Chateau Christian v. VailPoint

25CA0912 Chateau Christian v VailPoint 05-28-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0912
Eagle County District Court No. 23CV30115
Honorable Paul R. Dunkelman, Judge

The Chateau Christian Townhouses Association, Inc., a Colorado non-profit
corporation; Villa Valhalla Association, Inc., a Colorado non-profit corporation;
Kaciana Associates; LeiboVail LLC; Stephen N. Six; and Johnfry LLC,

Plaintiffs-Appellees,

v.

VailPoint LLC, a Colorado limited liability company,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE YUN
Lipinsky and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 28, 2026

Porterfield & Oliver, LLC, Wendell B. Porterfield, Vail, Colorado, for
Plaintiffs-Appellees

Steptoe & Johnson PLLC, Deva A. Solomon, Amber M. Moore, Denver,
Colorado, for Defendant-Appellant
¶1 In this dispute over land use covenants, defendant, VailPoint

LLC, appeals the district court’s grant of a permanent injunction in

favor of plaintiffs, Chateau Christian Townhouses Association, Inc.;

Villa Valhalla Association, Inc.; Kaciana Associates; LeiboVail LLC;

Stephen N. Six; and Johnfry LLC (collectively, the Neighbors).

Specifically, VailPoint contends that the court “erred by recognizing

and enforcing [the] Neighbors’ purported covenant and easement

rights” with respect to the fenced-in area behind VailPoint’s house

(the enclosure). We affirm.

I. Background

¶2 Since the 1960s, Vail Village has been a covenant-protected

subdivision at the base of Vail Mountain. VailPoint owns a house at

366 Hanson Ranch Road on Lot d of Vail Village, while the

Neighbors own nearby condominiums or townhouses. Tract E

borders the properties on Lot d to the south and west. In 2023,

VailPoint developed the enclosure, which includes part of Lot d-1

and Tract E. The following aerial photograph and map show the

location of the properties and lots:

1
Aerial Photograph of VailPoint’s Property, Lot d-1, and Tract E

1962 Map Showing the Complete Extent of Lot d and Tract E

2
The Neighbors maintain that VailPoint’s development of the

enclosure in 2023 violated the protective covenants for Tract E

found in (1) a warranty deed and (2) the fifth filing of the

subdivision plats for Vail Village.

A. Warranty Deed

¶3 In 1963, Vail Associates Ltd., the common owner of Tract E

and Lot d, conveyed a portion of Lot d to Christiana-at-Vail Inc.

through a warranty deed. This deed granted Christiana-at-Vail and

“its successors and assigns forever” a “perpetual right and

easement of light, air, prospect, ingress and egress upon, over and

across Tract E” (Deed Easement). The deed also included a

restrictive covenant (Deed Covenant), in which Vail Associates

agreed “for Itself, its successors, grantees and assigns, that Tract E

shall be left vacant and undisturbed in its natural condition at all

times hereafter and that no structure or Improvement of any kind

or character shall be, erected or maintained on Tract E.”1 The deed

1 VailPoint refers to the entire warranty deed as “the Easement.”

We distinguish between the two provisions of the warranty deed,
referring to the provision about “ingress and egress” as the Deed
Easement and the provision about “natural condition” as the Deed
Covenant.

3
was promptly recorded, and in the years that followed,

Christiana-at-Vail built condominiums, townhouses, and a house.

In the 1960s, a split-rail fence was erected behind the house,

creating the enclosure that VailPoint would later develop.

B. Fifth Filing Covenants and Amendments

¶4 In 1965, Vail Associates recorded protective covenants as part

of the fifth filing of the subdivision plats for Vail Village (Fifth Filing

Covenants). Paragraph 2.4 of the Fifth Filing Covenants required

that Tract E and five other tracts “be used as an open area or for

recreational uses, including parking,” and that “no permanent

above-ground buildings, other than buildings used for recreational

purposes, shall be constructed or maintained.”

¶5 The Fifth Filing Covenants were subsequently amended twice,

but the restrictions on Tract E remained largely unchanged. A

1971 amendment supplemented the restrictions in Paragraph 2.4,

stating that Tract E and Lot d-1

shall be used, held and maintained in good
order and condition by the Town of Vail
(subject to existing or recorded easements and
rights of way) for use at all times as a vacant
and undisturbed open area in its natural
condition or landscaped with trees, shrubs and
grass and no structure, building, or

4
improvement of any kind or character, whether
temporary or permanent, may be erected or
maintained thereon, except as herein provided.

¶6 This amendment also authorized “a children’s playground”

and a “paved pedestrian walkway.” Later, a 1984 amendment

acknowledged that “a number of structures have been built in

violation of the covenants” within “the boundaries of Vail Village,

Fifth Filing,” and it “amend[ed] the Protective Covenants to allow

the present uses on the Subject Land.” Paragraph 2.4 of the

amendment maintained the same restrictions but applied them to

Tract E and four other tracts instead of five tracts.

C. VailPoint’s Development of the Enclosure

¶7 In 2015, VailPoint purchased the house from The Vail

Corporation — Vail Associates’ successor-in-interest — and soon

sought to acquire the enclosure separately as part of a large-scale

development plan. This plan called for demolishing the house and

constructing an “ultra-luxury private lodge,” with hardscaping

extending onto Tract E. Accordingly, in 2016, VailPoint entered into

a purchase agreement for the enclosure, contingent upon the Vail

Town Council’s approval of its development plan, which included

requests to modify the Fifth Filing Covenants and zoning

5
designation. A public hearing was held, during which the

Neighbors and other residents opposed the proposal. Ultimately,

the Town Council rejected the plan.

¶8 After the denial, VailPoint pursued ownership of the enclosure

through a quiet title action in which VailPoint named a single

defendant — The Vail Corporation. The Vail Corporation quickly

settled with VailPoint. The resulting court order granted VailPoint

fee simple ownership of the portions of Lot d-1 and Tract E within

the enclosure, “subject to any and all easements, covenants,

restrictions, and all other matters of record duly recorded against

the Property.”

¶9 Determined to develop the enclosure, VailPoint submitted a

two-part application for Lot d with the Vail Planning and

Environmental Commission. The first part — the Exemption Plat

Application — sought to consolidate VailPoint’s portions of Lot d,

Lot d-1, and Tract E into a single parcel called “Lot 1.” The second

part — the Zone District Boundary Amendment Petition — sought

to rezone the portion of Tract E within the enclosure from

Agriculture and Open Space to Public Accommodation. Public

6
hearings were held, and once again, the Neighbors opposed the

plan. The town approved the first part, but it denied the second.

¶ 10 VailPoint then devised another plan for the enclosure and

submitted it to the Vail Design Review Board for the newly

designated Lot 1, labeling the project as “landscaping.” The Design

Review Board approved the plan and issued a building permit.

Unlike the previous applications, there is no evidence that the

Neighbors were given notice of VailPoint’s application to the Design

Review Board or the issuance of the permit.

¶ 11 In 2023, VailPoint erected a construction privacy fence and

began developing the enclosure. VailPoint invested $1.2 to $1.5

million to construct (1) a heated flagstone patio; (2) an

eight-by-ten-foot above-ground hot tub framed by a

two-to-three-foot stone wall on three sides and a six-foot wall facing

the Neighbors’ townhouses; (3) an electrical equipment box clad in

stone veneer; (4) a stone fireplace and chimney about ten feet high;

(5) a downward-angled lighting fixture; and (6) an additional

two-to-three-foot stone wall along the southern perimeter of the

patio (the 2023 development). This construction occurred almost

entirely on Tract E over a period of three to four months. The

7
following photographs show the enclosure before and after the 2023

development:

The 2023 Development’s Changes to the Enclosure

D. Lawsuit

¶ 12 When the Neighbors learned of the 2023 development, they

filed suit, claiming that VailPoint had violated both the Deed

Covenant and the Fifth Filing Covenants for Tract E and seeking an

injunction to restore the enclosure to its condition before the 2023

development.2 VailPoint counterclaimed, seeking a declaratory

judgment that the Deed Easement and Deed Covenant did not

2 The district court found that the “Chateau Plaintiffs as owners of a

portion of Lot d in Tract 1 have standing to enforce [the Deed
Easement and the Deed Covenant].” The court also found that
Chateau Christian Townhouses Association, Inc.; Villa Valhalla
Association, Inc.; and Johnfry LLC, as property owners “within the
Vail Village, Fifth Filing,” have standing to enforce the Fifth Filing
Covenants. No party challenges either finding on appeal.

8
restrict its current use of the enclosure, either because both

Covenants were “waived acquiesced, and abandoned” by the

Neighbors or because they “do not and have never burdened the

[enclosure].”

¶ 13 After a three-day bench trial, the district court (1) found that

the Deed Covenant and Fifth Filing Covenants remained applicable

to the enclosure; (2) concluded that the 2023 development violated

both Covenants; (3) determined that none of VailPoint’s affirmative

defenses excused this violation; (4) declined to exercise equitable

discretion to exempt the 2023 development from both Covenants;

(5) issued a permanent injunction requiring VailPoint to restore the

enclosure to its pre-2023 condition; and (6) declared that the

Neighbors had abandoned the Deed Easement with respect to the

split-rail fence surrounding the enclosure.

¶ 14 VailPoint now appeals.

II. Analysis

¶ 15 VailPoint advances three primary arguments: (1) the district

court failed to exercise its equitable power to exempt VailPoint’s

2023 development from the Covenants; (2) the district court “erred

by granting [the] Neighbors’ injunction request”; and (3) the district

9
court “erred as a matter of law by not treating abandonment as a

counterclaim to terminate both the [Deed Covenant] and the [Fifth

Filing] Covenants under C.R.C.P. 8(c).” We address each argument

and then turn to VailPoint’s remaining contentions.

A. Standard of Review

¶ 16 The “power to fashion equitable remedies” — such as

canceling a restrictive covenant or entering a permanent

injunction — “lies within the discretion of the [district] court.”

Beren v. Beren, 2015 CO 29, ¶ 12. Accordingly, we will not disturb

such a ruling unless the court abused its discretion. Id.; see also

Rome v. Mandel, 2016 COA 192M, ¶ 60 (reviewing an order granting

a permanent injunction for an abuse of discretion); Schneider v.

Drake, 44 P.3d 256, 261 (Colo. App. 2001) (reviewing equitable

relief from restrictive covenants for abuse of discretion). A court

abuses its discretion if its decision is manifestly arbitrary,

unreasonable, or unfair, or based on an erroneous understanding

or application of the law. Rome, ¶ 49.

¶ 17 We review for clear error the factual findings underlying a

grant of equitable relief and defer to those findings if the record

supports them. Beren, ¶ 12. However, we review de novo the legal

10
basis for relief, such as the interpretation of a covenant. See Rome,

¶ 60; Dallman v. Ritter, 225 P.3d 610, 621 (Colo. 2010); see also

Buick v. Highland Meadow Ests. at Castle Peak Ranch, Inc., 21 P.3d

860, 862 (Colo. 2001) (“Construction of a covenant is a question of

law that requires de novo review.”).

B. Equitable Power

¶ 18 VailPoint argues that the district court erred by failing to

exercise its equitable power and “terminate the [Deed Covenant and

Fifth Filing Covenants] as to the [2023 development].” VailPoint

asserts that these Covenants no longer serve their original

purposes, are no longer beneficial to the Neighbors, and would be

unduly oppressive to VailPoint if enforced. We disagree.

1. Additional Background

¶ 19 The district court determined that VailPoint’s 2023

development violated both the Deed Covenant, which prohibited

structures of any kind on Tract E, and the Fifth Filing Covenants,

which prohibited any structure on Tract E unless built for a

“recreational” use. The court specifically found that the 2023

development was not a permissible “recreational” use under the

Fifth Filing Covenants.

11
¶ 20 The court declined to exercise its equitable power to excuse

these violations, finding that VailPoint’s development efforts were

unprecedented, were inconsistent with the character of open space,

and had long been a concern of the Neighbors’. The court stated:

There have been no improvement[s] in Tract E
similar to the improvements done by
VailPoint . . . . There has been no individual
homeowner or townhome/condominium
complex who hardscaped an area and added a
hot tub, stove and wall. The intent of Tract E
remains open space. This is inconsistent with
open space. The covenants still serve a
purpose and there is a purpose and there is a
benefit to them. The Court does not find that
enforcing the covenants imposes an oppressive
burden without substantial benefit.

¶ 21 Although the court found that the split-rail fence surrounding

the pre-2023 enclosure violated at least the Deed Covenant, the

court exercised its equitable discretion to permit “the fenced area as

it existed prior to the [2023 development].” The court explained:

The condition of the property that existed prior
to the [2023 development] is different. It
existed in that form for sixty (60) years without
concern from any party. To enforce the
covenants in a manner that would not permit
this would be inequitable. It would not serve
the purpose for which it was imposed. There
would be no benefit. It would be oppressive.

12
The court therefore found that equity demanded that VailPoint

“return the property to the condition prior to the [2023

development] and . . . use it in a similar fashion.”

2. Applicable Law

¶ 22 Generally, when a covenant is clear on its face, a district court

will enforce it as written. See Schneider, 44 P.3d at 259. However,

the court retains its equitable power to permit a violation of

restrictive covenants under certain circumstances. Specifically, the

court may modify or cancel a covenant if

(1) “the restrictive covenants no longer serve the purpose for

which they were imposed,” Zavislak v. Shipman, 362 P.2d

1053, 1055 (Colo. 1961);

(2) the covenants “are no longer beneficial to those claiming

under them,” id.; and

(3) “the enforcement would impose an oppressive burden

without any substantial benefit,” Schneider, 44 P.3d at

261.

¶ 23 “When the purpose for which the restriction was imposed has

come to an end, and where the use of the tract of land for whose

benefit it was established has utterly changed,” so that no party

13
could reasonably enforce it in equity or claim harm from its

violation, equitable relief is warranted. W. Alameda Heights

Homeowners Ass’n v. Bd. of Cnty. Comm’rs, 458 P.2d 253, 255

(Colo. 1969) (quoting Zavislak, 362 P.2d at 1055-56). Thus, even

when the covenants are clear on their face, if these criteria are

proved, the court “may fashion a remedy to effect justice suitable to

the circumstances of the case.” Woodmoor Imp. Ass’n v. Brenner,

919 P.2d 928, 931 (Colo. App. 1996).

3. Discussion

¶ 24 The district court did not abuse its discretion by declining to

exercise its equitable power to allow VailPoint’s 2023 development.

The court concluded that the Covenants continue to serve a

purpose and provide a benefit and that enforcement does not place

an oppressive burden on VailPoint without a substantial

corresponding benefit to others. These findings are well supported

by the record.

¶ 25 First, the Covenants continue to serve the purpose for which

they were imposed. The district court found that both the Fifth

Filing and Deed Covenants share a common goal: to keep Tract E

vacant, natural, and undisturbed. Even with the “recreational” use

14
carve-out in the Fifth Filing Covenants, the overriding purpose of

the Fifth Filing Covenants is to preserve open areas “with trees,

shrubs and grass” and to prevent excessive development of Tract E.

The fact that some approved structures have been erected on Tract

E only heightens the need to conserve the limited open space that

remains.

¶ 26 VailPoint challenges the court’s conclusion, asserting that the

presence of various structures has “destroy[ed]” the purposes of

both Covenants. But VailPoint’s reliance on nearby structures —

including a hotel pool and bar, a gondola, a children’s playground,

and paved paths — to argue that the “purpose [of the Deed

Covenant] no longer exists” is misplaced. The pool and bar are not

located on Tract E and, therefore, have no bearing on the purpose

of the Deed Covenant. And as the district court explained, the

gondola is a permitted recreational use on the commercial side of

Tract E, and the 1971 amendment expressly authorized both the

playground and paths. Because these structures were not subject

to the Covenants or were compliant with them, they do not

undermine the purpose of either Covenant.

15
¶ 27 VailPoint’s related argument — that the split-rail fence erected

in the 1960s eliminated the purpose of both Covenants with respect

to the enclosure — is similarly unpersuasive. The district court

recognized the difference between a simple split-rail fence enclosing

a grassy open space and the hardscaping of an area with amenities

such as a hot tub, stove, chimney, and wall. The split-rail fence

existed for sixty years without objection from any party, whereas

VailPoint proceeded with its recent hardscaping project despite

continuous opposition from the Neighbors. In any event, the court

exercised its equitable discretion to permit the pre-2023

enclosure — the “grassy fenced in yard” — because it was largely

consistent with the overall purpose of maintaining Tract E as

undisturbed open space, either in its natural condition or

landscaped with trees, shrubs, and grass.

¶ 28 Second, we agree with the district court that these Covenants

continue to benefit the Neighbors. The court emphasized the value

of open, natural space and acknowledged the “real” and

“substantial” impact of VailPoint’s decision to convert a grassy area

into a heated, hardscaped patio with a hot tub, stone wall, and rock

stove and chimney. This change has increased noise and light

16
pollution, deprived the Neighbors of the aesthetic benefits once

provided by greenery visible from nearby townhomes and walking

paths, and undermined the protections that the Covenants afford to

the remaining open, natural space on Tract E.

¶ 29 Third, we agree with the district court that enforcement of the

Covenants is not oppressive to VailPoint, given the corresponding

benefits to the Neighbors. Although VailPoint maintains that it will

be costly to restore the enclosure because it spent $1.2 to $1.5

million to build it, VailPoint moved forward with the construction

despite clear knowledge of the risks. As the district court observed,

VailPoint — with the benefit of legal counsel — persistently sought

to develop the enclosure for nearly a decade, despite full knowledge

of the restrictions.

¶ 30 The court further found that “VailPoint tried to limit public

knowledge of the project and fast track [it] to completion before

objections could be made,” that it “decided to move forward with the

[2023 development] and to address the legal issues after the fact,”

and that it “completed this work with the hope that it would make it

more difficult to enforce the restrictions and more difficult to order

the work be restored.” Under these circumstances, when a property

17
owner knowingly violates land use restrictions, injunctive relief that

restores compliance is rarely considered oppressive. See also

Levy v. Bd. of Adjustment, 369 P.2d 991, 995-96 (Colo. 1962)

(holding that self-inflicted hardship is “at the very least a highly

significant fact” in deciding whether a property owner should

receive relief from the enforcement of a zoning ordinance); Nopro

Co. v. Town of Cherry Hills Village, 504 P.2d 344, 349 (Colo. 1972)

(holding there was no record support for finding that a developer

would suffer a “substantial hardship” if made to comply with zoning

restrictions because it purchased the land with full knowledge of

the restrictions).

¶ 31 Finally, embedded within this equitable argument, VailPoint

raises a separate compliance argument. Specifically, VailPoint

contends that the court erred by concluding that its development

was not a compliant “recreational” use under the Fifth Filing

Covenants, arguing that the court (1) relied on an unpublished

court of appeals opinion to interpret the term “recreational” and

(2) rejected VailPoint’s broader definition of “recreational” that

encompassed private leisure. However, we need not reach either

point because the district court found that the 2023 development

18
violated both the Fifth Filing Covenants and the Deed Covenant.

Thus, even if the 2023 development complied with the Fifth Filing

Covenants as a “recreational” use — an issue we do not decide — it

would still run afoul of the Deed Covenant because the Deed

Covenant does not contain an exception for recreational use.

C. Permanent Injunction

¶ 32 VailPoint contends that the district court “erred by issuing an

injunction” because the “Neighbors failed to establish any of the

elements” for a permanent injunction and the court “had doubt”

regarding each element. We are not persuaded.

1. Applicable Law

¶ 33 A party seeking a permanent injunction must show that

“(1) the party has achieved actual success on the merits;

(2) irreparable harm will result unless the injunction is issued;

(3) the threatened injury outweighs the harm that the injunction

may cause to the opposing party; and (4) the injunction, if issued,

will not adversely affect the public interest.” Langlois v. Bd. of Cnty.

Comm’rs, 78 P.3d 1154, 1158 (Colo. App. 2003).

19
2. Discussion

¶ 34 The district court did not abuse its discretion by granting

injunctive relief requiring VailPoint to restore the enclosure to its

pre-2023 condition.

• For the first element, the Neighbors did succeed on the

merits. The court ruled in favor of the Neighbors that the

2023 development violated the Deed Covenant and Fifth

Filing Covenants — a ruling we uphold on appeal.

• For the second element, the court determined that the

Neighbors experienced “real, substantial, and [continuing]”

irreparable harm. VailPoint had “significantly changed” the

character of the fenced-in grassy area, despite knowing that

the property was subject to restrictions. And this

development had “a significant effect on aesthetics and the

[Neighbors’] enjoyment of their property.” See K9Shrink,

LLC v. Ridgewood Meadows Water & Homeowners Ass’n,

278 P.3d 372, 379 (Colo. App. 2011) (upholding the court’s

finding of irreparable harm when the neighbors testified

that the covenant violation interfered with their enjoyment

of their properties). Given the scarcity of open space in Vail

20
Village, the court did not abuse its discretion by crediting

the Neighbors’ testimony that harm resulting from violating

the Covenants could not be compensated monetarily.

• For the third element, the court weighed the harm to the

Neighbors against the impact of imposing an injunction.

The court acknowledged that VailPoint invested $1.2 to $1.5

million in the construction and recognized that the

Neighbors’ “sense of harm” was likely heightened by their

frustration over what they perceived as VailPoint’s covert

construction of the enclosure. Nevertheless, the court

found that the harm to the Neighbors was real and

“outweigh[ed] the harm that the injunction may cause to

VailPoint” — in no small part because VailPoint “understood

this risk when it did this project.” See also Restatement

(Third) of Prop.: Servitudes § 8.3 cmt. b (A.L.I. 2000)

(explaining that injunctive relief is often available to redress

the violation of a restrictive covenant, the value of which

can be “difficult to quantify,” “impossible to replace,” and

inadequately “reflected by market values,” when

appurtenant to the ownership of land).

21
• For the fourth element, the court found that the injunction

“supports the public interest of keeping the land vacant and

undisturbed.” See id. (explaining that injunctive relief

should be available for violations of “restrictive covenants,”

especially “preservation servitudes,” because a party should

not be permitted to buy out of a servitude obligation if it

continues to serve its purpose).

Each of these findings is well supported by the record as well as

Colorado case law and thus warrants deference on appeal.

¶ 35 We are also unpersuaded by VailPoint’s claim that the

injunction should be reversed based on alleged doubt that the court

expressed regarding each element. VailPoint relies on selective

quotations from the court’s comments to the parties on the final

day of the bench trial to suggest uncertainty about granting

injunctive relief. At that time, the court merely stated it had not yet

made a decision and provided an estimated timeframe for its written

order. But none of these remarks — including the court’s

conciliatory advice that the parties “live with the decision, move on,

and enjoy the beautiful property that you worked hard to get” —

reflect any genuine doubt. Indeed, all these comments were made

22
months before the court issued its written order that definitively

granted injunctive relief.

D. C.R.C.P. 8(c)

¶ 36 For the first time on appeal, VailPoint contends that the

district court was required to “consider abandonment as a

counterclaim for terminating” the Fifth Filing Covenants because

VailPoint “mistakenly designated” abandonment of the Fifth Filing

Covenants as only an affirmative defense. Specifically, VailPoint

argues that the “court unjustly deprived VailPoint of a

counterclaim” because C.R.C.P. 8(c) states that “[w]hen a party has

mistakenly designated . . . a counterclaim as a defense, the court

on terms, if justice so requires, shall treat the pleading as if there

had been a proper designation.” We decline to consider this

argument.

1. Additional Background

¶ 37 In its answer, VailPoint asserted twenty-six affirmative

defenses, including abandonment of both the Fifth Filing Covenants

and the Deed Covenant. However, VailPoint pleaded abandonment

as a counterclaim only with respect to the Deed Covenant. The trial

management order — to which both parties agreed — left VailPoint’s

23
counterclaim and affirmative defenses unchanged. After the bench

trial, the court’s written order addressed each affirmative defense,

noting that abandonment is “not an affirmative defense” to

violations of an easement or covenants and ultimately concluding

that abandonment did not excuse VailPoint’s violations of either the

Fifth Filing Covenants or the Deed Covenant.3 VailPoint did not file

a post-trial motion challenging the court’s disposition of its

abandonment defense.

2. Discussion

¶ 38 VailPoint failed to preserve this issue for appellate review. To

preserve an issue for review, a party must raise a timely and

specific objection or request relief in the district court. Rinker v.

Colina-Lee, 2019 COA 45, ¶ 25. An objection or request for relief is

timely if made contemporaneously with the allegedly erroneous

action. Id. An objection is sufficiently specific if it provides the

district court with a meaningful opportunity to address the alleged

error. Borquez v. Robert C. Ozer, P.C., 923 P.2d 166, 171 (Colo.

3 VailPoint does not contest the district court’s ruling that

abandonment is not an affirmative defense to a claimed covenant
violation.

24
App. 1995), aff’d in part and rev’d in part on other grounds, 940 P.2d

371 (Colo. 1997).

¶ 39 VailPoint neither objected to this alleged error nor gave the

district court any opportunity to address it. On the contrary,

VailPoint agreed to the trial management order, which listed

abandonment of the Fifth Filing Covenants as a defense, and at no

point in the proceedings did VailPoint ever raise the argument that

it now asserts. See C.R.C.P. 16(f)(5) (“The Trial Management Order

shall control the subsequent course of the trial.”). Accordingly, we

do not address this argument. See Est. of Stevenson v. Hollywood

Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992) (“Arguments

never presented to, considered or ruled upon by a trial court may

not be raised for the first time on appeal.”).

E. VailPoint’s Remaining Contentions

¶ 40 First, VailPoint contends that the court “fell into [the

Neighbors’ unreasonable] narrative and made numerous errors of

fact.” These alleged factual errors include that (1) “VailPoint acted

secretively” and (2) “VailPoint was aware of the restrictions.”

However, we will not disturb the district court’s factual “findings if

there is any evidence in the record supporting them.” Woodbridge

25
Condo. Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34, ¶ 24, aff’d,

2021 CO 56.

¶ 41 Both factual findings are supported by the record. The court

determined that VailPoint “attempted to limit public knowledge” of

its improvements to the enclosure by failing to notify affected

parties, erecting a privacy fence, and completing the vast majority of

work during the off-season in just three to four months. The court

further found that VailPoint “took its actions knowing that [the

enclosure] was subject to restrictions which could be enforced”

based on its repeated attempts to develop the enclosure, its legal

counsel’s representations about the restrictions, statements in

application materials, and efforts to secure waivers from the

Neighbors.

¶ 42 VailPoint argues that George Solich, the manager of VailPoint,

testified that he believed in good faith that he had obtained legal

authority to develop the enclosure after the Vail Planning and

Environmental Commission approved the Exemption Plat

Application. But the district court did not credit this testimony,

and such credibility determinations are binding on appellate review.

See In re Estate of Owens, 2017 COA 53, ¶ 22 (“[A] trial court’s

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‘determination of’ a testifying witness’ ‘credibility [is] entirely within

the purview of the trial court as the finder of fact and is binding

upon’ an appellate court.” (quoting People v. Fordyce, 705 P.2d 8, 9

(Colo. App. 1985))).

¶ 43 Second, VailPoint argues that the court “erred by splitting its

analysis of equitable defenses into before and after the [2023

development] based on an erroneous interpretation of the 1984

Amendment.” VailPoint references the court’s finding that the

Neighbors waived any objection to the pre-2023 enclosure but not

to the 2023 development. VailPoint then argues that the court’s

finding of waiver for the pre-2023 enclosure was improperly based

on the assumption that the 1984 amendments allowed the fence.

¶ 44 This argument mischaracterizes the record. The district court

found that the pre-2023 enclosure violated the Deed Covenant but

that the Neighbors waived or consented to the violation by failing to

object for sixty years. While the court initially suggested that the

1984 amendment may have permitted the pre-2023 enclosure

under the Fifth Filing Covenants, it ultimately clarified that, even if

the 1984 amendment did not allow the fence, the Neighbors had

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still waived or consented to that violation through decades of

inaction.

¶ 45 The court’s different conclusion regarding the 2023

development did not rest on its interpretation of the 1984

amendment. Instead, the court found no waiver or consent to the

2023 development because the Neighbors objected within four

months — a reasonable delay considering VailPoint’s efforts “to

limit public knowledge” and the time required for the Neighbors “to

learn of the extent of the project . . . [and] to investigate the options,

develop a consensus, hire counsel, have counsel investigate legal

options[,] and file a complaint.”

¶ 46 Third, VailPoint contends that the district court’s conclusion

that “the [Deed Covenant and Easement are] still valid and

enforceable inside the fence . . . equates to a finding that the [2023

development] somehow revived the [Deed Covenant and Easement]

in the backyard.” VailPoint again points to the court’s waiver

discussion and cites Colorado law concerning the revival of

extinguished easements.

¶ 47 VailPoint’s characterization of events is inaccurate. The

district court found the Deed Covenant enforceable within the

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enclosure (while concluding the Neighbors abandoned the Deed

Easement), but the court neither extinguished nor “revived” the

Deed Covenant. Rather, the court determined that the Deed

Covenant had always burdened the property and continued to do

so, finding that both the pre-2023 enclosure and the 2023

development violated its terms. As previously explained, the court

concluded that the Neighbors had waived or consented to the

pre-2023 enclosure by not objecting to it for sixty years and

therefore exercised its equitable discretion to permit that enclosure

to remain despite the Covenants.

¶ 48 To the extent VailPoint argues that the waiver of a prior

violation of the pre-2023 enclosure terminates the Deed Covenant,

VailPoint cites no authority — and we have found none — to

support this position. Similarly, the argument that the court’s

exercise of equitable discretion to allow a prior violation results in a

termination of the Deed Covenant is unavailing. See Garrett v.

Arrowhead Improvement Ass’n, 826 P.2d 850, 855 (Colo. 1992)

(“The purpose of a court sitting in equity is to promote and achieve

justice with some degree of flexibility.”). Accordingly, we perceive no

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error with the court’s determination that the Deed Covenant

remains enforceable to prohibit the 2023 development.

¶ 49 Finally, VailPoint challenges the court’s denial of its motion for

a directed verdict, arguing that “the trial court’s findings and

conclusions were so manifestly against the weight of evidence as to

compel a contrary result.” We review a district court’s denial of a

directed verdict de novo. MDM Grp. Assocs., Inc. v. CX Reinsurance

Co., 165 P.3d 882, 885 (Colo. App. 2007). The district court must

not grant a directed verdict “unless the evidence compels the

conclusion that reasonable jurors could not disagree and that no

evidence or inference has been received at trial upon which a

verdict against the moving party could be sustained.” Id. In this

case, the district court properly denied the motion for directed

verdict because, as already discussed, its findings were amply

supported by the evidence.

III. Disposition

¶ 50 The judgment is affirmed.

JUDGE LIPINSKY and JUDGE SCHUTZ concur.

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