Cody Park Prop. Owners' Ass'n Inc. v. Harder, 09CA0299.

• Citation: 251 P.3d 1
• Decision Date: 15 April 2010
• Docket Number: No. 09CA0299.,09CA0299.
• Parties: CODY PARK PROPERTY OWNERS' ASSOCIATION, INC., Plaintiff–Appellant,v.Sigismund L. HARDER, Alexandra W. Harder, Alan D. Heitsman, and Tammy Heitsman, Defendants–Appellees.
• Court: Colorado Court of Appeals

251 P.3d 1

CODY PARK PROPERTY OWNERS' ASSOCIATION, INC., Plaintiff–Appellant,

v.Sigismund L. HARDER, Alexandra W. Harder, Alan D. Heitsman, and Tammy Heitsman, Defendants–Appellees.

No. 09CA0299.

Colorado Court of Appeals, Div. I.

Nov. 25, 2009.As Modified on Denial of Rehearing April 15, 2010.

Law Office of Peter F. Michaelson, P.C., Peter F. Michaelson, Westcliffe, Colorado, for Plaintiff–Appellant.Sigismund L. Harder, Pro Se.Alexandra W. Harder, Pro Se.J. Brent Garfield, PLLC, J. Brent Garfield, Arvada, Colorado, for Defendants–Appellees Alan D. Heitsman and Tammy Heitsman.Opinion by Judge TAUBMAN.

Plaintiff, Cody Park Property Owners' Association, Inc. (Cody Park), appeals the trial court's summary judgments in favor of defendants, Sigismund L. Harder and Alexandra W. Harder (Harders), and Alan D. Heitsman and Tammy Heitsman (Heitsmans). Cody Park also appeals the trial court's orders granting a preliminary injunction and awarding attorney fees to the Heitsmans. We affirm.

I. Background

The Cody Park subdivision was created in 1987 in Fremont County. A Plat and a Declaration for Protective Covenants (Covenants) were recorded with the office of the County Recorder in Fremont County. The Harders own a parcel of property within the Cody Park subdivision that borders Cody Park Road. The Heitsmans own land adjacent to the Harders' property but not in the Cody Park subdivision. In April 2006, the Harders granted the Heitsmans an Easement allowing the Heitsmans to construct and maintain a driveway across the Harders' property to access Cody Park Road from the Heitsmans' property. The Easement was recorded with the County Recorder in Fremont County. In addition, the Harders and the Heitsmans executed an Agreement which said in part, “Grantees [the Heitsmans] will take whatever steps are required to obtain approval from Cody Park property owners association and any other involved entity, governmental or otherwise, for the construction and maintenance of this roadway.” After the Easement was recorded, the Heitsmans constructed a driveway to Cody Park Road on the Easement. Neither the Harders nor the Heitsmans obtained approval from Cody Park prior to construction. Later, Cody Park blocked the Heitsmans' access to the new driveway by stringing barbed wire across the gate at the entrance to the Harders' property.

Cody Park then sued the Harders and the Heitsmans in April 2007 alleging the Easement was invalid because the Harders did not have the right to grant the Heitsmans permission to use Cody Park Road absent approval from Cody Park. Cody Park contended it owned the roads and thus had the right to control use of the roads within the subdivision. Cody Park also asserted it was a third-party beneficiary of the Agreement executed between the Harders and the Heitsmans. In June 2007, Cody Park amended its Covenants to require subdivision owners to obtain prior written consent from Cody Park before granting an easement or right-of-way.

Cody Park appeals the summary judgments granted to the Harders and the Heitsmans in which the trial court held the Harders had the right to grant the Easement. Cody Park also appeals the trial court's preliminary injunction against its interfering with the Heitsmans' access to the Easement and the subdivision road, as well as the trial court's award of attorney fees to the Heitsmans.

II. C.R.C.P. 56(e) Compliance

Cody Park contends the trial court erred in granting the Harders' and Heitsmans' motions for summary judgment because it considered documents attached to the motions that did not conform to the requirements of C.R.C.P. 56(e). We disagree.

C.R.C.P. 56(e) provides, “Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” A court must disregard documents referred to in a motion for summary judgment that are not sworn or certified. See Struble v. Am. Family Ins. Co., 172 P.3d 950, 955 (Colo.App.2007).

However, arguments never presented to a trial court may not be raised for the first time on appeal. Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n. 5 (Colo.1992). Because Cody Park did not question the authenticity of the Agreement in the trial court, we will not consider the issue for the first time on appeal. Further, Cody Park founded its request to add a third-party beneficiary claim on language in the Agreement, and Cody Park's complaint was based on the Covenants, the Easement, and the Agreement. Thus, Cody Park may not now contend on appeal that the trial court improperly considered those documents.

III. Interpretation of Easement and Agreement

Cody Park contends the trial court erred by inferring terms not explicitly set forth in the unambiguous Easement or Agreement. More specifically, Cody Park objects to the trial court's conclusions (1) that under the Easement and Agreement, at most the Harders impliedly made the Heitsmans licensees or invitees, (2) that the Agreement suggests the Easement provides alternative access to the Heitsmans' property and is therefore not an easement of necessity, and (3) that the Harders agreed only for themselves to refrain from objecting to the Heitsmans' use of Cody Park Road.

The Harders and Heitsmans respond that even if the trial court improperly interpreted the Easement and Agreement to be ambiguous, the plain language of the Covenants did not prohibit the Harders from granting an easement to the Heitsmans. We agree with the Harders and Heitsmans.

The interpretation of a covenant is a question of law that we review de novo. Evergreen Highlands Ass'n v. West, 73 P.3d 1, 3 (Colo.2003). If a trial court concludes that language is unambiguous, evidence beyond the four corners of the document is not considered. Ad Two, Inc. v. City & County of Denver, 9 P.3d 373, 376–77 (Colo.2000). “The mere fact that the parties may have different opinions regarding the interpretation of the contract does not itself create an ambiguity in the contract.” Id. at 377.

The Agreement provides, “[The Harders] will execute an Easement to [the Heitsmans]” and “[t]his Easement is limited to use as an access road from Cody Park Road to [the Heitsmans'] parcel only.” The Agreement also says the Heitsmans “will take whatever steps are required to obtain approval from the Cody Park property owners association.”

In its order granting summary judgment to the Harders, the trial court stated:

At most, the Harders impliedly made the Heitsmans licensees or invitees. By implication, the Harders also promised, for themselves not for the Cody Park Homeowners Association or other subdivision owners, not to object to Heitsmans' use of subdivision roads to access the easement.

The agreement suggests that the easement provides alternate access to Heitsman's property, implying that it is not an easement of necessity and probably would not be the primary access to the dominant estate.

Contrary to Cody Park's contention, the trial court, in using the words “impliedly,” “implication,” and “suggests,” did not conclude the Easement and Agreement were ambiguous. Rather, it determined the intent of the parties by interpreting the plain language of the documents. The trial court did not rely on any extrinsic evidence in deciding the intent of the parties.

In any event, we conclude summary judgment was appropriate because nothing in the Covenants restricted the Harders' ability to grant the Heitsmans the Easement across their property.

IV. Third–Party Beneficiary

Cody Park also contends the trial court erred in denying its motion to amend its complaint to add a third-party beneficiary claim. We disagree.

A trial court's denial of a motion to amend a complaint is reviewed for abuse of discretion. Polk v. Denver Dist. Court, 849 P.2d 23, 25 (Colo.1993). “A court abuses its discretion if its decision is manifestly arbitrary, unreasonable, or unfair.” Akin v. Four Corners Encampment, 179 P.3d 139, 146 (Colo.App.2007). While leave to amend should be freely granted, Casey v. Christie Lodge Owners Ass'n, 923 P.2d 365, 367 (Colo.App.1996), a trial court does not violate its discretion when it denies a motion to amend which is futile. Bristol Co. v. Osman, 190 P.3d 752, 759 (Colo.App.2007) (denial is appropriate when amendment would not survive a motion to dismiss).

A third party who is not a party to an agreement may enforce one or more obligations created by that agreement if the third party is intended by the parties to be a direct beneficiary of the agreement. Smith v. TCI Commc'ns, Inc., 981 P.2d 690, 693 (Colo.App.1999). The benefit claimed must be direct and not merely incidental. E.B. Roberts Constr. Co. v. Concrete Contractors, Inc., 704 P.2d 859, 865 (Colo.1985). The intent to benefit a third party need not be expressly referred to in the agreement, but must be apparent from the terms of the agreement or the surrounding circumstances. Id.

We agree with the Harders and the Heitsmans that the parties never intended the Easement to benefit Cody Park and therefore the trial court properly denied Cody Park's claim. The Easement provided, “This Easement is intended for the personal use and benefit only of the family and friends of Grantees, and not for any other or wider purpose.” This language does not demonstrate an intent to benefit Cody Park.

Nevertheless, Cody Park asserts that language in the Agreement directing the Heitsmans to obtain any approval required by Cody Park in constructing and maintaining the Easement is evidence of the parties' intent to confer a benefit on Cody Park. However, this language was contingent on approval being required by Cody Park. Since the Covenants did not prohibit the Harders from entering into the Agreement with the Heitsmans, no such approval was necessary. Cody Park later amended the Covenants to require written approval before granting an easement, but Cody Park does not argue the amendments apply here retroactively.

We agree with the...