     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                           February 20, 2020

                                2020COA31

No. 18CA1592, Kroesen v. Shenandoah Homeowners Ass’n —
Real Property — Easements Appurtenant — Common Interest
Communities — Colorado Common Interest Ownership Act

     On a matter of first impression, a division of the court of

appeals analyzes the amount of specificity necessary in a recorded

document to establish an enforceable easement within a common

interest community. The division specifically evaluates whether the

developer of two subdivisions created a valid easement for property

owners of one subdivision to use certain roads within the other

subdivision when the plats for the subdivision burdened by the

easement did not expressly refer to the easement. Because the

Colorado Common Interest Ownership Act contains specific

statutory requirements for creating an easement and supplements

traditional common law principles, the division addresses whether
the developer complied with the requirements of the Act and the

common law. The division holds that the developer complied with

the Act and the common law and, thus, created an enforceable

easement.

     The division additionally analyzes whether a party is entitled to

recover lost profits on a claim for intentional interference with a real

estate sales contract. Because the subject property had not become

unmerchantable, the division holds that the party was not entitled

to recover lost profit damages and affirms the district court’s

calculation of damages.
COLORADO COURT OF APPEALS                                      2020COA31


Court of Appeals No. 18CA1592
La Plata County District Court No. 17CV30018
Honorable Todd P. Norvell, Judge


Ronald J. Kroesen and Patricia L. Kroesen,

Plaintiffs-Appellees and Cross-Appellants,

v.

Shenandoah Homeowners Association, Inc., a Colorado nonprofit corporation,
and Ronald Burris, in his official capacity as Director of the Shenandoah
Homeowners Association, Inc.,

Defendants-Appellants and Cross-Appellees.


                           JUDGMENT AFFIRMED

                                 Division VII
                         Opinion by JUDGE LIPINSKY
                         Fox and Berger, JJ., concur

                        Announced February 20, 2020


Goldman, Nicholson & Mack, P.C., Lindsey K.S. Nicholson, Josh W. Mack,
Durango, Colorado, for Plaintiffs-Appellees and Cross-Appellants

Campbell, Wagner, Frazier & Dvorchak, LLC, Colin C. Campbell, Greenwood
Village, Colorado, for Defendants-Appellants and Cross-Appellees
¶1    Plaintiffs, Ronald J. and Patricia L. Kroesen, owners of land in

 the Shenandoah Highlands Subdivision (Highlands Subdivision) in

 La Plata County, seek to access their property over two roads in the

 adjoining Shenandoah Subdivision. The Kroesens argue they have

 an easement over the roads based on language in plats that the

 developer of both subdivisions recorded as amendments to each

 subdivision’s declarations.

¶2    Defendants, Shenandoah Homeowners Association, Inc. and

 Ronald Burris, the president of the Association (jointly, Shenandoah

 Association), respond that the developer failed to comply with the

 statutory requirements for creating an easement in a common

 interest community. Shenandoah Association specifically argues

 that the developer failed to provide future owners of lots in

 Shenandoah Subdivision the required record notice of the

 easement.

¶3    The Kroesens also assert an intentional interference with

 contract claim against Shenandoah Association. They allege that

 Shenandoah Association’s refusal to recognize the easement caused

 the Kroesens to lose a contract to sell their property to a third




                                    1
 party. The Kroesens seek lost profits and other damages on that

 claim.

¶4    Following a bench trial, the district court entered judgment in

 favor of the Kroesens on their claims for declaratory judgment and

 intentional interference with contract. The court found that the

 developer complied with the requirements for creating an easement

 and that Shenandoah Association intentionally interfered with the

 Kroesens’ contract to sell their property. It awarded the Kroesens

 damages for intentional interference with contract, including the

 cost of holding and maintaining the property from the date of the

 interference until two years following the judgment. But the court

 did not award the Kroesens lost profits.

¶5    Shenandoah Association appeals the judgment entered in

 favor of the Kroesens. The Kroesens appeal the district court’s

 denial of their request for lost profits.

¶6    The appeals raise an issue of first impression in this state —

 the amount of specificity necessary in a recorded document to

 establish an enforceable easement within a common interest

 community.

¶7    We affirm.


                                     2
                      I.    The Two Subdivisions

¶8    In 1984, Shenandoah Limited (the developer) began developing

 a 993-acre parcel (original property) in La Plata County. As relevant

 to this appeal, the developer divided the original property into two

 subdivisions — Shenandoah Subdivision, created in 1989, and

 Highlands Subdivision, created in 1994 — by recording declarations

 for each. (A “declaration” is a “recorded instrument[] . . . that

 create[s] a common interest community . . . including . . . plats and

 maps.” § 38-33.3-103(13), C.R.S. 2019. A “plat” is the “part of a

 declaration that . . . depicts all or any portion of a common interest

 community in two dimensions . . . .” § 38-33.3-103(22.5).) The

 developer established a homeowner’s association for each

 subdivision.

¶9    The developer also recorded plats that depicted the two roads

 at issue, known as Colonial Drive (or Colonial Road) and Blue Ridge

 Road. Portions of the roads follow the boundary between the two

 subdivisions. The plats also created an easement (the Subject

 Easement) that arguably allowed the owners of lots in Highlands

 Subdivision to access their properties over the roads.




                                    3
¶ 10   The pre-1994 plats amending the declaration for Shenandoah

  Subdivision referenced the Subject Easement, albeit in general

  terms, as they pre-dated the creation of Highlands Subdivision.

  Those plats described the Subject Easement as:

       •     an access road easement “dedicated to [the developer

             and] the Shenandoah Homeowners Association”;

       •     consisting of “General Common Elements . . . for the use

             and benefit of [the developer], the owners of the lots

             within [Shenandoah Subdivision and] adjacent

             subdivisions”;

       •     “for the use of [the developer]” and the owners of each lot

             created by the plat for the original property; and

       •     dedicated to the developer and “the present and future

             owners of [Shenandoah Subdivision].”

  None of the pre-1994 plats described “adjacent subdivisions” with

  greater specificity.

¶ 11   After the developer created Highlands Subdivision, the

  developer and the then owner of the Kroesens’ lot (the former

  owner) each independently recorded a plat relevant to our analysis.

  The developer recorded a plat entitled “Shenandoah Highlands

                                     4
  Subdivision No. 2 Project 95-88” (Highlands Plat) that created new

  tracts, including Tracts A and B, within Highlands Subdivision;

  asserted that the developer owned Colonial Drive and Blue Ridge

  Road; and expressly stated that “[n]ormal access for Tract A will be

  via Blue Ridge and Colonial Drive to County Road 141.”

¶ 12   The former owner recorded a plat consolidating Tracts A and B

  into Tract AB (Tract AB Plat). Residential construction on Tract AB

  was limited to the portion that was formerly Tract A.

¶ 13   According to the Highlands and Tract AB Plats, not only is

  Tract AB adjacent to Shenandoah Subdivision, but it abuts Blue

  Ridge Road:




                                    5
6
  Blue Ridge Road merges into Colonial Drive north of Tract AB.

¶ 14      Before the former owner consolidated Tracts A and B, the

  Board of Directors of Shenandoah Homeowners Association

  approved an easement over Blue Ridge Road to benefit Tract A.

  (The record does not specify whether the Board approved a similar

  easement over Colonial Drive.) Although the Board’s action appears

  in its meeting minutes, no recorded document reflects the Board’s

  approval of the Subject Easement. The members of Shenandoah

  Homeowners Association did not ratify the Board’s approval of the

  Subject Easement or otherwise authorize an easement to benefit

  Tract AB.

¶ 15      In 1999, the Kroesens purchased Tract AB from the former

  owner for $160,000. In 2015, the Kroesens signed a contract to sell

  Tract AB for $188,500. Before the closing on the sale, however,

  Burris, in his capacity as president of the Board of Directors of

  Shenandoah Homeowners Association, told the Kroesens’ real

  estate agent that the owners of Tract AB had no right to use either

  road.

¶ 16      The prospective purchaser refused to close on the purchase of

  the Kroesens’ property after learning that the owners of Tract AB


                                     7
  may not have an easement over the roads. The Kroesens claim

  that, after the sale fell through, they were unable to find a

  purchaser willing to buy Tract AB without access to the roads.

                         II.   Procedural History

¶ 17   The Kroesens sued to obtain, among other relief, (1) a

  declaratory judgment that the owners of Tract AB have an easement

  over the roads; (2) a permanent injunction enjoining Shenandoah

  Association from interfering with their access to Tract AB over the

  roads; (3) an award of their expenses associated with the failed sale

  of their property and lost profits for Shenandoah Association’s

  intentional interference with their purchase contract; and (4)

  damages for slander of title arising from Shenandoah Association’s

  assertion, through Burris, that the owners of Tract AB did not have

  an easement over the roads.

¶ 18   The district court granted summary judgment to the Kroesens

  on their declaratory judgment claim. (The parties expressly agreed

  there were no disputed issues of material fact.) In a well-reasoned

  order, the court ruled that the plats for Shenandoah Subdivision

  were sufficient to establish an easement over the roads benefitting




                                     8
  Tract AB. However, the court’s order did not expressly resolve

  whether the Kroesens were entitled to a permanent injunction.

¶ 19   The court resolved the Kroesens’ claims for intentional

  interference with contract and slander of title following a bench

  trial. The court awarded the Kroesens damages on the intentional

  interference with contract claim to compensate them for their

  inability to sell the property. The damages took the form of

  approximately five years of maintenance expenses. The court

  declined to award lost profits, however, because it concluded that

  the Kroesens would eventually be able to sell the property at or

  above the $188,500 purchase price specified in the terminated

  contract.

¶ 20   The court resolved the slander of title claim in favor of

  Shenandoah Association because the Kroesens had not proved the

  element of malice.

¶ 21   Following the bench trial, Shenandoah Association appealed

  the district court’s declaratory judgment holding, and the Kroesens

  cross-appealed the court’s denial of their request for lost profits.

¶ 22   After discovering that the district court may not have resolved

  the Kroesens’ second claim, thus depriving this court of


                                     9
  jurisdiction, see Richmond Am. Homes of Colo., Inc. v. Steel Floors,

  LLC, 187 P.3d 1199, 1202 (Colo. App. 2008) (noting that as a

  general rule, “an entire case must be resolved by a final judgment

  before an appeal is brought”), a division of this court remanded the

  case to the district court. The division instructed the district court

  to ensure that a final judgment entered on all of the Kroesens’

  claims. The district court then entered an order dismissing the

  Kroesens’ second claim and noting that a final judgment had been

  entered on all of their claims.

  III.   The District Court Correctly Determined that Tract AB Was the
                  Beneficiary of an Easement to Use the Roads

¶ 23     Shenandoah Association’s appeal raises three principal issues.

¶ 24     First, we consider and reject the Kroesens’ contention that

  Shenandoah Association failed to preserve its argument that the

  recorded documents did not put good faith purchasers of property

  in Shenandoah Subdivision on notice of the Subject Easement.

¶ 25     Second, we decide whether, under common law principles, the

  plats amending the declaration for Shenandoah Subdivision

  contained sufficient specificity to create an easement over the roads

  benefitting Tract AB. Although we agree with the district court that



                                     10
  “‘adjacent subdivisions, and future subdivisions’ is a thin

  description of a dominant estate,” we conclude the language is

  sufficient in light of the “surrounding circumstances, the situation

  of the parties, and the objects to be obtained.” Lewitz v. Porath

  Family Tr., 36 P.3d 120, 123 (Colo. App. 2001).

¶ 26   Third, because Shenandoah Subdivision and Highlands

  Subdivision are common interest communities subject to the

  Colorado Common Interest Ownership Act (CCIOA), §§ 38-33.3-101

  to -402, C.R.S. 2019, we also address whether the developer

  complied with the CCIOA’s requirements for creating an easement.

  The common law and CCIOA tests apply to easements in common

  interest communities. See § 38-33.3-108, C.R.S. 2019 (stating that

  the “law of real property . . . supplement[s] the provisions of [the

  CCIOA], except to the extent inconsistent with [the CCIOA]”);

  § 38-33.3-115, C.R.S. 2019 (explaining that the CCIOA “applies to

  all common interest communities created within this state”).

¶ 27   We hold that the developer complied with both sets of

  requirements for creating an easement and, therefore, conclude

  that Tract AB benefits from the Subject Easement.




                                    11
            A.   Shenandoah Preserved Its Notice Argument

¶ 28   Because Shenandoah Association raised the notice issue in

  the district court in its briefing on summary judgment, and because

  the court considered and rejected the argument, Shenandoah

  Association is entitled to appellate review of the ruling on whether

  the owners of land in Shenandoah Subdivision received record

  notice of the Subject Easement. See Brown v. Am. Standard Ins. Co.

  of Wis., 2019 COA 11, ¶ 21, 436 P.3d 597, 600 (“If a party raises an

  argument to such a degree that the [trial] court has the opportunity

  to rule on it, that argument is preserved for appeal.”).

¶ 29   Thus, we hold that Shenandoah Association preserved its

  notice argument.

  B.   We Affirm the District Court’s Ruling That, Under the Common
       Law Test for Creating an Easement, Tract AB Benefits From an
                          Easement Over the Roads

                           1.   Legal Authority

¶ 30   We review de novo the court’s ruling on summary judgment

  that Tract AB benefits from an easement over the roads. See City of

  Lakewood v. Armstrong, 2017 COA 159, ¶ 7, 419 P.3d 1005, 1008.

  Summary judgment is appropriate when there is no genuine issue

  of material fact and the moving party is entitled to judgment as a


                                    12
  matter of law. C.R.C.P. 56(c); Pulte Home Corp. v. Countryside

  Cmty. Ass’n, 2016 CO 64, ¶ 22, 382 P.3d 821, 826.

¶ 31   Similarly, we review de novo the district court’s interpretation

  of recorded instruments. Ryan Ranch Cmty. Ass’n v. Kelley, 2016

  CO 65, ¶ 24, 380 P.3d 137, 142. We give words and phrases their

  common meanings and will enforce recorded instruments as written

  if their meaning is clear. Pulte Home, ¶ 23, 382 P.3d at 826.

¶ 32   “An easement is a right conferred by grant, prescription or

  necessity authorizing one to do or maintain something on the land

  of another . . . .” Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d

  1229, 1234 (Colo. 1998). No particular words are necessary to

  grant an easement, so long as the instrument identifies with

  “reasonable certainty” the easement created and the dominant and

  servient tenements. Hornsilver Circle, Ltd. v. Trope, 904 P.2d 1353,

  1356 (Colo. App. 1995). (A dominant estate is the property that

  benefits from the easement, while the servient estate is the property

  on which the easement is located. Lazy Dog, 965 P.2d at 1234.)

  “When interpreting an easement, we must consider the language

  used in the instrument, the circumstances surrounding its




                                   13
  creation, and the purpose for which it was created.” Lewitz, 36

  P.3d at 122.

                            2.    Application

¶ 33   Shenandoah Association contends that the “isolated, generic

  reference” to the roads being for the benefit of the developer and

  “adjacent subdivisions” in the amended declaration for Shenandoah

  Subdivision does not place good faith purchasers of property within

  Shenandoah Subdivision on notice of the Subject Easement. It

  argues that, because Lewitz held that a valid easement requires

  notice to good faith purchasers of the nature and extent of the

  easement, see id. at 124, the Subject Easement fails the common

  law notice test. We disagree.

¶ 34   The Kroesens contend that plats amending the declaration for

  Shenandoah Subdivision created the Subject Easement. They point

  to the plat entitled “Shenandoah Category 1 Project 88-130,” which

  stated that “General Common Elements . . . [are] for the use and

  benefit of the Developer, the owners of the lots within this

  subdivision, subdivisions previously filed, [and] adjacent

  subdivisions . . . .” (Emphasis added.) (“General Common

  Elements” include easements. See § 38-33.3-103(5)(b), (25).)


                                    14
¶ 35   Although, as noted above, no particular language is required

  to create an easement, the language must still describe the

  easement, dominant estate, and servient estate “with reasonable

  certainty.” Hornsilver Circle, 904 P.2d at 1356. The amendments to

  the declaration for Shenandoah Subdivision referring to “General

  Common Elements,” noting “the purpose of ingress and egress” and

  creating Colonial Drive and Blue Ridge Road, describe the nature of

  the Subject Easement with reasonable certainty. The plats also

  provide reasonable certainty as to the identity of the servient estate

  — Shenandoah Subdivision — where the roads are located.

¶ 36   Further, the reference to “adjacent subdivisions” is sufficient

  to describe a dominant estate — Highlands Subdivision — and

  specifically those tracts in Highlands Subdivision that abut one of

  the roads. Only under the narrowest possible reading of the plats

  could a reference to “adjacent subdivisions” not encompass a tract

  carved out of the original property, such as Tract AB, that borders

  Blue Ridge Road.

¶ 37   Thus, we agree with the district court’s holding that the

  language of the plats for Shenandoah Subdivision places good faith

  purchasers of tracts in Shenandoah Subdivision on notice of the


                                    15
  Subject Easement. We reach this conclusion based on the

  “language used in the instrument, the circumstances surrounding

  [the easement’s] creation, . . . the purpose for which [the easement]

  was created,” and the record notice in Shenandoah Subdivision’s

  chain of title describing the Subject Easement. Lewitz, 36 P.3d at

  122.

¶ 38     Lastly, in light of our reading of the amendments to the

  declaration for Shenandoah Subdivision, we need not address

  whether the vote of the Board of Directors of Shenandoah

  Homeowners Association was sufficient, with or without a vote of

  approval by the members of the Shenandoah Homeowners

  Association, to create a valid easement over the roads. And we need

  not reach Shenandoah Association’s argument that the developer

  and the former owner believed that the owner of Tract AB did not

  benefit from an easement. Even if this contention is correct, which

  we cannot determine from the record, it is irrelevant to the

  existence of an easement.

  C.     The Developer Also Complied With the CCIOA’s Requirements
                          for Creating an Easement




                                     16
¶ 39   Because the developer created the Subject Easement in plats

  amending the declaration to Shenandoah Subdivision, we must

  next consider whether the developer complied with the CCIOA’s

  requirements for creating an easement. The Subject Easement

  would be invalid if the developer did not comply with the common

  law and CCIOA requirements for easements.

  See §§ 38-33.3-108, -115.

                           1.    Legal Authority

¶ 40   The meaning and effect of statutes are questions of law that

  we review de novo. Ryan Ranch, ¶ 25, 380 P.3d at 142. When

  interpreting statutory provisions, “[o]ur objective is to effectuate the

  intent and purpose of the General Assembly.” Perfect Place, LLC v.

  Semler, 2018 CO 74, ¶ 40, 426 P.3d 325, 332 (quoting Trujillo v.

  Colo. Div. of Ins., 2014 CO 17, ¶ 12, 320 P.3d 1208, 1212-13). “To

  determine the legislature’s intent, we look first to the plain language

  of a statutory provision.” Id. Where clear, “we apply the plain and

  ordinary meaning of the provision,” id., “because the General

  Assembly is presumed to have meant what it plainly said,” Miller v.

  Curry, 203 P.3d 626, 629 (Colo. App. 2009) (quoting Silverview at

  Overlook, LLC v. Overlook at Mt. Crested Butte Ltd. Liab. Co., 97 P.3d


                                     17
  252, 255 (Colo. App. 2004)). When “reading a statute . . . or a

  recorded instrument, we consider the text as a whole, harmonizing,

  when possible, all sections or provisions.” McMullin v. Hauer, 2018

  CO 57, ¶ 13, 420 P.3d 271, 274.2.

                             2.    Application

¶ 41   Shenandoah Association contends that the developer did not

  comply with the requirements for creating easements found in the

  CCIOA. See Perfect Place, ¶¶ 41-48, 426 P.3d at 332-34; Ryan

  Ranch, ¶¶ 33-52, 380 P.3d at 144-48. It specifically asserts that

  the developer did not properly exercise its “development rights”

  when it sought to create the Subject Easement. In support of this

  argument, Shenandoah Association alleges that the developer (1)

  failed to include a legally sufficient description of the Subject

  Easement in the plats amending the declaration for Shenandoah

  Subdivision and (2) did not record the Highlands Plat — the only

  plat expressly referencing an easement for the benefit of the owners

  of Tract AB — in the chain of title for Shenandoah Subdivision.

  Thus, according to Shenandoah Association, the Subject Easement

  is not binding on any property within Shenandoah Subdivision. We

  consider and reject these arguments below.


                                     18
  a.   The Developer Properly Exercised Development Rights When It
                      Created the Subject Easement

¶ 42   The developer properly exercised development rights when it

  sought to create the Subject Easement through amendments to the

  declaration for Shenandoah Subdivision. Section

  38-33.3-103(14)(b) defines “development rights” as “any right or

  combination of rights reserved by a declarant in the declaration

  to . . . [c]reate . . . common elements, or limited common elements

  within a common interest community.” Section 38-33.3-103(5)(b)

  defines “common elements” as “any real estate within a planned

  community owned or leased by the association, other than a unit.”

  And the definition of “real estate” in section 38-33.3-103(25)

  includes “interests that, by custom, usage, or law, pass with a

  conveyance of land.” Such interests include appurtenant

  easements, such as the Subject Easement, which run with a

  particular property. See Restatement (Third) of Property: Servitudes

  § 1.5 (Am. Law Inst. 2000) (distinguishing between “appurtenant

  easements,” which are tied to ownership or occupancy of a

  particular parcel, and “easements in gross,” which are not).




                                    19
¶ 43   The developer reserved for itself a development right to

  “establish a non-exclusive easement and right of way [over] all or

  any portion of the [original property]” in the declaration for

  Shenandoah Subdivision and later exercised that right in plats

  amending the declaration.

¶ 44   Shenandoah Association misquotes section 38-33.3-209,

  C.R.S. 2019, in arguing that “each map or plat shall contain a

  legally sufficient description of all easements serving or burdening

  any portion of the common interest community.” (Emphases added

  by Shenandoah Association.)

¶ 45   Rather, section 38-33.3-209(2)(e) says that “each map shall

  show the following, except to the extent that such information is

  contained in the declaration or on a plat: . . . To the extent feasible,

  a legally sufficient description of all easements serving or burdening

  any portion of the common interest community.” Thus, if “a legally

  sufficient description of all easements” appears in “the declaration

  or on a plat,” the plain language of section 38-33.3-209(2)(e) does

  not require duplicative language in every plat amending a

  declaration.




                                     20
¶ 46   Shenandoah Association does not dispute that the amended

  declaration for Shenandoah Subdivision generally describes the

  Subject Easement. Under the CCIOA, the developer was not

  required to expressly reference the Subject Easement in each plat.

  § 38-33.3-209(1) (specifying that “[t]he requirements of this section

  shall be deemed satisfied so long as all of the information required

  by this section is contained in the declaration, a map or a plat, or

  some combination of any two or all of the three”); § 38-33.3-

  209(2)(e); Ryan Ranch, ¶ 34, 380 P.3d at 144.

¶ 47   Shenandoah Association essentially challenges the sufficiency

  of the description of the Subject Easement in the amended

  declaration for Shenandoah Subdivision. As explained above,

  under the common law rule, the developer adequately put the

  owners of lots in Shenandoah Subdivision on notice that the future

  owners of lots adjacent to Shenandoah Subdivision would benefit

  from an easement over the roads.

¶ 48   Unlike the other requirements for maps set forth in the

  CCIOA, descriptions of easements need only be “legally sufficient.”

  See § 38-33.3-209(2)(e). This caveat demonstrates that section

  38-33.3-209(2)(e) does not impose a more stringent requirement for


                                    21
  descriptions of easements than those required under the common

  law. Thus, we conclude that the developer satisfied the

  requirements for describing an easement set forth in the CCIOA.

  b.    The Developer’s Recorded Plats Comply with Section 38-33.3-
                                    217

¶ 49   We also disagree with Shenandoah Association’s argument

  that the developer ran afoul of the requirements of section 38-33.3-

  217, C.R.S. 2019. Section 38-33.3-209(6) requires the declarant to

  record an amendment to the original declaration for the subdivision

  when exercising a development right. Section 38-33.3-217(3), in

  turn, requires that “[e]very amendment to the declaration must be

  recorded in every county in which any portion of the common

  interest community is located.” Under the plain language of section

  38-33.3-217(3), the developer satisfied its obligation under the

  CCIOA to amend the declaration for Shenandoah Subdivision when

  it exercised its development rights by creating the Subject

  Easement. The developer recorded in La Plata County amendments

  to the declaration for Shenandoah Subdivision that referenced the

  Subject Easement and said that the “General Common Elements,”




                                   22
  which included the Subject Easement, were “for the use and benefit

  of . . . adjacent subdivisions.”

   c.   Prospective Buyers of Shenandoah Subdivision Tracts Are on
             Record Notice of the Easement From Shenandoah
                             Subdivision’s Plats

¶ 50    We do not agree that a prospective buyer of property in

  Shenandoah Subdivision would lack notice of the Subject

  Easement. As explained above, the plats amending the declaration

  for Shenandoah Subdivision created a valid easement. The Subject

  Easement is valid even though the amendments to the declaration

  for Shenandoah Subdivision did not expressly say that the Subject

  Easement benefits the owners of Tract AB (or the owners of any

  other lot adjacent to Shenandoah Subdivision).

¶ 51    It is of no consequence that the Highlands Plat does not

  appear in a title search for Shenandoah Subdivision because the

  search would reveal documents in the chain of title for Shenandoah

  Subdivision that created the Subject Easement and indicated it and

  the other “General Common Elements” benefited adjacent

  subdivisions.




                                     23
¶ 52    In sum, we hold that the district court did not err by granting

  summary judgment to the Kroesens on their claim for a declaratory

  judgment regarding the existence of the Subject Easement.

  IV.   The Kroesens Are Not Entitled to Recover Lost Profits on Their
              Claim for Intentional Interference with Contract

¶ 53    The Kroesens contend that the district court erred by holding

  they are not entitled to recover lost profits on their claim for

  intentional interference with contract. They argue that the

  Colorado Supreme Court has approved an award of lost profits in

  cases involving similar facts. See, e.g., Westfield Dev. Co. v. Rifle

  Inv. Assocs., 786 P.2d 1112, 1119-20 (Colo. 1990).

¶ 54    The Kroesens ask us to extend the narrow holding of Westfield

  Development, which involved property whose value had plummeted

  after a proposed sale fell through. They contend that lost profits are

  a proper measure of damages in claims involving intentional

  interference with a real estate contract, even where the subject real

  estate has not become unmerchantable. We decline to do so and

  affirm the district court’s decision on the damages awardable to the

  Kroesens on their intentional interference claim.




                                     24
                           A.    Standard of Review

¶ 55   A judgment following a bench trial presents a mixed question

  of fact and law. Sandstead-Corona v. Sandstead, 2018 CO 26, ¶ 37,

  415 P.3d 310, 317. We review the trial court’s factual findings

  under a clear error standard, but review its legal conclusions de

  novo. Jordan v. Panorama Orthopedics & Spine Ctr., PC, 2013 COA

  87, ¶ 13, 350 P.3d 863, 867, aff'd, 2015 CO 24, 346 P.3d 1035.

¶ 56   We also review de novo the trial court’s “application of

  governing legal standards,” Morris v. Belfor USA Grp., Inc., 201 P.3d

  1253, 1257 (Colo. App. 2008), including “[t]he proper measure of

  damages,” Taylor Morrison of Colo., Inc. v. Terracon Consultants, Inc.,

  2017 COA 64, ¶ 23, 410 P.3d 767, 772. “However, the fact finder

  has the sole prerogative to assess the amount of damages and its

  award will not be set aside unless it is manifestly and clearly

  erroneous.” Morris, 201 P.3d at 1257.

                           B.   Legal Authority

¶ 57   The standard measure of damages for the breach of a contract

  for the sale of real estate is the difference between the contract price

  and the fair market value of the property at the time of breach.

  Westfield Dev., 786 P.2d at 1120. But intentional interference with


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  contract is a tort. Id. Thus, for such claims, “[t]he measure of

  damages may . . . depart from contractual damages when necessary

  to make the innocent party whole.” Id. (emphasis added).

¶ 58     “A bedrock goal of tort law is to ‘make the plaintiff whole.’”

  LeHouillier v. Gallegos, 2019 CO 8, ¶ 44, 434 P.3d 156, 164. Tort

  law disfavors windfall damage awards that put the plaintiff in a

  better financial situation than his or her position before the injury.

  Id. “[A] plaintiff may not receive double recovery for the same losses

  arising from the same injury.” Taylor Morrison, ¶ 27, 410 P.3d at

  773.

                                   B.    Analysis

¶ 59     The record and legal precedent support the district court’s

  determination that the Kroesens are not entitled to recover lost

  profits. In Westfield Development, the supreme court held that lost

  profit damages are awardable in intentional interference with

  contract cases “when necessary to make the innocent party whole.”

  786 P.2d at 1120. This rule gives district courts flexibility in

  computing damages, so they can fashion remedies that “make the

  plaintiff whole” under “unique circumstances.” See LeHouillier,

  ¶ 44, 434 P.3d at 164; Westfield Dev., 786 P.2d at 1120.


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¶ 60   We agree with the district court that the facts underlying the

  Kroesens’ case differ from those in Westfield Development. In that

  case, the supreme court affirmed an award of lost profits because of

  “unique circumstances” that rendered the real estate

  unmerchantable and a sale at the contract price impossible.

  Westfield Dev., 786 P.2d at 1120. The property at issue in Westfield

  Development was “unmerchantable” because of the “very limited

  number of [potential] buyers”; the defendant had reduced the

  number of potential buyers after selling a similar property to the

  same entity, which had declined to purchase the subject property;

  and, after the plaintiff sought to mitigate its damages by selling the

  property, “the bottom fell out of the market,” thereby making a sale

  at the contract price impossible. Id.

¶ 61   Westfield Development’s unique circumstances are not present

  here. The district court did not award lost profits to the Kroesens

  because, as the Kroesens’ expert witness explained, the value of

  Tract AB at the time of the trial was “difficult to tell on the evidence

  the Court has received,” and an award of lost profits would be

  “speculative.” The court noted that the Kroesens planned to sell,

  and had already listed, Tract AB at a higher price than the price


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  specified in the terminated contract. The court reasoned that an

  award of lost profits to the Kroesens would likely result in a double

  recovery.

¶ 62   Instead of lost profits, the court awarded the Kroesens their

  cost of maintaining Tract AB for approximately five years

  (approximately three years before the judgment and two years

  thereafter). Because it had taken the Kroesens approximately five

  years to enter into the contract to sell Tract AB and there was no

  record evidence of a material decline in the value of their property

  or the local real estate market, the record supports the court’s

  calculation of damages.

¶ 63   Unlike the property in Westfield Development, as the district

  court found, Tract AB still had market value and would likely

  eventually be sold. Although it may be unclear when that sale will

  occur, the Kroesens will likely recover the loss of their anticipated

  profits when they sell the property.

¶ 64   The Kroesens further contend that, in calculating damages,

  the district court erred by comparing Tract AB to a nearby lot that

  was sold in October 2017. They assert that this error invalidates

  the court’s determination that they are not entitled to lost profits


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  because their property has lost value since 2015 and they will be

  forced to sell their land for less than the price specified in the

  terminated contract.

¶ 65   We do not agree. While the Kroesens’ expert testified that the

  comparative tract had “similar views” to, and was “more level” than,

  Tract AB, she also testified that, unlike Tract AB, the comparative

  lot does not have “half of [a] pond.” Because the expert’s testimony

  was unclear as to the comparative value of Tract AB and the other

  lot, coupled with the record evidence that Tract AB retained market

  value and would eventually sell at or above the contract price

  specified in the terminated contract, we perceive no error in the

  district court’s measure of damages.

                             V.    Conclusion

¶ 66   The district court’s judgment is affirmed.

       JUDGE FOX and JUDGE BERGER concur.




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