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.
County District Court No. 01CV91 Honorable Claude W. Appel,
B. Green, Denver, Colorado, for Plaintiff-Appellant Camp
D'Orvid at Casa Del Arroyo (On the Briefs)
Lensky, Pro Se
Kettelkamp Young 86 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,
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
Relevant Facts and Procedural History
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
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.
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
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,
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 ...