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Lensky v. Didomenico

Court of Appeals of Colorado, First Division

June 16, 2016

Gary Lensky and Camp D'Orvid at Casa Del Arroyo, Plaintiffs-Appellants,
Gery DiDomenico, Carol McDonald, Charles B. Choin, William R. Trujillo, Manual D. J. Archuleta, Maria J. Archuleta, and William L. Trujillo, Defendants-Appellees.

         Huerfano County District Court No. 01CV91 Honorable Claude W. Appel, Judge

          Dennis B. Green, Denver, Colorado, for Plaintiff-Appellant Camp D'Orvid at Casa Del Arroyo (On the Briefs)

          Gary Lensky, Pro Se

          Kettelkamp Young 86 Kettelkamp, P.C., C. Todd Kettelkamp, Pueblo, Colorado, for Defendants-Appellees


          FREYRE JUDGE

         ¶ 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 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.

         ¶ 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]

         ¶ 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.

         ¶ 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.

         ¶ 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 ...

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