Casas v. Park Forest Water

Opinion

25CA1212 Casas v Park Forest Water 07-23-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1212 El Paso County District Court No. 23CV32033 Honorable Gregory R. Werner, Judge

Casas Limited Partnership #4, a Colorado Limited Partnership, and IQ Investors, LLC,

Plaintiffs-Appellants,

v.

Park Forest Water District,

Defendant-Appellee.

JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division III Opinion by JUDGE KUHN Johnson and Martinez*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 23, 2026

The Law Office of Stephen A. Hess, P.C., Stephen A. Hess, Colorado Springs, Colorado, for Plaintiffs-Appellants

MacDougall & Woldridge, P.C., Julianne M. Woldridge, Woodland Park, Colorado, for Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Can property owners who fail to fulfill a condition precedent in

an inclusion agreement with a special water district require the

special district to still provide water under the agreement? We

conclude that they cannot, and consequently, we affirm.

I. Background

¶2 Plaintiffs, Casas Limited Partnership #4, a Colorado limited

partnership, and IQ Investors, LLC (the owners), purchased seventy

acres of real property in El Paso County. The property contained an

existing, occupied house, referred to here as the Kurie Road House.

In 2013, the owners began building a new house on the property,

which they called the Eagle Wing House. That same year, the

owners also applied to the El Paso County planning authorities for

approval to subdivide the property into lots.

¶3 In 2014, the owners entered into an inclusion agreement with

defendant, Park Forest Water District (the special district), a special

water district. See §§ 32-1-101 to -113, C.R.S. 2025. In the

inclusion agreement, the special district agreed to facilitate legally

incorporating the owners’ property into its service area. As long as

the owners complied with specified terms, the special district agreed

that it would provide the property with domestic water. However, a

1 precondition to the special district providing water under the

inclusion agreement was that the owners needed to complete the

pending subdivision process for the property.

¶4 Over the ensuing years, the owners made several requests for

water from the special district for the Eagle Wing House. The

special district denied each of these requests. Most recently, in

2021, the owners requested that the special district approve a tap

line that would provide domestic water to the Eagle Wing House.

The special district responded that the owners still hadn’t

completed the subdivision process as required by the inclusion

agreement. Consequently, the special district again refused to

provide water.

¶5 The owners responded with a lawsuit, bringing a single claim

for breach of contract that sought damages. The special district

moved to dismiss the complaint under C.R.C.P. 12(b)(1). And the

trial court granted the motion, reasoning that the owners had failed

to timely comply with the notice requirement of the Colorado

2 Governmental Immunity Act (CGIA).1 See §§ 24-10-101 to -120,

C.R.S. 2025. However, the court also permitted the owners to

amend their complaint to seek specific performance or injunctive

relief, which the court indicated would make the CGIA

inapplicable.2

¶6 In response, the owners filed an amended complaint and

brought three new claims: specific performance for breach of

contract, declaratory judgment, and permanent injunction.3

Following a bench trial, the court found that the inclusion

1 The owners moved the trial court to reconsider the C.R.C.P.

12(b)(1) dismissal, and they requested a Trinity hearing to decide the disputed fact of whether the owners had timely complied with the CGIA’s notice deadline. See Trinity Broad. of Denv., Inc. v. City of Westminster, 848 P.2d 916, 924-25 (Colo. 1993). The court held a Trinity hearing, denied the motion for reconsideration, and upheld the dismissal.

2 While the CGIA may not bar certain claims that seek declaratory

or injunctive relief, we aren’t aware of case law holding that the CGIA never applies to such claims. See Upper Platte & Beaver Canal Co. v. Riverview Commons Gen. Improvement Dist., 250 P.3d 711, 714 (Colo. App. 2010) (“[E]quitable and declaratory claims may be, but are not necessarily, barred by the CGIA.”). Still, neither party disputes this ruling.

3 We note that “an injunction, even if pleaded as a claim for relief, is

a remedy, not an independent cause of action.” Coomer v. Donald J. Trump for President, Inc., 2024 COA 35, ¶ 217.

3 agreement established the rights between the parties regarding how

the water would be provided to the property. The court further

found that the completion of the subdivision process was a

condition precedent to the special district’s duty to provide water

under the agreement. The court therefore denied the owners’

claims on their merits because the owners failed to complete the

subdivision process as required by the inclusion agreement.

Additionally, the court awarded attorney fees to the special district.

II. Analysis

¶7 On appeal, the owners contend that the trial court erred by

denying the three claims asserted in their amended complaint and

by granting the special district’s motion to dismiss. We address

each issue in turn.

A. Denial of Claims

¶8 The owners first contend that the trial court erred by denying

their claims — namely, that the owners’ failure to complete the

subdivision process meant the special district wasn’t required to

provide water to the Eagle Wing House. To address this contention,

we must first examine the text of the inclusion agreement. We then

4 review whether the court erred in its findings regarding the special

district’s obligation to provide water to the property.

1. Standard of Review

¶9 A judgment after a bench trial presents a mixed question of

law and fact. Frisco Lot 3 LLC v. Giberson Ltd. P’ship, LLLP, 2024

COA 125, ¶ 66. “We review the trial court’s legal conclusions,

including its application of the governing legal standards, de novo,

and we will not disturb its factual findings unless they are clearly

erroneous and not supported by the record.”4 Id. “A court’s factual

finding is clearly erroneous [only] when it has no record support.”

Cronk v. Bowers, 2023 COA 68M, ¶ 12 (citation omitted). “The

credibility of witnesses, 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.” Gold Hill

4 We note that decisions on injunctive relief and whether to enter a

declaratory judgment are reviewed for an abuse of discretion. Markwell v. Cooke, 2021 CO 17, ¶ 21; Trinidad Area Health Ass’n v. Trinidad Ambulance Dist., 2024 COA 113, ¶ 35. However, we don’t need to address whether the trial court abused its discretion because the court denied the claims without reaching the requested relief, and the owners’ challenges on appeal target only the court’s findings on the underlying merits.

5 Dev. Co., L.P. v. TSG Ski & Golf, LLC, 2015 COA 177, ¶ 7 (citation

omitted).

¶ 10 Agreements to include property from outside a special district

as part of the district are contractual in nature. See Schlarb v. N.

Suburban Sanitation Dist., 357 P.2d 647, 648 (Colo. 1960); see also

§ 32-1-402(1)(c), C.R.S. 2025 (“Nothing in this section shall prevent

an agreement between a board and the owners of property sought

to be included in a special district with respect to the fees, charges,

terms, and conditions on which such property may be included.”).

We review contracts de novo. French v. Centura Health Corp., 2022

CO 20, ¶ 24. The primary goal of contract interpretation is to

determine and give effect to the parties’ intent. Id. at ¶ 25. This

intent is primarily ascertained from the language of the contract

itself. Id. “When a written contract is complete and free from

ambiguity, we will deem it to express the parties’ intent and enforce

it according to its terms.” Id. “A condition precedent is ‘[a]n act or

event, other than a lapse of time, that must exist or occur before a

duty to perform something promised arises.’” Soicher v. State Farm

Mut. Auto. Ins. Co., 2015 COA 46, ¶ 22 (alteration in original)

(quoting Black’s Law Dictionary 355 (10th ed. 2014)).

6 2. Interpretation of the Inclusion Agreement

¶ 11 Reviewing the inclusion agreement de novo, the agreement

“set[s] forth the terms and provisions under which the [p]roperty is

to be included within [the special district].” The inclusion

agreement applies to the property as a whole and does not contain

specifications for particular houses.

¶ 12 As it relates to the proposed subdivision, provisions in the

inclusion agreement state that completion of the subdivision

process by the owners — along with court approval of the

inclusion — is a precondition to the entire agreement. The following

provisions define completion of the subdivision as a condition

precedent to the special district’s obligations to provide water:

• “The [p]arties agree and acknowledge that this

[a]greement is premised upon (a) completion of the

pending subdivision process by [the owners] . . . ; and

(b) approval by the [d]istrict [c]ourt of [a] [p]etition for

[i]nclusion.”

• “[The special district] acknowledges that [the owners]

[are] currently processing a request for subdivision of the

property through El Paso County planning authorities,

7 and that the terms and conditions of this [i]nclusion

[a]greement are premised upon successful completion of

that subdivision process.”

• “Contingencies. This [i]nclusion [a]greement is

conditional upon obtaining the formal inclusion of the

[p]roperty into [the special district] by order of the El Paso

County District Court, and upon completion of the

pending subdivision of the property by El Paso County

planning authorities.”

¶ 13 The agreement further states that the owners “will abide by all

terms of this [i]nclusion [a]greement” and that the special district

“shall not provide any water service if [the owners] . . . are not in

compliance with this [a]greement.”

¶ 14 We conclude that the inclusion agreement’s plain language is

unambiguous. According to its clear terms, the entire agreement is

“premised” and “conditional” on the owners completing the

subdivision process, which is a condition precedent to the special

district’s obligation to perform. See id. at ¶ 22. Under the

agreement, then, so long as the owners haven’t completed the

subdivision, the special district doesn’t have to “provide any water

8 service” to the property, which necessarily includes the Eagle Wing

House.

3. The Owners Failed to Fulfill the Condition Precedent of Completing the Subdivision Process

¶ 15 The owners claim that the trial court erred by finding that they

hadn’t satisfied the subdivision condition precedent for the

following three reasons: (1) the parties expected, despite the

inclusion agreement, for the special district to provide water to the

Eagle Wing House, as demonstrated by the water it had already

provided to the Kurie Road House; (2) the special district’s conduct

showed that the owners had satisfied the conditions of the inclusion

agreement; and (3) the special district’s conduct proved it waived

the subdivision process as a condition precedent to its performance

under the inclusion agreement.

a. Additional Facts

¶ 16 According to the evidence and testimony presented at trial,

prior to 2013, the owners had two dedicated wells on the property

that provided domestic water, including for the Kurie Road House.

When the parties entered into the inclusion agreement in 2014, the

Kurie Road House was occupied and the Eagle Wing House was

9 under construction. After the parties entered into the inclusion

agreement, the special district obtained an order from the district

court that granted the inclusion of the property within the special

district.

¶ 17 Except for the completion of the subdivision process, the

owners argue that they generally complied with the provisions of

the inclusion agreement, including by transferring to the special

district their water and well rights, water-related infrastructure,

and easements. The owners also paid monthly water charges,

taxes, and mill levies.

¶ 18 The agreement further allowed the owners to pay a tap fee for

each new water line the owners wanted for the property, so long as

the special district’s board of directors approved the line. And the

special district provided a tap certificate for the Kurie Road House,

which meant that the house received domestic water from the

special district.

¶ 19 In 2021, the owners submitted a check to the special district

to pay a fee for a new tap line to the Eagle Wing House. The special

district’s board of directors declined to approve the tap line because

(1) a fire service line was interconnected with the domestic service

10 line in violation of the special district’s rules and regulations, and

(2) the owners hadn’t completed the subdivision process. The

special district refunded the owners’ money for the new tap line.

¶ 20 The owners then requested that the special district waive the

fire service line requirement. The special district’s board of

directors granted the waiver, but it also stated that the subdivision

process remained a precondition to receiving water at the Eagle

Wing House under the inclusion agreement.

¶ 21 In an oral ruling, the court found that the water supplied to

the Kurie Road House had no relevance to whether the special

district needed to provide water to the Eagle Wing House. The court

further found that the special district never waived the requirement

for the owners to complete the subdivision process.5 And the court

found that the owners were responsible for ensuring the completion

of the subdivision process, which they failed to do. Accordingly, the

court denied the owners’ request for a permanent injunction and

5 After the owners initially amended their complaint, the special

district moved for summary judgment. The court denied the motion because it found that whether the special district had waived the condition precedent remained a disputed material fact. Then, at trial, the court focused the parties on addressing only the issue of waiver. On appeal, neither party contests these rulings.

11 issued a final judgment denying the relief sought in the amended

complaint.6

b. The Record Supports the Trial Court’s Findings

¶ 22 First, the owners claim that the court erred by finding the

Kurie Road House’s water supply irrelevant to whether the special

district had to provide water to the Eagle Wing House. This is

because, the owners contend, under the inclusion agreement the

parties understood that the special district would provide water to

6 The trial court made its final ruling according to the factors for

preliminary injunctions. See Rathke v. MacFarlane, 648 P.2d 648, 653-54 (Colo. 1982). However, “the legal criteria and analytical process” for a preliminary injunction are “essentially the same” as for a permanent injunction except that, for the latter, the court considers actual success on the merits. Dallman v. Ritter, 225 P.3d 610, 621 (Colo. 2010). Here, the court concluded that the owners had to complete the subdivision condition precedent before the special district had to supply water and that the special district had not waived that requirement. Accordingly, the trial court concluded that the special district was not yet obligated to provide water. While the oral ruling could perhaps have been more explicit, we have little trouble discerning the trial court’s declaration of the parties’ rights on the key points or its conclusion that the special district did not breach the contract. Indeed, the special district’s success on the merits of the subdivision condition precedent issue — and the court’s related conclusion that the special district hadn’t breached the contract — was the basis for the court’s denial of a permanent injunction. But having concluded that there was no waiver of the condition precedent, and thus no breach, we perceive no error in the trial court not explicitly denying the remedy when it dismissed the underlying substantive claim.

12 the Eagle Wing House based on the special district providing water

to the Kurie Road House, which was similarly situated on the

property as the Eagle Wing House.

¶ 23 But the inclusion agreement, by its own terms, applies to the

entire property. It doesn’t address water for the Kurie Road House

specifically or contain any exception for that structure. Instead, the

agreement’s provisions lay out the requirements for the owners to

connect water lines to improvements on the property and request

new water lines for houses that might be developed in the future.

Nothing in the agreement suggests that the special district

continuing the water flow to a pre-existing, occupied house satisfied

any of the provisions or preconditions of the agreement.

¶ 24 Moreover, testimony elicited at trial further established that

the water provided to the Kurie Road House by the special district

didn’t contradict these terms. When the parties entered the

inclusion agreement, the Kurie Road House was occupied and

received water from the property’s wells, while the Eagle Wing

House was under construction, unoccupied, and without water.

The evidence also showed that this distinction between the houses

meant the Kurie Road House would continue to receive water

13 because it was an occupied homestead that would otherwise be

without water. However, that didn’t alter the requirement that

providing water through a new tap line to the Eagle Wing House

depended on the owners’ compliance with the inclusion agreement.

Thus, the inclusion agreement and evidence presented at trial

support the trial court’s finding that the Kurie Road House’s water

supply was irrelevant to whether the special district had to supply

water to the Eagle Wing House. See Cronk, ¶ 12. Given the

differences between the two properties — and the record evidence

supporting the trial court’s findings — we don’t perceive any error

in its conclusion on this point.

¶ 25 Second, the owners argue that the special district’s conduct

proved that it construed the owners as having already satisfied the

entire inclusion agreement. In support, the owners claim that we

must look to the parties’ practical construction of the inclusion

agreement in order to interpret their intentions regarding the

agreement’s ambiguous terms.

¶ 26 Yet, the owners don’t point to, and we don’t discern, any

ambiguity to the inclusion agreement. As we conclude above, its

express terms state that it is “premised” and “conditional” on

14 “completion of the pending subdivision of the property.” Therefore,

the owners’ argument fails because we must enforce the agreement

according to its unambiguous terms. Given the lack of ambiguity,

we agree with the trial court that the special district’s practical

conduct had no bearing on interpreting the parties’ intentions as

expressed in the agreement. See French, ¶ 25.

¶ 27 Third, the owners claim that the special district’s conduct also

demonstrated that the special district intentionally waived the

subdivision condition precedent. The owners assert that the special

district had benefited from the owners honoring many of the

provisions in the inclusion agreement. That is, the owners had

complied with the following provisions:

• transferring all water rights on the property to the special

district;

• submitting construction plans for approval;

• transferring constructed infrastructure to the special

• adding two wells to the property;

• remitting fees for a requested tap line;

• granting the district special easements; and

15 • paying mil levy taxes.

Because the special district accepted these benefits, the owners

allege that the special district waived the right to contest the

agreement over the subdivision condition.

¶ 28 “Waiver is the intentional relinquishment of a known right.”

Avicanna Inc. v. Mewhinney, 2019 COA 129, ¶ 25. Waiver of a

contractual right occurs “if the party acts inconsistently with the

right and prejudice accrues to the other parties to the contract.” Id.

“Waiver may be express, or it may be implied when a party’s actions

manifest an intent to relinquish a right or privilege.” Venard v.

Dep’t of Corr., 72 P.3d 446, 450 (Colo. App. 2003). For implied

waiver by conduct, “the conduct itself should be free from ambiguity

and clearly manifest the intention not to assert the benefit.”

Avicanna, ¶ 25 (quoting Dep’t of Health v. Donahue, 690 P.2d 243,

247 (Colo. 1984)). Waiver is usually a question of fact for the trial

court. Id. at ¶ 24.

¶ 29 Here, the terms of the agreement anticipated the parties

performing certain provisions at its outset. This included the

special district obtaining court approval of the inclusion order and

the owners helping facilitate that approval. Furthermore, as the

16 agreement states, “[u]pon inclusion of the [p]roperty by [the special

district] by final order of the El Paso County District Court, [the

owners] shall abide by all terms of this [i]nclusion [a]greement,”

which entailed the owners’ immediate obligation to transfer water

rights and infrastructure, seek approval for improvements, and pay

relevant fees or taxes.

¶ 30 But the obligations imposed on the owners subsequent to the

inclusion order didn’t negate the subdivision condition precedent.

The agreement acknowledges that the owners were “currently

processing” the subdivision approval request. (Emphasis added.)

And although the owners had to follow the provisions of the

inclusion agreement, its terms state that the agreement itself

remained “premised upon successful completion of that subdivision

process” in the future. As discussed above, until the owners

completed the “pending” subdivision process, the special district

didn’t have to “provide any water service” because the owners were

“not in compliance with th[e] [inclusion agreement].” In other

words, the simple fact that the owners complied with their

immediate obligations didn’t relieve them from having to complete

17 the subdivision process as a necessary precondition to the special

district’s obligation to perform under the agreement.

¶ 31 The trial court found that the owners failed to fulfill their

responsibility of ensuring the completion of the subdivision process.

The record supports this finding. And the record further supports

the trial court’s finding that the special district never implicitly

waived the subdivision precondition. This is because the special

district presented evidence at trial that, from roughly 2015 through

2021, it had consistently refused to provide water to the Eagle Wing

House based on the owners’ failure to complete the subdivision

process. See Avicanna, ¶ 25. And the special district clearly

manifested its intent in 2021 by explicitly insisting that the owners

satisfy the subdivision precondition, even though it was willing to

waive the regulations for the fire service line.

¶ 32 As the special district clearly manifested an intent to not waive

the subdivision condition precedent — fully inapposite to the

owners’ claim — the trial court’s waiver findings weren’t clearly

erroneous. See id.; Cronk, ¶ 12.

18 B. Dismissal of Damages Claim

¶ 33 The owners also contend that the court erred by granting the

motion to dismiss its original complaint because the owners’ claim

for damages for breach of contract couldn’t lie in tort — meaning

the CGIA didn’t apply. The owners further argue that even if the

CGIA did apply, the owners provided notice of their claim to the

special district within the CGIA’s deadline based on when the claim

became cognizable. But we don’t reach the merits of these

questions regarding the CGIA because any error was necessarily

harmless under these circumstances. See C.A.R. 35(c).

¶ 34 The owners’ initial complaint claimed damages for breach of

contract. In support, the owners alleged that they had performed

their obligations under the inclusion agreement and that the special

district had breached the inclusion agreement by refusing to

provide water to the Eagle Wing House. After the court dismissed

the claim under the CGIA, the owners amended the complaint by

dropping the breach of contract claim for damages and replacing it

with the breach of contract claim seeking specific performance. Yet

both claims asserted the same breach of contract, relying on the

same allegations for the underlying breach of contract elements.

19 Indeed, the only difference between the two claims was the relief

they sought: damages or specific performance. See Air Sols., Inc. v.

Spivey, 2023 COA 14, ¶ 48 (“Specific performance is a remedy

developed by courts of equity to provide relief when the legal

remedies of damages and restitution are inadequate.” (citation

omitted)).

¶ 35 As explained above, after reviewing the contract and the

record, we affirm the trial court’s conclusions that the owners failed

to perform a condition precedent to the special district’s obligation

to provide water and that the special district had not waived that

condition. Accordingly, the owners fail on the substance of their

breach of contract claim. And given that the difference between the

two complaints is the remedy they seek, they cannot prevail under

these circumstances. Any error in the trial court’s dismissal of the

original complaint under the CGIA doesn’t prejudice the owners

because they are not entitled to any remedy for their failed breach

20 of contract claim.7 See C.A.R. 35(c); see also C.R.C.P. 61 (“The

court at every stage of the proceeding must disregard any error or

defect in the proceeding which does not affect the substantial rights

of the parties.” (emphasis added)).

III. Appellate Attorney Fees

¶ 36 The special district requests appellate attorney fees and costs

under the inclusion agreement. The parties don’t dispute that the

inclusion agreement contains a fee-shifting provision that entitles

the prevailing party to recover all costs and reasonable attorney fees

incurred in litigation.

¶ 37 As a result, the special district is entitled as the prevailing

party to an award of the reasonable attorney fees and costs that it

incurred in this appeal. See People ex rel. Rein v. Jacobs, 2020 CO

7 Additionally, after the trial court dismissed the damages claim, the

owners chose not to immediately appeal that ruling, see Smith v. City & County of Denver, 2025 COA 70, ¶ 29, instead accepting leave to amend their complaint. But “[t]he filing of an amended complaint ordinarily supersedes the original complaint.” Pollock v. Highlands Ranch Cmty. Ass’n, 140 P.3d 351, 353 (Colo. App. 2006). “As a consequence, where a plaintiff does not immediately appeal the dismissal of an original complaint and instead files an amended complaint, any error in dismissing the original complaint is waived.” Id. Hence, even if we didn’t conclude that any error in the dismissal was harmless, the owners would have to clear these bars to proceed in any case. See id.

21 50, ¶ 72. We exercise our discretion to remand this matter to the

trial court to determine the amount of the award. See C.A.R. 39.1.

IV. Disposition

¶ 38 The judgment is affirmed, and the case is remanded to the

trial court to determine the amount of the award for reasonable

appellate attorney fees and costs as directed in this opinion.

JUDGE JOHNSON and JUSTICE MARTINEZ concur.