Havana v. JERB

23CA1512 Havana v JERB 07-10-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1512
City and County of Denver District Court No. 21CV33157
Honorable J. Eric Eliff, Judge

Havana Operator, LLC, a Colorado limited liability company, and 51st Property
Management Group, LLC, a Colorado limited liability company,

Plaintiffs-Appellants,

v.

JERB Limited, a Colorado limited liability company,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE WELLING
Schock and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 10, 2025

Wysocki Law Group, P.C., Jeremy S. Wysocki, Zachary Crow, Denver,
Colorado, for Plaintiffs-Appellants

Holland & Hart LLP, Matthew J. Smith, Nicholas W. Katz, Denver, Colorado, for
Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Plaintiffs, Havana Operator, LLC (Havana) and 51st Property

Management Group, LLC (51st Property), appeal the trial court’s

entry of judgment against them in their breach of contract action

against defendant, JERB Limited (JERB). We affirm.

I. Background

A. Factual Background

¶2 Havana owned state and local marijuana cultivation licenses

that allowed for the cultivation of marijuana at a unit located on

East 101 Avenue (Unit 101). 51st Property held the commercial

leasehold interest for Unit 101 and Havana subleased Unit 101

from 51st Property. 51st Property leased the location from 51st

Montebello, LLC (the Landlord). Although Unit 101 was licensed for

marijuana cultivation, the plaintiffs only used the space for storage.

51st Property’s lease with the Landlord was set to expire in April

2023 and contained a three-year renewal option.

¶3 On March 4, 2021, JERB sent Havana a letter of intent for an

asset purchase agreement (APA) that contemplated JERB’s

purchase of Havana’s marijuana cultivation licenses for Unit 101

and the remainder of 51st Property’s leasehold interest in Unit 101.

In this letter of intent, JERB stated that its obligation to close the

1
proposed transaction was conditioned on “a new lease for [Unit 101]

on terms satisfactory to [JERB],” among other things.

¶4 On March 24, 2021, the plaintiffs and JERB entered into the

APA. In the APA, JERB agreed to purchase the remainder of 51st

Property’s leasehold interest in Unit 101 and the corresponding

marijuana cultivation licenses from Havana. But the APA

conditioned closing on the execution of an assignment and

assumption agreement for Unit 101 and final governmental

approval — both state and local — for a change in ownership to the

marijuana cultivation licenses.

¶5 Section 4 of the APA provided as follows:

At Closing, [JERB] and 51st Property shall
enter into an assignment and assumption
agreement in a form to be agreed upon by
Landlord, 51st Property, and [JERB] (the
“Assignment and Assumption Agreement”)
whereby the Leasehold Interest and all other
rights and obligations of 51st Property under
the Lease Agreement shall be assigned by 51st
Property to [JERB] and shall be assumed by
[JERB]. 51st Property represents and
warrants that the Leasehold Interest shall be
free and clear of any and all Liens and shall be
in good standing and not in default as of April
1, 2021[,] and as of Closing.

2
¶6 Section 3 of the APA required JERB to make periodic

payments into an escrow account toward the purchase price for the

assets contemplated by the APA and the rent accruals on Unit 101

between April 11, 2021, and the closing date. Section 11 of the APA

allowed JERB to conduct a due diligence investigation of Unit 101,

including building inspections. Under section 17 of the APA, JERB

could terminate the agreement if final governmental approval wasn’t

granted within six months of the March 24, 2021, effective date.

¶7 The plaintiffs drafted the language of the APA, including

section 4.

¶8 At the time that the parties entered into the APA, JERB

intended to use Unit 101 for marijuana cultivation and needed to

invest approximately $2.5 million into the space to bring it into

compliance with local and state codes and make it suitable for its

intended use. While Unit 101 had two grow rooms that could be

used immediately, JERB’s anticipated build-out was expected to

take four to five months for design and permitting, and another six

months for construction. Given JERB’s contemplated investment

and improvement to Unit 101, JERB wanted a longer lease term

than the three-year option to extend that 51st Property currently

3
held. Havana understood that JERB and the Landlord would

negotiate terms of a lease extension. 51st Property understood that

nothing in the APA, including section 4, prevented JERB from

seeking an extension of the lease once the lease had been assigned

to JERB. Nor did the APA expressly prevent JERB from seeking an

extension as part of the assignment.

¶9 Within days of executing the APA, JERB reached out to the

Landlord to start negotiating a lease term extension as part of the

assignment. JERB also communicated to the Landlord its hope

that the Landlord would reduce the rent for an initial period of the

extended lease given JERB’s anticipated investment in improving

Unit 101. The Landlord seemed open to discussing a lease term

extension with JERB but communicated to JERB that it wouldn’t

agree to an assignment of the current lease on Unit 101 until 51st

Property became current on rent and paid the approximately

$120,000 balance owed.

¶ 10 While JERB and the Landlord began negotiating the lease term

for the assignment of Unit 101, JERB and Havana worked together

to submit a change of ownership application to the Colorado

Marijuana Enforcement Division (MED) for Unit 101’s marijuana

4
cultivation licenses. In the application to the MED, the parties

included a letter of conditional consent for the lease assignment

from the Landlord, stating that the assignment of the lease for Unit

101 was contingent on the Landlord and JERB coming to “mutually

agreeable terms for any contemplated extension of the Lease

Agreement.” JERB sent a copy of this letter to Havana on March

31, 2021.

¶ 11 On April 1, 2021 — the day the APA provided that 51st

Property would be “in good standing and not in default” on

Unit 101 — 51st Property owed $128,000 in unpaid rent.

¶ 12 On April 27, 2021, the MED conditionally approved Havana

and JERB’s change in ownership application contingent on two

things: (1) the parties’ agreement on an effective date for the change

in ownership to take place and (2) local approval.

¶ 13 On May 7, 2021, the Landlord told 51st Property that it

couldn’t agree to a lease assignment with JERB for Unit 101

because 51st Property still owed past due rent. That same day, the

Landlord told JERB the same thing.

¶ 14 On May 13, 2021, 51st Property came current on its unpaid

rent to the Landlord.

5
¶ 15 On May 18, 2021, Havana and JERB received conditional local

approval contingent on the parties’ ability to provide a copy of a

lease or lease assignment reflecting that JERB legally possessed

Unit 101.

¶ 16 In mid-June 2021, the Landlord emailed 51st Property and

JERB and asked if the parties could connect to help facilitate “the

heavily negotiated lease assignment.” On June 30, 2021, Landlord

asked Havana and 51st Property to participate in the lease

negotiations with JERB to help facilitate the assignment.

¶ 17 Thereafter, 51st Property and the Landlord executed an

assignment and assumption agreement that didn’t include terms for

a lease extension or rent abatement. 51st Property sent the

executed assignment and assumption agreement to JERB, which

was the first proposed assignment and assumption agreement

JERB had received after months of negotiations with the Landlord.

JERB immediately responded and explained that the proposed

agreement wasn’t in a form it could agree to and that it sought “rent

relief” as part of the assignment and assumption agreement. JERB

referred to the Landlord’s previous representations — including the

representation that the Landlord made to the MED in the change in

6
ownership application — that any assignment of Unit 101 was

contingent on a contemplated extension of the lease. JERB also

stated that it was “willing to be completely creative in getting to a

place where all the parties can agree” on the assignment and

assumption agreement.

¶ 18 JERB and the Landlord continued to negotiate the assignment

of Unit 101 for three more months. But JERB and the Landlord

disagreed on terms, including the rental rate for the contemplated

fifteen-year extended lease. Around this time, JERB exercised its

right to perform a due diligence inspection of Unit 101. This

inspection revealed significant damage that required costly repairs

as well as “excessive microbial growth” and “possible mold growth”

in the drywall, increasing JERB’s anticipated investment into Unit

101 improvements.

¶ 19 On September 14, 2021, JERB made its final lease extension

counteroffer to Landlord and explained that the offered terms were

based on changes to the local marijuana market, including “over

supply [and] shaky market fundamentals,” as well as an increased

cost of construction to Unit 101. The Landlord responded with a

counteroffer on September 27, 2021. JERB declined Landlord’s

7
counteroffer and terminated further negotiations with the Landlord

regarding the lease extension for Unit 101. JERB then refused to

sign the assignment and assumption agreement that 51st Property

had sent three months prior. Consequently, state and local

authorities never granted final governmental approval for a change

in ownership to Unit 101’s marijuana cultivation licenses within the

six months provided for under the APA.

¶ 20 On September 28, 2021, JERB notified the plaintiffs that it

was exercising its right to terminate the APA under section 17.

Over the course of its negotiations with the Landlord, JERB had

paid $820,867.04 into the escrow account and promptly sought

return of the funds per section 3 of the APA after it terminated the

APA. The plaintiffs refused to approve the return of the escrow

funds to JERB.

B. Procedural History

¶ 21 The plaintiffs sued JERB for breach of contract, including

alleging JERB breached its duty of good faith and fair dealing under

the APA, and asserted the equitable claims of promissory estoppel

and unjust enrichment. JERB countersued, alleging, among other

things, that the plaintiffs breached the APA by preventing the

8
return of the escrow funds to JERB1 and breached their duty of

good faith and fair dealing. The parties filed cross-motions for

summary judgment. The trial court determined that the issue of

whether JERB breached its duty of good faith and fair dealing

during negotiations of the assignment was still a disputed issue of

material fact and denied both summary judgment motions as to

that issue.

¶ 22 Of particular import to our analysis, the trial court noted the

following undisputed facts in its order: (1) during negotiations of the

APA, JERB communicated to both 51st Property and Havana its

intent to negotiate a new lease or lease extension with the Landlord

as part of the transaction contemplated by the APA; (2) on the date

the parties executed the APA, JERB emailed Havana referencing its

desire to either take over the existing lease “via assumption or

negotiate a net new lease” with the Landlord; (3) for JERB and

Havana to obtain final governmental approval for the change in

1 The trial court held an evidentiary hearing on February 16, 2022,

to narrowly decide the issue of whether JERB was entitled to the
return of the escrow funds. After hearing the evidence, the trial
court concluded that JERB was entitled to the return of the escrow
funds and ordered that the escrow agent return the escrow funds to
JERB on March 4, 2022.

9
ownership to the marijuana cultivation licenses, JERB and the

Landlord had to mutually agree on a contemplated lease extension

and 51st Property and Havana knew that these negotiations were

ongoing; and (4) the due diligence inspection report created a large

issue in JERB’s assessment of the viability of using Unit 101 as

contemplated.

¶ 23 Although the trial court ultimately concluded that the APA

unambiguously provided JERB the discretion to reject an

assignment and assumption agreement that didn’t include a lease

extension, it sent the plaintiffs’ breach of contract claim to trial to

determine whether JERB breached its duty of good faith and fair

dealing under the APA when it did just that. After a five-day jury

trial, the jury returned a verdict against the plaintiffs on their

breach of the duty of good faith and fair dealing claim and in favor

of JERB on its counterclaim, awarding JERB one dollar in nominal

damages. The plaintiffs appeal; JERB doesn’t.

II. Analysis

¶ 24 On appeal, the plaintiffs contend that the trial court erred by

(1) relying on extrinsic evidence to conclude that the APA

unambiguously gave JERB discretion to reject an assignment and

10
assumption agreement that didn’t include a lease extension;

(2) barring evidence that JERB expressly breached two provisions of

the APA — namely, sections 10(c) and 16(b) — for lack of relevance;

(3) referring to the plaintiffs’ counsel as “disingenuous” in front of

the jury; (4) advocating for JERB by offering the basis for

evidentiary objections in front of the jury; and (5) instructing the

jury that the plaintiffs’ conduct was “wrongful.” The plaintiffs

preserved issues (1) and (2) but issues (3) through (5) are

unpreserved.

¶ 25 We address, and reject, each of the plaintiffs’ contentions in

turn.

A. Whether Section 4 of the APA Unambiguously Required JERB
to Assume the Lease

¶ 26 The plaintiffs first contend that the APA unambiguously

required JERB to assume the lease on Unit 101 and the trial court

therefore erred by determining that section 4 of the APA

unambiguously gave JERB the discretion to “refuse an assignment

that did not include an extension” and erroneously relied on

extrinsic evidence to do so. We agree with the plaintiffs that the

trial court erroneously concluded that the APA was unambiguous,

11
but we conclude that summary judgment was nevertheless proper

because the undisputed evidence regarding the parties’ conduct

surrounding the making of the APA and under the APA supports

the conclusion that a lease extension was part of the “form [of the

assignment and assumption agreement] to be agreed upon” by the

parties. Thus, though on different grounds, we conclude that the

trial court correctly determined that the APA required the parties’

agreement on the terms of the lease as a prerequisite to closing.

1. Standard of Review and Applicable Legal Principles for
Contract Interpretation

¶ 27 “We review questions of contract interpretation de novo.”

Gagne v. Gagne, 2014 COA 127, ¶ 50. We also review questions of

law de novo, including whether a contract is ambiguous. Id.

¶ 28 “The primary goal of contract interpretation is to determine

and give effect to the intent of the parties.” Vu, Inc. v. Pac. Ocean

Marketplace, Inc., 36 P.3d 165, 167 (Colo. App. 2001). A contract is

ambiguous if it is susceptible of more than one reasonable

interpretation. Cheyenne Mountain Sch. Dist. No. 12 v. Thompson,

861 P.2d 711, 715 (Colo. 1993). Where an ambiguity exists, a court

may look at extrinsic evidence to discern the parties’ intent. Vu, 36

12
P.3d at 167; see also Pepcol Mfg. Co. v. Denver Union Corp., 687

P.2d 1310, 1314 (Colo. 1984) (“It is only where the terms of an

agreement are ambiguous or are used in some special or technical

sense not apparent from the contractual document itself that the

court may look beyond the four corners of the agreement in order to

determine the meaning intended by the parties.”).

¶ 29 A court may look to extrinsic evidence to discern the parties’

intent even when a contract contains a merger clause, so long as

the extrinsic evidence isn’t used to “demonstrate an intent that

contradicts or adds to the intent expressed in the writing.” Nelson

v. Elway, 908 P.2d 102, 107 (Colo. 1995); see also KN Energy, Inc.

v. Great W. Sugar Co., 698 P.2d 769, 777 n.9 (Colo. 1985). The

extrinsic evidence a court may consider includes local usage, the

circumstances surrounding the making of the contract, or “any

pertinent circumstances attendant upon the transaction, including

the conduct of the parties under the agreement.” Pepcol, 687 P.2d

at 1314; see KN Energy, 698 P.2d at 777.

2. Application

¶ 30 We first discuss whether section 4 of the APA unambiguously

required JERB to assume the lease on Unit 101 or whether the

13
provision is susceptible of more than one reasonable interpretation.

After concluding the phrase “in a form to be agreed upon” in

section 4 is ambiguous, we look at the undisputed evidence

regarding the parties’ conduct both surrounding the making of the

APA and under the APA to discern the parties’ intent, if we can.

a. Whether Section 4 of the APA is Ambiguous

¶ 31 On appeal, the plaintiffs argue that section 4 unambiguously

required JERB to assume the lease on Unit 101, and the trial court

therefore erroneously relied on extrinsic evidence to arrive at the

opposite conclusion. On the other hand, JERB contends on appeal

that the plain language of section 4, including the phrase “in a form

to be agreed upon,” unambiguously created a condition to closing;

namely, that the parties to the APA — the plaintiffs, JERB, and the

Landlord — had to come to a mutual agreement on the lease

assignment and assumption agreement before JERB was required

to assume the lease and marijuana cultivation licenses as

contemplated by the APA, and the trial court correctly concluded as

much.

¶ 32 We first conclude that the phrase “in a form to be agreed

upon” in section 4 of the APA is susceptible of more than one

14
reasonable interpretation. Based on our independent review, we

can reasonably arrive at either party’s interpretation of section 4

and JERB’s corresponding rights and duties under the APA. From

the four corners of the agreement, it isn’t clear whether “form”

means the structure of the agreement, as the plaintiffs contend, or

the terms of the agreement, as JERB contends.

¶ 33 Because we can’t discern the parties’ intent based on the four

corners of the agreement, we conclude that the provision is

ambiguous. Therefore, it is appropriate to look at extrinsic evidence

to discern what the parties’ meant by the directive in section 4 that

the parties “shall enter into an assignment and assumption

agreement in a form to be agreed upon” at closing and whether a

condition to closing was created by this language.

b. The Parties’ Intent Under the APA

¶ 34 We next examine the undisputed evidence of the parties’

conduct both during the making of the APA and under the APA to

discern what the parties intended this provision to mean.

¶ 35 Ordinarily, after concluding that a relevant portion of a

contract is ambiguous, we would remand to the trial court to

determine the factual question of the intended meaning of the

15
ambiguous provision, respecting the allocation of responsibilities in

a case tried to a jury. See, e.g., Sch. Dist. No. 1 v. Denver Classroom

Tchrs. Ass’n, 2019 CO 5, ¶ 14 (When a court determines that a

contract is ambiguous, “the meaning of its terms is generally an

issue of fact to be determined in the same manner as other

disputed factual issues.” (quoting Dorman v. Petrol Aspen, Inc., 914

P.2d 909, 912 (Colo. 1996))). As discussed below, however, on the

specific record presented in the context of the parties’ cross-motions

for summary judgment, we conclude (drawing all reasonable

inferences in favor of the plaintiffs) that the facts relevant to the

determination of the meaning of the contract allow only one

possible interpretation: JERB had the right to terminate the

contract because no lease containing terms and conditions to its

satisfaction (both as to form and content) was executed. Because

this is the same meaning that the trial court accorded to the

contractual provision, the fact that the trial court did so on a

different, and what we conclude to be erroneous, basis renders that

error harmless. See C.A.R. 35(c) (“The appellate court may

disregard any error or defect not affecting the substantial rights of

the parties.”); cf. Emp. Television Enters., LLC v. Barocas, 100 P.3d

16
37, 42-43 (Colo. App. 2004) (holding that a court’s erroneous failure

to consider evidence of trade usage in interpreting a contract was

harmless because doing so wouldn’t have changed the outcome of

the court’s ambiguity analysis).

¶ 36 We begin our analysis by addressing the plaintiffs’ argument

that because the APA contains a merger clause, under Nelson a

court can’t look at extrinsic evidence to discern the parties’ intent.

Contrary to the plaintiffs’ contention, Nelson doesn’t stand for the

premise that anytime an ambiguous contract contains a merger

clause a court can’t consider extrinsic evidence to discern the

parties’ intent. Rather, Nelson provides that a court can rely on

extrinsic evidence to discern the parties’ intent so long as the court

doesn’t use it to contradict or add to the intent expressed by the

writing itself. 908 P.2d at 107. Because we merely aim to discern

what the parties meant by the directive in section 4 — namely, that

the parties “shall enter into an assignment and assumption

agreement in a form to be agreed upon” at closing — we will look at

extrinsic evidence to ascertain the meaning the parties’ assigned to

the phrase “in a form to be agreed upon” under the APA. Pepcol,

687 P.2d at 1314.

17
¶ 37 To discern the parties’ intent of section 4, we, like the trial

court, look at the parties’ conduct under the agreement, as well as

the circumstances surrounding the making of the APA and any

other “pertinent circumstances attendant upon the transaction.”

Pepcol, 687 P.2d at 1314; KN Energy, 698 P.2d at 777. All of this

evidence points to the interpretation urged by JERB and reached by

the trial court.

¶ 38 Based on our independent review of the undisputed evidence

before the court at summary judgment and drawing all reasonable

inferences in favor of the plaintiffs, we conclude that the parties

intended the phrase “in a form to be agreed upon” to mean that all

parties to the APA had to come to an agreement about the terms of

the assignment and assumption agreement as a precursor to

closing. In addition to the undisputed evidence the trial court relied

on during the summary judgment stage, the record also establishes

that (1) JERB intended to use Unit 101 for marijuana cultivation

and needed to substantially invest into the property to bring it into

compliance with local code; (2) JERB expressly communicated its

desire to condition the transaction on the contemplated lease

extension in its letter of intent, which was sent to Havana prior to

18
execution of the APA; (3) within days of executing the APA, JERB

reached out to the Landlord to discuss a lease term extension as

part of the assignment and assumption agreement; (4) while the

Landlord was open to granting a lease term extension to JERB, the

Landlord couldn’t agree to an assignment of the lease on Unit 101

until 51st Property came current on its rent and the Landlord

communicated this to the parties; (5) in the change of ownership

application for Unit 101’s marijuana cultivation licenses that JERB

and Havana sent to the MED, the Landlord expressed in a letter

that the lease assignment was contingent on the Landlord and

JERB coming to “mutually agreeable terms for any contemplated

extension” of the lease on Unit 101; (6) for the six months following

the execution of the APA, the Landlord and JERB negotiated a lease

extension as part of the assignment and assumption agreement;

and (7) JERB only ceased negotiations with the Landlord after the

six-month timeline for final governmental approval provided for

under section 17 of the APA had lapsed. Based on this evidence in

the record, we conclude that the lease extension was a “pertinent

circumstance[] attendant upon the transaction” contemplated by

the APA. Pepcol, 687 P.2d at 1314.

19
¶ 39 On the other side of the balance, the plaintiffs point to one

thing favoring their urged interpretation: the plain language of

section 4 of the APA. Indeed, the plaintiffs don’t identify any

evidence in the record beyond the language of section 4 itself to

support their urged interpretation. Given that all of the evidence

before the court on summary judgment lined up against this

interpretation, the only way the plaintiffs’ urged interpretation

could have carried the day would have been if the disputed

provision unambiguously had the meaning that they urged. But for

the reasons discussed in Part II.A.2.a above, we reject the

contention that the language is unambiguous — in either side’s

favor. Thus, given the weight and undisputed nature of the

evidence in the record, we conclude that even though the meaning

of the language is ambiguous, there isn’t a triable issue regarding

the meaning of that language.

¶ 40 Having determined that the meaning of section 4 didn’t

present a triable issue, we further conclude that the court’s error in

its ambiguity determination was harmless. After all, it’s undisputed

that after JERB and the Landlord negotiated for six months, the

parties never agreed on the form of the assignment and assumption

20
agreement, which the trial court correctly found at the summary

judgment stage. That left only the remaining question of whether

JERB breached its duty of good faith and fair dealing during

negotiations when it ceased negotiations with the Landlord and

terminated the APA. This question was litigated at trial and after a

five-day trial, the jury returned a verdict in the negative.

Consequently, the trial court’s error in its ambiguity analysis was

harmless because we reach the same conclusion as the trial court

regarding the meaning of section 4 of the APA.

B. The Evidentiary Issue Preserved by Objection

¶ 41 The plaintiffs next contend that the trial court erred by barring

evidence of JERB’s alleged breach of two provisions of the APA for

lack of relevance because, the plaintiffs argue, this evidence was

probative of the material issue in dispute — namely, whether JERB

acted in bad faith during the transaction. Specifically, the plaintiffs

assert that the trial court precluded evidence showing that JERB

breached two sections of the APA: section 10(c), which barred JERB

from engaging a real estate broker, and section 16(b), which

memorialized that all parties would “take all steps reasonably

necessary to carry out the intent” of the APA. JERB argues that the

21
plaintiffs have mischaracterized the record by claiming that the trial

court excluded evidence of JERB’s alleged breach of the APA,

pointing out that the court admitted evidence at trial that JERB

engaged a real estate consultant, Atlas Realty, and further allowed

the plaintiffs to both present evidence of section 16(b) and argue

how it was relevant to JERB’s breach of its duty of good faith and

fair dealing. We agree with JERB.

¶ 42 We review a trial court’s evidentiary rulings for an abuse of

discretion. Hock v. N.Y. Life Ins. Co., 876 P.2d 1242, 1251 (Colo.

1994). A court abuses its discretion if its decision is manifestly

arbitrary, unfair, or unreasonable, or if the court misapplies the

law. Tisch v. Tisch, 2019 COA 41, ¶ 33. A trial court doesn’t abuse

its discretion when it precludes a party from presenting evidence of

a claim that isn’t included in the trial management order. Ehrlich

Feedlot, Inc. v. Oldenburg, 140 P.3d 265, 272-73 (Colo. App. 2006).

¶ 43 In the trial management order, the plaintiffs’ sole breach of

contract theory was that JERB had breached its duty of good faith

and fair dealing under the APA. During trial, each time the

plaintiffs attempted to introduce evidence of JERB’s alleged breach

of sections 10(c) and 16(b), JERB objected on relevance grounds.

22
The trial court sustained many of JERB’s objections but overruled a

few of them.

¶ 44 We conclude that the trial court didn’t abuse its discretion.

While the court sustained some of JERB’s objections to evidence

that it consulted a real estate consultant, it was in the context of

the plaintiffs attempting to introduce evidence that JERB breached

an express term of the APA by hiring a broker, which wasn’t a

litigated claim in the case.

¶ 45 Regarding evidence of JERB’s obligations under section 16(b),

again, the court merely sustained objections when the plaintiffs

attempted to introduce evidence that JERB expressly breached this

provision, which wasn’t a claim in dispute. In fact, the plaintiffs

were allowed to present other testimony regarding section 16(b) over

JERB’s objection to the relevance of this evidence.

¶ 46 Accordingly, the trial court didn’t abuse its discretion when it

sustained JERB’s objections at trial and precluded evidence of

JERB’s alleged breach of two sections of the APA for lack of

relevance because any claim of JERB’s alleged breach of these

provisions wasn’t included in the trial management order and

wasn’t an issue at trial.

23
C. 51st Property and Havana’s Unpreserved Issues

¶ 47 Finally, the plaintiffs argue that the trial court erred by

referring to the plaintiffs’ counsel as “disingenuous” in front of the

jury; “advocating” for JERB by offering the basis for evidentiary

objections in front of the jury; and instructing the jury that the

plaintiffs’ conduct was “wrongful.” The plaintiffs acknowledge that

none of these issues are preserved for our review.

¶ 48 Generally, appellate courts don’t review issues raised for the

first time on appeal. Marcellot v. Exempla, Inc., 2012 COA 200,

¶ 11. The plaintiffs nevertheless urge us to exercise our discretion

and apply plain error review. But “[s]uch discretion . . . is exercised

very rarely in civil cases, typically only where necessary to prevent

manifest injustice.” Id. This standard is a stringent one and to

warrant plain error review in a civil case, a party must demonstrate

that the error “almost surely affected the outcome of the case.”

Robinson v. City & Cnty. of Denver, 30 P.3d 677, 685 (Colo. App.

2000) (quoting Champagne v. United States, 40 F.3d 946, 947 (8th

Cir. 1994)).

¶ 49 Here, the plaintiffs don’t demonstrate that any of these alleged

errors “almost surely affected the outcome of the case.” Id. (quoting

24
Champagne, 40 F.3d at 947). Rather, the plaintiffs merely make

conclusory assertions, without citing any record support, that they

suffered prejudice as a result of the court’s “disingenuous” remark;

they were “deprived of a fundamentally fair trial” as a result of the

court’s alleged “advocacy” for JERB; and “no reasonable jury could

find in favor of [the plaintiffs] when instructed . . . that their

conduct was ‘wrongful.’” None of these contentions merit review for

plain error.

¶ 50 Accordingly, we decline to address the plaintiffs’ issues raised

for the first time on appeal.

III. Disposition

¶ 51 For the reasons discussed above, we affirm the judgment of

the trial court.

JUDGE SCHOCK and JUDGE BERGER concur.

25