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 Appellants.

John Lawrence Hamil (Michelle W. Stern, with him on the brief), Hamil

Professional Corporation, Denver, Colorado, appearing 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, plaintiff-appellant Gerald Starika, a

Colorado resident, and defendant-appellee Trizec Colorado, Inc., a Delaware

corporation, presents a question regarding the enforceability of a covenant to 

convey a property interest between Trizec and plaintiffs’ predecessor in interest. 

The district court found the covenant enforceable on summary judgment and, after

trial, awarded damages to Trizec. We affirm. 

In 1982, Trizec and The Good Partnership, a Colorado limited partnership,

entered into a dissolution and distribution agreement that terminated Park

Meadows Ltd., a limited partnership between the two entities. The entities had

formed Park Meadows in large part to develop a regional shopping center. 

Pursuant to the dissolution agreement, both Trizec and The Good Partnership took

a portion of the property owned by Park Meadows. Trizec received the future

shopping center site, while The Good Partnership received 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 Good 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 specified 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 Tract and the

Miscellaneous Tracts (as described in Exhibit B attached hereto) such

easements, rights-of-way or other accessways (aggregating not more

than five acres) as shall be necessary or required for the construction

and operation of either a full diamond or half diamond interchange at

South Yosemite Street and Colorado Highway 470. Such conveyance

or dedications shall be made without charge; 

. . . .

The provisions of subsections 3(a) through 3(e) above shall be

deemed covenants running with title to the Adjoining Lands, and

shall be binding upon the Good Partnership and its successors in title

to the Adjoining Lands. The benefits of, and all rights of

enforcement with respect to, subsections 3(a) through 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 crossing of Yosemite Street and C470. In a subsequent agreement with Trizec, Joint Venture expressly

acknowledged that Covenant 3(d) from the 1982 Covenants 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 conveying a right-of-way for an

interchange to Douglas County. A legal metes and bounds description of a right-
1Trizec entered into an agreement with Douglas County to provide the necessary

funds.

- 4 -

of-way covering approximately 2.2 acres accompanied the letter. Plaintiffs

refused to perform, claiming that Covenant 3(d) was unenforceable. 

In May 1996, Douglas County began condemnation procedures on the 2.2

acres. The condemnation action is still pending, though Douglas County has

obtained possession of the property and constructed the 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 law. Defendants counterclaimed for specific performance and sanctions. The district court granted

summary judgment on the validity and enforceability of the covenant. A two day

bench trial followed. The district court found plaintiffs had breached the

covenant but, because the county had completed the interchange and the

condemnation proceeding was ongoing, it awarded Trizec 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 enforceability of the covenant and further

assert that the district court’s judgment is unenforceable due to uncertainty.

We review the grant of summary judgment de novo, applying the same legal
2Section 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 admissions on file, together with the

affidavits, if any, show that there is no genuine issue 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 substantive law. See Kaul, 83 F.3d at

1212. We also review questions of law de novo. See, 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 description 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 conveyance of land

must show on its face, or by reference to other writings, 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 names and intention of

the contracting parties can be determined with reasonable certainty

from the language of the instrument, and a valid contract is thereby

disclosed, specific performance may be decreed thereon.

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 marks omitted). Thus, the

contract must identify the land at issue with “reasonable 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 proposed interchange. The fact that

they failed to establish a specific legal description 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, given external evidence of

defendant’s land and adjoining properties); Ehrich v. Durkee, 72 P. 814, 816

(Colo. 1903) (finding valid contract when vendee was to pick land equal to
- 7 -

$487.80 within one year from designated lots). See generally 6A Richard R.

Powell & Patrick J. Rohan, Powell on Real Property § 880(1)[iii] (1995). We

find Ehrich particularly apposite because, in that case, the parties did not identify

the specific land to be conveyed until the vendee picked the property from a

larger plot of land. The Colorado Supreme Court stated that as long as the larger

plot of land and the land demanded by the vendee could 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 covenant sufficiently identified

the property at issue.

B.

Plaintiffs also contend that the covenant fails because 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 to identify a vendor and a vendee. 

See Eppich, 6 Colo. at 494 (“the note or memorandum must show on 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 general rule that a

contract for the sale of real property must identify the parties. See Shull, 390
- 8 -

P.2d at 316 (“A contract must contain the essentials -- parties, terms, subject

matter and consideration.”) (emphasis added); Micheli, 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 Eppich and Micheli. Here, the contracting parties were Trizec and The Good

Partnership, both of whom the contract identifies. We conclude that the vendee

of the right-of-way constitutes a third party beneficiary of the contract, subject to

Trizec’s “request.” A third party beneficiary is created 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 expressly recited in the contract, the

intent must be apparent from the terms of the agreement, the surrounding

circumstances, or both.” Id. In signing Covenant 3(d), Trizec and The Good

Partnership clearly intended to promote the construction of an interchange by

making the right-of-way available to the constructing 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 on point, the Statute of

Frauds generally does not require a third party beneficiary 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 contract, 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 Frauds,

which is similar to Colorado’s. We therefore hold the rule applies to Colorado

law as well. In addition, general contract law does not require identification of a

third party beneficiary at the time of contract formation. 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 letter by

requesting the transfer of the right of way to Douglas County. In short, Covenant

3(d) identifies the parties sufficiently to comply with Colorado law.

C.

Finally, plaintiffs assert that Covenant 3(d) is void for indefiniteness

because it fails to give any party the power to designate the land required for the

interchange. We agree with the district court that the Covenant clearly gives

Trizec the power to designate the property. The Covenant requires plaintiffs to

provide “at Trizec’s request . . . such easements, rights-of-way or other
- 10 -

accessways (aggregating not more than five acres) as shall be necessary or

required for the construction and operation of either a full diamond or half

diamond interchange . . . .” This language, especially 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 contract provision must be

determined in light of the whole agreement and intent 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 interest in the right-of-way to

Trizec, but did not require specific performance, the normal remedy in a real

property contract suit. Also, the district court suggested in a footnote that the

intended vendee of Covenant 3(d) was the state, but allegedly awarded the interest

to Trizec. We do not find the district court judgment void for uncertainty. We

will, however, clarify the judgment as it affects the rights of the parties.

As noted above, we read Covenant 3(d) as giving Trizec the power to
3Covenant 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 designated Douglas County as

recipient, the interest now belongs to Douglas County. 

For the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment on the enforceability of Covenant 3(d) and its award of

damages.