Opinion
Case No. 1:19-cv-01164-DDD-KLM
2021-05-26
Brad LEVIN ; and Levin for Attorney General, Plaintiffs, v. FIVE CORNERS STRATEGIES, LLC; Turnout Strategies, LLC; Frank Rizzo; Thomas Ahern; Ben Kelahan; Ignacio Barragan ; Lisa Bianco ; and Brandon Gahman, Defendants.
Heather E. Hackett, Marc R. Levy, Ryan Earl Nichols, Levy Law P.C., Englewood, CO, for Plaintiffs. William A. Rogers, III, Nathan Andrew Klotz, Dietze & Davis, P.C., Boulder, CO, for Defendants Five Corners Strategies, LLC, Turnout Strategies, LLC, Frank Rizzo, Thomas Ahern, Ben Kelahan, Brandon Gahman. Andrew D. Kurpanek, Clayton Dayn Manceaux, Kurt Christian Temple, Resnick & Louis PC, Englewood, CO, for Defendant Ignacio Barragan. Michael S. Drew, Nixon Shefrin Ogburn Drew, P.C., Greenwood Village, CO, for Defendant Lisa Bianco.
Heather E. Hackett, Marc R. Levy, Ryan Earl Nichols, Levy Law P.C., Englewood, CO, for Plaintiffs.
William A. Rogers, III, Nathan Andrew Klotz, Dietze & Davis, P.C., Boulder, CO, for Defendants Five Corners Strategies, LLC, Turnout Strategies, LLC, Frank Rizzo, Thomas Ahern, Ben Kelahan, Brandon Gahman.
Andrew D. Kurpanek, Clayton Dayn Manceaux, Kurt Christian Temple, Resnick & Louis PC, Englewood, CO, for Defendant Ignacio Barragan.
Michael S. Drew, Nixon Shefrin Ogburn Drew, P.C., Greenwood Village, CO, for Defendant Lisa Bianco.
ORDER
Daniel D. Domenico, United States District Judge
Plaintiff Brad Levin's campaign for Attorney General of Colorado ended it before it began. His campaign, Plaintiff Levin for Attorney General, hired Defendant Turnout Strategies, LLC, to collect enough signatures to get him onto the Democratic Party's primary ballot. Turnout failed to do so, and Levin's campaign had no choice but to fold. This litigation for breach of contract against Turnout and various torts against Turnout, a related LLC Five Corners Strategies, and individual managers and members of Turnout and Five Corners ensued.
Before the Court are the parties’ motions for summary judgment: (1) the individual Defendants Frank Rizzo, Thomas Ahern, Bene Kelahan, Ignacio Barragan, Lisa Bianco, and Brandon Gahman's motion for summary judgment on all claims asserted against them, arguing that the Defendant LLCs’ corporate structures shield them from liability (Doc. 57); (2) Defendants’ motion for partial summary judgment on Plaintiffs’ tort and detrimental reliance claims, arguing those claims are barred by Colorado's economic loss rule (Doc. 59); (3) the Campaign's motion for partial summary judgment on its claim for breach of contract against Turnout (Doc. 58); and (4) Defendants’ motion for summary judgment on the Campaign's breach-of-contract claim (Doc. 60). The Court denies the Individual Defendants’ motion on limited liability; grants in part the Defendants’ motion on the tort and detrimental reliance claims; grants in part the Campaign's motion on the contract claim; and grants in part Defendants’ motion on the scope of contract damages.
BACKGROUND
When Mr. Levin decided to run for Attorney General of Colorado, he had two options for getting his name on the Democratic Party's primary ballot: the partisan caucus system or petitioning onto the ballot by collecting signatures. He chose to petition on. At the time he ran, a candidate for attorney general needed 1,500 valid signatures in each of Colorado's seven congressional districts to petition onto a primary ballot. Colo. Rev. Stat. § 1-4-801 (2017). Colorado law imposed detailed requirements on the form of petitions and the validity of petition signatures. See generally Colo. Rev. Stat. §§ 1-4-904, 1-4-905 (2016).
Mr. Levin announced his campaign in the summer of 2017 but did not decide to petition onto the primary ballot until the end of that year. His Campaign reached out to various political-services firms to collect petition signatures and received a bid from Five Corners Strategies and its affiliate, Turnout Strategies. The Campaign settled on Turnout in early 2018. Turnout and the Campaign memorialized their agreement in a Master Services Agreement, Exhibit A of which detailed the services bargained for.
Turnout represented that it would "collect 2,000 signatures from Democratic voters registered to vote in each of Colorado's seven congressional districts by March 7, 2018." (Doc. 57-2 at 5.) "2,000 signatures per district," according to the Agreement, "will provide a 33% buffer on the total number of signature [sic] needed." (Id. at 6.) Turnout represented, "we will collect signatures between January 2018 – March 2018," and that it would "provide weekly updates on the number of signatures collected." (Id. ) As for a budget, Turnout represented, "with the goal of collecting 14,000 signatures, our total fee will be $155,000." (Id. )
Five Corners and Turnout are related entities. Although the Master Services Agreement was between Turnout and the Campaign, Five Corners helped pitch the Campaign and was involved in the effort to gather signatures. Among other things, Defendants Frank Rizzo, Thomas Ahern, and Ben Kelahan are the member-owners of both Turnout and Five Corners. And Defendants Ignacio Barragan, Lisa Bianco, and Brandon Gahman are employees of Five Corners that Turnout used to collect signatures.
The parties dispute, however, the exact relationship between Turnout, Five Corners, and the individual Defendants. The Campaign says, for example, it still doesn't understand how Five Corners got involved in the petition pitch—the Campaign's intention was to hire Turnout. Turnout says that it "borrowed" Mr. Barragan, Ms. Bianco, and Mr. Gahman from Five Corners to assist with the petition process. But the Campaign says it lacks sufficient information to confirm or deny that these Defendants were "borrowed," or what legal significance borrowing employees has in this case. Yet the parties agree that Five Corners and Turnout are related by common membership and that the individual Defendants did assist in the signature-collection process.
In any event, Turnout's efforts to collect the requisite number of signatures ultimately failed. The Colorado Secretary of State determined that Turnout and the Campaign had failed to collect enough valid signatures for five of Colorado's seven congressional districts, disqualifying Mr. Levin from getting his name on the primary ballot. Mr. Levin challenged the Secretary of State's decision in Colorado state court. Those challenges failed, and this litigation followed. The Campaign alleges that Turnout breached the Master Services Agreement, as well as Colorado's implied covenant of good faith and fair dealing. The Campaign and Mr. Levin also assert various tort claims against the LLC Defendants as well as the individual Defendants, including negligence, fraud, fraudulent concealment, and negligent misrepresentation. The basis for these tort claims is Defendants’ alleged failure to devise and execute a competent strategy to collect signatures despite allegedly representing to the Campaign that they were doing just that. Plaintiffs also assert a claim for detrimental reliance against all Defendants. Now before the Court are the parties cross-motions for summary judgment.
DISCUSSION
I. Standard of Review
Federal Rule of Civil Procedure 56 requires the Court to grant a motion for summary judgment "if but only if the evidence reveals no genuine issue of material fact and the movant is entitled to judgment as a matter of law." MarkWest Hydrocarbon, Inc. v. Liberty Mut. Ins. Co. , 558 F.3d 1184, 1190 (10th Cir. 2009). The Court views "the facts and all reasonable inferences those facts support in the light most favorable" to the nonmovant. Id. at 1189–90. "An issue of material fact is genuine only if the nonmovant presents facts such that a reasonable factfinder could find in favor of the nonmovant." S.E.C. v. Thompson , 732 F.3d 1151, 1157 (10th Cir. 2013) (alteration adopted). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact ... the court may ... consider the fact undisputed for purposes of the motion." Fed. R. Civ. P. 56(e)(2).
II. Individual Defendants’ Motion for Summary Judgment on Limited Liability (Doc. 57)
The individual Defendants move for summary judgment on the Plaintiffs’ claims against them. (Doc. 57.) The claims against the individual Defendants are for negligence, fraud, fraudulent concealment, negligent misrepresentation, and detrimental reliance. The individual Defendants argue that they are shielded from liability because these alleged claims all arose from the Campaign's contractual relationship with Turnout and Five Corners, and under Colorado law, managers and members of LLCs enjoy some protections against legal liability.
It is true that a member or manager of an LLC is "not liable under a judgment, decree, or order of a court, or in any other manner, for a debt, obligation, or liability of the limited liability company." Colo. Rev. Stat. § 7-80-705. Indeed, it is black-letter law that the corporate person shields the owners of a corporation from the debts of the corporation. Galie v. RAM Assocs. Mgmt. Servs., Inc. , 757 P.2d 176, 177 (Colo. App. 1988) (citing Contractors Heating & Supply Co. v. Scherb , 163 Colo. 584, 432 P.2d 237 (1967) ). But the individual Defendants are wrong that the corporate form protects managers or members of an LLC from liability for torts they individually committed—even if the torts were committed in the course and scope of their employment by, or relationship to, the LLC.
Hoang v. Arbess , 80 P.3d 863 (Colo. App. 2003), illustrates this principle well. There, a trial court directed verdict in favor of the defendant, a member and manager of a non-party LLC, on various tort claims. Id. at 866. The trial court based its ruling on the fact that the defendant's tortious conduct solely occurred in the course of his corporate employment, and so the non-party LLC's liability shield encompassed the tort claims against defendant.
The Colorado Court of Appeals reversed. The court explained that:
while an officer of a corporation cannot be held personally liable for a corporation's tort solely by reason of his or her official capacity, an officer may be held personally liable for his or her individual acts of negligence even though committed on behalf of the corporation, which is also held liable.
Id. at 867 (citing Snowden v. Taggart , 91 Colo. 525, 17 P.2d 305, 307 (1932) ). This rule, explained the court, "applies equally to a manager of limited liability company." Id. And the fact "that a defendant is at all times acting on behalf of the corporation does not relieve the defendant of liability." Id. at 868. All that is needed for an LLC's manager or member to be personally liable for a tort is evidence that the individual "was directly involved in the conduct through conception or authorization." Id.
The individual Defendants don't really dispute that the low threshold of direct involvement in the claims alleged is present here. Plaintiffs have adduced evidence of deficient performance by the individual Defendants in their efforts to collect signatures sufficient to give rise to a triable issue of negligence. Plaintiffs likewise have adduced evidence that the individual Defendants made numerous misstatements of material fact sufficient to give rise to triable misrepresentation claims. The individual Defendants instead rest their motion on the proposition that where, as here, a member or manager of an LLC commits a tort in the scope of his employment he cannot be liable as a matter of Colorado law. But this argument has Colorado law backwards—an individual is still liable for the torts he or she commits, even in the course of employment. As explained below, the individual Defendants’ relationship with the entity Defendants does protect them from liability for some of Plaintiffs’ claims, but this is not because of the LLC shield against individual liability for the entities’ obligations. The individual Defendants’ motion for summary judgment on that basis is therefore denied.
III. Defendants’ Motion for Summary Judgment on the Economic Loss Rule (Doc. 59)
A. The Economic Loss Rule
Defendants—LLC and individual—next move for summary judgment on Plaintiffs’ claims for negligence, fraud, fraudulent concealment, and negligent misrepresentation on the basis that these claims seek recovery for harm arising solely from duties created by the Master Services Agreement. Defendants argue that because their alleged tort duties derive from contract, Colorado's economic loss rule bars the tort claims against them. This motion is the flipside of the individual Defendants’ motion discussed above. The motions rest on related premises—that this is really a contract dispute between Turnout and the Campaign, and so the other Defendants can't be liable. In this case, however, the argument is correct to an extent.
The economic loss rule is a judge-made doctrine that holds that "a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such a breach absent an independent duty of care under tort law." Bermel v. BlueRadios, Inc. , 440 P.3d 1150, 1153 (Colo. 2019) (quoting Town of Alma v. AZCO Constr., Inc. , 10 P.3d 1256, 1264 (Colo. 2000) ). Colorado courts derived the rule from policy considerations, namely: the need to distinguish between tort law and contract law and to enforce contracting parties’ expressed expectations. BRW, Inc. v. Dufficy & Sons, Inc. , 99 P.3d 66, 72 (Colo. 2004). In applying this rule, the dispositive issue is the source of the duty allegedly breached. Id. at 74. If the source of the duty is a contract, any tort claims premised on that contractual duty are invalid. Id. To determine the source of the duty, Colorado law asks (1) whether the relief sought in tort is the same as the contractual relief; (2) whether the common law recognizes the tort duty at issue; and (3) whether there is any difference between the common-law and contractual duties. Id. After review of these factors, the Court concludes that Plaintiffs’ negligence claim is barred by the rule, and their fraud, negligent misrepresentation, and fraudulent concealment claims are barred by the rule to the extent those claims rely on post-contractual misrepresentations.
Plaintiffs’ claim of negligence is barred by the economic loss rule, and Defendants are entitled to summary judgment on this claim. The negligence claim asserts that the Defendants "owed Plaintiffs a duty to exercise reasonable care in conducting the petition-gathering process" and failed to exercise such care. (Doc. 5 at ¶¶ 91–92.) But the source of this duty, which mirrors the common law duty of care for negligence claims, BRW Engeman Enters., LLC v. Tolin Mech. Sys. Co. , 320 P.3d 364, 369 (Colo. App. 2012), is the Master Services Agreement. The Agreement obligated Turnout—and by extension the other Defendants—to gather signatures with reasonable care. Specifically, the Agreement obligated Turnout to "work with care and precision, according to Colorado petition signature requirements, to gather needed signatures as quickly as possible"; to work with "speed and accuracy"; and to provide accurate updates to the Campaign. (Doc. 57-2 at 5–6.) The negligent conduct alleged—failing to collect signatures with care—is thus a violation of duties created by the Master Services Agreement. The economic loss rule bars Plaintiffs’ negligence claims. Town of Alma , 10 P.3d at 1261 ("Th[e] economic loss rule prevents recovery for negligence when the duty breached is a contractual duty and the harm incurred is the result of failure of the purpose of the contract."); Engeman , 320 P.3d at 370 ("[B]ecause a reasonable duty of care owed by defendant was at least implied in the contract, it follows that plaintiff has not shown any duty independent of the contract, and the economic loss rule bars the tort claim and holds the parties to the contract's terms.").
The claims for fraud, negligent misrepresentation, and fraudulent concealment are bit more complicated. On the one hand, to the extent these claims are premised on misrepresentations made after the Master Services Agreement was executed, they are barred by the economic loss rule. The alleged post-contractual misrepresentations all concern "the status of the signature collecting efforts," specifically that Defendants misrepresented that those efforts were progressing well. (Doc. 63 at 7.) But the duty to provide accurate information to the Plaintiffs about the status of the signature-gathering process came from the Master Services Agreement, which required Defendants to act with reasonable care and provide status updates to the Campaign, as well as the implied covenant of good faith and fair dealing. (Doc. 57-2 at 6.) So the economic loss rule bars Plaintiffs’ claims of fraud, negligent misrepresentation, and fraudulent concealment to the extent Defendants’ alleged misrepresentations occurred after the Agreement was executed. Former TCHR, LLC v. First Hand Mgmt. LLC , 317 P.3d 1226 (Colo. App. 2012) (where duty to refrain from misrepresentation exists "solely because of" a contract, economic loss rule bars tort claims premised on that misrepresentation).
On the other hand, the economic loss rule does not bar these claims to the extent that they are premised on pre-contractual misrepresentations. Plaintiffs point to representations made by Turnout that it had significant capacity to handle the Campaign's petition project that later turned out to be false. (See Doc. 63-5 at 4–5.) These misrepresentations were made "to induce the formation of the contract itself," and so the contract was not the source of the duty not to make those false representations. Van Rees v. Unleaded Software, Inc. , 373 P.3d 603, 607 (Colo. 2016) (misrepresentations that wrongfully induce a contract arise from a duty independent of those created by the contract). Summary judgment is thus not proper on Plaintiffs’ fraud, negligent misrepresentation, and fraudulent concealment claims to the extent those claims are premised on pre-contractual misrepresentations.
Plaintiffs argue that the economic loss rule has no application to the individual Defendants or to Five Corners because these Defendants weren't parties to the Master Services Agreement. But contractual privity isn't required. To the contrary, "when the economic loss rule bars a claim against a corporate entity, it may also bar claims against that entity's officers and directors, even if the officers and directors were not parties to the contract at issue." TCHR , 317 P.3d at 1232. This occurs where, as here, those related individuals’ rights and obligations are derived from the contract at issue. Id.
Plaintiffs next contend that the economic loss rule does not apply because the jury could assign the damages they seek to different claims. Plaintiffs seek sums paid to Turnout, attorneys’ fees incurred as a result of Turnout's alleged breach, and consequential damages in the form of lost campaign donations. Plaintiffs argue that the jury could assign, say, the sums paid to Turnout to the contract claim and the lost campaign donations to the tort claims. But that's beside the point. No matter how a jury might divvy up the damages, "the relief sought" by Plaintiffs in their tort claims "is the same as the contractual relief." Dufficy & Sons , 99 P.3d at 74.
The economic loss rule applies, and summary judgment is proper on Plaintiffs’ claims for negligence and on the remaining tort claims to the extent they are premised on post-contractual misrepresentations.
B. Detrimental Reliance
Defendants also move for summary judgment on Plaintiffs’ claim for detrimental reliance. Summary judgment is proper on this claim because a party cannot recover on a theory of detrimental reliance, promissory estoppel, or unjust enrichment "where there is an express contract addressing the subject of the alleged obligation to pay." Pulte Home Corp., Inc. v. Countryside Cmty. Ass'n, Inc. , 382 P.3d 821, 833 (Colo. 2016). Plaintiffs don't dispute that neither of the recognized exceptions to this rule—where the express contract fails or the claim for detrimental reliance covers matters outside the contract—is present. The claim for detrimental reliance rests on Plaintiffs’ allegations that Defendants promised to get Mr. Levin on the ballot by collecting signatures, and the Campaign relied on that promise to its detriment. Plaintiffs don't really dispute that there exists a valid contract covering the same subject matter as their claim for detrimental reliance. Instead they argue that the "mysterious" relationship between Turnout and the other Defendants counsels against dismissing the claim. But Plaintiffs’ argument sidesteps the key point: the claim for detrimental reliance covers the same subject matter as Plaintiffs’ claim for breach of contract. Where that is the case, Colorado law requires dismissal of the claim for detrimental reliance. Defendants are thus entitled to summary judgment on this claim.
IV. Cross Motions on the Campaign's Claim for Breach of Contract (Docs. 58 & 60)
The Campaign and Defendants both have moved for summary judgment on the Campaign's claim for breach of contract against Turnout. The Campaign argues that Turnout's failure to collect 14,000 signatures constitutes a breach of the Master Services Agreement. Turnout stipulates that it failed to collect 14,000 signatures but disputes the legal significance of that fact. Turnout argues that the Agreement is ambiguous at best, and that failure to collect 14,000 signatures alone cannot be a breach. Turnout likewise argues that some of the contract damages sought by the Campaign are not recoverable as a matter of law.
The primary goal of Colorado's law of contract is to give effect to the intent of the parties. Sch. Dist. No. 1 in Cty. of Denver v. Denver Classroom Tchrs. Ass'n , 433 P.3d 38, 41 (Colo. 2019). The language of the contract, as understood by a reasonable person at the time of its drafting, is the best evidence of that intent. Rocky Mountain Expl., Inc. v. Davis Graham & Stubbs LLP , 420 P.3d 223, 235 (Colo. 2018). Indeed, if the text, so construed, is not ambiguous, a court's task of interpretation ends there, and extrinsic evidence should not be considered. Id.
The Master Services Agreement unambiguously required Defendants to collect 14,000 signatures—anything less would violate its terms. Turnout warranted "we will collect a minimum of 14,000 total signatures, which amounts to 2,000 unique registered Democratic voter signatures from each of Colorado's seven congressional districts." (Doc. 57-2 at 6.) Turnout likewise warranted that it would collect signatures in a certain time period: "we will collect signatures between January 2018 – March 2018." (Id. ). And Turnout promised that "we will provide weekly updates on the number of signatures collected." (Id. ) Turnout encapsulated these mandatory terms at the beginning of Exhibit A:
services provided by Company [Turnout] to Client [the Campaign]: collect 2,000 signatures from Democratic voters registered to vote in each of Colorado's seven congressional districts by March 7, 2018 to meet the requirement that the completed petitions must be filed no later than the third Tuesday in March (20th) of the general election year.
(Id. at 5.) These provisions are mandatory, not permissive. Turnout agreed to collect 2,000 signatures per district by a certain date; it didn't promise it would try to do so. No reasonable speaker of modern standard English would understand these representations as mere promises to try to collect signatures. Turnout unambiguously promised it would collect 14,000 signatures by March 7, 2018.
Turnout's argument to the contrary rests entirely on the word "goal" in the second-to-last section of Exhibit A, which concerns the project's budget: "With the goal of collecting 14,000 signatures, our total fee will be $155,000." (Id. at 6 (emphasis added).) Turnout argues that "goal" is aspirational at best. And because the meaning of goal is unclear, the Agreement is ambiguous. Turnout argues that extrinsic evidence is needed to resolve the ambiguity, and that that extrinsic evidence commands that the Agreement couldn't have been breached by a mere failure to collect 14,000 signatures.
Turnout's point that the word goal is aspirational and, by itself, may be ambiguous, is well taken. But the word is not by itself; it is in the context of the rest of the Agreement's text, and that text as a whole is clear. A contract is ambiguous only when it is reasonably susceptible to more than one legal meaning. Denver Classroom Tchrs. Ass'n , 433 P.3d at 41. A mere disagreement, however, isn't enough to create two or more reasonable meanings. May v. United States (In re Water Rights of May) , 756 P.2d 362, 369 (Colo. 1988). This means that, as long as the contract can be given a definite meaning under traditional principles of contract interpretation, it isn't ambiguous. Id. Here, the only reasonable reading of the word "goal" is in context with the mandatory language found elsewhere in the Agreement. Bledsoe Land Co. LLLP v. Forest Oil Corp. , 277 P.3d 838, 846 (Colo. App. 2011) ("Contract language must be examined and construed in harmony with the plain and generally accepted meaning of the words used, and reference must be made to all the agreement's provisions." (internal quotation marks omitted)). Read that way, goal means "the end or final purpose; the end to which a design tends or which a person aims to reach or accomplish." Webster's New Twentieth Century Dictionary 782 (2d ed. 1975). In other words, the best reading of the budget provision is merely a restatement of the purpose of the Agreement—to collect the requisite number of signatures in exchange for a sum of money. Because the Agreement is unambiguous, the Court won't consider the extrinsic evidence upon which Defendants rest their argument.
Having established the meaning of the Agreement, the parties’ stipulation that Turnout failed to collect the number of signatures required by the Agreement establishes breach as a matter of law. But the Campaign isn't entitled to full entry of judgment in its favor on its contract claim. While it has demonstrated no dispute of material fact that a contract existed, that it performed its obligations under the contract, and that Turnout failed to perform, the Campaign hasn't shown the lack of a dispute of material fact exists as to the amount of damages it suffered as a result of Turnout's breach. It must therefore establish its damages, if any, at trial. Defendants argue that the damages sought by the Campaign are not recoverable as contract damages. Plaintiffs apparently seek three categories of contract damages: (1) the amounts donated to the Campaign by third parties; (2) the amounts the Campaign spent in attorneys’ fees litigating the Colorado Secretary of State's decision to not certify Mr. Levin for the ballot; and (3) the personal contributions Mr. Levin made to the Campaign.
Defendants also argue that it was the Campaign's fault that insufficient signatures were collected—namely because of the Campaign's poor administration and failures to take advantage of opportunities. But the Campaign's actions don't change the meaning of the Agreement, which imposed a mandatory obligation on Turnout to collect signatures, not on the Campaign. Nor would Defendants have any success arguing that the Campaign's behavior relieved Defendants from their contractual obligations. If Defendants wanted to condition their obligation to collect signatures on the Campaign's proficiency at campaigning, the Defendants should have included that in the Agreement.
It is not entirely clear if these are the sum-total damages Plaintiffs seek. They are the three categories of damages that Defendants challenge, but Plaintiffs haven't made clear whether they will seek to establish other damages at trial.
Defendants ask the Court to determine as a matter of law that Plaintiffs are not entitled to seek these damages under the contract. As for third-party contributions, Defendants argue that Plaintiffs lack standing to seek monies contributed by third parties because the Plaintiffs did not themselves expend these funds. And as for attorneys fees and Mr. Levin's personal contributions, Defendants argue that these damages weren't foreseeable.
The Court agrees that the third-party contributions aren't recoverable. Third-party contributions are, by definition, not sums lost by the Campaign, or monies required to place the Campaign in the same position it "would have occupied had the breach not occurred." Pomeranz v. McDonald's Corp. , 843 P.2d 1378, 1381 (Colo. 1993). To the extent they are damages, they are damages suffered by the contributors, not the Campaign. This is true, too, for Mr. Levin's own contributions, which are ultimately third-party contributions. If Mr. Levin was a party to the contract, they might be recoverable. But he is not, so they are not.
The attorneys’ fees expended by the Campaign, however, might be recoverable for the remaining tort claims. Lawry v. Palm , 192 P.3d 550, 568 (Colo. App. 2008) (attorneys’ fees can be recovered as damages if they "are part of the substance of a lawsuit and are sought as a legitimate consequence of the tort"). Plaintiffs have at least a colorable argument that Defendants’ allegedly tortious conduct required them to litigate the Secretary of State's decision, and that this was a foreseeable consequence of Defendants’ failure to collect the requisite number of signatures. These fees are not, however, recoverable for the claim for breach of contract. Attorneys’ fees are considered special damages in a breach-of-contract action, and thus must be pleaded as such under Federal Rule of Civil Procedure 9(g). And while Plaintiffs’ complaint requests fees in its general prayer for relief, (Doc. 5 at 19), that is not sufficient under Rule 9. Lawry , 192 P.3d at 569 ("A complaint's request for attorney fees in a general prayer for relief does not plead special damages." (collecting state and federal cases)).
Still, summary judgment isn't proper on this basis. The Campaign has adduced evidence of other damages—for example, the fee it paid Turnout for petition collecting—sufficient to create a triable issue.
CONCLUSION
It is ORDERED that:
The individual Defendants’ motion for summary judgment (Doc. 57) is DENIED;
The Campaign's motion for partial summary judgment on its contract claim (Doc. 58) is GRANTED IN PART AS TO BREACH AND DENIED IN PART AS TO DAMAGES;
The Defendants’ motion for partial summary judgment on Plaintiffs’ tort and detrimental reliance claims (Doc. 59) is GRANTED IN PART AS TO NEGLIGENCE, POST-CONTRACTUAL MISREPRESENTATION CLAIMS, AND DETRIMENTAL RELIANCE, AND DENIED IN PART AS TO THE REMAINING TORT CLAIMS; and
The Defendants’ motion for partial summary judgment on the contract claim (Doc. 60) is GRANTED IN PART AS TO CAMPAIGN-CONTRIBUTION DAMAGES AND DENIED IN PART AS TO BREACH AND REMAINING DAMAGES.