Our Lady v. Martinez Keystone

24CA1054 Our Lady v Martinez Keystone 05-15-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1054
Summit County District Court No. 21CV30134
Honorable Reed W. Owens, Judge

Our Lady of the Mountain, LLC, a Colorado limited liability company,

Plaintiff-Appellant and Cross-Appellee,

v.

Martinez Keystone Properties, LLC, a Colorado limited liability company,

Defendant-Appellee and Cross-Appellant.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division A
Opinion by JUDGE DUNN
Brown and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 15, 2025

BreckLaw, Mark Hurlbert, Emily H. Saunders, Breckenridge, Colorado, for
Plaintiff-Appellant and Cross-Appellee

Alpern Myers Stuart LLC, Gregory M. O’Boyle, Colorado Springs, Colorado;
Linden Kominek, P.C., Mary Kominek Linden, Colorado Springs, Colorado, for
Defendant-Appellee and Cross-Appellant
¶1 Plaintiff, Our Lady of the Mountain, LLC (Our Lady),

purchased a two-story commercial building from defendant,

Martinez Keystone Properties, LLC (Keystone Properties). Several

months after the transaction closed, Our Lady brought this

litigation against Keystone Properties, asserting claims for breach of

contract, unjust enrichment, and civil theft.

¶2 After a five-day bench trial, the district court rejected the

unjust enrichment and civil theft claims. But it found that

Keystone Properties breached the contract and awarded Our Lady

damages. Despite a contractual fee-shifting provision, the court

declined Our Lady’s request for attorney fees and costs, finding that

neither party prevailed.

¶3 Our Lady appeals the district court’s determination that it was

not the prevailing party and therefore not entitled to attorney fees

and costs under the fee-shifting provision. Keystone Properties

cross-appeals the district court’s judgment finding that it breached

the parties’ contract.

¶4 Addressing the cross-appeal first, we conclude that the record

supports the district court’s finding that Keystone Properties

breached the parties’ contract. Turning to the appeal, we conclude

1
that the district court erred by determining that neither party

prevailed in the litigation. Instead, the district court should have

determined that Our Lady was the prevailing party and awarded it

reasonable attorney fees and costs. Thus, we affirm in part, reverse

in part, and remand with directions.

I. Background

¶5 Several years ago, Our Lady retained real estate agent Dennis

Krueger to contact Keystone Properties about purchasing the

building. Keystone Properties’ manager, Robert Martinez, said

Keystone Properties would sell the building for $6 million. Our

Lady then asked Krueger to prepare a contract. Keystone

Properties didn’t enlist a seller’s agent; instead, Martinez worked

with Krueger on the transaction. Martinez therefore never directly

communicated with Our Lady or its owner, William Fuller.

¶6 In February 2021, the parties executed a written contract for

Our Lady to purchase the building from Keystone Properties.1 The

contract imposed numerous duties on Keystone Properties; for

1 The parties used the standard-form commercial real estate

contract, approved by the Colorado Real Estate Commission, with
some modifications.

2
example, as part of its due diligence obligations, Keystone

Properties was required to disclose any known adverse material

facts about the building and provide various documents concerning

the building and its operations. The contract also prohibited

Keystone Properties from amending, extending, or executing any

new or existing leases affecting the building without Our Lady’s

prior written consent. The contract gave Our Lady ninety days after

the contract was executed to evaluate the purchase, and in the

event Keystone Properties failed to satisfy certain duties under the

contract, Our Lady had a right to terminate the contract.

¶7 The sale closed in May 2021, and Our Lady purchased the

building from Keystone Properties for $6 million.

¶8 Several months later, Our Lady sued Keystone Properties,

asserting claims for breach of contract, unjust enrichment, and civil

theft. The single breach of contract claim alleged multiple potential

theories of breach. Keystone Properties didn’t assert any

counterclaims or allege that Our Lady breached the contract.

¶9 After a five-day bench trial, the district court entered a

thorough written order. It rejected the unjust enrichment and civil

theft claims. As to the breach of contract claim, the court rejected

3
most of Our Lady’s breach theories. But it found that Keystone

Properties breached the contract under one theory — namely, that

Keystone Properties extended the lease of a commercial tenant

without obtaining Our Lady’s prior written consent.2 For this

breach, the court awarded Our Lady $22,883 in damages for the

rental income that it lost by being locked into the extended lease.

¶ 10 Though the court recognized that the contract contained a fee-

shifting provision that entitled the prevailing party to its attorney

fees and costs, it nevertheless determined that neither party

prevailed in the litigation. Specifically, the court reasoned that Our

Lady wasn’t the prevailing party because it had a “lack of success

on the merits of nearly all of its claims” and recovered only about

2% of its requested damages. As for Keystone Properties, the court

noted that it wasn’t the prevailing party either because it had

breached the contract.

2 The district court also found that Keystone Properties failed to

substantially perform under the contract (and a separate
agreement) on three other theories. But the court found that Our
Lady failed to prove its claim on those theories because it either
waived any nonperformance, incurred no damages, or both.

4
¶ 11 Each party thinks the district court erred to some degree.

Keystone Properties maintains that it didn’t breach the contract,

and Our Lady says it is entitled to its attorney fees and costs as the

prevailing party under the fee-shifting provision because it

succeeded on the breach of contract claim. Because it impacts the

prevailing party analysis, we start with whether the court erred by

finding that Keystone Properties breached the contract.

II. Keystone Properties’ Cross-Appeal

¶ 12 Keystone Properties asks us to reverse the judgment,

contending that the district court erred by finding that it breached

the parties’ contract. Alternatively, Keystone Properties says that

the court improperly calculated and awarded damages. We

disagree with both contentions.

A. Additional Background

¶ 13 In May 2016, Keystone Properties executed a lease agreement

for Dos Locos, a restaurant, to lease a unit in the building for five

years. At the end of the five-year term, the lease agreement gave

Dos Locos the option to extend the lease for another five years.

¶ 14 In March 2021 — one month after Our Lady and Keystone

Properties signed the contract to sell the building — Keystone

5
Properties contacted Dos Locos to confirm that it wanted to exercise

its option to extend the lease. Martinez notified Krueger about the

lease extension, who in turn notified Our Lady. Though Krueger

couldn’t recall if Our Lady objected to the lease extension, Fuller did

“at some point” tell Krueger that “per the contract, [Keystone

Properties] shouldn’t be negotiating new leases without it being

discussed with [Our Lady].” It’s unclear whether Krueger passed

this message to Keystone Properties.

¶ 15 Without any prior written consent from Our Lady, Keystone

Properties and Dos Locos executed a lease amendment, extending

Dos Locos’ lease for five years and granting it another option to

extend the lease. Keystone Properties then sent the executed lease

amendment to Kreuger, who forwarded it to Our Lady.

¶ 16 The district court found that Keystone Properties breached the

contract by failing to obtain prior written consent from Our Lady (or

Krueger, its agent) before executing the lease amendment. It

further found that Our Lady did not waive Keystone Properties’

nonperformance because Our Lady was never properly informed

about the new terms of the lease amendment. The court awarded

Our Lady $22,883 in damages for the breach.

6
B. Breach of Contract

¶ 17 We begin with Keystone Properties’ contention that the district

court erred by finding it breached its duty to obtain Our Lady’s

prior written consent before executing the Dos Locos lease

amendment.

1. Standard of Review

¶ 18 We review a judgment following a bench trial as a mixed

question of fact and law. State Farm Mut. Auto. Ins. Co. v. Johnson,

2017 CO 68, ¶ 12. That means we defer to the district court’s

credibility determinations and will disturb its factual findings only if

they are clearly erroneous and not supported by the record. Amos

v. Aspen Alps 123, LLC, 2012 CO 46, ¶ 25. But we review questions

of law — such as contract interpretation — de novo. Sch. Dist. No. 1

v. Denver Classroom Tchrs. Ass’n, 2019 CO 5, ¶ 11.

2. Our Lady Didn’t Waive, Accept, or Acquiesce to the
Lease Amendment by Closing on the Purchase

¶ 19 Keystone Properties admits that it executed the lease

amendment without Our Lady’s prior written consent. But it

contends that it isn’t liable for breaching the contract because Our

Lady “accepted the amendment without objection and closed on the

7
purchase . . . with full knowledge of the amendment.” Thus,

Keystone Properties maintains that Our Lady “waived its right to

claim a breach,” “acquiesced” to the breach, or otherwise “accepted”

the breach.

a. Our Lady Didn’t Waive Keystone Properties’ Breach

¶ 20 First, Keystone Properties says that Our Lady’s “remedy if it

objected” to the lease amendment “was to terminate the [c]ontract,”

and because Our Lady didn’t object and terminate the contract, it

“waived its right to claim a breach under” the contract. The

problem with this argument is that nothing in the contract

conferred on Our Lady a right — much less a duty — to terminate

the contract in the event Keystone Properties amended an existing

lease without Our Lady’s prior written consent.

¶ 21 Section 10.9 of the contract governs the parties’ obligations

concerning the building’s leases. As relevant, Section 10.9 states:

[Keystone Properties] will not amend, alter,
modify, extend or cancel any of the Leases nor
will [Keystone Properties] enter into any new
leases affecting the Property without the prior
written consent of [Our Lady], which consent
will not be unreasonably withheld or delayed.

8
Section 25.1, which explains the circumstances under which the

parties could terminate the contract or waive nonperformance,

provides:

If a party has a right to terminate, as provided
in this Contract (Right to Terminate), the
termination is effective upon the other party’s
receipt of a written notice to terminate (Notice
to Terminate), provided such written notice
was received on or before the applicable
deadline specified in this Contract. If the
Notice to Terminate is not received on or before
the specified deadline, the party with the Right
to Terminate accepts the specified matter,
document or condition as satisfactory and
waives the Right to Terminate under such
provision.

(Emphases added.) And finally, Section 30.1 laid out Our Lady’s

timeline for evaluating the purchase. Section 30.1 reads:

[Our Lady] shall have until 90 days after
[mutual execution of the contract] to evaluate
the purchase of the property. The evaluation
shall include but not be limited to the Title,
Condominium Governing Documents, P.U.D.
Documents, Appraisal, Financing, Survey,
Physical Inspection, Leases and Estoppels,
ADA and Environmental issues.

¶ 22 Section 10.9 prohibited Keystone Properties from amending

the Dos Locos lease without Our Lady’s prior written consent.

Nothing in Section 10.9, however, provided Our Lady “a right to

9
terminate” the contract under Section 25.1 in the event Keystone

Properties breached Section 10.9. Indeed, while several sections of

the contract expressly cross-reference Our Lady’s right to terminate

under Section 25.1, Section 10.9 does not.3 Similarly, Section 30.1

simply gave Our Lady ninety days to evaluate the building

purchase; it doesn’t cross-reference the right to terminate under

Section 25.1 or otherwise provide Our Lady with a right to

terminate the contract for a breach of Section 10.9.

¶ 23 Taken together, Our Lady was not required to “object” and

terminate the contract to enforce its rights under Section 10.9. To

the contrary, Our Lady had the right to treat the contract as valid

and enforceable and sue Keystone Properties for damages.4 Our

3 For example, the court found that Keystone Properties failed to

substantially perform under the contract by providing a late
estoppel statement but that Our Lady waived that breach by not
terminating the contract. The portion of the contract that
addresses estoppel statements expressly provides that Our Lady
had both “the right to review and object” to any estoppel statement
and “the [r]ight to [t]erminate under [Section] 25.1” for any late or
unsatisfactory estoppel statement.
4 Though neither party mentions it, Sections 21 and 21.2 of the

contract specifically allowed Our Lady “to treat this [c]ontract as
being in full force and effect” with the “right to specific performance
or damages, or both” in the event Keystone Properties failed to
timely perform “any obligation” in the contract.

10
Lady therefore did not waive Keystone Properties’ breach of Section

10.9 by closing on the sale without objection.

b. Our Lady Didn’t Acquiesce to Keystone Properties’ Breach

¶ 24 Next, Keystone Properties argues that Our Lady’s “silence,”

when it had “a duty to speak, constitutes acceptance or

acquiescence.” But again, Keystone Properties hasn’t directed us to

any contractual provision requiring Our Lady to object and

terminate the contract in the event Keystone Properties breached

Section 10.9. Absent any duty to speak, Our Lady didn’t accept or

acquiesce to the breach of Section 10.9.

c. Remaining Arguments

¶ 25 Finally, Keystone Properties generally asserts that (1) Our

Lady’s failure to object to the lease amendment “violated the duty of

good faith” and “deprived” Keystone Properties “of the opportunity

to address any alleged issue”; (2) the doctrines of waiver (separate

from the contract’s waiver provision) and laches bar Our Lady’s

breach of contract claim; and (3) it would be “contrary to public

policy” to allow Our Lady to pursue a breach of contract claim. But

these assertions again appear rooted in Keystone Properties’ belief

that Our Lady had a contractual right and duty to object and

11
terminate the contract. Because we have rejected that argument,

and because Keystone Properties doesn’t otherwise develop these

assertions, we decline to address them further. See Trudgian v. LM

Gen. Ins. Co., 2024 COA 87, ¶ 31.

¶ 26 For these reasons, we conclude that Our Lady didn’t “waive,”

“accept,” or “acquiesce to” Keystone Properties’ breach of Section

10.9 and that nothing barred Our Lady from asserting a breach of

contract claim.

3. The Doctrine of Merger by Deed

¶ 27 Keystone Properties next contends that the doctrine of merger

by deed barred Our Lady’s “post-closing” breach of contract claim.

¶ 28 “The merger doctrine provides that a buyer’s acceptance of a

deed tendered in performance of a contract extinguishes prior

covenants in an antecedent contract relating to title, quantity,

possession, or emblements of the land.” Lazy Dog Ranch v. Telluray

Ranch Corp., 923 P.2d 313, 318 (Colo. App. 1996). But the doctrine

“does not affect covenants which are not intended to be

incorporated in the deed.” Id.

¶ 29 Though Keystone Properties broadly asserts that Section 10.9

merged into the deed upon closing, it doesn’t explain how Our

12
Lady’s right to consent to new and existing leases either relates to

the title and possession of the building or otherwise is a covenant

that was intended to be incorporated into the deed. See id. It

likewise did not make these specific arguments to the district court.

And to the extent Keystone Properties develops any argument on

this point on appeal, it does so for the first time in its cross-reply

brief.

¶ 30 Arguments not presented to the district court are not properly

before us. Am. Fam. Mut. Ins. Co. v. Allen, 102 P.3d 333, 340 n.10

(Colo. 2004). Nor are those raised and developed for the first time

in a reply brief. State ex rel. Weiser v. City of Aurora, 2023 COA 52,

¶ 38 n.1. Thus, we decline to consider this contention.

C. Damages

¶ 31 Keystone Properties also challenges the district court’s

damages award, arguing that (1) insufficient evidence supports the

award, and (2) the court erred by not discounting the award to

present value. We disagree with the first contention, and because

the second contention is unpreserved, we don’t address it.

13
1. Legal Principles and Standard of Review

¶ 32 In a breach of contract case, “the measure of damages is the

amount it takes to place the plaintiff in the position it would have

occupied had the breach not occurred.” Acoustic Mktg. Rsch., Inc. v.

Technics, LLC, 198 P.3d 96, 98 (Colo. 2008). To that end, a district

court may award damages for lost profits resulting from the breach.

Denny Constr., Inc. v. City & Cnty. of Denver, 199 P.3d 742, 746

(Colo. 2009). To be recoverable, the lost profits must (1) be proved

with reasonable certainty and (2) be the foreseeable result of a

breach when the parties entered the contract. Id.

¶ 33 The district court “has the sole prerogative to assess the

amount of damages, and its award will not be set aside unless it

is . . . clearly erroneous.” In re Estate of Chavez, 2022 COA 89M,

¶ 52 (quoting Lawry v. Palm, 192 P.3d 550, 565 (Colo. App. 2008)).

But we review de novo “whether the district court misapplied the

law when determining the measure of damages.” Id.

2. Sufficient Evidence Supports the Damages Award

¶ 34 For breaching its duty to obtain Our Lady’s prior written

consent before executing the Dos Locos lease amendment, the

district court awarded Our Lady $22,883 in lost rental profits.

14
Keystone Properties construes this order as awarding lost profits for

the option that Dos Locos may exercise in 2026, as opposed to lost

profits from the renewed five-year term under the lease amendment.

And because it’s unknown whether Dos Locos will exercise the

additional option, Keystone Properties argues that any lost profits

are speculative and thus unrecoverable.

¶ 35 But nothing in the court’s order indicates that it awarded lost

profits damages for the option that Dos Locos may exercise in the

future. And the record supports a finding that the lost profits were

related to the renewed five-year lease term. Indeed, Fuller testified

that the lease amendment was “potentially damaging” because “it

close[d] the door on the possibility of renegotiating a lease that was

eminently expiring . . . . And had it expired, [Our Lady] would have

had every opportunity to renegotiate as [it] saw fit as the new owner

of the property.” As well, when asked what damages Our Lady

incurred after “inheriting this lease renewal,” Our Lady’s

commercial real estate expert explained that it lost $22,883 in

rental income by being locked into another five-year lease with a

rental rate below the national consumer price index.

15
¶ 36 To be sure, the expert also made some inconsistent statements

on cross-examination. In particular, the expert seemed to agree

with Keystone Properties’ counsel that the $22,883 in damages was

based on the option that Dos Locos might exercise in 2026. Yet he

clarified that he “didn’t make any assumptions” about whether Dos

Locos “would or wouldn’t” renew its lease in 2026 because “[t]hat

wasn’t what [he] was asked to do, and [he] didn’t do that.”

¶ 37 In the end, it was for the district court to weigh the evidence,

resolve any conflicts therein, and determine which period of time

the damages calculation corresponded to. See In re Estate Owens,

2017 COA 53, ¶ 22. Because nothing in the court’s order shows it

awarded lost profits for the option term beginning in 2026, and

because the record supports the court’s damages award, we may

not disturb it. See id.; see also Adler v. Adler, 445 P.2d 906, 907

(Colo. 1968) (noting that in trials to the bench, it’s the “duty” of

appellate courts “to search the record for evidence most favorable

to” the district court’s judgment).

16
3. Discounting the Damages to Present Value

¶ 38 For the first time on appeal, Keystone Properties argues that

the district court erred by failing to reduce the future lost profits

award to present value.

¶ 39 To preserve an issue for appeal, a party must present the

issue to the district court, and the court must be given the

opportunity to rule on it. Franklin D. Azar & Assocs. P.C. v. Ngo,

2024 COA 99, ¶ 51. “Arguments not raised before the [district]

court may not be raised for the first time on appeal.” Allen, 102

P.3d at 340 n.10.

¶ 40 Keystone Properties’ counsel briefly cross-examined Our

Lady’s commercial real estate expert about whether the expert had

discounted the calculated damages to present value. But beyond

that, Keystone Properties didn’t tether its cross-examination to any

argument. That is, it never argued that Our Lady’s damages were

flawed because they weren’t reduced to present value, nor did it ask

the court to reduce the damage calculation or present any alternate

damage calculation. Indeed, Keystone Properties’ written closing

argument and proposed findings of fact and conclusions of law say

nothing about present value. We’re hard-pressed to conclude that a

17
couple of cross-examination questions — separated from any legal

authority or argument — were sufficient to bring this argument to

the court’s attention and give the court an opportunity to rule on it.

See Ngo, ¶ 51.

¶ 41 To the extent Keystone Properties points to other arguments it

made before the district court concerning the damages calculation,

that’s not sufficient to preserve the specific present value argument

it now raises on appeal. See Valentine v. Mountain States Mut. Cas.

Co., 252 P.3d 1182, 1188 n.4 (Colo. App. 2011) (“We review only the

specific arguments a party pursued before the district court.”).

¶ 42 Because Keystone Properties did not preserve this contention,

we decline to address it.

D. Request for Attorney Fees

¶ 43 Having rejected Keystone Properties’ request to reverse the

district court’s finding that it breached the contract, we necessarily

reject Keystone Properties’ request for attorney fees “below and on

appeal.”

III. Our Lady’s Appeal

¶ 44 The contract’s fee-shifting provision states, in relevant part,

that “in the event of any . . . litigation relating to this [c]ontract,

18
the . . . court must award to the prevailing party all reasonable

costs and expenses, including attorney fees, legal fees and

expenses.” Our Lady contends that, because it prevailed on its

breach of contract claim, the district court abused its discretion by

finding that neither party prevailed. We agree.

A. Legal Principles and Standard of Review

¶ 45 Contractual fee-shifting provisions supplant the general rule

that the losing party doesn’t have to pay the winner’s attorney fees.

Wheeler v. T.L. Roofing, Inc., 74 P.3d 499, 503 (Colo. App. 2003).

These provisions generally contemplate that there will be one

winner and one loser in the contract dispute and that the prevailing

party will be entitled to recover its attorney fees. Id.

¶ 46 In breach of contract cases, our supreme court has adopted a

seemingly bright-line rule that “the party in whose favor the

decision or verdict on liability is rendered is the prevailing party for

purposes of awarding attorney fees.” Dennis I. Spencer Contractor,

Inc. v. City of Aurora, 884 P.2d 326, 332 (Colo. 1994); see also 23

LTD v. Herman, 2019 COA 113, ¶¶ 56-57. Thus, the party that

establishes a breach of contract is the prevailing party under a

19
contractual fee-shifting provision, regardless of whether any

damages are awarded. Spencer, 884 P.2d at 332.

¶ 47 In noncontract cases with multiple claims, the supreme court

has articulated a different test to determine which party prevailed

for purposes of awarding costs. Archer v. Farmer Bros. Co., 90 P.3d

228, 230-31 (Colo. 2004). In this context, the district court has

discretion to determine which party prevailed based on various

factors, including the relative strengths and weaknesses of the

parties’ claims, the degree of success each party had in the context

of the litigation, and the time devoted to each claim. Id. at 231; cf.

Spencer, 884 P.2d at 329-30 (rejecting a similar test to determine

which party prevailed under a fee-shifting provision).

¶ 48 We review a district court’s prevailing party determination for

an abuse of discretion. 23 LTD, ¶ 51. A district court abuses its

discretion when it misapplies the law. Reyher v. State Farm Mut.

Auto. Ins. Co., 2012 COA 58, ¶ 35. We review de novo whether the

district court applied the correct legal standard. LaFond v.

Sweeney, 2015 CO 3, ¶ 12.

20
B. The District Court Applied the Wrong Standard

¶ 49 The district court found that Keystone Properties breached the

contract and entered a judgment in Our Lady’s favor on its breach

of contract claim (a judgment that we affirm). Even so, the court

determined that Our Lady wasn’t the prevailing party under the

contract’s fee-shifting provision because it had a “lack of success on

the merits of nearly all its claims” and recovered approximately 2%

of its requested damages. In doing so, it appears the court applied

Archer, not Spencer.

¶ 50 But Spencer specifically governs the prevailing party analysis

under a contractual fee-shifting provision. It held that the party

who succeeds on liability — even absent any damage award — is

entitled to attorney fees as the prevailing party under a contractual

fee-shifting provision. 884 P.2d at 331-32. By contrast, Archer

didn’t involve contract claims or a contractual fee-shifting provision,

and nothing in Archer — which was decided after Spencer —

suggests that the factors it outlined extend to fee-shifting provisions

in breach of contract cases. Recognizing as much, other divisions

of this court have distinguished Spencer and Archer based on the

nature of the claims presented. See 23 LTD, ¶¶ 58-59 (holding that

21
Archer doesn’t apply to contract cases); Extreme Constr. Co. v. RCG

Glenwood, LLC, 2012 COA 220, ¶ 55 (same); see also Pastrana v.

Hudock, 140 P.3d 188, 190-91 (Colo. App. 2006) (distinguishing the

standards in Spencer and Archer and noting that “Spencer was

specifically based on contract principles”).

¶ 51 Because we conclude that Spencer applies, and because it’s

undisputed that Our Lady succeeded on its breach of contract

claim, we conclude the district court erred by determining that

neither party prevailed.

C. Our Lady is the Prevailing Party

¶ 52 Keystone Properties says, however, that the district court got it

right because Our Lady prevailed on only one of its “eleven contract

claims.” Though not entirely clear, Keystone Properties seems to

argue that this is a multi-claim contract case and that, because it

“prevailed” on the “other contract claims,” Archer applies.5

¶ 53 We see some problems with that argument. First, as

explained, Archer applies to multi-claim tort cases, 90 P.3d at 231,

5 As to the unjust enrichment and civil theft claims, Keystone

Properties says that they “do not factor into the propriety of the
[district] court’s prevailing party determination under” the fee-
shifting provision. We therefore don’t separately consider them.

22
whereas Spencer applies to breach of contract actions involving fee-

shifting provisions, 884 P.2d at 331-32.

¶ 54 Second, Our Lady asserted only a single contract claim and

prevailed on that claim.6 The court found that only one party

breached the contract: Keystone Properties. As a result, it entered

judgment in favor of Our Lady on its breach of contract claim. We

don’t see anything in Spencer that limits the contractual prevailing

party analysis to whether a party prevailed on multiple theories of

contract breach or a single theory. See id. Indeed, Spencer’s

language is expansive, holding that the party who succeeds in

proving “a violation of a contractual obligation . . . is the prevailing

party for purposes of awarding attorney fees.” Id. at 332 (emphasis

added). No doubt, the district court found that Keystone Properties

violated a contractual obligation.

¶ 55 To the extent Keystone Properties relies on Wheeler to argue

the district court properly found no prevailing party, we are

6 To be precise, Our Lady asserted a single breach of contract claim

with multiple theories, not multiple breach of contract claims. See
Messenger v. Main, 697 P.2d 420, 421-22 (Colo. App. 1985)
(“[W]hen only one legal right is asserted, it is a single claim for
relief . . . even though alternative legal theories have been asserted
as the bases for liability.”).

23
unpersuaded. In Wheeler, the plaintiff and the defendant asserted

competing breach of contract claims. 74 P.3d at 502. The trial

court found that each party had breached the contract and awarded

damages to each. Id. Both parties sought attorney fees under the

contractual fee-shifting provision. Id. Applying the net judgment

rule, the trial court found that the defendant (who recovered a

greater damages award) was the prevailing party. Id. at 502-03; see

also Spencer, 884 P.2d at 330 n.11 (explaining the net judgment

rule). On appeal, a division of this court concluded the trial court

didn’t abuse its discretion by applying the net judgment rule and

rejected the plaintiff’s contention that “there can be two prevailing

parties where both parties breach the contract.” Wheeler, 74 P.3d

at 503; see also Lawry, 192 P.3d 570 (affirming trial court’s

determination that neither party prevailed because both parties had

succeeded on their respective breach of contract claims).

¶ 56 The facts here are different than Wheeler. Keystone Properties

didn’t assert a breach of contract claim against Our Lady, nor did

the district court find that Our Lady breached the contract or award

damages to Keystone Properties. And while Keystone Properties

successfully defended against some of the breach theories, the

24
court entered a judgment for breach of contract in favor of Our

Lady. We therefore are unpersuaded that Wheeler supports a

determination that neither party prevailed when, as here, Keystone

Properties was the only party that breached the contract, and the

court entered a judgment on that claim exclusively in Our Lady’s

favor. See Spencer, 884 P.2d at 332 (When “a claim exists for a

violation of a contractual obligation, the party in whose favor the

decision or verdict on liability is rendered is the prevailing

party . . . .”).

¶ 57 For these reasons, we conclude that the district court should

have determined that Our Lady was the prevailing party under the

fee-shifting provision and awarded it reasonable attorney fees and

costs.7

7 Though not relevant to which party prevailed under the fee-

shifting provision, the district court may consider the fact that Our
Lady didn’t prevail on certain theories of breach or recover all the
damages it sought in determining the reasonableness and amount
of attorney fees to award. See S. Colo. Orthopaedic Clinic Sports
Med. & Arthritis Surgeons, P.C. v. Weinstein, 2014 COA 171, ¶¶ 23-
25; see also Colo. RPC 1.5(a) (listing the factors a court may
consider in making an upward or downward adjustment to a
lodestar attorney fees calculation).

25
D. Appellate Attorney Fees and Costs

¶ 58 Our Lady asks for its appellate attorney fees and costs. Given

our resolution, we conclude that Our Lady is the prevailing party on

appeal and is entitled to its reasonable attorney fees and costs

under the contract’s fee-shifting provision. See Ranta Constr., Inc.

v. Anderson, 190 P.3d 835, 847 (Colo. App. 2008) (awarding the

prevailing party its attorney fees and costs on appeal under

contract’s fee-shifting provision). We remand to the district court to

determine and award Our Lady its reasonable appellate attorney

fees and costs. See C.A.R. 39.1.

IV. Disposition

¶ 59 We reverse the portion of the district court’s judgment

determining that neither party prevailed under the contract’s fee-

shifting provision. We remand the case to the district court to

determine and award Our Lady its (1) reasonable attorney fees and

costs incurred before the district court and (2) reasonable appellate

fees and costs. In all other respects, we affirm the judgment.

JUDGE BROWN and JUDGE SCHOCK concur.

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