## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 10 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

C-470 JOINT VENTURE, a Colorado general partnership and GERALD J. STARIKA, Plaintiffs-Counter-Defendants -

Appellants,

v. TRIZEC COLORADO, INC., a Delaware corporation, Defendant-Counter-Claimant -

Appellee. No. 97-1478

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D. Ct. No. 96-WY-1612-CB)
Wayne B. Schroeder (Jody Harper Alderman, with him on the briefs), Grimshaw & Harring, P.C., Denver, Colorado, appearing for Ap pellants. John Lawrence Hamil (Michelle W. Stern, with him onthe brief), Hamil Professional Corporation, Denver, Colorado, appeari ng for Appellee.

Before TACHA , BARRETT , and HENRY , Circuit Judges.

TACHA , Circuit Judge.- 2 -

This diversity action between plaintiff-appellant C -470 Joint Venture (“Joint Venture”), a Colorado corporation, plaintif f-appellant Gerald Starika, a Colorado resident, and defendant-appellee Trizec Co lorado, Inc., a Delaware corporation, presents a question regarding the enfo rceability of a covenant to convey a property interest between Trizec and plain tiffs’ predecessor in interest. The district court found the covenant enforceable o n summary judgment and, after trial, awarded damages to Trizec. We affirm. In 1982, Trizec and The Good Partnership, a Colorad o limited partnership, entered into a dissolution and distribution agreeme nt that terminated Park Meadows Ltd., a limited partnership between the two entities. The entities had formed Park Meadows in large part to develop a regi onal shopping center. Pursuant to the dissolution agreement, both Trizec and The Good Partnership took a portion of the property owned by Park Meadows. T rizec received the future shopping center site, while The Good Partnership re ceived surrounding lands, referred to as the “Adjoining Lands.” All land was located near the proposed Colorado Highway 470 (“C-470”), and the parties contemplated the construction of an interchange on the lands distributed to The G ood Partnership. On April 7, 1982, Trizec and The Good Partnership executed and subsequently recorded a Covenants Agreement, which provides: 3. Additional Covenants . The Good Partnership hereby declares the Adjoining Lands, or so much of them as shall be spe cified below, to- 3 -

be subject to the following covenants and burdens:

. . . . (d) For a period of fifteen years after the date of this Agreement, the Good Partnership will, from time to time at Trizec’s request, convey and/or dedicate from the Mercy Trac t and the Miscellaneous Tracts (as described in Exhibit B att ached hereto) such easements, rights-of-way or other accessways (aggre gating not more than five acres) as shall be necessary or required for the construction and operation of either a full diamond or half diam ond interchange at South Yosemite Street and Colorado Highway 470. Su ch conveyance or dedications shall be made without charge;

. . . . The provisions of subsections 3(a) through 3(e) abo ve shall be deemed covenants running with title to the Adjoinin g Lands, and shall be binding upon the Good Partnership and its successors in title to the Adjoining Lands. The benefits of, and all r ights of enforcement with respect to, subsections 3(a) throu gh 3(e) shall inure solely to Trizec and its successors in title to the Town Center Tract. Appellants’ App., Vol. III, at 01176-79. In 1983, appellant Joint Venture acquired part of the Adjoining Lands, including Parcel B, the land containing the crossin g of Yosemite Street and C470. In a subsequent agreement with Trizec, Joint Venture expressly acknowledged that Covenant 3(d) from the 1982 Coven ants Agreement ran with the title to Parcel B. Joint Venture quit-claimed an eighteen percent interest in its land to appellant Gerald Starika. On November 27, 1995, Trizec requested in writing that plaintiffs perform Covenant 3(d) by co nveying a right-of-way for an interchange to Douglas County. A legal metes and b ounds description of a right-1 Trizec entered into an agreement with Douglas County to provide the necessary

funds. - 4 - of-way covering approximately 2.2 acres accompaniedthe letter. Plaintiffs refused to perform, claiming that Covenant 3(d) was unenforceable. In May 1996, Douglas County began condemnation proc edures on the 2.2 acres. The condemnation action is still pending, t hough Douglas County has obtained possession of the property and constructedthe access ramp by depositing $199,800.50 with the Douglas County District Court. 1 On July 2, 1996, plaintiffs filed the instant action in federal district court seeking a declaratory judgment holding the covenant unenforceable under Colorado l aw. Defendants counterclaimed for specific performance and sanctions. Th e district court granted summary judgment on the validity and enforceabilityof the covenant. A two day bench trial followed. The district court found pla intiffs had breached the covenant but, because the county had completed the interchange and the condemnation proceeding was ongoing, it awarded Tri zec damages incurred as a result of the condemnation proceedings rather than specific performance. The court also denied Trizec’s request for sanctions. Plaintiffs appeal the district court’s summary judgment ruling on the enforceabili ty of the covenant and further assert that the district court’s judgment is unenfo rceable due to uncertainty. We review the grant of summary judgment de novo, ap plying the same legal2 Section 38-10-108 provides: “Every contract . . . for the sale of any lands or any

interest in lands is void unless the contract or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party by whom the . . . sale is to be made.” - 5 - standard used by the district court. See, e.g. , Kaul v. Stephen , 83 F.3d 1208, 1212 (10th Cir. 1996). Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admiss ions on file, together with the affidavits, if any, show that there is no genuine i ssue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). If no genuine issue of material fact is in dispute, we determine whether the district court correctly applied the substantiv e law. See Kaul , 83 F.3d at 1212. We also review questions of law de novo. Se e, e.g. , Wolfgang v. MidAmerica Motorsports, Inc. , 111 F.3d 1515, 1524 (10th Cir. 1997).
I.
A. Plaintiffs advance several arguments why Covenant 3 (d) fails under Colorado contract law. First, they claim the descr iption of the property lacks adequate specificity to satisfy Colorado’s Statute of Frauds, C.R.S. § 38-10-108, 2 and Colorado contract law. We disagree. To satisfy Colorado law, a memorandum for the conve yance of land must show on its face, or by reference to other wri tings, first, the names of the parties . . . ; second, the terms and conditions of the- 6 -

contract; third, the interest or property affected; and fourth, the consideration to be paid therefor.” . . . “If the n ames and intention of the contracting parties can be determined with reas onable certainty from the language of the instrument, and a valid co ntract is thereby disclosed, specific performance may be decreed ther eon. Micheli v. Taylor , 159 P.2d 912, 913 (Colo. 1945) (en banc) (quoting Eppich v. Clifford , 6 Colo. 493, 494-495 (Colo. 1883)). “Reasonable certainty in the ascertainment of the lands agreed to be conveyed is all that is required. If the writing contains indicia by reference to which, coupled with the defective designation otherwise, the identity of the premises can reasonably be determined, specific performance may be decreed.” Shull v. Sexton , 390 P.2d 313, 319 (Colo. 1964) (en banc) (internal citations and quotation m arks omitted). Thus, the contract must identify the land at issue with “reas onable certainty.” Covenant 3(d) accomplishes this. The parties knew in 1982 the planned route of C-470, and Yosemite Street already existed . Therefore, the parties knew with reasonable certainty the location of the propo sed interchange. The fact that they failed to establish a specific legal descripti on of the property until time of performance does not render the contract unenforceable. See Hill v. Chambers , 314 P.2d 707, 709 (Colo. 1957) (finding contract to convey one acre on which a house could be built was sufficiently certain, give n external evidence of defendant’s land and adjoining properties); Ehrich v. Durkee , 72 P. 814, 816 (Colo. 1903) (finding valid contract when vendee wa s to pick land equal to- 7 -

$487.80 within one year from designated lots). See generally6A Richard R. Powell & Patrick J. Rohan, Powell on Real Property§ 880(1)[iii] (1995). We find Ehrichparticularly apposite because, in that case, the p arties did not identify the specific land to be conveyed until the vendee p icked the property from a larger plot of land. The Colorado Supreme Court st ated that as long as the larger plot of land and the land demanded by the vendee co uld be ascertained, the contract would be enforced. See Ehrich , 72 P. at 816. This case presents a similar situation. The parties knew the boundaries of Parcel B, the general location of the proposed interchange, and, in 1995, the precise metes and bounds of the requested right-of-way. Accordingly, the co venant sufficiently identified the property at issue.
B. Plaintiffs also contend that the covenant fails bec ause it did not specifically identify the vendee of the right-of-way. To support their contention, plaintiffs cite language from several older Colorado cases stating that Colorado law requires a contract for the sale of real property t o identify a vendor and a vendee.
See Eppich , 6 Colo. at 494 (“the note or memorandum must showon its face . . . first, the names of the parties, vendor and vendee . . .”); Micheli , 159 P.2d at 913 (quoting Eppich ). We find those cases simply stand for the genera l rule that a contract for the sale of real property must identif y the parties. See Shull , 390- 8 -

P.2d at 316 (“A contract must contain the essential s -- parties , terms, subject matter and consideration.”) (emphasis added); Miche li , 159 P.2d at 913 (“If the names and intention of the contracting parties can be determined with reasonable certainty from the language of the instrument . . . specific performance may be decreed thereon.”). Usually, the contracting parties are the vendor and vendee, as was the case in Eppichand Micheli . Here, the contracting parties were Trizec and Th e Good Partnership, both of whom the contract identifies. We conclude that the vendee of the right-of-way constitutes a third party benef iciary of the contract, subject to Trizec’s “request.” A third party beneficiary is c reated if the parties to the agreement intended to benefit a non-party. See E.B. Roberts Constr. Co. v. Concrete Contractors, Inc. , 704 P.2d 859, 865 (Colo. 1985) (en banc). “While the intent to benefit the non-party need not be express ly recited in the contract, the intent must be apparent from the terms of the agree ment, the surrounding circumstances, or both.” Id. In signing Covenant 3(d), Trizec and The Good Partnership clearly intended to promote the constru ction of an interchange by making the right-of-way available to the constructi ng party at no cost. Both the language of 3(d), which makes the conveyance of the right-of-way subject to Trizec’s request, and the surrounding circumstances show the parties intended to benefit a party building the interchange.- 9 -

Although Colorado does not have any specific law onpoint, the Statute of Frauds generally does not require a third party ben eficiary to sign or be named in the contract. See Coleman v. Mountain Mesa Uranium Corp. , 240 F.2d 12, 16 (10th Cir. 1956) (If . . . [plaintiff] was a third party beneficiary[,] he could sue for the enforcement of his rights under the contrac t, although he was not a party thereto or was not mentioned therein.”); 72 Am. Jur . 2d Statute of Frauds § 364 (1974). In Coleman , we applied this rule to the Wyoming Statute of Fr auds, which is similar to Colorado’s. We therefore hold the rule applies to Colorado law as well. In addition, general contract law doe s not require identification of a third party beneficiary at the time of contract for mation. 4 Arthur Linton Corbin, Corbin on Contracts § 781 (1951). “It is enough that he be identified at the time performance is due.” Id. Trizec satisfied this requirement in its demand l etter by requesting the transfer of the right of way to Doug las County. In short, Covenant 3(d) identifies the parties sufficiently to comply with Colorado law.
C. Finally, plaintiffs assert that Covenant 3(d) is vo id for indefiniteness because it fails to give any party the power to des ignate the land required for the interchange. We agree with the district court thatthe Covenant clearly gives Trizec the power to designate the property. The Co venant requires plaintiffs to provide “at Trizec’s request . . . such easements, rights-of-way or other- 10 -

accessways (aggregating not more than five acres) a s shall be necessary or required for the construction and operation of eith er a full diamond or half diamond interchange . . . .” This language, especi ally in context of the entire agreement, see Carleno Coal Sales, Inc. v. Ramsay Coal Co. , 270 P.2d 755, 757 (Colo. 1954) (en banc) (noting the meaning of contr act provision must be determined in light of the whole agreement and inte nt of the parties); 5 Margaret N. Kniffin, Corbin on Contracts § 24.21 (rev. ed. 1998), empowers Trizec to identify the necessary land.
II. Plaintiffs’ last argument involves the certainty of the district court’s judgment. According to plaintiffs, the judgment is so uncertain as to inadequately state the type of relief granted or the rights and obligations of the parties. Plaintiffs claim the district court awarded an inte rest in the right-of-way to Trizec, but did not require specific performance, t he normal remedy in a real property contract suit. Also, the district court s uggested in a footnote that the intended vendee of Covenant 3(d) was the state, butallegedly awarded the interest to Trizec. We do not find the district court judgm ent void for uncertainty. We will, however, clarify the judgment as it affects t he rights of the parties. As noted above, we read Covenant 3(d) as giving Tri zec the power to3 Covenant 3(d) actually creates a future interest -- a springing executory interest -- in

Trizec’s designee. The interest vested when Trizec sent its letter to plaintiffs designating Douglas County as the recipient and establishing the precise bounds of the easement. - 11 - designate the recipient of the easement. 3 We construe the district court’s judgment as recognizing Trizec’s contractual right to designate the easement and have it conveyed by plaintiffs. Since Trizec desig nated Douglas County as recipient, the interest now belongs to Douglas County. For the foregoing reasons, we AFFIRM the district c ourt’s grant of summary judgment on the enforceability of Covenant 3(d) and its award of damages.