The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY December 28, 2017
2017COA159
No. 16CA1494, Lakewood v. Armstrong — Real Property — Easements Appurtenant — Easement Deeds — Dominant Estate
This case addresses several issues concerning easements
appurtenant. A division of the court of appeals concludes: (1) an
easement deed is valid even though the deed does not describe a
dominant estate and contains only one legal description that
encompasses both the servient estate and the easement; (2) a court
may review undisputed extrinsic evidence to determine whether the
easement’s location and the dominant estate are described with
reasonable certainty such that the deed is valid and enforceable;
and (3) a county may acquire an easement for a city’s and the
public’s use. The division also rejects the appellants’ arguments
that they did not have notice of the easement and that a reverter clause in the deed had been triggered by the dominant estate’s
zoning. COLORADO COURT OF APPEALS 2017COA159
Court of Appeals No. 16CA1494 Jefferson County District Court No. 15CV31593 Honorable Randall C. Arp, Judge
City of Lakewood, Colorado, a Colorado home rule municipality,
Plaintiff-Appellee,
v.
Joyce B. Armstrong and Mary E.J. Armstrong Trust,
Defendants-Appellants.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE HAWTHORNE Dailey and Welling, JJ., concur
Announced December 28, 2017
Hoffmann, Parker, Wilson & Carberry, P.C., M. Patrick Wilson, Kathryn M. Sellars, Denver, Colorado, for Plaintiff-Appellee
Timmins LLC, Jo Deziel Timmins, Edward P. Timmins, Denver, Colorado, for Defendants-Appellants ¶1 Defendants, Joyce B. Armstrong and the Mary E.J. Armstrong
Trust (the Armstrongs), appeal the district court’s summary
judgment for plaintiff, City of Lakewood (Lakewood), declaring that
a deed conveying an express easement over the Armstrongs’
property was a valid and enforceable easement appurtenant. We
affirm.
I. Facts and Procedural History
¶2 The undisputed facts establish that on June 18, 1984, Lois
Jones Mackey executed a deed (Mackey deed) purporting to convey
a “permanent public easement for ingress and egress” over a
portion of the southeast corner of her property to Jefferson County.
The deed was recorded in the Jefferson County Clerk and
Recorder’s Office that same day. Lakewood owned property directly
east and north of Mackey’s property, but Jefferson County did not
own any adjacent property. Lakewood’s adjacent property consisted
of the Bear Creek Greenbelt.
¶3 A month later, Jefferson County executed a deed to Lakewood
(Commissioners deed) conveying the Mackey deed easement using
the same legal description. The Commissioners deed contained a
reverter clause that required Lakewood to use the easement
1 exclusively for public open space, park, and recreational purposes.
This deed was recorded in October 1984 in the Jefferson County
Clerk and Recorder’s records.
¶4 In 2011, the Armstrongs bought the property from Mackey’s
successor in interest and occupied it. At some point, the
Armstrongs attempted to obstruct the easement’s use by locking a
gate at one entrance to it. In 2015, Lakewood filed an action for
quiet title, declaratory judgment, prescriptive easement, trespass,
reformation of the Commissioners deed, and preliminary and
permanent injunctive relief. The Armstrongs answered and
counterclaimed for quiet title, asserting that the easement was
invalid. Lakewood requested partial summary judgment on its
claims for declaratory judgment, quiet title, and reformation of the
Commissioners deed. The Armstrongs filed a cross-motion for
summary judgment in their favor on all of Lakewood’s claims.
¶5 Before trial, the district court granted Lakewood’s summary
judgement motion for declaratory judgment, quiet title, and
2 reformation.1 The court found that the easement was a valid
express easement appurtenant over the Armstrongs’ property for
use by the public and Lakewood. The court denied the Armstrongs’
motion for summary judgment and entered a final order and decree.
II. Standard of Review
¶6 The court’s summary judgment noted that “[t]he parties agree
that . . . there is no genuine issue of material fact in dispute as to
the question of whether an express easement exists and that this
issue is appropriate for resolution on summary judgment.”
Because all issues raised by the Armstrongs on appeal were decided
by summary judgment, the parties agree that a de novo review
standard applies. We agree.
¶7 We review an appeal of a summary judgment de novo.
Edwards v. Bank of Am., N.A., 2016 COA 121, ¶ 13. Summary
judgment is a drastic remedy and should be granted only when the
pleadings and the supporting documents demonstrate that no
1 More precisely, the court granted Lakewood’s revised motion for partial summary judgment. Also, the court subsequently amended its summary judgment order, which clarified the extent of the easement, corrected the Armstrongs’ chain of title, and corrected the parties’ maintenance obligations under the easement. 3 genuine issue of material fact exists and that the moving party is
legally entitled to judgment. W. Elk Ranch, L.L.C. v. United States,
65 P.3d 479, 481 (Colo. 2002).
III. The Commissioners Deed Is Valid Because the Easement Is Described with Reasonable Certainty
¶8 The Armstrongs assert that the district court erred in granting
Lakewood’s motion for summary judgment because the
Commissioners deed violates the statute of frauds and is void
“because it fails to legally describe the easement itself or the
dominant estate.” We disagree.
A. Applicable Law
¶9 An interest in real property, including an express easement,
must be created by act or operation of law or contained in a deed or
conveyance and subscribed by the party creating or assigning the
interest to satisfy the statute of frauds. § 38-10-106, C.R.S. 2017;
Strole v. Guymon, 37 P.3d 529, 533 (Colo. App. 2001) (easements
are interests in real property).
¶ 10 Words that clearly show the intention to grant an easement
are adequate to demonstrate its creation, provided the language in
the instrument is sufficiently definite and certain. Hornsilver Circle,
4 Ltd. v. Trope, 904 P.2d 1353, 1356 (Colo. App. 1995). As a
nonpossessory interest, an easement does not require the precise
description that a possessory interest does. Hutson v. Agric. Ditch &
Reservoir Co., 723 P.2d 736, 740 (Colo. 1986). The instrument
instead must identify with reasonable certainty the easement
created and the dominant and servient tenements. Hornsilver, 904
P.2d at 1356. No particular words are necessary to grant an
easement, and a lack of specificity in describing an easement’s
location will ordinarily not invalidate it. Stevens v. Mannix, 77 P.3d
931, 932 (Colo. App. 2003) (citing Isenberg v. Woitchek, 144 Colo.
394, 400, 356 P.2d 904, 907 (1960)).
¶ 11 The general rule is that vagueness in describing the easement
“does not go to the existence or validity of an easement,” but “an
extreme case of vagueness could result in a holding that no
easement was granted.” Isenberg, 144 Colo. at 399, 356 P.2d at
907; see Friends of the Black Forest Reg’l Park, Inc. v. Bd. of Cty.
Comm’rs, 80 P.3d 871, 879-80 (Colo. App. 2003) (no easement was
created where a conveyance was “subject to” a right-of-way not
previously existing and possibly including land not owned by the
grantor, and concluding “[w]e cannot determine from the face of the
5 1921 deed that the lumber company intended to grant the road
easement”). “To determine whether an easement has been
expressly granted — and, if it has, the extent of such easement —
we look first to the deed or other conveyance instrument,
construing it to ascertain the parties’ intent.” Gold Hill Dev. Co.,
L.P. v. TSG Ski & Golf, LLC, 2015 COA 177, ¶ 48 (citing Lazy Dog
Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1235 (Colo. 1998)).
Ascertaining the parties’ intent is “[o]ur paramount concern.” Lazy
Dog Ranch, 965 P.2d at 1235.
B. The Easement’s Description in the Commissioners Deed
¶ 12 The Commissioners deed conveyed to Lakewood a “permanent
public easement for ingress and egress over the property described
in Exhibit ‘A’ attached hereto.” (Emphasis added.) The deed and
attached Exhibit A provide a detailed metes and bounds description
of a 0.362 acre parcel of land lying in the “NW 1/4 of section 34,
township 4 south, range 69 west of the 6th P.M., City of Lakewood”
in Jefferson County, Colorado. Thus, the Commissioners deed
contains “a description of the land that is to be subjected to the
easement with sufficient clarity to locate it with reasonable
certainty.” Hornsilver, 904 P.2d at 1356.
6 ¶ 13 But the Armstrongs contend that the easement is not
described because the parties agree that Exhibit A describes the
entire servient estate and the easement itself is not described within
the servient estate. Even assuming this is so, as noted, “a lack of
specificity in describing an easement’s location will ordinarily not
invalidate it.” Stevens, 77 P.3d at 932 (citing Isenberg, 144 Colo. at
400, 356 P.2d at 907). The parties agree that the burdened estate
is sufficiently identified. So, the easement is not invalid for
vagueness where the easement is not particularly identified. Id. at
933 (“Because these documents reasonably designate the land
burdened by the easements, we conclude that the easements were
not, as a matter of law, invalid because of vagueness.”). “If a valid
easement is granted without fixing in writing its location, the
location may be determined based on the conduct of the parties.”
Id.; see, e.g., Gjovig v. Spino, 701 P.2d 1267, 1268 (Colo. App. 1985)
(looking to historical use of the easement where there was no
precise description of the easement’s location of ingress and egress
over the servient estate); Restatement (Third) of Prop.: Servitudes
§ 2.7 (Am. Law Inst. 2000) (“The great majority of cases require only
7 that the servient estate be described. They do not require that the
servitude’s location within the servient estate be described.”).
¶ 14 The Armstrongs also argue that if the easement and servient
estate share the same legal description, as the court found, then
the Commissioners deed does not describe a servient estate. The
Armstrongs rely on DRD Enterprises, LLC v. Flickema to support this
argument. 791 N.W.2d 180, 189 (S.D. 2010) (where a servient
estate is not identifiable the conveyance is invalid). But, the deed in
that case identified the servient estate only as “grantor’s land,” and
the court concluded that “[t]hese two words do not suggest any
point of reference by which one could identify the specific property
burdened.” Id. Further, the Armstrongs have not cited any
authority, and we are not aware of any, supporting the proposition
that an easement cannot encompass the entire servient estate with
its boundaries being coterminous with those of the servient estate.
On the contrary, an easement can encompass the entire servient
estate. See Bachman v. Hecht, 659 F. Supp. 308, 316 (D.V.I. 1986)
(an easement granted to subdivision purchasers to use beaches
designated on the plan as “Plots No. 103, No. 127 and No. 186”
implied that the easement covered the entire plots and was not
8 limited to beach areas), aff’d, 849 F.2d 599 (3d Cir. 1988)
(unpublished table decision); Jankoski v. Lake Forest Acres
Homeowners, Inc., 968 N.Y.S.2d 240, 242-43 (N.Y. App. Div. 2013)
(an easement for recreational purposes covered the entire servient
estate and was not limited to lake access). So we reject this
argument.
¶ 15 We conclude that the Commissioners deed describes the
easement itself with reasonable certainty and is not rendered
invalid by any deficiency in the easement’s description.
C. The Dominant Estate
¶ 16 The parties agree that the Commissioners deed does not
expressly describe a dominant estate.
¶ 17 Requiring a sufficient description of a dominant estate is
important, in part, to give a bona fide purchaser notice of the
nature and extent of the easement. See Lewitz v. Porath Family Tr.,
36 P.3d 120, 124 (Colo. App. 2001). But in Hornsilver, another
division of this court held that an easement was reasonably certain
and valid when it provided, “in accurate detail, the size, dimensions,
type of use, and location of the easement on the servient tenement,
as well as the precise legal description of the servient property,”
9 even though the deed provided an “inaccurate legal description of
the [dominant estate].” 904 P.2d at 1356. Even though the facts in
Hornsilver differ from those in this case, its legal conclusions are
equally applicable here.
¶ 18 The deed in question in Hornsilver described the dominant
estate by a lot number that did not exist in the town’s official
recorded plat. And the Commissioners deed does not expressly
describe a dominant estate. Because the deed in Hornsilver
described a non existent dominant estate and the Commissioners
deed does not describe a dominant estate at all, we perceive no
reasoned basis for not applying the legal principles announced in
Hornsilver to reach the same result in this case.
¶ 19 The parties agree that the servient estate is sufficiently
described, and as we concluded above, the easement is also
sufficiently described.2 So, we conclude that the lack of an
2We recognize that in Hornsilver, the servient estate was separately described from the easement. But as we noted above, we are not aware of any authority prohibiting an easement and the servient estate from sharing the same legal description, and thus having coterminous boundaries. 10 expressly described dominant estate does not render the easement
invalid. Id.3
D. The Armstrongs Had Notice of the Recorded Easement
¶ 20 To the extent the Armstrongs argue that they did not have
constructive notice of the easement because the Commissioners
deed does not describe the dominant estate or easement itself, we
are not persuaded.
¶ 21 The easement was recorded in the Jefferson County Clerk and
Recorder’s Office pursuant to section 38-35-109(1), C.R.S. 2017,
over twenty-five years prior to the Armstrongs’ purchase of the
property. We have concluded above that the easement is described
with reasonable certainty and is valid. So, the Armstrongs had
constructive notice of the easement. Bolinger v. Neal, 259 P.3d
1259, 1270 (Colo. App. 2010) (“As a matter of law, a person who
3 We note that Hornsilver is consistent with the general rule that “it is a sound conveyancing practice to identify the dominant estate in a deed, but generally this is not essential to the creation of an easement appurtenant.” Jon W. Bruce & James W. Ely, The Law of Easements and Licenses in Land § 2:3, Westlaw (database updated September 2017); see, e.g., Garza v. Grayson, 467 P.2d 960, 962 (Or. 1970); Lozier v. Blattland Invs., LLC, 100 P.3d 380, 385 (Wyo. 2004). 11 acquires an interest in real property is on constructive notice of all
prior filings concerning that property.”).
IV. The Court Properly Reviewed Extrinsic Evidence to Determine the Commissioners Deed’s Validity
¶ 22 The Armstrongs contend that the court impermissibly looked
to extrinsic evidence to interpret the Commissioners deed.
Specifically, the Armstrongs assert that because the deed failed to
describe the easement or dominant estate, extrinsic evidence,
including the parties’ intentions, was not admissible to alter or
control the deed’s plain terms, so the Commissioners deed is invalid
and unenforceable. Again, we are not persuaded.
¶ 23 Extrinsic evidence may be considered to determine whether
the description of an easement in a deed is reasonably certain or
instead is invalid for vagueness. See, e.g., Isenberg, 144 Colo. at
400, 356 P.2d at 907 (“[The] lack of specific description does not
affect the validity of the easements, particularly where the conduct
of parties has over a period of time located it.”); Stevens, 77 P.3d at
933 (“Because [the site plan] documents reasonably designate the
land burdened by the easements, we conclude that the easements
were not, as a matter of law, invalid because of vagueness.”).
12 ¶ 24 And again, lack of a description of the dominant estate is not
fatal to the Commissioners deed’s validity. See Hornsilver, 904 P.2d
at 1356 (“We find most persuasive those cases which hold that an
easement is valid provided the servient tenement is accurately
identified.”). So the court may properly review extrinsic evidence to
determine whether an easement is identified with reasonable
certainty and, therefore, valid.
¶ 25 The district court found that the parties agreed that the legal
description in Exhibit A to the Commissioners deed sufficiently
described the servient estate. It also concluded that “the failure to
describe the dominant estate is not a fatal flaw, as long as the size
and location of the easement can be ascertained.” And it noted that
a letter and accompanying drawing sent by a property manager for
Lakewood to the grantor in the Mackey deed, dated before the
Mackey deed’s execution, shows that Lakewood intended to use the
easement to build a road to carry equipment and material to
complete the development of the Bear Creek Greenbelt. Once the
work was completed, Lakewood intended the road to remain and to
provide permanent maintenance and emergency vehicle access to
the greenbelt. Based on this undisputed evidence, the court found
13 that “[Lakewood] intended to use the easement to build a road
across the property and needed the entire space for the purposes of
building that road.” The court further summarized its findings:
(1) the parties intended to create an express easement,
(2) the easement is not deficient because of the vagueness of the instrument,
(3) the easement originally agreed on encompassed the entire area described in the Mackey deed and transferred to the [Armstrongs] in the Commissioners deed.
¶ 26 The court did not err in considering this extrinsic evidence to
determine that the easement’s description encompassed the entire
servient estate, and, thus, for the purposes of determining the
easement’s validity, it was not deficient because of vagueness. See
Isenberg, 144 Colo. at 400, 356 P.2d at 907; Stevens, 77 P.3d at
933. And because a dominant estate is necessary for a valid
easement appurtenant, see Lewitz, 36 P.3d at 122, the court did
not err in considering this extrinsic evidence to determine what, if
any, dominant estate the easement served. See, e.g., Hornsilver,
904 P.2d at 1356 (an easement was not void where the deed
described a non-existent “Lot B” in the town’s recorded plat but the
14 dominant estate was simply inaccurately described). The court
found that the easement served the Bear Creek Greenbelt as a
dominant estate. Another division of this court has concluded that
a trial court properly considered extrinsic evidence in a similar
context to determine that an easement was valid even though no
dominant estate was described. Bolinger, 259 P.3d at 1265
(rejecting the argument that an easement was not created because
under a common development plan, “the dominant estate need not
be specifically described”).
¶ 27 The Armstrongs also argue that the court erred in considering
extrinsic evidence to determine the location and extent of the
dominant estate because Jefferson County did not own any
adjacent property when the Mackey deed conveyed the easement to
it. We reject this argument because, as we explain in Part VI below,
Jefferson County had authority to purchase the Mackey easement
for Lakewood’s benefit.
¶ 28 Finally, we do not address the Armstrongs’ argument, raised
for the first time in their reply brief, that the court also improperly
considered the undisputed extrinsic evidence to resolve any
ambiguities in the deed. See Colo. Korean Ass’n v. Korean Senior
15 Ass’n of Colo., 151 P.3d 626, 629 (Colo. App. 2006) (“[W]e do not
address issues raised for the first time in a reply brief.”).
V. The Commissioners Deed’s Reverter Clause Has Not Been Triggered Because Its Purpose Still Applies
¶ 29 The Armstrongs contend that the court erred in enforcing the
Commissioners deed because the reverter clause in the deed had
been triggered, so the deed expired. We disagree.
¶ 30 Where a deed’s language provides that property is conveyed so
long as it is used for a specific purpose and no longer, the
conveyance creates a fee simple determinable with the possibility of
reverter. Sch. Dist. No. Six v. Russell, 156 Colo. 75, 81, 396 P.2d
929, 932 (1964). This property interest lasts an indefinite period
and terminates if a specified event occurs, and the subject property
then automatically reverts to the grantor of the interest. Id. at 80,
396 P.2d at 931.
¶ 31 The Commissioners deed contains a reverter clause stating
that the easement granted from Jefferson County to Lakewood lasts
“for so long as the following described property is used exclusively
for public open space, park and recreational purposes and no
longer . . . .”
16 ¶ 32 Lakewood produced undisputed evidence showing that the
dominant estate served by the easement has been continuously
used exclusively for open space, park, and recreational purposes,
namely the Bear Creek Greenbelt, since Lakewood obtained the
easement.
¶ 33 The Armstrongs’ argument that the reverter clause was
triggered because the dominant estate is zoned for commercial use
does not create a material factual dispute as to the easement’s use,
and, therefore, is not relevant. The deed requires the easement be
“used exclusively for public open space, park and recreational
purposes.” The easement’s use is the determinative factor for
triggering the reverter clause, not the zoning of the land benefited
by it. See Barnes v. Winford, 833 P.2d 756, 757 (Colo. App. 1991)
(“[The grantor], therefore, retained a possibility of reverter interest
in the land occupied by the right-of-way which would vest
automatically when and if the [r]ailroad ceased to use the right-of-
way for ‘railway purposes.’”) (emphasis added).
¶ 34 The Armstrongs also assert that the Bear Creek Greenbelt is
almost a mile away from their property. But this evidence, even if
considered in a light most favorable to the Armstrongs, does not
17 create a material factual dispute about the easement’s use. The
Armstrongs provided no evidence rebutting Lakewood’s evidence
that the dominant estate served by the easement has been
continuously used for open space, park, and recreational purposes.
And, as the Armstrongs concede on appeal, “[t]he facts relating to
this issue on appeal are undisputed.” But even if this assertion is
accurate, benefited and burdened lands are not required to be
adjacent to one another. Wagner v. Fairlamb, 151 Colo. 481, 487,
379 P.2d 165, 169 (1963) (“For the general and modern rule, which
we approve, is that a right-of-way may be appurtenant to land even
when the servient tenement is not completely adjacent to the
dominant.”).
¶ 35 We conclude that a reversion was not triggered by the
dominant estate’s zoning classification and the easement has not
reverted to Jefferson County.4
4 The Mackey deed to Jefferson County does not contain a reverter clause, so if the Commissioners deed’s reversion was triggered, the easement would revert to Jefferson County. 18 VI. Jefferson County Had Authority to Purchase the Mackey Easement
¶ 36 The Armstrongs contend that the Commissioners deed is void
because Jefferson County did not have the authority to purchase
the easement for use by Lakewood. We disagree.
¶ 37 A county may purchase real estate for the “use of the county.”
§ 30-11-101(1)(b), C.R.S. 2017. But counties do “not have blanket
authority to deal in real estate.” Farnik v. Bd. of Cty. Comm’rs, 139
Colo. 481, 491, 341 P.2d 467, 473 (1959). While counties “possess
only such powers as are expressly conferred on them either by the
Constitution or statutes,” this includes “such implied powers as are
reasonably necessary to the proper execution of those expressly
conferred.” Id. Counties may not acquire real property for
speculation or investment, nor can they retain property lawfully
acquired for use by the county when the reason for the county’s use
no longer exists. Id. at 492, 341 P.2d at 473.
B. Analysis
¶ 38 In addition to the powers enumerated above, Jefferson County
has the authority “[t]o exercise such other and further powers as
19 may be especially conferred by law.” § 30-11-101(1)(e). One such
power is to “acquire, sell, own, exchange, and operate public
recreation facilities, open space and parklands, [and] playgrounds
. . . ; acquire, equip, and maintain land, buildings, or other
recreational facilities either within or without the corporate limits of
. . . [the] county; and expend funds therefor and for all purposes
connected therewith.” § 29-7-101(1), C.R.S. 2017. Similarly,
Jefferson County may “acquire . . . any public project, which public
project may be located within or without or partly within and partly
without the territorial limits of [Jefferson County].” § 30-20-302,
C.R.S. 2017.
¶ 39 A public project includes “any lands . . . suitable for and
intended for use as public property for public purposes or suitable
for and intended for use in the promotion of . . . public welfare, or
the conservation of natural resources, including the planning of any
such lands . . . .” § 30-20-301(2), C.R.S. 2017; see also Garel v. Bd.
of Cty. Comm’rs, 167 Colo. 351, 357, 447 P.2d 209, 211 (1968)
(“[T]he sewer system as contemplated to be constructed by the
Board in Summit County is within the power conferred in the act
20 and well within the definition of ‘public project . . . .’’’ (quoting
section 30-20-301’s predecessor, section 39-19-1, C.R.S. 1963)).
¶ 40 The Armstrongs have not cited any authority, and we are not
aware of any, that requires Jefferson County to own property
adjacent to property being acquired for recreational purposes or a
public project before such property is acquired. And generally, “the
creator of an easement need not own the dominant estate.” Lewitz,
36 P.3d at 123.
¶ 41 Lakewood presented undisputed evidence that Jefferson
County purchased the Mackey easement to further a plan to
operate parks and open space in Jefferson County. Specifically,
before Jefferson County acquired the easement, Lakewood resolved
to purchase the easement to provide access to the Bear Creek
Greenbelt, and to use its share of Jefferson County’s available
“Open Space Funds” to do so. The Mackey easement was then
acquired using these funds contributed by both Lakewood and
Jefferson County.
¶ 42 Jefferson County expended its funds for the purpose of
providing a public easement for ingress and egress to and from the
Bear Creek Greenbelt. The Commissioners deed requires Lakewood
21 to use the easement exclusively for public open space, park, and
recreational purposes. The Bear Creek Greenbelt is used as a
public open space and parkland.
¶ 43 We conclude that Jefferson County had the authority to
purchase an easement for access to a public park or open space
owned by Lakewood under its implied powers to promote public
projects or public open space and parkland. See generally Adams
Cty. Golf, Inc. v. Colo. Dep’t of Revenue, 199 Colo. 423, 426, 610
P.2d 97, 99 (1980) (concluding that counties have implied power to
sell beer given the express power to own or operate public
recreational facilities).
VII. Conclusion
¶ 44 We affirm the district court’s order granting partial summary
judgment for Lakewood and denying the Armstrongs’ motion for
summary judgment.
JUDGE DAILEY and JUDGE WELLING concur.