Background
In 2006, The Brew Company borrowed $640,000 from Charles R. Greager and Jody Greager, collectively, under a promissory note secured by real property. After making a required $100,000 principal-reduction payment in 2007, the company continued making payments through March 2013. The parties later orally agreed that the company could reduce its monthly payments to $2,300, but the district court found that they did not otherwise modify the note.
The company did not pay the outstanding principal when it became due on June 1, 2014. It continued making reduced monthly payments until January 2023 and later paid a lump sum of $258,622.19, but the Greagers maintained that a balance remained. Following a bench trial, the district court found that the company breached the note, ruled that the Greagers had waived the 12% default interest rate, and calculated the remaining balance using 8.5% interest compounded annually. It entered judgment for $228,002.73.
The Court’s Holding
The Colorado Court of Appeals affirmed. It held that the company’s challenge to the pretrial exclusion of oral-modification evidence was moot because the trial judge vacated that ruling and allowed such evidence. Because the company did not provide the relevant trial transcripts, the appellate court presumed the missing record supported the district court’s findings concerning the alleged settlement, the affirmative defenses, and the damages calculation.
The court declined to consider the company’s arguments concerning ambiguity in the note and a tax-avoiding judgment structure because the company did not show that those issues had been preserved. It also rejected the company’s due-process challenge to the Greagers’ post-trial damages submission: the submission was electronically served, the company filed an opposition, and the district court independently calculated damages. Finally, the court held that determining damages was within the district court’s authority.
Invoking the promissory note’s collection-cost provision, the appellate court awarded the Greagers their reasonable attorney fees and costs incurred on appeal. It remanded for the district court to determine the amount.
Key Takeaways
- An evidentiary challenge becomes moot when the trial court vacates the disputed ruling and permits the evidence.
- An appellant who omits necessary trial transcripts risks a presumption that the missing record supports the judgment.
- Arguments not shown to have been raised and ruled on below may be declined as unpreserved.
- A contractual attorney-fee provision may support recovery of reasonable fees and costs incurred on appeal.
Why It Matters
The decision underscores that appellate review depends heavily on preservation and a complete record. Even potentially substantive objections to contract interpretation, defenses, settlement, and damages may fail when the appellant cannot identify where they were preserved or does not supply the transcripts needed to evaluate them.
It also illustrates that a trial court may independently calculate contract damages from the evidence and that service through the court’s electronic filing system, coupled with an opportunity to respond, defeats a claim that a post-trial submission was ex parte.