Contracts form the core of most business relationships in Colorado. Whether the contract covers goods, services, rent, employment or virtually any other facet of business, the parties to the agreement are expected to hold up their end of the bargain. When a party fails to perform their contractual obligations, a breach of contract lawsuit may be on the horizon. 

Elements of a Breach of Contract Claim 

Under Colorado law, the plaintiff (i.e. the party asserting the breach of contract claim) must be able to prove all four of these elements:
 

1. A valid contract exists between the plaintiff and defendant 

1. The plaintiff substantially performed their own duties under the contract (or was justified in not doing so) 

1. The defendant failed to perform their duties as required by the contract 

1. The defendant’s breach of the contract caused damages to the plaintiff 

Every breach of contract case is different, with different disputes over any or all of the foregoing elements.  

There may be disputes over the first element—the mere existence of a valid contract—because the contract was not signed or not in writing (though this does not invalidate every contract). Likewise, some aspect of a written contract may invalidate the entire agreement.  

Disputes over “who breached first” or if a party breached the contract at all are also common. Similarly, causation of damages—and whether the plaintiff took steps to reduce or mitigate damages—are also often contested issues. 

Moreover, disputes may arise concerning a defendant’s affirmative defenses to a breach of contract claim. Such defenses may be complete or partial defenses. Common arguments include the expiration of a statute of limitations, waiver of a contract term, or the impossibility of performance. 

Successfully proving or disproving each element of a breach of contract case or an affirmative defense requires skilled presentation of evidence. 

What Are the Possible Remedies in a Breach of Contract Case? 

Every contract case is highly fact-specific. The outcome of one case may be different from the outcome of another case even if the two cases appear similar. Many factors go into determining the result, including the history of the parties’ relationship, the type of contract, and numerous other variables. Depending on the facts of your case, there are several possible ways the case could turn out: 

• Contract damages: The non-breaching party could receive a monetary amount designed to make them whole (i.e. put them in a position as if the breach had never occurred).  
• Specific performance: The court orders the breaching party to perform a specific part of the contract, such as delivering an item or real estate promised to the plaintiff. 
• Recission: The court renders the contract null and void and may enter orders returning the parties to their pre-contractual position to the extent possible. 

• Reformation: The court rewrites parts of the contract and the parties must perform under this “reformed” document. 

Who Pays Attorney Fees in a Breach of Contract Case? 

Colorado follows the “American Rule” for attorney fees, which requires each party to pay their own attorney fees, win or lose, unless: 

• The contract contains a fee-shifting provision specifying when one party is required to pay the other’s attorney fees 
• A statute allows for an award of attorney fees to the prevailing party 

• The lawsuit or a defense was frivolous or wholly without merit 

Get Advice From a Seasoned Denver Business Litigation Attorney 

Keating Wagner Polidori Free is recognized for its work representing both plaintiffs and defendants in high-stakes breach of contract cases. Our attorneys will work hard to protect your contractual rights and defend you against spurious claims. Call our Denver office at 303-534-0401 or send us a message to arrange a consultation.