Bolinger v. Neal

• Decision Date: 24 November 2010
• Docket Number: No. 09CA1314.,09CA1314.
• Citation: 259 P.3d 1259
• Parties: Preston BOLINGER; Blythe Bolinger; Dave Mathiesen; Brenda Shelton; Edwin Coulter; Donna Coulter; Glenn Wollam; Bonnie Schoenstein; and Mill Creek Subdivision Homeowners Association, a Colorado nonprofit corporation, Plaintiffs–Appellants and Cross–Appellees,v.Dennis NEAL and Plains View Development, LLC, a Colorado limited liability company, Defendants–Appellees and Cross–Appellants,andWalt DeWolf; Carol DeWolf; and Colorado Open Lands, a Colorado nonprofit corporation, Defendants–Appellees.
• Court: Colorado Court of Appeals

259 P.3d 1259

Preston BOLINGER; Blythe Bolinger; Dave Mathiesen; Brenda Shelton; Edwin Coulter; Donna Coulter; Glenn Wollam; Bonnie Schoenstein; and Mill Creek Subdivision Homeowners Association, a Colorado nonprofit corporation, Plaintiffs–Appellants and Cross–Appellees,

v.Dennis NEAL and Plains View Development, LLC, a Colorado limited liability company, Defendants–Appellees and Cross–Appellants,andWalt DeWolf; Carol DeWolf; and Colorado Open Lands, a Colorado nonprofit corporation, Defendants–Appellees.

No. 09CA1314.

Colorado Court of Appeals, Div. IV.

Oct. 14, 2010.As Modified on Denial of Rehearing Nov. 24, 2010.

Otis, Coan & Peters, LLC, Jennifer Lynn Peters, Brett Payton, Greeley, Colorado, for Plaintiffs–Appellants and Cross–Appellees.Shoemaker Chiselli & Schwartz, LLC, Paul H. Schwartz, Cynthia A. Mitchell, Boulder, Colorado, for Defendants–Appellees and Cross–Appellants.Witwer, Oldenburg, Barry & Johnson, LLP, Patrick Groom, Timothy P. Brynteson, Loveland, Colorado, for Defendants–Appellees Walt DeWolf and Carol DeWolf.Faegre & Benson, LLP, Laurence W. DeMuth, III, Colin C. Deihl, Jacy T. Rock, Denver, Colorado, for Defendant–Appellee Colorado Open Lands.Opinion by Judge WEBB.

This case arises from quiet title, fraud, and breach of contract claims involving a path easement within the Mill Creek Subdivision, a planned unit development (PUD), in Weld County. Plaintiffs, Preston and Blythe Bolinger, Dave Mathiesen, Brenda Shelton, Edwin and Donna Coulter, Glenn Wollam, Bonnie Schoenstein, and Mill Creek Subdivision Homeowners Association (HOA), have appealed. Defendants, Dennis Neal and his company, Plains View Development, LLC (Plains View), have cross-appealed. The remaining defendants, Walt and Carol DeWolf, and Colorado Open Lands (COL), a nonprofit corporation, have not cross-appealed.

I. Background

In 2000, Neal began to develop a parcel of land near Berthoud, Colorado, consisting of Lot A and Lot B. Lot B was to be subdivided as a PUD consisting of nine large residential lots and approximately 100 acres of open space, which became Lot 10 of the subdivision.

In late 2000, Neal sold Lot A to Wollam and Schoenstein. He promised them open and unfettered access to Lot 10, if Weld County approved the subdivision and PUD, and to construct a trail on Lot 10.

On December 28, 2001, a Deed of Conservation Easement granted by Neal to COL covering what became Lot 10 was recorded. This deed reserved to Neal the power to grant the lot owners in the subdivision access to Lot 10. It required prior approval by COL of improvements and gave COL the power to restrict some activities on Lot 10.

In February 2003, Neal formed Plains View to continue the development. The first subdivision plat of Lot B, which the county approved as a PUD, was recorded on March 28, 2003. On April 8, 2003, Neal recorded a Declaration of Covenants, Conditions and Restrictions for the subdivision, which describes improvements that were never made.

On June 9, 2003, the Coulters purchased a lot in the subdivision, relying on Neal's representation that they would have open and unfettered access to Lot 10. On August 5, 2004, the Bolingers purchased a lot in the subdivision, relying on a similar representation by Neal. In dealing with these plaintiffs, Neal and Plains View also promised to construct a trail in Lot 10.

On August 14, 2004, Neal and Plains View recorded an “Amended Mill Creek PUD,” which is described in the surveyor's certificate and the county's approval as a plat (amended PUD). Unlike the initial plat, it showed a 20–foot wide path around the perimeter of, and circling two ponds within, Lot 10. The Coulters and the Bolingers signed the amended PUD. All deeds for subsequent sales referred to it.

On March 4, 2005, Shelton and Mathiesen purchased a lot in the subdivision. Neal represented that they would have access to Lot 10 as depicted in a sales brochure on which he had sketched a path as depicted on the amended PUD. He also promised them a constructed trail, consistent with the sketch and the amended PUD.

On September 6, 2005, the DeWolfs purchased Lot 7, one of the residential lots, and Lot 10. They conditioned their purchase on limiting the path to the perimeter of Lot 10 and its not crossing the boundary between Lot 7 and Lot 10. Neal agreed, prepared a second amended PUD reflecting these changes, and caused it to be recorded. This plat was neither approved by the county nor signed by any of the existing owners.

On the same day, Neal and Plains View recorded two recreational licenses, one for the HOA and its members and the other for Wollam and Schoenstein but not their successors or assigns. The licenses provided for use of the path described in the amended PUD, subject to the HOA maintaining liability insurance, with Wollam and Schoenstein to pay a portion of the premiums.

By January of 2006, a dispute concerning plaintiffs' access to and use of Lot 10, including the existence of a path easement, had arisen. Plaintiffs commenced this action on December 18, 2007, asserting the following claims: (1) for a decree quieting title under C.R.C.P. 105 against COL and the DeWolfs, to the extent of an express or implied path easement consistent with Neal's representations and the amended PUD; (2) for common law fraud damages from Neal and Plains View, based on Neal's misrepresentations about access to Lot 10; and (3) for breach of contract damages based on the failure of Neal and Plains View to make improvements described in the declaration and in his representations about the path.

Following a bench trial, the court entered detailed written findings of fact and conclusions of law. On post-trial motions, it entered corrected findings and, as relevant here, four separate orders. Ultimately, the court determined the following: (1) plaintiffs did not establish superior title concerning a claimed path easement over an open-space lot in the subdivision owned by the DeWolfs and subject to a conservation deed for the benefit of COL; (2) either directly or through the HOA, the individual plaintiffs were the beneficiaries of licenses for recreational use of this lot; (3) the individual plaintiffs established fraud against Neal and Plains View based on his misrepresentations about the path easement, but they were entitled only to nominal damages; (4) plaintiffs established breach of contract and were entitled to damages of $40,000 against Plains View and $81,555 against Neal, which included the $40,000; (5) plaintiffs could not recover attorney fees from Neal or Plains View; and (6) as the prevailing party on the quiet title claim, COL was awarded costs against plaintiffs.

II. Summary

We affirm in part, reverse in part, vacate in part, and remand for further proceedings, as follows: (1) on the quiet title claim, (a) all plaintiffs except Wollam and Schoenstein established that an amended PUD and plat created an express path easement over the DeWolf lot, which was not precluded by COL's previously recorded conservation deed and is superior to the DeWolfs' title; and (b) Wollam and Schoenstein were not beneficiaries of this express easement and are not entitled to an easement by estoppel; (2) Neal and Plains View were entitled to judgment in their favor based on the statute of limitations as to the fraud claims of all individual plaintiffs except Shelton and Mathiesen; (3) the fraud claim of Shelton and Mathiesen fails because the express easement is consistent with what Neal promised them; (4) plaintiffs are not entitled to recover attorney fees from Neal or Plains View; (5) the cost award in favor of COL is reversed as to all individual plaintiffs except Wollam and Schoenstein, as to whom it is vacated and remanded for further proceedings; and (6) the individual plaintiffs proved breach of contract and damages as awarded against Plains View, but any damages awarded against from Neal must be set aside.

Appeal

III. The Amended PUD Created an Easement for the Benefit of the Mill Creek Lot Owners

Plaintiffs first contend that because the amended PUD granted a path easement, the trial court erred in rejecting their quiet title claim. We conclude that the amended PUD created an express easement.

On appeal, a recorded instrument is reviewed de novo. Bolser v. Bd. of Comm'rs, 100 P.3d 51, 53 (Colo.App.2004). We first attempt to ascertain the meaning of a document granting an easement from the words used and the circumstances surrounding the grant; but if, upon doing so, we conclude the instrument is ambiguous, then we must look to extrinsic evidence to discern the grantor's actual intent. Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1236 (Colo.1998). Intent is a question of fact. Burman v. Richmond Homes Ltd., 821 P.2d 913, 920 (Colo.App.1991). We defer to trial court factual findings of intent unless they are clearly erroneous. See Schempp v. Lucre Mgmt. Group, LLC, 75 P.3d 1157, 1161 (Colo.App.2003).

An easement authorizes presence and action on the land of another. Lazy Dog Ranch, 965 P.2d at 1234. “No particular words are necessary for the grant of an easement....” Hornsilver Circle, Ltd. v. Trope, 904 P.2d 1353, 1356 (Colo.App.1995). Nor is it “essential to the validity of the grant of an easement that it be described by metes and bounds or by figures giving definite dimensions of the easement.” Stevens v. Mannix, 77 P.3d 931, 933 (Colo.App.2003) (quoting Howard v. Cramlet, 56 Ark. App. 171, 939 S.W.2d 858, 859 (1997)). However, “the instrument must identify with reasonable certainty the easement created and the dominant and servient tenements.” Hornsilver Circle, 904 P.2d at 1356.

A. A Plat or PUD Can Create an Easement

An easement is created “if the owner of the property to be burdened ... conveys a lot or unit in a general-plan development or common-interest community subject to a recorded declaration of servitudes for the development or community....” Allen v. Nickerson, 155 P.3d 595, 598 (Colo.App.2006) ...