merger doctrine in Colorado

2025“Therefore, the terms of a contract intended to represent a final and complete integration of the agreement between the parties are enforceable, and extrinsic evidence offered to prove the existence of prior agreements is inadmissible.” Id. ¶ 22 Section 5.0 of the settlement agreement stated, “This agreement constitutes the complete, final, and entire agreement between the Parties and supersedes all prior written or oral negotiations, representations, or agreements between the Parties 9 relating in any way to the subject matter of this Agreement.” While Teague relies on the civil attorneys’ di

2024In Nelson, the court concluded that a merger clause “plainly and unambiguously manifest[ed] the intent of the parties” to supersede prior agreements “pertaining to the subject matter contained [in the later agreement].” Nelson, 908 P.2d at 107 (emphasis added); see also DeFranco v. Storage Tech.

2022An accused is protected “not only from facing a second trial for the same offense but also from suffering multiple punishments for the same offense.” Id. ¶2 The merger doctrine, like the double jeopardy doctrine, generally seeks to “protect[] against punishing one criminal act twice.” People v. Henderson, 810 P.2d 1058, 1060 (Colo. 1991); cf. People v. Leske, 957 P.2d 1030, 1035 (Colo. 1998) (holding that, for purposes of double jeopardy and merger, a defendant may be “subjected to multiple punishments based upon the same criminal conduct” but only if the General Assembly “specifically authori

1994Compare People v. Moore, supra, 860 P.2d at 556 ("By definition, lesser included crimes have always been crimes of lesser seriousness, not merely crimes with fewer included elements." (Rothenberg, J., dissenting)) with People v. Henderson, 810 P.2d 1058, 1067 (Colo.1991) ("[T]he applicability of the merger rule turns on an analysis of the *406 elements of the [offenses] and not on the maximum penalties authorized for those respective crimes." (Quinn, J., dissenting)).

2010Lee Equity Fund V, L.P., 612 F.Supp.2d at 288 ("An agreement induced on knowingly false pretenses, constitutes fraud and, despite the so-called merger clause, [plaintiffs] are free to prove that [they were] induced by false and fraudulent misrepresentations to . . . execute [the Agreement].") (internal quotations omitted); Mankap Enterprises, Inc. v. Wells Fargo Alarm Services, 427 So.2d 332, 333-34 (Fla.Dist.Ct.App.1983) ("The law is settled that a party cannot contract against liability for his own fraud in order to exempt him from liability for an intentional tort, and any such exculpatory

2010Lee Equity Fund V, L.P., 612 F.Supp.2d at 288 ("An agreement induced on knowingly false pretenses, constitutes fraud and, despite the so-called merger clause, [plaintiffs] are free to prove that [they were] induced by false and fraudulent misrepresentations to . . . execute [the Agreement].") (internal quotations omitted); Mankap Enterprises, Inc. v. Wells Fargo Alarm Services, 427 So.2d 332, 333-34 (Fla.Dist.Ct.App.1983) ("The law is settled that a party cannot contract against liability for his own fraud in order to exempt him from liability for an intentional tort, and any such exculpatory

2025Lee Equity Fund V, L.P. v. Mayer Brown, Rowe & Maw LLP, 612 F. Supp. 2d 267, 288 (S.D.N.Y. 2009) (“An agreement induced on knowingly false pretenses, ‘constitutes fraud and, despite the so-called merger clause, [plaintiffs are] free to prove that [they were] induced by false and fraudulent misrepresentations to . . . execute the [agreement].’”) (citation omitted); Mankap Enters., Inc. v. Wells Fargo Alarm Servs., 427 So. 2d 332, 333-34 (Fla. Dist.

2010Lee Equity Fund V, L.P., 612 F.Supp.2d at 288 ("An agreement induced on knowingly false pretenses, constitutes fraud and, despite the so-called merger clause, [plaintiffs] are free to prove that [they were] induced by false and fraudulent misrepresentations to . . . execute [the Agreement].") (internal quotations omitted); Mankap Enterprises, Inc. v. Wells Fargo Alarm Services, 427 So.2d 332, 333-34 (Fla.Dist.Ct.App.1983) ("The law is settled that a party cannot contract against liability for his own fraud in order to exempt him from liability for an intentional tort, and any such exculpatory

2025Lee Equity Fund V, L.P. v. Mayer Brown, Rowe & Maw LLP, 612 F. Supp. 2d 267, 288 (S.D.N.Y. 2009) (“An agreement induced on knowingly false pretenses, ‘constitutes fraud and, despite the so-called merger clause, [plaintiffs are] free to prove that [they were] induced by false and fraudulent misrepresentations to . . . execute the [agreement].’”) (citation omitted); Mankap Enters., Inc. v. Wells Fargo Alarm Servs., 427 So. 2d 332, 333-34 (Fla. Dist.

2010Lee Equity Fund V, L.P., 612 F.Supp.2d at 288 ("An agreement induced on knowingly false pretenses, constitutes fraud and, despite the so-called merger clause, [plaintiffs] are free to prove that [they were] induced by false and fraudulent misrepresentations to . . . execute [the Agreement].") (internal quotations omitted); Mankap Enterprises, Inc. v. Wells Fargo Alarm Services, 427 So.2d 332, 333-34 (Fla.Dist.Ct.App.1983) ("The law is settled that a party cannot contract against liability for his own fraud in order to exempt him from liability for an intentional tort, and any such exculpatory

2025The Doctrine of Merger by Deed ¶ 27 Keystone Properties next contends that the doctrine of merger by deed barred Our Lady’s “post-closing” breach of contract claim. ¶ 28 “The merger doctrine provides that a buyer’s acceptance of a deed tendered in performance of a contract extinguishes prior covenants in an antecedent contract relating to title, quantity, possession, or emblements of the land.” Lazy Dog Ranch v. Telluray Ranch Corp., 923 P.2d 313, 318 (Colo. App. 1996).

2025Lazy Dog Ranch v. Telluray Ranch Corp., 923 P.2d 313, 318 (Colo. App. 1996); Skidmore v. First Bank of Minneapolis, 773 P.2d 587, 589 (Colo. App. 1988).

2024See EnCana Oil & Gas (USA), Inc. v. Miller, 2017 COA 112, ¶ 28 (“[A] contract should never be interpreted to yield an absurd result.”) (citation omitted).

2024See EnCana Oil & Gas (USA), Inc. v. Miller, 2017 COA 112, ¶ 28 (“[A] contract should never be interpreted to yield an absurd result.”) (citation omitted).

2024Corp., 622 F.3d 1296, 1303 (10th Cir. 2010) (applying Colorado law and concluding that a merger clause superseded prior guarantees related to matters “expressly set forth” in the subsequent agreement).

2024Corp., 622 F.3d 1296, 1303 (10th Cir. 2010) (applying Colorado law and concluding that a merger clause superseded prior guarantees related to matters “expressly set forth” in the subsequent agreement).

2024See Restatement (Second) of Contracts § 213 cmt. c (requiring interpretation of both integrated agreement and prior agreement); Univ. of Denver. v. Doe, 2024 CO 27 , ¶ 50 (“In determining whether a term is ambiguous, we must look at the contract ‘as a whole.’”) (citation omitted); Core & Main, 62 F.4th at 420 (concluding that a merger clause providing that the agreement “superseded all prior or contemporaneous agreements” was ambiguous as to the agreement at issue). ¶ 31 On one hand, Johnson was employed by FBMS as an investment advisor, so giving that phrase its broadest interpretation, any a

2024See Restatement (Second) of Contracts § 213 cmt. c (requiring interpretation of both integrated agreement and prior agreement); Univ. of Denver. v. Doe, 2024 CO 27 , ¶ 50 (“In determining whether a term is ambiguous, we must look at the contract ‘as a whole.’”) (citation omitted); Core & Main, 62 F.4th at 420 (concluding that a merger clause providing that the agreement “superseded all prior or contemporaneous agreements” was ambiguous as to the agreement at issue). ¶ 31 On one hand, Johnson was employed by FBMS as an investment advisor, so giving that phrase its broadest interpretation, any a

2024Id. ¶ 22 A merger clause is a provision in a contract indicating that “a written contract is integrated, that all conditions, promises, or representations are contained in the writing, and that the parties are not to be bound except by the writing.” In re Estate of Gadash, 2017 COA 54, ¶ 43 (citation omitted); see also Restatement (Second) of Contracts § 209(1) (Am.

2024Id. ¶ 22 A merger clause is a provision in a contract indicating that “a written contract is integrated, that all conditions, promises, or representations are contained in the writing, and that the parties are not to be bound except by the writing.” In re Estate of Gadash, 2017 COA 54, ¶ 43 (citation omitted); see also Restatement (Second) of Contracts § 209(1) (Am.

2022An accused is protected “not only from facing a second trial for the same offense but also from suffering multiple punishments for the same offense.” Id. ¶2 The merger doctrine, like the double jeopardy doctrine, generally seeks to “protect[] against punishing one criminal act twice.” People v. Henderson, 810 P.2d 1058, 1060 (Colo. 1991); cf. People v. Leske, 957 P.2d 1030, 1035 (Colo. 1998) (holding that, for purposes of double jeopardy and merger, a defendant may be “subjected to multiple punishments based upon the same criminal conduct” but only if the General Assembly “specifically authori

2020See, e.g., Lewis v. People, 261 P.3d 480 , 482–83 (Colo. 2011); People v. Leske, 957 P.2d 1030, 1039 (Colo. 1998).

2020II, § 18; People v. Delci, 109 P.3d 1035, 1036 (Colo. App. 2004) (discussing the merger doctrine). ¶ 28 The General Assembly has determined that “a defendant may not be convicted of two offenses for the same conduct if the lesser offense is included in the greater.” Page, ¶ 9, 402 P.3d at 470 ; see § 18-1-408(1)(a), C.R.S. 2019.

2019Applicable Law ¶ 34 The merger doctrine precludes conviction of both a greater and lesser included offense. § 18-1-408(1)(a), C.R.S. 2019; People v. Delci, 109 P.3d 1035, 1037 (Colo. App. 2004).

2020Salazar v. Terry, 911 P.2d 1086, 1090-91 (Colo. 1996).

2001See Salazar v. Terry, 911 P.2d 1086 (Colo.1996); Freeman v. Rost Family Trust, 973 P.2d 1281 (Colo.App.1999); 2 Restatement-Servitudes $ 7.5.

2022The majority of the division concludes that the two offenses should merge based on the supreme court’s reformulation of the merger test in Reyna-Abarca v. People, 2017 CO 15, ¶¶ 51-64 , 390 P.3d 816, 824-26 , and People v. Rock, 2017 CO 84, ¶ 20 , 402 P.3d 472, 479 , agreeing with Judge Kuhn’s concurring opinion in Whiteaker.

2022The majority of the division concludes that the two offenses should merge based on the supreme court’s reformulation of the merger test in Reyna-Abarca v. People, 2017 CO 15, ¶¶ 51-64 , 390 P.3d 816, 824-26 , and People v. Rock, 2017 CO 84, ¶ 20 , 402 P.3d 472, 479 , agreeing with Judge Kuhn’s concurring opinion in Whiteaker.

2026It reached that conclusion based on the merger test in section 18-1-408(5)(c), C.R.S. 2025, which, as relevant here, “expands the definition of a lesser included offense to include an offense which ‘differs from the offense charged only in the respect that less serious injury or risk of injury’” to the same person “suffices to establish its commission.” Raymer, 662 P.2d at 1069 (quoting § 18-1-408(5)(c)); see also People 20 v. Rock, 2017 CO 84, ¶¶ 12-14 (describing section 18-1-408(5)(c) as providing a broader merger test than the “statutory or strict elements test” in section 18-1-408(5)(a)).

2022The majority of the division concludes that the two offenses should merge based on the supreme court’s reformulation of the merger test in Reyna-Abarca v. People, 2017 CO 15, ¶¶ 51-64 , 390 P.3d 816, 824-26 , and People v. Rock, 2017 CO 84, ¶ 20 , 402 P.3d 472, 479 , agreeing with Judge Kuhn’s concurring opinion in Whiteaker.

2025See Reed, 533 P.2d at 508 ; see also Campbell, 192 P.3d at 476 . ¶ 17 Wife argues, however, that the merger doctrine shouldn’t apply to the premarital agreement because the cases applying that doctrine didn’t arise in a domestic relations context and were decided before the “General Assembly adopted the Uniform Premarital and Marital Agreements Act” (UPMAA).

2002Plaintiffs argue that Reed v. Dudley, 35 Colo.App. 420 , 533 P.2d 507 (1975), is disposi-tive of the issue whether a fee-shifting clause survives closing under the merger doctrine.

1992Pursuant to the doctrine of merger, see Boulies v. People, 770 P.2d 1274 (Colo.1989) and People v. Henderson, 810 P.2d 1058 (Colo.1991), the People concede that defendant cannot be convicted of burglary if he is also convicted of felony murder.

1991The rule of merger, on the other hand, "precludes a conviction for a crime that is the lesser included offense of another for which the defendant has also been convicted in the same prosecution." Boulies, 770 P.2d at 1282 ; see also People v. Hancock, 186 Colo. 30, 35 , 525 P.2d 435, 438 (1974); People v. Bugarin, 181 Colo. 62, 65-66 , 507 P.2d 875, 877 (1973). *1065 The merger rule is a creation not only of judicial precedent but also of legislative enactment.

1991The rule of merger, on the other hand, "precludes a conviction for a crime that is the lesser included offense of another for which the defendant has also been convicted in the same prosecution." Boulies, 770 P.2d at 1282 ; see also People v. Hancock, 186 Colo. 30, 35 , 525 P.2d 435, 438 (1974); People v. Bugarin, 181 Colo. 62, 65-66 , 507 P.2d 875, 877 (1973). *1065 The merger rule is a creation not only of judicial precedent but also of legislative enactment.

1991The rule of merger, on the other hand, "precludes a conviction for a crime that is the lesser included offense of another for which the defendant has also been convicted in the same prosecution." Boulies, 770 P.2d at 1282 ; see also People v. Hancock, 186 Colo. 30, 35 , 525 P.2d 435, 438 (1974); People v. Bugarin, 181 Colo. 62, 65-66 , 507 P.2d 875, 877 (1973). *1065 The merger rule is a creation not only of judicial precedent but also of legislative enactment.

2019Similarly, in People v. Harlan , a capital case, we relied on a sentencing phase instruction that informed the jury that "Harlan's convictions for first degree murder after deliberation and first degree felony murder merged." 8 P.3d 448 , 509 (Colo. 2000), overruled on other grounds by Miller , 113 P.3d at 748-50 ; accord Dunlap v. People , 173 P.3d 1054 , 1088 (Colo. 2007) (rejecting Dunlap's claim that the jury relied on improper convictions in imposing a death sentence because it was instructed during the sentencing *594 phase of the proceeding that "the first-degree murder after deliberati

2015Merger ¶237        Marko argues, the People concede, and we agree that defendant’s attempted sexual assault convictions must be vacated under the doctrine of merger. 9 ¶238        “The Double Jeopardy Clauses of the federal and state constitutions and the judicially created rule of merger bar multiple punishments for greater and lesser included offenses.” People v. Harlan , 8 P.3d 448, 478 (Colo. 2000), overruled on other grounds by People v. Miller , 113 P.3d 743 (Colo. 2005).

1991Because the issues relating to multiple punishments and convictions are controlled by state and federal double jeopardy clauses, the "common law merger doctrine is an inadequate vehicle for resolving modern problems posed where multiple felonies arise from a single criminal act," id., and, accordingly, the merger doctrine has largely been repudiated. 1 Wharton's, supra, at 112. *1060 Other jurisdictions refer to merger as a rule of statutory interpretation "designed to prevent an unnatural elevation of the `true' crime charged." State v. Slemmer, 48 Wash.App. 48, 56 , 738 P.2d 281, 286-87 (198

1991The court of appeals, relying on People v. Henderson, 794 P.2d 1050 (Colo.App.1989), held that the merger doctrine required that the sexual assault conviction and sentence be vacated. 802 P.2d 1105 .

2026See People v. Clouse, 74 P.3d 336, 340 (Colo. App. 2002) (it is the defendant’s burden to allege and establish an exception to the time bar set forth in section 16-5-402(1)). 5 ¶ 13 Thus, we agree with the People that Nalty’s merger claim is time barred. § 16-5-402(1.5) (“If an appellate court can determine on the face of the motion, files, and record in a case that a collateral attack is outside the time limits specified in subsection (1) of this section, the appellate court may deny relief on that basis, regardless of whether the issue of timeliness was raised in the trial court.”).