Lensky v. DiDomenico , 2016 Colo. App. LEXIS 841 ( 2016 )

COLORADO COURT OF APPEALS 2016COA89
Court of Appeals No. 14CA0529
Huerfano County District Court No. 01CV91
Honorable Claude W. Appel, Judge
Gary Lensky and Camp D’Orvid at Casa Del Arroyo,
Plaintiffs-Appellants,
v.
Gery DiDomenico, Carol McDonald, Charles B. Choin, William R. Trujillo,
Manual D. J. Archuleta, Maria J. Archuleta, and William L. Trujillo,
Defendants-Appellees.
ORDER REVERSED
Division I
Opinion by JUDGE FREYRE
Taubman and Dailey, JJ., concur
Announced June 16, 2016
Dennis B. Green, Denver, Colorado, for Plaintiff-Appellant Camp D’Orvid at
Casa Del Arroyo (On the Briefs)
Gary Lensky, Pro Se
Kettelkamp Young & Kettelkamp, P.C., C. Todd Kettelkamp, Pueblo, Colorado,
for Defendants-Appellees
¶1 In this proceeding for use of a parcel of land, involving
plaintiffs Gary Lensky and Camp D’Orvid at Casa Del Arroyo, and
defendants, neighboring property owners,1 we are asked to decide
whether a putative adverse possessor, who lacks a legal claim to
title in property, nevertheless has an interest in the property
enforceable against everyone except the rightful owner. This is a
novel question in Colorado. We conclude that a putative adverse
possessor does have such an interest, and we reverse the trial
court’s order concluding otherwise.
I. Relevant Facts and Procedural History
A. Prior Proceeding
¶2 In 1998, Lensky purchased a one-acre parcel of property in
Gardner, Colorado, from Martha and Louis Valdez (the Valdezes).
Title insurance could not be provided because of “title problems.”
Lensky eventually learned the nature of the title problems — all of
1 Gery DiDomenico, Carol McDonald, Charles B. Choin, William R.
Trujillo, Manual D. J. Archuleta, Maria J. Archuleta, and William L.
Trujillo. The notice of appeal names Agnes F. Quillian and the heirs
of the estate of Agnes F. Quillian as defendants; however, the briefs
do not and, thus, we do not include them in our caption.
1
the structures and improvements that he had purchased from the
Valdezes were “off the deed” and actually located on adjacent land
rather than on the deeded property. The adjacent land totaled
approximately twenty-three acres.
¶3 Lensky undertook to identify the last record owner of the
adjacent property. Initially, he was advised by Huerfano County
officials that the property had been “off the tax rolls” for seventy-two
years and was referred to as “no man’s land” because the record
owner “could not be traced.” Lensky claimed, however, that after
“extensive research,” he “traced” the adjacent property to a 1908
deed from Fred Griffith to Agnes F. Quillian, who “had been
deceased for over 80 years.” In 2000, Lensky paid the back taxes to
1994 on approximately seventeen acres of that property.
¶4 In October 2001, Lensky filed a quiet title action under
C.R.C.P. 105 (complaint). He claimed fee simple ownership to the
approximately twenty-three acres adjacent to the property he had
purchased from the Valdezes by adverse possession for at least
eighteen years, pursuant to section 38-41-101, C.R.S. 2015, and by
adverse possession under color of title, pursuant to section
38-41-108, C.R.S. 2015.
2
¶5 When Lensky filed the complaint, defendants or their
predecessors in interest were the record owners of certain parcels of
land located within the quiet title property. Defendants’ interests
were also apparent by their actual use of portions of the adjacent
property. Indeed, Lensky had observed people using the adjacent
property for a variety of purposes, such as riding ATVs, discarding
garbage, and drinking. The complaint, however, only named Agnes
F. Quillian and “all unknown persons who claim an interest in the
subject matter of this action” as defendants.
¶6 Lensky filed a verified motion for service by publication under
C.R.C.P. 4(g), stating that the defendants to be served by
publication “are unknown persons, who cannot be served by
personal service in the State of Colorado.” The motion identified the
addresses, or last known address of “Agnes Quillian” as “General
Delivery, Gardner, CO 81040.” Based on Lensky’s representations,
the trial court granted the motion for service by publication.2
2John and Marie Castro (the Castros) filed an answer, denying
Lensky’s right to quiet title to a portion of the property that was the
subject property in a related quiet title action brought by the
Castros against him in Huerfano County, case number 02CV38.
Lensky and the Castros stipulated that the property described in
3
¶7 On October 30, 2002, the trial court entered a default decree
quieting title to the adjacent property in Lensky, less the small
parcel awarded to the Castros. When the default decree was
entered, defendants each held an interest in portions of the
property described in the decree.
¶8 On October 23, 2007, Lensky conveyed a portion of the
subject property to Camp D’Orvid at Casa Del Arroyo, a section
501(c)(3) religious organization. Hereafter, unless the context
indicates otherwise, we refer to Lensky and Camp D’Orvid at Casa
Del Arroyo as “Lensky.”
¶9 In February 2009, defendants filed a C.R.C.P. 60(b)(3) motion
to vacate the order for service by publication and the subsequent
decree quieting title. Defendants argued that they were entitled to
personal service of the complaint based on their ownership claims
to portions of the quiet title property, and, thus, the order for
publication was void.
case number 02CV38 would be excluded from Lensky’s quiet title
action, and the trial court quieted title to a portion of the property
in the Castros.
4
¶ 10 The court granted defendants’ C.R.C.P. 60(b)(3) motion and
vacated the order for publication and the default decree. It found
that Lensky had misrepresented or “withheld material information”
from the court in the verified motion for service by publication.
Because defendants were omitted as named defendants in the quiet
title action “even though their interest and identity could have
easily been ascertained had plaintiff exercised the requisite due
diligence,” and because defendants were not personally served a
summons and petition for quiet title, they were not bound by the
decree and could “attack the same.”
¶ 11 After the court denied Lensky’s motion to amend the findings
and judgment, Lensky filed an amended C.R.C.P. 105 complaint
naming defendants as parties and requesting that their “property be
excluded from his request for a quiet title decree.” Defendants filed
a motion to dismiss the amended complaint or a motion for
summary judgment. The trial court granted the motion for
summary judgment and dismissed Lensky’s amended complaint,
finding that there were no facts to support Lensky’s claim for
adverse possession based on section 38-41-108, section 34-41-109,
C.R.S. 2015, or tacking.
5
¶ 12 Lensky appealed the trial court’s C.R.C.P. 60(b)(3) order
granting summary judgment. Simultaneously, defendants filed a
motion for order to vacate which the trial court stayed pending the
appeal.
¶ 13 A division of this court affirmed the trial court’s judgment and
orders in an unpublished opinion. See Lensky v. DiDomenico, (Colo.
App. No. 10CA2076, Mar. 22, 2012) (not published pursuant to
C.A.R. 35(f)). It concluded that defendants should have been
named as parties in the quiet title action, defendants should have
been personally served, and Lensky’s omissions and
misrepresentations in the verified motion for publication rendered
the service by publication void. Because the order for publication
and the default decree subsequently entered were void, the division
affirmed the court’s order granting defendants’ C.R.C.P. 60(b)(3)
motion.
¶ 14 The division also affirmed the trial court’s summary judgment
dismissing Lensky’s claim of adverse possession based on tacking.
It found Lensky’s claim that the Valdezes had abandoned the
property to be inconsistent with his claim that he and the Valdezes
had occupied the property for the requisite eighteen years based on
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tacking. Moreover, it agreed with the trial court that Lensky had
failed to present any evidence that the Valdezes owned or possessed
the adjacent property, including the abandoned structures.
B. Current Proceeding
¶ 15 While the case was on appeal, Lensky continued to occupy the
subject property.3 He renovated old structures, erected new
structures, erected fences, hung no trespassing signs, and placed
locks on existing gates. After the mandate was issued, the trial
court lifted the stay on defendants’ motion for an order to vacate.
That motion requested “additional orders” under C.R.C.P. 105(a) to
remove Lensky from the subject property, to restrain Lensky from
interfering with defendants’ use of the subject property, and to
require Lensky to remove all signs, barriers, and locked gates which
restricted defendants’ access to the subject property.
¶ 16 The trial court held a hearing on defendants’ motion. Before
the hearing, the parties stipulated that Lensky was a “putative
adverse possessor,” i.e., that Lensky was reputed or believed by
3 This includes the property adjacent to Lensky’s property,
excluding the land owned by the defendants that was identified in
the prior proceeding.
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most people to be one attempting to adversely possess the subject
property. Black’s Law Dictionary 1432 (10th ed. 2014). Defendants
acknowledged that they had no title to the subject property and
modified their request for relief. Instead of asking the trial court to
order Lensky’s removal from the property, they requested
unrestricted access to and use of it. Defendants argued that
because Lensky had been found to have no legal or equitable claim
to the subject property, he had no right to restrict their access to it.
They asked the court to issue an order preventing Lensky from
interfering with others’ use of the property.
¶ 17 Relying on Spring Valley Estates, Inc. v. Cunningham, 181
Colo. 435, 510 P.2d 336 (1973), Lensky responded that, as a
putative adverse possessor, he had an interest in the subject
property enforceable against everyone except the true owner. He
described renovating old structures, building new permanent
additions, erecting fences, locking the gates at the entrances, and
posting no trespassing signs. He admitted confronting people who
attempted to enter the subject property and telling them that they
could not be on “his” land.
8
¶ 18 The trial court issued an order granting in part and denying in
part defendants’ motion. As relevant here, it concluded as follows:
 Because Lensky’s claims had been fully and finally
adjudicated in the prior proceeding, the law of the case
was that Lensky had no legal or equitable right to the
subject property.
 Because Lensky had no legal or equitable right to the
property, Spring Valley Estates did not support his
claimed right as a putative adverse possessor to exclude
defendants or others from the subject property.
 C.R.C.P. 105(a) authorized the court to enter “additional
orders” to completely adjudicate the rights of all parties
to the subject property.
 Defendants did not claim an interest in or seek
possession of the subject property. They sought to use
the property without interference as they had used it for
many years before Lensky took possession.
 Because of his prior misrepresentations to the court,
Lensky had made improvements to the subject property
under a bad faith belief that he held title to the property.
9
¶ 19 The trial court ordered Lensky to remove barricades, barriers,
signs, and locks that restricted access to the subject property. It
further ordered Lensky and his associates to refrain from
confronting defendants as they entered or left the subject property.
Lensky appeals this order.
II. Rights of a Putative Adverse Possessor
¶ 20 Lensky contends the trial court erred in finding that he had no
rights as a putative adverse possessor. He argues that this court’s
prior decision affirming his lack of legal title to the subject property
fully adjudicated his prior claim to the property as an adverse
possessor, but that it had no prospective effect. He further argues
that his continued possession of the subject property as a putative
adverse possessor gives him an interest in the property (including
the right to restrict access to it) that is superior to everyone else’s
interest except for that of the rightful owner. We agree.
A. Applicable Law
¶ 21 Because no Colorado case has squarely addressed the rights of
a putative adverse possessor, we begin by examining Colorado’s law
on adverse possession and the dictum in Spring Valley Estates on
which Lensky relies. This issue involves a question of law that we
10
review de novo. Matoush v. Lovingood, 177 P.3d 1262, 1269 (Colo.
2008). We then examine other jurisdictions’ resolutions of similar
issues.
¶ 22 To obtain title by adverse possession in Colorado, a party must
establish that his possession was hostile, actual, exclusive, adverse,
under a claim of right, and uninterrupted for the statutory period.
Beaver Creek Ranch, L.P. v. Gordman Leverich Ltd. Liab. Ltd. P’ship,
226 P.3d 1155, 1160 (Colo. App. 2009). Colorado’s statutory period
is eighteen years. § 38-41-101(1). Whether possession is hostile,
actual, exclusive, and adverse is a question of fact. Smith v.
Hayden, 772 P.2d 47, 52-53 (Colo. 1989).
¶ 23 “[H]ostile intent is based on the intention of the adverse
possessor to claim exclusive ownership of the property occupied.”
Id. at 56. Proof of adverse possession extends beyond actual
possession and must demonstrate that the record owner has been
excluded from the property. Id. at 52. The possession must be
hostile against both the true owner and the world from its
inception. Schuler v. Oldervik, 143 P.3d 1197, 1202-03 (Colo. App.
2006).
11
¶ 24 To actually possess the land, an adverse possessor must act
as an ordinary landowner would in utilizing the land for the
ordinary use of which it is capable. Smith, 772 P.2d at 52. And,
the adverse possessor’s use of the property must be sufficiently
open and obvious to apprise a true owner who exercises reasonable
diligence that the claimant intends to claim adversely. Schuler, 143
P.3d at 1197.
¶ 25 Finally, for any claim of title by adverse possession vesting on
or after July 1, 2008, an adverse claimant must establish a good
faith belief that he or she (or a predecessor in interest) was the
property’s actual owner, which belief was reasonable under the
circumstances. See People v. Guiterrez-Vite, 2014 COA 159, ¶ 14.
By adding the good faith belief requirement, “the General Assembly
made clear that it did not sanction the acquisition of property
simply through trespass.” People v. Bruno, 2014 COA 158, ¶ 11.4
4 Because neither party raises the good faith issue on appeal, we
need not address whether a putative adverse possessor must have a
good faith belief that they are the property’s actual owner or how
this new provision of the adverse possession statute would affect
Lensky’s future ability to obtain title by adverse possession. See
Kristine S. Cherek, From Trespasser to Homeowner: The Case
Against Adverse Possession in the Post-Crash World, 20 Va. J. Soc.
12
¶ 26 In Spring Valley Estates, our supreme court considered the
question of when remedies become available to an adverse
possessor against a former owner. It held that trespass damages
could only be recovered by an adverse possessor against a former
owner after the eighteen-year statutory period had run. In dictum,
the court discussed the rights of adverse possessors before the
completion of the statutory period:
[A]dverse possession does relate back to the
beginning of possession for some
purposes . . . . In other words, from the
beginning of his possession period, [an]
adverse possessor has an interest in a given
piece of property enforceable against everyone
except the owner or one claiming through the
owner. However, it is not until the adverse
possessor has possessed the land for the
duration of the statutory period that his
interest matures into an absolute fee and his
possessory rights become enforceable against
the former owner as well as third parties.
Spring Valley Estates, 181 Colo. at 437-38, 510 P.2d at 338. This
dictum suggests that a party who has hostile, actual, exclusive, and
Pol’y & L. 271, 317-21 (2012) (discussing changes to Colorado’s
adverse possession statute). We note, however, that the parties
stipulated that Lensky was a putative adverse possessor and that
attorneys are presumed to know the law. See Hinojos-Mendoza v.
People, 169 P.3d 662, 670 (Colo. 2007).
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adverse possession of a piece of property has rights in that property
which are enforceable against everyone but the true owner, even if
the party has possessed the property for less than the statutory
eighteen years. Even so, only at the conclusion of those eighteen
years does the party’s right in the property then become enforceable
against the true owner.
¶ 27 Other jurisdictions that have considered the rights of an
adverse possessor who has not yet acquired title have reached
similar conclusions. Defendants have not cited, nor have we
located any contrary authority.
¶ 28 For example, in Uliasz v. Gillete, 256 N.E.2d 290 (Mass. 1970),
petitioners sought a right of access across property adjacent to
respondents’ land in a residential development. Previously,
respondents had claimed ownership of the property by adverse
possession through the execution of a straw deed; however, the
recorded deed failed to mention adverse possession. Nevertheless,
respondents remained in possession of the property. Petitioners
sought, among other things, a declaration from the court that
respondents had no rights in the property.
14
¶ 29 The Massachusetts Supreme Judicial Court rejected
petitioners’ request, stating, “[t]he respondent, being in possession
of that land, has the right to continue in possession as against any
person except the true owner, or a person having a superior right to
possession.” Id. at 297.
¶ 30 Similarly, in Hallmark v. Baca, 301 P.2d 527 (N.M. 1956), the
plaintiff, a putative adverse possessor of property, sued the
defendant, who had erected a fence on the property and excluded
plaintiff from a portion of it. Neither party claimed an ownership
interest in the property. The issue was “whether the Defendant was
right in ousting the Plaintiff of his possession; or Plaintiff, by virtue
of his prior possession of the property was entitled to continue in
possession of it until the rightful owner would oust him.” Id. at
528. The New Mexico Supreme Court held that “plaintiff is right in
his declaration that he is entitled to hold possession until ousted by
someone showing a better right thereto[.]” Id.
¶ 31 Additionally, in Howard v. Mitchell, 105 S.W.2d 128, 133 (Ky.
Ct. App. 1936), the Kentucky Court of Appeals considered the
inheritance rights of an adverse possessor and concluded that such
rights existed. It described an adverse possessor’s right as
15
“[c]onditional ownership,” “[i]mperfect ownership,” “inchoate title,”
and “[g]rowing title.” Id. (citations omitted). It concluded that the
courts will protect such an adverse possessor “against all the world
except the true owner.” Id.
¶ 32 The Wyoming Supreme Court considered the issue of
possession between an adverse possessor and a purported title
holder and held “[a]s a person in possession the plaintiff was
entitled to bring the action [for quiet title]. The admission of the
defendants [that plaintiffs possessed the disputed property]
constituted a prima facie showing of an interest in the land that
was good against any claimant that could not show a better right.”
Meyer v. Ellis, 411 P.2d 338, 341 (Wyo. 1966) (citation omitted).
¶ 33 Based on the dictum in Spring Valley and the decisions of
other state courts, we conclude that “from the beginning of his
possession period,” a putative adverse possessor has an interest in
the property enforceable against all other parties, except the true
owner. We also conclude that this possessory interest includes the
right to exclude all others from the property except the true owners.
See 3 Am. Jur. 2d Adverse Possession § 232 (2016) (“The
possession of one holding in adverse possession is good as against
16
strangers. … The courts will protect the adverse claimant against all
the world except the true owner.”) (footnote omitted); see also 2
C.J.S. Adverse Possession § 251 (2016) (“During the period of
adverse possession, an adverse claimant has only an inchoate right
which if pursued and protested may ripen into title. However, he or
she has an ownership which the courts will protect against all the
world except the true owner or someone showing a better right.”).
B. Application
¶ 34 With these principles in mind, we review the trial court’s
conclusion that Lensky had no rights in the subject property as a
putative adverse possessor. The parties stipulated that Lensky was
a putative adverse possessor and Lensky’s testimony confirmed his
and Camp D’Orvid’s intent to attempt to gain title to the subject
property through adverse possession. The record shows that
Lensky had continuously possessed the subject property since
acquiring his land from the Valdezes and that he undertook efforts
to exclude others’ access to it by erecting fences, locking gates,
hanging no trespassing signs, and ordering third parties off of the
property.
17
¶ 35 While the trial court correctly concluded that Lensky had no
legal or equitable title to the subject property at the conclusion of
the prior proceeding, neither the trial court’s prior order nor the
division’s decision upholding that order addressed the parties’
possessory rights. Further, neither addressed Lensky’s ongoing
right to possess the subject property or prohibited him from
continuing to attempt to adversely possess the property. Therefore,
because the law of the case from the prior proceeding was irrelevant
to Lensky’s ongoing possessory rights, the trial court erred when it
found that “because Plaintiff has already been determined to not
have any rights in the Subject Property, including any right to
possess the property, he has no rights as a putative adverse
possessor to exclude the Defendants or others from the Subject
Property.” See People v. Dunlap, 975 P.2d 723, 758 (Colo. 1999)
(Under the law of the case doctrine, “prior relevant rulings made in
the same case are to be followed unless such application would
result in error or unless the ruling is no longer sound due to
changed conditions.”) (emphasis added); People ex rel. Gallagher v.
Dist. Court, 666 P.2d 550, 553 (Colo. 1983) (the law of the case
18
doctrine is a discretionary rule of practice directing that prior
relevant rulings in the same case must generally be followed).
¶ 36 Furthermore, Lensky had the right to exclude defendants and
other third parties from the subject property because, as a putative
adverse possessor, he has an interest in the property “enforceable
against everyone except the owner or one claiming through the
owner.” Spring Valley Estates, 181 Colo. at 438, 510 P.2d at 338.
While the defendants argued in the trial court and argue on appeal
that they and other members of the Gardner community had used
the subject property for decades (riding horses, riding ATVs,
children playing, and removing sand) and thus should be allowed to
continue their traditional use of the property, they never claimed
any ownership interest in the property, nor did they assert a right
to a prescriptive easement or any other interest that is superior to
Lensky’s. Indeed, defendants failed to present any evidence at the
hearing of their traditional use of the property that would have
proven the elements of a prescriptive easement, and we will not
consider such an argument now. See Leggett & Platt, Inc. v. Ostrom,
251 P.3d 1135, 1143 (Colo. App. 2010).
19
¶ 37 In sum, Lensky, as a putative adverse possessor, has an
interest in the subject property which is enforceable against
defendants and third parties. This possessory interest gives Lensky
the right to exclude defendants and others from the property,
including locking the gates, erecting fences, and posting no
trespassing signs. Spring Valley Estates, 181 Colo. at 438, 510
P.2d at 338; see also Uliasz, 256 N.E.2d at 290; Hallmark, 301 P.2d
at 528; Howard, 105 S.W.2d at 133. We therefore reverse the trial
court’s order prohibiting Lensky from excluding defendants from
the subject property.
III. Lensky’s Remaining Arguments
¶ 38 Having concluded that the trial court applied the incorrect
legal standard when analyzing Lensky’s rights as a putative adverse
possessor, we need not reach Lensky’s remaining issues. We
therefore decline to address whether the court misapplied C.R.C.P.
105, whether the court should have considered this an ejectment
action, and whether the court misapplied the rulings in the prior
proceeding.
IV. Conclusion
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¶ 39 We reverse the court’s order granting defendants’ motion for
order to vacate.
JUDGE TAUBMAN and JUDGE DAILEY concur.
21