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March 20, 2026 Get Citation Alerts Download PDF Add Note

Joav Kohn v. Rieder Noram, Inc., d/b/a Rieder North America; Paul Inge Custom Builders, LLC

District Court, D. Colorado

• Citations: None known
• Docket Number: 1:23-cv-01830

• Precedential Status: Unknown Status

• Opinion

• Authorities (24)

• Cited By (0)

• Summaries (0)

• Similar Cases (2.4K)

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Trial Court Document

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 23-cv-01830-CYC

JOAV KOHN,

Plaintiff/Counter-Defendant,

v.

RIEDER NORAM, INC., d/b/a

RIEDER NORTH AMERICA,

Defendant & Counter-Defendant/

Counter & Cross-Claimant,

v.

PAUL INGE CUSTOM BUILDERS, LLC,

Cross-Claim Defendant/Counter-Claimant.

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           MEMORANDUM OPINION AND ORDER                             

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Cyrus Y. Chung, United States Magistrate Judge.

This case arises from a dispute between, on one side, a homeowner, Joav Kohn, and his
general contractor, Paul Inge Custom Builders, LLC (“Inge”), and on the other, a subcontractor,
Rieder Noram, Inc. (“Rieder”). Because Kohn and Inge assert identical claims against Rieder and
none against each other, this opinion refers to them collectively as “plaintiffs.” The parties have
filed cross-motions for summary judgment, ECF Nos. 91, 93, and the plaintiffs have moved to
exclude or strike the testimony of Rieder’s expert, ECF No. 113.

Because Inge has suffered no damages from Rieder’s actions, summary judgment is
granted on its counterclaims against Rieder. Because Kohn has standing to sue on the contract
between Inge and Rieder on agency grounds and because disputed issues of material fact exist as
to his fraudulent-concealment claim, summary judgment is denied as to Kohn’s claims. Because
disputed issues of material fact exist as to Rieder’s claim that the plaintiffs breached their
contractual obligations, summary judgment as to that claim is denied. But because Rieder has not
supported its alleged storage-fee damages with competent evidence, summary judgment is
granted as to those damages only. Finally, regarding the topics of testimony by Rieder’s expert

not mooted by these summary-judgment rulings, they do not constitute impermissible legal
conclusions or rely on categorically false premises and, as such, the motion to exclude them is
denied.

SUMMARY JUDGMENT STANDARDS

The “[c]ross-motions for summary judgment” in this case “are treated as two individual
motions for summary judgment and held to the same standard.” Banner Bank v. First Am. Title
Ins. Co., 916 F.3d 1323, 1326 (10th Cir. 2019). A district court “shall grant summary judgment if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247–48 (1986). “A fact is material if under the substantive law it is essential
to the proper disposition of the claim.” Wright ex rel. Tr. Co. of Kan. v. Abbott Lab’ys, Inc., [259

F.3d 1226](https://www.courtlistener.com/opinion/161417/wright-ex-rel-trust-co-v-abbott-laboratories-inc/), 1231–32 (10th Cir. 2001) (quotation marks omitted). “Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Anderson, 477 U.S. at 248. The dispute is genuine “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Id. “The moving party has
both the initial burden of production on a motion for summary judgment and the burden of
establishing that summary judgment is appropriate as a matter of law.” Kannady v. City of
Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (quotation marks omitted).

If the moving party satisfies its initial burden, the non-moving party “may not rest on its
pleadings but must bring forward specific facts showing a genuine issue for trial as to those
dispositive matters for which it carries the burden of proof.” Id. (quotation marks omitted). The
specific “facts must be identified by reference to affidavits, deposition transcripts, or specific
exhibits incorporated therein.” Libertarian Party of N.M. v. Herrera, 506 F.3d 1303, 1309 (10th
Cir. 2007). Affidavits and testimony “must be based upon personal knowledge and set forth facts

that would be admissible in evidence; conclusory and self-serving affidavits are not sufficient.”
Tucker v. Faith Bible Chapel Int’l, 36 F.4th 1021, 1030–31 (10th Cir. 2022) (quotation marks
omitted). “The court views the record and draws all favorable inferences in the light most
favorable to the non-moving party.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).

BACKGROUND

The following facts are undisputed and identified by reference to “particular parts of
materials in the record.” Fed. R. Civ. P. 56(c)(1)(A).

In May 2020, Kohn hired Inge to build him a custom home (“the Project”) in Salida,
Colorado. ECF No. 91-2. Notwithstanding Inge’s general-contractor status, it obtained Kohn’s
approval before selecting a subcontractor or making a Project payment. ECF No. 96-2 at 51:18–

52: 2, 56:1–9, 21–25, 57:1–2. 1 When Kohn decided to use Rieder’s concrete panel siding for the
Project, ECF No. 96-2 at 41:22–43: 13, Inge contacted Rieder to solicit a bid at Kohn’s behest,
explaining it was working with the homeowner. ECF No. 91-8 at 3; ECF No. 94-18 ¶ 3.

On February 8, 2021, Rieder submitted a quote of $102,000 to Inge for the “Kohn
Residence.” ECF No. 91-11 at 5–8. The quote stated that Rieder would store materials for free
for up to 30 days, though it did not specify how storage fees thereafter would be calculated. Id. at
7. Inge emailed the quote to Kohn and asked for authorization to sign it, which Kohn granted.

1 References to deposition transcripts are to the transcript’s page number.
ECF No. 91-12 at 2. Inge then signed the quote and paid Rieder an initial $31,000 deposit, ECF
No. 91-16, and, later, an additional $52,070 material deposit, comprising its only payments to
Rieder on this case. ECF No. 91-17.

Much of the instant conflict revolves around an obligation in the quote for Rieder to

provide stamped shop drawings, ECF No. 91-11 at 5–7, which are schematics reviewed by an
independent engineer that detail how a design element will be installed on a construction project
consistent with the architectural plans. See ECF No. 96-6 at 47–48; ECF No. 94-1 at 68:14–25.
The quote specified further that “field dimensions will need to be supplied to create production
drawings and fabricate panels.” ECF No. 91-11 at 6.

On May 3, 2021, Rieder delivered its first shop drawings to Inge and to Kohn’s architect.
ECF No. 94-13. Some two months later, the architect sent Rieder revised plans and returned the
shop drawings to Rieder for corresponding changes. ECF No. 94-14. They, along with Inge, later
agreed to wait on resubmitting shop drawings until they received new field dimensions after
window units in the Project were installed, an event that, at the time, was thought to be a couple

of months away. ECF No. 94-15 at 2. It took longer; in the end, Inge sent Rieder the new field
dimensions in April 2022. ECF No. 94-17. Before he did, Inge asked Rieder—on behalf of Kohn
and the architect—if it would send someone to take the field dimensions since Rieder had the
best understanding of what was needed for its product. ECF No. 94-16 at 2. Rieder declined. Id.
In May and June, Inge repeatedly asked Rieder about the timeline for revised shop
drawings and panel production. See ECF No. 95-2. Rieder forecasted that it would have revised
shop drawings by June 20, with production and shipping to follow shortly thereafter. See id. But
internally, a Rieder employee indicated that Rieder was missing deadlines for which it was
“stalling and buying time” and “getting a lot of pressure now.” ECF No. 96-9. To alleviate that
pressure, she outsourced the shop-drawings revision to an independent contractor, Accurate
Builds (“Accurate”), owned by Mike Ogden. Id.

Accurate uses a laser scanning system to obtain field dimensions. ECF No. 95-4 at
56:9–16. On June 8, Rieder sent Ogden tape-measured field dimensions Inge had provided for

the Project; Ogden indicated that he would scan the Project in the next few days. ECF No. 95-3.
Neither Ogden’s involvement nor the use of laser scans was conveyed to the plaintiffs at the
time. ECF No. 106 ¶ 42; ECF No. 96-2 at 90:21–91:3, 122:9–123:13; ECF No. 95-8 at 6.
After Ogden scanned the Project, he emailed Inge with a list of questions relating to the
cutting of the panels. ECF No. 103-13. An Inge foreman responded on July 5 and requested a
meeting. ECF No. 106-1 at 5–6. Accurate, Inge, and the architect met the next day. Id. at 2–4.
Afterwards, an Accurate employee promised to send “a final set of drawings” for review before
proceeding to fabrication. Id. at 3.

Some two weeks later, Kohn’s architect emailed Rieder, asserting that he had answered
all of Ogden’s questions and questioning when Rieder would produce the final shop drawings.

ECF No. 106-2 at 3. Rieder, in turn, asked Accurate to confirm that it had received the answers it
needed, and Accurate so confirmed. Id. at 1–2. Two weeks after that, the architect thanked
Accurate for providing revised shop drawings. ECF No. 106-3 at 3. Ogden emailed Inge, Kohn,
the architect, and Rieder, asking whether Rieder could proceed to fabricating the panels, but
Kohn protested that a number of unresolved issues stood in the way, including a lack of shop
drawings for the Project’s detached garage. Id. at 1–2.

Over the next six weeks, Inge, Kohn, the architect, Rieder, and Accurate continued to
discuss the shop drawings. See ECF Nos. 94-19, 102-3, 103-11, 103-12, 103-14. Inge sent Ogden
photos and field dimensions for the garage, ECF Nos. 103-11, 103-12, Ogden performed
additional scans, ECF No. 95-4 at 108:5–9, and on September 8, Rieder requested the latest
architectural drawings, which the architect provided the next day. ECF No. 94-19.

Six days later, Kohn asked Rieder for an update on the shop drawings, and Rieder
indicated that it would fully review the latest drawings by Friday. ECF No. 95-6 at 4–5. That

apparently did not happen. The following Monday, Kohn asked again for an update and, when
Rieder indicated that it needed more time, Kohn demanded a call the next morning to coordinate
a refund. Id. at 2–4.

No refund came. Instead, Kohn, Accurate, and a Rieder executive, J.R. Hughes, met on
September 21, 2022 to try to salvage their work together on the Project. ECF No. 109 ¶ 16; ECF
No. 95-7. There, the parties agreed that Ogden would do a final scan after Inge completed
additional construction. ECF No. 109 ¶ 18; ECF No. 91-19. Accurate would then revise the shop
drawings using the field dimensions obtained from the final scan. ECF No. 91-19. At the
meeting, no one mentioned billing Kohn for Accurate’s services. ECF No. 106 ¶ 47.

Nevertheless, Rieder did so. Although the parties talked about Ogden’s final scan, see

ECF Nos. 103-16, 101-14, 96-7, it never came to pass. When Inge reached out to Rieder about
difficulties getting the final scan done, ECF No. 91-18 at 3, Rieder responded that while Ogden’s
initial scan was free, subsequent scans and work to “adjust shop drawings for the scan data”
would be billed and would have to be paid prior to the final scan. Id. at 2–3. A subsequent
estimate from Rieder billed $23,990 for four “separate field scans” — three already completed
and one still outstanding — and an additional $5,000 for “updates and revisions to shop drawings
to accommodate field dimensions from scan,” for a total of $28,990. ECF No. 91-18 at 4. Rieder
reiterated that the final scan would occur after it received payment. Id. at 2. Inge expressed
surprise and requested to speak with a senior Rieder representative, id. at 6, to no avail.

Although this was the first time the plaintiffs received Ogden’s bills, Rieder had known
of them for some time. In September 2022, Ogden had billed Rieder for $15,000, elaborating that
it was “accurate and payable,” but that Rieder could pay it over time as it got paid for other jobs.
ECF No. 102-2 at 2–3. A month later, Ogden told Rieder to void the invoice and submitted a

new project proposal for $18,550, representing “$11,050 for all previous work” and “$7,500 for
final scan once finished.” ECF No. 109-4 at 2-3. Subsequent correspondence indicated Ogden’s
belief that Rieder was conveying his bills to the plaintiffs. Id. at 2; ECF No. 102-6 at 2.
But given the new nature of Ogden’s bills to the plaintiffs, Kohn emailed Rieder on
March 20, 2023, expressing his dissatisfaction and demanding “a written response . . . detailing
how [Rieder] intends to fulfill its obligation.” ECF No. 95-11 at 2–3. Two days later, Hughes
responded that the house was still not ready, and said that when it was, Inge should send photos
to Accurate to “trigger the final building scan.” ECF No. 96-1 at 2. Hughes did not mention the
estimate. On March 30, Kohn sent a letter to Rieder through counsel terminating the contract.
ECF No. 96-4 at 4–7.

Kohn then filed this action on July 19, 2023. ECF No. 1. Rieder answered the complaint
and asserted counterclaims against Kohn and cross-claims against Inge. ECF No. 11. The parties
consented to the jurisdiction of a magistrate judge, ECF No. 12, and then-Chief Magistrate Judge
Michael E. Hegarty granted a motion to amend. ECF No. 72.

In the Amended Complaint, Kohn asserts six claims, three of which he continues to
pursue, ECF No. 100 at 2 n.1: (1) breach of contract (Count One), ECF No. 73 ¶¶ 66–71; (2)
unjust enrichment (Count Two), id. ¶¶ 72–76; and (3) fraudulent concealment (Count Six), id.
¶¶ 93–136. The last of these is titled “fraud,” but treated by the parties as fraudulent
concealment. See id.; Rocky Mtn. Expl., Inc. v. Davis Graham & Stubbs LLP, 420 P.3d 223 (Colo. 2018); ECF No. 91 at 13. Inge asserts the same claims. See ECF No. 74 ¶¶ 64–133; ECF
No. 100 at 2 n.1. The first two claims are rooted in Rieder’s alleged failure to deliver concrete
panel siding for the Project; the last claim is based on Rieder persuading Kohn not to seek a
refund and to continue with the Project while allegedly concealing that it was going to charge

Kohn for Accurate’s services.

For its part, Rieder asserts claims of (1) breach of contract against Inge, ECF No. 11
¶¶ 18–22; (2) breach of contract against Kohn, id. ¶¶ 23–27; and (3) promissory estoppel against
both plaintiffs, id. ¶¶ 28–33. Its claims are anchored in Inge’s alleged failure to provide accurate
field dimensions and complete aspects of the Project in a timely manner to allow Rieder to do its
part.

These motions followed. ECF Nos. 91, 93, 113.

ANALYSIS

I. Inge’s Claims

Rieder first moves for summary judgment on all of Inge’s claims, arguing that Inge has
suffered no loss at Rieder’s hands and therefore cannot maintain a claim against it. ECF No. 91

at 2. Rieder is correct.

“To establish a claim for breach of contract, a party must prove the existence of a
contract, its relevant terms, breach, and damages.” Purco Fleet Servs., Inc. v. Koenig, 240 P.3d
435, 438 (Colo. App. 2010). “Summary judgment rejecting a breach of contract claim is proper
where the party claiming breach cannot prove its damages arising therefrom.” Id. Likewise,
damages resulting from the defendant’s actions is a necessary element of fraud. See Vinton v.
Virzi, 269 P.3d 1242, 1247 (Colo. 2012).

Inge has no damages stemming from Rieder’s alleged breach and fraud. Deposition
testimony showed that Kohn made Inge whole for the full amount that it paid to Rieder and for
the cost of securing replacement performance. ECF No. 91-7 at 59:2–60:5. Nor does Inge claim
any damages “for the delay to the construction of Mr. Kohn’s house.” Id. at 60:6–16.
The plaintiffs do not contend otherwise. Instead, they argue that the collateral source rule
keeps Inge’s claims alive. ECF No. 100 at 5-7. Under that rule, any “third-party benefits or gifts

obtained by [an] injured plaintiff accrue solely to the plaintiff’s benefit and are not deducted
from the amount of the tortfeasor’s liability.” Volunteers of Am. Colo. Branch v. Gardenswartz, 242 P.3d 1080, 1083 (Colo. 2010) (en banc). It applies to contract claims as well as torts. See
Tech. Comput. Servs., Inc. v. Buckley, 844 P.2d 1249, 1253–55 (Colo. App. 1992). The rule’s
policy rationale is that an injured plaintiff should not be denied “compensation to which he is
entitled by virtue of a contract that either he, or someone on his behalf, entered into and paid for
with the expectation of receiving the consequent benefits at some point in the future.” Volunteers, 242 P.3d at 1088 (internal citations omitted).

But here, Kohn did not pay Inge a benefit to be realized in the future. Instead, he paid
fees for Inge’s general-contractor services. Such fees fall outside of the collateral source rule’s

ambit. See, e.g., Amtel Corp. v. St. Paul Fire & Marine Ins. Co., 430 F. Supp. 2d 984, 986-87 (N.D. Cal. 2006) (holding that plaintiff could not invoke the collateral source rule to recover
monies that third-party insurance company paid to defend and indemnify plaintiff in another
lawsuit because the payments were not “for any ‘injuries’ suffered by [plaintiff] as a result of
[defendant’s] actions”). The rule requires that “the payment would not have been made ‘but for’
the injury caused by the tortfeasor” or breaching party, id. at 987, and here, Kohn did not
compensate Inge for injuries caused by Rieder but instead did so pursuant to his obligations
under their fee-for-service contract. See ECF No. 91-2 at 4. In other words, Kohn could not have
withheld his payments “but for” the injuries caused by Rieder. Amtel Corp., 430 F. Supp. 2d at
987. The collateral source rule, then, does not extend to this case.

Accordingly, summary judgment is granted on Inge’s claims.

II. Kohn’s Claims

Rieder also moves for summary judgment on all of Kohn’s claims except for unjust

enrichment, advancing two arguments. First, Rieder contends that Inge, not Kohn, was party to
Rieder’s quote, meaning that Kohn cannot bring a breach of contract claim. ECF No. 91 at 4–8.
Second, Rieder argues that there is a lack of evidence on the fraudulent concealment claim that
could show its concealment of an intent to charge for Ogden’s scans at the time of the September
21, 2022 meeting. Id. at 13–17. These arguments fail.

A. Breach of Contract

Kohn argues that he can enforce the contract because Inge acted as his agent. “A person
who contracts with an agent acting with authority for a disclosed or partially disclosed principal
is liable to the principal as if he or she had contracted directly with the principal, unless the
principal is excluded by the contract.” Filho v. Rodriguez, 36 P.3d 199, 200 (Colo. App. 2001).

Thus, “[a] contract not under seal, made in the name of an agent as ostensible principal, may be
sued on by the real principal at the latter’s election.” Rocky Mtn. Expl., 420 P.3d at 230 (internal
citation and quotation marks omitted). “The same rule applies in cases in which the principal is
not disclosed, unless the principal’s existence is fraudulently concealed or unless there is a setoff
or similar defense against the agent.” Filho, 36 P.3d at 200.

An agency relationship arises from the “manifestation of consent by one person to
another that the other shall act on his behalf and subject to his control, and consent by the other
so to act.” Id. (internal quotation marks and citations omitted). “[T]he most important factor”
when determining whether an agency relationship exists is whether the principal has “the right to
control” the actions of the agent. Moses v. Diocese of Colo., 863 P.2d 310, 324 (Colo. 1993); see
Farmers Life Ins. Co. v. Ignacio State Bank, 272 P. 1116, 1117 (Colo. 1928). Agency is ordinarily
a question of fact, but a court may decide the issue as a matter of law where the facts are not in
dispute. See Moses, 863 P.2d at 324.

Here, Kohn had “the right to control” Inge’s actions with respect to the Project generally
and the contract with Rieder specifically, demonstrating an agency relationship. Id. at 324. To
begin, Inge’s solicitation of a bid from Rieder came at Kohn’s behest. ECF No. 91-8. Then, Inge
expressly requested and received Kohn’s approval before signing the quote and paying the
deposit, ECF 91-12, and Kohn gave uncontradicted testimony that he reviewed all subcontractor
and vendor agreements before Inge signed them. ECF No. 96-2 at 56:1–9. There is no genuine
dispute of material fact, then, that Inge had a duty to obey Kohn’s instructions and could not
have entered into the Rieder contract without his approval.

Kohn may therefore enforce the contract notwithstanding Inge having signed it. This does
not depend on Rieder’s awareness of the agency relationship, given the lack of evidence that

Inge fraudulently concealed Kohn’s existence. Filho, 36 P.3d at 200. In all events, Rieder can
hardly claim unfair surprise. After all, Inge advised at the outset that he was working with the
homeowner, the initial quote and every subsequent document was marked for the “Kohn
residence” and, after Kohn demanded his money back, Hughes met with him personally, without
Inge, to try to resolve the issue.

Rieder protests. The Kohn-Inge contract sets out aspects of the Project for which Inge
bore no responsibility, it says, and such specifications would be superfluous if Inge were truly
Kohn’s agent. ECF No. 108 at 3. But parties in an agency relationship regularly delineate the
scope of the agent’s duties and authority. See, e.g., Restatement (Third) of Agency § 1.01
(“Ordinarily, the scope of an agency relationship is defined solely by the parties to the
relationship.”). Nothing about the delineations in the Kohn-Inge contract, then, is inconsistent
with a finding of agency. Accordingly, Kohn’s breach of contract claim may proceed to trial.
Because Kohn has standing on the contract claim under agency principles, the Court need

not address the plaintiffs’ alternative theory of third-party-beneficiary standing. ECF No. 100 at
3-4. In addition, because Kohn and Rieder have a valid and enforceable contract, Kohn cannot
pursue an unjust enrichment claim. See Stone Creek Bus. Ctr. LLLP v. Stone Creek-Colo., LLC,
No. 20-cv-01413-PAB-GPG, 2022 WL 4448822, at *3 (D. Colo. Sept. 23, 2022). That claim
will therefore be dismissed.

B. Fraudulent Concealment

Rieder contends that Kohn’s fraudulent-concealment claim lacks evidence that Rieder
concealed its intent to charge for Ogden’s services in September 2022. A claim for fraudulent
concealment requires that the defendant: (1) concealed a material existing fact that in equity and
good conscience the defendant should have disclosed; (2) knowledge on the defendant’s part that
such a fact was being concealed; (3) ignorance of that fact on the plaintiff’s part; (4) the intention

that the concealment be acted upon; and (5) action on the concealment resulting in damages. See
Rocky Mtn. Expl., 420 P.3d at 234. Viewed in the light most favorable to the plaintiffs, there is
sufficient evidence of concealment to proceed to trial.

No later than September 1, for instance, weeks before the meeting in question, Ogden
sent Rieder an invoice for $15,000. ECF No. 102-2. Rieder billed the plaintiffs in March 2023
for services Accurate performed prior to that September meeting. ECF No. 91-18. And Ogden’s
communications with Rieder in September and October, when he sent a revised project proposal
for $18,550, suggested that he knew or believed that Rieder was going to try to collect from
Kohn. ECF No. 102-5 at 2; ECF No. 102-6 at 2. Such facts demonstrate a genuine question as to
whether Rieder knew that it would be passing Accurate’s costs to the plaintiffs when Hughes
persuaded Kohn not to seek a refund and continue with Rieder.

Rieder resists this conclusion. It points to deposition testimony from Hughes and its
corporate representative that Ogden agreed to perform the initial scan for free. Id. at 15 (citing

ECF No. 91-4 at 97:11–22; ECF No. 91-20 at 139:21–141:6). But none of that precludes the
possibility that by the September meeting, Rieder knew that it would be charging the plaintiffs
for Ogden’s subsequent scans, including the as-yet-performed final one. As Hughes himself
explained, scanning is a service and “[t]here’s a price to it.” ECF No. 94-1 at 162:9–16.

Accordingly, Kohn’s claim for fraudulent concealment may proceed to trial.

III. Rieder’s Claims

A. Rieder’s breach of contract claim raises genuine disputes of material fact.
The plaintiffs move for summary judgment on Rieder’s claims, arguing that there is no
evidence that they failed to provide necessary drawings or field measurements, or that the state
of the construction prevented the final scan. ECF No. 93 at 11–13. Because disputed issues of
material fact exist as to whether the plaintiffs provided Rieder with sufficiently accurate and
complete field measurements, summary judgment is denied in part.

The parties agree that, under the terms of the signed quote, the plaintiffs were required to
provide Rieder with field dimensions. ECF No. 109 ¶ 14; see also ECF No. 91-13. Although the
quote is silent on the required degree of accuracy for those dimensions and the stage of the
construction at which they needed to be provided, ECF No. 91-13, the plaintiffs’ expert agreed
that Rieder needed “accurate field dimensions to deliver accurate shop drawings.” ECF No. 103-
2 at 57:10–13.

It is undisputed that Inge provided Rieder with field dimensions for the home in April
2022, and several months later for the detached garage. See ECF Nos. 94-17, 103-11, 103-12.
Although Ogden asked Inge questions about the anticipated final dimensions, ECF No. 101-13 at
2, there is no evidence that either Rieder or Ogden communicated to the plaintiffs that the field
dimensions Inge provided were inaccurate or premature. To the contrary, on one occasion, Ogden
conveyed to Rieder that Accurate had “all of the answers” it needed to revise the shop drawings,

ECF No. 106-2 at 2, and on another, indicated his view that Rieder was ready to begin
fabricating the panels. ECF No. 106-3 at 2.

Nevertheless, viewed in the light most favorable to Rieder, the record contains evidence
from which a reasonable factfinder could conclude that Inge’s field dimensions did not fulfill the
plaintiffs’ contractual obligation. First, Inge asked Rieder if it would send someone out to take
field dimensions since Rieder had a better idea of what information it needed for its product.
ECF No. 96-16 at 2–3. Rieder declined at that time, but the request arguably conveys that Inge
was uncertain about how to fulfill the plaintiffs’ contractual duty. Id. Second, Ogden testified that
when he received Inge’s field dimensions, he determined that they “weren’t accurate enough” for
Accurate to revise the shop drawings and fabricate the panels. ECF No. 95-4 at 51:5–18.

Contrary to the plaintiffs’ claim, the record does not clearly establish that Ogden reviewed the
field dimensions only after he told Rieder that he planned to scan the Project, rather than after he
received the dimensions a few hours earlier. ECF No. 115 at 4. Third, and most importantly,
Rieder’s expert, Andrew Lonergan (“Lonergan”), identified multiple mathematical
inconsistencies in Inge’s field measurements, ECF No. 95-5 at 34–40, and testified that, based on
the documents he reviewed, Rieder never received accurate and complete as-built dimensions.
ECF No. 96-6 at 28:12–18; 73:16–78: 6; 85:16-25; 91:9-25, 92:1-22, 94:17–96:12; 96:16–21;
98:3–25; 101:1–7; 110:2–112:9. Taken together, this evidence raises genuine disputes of
material fact as to whether the purported deficiencies prevented Rieder from producing accurate
shop drawings and constituted a breach of the plaintiffs’ contractual obligation.
The plaintiffs further argue that they are entitled to summary judgment because the
undisputed evidence shows that Rieder’s demand for an additional $28,990 prevented the final

scan in March 2023, not the state of the construction. ECF No. 93 at 12–13; ECF No. 107 at 5–6.
But this argument misses the mark. Rieder’s submission of a change order did not alter plaintiffs’
obligations under the initial quote. If Inge failed to provide workable field dimensions in the first
place—a genuine dispute of material fact—a reasonable factfinder could find that the plaintiffs
breached regardless of Rieder’s subsequent actions, and therefore summary judgment on this
claim is inappropriate. John v. Momentum Volleyball Colo., 19-cv-03588-LTB-NRN, 2022 WL
22898233, at *5 (D. Colo. Jan. 26, 2022).

Rieder also brings a promissory estoppel claim, but no party disputes the existence of a
valid contract, Rieder does not argue that the promissory estoppel claim survives despite the
existence of the contract and, thus, this claim, like Kohn’s unjust enrichment claim, must be

dismissed. See Wheat Ridge Urb. Renewal Auth. v. Cornerstone Grp. XXII, L.L.C., 176 P.3d 737,
741 (Colo. 2007).

B. Rieder’s damages from storage fees are not supported by competent evidence.
The plaintiffs also argue that summary judgment must be granted with respect to Rieder’s
alleged damages from storage fees because Rieder failed to support them with competent
evidence. ECF No. 93 at 13-15. They are correct.

Where a nonmovant seeks to meet its burden at summary judgment with expert opinion,
the court must ensure that the opinion “both rests on a reliable foundation and is relevant to the
task at hand.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). Rule 702 of the
Federal Rules of Evidence guides this inquiry. Id. An opinion offered by a qualified expert is
admissible if it “will help the trier of fact to understand the evidence or to determine a fact in
issue; the testimony is based on sufficient facts or data; the testimony is the product of reliable
principles and methods; and the expert has reliably applied the principles and methods to the

facts of the case.” Fed. R. Evid. 702. It is well-established that an expert opinion “based solely
on the self-serving statement of an interested party” is inadmissible. In re HomeAdvisor, Inc.
Litig., 16-cv-01849-PAB-KLM, 2023 WL 4734718, at *10 (D. Colo. Jul. 25, 2023) (citations
omitted).

Here, Rieder has failed to establish its asserted storage-fee damages by admissible
evidence that would support a verdict in its favor. Although the contract states that the plaintiffs
will be charged for weekly storage fees after 30 days, ECF No. 91-13 at 3, the only evidence that
Rieder submits for the amount of damages from this category comes from its expert, Lonergan.
See ECF No. 96-5 at 33–34. His opinion that Rieder accrued $18,141.76 in storage fees and
associated administration costs lacks a reliable foundation. By his own admission, he calculated

this figure solely by using dates and rates supplied by Rieder’s counsel. Id. at 31 n.38; ECF No.
96-6 at 26:2–27:2; 50:4–22; 53:1–54:4. His only independent investigation was to confirm that
the contract mentioned storage fees and to subtract the service line items from the “contract
value.” Id. at 53:17–54:9. He further acknowledged that he had seen no documentation to
support Rieder’s storage-fee formula or the numbers underlying the storage administration fee
calculation even though he would “reasonably expect” such documentation to exist. Id. at 51:1–
7; see id. at 51:14–52:11; 53:1–16. Nor does Lonergan provide any explanation for accepting
Rieder’s beginning and end dates as the relevant period for assessing damages, or for calculating
the “contract value” based on the initial quote, ECF No. 91-3, rather than the subsequent quote
that Rieder used to actually order the panels, which had a higher material subtotal, ECF No. 94-7
at 2-3.

In short, Lonergan’s report and deposition provide no basis for his conclusion that
Rieder’s alleged damages are “reasonable.” ECF No. 96-6 at 51:14–15. Rieder’s only response is

that its corporate counsel swore in an affidavit attached to its brief that the storage-fee formula,
the labor hours, and labor hourly rate provided to Lonergan are correct. ECF No. 101 at 10
(citing ECF No. 101-24 ¶¶ 5-7). This is of no help. It merely underscores that Lonergan’s expert
opinion relies exclusively on “the self-serving statements of an interested party.” Mooring
Capital Fund, LLC v. Knight, 338 F. App’x 814, 822 (10th Cir. 2010) (internal citation and
quotation marks omitted). A theory of damages that is little more than arguments of counsel
cloaked in expert garb will not do.

Because Rieder does not support its storage-fee damages with any admissible evidence,
summary judgment is granted as to these damages. This ruling does not address whether Rieder
has properly disclosed or can prove any additional categories of damages. See Best Beach

Getaways, LLC v. TSYS Merch. Sols., 20-cv-01962-NRN, 2021 WL 3206300, at *11 (D. Colo.
Jul. 29, 2021) (granting summary judgment for some categories of damages but not on liability).

IV. Plaintiffs’ Amended Motion to Exclude Expert Testimony

Lastly, the plaintiffs move under Rule 702 of the Federal Rules of Evidence to exclude or
strike the testimony of Rieder’s expert, Lonergan, on three issues: (1) Rieder’s damages from
storage fees and associated costs; (2) his opinions on the existence of and duties in the
contractual relationships between the parties; and (3) his opinion that Rieder utilized laser scans
because Inge’s field measurements were deficient. See ECF No. 113 at 4–5. The first issue is
mooted by the Court’s summary-judgment ruling. The second issue is largely mooted with one
exception. With respect to that exception and the final issue, the plaintiffs miss the mark.
As discussed in Part III.B, above, expert testimony must be reliable and relevant under
Rule 702. Kumho Tire Co., 526 U.S. at 147–52; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588-89 (1993). Courts have “broad discretion to evaluate whether an expert is
helpful, qualified, and reliable” under this Rule, Pinon Sun Condo. Ass’n, Inc. v. Atain Specialty

Ins. Co., 17-cv-01595-CMA-NRN, 2020 WL 1452166, at *3 (D. Colo. Mar. 25, 2020), and
“rejection of expert testimony is the exception rather than the rule.” Fed. R. Evid. 702, Advisory
Committee’s Note. The party offering the expert opinion has the burden of establishing its
reliability and relevance. See United States v. Nacchio, 555 F.3d 1234, 1244 (10th Cir. 2009).

The Court addresses the plaintiffs’ challenges to the second and third issues in turn:
Lonergan’s opinions as to the parties’ contractual relationships and duties, and his opinion that
Rieder used laser scans to take field dimensions because Inge’s were not workable.
The plaintiffs argue that Lonergan offers four opinions about the contract constituting
“impermissible legal conclusion[s]” that must be excluded: (1) Inge but not Kohn had a
contractual relationship with Rieder; (2) Inge but not Kohn had the authority to terminate the

contract; (3) Rieder is entitled to seek storage fees under the contract; and (4) Inge was
contractually obligated “to provide accurate as-built information for use in the development of
shop drawings.” ECF No. 113 at 7. The first three opinions are mooted by the Court’s rulings on
summary judgment. The fourth is also partially a moot point; the parties agree that Inge had a
contractual duty to provide field dimensions to Rieder. See ECF No. 109 ¶ 14. Therefore, the
only remaining issue is whether Lonergan may testify as to what constitutes “accurate as-built
information” in this context. Although Lonergan “may not offer an opinion that amounts to
contract interpretation,” to the extent that his opinion concerns the industry standard for field
dimensions, it is squarely within the province of expert testimony and does not usurp the
factfinder’s function. Bethel v. Berkshire Hathaway Homestate Ins. Co., 596 F. Supp. 3d 1260,
1268-69 (D. Colo. 2022); Northmarq Fin., LLC v. Fidelity Nat. Title Ins. Co., 22-cv-2839-WJM-
TPO, 2025 WL 2801077, at *4 (D. Colo. Oct. 1, 2025) (holding that expert could “testify as to
what individual, discrete terms mean to someone in the industry, to the extent such testimony

would assist the trier of fact”).

Accordingly, the plaintiffs’ motion to strike Lonergan’s testimony on the nature of Inge’s
duty to provide field dimensions to Rieder is denied.

Next, the plaintiffs contend that Lonergan’s opinion that Rieder, through Ogden, used
laser scans to take field dimensions because it could not use those provided by Inge must be
excluded because it “relies on false factual assumptions.” ECF No. 113 at 8 (citing Grieg v.
Botros, 525 F. App’x 781, 793 (10th Cir. 2013) and Magoffe v. JLG Indus., Inc., CIV060973
MCA/ACT, 2008 WL 2967653, at *17 (D.N.M. May 7, 2008)). In particular, they claim that
Lonergan assumes that the reason for Rieder hiring Ogden was for greater accuracy, when in fact
it was because of Rieder’s inability to complete shop drawings in a timely fashion. ECF No. 113

at 8–9. However, the central question that Lonergan addresses is the adequacy of Inge’s field
dimensions to produce shop drawings — not Rieder’s reason for hiring Ogden in the first
instance. ECF No. 95-5 at 17–18, 26–29, 34–43; ECF No. 96-5 at 26–27; ECF No. 96-6 at 72–
73, 85–102, 110–113. To the extent Lonergan’s opinion, then, mentions Rieder’s reasons for
hiring Ogden, it does not rely on those reasons. Instead, its factual foundation rests on disputed
facts regarding the accuracy and completeness of those field dimensions, which is permissible
for expert testimony. See, e.g., Tucker v. Allstate Prop. & Cas. Ins. Co., No. 19-cv-03693-NRN, 2021 WL 2805450, at *5 (D. Colo. Jul. 6, 2021) (an expert “is entitled to rely on the version of
the facts that [the proponent party] believes it can prove” so long as those facts are in dispute).

And here, Lonergan’s testimony regarding the purported deficiencies in Inge’s field
dimensions, their impact on Rieder’s ability to render appropriate shop drawings, and the
necessity and propriety of using a laser scan as an alternative, would be helpful to the factfinder.
Without passing on the strength of his conclusions, his expert opinion relies on, among other

sources, the field dimensions supplied by Inge and email communications between Inge, Rieder,
and Ogden. See, e.g., ECF No. 96-5 at 26–28, 34–43. Although plaintiffs disagree with
Lonergan’s analysis, his opinion is “sufficiently tied to the facts of the case” to satisfy Rule 702’s
standard for admissibility and relevance. United States v. Garcia, 635 F.3d 472, 476 (10th Cir.
2011) (internal citation and quotation marks omitted). Furthermore, in a bench trial, a judge
“maintains greater leeway” in admitting questionable expert testimony, although the Daubert
standards “must still be met” even if somewhat relaxed. Att’y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 779-80 (10th Cir. 2009) (affirming district court’s exclusion of expert testimony as
unreliable even in a bench trial). That all militates against excluding Lonergan’s testimony.
Accordingly, plaintiffs’ motion to exclude or strike his testimony on this issue is denied.

                     CONCLUSION                                     

For the foregoing reasons, the Court ORDERS as follows:

1. Defendant’s Motion for Partial Summary Judgment, ECF No. 91, is GRANTED in part
and DENIED in part. Summary judgment is GRANTED as to counter-claim plaintiff
Inge’s claims, and judgment shall enter on those claims at the conclusion of this case. It is
DENIED as to plaintiff Kohn’s claims, and Rieder’s lack-of-privity affirmative defense
as to Kohn is STRICKEN. Plaintiff Kohn’s claim for unjust enrichment is DISMISSED
with prejudice.

2. Plaintiffs’ Motion for Summary Judgment, ECF No. 93, is GRANTED IN PART and
DENIED in part. Summary judgment is GRANTED as to Rieder’s breach of contract
claim only to the extent that Rieder may not seek damages for storage fees and associated
costs, and otherwise DENIED. Rieder’s claim for promissory estoppel is DISMISSED
with prejudice.
3. Plaintiff’s Amended Motion to Exclude or Strike the Expert Testimony of Andrew
Lonergan, ECF No. 113, is DENIED as moot with respect to his opinions on Rieder’s
damages and on the parties’ contractual relationships except with respect to Inge’s duty to
provide accurate, as-built field dimensions to Rieder for shop drawings. The Motion is
DENIED as to his opinion on Inge’s duty to provide accurate, as-built field dimensions
and Rieder’s need to use a laser scan due to plaintiffs’ inability to provide field
dimensions that met this standard.
DATED this 20th day of March, 2026, at Denver, Colorado.
BY THE COURT:

                                   Cyrus Y. Chung 
                                  United States Magistrate Judge 

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