Small Claims County Court District Court

 Probate Court Juvenile Court Water Court 

Jefferson County, State of Colorado

100 Jefferson County Parkway 

Golden, Colorado 80401 

Plaintiff: 

BANK OF CHOICE, A COLORADO CORPORATION, 

 

Defendants: 

CROSSROADS COMMERCIAL CENTER, LTD., LLLP, a 

Colorado limited liability limited partnership, and 

RANDOLPH G. CURRIER, an individual. 

Case Number: 

2010CV5138

Div.: 3 Ctrm: 4F 

ORDER 

This matter comes before the Court on Defendants Crossroads Commercial Center, Ltd., 

LLLP (“Crossroads”) and Randolph G. Currier’s (“Currier”) (collectively “Defendants”) Motion 

to Amend Counterclaims and Add Parties and Plaintiff Bank of Choice’s (“BOC”) Motion for 

Summary Judgment. The Court, having considered the Motions, Responses, Replies, Sur-Reply, 

the case file and the applicable legal authority, enters the following Order. 

I. INTRODUCTION 

BOC alleges Crossroads executed a promissory note, guaranteed by Currier, in the 

principal amount of $3,145,000, which Crossroads then used to purchase commercial real estate. 

BOC asserts Crossroads failed to make the payments as required under the terms of the note and 

that Currier has failed to repay BOC for the debt owed. Defendants allege BOC is attempting to 

collect upon a fraudulent promissory note, and that BOC conspired with others to misrepresent 

and inflate the real estate’s value. Defendants argue they were induced into acquiring the real 

estate at an exaggerated price through BOC’s alleged misrepresentations, and that Defendants’ 

overpayments relieved BOC from realizing any losses in connection with BOC’s arrangement 

with the real estate’s prior owner. Defendants now move this Court for leave to amend their 

counterclaims and add parties. BOC argues Defendants’ proposed counterclaims are 

unsubstantiated and insupportable and are designed to either delay judgment or posture for 

settlement. BOC moves for summary judgment on its First and Second claims for relief and on 

Defendants’ counterclaims. 

II. DEFENDANTS’ MOTION TO AMEND COUNTERCLAIMS AND ADD 

PARTIES 

Granting leave to amend a pleading is within the trial court’s discretion. Polk v. Denver 

Dist. Ct., 849 P.2d 23, 25 (Colo. 1993). Motions for leave to amend are viewed favorably and 

should be freely granted under Rule 15(a). See C.R.C.P. 15(a); Varner v. Dist. Ct., 618 P.2d 

COURT USE ONLY 

EFILED Document 

CO Jefferson County District Court 1st JD 

Filing Date: Apr 13 2011 3:25PM MDT 

Filing ID: 37025621 

Review Clerk: Beth B

Case 1:11-cv-02286-REB-CBS Document 9 Filed 08/31/11 USDC Colorado Page 1 of 4
1388, 1390 (Colo. 1980). However, this liberal policy is not without limits. A court may deny 

leave to amend where the opposing party would be prejudiced, the amendment is futile, or the 

moving party has unduly delayed in moving to amend. Akin v. Four Corners Encampment, 179 

P.3d 139, 146 (Colo. App. 2007). 

Here, Defendants seek to amend two of their original counterclaims (fraudulent and 

negligent misrepresentation) and add seven others, including deceit by concealment, civil 

conspiracy, negligence (not addressed to BOC), breach of contract, consumer protection, 

violation of Colorado’s Organized Crime Control Act, and violation of the Racketeer Influenced 

Corrupt Organizations Act. BOC argues Defendants’ proposed amendments and additions are 

unsubstantiated and insupportable, are being asserted to cause delay, and would otherwise be 

subject to immediate dismissal if asserted. BOC cites Niccoli v. Ayala for the proposition that 

“[w]here a proposed defense is so legally insufficient as to be immediately susceptible to a 

motion to strike or a motion to dismiss, leave to amend may properly be denied on that basis.” 

501 P.2d 138, 140 (Colo. App. 1972) (emphasis added). BOC asserts this standard is equally 

applicable when a court considers whether to allow a party leave to amend its counterclaims. 

This Court agrees. However, as Niccoli makes clear, denial of leave to amend is not mandatory 

under such circumstances. Further, this Court declines to determine at this time whether 

Defendants’ proposed amendments and additions are so legally insufficient as to warrant 

immediate dismissal. The Court finds that there is no suggestion of prejudice, futility, or undue 

delay. Accordingly, under the liberal framework of Rule 15, the Court finds that allowing 

Defendants’ leave to amend and add parties is appropriate and will therefore grant Defendants’ 

motion. 

III. BOC’S MOTION FOR SUMMARY JUDGMENT 

Summary judgment is a drastic remedy that is warranted only on a clear showing that 

there is no genuine issue as to any material fact and the moving party is entitled to judgment as a 

matter of law. USA Leasing, Inc. v. Montelongo, 25 P.3d 1277, 1279 (Colo. App. 2001); see 

also C.R.C.P. 56(c). The burden of establishing the lack of a genuine issue of material fact is on 

the moving party, and all doubts as to the existence of a genuine issue of material fact must be 

resolved against that party. USA Leasing, Inc., 25 P.3d at 1279. If the moving party makes a 

convincing showing that there are no genuine issues of material fact, then the opposing party 

must set forth specific facts demonstrating that there is a genuine issue for trial. Id. at 1278. 

BOC argues there are no genuine issues of material fact relating to its First and Second 

claims for relief, and that it is therefore entitled to summary judgment on both claims. Further, 

BOC argues it is likewise entitled to summary judgment on Defendants’ counterclaims. In their 

Response, Defendants voluntarily withdrew their Third, Fourth, Fifth, and Sixth original 

counterclaims. Accordingly, only Defendants’ First and Second original counterclaims are 

subject to BOC’s motion. However, this Court has allowed Defendants leave to amend those 

two original counterclaims, and BOC addresses them, as modified, in its Reply. As such, this 

Court may properly consider whether granting summary judgment in favor of BOC is 

appropriate with respect to Defendants’ two remaining original counterclaims, as amended. 

Case 1:11-cv-02286-REB-CBS Document 9 Filed 08/31/11 USDC Colorado Page 2 of 4
A. BOC’s First and Second Claims for Relief 

BOC argues it is entitled to summary judgment on its First and Second claims for relief 

regarding breach of contract because there is no dispute that the first three elements of those 

claims have been unequivocally established. Defendants essentially concede this in their 

Response. However, BOC argues Defendants seek to dispute the damages element of those 

claims by asserting various affirmative defenses and attempting to assert several counterclaims 

which, if established, would reduce or eliminate BOC’s damages. If the elements of a breach of 

contract claim are proven by a preponderance of the evidence, an affirmative defense may 

nonetheless invalidate the agreement at issue. See CJI–Civ. 4th 30:1 (2010). Also, damages 

under a breach of contract claim may be reduced by a counterclaim, if one is established. Here, 

the Court has allowed Defendants leave to amend their counterclaims. Further, the Court finds 

disputed issues of material fact exist relating to, among other things, the terms of the 

Commitment Letter and the nature of BOC’s representations. (See, e.g., Resp. Ex. I; Sur-Reply 

Ex. C & D). As such, the Court declines to grant summary judgment in favor of BOC on their 

First and Second claims for relief. 

B. Defendants’ Remaining Original Counterclaims, as Amended 

BOC argues Defendants’ First and Second remaining, yet amended, original 

counterclaims (now titled Deceit by Misrepresentation and Negligent Misrepresentation) are 

barred by C.R.S. § 38-10-124, Colorado’s Credit Agreement Statute of Frauds. Further, BOC 

argues Defendants’ Negligent Misrepresentation counterclaim is barred by the two year statute of 

limitations set forth in § 13-80-102(1)(a) because Defendant Currier should have discovered any 

alleged negligent misrepresentations of BOC and others prior to the date the note and guaranty 

were executed. Defendants contend the Commitment Letter meets the writing requirements of 

§ 38-10-124. Further, Defendants assert that the question of Defendants’ knowledge of the 

alleged misrepresentations and resulting duty to investigate is a disputed question of fact. As 

discussed above, the Court finds disputed issues of material fact exist as to the terms of the 

Commitment Letter and the nature of BOC’s representations. Further, the Court finds disputed 

issues of material fact exist regarding whether Defendants should have discovered any alleged 

misrepresentations prior to the date of execution. See Murry v. GuideOne Specialty Mut. Ins. 

Co., 194 P.3d 489, 491 (Colo. App. 2008) (stating that unless the undisputed facts clearly show 

when a party should have discovered the damage or conduct, the point of accrual is usually a 

question of fact). As such, the Court declines to grant summary judgment as to Defendants’ First 

and Second remaining counterclaims, as amended. 

IV. CONCLUSION 

IT IS THEREFORE ORDERED that Defendants’ Motion to Amend Counterclaims and 

Add Parties is hereby GRANTED, and BOC’s Motion for Summary Judgment is hereby 

DENIED. Further, the Court deems Defendants’ Amended Counterclaims filed as of the date of 

this Order. 

SO ORDERED. 

Case 1:11-cv-02286-REB-CBS Document 9 Filed 08/31/11 USDC Colorado Page 3 of 4
 Dated this 13th day of April, 2011. 

BY THE COURT: 

 

________________________ 

 Jane A. Tidball 

 District Court Judge 

Case 1:11-cv-02286-REB-CBS Document 9 Filed 08/31/11 USDC Colorado Page 4 of 4