Expertise

Commercial litigation arises out of transactions between two or more businesses. Disputes are generally over money or property but can be about getting an injunction for reasons such as unfair competition. Major personal transactions can also fall within the ambit of “commercial,” when, for example, there are significant property disputes in a divorce, a bankruptcy, a family business, a probate matter, a large real estate transaction, or the construction of a home or commercial space. Our law firm has experience in both bringing and defending against commercial litigation claims.

Breach of Contract and Disputes: Disputes can arise in any facet of your business, including those involving customers and employees, banks/lenders, transactions and agreements concerning real estate, leases and transactions to provide goods or services. Well-drafted contracts usually serve their purpose. Sometimes, however, disputes will arise. Disagreements can be resolved out of court and through negotiation (we often accomplish resolution this way), but some require litigation, arbitration, mediation or, at least, legal advice about how litigation might fit into an overall resolution framework. Often, parties disagree about the performance of a party or just about what the contract means. We have tried, litigated and resolved many contract interpretation disagreements. An important thing to remember in Colorado is that every contract has an implied duty of “good faith and fair dealing.” This means that a party that exercises some discretion with the contract terms must not overreach. These types of cases can arise where there is a simple contract or in HOA disputes, where a court will use this implied duty to cure bad acting.

Business Torts, Fraud, and Deceptive Trade Practices: Business torts (or wrongs) include misrepresentations and fraud. Contracts can be fraudulently obtained, overreaching or unconscionable. Fraud can be intentional or simply negligent. A misrepresentation can be on purpose or by mistake/negligence. All are actionable. There are statutory claims for deceptive trade practices, including under Colorado’s Consumer Protection Act and the Federal Interstate Lands Sales Full Disclosure Act (for deceptive real estate sales). These types of cases often arise where money and wealth are targeted by unethical or plain dishonest people.

Breach of Trust: Positions of trust or “fiduciary duty” include corporate officers, directors and major shareholders, limited liability company members/managers, agents (including types of real estate brokers), trustees, joint ventures, estate administrators, and partners in a business. They can and do breach their “fiduciary duties.” A shareholder, partner, LLC member, trust beneficiary, and others can recover damages or injunctive relief for these breaches. These are duties inherent in the relationship rather than a contract; although one often sees breaches of both in a business situation gone sour.

Collection of Debt: Breaches and failure to perform under agreements such as promissory notes, guaranty agreements, and mortgages/deeds of trust often create debt owed from one party to another. Court judgments can also create debt, which are subject to specific rules to collect.

Tortious Interference with Contract/Anti Trust: Interference with a contract is actionable conduct by an outside or third party that is not fair competition. It is not uncommon to see someone actively interfering with your contract. If the third party impedes or prevents contractual formation or performance, a tortious interference claim is often a powerful tool to stop the interference and obtain damages. A “cousin” of this tort is interference with “prospective business advantage,” which again is anti-competitive or just unfair behavior. We can tell the difference and often advise on and prosecute these claims. There are federal antitrust laws that have been enacted to protect competitive behavior, protect consumers and outlaw bid-rigging, price-fixing and monopolistic practices. Colorado has very similar antitrust laws that can be powerful tools often overlooked by lawyers. Colorado also has its own version of the federal RICO laws. These outlaw and prohibit enterprises that break various laws and come with private civil rights to sue and collect damages.

Contract formation is when parties decide whether disputes will go to court or arbitration and whether mediation is required in the agreement. There are pros and cons with both arbitration and litigation. We counsel, advise and draft appropriate dispute resolution procedures at this stage. Mediation and arbitration are frequently termed “Alternative Dispute Resolution” or by the acronym “ADR,” meaning they are alternatives to a public court. There are many factors that come into play in such a decision: expense, right of appeal, speed of resolution, right to jury, qualifications of judges versus arbitrators, and privacy. In many types of contracts and industries arbitration is standard. Often banks or construction firms will require mediation in contracts that are not very negotiable. The lion’s share of securities agreements require arbitration.

Mediation: Mediation is a non-binding procedure. Courts almost always require mediation as part of pre-trial procedure. The parties can also arrange it on their initiative. Some construction and real estate contracts require parties to mediate before any type of legal action is started—the theory being that an early settlement should be tried before money is spent on lawyers in court. At a mediation, the two (or more sides) work with a mutually selected mediator to attempt to reach a resolution. It is often a good place in a case to see if the case can be settled. The adage is that a good mediated settlement is where both sides are equally pleased and displeased. We play a critical part in the mediation process.

Arbitration: Arbitration is litigation outside a court. It is binding – meaning one party wins and one loses. There is no appeal. A trial is a called “hearing,” and the judge or jury is a private and paid “arbitrator” assigned to your dispute by the terms of a contract. An arbitrator or panel of arbitrators hears both parties’ cases; the process can be simple or just as complicated and involved as any major lawsuit. The arbitrator’s decision is called an “award.” The award can then be enforced in a court by federal or state law. The skills and experience gained and used in trial are the same as those necessary in arbitration. We are very experienced in arbitrations.

Trial courts make wrong decisions or things can go wrong. We like to say that all those law books are full of judges’ mistakes. This is how the common law and decisional law are developed. Trial court decisions go to a middle appellate court. For example, when a trial court in Pitkin, Eagle, Garfield or Denver County renders a decision a party thinks is wrong, the party can appeal the decision to the Colorado Court of Appeals. If the intermediary court makes a mistake in your view, you can ask for permission (seek certiorari) before a state supreme court or even the United States Supreme Court. This is where important law is developed, although it is rare in terms of the odds of a case going to these highest courts. Cases in appellate courts are briefed and then argued to a panel of judges or justices. We are experienced with the necessary analyses that must go into a successful appeal and the appellate process itself.

The Roaring Fork and Vail Valley economies are based heavily in real estate, real estate development and construction. We have some of the most unique real estate in the world. Our markets are “lively” and often complex. As a result, all types of conflicts arise. Real estate and construction cases—and clients—arise in our mountain communities and resort economies. The size and complexity of these disputes cover the entire spectrum. We are always engaged in one or more real estate or construction law cases at any given time.

We represent contractor, property owners and managers, developers, lenders, homeowners associations, sub-contractors, engineers, architects, designers and the litany of others involved in acquisition, development, entitlements/land use, design and construction. We have handled numerous construction defect claims, mechanics liens, delay claims, insurance claims, issues involving high-value homes, contract negotiations and disputes. We also advise on the negotiation of construction agreements, owner-architect contracts and subcontracts, as well as enforcing remedies available under Colorado’s construction defect and construction lien laws.

Civil litigation is all of the above. It means not criminal law. Civil cases often cross paths with the criminal system and we thus know prosecutors, defense lawyers and law enforcement people. We can and do work together when a civil case crosses over and vice versa.

The bottom line is this: Matt brought his New York City work ethic and intense training to a law practice in a small, but very sophisticated place. The Aspen and Vail-area communities are unique in the world. Our mountains and rivers have formed dynamic communities. Technology, transportation systems and communications have all caused a seismic shift in how we work and live. While we have evolved into the best year-round resorts and economies, it is also now possible and common to see people moving here to live full time and pursue their businesses, careers and professions. This influx is helping to sustain old ways and create new ways of living and the sensible expansion of communities like Aspen, Basalt, Carbondale, Glenwood Springs/New Castle/Silt/Rifle, Avon/Edwards/Eagle and Vail. Technology also allows our firm and attorneys located in the Roaring Fork and Vail valleys to easily practice in three intermediate counties — Pitkin, Eagle and Garfield. We also stay connected the old-fashioned way, as the I-70 corridor connects us with the Grand Valley, Eagle Valley, Vail, and on down to Denver.

While we handle many large and sophisticated cases, we are not too big to help solve some small-town problems. We have helped our neighbors with residential lease disputes and car accidents. And we are comfortable in the courtroom, so we can take it to the mat when necessary. Stop by our office. If we are not the right firm to handle your problem, chances are, we know who is and can point you in the right direction.