Cite as Lippard v. Guldman, No. 99 CA 1729 (Colo.Ct.App. November 9, 2000) Karl Lippard and First National Gunbanque Corp., Inc., Plaintiffs-Appellants, v. Leonard H. Guldman, individually; and L&M Firing Line, Inc., a Colorado corporation, d/b/a The Firing Line, Inc., Defendants- Appellees. COLORADO COURT OF APPEALS, Division III November 9, 2000 No. 99CA1729 NOT SELECTED FOR PUBLICATION Appeal from the District Court of El Paso County Honorable Timothy J. Simmons, Judge No. 96CV2586 Retherford, Mullen, Johnson & Bruce, Anthony A. Johnson, Colorado Springs, Colorado, for Plaintiffs-Appellants James A. Dubee, Denver, Colorado, for Defendants-Appellees JUDGMENT AFFIRMED Opinion by JUDGE DAILEY. Ney and Erickson*, JJ., concur *Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 5(3), and 24-51-1105, C.R.S. 2000. Plaintiffs, Karl Lippard (Lippard) and First National Gunbanque Corp., Inc. (FNGB), appeal from a judgment awarding partial relief on an open account and otherwise denying relief against defendants Leonard H. Guldman (Guldman) and L&M Firing Line, Inc. (Firing Line) on claims of breach of contract and intentional interference with a contract. We affirm. I. Background Plaintiff Lippard owns and operates FNGB, a corporation that buys, and sells expensive and unique firearms and is licensed to import firearms into the United States. FNGB entered into a contract with an Italian gun manufacturer, Gamba SAB (Gamba), whereby FNGB would be Gamba's exclusive importer for three years in North America, South America, and South Africa. FNGB then recruited certain dealers to purchase from it Gamba guns for resale to their customers. One of FNGB's dealers was defendant Firing Line, a Colorado based company owned and operated by defendant Guldman. If a dealer wanted a Gamba gun, either for its own inventory or for a customer, the dealer placed an order with FNGB, FNGB ordered the gun from Gamba, Gamba manufactured and shipped the gun to FNGB, FNGB delivered the gun to the dealer, and subsequently FNGB invoiced the dealer for the purchase. Gamba did not manufacture guns until they were ordered and dealers did not pay for guns until they were received from FNGB. About a year into its contract with Gamba, FNGB was unable to pay Gamba for a significant number of guns that Gamba had either shipped to FNGB or manufactured for shipment to FNGB. Guldman visited Gamba's factory in Italy. There, Guldman saw guns which he had ordered but-which FNGB claimed had not yet been manufactured. Guldman also purchased an engraved Maxim rifle for approximately $27,000. When he tried to import the Maxim into the United States under FNGB's license, claiming a much reduced value, Lippard reported him to the federal government and the Bureau of Alcohol, Tobacco, and Firearms confiscated the rifle. Guldman then either (according to FNGB) canceled or (according to Guldman) put on hold his order of 8 guns from FNGB. FNGB then terminated Firing Line's position as dealer, and thereafter a series of events occurred which culminated in Firing Line replacing FNGB as the exclusive importer of Gamba guns. First, FNGB sought to replace Firing Line with King of the Mountain (KOM), a distributor of hunters' clothing. KOM agreed to purchase FNGB's excess inventory of 31 guns in the United States and 27 guns in Italy. After KOM advised Guldman of the KOM-FNGB agreement, Guldman attempted to dissuade KOM from doing business with FNGB. Next, FNGB requested a reduction from 200 to 125 in the number of guns it was required to purchase each year from Gamba. Gamba, however, would not discuss future business dealings until after FNGB paid the $114,000 it still owed Gamba with respect to guns which had been delivered to FNGB. As a result of the KOM deal, FNGB was able to obtain a $150,000 line of credit and sent Gamba $114,000. Gamba nonetheless expressed concern about FNGB's financial stability, and terminated the FNGB contract, stating that FNGB had failed to place the required minimum gun purchase orders. Gamba related to FNGB that it would hold KOM's 27 guns in Italy only for another month, and that it would discuss the possibility of a new business arrangement once payment had been received for those guns. Gamba's deadline passed without FNGB paying for KOM's guns. When KOM discussed the situation with Gamba, it discovered that Gamba was no longer interested in doing business with FNGB. Because KOM was itself interested in proceeding with the gun sales only if plaintiff Lippard was involved, it canceled its order with Gamba. Shortly thereafter, Firing Line became Gamba's exclusive importer in the United States. Lippard and FNGB instituted this action against Guldman and Firing Line, claiming that they had failed to pay an open account, breached a contract, and intentionally interfered with the Gamba contract. At trial, plaintiffs presented evidence that Guldman and Firing Line had interfered or tried to interfere with the FNGB- Gamba contract, by: (1) Guldman discussing with Gamba, prior to Guldman's trip to Italy, FNGB's finances and the ramification of "going around" FNGB; (2) Guldman and Gamba discussing, during Guldman's trip to Italy, FNGB's financial difficulties, FNGB's lack of marketing, and the need to replace FNGB as Gamba's importer; (3) Guldman knowing that placing Firing Line's order on hold would increase the tension between Gamba and FNGB; (4) Guldman advising KOM to stay out of the deal; and (5) Gamba sending Guldman a list of guns just prior to terminating its contract with FNGB. Defendants, however, presented contradictory evidence that (1) Guldman's discussions with Gamba prior to his trip to Italy occurred in Lippard's presence; (2) Guldman did not discuss with Gamba replacing FNGB during his trip to Italy; (3) Guldman placed Firing Line's order on hold because Lippard and FNGB caused the confiscation of the maxim rifle; and (4) Guldman met with Gamba during the time the FNGB-KOM deal was being contemplated, but the meeting was limited to addressing the problem of the Maxim rifle. After a bench trial, the court awarded plaintiffs $1936.56 on unpaid balances on outstanding invoices and denied plaintiffs relief with respect to their other claims. II. Damages on the Open Account Plaintiffs contend that the trial court erred in applying a "set-off" when awarding judgment for money due on an open account. We disagree. The trial court determined that Firing Line owed $4720.60 to FNGB for outstanding invoices. However, the court found that Firing Line was entitled to a "set-off" for returned chokes, subtracted that amount from the outstanding invoices, and entered judgment of $1936.56. FNGB's accountant testified that there were 5 outstanding invoices Firing Line had not paid, and the total of those invoices was $4,720.66. The accountant also stated that he did not know what was included on the invoices or whether there were charges in dispute, and the invoices were not offered into evidence. Guldman testified that Firing Line returned 70 chokes to FNGB and therefore sought a credit of $2716. There was no evidence that the chokes were not returned or the chokes were not worth $2716. Instead, the plaintiffs argue, for the first time on appeal, that the chokes were not defective and that they were not returned within 10 days of receipt as required by plaintiffs, invoice. However, because plaintiffs did not timely present these arguments to the trial court, we will not consider them on appeal. See Hoyman v. Coffin, 976 P.2d 311 (Colo. App. 1998)(Issues not relating to jurisdiction must be raised in the trial court, otherwise they are deemed waived and will not be considered on appeal). III. Breach of Contract Plaintiffs contend that the trial court erred in determining that defendants were not liable for damages in connection with defendants, breach of contract. According to plaintiffs, defendants contracted to purchase guns, but then repudiated the contract. This anticipatory repudiation, plaintiffs claim, released them from any further obligation under the contract and permitted them to seek damages for $16,000 in lost profits. Again, we disagree. The trial court found that defendants were mt liable for lost profits because plaintiffs had "failed to establish that the agreement between the parties was to prepay for ordered goods, prior to shipment." The parties agree that prepayment was not a required part of the contract; they dispute, however, the character of the actions taken by defendants and the consequences flowing from those actions. Lippard testified that Guldman canceled the order, but Guldman testified that he only put the order on hold. Guldman claimed that the order was not even scheduled for shipment until a number of months later; and Firing Line was terminated as a dealer around the time of the next scheduled shipment. The credibility of witnesses, and the sufficiency, probative effect, and weight of the evidence, as well as any inferences or conclusions to be drawn therefrom, are all within the province of the trial court. Its findings upon these matters will not be disturbed on review unless they are so clearly erroneous as not to find support in the record. Telluride Real Estate Co. v. Penthouse Affiliates, LLC, 996 P.2( 151 (Colo. App. 1999). Furthermore, in reviewing the trial court's findings, we view the record in the light most favorabl to the judgment, the presumption being that the trial court is correct. Silverberg v. Colantuno, 991 P.2d 280 (Colo. App. 1998). In view of these principles, we interpret the trial court's finding here as determining that the contract had not been breached but rather simply placed on hold by the defendants. Consequently, no payment could be expected until FNGB tendered the ordered Gamba guns to defendants. Because the record contains evidence supporting the trial court's ruling, we are not at liberty to disturb it on appeal. See Machol v. Sancetta, 924 P.2d 1197 (Colo. App. 1996)(a reviewing court does not substitute its conclusions for those of the trial court even where evidence is conflicting and there may be credible evidence supporting a different result). We conclude that the trial court's finding was not clearly erroneous and, hence, must be affirmed on appeal. IV. Interference with Contract Plaintiffs also contend that the trial court erred in concluding that defendants had not intentionally interfered with plaintiffs, contract with Gamba. We are not persuaded. According to plaintiffs, defendants interfered with the Gamba contract by: (1) canceling their purchase order, which served to increase the financial stress between FNGB and Gamba; and (2) negotiating directly with Gamba to replace FNGB as the importer of Gamba guns. The trial court found that the plaintiffs failed to prove by a preponderance of the evidence that defendants intentionally interfered with the FNGB-Gamba contract. In this regard, the court found persuasive facts that: (1) Gamba was concerned about FNGB1s financial difficulties prior to the time FNGB experienced any problems with defendants; (2) Gamba planned to terminate its relationship with FNGB because it had not paid for past-ordered guns; and (3) KOM's unwillingness to proceed with arrangements with FNGB to pay for back-ordered guns was unrelated to any conversations KOM had with Guldman. The tort of intentional interference with a contract is established by showing that 1) the plaintiff had a contract with another party; 2) the defendant knew or should have known of such a contract's existence; 3) the defendant intentionally and improperly interfered with the contract causing the third party not to perform; and 4) the defendant's conduct caused the plaintiff damages. Memorial Gardens, Inc. v. Olympian Sales, 690 P.2d 207 (Colo. 1984). Here, the trial court essentially found that plaintiff failed to prove the causation elements of the intentional interference with a contract claim. The evidence presented to the trial court suggested a number of possible causes for the termination of FNGB's contract with Gamba, including potentially improper activity by defendants and Gamba's independent concerns with FNGB's financial solvency, failure to purchase a required minimum number of guns, and failure to pay for guns by a certain deadline. The issue here is not whether the plaintiffs presented a prima facie case sufficient to survive a motion for a directed verdict, but rather whether the record supports the trial court's finding that plaintiffs failed to meet their burden of persuasion. Compare Rocky Mountain Hospital & Medical Service v. Mariani, 916 P.2d 519 (Colo. 1996) with Telluride Real Estate Co. v. Penthouse Affiliates, LLC, supra. Because there was evidence presented of different potential causes for the termination of the FNGB-Gamba contract, and because some of those causes were unrelated to any activity on defendants' part, we cannot disturb the trial court's dismissal of plaintiffs, claim for lack of persuasive proof on causation issues. See Telluride Real Estate Co. v. Penthouse Affiliates,_ L.L.C., supra (the credibility of witnesses, and the sufficiency, probative effect, and weight of the evidence are all within the province of the trial court). Cf. Absolute Employment Services, Inc. v. Industrial Claim Appeals Office, 997 P.2d 1229 (Colo. App. 1999)("Although there may be some evidence in the record from which the ALJ could have drawn (a particular] inference . . ., he certainly was not compelled to find this evidence persuasive . . . ."). Accordingly, the judgment is affirmed. JUDGE NEY and JUSTICE ERICKSON concur.