Holder v. Cisneros Mosqueda

24CA2004 Holder v Cisneros Mosqueda 04-02-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA2004
Adams County District Court No. 23CV30170
Honorable Sarah E. Stout, Judge

William F. Holder,

Plaintiff-Appellee,

v.

Oscar A. Cisneros Mosqueda,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE SCHOCK
Grove and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 2, 2026

Anderson Hemmat, L.L.C., Chad P. Hemmat, Cameron O. Hunter, Greenwood
Village, Colorado, for Plaintiff-Appellee

Baker & Hostetler LLP, Sammantha J. Tillotson, Denver, Colorado; Baker &
Hostetler LLP, G. Karl Fanter, Cleveland, Ohio, for Defendant-Appellant
¶1 Defendant, Oscar A. Cisneros Mosqueda, appeals the

judgment in favor of plaintiff, William F. Holder, on Holder’s

negligence claim. He contends that the district court erred by

denying his motion to enforce a settlement agreement. We affirm.

I. Background

¶2 This case arises out of a car accident between Cisneros

Mosqueda and Holder for which Cisneros Mosqueda was at fault.

A. Settlement Communications

¶3 In December 2022, Holder’s attorney, Kylan J. King of the

Bendinelli Law Firm (Bendinelli), made a demand upon Cisneros

Mosqueda’s insurer, Fred Loya Insurance (FLI), for payment of

Cisneros Mosqueda’s policy limit. FLI agreed to pay the policy limit

of $25,000 in exchange for a release of liability.

¶4 On January 5, 2023, Holder executed a release of his claims

against Cisneros Mosqueda and FLI. The release provided:

That [Holder] . . . for sole consideration of
Twenty Five Thousand Dollars . . . to be paid
to [Holder] do/does hereby . . . release, acquit
and forever discharge [Cisneros Mosqueda and
FLI] . . . of and from any and all claims,
actions, causes of action, demands, liens
known and unknown . . . resulting or to result
from the accident . . . .

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¶5 The next day, King sent FLI the executed release and stated

that Holder accepted FLI’s offer of $25,000 “to resolve this matter.”

King explained that Holder was “in desperate need of this

settlement” and asked if FLI could “expedite” the payment.

¶6 Days after receiving the executed release, FLI learned that

Holder was subject to a medical lien. On January 24, FLI told King

that it would need a lien agreement or a lien release before it could

finalize payment. According to an FLI claims adjuster, King agreed

to “get the [lien] resolved” and told the claims adjuster how to

“divide the checks up” between Holder and the lienholder.

¶7 Having still not received payment three weeks after signing the

release, Holder retained a new attorney, Chad Hemmat from the law

firm of Anderson Hemmat. On January 27, Hemmat sent FLI a

letter explaining that he had “been asked to intervene as counsel”

for Holder. He asserted that the settlement agreement “says

nothing about any holdback of proceeds for liens” and that FLI had

breached the agreement by “refusing to issue any portion of the

check until the health insurance lien is resolved.” Then, after

noting that the lien was for $1,745.07, the letter concluded:

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To avoid me declaring a breach of the
settlement agreement and then suing your
insured where limits settlement will never be
discussed again, we demand you tender the
balance of the settlement proceeds minus the
[medical] lien to be issued payable to William
Holder and the Bendinelli Law Firm ONLY with
written confirmation to me that this check has
been tendered on or before end of business one
week from today. If we have no assurance that
the check has been tendered by then, consider
the agreement in breach and your insured will
be sued without any further warning or
discussion.

¶8 On February 3 — the deadline for payment set by the demand

letter — FLI prepared two checks: one to Bendinelli and Holder for

$23,254.93, and one to the lienholder for $1,745.07.1 The mailing

address on the check to Bendinelli and Holder was incorrect,

mistakenly showing the state as Texas rather than Colorado. FLI

also sent a letter dated February 3 to Bendinelli — again with the

erroneous Texas address — confirming that FLI had issued the two

checks and mailed them to Bendinelli at the Texas address.

¶9 The record is not clear as to when FLI sent the checks, which

were never cashed. Holder’s wife attested that an FLI representative

1 More precisely, the check to Bendinelli and Holder was dated

February 3, and the check for the lien was dated February 2.

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told her on February 8 that the checks had not yet been sent. That

same day, King instructed FLI by email to “void both checks sent to”

Bendinelli. And months later, during this litigation, King told FLI

that Bendinelli never received the checks. But months after that,

Bendinelli found the check to Holder in its files, with a date stamp

of February 10, and provided a copy to Anderson Hemmat.

¶ 10 Either way, Hemmat did not receive notice by February 3 that

the checks were sent (and did not learn of the checks’ existence

until months into this lawsuit). He therefore filed a complaint on

Holder’s behalf shortly after the close of business that day, suing

Cisneros Mosqueda for negligence.

B. Motion to Enforce Settlement

¶ 11 Cisneros Mosqueda filed a motion to enforce the settlement

and dismiss the case. He argued that the parties had entered into a

valid settlement agreement on January 6, 2023, when Holder

returned the signed release, and that FLI had fulfilled its obligations

under that agreement by sending the checks to Bendinelli. Though

acknowledging the error in the mailing address, Cisneros Mosqueda

asserted that the checks “should have reached the correct address.”

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¶ 12 In response, Holder argued that (1) there was no meeting of

the minds regarding the resolution of liens; (2) if there was a valid

settlement agreement, FLI materially breached it by refusing to

make payment until the lien issue was resolved; and (3) Hemmat’s

January 27 letter was a renewed settlement offer that FLI did not

properly accept because it did not provide written confirmation to

Hemmat and could not show the checks were ever delivered.

¶ 13 Cisneros Mosqueda replied that the parties “expected” that the

amount Holder would actually receive would be “$25,000 minus the

amount necessary to satisfy the lien.” He therefore asked the court

to “supply[] a term to the settlement agreement that allows FLI to

pay from the settlement proceeds the amount necessary to satisfy

the medical lien directly to the lien holder, then pay the balance to”

Holder. Alternatively, he argued that he accepted Holder’s

counteroffer by issuing the checks on February 3 and mailing them

to Bendinelli — albeit, with a “clerical error” in the address.

¶ 14 After an evidentiary hearing, the district court denied the

motion to enforce the settlement. It first found that the initial

release was a valid settlement agreement that required FLI to pay

Holder $25,000 in exchange for release of Holder’s claims, with no

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withholding of such funds for payment of the lien. The court found

that FLI materially breached that agreement by failing to pay Holder

$25,000, thus allowing Holder to terminate the agreement.

¶ 15 As to the January 27 letter, the court found that it was a new

offer of settlement with two conditions: (1) issuance of the checks to

Bendinelli; and (2) written confirmation to Hemmat. Because FLI

did not provide timely written confirmation to Hemmat, the court

concluded that there was no acceptance and, thus, no contract.

¶ 16 The case proceeded to a jury trial. The jury found Cisneros

Mosqueda liable and awarded Holder $450,000 in damages.

II. Analysis

¶ 17 In arguing that the district court erred by denying his motion

to enforce the settlement agreement, Cisneros Mosqueda identifies

three potential sources of that agreement: (1) the January 5 signed

release; (2) King’s subsequent agreement to have the lien paid out of

the settlement proceeds; and (3) Hemmat’s January 27 letter. We

conclude that Cisneros Mosqueda failed to carry his burden of

showing that any of these gave rise to an enforceable contract that

barred Holder from suing.

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A. Applicable Law and Standard of Review

¶ 18 Colorado public policy favors the settlement of disputes. Colo.

Ins. Guar. Ass’n v. Harris, 827 P.2d 1139, 1142 (Colo. 1992). But a

settlement agreement is just a contract, and it must be construed

and enforced like any other contract. Resol. Tr. Corp. v. Avon Ctr.

Holdings, Inc., 832 P.2d 1073, 1075 (Colo. App. 1992). A contract is

formed “when one party makes an offer and the other accepts it,

and the agreement is supported by consideration.” Sumerel v.

Goodyear Tire & Rubber Co., 232 P.3d 128, 133 (Colo. App. 2009).

¶ 19 The party seeking to enforce a contract bears the burden of

proving its existence. Tuscany Custom Homes, LLC v. Westover,

2020 COA 178, ¶ 52. To satisfy the burden, the party must show

by a preponderance of the evidence that the parties agreed to all

material terms and that the terms are sufficiently definite. Id.

¶ 20 When one party to a contract materially breaches the contract,

the other party is excused from its obligations. Gravina Siding &

Windows Co. v. Gravina, 2022 COA 50, ¶ 12. A material breach is

one that “‘goes to the root of the matter or essence of the contract’

and renders substantial performance under the contract

impossible.” Interbank Invs., L.L.C. v. Vail Valley Consol. Water

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Dist., 12 P.3d 1224, 1229 (Colo. App. 2000) (citations omitted).

Moreover, a party who anticipatorily breaches or repudiates a

contract cannot later enforce it. Technics, LLC v. Acoustic Mktg.

Rsch. Inc., 179 P.3d 123, 126 (Colo. App. 2007), aff’d, 198 P.3d 96

(Colo. 2008). Anticipatory repudiation occurs when a party

“manifests a definite and unequivocal intent” not to perform as the

contract requires. Id.

¶ 21 When an enforceable settlement agreement exists, a court may

enforce the agreement and dismiss the case. See Yaekle v.

Andrews, 195 P.3d 1101, 1111 (Colo. 2008). Whether a contract

exists, whether it was breached, and whether a breach was material

are all questions of fact that we review for clear error. Id.; Ute Water

Conservancy Dist. v. Fontanari, 2022 COA 125M, ¶ 35; Coors v. Sec.

Life of Denv. Ins. Co., 112 P.3d 59, 64 (Colo. 2005). We therefore

are bound by the district court’s factual findings on these issues so

long as they have record support. Yaekle, 195 P.3d at 1111. The

interpretation of a contract is a legal issue that we review de novo.

Fed. Deposit Ins. Corp. v. Fisher, 2013 CO 5, ¶ 9.

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B. January 5 Release

¶ 22 The parties agree on appeal that the release that Holder signed

on January 5 and sent to FLI on January 6 was an enforceable

settlement agreement. But we agree with Holder that the district

court did not clearly err by finding that FLI materially breached that

agreement by refusing to pay Holder $25,000 and conditioning its

payment of any settlement funds on resolution of the lien issue.

¶ 23 The release unambiguously required FLI to pay $25,000 to

Holder. The district court found, with record support, that FLI did

not do so. Instead, FLI refused to make any payment until Holder

had taken care of the lien — either through a lien agreement or a

lien release — and, at best, only ever agreed to pay Holder $25,000

minus the amount of the lien. As the district court concluded, the

release included no such condition to payment.2 Thus, because

payment of $25,000 to Holder was the essence of the contract —

2 Cisneros Mosqueda contends that the district court erred by

concluding that FLI would not have been liable for the lien if it had
paid Holder the full settlement amount. See Strunk v. Goldberg,
258 P.3d 334, 338 (Colo. App. 2011). But as Cisneros Mosqueda
acknowledges in his reply brief, that point is immaterial because,
even if true, it would not change the terms of the agreement
between FLI and Holder. FLI does not argue that its potential
liability to a third party excused its performance of that agreement.

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indeed, the only benefit Holder was owed — FLI’s failure to make

that payment was a material breach that released Holder from his

obligation not to sue. See Gravina Siding & Windows, ¶¶ 12-13.

¶ 24 Cisneros Mosqueda characterizes FLI’s communication about

the lien as nothing more than an “inquiry” or an “offer to modify”

the release, which he argues was not a breach. But the record

supports the district court’s finding that FLI did more than inquire.

In particular, FLI’s own claim notes indicate that FLI twice told

Holder’s attorney that it would need a lien agreement or a lien

release before it would issue payment. FLI’s claims adjuster

similarly testified at the evidentiary hearing that he told Holder’s

attorney he “need[ed] [the lien] addressed before [he could] process

the funds.” This evidence supports the district court’s finding that

FLI “demanded” — not suggested — “a separate lien release or

agreement before releasing the funds.” Because the parties’

agreement did not allow FLI to withhold funds on that basis, such a

demand was less an “inquiry” than an expression of “unequivocal

intent that [FLI] [would] not perform as required by the contract.”

Technics, 179 P.3d at 126; cf. Scott v. Crown, 765 P.2d 1043, 1047

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(Colo. App. 1988) (holding that a demand for “performance beyond

that required by the contract[]” was an anticipatory repudiation).

¶ 25 But we need not decide whether FLI anticipatorily repudiated

the contract (and neither did the district court) because, as the

district court found, FLI never paid $25,000 to Holder. Certainly, it

did not do so in the weeks after Holder signed the release, despite

knowing he was “in desperate need” of the payment. See Gravina

Siding & Windows, ¶ 20 (“[I]f a contract contains no explicit

provision concerning the time for a party’s performance of

obligations, the party must perform within a ‘reasonable time’ as

determined by the circumstances of the case.” (citation omitted)).

And when FLI eventually did send a check to Holder, it was for just

$23,254.93. The district court correctly found that FLI’s failure to

pay Holder $25,000, as the release required, was a material breach

that excused Holder from his obligations under that release.

C. Lien Communication Between FLI and King

¶ 26 Cisneros Mosqueda next contends that the parties reached a

second settlement agreement when King agreed FLI could pay the

lien out of the settlement. He points to the claims adjuster’s

testimony and notes indicating that King agreed to “get [the lien]

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resolved” and told FLI how to “divide the checks.” We agree with

Holder that Cisneros Mosqueda did not preserve this argument.

¶ 27 In Cisneros Mosqueda’s motion to enforce the settlement, he

argued that the parties’ settlement agreement was the written

release and, alternatively, that FLI accepted the counteroffer in

Hemmat’s January 27 letter. Although he asserted at the hearing

that FLI and King “agreed to send a final lien amount . . . and a

release from that lien so that the lien could be paid out of the

settlement proceeds,” he never suggested that this discussion gave

rise to a separate agreement. Instead, though he did not explicitly

address the legal significance of the exchange, his argument implied

that it was part of FLI’s performance of the original agreement.

¶ 28 Cisneros Mosqueda’s failure to argue in the district court that

the communications between King and FLI formed a “second

settlement agreement” matters here. Although a party need not use

“talismanic language” to preserve an argument for appeal, the party

must give the district court “an adequate opportunity to make

findings of fact and conclusions of law on any issue before we will

review it.” People v. Melendez, 102 P.3d 315, 322 (Colo. 2004).

Cisneros Mosqueda’s passing reference to King’s agreement to

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resolve the lien did not afford the district court that opportunity.

Without any argument that a second agreement was formed, the

district court had no reason to make factual findings as to the

existence of such an agreement.3 Nor did it have any reason to

address the legal arguments the parties make on appeal regarding

whether that purported agreement had adequate consideration.

¶ 29 Moreover, the record on this issue is scant — likely because

Cisneros Mosqueda did not frame it in this manner in the district

court. The entirety of the evidence Cisneros Mosqueda cites on this

point is that (1) King “told [the claims adjuster] how much to pay

and divide the checks up”; (2) King “agreed to get [the lien] resolved”

and (3) the claims adjuster “informed [King] [FLI] would need a lien

agreement or a lien release in order to finalize payment” and “King

“agreed and said [he] would get back to [him].”4 Given the limited

3 Cisneros Mosqueda cites the district court’s statement that the

claims adjuster “acknowledged that [Bendinelli] agreed to pay the
. . . lien from settlement proceeds.” But the court was summarizing
the claims adjuster’s testimony, not making a factual finding, much
less a finding that an enforceable agreement was formed.

4 Notably, “divid[ing] the checks up” — i.e., FLI paying the lien —

and “get[ting] the lien resolved” — i.e., Holder discharging the
lien — appear to be two different options for addressing the lien.

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focus on this issue at the hearing, we cannot fault the district court

for failing to sua sponte consider whether a second agreement was

formed. And without a factual finding, we have nothing to review.

¶ 30 Thus, we conclude that Cisneros Mosqueda failed to preserve

his argument that the communications between King and FLI gave

rise to a second enforceable agreement. We therefore decline to

further address the issue. See Gestner v. Gestner, 2024 COA 55,

¶ 18 (“In civil cases, issues not raised in or decided by the district

court generally will not be addressed for the first time on appeal.”).

D. January 27 Letter

¶ 31 Cisneros Mosqueda’s final theory is that Hemmat’s January 27

letter was a new settlement offer that FLI accepted by sending

payment and providing written notice to Bendinelli. Alternatively,

he argues that the letter was an offer for a unilateral contract that

FLI accepted by its substantial performance. We disagree.

¶ 32 If an offeror “prescribes a particular time, place, or other

condition of acceptance, then the offer can be accepted only in the

manner prescribed.” Extreme Constr. Co. v. RCG Glenwood, LLC,

2012 COA 220, ¶ 44. When, as in this case, the offeror requests “a

return performance rather than a promise to perform,” the offer is

14
one for a unilateral contract. Scoular Co. v. Denney, 151 P.3d 615,

619 (Colo. App. 2006). Such an offer is accepted “when substantial

performance has been rendered by the offeree.” Stortroen v.

Beneficial Fin. Co. of Colo., 736 P.2d 391, 399 (Colo. 1987).

¶ 33 There is no dispute that FLI did not accept the January 27

offer “in the manner prescribed” by Hemmat. Extreme Constr., ¶ 44.

The letter stated that FLI could accept the new offer only by

tendering payment to Holder and Bendinelli and providing written

confirmation to Hemmat on or before February 3 that the check had

been tendered. Setting aside the lack of clarity in the record as to

when the payment was made, FLI did not present evidence at the

hearing that it notified anyone — much less Hemmat — before the

February 3 deadline that the checks had been tendered.

¶ 34 Citing general agency law, Cisneros Mosqueda asserts that

FLI’s notice to Bendinelli was enough. See Strong Bros. Enters., Inc.

v. Est. of Strong, 666 P.2d 1109, 1112 (Colo. App. 1983) (“[N]otice to

an agent is constructive notice to the principal.”). But we need not

decide this point because Cisneros Mosqueda failed to present any

evidence that FLI provided timely notice to Bendinelli either.

15
¶ 35 As the party seeking to enforce the settlement agreement,

Cisneros Mosqueda bore the burden of proving its existence.

Tuscany Custom Homes, ¶ 52. But the only evidence that he

presented on that point was a letter — dated February 3 and

erroneously addressed to Texas — that the claims adjuster testified

had been “sent.” The claims adjuster did not explain how the letter

was sent, and Cisneros Mosqueda did not otherwise present

evidence demonstrating that the letter was received, or even

delivered, on February 3 (or ever). And while Cisneros Mosqueda

refers to this letter in his opening brief as a “fax,” he does not cite

anything in the record indicating that the letter was in fact faxed.

¶ 36 Whether or not it was material who the notice was sent to,

Hemmat’s January 27 letter made clear that notice by February 3

was material. That letter explained that Holder was preparing to

sue Cisneros Mosqueda and would do so “without any further

warning” if he did not have “assurance that the check ha[d] been

tendered” by February 3. In other words, simply placing the check

in the mail was not enough. Holder needed timely notice that FLI

had done so; that was the only way to forestall suit. Because

Cisneros Mosqueda failed to present any evidence that Holder

16
actually received such notice — through anyone — he failed to meet

his burden of proving that he accepted the January 27 offer. See

Suss Pontiac-GMC, Inc. v. Boddicker, 208 P.3d 269, 271 (Colo. App.

2008) (“[C]ourts generally disallow alternative delivery methods that

fail to resolve questions about timeliness and actual receipt.”).

¶ 37 We also reject Cisneros Mosqueda’s argument that FLI

accepted the January 27 offer by substantial performance, despite

failing to comply with its express terms of acceptance. Initially, it is

not clear when the payment was sent, and the record appears to

indicate that it was not received until February 10 — a week after

Hemmat’s deadline for “tender[ing]” payment. See Werne v. Brown,

955 P.2d 1053, 1055 (Colo. App. 1998) (“Generally, payment by

mail is not effective until receipt . . . .”). Although the check was

dated February 3, Holder’s wife attested that an FLI representative

told her on February 8 that it had not yet been sent. And whenever

the check was sent, it was mailed to an erroneous address. See id.

(“If payment by mail is directed or authorized . . . , the time of

delivery is the time that the payment, properly addressed with

postage prepaid, is put in the mail.” (emphasis added)). Given the

17
offer’s emphasis on timing, simply placing a check in the mail to

somewhere at some point would not be substantial performance.

¶ 38 But even if FLI mailed the check to Holder (via Bendinelli) on

February 3, that alone would not be substantial performance if FLI

did not provide timely notice that it had done so. For the reasons

above, the circumstances establish that timely notice was a

material term of the offer — particularly if the check was simply

going to be placed in the mail on the day the offer expired. In short,

FLI could not accept Holder’s offer not to file suit as of February 3

unless it notified Holder by that date that it was doing so.

¶ 39 Thus, because FLI did not accept the January 27 offer in the

manner prescribed and did not prove that it otherwise gave notice

by February 3 that it accepted the offer, the January 27 letter did

not give rise to an enforceable settlement agreement.

III. Disposition

¶ 40 The judgment is affirmed.

JUDGE GROVE and JUDGE YUN concur.

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