Purser v. Gilliland: Preliminary Development Emails, “Forced Exchange” Services, and Appellate Waiver in Contract and Unjust Enrichment Claims

Introduction

This commentary examines the Tenth Circuit’s unpublished order and judgment in Purser v. Gilliland, No. 24-1503 (10th Cir. Dec. 11, 2025), a diversity case applying Colorado law to claims for breach of contract and unjust enrichment arising from a failed real estate development collaboration in Grand Junction, Colorado.

The plaintiff, Keith Purser, a pro se appellant, claimed that he was entitled to substantial compensation for his role in conceiving and promoting a “tiny homes” development concept involving two tracts (the “Merkel” and “Mosaic” properties) and in arranging a potential purchase of a neighboring tract (the “Halandras” property). He sued Douglas Gilliland and affiliated entities—Taurus of Texas GP, LLC and two limited partnerships that owned the Merkel and Mosaic tracts—for:

Breach of contract, based on a 2012 email exchange and later conduct; and
Unjust enrichment, seeking restitution for lobbying, introductions, strategic work, and his role in connecting Gilliland to a buyer.

The district court dismissed the contract claim under Federal Rule of Civil Procedure 12(b)(6) and granted summary judgment to defendants on unjust enrichment. The Tenth Circuit, applying de novo review, affirmed in full.

Although designated as nonprecedential, the decision is significant for at least three reasons:

It reaffirms and applies Colorado law that preliminary negotiations and conditional, indefinite emails are not offers capable of acceptance, and thus cannot ground a breach-of-contract claim.
It underscores the limits of unjust enrichment where a party voluntarily performs substantial work without first securing a contract, reinforcing the “forced exchange” limitation derived from the Restatement (Third) of Restitution and DCB Construction Co. v. Central City Development Co.
It illustrates the strict application of appellate waiver, particularly for pro se litigants: an appellant must directly challenge each dispositive ground of the district court’s ruling in the opening brief or forfeit review.

Summary of the Opinion

The Tenth Circuit’s disposition can be summarized as follows:

Jurisdiction: Diversity of citizenship jurisdiction under 28 U.S.C. § 1332 in the district court; appellate jurisdiction under 28 U.S.C. § 1291.
Standard of review:
- Rule 12(b)(6) dismissal of the breach-of-contract claim reviewed de novo, applying the same plausibility standards as the district court.
- Summary judgment on unjust enrichment also reviewed de novo, with evidence and reasonable inferences viewed in Purser’s favor.
Breach of contract:
- The 2012 email from Gilliland was not an offer capable of acceptance; it reflected only preliminary negotiations and contemplation of future conditions.
Unjust enrichment:
- The district court rejected two unjust enrichment theories: (1) enrichment via Purser’s lobbying, introductions, and development work; and (2) enrichment via the terminated Halandras purchase contract.
- On appeal, Purser did not address the actual grounds on which the district court granted summary judgment and focused only on a subsidiary issue (whether his Halandras fee was a “finder’s fee” or a prohibited commission).
- Because issues not raised in the opening brief are deemed waived, the Tenth Circuit held that Purser had waived any challenge to the summary judgment ruling on unjust enrichment.
Outcome: District court judgment affirmed.

Analysis

I. Factual and Procedural Context

A. The 2012 Tiny Homes Concept and Email

In 2012, Purser approached Gilliland regarding a proposed “community of tiny homes and commercial properties” on two tracts in Grand Junction—the “Merkel” and “Mosaic” properties—owned by Gilliland-affiliated entities. After their December 2012 meeting, Gilliland sent an email stating (emphasis added):

“After our meeting I [met] with the city staff and they were encouraging regarding the land use you and I spoke about. My thought at this point is that if you have an interest in being involved in the development of the site that you align yourself with an investor who can purchase the lots we produce for the concept we have discussed, and then we work together to be sure the homes are built according to a pre agreed upon design criteria. If this is something you want to pursue let me know.”

Purser did not respond, and there was no further communication for almost five years. The email—and its legal characterization—became the centerpiece of his later contract claim.

B. The Halandras Property and Re‑Zoning Strategy

In 2017, Purser reappeared, now focused on the adjoining Halandras property, which he urged Gilliland to purchase. The Halandras owners had promised Purser a fee if he found a buyer. A Gilliland-affiliated entity, Taurus of Texas GP, LLC, entered into a purchase contract in May 2018, but with a discretionary termination option.

Evidence suggested that Taurus never intended to close on the Halandras tract. Instead, the purchase agreement—and Taurus’s $300,000 in deposits—functioned as leverage to:

Obtain favorable re-zoning of the Halandras tract; and
Use that approval to re-zone the Merkel tract, thereby increasing its value.

Once the re-zoning was accomplished, Taurus terminated its Halandras contract, and the Merkel tract was later sold to a buyer Purser had previously introduced. Gilliland offered Purser $20,000 as a “courtesy thank-you”, which Purser rejected, instead demanding “several million dollars.”

C. Claims in the District Court

Purser initially advanced a third-party beneficiary theory based on Taurus’s Halandras purchase contract, but he later abandoned that claim. His amended pleadings asserted:

Breach of contract: Defendants allegedly promised in December 2012 that Purser would receive “a commission, finder’s fee, or some other form of payment” for selling lots they developed on the Merkel and Mosaic tracts.
Unjust enrichment: Purser alleged that he lobbied the city, introduced Gilliland to influential local actors, located a buyer and builder, and devoted years to research and strategy—benefits for which defendants were allegedly unjustly enriched.

The district court:

Dismissed the contract claim under Rule 12(b)(6), holding that Purser failed to plausibly plead the existence of any contract.
Granted summary judgment on unjust enrichment, finding his theories either legally barred or improperly raised for the first time at summary judgment.

Purser appealed pro se.

II. Precedents and Authorities Cited

A. Pleading Standards and Use of Extrinsic Documents

Sagome, Inc. v. Cincinnati Ins. Co., 56 F.4th 931 (10th Cir. 2023)
- Cited for the Rule 12(b)(6) standard and de novo review: the appellate court applies the same plausibility standard as the district court.
Matney v. Barrick Gold of North America, 80 F.4th 1136 (10th Cir. 2023)
- Used to distinguish between conclusory allegations (which lack “factual enhancement” and must be disregarded) and well-pled facts that the court treats as true.
- Also cited to justify rejecting complaint allegations that are contradicted by documents incorporated into the pleadings.
Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010)
- Authority for the “incorporation by reference” doctrine in Rule 12(b)(6) practice: courts can consider documents attached to a motion to dismiss where they are referenced in the complaint, central to the claim, and undisputed in authenticity.
Tran v. Trustees of State Colleges in Colorado, 355 F.3d 1263 (10th Cir. 2004)
- First, it supports the ruling that issues not raised in the opening brief are waived on appeal.
- Second, it supports the district court’s reliance on extrinsic documents when properly incorporated.

B. Colorado Contract Law and Preliminary Negotiations

McAuliffe v. Vail Corp., 69 F.4th 1130 (10th Cir. 2023)
- Cited for the elements of a Colorado breach-of-contract claim, including that a party must plead facts plausibly alleging the existence of a contract.
Sumerel v. Goodyear Tire & Rubber Co., 232 P.3d 128 (Colo. App. 2009)
- A key Colorado case recognizing that “preliminary negotiations” are not offers capable of acceptance.
- Held that an email using “qualifying and indefinite language” and soliciting a return call, not an acceptance, did not constitute an offer.
- The Tenth Circuit relies heavily on Sumerel to characterize the Gilliland 2012 email as non-contractual, conditional, and indefinite, hence not an offer.

C. Colorado Unjust Enrichment and “Forced Exchange”

DCB Construction Co. v. Central City Development Co., 965 P.2d 115 (Colo. 1998)
- Quoted by the district court (and described in the appellate opinion) for the proposition that parties are “generally not liable for services or goods for which [they] did not contract.”
- Supports the principle that unjust enrichment cannot be used to impose liability for unrequested benefits the recipient should have been free to decline—a “forced exchange.”
Restatement (Third) of Restitution and Unjust Enrichment § 2(4) (2011)
- Quoted for the concept that unjust enrichment liability should not be imposed for a “forced exchange,” that is, for benefits that the recipient should have been free to refuse.
- This Restatement provision undergirds the district court’s and Tenth Circuit’s rejection of Purser’s unjust enrichment theory regarding his voluntary lobbying and development work.

D. Pro Se Litigation and Appellate Waiver

Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005)
- Establishes that courts liberally construe pro se filings but do not act as advocates: they will not search the record or construct arguments for the litigant.
Iweha v. Kansas, 121 F.4th 1208 (10th Cir. 2024)
- Reinforces that “[t]he first task of an appellant is to explain to us why the district court’s decision was wrong.”
- Used here to underscore that failing to address the district court’s actual reasoning on unjust enrichment is fatal to the appeal.
Tran v. Trustees of State Colleges in Colorado, supra
- Cited again for the rule that issues not raised in the opening brief are deemed abandoned or waived.

III. The Court’s Legal Reasoning

A. No Enforceable Contract: Characterizing the 2012 Email

Under Colorado law, a breach-of-contract claim requires, at the threshold, the existence of a contract. The Tenth Circuit agreed with the district court that Purser’s pleadings failed to plausibly allege contract formation.

1. Preliminary negotiations versus an offer

The court framed Gilliland’s December 2012 email as a classic case of preliminary negotiations, not a definite offer:

The email expressed “my thought at this point,” signaling a tentative, exploratory mindset rather than a firm commitment.
It conditioned Purser’s involvement on future steps—“that you align yourself with an investor” and “we work together” to ensure a pre-agreed design—none of which were specified with contractual precision.
Crucially, it concluded “If this is something you want to pursue let me know.” This language invites further discussion rather than conveying a present, definite promise.

Drawing on Sumerel, the court held that communications which merely contemplate further negotiations or solicit a response are not offers “properly capable of acceptance.” Like the email in Sumerel, Gilliland’s email used qualifying and indefinite language and asked for a follow-up (“let me know”), not an acceptance of any concrete offer.

Therefore, the email “reflects that no agreement was made” and “left open the potential for future negotiations.” It did not constitute an offer; hence, there could be no acceptance and no contract.

2. The unilateral offer theory and alleged acceptance by performance

On appeal, Purser attempted to salvage his contract claim by recasting Gilliland’s 2012 email as a unilateral offer—a promise that could be accepted by performance alone—allegedly accepted in 2018 when he “aligned himself with an investor,” namely, the eventual Merkel buyer.

The court rejected this theory as implausible on several grounds:

Because the 2012 email was not an offer in the first place, it could not be transformed into a unilateral offer.
The idea that a five-year gap, with no communication, could yield a delayed acceptance of a non-offer underscores the implausibility under basic contract principles.
Contract formation under Colorado law still requires the basic sequence: one party makes an offer; the other accepts. Where no offer exists, later performance cannot create a contract based on that communication alone.

The court quoted Sumerel: contract formation requires that “one party makes an offer and the other accepts it.” That prerequisite was missing.

3. Conclusory and contradictory allegations in the complaint

Purser’s complaint stated that “Gilliland promised that he would build the lots on the Mosaic or Merkel Tract and that Mr. Purser… would sell the lots.” The Tenth Circuit treated this as a conclusory allegation lacking factual enhancement and, moreover, contradicted by the actual email.

Under the Twombly/Iqbal framework (as applied in Matney), courts must:

Disregard bare legal conclusions couched as factual allegations; and
Reject allegations contradicted by incorporated documents—here, the 2012 email—properly considered at the 12(b)(6) stage under Gee.

The email’s text did not contain a promise that Purser would be paid a commission or other fee; at most, it articulated a conceptual pathway for future collaboration. Thus, the complaint’s assertion of a “promise” was not only conclusory but also inconsistent with the document at the core of the claim.

Once the court set aside these defective allegations, what remained did not plausibly indicate contract formation. The court therefore affirmed the dismissal of the breach-of-contract claim.

B. Unjust Enrichment: Substantive Limits and Procedural Waiver

The Tenth Circuit also affirmed the entry of summary judgment on Purser’s unjust enrichment claim, but primarily on procedural grounds: waiver on appeal. Nonetheless, the underlying district court reasoning, as summarized in the opinion, illuminates the substantive limits on unjust enrichment.

1. First theory: lobbying, introductions, and development efforts

Purser claimed he had conferred benefits by:

Lobbying city officials for re-zoning;
Introducing Gilliland to influential people;
Identifying buyers and builders; and
Devoting years to strategy and consultation.

The district court, whose reasoning the Tenth Circuit recites without criticism, concluded that this theory failed as a matter of law because:

Purser could have attempted to form a contract with defendants before undertaking the work, but did not.
Under DCB Construction and Restatement (Third) § 2(4), the law generally does not impose liability for unrequested benefits when the recipient should have been free to decline them; that would result in an impermissible “forced exchange.”
Allowing restitution in such circumstances would effectively reward a party for unilaterally conferring benefits and later demanding payment, undermining the contract system.

In short, unjust enrichment is not a fallback for someone who could have but did not secure contractual protection for services rendered in a speculative, exploratory relationship.

2. Second theory: enrichment via the Halandras contract

Purser also advanced an unjust enrichment theory premised on Taurus’s Halandras purchase contract and resultant re-zoning benefits. The district court rejected this theory on procedural grounds:

Purser had not pled this theory in his complaint.
He attempted to introduce it at the summary judgment stage, which the court deemed an improper attempt to amend by briefing.

The district court also added an alternative, substantive ground: even if the theory had been pled, it would likely fail because Purser’s alleged agreement with the Halandras owners was “transparently a generic real estate commission,” and Colorado law prohibits recovery of such commissions by individuals lacking an active real estate license.

On appeal, however, Purser chose to challenge only this secondary issue, arguing that his arrangement was a lawful “finder’s fee,” not a prohibited “commission.” The Tenth Circuit observed that:

This dispute over licensing and characterization of the fee did not address the primary and dispositive reason the district court rejected the theory: it was never pled in the complaint.
Because Purser did not explain why the district court was wrong on that dispositive procedural ground, he failed to carry his burden as an appellant.

3. Appellate waiver of the unjust enrichment issues

The Tenth Circuit framed the result as one of waiver (or abandonment) on appeal:

Under Tran, issues not raised in the opening brief are deemed waived.
Under Iweha, an appellant’s “first task” is to explain why the district court was wrong; failure to grapple with the court’s reasoning amounts to forfeiture.
Although Purser was pro se, Garrett makes clear that liberal construction does not extend to creating arguments on his behalf.

Because Purser:

Did not contest the district court’s rationale that his first unjust enrichment theory (for lobbying, etc.) was legally barred under Colorado unjust enrichment law; and
Challenged only a non-dispositive, alternative ground for rejecting his second theory, without addressing the dispositive pleading defect;

the Tenth Circuit held that he had waived any challenge to the summary judgment on unjust enrichment.

IV. Impact and Implications

A. Real Estate and Development Collaborations: The High Cost of Informality

For developers, consultants, and “idea people,” the decision is a cautionary tale:

Emails that use conditional, exploratory language (“my thought at this point”; “if you have an interest”; “if this is something you want to pursue”) will almost certainly be construed as preliminary negotiations, not binding commitments.
Even extensive work—lobbying for re-zoning, making introductions, conceptual planning—may not be compensable absent a clear contract or a narrowly defined, properly pled unjust enrichment theory that avoids “forced exchange” concerns.
Individuals who anticipate receiving a commission-like payment for real estate deals must be especially mindful of licensing laws, as courts may treat “finder’s fees” as de facto commissions.

The case incentivizes parties to reduce expectations to clear, written agreements—particularly where significant time and money will be spent on speculative development efforts.

B. Clarifying the Boundary Between Preliminary Negotiations and Binding Offers

By relying on Sumerel and applying it to a modern email exchange, the Tenth Circuit emphasizes:

The objective manifestations in the text of a communication control, not one party’s subjective belief that a “deal” existed.
Courts will examine indefiniteness, qualifying language, and calls for further discussion as indicators that the parties are still negotiating.
When such features are present, a plaintiff faces an uphill battle in plausibly alleging that a definite offer was made.

This has practical resonance for all business communications: informal, conceptual emails rarely make contracts.

C. Limits of Unjust Enrichment and the “Forced Exchange” Concept

The opinion, through its approval of the district court’s reasoning, reinforces a key Restatement principle: unjust enrichment is not a cure-all for a party’s unbargained efforts.

If a party could have, but did not, negotiate a contract, courts are reluctant to reshape the legal relationship ex post via restitution.
Permitting recovery for unrequested services can effectively compel parties to pay for benefits they did not agree to receive, undermining the freedom not to contract.

For professionals who routinely work “on spec” (consultants, concept developers, intermediaries), the decision underscores the importance of:

Securing clear compensation agreements before undertaking substantial work; or
At a minimum, carefully documenting expectations in a way that could plausibly be construed as an offer capable of acceptance.

D. Appellate Practice: The Rigors of Waiver, Even for Pro Se Parties

From a litigation perspective, Purser v. Gilliland is a sharp reminder that:

An appeal is not an opportunity to re-litigate the case on new theories or to focus on side issues; it is a focused challenge to specific rulings.
Each independent ground of a district court’s decision must be directly addressed and shown to be erroneous; ignoring any one of them normally results in affirmance on that unchallenged ground.
Being pro se does not excuse compliance with basic appellate requirements; courts may be generous in reading briefs but cannot become advocates.

This aspect of the decision will be frequently cited persuasively in the Tenth Circuit to support dismissal or affirmance based on waiver, especially in cases where appellants fail to confront key aspects of the district court’s analysis.

Complex Concepts Simplified

Below are brief explanations of some of the core legal concepts in the opinion:

Diversity jurisdiction (28 U.S.C. § 1332): Federal courts can hear civil cases where the parties are from different states and the amount in controversy exceeds a statutory threshold. State substantive law (here, Colorado’s) generally applies.
Rule 12(b)(6) dismissal: A motion to dismiss for “failure to state a claim on which relief can be granted.” The court assumes well-pled facts are true but disregards legal conclusions, and asks whether the complaint plausibly alleges a legal claim.
Summary judgment: A mechanism to resolve a case without trial when there is no genuine dispute of material fact and the law clearly favors one side, based on evidence (affidavits, documents, deposition testimony, etc.).
Preliminary negotiations vs. offer:
- Preliminary negotiations are early-stage discussions about a potential deal, often conditional and indefinite.
- An offer is a definite expression of willingness to be bound, so that the other party’s acceptance completes a contract.
- Emails phrased as “my thought is,” “if you are interested,” “if you want to pursue, let me know” are typical of negotiation, not binding offers.
Unilateral contract: A contract formed when one party makes a promise that is accepted by the other party’s performance, not by a return promise. But there must still be a clear offer specifying that performance will constitute acceptance.
Unjust enrichment: An equitable doctrine allowing recovery where one party has been unfairly enriched at another’s expense under circumstances that make it unjust to retain the benefit without paying. It is not a substitute for every failed or absent contract.
“Forced exchange” in restitution: The idea that the law generally does not force someone to pay for benefits they did not request and should have been free to refuse. Restitution is usually denied for unsolicited benefits that impose costs on the recipient without their consent.
Appellate waiver / abandonment: If a party does not raise an issue or challenge a specific ground of the lower court’s decision in the opening brief on appeal, courts treat that issue as forfeited and will not consider it.
Pro se litigant: A person who represents themselves without an attorney. Courts read their filings generously but still require them to follow substantive and procedural rules.
Third-party beneficiary: Someone who is not a party to a contract but is intended by the contracting parties to benefit from it and, under certain conditions, can sue to enforce it. Purser started with this theory but abandoned it.
Finder’s fee vs. commission:
- A finder’s fee is often described as compensation for simply introducing parties who then negotiate their own deal.
- A commission generally implies real estate brokerage activity—marketing, negotiating, or otherwise facilitating the transaction—which usually requires a license under state law.
- The distinction can be critical because unlicensed persons often cannot legally collect commissions.

Conclusion

Purser v. Gilliland reinforces several foundational principles of contract, restitution, and appellate law under Colorado and Tenth Circuit authority:

Preliminary, conditional emails about future real estate development—even if followed by substantial voluntary efforts—do not by themselves create enforceable contracts absent a definite offer capable of acceptance.
Unjust enrichment is carefully cabined: it does not allow a party to recover for unrequested services where that party could have sought a contract in advance, nor does it excuse failures in pleading and procedure.
Appellate waiver is strictly enforced: an appellant, even pro se, must directly challenge each dispositive ground of the lower court’s judgment or forfeit appellate review of that issue.

While technically nonprecedential, the decision provides a clear, persuasive roadmap for future disputes in the Tenth Circuit involving:

Informal development collaborations;
Alleged “finders” or intermediaries seeking large payouts without formal agreements; and
Pro se litigants appealing dismissals or summary judgments without systematically addressing the district court’s reasoning.

The core lesson is straightforward but powerful: sign contracts before you invest substantial effort; do not rely on preliminary emails; and, on appeal, attack every dispositive ground or risk losing by silence.