City of Lakewood v. Armstrong

         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
                                                          December 28, 2017

                               

No. 16CA1494, Lakewood v. Armstrong — Real Property —
Easements Appurtenant — Easement Deeds — Dominant Estate

     This case addresses several issues concerning easements

appurtenant. A division of the court of appeals concludes: (1) an

easement deed is valid even though the deed does not describe a

dominant estate and contains only one legal description that

encompasses both the servient estate and the easement; (2) a court

may review undisputed extrinsic evidence to determine whether the

easement’s location and the dominant estate are described with

reasonable certainty such that the deed is valid and enforceable;

and (3) a county may acquire an easement for a city’s and the

public’s use. The division also rejects the appellants’ arguments

that they did not have notice of the easement and that a reverter
clause in the deed had been triggered by the dominant estate’s

zoning.
COLORADO COURT OF APPEALS                                        

Court of Appeals No. 16CA1494
Jefferson County District Court No. 15CV31593
Honorable Randall C. Arp, Judge


City of Lakewood, Colorado, a Colorado home rule municipality,

Plaintiff-Appellee,

v.

Joyce B. Armstrong and Mary E.J. Armstrong Trust,

Defendants-Appellants.


                            JUDGMENT AFFIRMED

                                 Division II
                      Opinion by JUDGE HAWTHORNE
                       Dailey and Welling, JJ., concur

                         Announced December 28, 2017


Hoffmann, Parker, Wilson & Carberry, P.C., M. Patrick Wilson, Kathryn M.
Sellars, Denver, Colorado, for Plaintiff-Appellee

Timmins LLC, Jo Deziel Timmins, Edward P. Timmins, Denver, Colorado, for
Defendants-Appellants
¶1    Defendants, Joyce B. Armstrong and the Mary E.J. Armstrong

 Trust (the Armstrongs), appeal the district court’s summary

 judgment for plaintiff, City of Lakewood (Lakewood), declaring that

 a deed conveying an express easement over the Armstrongs’

 property was a valid and enforceable easement appurtenant. We

 affirm.

                  I.   Facts and Procedural History

¶2    The undisputed facts establish that on June 18, 1984, Lois

 Jones Mackey executed a deed (Mackey deed) purporting to convey

 a “permanent public easement for ingress and egress” over a

 portion of the southeast corner of her property to Jefferson County.

 The deed was recorded in the Jefferson County Clerk and

 Recorder’s Office that same day. Lakewood owned property directly

 east and north of Mackey’s property, but Jefferson County did not

 own any adjacent property. Lakewood’s adjacent property consisted

 of the Bear Creek Greenbelt.

¶3    A month later, Jefferson County executed a deed to Lakewood

 (Commissioners deed) conveying the Mackey deed easement using

 the same legal description. The Commissioners deed contained a

 reverter clause that required Lakewood to use the easement

                                  1
 exclusively for public open space, park, and recreational purposes.

 This deed was recorded in October 1984 in the Jefferson County

 Clerk and Recorder’s records.

¶4    In 2011, the Armstrongs bought the property from Mackey’s

 successor in interest and occupied it. At some point, the

 Armstrongs attempted to obstruct the easement’s use by locking a

 gate at one entrance to it. In 2015, Lakewood filed an action for

 quiet title, declaratory judgment, prescriptive easement, trespass,

 reformation of the Commissioners deed, and preliminary and

 permanent injunctive relief. The Armstrongs answered and

 counterclaimed for quiet title, asserting that the easement was

 invalid. Lakewood requested partial summary judgment on its

 claims for declaratory judgment, quiet title, and reformation of the

 Commissioners deed. The Armstrongs filed a cross-motion for

 summary judgment in their favor on all of Lakewood’s claims.

¶5    Before trial, the district court granted Lakewood’s summary

 judgement motion for declaratory judgment, quiet title, and




                                   2
 reformation.1 The court found that the easement was a valid

 express easement appurtenant over the Armstrongs’ property for

 use by the public and Lakewood. The court denied the Armstrongs’

 motion for summary judgment and entered a final order and decree.

                        II.   Standard of Review

¶6    The court’s summary judgment noted that “[t]he parties agree

 that . . . there is no genuine issue of material fact in dispute as to

 the question of whether an express easement exists and that this

 issue is appropriate for resolution on summary judgment.”

 Because all issues raised by the Armstrongs on appeal were decided

 by summary judgment, the parties agree that a de novo review

 standard applies. We agree.

¶7    We review an appeal of a summary judgment de novo.

 Edwards v. Bank of Am., N.A., 

. Summary

 judgment is a drastic remedy and should be granted only when the

 pleadings and the supporting documents demonstrate that no




 1 More precisely, the court granted Lakewood’s revised motion for
 partial summary judgment. Also, the court subsequently amended
 its summary judgment order, which clarified the extent of the
 easement, corrected the Armstrongs’ chain of title, and corrected
 the parties’ maintenance obligations under the easement.
                                    3
  genuine issue of material fact exists and that the moving party is

  legally entitled to judgment. W. Elk Ranch, L.L.C. v. United States,

  

 (Colo. 2002).

       III.     The Commissioners Deed Is Valid Because the Easement Is
                         Described with Reasonable Certainty

¶8            The Armstrongs assert that the district court erred in granting

  Lakewood’s motion for summary judgment because the

  Commissioners deed violates the statute of frauds and is void

  “because it fails to legally describe the easement itself or the

  dominant estate.” We disagree.

                                A.    Applicable Law

¶9            An interest in real property, including an express easement,

  must be created by act or operation of law or contained in a deed or

  conveyance and subscribed by the party creating or assigning the

  interest to satisfy the statute of frauds. § 38-10-106, C.R.S. 2017;

  Strole v. Guymon, 

 (Colo. App. 2001) (easements

  are interests in real property).

¶ 10          Words that clearly show the intention to grant an easement

  are adequate to demonstrate its creation, provided the language in

  the instrument is sufficiently definite and certain. Hornsilver Circle,


                                          4
  Ltd. v. Trope, 

 (Colo. App. 1995). As a

  nonpossessory interest, an easement does not require the precise

  description that a possessory interest does. Hutson v. Agric. Ditch &

  Reservoir Co., 

 (Colo. 1986). The instrument

  instead must identify with reasonable certainty the easement

  created and the dominant and servient tenements. Hornsilver, 

. No particular words are necessary to grant an

  easement, and a lack of specificity in describing an easement’s

  location will ordinarily not invalidate it. Stevens v. Mannix, 

 (Colo. App. 2003) (citing Isenberg v. Woitchek, 

, 

 (1960)).

¶ 11   The general rule is that vagueness in describing the easement

  “does not go to the existence or validity of an easement,” but “an

  extreme case of vagueness could result in a holding that no

  easement was granted.” Isenberg, 

, 

; see Friends of the Black Forest Reg’l Park, Inc. v. Bd. of Cty.

  Comm’rs, 

 (Colo. App. 2003) (no easement was

  created where a conveyance was “subject to” a right-of-way not

  previously existing and possibly including land not owned by the

  grantor, and concluding “[w]e cannot determine from the face of the

                                     5
  1921 deed that the lumber company intended to grant the road

  easement”). “To determine whether an easement has been

  expressly granted — and, if it has, the extent of such easement —

  we look first to the deed or other conveyance instrument,

  construing it to ascertain the parties’ intent.” Gold Hill Dev. Co.,

  L.P. v. TSG Ski & Golf, LLC, 

, ¶ 48 (citing Lazy Dog

  Ranch v. Telluray Ranch Corp., 

 (Colo. 1998)).

  Ascertaining the parties’ intent is “[o]ur paramount concern.” Lazy

  Dog Ranch, 

.

       B.   The Easement’s Description in the Commissioners Deed

¶ 12   The Commissioners deed conveyed to Lakewood a “permanent

  public easement for ingress and egress over the property described

  in Exhibit ‘A’ attached hereto.” (Emphasis added.) The deed and

  attached Exhibit A provide a detailed metes and bounds description

  of a 0.362 acre parcel of land lying in the “NW 1/4 of section 34,

  township 4 south, range 69 west of the 6th P.M., City of Lakewood”

  in Jefferson County, Colorado. Thus, the Commissioners deed

  contains “a description of the land that is to be subjected to the

  easement with sufficient clarity to locate it with reasonable

  certainty.” Hornsilver, 

.

                                     6
¶ 13   But the Armstrongs contend that the easement is not

  described because the parties agree that Exhibit A describes the

  entire servient estate and the easement itself is not described within

  the servient estate. Even assuming this is so, as noted, “a lack of

  specificity in describing an easement’s location will ordinarily not

  invalidate it.” Stevens, 

 (citing Isenberg, 

, 

). The parties agree that the burdened estate

  is sufficiently identified. So, the easement is not invalid for

  vagueness where the easement is not particularly identified. Id. at

  933 (“Because these documents reasonably designate the land

  burdened by the easements, we conclude that the easements were

  not, as a matter of law, invalid because of vagueness.”). “If a valid

  easement is granted without fixing in writing its location, the

  location may be determined based on the conduct of the parties.”

  Id.; see, e.g., Gjovig v. Spino, 

 (Colo. App. 1985)

  (looking to historical use of the easement where there was no

  precise description of the easement’s location of ingress and egress

  over the servient estate); Restatement (Third) of Prop.: Servitudes

  § 2.7 (Am. Law Inst. 2000) (“The great majority of cases require only



                                     7
  that the servient estate be described. They do not require that the

  servitude’s location within the servient estate be described.”).

¶ 14   The Armstrongs also argue that if the easement and servient

  estate share the same legal description, as the court found, then

  the Commissioners deed does not describe a servient estate. The

  Armstrongs rely on DRD Enterprises, LLC v. Flickema to support this

  argument. 

 (S.D. 2010) (where a servient

  estate is not identifiable the conveyance is invalid). But, the deed in

  that case identified the servient estate only as “grantor’s land,” and

  the court concluded that “[t]hese two words do not suggest any

  point of reference by which one could identify the specific property

  burdened.” 

 Further, the Armstrongs have not cited any

  authority, and we are not aware of any, supporting the proposition

  that an easement cannot encompass the entire servient estate with

  its boundaries being coterminous with those of the servient estate.

  On the contrary, an easement can encompass the entire servient

  estate. See Bachman v. Hecht, 

 (D.V.I. 1986)

  (an easement granted to subdivision purchasers to use beaches

  designated on the plan as “Plots No. 103, No. 127 and No. 186”

  implied that the easement covered the entire plots and was not

                                     8
  limited to beach areas), aff’d, 

 (3d Cir. 1988)

  (unpublished table decision); Jankoski v. Lake Forest Acres

  Homeowners, Inc., 

 (N.Y. App. Div. 2013)

  (an easement for recreational purposes covered the entire servient

  estate and was not limited to lake access). So we reject this

  argument.

¶ 15   We conclude that the Commissioners deed describes the

  easement itself with reasonable certainty and is not rendered

  invalid by any deficiency in the easement’s description.

                        C.   The Dominant Estate

¶ 16   The parties agree that the Commissioners deed does not

  expressly describe a dominant estate.

¶ 17   Requiring a sufficient description of a dominant estate is

  important, in part, to give a bona fide purchaser notice of the

  nature and extent of the easement. See Lewitz v. Porath Family Tr.,

  

 (Colo. App. 2001). But in Hornsilver, another

  division of this court held that an easement was reasonably certain

  and valid when it provided, “in accurate detail, the size, dimensions,

  type of use, and location of the easement on the servient tenement,

  as well as the precise legal description of the servient property,”

                                     9
  even though the deed provided an “inaccurate legal description of

  the [dominant estate].” 

. Even though the facts in

  Hornsilver differ from those in this case, its legal conclusions are

  equally applicable here.

¶ 18   The deed in question in Hornsilver described the dominant

  estate by a lot number that did not exist in the town’s official

  recorded plat. And the Commissioners deed does not expressly

  describe a dominant estate. Because the deed in Hornsilver

  described a non existent dominant estate and the Commissioners

  deed does not describe a dominant estate at all, we perceive no

  reasoned basis for not applying the legal principles announced in

  Hornsilver to reach the same result in this case.

¶ 19   The parties agree that the servient estate is sufficiently

  described, and as we concluded above, the easement is also

  sufficiently described.2 So, we conclude that the lack of an




  2We recognize that in Hornsilver, the servient estate was separately
  described from the easement. But as we noted above, we are not
  aware of any authority prohibiting an easement and the servient
  estate from sharing the same legal description, and thus having
  coterminous boundaries.
                                    10
  expressly described dominant estate does not render the easement

  invalid. Id.3

       D.    The Armstrongs Had Notice of the Recorded Easement

¶ 20   To the extent the Armstrongs argue that they did not have

  constructive notice of the easement because the Commissioners

  deed does not describe the dominant estate or easement itself, we

  are not persuaded.

¶ 21   The easement was recorded in the Jefferson County Clerk and

  Recorder’s Office pursuant to section 38-35-109(1), C.R.S. 2017,

  over twenty-five years prior to the Armstrongs’ purchase of the

  property. We have concluded above that the easement is described

  with reasonable certainty and is valid. So, the Armstrongs had

  constructive notice of the easement. Bolinger v. Neal, 

 (Colo. App. 2010) (“As a matter of law, a person who




  3 We note that Hornsilver is consistent with the general rule that “it
  is a sound conveyancing practice to identify the dominant estate in
  a deed, but generally this is not essential to the creation of an
  easement appurtenant.” Jon W. Bruce & James W. Ely, The Law of
  Easements and Licenses in Land § 2:3, Westlaw (database updated
  September 2017); see, e.g., Garza v. Grayson, 

  (Or. 1970); Lozier v. Blattland Invs., LLC, 

 (Wyo.
  2004).
                                    11
  acquires an interest in real property is on constructive notice of all

  prior filings concerning that property.”).

   IV.    The Court Properly Reviewed Extrinsic Evidence to Determine
                       the Commissioners Deed’s Validity

¶ 22     The Armstrongs contend that the court impermissibly looked

  to extrinsic evidence to interpret the Commissioners deed.

  Specifically, the Armstrongs assert that because the deed failed to

  describe the easement or dominant estate, extrinsic evidence,

  including the parties’ intentions, was not admissible to alter or

  control the deed’s plain terms, so the Commissioners deed is invalid

  and unenforceable. Again, we are not persuaded.

¶ 23     Extrinsic evidence may be considered to determine whether

  the description of an easement in a deed is reasonably certain or

  instead is invalid for vagueness. See, e.g., Isenberg, 

, 

 (“[The] lack of specific description does not

  affect the validity of the easements, particularly where the conduct

  of parties has over a period of time located it.”); Stevens, 

 (“Because [the site plan] documents reasonably designate the

  land burdened by the easements, we conclude that the easements

  were not, as a matter of law, invalid because of vagueness.”).


                                     12
¶ 24   And again, lack of a description of the dominant estate is not

  fatal to the Commissioners deed’s validity. See Hornsilver, 

 (“We find most persuasive those cases which hold that an

  easement is valid provided the servient tenement is accurately

  identified.”). So the court may properly review extrinsic evidence to

  determine whether an easement is identified with reasonable

  certainty and, therefore, valid.

¶ 25   The district court found that the parties agreed that the legal

  description in Exhibit A to the Commissioners deed sufficiently

  described the servient estate. It also concluded that “the failure to

  describe the dominant estate is not a fatal flaw, as long as the size

  and location of the easement can be ascertained.” And it noted that

  a letter and accompanying drawing sent by a property manager for

  Lakewood to the grantor in the Mackey deed, dated before the

  Mackey deed’s execution, shows that Lakewood intended to use the

  easement to build a road to carry equipment and material to

  complete the development of the Bear Creek Greenbelt. Once the

  work was completed, Lakewood intended the road to remain and to

  provide permanent maintenance and emergency vehicle access to

  the greenbelt. Based on this undisputed evidence, the court found

                                     13
  that “[Lakewood] intended to use the easement to build a road

  across the property and needed the entire space for the purposes of

  building that road.” The court further summarized its findings:

            (1) the parties intended to create an express
            easement,

            (2) the easement is not deficient because of the
            vagueness of the instrument,

            (3) the easement originally agreed on
            encompassed the entire area described in the
            Mackey deed and transferred to the
            [Armstrongs] in the Commissioners deed.

¶ 26   The court did not err in considering this extrinsic evidence to

  determine that the easement’s description encompassed the entire

  servient estate, and, thus, for the purposes of determining the

  easement’s validity, it was not deficient because of vagueness. See

  Isenberg, 

, 

; Stevens, 

. And because a dominant estate is necessary for a valid

  easement appurtenant, see Lewitz, 

, the court did

  not err in considering this extrinsic evidence to determine what, if

  any, dominant estate the easement served. See, e.g., Hornsilver,

  

 (an easement was not void where the deed

  described a non-existent “Lot B” in the town’s recorded plat but the


                                    14
  dominant estate was simply inaccurately described). The court

  found that the easement served the Bear Creek Greenbelt as a

  dominant estate. Another division of this court has concluded that

  a trial court properly considered extrinsic evidence in a similar

  context to determine that an easement was valid even though no

  dominant estate was described. Bolinger, 

  (rejecting the argument that an easement was not created because

  under a common development plan, “the dominant estate need not

  be specifically described”).

¶ 27   The Armstrongs also argue that the court erred in considering

  extrinsic evidence to determine the location and extent of the

  dominant estate because Jefferson County did not own any

  adjacent property when the Mackey deed conveyed the easement to

  it. We reject this argument because, as we explain in Part VI below,

  Jefferson County had authority to purchase the Mackey easement

  for Lakewood’s benefit.

¶ 28   Finally, we do not address the Armstrongs’ argument, raised

  for the first time in their reply brief, that the court also improperly

  considered the undisputed extrinsic evidence to resolve any

  ambiguities in the deed. See Colo. Korean Ass’n v. Korean Senior

                                     15
  Ass’n of Colo., 

 (Colo. App. 2006) (“[W]e do not

  address issues raised for the first time in a reply brief.”).

       V.      The Commissioners Deed’s Reverter Clause Has Not Been
                     Triggered Because Its Purpose Still Applies

¶ 29        The Armstrongs contend that the court erred in enforcing the

  Commissioners deed because the reverter clause in the deed had

  been triggered, so the deed expired. We disagree.

¶ 30        Where a deed’s language provides that property is conveyed so

  long as it is used for a specific purpose and no longer, the

  conveyance creates a fee simple determinable with the possibility of

  reverter. Sch. Dist. No. Six v. Russell, 

, 

 (1964). This property interest lasts an indefinite period

  and terminates if a specified event occurs, and the subject property

  then automatically reverts to the grantor of the interest. 

,

  

.

¶ 31        The Commissioners deed contains a reverter clause stating

  that the easement granted from Jefferson County to Lakewood lasts

  “for so long as the following described property is used exclusively

  for public open space, park and recreational purposes and no

  longer . . . .”


                                       16
¶ 32   Lakewood produced undisputed evidence showing that the

  dominant estate served by the easement has been continuously

  used exclusively for open space, park, and recreational purposes,

  namely the Bear Creek Greenbelt, since Lakewood obtained the

  easement.

¶ 33   The Armstrongs’ argument that the reverter clause was

  triggered because the dominant estate is zoned for commercial use

  does not create a material factual dispute as to the easement’s use,

  and, therefore, is not relevant. The deed requires the easement be

  “used exclusively for public open space, park and recreational

  purposes.” The easement’s use is the determinative factor for

  triggering the reverter clause, not the zoning of the land benefited

  by it. See Barnes v. Winford, 

 (Colo. App. 1991)

  (“[The grantor], therefore, retained a possibility of reverter interest

  in the land occupied by the right-of-way which would vest

  automatically when and if the [r]ailroad ceased to use the right-of-

  way for ‘railway purposes.’”) (emphasis added).

¶ 34   The Armstrongs also assert that the Bear Creek Greenbelt is

  almost a mile away from their property. But this evidence, even if

  considered in a light most favorable to the Armstrongs, does not

                                     17
  create a material factual dispute about the easement’s use. The

  Armstrongs provided no evidence rebutting Lakewood’s evidence

  that the dominant estate served by the easement has been

  continuously used for open space, park, and recreational purposes.

  And, as the Armstrongs concede on appeal, “[t]he facts relating to

  this issue on appeal are undisputed.” But even if this assertion is

  accurate, benefited and burdened lands are not required to be

  adjacent to one another. Wagner v. Fairlamb, 

,

  

 (1963) (“For the general and modern rule, which

  we approve, is that a right-of-way may be appurtenant to land even

  when the servient tenement is not completely adjacent to the

  dominant.”).

¶ 35   We conclude that a reversion was not triggered by the

  dominant estate’s zoning classification and the easement has not

  reverted to Jefferson County.4




  4 The Mackey deed to Jefferson County does not contain a reverter
  clause, so if the Commissioners deed’s reversion was triggered, the
  easement would revert to Jefferson County.
                                   18
       VI.   Jefferson County Had Authority to Purchase the Mackey
                                  Easement

¶ 36    The Armstrongs contend that the Commissioners deed is void

  because Jefferson County did not have the authority to purchase

  the easement for use by Lakewood. We disagree.

                           A.    Applicable Law

¶ 37    A county may purchase real estate for the “use of the county.”

  § 30-11-101(1)(b), C.R.S. 2017. But counties do “not have blanket

  authority to deal in real estate.” Farnik v. Bd. of Cty. Comm’rs, 

, 

 (1959). While counties “possess

  only such powers as are expressly conferred on them either by the

  Constitution or statutes,” this includes “such implied powers as are

  reasonably necessary to the proper execution of those expressly

  conferred.” 

 Counties may not acquire real property for

  speculation or investment, nor can they retain property lawfully

  acquired for use by the county when the reason for the county’s use

  no longer exists. 

, 341 P.2d at 473.

                                B.   Analysis

¶ 38    In addition to the powers enumerated above, Jefferson County

  has the authority “[t]o exercise such other and further powers as


                                     19
  may be especially conferred by law.” § 30-11-101(1)(e). One such

  power is to “acquire, sell, own, exchange, and operate public

  recreation facilities, open space and parklands, [and] playgrounds

  . . . ; acquire, equip, and maintain land, buildings, or other

  recreational facilities either within or without the corporate limits of

  . . . [the] county; and expend funds therefor and for all purposes

  connected therewith.” § 29-7-101(1), C.R.S. 2017. Similarly,

  Jefferson County may “acquire . . . any public project, which public

  project may be located within or without or partly within and partly

  without the territorial limits of [Jefferson County].” § 30-20-302,

  C.R.S. 2017.

¶ 39   A public project includes “any lands . . . suitable for and

  intended for use as public property for public purposes or suitable

  for and intended for use in the promotion of . . . public welfare, or

  the conservation of natural resources, including the planning of any

  such lands . . . .” § 30-20-301(2), C.R.S. 2017; see also Garel v. Bd.

  of Cty. Comm’rs, 

, 357, 

, 211 (1968)

  (“[T]he sewer system as contemplated to be constructed by the

  Board in Summit County is within the power conferred in the act



                                     20
  and well within the definition of ‘public project . . . .’’’ (quoting

  section 30-20-301’s predecessor, section 39-19-1, C.R.S. 1963)).

¶ 40   The Armstrongs have not cited any authority, and we are not

  aware of any, that requires Jefferson County to own property

  adjacent to property being acquired for recreational purposes or a

  public project before such property is acquired. And generally, “the

  creator of an easement need not own the dominant estate.” Lewitz,

  

.

¶ 41   Lakewood presented undisputed evidence that Jefferson

  County purchased the Mackey easement to further a plan to

  operate parks and open space in Jefferson County. Specifically,

  before Jefferson County acquired the easement, Lakewood resolved

  to purchase the easement to provide access to the Bear Creek

  Greenbelt, and to use its share of Jefferson County’s available

  “Open Space Funds” to do so. The Mackey easement was then

  acquired using these funds contributed by both Lakewood and

  Jefferson County.

¶ 42   Jefferson County expended its funds for the purpose of

  providing a public easement for ingress and egress to and from the

  Bear Creek Greenbelt. The Commissioners deed requires Lakewood

                                      21
  to use the easement exclusively for public open space, park, and

  recreational purposes. The Bear Creek Greenbelt is used as a

  public open space and parkland.

¶ 43   We conclude that Jefferson County had the authority to

  purchase an easement for access to a public park or open space

  owned by Lakewood under its implied powers to promote public

  projects or public open space and parkland. See generally Adams

  Cty. Golf, Inc. v. Colo. Dep’t of Revenue, 

, 

 (1980) (concluding that counties have implied power to

  sell beer given the express power to own or operate public

  recreational facilities).

                              VII. Conclusion

¶ 44   We affirm the district court’s order granting partial summary

  judgment for Lakewood and denying the Armstrongs’ motion for

  summary judgment.

       JUDGE DAILEY and JUDGE WELLING concur.




                                    22