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Cordell v. Klingsheim

Court of Appeals of Colorado, Fifth Division

May 31, 2018

Carl A. Cordell and Wanda M. Cordell, Plaintiffs-Appellants,
v.
Bradley Klingsheim, Defendant-Appellee.

          La Plata County District Court No. 12CV47 Honorable Suzanne F. Carlson, Judge

          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.

          OPINION

          WELLING, JUDGE

         ¶ 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 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 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.

         ¶ 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 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 ...


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