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Brush Grocery Kart, Inc. v. Sure Fine Market, Inc.

Supreme Court of Colorado
47 P.3d 680 (2002)


Brush Grocery Kart, Inc. (Brush) (plaintiff) entered into a five-year lease with Sure Fine Market, Inc. (Sure Fine) (defendant) for use of Sure Fine’s real property, and operation of a grocery store located on the premises. The lease included a provision that would allow Brush to purchase the real property at the end of the lease, with the price to be the average of the appraisals received by both parties. At the end of the lease, Brush attempted to purchase the property, however, the parties were unable to come to an agreement as to price. As a result, Brush cancelled its insurance policy on the property and left the premises. Brush then brought an action against Sure Fine, alleging that its offer was given in bad faith and breached the leasing agreement. Sure Fine counterclaimed with the same argument. A special master was then appointed to set the purchase price for the property. During the trial proceedings, a hailstorm caused $60,000 worth of damage to the property. As neither party was carrying insurance on the property, both parties claimed the other was liable for the damage. The special master determined the value of the property was $375,000, with Brush being responsible for the $60,000 loss because it was the equitable owner of the property, and as such, bore the risk of loss. Brush appealed the decision, with the court of appeals affirming the special master’s decision. Brush petitioned for certiorari to the Supreme Court of Colorado.

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