La Plata Open v. Baker

• Court: Colorado Court of Appeals
• Decided: January 23, 2025
• Docket: 23CA1151
• Status: Unpublished

Opinion

23CA1151 La Plata Open v Baker 01-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1151 La Plata County District Court No. 19CV30107 Honorable Suzanne F. Carlson, Judge

La Plata Open Space Conservancy, a Colorado non-profit corporation,

Plaintiff-Appellee and Cross-Appellant,

v.

Harry Baker and Paulette Baker,

Defendants-Appellants and Cross-Appellees.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division V Opinion by JUDGE LUM Harris and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 23, 2025

Karp Neu Hanlon, P.C., James F. Fosnaught, Shoshana Rosenthal, Glenwood Springs, Colorado, for Plaintiff-Appellee and Cross-Appellant

Lewis Roca Rothgerber Christie LLP, Kendra N. Beckwith, Denver, Colorado; Golden & Landeryou, LLC, Kenneth S. Golden, Durango, Colorado, for Defendants-Appellants and Cross-Appellees ¶1 Defendants, Harry Baker and Paulette Baker (collectively, the

Bakers), appeal the district court’s judgment entered in favor of

plaintiff, La Plata Open Space Conservancy (La Plata). La Plata

cross-appeals the district court’s denial of its post-trial motion

requesting additional relief. We affirm in part, reverse in part, and

remand for further proceedings.

I. Background

¶2 In 1994, La Plata obtained a conservation easement on an

eighty-acre Durango property from the property’s original owners

(Original Easement). In 2003, La Plata and the original owners

entered into a “Restated and Amended Deed of Conservation”

(Amended Easement).

¶3 The Amended Easement’s primary purposes are to protect and

enhance the property’s existing wildlife habitat; preserve the

property in its “natural, ecological, open space and agricultural

condition”; and prevent any uses that impair the property’s

conservation values. To fulfill its intended purposes, the Amended

Easement lists in detail the permitted and prohibited uses of the

property and establishes guidelines for where and how permitted

uses can occur. The Amended Easement also permits La Plata to

1 periodically inspect the property; if La Plata finds a violation that

caused an injury, it can require the property owner to “restore the

portion of the property so injured to its prior condition.”

¶4 In 2006, the original owners sold the property to Peter

Johnston and Maren Moebius (collectively, Johnston), who, in turn,

sold the property to the Bakers in 2013. Between 2015 and 2019,

La Plata issued three violation notices relating, as relevant here, to

(1) a replacement barn built on the property; (2) agricultural

operations occurring outside of a designated agricultural area;

(3) conversion of a trail on the south side of the property into a

widened, graveled road (south road); (4) fencing on the northern and

southern ends of the property; and (5) the continued growth of

noxious weeds.

¶5 In 2019, La Plata sued the Bakers to enforce the Amended

Easement, asserting five claims for relief: (1) breach of contract;

(2) “damages for interference and violation of conservation

easement” pursuant to § 38-30.5-108(3), C.R.S. 2024;

(3) declaratory relief; (4) injunctive relief; and (5) continuing

trespass upon the Amended Easement.

2 ¶6 After a four-day trial and a site visit, the district court issued

an order (the Order) concluding that the Bakers did not violate the

Amended Easement by constructing the barn but did violate the

Amended Easement by (1) conducting agricultural activities outside

the designated agricultural area; (2) creating and widening the

south road; (3) installing a gate on the south road; and (4)

constructing fences that did not “meet wildlife-friendly guidelines

prescribed by the Colorado Division of Wildlife.” The court further

found that these violations “impaired the conservation values of the

property.” The district court did not make an express finding that

the Bakers violated the Amended Easement by permitting noxious

weed growth.

¶7 The court entered injunctive relief, ordering the Bakers to take

specific measures to remediate the violations and to refrain from

conducting certain activities. The court relied on the

recommendations of La Plata’s expert witness as a “blueprint for the

restoration ordered.” The Bakers were required to pay for the cost

of the restoration. Despite not finding a weed-related violation, the

court also ordered the Bakers to take action with respect to the

weeds. Finally, the court determined that La Plata was the

3 prevailing party and awarded it reasonable attorney fees and costs

under the Amended Easement’s fee-shifting provision.

¶8 La Plata moved to amend the Order, asserting that it lacked

sufficient detail necessary to enforce the injunctive relief. The

Bakers also moved to amend the Order, asserting that the court

erred by awarding La Plata its attorney fees. Both post-trial

motions were deemed denied when the court did not resolve them

within sixty-three days. See C.R.C.P. 59(j).

¶9 On appeal, the Bakers contend that the district court erred by

(1) concluding that the agricultural area, south road, gate, and

fencing violated the Amended Easement; (2) ordering injunctive

relief related to each of those violations that was overly broad or

otherwise inconsistent with the Amended Easement; (3) ordering

injunctive relief related to the presence of weeds when the court did

not find that the weeds violated the Amended Easement; and

(4) concluding that La Plata was the prevailing party and awarding

it attorney fees and costs. La Plata’s cross-appeal contends that the

district court erred by denying its post-trial motion. Both parties

contend that the fee-shifting provision entitles them to attorney fees

and costs incurred in this appeal.

4 ¶ 10 First, we address each violation and its corresponding

injunctive relief. Second, we address the injunctive relief ordered

for the weeds. Third, we address whether the injunctive relief was

sufficiently detailed. Finally, we address the court’s award of

attorney fees and costs and the parties’ requests for appellate fees

and costs.

II. Generally Applicable Law and Standards of Review

A. Creation and Interpretation of Conservation Easements

¶ 11 Colorado’s Conservation Easement Act (the Act) establishes

the purposes of and requirements for conservation easements.

§§ 38-30.5-101 to -111, C.R.S. 2024. A conservation easement “is a

permanent restriction that runs with the land for the purpose of

protecting and preserving the land.” Markus v. Brohl, 2014 COA

146, ¶ 1 (quoting Kowalchik v. Brohl, 2012 COA 25, ¶ 2); see §§ 38-

30.5-102, -103(1)-(3), C.R.S. 2024.

¶ 12 “The extent of an expressly created easement (i.e., the limits of

the privileges of use authorized by the easement) is determined by

interpreting the conveyance instrument,” which we do according to

ordinary principles of contract interpretation. Lazy Dog Ranch v.

Telluray Ranch Corp., 965 P.2d 1229, 1235-36 (Colo. 1998). Our

5 paramount concern is to determine and give effect to the intentions

of the parties who created the instrument. Id. at 1235. We

ascertain the parties’ intent from the instrument’s plain language,

giving words and phrases their generally accepted meanings.

Gagne v. Gagne, 2014 COA 127, ¶ 51.

¶ 13 “‘While the interpretation of a written contract is a question of

law to be determined by the court, whether there has been a breach

of contract is a question of fact’ to be determined by the fact finder.”

Ute Water Conservancy Dist. v. Fontanari, 2022 COA 125M, ¶ 35

(quoting State Farm Mut. Auto. Ins. Co. v. Goddard, 2021 COA 15,

¶ 28). “We review the [district] court’s factual findings under a clear

error standard, but review its legal conclusions de novo.” Id.

(quoting Kroesen v. Shenandoah Homeowners Ass’n, 2020 COA 31,

¶ 55).

B. Injunctive Relief

¶ 14 The remedy of an injunction is generally “prohibitory,”

meaning that it “seeks to restrain the continuance of a wrongful act

or the causing of some threatened or anticipated injury.” 42 Am.

Jur. 2d Injunctions § 5, Westlaw (database updated Oct. 2024). A

prohibitory injunction “afford[s] relief against future, rather than

6 past, acts.” Bd. of Cnty. Comm’rs v. Pfeifer, 546 P.2d 946, 949

(Colo. 1976). In contrast, a mandatory injunction “commands the

subject of the order to perform an affirmative act to undo a wrongful

act or injury.” 43A C.J.S. Injunctions § 19, Westlaw (database

updated Dec. 2024). Injunctive relief based on breach of contract

must be coextensive with the terms of the contract. Phx. Cap., Inc.

v. Dowell, 176 P.3d 835, 843 (Colo. App. 2007); Fulton Irrigating

Ditch Co. v. Twombly, 42 P. 253, 253 (Colo. App. 1895).

¶ 15 An injunction is an equitable remedy, and “[t]rial courts are

vested with broad discretion to formulate the terms of injunctive

relief.” Rinker v. Colina-Lee, 2019 COA 45, ¶ 80. A district court

abuses its discretion if its decision is manifestly arbitrary,

unreasonable, or unfair or if it misconstrues or misapplies the law.

Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dept., 196 P.3d

892, 899 (Colo. 2008).

III. Agricultural Area

A. Additional Facts

¶ 16 The Amended Easement reflects an existing “agricultural area”

located in the northwest corner of the property and prohibits the

Bakers from growing agricultural crops or grazing livestock outside

7 of that area. Paragraph 10 of the Amended Easement provides that

the parties are free to enter into amendments, provided the

amendments are “consistent with the purpose of this [Amended]

Easement.” Paragraph 10 further provides that “[a]ny such

amendment shall be recorded in the official records of La Plata

County, Colorado.” Paragraph 16.4 reaffirms that “[n]o alteration or

variation of this instrument shall be valid or binding unless

contained in an amendment that complies with paragraph 10.”

¶ 17 Evidence at trial showed that, sometime between 2005 and

2011 — prior to the Bakers’ ownership — an 8.2-acre area south

and east of the original agricultural area was irrigated and used for

growing hay (relocated agricultural area). The locations of the

original and relocated agricultural areas are shown in the figure

below, labeled as the “Original Designated Agricultural Area” and

the “Newly-created Hay Production Area,” respectively.

8 ¶ 18 The evidence also reflected that, between 2008 and 2013, La

Plata conducted annual inspections of the property each year.

Monitoring reports during that timeframe indicated that the “terms

of [the Amended] [E]asement [were] being observed” and that there

were no “possible violations of [the] terms of the [Amended]

[E]asement at this time.” Scott Perez, La Plata’s executive director

from 2010 to 2013, testified that he first saw the property during

Johnston’s ownership, when Johnston was planning to list it for

sale. When Perez went to the property, he observed the relocated

agricultural area but didn’t inform the listing agent about any

9 violations. When asked why he didn’t provide information about

any violations, he said, “If you read through all of the monitoring

reports and board minutes . . . every time it said is there a violation,

it said no.”

¶ 19 Shortly after the Bakers bought the property, Mr. Baker spoke

with Perez about hay growing activities. Mr. Baker testified that he

and Perez looked out toward the relocated agricultural area while

they spoke. According to Mr. Baker, Perez did not indicate that

growing hay in that area violated the Amended Easement; instead,

Perez remarked that “it was the perfect place to grow hay.” The

Bakers continued to conduct agricultural activities in the relocated

agricultural area. They also grazed livestock outside the original

and relocated agricultural areas.

¶ 20 In 2015, a conflict arose between the Bakers and La Plata

relating to the Bakers’ construction of a replacement barn. In June

2015, about two years after the Bakers purchased the property, La

Plata issued a violation notice concerning the barn. The 2015

notice didn’t mention the relocated agricultural area. Over a year

later, La Plata issued a second notice that alleged twelve easement

violations, including — for the first time — the relocated

10 agricultural area. From that point on, all notices of violation

included the relocated agricultural area.

B. Violation

¶ 21 The Bakers contend that the district court erred by concluding

that their agricultural activities in the “relocated” area violated the

Amended Easement. They argue, as they did below, that the

Amended Easement’s terms regarding the location of the

agricultural area had been modified by Johnston’s and La Plata’s

conduct prior to the time the Bakers purchased the property. We

disagree.

1. Legal Principles Regarding Contract Modification

¶ 22 Colorado law permits a written contract to be modified by the

parties’ course of performance. Woods v. Monticello Dev. Co., 656

P.2d 1324, 1327 (Colo. App. 1982). “Modification of a written

agreement must be demonstrated by clear and satisfactory

evidence” and requires “[t]he same meeting of the minds . . . as was

necessary to make the contract in the first instance.” Grizzly Bar,

Inc. v. Hartman, 454 P.2d 788, 791 (Colo. 1969).

¶ 23 When a contract contains an anti-waiver clause or a provision

that contractual modifications must be made in writing, those

11 provisions can themselves be modified or waived by conduct.

Woods, 656 P.2d at 1327; see also Williams v. Colo. Springs Coll. of

Bus., Inc., 736 P.2d 419, 420 (Colo. App. 1987); Cordillera Corp. v.

Heard, 592 P.2d 12, 14 (Colo. App. 1978), aff’d, 612 P.2d 92 (Colo.

1980). However, for a parties’ conduct to modify or waive an anti-

waiver clause or written modification requirement, it must be “so

pervasive that in the eyes of a reasonable [person] it ‘spoke louder

than [the] word’ . . . of the ‘anti-waiver’ clause, which in effect

counseled against reliance on conduct indulging default.” Woods,

656 P.2d at 1327 (quoting Westinghouse Credit Corp. v. Shelton, 645

F.2d 869, 874 (10th Cir. 1981)).

¶ 24 The party asserting that a contract provision has been

modified or waived bears the burden of proof. Schulze v. Shea, 86

P. 117, 118 (Colo. 1906) (modification); Bd. of Cnty. Comm’rs v. City

& Cnty. of Denver, 2022 COA 30, ¶ 28 (waiver), rev’d on other

grounds, 2024 CO 5. Whether a contract has been modified (or

whether a provision has been waived) is ordinarily a question of fact

for the district court. Fair v. Red Lion Inn, 920 P.2d 820, 825 (Colo.

App. 1995) (modification), aff’d, 943 P.2d 431 (Colo. 1997);

Cordillera Corp., 592 P.2d at 13 (waiver). But where the facts are

12 undisputed, the issue becomes a matter of law, and we are not

bound by the district court’s finding. Cordillera Corp., 592 P.2d at

13-14; see also Frank C. Klein & Co. v. Colo. Comp. Ins. Auth., 859

P.2d 323, 328 (Colo. App. 1993).

2. Analysis

¶ 25 In support of their argument that the Amended Easement was

modified, the Bakers point to the following evidence:

• Johnston’s relocation of the agricultural area;

• the annual monitoring reports from 2008-2012, each

finding no violation of the Amended Easement’s conditions;

• Perez’s failure to inform Johnston’s realtor of any violations

when the realtor contacted him about the property;

• a sales brochure prepared by Johnston’s real estate agent

purportedly showing the relocated fields;

• the 2013 monitoring report, completed shortly after the

Bakers acquired the property, again finding no violations of

the Amended Easement’s conditions; and

• Perez’s statements to Mr. Baker indicating that the

relocated area was an appropriate place to grow hay.

13 ¶ 26 We assume, without deciding, that Johnston’s conduct in

irrigating and growing hay in the relocated area is sufficient to

manifest his intent to change the terms of the Amended Easement.

The primary question is whether La Plata’s conduct demonstrates a

“meeting of the minds” as to the relocation and a clear intent to

waive the recording requirement for amendments. Though it’s a

somewhat close call, we conclude the answer is “no.”

¶ 27 The 2008 monitoring report contains no evidence of the

relocated agricultural area, so a person viewing that report would

have no reason to believe that the inspector observed any

agricultural activity outside the originally designated area.

¶ 28 The 2009 through 2012 reports provide some evidence of

modification. The 2009 report explicitly notes that Johnston

“installed” a side-roller irrigation system and “seeded” pastures. All

four reports contain photos of the irrigation system, and the 2009

report contains photos of irrigation taking place. The reports each

include a map with a dot indicating the position from which the

photos were taken. Though somewhat difficult to decipher (often,

several photos were taken from different directions in the same

location), it appears that the 2009 report shows irrigation being

14 conducted toward middle-north end of the relocated area, the 2010

report shows irrigation equipment in the far north and middle-

south of the area, the 2011 report shows irrigation equipment in

the far south of the area, and the 2012 report shows irrigation

equipment in the far north of the area — approximately in the same

location as the 2010 report.1

¶ 29 All in all, these reports demonstrate that, on four occasions,

the inspector who monitored the property saw irrigation equipment

(and, on one of those occasions, irrigation activity) somewhere

within the relocated agricultural area and nevertheless reported

there were “no violations” of the terms of the Amended Easement.

But, as described above, the photographs of the irrigation

equipment were taken at different times and from different vantage

points, and they don’t always depict the same parts of the relocated

area. It’s unclear whether the inspector saw consistent agricultural

1 We agree with the Bakers that whether they reviewed the 2008-

2012 monitoring reports isn’t relevant to the analysis of whether La Plata and Johnston modified the Amended Easement through their conduct before the Bakers purchased the property.

15 activity in any single part of the relocated agricultural area, much

less consistent agricultural activity throughout the whole area.2

¶ 30 Furthermore, a former La Plata executive director testified that

the monitoring report form was later revised to remove the question

about whether any violations were present because “determin[ation]

of a violation is not the role solely of whoever is conducting the

monitoring site visit.” Thus, from this record, we can’t say that the

reports demonstrate that La Plata and Johnston had a “meeting of

the minds” to modify the Amended Easement to relocate the

agricultural area to its present location.

¶ 31 We also reject the Bakers’ reliance on the real estate brochure.

They point to no evidence (and we can find none) that La Plata

contributed to, or even saw, the brochure. Likewise, we are

unpersuaded by Perez’s failure to inform Johnston’s realtor about

any violations. Perez explained that he didn’t tell the realtor about

any violations because the monitoring reports didn’t reflect any.

Because the monitoring reports don’t demonstrate a meeting of the

minds, Perez’s conduct — based entirely on the reports — doesn’t

2 The inspector who conducted the 2009-2013 reports didn’t testify.

16 either. And because the Bakers argue that the Amended Easement

had already been modified when they purchased the property, we

reject their reliance on any conduct that occurred after their

purchase.

¶ 32 In any event, nothing about La Plata’s conduct demonstrates

that it intended to waive the recording requirement. The four

reports and Perez’s omission simply do not constitute the type of

pervasive conduct that would “sp[eak] louder” than the recording

requirement in the mind of a reasonable person. Woods, 656 P.2d

at 1327 (quoting Westinghouse, 645 F.2d at 874). While La Plata’s

conduct might spur a reasonable person to perform additional due

diligence related to any agricultural activity observed in the

relocated area, it is insufficient to overcome the two provisions in

the Amended Easement requiring that modifications must be

recorded.

¶ 33 We agree with the district court that this conduct contrasts

with La Plata’s conduct concerning the modification of the Amended

Easement’s designated building envelope, which the court found

constituted both a modification of the envelope and a waiver of the

recording requirement. In that instance, La Plata had (1) responded

17 to the original owners’ request for clarification for a potential buyer

in a written letter saying, “It is not necessary to further amend the

[Amended Easement] to allow for reconfiguration of the building

area as proposed”; (2) indicated in the letter that La Plata would

approve the proposed reconfiguration; (3) sent an email during the

Bakers’ ownership saying that the Bakers’ new barn was “within the

[building envelope] . . . approved by Scott [Perez]”; and (4) approved

the building envelope modification at a board meeting.

¶ 34 La Plata’s conduct was also different than the conduct in the

caselaw cited by the Bakers that was determined to constitute a

valid waiver of contractual provisions. In those cases, the conduct

(1) was closely related to the waived provision; (2) was more

pervasive than that here; or (3) constituted an unambiguous (often

express) offer and acceptance to proceed with a different course of

action than that mandated by the written contract. See, e.g., id. at

1326-27 (repeated, frequent acceptance of late payments waived

seller’s right to insist on timely payment); Cordillera Corp., 612 P.2d

at 93-94 (holding the filing of a complaint by plaintiff, filing of an

answer by defendant, and filing of multiple other pleadings and

motions by both parties over the course of a year was sufficient to

18 waive an arbitration clause); Hahl v. Langfur Constr. Corp., 529 P.2d

1369, 1370-71 (Colo. App. 1974) (provision requiring extras be in

writing deemed waived when subcontractor and general contractor

orally agreed subcontractor would perform extras, general

contractor represented that he would seek additional funds to pay

for the extras, and subcontractor performed the extras).

¶ 35 For these reasons, we conclude that the district court didn’t

err by determining that the Amended Easement had not been

further modified as the Bakers claim.3

C. Injunctive Relief

¶ 36 Because there was no modification of the Amended Easement,

the district court didn’t err by prohibiting the Bakers from

conducting agricultural activity in the relocated area. Even so, the

Bakers contend that the mandatory injunctive relief — specifically,

the order that they restore the relocated agricultural area “to its

original condition” — is overly broad. We conclude more findings

are necessary to resolve this contention.

3 In light of this disposition, we need not address La Plata’s

contention that conservation easements should not be modifiable by conduct at all.

19 ¶ 37 Paragraph 2(c) of the Amended Easement entitles La Plata to

“prevent any activity” that is “inconsistent with the purpose of the

[Amended] Easement” and “to require restoration of such areas or

features of the property that may be damaged by any inconsistent

activity or use.” (Emphasis added.) Paragraph 6.1 provides that, if

La Plata determines that an easement violation has occurred, La

Plata must give the Bakers written notice of the violation and

demand corrective action. If “the violation involves injury to the

property resulting from any use or activity inconsistent with the

purpose of the easement,” La Plata may demand action “to restore

the portion of the Property so injured to its prior condition.”

(Emphasis added). Finally, Paragraph 6.2 provides that, if the

Bakers fail to cure the violation, La Plata may file suit to enjoin the

violation and to “require the restoration of the Property to the

condition that existed prior to any such injury.”

¶ 38 The Amended Easement language recognizes that “injury to

the property” is distinct from “activity inconsistent with the

easement” and that not all inconsistent activity will necessarily

result in injury to the property. In addition, restoration (1) can only

be required if the “inconsistent activity” caused “damage” or “injury

20 to the property”4 and (2) can only be ordered to the extent necessary

to return the property to “the condition that existed prior to any

such injury” (its preinjury condition). In other words, restoration

can only be required to cure the injuries that have been caused by

the inconsistent activity.

¶ 39 Here, the district court made a generalized finding that the

Bakers’ actions had “impaired the scenic, aesthetic, and

environmental values of the easement,” but it didn’t make any

specific findings about the preinjury condition of the relocated area

or what injuries, if any, the inconsistent activity caused. Without

this information, we can’t discern whether the relief it ordered —

restoration of the relocated agricultural area to “its original

condition” — is overbroad.

¶ 40 First, because the order doesn’t contain findings about the

nature and extent of the injuries caused by the inconsistent

agricultural activity, we can’t discern whether the relief the court

ordered was necessary to cure them. The court appears to have

4 In contrast, activity inconsistent with the Amended Easement can

be prohibited regardless of whether it has caused injury to the property. The district court’s prohibition against continued agricultural activity in the relocated area falls into this category.

21 equated the “inconsistent activity” with the “injury” but as we’ve

explained, not all inconsistent activity necessarily causes injury to

the property.

¶ 41 Second, the condition of the relocated agricultural area at the

time the easement was originally granted may be different than its

condition immediately prior to the start of the injury-causing

conduct. For example, changes in annual rainfall might cause

changes in the type and health of vegetation in a given area over

time. If the injury-causing conduct started after natural changes

took place, the area’s preinjury condition would be different than its

“original condition.” Because we lack findings about whether the

relocated area’s “original condition” was the same as its condition

immediately before the inconsistent activity began, we can’t tell

whether the order goes too far. See Phx. Cap., 176 P.3d at 843

(noting that injunctive relief based on a contract must be

coextensive with the terms of the contract). We therefore reverse

the court’s restoration order as to the relocated agricultural area

and remand for additional findings. See Mulberry Frontage Metro.

Dist. v. Sunstate Equip. Co., 2023 COA 66, ¶ 44 (“In the absence of

sufficient findings, we must reverse and remand the matter for the

22 [district] court to explain the basis for its decision.” (citing Munoz v.

Measner, 247 P.3d 1031, 1034-35 (Colo. 2011))).

¶ 42 On remand, after making findings regarding the nature and

extent of the injury to the relocated area and the condition of that

area prior to the injury, the court must reevaluate its order

requiring restoration in light of those findings. And because

mandatory injunctive relief is equitable in nature, the court must

also consider the parties’ “relative hardships,” the nature of both

parties’ conduct, and any other factor it deems appropriate to

achieve an equitable result. Graham v. Jules Inv., Inc., 2014 COA

136, ¶¶ 32, 34-35 (noting that courts must consider whether

encroachment in a continuing trespass case was deliberate or

occurred in good faith, along with hardships and equities of the

parties, in ordering mandatory injunctive relief); see also Bjork v.

Draper, 936 N.E.2d 763, 770 (Ill. App. Ct. 2010) (affirming the

district court’s consideration of the hardship to the property owner,

the benefit to the party seeking to enforce the easement, the

character of the enforcer’s actions, the effect of the enforcer’s

conduct on the easement’s purpose, and the actions of the

easement holder before ordering the property owner to remove a

23 home addition that violated a conservation easement); Lawson

Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1435 (7th Cir. 1986)

(“[T]he equitable personality of injunctive relief requires the result to

be a ‘just’ or ‘fair’ result rather than a ‘correct’ result.”).

IV. South Road

¶ 43 The Bakers contend that the district court erred by concluding

that their construction of the south road violated the Amended

Easement and by ordering injunctive relief related to the road that

was overbroad. We agree in part.

¶ 44 The Amended Easement prohibits “[t]he placement or

construction of any buildings, structures, or improvements of any

kind (including without limitation . . . roads . . .) other than those

which are expressly permitted in paragraph 4.” Paragraph 4

doesn’t expressly permit the creation of any roads or the conversion

or expansion of existing trails or walkways into roads.

¶ 45 In one violation notice and demand for corrective action issued

to the Bakers, La Plata wrote that the “[c]onversion of the existing

trail into widened, graveled motorized roadway, and removal of

mature woody vegetation, along the edge of the woodlands on the

24 south end” of the property violated the Amended Easement. In

connection with that violation notice, La Plata indicated the basis of

the violation was that the “dirt trail/road bed . . . has been widened

and graveled to accommodate motorized traffic.” La Plata specified

that the Bakers’ actions eliminated nesting habitats, created

obstacles for smaller animals, and would likely cause other

disruptions to various smaller animals. In 2019, La Plata issued

another violation notice that alleged the use of the south road

“appears to have intensified, and the road appears to have been

further improved, likely to allow . . . apparently more intensive use,”

and “the increased width of the ‘roadway’ suggests . . . that the

recent improvement was intended to accommodate some

objectively, highly impactful form of motorized use.”

¶ 46 At trial, La Plata’s expert, Barry Rhea, testified that when the

easement was originally created, the south road had been a “narrow

trail.” Using aerial photographs, he also testified that in 2013 (the

year the Bakers purchased the property), the trail was “essentially

the same” as it had been at the time of the original conveyance. He

opined that the trail had been about six feet wide and “was

probably heavily vegetated [and] . . . may have accommodated an

25 ATV” before the “new road construction” occurred. Amy

Schwartzbach, La Plata’s former executive director, testified that,

prior to the road being graveled, it existed as a “two-track,” which

had vegetation on the travel surface that provided habitat for

wildlife. Rhea testified that the trail had been converted into “a

gravel road that was about 11 to 12 feet wide on its driving surface

and probably 12 to 14 feet wide in terms of the disturbance corridor

that it created in its building.” Rhea also testified that the roadbed

was “heavily compacted” as a result of vehicles moving on the road.

¶ 47 At the conclusion of the trial, the district court found that the

south road violated the Amended Easement. The court ordered the

Bakers to (1) remove any gravel to allow grasses to reestablish; (2)

“narrow the travel surface back to approximately six feet”; (3) rip

and disk any road compaction; (4) plant grass seed mix; and (5)

limit motorized vehicle use along the travel way.

¶ 48 On appeal, the Bakers contend that the south road existed

when they purchased the property and that all they did was gravel

the surface. Because they removed the gravel before trial, they

26 contend that the road didn’t violate the Amended Easement when

the district court entered its order. We aren’t persuaded.

¶ 49 First, the district court found that the Bakers “created a

graveled road” out of what was previously a six-foot wide, two-track

trail. This finding is supported by Rhea’s and Schwartzbach’s

testimony described above. To the extent the Bakers point to

conflicting evidence — namely, Mr. Baker’s testimony that the trail

was already a “road” when the Bakers purchased the property — it

is the district court’s sole province to resolve such evidentiary

conflicts.

¶ 50 Second, the district court found that the expansion of the trail

to create the road “was done in a manner that . . . destroys wildlife

habitat and [is] to the diminishment and detriment of the

conservation values of the [p]roperty.” Thus, the court found an

injury (the destruction of wildlife habitat) that requires restoration.

This finding, too, is supported by the record. Rhea opined that

“roads can have a variety of impacts on wildlife,” including that

animals might avoid crossing roads because of the absence of

“security cover.” And Schwartzbach testified that the gravel

“roadbase” removed the vegetation that had previously existed in

27 the middle of the trail, resulting in a “big, wide gap” that “remove[d]

all safe haven for animals to move across the property for nesting,

for foraging.”

¶ 51 Because the evidence supports the district court’s findings, we

affirm its ruling that the Bakers breached the Amended Easement

when they converted the existing trail into the widened, graveled

road.

¶ 52 Next, the Bakers contend that the district court can only

require them to restore the road to its pre-expansion condition,

which they say they have already done by removing the gravel. Like

their arguments relating to the violation, however, this contention

assumes that the only action the Bakers took was laying gravel and

that gravelling the roadway had no lasting, injurious impacts once

the gravel was removed. As explained above, the evidence

demonstrates that (1) the Bakers created a widened road where

there had previously been only a six-foot-wide trail; (2) the

gravelling removed vegetation from the travel surface; and (3) both

of these impacts caused injury because of their detrimental effect

on wildlife movement and habitat.

28 ¶ 53 For these reasons, we conclude that most of the injunctive

relief contained in the Order — removal of remaining gravel;

narrowing of the travel surface back to approximately six feet;

ripping and disking road compaction5; and planting a grass seed

mix — are necessary to return the road and surrounding area it to

its preinjury condition (a six-foot-wide, two-track trail).

Accordingly, such relief is permitted by paragraph 6.2 of the

Amended Easement.

¶ 54 However, we agree with the Bakers that the district court erred

by limiting their use of motorized vehicles to “that necessary to

carry out the rehabilitation of the road” and then to “occasional ATV

use for the purpose of weed spraying.”

¶ 55 Paragraph 3(l) of the Amended Easement prohibits “[t]he use

of motorized recreational vehicles in a manner that would harass

wildlife or degrade or destroy wildlife habitat and/or agricultural

land.” The restrictions imposed by the district court are much

broader. And the court cannot restrict the Bakers’ usage further

than the Amended Easement requires. See People v. Wunder, 2016

5 As we understand Rhea’s testimony, ripping and disking the road

compaction is necessary to revegetate the travel surface.

29 COA 46, ¶ 26 (An injunction is overly broad “if it contains

prohibitions which are unnecessary to effectuate the purposes of

the injunction.”); Phx. Cap., 176 P.3d at 843. Furthermore, La Plata

doesn’t identify, and we haven’t found, any evidence establishing

that the additional vehicular limitations were necessary to

remediate the injuries caused by the expansion of the road or to

prevent the harassment of wildlife or the degradation or destruction

of habitat along the road once it was returned to its preinjury state.

¶ 56 For these reasons, we reverse the portion of the Order limiting

the motorized recreational vehicle use on the south road.

V. Gate

¶ 57 At some point during their ownership, the Bakers installed or

replaced a gate at the end of the south road. The district court

concluded that the gate violated the Amended Easement and

ordered the Bakers to remove it.

¶ 58 However, we agree with the Bakers that the district court erred

by finding this violation and ordering the gate to be removed. The

Amended Easement requires that, when

a violation of the terms of this [Amended] Easement has occurred or is threatened, [La Plata] shall give written notice to [the Bakers]

30 of such violation and demand corrective action sufficient to cure the violation. . . . If [the Bakers] fail to cure the violation within thirty (30) days . . . [La Plata] may bring action at law or in equity . . . to enforce the terms of this [Amended] Easement, to enjoin the violation . . . and to require restoration of the Property . . . .

¶ 59 La Plata failed to issue the Bakers a violation notice regarding

the gate. Therefore, La Plata is not entitled to request or receive

injunctive relief related thereto. Cf. Denver Ventures, Inc. v.

Arlington Lane Corp., 754 P.2d 785, 788 (Colo. App. 1988) (holding

court did not err by refusing to award damages to contractor

because contractor failed to satisfy a notice and cure provision

before terminating the contract and incurring costs to complete

breaching subcontractor’s work).

¶ 60 Accordingly, we reverse the portion of the district court’s Order

requiring the Bakers to remove the gate.

VI. Fencing

¶ 61 The Original Easement allowed for grantors to construct

fences so long as they were “consistent with agricultural uses,

provided such fences are no higher than 42 inches, are not

31 composed of barbed or mesh wire, and meet the requirements of the

Colorado Division of Wildlife for sound wildlife management

practices.” In contrast, the Amended Easement allows the grantors

to construct fences that are consistent with agricultural uses so

long as the fences “allow[] the reasonably natural and safe passage

of wildlife across the Property.”

¶ 62 The district court found, and the Bakers don’t dispute, that

the fence on the property’s southern boundary was a “mesh wire

fence approximately 4 [feet] tall.” The fence on the northern

boundary was “a wire fence at least 4 feet tall.”

¶ 63 In the Order, the district court found that the fences “do not

meet the wildlife-friendly guidelines prescribed by the Colorado

Division of wildlife” and were “wildlife unfriendly.” With respect to

the southern boundary fence, the court ordered the Bakers to

“either: 1) cut down [the fence] to a height of 42 inches, or 2)

replace [the existing fence] with a strand wire fence not to exceed 42

inches in height, and otherwise meeting wildlife-friendly fencing

guidelines of Colorado Parks and Wildlife.” The court ordered the

northern fence to be “replaced with a strand wire fence.”

32 B. Violation and Injunctive Relief

¶ 64 On appeal, the Bakers argue that the district court erred by

using the requirements of the Original Easement rather than the

Amended Easement in finding that the fencing violated the

easement and in ordering injunctive relief. We conclude that

additional findings are necessary.

¶ 65 Although not entirely clear from the Order, it appears that the

district court relied on the fencing standards established in the

Original Easement rather than the more flexible standards in the

Amended Easement. Specifically, instead of finding that the fencing

did not “allow the reasonably natural and safe passage of

wildlife” — the standard in the Amended Easement — the court

found that the fencing “did not meet the guidelines prescribed by

the Colorado Division of [W]ildlife” — the standard in the Original

Easement. The injunctive relief the district court ordered also

appears to follow the standards from the original rather than the

¶ 66 We acknowledge it is possible that (1) fences that violate the

Colorado Division of Wildlife guidelines may also fail to allow the

“reasonably natural and safe passage of wildlife,” and (2) the

33 injunctive relief prescribed by the court may be necessary to allow

such passage. But the Order does not include sufficient findings

for us to determine if that is the case. Because of the lack of clarity,

we can’t tell whether the district court applied the correct

contractual language in determining there was a violation or

whether the relief it afforded is overbroad. We therefore remand for

the court to make additional findings. Specifically, the court must

determine (1) whether the existing fences allow the reasonably

natural and safe passage of wildlife and (2) if not, what relief is

necessary for the fences to allow such passage.6 If the court

intends to award mandatory injunctive relief, it must do so in an

equitable manner. Supra Part III.B.2. And as always, the court

must include sufficient factual findings for a reviewing court to

understand the basis of its ruling. Plaza del Lago Townhomes Ass’n

6 To the extent La Plata suggests that we can affirm the district

court’s holding because some evidence supports a finding that the fences violated the Amended Easement, we decline that invitation. As discussed, it is unclear whether the district court in fact found that the fences violated the terms of the Amended Easement. While we can affirm a court’s factual findings if supported by the record, we are without authority to make factual findings in the first instance. See Kincaid v. W. Operating Co., 890 P.2d 249, 252 (Colo. App. 1994).

34 v. Highwood Builders, LLC, 148 P.3d 367, 372 (Colo. App. 2006)

(“Nonetheless, the [district] court must ‘make sufficient findings to

enable the appellate court to clearly understand the basis of the

[district] court’s decision and . . . to determine the ground on which

it rendered its decision.’” (quoting Norton v. Raymond, 491 P.2d

1403, 1404 (Colo. App. 1971))).

VII. Weeds

¶ 67 As part of its injunctive relief, the district court (1) ordered the

Bakers to “continue to try to stop the spread of weeds” to the extent

possible and (2) prohibited the use of “broadcast spraying” in

riparian areas and in “other areas except where recommended in

order to address large infestations.” We agree with the Bakers’

assertion that this relief is overbroad.

¶ 68 Although La Plata issued the Bakers a violation notice related

to the weeds, the district court did not conclude that the Bakers

had violated the Amended Easement with respect to the weeds or

that the weeds injured the property. Instead, it recognized that

(1) “weeds have been a problem on the property since the

conservation easement was granted”; (2) “the Bakers have taken

steps to stop the spread of weeds”; and (3) “eliminating all invasive

35 or noxious weeds is not realistically possible.” Moreover, the

Amended Easement doesn’t require or prohibit specific methods of

weed control, and the court made no finding that “broadcast

spraying” or any other method of weed control would constitute a

violation of the Amended Easement.

¶ 69 For these reasons, we conclude that the injunctive relief

related to the weeds was overbroad, and we reverse that part of the

Order. See Wunder, ¶ 26.

VIII. Additional Relief Requested by La Plata (Cross-Appeal)

¶ 70 In its post-trial motion, La Plata asked the district court to

adopt a redlined version of the Order containing additional

requested relief. The requested relief included

• orders for Rhea to prepare remediation, restoration, and

revegetation plans for various areas of the property;

• orders for Rhea to prepare a weed management plan;

• orders for the Bakers to pay for Rhea’s additional plans and

to comply with them by the deadlines specified therein;

• additional specificity regarding the type of “grass seed mix”

and “topsoil” used to revegetate the south road and other

areas of the property;

36 • additional restrictions on the manner in which restoration

of the south road would be carried out;

• deadlines for removal of the gate, replacement of the

fencing, and completion of other tasks;

• additional limitations on vehicle movement around the

property;

• orders for the Bakers to prepare, at their expense, a survey

of the “amended building envelope” in which structures may

be constructed; and

• orders giving La Plata the right to enter the Bakers’ property

with forty-eight hours’ notice to monitor compliance with

the restoration.

¶ 71 The district court constructively denied the motion, see

C.R.C.P. 59(j), and La Plata appeals.

¶ 72 Initially, we note that many of La Plata’s requests are moot

given our reversal of the injunctive relief related to the agricultural

area, gate, fence, and weeds. However, some of the requested relief

pertains to the road or to relief ordered for violations that weren’t

appealed.

37 ¶ 73 In its opening-answer brief, La Plata generally contends that

the Order isn’t sufficiently specific for it “to determine how some of

the long-term rehabilitation plans will be accomplished and/or

monitored to ensure they are performed completely.”

¶ 74 As for La Plata’s request to enter the Bakers’ property with

forty-eight hours’ notice, we decline to address this portion of La

Plata’s argument as it is unpreserved because La Plata first made

this in its post-trial motion. See Briargate at Seventeenth Ave.

Owners Ass’n v. Nelson, 2021 COA 78M, ¶ 66 (“Arguments made,

as here, for the first time in a post-trial motion are too late and,

consequently, are deemed waived for purposes of appeal.”).

¶ 75 As to the remaining issues, La Plata fails to articulate with any

specificity why any of the additional items of relief it requested in

the redline (1) will alleviate the alleged uncertainty in the Order;

(2) are necessary to restore the property to its preinjury condition;

(3) are permissible under the Amended Easement’s terms; or (4) are

supported by the record. It also doesn’t explain why any of the

deadlines it requests are reasonable in light of the tasks to which

the deadlines are tied. Accordingly, we decline to address these

arguments as undeveloped. See Woodbridge Condo. Ass’n v. Lo

38 Viento Blanco, LLC, 2020 COA 34, ¶ 41 n.12 (“We don’t consider

undeveloped and unsupported arguments.”), aff’d, 2021 CO 56;

People v. Palacios, 2018 COA 6M, ¶ 29 (“[I]t is not this court’s

function to speculate as to what a party’s argument might be.”

(quoting Beall Transp. Equip. Co. v. S. Pac. Transp., 64 P.3d 1193,

1196 n.2 (Or. Ct. App. 2003))).7

IX. Prevailing Party and Attorney Fees and Costs on Appeal

¶ 76 Paragraph 6.6 of the Amended Easement provides,

All reasonable costs incurred by [La Plata] in enforcing the terms of this [Amended] Easement against [the Bakers], including, without limitation, costs and expenses of suit and reasonable attorney’s fees, and any costs of restoration necessitated by [the Bakers’] violation of the terms of this [Amended] Easement shall be borne by [the Bakers]; provided, however, that if [the Bakers] ultimately prevail[] in a judicial enforcement action, [the Bakers’] reasonable costs shall be borne by [La Plata].

7 To the extent La Plata expands upon its arguments in its reply

brief, we decline to consider those expanded contentions as well. See In re Marriage of Dean, 2017 COA 51, ¶ 31 (“We do not consider the arguments [the appellant] makes for the first time in her reply brief or those that seek to expand upon the contentions she raised in her opening brief.”).

39 ¶ 77 The Bakers contend that the district court erred by concluding

that La Plata was the prevailing party in this litigation. The Bakers

also contend that, under paragraph 6.6, La Plata is not entitled to

recover fees related to the claimed violations on which the Bakers

ultimately prevailed. In addition, each party asserts that the fee-

shifting provision entitles them to attorney fees and costs on

appeal.

¶ 78 As to the district court’s prevailing party determination and

whether the Amended Easement entitles La Plata to an award of

fees as an overall prevailing party (notwithstanding that it didn’t

prevail on some individual claims), we conclude that we do not have

jurisdiction over this portion of the appeal because the attorney fees

order was not final at the time the appeal was filed, and no

amended notice of appeal was filed to include the final attorney fees

order. See USIC Locating Servs. LLC v. Project Res. Grp. Inc., 2023

COA 33, ¶ 34 (an award of attorney fees, which is distinct and

separately appealable from a judgment on the merits, is nonfinal

until the district court has determined the amount of the fees). We

note that the attorney fees award is the subject of a separate

appeal, La Plata Open Space Conservancy v. Baker, (Colo. App. No.

40 24CA677 filed Apr. 18, 2024), in which the Bakers have raised

identical issues. Because that appeal contains a final appealable

order as to attorney fees, that case is the more appropriate vehicle

to determine these issues.

¶ 79 Because we reverse and remand for further proceedings on

several issues and because interpretation of the attorney fees

provision is not before this division, it would be premature to award

appellate attorney fees at this time. See Bedard v. Martin, 100 P.3d

584, 593-94 (Colo. App. 2004). We therefore direct the district

court to consider the parties’ requests for appellate fees following

the remand proceedings. See id.

¶ 80 La Plata also requests its appellate costs under C.A.R. 39.

However, because La Plata only partially prevailed on appeal, we

decline to assess costs against the Bakers. See id.; In re Marriage of

Beatty, 2012 COA 71, ¶ 23.

X. Disposition

¶ 81 The judgment is affirmed in part and reversed in part, and the

case is remanded with directions.

JUDGE HARRIS and JUDGE BROWN concur.