Cordell v. Klingsheim , 434 P.3d 741 ( 2018 )

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
May 31, 2018
2018COA80
No. 17CA0233, Cordell v. Klingsheim — Taxation — Sale of Tax
Liens — Notice
A division of the court of appeals addresses an issue of first
impression: whether due process requires that a separate notice of
a pending tax sale to be mailed to each record owner when the
record owners are a married couple residing at the same address?
After first concluding that this issue was left open by the supreme
court’s opinion in Klingsheim v. Cordell, 2016 CO 18, the division
concludes that notice mailed to both record owners in a single piece
of mail is constitutionally adequate. Accordingly, the division
affirms the district court’s order reinstating the treasurer’s deed.
COLORADO COURT OF APPEALS 2018COA80
Court of Appeals No. 17CA0233
La Plata County District Court No. 12CV47
Honorable Suzanne F. Carlson, Judge
Carl A. Cordell and Wanda M. Cordell,
Plaintiffs-Appellants,
v.
Bradley Klingsheim,
Defendant-Appellee.
ORDER AFFIRMED
Division V
Opinion by JUDGE WELLING
Dunn and Casebolt*, JJ., concur
Announced May 31, 2018
Jon Lewis Kelly, P.C., Jon Lewis Kelly, Dolores, Colorado, for Plaintiffs-
Appellants
The Baty Law Firm P.C., Michael W. Baty, Durango, Colorado, for Defendant-
Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1 Carl A. and Wanda M. Cordell (the Cordells) appeal the trial
court’s 2016 order reinstating a treasurer’s deed for a tract of land
in La Plata County (the reinstatement order). But this is not these
parties’ first visit to this court. In 2014, a division of this court
affirmed a trial court order voiding a treasurer’s deed following a
2013 tax sale of the disputed tract (the voiding order). See Cordell
v. Klingsheim, 2014 COA 133 (Cordell I). In 2016, our supreme
court reversed Cordell I. See Klingsheim v. Cordell, 2016 CO 18
(Cordell II).
¶2 The trial court issued the reinstatement order on remand
following the decision in Cordell II. It did so without substantive
analysis of its own. On appeal, the Cordells contend that the trial
court was not required to reinstate the treasurer’s deed on remand
because the holding in Cordell II reached only one of the two
grounds on which the trial court rested the voiding order. In other
words, they contend that the alternative ground for voiding the
treasurer’s deed remained viable following Cordell II and that
alternative basis was meritorious. Although we agree with the
Cordells that their alternative argument for voiding the treasurer’s
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deed was not foreclosed by Cordell II, we affirm the trial court’s
reinstatement order because we reject the contention on its merits.
I. Facts and Procedural History
¶3 The Cordells were the record owners of a tract of land located
in La Plata County (Tract 1).1 After the Cordells failed to pay the
taxes owed on Tract 1 for several years, Brenda Heller purchased a
tax lien for the property. Heller assigned that lien to Bradley
Klingsheim, who later requested a deed to the property from the La
Plata County Treasurer.
¶4 Before issuing the requested deed, the Treasurer sent the
Cordells a copy of the notice of the application for a treasurer’s deed
on Tract 1 by certified mail.2 The Treasurer mailed the notice to the
Cordells in one envelope addressed to “Carl A. Cordell” and “Wanda
M. Cordell” to 705 N. Vine in Farmington, New Mexico, the address
1 Mr. Cordell was also the record owner of an adjoining tract of land
(Tract 2). The reinstatement order, which is the subject of the
Cordells’ appeal, reinstated the treasurer’s deeds for both Tract 1
and Tract 2. On appeal, however, the Cordells have not developed
any argument that would undermine the trial court’s reinstatement
of the treasurer’s deed for Tract 2. Accordingly, our analysis in this
opinion is limited to the reinstatement of the treasurer’s deed for
Tract 1.
2 The notice for Tract 2 was sent separately from the notice for
Tract 1.
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listed for the Cordells in the county tax records. The Treasurer
later received a return receipt indicating that the notice had been
received by Mr. Cordell’s mother, Cleo Cordell. When the Cordells
failed to exercise their rights to redeem the property, the Treasurer
issued the treasurer’s deed to Tract 1 to Klingsheim.
¶5 The Cordells learned of the notice some time later, at which
time they filed suit seeking a declaratory judgment that they were
the owners of Tract 1, and that the treasurer’s deed was void.3
After a bench trial, the trial court ruled that the Treasurer had not
complied with section 39-11-128, C.R.S. 2017, because he had not
made “diligent inquiry” in attempting to notify the Cordells that
their land may be sold to satisfy a tax lien. Because it concluded
that the Treasurer had not made the diligent inquiry required under
the statute, the trial court voided the deed. The trial court also
ruled that the treasurer’s deed was void because no “separate
notice” was mailed to Ms. Cordell. This is the alternative basis
referred to at the outset of this opinion.
3 The Cordells’ claims, as well as the underlying facts, are set forth
in detail in Klingsheim v. Cordell, 2016 CO 18 (Cordell II).
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¶6 Klingsheim appealed. He argued that the Treasurer satisfied
his statutory duty of diligent inquiry and that the Treasurer was not
required to mail a separate notice to Ms. Cordell. In Cordell I, a
division of this court concluded that the Treasurer failed to make
the diligent inquiry required by section 39-11-128, and on that
basis affirmed the voiding order. See Cordell I, ¶¶ 6-20. Having
concluded that the Treasurer failed to comply with section
39-11-128, the division stated that it “need not address
Klingsheim’s additional contention concerning the treasurer’s
failure to mail separate notices to each record owner.” Id. at ¶ 20.
¶7 Judge Jones dissented from the majority’s opinion in Cordell I.
In his dissenting opinion, he considered and rejected the argument
that the Treasurer’s notice to Ms. Cordell “was defective as to her
because it was not sent to her in a separate envelope.” Id. at ¶¶ 22,
65-68 (J. Jones, J., dissenting).
¶8 Klingsheim petitioned our supreme court for certiorari review,
which it granted to decide “[w]hether the court of appeals’ decision
in [Cordell I] erroneously construed county treasurers’ ‘diligent
inquiry’ duties under section 39-11-128(1)(a) and (b).” Cordell II,
¶ 13 n.2. It concluded that the Treasurer fulfilled the duty of
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diligent inquiry required by section 39-11-128. Id. at ¶¶ 15-41.
The supreme court also concluded that the Treasurer’s
transmission of the notices by certified mail to the Cordells’ address
listed in the tax rolls, where the return receipt indicated that the
notices were received by the person (Cleo Cordell, Mr. Cordell’s
mother) whom the Cordells anticipated would receive mail on their
behalf, satisfied due process. Id. at ¶¶ 42-46. Having so
concluded, it reversed the judgment in Cordell I and remanded the
case “for further proceedings consistent with th[e] opinion.” Id. at
¶ 48.
¶9 On remand to this court, the Cordells requested that the
division from Cordell I consider the issue of whether due process
required the Treasurer to mail a separate notice to Ms. Cordell. The
division declined to do so. Judge Jones dissented, indicating that
he would address “appellee’s additional contention concerning the
failure to mail separate notices to each record owner.” Cordell v.
Klingsheim, (Colo. App. No. 13CA388, July 13, 2016) (unpublished
order). A mandate was ultimately issued reversing the voiding order
and remanding the case to the trial court “for further proceedings
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consistent with the opinion of the Colorado Supreme Court” in
Cordell II.
¶ 10 On remand to the trial court, Klingsheim moved for the trial
court to reverse the voiding order and reinstate both treasurer’s
deeds, arguing that doing so was consistent with and required by
Cordell II. Specifically, he argued that Cordell II was a “complete
reversal” of the voiding order and, therefore, reinstatement was
required by the supreme court’s holding in the case. The Cordells,
on the other hand, contended that neither Cordell I nor Cordell II
reached the separate notice issue, and, therefore, the trial court
remained free to and should — as it had done previously — void the
deed to Tract 1 on that basis. In the reinstatement order, it is
unclear whether the trial court rejected the Cordells’ separate notice
argument on the merits or did so because it understood Cordell II as
disposing of the contention, as the trial court granted Klingsheim’s
motion and adopted his proposed order without further analysis.
The Cordells appeal the reinstatement order.
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II. Analysis
A. Cordell II Did Not Resolve the Separate Notice Issue
¶ 11 Klingsheim contends that issuance of the reinstatement order
was consistent with the supreme court’s opinion in Cordell II. He
argues that, in holding that “the notices at issue satisfied due
process,” the supreme court in Cordell II concluded that due
process did not require the Treasurer to mail a separate notice to
Ms. Cordell. Id. at ¶ 46. We disagree that the supreme court’s
opinion in Cordell II reached that issue.
¶ 12 Trial courts have no discretion to disregard binding appellate
rulings. Thompson v. United Sec. All., Inc., 2016 COA 128, ¶ 13
(cert. granted sub nom. Rogers v. Catlin Ins. Co. Sept. 11, 2017);
Kuhn v. State Dep’t of Revenue, 897 P.2d 792, 795 (Colo. 1995).
When a trial court must determine whether an appellate decision
dictates a particular result under the law of the case doctrine, we
review its determination de novo. See Hardesty v. Pino, 222 P.3d
336, 339 (Colo. App. 2009).
¶ 13 “Conclusions of an appellate court, and rulings logically
necessary to those conclusions, become the law of the case and
generally must be followed in later proceedings.” In re Estate of
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Shimizu, 2016 COA 163, ¶ 13 (citation omitted). The law of the case
doctrine does not apply, however, if there has been no prior
decision by an appellate court on an issue. Kuhn, 897 P.2d at 796.
¶ 14 We are unpersuaded that the law of the case, as established
by the supreme court’s opinion in Cordell II, required the complete
reversal of the voiding order. We reach this conclusion for two
reasons. First, the question presented on certiorari in Cordell II
does not encompass the issue of whether due process requires the
mailing of a separate notice to each record owner. In Cordell II,
¶ 13 n.2, our supreme court granted certiorari to review “[w]hether
the court of appeals’ decision in [Cordell I] erroneously construed
county treasurers’ ‘diligent inquiry’ duties under section
39-11-128(1)(a) and (b).” Because our supreme court limits the
scope of its review to the question presented on certiorari, see White
v. Muniz, 999 P.2d 814, 818 n.7 (Colo. 2000) (declining to address a
question outside the scope of the issue on certiorari); People v.
Branch, 805 P.2d 1075, 1080 n.1 (Colo. 1991) (same), we cannot
presume that an issue beyond the question presented was decided,
see Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 168 (1939) (“While
a mandate is controlling as to matters within its compass, on the
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remand a lower court is free as to other issues.”); Gavend v.
Malman, 946 P.2d 558, 562 (Colo. App. 1997) (although the
mandate required the reinstatement of improperly dismissed
claims, on remand the court could nonetheless dismiss those
claims on alternate grounds).
¶ 15 Second, the supreme court’s treatment of the due process
issue in Cordell II indicates that it did not reach the separate notice
issue. There is no discussion whatsoever in the Cordell II opinion
regarding whether due process required the Treasurer to mail Ms.
Cordell a separate notice. Tellingly, in discussing the Cordells’ due
process rights, there is no discussion of the essential premise of the
trial court’s separate notice ruling — that “the constitutional rights
of Ms. Cordell are separate from those of her spouse.” Because
there is no discussion of either the trial court’s separate notice
ruling or Ms. Cordell’s individual due process rights, we are not
persuaded that the supreme court reached the separate notice
issue in Cordell II.
¶ 16 For these reasons, we conclude that Cordell II did not resolve
the issue of whether the treasurer’s deed was void because the
Treasurer failed to mail Ms. Cordell a separate notice. Nor did this
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court address it on remand. Because that issue was not resolved in
a binding appellate decision, the law of the case doctrine did not
require the trial court to reinstate the treasurer’s deed on remand.
See Kuhn, 897 P.2d at 796. Instead, it remained free to consider
the merits of the Cordells’ separate notice argument. Although in
issuing the reinstatement order the trial court does not appear to
have considered whether the Treasurer’s failure to mail a separate
notice to Ms. Cordell violated her right to due process — a
conclusion reached in the voiding order that would preclude
reinstatement of the treasurer’s deed to Tract 1 — we now consider
whether its failure to consider that issue on its merits warrants
reversal.
B. Due Process Did Not Require Separate Notice to Ms. Cordell
¶ 17 In his dissenting opinion in Cordell I, ¶¶ 65-68, Judge Jones
concluded that the trial court erroneously voided the treasurer’s
deed based on the Treasurer’s failure to mail a separate notice to
Ms. Cordell.4 As discussed above, neither the majority in Cordell I
4In the voiding order, the trial court found that “a separate notice
must be sent to each person with an interest in the property, which
was not done in this case. In this case, a separate notice was
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nor our supreme court in Cordell II has addressed whether due
process requires the mailing of a separate notice to each record
owner under the circumstances here. We conclude that it does not.
¶ 18 Because there are no material facts in dispute, whether due
process required the mailing of a separate notice to Ms. Cordell
presents a question of law that we review de novo. Awad v. Breeze,
129 P.3d 1039, 1043 (Colo. App. 2005).
¶ 19 Due process “does not require that a property owner receive
actual notice before the government may take his property.” Jones
v. Flowers, 547 U.S. 220, 226 (2006). Rather, “due process requires
the government to provide ‘notice reasonably calculated, under all
the circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their
objections.’” Id. (quoting Mullane v. Centr. Hanover Bank & Tr. Co.,
339 U.S. 306, 314 (1950)); Willhite v. Rodriguez-Cera, 2012 CO 29,
¶ 25 (same). Notice is constitutionally adequate when “the
practicalities and peculiarities of the case . . . are reasonably met.”
Mullane, 339 U.S. at 314-15.
unlikely to have reached Ms. Cordell. However, the constitutional
rights of Ms. Cordell are separate from those of her spouse.”
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¶ 20 We are aware of no requirement that, to comport with due
process, each record owner residing at the same address must be
mailed a separate notice of a pending tax sale. In this case, when
the Treasurer mailed the notice to the Cordells, they were married
and both were receiving mail at the Farmington, New Mexico,
address. We conclude, under these circumstances, that the
Treasurer’s mailing of the notice to Ms. Cordell at the Farmington,
New Mexico, address in the same envelope as the notice to Mr.
Cordell was reasonably calculated to apprise Ms. Cordell that
Tract 1 was the subject of a pending tax sale. See, e.g., Tax
Certificate Invs., Inc. v. Smethers, 714 N.E.2d 131, 135 (Ind. 1999)
(holding that a single notice of pending tax sale mailed to most
recent address provided by joint owners of record, a former married
couple, satisfied due process); DeSalvo v. Roussel, 629 So. 2d 1366,
1369 (La. Ct. App. 1993) (holding that a single notice of pending tax
sale mailed to joint owners of record at shared address of record
was sufficient under notice statute); In re Communipaw Cent. Land
Co., 97 A.2d 176, 180 (N.J. Super. Ct. Ch. Div. 1953) (holding that
joint notice of pending tax sale mailed to co-owners was sufficient
under notice statute); Curtis Bldg. Co., Inc. v. Tunstall, 343 A.2d
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 389, 391 (Pa. Commw. Ct. 1975) (holding that notice mailed in a
single piece of mail to both record owners, though allegedly never
received by the husband, was sufficient under notice statute). But
see Alper v. LaFrancis, 155 So. 2d 405, 406-07 (Fla. Dist. Ct. App.
1963) (holding that joint notice of pending tax sale mailed to
husband and wife was insufficient under notice statute).
¶ 21 Because we conclude that the Treasurer’s notice to Ms. Cordell
satisfied due process, we also conclude that the reinstatement of
the treasurer’s deed to Tract 1 on remand was proper. Accordingly,
we affirm the reinstatement order. See Rush Creek Sols., Inc. v. Ute
Mountain Ute Tribe, 107 P.3d 402, 406 (Colo. App. 2004) (“[W]e may
affirm the trial court’s ruling based on any grounds that are
supported by the record.”).
III. Conclusion
¶ 22 The reinstatement order is affirmed.
JUDGE DUNN and JUDGE CASEBOLT concur.
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