24CA0445 Estate of Christensen v Vail Mountain 03-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0445 Eagle County District Court No. 22CV30155 Honorable Paul R. Dunkelman, Judge
Estate of Kail A. Christensen,
Plaintiff-Appellant,
v.
Vail Mountain View Residences Phase II, LLC; Vail Mountain View Residences on Gore Creek Owners’ Association, Inc.; and Altus Vail Residences Owners’ Association, Inc.,
Defendants-Appellees.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division IV Opinion by JUDGE PAWAR Harris and Grove, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 20, 2025
Allen Vellone Wolf Helfrich & Factor P.C., Patrick D. Vellone, Lance Henry, Denver, Colorado, for Plaintiff-Appellant
Brownstein Hyatt Farber Schreck, LLP, Justin L. Cohen, Sean S. Cuff, Max Porteus, Denver, Colorado, for Defendants-Appellees ¶1 Plaintiff, the Estate of Kail A. Christensen, appeals the district
court’s grant of summary judgment to defendants on the Estate’s
single declaratory judgment claim. The Estate sought a declaration
that Christensen’s right to use parking spaces and storage lockers
in a Vail condominium building passed to the Estate upon his
death. The district court held that Christensen’s right to use the
spaces and lockers terminated upon his death and therefore
entered summary judgment in favor of defendants. The Estate
appeals, and we reverse and remand with directions.
I. Background
¶2 Christensen and his business partner each owned half of a
condominium development project in Vail. During development, the
business partner bought Christensen’s interest for several million
dollars. As part of the buyout, they executed a separate contract
that allowed Christensen to use four parking spaces and three
storage lockers in the development’s parking facility. The contract
was titled “Parking License Agreement” and repeatedly referred to
Christensen’s right to use the parking spaces and lockers as a
license. However, the agreement also provided that Christensen’s
“license” was “perpetual and irrevocable.”
1 ¶3 Christensen’s will purported to give his right to use the
parking spaces and lockers to his sister. Consequently, upon his
death, the Estate filed a single declaratory judgment claim seeking
a declaration that his right to the parking spaces and lockers was a
covenant that ran with the land and automatically passed to his
heirs. The defendants in the action were entities connected to the
development: Vail Mountain View Residences Phase II, LLC; Altus
Vail Residences Owners’ Association, Inc.; and Vail Mountain View
Residences on Gore Creek Owners’ Association, Inc. (Gore). All the
defendants answered the complaint and one of them, Gore, filed a
declaratory judgment counterclaim seeking the inverse of the
Estate’s claim: a declaration that Christensen’s right to use the
parking spaces and lockers was a license that expired on his death
and did not pass to his heirs.
¶4 The Estate and non-Gore defendants filed cross-motions for
summary judgment on the Estate’s claim. The district court
granted summary judgment to the non-Gore defendants, ruling that
the contract was unambiguous in granting Christensen only a
license that expired on his death and did not pass to his heirs.
Gore was not included in the summary judgment order.
2 ¶5 Weeks after the summary judgment order entered, Gore moved
the court to clarify that its summary judgment ruling applied to
Gore as well. The court granted that motion.
¶6 The Estate appeals, arguing that the district court erred by
ruling as a matter of law that the contract granted Christensen only
a license that expired upon his death. We agree that summary
judgment was not warranted. But before we get to that, we first
address and reject defendants’ arguments that we lack appellate
jurisdiction and that the Estate’s precise appellate arguments are
not properly before us.
II. Appellate Jurisdiction
¶7 Defendants argue that we lack jurisdiction over this appeal
because it was filed more than forty-nine days after the final
judgment entered. We review the existence of appellate jurisdiction
de novo. See Stone Grp. Holdings LLC v. Ellison, 2024 COA 10,
¶ 15. We disagree with defendants.
¶8 We have jurisdiction over appeals filed within forty-nine days
of a final judgment. Id. at ¶ 16. In this context, a judgment is final
if it ends the action and “leav[es] nothing further for the court
pronouncing it to do in order to completely determine the rights of
3 the parties involved in the proceeding.” Wilson v. Kennedy, 2020
COA 122, ¶ 7 (quoting Harding Glass Co. v. Jones, 640 P.2d 1123,
1125 n.2 (Colo. 1982)).
¶9 The district court entered the summary judgment order on
January 29, 2024. But this was not a final judgment for purposes
of appeal because it did not completely determine the rights of all
parties. As mentioned above, the summary judgment order granted
the non-Gore defendants summary judgment on the Estate’s claim
but did not mention Gore. That omission caused Gore to file the
motion to clarify that the summary judgment ruling applied to it as
well — in other words, Gore asked the court to confirm that it had
fully determined Gore’s rights in addition to those of the other
defendants. The district court granted that motion to clarify on
February 20, 2024, stating for the first time that its summary
judgment ruling extended to Gore. It was not until this order that
the district court completely determined the rights of all parties in
the case. Consequently, this was the final appealable judgment.
And the Estate filed its notice of appeal on March 19, 2024, well
within forty-nine days of the February 20 order.
4 ¶ 10 In arguing that its appeal was timely, the Estate suggests that
if anything, its appeal may be premature because the district court
never explicitly ruled on Gore’s counterclaim. We disagree.
¶ 11 Gore’s counterclaim was the exact inverse of the Estate’s claim
— the counterclaim sought a declaration that Christensen’s right
did not pass to his heirs while the claim sought a declaration that
Christensen’s right did pass to his heirs. Therefore, resolving the
Estate’s claim in favor of defendants necessarily resolved the
parties’ rights in the counterclaim. Once the district court clarified
on February 20 that the summary judgment on the Estate’s claim
applied to all defendants, all the parties’ rights were resolved and
there was a final appealable judgment. And because the Estate
filed this appeal within forty-nine days from that order, we have
jurisdiction over the appeal.
III. The Estate’s Arguments are Properly Before Us
¶ 12 At oral argument, defendants conceded that the Estate’s
appellate argument was preserved and has been fully briefed by the
parties. Nevertheless, they argue that we should decline to review
the district court’s judgment because the claim the Estate advances
on appeal differs from the claim pleaded in the complaint.
5 Defendants point out that in the complaint the Estate alleged that
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24CA0445 Estate of Christensen v Vail Mountain 03-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0445 Eagle County District Court No. 22CV30155 Honorable Paul R. Dunkelman, Judge
Estate of Kail A. Christensen,
Plaintiff-Appellant,
v.
Vail Mountain View Residences Phase II, LLC; Vail Mountain View Residences on Gore Creek Owners’ Association, Inc.; and Altus Vail Residences Owners’ Association, Inc.,
Defendants-Appellees.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division IV Opinion by JUDGE PAWAR Harris and Grove, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 20, 2025
Allen Vellone Wolf Helfrich & Factor P.C., Patrick D. Vellone, Lance Henry, Denver, Colorado, for Plaintiff-Appellant
Brownstein Hyatt Farber Schreck, LLP, Justin L. Cohen, Sean S. Cuff, Max Porteus, Denver, Colorado, for Defendants-Appellees ¶1 Plaintiff, the Estate of Kail A. Christensen, appeals the district
court’s grant of summary judgment to defendants on the Estate’s
single declaratory judgment claim. The Estate sought a declaration
that Christensen’s right to use parking spaces and storage lockers
in a Vail condominium building passed to the Estate upon his
death. The district court held that Christensen’s right to use the
spaces and lockers terminated upon his death and therefore
entered summary judgment in favor of defendants. The Estate
appeals, and we reverse and remand with directions.
I. Background
¶2 Christensen and his business partner each owned half of a
condominium development project in Vail. During development, the
business partner bought Christensen’s interest for several million
dollars. As part of the buyout, they executed a separate contract
that allowed Christensen to use four parking spaces and three
storage lockers in the development’s parking facility. The contract
was titled “Parking License Agreement” and repeatedly referred to
Christensen’s right to use the parking spaces and lockers as a
license. However, the agreement also provided that Christensen’s
“license” was “perpetual and irrevocable.”
1 ¶3 Christensen’s will purported to give his right to use the
parking spaces and lockers to his sister. Consequently, upon his
death, the Estate filed a single declaratory judgment claim seeking
a declaration that his right to the parking spaces and lockers was a
covenant that ran with the land and automatically passed to his
heirs. The defendants in the action were entities connected to the
development: Vail Mountain View Residences Phase II, LLC; Altus
Vail Residences Owners’ Association, Inc.; and Vail Mountain View
Residences on Gore Creek Owners’ Association, Inc. (Gore). All the
defendants answered the complaint and one of them, Gore, filed a
declaratory judgment counterclaim seeking the inverse of the
Estate’s claim: a declaration that Christensen’s right to use the
parking spaces and lockers was a license that expired on his death
and did not pass to his heirs.
¶4 The Estate and non-Gore defendants filed cross-motions for
summary judgment on the Estate’s claim. The district court
granted summary judgment to the non-Gore defendants, ruling that
the contract was unambiguous in granting Christensen only a
license that expired on his death and did not pass to his heirs.
Gore was not included in the summary judgment order.
2 ¶5 Weeks after the summary judgment order entered, Gore moved
the court to clarify that its summary judgment ruling applied to
Gore as well. The court granted that motion.
¶6 The Estate appeals, arguing that the district court erred by
ruling as a matter of law that the contract granted Christensen only
a license that expired upon his death. We agree that summary
judgment was not warranted. But before we get to that, we first
address and reject defendants’ arguments that we lack appellate
jurisdiction and that the Estate’s precise appellate arguments are
not properly before us.
II. Appellate Jurisdiction
¶7 Defendants argue that we lack jurisdiction over this appeal
because it was filed more than forty-nine days after the final
judgment entered. We review the existence of appellate jurisdiction
de novo. See Stone Grp. Holdings LLC v. Ellison, 2024 COA 10,
¶ 15. We disagree with defendants.
¶8 We have jurisdiction over appeals filed within forty-nine days
of a final judgment. Id. at ¶ 16. In this context, a judgment is final
if it ends the action and “leav[es] nothing further for the court
pronouncing it to do in order to completely determine the rights of
3 the parties involved in the proceeding.” Wilson v. Kennedy, 2020
COA 122, ¶ 7 (quoting Harding Glass Co. v. Jones, 640 P.2d 1123,
1125 n.2 (Colo. 1982)).
¶9 The district court entered the summary judgment order on
January 29, 2024. But this was not a final judgment for purposes
of appeal because it did not completely determine the rights of all
parties. As mentioned above, the summary judgment order granted
the non-Gore defendants summary judgment on the Estate’s claim
but did not mention Gore. That omission caused Gore to file the
motion to clarify that the summary judgment ruling applied to it as
well — in other words, Gore asked the court to confirm that it had
fully determined Gore’s rights in addition to those of the other
defendants. The district court granted that motion to clarify on
February 20, 2024, stating for the first time that its summary
judgment ruling extended to Gore. It was not until this order that
the district court completely determined the rights of all parties in
the case. Consequently, this was the final appealable judgment.
And the Estate filed its notice of appeal on March 19, 2024, well
within forty-nine days of the February 20 order.
4 ¶ 10 In arguing that its appeal was timely, the Estate suggests that
if anything, its appeal may be premature because the district court
never explicitly ruled on Gore’s counterclaim. We disagree.
¶ 11 Gore’s counterclaim was the exact inverse of the Estate’s claim
— the counterclaim sought a declaration that Christensen’s right
did not pass to his heirs while the claim sought a declaration that
Christensen’s right did pass to his heirs. Therefore, resolving the
Estate’s claim in favor of defendants necessarily resolved the
parties’ rights in the counterclaim. Once the district court clarified
on February 20 that the summary judgment on the Estate’s claim
applied to all defendants, all the parties’ rights were resolved and
there was a final appealable judgment. And because the Estate
filed this appeal within forty-nine days from that order, we have
jurisdiction over the appeal.
III. The Estate’s Arguments are Properly Before Us
¶ 12 At oral argument, defendants conceded that the Estate’s
appellate argument was preserved and has been fully briefed by the
parties. Nevertheless, they argue that we should decline to review
the district court’s judgment because the claim the Estate advances
on appeal differs from the claim pleaded in the complaint.
5 Defendants point out that in the complaint the Estate alleged that
Christensen received a “covenant running with the land” but at
summary judgment and on appeal the Estate argued that
Christensen received a servitude or easement-like interest that ran
with the land and passed to his heirs. According to defendants,
this discrepancy somehow precludes us from addressing the
Estate’s servitude argument on appeal. We disagree for two
reasons.
¶ 13 First, the district court addressed the servitude/easement
argument in its summary judgment order, thereby preserving it for
our review. See Rinker v. Colina-Lee, 2019 COA 45, ¶ 26 (trial
court’s sua sponte ruling on an issue preserves that issue for
appellate review). Second, as defendants conceded at oral
argument, no prejudice resulted from the technical difference
between the Estate’s allegation in the complaint and its argument
at summary judgment and on appeal. At all stages, the Estate
argued that the agreement gave Christensen an interest that
6 survived his death and passed to his heirs.1 And the issue is now
fully briefed by the parties.
¶ 14 With that we turn to the merits.
IV. Summary Judgment
¶ 15 We review a district court’s grant of summary judgment de
novo. Univ. of Denver v. Doe, 2024 CO 27, ¶ 7. Summary judgment
is a drastic remedy that is appropriate only when the material facts
are undisputed and the moving party is entitled to judgment as a
matter of law. Id.
¶ 16 We also interpret contracts, like the Parking License
Agreement here, de novo. DA Mountain Rentals, LLC v. Lodge at
Lionshead Phase III Condo. Ass’n, 2016 COA 141, ¶ 16. In doing so,
our goal is to determine and give effect to the parties’ intent. See
Gagne v. Gagne, 2014 COA 127, ¶ 51. The best indication of the
parties’ intent is the language the parties agreed to in the contract
itself. Id. If the language of the contract is unambiguous, we
enforce the plain meaning of its terms. Id. However, if the language
1 What’s more, paragraph 20 of the complaint refers to
Christensen’s right to use the parking spaces and lockers as “a servitude that runs with the land.”
7 of the contract is ambiguous, courts may look to extrinsic evidence
to resolve the ambiguity and clarify the parties’ intent. Id. at ¶ 52.
¶ 17 A contract term is ambiguous if it is susceptible of more than
one reasonable interpretation. Id. In assessing whether a contract
is ambiguous, we seek to harmonize and give effect to all contract
provisions so that none are rendered meaningless. Id. at ¶ 53.
Whether a contract is ambiguous is a question of law we review de
novo. Id. at ¶ 50. But once a contract is determined to be
ambiguous, the determination of the parties’ intent based on
extrinsic evidence is a question of fact. Id. at ¶ 52.
¶ 18 The district court here determined that the language of the
Parking License Agreement was unambiguous in granting
Christensen a license that expired upon his death. Reviewing this
determination de novo, we disagree. We conclude that the
agreement was ambiguous about whether it granted Christensen a
license or a servitude that could pass to the Estate.
¶ 19 We arrive at this conclusion by first reviewing the differences
between a license and other property interests that run with the
land. We then apply those principles to the contract here.
8 A. Servitudes and Licenses
¶ 20 A servitude is a covenant that runs with the land. City of
Steamboat Springs v. Johnson, 252 P.3d 1142, 1147 (Colo. App.
2010). Often, servitudes involve two estates, the dominant estate
and the servient estate. The benefit of the servitude attaches to the
dominant estate and automatically passes to subsequent owners or
possessors of that estate. Restatement (Third) of Prop.: Servitudes
§ 1.1 cmt. b (Am. L. Inst. 2000). Likewise, the burden of the
servitude attaches to the servient estate and automatically passes
to subsequent owners or possessors of that estate. Id.
¶ 21 However, servitudes can also exist without a dominant estate.
These are servitudes in gross. In this scenario, an individual or
entity holds a benefit that burdens the servient estate. The benefit
is held by the person or entity “without any necessary connection to
ownership or occupancy of other property” — i.e., no connection to
a dominant estate. Id. § 5.8 cmt. b. The benefits of a servitude in
gross are generally “freely transferable unless contrary to the intent
or expectations of the creating parties” and “devolve on death of the
owner in the same manner as other real-property interests.” Id.;
see Sinclair Transp. Co. v. Sandberg, 2014 COA 76M, ¶ 39
9 (recognizing that benefits in gross are freely transferable). However,
the benefit of a servitude in gross is not transferable if the parties
intend to make the benefit personal. See Restatement (Third) of
Prop.: Servitudes § 4.6 cmts. b, d.
¶ 22 A license is not a servitude. See id. § 2.2 cmt. h. Unlike a
servitude, a license is not an interest in another’s land, but is
instead a personal privilege to do something on another’s land. See
Roaring Fork Club, LLC v. Pitkin Cnty. Bd. of Equalization, 2013 COA
167, ¶ 41. “The principal difference between a servitude and a
license is that a license is revocable at will.” Restatement (Third) of
Prop.: Servitudes § 2.2 cmt. h. And because a license is a personal
privilege and is not an interest in real property, it does not
necessarily pass to the licensee’s heirs. See Restatement (First) of
Prop. § 517 (Am. L. Inst. 1944) (“A license is assignable in so far as
it was intended in its creation to be assignable.”).
¶ 23 So how do courts determine whether parties to an agreement
created a servitude or a license? There are no magic words —
intent to create a servitude can be express or implied from reading
the agreement as a whole and considering the language used in
context. Restatement (Third) of Prop.: Servitudes § 2.2 cmts. b, d.
10 ¶ 24 The label the parties assign the right may be significant, but it
is not determinative. Id. cmt. h.
¶ 25 The formality and revocability of the grant are also important.
“[U]se of formality appropriate to a land transaction usually
indicate[s] that the parties intended a servitude.” Id. And if the
grantor does not have the power to revoke, “the instrument is
effective to create a servitude.” Id.
¶ 26 Indeed, in the water law context, our supreme court has
seemingly recognized that an irrevocable license is actually a
servitude, stating that “[d]itch easements may be established as . . .
an irrevocable license.”2 In re Tonko, 154 P.3d 397, 404 (Colo.
2007). Courts in other jurisdictions have echoed this principle. See
Cambridge Vill. Condo. Ass’n v. Cambridge Condo. Ass’n, 743
N.E.2d 954, 958 (Ohio Ct. App. 2000) (“An irrevocable license is
said to be an easement rather than a license.”); Closson Lumber Co.
v. Wiseman, 507 N.E.2d 974, 976 (Ind. 1987) (“[A]n ‘irrevocable
license’ is in legal effect no different than an easement . . . .”).
2 Easements are a type of servitude. Restatement (Third) of Prop.: Servitudes § 1.1(1) cmt. b (Am. L. Inst. 2000).
11 ¶ 27 With these principles in mind, we turn to the language of the
Parking License Agreement to assess whether there was any
ambiguity about what Christensen was granted.
B. The Agreement Is Ambiguous
¶ 28 There is no question that the agreement labels Christensen’s
right to use the parking spaces and lockers as a license. The
agreement is titled “Parking License Agreement,” and it refers
throughout to the grant of a “license” to use the parking spaces and
storage lockers in question. But as explained above, that does not
end our inquiry. See Restatement (Third) of Prop.: Servitudes § 2.2
cmt. h (labels are not determinative). Instead, our task is to read
contested terms in the context of the agreement as a whole and to
harmonize and give effect to all provisions. See Gagne, ¶ 53. And
other provisions in the agreement allow for two different yet
reasonable interpretations of what Christensen received.
¶ 29 Despite labeling what Christensen received as a license, the
agreement provides that “the License shall be perpetual and
irrevocable.” This suggests that the “License” was actually a
servitude. See Restatement (Third) of Prop.: Servitudes § 2.2 cmt.
h; Tonko, 154 P.3d at 404. That said, a different term of the
12 agreement contemplates the “License” being revocable, thereby
suggesting it is a license (“Upon any revocation or termination of
this Agreement or the rights granted herein . . . .”).
¶ 30 The agreement also contemplates Christensen having
successors or assigns to his rights under the agreement: “This
Agreement may not be amended or terminated except by written
instrument signed by the parties hereto or their permitted
respective successors and assigns.” Because licenses are personal
to the grantee and do not automatically pass to successors, the fact
that the agreement contemplated Christensen’s successors suggests
that Christensen was granted more than a license. See
Restatement (Third) of Prop.: Servitudes § 4.6 cmt. d (stating that
using words like “heirs,” “successors,” or “assigns” is not
“necessary” to indicate an intent that a servitude is transferable,
thereby implying that using such words suggests an intent to create
a transferable servitude).
¶ 31 Moreover, the agreement is a seven-page contract with recitals
and sixteen different sections. This level of formality is similar to
that used in contracts for the sale and transfer of land and likewise
suggests the parties intended to create a servitude.
13 ¶ 32 Based on all this, we conclude that there are two reasonable
interpretations of the agreement. On the one hand, it would be
reasonable to interpret the agreement as creating a license based on
the use of that term throughout the agreement. On the other hand,
it would also be reasonable to interpret the agreement as creating a
servitude because the agreement (1) provides that the “License” is
perpetual and irrevocable; (2) contemplates Christensen having
successors and assigns to his rights under the agreement; and (3) is
a formal contract on the level of one to sell or transfer land. We
therefore conclude that the agreement is ambiguous.3
¶ 33 We recognize that defendants encourage us to rely on two
other agreement provisions in our ambiguity analysis. But we
conclude that these provisions shed no light on whether the
agreement is ambiguous or not. Defendants first point to this
language in the agreement: “[Christensen] has no estate, easement,
or interest . . . other than the License granted herein.” According to
3 The fact that the agreement contains a merger clause does not
impact our ambiguity analysis. A merger clause merely indicates that all terms the parties intended to be bound by are found in the written agreement. See LTCPRO, LLC v. Johnson, 2024 COA 123, ¶ 22. The existence of a merger clause does not inform whether those terms are ambiguous.
14 defendants, this is the parties’ explicit disclaimer that Christensen
was granted any real property interest. But there is no question
that Christensen received “the License granted herein.” And that
“License” is one that the parties deemed “perpetual and
irrevocable.” As explained above, such a license may be a
servitude, which is a real property interest. See Restatement (Third)
of Prop.: Servitudes § 2.2 cmt. h; Tonko, 154 P.3d at 404;
Cambridge Village Condo. Ass’n, 743 N.E.2d at 958; Closson
Lumber, 507 N.E.2d at 976.
¶ 34 Second, defendants point us to a provision of the agreement
that says, “No person other than Grantor and [Christensen] shall be
deemed a beneficiary under this Agreement for any purpose
whatsoever.” Defendants argue that this means Christensen’s
rights under the agreement cannot pass to his heirs. But
beneficiaries are not necessarily the same as heirs or successors.
And, as explained above, another provision of the agreement
contemplates Christensen having successors and assigns. Thus,
the provisions defendants rely on are not relevant to our ambiguity
analysis.
15 ¶ 35 Because the language in the agreement was ambiguous as to
whether it created a license or a servitude, the determination of the
parties’ intent on this issue becomes a question of fact that can be
determined by the admission and weighing of extrinsic evidence.
See Gagne, ¶ 52.4 Appellate courts are ill-equipped to conduct such
factfinding in the first instance. We therefore remand the case to
the district court to engage in this factfinding.
V. Disposition
¶ 36 The district court’s order granting defendants summary
judgment is reversed. The case is remanded to the district court
with directions to conduct further proceedings consistent with this
opinion. Nothing in this opinion forecloses the district court from
resolving this case on summary judgment. We hold only that the
agreement is ambiguous as to whether it created a license or a
4 Courts may use extrinsic evidence to interpret ambiguous terms of
a contract, even if that contract is fully integrated. See Restatement (Second) of Contracts § 212(2) (Am. L. Inst. 1981) (“A question of interpretation of an integrated agreement is to be determined by the trier of fact if it depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence.”); Nw. Cent. Pipeline Corp. v. JER P’ship, 943 F.2d 1219, 1226 (10th Cir. 1991).
16 servitude and the parties’ intent on that issue can be determined
only by reviewing evidence outside the language of the agreement.
JUDGE HARRIS and JUDGE GROVE concur.