IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge William J. Martínez

Civil Action No. 11-cv-02636-WJM-CBS

STEWART TITLE GUARANTY COMPANY, a Texas corporation,

Plaintiff,

v.

JAY H. WILLIAMS, an individual, and 

NEWTOWN TEN, INC., a Colorado corporation,

Defendants.

ORDER GRANTING PLAINTIFF’S PARTIAL MOTION FOR SUMMARY JUDGMENT

AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Plaintiff Stewart Title Guaranty Company (“Plaintiff” or “Stewart”) brings this

action against Defendants Jay H. Williams (“Williams”) and Newtown Ten, Inc.

(“Newtown”) alleging that Defendant Newtown and its guarantor Defendant Williams

borrowed money in the form of a promissory note and failed to pay back the money. 

Before the Court are: (1) Plaintiff’s Motion for Partial Summary Judgment on Plaintiff’s

First and Fifth Claims for Relief (“Plaintiff’s Motion”) (ECF No. 27); and (2) Defendants’

Motion for Summary Judgment (“Defendants’ Motion”) (ECF No. 37).

For the reasons set forth below, Plaintiff’s Motion for Partial Summary Judgment

is granted, and Defendants’ Motion for Summary Judgment is denied. 

I. BACKGROUND

A. Factual Background

The following facts are taken from the record and are either undisputed or

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viewed in the light most favorable to Defendants:

Plaintiff Stewart is a Texas corporation. (Scheduling Order, “Undisputed Facts”

(ECF No. 18) at Section 4(a)(hereinafter, “Undisputed Facts”).) Defendant Newtown is

a Colorado corporation. (Id. at 4(b).) Defendant Williams is an individual who resides

in Colorado. (Id. at 4(c).)

The real property underlying this dispute is vacant land located in El Paso

County, Colorado (the “Property”). (Id. at 4(d).) On December 12, 1991, the Federal

Deposit Insurance Corp., in a receivership capacity, conveyed the Property to Williams

by quitclaim deed. (Id. at 4(e).) On June 27, 2000, Williams conveyed the Property to

Newtown by warranty deed. (Id. at 4(f).) 

On November 9, 2007, Newtown executed a $500,000.00 promissory note (the

“Note”) in favor of Randall Realty & Investment Co. (together with any successor in

interest, “Randall Realty”). (Id. at 4(l).) In conjunction with the Note, and in

consideration for the payment obligations contained therein, Randall Realty advanced

$500,000.00 to Newtown. (Aff. of Randall Karsh, ¶ 4 (“Karsh Affidavit”), attached as

Exhibit C to Plaintiff’s Motion.) As security for the Note, a Deed of Trust from Newtown

to Randall Realty, which encumbered the Property (the “Randall Realty Deed of Trust”),

was recorded in the real property records of El Paso County, Colorado. (Undisputed

Facts at 4(n).) The Note was secured, inter alia, by the absolute and unconditional

personal guarantee of Williams (the “Guaranty”). (Guaranty, attached as Exhibit D to

Plaintiff’s Motion.) 

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On March 13, 2009, Newtown conveyed the Property to Trend Investments, LLC

(“Trend”) by warranty deed recorded in the real property records of El Paso County,

Colorado. (Undisputed Facts at 4(q),(r).) 1st Denver Title, Inc. (“Denver Title”) was the

company that conducted the closing of the sale of the Property from Newtown to Trend

(the “Trend Closing”). (Id. at 4(s).) Trend also granted a deed of trust for the benefit of

California Bank & Trust (“CB&T”) on May 8, 2009 which encumbered the Property (the

“CB&T Deed of Trust”). (Id. at 4(u).) Denver Title also conducted the loan closing

between Trend and CB&T. (Id. at 4(y).)

 In conjunction with the loan closing between Trend and CB&T, CB&T requested

and paid for a $1,660,000.00 lender’s policy of title insurance that was issued by

Denver Title on May 13, 2009 and was underwritten by Stewart (the “CB&T Policy”). 

(Id. at 4(z).) Denver Title was the agent of Stewart for purposes of issuing title policies

to borrowers and lenders, which were underwritten by Stewart. (Id. at 4(t).) As part of

the title examination for the CB&T Policy, Joey Grant, a Denver Title examiner, located

and reviewed the Randall Realty Deed of Trust. (Request for Admission No. 3,

attached as Exhibit A to Defendants’ Motion.) Joey Grant concluded that the Randall

Realty Deed of Trust did not encumber the Property. (Id. at Request 4.)

On October 22, 2009, Newtown and Randall Realty entered into an amendment

of the Note (the “Note Amendment”) in which Newton agreed that the principal balance

owed pursuant the Note would be increased to $578,336.00. (Undisputed Facts at

4(dd)(ee).) In conjunction with the Note Amendment, Williams executed an

Acknowledgment and Agreement of Guaranty (the “Acknowledgment of Guaranty”),

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Defendants “deny that the amount set forth as owed under the Note is accurate 1

because no calculation is provided in the Motion or any exhibit attached thereto.” (ECF No. 30

at 3.) However, Paragraph 15 of the Karsh Affidavit, which was attached as Exhibit C to

Plaintiff’s Motion, provides that “$861,424.00 of the Stewart Payment reflected the unpaid

principal and default interest owed on the Note as of the date of the Stewart Assignment,

excluding attorneys’ fees and costs.” (Karsh Affidavit, ¶ 15.) Plaintiff’s Motion also lays out

calculations showing that “since Stewart acquired the Note, $157,180.38 of default interest has

accrued on the Note.” (ECF No. 27 at 13.) Defendants have asserted no facts or affidavits that

contradict the Karsh Affidavit or Plaintiff’s calculations. Therefore, the combination of the Karsh

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whereby he: (1) acknowledged receipt of the Note Amendment; (2) consented to its

terms; and (3) reaffirmed his obligations pursuant to the Guaranty. (Acknowledgment of

Guaranty, attached as Exhibit F to Plaintiff’s Motion.) 

On January 3, 2011, Randall Realty called for a default under the Note.

(Undisputed Facts at 4(gg)). On September 2, 2011, Stewart purchased the Note from

Randall Realty. (ECF No. 7, ¶ 7.) Stewart paid Randall Realty $890,000.00 in

consideration for the assignment of the Note; of this amount, $861,424.00 was the

unpaid principal and default interest owed on the Note as of September 2, 2011. (ECF

No. 27, at Exhibit C, ¶¶ 14-15.) Since September 2, 2011, Stewart has had the right to

foreclose on the Property, but has chosen not to do so. (Request for Admission No. 10,

attached as Exhibit A to Defendants’ Motion.)

On October 26, 2011, Stewart, through counsel, made a formal demand on

Williams to satisfy all amounts owed under the Note. (October 26, 2011, Letter,

attached as Exhibit L to Plaintiff’s Motion.) Williams has made no payments to Stewart

pursuant to the Guaranty or the Note, and the Note remains unpaid. (Yalung Affidavit,

¶ 7.) As of the date of this Motion, the amount of unpaid principal and default interest

due under the Note and the Guaranty is $1,018,604.38, with a per diem of $849.62. 

(Id., ¶ 10.)

1

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Affidavit and the aforementioned calculations sufficiently sets forth the amount owed under the

Note, excluding attorneys’ fees and costs, as of the filing of Plaintiff’s Motion.

Neither party has moved for summary judgment on Plaintiff’s Second Claim 2

against Defendants for Breach of Contract based on contractual indemnification. (ECF No. 7.)

Plaintiff’s Second Claim seeks a judgment against Newtown, jointly and severally with Williams,

for breach of an Indemnification Agreement, in the amount of $890,000.00 (the purchase price

of the Note). (Id.)

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B. Procedural History

Plaintiff filed its initial Complaint on October 10, 2011 (ECF No. 1) and filed an

Amended Complaint on November 8, 2011 (ECF No. 7). Based on the circumstances

described above, Plaintiff brings three claims against Defendants for breach of contract

(Claims One, Two, and Five) and two claims for fraud (Claims Three and Four). (Id.) 

On March 5, 2012, Plaintiff filed a Motion for Partial Summary Judgment

pursuant to Federal Rule of Civil Procedure 56 asking the Court to grant summary

judgment in its favor on Plaintiff’s First and Fifth Claims for breach of contract. (ECF 2

No. 27.) Specifically, Plaintiff seeks summary judgment on its First Claim for breach of

contract for default under the Note against both Defendants, and on its Fifth Claim for

breach of contract for default under the Guaranty against Defendant Williams. (Id.) On

March 29, 2012, Defendants filed their Response to Plaintiff’s Motion (ECF No. 30), and

Plaintiff filed its Reply in Support of its Motion on April 13, 2012 (ECF No. 31).

On June 18, 2012, Defendants filed their Motion for [Partial] Summary Judgment

asking the Court to grant summary judgment in their favor on Plaintiff’s fraud claims

(Claims Three and Four), and on their affirmative defense that Plaintiff failed to mitigate

its damages relating to its breach of contract claims. (ECF No. 37.) On August 31,

2012, Plaintiff filed a Response to Defendants’ Motion (ECF No. 48), and Defendants

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On December 9, 2011, Defendants filed a Motion to Dismiss Plaintiff’s fraud 3

claims. (ECF No. 15.) On July 12, 2012, Defendants’ Motion to Dismiss was denied as moot

because Defendants’ Motion for Summary Judgment incorporates the same arguments raised

in their Motion to Dismiss. (ECF No. 40.) See Drake v. City and Cty. of Denver, 953 F. Supp.

1150, 1152 n.1 (D. Colo. 1997) (holding that motions to dismiss are “subsumed by the Motions

for Summary Judgment and are denied as moot.”). 

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filed their Reply in Support of their Motion on September 14, 2012 (ECF No. 52).3

These Motions are now ripe for resolution.

II. LEGAL STANDARD

Summary judgment is appropriate only if there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem

Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute

as to a material fact depends upon whether the evidence presents a sufficient

disagreement to require submission to a jury or, conversely, is so one-sided that one

party must prevail as a matter of law. Anderson v. Liberty Lobby Inc., 477 U.S. 242,

248-49 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v.

U.S. Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987).

A fact is “material” if it pertains to an element of a claim or defense; a factual

dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a

reasonable juror could return a verdict for either party. Anderson, 477 U.S. at 248. The

Court must resolve factual ambiguities against the moving party, thus favoring the right

to a trial. Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).

The moving party bears the initial burden of showing an absence of evidence to

support the nonmoving party’s case. Celotex, 477 U.S. at 325. Where the non-movant

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bears the burden of proof at trial, the non-movant must then point to specific evidence

establishing a genuine issue of material fact with regard to each challenged element. 

See Reed v. Bennett, 312 F.3d 1190, 1194 (10th Cir. 2002); In re Ribozyme Pharms.,

Inc. Sec. Litig., 209 F. Supp. 2d 1106, 1111 (D. Colo. 2002). 

III. ANALYSIS

Plaintiff has asked the Court to grant summary judgment in its favor on its First

and Fifth claims for breach of contract. Defendants seek summary judgment on

Plaintiff’s Third and Fourth claims alleging fraud against Defendants, and on their

affirmative defense that Plaintiff failed to mitigate its damages relating to its breach of

contract claims. The Court will discuss each Motion in turn below.

A. Plaintiff’s Partial Motion for Summary Judgment

A claim based on a failure to make a payment on a promissory note is, in

essence, a breach of contract claim. See Roberts v. Adams, 47 P.3d 690, 694 (Colo.

App. 2001). A party asserting a breach of contract claim must prove the following

elements: (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 plaintiff. See W Distrib. Co. v. Diodosio, 841 P.2d 1053,

1058 (Colo. 1992).

A guaranty is a form of contract and the same breach of contract elements apply

to a breach of a guaranty. See A.R.A. Mfg. Co. v. Cohen, 654 P.2d 857, 859 (Colo.

App. 1982). Where a contact and a guaranty of contract are formed concurrently, the

consideration for the former may also serve as the consideration for the latter. Colo.

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State Bank of Denver v. Rothberg, 474 P.2d 634, 636 (Colo. App. 1970). A legal

detriment incurred by the promisee in reliance on the guaranty contract may also serve

as consideration for the guaranty contract. Id. 

In establishing the existence of a contract, a party must show that the contract

was properly formed. Indus. Prods. Int’l v. Emo Trans, Inc., 962 P.2d 983, 988 (Colo.

App. 1997). Contract formation requires mutual assent to an exchange between

competent parties – where an offer is made and accepted – regarding a subject matter

which is certain, and for which there is a legal consideration. Id.

After reviewing Plaintiff’s arguments and evidence, the Court finds that Plaintiff

has met its initial burden of setting forth sufficient evidence to show that there are no

genuine disputes of material facts on its First and Fifth breach of contract claims, and

that it is entitled to judgment as a matter of law on these claims. See Celotex, 477 U.S.

at 325. Plaintiff has submitted sufficient evidence that the Note is two party commercial

paper promise by Newtown, the maker, to pay money to Randall Co., the payee/bearer.

(Undisputed Facts at 4(l); Karsh Affidavit ¶ 4); see C.R.S. §§ 4-3-103(a)(9) and

4-3-104(e). Further, the Note is also a negotiable instrument that is: (1) an

unconditional, (2) promise by Newtown, (3) to pay a fixed amount of money to Randall

Co. (Karsh Affidavit, ¶ 8); see C.R.S. 4-3-104. The Note was subsequently negotiated

from Randall Realty to Stewart, and Stewart obtained all of Randall Realty’s interest in

the Note. (Yalung Affidavit, ¶¶ 3, 6; Karsh Affidavit, ¶ 10); see C.R.S. § 4-3-201(a)).

Therefore, the undisputed facts demonstrate that the Note is: (1) a valid contract, (2)

which Randall Co. performed, and (3) Newtown has failed to perform, (4) a result of

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Since Stewart acquired the Note, $157,180.38 of default interest has accrued on 4

it. (ECF No. 27 at 12-13.) Adding this to the amount of unpaid principal and default interest

owed to Randall Realty at the time Stewart purchased the Note, Plaintiff seeks judgment on the

Note and the Guaranty in the amount of $1,018,604.38, with a per diem of $849.62. (Id.)

Under the terms of the Note, both Newtown and Williams are jointly and severally liable for this

amount. (Note, ¶ 16) (“This Note is the joint and several obligation of Maker...[and]

guarantors...without regard to liability of any other party and is binding on them...”).

While its unclear from their Response to Plaintiff’s Motion, it appears that

5

Defendants are arguing that this action should be in Denver, Colorado state court, as opposed

to Federal District Court for the District of Colorado.

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which Stewart, as assignee, has suffered damages. (Yalung Affidavit, ¶¶ 7; 10.) 4

Plaintiff has also put forth sufficient evidence demonstrating that there was

mutual assent to the Guaranty. The Guaranty provides for such a legal detriment, as

Randall Realty represented in the Guaranty that it would not lend money to Newtown

absent Williams’ guarantee. (Guaranty at 1; Acknowledgment of Guaranty, Undisputed

Facts, ¶ p) (“Lender is unwilling to make the loan described above and/or permit

Borrower to incur additional Indebtedness unless [Williams] enters into this Contract of

Guaranty”). Therefore, the undisputed facts demonstrate that the Guaranty is: (1) a

valid contract, (2) which Randall Realty performed, and (3) Williams has failed to

perform, (4) the result of which has caused Stewart, as assignee, to incur damages.

(Id.; Yalung Affidavit, ¶¶ 7; 10.) 

Defendants do not dispute that Plaintiff is entitled to judgment as a matter of law

on these breach of contract claims. (ECF No. 30 at 3-5.) Rather, Defendants argue

that the Note’s “Forum Selection Clause” makes it mandatory that “the District Court for

the City and County of Denver, Colorado has exclusive jurisdiction to consider and

determine all matters involving the Promissory Note” and, therefore, forum and

jurisdiction before this Court are improper. (Id. at 4.) 5

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“The enforceability of a forum selection clause has long been recognized by the

Supreme Court.” Excell, Inc. v. Sterling Bailer & Mechanical, Inc., 916 F. Supp. 1063,

1064-1065 (D. Colo. 1996) (citing Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972)).

The Forum Selection Clause in the Note states:

Venue for any legal action relating to the interpretation or enforcement of

the provisions of this Note or the obligations arising hereunder shall be

proper in the City and County of Denver, State of Colorado. Maker and

any guarantor or accommodation party hereof hereby voluntarily submit

themselves to the personal jurisdiction of the District Court for the State of

Colorado sitting in the City and County of Denver and agree that such

forum shall have exclusive jurisdiction over the parties pertaining to this

Note including, but not limited to matters involving the collection,

enforcement or interpretation hereof.

(Note at 7, attached to ECF No. 30.)

After reviewing the briefs and the relevant case law, the Court finds even if the

Forum Selection Clause here were mandatory, Defendants have waived any right they

may have previously had to enforce a change in venue.

 On December 9, 2011, Defendants filed a Motion to Dismiss under Fed. R. Civ.

P. 12(b)(6) seeking dismissal of Plaintiff’s fraud claims. (ECF No. 7.) Defendants did

not seek a venue transfer in their Motion to Dismiss, nor have Defendants ever filed a

separate motion to transfer venue. Instead, Defendants have waited until their

Response to Plaintiff’s Motion to first make the argument that venue before this Court is

improper. (ECF No. 30 at 3-6.) 

Forum selection clauses involving transfers of venue fall within the purview of

Fed. R. Civ. P. 12(b). See Riley v. Kingsley Underwriting Agencies, Ltd, 969 F.2d 953,

956 (10th Cir. 1992). Fed. R. Civ. P. 12(b) states that “[a] motion asserting [an

improper venue defense] must be made before pleading if a responsive pleading is

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Moreover, considering that the parties have already spent considerable time and 6

resources litigating this action before this Court, permitting Defendants to assert enforcement of

the Forum Selection Clause at such a late juncture would be unreasonable and inequitable. 

See Excell, Inc. v. Sterling Boiler & Mech., Inc., 916 F. Supp. 1063, 1065 (D. Colo. 1996).

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allowed.” Further, this Court’s Practice Standards specifically state that “all requests for

relief under any part of Fed. R. Civ. P. 12 must be brought in a single motion.” WJM

Revised Practice Standards, III.D.2. Accordingly, by failing to move to transfer venue in

their initial Motion to Dismiss, Defendants have waived this defense.6

For the reasons stated above, Plaintiff is entitled to judgment as a matter of law

on its First Claim for breach of contract for default under the Note against both

Defendants, and on its Fifth Claim for breach of contract for default under the Guaranty

against Defendant Williams. 

B. Defendants’ Motion for Summary Judgment

 Defendants seek summary judgment on Plaintiff’s Third and Fourth claims

alleging fraud against Defendants, and on their affirmative defense that Plaintiff failed to

mitigate its damages relating to its breach of contract claims. 

1. Plaintiff’s Fraud Claims

Plaintiff’s fraud claims allege that Defendants made false statements in a lien

affidavit and the Note Amendment executed by Defendant Williams. (ECF No. 7, ¶¶ 97-

114.) With respect to Plaintiff’s Third Claim based on the lien affidavit, Plaintiff alleges

that it was defrauded when it relied on Defendants’ failure to disclose the Randall Realty

Deed of Trust before it issued the CB&T Policy. (Id., ¶ 101.) With respect to Plaintiff’s

Fourth Claim, Plaintiff alleges that it was defrauded when Randall Realty relied on

Defendants’ false representations in the Note Amendment. (Id., ¶¶ 106-114.)

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A party asserting a fraud claim under Colorado law must prove the following

elements: (a) the defendant made a false representation of a past or present fact; (b)

the fact was material; (c) at the time the representation was made, the defendant knew

the representation was false or was aware that it did not know whether the

representation was true or false; (d) the defendant made the representation with the

intent that the plaintiff would rely on the representation; (e) the plaintiff relied on the

representation; (f) the plaintiff’s reliance was justified; and (g) this reliance caused

damages to the plaintiff. See Kinsey v. Preeson, 746 P.2d 542, 550 (Colo. 1987). A

claimant has no right to rely upon a false representation if the claimant has access to

information that would lead to the true facts. M.D.C./Wood, Inc. v. Mortimer, 866 P.2d

1380, 1382 (Colo. 1994).

The Court finds that there are genuine disputes of fact as to whether Plaintiff

relied upon any alleged false representations made by Defendants in the lien affidavit

and the Note Amendment and, therefore, Defendants are not entitled to judgment as a

matter of law on Plaintiff’s fraud claims. Specifically, Plaintiff has introduced evidence

that Defendants intentionally made fraudulent representations to Randall Realty and

Plaintiff in order to induce them to take actions that they would not otherwise have

taken. (Affidavit of Michael Cranmer (“Cranmer Affidavit”), ¶¶ 7, 8, 11, 12, attached as

Exhibit 3 to ECF No. 48.; Undisputed Facts, ¶ 4.ff.) Based upon this evidence, and

other evidence set forth in the summary judgment briefs, a jury could reasonably find

that Defendants did commit fraud against Plaintiff through false statements in the lien

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Because the Court finds that there are genuine disputes of fact as to whether 7

Plaintiff relied upon any alleged false representations made by Defendants, the Court does not

address Defendants additional arguments regarding these claims. 

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affidavit and Note Amendment. As such, material disputes of fact exist regarding

7

these claims, and Defendants’ Motion for Summary Judgment on these claims is

denied.

2. Defendants’ Affirmative Defense that Plaintiff Failed to Mitigate its

Damages

Finally, Defendants seek summary judgment on their affirmative defense that

Plaintiff failed to mitigate its damages relating to its breach of contract claims. The

burden of proving such an affirmative defense rests upon the defendant. See Western

Distributing Co., v. Diodosio, 841 P.2d 1053, 1057 (Colo. 1992); In re Ribozyme Pharm,

209 F. Supp. 2d at 1111 (movant who bears burden of proof must submit evidence to

establish every essential element of its affirmative defense).

“A party seeking recovery under a contract has a duty to mitigate its damages.”

Westec Constr. Mgmt. Co. v. Postle Enters. I, Inc., 68 P.3d 529, 532 (Colo. App. 2002). 

“The defense of failure to mitigate damages applies when a plaintiff has failed to

exercise reasonable care and diligence to minimize or lessen damages occasioned by

defendant’s conduct.” Id. “A plaintiff’s failure to mitigate damages is excused,

however, if mitigation would require inordinate or unreasonable measures or if there

were reasonable grounds for the failure to mitigate.” Id. “For example, ‘a party need

not accept a modified contract in mitigation of its damages when the modified offer

includes abandonment of any right of action for a prior breach as a condition of

acceptance.’” Id. (internal citation and quotation omitted).

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The Note contains the following language: 8

The legal remedies of Holder as provide in this Note and the Loan

Documents or otherwise at law or in equity, shall be cumulative

and concurrent, and may be pursued singularly, successively or

together against Maker, the real property described in the Security

Documents..., or any surety, guarantor or endorser hereof at the

sole discretion of Holder.

(Note, ¶ 5.) 

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Here, Defendants contend that Plaintiff has had the right to foreclose on the

Property since September 2, 2011, and that Plaintiff could have been repaid in full had

it foreclosed. (ECF No. 37 at 13-15.) Therefore, Defendants argue, they are entitled to

judgment as a matter of law on their affirmative defense because Plaintiff has failed to

mitigate its damages by foreclosing on the Property. (Id.) In response, Plaintiff argues

that forcing it to foreclose on the Property is directly contrary to the express language of

the Note and Guaranty, and is contrary to Colorado law. (ECF No. 48 at 12-15.) 8

The Court finds that there are genuine disputes of fact precluding summary

judgment on Defendants’ affirmative defense that Plaintiff failed to mitigate its damages

relating to its breach of contract claims. There are disputes of fact as to whether

Plaintiff could have mitigated its damages by foreclosing on the Property and, if so, by

how much. (Final Pretrial Order, 7.a.(2)); see Westec, 68 P.3d at 532 (a party’s failure

to mitigate its damages is excused if there were reasonable grounds for the failure to

mitigate.) Plaintiff has also submitted sufficient evidence to create a genuine dispute of

material fact as to whether its contractual obligations to its insured are reasonable

grounds for its decision not to foreclose on the Property. (Note, ¶ 5; Deposition of

Judith Bregman, at 30:5-32:16, attached as Exhibit E to ECF No. 52.) Further, Plaintiff

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has submitted evidence that the Guarantee was absolute and unconditional, and that

Plaintiff does not need to pursue a claim against Defendant Newton or foreclose on the

Property before proceeding against Defendant Williams. (Guaranty, ¶ 1) (“Guarantor

absolutely and unconditionally guarantees payment to Lender of the Indebtedness,...”);

see First Comm. Corp. v. Geter, 547 P.2d 1291, 1293 (Colo. App. 1976) (“[T]he

document is an absolute guaranty and the obligation of the guarantors may be

immediately enforced, without the necessity of an action against the principal obligor or

collateral”).

Based on the genuine disputes of material facts described above, Defendants’

Motion for Summary Judgment on their affirmative defense that Plaintiff failed to

mitigate its damages relating to its breach of contract claims is denied.

IV. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows:

1. Plaintiff’s Motion for Partial Summary Judgment on Plaintiff’s First and Fifth

Claims for Relief (ECF No. 27) is GRANTED; 

2. Defendants’ Motion for Summary Judgment (ECF No. 37) is DENIED:

3. Judgment shall enter against Defendant Newtown Ten, Inc., jointly and severally

with Defendant Jay H. Williams, for its breach of the Note, in the amount of

$1,018,604.38, plus a per diem of $849.62, until the Note is paid in full, subject

to any offsets resulting from future amounts collected from Williams under the

Guaranty;

4. Judgment shall enter against Defendant Jay H. Williams, jointly and severally

with Defendant Newtown Ten, Inc., for his breach of the Guaranty, in the amount

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of $1,018,604.38, plus a per diem of $849.62, until the Note is paid in full,

subject to any offsets resulting from amounts collected from Newtown under the

Note;

5. Plaintiff’s Second, Third, and Fourth claims shall proceed to trial on April 10,

2013.

Dated this 25 day of October, 2012. th

BY THE COURT:

 

William J. Martínez 

United States District Judge

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