County District Court No. 16CV30439, Honorable Frederick W.
& Associates, LLC, Wendell B. Porterfield, Jr., Vail,
Colorado, for Plaintiff-Appellant
LLP, Kevin C. Paul, Cynthia A. Coleman, Eric R. Jaworski,
Denver, Colorado, for Defendants-Appellees
1] Plaintiff, Anna Filatov, appeals the district
courts 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.
2] Filatov entered into a contract to buy a
condominium unit in Vail. Under the terms of
the condominium declaration, Filatovs 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 associations 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
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 associations
bylaws, the board advised the remaining condominium owners of
the pending sale and their right of first refusal. The
boards 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
boards 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 Filatovs.
The district court observed that the board advised the
Turnages of Filatovs 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.
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
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, ¶ 11, 304 P.3d 239. Similarly, interpretation of
a covenant is a ...