Max Fire Apparatus, Inc v. Rosenbauer America LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 23-cv-01867-NYW-MEH
MAX FIRE APPARATUS, INC.,
Plaintiff,
v.
ROSENBAUER AMERICA, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant’s Motion for Partial Summary
Judgment (the “Motion” or “Motion for Partial Summary Judgment”). [Doc. 29, filed June
27, 2024]. 	The Court has reviewed the Motion and the related briefing and concludes
that oral argument would not materially assist in the resolution of this matter. 	For the
reasons set forth below, the Motion for Partial Summary Judgment is respectfully
GRANTED in part and DENIED in part.
BACKGROUND
This case arises out of a contract dispute between Defendant Rosenbauer
America, LLC (“Defendant” or “RBA”), a manufacturer of fire and emergency vehicles,
and Plaintiff Max Fire Apparatus, Inc. (“Plaintiff” or “Max Fire”), a seller and distributor of
RBA vehicles. [Doc. 1 at ¶¶ 6, 8]. Briefly, in 2016, Plaintiff and Defendant entered into a
Dealer Agreement that gave Plaintiff the right to market, sell, and service RBA vehicles.
[Id. at ¶¶ 9–10]. Defendant terminated the Dealer Agreement in 2023. [Id. at ¶¶ 45–46].
Plaintiff 	alleges, 	among 	other 	things, 	that 	Defendant’s 	termination 	of 	the 	Dealer
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Agreement breached the Agreement and an associated Dealer Handbook and violated
Defendant’s duty of good faith and fair dealing. [Id. at ¶¶ 58, 65–66, 74].
In this case, Max Fire asserts four claims against RBA: 	(1) breach of contract
based on an alleged breach of the Dealer Agreement (“Count I”),1 [id. at ¶¶ 48–58];
(2) breach of contract based on an alleged breach of Dealer Handbooks (“Count II”), [id.
at ¶¶ 59–66]; (3) a claim based on an alleged breach of the implied duty of good faith and
fair dealing (“Count III”), [id. at ¶¶ 67–74]; and (4) a claim alleging a violation of U.C.C.
§ 2-305(2) (“Count IV”), [id. at ¶¶ 75–80]. Defendant now moves for judgment in its favor
on Plaintiff’s first three claims, but only to the extent they seek “future lost profits or lost
business value based on wrongful termination” of the Dealer Agreement. [Doc. 29 at 5];2
see also [id. at 20 (requesting that the Court “grant [the Motion] and find, as a matter of
law, that Max Fire cannot be awarded damages for future lost profits or lost business
value based on RBA’s termination of the Dealer Agreement”)]. Plaintiff has responded in
opposition to the Motion, see [Doc. 37], and Defendant has replied, see [Doc. 40]. 	The
Court addresses the Parties’ arguments below.
LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any material fact
1 Although pleaded as a single count of breach of contract, Max Fire articulates a few
different theories of breach of contract with respect to the Dealer Agreement. See [Doc.
1 at ¶¶ 49–58]. 	The instant Motion for Partial Summary Judgment only addresses one
theory brought under Count I (i.e., wrongful termination), and thus, the Court does not
pass on any other theory.
2 When citing materials filed on the docket the Court generally cites to the page numbers
generated by the CM/ECF system, which appear at the top of each page, rather than the
page numbers assigned by the Parties. 	However, when citing to transcripts, the Court
cites to the page and line numbers appearing on the transcript.
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and the movant is entitled to judgment as a matter of law.” 	Fed. R. Civ. P. 56(a). 	“A
dispute is genuine if there is sufficient evidence so that a rational trier of fact could resolve
the issue either way. A fact is material if under the substantive law it is essential to the
proper disposition of the claim.” 	Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194
(10th Cir. 2011) (cleaned up).
A movant who does not bear the ultimate burden of persuasion at trial does not
need to disprove the other party’s claim; rather, the movant must only point the Court to
a lack of evidence for the other party on an essential element of that party’s claim. Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). Once the movant has met
this initial burden, the burden then shifts to the nonmoving party to “set forth specific facts
showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986) (quotation omitted). 	When considering the evidence in the record, the
Court cannot and does not weigh the evidence or determine the credibility of witnesses.
See Fogarty v. Gallegos, 523 F.3d 1147, 1165 (10th Cir. 2008). 	At all times, the Court
views the record in the light most favorable to the nonmoving party. Banner Bank v. First
Am. Title Ins. Co., 916 F.3d 1323, 1326 (10th Cir. 2019).
UNDISPUTED MATERIAL FACTS
The following material facts are drawn from the summary judgment record and are
undisputed unless otherwise noted.
1. 	Plaintiff and Defendant entered into the Dealer Agreement in 2016. 	[Doc.
29 at ¶ 1; Doc. 37 at 6 ¶ 1; Doc. 1-1 at 1].
2. 	The Agreement was “automatically renewed on a yearly basis unless
terminated in writing by either party.” [Doc. 29 at ¶ 8; Doc. 37 at 6 ¶ 8; Doc. 1-1 at 1].
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3. 	As for the manner of termination, the Dealer Agreement required that
“[t]ermination of this Agreement shall be in writing within thirty (30) days of notice via
Certified Mail by either party.” [Doc. 29 at ¶ 9; Doc. 37 at 6 ¶ 9; Doc. 1-1 at 1 § 10].
4. 	In addition, the Parties agreed to “Anti-Corruption Rules & Ethics.” [Doc. 29
at ¶ 12; Doc. 37 at 6 ¶ 12; Doc. 1-1 at 2].3
5. 	The Anti-Corruption Rules & Ethics stated that Defendant could “terminate
the Agreement with immediate effect” if Plaintiff failed to meet certain ethics obligations
or if Defendant’s review of Plaintiff’s compliance with “anti-corruption and anti-trust rules”
resulted in “severe findings.” [Doc. 29 at ¶ 13; Doc. 37 at 6 ¶ 13; Doc. 1-1 at 2 §§ 1–2].
6. 	The Dealer Agreement also referenced a “Dealer Handbook,” stating that
“[Max Fire] shall abide by established [RBA] policies and the latest revision of the [RBA]
Dealer Handbook.” [Doc. 29 at ¶ 5; Doc. 37 at 6 ¶ 5; Doc. 1-1 at 1 § 5].
7. 	In November 2022, Plaintiff received an August 2022 version of the Dealer
Handbook. [Doc. 29 at ¶ 14; Doc. 37 at 6 ¶ 14; Doc. 30 at 110:7–111:22].
8. 	The Dealer Handbook contained a termination section that stated:
15.0 Termination
15.1 	Though not the practice of Rosenbauer America to terminate
its dealers, occasions arise when this step is necessary.
15.2 	Reasons for termination include, but are not limited to, non-
performance, marginal performance, or critical failures related
to ethical business conduct or behaviors.
15.3 	Any decision to terminate a dealer shall be for reasons
deemed adverse to the interests and long-term goals and
objectives of Rosenbauer America.
3 The Parties dispute whether the “Anti-Corruption Rules & Ethics” were part of the Dealer
Agreement or constituted a separate agreement. See [Doc. 29 at ¶ 12; Doc. 37 at 6 ¶ 12].
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[Doc. 29 at ¶ 18; Doc. 37 at 7 ¶ 18; Doc. 1-4 at 24 § G.15].
9. 	The Dealer Handbook also stated that Defendant “reserve[d] the right to
deviate 	from 	any 	of 	[the 	Dealer 	Handbook’s] 	policies 	and 	procedures, 	if 	special
circumstances warrant such action, as determined by the President of [RBA].” [Doc. 29
at ¶ 21; Doc. 37 at 7 ¶ 21;4 Doc. 1-4 at 9 § A.7.1].
10. 	On February 17, 2023, Defendant sent Plaintiff a letter terminating the
Dealer Agreement with 15 days’ notice. [Doc. 29 at ¶ 22; Doc. 37 at 7 ¶ 22; Doc. 29-1 at
¶ 3; Doc. 29-2 at 2].
11. 	The letter stated that because RBA “recently became aware that Max Fire
is experiencing cash constraints and is unable to pay its obligations as they become due,”
RBA had elected to terminate Max Fire as a dealer. [Doc. 29 at ¶ 23; Doc. 37 at 7 ¶ 23;
Doc. 29-2 at 2].
ANALYSIS
As mentioned above, Defendant seeks partial summary judgment in its favor on
Counts I, II, and III, to the extent these claims seek lost profits or lost business value
damages arising out of RBA’s termination of the Dealer Agreement. [Doc. 29 at 5]. The
Court addresses each claim in turn.
I. 	Count I: Breach of Contract – Dealer Agreement Termination
Defendant first contends that Plaintiff’s Count I fails to the extent it is “based on
[RBA] terminating the [Dealer Agreement] without cause” because the Dealer Agreement
does not require for-cause termination. [Id. at 12]. It argues that the Dealer Agreement
4 Plaintiff disputes Defendant’s “characterization of section A.7.1” but does not dispute
that this language is contained in the Dealer Handbook. [Doc. 37 at 7 ¶ 21].
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is unambiguous and permits termination for any reason (or no reason), such that
termination of the Dealer Agreement without cause could not have been a breach of the
Agreement. [Id. at 12–15]. Max Fire counters that the Dealer Agreement is “[c]onfusing
and [a]mbiguous” and that it cannot be terminated at will. [Doc. 37 at 11]. It also directs
the Court to extrinsic evidence regarding the Parties’ subjective impressions of what the
Dealer Agreement required with respect to termination and argues that the Court should
credit this evidence to find that “both parties to the Dealer Agreement understood that
termination could only be for cause.” [Id. at 17–19].
A. 	Interpreting Contracts Under Colorado Law
This Court has diversity jurisdiction over this case pursuant to 28 U.S.C. § 1332,
see [Doc. 1 at ¶ 4], and for this reason, the Court applies the substantive law of the forum
state, including the forum’s choice-of-law rules, Berry & Murphy, P.C. v. Carolina Cas.
Ins. Co., 586 F.3d 803, 808 (10th Cir. 2009) (applying Colorado law). The Parties agree
that Colorado law governs this case, see [Doc. 29 at 11–12; Doc. 37 at 10], and the Court
follows the Parties’ mutual understanding, see Grynberg v. Total S.A., 538 F.3d 1336,
1346 (10th Cir. 2008).
“In 	a 	contract 	case, 	a 	motion 	for 	summary 	judgment 	allows 	for 	contract
interpretation as a matter of law.” Stroh Ranch Dev., LLC v. Cherry Creek S. Metro. Dist.
No. 2, 935 F. Supp. 2d 1052, 1055 (D. Colo. 2013) (citing Lake Durango Water Co., Inc.
v. Pub. Utils. Comm’n, 67 P.3d 12, 20 (Colo. 2003)). “[A] contract must be construed to
ascertain and effectuate the intent of the parties as determined primarily from the
language of the contract.” E. Ridge of Fort Collins, LLC v. Larimer & Weld Irrigation Co.,
109 P.3d 969, 974 (Colo. 2005). 	“Courts must examine the contract as a whole and
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attempt to determine the [parties’] intent by reference to all of the contract’s terms and
provisions without viewing clauses or phrases in isolation.” 	SolidFX, LLC v. Jeppesen
Sanderson, Inc., 935 F. Supp. 2d 1069, 1085 (D. Colo. 2013), aff’d, 841 F.3d 827 (10th
Cir. 2016).
Courts are often tasked with determining, as a matter of law, whether contract
terms are ambiguous—i.e., whether the terms are “fairly susceptible to more than one
interpretation.” E. Ridge, 109 P.3d at 974 (quotation omitted); see also Stroh Ranch, 935
F. Supp. 2d at 1060 (deciding whether a contract is ambiguous is a legal determination
for the court to make). 	If the contract is ambiguous, then “the meaning of its terms is
generally an issue of fact to be determined in the same manner as other factual issues.”
E. Ridge, 109 P.3d at 974. In other words, at summary judgment, the “moving party must
first show that the contract is unambiguous and can be construed as a matter of law.”
Stroh Ranch, 935 F. Supp. 2d at 1055. 	If it cannot meet this burden and the Court
concludes that the contract is ambiguous, then “interpretation becomes a question of fact
requiring extrinsic evidence to clarify the meaning of the contract.” Id.
However, there is conflicting authority dictating the scope of the interpreting court’s
review in deciding whether a contract is ambiguous. For example, the Colorado Supreme
Court has stated that, “[i]n determining whether a contract is ambiguous, the court may
conditionally admit extrinsic evidence on this issue.” 	Pepcol Mfg. Co. v. Denver Union
Corp., 687 P.2d 1310, 1314 n.3 (Colo. 1984). 	Recent state court decisions have
reiterated this approach. See, e.g., In re Marriage of Sunderman, No. 23CA1237, 2024
WL 3944252, at *4 (Colo. App. July 3, 2024) (“[A] court may consider extrinsic evidence
to determine whether an agreement is ambiguous.”). 	But the Colorado Supreme Court
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more recently stated that “[a]n ambiguity must appear in the four corners of the document
before extrinsic evidence can be considered.” 	Am. Fam. Mut. Ins. Co. v. Hansen, 375
P.3d 115, 117 (Colo. 2016). Colorado courts follow this directive, too. See, e.g., Conlon
ex rel. Conlon v. Harder, No. 23CA0739, 2024 WL 4003337, at *5 (Colo. App. Apr. 25,
2024); see also Renegade Oil & Gas Co., LLC v. Anadarko Petroleum Corp., No.
23CA0129, 2024 WL 4034188, at *4 n.4 (Colo. App. Mar. 7, 2024) (recognizing the
conflict in authority).
Even in those cases holding that a court may consider extrinsic evidence in initially
deciding whether a contract is ambiguous, it appears well-settled that the types of
evidence a court may consider in this circumstance is limited. Specifically, the court “may
consider extrinsic evidence bearing upon the meaning of the written terms, such as
evidence of local usage and of the circumstances surrounding the making of the contract,”
but it “may not consider the parties’ own extrinsic expressions of intent.” 	Cheyenne
Mountain Sch. Dist. No. 12 v. Thompson, 861 P.2d 711, 715 (Colo. 1993) (quotation
omitted).
B. 	The Dealer Agreement
Defendant contends that it is entitled to partial summary judgment on Plaintiff’s
Count I—only insofar as it is based on the alleged wrongful termination of the contract—
because the Dealer Agreement does not require that termination of the Agreement be for
cause. [Doc. 29 at 12]. Max Fire responds that the contract is ambiguous because (1) the
language contained in Section 10 of the Dealer Agreement is confusing and unclear,
[Doc. 37 at 12]; (2) Section 10 is silent on permissible reasons for termination of the
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Agreement, [id. at 13–15]; and (3) other circumstances surrounding the contract support
a conclusion that both Parties thought termination would only be for cause, [id. at 17–19].
1. 	The Contractual Language
The plain language of the contract is the “starting point” in the Court’s analysis.
SolidFX, 935 F. Supp. 2d at 1085. 	The Dealer Agreement’s opening paragraph states
that the Agreement “shall be automatically renewed on a yearly basis unless terminated
in writing by either party.” 	[Doc. 1-1 at 1]. 	And Section 10 of the Agreement states,
verbatim and in full, that “Termination of this Agreement shall be in writing within thirty
(30) days of notice via Certified Mail by either party.” 	[Id. at 1 § 10]. 	Defendant argues
that because there is no provision in the contract requiring cause for termination, then the
Agreement may be terminated without cause. [Doc. 29 at 13–15]. In response, Plaintiff
focuses on Section 10, arguing that “this language is confusing and badly written”
because, as written, it requires termination within 30 days “of notice,” not termination by
30 days’ notice, and provides no guidance as to whether the writing and mail requirements
“apply to the termination, the notice of termination, or both.” [Doc. 37 at 12]. Plaintiff also
argues that because Section 10 is silent on permissible reasons for termination and
“merely establishes the baseline rules regarding the process of termination,” [id. at 14],
“it would be contrary to Colorado law to interpret this silence as an unambiguous assertion
that termination is at-will,” [id. at 13].
As Plaintiff itself states, Section 10 concerns the appropriate manner or method of
effectuating termination; it is not the clause within the Dealer Agreement that creates the
right to terminate the Agreement. 	That right is created in the contract’s opening
paragraph, which provides that the Agreement “shall be automatically renewed on a
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yearly basis unless terminated in writing by either party,” without any express limitation
on the permissible reasons for termination. 	[Doc. 1-1 at 1]. 	The fact that Section 10 is
unclear about how a party may terminate the Agreement does not create ambiguity as to
why a party may terminate the Agreement. 	Indeed, neither the opening paragraph nor
Section 10 even suggests that there are substantive requirements before a termination
can be effectuated.
Based on this Court’s research, it is widely accepted that where a contract is silent
on permissible reasons for termination, the contracting parties may terminate the
agreement for any reason. 	See, e.g., Kindergartners Count, Inc. v. DeMoulin, 249 F.
Supp. 2d 1233, 1243 (D. Kan. 2003) (termination clause with only one requirement—60
days’ notice—“include[d] an unambiguous reservation by both parties of discretion to
terminate the agreement”); Dorso Trailer Sales, Inc. v. Am. Body & Trailer, Inc., 372
N.W.2d 412, 415 (Minn. Ct. App. 1985) (contract permitting either party to terminate by
giving 90 days’ notice “unambiguously allow[ed] termination of the agreement at the will
of either party” because “[t]he only restriction on termination is the 90 days’ notice
requirement”); Haynes Trane Serv. Agency, Inc. v. Am. Standard, Inc., 51 F. App’x 786,
789 (10th Cir. 2002) (applying Wisconsin law and affirming lower court’s conclusion that
contract permitting termination “by either party upon 30 days[’] notice to the other” was
terminable at will); Joseph Victori Wines, Inc. v. Vina Santa Carolina S.A., 933 F. Supp.
347, 352 (S.D.N.Y. 1996) (“[W]here a contract containing a written termination clause is
silent as to whether cause is required for termination, the contract is terminable without
cause.”). 	While the Parties do not cite, and the Court could not locate, any Colorado
cases directly on point, the Court finds the substantial number of cases interpreting similar
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contracts in the same manner to be highly persuasive. 	Simply put, “the fact that the
termination provision is silent on the subject of grounds for termination does not create
an ambiguity.” 	Morton & Assocs., LLC v. McCain Foods USA, Inc., 204 P.3d 167, 170
(Or. App. 2009).
Plaintiff does not direct the Court to any legal authority supporting its argument
that this sort of silence creates ambiguity. 	See [Doc. 37 at 14–15]. 	It argues only that
the cases cited by Defendant are “inapposite” because “the Dealer Agreement specifically
references the Dealer Handbook, which contains a restriction on termination,” whereas
the cases cited by RBA “involve stand-alone termination provisions.” [Id. at 13]. It argues,
without 	supporting 	legal 	authority, 	that 	the 	Dealer 	Handbook 	“is 	incorporated 	by
reference” into the Dealer Agreement. [Id.].
Plaintiff’s broad-brush argument does not address any of the legal requirements
for incorporating a document by reference into a contract. 	“In Colorado, for an
incorporation by reference to be effective, it must be clear that the parties to the
agreement had knowledge of and assented to the incorporated terms” and “the terms to
be incorporated generally must be clearly and expressly identified.” 	French v. Centura
Health Corp., 509 P.3d 443, 449 (Colo. 2022) (quotation omitted). 	“General or oblique
references to a document to be incorporated, in contrast, are usually insufficient to
support a finding that the document was incorporated by reference.” Id. at 450. Plaintiff
does not argue that the Parties had knowledge of and assented to the terms of the 2022
Dealer Handbook at the time they executed the 2016 Dealer Agreement or explain how
the Agreement’s general requirement that Max Fire comply with all RBA policies and all
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iterations of forthcoming handbooks clearly and expressly incorporates the entirety of the
2022 Dealer Handbook into the Dealer Agreement. See generally [Doc. 37].
Moreover, 	Plaintiff’s 	argument 	ignores 	the 	fact 	that 	the 	Dealer 	Agreement
references the Dealer Handbook only to require that Max Fire comply with the Handbook;
there is no similar provision in the Agreement requiring RBA to comply with the Handbook.
See [Doc. 1-1 at 1 § 5]; cf. 11 Williston on Contracts § 30:25 (4th ed. May 2024 update)
(“[W]hen incorporated matter is referred to for a specific purpose only, it becomes a part
of the contract for that purpose only, and should be treated as irrelevant for all other
purposes.”). Compare [Doc. 1-1 at § 5 (“[Plaintiff] shall abide by . . . the latest revision of
the [RBA] Dealer Handbook.”)], with Peace v. Panorama Orthopedics & Spine Ctr., Inc.,
No. 23-cv-01027-PAB-JPO, 2024 WL 4123498, at *7 (D. Colo. Sept. 9, 2024) (concluding
that extraneous document was incorporated by reference into a contract where the
signatory to the contract expressly acknowledged and agreed to be bound by the terms
and conditions of the document).
Furthermore, reviewing the Dealer Agreement with the Anti-Corruption Rules &
Ethics also supports a finding that the Dealer Agreement unambiguously permits at-will
termination.5 Unlike the Dealer Agreement, the Anti-Corruption Rules & Ethics expressly
5 Max Fire contends in its Response that the Dealer Agreement is an entirely separate
contract from the Anti-Corruption Rules & Ethics document. 	See [Doc. 37 at 10]. 	The
Court notes that the Dealer Agreement and Anti-Corruption Rules & Ethics appear to
share a signature page, see [Doc. 1-1 at 1–3], and that Plaintiff referenced both pages
together as the “Dealer Agreement” in its Complaint, see [Doc. 1 at ¶ 9]. The Court need
not decide whether the documents are one contract or two separate contracts because
the Parties agree that whether they consist of one or two agreements, the documents
must be “[v]iewed together.” 	See [Doc. 37 at 10]; see also [Doc. 40 at 5 (“Whether two
contracts or one, they were signed via a combined signature page. 	As such, principles
of interpretation apply to the entire document.”)]; 11 Williston on Contracts § 30:25
(“Generally, all writings which are part of the same transaction are interpreted together.”).
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provide certain circumstances in which RBA can terminate the Dealer Agreement
immediately: (1) upon Max Fire’s breach of certain ethical obligations or (2) if there were
“severe findings” made during a review of Max Fire’s compliance with ethical rules. [Doc.
1-1 at 2 §§ 1–2]. Together, these documents show the Parties’ intent to permit immediate
termination in limited for-cause situations but to otherwise require 30 days’ notice for
termination, with or without cause. See Morton & Assocs., 204 P.3d at 170 (interpreting
similar provisions).6 In sum, the Court agrees with RBA that the Dealer Agreement is not
ambiguous and does not require that termination be supported by cause.
2. 	The Circumstances Surrounding the Contract
In the alternative, Plaintiff argues that the Court should consider certain facts
surrounding the contract—such as the Parties’ course of dealing and the Parties’ own
extrinsic expressions of intent—to determine the Parties’ intent. 	[Doc. 37 at 17–19]; cf.
[id. at 16 (Plaintiff relying on its president’s “understanding and expectations regarding
RBA’s obligations to Max Fire”)]. Max Fire contends that the Parties’ course of conduct
is “consistent with an understanding that [RBA] cannot unilaterally terminate a dealer . . .
without cause.” [Id. at 17]. Relying on East Ridge, Plaintiff asserts that the Court “must
give effect to the intention of the parties by considering ‘competent evidence bearing upon
the construction given to the instrument by the parties themselves, by their acts and
conduct in its performance.’” [Id. (quoting E. Ridge, 109 P.3d at 974)]. However, the East
Ridge decision does not hold that a court must consider the contracting parties’
6 To the extent Plaintiff’s argument that the Dealer Agreement is ambiguous is based on
the Dealer Handbook, see [Doc. 37 at 11 (Plaintiff arguing that Defendant’s argument
“ignores . . . the fact that the Dealer Agreement specifically references the Dealer
Handbook, which requires for-cause termination”)], the Court addresses that argument
below.
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construction of the contract or related acts to determine if a contract is ambiguous.
Rather, the East Ridge court stated:
When an ambiguity has been determined to exist, the meaning of its terms
is generally an issue of fact to be determined in the same manner as other
factual issues. 	Courts must then give effect to the intention of the parties
by considering competent evidence bearing upon the construction given to
the instrument by the parties themselves, by their acts and conduct in its
performance. 	Thus, 	when 	a 	court 	determines 	that 	a 	document 	is
ambiguous, it may then consider parol evidence to explain or clarify the
meaning of a document or the effect of its provisions.
109 P.3d at 974 (quotation and citations omitted and emphasis added). In other words,
the Court may consider evidence of the Parties’ own interpretation of the Agreement or
the Parties’ conduct only after an initial determination that the Agreement is ambiguous,
and not before. 	See id. 	Indeed, “extrinsic evidence cannot create ambiguity” in a
contract, but is instead “an aid to ascertaining the intent of the parties once an ambiguity
is found.” 	Hansen, 375 P.3d at 117. 	And even if the Court were to consider extrinsic
evidence to decide whether the contract is ambiguous, it cannot consider “the parties’
own extrinsic expressions of intent.” 	Cheyenne Mountain Sch. Dist., 861 P.2d at 715
(quotation omitted); see also Renegade Oil, 2024 WL 4034188, at *4 (declining to rely on
the plaintiff’s president’s attestations “to his own expectations at contract formation”).
Plaintiff’s argument does not change the Court’s determination that the Dealer
Agreement is unambiguous. 	Therefore, the Court agrees with RBA’s argument that
“termination without cause cannot be the basis for a breach of contract claim.” [Doc. 29
at 15]. The Motion for Partial Summary Judgment is respectfully GRANTED with respect
to Count I, insofar as it is based on the alleged wrongful termination of the Dealer
Agreement. See [Doc. 1 at ¶¶ 1, 47; id. at 13 ¶ C].
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II. 	Count II: Breach of Contract – 2022 Dealer Handbook
RBA next turns to Count II, which alleges in pertinent part a breach of the 2022
Dealer Handbook. See [id. at ¶¶ 64–66]. RBA argues that “Max Fire does not and cannot
allege that the Dealer Handbook is a standalone contract with its own offer, acceptance,
and consideration.” [Doc. 29 at 15–16]. Then, it asserts that that there is no provision in
the Dealer Agreement or the Dealer Handbook that specifically obligates RBA to comply
with the Dealer Handbook or incorporates the terms of the Dealer Handbook into the
Dealer Agreement. [Id. at 16]. For these reasons, it concludes that “RBA did not breach
the Dealer Handbook by terminating Max Fire under the terms of the Dealer Agreement.”
[Id.].
As for Defendant’s first argument, Max Fire responds that “[u]nder Colorado law,
a handbook or policy manual may form the basis of a contract,” citing employment-law
cases in support. 	[Doc. 37 at 16–17]. 	It argues that the Dealer Handbook “is clearly a
contract,” but even if it were unclear, “whether the parties have entered into a contract is
a fact question for the jury to decide” that cannot be resolved at summary judgment. [Id.
at 17]. 	Plaintiff then asserts that it detrimentally relied on RBA’s representations in the
Dealer Handbook and suggests that this detrimental reliance supports a promissory
estoppel claim. [Id. at 19–20]. Plaintiff does not directly respond to Defendant’s argument
that the Dealer Handbook places obligations only on Max Fire, not RBA. See generally
[id. at 15–20].
The Court addresses Plaintiff’s last argument first. 	In short, the Court need not
decide whether the Dealer Handbook is sufficient to support a cognizable promissory
estoppel claim because Plaintiff does not assert a promissory estoppel claim in this case.
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See [Doc. 1]. 	While Rule 8 of the Federal Rules of Civil Procedure permits a party to
plead alternative or inconsistent claims or theories, see Fed. R. Civ. P. 8(d)(2), that same
rule requires parties to make clear the type of claim they are asserting, see Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (explaining that Rule 8 requires enough information
to give the defendant fair notice of the claim and the grounds on which it rests); Polovino
v. Int’l Bhd. of Elec. Workers, AFL-CIO, No. 15-cv-00023-JHP-PJC, 2015 WL 4716543,
at *4 (N.D. Okla. Aug. 7, 2015) (“[A]t a bare minimum, . . . a complaint must specify the
legal basis for any claim.”);
Count II is titled “Breach of Contract” with the subheading “Breach of Dealer
Handbooks.” 	[Doc. 1 at 10]. 	It specifically lists numerous ways in which Defendant
allegedly breached the Dealer Handbook. 	[Id. at ¶¶ 63, 66]. 	On the other hand, the
Complaint does not contain the words “promissory estoppel” or “promise” or allege that
Plaintiff relied on any particular promise of Defendant. 	See generally [id.]; see also
Nelson v. Elway, 908 P.2d 102, 110 (Colo. 1995) (the three elements of a promissory
estoppel claim are “(1) a promise which the promisor should reasonably expect to induce
action or forbearance of a definite and substantial character on the part of the promisee;
(2) action or forbearance induced by that promise; and (3) the existence of circumstances
such that injustice can be avoided only by enforcement of the promise”). In other words,
it is clear from the face of the Complaint that Plaintiff—which is represented by counsel
and has been since the beginning of this case—does not assert a promissory estoppel
claim in the Complaint. See Mann v. Boatright, 477 F.3d 1140, 1148 n.4 (10th Cir. 2007)
(the courtesy of construing pro se filings liberally “need not be extended to licensed
attorneys”); Braun v. Orkin, LLC, No. 3:20-cv-00432-TAV-DCP, 2021 WL 6275255, at *3
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(E.D. Tenn. May 6, 2021) (concluding that complaint did not give notice of any promissory
estoppel claim where it “[did] not say the words ‘promissory estoppel’ and in fact explicitly
state[d] a different cause of action”).
The United States Court of Appeals for the Tenth Circuit has held that “the inclusion
of new allegations in a response to a motion for summary judgment” may be treated “as
a potential request to amend the complaint.” 	Martinez v. Potter, 347 F.3d 1208, 1211
(10th Cir. 2003). But here, Plaintiff makes no indication that it has any desire to amend
its Complaint, as it “never sought leave to file an amended complaint, [it] never asked that
[its] response to summary judgment be treated as a request to amend, and [it] never filed
an amended complaint.” Fuqua v. Lindsey Mgmt. Co., 321 F. App’x 732, 735 (10th Cir.
2009) (finding no error in district court’s denial of opportunity to amend). Even construing
Plaintiff’s new formulation of Count II as an implicit request to amend, the Court declines
to permit amendment because any request to amend was unduly delayed—having been
raised after the discovery and dispositive motions deadlines, see [Doc. 23 at 10]—and
because permitting Plaintiff to proceed on a new theory at this late stage of the case
would be unfair to Defendant and would prolong these proceedings, see Marandola v.
Pueblo Suzuki, Inc., No. 20-cv-02113-CNS-KAS, 2024 WL 4308195, at *8 n.15 (D. Colo.
Sept. 26, 2024); see also Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993)
(leave to amend may be denied based on “undue delay, undue prejudice to the opposing
party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously
allowed, or futility of amendment”). 	As such, the Court’s review is limited to analyzing
Count II as a breach of contract claim only, as expressly pleaded.
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A. 	The Dealer Handbook as a Standalone Contract
With respect to the Dealer Handbook, RBA argues that Plaintiff cannot prove that
the Handbook is an enforceable contract by itself. [Doc. 29 at 15–16]. In its Response,
Plaintiff asserts that “[u]nder Colorado law, a handbook or policy manual may form the
basis of a contract.” 	[Doc. 37 at 16]. 	It further asserts that “whether the parties have
entered into a contract is a fact question for the jury to decide,” so even though Plaintiff
believes the Handbook “is clearly a contract,” this is not an issue that can be decided at
summary judgment. [Id. at 17].
The Court is respectfully unpersuaded by Plaintiff’s arguments. First, the Court is
not convinced that employment law cases should guide the Court’s analysis here.
Colorado courts recognize an exception to the at-will employment doctrine where “an at-
will employee might be able to enforce termination procedures in an employee handbook
under an implied contract . . . theory in some circumstances.” 	Trujillo v. Atmos Energy
Corp., 896 F. Supp. 2d 949, 955 (D. Colo. 2012). “To enforce termination procedures in
an employee handbook, the employee must demonstrate that the employer manifested
his willingness to enter into a bargain, and that the employee’s initial or continued
employment constituted acceptance of and consideration for the procedures.” Id. (citing
Cont’l Air Lines, Inc. v. Keenan, 731 P.2d 708, 711 (Colo. 1987)). 	However, Plaintiff
directs the Court to no Colorado cases extending this limited doctrine to a business
contract between two corporate entities. 	See generally [Doc. 37]. 	Absent any such
authority, this federal Court declines to approve such a broad extension of state law given
the vast differences between an employer-employee relationship and a contractual
relationship between two corporate entities dealing at arms’ length. 	Cf. Campos de
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Suenos, Ltd. v. Cnty. of Bernalillo, 28 P.3d 1104, 1112 (N.M. App. 2001) (applying New
Mexico law but explaining that “[t]he recognition of implied-in-fact contracts in the
employment setting addresses the imbalance of power between the parties and enforces
the reasonable expectations employers create in their employees”).
Moreover, even if the Court were to rely on employment law cases to analyze
whether the Dealer Handbook can be construed as an implied contract, Plaintiff has not
met its burden at summary judgment to establish a genuine issue of material fact as to
contract formation. 	In the employment context, an employee seeking to enforce an
implied contract must demonstrate:
first, that in promulgating the termination procedures the employer was
making an offer to the employee—that is, the employer manifested his
willingness to enter into a bargain in such a way as to justify the employee
in understanding that his assent to the bargain was invited by the employer
and that the employee’s assent would conclude the bargain—and second,
that his initial or continued employment constituted acceptance of and
consideration for those procedures.
Keenan, 731 P.2d at 711 (citation omitted).
Plaintiff argues that the Dealer Handbook “is supported by Max Fire’s continued
service as an RBA dealer,” but it does not make any argument or present any evidence
that RBA’s promulgation of the Dealer Handbook constituted any sort of contract offer.
See [Doc. 37 at 17 (arguing only that “RBA created and distributed the Dealer Handbook
to its dealers”)]. And Plaintiff’s cursory argument that contract formation “is a fact question
for the jury that cannot be determined on summary judgment,” [id.], without directing the
Court to specific evidence that creates a genuine issue of material fact as to whether the
Dealer Handbook is a contract, is insufficient to survive summary judgment, Anderson,
477 U.S. at 250.
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B. 	Whether the Dealer Handbook Obligates RBA
Even setting aside the above analysis, Defendant provides another basis for the
Court to conclude that Plaintiff has not shown that the Dealer Handbook required RBA to
provide a cause basis for termination of the Dealer Agreement. Defendant argues that it
has no obligation to comply with the termination provisions in the Dealer Handbook
because the Dealer Agreement only requires Max Fire to comply with the Dealer
Handbook. [Doc. 29 at 16]. Plaintiff responds that the Dealer Handbook “made clear that
[it] applies to both RBA and its dealers” because it “establishes written policies that
address the various procedures between the Rosenbauer America companies, as well as
to [sic] define the relationship between the Rosenbauer America companies and its
dealers.” [Doc. 37 at 15 (quoting [Doc. 1-4 at 8 § A.3.1])].
The Court agrees with Defendant. The Dealer Agreement provides that Max Fire
“shall abide by . . . the latest revision of the [RBA] Dealer Handbook,” [Doc. 1-1 at 1 § 5],
but it does not contain any similar language obligating RBA to comply with the Dealer
Handbook, see [id.]. And although the Handbook’s termination provisions state that “[a]ny
decision to terminate a dealer shall be for reasons deemed adverse to the interests and
long-term goals and objectives of” RBA, [Doc. 1-4 at 24 § G.15.3], it also says that RBA,
“at all times and at its discretion, reserves the right to deviate from any of these policies
and procedures, if special circumstances warrant such action, as determined by the
President of the company,” [id. at 9 § A.7.1]. Plaintiff does not address this language or
argue that it does not apply. See generally [Doc. 37]. Thus, neither the Dealer Agreement
nor the Dealer Handbook imposed a contractual obligation on RBA to comply with the
Handbook’s termination provision.
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In sum, the Court has concluded as a matter of law that the Dealer Handbook is
not a contract and imposes no contractual obligations on RBA, and Plaintiff has not
demonstrated 	any 	genuine 	issue 	of 	material 	fact 	precluding 	summary 	judgment.
Therefore, to the extent Defendant seeks summary judgment on the portion of Count II
alleging a breach of the Dealer Handbook based on the alleged wrongful termination of
the Dealer Agreement, see [Doc. 1 at ¶¶ 65–66], the Motion for Partial Summary
Judgment is respectfully GRANTED.
III. 	Count III: Duty of Good Faith and Fair Dealing
In Count III, Plaintiff alleges that Defendant breached the duty of good faith and
fair dealing by, inter alia, terminating the Dealer Agreement. [Doc. 1 at ¶ 74]. Defendant
seeks summary judgment in its favor on this portion of this claim. 	[Doc. 29 at 12]. 	It
argues that the covenant of good faith and fair dealing cannot be used to rewrite,
contradict, or add to the terms of the Parties’ contract. [Id. at 17]. In its Response, Max
Fire contends that “[t]he duty of good faith and fair dealing is directly applicable to
contracts 	with 	provisions 	like 	those 	in 	the 	Dealer 	Agreement 	which 	leave 	terms
unspecified.” [Doc. 37 at 21]. It also contends that the Dealer Handbook implicates the
duty of good faith and fair dealing because “it is left to RBA to determine what reasons
are deemed ‘adverse to the interests and long-term goals and objectives of [RBA].” [Id.
at 21–22]. According to Plaintiff, RBA violated the duty of good faith when it terminated
the Dealer Agreement to retaliate against Max Fire for threatening legal action against
RBA. [Id. at 22].
“Every contract in Colorado contains an implied duty of good faith and fair dealing.”
Cary v. United of Omaha Life Ins. Co., 68 P.3d 462, 466 (Colo. 2003). This duty, however,
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“cannot contradict terms or conditions for which a party has bargained, nor can it inject
substantive terms into the parties’ contract.” Miller v. Bank of N.Y. Mellon, 379 P.3d 342,
348 (Colo. App. 2016).
The Court has already concluded that the Dealer Agreement is not ambiguous and
permits termination without cause. It has also concluded that the Dealer Handbook does
not impose a contractual obligation on RBA to only terminate for cause. Accordingly, to
the extent Count III is based on Defendant terminating the Dealer Agreement, the claim
is not viable because it contradicts or injects substantive terms into the Parties’ contract.
Id. 	As a result, the Motion for Partial Summary Judgment is respectfully GRANTED to
the extent “RBA breached [the] duty by terminating Max Fire.” [Doc. 29 at 16].
IV. 	Lost Profits
Finally, Defendant asks the Court to hold, as a matter of law, that Max Fire is not
entitled to damages for lost profits or lost business value based on the alleged wrongful
termination of the Dealer Agreement. [Doc. 29 at 18–20]. It contends that because the
Dealer Agreement is terminable at will, Plaintiff “may only recover the net profits that [it]
would have received under the contract before proper termination,” so any future lost
profits “are unrecoverable” as a matter of law. [Id. at 19]. Plaintiff argues that Defendant
is not entitled to summary judgment on the request for lost profits or lost business value.
It first reiterates that “there are many questions of fact that preclude a finding that there
was no breach of contract,” so the availability of lost profit damages is not determinable
on summary judgment. 	[Doc. 37 at 23]. 	It then argues that Defendant’s arguments fail
as a matter of law. 	[Id. at 23–24]. 	Plaintiff provides a parenthetical citation to Randy’s
Studebaker Sales, Inc. v. Nissan Motor Corp. in U.S.A., 533 F.2d 510, 518 n.3, 519 (10th
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Cir. 1976), and argues that “[s]imilar to Randy’s Studebaker, Max Fire had a 25-year
relationship with RBA and has hired an expert which considered Max Fire’s business
history and potential. As such, it is up to a jury to determine what length of profits would
appropriately compensate Max Fire for RBA’s wrongful conduct.” [Doc. 37 at 24 (citation
omitted)].
Plaintiff’s request for lost profits in this case is based solely on the alleged wrongful
termination of the Dealer Agreement. See [Doc. 23 at 5 (Plaintiff seeking “for lost profits
caused by [RBA’s] wrongful termination in breach of the dealer agreement.”); Doc. 30-2
at 3–4 (same); Doc. 29 at ¶ 26; Doc. 37 at 7 ¶ 26]. And Defendant’s request for a legal
determination about the availability of these damages is limited to only those portions of
Counts I, II, and III that are based on the alleged wrongful termination of the Dealer
Agreement. See [Doc. 29 at 5, 12, 20]. But because the Court has already ruled that this
portion of all three claims is not viable, the Court need not decide whether Colorado law
provides a bright-line rule precluding recovery of lost profits in these circumstances.
Indeed, it is axiomatic that if Plaintiff cannot succeed on the wrongful termination portions
of Counts I, II, and III, it cannot recover damages—including lost profits or lost business
value—on those portions of the claims, either. 	Deciding this legal issue would have no
actual impact on the resolution of the claims at issue in the Motion and would be akin to
an advisory opinion. Cf. Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (“[A] federal court
has neither the power to render advisory opinions nor to decide questions that cannot
affect the rights of litigants in the case before them.” (quotation omitted)); S. Utah
Wilderness All. v. Smith, 110 F.3d 724, 730 (10th Cir. 1997) (declining to enter declaratory
judgment that “would serve no purpose in th[e] case” because it “would be in the nature
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of an advisory opinion”). 	Accordingly, the Court declines to make any advisory legal
determinations about whether Colorado law precludes recovery of lost profits based on
the termination of a contract that is terminable at will.
Accordingly, the Motion for Partial Summary Judgment is GRANTED in part and
DENIED as moot in part. 	It is granted to the extent it seeks judgment in Defendant’s
favor on Counts I, II, and III insofar as they are based on the alleged wrongful termination
of the Dealer Agreement. 	It is denied to the extent it asks the Court to determine, as a
matter of law, that lost profit damages are never available in breach of contract cases if
the contract is terminable at will.
CONCLUSION
For the reasons set forth in this Order, IT IS ORDERED that:
(1) 	Defendant’s Motion for Partial Summary Judgment [Doc. 29] is GRANTED in
part and DENIED in part; and
(2) 	A telephonic Status Conference is SET for January 15, 2025 at 11:00 a.m.
for purposes of setting a Final Pretrial/Trial Preparation Conference and trial
date. 	Counsel for the Parties shall participate using the following dial-in
information: 571-353-2301; Access Code: 783456374.
DATED: December 17, 2024 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
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