Oaster Development, LLC v. WD Consulting et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 22-cv-0779-WJM-MDB
OASTER DEVELOPMENT, LLC,
Plaintiff,
v.
WD CONSULTING, d/b/a WD CONSTRUCTION,
WILLIAM D. TIBBITT,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Before the Court is WD Consulting, d/b/a WD Construction (“WD Construction”)
and William D. Tibbitt’s (together, “WD Defendants”) Motion for Summary Judgment
(ECF No. 145) (“Motion”). Plaintiff Oaster Development, LLC (“Oaster”) filed a response
(ECF No. 154), to which WD Defendants filed a reply (ECF No. 156).
For the following reasons, the Motion is granted in part and denied in part.
I. BACKGROUND1
The Court incorporates by reference the background set forth in its Order
1 The following factual summary is based on the parties’ briefs on the Motion and
evidence submitted in support thereof. The facts set forth herein are undisputed unless
attributed to a party or source. At the outset, the Court notes that, for brevity, it omits those
facts otherwise material to Oaster’s copyright infringement claims and WD Defendants’ asserted
defenses, based on its finding in Section III supra. All citations to docketed materials are to the
page number in the CM/ECF header, which sometimes differs from a document’s internal
pagination.
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granting Oaster’s Motion for Partial Summary Judgment (ECF No. 162) and adds the
following pertinent facts.
This dispute arises from the design and construction of a new church campus for
Woodmen Valley Chapel (“WVC”) in Monument, Colorado (“Monument Project”). (ECF
No. 145 at 1.) At all relevant times, WVC’s “Leadership Team” consisted of Josh
Lindstrom, Joe Stowell, Tojy Thomas, and Doug Olsen, who operated through
“consensus decision making,” and WVC employed Les Krohnfeldt as its director of
campus development. (Id. at 3 ¶¶ 1–3.)
WVC’s relationship with architectural firm Oaster began in December 2018, when
they entered into a Design Agreement (“Heights Agreement”) for “[t]he addition of a new
children’s ministry center and office facility” at WVC’s Woodmen Heights Campus
(“Heights Project”). (ECF No. 145 at 3 ¶ 5; ECF No. 145-3 at 2.) Khronfeldt served as
WVC’s representative for the Heights Project. (ECF No. 145 at 3 ¶ 4.) The design team
consisted of Oaster (principally, Brad Oaster), Pat Morgan (the architect), and two other
firms (collectively, “Oaster’s Design Team” or “Design Team”). (Id. at 4 ¶ 8.) WVC
engaged WD Construction as the general contractor for the Heights Project. (Id. at 4 ¶
9.)
Khronfeldt was apparently opposed to engaging Oaster for the Heights Project.
(ECF No. 154 at 6 ¶ 16; ECF No. 156 at 4 ¶ 16.) He testified at deposition that he
believed “bring[ing] [Oaster] on board [was] a duplication of efforts and resources”
because Khronfeldt and Oaster had “overlapping responsibilities.” (ECF No. 154 at 6 ¶
16; ECF No. 156 at 4 ¶ 16.) Prior to contracting with Oaster and WD Construction,
WVC had engaged a different design firm and general contractor for the Heights
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Project, with whom Khronfeldt was “most comfortable . . . based on his prior relationship
with them for earlier building projects.” (ECF No. 145 at 3 ¶ 6; ECF No. 154 at 8 ¶ 15.)
It is unclear from the parties’ briefs whether WVC terminated pending agreements with
these initial contractors before hiring Oaster, or whether they had only been retained to
perform preliminary work on the Heights Project, which had been completed by the time
Oaster was engaged. (ECF No. 145 at 3 ¶ 7; ECF No. 154 at 5 ¶ 6.)
Nevertheless, roughly a year later, the Leadership Team decided to hire Oaster
for a second project. (ECF No. 145 at 4 ¶ 12.) Thus, in December 2019, WVC and
Oaster entered into a Design Agreement (“Monument Agreement”) for the Monument
Project, pursuant to which Oaster would provide design services, including schematic
designs, design development, and construction documents, for the purpose of obtaining
building permits. (Id. at 4 ¶ 10.)
At some earlier time, before WVC engaged Oaster, Khronfeldt also served as
WVC’s representative for the Monument Project. (ECF No. 154 at 8 ¶¶ 17–18.)
However, the Leadership Team removed Khronfeldt from the Project (against his
wishes), and he was replaced by Edward Houle. (ECF No. 145 at 4 ¶ 13; ECF No. 154
at 8 ¶¶ 17–19.) Thus, Houle signed the Monument Agreement on behalf of WVC. (ECF
No. 154 at ¶ 20.)
When it came time to engage a general contractor for the Monument Project,
Khronfeldt recommended that Houle meet with WD Construction (ECF No. 145 at 4 ¶
14), and Oaster recommended that Houle meet with Great West Construction (“Great
West”) (id. at 5 ¶ 15.) In mid-January 2020, representatives of WVC, Oaster, and WD
Construction met to discuss WD Construction’s candidacy as general contractor. (Id. at
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5 ¶ 18.) Ultimately, Houle, Oaster, and others involved in the Project decided to hire
Great West. (Id. at 5 ¶ 16.) Houle notified WD Defendants of WVC’s decision the
following day. (Id. at 5 ¶ 19.)
Meanwhile, WD Construction’s work on the Heights Project continued alongside
Oaster. In February and March 2020, tensions ostensibly grew between one or more
combinations of WD Construction, Oaster, the Leadership Team, and Khronfeldt, as
best evidenced by the series of communications cited by the parties:
• On February 10, WD Construction submitted a request for information (“RFI 16”)
to Oaster’s Design Team related to a “Water Connection to existing Building” for
the Heights Project. (Id. at 5 ¶ 20; ECF No. 145-8 at 1.)
• On February 20, Khronfeldt sent an email to Tibbitt, attaching a PDF partly
entitled “WVC Monument Campus” and adding to the body of his e-mail, “For
‘side’ discussion. MO plan changes.” (ECF No. 154-9 at 1.) According to WD
Defendants, “Mr. Tibbitt did not respond to this email.” (ECF No. 156 at 13.)
• Later that same day, Oaster sent an email to Khronfeldt concerning “a couple
items” that arose at that morning’s weekly Owner-Architect-Contractor (“OAC”)
meeting—namely, an apparent disagreement concerning Khronfeldt’s
expectation that Oaster would personally attend every OAC meeting throughout
the Monument Project. (ECF No. 154-9 at 2.)
After explaining his view on that issue, Oaster stated, “On yet another note, I
have no problem looking Bill Tibbets [sic] in the eye. I am not so sure how Bill
can look me in the eye! Here is why I say that . . . .” (Id. at 3.) Oaster
proceeded to summarize how he had decided to work with Great West over WD
Construction on a prior project after receiving a bid from Tibbitt containing, in his
view, “ridiculous numbers.” (ECF No. 154-14 at 1.) He further stated:
When the leadership at Woodmen Monument asked me for
a second contractor to compare WD’s numbers with, I
brought in Great West. Bill lost the Monument project
because he used Mike St. Marie to do his estimates, he
adds a ridiculous amount of overhead to the project, he
estimated a pre engineered steel building, and his numbers
were $800,000 higher than Great West.
When Bill interviewed with the Monument Team, there were
four people from the church. Following the interview of both
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WD and Great West, I refused to say anything until the other
three had spoken up and made their recommendation. All
three preferred Great West. I spoke up last and I simply
agreed that Great West will do an outstanding job.
(Id.) Oaster concluded his email with, “I would greatly appreciate it if you would
keep this between you and I.” (Id.)
• On February 21, Khronfeldt forwarded Oaster’s February 20 e-mail to Tibbitt,
adding:
Here’s a fun read for your upcoming plane rides. I do not
plan to reply to this any time soon. In fact my analytic mind
says I want to counter all these points with a forward to Joe,
Tojy, Doug and Ed, explaining how we are being extorted by
Oaster Design (that’s a [sic] emotional overstatement, but I
believe has some basis). I do believe that this is just another
testimony by Brad about how wonderful, successful and
accomplished with getting paid for projects he devotes no
time to.
While you have much better things to do with your time, I
would like to sit with you over coffee to dissect his reply or at
least get a few airplane comments from you.
Appreciate your dedication and commitment to the team.
(ECF No. 154-9 at 2.) According to WD Defendants, “Mr. Tibbitt did not respond
to this email.” (ECF No. 156 at 13.)
• On March 8, Khronfeldt e-mailed Stowell and Thomas, with the subject line
“Oaster Review.” (ECF No. 154-8 at 1.) Therein, he states: “Tojy and I met last
week and he asked me to prepare a summary of our history with Brad Oaster.
He also asked me to share my review of the budgets prepared by WD
[Construction] and [Great West] for Monument.” (Id.)
Attached to Khronfeldt’s email was a document identically entitled “Oaster
Review,” containing a two-page, bulleted timeline of WVC’s relationship with
Oaster and Khronfeldt’s criticisms of him throughout. (Id. at 3–4.) Such
comments included:
Since I know we must negotiate (and not bid) a GC, I am
forced to interview GC’s [sic] with Brad’s involvement. We
interview CCI. Vince C. self-eliminates because he will not
work with Oaster. I ‘manipulate’ the process by next
presenting Tibbitt, who used to work for Vince, and I knew
him and his capabilities. Brad reports to Doug that Vince is
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not right for us . . . . Brad recommends Bill as perfect for us.
. . .
We now devote the next year, Oct 2018 – Nov 2019 on
Construction Document planning. I can document why this
has been the most unprofessional process I’ve been
involved in, in my 30 years of experience as an Owner’s
Representative. The architect’s submission to Regional
Building for permit approval had the most errors and
omissions ever experienced by Bill or me. . . .
. . .
Key to my many objections is Brad’s continued
misrepresentation of budgetary issues. At this point, you’ve
heard from Bill (and I would like equal time to present my
case) we have both verbal confirmation from meetings as
well as written communication from Brad that he distorts
facts, misrepresents truths and is seen by professionals in
our development community as a manipulative business
person with no credibility and who is not taken seriously in
the profession.
(Id.)
• On March 9, Khronfeldt forwarded his March 8 e-mail to Tibbitt, adding:
Here’s what I sent Joe and Tojy last eve. As you know, I
wrestled with this way too much until yesterday I just sat
down and blurted this out. It should be sufficient to get to the
next step. In prep for next steps, do you have a standard
GC interview outline for a Negotiated GC selection from your
OR days?
(ECF No. 154-9 at 4.) Tibbitt responded: “Great work Les. I will get to looking for
the items you requested.” (Id.)
• On March 10, an employee of WD Construction emailed Oaster’s Design Team,
copying Tibbitt and Khronfeldt, asking, “Have you been able to make any
headway on RFI # 16 . . . ?” (ECF No. 154-9 at 7.) A member of the Design
Team responded, “Let’s just say it’s on the this [sic] of things to do…I will try to
get to this before the end of next week.” (Id. at 6.)
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• On March 11, Tibbitt, responding in the same thread but only to Khronfeldt, sent
the following:
I would take this and forward it to Ed and copy Tojy and Joe.
Dear Ed,
Just giving you a heads up on the type of service you can
expect from Oaster and his design team. After an RFI has
been out for one (1) month, initiated on February 10th, this is
the response we get from Oaster’s mechanical engineer.
WD has emailed KB twice prior to the email from Jake below
and every time gets told they will get an answer by the end
of the week. WD has also brought this RFI up to Brad at our
last OAC meetings.
(ECF No. 154-9 at 6.) Khronfeldt replied, “Done and done. The real issue is –
what can we do to fix incompetence?” (Id.) Ultimately, RFI 16 was not closed
until March 23, 2020. (ECF No. 145 at 5 ¶ 22.)
• On March 13, Khronfeldt sent Stowell (and potentially other members of the
Leadership Team) an e-mail with the subject line, “Oaster Action Plan,” attaching
a Word document entitled, “Oaster Termination_3.16.20.” (ECF No. 154-10 at 1–
2.) Stowell responded: “This all looks good Les. . . . I want to see WD more
involved at MO….how would you see that playing out with Oaster out of the
picture?” (Id.)
Khronfeldt’s lengthy reply most notably included the following:
Once we have Brad out of the way, this will be an easy
transition process.
. . .
Resuming my role as orchestrator, getting the team back to
the playbook, and eliminating miscommunication and bad
communication will get us back in sync asap, and I’m
confident it will regain better stewardship of our resources.
. . .
Ed thought I was 100% in agreement with he replacing me
on the MO project. I clarified that I was 100% NOT in
agreement until the decision was made, and then it’s my
duty to support leadership . . . .
. . .
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Lastly, I told Ed to sit tight and remain moot until he get’s
[sic] further guidance from me. Ed’s reply: Sounds good. I’ll
stall with Doug and Brad. . . . And I’ll prep to withdraw from
the project to let you move forward with your plan.
His last comment was not prompted by me. I have not
asked him or implied he needs to withdraw and let me move
forward. He could remain an asset and support, although I
would mostly use him for counsel as we move forward since
he has proved himself a good accountability partner for me.
(Id.)
• On March 27, Houle e-mailed Tibbitt:
Doug brought me into the loop regarding developments at
Woodmen Heights and your future involvement with the
Monument project. . . . I’d really like to discuss Brad Oaster
and a decision whether he should remain on the design
team for the Monument project. The church has essentially
left it up to us to make that decision.
(ECF No. 154-11 at 1.)
The Court will collectively refer to the above communications as the “Pre-
Termination Communications.”
Ultimately, WVC engaged WD Defendants to replace Great West as the general
contractor for the Monument Project. (ECF No. 154 at 9 ¶ 30.) And on March 30, 2020,
WVC terminated the Monument Agreement with Oaster. (ECF No. 145 at 5 ¶ 23.) That
same day, WD Defendants contacted Bucher Design Studio, Inc., of which Brian Bucher
is the principal (together, “Bucher Defendants”), to serve as the architect for the
remainder of the Monument Project. (Id. at 5 ¶ 24.)
In August 2023, a panel of three arbitrators (“the Panel”) issued an interim ruling
in an arbitration between Oaster, as claimant, and WVC, Houle, and Khronfeldt, as
defendants, arising out of the same dispute. (Id. at 8 ¶ 40.) The Panel determined that
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Khronfeldt was liable for intentional interference with the Monument Agreement and
further found that he engaged in a conspiracy with Tibbitt. (ECF No. 154 at 10 ¶ 34.)
The Panel awarded Oaster $265,435.50 on its claims for copyright infringement and
contributory infringement, intentional interference, and civil conspiracy. (ECF No. 145 at
8 ¶ 41.)
II. LEGAL STANDARD
Summary judgment is appropriate “if the movant shows there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ if it ‘might affect the outcome of the suit
under the governing law’ and is ‘genuine[ly]’ disputed if ‘a reasonable jury could return a
verdict for the nonmoving party.’” Alcala v. Ortega, 128 F.4th 1298, 1306 (10th Cir.
2025) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Courts
“must view the evidence in the light most favorable to the nonmoving party, as well as
resolve disputed facts and draw ‘all justifiable inferences’ in favor of the nonmoving
party.” Alcala, 128 F.4th at 1306 (quoting Anderson, 477 U.S. at 255); see also Tolan v.
Cotton, 572 U.S. 650, 656–57 (2014). However, “‘mere speculation, conjecture, or
surmise’ cannot defeat a summary-judgment motion, because ‘[u]nsubstantiated
allegations carry no probative weight in summary judgment proceedings.’” Alcala, 128
F.4th at 1306 (quoting Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir.
2004)).
III. ANALYSIS
WD Defendants seek summary judgment on each of Oaster’s remaining claims
against them for (1) copyright infringement, (2) contributory copyright infringement,
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(3) vicarious copyright infringement, (4) tortious interference, (5) unfair or deceptive
trade practices and/or unfair competition in violation of the Colorado Consumer
Protection Act (“CCPA”), (6) civil conspiracy, and (7) unjust enrichment. (See generally
ECF No. 145.) They separately seek summary judgment on Oaster’s copyright
infringement, tortious interference, and civil conspiracy claims because, as a result of
the Panel’s earlier award, Oaster purportedly has no remaining damages. (Id.)
The Court can resolve the parties’ arguments as to Oaster’s claims for copyright
infringement, violations of the CCPA, and unjust enrichment straight away. WD
Defendants’ arguments in favor of summary judgment on Oaster’s copyright claims turn
entirely on their asserted affirmative defense of license. (ECF No. 145 at 9–15.) The
Court has held that WD Defendants are precluded from relitigating whether any express
license granted pursuant to the Monument Agreement survived the Agreement’s
termination, and whether WD Defendants otherwise have a defense to infringement
insofar as Oaster granted WVC an implied license to use the copyrighted architectural
designs. (ECF No. 162.) For the same reason, the Court cannot find that WD
Defendants have an affirmative defense of express or implied license as a matter of
law. The Motion is thus denied as to Oaster’s copyright infringement claims.
Moreover, Oaster states it has “determined to abandon” its fifth claim for unfair or
deceptive trade practices and its seventh claim for unjust enrichment and “have them
dismissed by the Court.” (ECF No. 154 at 25.) Oaster represented it would “prepare a
stipulated motion to dismiss with prejudice those two claims.” (Id.) Seeing none on file,
however, the Court will instead simply grant the Motion based on Oaster’s failure to
substantively respond to WD Defendants’ arguments in favor of summary judgment on
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those claims. See Hinsdale v. City of Liberal, Kan., 19 F. App’x 749, 768–69 (10th Cir.
2001) (affirming summary judgment on claim plaintiff “fail[ed] to address . . . in his
response to defendants’ motion for summary judgment”).
The Court thus addresses below only WD Defendants’ arguments in favor of
summary judgment on Oaster’s tortious interference and civil conspiracy claims, as well
as their argument that summary judgment is warranted on all of Oaster’s remaining
claims based on its purported lack of damages.
A. Tortious Interference
As a threshold matter, WD Defendants note that Oaster’s fourth cause of action
could be read to state two different claims insofar as it is entitled “Tortious Interference
with Business Relationship and/or Business Contract.” (ECF No. 1 at 15.) “Given the
undisputed existence of the Contract between Oaster and WVC, WD [Defendants]
construe[] this claim as a claim for intentional interference with contract” (ECF No. 145
at 15), and Oaster’s response similarly addresses only a “Claim for Tortious
Interference with Contract” (ECF No. 154 at 20). The Court likewise assumes that
Oaster intended to state only a claim for tortious interference with contract and Oaster
will be confined to the same at trial.
“To be liable for intentional interference with contract, a defendant must 1) be
aware of a contract between two parties, 2) intend that one of the parties breach the
contract, 3) and induce the party to breach or make it impossible for the party to perform
the contract.” Krystkowiak v. W.O. Brisben Cos., Inc., 90 P.3d 859, 871 (Colo. 2004).
“In addition, the defendant must have acted ‘improperly’ in causing the result.” Id.
Although the allegations in the Complaint are broader, Oaster now argues its
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tortious interference claim is predicated only on an alleged “plot” between Khronfeldt
and Tibbitt.2 (ECF No. 154 at 20; see also ECF No. 1 at ¶¶ 110–19.) Specifically, it
asserts that, after WD Construction was passed over to serve as the general contractor
for the Monument Project in January 2020, “Khronfeldt . . . and [] Tibbitt . . . created a
plot whereby [] Khronfeldt would be placed back in control of the Monument Project, WD
Construction would obtain an $8 million dollar contract, and Oaster [] would be
terminated.” (ECF No. 154 at 20.) Oaster alleges that “Khronfeldt poisoned the minds
of the [L]eadership [T]eam” against it “[i]n private meetings and in writing,” while “Tibbitt
provided Khronfeldt with the ‘ammunition’” to do so. (Id.)
Notably, Oaster’s briefing is at times ambiguous as to whether the underlying
contract at issue is the Monument Agreement, or both the Monument Agreement and
the Heights Agreement. Nevertheless, it seems to most consistently argue that WD
Defendants (and Khronfeldt) interfered with a single contract. The Court thus presumes
the tortious interference claim is directed at WD Defendants’ alleged interference with
only the Monument Agreement, and it will hold Oaster to this theory at trial.
WD Defendants do not dispute that they were aware of the Monument
Agreement. (ECF No. 145 at 16.) But they argue Oaster cannot establish that WD
Defendants intentionally induced WVC to breach the Monument Agreement, nor that
they did so through improper means. The Court disagrees and finds there is sufficient
evidence to raise a genuine issue of material fact as to both elements of Oaster’s
2 The parties appear to assume that WD Construction is liable for any acts attributable to
Tibbitt, and vice versa. As the parties have not presented it as an issue for its consideration, the
Court assumes the same.
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tortious interference claim.
Per the Restatement, “[t]here is no technical requirement as to the kind of
conduct that may result in interference with the third party’s performance of the
contract.” Restatement (2d) Torts § 766, cmt. k. Rather, interference by inducement
“may be any conduct conveying to the third person the actor’s desire to influence him
not to deal with the other,” including “a simple request or persuasion exerting only moral
pressure” or “a statement unaccompanied by any specific request but having the same
effect as if the request were specifically made.” Id. And such interference is intentional
“if the actor desires to bring it about or if he knows that the interference is certain or
substantially certain to occur as a result of his action.” Restatement (2d) Torts § 766A,
cmt. e.
As evidence of the alleged plot between Khronfeldt and Tibbitt, Oaster primarily
relies on the Pre-Termination Communications summarized at length in Section I infra.
The Court will not rehash the contents of those Communications here, but it agrees with
Oaster that they are sufficient evidence to raise a fact question as to whether WD
Defendants intentionally induced WVC to terminate the Monument Agreement with
Oaster. For instance, a reasonable jury could find that the intended effect of Tibbitt’s
March 11 e-mail reporting on Oaster’s purported poor management of the Heights
Project was that the Leadership Team terminate Oaster from the Monument Project.
And while the March 11 e-mail is likely the most significant piece of evidence against
Tibbitt, insofar as it includes a direct communication from him, even the other Pre-
Termination Communications are at least circumstantial evidence of Tibbitt’s
involvement in the efforts to persuade the Leadership Team (directly or indirectly) that
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Oaster should not continue as architect for the Monument Project.
As to whether WD Defendants’ alleged “conduct in intentionally interfering with a
contract or a prospective contractual relation of another [was] improper or not,”
Colorado courts generally consider:
(a) the nature of the actor’s conduct,
(b) the actor’s motive,
(c) the interests of the other with which the actors’ conduct
interferes,
(d) the interests sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of
the actor and the contractual interests of the other,
(f) the proximity or remoteness of the actor’s conduct to the
interference and
(g) the relations between the parties.
Restatement (2d) Torts § 767; see also Warne v. Hall, 373 P.3d 588, 596 (Colo. 2016)
(“Because it is so clearly dependent upon context and circumstances, we have never
attempted to rigidly define ‘improper’ for all purposes of interference with contract, but
we have favorably referenced the Restatement (Second) of Torts § 767 [] in this regard
and its enumeration of potentially relevant factors . . . .”).
Oaster argues that “[t]he pecuniary motives of WD [Defendants], [Tibbitt’s] desire
to be hired as the contractor, as well as the interest of Oaster to fulfill its contract are
significant factors supporting improper conduct.” (ECF No. 154 at 23.) The Court
agrees. The Court takes particular note of the Restatements’ guidance that, where the
interests sought to be advanced by the actor (here, WD Defendants) are economic, “[i]f
the interest of the other [here, Oaster] has been already consolidated into the binding
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legal obligation of a contract, . . . that interest will normally outweigh the actor’s own
interest in taking that established right from him.” See Restatement (2d) Torts § 767,
cmt. f.
WD Defendants most significantly counterargue that Tibbitt’s e-mail concerning
the Design Team’s delayed response to RFI 16 cannot support a finding that any
alleged interference was improper (or, for that matter, intentional) because “[i]t is not
wrongful or improper for a general contractor to send an email regarding project issues
and scheduling problems on a construction project.” (ECF No. 145 at 18.) They assert
that Tibbitt’s e-mail “notifying WVC of issues that it had on the Heights Project, including
issues and delays in getting responses to RFI’s and information WD [Construction]
needed from [] Oaster’s Design Team, are [sic] consistent with WD [Construction’s] role
as a general contractor trying to progress construction of the Heights Project.” (Id.)
Tibbitt testified he sent the e-mail because he “needed help with managing the design
team.” (ECF No. 145-4 at 120:5–8.) Thus, according to WD Defendants, “[t]his type of
routine contract administration and reporting to WVC, WD [Construction’s] client and the
project owner, cannot give rise to any inference of the type of improper or wrongful acts
required to support Oaster’s claim for intentional interference with a business contract.”
(ECF No. 145 at 18.)
However, “if the actor acts for the primary purpose of interfering with the
performance of the contract, and also if he desires to interfere,” he is not insulated from
liability “even though he acts for some other purpose in addition.” Restatement (2d)
Torts § 766, cmt. j. Thus, to the extent WD Defendants argue their interference with the
Monument Agreement “was not desired and was purely incidental in character,” that will
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be “a factor to be considered in determining whether the interference is improper.”
Restatement (2d) Torts § 767, cmt. d. But such questions will be subsumed in the jury’s
factual inquiry into whether Tibbitt “was motivated, in whole or in part, by a desire to
interfere with [Oaster’s] contractual relations.” Id.
For these reasons, the Court finds that Oaster has a triable claim that WD
Defendants intentionally interfered with the Heights and Monument Agreements.
B. Civil Conspiracy
“To establish a civil conspiracy in Colorado, a plaintiff must show: (1) two or more
persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or
course of action; (4) an unlawful overt act; and (5) damages as to proximate result.”
Nelson v. Elway, 908 P.2d 102, 106 (Colo. 1995). “In a civil action, conspiracy is a
derivative cause of action that is not actionable per se.” Double Oak Const., L.L.C. v.
Cornerstone Development Intern., L.L.C., 97 P.3d 140, 146 (Colo. App. 2003),
overruled on other grounds by L.H.M. Corp., TCD v. Martinez, 499 P.3d 1050 (Colo.
2021). “[T]he essence of a civil conspiracy claim is not the conspiracy itself, but the
actual damages resulting from the acts done in furtherance of the conspiracy.”
Resolution Tr. Corp. v. Heiserman, 898 P.2d 1049, 1055 (Colo. 1995). Thus, it “is
essentially a means of holding one defendant liable for the substantive wrongs
committed by another.” Tara Woods Ltd. P’ship v. Fannie Mae, 731 F. Supp. 2d 1103,
1122 (D. Colo. 2010); see also Shell v. Am. Fam. Rights Ass’n, 899 F. Supp. 2d 1035,
1063 (D. Colo. 2012) (“the purpose of the conspiracy claim is to hold named Defendants
liable for the unlawful acts allegedly committed by their purported co-conspirators”);
Johnstown Feed & Seed, Inc. v. Continental W. Ins. Co., 641 F. Supp. 2d 1167, 1183–
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84 (D. Colo. 2009) (civil conspiracy “is a means by which a plaintiff can impose liability
on one party for unlawful conduct engaged in by another”).
The Court once again observes that, while the allegations in the Complaint are
broader, Oaster appears to now assert only that Khronfeldt and WD Defendants
conspired “to accomplish the unlawful goal of causing WVC to breach its contract with
Oaster Development.” (ECF No. 154 at 24; see also ECF No. 1 at ¶¶ 135–146.) And
once again, the Court advises Oaster that it will hold it to this theory of its civil
conspiracy claim at trial.
WD Defendants argue that Oaster’s civil conspiracy claim fails because there is
no evidence that (1) Tibbitt and Khronfeldt “enter[ed] into an agreement to conspire to
terminate Oaster from the Project and hire WD [Construction],” (2) there was an
unlawful overt act, or (3) damages resulting from the conspiracy. (ECF No. 145 at 25–
27.) The Court disagrees, with one caveat.
As to the first issue, a court may not infer the agreement necessary to form a
conspiracy. Nelson, 908 P.2d at 106. Rather, the plaintiff must present “some indicia of
agreement in an unlawful means or end,” which can be direct or “implied by a course of
conduct and other circumstantial evidence.” Schneider v. Midtown Motor Co., 854 P.2d
1322, 1327 (Colo. App. 1992) (internal citation omitted). Oaster argues that, here, “the
emails and Khronfeldt’s ‘Action Plan’” establish Khronfeldt and Tibbitt’s “agreement to
take joint action” “to accomplish terminating Oaster and Great West, reinstating
Khronfeldt as the owners rep, and reversing the decision denying WD [Construction] the
Monument contract.” (ECF No. 154 at 24.) The Court agrees with Oaster that the Pre-
Termination Communications are sufficient evidence to create a fact issue as to
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whether Khronfeldt and Tibbitt had such an agreement. See Gas Prods. Corp. v. BTU
Mktg., LLC, 2017 WL 4222619, at *11 (D. Colo. Sept. 22, 2017) (denying summary
judgment where co-conspirator’s deposition testimony was “sufficient to imply an
agreement to misappropriate [plaintiff’s] trade secrets”). The Court in particular notes
Tibbitt’s response to Khronfeldt’s March 9 e-mail (“Great work Les.”), which suggests to
the Court they were working toward a common aim. (See Section I infra.)
WD Defendants next argue that, “[e]ven if there had been some agreement
between Mr. Tibbitt and Mr. Khronfeldt,” Oaster cannot “point to any evidence of an
unlawful overt act . . . .” (ECF No. 145 at 25–26.) However, Oaster argues “the
unlawful action taken was to wrongly interfere with the Monument Agreement between
Oaster and WVC.” (ECF No. 154 at 24.) Courts routinely find that a claim for tortious
interference with contract can comprise the underlying wrong for a civil conspiracy.
Bituminous Cas. Corp. v. Hartford Cas. Ins. Co., 2013 WL 452374, at *9 (D. Colo. Feb.
6, 2013) (“Since there are disputed issues of material fact sufficient for the tortious
interference claim to survive summary judgment, I find there are likewise disputed
issues of fact concerning the wrongful act element of the civil conspiracy claim.”).
Nevertheless, to the extent Oaster’s civil conspiracy claim is predicated on WD
Defendants’ alleged tortious interference with the Monument Agreement, its civil
conspiracy claim appears superfluous. See Johnstown Feed & Seed, 641 F. Supp. 2d
at 1183–84 (“Logically, an unlawful act committed by Continental itself, rather than by a
coconspirator, would be directly actionable.”); Shell, 899 F. Supp. 2d at 1063–64
(dismissing claim alleging civil conspiracy between defendant and dismissed defendant
because it was “entirely redundant of the misappropriation of trade secrets claim
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already asserted against [defendant] and does not need to be pled as a duplicative
derivative claim”); Fannie Mae, 731 F. Supp. 2d at 1122 (“conspiracy allegation will only
become necessary if the Court determines that the Plaintiff lacks evidence that a
Defendant personally participated in a particular unlawful act; upon proof that the
Defendant nevertheless conspired to bring about that act, the Court could still hold that
Defendant liable for damages resulting therefrom”). As there is nonetheless sufficient
evidence for a jury to find that the unlawful overt act element is technically met, the
Court will not grant summary judgment on the civil conspiracy claim to the extent it is
premised on WD Defendants’ alleged unlawful acts as redundant at this time. However,
it advises Oaster to consider whether there is anything to be gained from trying such a
claim when WD Defendants are the only defendants remaining.
On the other hand, should Oaster instead seek to hold WD Defendants liable for
Khronfeldt’s alleged unlawful acts via its civil conspiracy claim, the caselaw supports
that Oaster must independently establish at trial that Khronfeldt’s underlying wrongs
would support a cause of action—notwithstanding any earlier finding by the Panel.3
See Double Oak Constr., 97 P.3d at 146 (“If the acts alleged to constitute the underlying
wrong provide no cause of action, then there is no cause of action for the conspiracy
itself.”); Ekberg v. Speicher, 2024 WL 4578665, at *3–4 (Colo. App. Oct. 24, 2024) (trial
court erred in instructing jury that defendant’s alleged co-conspirator had already been
found liable for civil conspiracy in an earlier proceeding). In that circumstance, WD
3 Notably, Oaster has not asked the Court to apply preclusive effect to any finding by the
Panel that Khronfeldt committed an unlawful overt act sufficient to support a conspiracy. (See
generally ECF No. 144.)
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Defendants’ argument that Khronfeldt, as an agent of WVC, “cannot tortiously interfere
with the Contract of his employer” becomes relevant. (ECF No. 145 at 26.)4
An agent who, “while acting within the scope of official duties, causes his or her
principal to breach a contract generally will not be held liable for tortious interference
with that contract” if they “acted, in part at least, to serve the corporation’s interests.”
W.O. Brisben Companies, 66 P.3d at 136. However, as Oaster points out, the privilege
is not absolute. “[A]n agent acts improperly,” and thus may be held liable for intentional
interference, “when he or she is motivated solely by the desire to harm one of the
contracting parties or to interfere in the contractual relations between the parties.” Id. at
137; see also id. (agent may be liable if they were “motivated out of personal animus
towards one or both of the contracting parties”).
Oaster appears to argue that Khronfeldt could not have been acting within the
scope of his agency in interfering with the Monument Agreement because he “was
removed as owner’s representative for the Monument Project and replaced by Ed
Houle,” and thus “had no responsibilities regarding the Monument Project” “[i]n February
and March of 2020.” (ECF No. 154 at 24.) Despite this, the Pre-Termination
Communications demonstrate that Khronfeldt was entrenched in the oversight of the
Monument Project and a driving force in the Leadership Team’s ultimate decision to
replace Oaster and Great West with Bucher Defendants and WD Defendants,
respectively. Indeed, even WD Defendants acknowledge Oaster’s deposition testimony
that “Khronfeldt went to the [L]eadership [T]eam and blamed the whole thing on me and
4 As an aside, the fact that a party could not be held directly liable for tortious
interference “does not mean . . . that [it] cannot be among the two or more parties necessary to
conspire to commit that tort.” Bituminous Cas. Corp., 2013 WL 452374, at *10.
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said, The Oaster Design Team is incompetent” and “this is just one of the problems that
he dreamt up to get us fired.” (ECF No. 145 at 21 (quoting ECF No. 145-1 at 227:18–
23).) The evidence is sufficient to raise a fact issue as to whether Khronfeldt’s actions
were motivated out of personal animus toward the Leadership Team, Oaster, or both.
Lastly, WD Defendants argue that Oaster cannot establish damages because it
was the Leadership Team, not WD Defendants or Khronfeldt, that made the decision to
terminate the Monument Agreement, and they are no longer parties to the case. (ECF
No. 145 at 26–27.) WD Defendants’ argument misses the mark because it assumes
that the unlawful overt act underlying the conspiracy was the termination of the
Monument Agreement itself. (Id. at 27 (“the overt act that allegedly caused Oaster’s
damages, namely termination of the Contract, was not made by an individual in the
alleged conspiracy”).) As discussed above, the underlying wrong is WD Defendants’
and/or Khronfeldt’s intentional interference with the Monument Agreement. It is the
damages resulting from this intentional interference that form the basis for Oaster’s civil
conspiracy claim. Heiserman, 898 P.2d at 1055.
For all these reasons, the Motion is denied as to the civil conspiracy claim.
C. Damages
Finally, WD Defendants argue they should be awarded summary judgment on
Oaster’s copyright infringement, tortious interference, and civil conspiracy claims
because the Panel already awarded Oaster damages on those claims against WVC and
Khronfeldt, and it cannot now double recover against WD Defendants. (ECF No. 145 at
28.) Notably, Oaster did not advance a legal argument in response to WD Defendants’
invocation of the double recovery rule—an oversight upon which the Court looks poorly.
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Nevertheless, the Court finds that WD Defendants’ argument fails for two reasons.
First, WD Defendants premise their argument on Oaster’s representation in the
Scheduling Order that it estimated its actual damages, “due to Defendants’ alleged
infringement,” were $200,000. (ECF No. 64 at 4.) Since the Panel awarded Oaster
$160,000 against WVC on its copyright infringement claims and $105,435.50 against
Khronfeldt on its intentional interference and conspiracy claims, exceeding the $200,000
estimate, WD Defendants reason that Oaster “has already . . . been made whole.”
(ECF No. 145 at 28; see also ECF No. 145-21 at 22.)
But WD Defendants ignore that Oaster also stated in the Scheduling Order that it
sought disgorgement of profits in connection with its copyright infringement claims and
estimated that “WD [] Defendants . . . realized . . . $1,871,919.15 in profits attributable to
its [sic] infringement of Plaintiff’s copyrights.” (ECF No. 64 at 4; see also ECF No. 154
at 6 ¶ 42 (noting “Plaintiff also seeks profits of the infringer”).) Moreover, Oaster’s
$200,000 estimate appears not to have included damages attributable to “Defendants’
tortious conduct,” nor any attorneys’ fees to which it claims entitlement. (Id. at 4–5.)
These damages allegedly recoverable from WD Defendants were not previously
considered by the Panel.
Second, even to the extent Oaster claims actual damages in this action that
overlap with those already awarded by the Panel against WVC and Khronfeldt, this
does not automatically preclude Oaster from seeking to hold WD Defendants liable for
the same damage. Another district court in this Circuit previously considered “whether
an arbitration award against one party precludes a plaintiff from pursuing the same
judgment in a different cause of action in federal court against another party.” Cantu
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Servs., Inc. v. Worley, 2020 WL 6140727, at *2 (W.D. Okla. Oct. 19, 2020). It observed
that, per the Restatement, “[w]hen [a] claimant . . . brings consecutive actions against
different persons liable for the same harm, the rendition of the judgment in the first
action does not terminate the claims against other persons who may be liable for the
loss in question.” Restatement (2d) Judgments § 49. Thus, a plaintiff is “not precluded
from holding multiple defendants liable for the same damage, but rather ‘payment by
one obligor extinguishes the liability of both.’” Worley, 2020 WL 6140727, at *2 (quoting
Conklin v. Comm’r, 897 F.2d 1027, 1029 (10th Cir. 1990) (citation omitted)). Put
differently, “while a plaintiff is precluded from double recovery, a plaintiff is not
precluded from pursuing judgment for the same damage from multiple defendants.”
Worley, 2020 WL 6140727, at *2. Based on these principles, the district court
concluded the plaintiff could pursue lost profits against the defendant, notwithstanding
an earlier arbitration award holding another party liable for lost profits arising from the
same harm. Id.
Thus, the Court agrees with WD Defendants that, should the jury award Oaster
actual damages arising from the same harm already redressed by the Panel, the double
recovery rule may preclude Oaster from twice collecting payment for those damages.
However, the Court declines to fully resolve that issue in the abstract now, where WD
Defendants do not argue that WVC and/or Khronfeldt have tendered payment on the
confirmed arbitration award. In the meantime, Oaster is entitled to pursue judgment
against WD Defendants for even identical harms.
For these reasons, the Court denies the Motion to the extent it seeks summary
judgment on all remaining claims based on Oaster’s purported lack of damages.
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IV. CONCLUSION
For the reasons set forth above, WD Defendants’ Motion for Summary Judgment
(ECF No. 145) is GRANTED IN PART and DENIED IN PART as follows:
1. The Motion is GRANTED as to Oaster’s fifth cause of action for violations
of the CCPA and seventh cause of action for unjust enrichment. (ECF No. 1 at ¶¶ 120–
134; id. at ¶¶ 147–151.)
2. The Motion is DENIED in all other respects.
3. This case remains set for a Final Trial Preparation Conference on
September 19, 2025 at 11:00 a.m. and a 5-day Jury Trial to commence on October 6,
2025 at 8:30 a.m. in Courtroom A801.
Dated this 24th day of April, 2025.
BY THE COURT:
______________________
William J. Martínez
Senior United States District Judge
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