Eagle
County District Court No. 16CV30439 Honorable Frederick W.
Gannett, Judge.
Porterfield & Associates, LLC, Wendell B. Porterfield,
Jr., Vail, Colorado, for Plaintiff-Appellant
Range,
LLP, Kevin C. Paul, Cynthia A. Coleman, Eric R. Jaworski,
Denver, Colorado, for Defendants-Appellees
OPINION
GROVE
JUDGE.
¶
1 Plaintiff, Anna Filatov, appeals the district court's
entry of summary judgment in favor of defendants, Mark F.
Turnage and Natalie F. Bocock Turnage, which declared that
they had timely exercised their right of first refusal to
purchase a condominium unit in Vail. We reverse.
I.
Background
¶
2 Filatov entered into a contract to buy a condominium unit
in Vail. Under the terms of the condominium declaration,
Filatov's purchase of the unit was subject to the
Turnages' right of first refusal.
¶
3 The condominium declaration required a unit owner who
received a bona fide offer from a prospective purchaser to
give written notice and a copy of the offer to the
condominium board of managers (the board). The board was, in
turn, required to advise the owners of other units in the
same building of the offer in accordance with the procedures
outlined in the association's bylaws. To exercise the
right of first refusal, an owner needed to notify the seller
in writing and make a matching down payment or deposit
"during the 20 day period immediately following the
delivery of the notice of the bona fide offer and copy
thereof."
¶
4 The material facts are undisputed. On November 7, 2016, the
selling owners - who are not part of this appeal - properly
notified the board that they had accepted an offer to
purchase their unit. The next day, consistent with the
procedure outlined in the association's bylaws, the board
advised the remaining condominium owners of the pending sale
and their right of first refusal. The board's notice
letter stated that November 8, 2016, was "the first day
of the twenty-day period in which an Owner may exercise the
Right of First Refusal," and that an owner wishing to
exercise the option must do so by November 27, 2016.
¶
5 On Friday, November 25, 2016, the Turnages notified the
condominium association of their intent to exercise the right
of first refusal. They deposited the required earnest money
the following Monday, November 28, 2016 - a day after the
deadline that appeared in the board's notice letter.
¶
6 Filatov sued both the Turnages and the sellers, seeking a
declaration that, because the Turnages deposited their
earnest money after the deadline, their attempt to exercise
the right of first refusal was ineffective. The sellers did
not substantively participate in the district court. After a
period of discovery, Filatov and the Turnages filed
cross-motions for summary judgment.
¶
7 Concluding that the Turnages had timely exercised their
right of first refusal, the district court granted the
Turnages' motion for summary judgment and denied
Filatov's. The district court observed that the board
advised the Turnages of Filatov's offer on November 8.
Then, citing the commonly accepted principle that, in
calculations of time, the first day of a fixed period is
typically excluded and the last day is included, the district
court found that "[t]wenty days from November 8th . . .
is November 28th." Accordingly, the district court found
that the Turnages' option to purchase the property did
not expire until November 28, 2016 - the date that they
deposited the earnest money. Filatov appeals that ruling.
II.
Analysis
¶
8 Filatov contends that the district court erred in granting
summary judgment for the Turnages because the earnest money
was not timely deposited with the seller. We agree.
A.
Standard of Review
¶
9 Summary judgment is a drastic remedy, appropriate only
where there are no disputed issues of material fact and the
moving party is entitled to judgment as a matter of law.
C.R.C.P. 56(c); Lombard v. Colo. Outdoor Educ. Ctr.,
Inc., 187 P.3d 565, 570 (Colo. 2008). We review a
summary judgment ruling de novo. Gibbons v.Ludlow, 2013 CO 49, ΒΆ 11. Similarly,
interpretation of a covenant is a ...