Lot 2 v. Twitter

25CA1268 Lot 2 v Twitter 10-22-2026 COLORADO COURT OF APPEALS Court of Appeals No. 25CA1268 Boulder County District Court Nos. 23CV30342 & 23CV30461 Honorable Nancy W. Salomone, Judge Lot 2 SBO, LLC, Plaintiff-Appellee, v. Twitter, Inc., n/k/a X Corp., Defendant-Appellant. JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS Division IV Opinion by JUDGE SCHOCK Welling and Lum, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 22, 2026 Holland & Hart LLP, Christopher M. Jackson, Aja R. Robbins, Denver, Colorado, for Plaintiff-Appellee Wheeler Trigg O’Donnell LLP, Frederick R. Yarger, Andrew S. Gehring, William P. Sowers Jr., Denver, Colorado; Zumbrennen Law LLC, T. Damien Zumbrennen, Superior, Colorado, for Defendant-Appellant ¶1 Defendant, Twitter, Inc., now known as X Corp. (X Corp.), appeals the judgment in favor of plaintiff, Lot 2 SBO, LLC (Lot 2), on Lot 2’s claim for breach of a lease between the parties. X Corp. argues that the district court misinterpreted the lease to condition X Corp.’s entitlement to a rent credit on Lot 2’s receipt of certain documentation, including contractor lien waivers. It also argues that the court erred by denying its claim for wrongful eviction. ¶2 We agree that the district court misinterpreted the lease. We conclude that, under the lease’s unambiguous language, Lot 2’s receipt of the specified documentation was a condition only for disbursement of the tenant allowance as a lump sum. It was not a condition for X Corp.’s application of that allowance as a rent credit. Because the district court’s judgment was based on its contrary interpretation of the lease, we reverse the judgment and remand the case to resolve the parties’ claims in light of this opinion. 1  I. Background ¶3 In February 2020, Lot 2 (as landlord) and X Corp. (as tenant)1 entered into a lease for a not-yet-completed 64,000-square-foot office building, known as the Railyards. Under the terms of the lease, Lot 2 agreed to construct the “shell” and “core” of the building, while X Corp. agreed to complete the interior buildout. A. The Lease ¶4 The lease was for an initial term of ten years, beginning six months after Lot 2 substantially completed its construction and turned over possession of the building to X Corp. That date — the “Commencement Date” — ended up being April 20, 2022, for the top three floors, and June 20, 2022, for the first floor. X Corp. agreed to pay Lot 2 monthly rent, consisting of (1) fixed rent as specified on an attached schedule (Net Rent) and (2) a pro rata share of taxes and operating expenses (Additional Rent). For the first ten months after the Commencement Date, X Corp. did not have to pay Net Rent, provided that it was not in default. 1 The lease was entered into by X Corp.’s predecessor, Twitter Inc. Because X Corp. later acquired Twitter, Inc., and succeeded to its interest in the lease, we refer to the entity as X Corp. 2 ¶5 In exchange for X Corp.’s completion of the building’s interior, the lease provided for a “Tenant Improvement Allowance” (TIA) of approximately $5.8 million. The terms of the TIA were detailed in a “Workletter” that was attached as an exhibit to the lease. The parties’ dispute centers on sections 4(b) and 4(c) of the Workletter. ¶6 As relevant to this case, section 4(b) of the Workletter provides as follows: Provided that no Event of Default by Tenant has occurred and is then continuing, Landlord shall cause to be disbursed to Tenant’s general contractor or subcontractors (or to Tenant, if requested by Tenant) in a single lump-sum an amount equal to Five Million Seven Hundred Sixty Thousand and No/100 Dollars ($5,760,000)[2] . . . (the “Tenant Improvement Allowance”) . . . . The [TIA] shall be so disbursed to Tenant’s general contractor or subcontractors (or to Tenant, if requested by Tenant) within sixty (60) days following the later of (A) the date of substantial completion of Tenant’s Work, or (B) the date of Landlord’s confirmed receipt of [the “Draw Documentation”]. The Draw Documentation includes lien waivers from X Corp.’s general contractors and subcontractors, among other documents. ¶7 Section 4(c) of the Workletter provides as follows: 2 The TIA was increased to $5,810,130 through an amendment. 3  Tenant shall also have the right to apply any of the [TIA] which remains unused as a credit against the next payments of Rent due under the Lease until exhausted by giving written notice of such election to [Lot 2] not earlier than the date of substantial completion of Tenants Work and not later than the seventeenth (17th) full calendar month following the Commencement Date (the “Allowance Application Deadline”). In the event that Tenant fails to so request or apply all or any portion of the [TIA] on or before the Allowance Application Deadline, Landlord shall, without further notice to Tenant, automatically apply any of the [TIA] which remains unused as a credit against the next payments of Rent due under the Lease until exhausted. B. The Parties’ Dispute Concerning the TIA ¶8 X Corp. substantially completed its work on the buildout in June 2022. Shortly before that, X Corp. and Lot 2 began discussing X Corp.’s receipt of the TIA. At first, X Corp. asked to apply the TIA as a rent credit. But a couple weeks later, it indicated that “rather than applying [the TIA] to free rent,” it would be “submitting a Disbursement Package upon substantial completion.” ¶9 Meanwhile, X Corp.’s third-party property manager, David Fritzler, was working to collect the Draw Documentation. Fritzler testified at trial that he believed he needed the documentation to 4  “close the project out.” In November 2022, Fritzler emailed Lot 2 representatives with what he called the “FINAL closeout documents” and requested “the remaining TIA to be applied as a rent credit.” ¶ 10 Over the next few weeks, Lot 2 notified Fritzler of several issues it had identified and requested additional documentation, including multiple outstanding lien waivers. On November 30, Fritzler emailed an X Corp. employee that Lot 2 was “going to withhold the remaining [TIA] until they receive[d] unconditional lien waivers” from certain subcontractors with outstanding invoices. He said Lot 2 would “not be issuing the [TIA] to [X Corp.] until [X Corp.] pa[id] these invoices per Section [4(b)] of the Work Letter.” ¶ 11 X Corp. did not pay the rent due on December 1. On December 19, Lot 2 sent X Corp. a letter notifying it that X Corp. was “in Default in the payment of Additional Rent due and payable under the Lease.” Lot 2 demanded that X Corp. submit the outstanding rent within five days and explained that, if it did not, Lot 2 reserved its right to exercise its remedies under the lease, including “the commencement of appropriate legal proceedings.” ¶ 12 X Corp. did not pay the outstanding rent. Instead, it responded a week later, asserting that Lot 2 was in default under 5  the lease for failing to pay X Corp. the TIA. In the letter, X Corp. claimed that the TIA was due and owing because X Corp. had “substantially completed Tenant’s Work and submitted supporting documentation.” X Corp. also notified Lot 2 that it was “invoking its nonexclusive right to apply any unpaid [TIA]” as a rent credit, “while also demanding that [Lot 2] immediately pay [X Corp.] all outstanding [TIA].” Consequently, X Corp. asserted that its decision to apply the TIA as a rent credit cured any default under the lease. ¶ 13 In a response a week later, Lot 2 denied that it owed X Corp. the TIA because X Corp. “ha[d] not yet submitted all of the Draw Documentation required in order to trigger [Lot 2’s] obligation to disburse the [TIA].” Lot 2 again demanded that X Corp. pay the outstanding rent, which by then consisted of two months’ worth. C. Eviction ¶ 14 On January 27, 2023, X Corp. closed its Railyards office and instructed all employees in that office to work from home. Fritzler provided the last remaining Draw Documentation to Lot 2, on behalf of X Corp., in March 2023. In the meantime, X Corp. did not pay rent for four months, leading Lot 2 to draw from a letter of credit that X Corp. had provided as security under the lease. 6 ¶ 15 On April 28, having depleted the letter of credit, Lot 2 posted on the front door of the Railyards a “Demand for Compliance or Possession” under section 13-40-104(1)(e), C.R.S. 2026. The demand directed X Corp. to either deliver possession of the building to Lot 2 or restore the letter of credit to its original amount within three days. The demand also stated that if X Corp. did not comply, Lot 2 would take legal action to recover possession of the building. ¶ 16 On May 12, Lot 2 sued X Corp. for unlawful detainer and breach of the lease. Lot 2 mailed a copy of the complaint to the Railyards and posted it on the building’s front door, but it did not otherwise provide X Corp. with a copy of the complaint. X Corp. did not appear for the eviction hearing on May 24, and a magistrate entered default judgment for possession in favor of Lot 2. ¶ 17 The magistrate issued a writ of restitution on May 31, authorizing Lot 2 to take possession of the Railyards. A couple of days later, Lot 2 provided X Corp. with a proposed turnover agreement, by which X Corp. would agree to surrender the building. Lot 2 explained that if X Corp. did not accept the agreement, Lot 2 would “obviously have to move forward with eviction.” 7 ¶ 18 X Corp. asserts that it learned of the eviction proceedings on June 13 and, the next day, demanded that Lot 2 withdraw the writ of restitution. On June 15, Lot 2 moved for an amended writ of restitution, requesting that it be permitted to lock X Corp. out of the building without removing its property. The magistrate granted the amended writ on June 16, and the eviction occurred on June 30. D. District Court Proceedings ¶ 19 On June 28, X Corp. filed a separate lawsuit against Lot 2, asserting claims for breach of contract and wrongful eviction, among others. X Corp. alleged that Lot 2 breached the lease, in part, by failing to use the TIA to satisfy its rent obligations and by wrongfully dispossessing X Corp. of the Railyards. X Corp. also alleged that the eviction was wrongful because Lot 2 did not personally serve X Corp. with a copy of the complaint. The district court consolidated the two actions. ¶ 20 After a bench trial, the district court entered judgment in favor of Lot 2 on all remaining claims. Reading section 4(b) and 4(c) of the Workletter together, the court concluded that the conditions in section 4(b) for receipt of the TIA as a lump sum — including Lot 2’s “confirmed receipt” of the Draw Documentation — unambiguously 8  applied to the application of the TIA as a rent credit under section 4(c). The court also found that, even if the Workletter was ambiguous, that was the parties’ intent, as shown by Fritzler’s “belief that completion of the Draw Documentation would be required to capture the TIA as a rent credit” and communication of this expectation to both X Corp. and Lot 2. Thus, because X Corp. had not provided all the Draw Documentation by December 1, 2022, when it stopped paying rent, it was not entitled to a rent credit at that time and breached the lease by failing to pay rent. ¶ 21 With respect to X Corp.’s claim for wrongful eviction, the court found that X Corp. was “consistently contemporaneously aware of Lot 2’s legal actions” based on the parties’ correspondence, X Corp.’s awareness of the Demand for Compliance or Possession posted on the Railyards’ door, and X Corp.’s counsel’s reference to the eviction in the June 14 letter. The court therefore found that the eviction was not wrongful because (1) Lot 2 had the right to evict X Corp. under the lease, and (2) X Corp. “had actual notice of the eviction proceedings and nonetheless failed to participate.” ¶ 22 The court awarded Lot 2 approximately $8.3 million in damages, consisting primarily of past due rent and expenses. 9  II. Interpretation of the Workletter ¶ 23 The parties agree that (1) Lot 2’s receipt of the Draw Documentation was a condition for disbursement of the TIA as a lump sum under section 4(b) of the Workletter, and (2) X Corp. did not provide all Draw Documentation until March 2023 — more than three months after it stopped paying rent. The parties’ dispute — and the resolution of this appeal — turns on whether the Draw Documentation was also a condition for the application of the TIA as a rent credit under section 4(c). We conclude that it was not. A. Standard of Review and Applicable Law ¶ 24 The interpretation of a contract — including whether it is ambiguous — is a question of law that we review de novo. French v. Centura Health Corp., 2022 CO 20, ¶ 24; Bledsoe Land Co. L.L.L.P. v. Forest Oil Corp., 277 P.3d 838, 843 (Colo. App. 2011). ¶ 25 In interpreting a contract, we aim to “give effect to the parties’ intent,” as determined primarily from the language of the contract. French, ¶ 25. If the contract is unambiguous, we “deem it to express the parties’ intent and enforce it according to its terms.” Id. Only if the contract is ambiguous — that is, “susceptible of more than one reasonable interpretation” — may we consider extrinsic 10  evidence of the parties’ intent. Id. The parties’ disagreement about the meaning of a contract does not make it ambiguous. Id. B. Language of the Workletter ¶ 26 The parties both assert that the Workletter is unambiguous, though they have different views about its “one reasonable interpretation.” French, ¶ 25. Lot 2 argues that section 4(b) makes the Draw Documentation a prerequisite to X Corp.’s receipt of the TIA in any form — whether as a lump-sum payment under section 4(b) or a rent credit under section 4(c). X Corp. contends that the rent credit in section 4(c) is a distinct mechanism for X Corp. to receive the TIA that has no such condition. We agree with X Corp. ¶ 27 Read together, sections 4(b) and (4)(c) set forth two ways for X Corp. to receive the TIA. Lot 2 could disburse the TIA in a “single lump-sum” — either to X Corp.’s contractors or directly to X Corp., upon request. It is undisputed that X Corp. was not entitled to this lump-sum disbursement until after it had provided the Draw Documentation to Lot 2. Alternatively, the TIA could be applied as a rent credit either (1) if X Corp. elected that option in writing; or (2) automatically, seventeen months after the Commencement Date, if the TIA had not been exhausted. For four reasons, we conclude 11  that the Workletter unambiguously does not make Lot 2’s receipt of the Draw Documentation a condition of the rent-credit option. ¶ 28 First, section 4(b) explicitly ties the Draw Documentation condition to the lump-sum form of disbursement. After describing the lump-sum disbursement, section 4(b) specifies that the TIA shall be “so disbursed” — i.e., disbursed “in a single lump-sum” — within sixty days after substantial completion and Lot 2’s receipt of the Draw Documentation. The provision says nothing about what conditions, if any, apply when the TIA is paid out in a different manner. And while section 4(c) explicitly makes substantial completion a precursor to the rent-credit option as well, it does not do the same for the Draw Documentation. See DA Mountain Rentals, LLC v. Lodge at Lionshead Phase III Condo. Ass’n, 2016 COA 141, ¶ 25 (holding that inclusion of language in one contract provision and omission in another meant that it did not apply to the latter); cf. Beeghly v. Mack, 20 P.3d 610, 613 (Colo. 2001) (“Under the rule of interpretation expressio unius exclusio alterius, the inclusion of certain items implies the exclusion of others.”). ¶ 29 Second, section 4(b) does not directly frame Lot 2’s receipt of the Draw Documentation as a condition for the TIA. Instead, that 12  condition flows from the timing of the lump-sum disbursement — the disbursement must be made within sixty days after Lot 2’s receipt of the Draw Documentation (or substantial completion, if later). But section 4(c) establishes a different timing for application of the TIA as a rent credit. That credit applies to the next payments of rent after X Corp.’s written notice of its election. Because such notice cannot be given before substantial completion, the credit necessarily cannot be applied before substantial completion. But once the project has crossed that threshold and X Corp. has given written notice, the rent credit unambiguously applies to the next rent payments due under the lease — which may or may not be after Lot 2 has received the Draw Documentation. ¶ 30 Third, the “automatic” application of the TIA as a rent credit seventeen months after the Commencement Date — in the second sentence of section 4(c) — confirms that Lot 2’s receipt of the Draw Documentation is not a universal prerequisite to X Corp.’s receipt of the TIA. That provision does not say that the TIA is automatically applied as a rent credit so long as Lot 2 has received the Draw Documentation. Rather, it unambiguously states, without condition, that X Corp. will receive that rent credit if it has not 13  requested or applied the TIA by the seventeen-month deadline — including, presumably, because Lot 2 has not yet received the Draw Documentation. We see no basis in the language of the Workletter for treating Lot 2’s receipt of the Draw Documentation as a condition for the elective rent credit when it is not a condition for the automatic rent credit in the same provision. ¶ 31 Fourth, after section 4(b) sets forth the parameters of the lump-sum disbursement, section 4(c) provides that X Corp. “shall also have the right to apply any of the [TIA]” as a rent credit. (Emphasis added.) The use of the word “also,” and the separation of the rent credit into a different lease provision, suggests that it is an additional, alternative way for X Corp. to receive the TIA — one with its own distinct parameters. In other words, X Corp. could receive the TIA as a lump sum after substantial completion and delivery of the Draw Documentation (section 4(b)). Or it could elect in writing to receive the TIA as a credit against the next rent payments any time after substantial completion (section 4(c)). C. Lot 2’s Arguments ¶ 32 Lot 2 contends that section 4(c) incorporates and supplements section 4(b) — including the Draw Documentation condition. It 14  points to the phrase “so request or apply” in the second sentence of section 4(c) as evidence that the two sections must be read together (with “request” referring to a request for the lump-sum payment and “apply” referring to the application as a rent credit). It also argues that section 4(b) sets out the general features of the TIA — including the amount, a default means of disbursement, and the conditions for disbursement — which section 4(c) “builds on.” ¶ 33 We do not disagree with the general principle that we must read sections 4(b) and 4(c) together. See Copper Mountain, Inc. v. Indus. Sys., Inc., 208 P.3d 692, 697 (Colo. 2009) (noting that we must interpret a contract “in its entirety” and seek to “harmonize and to give effect to all provisions” (citation omitted)). For example, it is section 4(b) that defines what, and how much, the TIA is. But just because section 4(c) invokes section 4(b) for some purposes does not mean it incorporates all of that provision — particularly when it sets forth a distinct alternative process for receiving the TIA. ¶ 34 Lot 2 also asserts that section 4(c)’s reference to “any of the [TIA] which remains unused” indicates that the TIA must be disbursed as a lump sum first — which cannot happen until after receipt of the Draw Documentation — and only applied as a rent 15  credit if there is anything left over after that. But the lease contemplates other uses of the TIA besides the lump-sum disbursement that might precede the application of the rent credit, such as paying liens, obtaining title insurance, and paying the costs of change orders and other expenses. Indeed, if the TIA is disbursed as a “single lump-sum amount” under section 4(b), it is not clear how any portion of it would “remain[] unused” after that disbursement. In any event, nothing in section 4(c) says that the TIA must be used in another manner first. It simply limits the rent credit to the portion that “remains unused.” If the TIA has not previously been tapped — for any reason — that might be all of it. ¶ 35 Finally, Lot 2 argues that X Corp.’s interpretation would lead to an absurd result because it would allow X Corp. to deplete the TIA through rent credits while liens remained on the property, leaving Lot 2 with no security against such liens.3 See EnCana Oil & Gas (USA), Inc. v. Miller, 2017 COA 112, ¶ 28 (“[A] contract should 3 Lot 2 also asserts that X Corp.’s interpretation of the lease would allow it to receive the TIA as a rent credit while in default under the lease because the “no Event of Default” condition does not appear in section 4(c). We need not decide this point because the only alleged event of default was X Corp.’s failure to pay rent, which it was not required to do if it was entitled to a rent credit. 16  never be interpreted to yield an absurd result.” (citation omitted)). X Corp. counters that it would be unreasonable to allow Lot 2 to retain the entire $5.8 million TIA — and the full benefit of X Corp.’s investment — simply because small liens (in this case, around $96,000) remained. X Corp. also argues that it was reasonable for the parties to impose more onerous conditions on the disbursement of the TIA as a lump sum than as a rent credit because the rent credit left Lot 2 with sufficient funds to pay any outstanding liens. ¶ 36 Both sides make valid points — enough to convince us that neither interpretation would be absurd. And we can see reasons why the parties might have opted for either path. But in this heavily negotiated contract between sophisticated parties, it is not for us to decide what is the better business deal. Rather, because the lease does not yield an absurd result, we must enforce the bargain the parties struck. See Ravenstar, LLC v. One Ski Hill Place, LLC, 2017 CO 83, ¶ 12 (“Contracts between competent parties, voluntarily and fairly made, should be enforceable according to the terms to which they freely commit themselves.” (citation omitted)). ¶ 37 At oral argument, Lot 2 advanced another absurdity argument — that X Corp.’s interpretation would allow it to receive 17  the TIA as a rent credit (seventeen months after the Commencement Date), even if it never performed any work on the building. We struggle to see how X Corp. would benefit from receiving free rent in an unfinished building, and, thus, we do not view this as a realistic scenario — not at the time of contracting and certainly not in retrospect. Indeed, the record indicates that X Corp. performed more than $20 million of work on the building — far more than the TIA. And if X Corp. had failed to complete any work it was obligated to complete, Lot 2 likely would have had a contractual remedy. ¶ 38 But in any event, whatever reasonable dispute might have existed about X Corp.’s entitlement to the TIA before the seventeen- month deadline, the lease is clear that X Corp. was “automatically” entitled to the TIA in the form of rent credits after the seventeen- month deadline. As explained above, this automatic rent credit — in other words, X Corp. receives it, no matter what — supports the conclusion that the Draw Documentation was not an absolute condition for the TIA. Lot 2’s implausible suggestion that X Corp. could have used that TIA to hold onto possession of a building it could not use as intended — apparently, after paying rent on that 18  unfinished building for the first seventeen months — does not persuade us to disregard the plain terms of the lease. ¶ 39 Thus, we conclude that the lease unambiguously does not condition X Corp.’s right to apply the TIA as a rent credit on Lot 2’s receipt of the Draw Documentation. We therefore do not address the parties’ arguments and the district court’s findings regarding the extrinsic evidence of the parties’ intent. See USI Props. E., Inc. v. Simpson, 938 P.2d 168, 173 (Colo. 1997) (“Absent [an] ambiguity, we will not look beyond the four corners of the agreement in order to determine the meaning intended by the parties.”). III. Remand ¶ 40 Because the district court’s judgment on the parties’ competing breach of contract claims (including X Corp.’s counterclaim for breach of the implied covenant of good faith and fair dealing) was based on its erroneous interpretation of section 4(c) of the lease, we reverse the judgment on those claims. ¶ 41 X Corp. asks us to go further and instruct the district court to enter judgment in its favor. We decline to do so. Because the district court concluded that the rent credit could not be applied until Lot 2 received the Draw Documentation, and because X Corp. 19  had not yet provided all the Draw Documentation when it stopped paying rent, the court did not consider whether X Corp. gave timely written notice of the rent credit election before its first missed rent payment. Nor did it consider whether the credit could be applied to any unpaid rent that was outstanding at the time of the election. We therefore remand the case to the district court to address the parties’ contract claims in light of this opinion’s interpretation of the Workletter. See Doe v. Wellbridge Club Mgmt. LLC, 2022 COA 137, ¶ 31 (“[W]e are a court of review, not of first view.”). ¶ 42 We also reverse the judgment on X Corp.’s wrongful eviction claim because the district court’s ruling was based, in part, on its conclusion that X Corp. breached the lease by failing to pay rent. On remand, the district court should consider this claim after determining, in light of this opinion, whether either party breached the lease. Because the resolution of this issue may affect the district court’s analysis of X Corp.’s alternative argument that the eviction was wrongful because it was not properly served — or may make it unnecessary to reach that argument at all — we decline to address that alternative argument. See In re Marriage of Krieger, 20  2026 COA 23, ¶ 51 (declining to address issue when it was “unclear whether [the] issue [would] arise in the same posture on remand”). IV. Appellate Attorney Fees ¶ 43 Lot 2 requests an award of its appellate attorney fees under article 15 of the lease, which provides as follows: In the event of any litigation between [Lot 2] and [X Corp.], the prevailing party shall be entitled to obtain, as part of the judgment, all reasonable attorneys’ fees, costs, and expenses incurred in connection with such litigation, except as may be limited by applicable law. ¶ 44 We deny that request. First, because we are reversing the judgment, Lot 2 is not the prevailing party on appeal. Second, because we are remanding the case for further proceedings, there is not yet a prevailing party in this litigation. The district court may consider either party’s request for attorney fees, including appellate attorney fees, after it resolves the parties’ claims on remand. V. Disposition ¶ 45 The judgment is reversed, and the case is remanded for further proceedings in light of our conclusion that Lot 2’s receipt of the Draw Documentation was not required before the TIA could be applied as a rent credit under section 4(c) of the Workletter. 21 JUDGE WELLING and JUDGE LUM concur. 22