## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 18 2000 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MILE HIGH INDUSTRIES, Plaintiff - Counter-Defendant - Appellant,

v. ROBERT L. COHEN, Defendant - Counter-Claimant - Appellee. No. 99-8008

Appeal from the United States District Court

for the District of Wyoming (D.C. No. 93-CV-85-J)
Walter Urbigkit of Frontier Law Center, Cheyenne, Wyoming, for PlaintiffAppellant. Sheldon E. Friedman (Blain D. Myhre of Isaacson, Ro senbaum, Woods & Levy, Denver, Colorado; and Carl L. Lathrop of Lathrop & Rutledge, Cheyenne, Wyoming, with him on the brief) of Isaacson, Rosenb aum, Woods & Levy, Denver, Colorado, for Defendant-Appellee.

Before BRORBY, McKAY and MURPHY , Circuit Judges.

BRORBY , Circuit Judge.-2-

This controversy arises from agreements executed fo r the sale and “lease back” of a shopping center known as the “Wyoming Pl aza” located in Cheyenne, Wyoming. Appellant Mile High Industries (Mile High ), a Wyoming corporation, as seller and lessee of the property, brought a div ersity action for declaratory judgment in federal district court, pursuant to 28 U.S.C. § 1332, against Robert L. Cohen, a Colorado citizen and the buyer and lessor under the agreements. Mr. Cohen counterclaimed, also seeking declaratory judg ment. Mile High appeals the district court’s decision granting declaratory judg ment to Mr. Cohen. We exercise jurisdiction under 28 U.S.C. § 1291 and af firm.

I. FACTUAL BACKGROUND For the purpose of ruling on the parties’ requests for declaratory judgment, the district court made the following findings of f act. In April 1970, Mile High and Mr. Cohen entered into a Purchase Agreement forthe sale and “lease back” of the Wyoming Plaza shopping center located in Che yenne, Wyoming. Under the terms of the Purchase Agreement, Mr. Cohen agreed t o pay $1,378,000 for the shopping center, with the total purchase price cons isting of: 1) a cash payment of $177,250 to Mile High; 2) assumption of Mile High’s mortgage with Jefferson Standard Life Insurance (Jefferson Standard) in the amount of $825,000; and 3) a promissory note and second mortgage (Mortgage) in f avor of Mile High for1 Although the district court incorrectly listed th e amount of the mortgage

at $325,000, the error is harmless as it is irrelev ant to our disposition.

-3- $325,750. 1 In turn, Mile High agreed to sell the shopping ce nter to, and lease it back from, Mr. Cohen for a sixteen-year term. Purs uant to the terms of the Purchase Agreement, Mr. Cohen executed a PromissoryNote and a Mortgage in favor of Mile High, and the parties executed a sixt een-year lease agreement.

The documents executed as part of the sale and “lea se back” of the shopping center tied Mr. Cohen’s performance on both the Promissory Note and Mortgage to Mile High’s performance of its obligati ons under the Lease Agreement. Specifically, the Promissory Note provi ded: This note is executed subject to the terms of those certain agreements concerning the sale and lease of the real property pledged as security for this note. In the event that the named payee of this note [Mile High] ... defaults under the terms of the lease agr eement..., or the terms of the purchase agreement..., then no further payments are required to be made hereunder and any remaining balance due is, in accordance with said agreements, declared null, void and of no further force or effect

. (Emphasis added). Similarly, the rider to the Mort gage from Mr. Cohen to Mile High provided: This mortgage is executed subject to the terms of t hose certain agreements concerning the sale and lease of the rea l property herein described. In the event the Mortgagee [Mile High] ... defaults under the terms of the lease agreement ..., or the terms of the purchase-4-

agreement..., then no further payments are required to be made under the terms of the note secured by this mortgage, and any remaining balance due is, in accordance with said agreements, declared null, void and of no further force or effe ct , in which event this mortgage shall be deemed null, void and of no further force and effect, and the holder thereof [Mile High] shall ex ecute any and all releases required. (Emphasis added.)
Consistent with the terms of the Promissory Note an d the Mortgage, the Purchase Agreement provided: Said mortgage shall further provide that in the eve nt [Mile High] or its assigns should default in the payment of rental provided under the lease obligation ..., [Mr. Cohen] shall automatically be released from any further obligation in regard to either the mort gage or the aforesaid note. (Emphasis added). In addition to this default prov ision, the Purchase Agreement also provided: Commencing with the fifth year of said note [ i.e. 1975], [Mr. Cohen] shall make payments equal to the amortization payme nts as reflected in the attached Schedule B; providing [Mr. Cohen] r eceives net rental of $138,000.00 per year. If [Mr. Cohen] receives r ental less than $138,000.00 per year, no payments will be due to [M ile High] on said note.
The Lease Agreement required Mile High to pay $11,5 00 in monthly lease payments by the first day of each month, plus all c osts of upkeep, maintenance, repairs, utilities, taxes and insurance.-5-

On May 1, 1971, the parties amended the Lease Agree ment, allowing Mile High to pay its rent on the tenth, rather than the first, day of the month. In turn, the parties agreed an automatic default would occurif Mile High failed to pay its rent on time, eliminating the requirement that Mr. Cohen provide Mile High ten days’ written notice of Mile High’s default in paym ent of rent.

In 1979, Mile High sought to obtain a lien release from Jefferson Standard on a 4.69 acre parcel owned by Mile High but encumb ered by the Jefferson Standard mortgage assumed by Mr. Cohen. By letter dated August 29, 1979, Mile High’s President, James P. Federer, informed Mr. Co hen:

Jefferson Standard is not willing to release their Mortgage even though I escrow the money. It looks like the only answer is for me to pay the $50,000.00 on the First Mortgage to J efferson Standard and to get you to agree to add it to the Mortgage balan ce owed by you to us. I believe the interest rate is the same, if not w e would adjust it to be the same as the Jefferson Standard rate and it would be paid out on the end of the Jefferson Mortgage. If when you receive the notice from Jefferson Stand ard of the payment on the Mortgage principal, I would appreciate a letter stating you have received the notice of payment and agreeing to pay to us at the end like sum of money on the same term

. (Emphasis added). In a September 5, 1979 letter, M r. Cohen stated he did not object to the procedure outlined in Mr. Federer’s A ugust 29 letter, and as soon as he received notification from Jefferson Standard, h e would “prepare a suitable letter for your files.” Subsequently, Mile High pa id the $50,000 and received a2Although Mile High contests the district court’s finding the parties

agreed Mr. Cohen’s payment would not be due until h e received Mile High’s rent payment (May 9, 2000 oral argument), the district c ourt correctly found Mr. Federer’s testimony did not refute this finding, an d, in fact, the record reflects this to be the parties’ established practice.

-6- release of the lien on its 4.69-acre tract. Howeve r, Mr. Cohen never wrote the referenced letter.

During the active term of the Lease Agreement, Mr. Cohen experienced various defaults and breaches of the agreement by M ile High. Concern over Mile High’s ability to perform under the Lease Agreementprecipitated the parties’ practice and unwritten agreement that Mile High wou ld make its lease payments to Mr. Cohen prior to Mr. Cohen making quarterly mo rtgage payments to Mile High. 2

Ultimately, a series of events occurred in October 1981 leading to the instant litigation. To begin, Mile High failed to make the lease payment due October 10, 1981. In the meantime, Mr. Cohen did n ot make the September 30, 1981 payment on his Mortgage with Mile High because of the parties’ understanding the mortgage payments would be made o nly after receipt of Mile High’s monthly lease payment. On October 23, 1981, Mr. Cohen wrote to his3 In referencing this letter, the district court co rrectly pointed out the Lease

Agreement provided for an offset of Mr. Cohen’s mortgage payments with Mile High’s lease payments, dependent on Mile High’s wri tten notice to Mr. Cohen of such an offset. The district court also suggested Mr. Cohen’s letter showed his willingness to allow Mile High to offset the Octobe r payment against Mr. Cohen’s September mortgage payment due Mile High. However, the evidence in the record shows Mr. Cohen never communicated to Mile H igh any willingness to offset the payments, and instead, clearly notified Mile High of its default. More importantly, Mr. Federer testified he never gave fo rmal written notice to Mr. Cohen, as required by the Lease Agreement, of any i ntent to offset the mortgage payment against the lease paymen; nor do we find any testimony he verbally notified Mr. Cohen of an intended offset. Thus, th e weight of the evidence supports the district court’s ultimate findings andconclusions that Mile High defaulted on the October lease payment and that Mr. Cohen clearly notified Mile High of its default.

-7- attorney, stating:

I am having increasing difficulty with Jim Federer [of Mile High] in payment of his rent. He still has not pai d the rent for the month of October nor have I paid him the payment on the second [mortgage] due early October. I would appreciate it if you would get out these ag reements and see what our next step is. We are all right th is month since I owed him as much as he owed me, however, beginning the next month if we do not get rent from him we are going t o have difficulty making our mortgage payments. It might, therefore, be to our advantage to move quickly to declare the lease term inated and instruct all tenants to pay us directly. 3
By letter dated October 27, 1981, Mr. Cohen’s attor ney sent Mile High a notice of default for October’s rent. A few days l ater, Mile High sent Mr. Cohen a check dated November 2, 1981, in the amount of $1 1,000 – instead of the-8-

$11,500 due for October’s rent. When Mile High didnot make its $11,500 November lease payment by the tenth, Mr. Cohen’s attorney sent a letter dated November 13, 1981, acknowledging receipt of the $11 ,000 check, but stating Mile High was “still in default under the lease” because it owed a total of $500 for October’s rent, $11,500 for November’s rent, plus $ 8,300 for insurance due on the building. The letter ended by stating “this le tter shall serve as further notice of default and in the event Mr. Cohen does not have certified funds in his hands in the amount of $8,800 [ i.e. , $8,300 insurance and $500 October rent] within te n (10) days, we shall take such action as may be nece ssary to protect our client’s interest.” Mile High never paid the $8,300 for the unpaid insurance, $500 for the outstanding October rent, $11,500 for November’s re nt, or any real estate taxes due in 1981.

On December 2, 1981, Mr. Cohen’s attorney sent a le tter to Mr. Federer giving him written notice Mr. Cohen was “terminatin g said lease [as of] December 2, 1981.” On receipt of the letter, Mile High voluntarily surrendered possession of the shopping center to Mr. Cohen. Th e next day, Mile High sent a letter advising all shopping center sub-lessees to pay their rent to Mr. Cohen. Because Mile High failed to fully pay its 1981 leas e payments, Mr. Cohen received only $110,000 of the $138,000 in 1981 leas e payments due from Mile-9-

High under the Purchase Agreement, which states “[i ]f Buyer receives rental less than $138,000.00 per year, no payments will be due to Seller on said note.”

From December 2, 1981, Mr. Cohen has operated the s hopping center and paid all expenditures associated with it, including maintenance, repairs, utilities, taxes, and insurance. Mr. Cohen also paid off the $825,000 mortgage with Jefferson Standard, less the $50,000 paid by Mile H igh for the release of the lien on the 4.69 acres of real estate.

II. PROCEDURAL BACKGROUND In late 1983, after Mile High refused to execute a release of the Mortgage and Promissory Note, Mr. Cohen sought declaratory j udgment against Mile High in Colorado federal district court, asking for exti nguishment and cancellation of the Promissory Note and Mortgage with Mile High as of December 2, 1981, when Mr. Cohen terminated Mile High’s Lease Agreement. Mile High counterclaimed for the balance due on the Promissory Note and Mort gage and sought foreclosure of the Mortgage. In July 1985, prior to trial, Mil e High filed a petition for Chapter 11 bankruptcy relief causing closure of the Colorado declaratory action. On a bankruptcy schedule, entitled “Property Not Otherwise Scheduled,” Mile High listed the value of the Promissory Note and Mo rtgage with Mr. Cohen at-10-

$219,788, which included the $50,000 paid by Mile H igh on Jefferson Standard’s mortgage. However, neither Mile High nor its bankruptcy trustee brought an action to collect on the Promissory Note or to fore close on the Mortgage during the pendency of the bankruptcy. In 1989, the bankr uptcy court approved Mile High’s proposed reorganization plan, but any claims between Mr. Cohen and Mile High were excepted from the approved plan.

More than eleven years after Mr. Cohen terminated t he Lease Agreement and four years after approval of its bankruptcy reo rganization plan, Mile High filed the complaint initiating this action. In its initial March 12, 1993 complaint, Mile High sought a decree of foreclosure on the Mortgage with Mr. Cohen and a declaratory judgment for the balance and interest o wed by Mr. Cohen under the Promissory Note and Mortgage, “including $50,000 ad ded by agreement.” Mile High did not make a jury trial demand in its compla int. Mr. Cohen filed an answer claiming forfeiture because the Promissory N ote was extinguished on termination of the Lease Agreement, and a countercl aim seeking declaratory judgment for the extinguishment and cancellation of the Promissory Note and Mortgage, effective on the date Mile High defaulted on the Lease Agreement.

In July 1993, Mile High amended its complaint omitt ing its prayer for a-11-

monetary deficiency judgment against Mr. Cohen on t he unpaid balance of the Mortgage and instead sought satisfaction of any jud gment by foreclosure sale. Mile High also renewed its request for a monetary award of $50,000 plus interest for the payment it made to Jefferson Standard on th e mortgage assumed by Mr. Cohen. Again, Mile High did not demand a jury tria l.

Thereafter, Mr. Cohen filed his answer to the amend ed complaint renewing his claim of forfeiture and amending his countercla im to also request $50,000 for the balance due on the October and November 1981 re ntal payments, and for damages and expenditures Mr. Cohen incurred before the Lease Agreement’s termination on December 2, 1981. Shortly thereafte r, Mr. Cohen filed an amended answer asserting additional affirmative def enses, including violation of the statute of limitations, laches and estoppel by acquiescence.

On September 7, 1993, Mile High filed a jury demandunder Rule 38 of the Federal Rules of Civil Procedure. In response, Mr. Cohen filed a motion to strike the jury demand as untimely, claiming the amended p leadings did not revive Mile High’s right to demand a jury trial on issues alrea dy framed by the original pleadings. After a hearing on the matter, the magi strate judge granted Mr. Cohen’s motion to strike, which the district court affirmed.-12-

Following a bench trial, the district court issued its judgment declaring neither party could recover monetary damages from t he other. The district court further declared: 1) the Lease Agreement forfeited and surrendered by operation of law; 2) all indebtedness due under the Promissory Note, including the additional $50,000, fully extinguished and canceled , and any indebtedness by Mr. Cohen to Mile High satisfied; and 3) the Mortgage t o Mile High from Mr. Cohen canceled as of December 2, 1981, null, void and of no further force and effect, and no longer a lien against the Wyoming Plaza shop ping center. In addition, the district court applied the doctrine of laches and e stopped Mile High from seeking foreclosure because “Mile High failed to take any a ffirmative steps in a timely manner to pursue its claimed rights and/or propertyinterests in the Note, Mortgage and Lease Agreement.”

On appeal, Mile High claims the district court erre d in: 1) forfeiting the unpaid balance on the Mortgage with Mr. Cohen; 2) f orfeiting the $50,000 advance payment Mile High made on the Jefferson Standard mortgage; 3) denying it a jury trial on new issues raised by Mr. Cohen’s affirmative defenses; and 4) applying laches, estoppel and acquiescence in reach ing its decision. Conversely, Mr. Cohen supports the district court’s decision inall respects.-13- III. DISCUSSION A. Default of Lease Agreement and Forfeiture of th e Mortgage Balance Mile High argues the district court erred in granti ng declaratory judgment to Mr. Cohen because it never defaulted on the Leas e Agreement other than a failure to pay a mere $23 on its November payment. Mile High arrives at this figure by claiming Mr. Cohen orally agreed to offse t Mile High’s $11,500 October payment with his quarterly $11,977 mortgage payment, leaving a $477 balance to be applied to Mile High’s November payme nt. Because Mile High applied the $477 balance toward its November payment and then paid an additional $11,000, Mile High claims it was in defa ult for only $23 – or the difference between $11,500 and $11,477. Mile High further claims it did not default on the $8,300 insurance payment because Mr. Cohen failed to provide notice of the obligation to make the payment, and n o deficiency existed until Mile High received notice or an authenticated bill for v erification. Mile High also asserts it was not obligated to pay the real estate taxes until December 31, 1981. In making these assertions, Mile High acknowledges its heavy burden in attacking the trial court’s factual findings and that a “subs tantiated conflict in relevant evidence” must exist.

The district court’s findings as to the various bre aches of Mile High’s-14-

Lease Agreement are factual determinations subject only to the clearly erroneous standard of review on appeal. Fed. R. Civ. P. 52(a ); see also Kerr-McGee Corp. v. Bokum Corp. , 453 F.2d 1067, 1072 (10th Cir. 1972). Moreover, we give the trial court’s credibility determinations due defere nce. Fed. R. Civ. P. 52(a); see also Mid-West Conveyor Co., Inc. v. Jervis B. Webb Co. , 92 F.3d 992, 997 (10th Cir. 1996).

In this case, the district court determined Mile Hi gh defaulted on the lease agreement because it failed to make the $11,500 Oct ober lease payment to Mr. Cohen. When Mile High paid Mr. Cohen $11,000 in early November, it remained in default for $500 on the unpaid balance of Octobe r’s rental payment, in addition to the $11,500 for November’s rent, and unpaid insu rance and real estate taxes. In determining Mile High’s default precipitated for feiture of the balance due under the Promissory Note and Mortgage, the distric t court found the documents, executed as part of the sale and “lease back” of th e shopping center, to be “clear and unambiguous and memorialize[d] the parties’ transaction,” and plainly prescribed forfeiture on Mile High’s default. The district court further held that while forfeiture of the amount due under the Promis sory Note and Mortgage may appear harsh, it “was within the contemplation of t he parties when they entered into this business transaction.”-15-

In reviewing these findings, we note the district c ourt correctly determined the documents at issue were clear and unambiguous, and contemplated forfeiture of the balance due from Mr. Cohen on the PromissoryNote and Mortgage in the event Mile High defaulted on the Lease Agreement. Under the amended provision of the Lease Agreement, it is also clear Mile High’s rental payment was due no later than October 10, and an automatic defa ult would occur if it failed to pay its rent on time. Moreover, the evidence in th e record supports the district court’s determination the parties’ practice and unw ritten agreement over the years required Mile High to make its lease payments priorto Mr. Cohen making quarterly mortgage payments to Mile High. Thus, wh en Mile High failed to pay Mr. Cohen $11,500 on October 10, 1981, and later fa iled to pay the full sum due, as well as the insurance payment required under the Lease Agreement, Mile High was in default regardless of whether Mr. Cohen made his quarterly payment. While the Lease Agreement permits Mile High to offs et its lease payments with the mortgage payments, such an offset depended on M ile High’s written notice to Mr. Cohen. The evidence in the record clearly show s Mr. Federer never gave formal written notice to Mr. Cohen of any intent to offset the mortgage payment against the lease payment, and Mr. Federer did not testify he verbally notified Mr. Cohen of an intended offset. Similarly, Mr. Cohen did not communicate to Mile High any willingness to offset the payments. To th e contrary, he clearly notified4The only document this court found that lends sup port to Mile High’s

contention is a statement in a January 11, 1982 letter in which Mile High informed Mr. Cohen’s attorney that “[t]he one month ’s rent due Cohen was authorized to be withheld from this payment by phon e.” However, the letter does not indicate what month, i.e. , October or November, was to be offset or who allegedly authorized it. Under the circumstances, the district court obviously credited Mr. Cohen’s testimony that neither he nor his agents authorized an offset, which is supported by Mr. Federer’s failure to test ify that authorization ever occurred.

5 Moreover, it is clear Mile High received notice o f its default on the insurance payment and an opportunity to pay the amo unt due. Specifically, Mr. Cohen’s attorney notified Mile High of its insuranc e payment default in a letter dated November 13, 1981, and directed the payment b e made within ten days. Mile High never paid the $8,300 for the unpaid insu rance, leading, in part, to the December 2, 1981 notice of termination of the Lease Agreement.

-16- Mile High of its default.

While Mile High contends in its appeal brief that M r. Cohen orally agreed to offset the payments, it fails to provide a recor d reference for its contention. 4 Similarly, Mile High fails to reference any portion of the record to support its contentions that it never received notice the insur ance payment was due, and it was not required to pay the real estate taxes until December 1981. 5 In order to carry its burden of proving the district court’s fa ctual errors, Mile High must provide this court with the essential references to the record on which it relies. See S.E.C. v. Thomas , 965 F.2d 825, 827 (10th Cir. 1992). Because Mile High failed to reference the record in support of its co ntentions, we will not consider-17-

them or sift through the record in support thereof, but instead defer to the district court’s rulings. Id.

Thus, under the circumstances presented, we hold th e district court’s finding Mile High defaulted under the terms of the Lease Agreement is not clearly erroneous. Based on the clear, unambiguous terms o f the parties’ agreements and Mile High’s subsequent default, the district court also did not err in holding the Lease Agreement terminated December 2, 1981, the Pr omissory Note and Mortgage null, void and of no further force and eff ect, and the unpaid balance of the Promissory Note and Mortgage forfeited. For th ese reasons, the district court properly awarded declaratory judgment to Mr. Cohen.

B. Forfeiture of $50,000 Advance Payment on the Je fferson Standard Mortgage Mile High contends the district court erred in dete rmining Mr. Cohen did not owe Mile High $50,000 – the amount paid on the Jefferson Standard mortgage in order to obtain a release of the lien on its 4.6 9 acres of real estate. Specifically, Mile High contends the court erred in determining the $50,000 payment owed by Mr. Cohen was added to the Mortgage and Promissory Note between Mile High and Mr. Cohen. Instead, Mile Hig h contends the $50,000 constituted an independent transaction based on an entirely separate agreement,-18-

which Mr. Cohen was obligated to pay after he paid the last installment of the Jefferson Standard mortgage.

Under Wyoming law, issues such as whether a contrac t has been entered into and the terms of the alleged contract are gene rally questions of fact for resolution by the fact finder. See Deepwater Inv., Ltd. v. Jackson Hole Ski Corp. , 938 F.2d 1105, 1112 & n.11 (10th Cir. 1991). The d istrict court’s findings as to the parties’ agreement on the repayment of the $50, 000 is a factual determination subject only to the clearly erroneous standard of r eview on appeal. Fed. R. Civ. P. 52(a). “A finding of fact is not clearly errone ous unless it is without factual support in the record, or if the appellate court, a fter reviewing all the evidence, is left with the definite and firm conviction that a m istake has been made.” MidWest Conveyor Co. , 92 F.3d at 997-98 (quotation marks and citation o mitted).

In this case, the record supports the district court’s determination the parties intended to add the $50,000 payment to Mr. Cohen’s Mortgage and Promissory Note. In his letter dated August 29, 19 79, Mr. Federer informed Mr. Cohen the only answer to obtaining the release he n eeded was for Mile High “to pay the $50,000.00 on the First Mortgage to Jeffers on Standard and to get you to agree to add it to the Mortgage balance owed by youto us. ” (Emphasis added).6While Mr. Federer offered conflicting testimony s aying the parties

understood the $50,000 would be paid as a separate transaction, we give the trial court’s credibility determinations great deference. Fed. R. Civ. P. 52(a); see also Mid-West Conveyor Co. , 92 F.3d at 997.

-19- In response, Mr. Cohen stated he did not object to the procedure outlined in Mr. Federer’s August 29 letter, which he testified he u nderstood as adding $50,000 to the Mortgage balance. Mr. Federer clarified this w as the parties’ intention when he later testified the $219,788 due under the Promi ssory Note and Mortgage, as listed on Mile High’s bankruptcy schedule, includedthe $50,000 paid by Mile High on Jefferson Standard’s mortgage. 6 Under these circumstances, the district court’s factual finding the parties included the $5 0,000 in the Promissory Note and Mortgage was not clearly erroneous. Because th e parties added this amount to the Mortgage and Promissory Note, which were lat er declared null and void, the district court correctly concluded Mile High’s default of the Lease Agreement also caused forfeiture of the $50,000.

C. Right to a Jury Trial As a procedural matter, Mile High argues the distri ct court erred in striking its demand for a jury trial. Mile High asserts ithad a right to a jury trial based on the affirmative defenses of laches, estoppel an d acquiescence raised in Mr.7While Mile High characterizes Mr. Cohen’s affirmative defenses as three

defenses consisting of laches, estoppel, and acquie scence, we read Mr. Cohen’s defenses to include only laches and “estoppel by ac quiescence,” as discussed later.

-20- Cohen’s amended answer. 7In support of this assertion, Mile High alleges: The interjection of acquiescence, estoppel, and lat ches [sic] ... entirely changed the character of [the] litigation. The matrix of facts and the period of time involved, as well as a compl etely different theory of defense should meet the test of new issue s as required under the law to authenticate a requested jury afte r a waiver of jury on the prior issues had existed. Specifically, Mile High claims the period of time i nitially at issue concerned only the operative events associated with termination of its lease during October, November, and the first few days of December 1981. However, after introduction of the affirmative defenses, Mile High asserts the time frame changed to include the time during which Mile High failed to litigate its forfeiture claim – from December 2, 1981 to March 12, 1993 when it filed th e instant action. Thus, Mile High argues Mr. Cohen’s affirmative defenses raise new issues concerning matters of law and requiring a jury determination. In making this assertion, Mile High acknowledges its right to a jury trial extends only to the new issues introduced by Mr. Cohen’s amended answer, and not t o any issues previously raised by the pleadings, including its foreclosure action which it admits is equitable in nature. However, Mile High contends i ts right to a jury trial was8Both parties incorrectly purport that our standar d of review in this case is

abuse of discretion. We review the district court’ s determination to either grant or deny a jury trial for an abuse of discretion whe n the jury demand is untimely and the trial court exercises its discretion to nev ertheless allow a jury trial under Fed. R. Civ. P. 39. See Dill v. City of Edmond, 155 F.3d 1193, 1208 (10th Cir. 1998); FDIC v. Palermo , 815 F.2d 1329, 1333-34 (10th Cir. 1987); Paramount Pictures Corp. v. Thompson Theatres, Inc. , 621 F.2d 1088, 1090 (10th Cir. 1980). In this case, Mile High timely filed its jury deman d within ten days of Mr. Cohen’s amended answer. See Fed. R. Civ. P. 38 (stating a demand for a jury trial must be made within ten days of the last plea ding directed to the new issue); see also Palermo , 815 F.2d at 1333. Thus, the issue before us pert ains not to the timeliness of Mile High’s request, but to the distr ict court’s decision on the merits as to whether the affirmative defenses raised new i ssues affording Mile High a right to a jury trial, which would revive its initi al waiver of a jury.

-21- revived under Fed. R. Civ. P. 38 when Mr. Cohen rai sed the affirmative defenses of acquiescence, laches and estoppel.

Whether Mile High was entitled to a jury trial is aquestion of law we review de novo. See Fischer Imaging Corp. v. General Elec. Co. , 187 F.3d 1165, 1168 (10th Cir. 1999) (citing Manning v. United States , 146 F.3d 808, 811 (10th Cir. 1998)), and Bowdry v. United Airlines, Inc. , 58 F.3d 1483, 1489 (10th Cir. 1995). 8 In the instant case, the district court determine d Mile High did not have a right to a jury because: [T]he entire case, as to both [Mile High] and [Mr. Cohen], appears to hinge upon the terms and requirements of the partie s’ various agreements, particularly with regard to the promiss ory note and all issues related to nonpayment. Even though [Mr. Coh en] asserted the four additional affirmative defenses, nothing has r eally changed the9In this case, both parties relied primarily on Wy oming cases to support

their positions. While we rely on federal law in t his diversity case to determine whether the affirmative defenses at issue are legal or equitable, we note that in Wyoming, where the property is located and the appl icable documents recorded, -22- basic issues that must be resolved during the cours e of the trial. The general nature of the parties’ dispute has not chan ged and the ultimate decisions to be made during the course of trial do not appear to be different. Consequently, the district court held Mile High’s j ury demand did not revive its previously waived right to a jury trial.

In reviewing the district court’s decision, we mustdetermine if this “action involves rights and remedies of the sort traditiona lly enforced in an action at law, rather than an action in equity.” Fischer , 187 F.3d at 1168 (quotation marks and citation omitted). This distinction is critical be cause the Seventh Amendment right to a jury trial attaches to actions at law, n ot to those in equity. See Manning , 146 F.3d at 811-12. Whether a case is entitled to a jury trial is a decision that must be made according to federal law in diversity cases. See Kerr-McGee , 453 F.2d at 1071 (relying on Simler v. Conner , 372 U.S. 221, 222 (1963)). “In diversity cases, ... the substantive dimension of t he claim asserted finds its source in state law, but the characterization of that stat e-created claim as legal or equitable for purposes of whether a right to jury trial is indicated must be made by recourse to federal law.” 9 Simler , 372 U.S. at 222 (citations omitted).the law is similar to federal law and we therefore reference applicable Wyoming

cases merely as additional, supplemental authority.

10The same principle applies under Wyoming law. See, e.g., Ferguson v. Ferguson , 739 P.2d 754, 758 (Wyo. 1987) (holding determinat ion of whether an action is legal or equitable in nature depends on “ an examination of the entire pleadings and all the issues raised [and] not merel y [on] ‘the plaintiff’s declaration, complaint, or petition, or his evidenc e.’” (Quoting Davidek v. Wyoming Inv. Co. , 308 P.2d 941, 946 (Wyo. 1957)).

-23- Under federal law, “the right to a jury trial is no t determined by the form of the complaint, but by an appraisal of the claims, d efenses, and remedies” sought.
Kerr-McGee , 453 F.2d at 1071. In other words, “[i]t is the i ssues, not the form of the complaint, that will determine the method of tr ial.” Id. 10 The fact both parties in this case requested a declaratory judgme nt on their rights is not decisive. A request for declaratory relief “may be legal or equitable depending on the ‘basic nature of the underlying issues.’” Fischer , 187 F.3d at 1168 (quoting United States v. New Mexico , 642 F.2d 397, 400 (10th Cir. 1981)); see also Ferguson , 739 P.2d at 759 (applying the same logic under Wy oming law).

Proceeding under these principles, the foreclosure issue presented by Mile High was clearly equitable in nature. “The foreclo sure of mortgage liens is equitable in nature and such actions may be tried i n the Federal courts without intervention of a jury.” Rozelle v. Connecticut Gen. Life Ins. Co. , 471 F.2d 29, 3111 Likewise, in Wyoming, an action for foreclosure o n a mortgage is

considered equitable in nature. See Chopping v. First Nat’l Bank, 419 P.2d 710, 713 (Wyo. 1966), cert. denied, 387 U.S. 935 (1967); see also Lellman v. Mills , 87 P. 985, 994 (Wyo. 1906) (holding action to set asid e mortgage is “purely equitable in character [and] triable by the court”)

.

-24- (10th Cir. 1972), cert. denied, 411 U.S. 921 (1973). 11 Similarly, Mr. Cohen’s counterclaim for cancellation of the Lease Agreemen t and other agreements constituted an equitable issue triable by the court

. See Kerr-McGee , 453 F.2d at 1072; see also Davidek, 308 P.2d at 946; Goodson v. Smith , 243 P.2d 163, 176 (Wyo. 1952). Moreover, Mile High acknowledged it d id not initially make a jury demand because it believed the foreclosure action a nd other issues presented by the parties in the initial pleadings were equitable in nature. For these reasons, we conclude the initial claims and defenses raised pre sented equitable issues triable by the district court.

Having made this determination, we turn to the linc hpin of Mile High’s argument, which centers on its claim the affirmativ e defenses of laches, estoppel and acquiescence presented new issues requiring a j ury trial. The district court determined the defenses raised by Mr. Cohen relateddirectly to the issue of Mile High’s foreclosure action so that “nothing has real ly changed the basic issues that must be resolved during the course of the trial.” We agree.-25-

We begin by noting Mr. Cohen’s affirmative defenses of laches and estoppel by acquiescence were meant to apply square ly to the issue of Mile High’s foreclosure action and were raised for the s ole purpose of defending against that action. Mr. Cohen began by asserting the statute of limitations should be applied against Mile High as a defense to its foreclosure action, and alternatively, alleged Mile High: 1) “was guilty o f laches” in failing to seek relief and 2) should be “estopped” from bringing a foreclo sure action based on Mile High’s “acquiescence” in surrendering possession of the building and failure to bring a foreclosure action to obtain possession of the shopping center Our appraisal of the general nature of Mile High’s fore closure claim and Mr. Cohen’s defenses shows they related directly to the basic i ssue of foreclosure, as initially raised in the pleadings, leaving us with the firm c onviction the issues involved here are the sort traditionally enforced in equity.

Our conclusion is reinforced when we look at the nature and application of the affirmative defenses at issue. We have said “t he issue of laches depends on whether ‘equitable relief cannot be afforded withou t doing injustice.’” Jicarilla Apache Tribe v. Andrus , 687 F.2d 1324, 1337 (10th Cir. 1982) (quoting Penn Mut. Life Ins. Co. v. City of Austin , 168 U.S. 685, 698 (1898)). Laches is considered “an equitable defense, controlled by equ itable considerations.”12Wyoming law recognizes various forms of “equitabl e estoppel,”

including, for example, laches, promissory estoppel , estoppel by acquiescence, estoppel by fraudulent concealment or fraud, and es toppel in pais. See, e.g. , Beadle v. Daniels , 362 P.2d 128, 131 (Wyo. 1961) (explaining the ele ment of injury, prejudice or disadvantage is necessary unde r the doctrine of laches to estop plaintiff from maintaining suit); Loghry v. Unicover Corp. , 927 P.2d 706, 710 (Wyo. 1996) (holding promissory estoppel requir es a promise to be made which induces action or forbearance); McCarthy v. Union Pac. Ry. Co. , 131 P.2d 326, 330, 332 (Wyo. 1942) (concluding elements of knowledge and acquiescence are necessary for estoppel by acquiescence); Olson v. A.H. Robins Co. , 696 P.2d 1294, 1299 (Wyo. 1985) (applying equitable estoppel because of fraudulent concealment to prevent use of the statute of limitations as a defense); Bauer v. State , 695 P.2d 1048, 1050-51 (Wyo. 1985) (holding fraudwill equitably estop statute of limitations); Crosby v. Estate of Strahan , 324 P.2d 492, 496-98 (Wyo. 1958) (discussing elements necessary for estoppel i n pais). Our reading of Mr. Cohen’s amended answer convinces us he sought only the affirmative defenses of laches and estoppel by acquiescence. Accordingly, we find Mile High’s reliance -26- Halstead v. Grinnan , 152 U.S. 412, 417 (1894); see also Anderson v. Wyoming
Dev. Co. , 154 P.2d 318, 345-346 (Wyo. 1944). “As with othe r equitable defenses, the existence of laches ‘is a question primarily ad dressed to the discretion of the trial court.’” Jicarilla, 687 F.2d at 1337 (quoting Burnett v. New York Cent. R.R.
Co. , 380 U.S. 424, 435 (1965)). Thus, applying these principles, we hold the issue of laches in this case lies in equity, and is triable by the court and not a jury. Accordingly, even if this defense somehow introduce d a new “matrix of facts” as claimed by Mile High, it remained an equitable issu e triable by the district court.

We next turn to the more complicated issue of the a ffirmative defense of equitable estoppel by acquiescence. 12 In determining whether the issue ofon cases concerning other forms of equitable estopp el unhelpful in making our

determination.

-27- estoppel by acquiescence is an issue triable by a c ourt, we find no federal law to assist us. Consequently, we look to Wyoming law to shed light on the issue. See FDIC v. Kansas Bankers Sur. Co. , 963 F.2d 289, 294 (10th Cir. 1992.) Moreover, because we will examine and compare the elements of both laches and estoppel by acquiescence in making our determination, we are ex amining the “substantive dimension” of these defenses and thus, must apply s tate law. See Simler , 372
U.S. at 222.

Like other states, Wyoming recognizes the defense o f estoppel by acquiescence. This defense requires the one agains t whom it is asserted to have known of, or been able to ascertain, the facts from which the estoppel arose, but nevertheless acquiesced without asserting his or he r rights. See generally McCarthy , 131 P.2d at 330, 332. Accord Zivich v. Mentor Soccer Club, Inc. , 1997 WL 203646 at *12 (Ohio Ct. App. 1997) (holding under doctrine of estoppel by acquiescence a plaintiff loses his rights agains t a defendant if he committed some act amounting to an assurance he would not ass ert his rights) (unpublished opinion); Schiltz v. Teledirect Int’l, Inc. , 524 N.W.2d 671, 674 (Iowa Ct. App. 1994) (holding “[e]stoppel by acquiescence occurs w hen a person knows or ought-28-

to know of an entitlement to enforce a right and ne glects to do so for such time as would imply an intention to waive or abandon the ri ght”); City of Hammond v. Welsh , 67 N.E.2d 390, 393 (Ind. 1946) (holding “[t]he ru le of estoppel by acquiescence is inoperative unless it appears that the party against whom it is invoked was fully aware of his rights, or was negli gent in failing to acquire such knowledge” (quotation marks and citation omitted)).

We note under Wyoming law laches and estoppel by ac quiescence are very similar. First, laches is also a form of equitable estoppel. See Squaw Mountain Cattle Co. v. Bowen , 804 P.2d 1292, 1297 (Wyo. 1991). Second, like es toppel by acquiescence, laches also requires knowledge of the relevant facts and acquiescence. See Jicarilla , 687 F.2d at 1338 (concluding laches exists “where a party, having knowledge of the relevant facts, acqu iesces for an unreasonable length of time in the assertion of a right adverse to his own”); see also First Nat’l Bank v. First Wyoming Sav. and Loan Ass’n. , 592 P.2d 697, 702 (Wyo. 1979) (concluding “the laches defense is reserved for tho se rare cases where a protracted acquiescence by plaintiff induces a defe ndant to undertake substantial activities in reliance on the acquiescence”). However, unlike estoppel by acquiescence, laches also requires additional findi ngs of “(a) unreasonable delay in bringing suit by the party against whom the defe nse is asserted and (b)-29-

prejudice to the party asserting the defense as a r esult of this delay.” Jicarilla , 687 F.2d at 1338. Unlike laches, estoppel by acqui escence does not require the additional showing of prejudice because it focuses on the actions of the party holding the right to determine if that party waived its right. See Thurn v. Thurn , 310 N.W.2d 539, 541 (Iowa Ct. App. 1981). In otherwords, the defense of estoppel by acquiescence focuses on the party again st whom the defense is asserted to see if that party waived its right, whi le the defense of laches concentrates on the position of the party asserting the defense to see if he or she was prejudiced.

Despite this difference, it is clear laches and est oppel by acquiescence both require the same showing of knowledge and acquiesce nce. It follows then that if the elements required for a finding of laches, incl uding the additional elements of prejudice and unreasonable delay, are determined in equity and triable by the court, then the same, but fewer elements required f or a finding of estoppel by acquiescence – i.e. , knowledge and acquiescence – likewise present an issue triable by the court.

Mile High’s reliance on a plethora of Wyoming and T enth Circuit cases requiring a jury to determine issues relating to “p romissory estoppel” does not-30-

dissuade us from our decision. These cases are inapplicable because, as they explain, “promissory estoppel” is an affirmative ca use of action or defense, which arises in instances where no formal contract exists and the party seeking promissory estoppel is attempting to prove the exis tence of an enforceable promise or agreement. See State Farm Mut. Auto. Ins. Co. v. Petsch , 261 F.2d 331, 335 (10th Cir. 1958); Loghry , 927 P.2d at 710; Verschoor , 907 P.2d at 1298; Michie v. Board of Trustees , 847 P.2d 1006, 1009 (Wyo. 1993); see also 28 Am. Jur. 2d Estoppel and Waiver§ 57 (2000). In this case, Mr. Cohen did not seek “promissory estoppel” to defend against foreclosure based on any unfulfilled promise or informal agreement and therefore, he was under no obligation to prove such a promise or informal agreement existed. Rath er, he sought the affirmative defense of “estoppel by acquiescence” which, as pre viously discussed, is a defense similar to laches – an issue in equity and triable by the court.

Because Mr. Cohen raised the affirmative defenses o f laches and estoppel by acquiescence for the purpose of defending agains t the equitable issue of foreclosure, and these defenses are also equitable in nature and triable by the court, we hold the district court did not err in st riking Mile High’s jury demand.

D. Application of Laches and Estoppel by Acquiesce nce-31-

In a related argument, Mile High contends the distr ict court erred in applying laches, estoppel and acquiescence to justi fy forfeiture of the balance due on the Promissory Note and Mortgage. Mile High contends the application of these defenses unjustifiably excused Mr. Cohen frompaying a debt legitimately due Mile High. In further support of its contentio ns, Mile High claims the record is absent of any showing of detriment to Mr. Cohen as required for laches, or the elements required for estoppel and acquiescence.

In this case, the district court first determined M ile High defaulted on the Lease Agreement, and that under the express terms o f all the agreements, the entire balance due on the Promissory Note and Mortg age was extinguished and forfeited by Mile High. Thus, even without a deter mination on Mr. Cohen’s affirmative defenses, the district court ruled in f avor of Mr. Cohen and thereby precluded Mile High’s foreclosure action. However, in addition to this ruling, the district court also applied the doctrine of laches because of Mile High’s failure to pursue its claims against Mr. Cohen, and estopped M ile High from bringing its foreclosure action. We hold the district court’s a dditional ruling on the affirmative defenses was in addition to, and not de terminative of, its decision to grant declaratory judgment to Mr. Cohen. We nevert heless discuss the district court’s application of the affirmative defenses to the facts of this case in order to-32-

show the district court did not err in their applic ation.

We review the district court’s factual findings as to Mr. Cohen’s equitable defenses under the clearly erroneous standard, and its legal conclusions de novo

. See Granite State Ins. Co. v. Smart Modular Tech., Inc. , 76 F.3d 1023, 1028 (9th Cir. 1996). In finding the doctrine of laches appl ied, the district court first determined Mile High possessed actual knowledge of Mr. Cohen’s notice of default, termination of the Lease Agreement, and cl aims he owed no money to Mile High. The district court then concluded Mile High’s unreasonable delay in bringing its foreclosure action, when it knew of Mr . Cohen’s claims, prejudiced Mr. Cohen who, in taking over the shopping center and expenses associated with it, relied on Mile High’s acquiescence in relinquis hing possession of the shopping center and not bringing suit. The district court f urther determined Mile High offered no plausible excuse for its delay. As to t he defense of estoppel by acquiescence, the district court generally held Mil e High was “estopped” from seeking foreclosure because it failed to timely tak e affirmative steps in filing its action against Mr. Cohen.

We begin by examining the issue of laches. As prev iously explained, under Wyoming law laches requires a finding of: 1) knowl edge by the party against-33-

which the defense is asserted; 2) acquiescence by t hat party in the assertion of its rights; 3) resulting unreasonable delay in bringing suit; and 4) prejudice to the party asserting the defense. See Jicarilla , 687 F.2d at 1338. Applying these elements to this case, it is clear Mile High knowin gly relinquished possession of the shopping center on December 2, 1981. One monthlater, in January 1982, when Mile High refused to sign the necessary Mortga ge release, it was fully aware of Mr. Cohen’s claims concerning the terminat ion of the Lease Agreement and cancellation of the Promissory Note and Mortgag e. Moreover, Mile High remained cognizant of Mr. Cohen’s possession of the shopping center and continued payments on the Jefferson Standard mortga ge, as well as other expenses associated with the building. Nevertheless, Mile H igh did not initiate the instant foreclosure action for over eleven years. Clearly, Mile High knew of the relevant facts concerning any foreclosure action, yet acquie sced for an unreasonable length of time in asserting its perceived rights. No doub t exists that Mile High’s unreasonable delay prejudiced Mr. Cohen, who contin ued to maintain the shopping center for over eleven years and fulfill h is mortgage obligations with Jefferson Standard under the assumption Mile High w as declining to assert its perceived rights. Accordingly, we hold the distric t court properly found the doctrine of laches applied and thereby estopped Mil e High from seeking foreclosure.13 We need not determine whether estoppel by acquies cence is an

alternative defense to, or can be found in conjunct ion with, the defense of laches. Rather, under either defense, it is sufficient for us to hold the district court did not err in finding Mile High estopped from assertin g its foreclosure action against Mr. Cohen.

-34- As to the defense of estoppel by acquiescence, we h ave already determined the defense requires essentially the same elements of knowledge and acquiescence as required for laches. Thus, for primarily the sa me reasons stated above, we hold the equitable defense of estoppel by acquiescence m ay also apply in this case. 13

VI. CONCLUSION The record and clear terms of the documents at issu e support the district court’s determination Mile High defaulted on the Le ase Agreement and thereby forfeited the unpaid balance due under the Promisso ry Note and Mortgage. The record also supports the district court’s finding the parties agreed to add the $50,000, paid by Mile High to Jefferson Standard, t o the Mortgage between Mr. Cohen and Mile High and that Mile High’s subsequentdefault of the Lease Agreement also resulted in forfeiture of its $50,00 0 payment. Finally, based on principles involving equity, the district court did not err in striking Mile High’s jury demand and later applying either the affirmati ve defenses of laches or estoppel by acquiescence in precluding Mile High fr om seeking foreclosure of the-35-

Mortgage. For these reasons, we AFFIRM the district court’s declaratory judgment in favor of Mr. Cohen.