements.

We will not discuss this issue further. It is the appellant’s duty to provide an

argument supported by appropriate citations to the record and legal authorities.

F

We next address Plaintiff’s contentions that the trial court erred in granting

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summary judgment for the Defendants on two claims for equitable relief. Plaintiff had

sought recovery for unjust enrichment and an accounting, both equitable remedies.

Unjust enrichment is a claim in quasi-contract based on principles of restitution.

DCB Constr. Co. v. Central City Devp. Co., 965 P.2d 115, 118 (Colo. 1998) (en banc). It

is a “remedy designed to avoid benefit to one to the unfair detriment of another.”

Salzman v. Bachrach, 996 P.2d 1263, 1265 (Colo. 2000) (en banc). But it is a remedy

designed for circumstances in which other remedies are unavailable. As such, it is not

available as a mere alternative legal theory when the subject is covered by an express

contract. Interbank Investments, LLC v. Eagle River Water & San. Dist., 77 P.3d 814,

819 (Colo. App. 2003). This was the reasoning of the district court in granting summary

judgment for Defendants on this claim.

We conclude that the district court was correct. Plaintiff presents an inadequate

argument that fails to address the linchpin of the district court’s ruling.

As to Plaintiff’s claim for an accounting, the district court noted that Plaintiff was

required to prove both a demand for an accounting and a refusal to comply by the

Defendants. Plaintiff had not provided evidence that either of these requirements had

been met, so the district court granted summary judgment to the Defendants on that claim.

Plaintiff simply asserts, in its opening brief, that it did demand an accounting and

that Defendants “never did properly respond.” No evidence is cited to support these

assertions. Once again, Plaintiff has failed to properly present an issue for our review,

and we can only affirm the district court’s ruling on the issue.

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 G

We next consider Plaintiff’s arguments addressed to the district court’s grant of

summary judgment in favor of the Bank Defendants. The district court found that there

was no evidence of any contractual relationship between the Plaintiff and the Bank

Defendants and so granted summary judgment for the Bank Defendants on the breach of

contract claim. As for tort claims, the judge had granted summary judgment for all

Defendants on all the Plaintiff’s assorted theories. Even though this obviously left no

basis for any liability of the Bank Defendants, the district judge commented further on

Plaintiff’s theories. The judge noted that Plaintiff argued for liability on the basis of

respondeat superior, but Plaintiff contradicted itself by arguing in its briefing that the

Bank Defendants were both employer and employee.

In its attempts to identify error in the district court’s grant of summary judgment to

the Bank Defendants, Plaintiff first asserts that the two banks are really one because, it

says, they have a common parent company.6 This is patently frivolous.7

The district judge found that there was no contract between the Plaintiff and the

Defendant Banks. Plaintiff does not contend otherwise on appeal. The district judge said

6
Because it did not establish the basis for this assertion in the district court, Plaintiff asks
this court to take judicial notice of this fact, citing public sources. We need not consider whether
this is the type of fact of which judicial notice can be taken because standing alone it has no
relevance whatsoever.
7
Of course, under limited circumstances, two separate corporations with a common
parent could be treated as a single entity under the law. But the mere fact of common
ownership comes nowhere close to establishing the circumstances under which corporate
form could be disregarded, a basic tenet of the law of corporations.

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that Plaintiff contradicted itself as to whether the Defendant Banks were agents with

Crouch and Taylor being the principals, or the other way round. On appeal, Plaintiff says

it does not matter and goes on to discuss the potential liability of fiduciaries in two

reported ERISA cases. We fail to see how this is relevant to the case before us. Most

importantly, we have held that the district court correctly granted summary judgment for

the Defendants on all tort theories. As a result, there is simply no claim under which the

Bank Defendants could be liable to Plaintiff.

H

We have finally arrived at the single claim that lies at the heart of the matter:

Plaintiff’s claim against Crouch and Taylor for breach of contract. Our review is de novo

because the district court was interpreting a contract, including deciding whether the

contract was ambiguous, both of which are questions of law.

The dispute in the district court was primarily over the interpretation of paragraph

7 of the note, which we quoted earlier in this opinion but will quote again for

convenience:

Borrower may pay, in addition to other required and scheduled payments, a
pro-rata share of any outstanding indebtedness to obtain a corresponding
pro-rata partial release of the aforesaid deed of trust, at any time.

The parties’ positions on the interpretation of this provision were established in the

communications leading up to the partial payment and resulting partial release and have

not changed during the litigation. Plaintiff insists that the provision is a “straight dollars-

for-acres” arrangement, while Crouch and Taylor maintain that “pro rata” should be

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understood as a reference to the relative value of the parcel to be released compared to the

entire property.

The district judge found that paragraph 7, in its “plain and ordinary meaning,” did

not encompass Plaintiff’s request for full release of Parcel C (or of any specific part of the

whole), nor did the note or other documents assign specific values to any of the acreage

within the ranch. Because Plaintiff’s request for release of Parcel C was not pursuant to a

specific provision of the note, the court found that Crouch and Taylor did not breach the

agreement by their actions in response to the request.

Even if paragraph 7 were ambiguous, Plaintiff had produced no extrinsic evidence

to support its interpretation, the district judge reasoned in the alternative. Mr. Cisler

testified on Plaintiff’s behalf, but he was not a party to the note, and his understanding of

the intended meaning of paragraph 7 was based “solely on hearsay.”8

8
This ruling by the district court is somewhat troubling. The evidence showed that
Plaintiff West Ridge is a small entity, basically a family-owned enterprise (although it is
not clear if it is a single family or two families). Mr. Cisler testified, without objection,
that he was a member of West Ridge at the time the property was purchased from Head
Acres. And because Plaintiff is such a closely held entity, it is somewhat surprising that
the court ruled that Cisler was not testifying from personal knowledge when his testimony
was not challenged on that basis.
Nevertheless, any error by the district judge in declining to consider this testimony
would be harmless, we conclude. Arguably, the judge could have found that Mr. Cisler’s
testimony supported Plaintiff’s construction of paragraph 7 in part, but that would not be
sufficient to change the result. That is, Mr. Cisler testified that Plaintiff had specifically
requested provisions in the note that would enable it to accomplish what it sought here –
the release of a specific portion of the entire ranch in exchange for payment of a pro rata
portion of the total indebtedness. But this stops short of the real point of contention here,
which is how the parties were to determine the amount of the pro rata payment. On that
crucial point, Mr. Cisler merely opined that the language of the note was a “dollars-for-
acres” provision, but never testified that the parties to the note had even discussed what

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 The note does not specify whether the relationship between the release payment

and the property released should be based on the area of the property to be released or its

value. Both parties had presented evidence that Parcel C was the most valuable piece of

the ranch. Following Plaintiff’s interpretation of “dollars for acres” and allowing it to

procure the release of the most valuable part of the ranch by paying an amount

proportionate to the number of acres to be released “could potentially leave Crouch and

Taylor under collateralized.” Therefore, the judge concluded, Defendants’ interpretation

was “reasonable under the circumstances.”

On appeal, Plaintiff’s argument seems to be twofold: first, that paragraph 7 is

unambiguously a “dollars-for-acres” provision, and second, that if there is ambiguity, the

district court erred by not construing the ambiguity against Defendants because their

predecessor-in-interest drafted the note.

We conclude that the district court was correct in rejecting Plaintiff’s contention

that the note unambiguously provides that “pro rata” means “dollars for acres.” There is

simply no such language in paragraph 7. Nor is Plaintiff’s proposed construction the

more logical or likely. Given that the ranch encompasses approximately 160 acres, with

some parcels having improvements and others not, Plaintiff’s construction could have

resulted in the lender having its security weakened, as the district judge indicated.

Plaintiff stresses the fact that the note does not contain any language directly

providing for appraisals, value or methodology. But the frequent repeating of the

“pro rata” was to mean, much less that they had reached an agreement on the point.

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contention that paragraph 7 means “dollars for acres” casts no light on the inquiry.

Plaintiff does not directly address the reasoning of the district court, although its briefs do

include some statements to the effect that the Defendants emerged from the transaction

with an outstanding balance on the note of less than $50,000, secured by 120 acres that

included substantial improvements, most notably a house with seven bedrooms and seven

baths.

The note, however, must be interpreted not only as to the specifics of Plaintiff’s

request for release of Parcel C but in a way that would apply in other circumstances as

well. We note in this regard that Plaintiff’s own witness, a representative of the

Plaintiff’s new lender, Farm Credit Services, testified on direct examination that as a

lender he would want to maintain the loan-to-value ratio when modifying a loan.

Plaintiff’s reliance on the principle of construing ambiguities against the drafter of

the instrument is not persuasive, either. This principle, contra proferentem, “is the last

rule to be resorted to, and never to be applied except when other rules of interpretation

fail.” Quad Constr., Inc. v. Wm. A. Smith Contracting Co., 534 F.2d 1391, 1394 (10th

Cir. 1976) (quoting Patterson v. Gage, 11 Colo. 50, 56, 16 P. 560, 562 (1888)). Courts in

Colorado “have consistently looked to the intent of the parties as the primary means of

resolving ambiguity, and although no court since Patterson has expressly stated that

contra proferentem should only be applied as a last resort, that principle has not been

rejected.” Moland v. Industrial Claim Appeals Office, 111 P.3d 507, 511 (Colo. App.

2004).

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 Although the parties could certainly have expressed their intent more clearly, it is

readily apparent that an integral part of the transaction was securing the loan for the

benefit of the lender. Of the two possible interpretations of paragraph 7 that have been

advanced in this litigation, that of Defendants is thus more in keeping with the overall

aims of the transaction. Following established Colorado law by looking to the intent of

the parties “as the primary means of resolving ambiguity,” id., we hold that the term “pro

rata” in paragraph 7 of the note refers to a ratio of values of the property rather than a

ratio of mere acres.9

One other point merits attention, nevertheless. Plaintiff asserts, and provided

evidence at the bench trial to show, inter alia, that the appraiser hired by Crouch and

Taylor told them that she was not commercially licensed; that the appraiser was instructed

to do a careful, walk-through inspection of the lodge under construction on Parcel C but

to do only a cursory, “drive-by” inspection of the buildings on the other parcels; and that

the appraiser actually included a seven-bedroom house on Parcel C when that structure

was outside of Parcel C.

Based on these irregularities in the appraisal process, inter alia, Plaintiff contends

that Defendants breached the duty of good faith and fair dealing, which under Colorado

9
We also note that the evidence as to the drafting of the note does not conclusively
establish the factual premise for Plaintiff’s argument. Although Mr. Cisler testified that a
representative for Head Acres drafted the note, he also – and repeatedly – testified that
paragraph 7 and certain other provisions were included at the express request of Plaintiff
because Plaintiff anticipated that it would, in the near future, want a release of a part of
the ranch. See note 8, supra. Mr. Cisler’s testimony simply did not address whether
Plaintiff had suggested specific language to accomplish its purpose.

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law is implied in all contracts. But even though this evidence raises equitable concerns,

Plaintiff did not make any reference to this legal principle in the district court and has

thus forfeited this issue. We therefore express no opinion on whether the evidence would

have supported a finding of breach of that legally implied duty.10

III

Finally, we consider Defendants’ motion for attorney’s fees as sanctions for the

conduct of Plaintiff and its counsel in this appeal. As our discussion supra has shown

quite clearly, counsel for Plaintiff has raised a number of issues that have no merit at all.

Nevertheless, this is a matter committed to this court’s discretion, and in our exercise of

that discretion, we decline to award fees for this appeal.

Conclusion

Accordingly, we AFFIRM the judgment for the Defendants.

Entered for the Court

William J. Holloway, Jr.
Circuit Judge

10
If the issue had been raised at trial, the evidence might not have been entirely
one-sided. Defendants might have countered by arguing that Plaintiff’s intransigence in
insisting on the “dollars-for-acres” method with its resulting effect on their security
interest and Plaintiff’s refusal to cooperate in obtaining appraisals also showed a lack of
good faith.

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