Brew Company v Greager

25CA1398 Brew Company v Greager 10-15-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA1398
Mesa County District Court No. 24CV30101
Honorable JenniLynn E. Lawrence, Judge
Honorable Jeremy Chaffin, Judge
Charles R. Greager and Jody Greager,
Plaintiffs-Appellees,
v.
The Brew Company, LLC,
Defendant-Appellant.
JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE BROWN
Pawar and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 15, 2026
Wegener Lane & Evans, P.C., Benjamin M. Wegener, Grand Junction,
Colorado, for Plaintiffs-Appellees
Joseph Coleman & Associates, LLC, Joseph Coleman, Grand Junction,
Colorado, for Defendant-Appellant

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¶ 1 Defendant, The Brew Company, LLC (debtor), appeals the
district court’s judgment in favor of plaintiffs, Charles R. Greager
(deceased) and Jody Greager (collectively, creditor). We affirm and
remand the case with directions.
I. Background
¶ 2 In April 2006, debtor borrowed $640,000 from creditor,
evidenced by a promissory note secured by a deed of trust on real
property. Under the terms of the promissory note, debtor was
required to pay $6,302.33 each month, with interest accruing at
8.5% per annum. Any principal amount outstanding was to be paid
in full by June 1, 2014.
¶ 3 The promissory note incorporated “Attachment A,” which
obligated debtor to pay an additional “principal reduction payment”
of $100,000 on or before May 1, 2007. If debtor made the principal
reduction payment, “the amount of the continuing monthly
payments . . . [would] be re-calculated by re-amortizing the
remaining principal balance with interest at 8.5% per annum
compounded annually, over the remainder of the [fifteen] year
amortization period,” and the new monthly payment would be
$5,282.41. Debtor made the required principal reduction payment

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in May 2007 and continued to make “all payments in accordance
with the [p]romissory [n]ote” through March 2013.
¶ 4 In 2012 and 2013, the parties attempted to negotiate a
modification to the promissory note but put nothing in writing.
Debtor did not pay the outstanding principal on June 1, 2014.
Instead, debtor made reduced monthly payments of $2,300 from
April 2013 until January 2023 and then stopped making payments
altogether, even though the balance on the note had not been paid
in full. Debtor paid a lump sum of $258,622.19 in October 2023,
but creditor claimed an outstanding balance remained.
¶ 5 Creditor sued debtor in March 2024, asserting claims for
declaratory judgment, breach of contract, and unjust enrichment.
Debtor denied all claims and asserted several affirmative defenses,
including accord and satisfaction, waiver, estoppel, and fraud.
Debtor counterclaimed for breach of contract, declaratory
judgment, libel, and “damages for [creditor’s] [r]efusal to [c]ancel the
[n]ote.” Debtor also sought to interplead the funds remaining from
the sale of the real property that originally secured the note.
Creditor denied all counterclaims and affirmative defenses.

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¶ 6 After a two-day bench trial, the district court found that
debtor breached the promissory note. The court found that the
parties orally agreed that debtor could make reduced monthly
payments of $2,300 beginning in April 2013 but that they did not
otherwise modify the agreement. The court found that the parties
executed Attachment A, which “made clear that upon payment of
[the] additional principal reduction payment . . . , the new principal
balance would be $517,925.15 with ‘interest at 8.5% per annum
compounded annually.’” And the court found that debtor defaulted
by failing to pay the outstanding balance by June 1, 2014, but that
creditor waived the default interest rate of 12% by accepting
debtor’s regular payments without imposing the default rate.
¶ 7 After noting that “[n]either party . . . offered an accurate final
calculation of the balance due,” the court calculated the damages
award itself. The court found that, as of June 1, 2014, debtor owed
$377,125.65 and determined that interest began accruing on that
amount at a rate of 8.5% compounded annually. It prepared a
spreadsheet reflecting every payment made under the promissory
note, the interest accrued, and the outstanding balance after each
payment. The court credited the monthly payments debtor made

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after June 2014 and the lump sum payment in October 2023. In
the end, the court calculated that debtor owed $228,002.73 to
creditor for breaching the promissory note.
II. Contentions on Appeal
¶ 8 Debtor contends that the district court erred by (1) granting
the motion in limine to exclude evidence of an oral modification to
the promissory note; (2) interpreting the promissory note as
providing for annual compounding of interest rather than simple
interest; (3) failing to enforce the parties’ settlement agreement;
(4) failing to address debtor’s affirmative defenses of waiver,
estoppel, and fraudulent concealment; (5) allowing creditor to
submit post-trial, ex parte evidence; and (6) calculating damages
based on insufficient evidence and without affording debtor the
opportunity to object. Debtor also asks us to determine whether
the parties are entitled to a judgment framework that avoids tax
liability. We reject each contention.
A. Motion in Limine
¶ 9 Before trial, creditor filed a motion in limine to exclude, as
irrelevant, any evidence of an oral modification of the promissory
note based on the parties’ failed negotiations and course of dealing.

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Over debtor’s opposition, Judge JenniLynn Everett Lawrence
granted the motion. But on the first day of trial, Judge Lawrence
recused. The case was reassigned to Judge Jeremy Chaffin, who
presided over the trial. And during trial, Judge Chaffin vacated the
order excluding evidence of an oral modification to the promissory
note, concluding that the previous order “was a legal error.”
¶ 10 Debtor contends that the district court erred by granting
creditor’s motion in limine to exclude evidence of an oral
modification to the promissory note, arguing that debtor’s ability to
prove its affirmative defenses at trial was compromised. But debtor
appears to ignore the fact that the court reconsidered the
challenged in limine ruling during trial. See Graham v. Zurich Am.
Ins. Co., 2012 COA 188, ¶ 18 (a trial court may reconsider its own
rulings “any time before it enters a final judgment” (citing Bowman
v. Songer, 820 P.2d 1110, 1113 (Colo. 1991))). The ruling about
which debtor complains does not exist, and this issue is therefore
moot. See In re Marriage of Tibbetts, 2018 COA 117, ¶ 8 (“An issue
is moot when a judgment, if rendered, would have no practical legal
effect on the existing controversy.” (citation omitted)).

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¶ 11 Moreover, debtor fails to explain how it would have proceeded
differently had the court denied the motion earlier in the
proceedings. Debtor did not designate all the trial transcripts for
inclusion in the record on appeal; debtor designated only the
transcript of the court’s oral ruling following trial. See C.A.R.
10(d)(3) (“The appellant must include in the record transcripts of all
proceedings necessary for considering and deciding the issues on
appeal.”). Consequently, we cannot determine whether any
prejudice resulted from the pretrial in limine ruling, particularly
because debtor concedes that at least some evidence of the alleged
verbal agreement was admitted at trial. Instead, we presume that
the record supports the district court’s ruling and that debtor had
an adequate opportunity to present evidence regarding the alleged
oral modification of the note. See Clements v. Davies, 217 P.3d 912,
916 (Colo. App. 2009) (It is the appellant’s responsibility to provide
an adequate record to demonstrate the alleged errors, and “absent
such a record, we must presume the evidence fully supports the
trial court’s ruling.”); In re Marriage of Dean, 2017 COA 51, ¶ 13
(“Where the appellant fails to provide . . . a transcript, the reviewing
court must presume that the record supports the judgment.”).

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B. District Court’s Interpretation of the Promissory Note
¶ 12 Debtor contends that the district court erred by interpreting
the promissory note as providing for annual compounding interest,
arguing there is ambiguity between the note and Attachment A.
But debtor does not point to where in the record this argument was
raised and ruled upon by the district court. See C.A.R. 28(a)(7)(A)
(appellant’s opening brief must contain a statement on “whether the
issue was preserved, and if preserved, the precise location in the
record where the issue was raised and where the court ruled”);
Berra v. Springer & Steinberg, P.C., 251 P.3d 567, 570 (Colo. App.
2010) (to preserve an issue for appeal, the issue must be brought to
the court’s attention, and the court must be given an opportunity to
rule on it). Although debtor cites the exhibit of the promissory note
admitted at trial, that exhibit does not demonstrate that debtor
argued the purported ambiguity to the district court, nor does it
preserve the contention for appeal. Debtor also points to a trial
transcript, but that transcript is not in the appellate record. See
C.A.R. 10(d)(3); Clements, 217 P.3d at 916; Dean, ¶ 13.
¶ 13 Accordingly, we decline to address this argument further. See
C.A.R. 28(a)(7)(A); O’Quinn v. Baca, 250 P.3d 629, 631 (Colo. App.

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2010) (declining to address an issue when the parties failed to
direct the court to a place in the record where the issue was raised
and ruled upon).
C. Settlement Agreement
¶ 14 Debtor contends that the district court erred by failing to
enforce an alleged settlement agreement between the parties. The
court rejected debtor’s assertion that the parties had settled their
claims because there was “no evidence at all that [Judy] Greager
had knowledge of this supposed settlement agreement or that she
consented to being bound by such an agreement,” and creditor’s
counsel’s “purported acceptance [of debtor’s proposal] was
equivocal at best.”
¶ 15 To the extent that debtor’s contention may be construed as a
challenge to the sufficiency of the evidence supporting the court’s
findings, we lack the ability to review the evidence because we do
not have the trial transcripts. See Parr v. Triple L & J Corp., 107
P.3d 1104, 1106 (Colo. App. 2004) (“When sufficiency of the
evidence is challenged on appeal, we must determine whether the
evidence, viewed as a whole and in the light most favorable to the
prevailing party, is sufficient to support the verdict.”). And we must

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presume the missing transcripts support the court’s findings. See
C.A.R. 10(d)(3); Clements, 217 P.3d at 916; Dean, ¶ 13.
D. Affirmative Defenses
¶ 16 Debtor contends that the district court failed to address its
affirmative defenses of waiver, estoppel, and fraudulent
concealment. But in its written judgment, the court determined
that “the remaining claims in the case, including any
[counterclaims] or defenses, are either moot or not established.” So
the court, in fact, adjudicated these defenses. The court also
separately addressed at least one claim of waiver, finding “that
[creditor’s] conduct constitute[d] a waiver of the default rate
provision in the [note].” Thus, debtor’s contention is belied by the
record.
¶ 17 To the extent that debtor’s argument may be construed as a
challenge to the sufficiency of the evidence supporting the court’s
rejection of the affirmative defenses, as mentioned, we do not have
the trial transcripts, so we must presume they support the district
court’s findings. See C.A.R. 10(d)(3); Parr, 107 P.3d at 1106;
Clements, 217 P.3d at 916; Dean, ¶ 13.

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E. “Post-Trial, Ex Parte” Submission
¶ 18 Debtor contends that creditor submitted new evidence — post-
trial and ex parte — and that debtor was not afforded an
opportunity to address it, which violated its due process rights. See
Delta Cnty. Mem’l Hosp. v. Indus. Claim Appeals Off., 2021 COA 84,
¶ 28 (“Due process requires ‘that the parties be apprised of all the
evidence to be submitted and considered, and that they be afforded
a reasonable opportunity in which to confront adverse witnesses
and to present evidence and argument in support of their position.’”
(citation omitted)).
¶ 19 After trial, the district court directed creditor to submit a
calculation of damages based on the court’s findings regarding
offset payments and the applicable interest rate. A week later,
creditor submitted proposed findings of fact and conclusions of law
along with a memorandum from an accountant setting forth a
damages calculation. Creditor served the memorandum containing
the damages calculation on debtor through the court’s e-filing
system. Debtor then filed a “Statement of Opposition,” specifically
challenging the damages calculation creditor had submitted. In
short, the record plainly contradicts the contention that the

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submission was ex parte and that debtor was denied an opportunity
to address it. See id. In any event, the court independently
computed the damages award, so there can be no prejudice flowing
from the challenged submission. See Walker v. Ford Motor Co.,
2017 CO 102, ¶ 21 (“This court will deem an error harmless, and
thus will not reverse a judgment, unless the error resulted in
substantial prejudice to a party.”).
F. Trial Court’s Calculation of Damages
¶ 20 As best we understand, debtor contends either that the district
court was not authorized to perform its own damages calculation or
that there was insufficient evidence to support the court’s damages
calculation. On the former contention, debtor is simply incorrect.
See Sos v. Roaring Fork Transp. Auth., 2017 COA 142, ¶¶ 35-36 (the
district court has the “sole prerogative” to assess the amount of
damages (citation omitted)). On the latter contention, because
debtor failed to designate the trial transcripts, we must presume the
missing record supports the court’s damages findings and
calculation. See C.A.R. 10(d)(3); Parr, 107 P.3d at 1106; Clements,
217 P.3d at 916; Dean, ¶ 13.

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G. Tax Liability
¶ 21 Debtor asks us to determine whether the parties are entitled to
a judgment framework that would avoid tax liability for the parties.
Debtor does not provide a record citation showing where this issue
was raised and ruled on by the district court, so we decline to
address it further. See C.A.R. 28(a)(7)(A); O’Quinn, 250 P.3d at 631;
Berra, 251 P.3d at 570.
III. Attorney Fees and Costs
¶ 22 Creditor requests an award of attorney fees and costs incurred
in connection with this appeal, based on the promissory note’s
provision that “[i]f any payment required by this [n]ote is not paid
when due, . . . [t]he [n]ote [h]older shall be entitled to collect all
reasonable costs and expense of collection and/or suit, including
but not limited to reasonable attorney’s fees.” We grant creditor’s
request and remand to the district court to determine the
reasonable amount of attorney fees and costs incurred in
connection with this appeal. See C.A.R. 39.1.

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IV. Disposition
¶ 23 We affirm the judgment and remand the case to the district
court to determine the amount of creditor’s reasonable appellate
attorney fees and costs.
JUDGE PAWAR and JUDGE MOULTRIE concur.