Estate of Christensen v. Vail Mountain

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.”

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¶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.

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¶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

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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.

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¶ 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.

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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

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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.”

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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.

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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

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(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.

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¶ 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).

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¶ 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

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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.

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¶ 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.

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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.

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¶ 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).

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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.

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