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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-CV-02285-NYW

CENTER FOR LEGAL ADVOCACY, d/b/a

DISABILITY LAW COLORADO, 

Plaintiff,

v.

REGGIE BICHA,

In his official capacity as Executive Director

Of the Colorado Department of Human Services, and

JILL MARSHALL, 

In her official capacity as Superintendent

Of the Colorado Mental Health Institute at Pueblo

Defendants.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

INTRODUCTION 

This matter is before the Court because of a dispute between the 

Plaintiff, Disability Law Colorado, and the Defendants, Reggie Bicha and Jill 

Marshall, concerning whether there has been a breach of a settlement 

agreement between the parties. The purpose of the contract is to address 

certain constitutional rights of individuals living with a mental health 

disorder who are charged, but not convicted, with committing criminal 

offenses in Colorado. While the subject of the contract is important, the 

dispute presently before this Court is a contract dispute.

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Disability Law Colorado attempts to cloud the legal issue before this 

Court by introducing extraneous facts detailing compelling circumstances 

some individuals face while incarcerated before trial. Disability Law Colorado 

cannot show that Defendants Bicha and Marshall are responsible for such 

circumstances. Further, what Disability Law Colorado fails to acknowledge is 

that the contract has met, and continues to meet, its essential purpose:

defendants in Colorado are ensured a greater level of constitutional 

protection than would otherwise be afforded by state or federal law in this 

jurisdiction. 

Now, Disability Law Colorado disputes a provision in the parties’ 

contract that it bargained for. Disability Law Colorado asks this Court to 

impose remedies not contemplated by the parties’ contract, because of its

failure to accept the risk associated with the provision it now disputes. The 

law does not support this result. As a consequence, summary judgement 

should be awarded in favor of Defendants Bicha and Marshall.

BACKGROUND

When an individual living with a mental health disorder comes into 

contact with the criminal justice system, his or her experience of that system 

is impacted by community mental health centers, behavioral health 

organizations, law enforcement officers, county jails, jail clinicians, public 

defenders and defense counsel, prosecutors, judges, and state mental health 

institutes. The action, or inaction, of these actors directly impacts whether an 

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individual living with a mental health disorder will become engaged with the 

criminal justice system, what will happen to that individual during that time, 

and when, if at all, he or she will be able to exit that system. 

Situated squarely in the middle of the criminal justice system is the 

Colorado Department of Human Services (the Department).1 The 

Department’s role is specific and it is allowed very little discretion. The 

Colorado General Assembly’s directive is clear: the Department is to provide 

a competency evaluation for any defendant when the issue of competency to 

stand trial is raised, and the Department is to provide restoration to 

competency services for any defendant found by the court to be incompetent 

to proceed. §§ 16-8.5-101, et seq., 27-60-105, C.R.S. (2017).

Because of its statutorily-defined and non-discretionary role, the 

Department cannot control whether a defendant is ordered to receive its 

services in the first place, and whether those services must take place at a 

state mental health institute or in the community. Instead, a judge makes 

that decision which is almost always influenced by the arguments of a 

prosecutor or defense counsel and the availability, or lack thereof, of 

supportive services from community mental health centers. The Department 

has no control over this part of the system, yet it is expected to perform its 

 1 The Colorado Department of Human Services is led by Defendant Reggie 

Bicha and the Colorado Mental Health Institute at Pueblo is led by 

Defendant Jill Marshall, both named as Defendants in their official 

capacities. Accordingly, both Defendants are collectively referred to hereafter 

as the Department.

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statutory duties and absorb the impact on its resources when these decisions 

are made.

At times, the volume of court orders requiring the Department to 

provide competency evaluation and restoration to competency services 

(restoration services) has resulted in a list of individuals waiting to receive 

those evaluations and services. Because of this, in 2011, Disability Law 

Colorado filed the complaint in this matter, challenging the length of the time 

individuals were waiting to receive competency evaluations and restoration 

services. 

Shortly thereafter, the Department entered into settlement 

negotiations with Disability Law Colorado to resolve the issues raised in the 

complaint. After several rounds of in-person settlement negotiations 

mediated by former Magistrate Judge Boyd N. Boland, and months of postmediation negotiations, the parties reached a resolution. Dkts. 51-1, 82, ¶ 16. 

The resulting Settlement Agreement (the 2012 Agreement) put into place 

certain timeframes for the Department to: 1) complete outpatient (in-jail) 

competency evaluations; 2) offer admission for inpatient competency 

evaluations; and 3) offer admission for inpatient restoration services. Dkt. 51-

1 ¶ 2(a)-(b), and Appendix 1. By agreeing to these timeframes, the parties put 

into place requirements that are otherwise absent in state or federal law in 

this jurisdiction. 

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In addition to imposing an affirmative obligation on the Department to 

meet these timeframe requirements, the 2012 Agreement also recognized the 

fact that “the ability to perform its statutory obligations and obligations 

under [that agreement] is based on factors beyond the Department’s control.”

Dkt. 51-1 ¶ 6. As a result, the parties agreed to a provision in the 2012 

Agreement which, when invoked by the Department and in certain 

circumstances, would temporarily suspend its obligations under that 

agreement. Id. That provision of the 2012 Agreement was titled—and is 

commonly referred to by the parties as—“Departmental Special 

Circumstances” (DSC). Id., ¶ 6(a)(ii). But, invoking DSC did not come without 

a price to the Department. That is, every time the Department invoked DSC, 

the 2012 Agreement would be extended equal to the length of time DSC was 

invoked. Id., ¶ 4(c). 

Upon signing the 2012 Agreement, the parties jointly agreed to 

dismissal of the underlying complaint. Through its hard work, the 

Department maintained several years of compliance with the timeframe 

requirements. In fact, since July 2015, the Department has successfully 

complied with the timeframe requirements related to outpatient competency 

evaluations. See Exhibit A - Report C: Outpatient Jail Evaluations: 7/1/2015-

7/31/2015 through 7/1/2018-7/31/2018, “Days Waiting” column (showing 

compliance because there are no defendants waiting more than 30 days).

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However, in August 2015, due to circumstances beyond its control, the 

Department could no longer meet all of the timeframe requirements of the 

2012 Agreement, and chose to invoke DSC. Dkt. 57, § I(a). A dispute between 

the parties ensued, concerning, in relevant part, the Department’s invocation 

of DSC. As a result, in October 2015, Disability Law Colorado moved to 

reopen the matter for enforcement of the 2012 Agreement, and between 

December 2015 and February 2016, conducted limited discovery on the issue 

of DSC. Dkts. 53, 63, 65. 

Shortly thereafter, in 2016, the parties engaged in settlement 

negotiations, including two days of mediation, lengthy subsequent 

negotiations, and the exchange of multiple drafts of what ultimately became 

the current Amended and Restated Settlement Agreement (the Agreement). 

Dkts. 65, 67, 69, 71, 78, and 82, ¶ 27. The Agreement is the product of over 

three months and hundreds of hours of work by both parties and their 

counsel. Id. Upon signing the Agreement, the parties jointly agreed to 

dismissal of Disability Law Colorado’s motion to reopen the matter for 

enforcement. Dkt. 78.

Changes to the Agreement demonstrate that Disability Law Colorado 

paid special attention to the provisions in dispute and in the end, the current 

Agreement contains many of the same provisions as the 2012 Agreement.

Important here, the only substantive difference in the definition of DSC 

between the two settlement agreements was substitution of “substantial and 

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material decrease in the Hospital’s budget or another sentinel event” with “a 

national or statewide disaster.” Compare, Dkt. 51-1, ¶ 6(a)(ii), with Dkt. 78-1, 

¶ 6(a)(ii). Additionally, the only substantive difference in the length of DSC 

was the addition of language allowing the Department to terminate DSC in 

less than six months. Compare, Dkt. 51-1, ¶ 6(c), with Dkt. 78-1, ¶ 6(c). 

Notably, the consequence for the Department invoking DSC—extending the 

duration of the Agreement—was not altered as a result of the parties’ 

negotiations in 2016. Compare, Dkt. 51-1, ¶ 4(c), with Dkt. 78-1, ¶ 4(c).

However, the parties did materially alter provisions concerning the duration 

of the Agreement in the event of non-compliance with the timeframes where 

DSC was not invoked. Compare, Dkt. 51-1, ¶ 4(b) (providing for a year 

reduction in duration for every year of compliance), with Dkt. 78-1, ¶ 4(b) 

(providing for a reduction of three months for every month of compliance and

an increase of three months for every month of non-compliance not resulting 

from DSC).

In June 2017, due to circumstances beyond its control, the Department 

could no longer meet the timeframe requirements of the Agreement and 

chose to invoke DSC. Dkt. 82-1, Exhibit A, pp. 9-12. While it worked to 

address the circumstances that led to DSC through myriad of approaches, 

circumstances beyond the Department’s control also led to the Department 

choosing to invoke DSC in December 2017. Id., Exhibit B, pp. 16-22.

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Because of its efforts, the Department has successfully complied with 

the timeframe requirements related to inpatient competency evaluations

since June 2018. See Exhibit B - Report B: Inpatient Evaluations: 6/1/2018-

6/30/2018 through 7/1/2018-7/31/2018, “Days Waiting” column (showing 

compliance because there are no defendants waiting more than 28 days). DSC 

remains available to it, given that circumstances beyond its control continue 

to impact the Department’s ability to meet timeframe requirements 

concerning inpatient restoration services. However, in June 2018 the 

Department chose not to invoke DSC. Instead, it continues to work creatively 

and expeditiously to tackle the challenge of achieving and maintaining 

compliance with the inpatient restoration services timeframes. Ultimately, 

each of the Department’s actions—invoking DSC in June 2017, invoking DSC 

in December 2017, and choosing not to invoke DSC in June 2018—were

contemplated by the Agreement, and therefore, do not amount to breach. 

STATEMENT OF UNDISPUTED FACTS

The following facts are undisputed:

1. The Department is required to provide competency evaluations 

for any defendant when the issue of competency to stand trial is raised. § 16-

8.5-101, et seq., C.R.S. (2017).

2. The Department is required to provide restoration services for 

any defendant found by the court to be incompetent to proceed. §§ 16-8.5-101, 

et seq., 27-60-105, C.R.S. (2017).

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3. In 2012, the parties entered into settlement negotiations to 

resolve issues related to the length of the time individuals were waiting to 

receive competency evaluations and restoration services. Dkts. 51-1, 82, ¶ 16.

4. After settlement negotiations mediated by former Magistrate 

Judge Boyd N. Boland, and post-mediation negotiations, the parties reached 

the 2012 Agreement resolving the case. Dkts. 51-1, 82, ¶ 16.

5. The 2012 Agreement put into place timeframes for the 

Department to: 1) complete outpatient (in-jail) competency evaluations; 2) 

offer admission for inpatient competency evaluations; and 3) offer admission 

for inpatient restoration services. Dkt. 51-1 ¶ 2(a)-(b), Appendix 1.

6. The 2012 Agreement included a provision called Special 

Circumstances, which “recognizes that to some extent the Department’s 

ability to perform its statutory obligations and its obligations under [the 2012 

Agreement] is based on factors beyond the Department’s control.” Dkt. 51-1 

¶ 6.

7. The 2012 Agreement defines DSC as:

circumstances beyond the control of the Department which 

impact the [Department’s] ability to comply with the timeframes 

set forth in Paragraph 2. This could mean an unanticipated 

spike in referrals, a substantial and material decrease in the 

Hospital’s budget, or another sentinel event impacting clinical 

decisions system wide. These examples are provided for 

illustration only. [DSC] is a flexible concept, due to the unique 

and often unforeseen nature of these events.

Dkt. 51-1 ¶ 6(a)(ii).

8. The 2012 Agreement states that:

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if [DSC] is invoked and then agreed upon by the parties, the 

timeframe requirements of Paragraph 2 shall be suspended as to 

all Pretrial Detainees affected by the invoked [DSC] for a period 

of six months from the date of the Department’s invocation.

Dkt. 51-1, ¶ 6(c).

9. The 2012 Agreement states that:

if the timeframe requirements of Paragraph 2 of [the 2012 

Agreement] are temporarily suspended pursuant to the 

provisions of Paragraph 6(c), the duration of [the 2012 

Agreement] shall be extended for a period equal to the length of 

time of the suspension of the timeframe requirements...[and] 

then the Department will receive only a reduction in the 

duration for the number of months it was in compliance for the 

year. 

Dkt. 51-1, ¶ 4(c).

10. The 2012 Agreement states that “upon the first anniversary of 

the full execution of [the 2012 Agreement] and if the Department has fully 

complied with the terms of [the 2012 Agreement],” the duration of the 2012 

Agreement would be reduced by one year. Dkt. 51-1, ¶ 4(b).

11. Both parties certified that they fully and carefully reviewed the 

2012 Agreement and consulted with their respective attorneys regarding the 

legal effect and meaning of the 2012 Agreement and all terms and conditions 

thereof. Dkt. 51-1, ¶ 13(b).

12. In August 2015, the Department invoked DSC. Dkt. 57, ¶ I(a).

13. In October 2015, Disability Law Colorado moved to reopen the 

matter for enforcement of the 2012 Agreement, in part, because it disputed 

DSC. Dkts. 53, 63. 

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14. After two days of mediation, engaging in subsequent settlement 

negotiations, and exchanging multiple drafts, the parties entered into the 

Agreement resolving the case. Dkts. 65, 67, 69, 71, and 78.

15. The Agreement is the product of over three months and 

hundreds of hours of work by both parties. Dkts. 65, 67, 69, 71, and 78.

16. The Agreement includes a provision called Special 

Circumstances, which recognizes that “to some extent the Department’s 

ability to perform its statutory obligations and its obligations under [the 

Agreement] are based on factors beyond its control.” Dkt. 78-1 ¶ 6.

17. The Agreement defines DSC as:

circumstances beyond the control of the Department which 

impact the Department’s ability to comply with the timeframes 

set forth in Paragraph 2. This could mean an unanticipated 

spike in referrals, a national or statewide disaster impacting 

admissions decisions system wide. These examples are provided 

for illustration only. [DSC] is a flexible concept, due to the 

unique and often unforeseen nature of these events.

Dkt. 78-1 ¶ 6(a)(ii).

18. The Agreement states that:

upon the invocation of [DSC], the timeframe requirements of 

Paragraph 2 shall be automatically suspended for six months, 

unless the Department notifies [Disability Law Colorado] that a 

shorter period of time is sufficient to resolve [DSC], commencing 

with the month in which the Notice of [DSC] is transmitted to 

[Disability Law Colorado].

Dkt. 78-1, ¶ 6(c).

19. The Agreement states that:

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if the timeframe requirements of Paragraph 2 of [the 

Agreement] are temporarily suspended pursuant to the 

provisions of Paragraph 6(c), the duration of [the Agreement]

shall be extended for a period equal to the length of time of the 

suspension of the timeframe requirements. 

Dkt. 78-1, ¶ 4(c). This language reflects a modification from the 2012 

Agreement. Id.

20. The Agreement states that:

the term of the Agreement shall be reduced by three months for 

each of the number of months of certified timeliness compliance 

for the prior calendar year...[and] the term of the Agreement 

shall be increased by three months for each month during the 

prior calendar year that the Department was not in full 

compliance with the timeliness requirements of [the 

Agreement].

Dkt. 78-1, ¶ 4(b).

21. Both parties certified that they fully and carefully reviewed the 

Agreement and consulted with their respective attorneys regarding the legal 

effect and meaning of the Agreement and all terms and conditions thereof. 

Dkt. 78-1, ¶ 15.

22. In June 2017, the Department invoked DSC. Dkt. 82-1, Exhibit 

A, pp. 9-12.

23. In December 2017, the Department invoked DSC. Dkt. 82-1, 

Exhibit B, pp. 16-22. 

24. The Department’s invocation of DSC in both June 2017 and 

December 2018 complied with the Agreement’s notice requirements. Dkts 78-

1, ¶ 6(c), 82-1, Exhibit A, pp. 9-12, Exhibit B, pp. 16-22.

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25. In June 2018, the Department did not invoke DSC. Dkt. 88, 

¶ I(A)(iii).

SUMMARY JUDGMENT STANDARD

Summary judgment is proper when there is no genuine dispute of any 

material fact and a movant is entitled to judgment as a matter of law. Fed. R. 

Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A judge’s 

function at summary judgment is not to weigh the evidence, but to determine 

whether there is a genuine dispute for trial. Tolan v. Cotton, 134 S. Ct. 1861, 

1866 (2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986)). A dispute is genuine when the trier of fact could reasonably enter 

judgment for either party. Anderson, 477 U.S. at 248. A fact is material if it 

might reasonably affect the outcome of the case. Id. The moving party has the 

initial burden to show “that there is an absence of evidence to support the 

nonmoving party’s case.” Celotex, 477 U.S. at 325. When considering a motion 

for summary judgment, a court views the evidence in the light most favorable 

to the non-moving party. Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 

(10th Cir. 2002).

ARGUMENT

The parties agree that the issues before the Court are: 1) whether the 

Agreement grants the Department the right to invoke DSC consecutively, 

without limitation; 2) whether the Department breached, or was in nonCase No. 1:11-cv-02285-NYW Document 97 filed 08/15/18 USDC Colorado pg 13 of 26
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compliance, with the Agreement timeframes when it invoked DSC in 

December 2017, claiming it can consecutively invoke DSC; 3) whether the 

Department breached, or was in non-compliance, with the Agreement when it 

did not invoke DSC on June 21, 2018; and 4) if the Department was in breach 

of, or non-compliance with, the Agreement, what remedies this Court should 

impose. Dkt. 88. The Department turns to each issue in turn.

I. The Agreement grants the Department the right to invoke 

Departmental Special Circumstances more than one time and 

consecutively.

The language of the Agreement and law governing contract

construction confirms that the Department may invoke DSC consecutively 

and there is no limit on the number of times it may do so. 

A settlement agreement is a contract, and thus questions of its 

construction and scope are governed by principles of contract law. United 

States v. McCall, 235 F.3d 1211, 1215 (10th Cir. 2000); Anthony v. United 

States, 987 F.2d 670, 673 (10th Cir. 1993). “Where sophisticated parties enter 

into an agreement setting forth their rights and obligations, the terms of the 

agreement should control unless the agreement would otherwise be void 

under state law.” Colorado Interstate Corp. v. CIT Grp./Equip. Fin., Inc., 993 

F.2d 743, 749 (10th Cir. 1993). A fundamental tenet of contract interpretation 

is that provisions cannot be read in isolation. Sanpete Water Conservancy 

Dist. v. Carbon Water Conservancy Dist., 226 F.3d 1170, 1179 (10th Cir. 

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2000). Each contract provision is to be considered in relation to all of the 

others, with a view toward giving effect to all and ignoring none. Id. 

Moreover, the court will first take the instrument by its four corners, 

in order to ascertain its true meaning. Ewing’s Lessee v. Burnet, 36 U.S. 41, 

54 (1837); Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 

1211 (10th Cir. 2007) (it is only where the terms of an agreement are 

ambiguous that the court may look beyond the four corners of the 

agreement)(internal quotations omitted). Notably, a disagreement between 

the parties concerning the meaning of contract terms does not render such 

provisions ambiguous. Level 3 Commc’ns, LLC v. Liebert Corp., 535 F.3d 

1146, 1155 (10th Cir. 2008). Parties are presumed to have bargained for any 

risks that are central to the substance of the contract. United States v. 

Winstar Corp., 518 U.S. 839, 905 (1996). If the risk was foreseeable, there 

should have been provision for it in the contract, and the absence of such a 

provision gives rise to the inference that the risk was assumed. Id. 

Under the Agreement, DSC means “circumstances beyond the control 

of the Department which impact the Department’s ability to comply with the 

timeframes set forth in paragraph 2.” Dkt 78-1, ¶ 6(a)(ii). DSC is a “flexible 

concept, due to the unique and often unforeseen nature of these events.” Id.

The definition of DSC also includes a non-exclusive list of examples, 

including situations where there is an unanticipated spike in referrals, or a 

national or statewide disaster impacting admissions decisions system-wide. 

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Id. DSC is based on the parties’ recognition that “to some extent the 

Department’s ability to perform its statutory obligations and its obligations 

under this Agreement is based on factors beyond its control.” Id., ¶ 6.

The parties bargained for the availability of DSC, but did not bargain 

for the limitations on DSC that Disability Law Colorado now suggests. As a 

result, the Court should enforce the Agreement as written. Colorado 

Interstate Corp., Inc., 993 F.2d at 749. Disability Law Colorado, a 

sophisticated party, assumed the risks associated with its failure to bargain 

for restrictions on DSC that it now seeks. Winstar Corp., 518 U.S. at 905. The 

risk that the Department may need to invoke DSC more than once or 

consecutively was foreseeable, so the absence of limiting language confirms 

that Disability Law Colorado assumed that risk. Id. Disability Law Colorado 

had ample opportunity to seek to eliminate DSC altogether, or to demand 

revisions consistent with the language it now suggests the Court read into 

the Agreement. Disability Law Colorado did neither and, therefore, assumed 

the associated risks. Id. 

Viewing the contract as a whole supports applying DSC as written 

without new restrictions. Ewing’s Lessee, 36 U.S. at 54. For example, because 

the parties agreed that an undefined range of circumstances beyond the 

Department’s control might influence its ability to comply with the 

timeframes, it makes sense that the parties did not bargain for the arbitrary 

restrictions on DSC that Disability Law Colorado now suggests.

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Because the four corners of the Agreement do not limit the number of 

times or the timing of invoking DSC, the Department reasonably expected 

that it could invoke DSC as written, and did so. Id. And, the terms of the 

Agreement are not ambiguous—they simply do not include the restrictions 

that Disability Law Colorado suggests. As a result, the Court should look 

only to the four corners of the Agreement, and apply it as written. BrammerHoelter, 492 F.3d at 1211. 

If Disability Law Colorado did not intend to agree that the Department 

may invoke DSC more than once, the onus was on Disability Law Colorado to 

express its intent. Instead, Disability Law Colorado bargained for the current 

Agreement, which does not prohibit consecutive invocation of DSC or limit 

the number of times DSC may be invoked. Based on the parties’ negotiations 

and the twice-agreed upon language of the Agreement, the Department has a 

justified expectation that it may invoke DSC consecutively and that its ability 

to do so is not limited.

II. The Department’s December 2017 invocation of Departmental 

Special Circumstances is contemplated by the Agreement, and 

does not constitute breach of the Agreement.

The Department’s second invocation of DSC is not a breach of contract 

because the parties bargained for, agreed to, and included a provision in the 

Agreement allowing DSC but not limiting it. 

A breach of contract is always a non-performance of a contractual duty, 

but not every non-performance of duty is a breach of contract. Corbin, Corbin 

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on Contracts § 943 (1952); See also RESTATEMENT (FIRST) of CONTRACTS § 312 

(AM. LAW INST. 1932). When a contract calls for the performance of services, 

“Colorado presumptively applies the law of the state where the majority of 

the services are to be performed.” Calabrese Found., Inc. v. Inv. Advisors, 

Inc., 831 F. Supp. 1507, 1512 (D. Colo. 1993) (quoting Sequa Corp. v. Lititech, 

Inc., 780 F. Supp. 1349, 1351 (D. Colo. 1992)). Under Colorado law, a party 

alleging breach of contract has the burden of proving: “(1) the existence of a 

contract; (2) performance by the plaintiff or some justification for 

nonperformance; (3) failure to perform the contract by the defendant; and (4) 

resulting damages to the plaintiff.” Spring Creek Expl. & Prod. Co., LLC v. 

Hess Bakken Inv., II, LLC, 887 F.3d 1003, 1033 (10th Cir. 2018), as revised

(Apr. 13, 2018) (citing W. Distrib. Co v. Diodosio, 841 P.2d 1053, 1058 (Colo. 

1992)); see also, e.g. Stoole v. Metro. Prop. & Cas. Ins. Co., 17-CV-0613-NYW, 

2018 WL 3126112, at *3 (D. Colo. June 26, 2018).

Disability Law Colorado cannot meet its burden under Spring Creek, 

887 F.3d at 1033. It is undisputed that the Agreement is a binding contract 

between the parties. However, Disability Law Colorado has not demonstrated 

that it performed its duties under the Agreement, particularly as it relates to 

the application of remedies if the Department is unable to meet the 

Agreement’s timeframes or to provide justification for its non-performance. 

Id., see also supra pp. 21-24. The contract’s express remedies provide that 

when DSC is invoked, or if the Department has otherwise been unable to 

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meet the timeframes in the agreement, the duration of the Agreement will be 

extended. Dkt. 78-1, ¶ 4, see also supra pp. 23-26. Now, Disability Law 

Colorado refuses to comply with those contract terms. Dkt. 82, pp. 19-20.

Second, Disability Law Colorado cannot meet its burden under Spring 

Creek to show that the Department failed to perform under the terms of the 

Agreement by invoking DSC in December 2017. The Agreement specifically 

grants the Department the right to invoke DSC and does not include a 

limitation on how often it may do so. Supra pp. 14-18. It is undisputed that 

the Department followed the Agreement’s enumerated steps to invoke DSC,2

that is, the Department: 1) gave written notice of its DSC invocation; 2) 

provided a detailed explanation of the basis for invoking DSC; 3) provided a 

plan to remedy the DSC; and 4) provided a projected timeframe for resolution 

of DSC. Dkt. 78-1, ¶ 6(c). Because the Department’s non-performance of the 

timeframes upon invocation of DSC was contemplated by the Agreement, 

such non-performance does not constitute a failure to perform its obligations. 

Even assuming arguendo, that the contract could be construed to 

include a restriction on consecutive or multiple DSC invocations, the 

Agreement provides the remedy for failing to meet its timeframes, and does 

not define failure to meet the timeframes (either through DSC or otherwise) 

as a breach of the Agreement. This demonstrates that the parties assumed 

 2 Though Disability Law Colorado disputes whether the Department could 

invoke DSC for a second time at all, it has not disputed that the Department 

followed the steps outlined in the Agreement to invoke DSC

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the risk of the Department’s non-performance related to the Agreement’s 

timeframes, created a provision to address that risk (i.e., extension of the 

agreement), and, intentionally did not define realization of that risk as a 

breach. Winstar Corp., 518 U.S. at 905. 

Because Disability Law Colorado cannot meet its burden to prove that 

the Department failed to comply with the Agreement, and because remedies 

for non-performance are already contemplated by the Agreement, Disability 

Law Colorado cannot show damages. As a result, Disability Law Colorado 

cannot meet its burden under Spring Creek and the Court should reject its 

breach of contract claim. Spring Creek, 887 F.3d at 1033.

III. The Department’s decision not to invoke Departmental Special 

Circumstances on June 21, 2018 is contemplated by the 

Agreement, and does not constitute breach of the Agreement.

Where the Agreement allows for the Department’s non-performance of 

the timeframes, the Department has not breached the contract but rather has 

utilized a provision that the parties agreed to. In order to prevail on this 

issue, Disability Law Colorado has the burden to meet the four Spring Creek 

elements of a breach of contract claim—the existence of a contract; Disability 

Law Colorado’s performance or some justification for nonperformance; the 

Department’s failure to perform; and the damages to Disability Law 

Colorado. Spring Creek Expl. & Prod. Co., LLC, 887 F.3d at 1033.

It remains undisputed that a binding contract exists, and for the same 

reasons discussed above, Disability Law Colorado has failed to perform its 

Case No. 1:11-cv-02285-NYW Document 97 filed 08/15/18 USDC Colorado pg 20 of 26
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obligations under the Agreement without justification. Supra p. 18. Likewise, 

for the same reasons discussed above, the Department’s inability to meet the 

Agreement’s timeframes in June 2018 does not amount to a breach. Supra

pp. 18-19. Because the Department’s non-performance in June 2018 was 

contemplated by the Agreement, it does not constitute a failure to perform its 

obligations. Indeed, the Agreement provides the remedy for failing to meet its 

timeframes, and does not define failure to meet the timeframes (either 

through DSC or otherwise) as a breach of the Agreement. Specifically, the 

Agreement provides that when the Department has not invoked DSC, and 

has not met the timeframe requirements, the duration of the Agreement will 

be increased by three months for each month that the Department was not in 

full compliance. Dkt 78-1, ¶ 4(b).

Disability Law Colorado was not compelled or coerced into making the 

contract, including the terms addressing non-performance absent DSC, but 

knowingly and voluntarily agreed to terms of the Agreement. Dkt. 78-1, ¶ 15. 

As argued in detail below, DLC is a competent party who contracted for one 

remedy to apply when the Department invokes DSC and another remedy to 

apply when the Department is not in full compliance with the timeframes of 

the Agreement but has not invoked DSC. 

The Court’s inquiry into whether the Department breached the 

Agreement when it chose not to invoke DSC in June 2018 should begin and 

end by applying the plain language of the Agreement, which contemplated 

Case No. 1:11-cv-02285-NYW Document 97 filed 08/15/18 USDC Colorado pg 21 of 26
22

this situation. Disability Law Colorado cannot meet the Spring Creek 

elements to prove breach, so their breach claim should be rejected.

IV. This Court should only impose the remedies agreed upon by the 

parties and set forth in the Agreement.

Disability Law Colorado asks the Court both to ignore remedies it 

agreed to, and to create new ones not included in the Agreement. The law 

does not support this result. Colorado Interstate Corp., 993 F.2d at 749. 

The law is well-established that a court must enforce the contract 

which the parties themselves have made. May v. Le Claire, 78 U.S. 217, 227 

(1870) (Contracts entered into in a spirit of peace and for the settlement of 

unadjusted demands on both sides, will not, where executed by persons of 

intelligence, and under circumstances which indicate caution and a 

knowledge of what is done, be readily questioned in equity as in fact not fair; 

but, on the contrary, will be protected and enforced); Lab. Corp. of Am. 

Holdings v. Metabolite Labs., Inc., 571 F. Supp. 2d 1199, 1212 (D. Colo. 2008), 

aff'd, 410 F. App’x 151 (10th Cir. 2011); Citywide Bank of Denver v. Herman, 

978 F. Supp. 966, 977 (D. Colo. 1997) (citing R.T.C. v. Avon Center Holdings, 

Inc., 832 P.2d 1073, 1075 (Colo. App. 1992) (“A settlement agreement is a 

contract between two parties. The law favors compromise and settlement and 

such a resolution will typically be sustained by the court.”)). This is 

particularly true where the parties are sophisticated and informed by advice 

of counsel. Colorado Interstate Corp., 993 F.2d at 749.

Case No. 1:11-cv-02285-NYW Document 97 filed 08/15/18 USDC Colorado pg 22 of 26
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Here, the parties, represented by counsel, entered into the Agreement 

after participating in two days of mediation, engaging in lengthy settlement 

negotiations, and exchanging multiple drafts of what ultimately became the 

Agreement. Dkts. 65, 67, 69, 71, and 78. The Agreement is the product of over 

three months and hundreds of hours of work by both parties. Id. Both parties 

certified that they fully and carefully reviewed the Agreement and consulted 

with their respective attorneys regarding the legal effect and meaning of the 

Agreement and all terms and conditions thereof. Dkt. 78-1, ¶ 15. 

This certification applies to all provisions of the Agreement, including 

section 4, titled “Duration of Agreement,” which includes the remedies 

requiring the Agreement to be extended for DSC invocation and the 

Department’s inability to meet the Agreement’s timeframes. Dkt. 78-1, ¶ 4(b), 

(c). The parties’ knowing and intentional agreement concerning the remedies 

is further supported by comparing the present Agreement with the 2012 

Agreement. Compare Dkt. 78-1, ¶ 4(b), (c) (providing for both increase and 

reduction in the length of the agreement) with Dkt. 51-1, ¶ 4(b) (providing 

only for reduction in the length of the agreement). Indeed, although the 

parties modified those portions of the Agreement, they did not modify them to 

include provisions Disability Law Colorado now seeks. 

Enforcing the terms of the Agreement penalizes the Department for its 

non-performance of the timeframe requirements through an increase in the 

length of time it is subject to the Agreement. Id., 78-1 ¶ 4(b), (c). It also serves 

Case No. 1:11-cv-02285-NYW Document 97 filed 08/15/18 USDC Colorado pg 23 of 26
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as a deterrent for future non-performance of the timeframes.3 This provides 

Disability Law Colorado with a remedy for the Department’s nonperformance of the agreed-upon timeframes.

Because the contract was entered into knowingly under circumstances 

indicating caution of what is to be done, and by sophisticated, represented 

parties, the Court should not question the fairness of the Agreement and 

should instead, protect and enforce the Agreement as written. May, 78 U.S. 

at 227; Lab. Corp. of Am. Holdings, 571 F. Supp. 2d at 1212; Colorado 

Interstate Corp., 993 F.2d at 749. The Court should apply the remedies 

bargained for in the Agreement, which it retained jurisdiction to enforce.4

Dkt. 78.

CONCLUSION

The Department is entitled to summary judgment as a matter of law because 

the Agreement permitted the Department to invoke DSC in June 2017 and in 

December 2017, and the Agreement did not require the Department to invoke DSC 

in June 2018. There is no genuine dispute of material fact as to these matters.

Therefore, this Court should impose the remedies for DSC or non-performance 

negotiated and agreed upon by the parties, as memorialized in the Agreement. 

 3 There is no evidence that these remedies have failed their intended purpose. 4 Conversely, five of the remaining remedies proposed by Disability Law 

Colorado are inequitable, go beyond the scope of Agreement, and the Court’s 

specific preservation of its jurisdiction to enforce the terms of the Agreement.

See Dkt. 82, pp. 19-20 ¶¶ (b)-(f). 

Case No. 1:11-cv-02285-NYW Document 97 filed 08/15/18 USDC Colorado pg 24 of 26
25

CYNTHIA H. COFFMAN

Attorney General

s/ Tanya E. Wheeler

TANYA E. WHEELER, 37089*

First Assistant Attorney General

ELIZABETH J. MCCARTHY, 37799*

Senior Assistant Attorney General

LAUREN K. PEACH, 49234*

Assistant Attorney General

State Services Section

1300 Broadway, 6th Floor

Denver, CO 80203

Telephone: (720) 508-6151

FAX: (720) 508-6041

Email: tanja.wheeler@coag.gov

libbie.mccarthy@coag.gov

lauren.peach@coag.gov

*Counsel of Record

Attorneys for Defendants

Case No. 1:11-cv-02285-NYW Document 97 filed 08/15/18 USDC Colorado pg 25 of 26
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CERTIFICATE OF SERVICE (CM/ECF)

The undersigned hereby certifies that on this 15th day of August 

2018, a true and correct copy of this DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT, was electronically filed with the Clerk of the 

Court using the CM/ECF system, which will send notification of such filing 

to the following e-mail addresses:

Caleb Durling

FOX ROTHSCHILD LLP

1225 17th Street

Suite 2200

Denver, CO 80202

Telephone: 303-945-7415

Facsimile: 303-974-7468

Email: cdurling@foxrothschild.com

Iris Eytan

EYTAN NIELSEN LLC

3200 Cherry Creek South Drive

Denver, CO 80209

Telephone: 720-440-8155

Facsimile: 720-440-8156

Email: iris@eytan-nielsen.com

Ellie Lockwood

Timothy P. Scalo

SNELL AND WILMER LLP

1200 Seventeenth Street, Suite 

1900

Denver, CO 80202

Telephone: 303-634-2000

Facsimile: 303-634-2020

Email: elockwood@swlaw.com

Mark J. Ivandick

Jennifer Purrington

DISABILITY LAW COLORADO

455 Sherman St., Ste. 130

Denver, CO 80203

Telephone: 303-722-0300

Facsimile: 303-722-0720

Email:mivandick@disabilitylawco.org

/s/Sandra Martinez

Case No. 1:11-cv-02285-NYW Document 97 filed 08/15/18 USDC Colorado pg 26 of 26