Filatov v. Turnage

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          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

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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, ¶ 11, 304 P.3d 239. Similarly, interpretation of a covenant is a ...