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Cielo Vista Ranch I, LLC v. Alire

Court of Appeals of Colorado, Third Division

November 15, 2018

Cielo Vista Ranch I, LLC; Jaroso Creek Ranch, LLC; and Western Properties Investors, LLC, Defendants-Appellants and Cross-Appellees,
v.
Billy Alire, Willie Alire, Leonides Atencio, Robert Atencio, Frances D. Berggran-Buhrles, Zach Bernal, Jose Fred Carson, Emilio DeHerrera, Juan DeHerrera, Adeline Espinosa, Edward Espinosa, Elmer Manuel Espinoza, Margurito Espinoza, Pete E. Espinoza, Corpus Gallegos, Gloria Gallegos, Jose A. Gallegos, Moises Gallegos, Ruben Gallegos, Rupert Gallegos, Raymond Garcia, Richard J. Garcia, Robert Garcia, Manuel Gardunio, Ruben Herrara, Gilbert G. Herrera, Charlie Jacquez, Jr., J.R. Jaquez, Jeffrey Jaquez, Maria Jaquez, Adelmo Kaber, Juan Lacombe, Adolph J. Lobato, Bonifacio "Bonnie" Lobato, Carlos Lobato, Emilio Lobato, Jr., Eugene Lobato, Henry Lobato, Jose F. Lobato, Pete Lobato, Presesentacion Lobato, Crucito Maes, Bert Maestas, Manuel Maestas, Norman Maestas, Raymond J. Maestas, Robert "Bobby" Maestas, Clorindo Martinez, David Martinez, Eugene Martinez, Hubert J. Martinez, Jesse Martinez, Jesse Martinez, Leonardo Martinez, Rosendo Martinez, Solestiano Martinez, Agatha Medina, Alfonso Medina, Cory Medina, Gilbert Medina, Leonardo Medina, Loyola Medina, Marvin Medina, Orry Medina, Raymond M. Medina, Gilbert "Andres" Montoya, Rudy Montoya, Willie Ray Montoya, Frank Olivas, Gurtrude C. Olivas, Shirley Romero Otero, Eppy Quintana, Apolinar Rael, Henry Rodriguez, Robert Romero, Bentura Roybal, Lucille Samelko, Anthony Sanchez, Bonnie Sanchez, Eugene Sanchez, Evan Sanchez, Frank Sanchez, Gerald Sanchez, James Sanchez, Jose G. Sanchez, Rufino Sanchez, S.R. Sanchez, Vernon Sanchez, Ronald A. Sandoval, Elesam Santistevan, Daniel Segura, Floyd R. Solan, Carolyn Taylor, Jose R. Torres, Arnold Valdez, Sam Valdez, Emejido Vialpando, Lawrence Vialpando, Martha Vialpando, Ervin L. Vigil, Joe P. Vigil, Larry J. Vigil, Manuel Vigil, Michael J. Vigil, Walter Vigil, David Cordova, Jerome Cordova, Matthew Cordova, Rodney Cordova, S. Raymond Cordova, Theresa Cordova, Isidro Gomez, Rosalie Gallegos, Mark Martinez, Daniel Martinez, Mike Martinez, Joseph Medina, Manuel Pacheco, Silas Pacheco, Julian Padilla, and Mary Renden, Plaintiffs-Appellees and Cross-Appellants.

          Costilla County District Court Nos. 81CV5 & 81CV100005 Honorable Gaspar F. Perricone, Judge Honorable Kenneth A. Plotz, Judge.

          Squire Patton Boggs, LLP, Carolyn L. McIntosh, Aaron A. Boschee, Brent R. Owen, Denver, Colorado, for Plaintiffs-Appellees and Cross-Appellants Billy Alire, Willie Alire, Leonides Atencio, Robert Atencio, Frances D. Berggran-Buhrles, Zach Bernal, Jose Fred Carson, Emilio DeHerrera, Juan DeHerrera, Adeline Espinosa, Edward Espinosa, Elmer Manuel Espinoza, Margurito Espinoza, Pete E. Espinoza, Corpus Gallegos, Gloria Gallegos, Jose A. Gallegos, Moises Gallegos, Ruben Gallegos, Rupert Gallegos, Raymond Garcia, Richard J. Garcia, Robert Garcia, Manuel Gardunio, Ruben Herrara, Gilbert G. Herrera, Charlie Jacquez, Jr., J.R. Jaquez, Jeffrey Jaquez, Maria Jaquez, Adelmo Kaber, Juan Lacombe, Adolph J. Lobato, Bonifacio "Bonnie" Lobato, Carlos Lobato, Emilio Lobato, Jr., Eugene Lobato, Henry Lobato, Jose F. Lobato, Pete Lobato, Presesentacion Lobato, Crucito Maes, Bert Maestas, Manuel Maestas, Norman Maestas, Raymond J. Maestas, Robert "Bobby" Maestas, Clorindo Martinez, David Martinez, Eugene Martinez, Hubert J. Martinez, Jesse Martinez, Jesse Martinez, Leonardo Martinez, Rosendo Martinez, Solestiano Martinez, Agatha Medina, Alfonso Medina, Cory Medina, Gilbert Medina, Leonardo Medina, Loyola Medina, Marvin Medina, Orry Medina, Raymond M. Medina, Gilbert "Andres" Montoya, Rudy Montoya, Willie Ray Montoya, Frank Olivas, Gurtrude C. Olivas, Shirley Romero Otero, Eppy Quintana, Apolinar Rael, Henry Rodriguez, Robert Romero, Bentura Roybal, Lucille Samelko, Anthony Sanchez, Bonnie Sanchez, Eugene Sanchez, Evan Sanchez, Frank Sanchez, Gerald Sanchez, James Sanchez, Jose G. Sanchez, Rufino Sanchez, S.R. Sanchez, Vernon Sanchez, Ronald A. Sandoval, Elesam Santistevan, Daniel Segura, Floyd R. Solan, Carolyn Taylor, Jose R. Torres, Arnold Valdez, Sam Valdez, Emejido Vialpando, Lawrence Vialpando, Martha Vialpando, Ervin L. Vigil, Joe P. Vigil, Larry J. Vigil, Manuel Vigil, Michael J. Vigil, and Walter Vigil

          Polsinelli, PC, Bennett L. Cohen, Denver, Colorado, for Plaintiffs-Appellees and Cross-Appellants David Cordova, Jerome Cordova, Matthew Cordova, Rodney Cordova, S. Raymond Cordova, Theresa Cordova, Isidro Gomez, Rosalie Gallegos, Mark Martinez, Daniel Martinez, Mike Martinez, Joseph Medina, Manuel Pacheco, Silas Pacheco, Julian Padilla, and Mary Renden

          Spencer Fane LLP, Ronald L. Fano, Jamie N. Cotter, Denver, Colorado, for Defendant-Appellant and Cross-Appellee Cielo Vista Ranch I, LLC

          Dill, Dill, Carr, Stonbraker & Hutchings, P.C., John J. Coates, Denver, Colorado, for Defendants-Appellants and Cross-Appellees Jaroso Creek Ranch, LLC, and Western Properties Investors, LLC

          Butler Snow, LLP, Martina Hinojosa, Denver, Colorado, for Amicus Curiae

          OPINION

          WELLING JUDGE.

         ¶ 1 The origins of this case predate Colorado's statehood, and along the way the parties have endured a long and circuitous road, which has included three prior visits to this court and three supreme court opinions. This appeal concerns the remand proceedings conducted pursuant to the supreme court's two most recent decisions in this case: Lobato v. Taylor, 71 P.3d 938 (Colo. 2002) (Lobato I), and Lobato v. Taylor, 70 P.3d 1152 (Colo. 2003), as modified on denial of reh'g (June 16, 2003) (Lobato II). These remand proceedings were initiated fourteen years ago, in 2004, and remained active until this appeal.

         ¶ 2 Appellants are CVR Properties, Ltd., Jaroso Creek Ranch, LLC, and Western Properties Investors LLC, the owners of Cielo Vista Ranch and other properties that were once known as the Taylor Ranch (the Ranch). (We will refer to appellants collectively as Ranch Owner.) Ranch Owner challenges the trial court's implementation of the supreme court's mandate on remand. Appellees are landowners in Costilla County whose rights to access the Ranch to graze livestock and gather firewood and timber were decreed through the remand proceedings. Landowners have also cross-appealed, challenging certain proceedings on remand as contrary to the mandate.

         ¶ 3 In Lobato I and Lobato II, the supreme court held that Costilla County landowners whose land was settled as of 1869 were entitled to access the Ranch for grazing and to take firewood and timber.[1]See Lobato I, 71 P.3d at 956; Lobato II, 70 P.3d at 1167. Carlos Beaubien had recruited frontier families to settle in the area in the 1850s and induced settlement by granting settlers the right to access and use the Ranch for grazing, firewood, and timber. This grant was memorialized in a Spanish language document - the Beaubien Document - that was executed and recorded by Beaubien in 1863. The supreme court held that Beaubien had granted permanent access rights that run with the land. Lobato I, 71 P.3d at 948-50. When it remanded the case after Lobato II, the supreme court "direct[ed] the trial court to identify all landowners who have access rights to the [Ranch] and to enter all necessary and appropriate orders to safeguard those rights." Lobato II, 70 P.3d at 1156.

         ¶ 4 To the extent the issues on appeal challenge the trial court's implementation of the supreme court's mandate, our role is limited to reviewing the trial court's compliance with the mandate. We are not free to disregard or modify the supreme court's mandate. Simply put, we have no more latitude than the trial court to rewrite or second-guess the mandate. Only the supreme court is free to modify its mandate. To the extent either party invites us to do so, we must decline.

         ¶ 5 On appeal, Ranch Owner contends that the proceedings on remand from 2004 through 2010, when the trial court identified most of the landowners with access rights to the Ranch, violated the mandate. Ranch Owner raises several contentions of error. Ranch Owner's central contention is that the trial court's "opt-out" process, pursuant to which it decreed access rights for individual Costilla County landowners even if they had not come forward to make a claim, improperly relieved these landowners of their burden of proof.

         ¶ 6 On cross-appeal, landowners contend that the trial court violated the mandate when, in 2010, it switched to an "opt-in" process to identify any remaining Costilla County landowners with access rights. They contend that this opt-in process, implemented from 2010 through 2016, failed to comprehensively identify all Costilla County landowners with access rights, as required by the mandate.

         ¶ 7 For the reasons set forth in this opinion, we conclude that the opt-out proceedings on remand from 2004 through 2010 were largely consistent with Lobato II's mandate. But we also conclude that the opt-in process implemented from 2010 through 2016 failed to discharge the mandate because that portion of the identification process also could have been comprehensive, but was not.

         ¶ 8 During the opt-out proceedings from 2004 through 2010, the trial court identified benefited landowners based on an official 1894 Costilla County land survey, which the supreme court described as "the best [available] evidence of benefited properties conveyed by Beaubien." Lobato II, 70 P.3d at 1159 n.6. We refer to the 1894 survey as "Map A and Book E" because of its location in the Costilla County records. Map A demarcates the boundaries and locations of the original vara strip tracts[2] conveyed by Beaubien to settlers, while Book E describes each tract shown on Map A and identifies the settler to whom Beaubien originally conveyed the tract.[3] Based on footnote six from Lobato II and the absence of contrary evidence, the trial court presumed that all Map A and Book E lands were settled as of 1869, which entitled their present-day owners to access the Ranch.

         ¶ 9 For the duration of the opt-out process, the trial court worked backward from Map A and Book E to identify benefited Costilla County landowners and adjudicate their rights. It appointed the owner of the San Luis Valley Title Company to identify the present-day owners of the lands shown on Map A. After these benefited landowners were identified, Ranch Owner could assert res judicata as an affirmative defense to bar the claims of any individual landowners.[4] Once the trial court determined that a benefited landowner was not subject to res judicata, it notified that landowner of his or her right to access the Ranch for reasonable grazing of livestock and to gather timber and firewood for household use. Any landowner whom the trial court found to be barred by res judicata was notified and given an opportunity for a hearing. Landowners were not otherwise required to come forward in order to assert individual claims as a condition of the trial court adjudicating their rights. Around 4500 Costilla County landowners gained access rights to the Ranch through the proceedings from 2004 through 2010, which we refer to as the opt-out process.

         ¶ 10 In 2010, once the trial court had identified and adjudicated the rights of most present-day owners of the lands in Map A and Book E, it implemented a new process under which any remaining landowners with access rights were required to come forward and assert a claim before the trial court would adjudicate their rights. Because this process required landowners to affirmatively come forward to have their rights adjudicated, we refer to the proceedings from 2010 through 2016 as the opt-in process. Approximately 350 more Costilla County landowners gained access rights to the Ranch during this time.

         ¶ 11 We conclude that the opt-out process implemented from 2004 through 2010 produced an efficient and comprehensive result with respect to the Map A portion of Costilla County. In our view, the opt-out process was consistent with the supreme court's mandate to identify all benefited landowners on remand.

         ¶ 12 In contrast, however, we conclude that the opt-in process implemented from 2010 through 2016 did not fully comport with the mandate because the trial court, pursuant to that process, failed to comprehensively and conclusively adjudicate the access rights of landowners in the remainder of Costilla County, even though it could have done so while remaining faithful to the mandate.

         ¶ 13 During this second phase of the proceedings on remand, the trial court could have identified all remaining Costilla County landowners with access rights by using a combination of the same general opt-out process used from 2004 through 2010, in addition to a modified opt-in process. Although Map A and Book E had been exhausted as a reference for identifying benefited lands, landowners presented undisputed evidence showing that other lands - lands outside of Map A - were timely settled. Because the trial court never attempted to identify all present-day owners of these undisputedly timely settled lands, instead adjudicating the rights of only those landowners who came forward to assert claims, we conclude that it failed to discharge its mandate. We, therefore, reverse the trial court's October 2016 order to the extent it requires any remaining landowners entitled to access the Ranch to come forward, and remand the case to the trial court with instructions to identify all remaining owners of benefited lands in Costilla County and adjudicate their rights. In all other respects, we affirm the trial court's orders that are challenged on appeal.

         I. Background

         ¶ 14 A detailed recitation of the historical events underlying this case was provided by the supreme court in Lobato I, see 71 P.3d at 942-45, and Lobato II, see 70 P.3d at 1155-57. We will not repeat it here. Instead, we limit our background section to the facts necessary to understand the issues presented by this appeal.

         ¶ 15 The relevant case history begins in 1960, when Jack Taylor purchased the vast majority of the land that now constitutes the Ranch. Taylor purchased the land with notice of landowners' existing use of the Ranch; his deed provided that he took the land subject to "claims of the local people by prescription or otherwise to right to pasture, wood, and lumber . . . upon said land." Nevertheless, he soon fenced the property and barred landowners' entry. In 1960, Taylor also filed a Torrens action in federal district court in Denver.[5] In his Torrens action, Taylor sought to perfect his title and extinguish the landowners' access claims. But Taylor personally served only a small fraction of Costilla County landowners with notice of his Torrens action, with the majority of landowners receiving notice only by publication. The district court ruled that landowners had no rights to the Ranch, and the Tenth Circuit Court of Appeals affirmed. See Sanchez v. Taylor, 377 F.2d 733 (10th Cir. 1967).

         ¶ 16 In 1973, Taylor purchased an adjoining, 2500-acre parcel of land known as the Salazar estate. The Salazar estate was also part of the original Sangre de Cristo grant that was once owned by Beaubien. Taylor's predecessor in title to the Salazar estate had also filed a Torrens title action in 1960, which similarly determined that Costilla County landowners had no rights to access the estate. We will refer to Taylor's 1960 Torrens action and the 1960 Salazar Torrens action together as the 1960 Torrens actions.

         ¶ 17 In 1981, a number of Costilla County landowners filed this action in Colorado state court, asserting that Taylor's actions to bar their entry violated their rights to access the Ranch. The district court held that the doctrine of res judicata barred the suit because the Salazar Torrens action and the Sanchez decision were binding upon them. A division of this court affirmed. Rael v. Taylor, 832 P.2d 1011, 1014 (Colo.App. 1991). The supreme court then granted certiorari and reversed in part and remanded, questioning the constitutional adequacy of the publication notice in the 1960 Torrens actions. Rael v. Taylor, 876 P.2d 1210, 1228 (Colo. 1994). The supreme court directed the trial court to determine which landowner plaintiffs had received adequate notice in the 1960 Torrens actions, and to hold a trial on the merits.

         ¶ 18 The trial court, on remand, dismissed all but ten landowner plaintiffs as barred by res judicata and denied class certification. It then held a trial on the merits and determined that the remaining landowners had not proved prescriptive rights to the Ranch because their use was not adverse. The trial court also denied landowners' claims based on the Beaubien Document and implied rights doctrines. A division of this court affirmed. Lobato v. Taylor, 13 P.3d 821 (Colo.App. 2000). Landowners appealed, and the supreme court granted certiorari in Lobato I.

         A. Lobato I

         ¶ 19 In Lobato I, the supreme court reversed the court of appeals and held that the original settlers of Beaubien's grant and their successors in title had implied rights of access to the Taylor Ranch for reasonable grazing, firewood, and timber. 71 P.3d at 957. The supreme court excluded hunting, fishing, and recreation from the scope of the landowners' rights. Id. It defined the Taylor Ranch as including two parcels of land: the 77, 000-acre mountain tract and the 2500-acre Salazar estate. Id. at 943-44.

         ¶ 20 After deciding Lobato I, the supreme court retained jurisdiction and directed the parties to brief due process and res judicata issues left unresolved by the supreme court's Lobato I opinion. Id.

         B. Lobato II

         ¶ 21 The supreme court decided the remaining issues in Lobato II, where it held that landowners who were successors to the original settlers of the land grant had reasonable access rights to the Taylor Ranch. 70 P.3d at 1167. The supreme court also held that Taylor had not satisfied due process when he served landowners with notice by publication in his 1960 Torrens action, but that res judicata barred claims by landowners and their successors who were "personally named and served" in the Torrens action. Id. at 1166-67.

         ¶ 22 With those remaining issues resolved, the supreme court remanded the case for the trial court to "identify all landowners who have access rights to the Taylor Ranch and to enter all necessary and appropriate orders to safeguard these rights." Id. at 1167-68.

         C. Remand Process Following Lobato II

         ¶ 23 Early in the remand proceedings, the trial court articulated its understanding of the supreme court's mandate. It explained that, pursuant to Lobato II, it was "responsible for identifying the current landowners who have access rights to the former Taylor Ranch." The trial court described this process as an "administrative task" that should be completed "as quickly as possible." It acknowledged that "other contested issues" would arise during the identification process but advised the parties that any such issues "should be litigated after the major portion of the identification process is completed."

         ¶ 24 Before the identification process began, the trial court granted access rights to the nine landowners who the supreme court held had proved their claims by tracing their titles to the time of Gilpin.[6] See Lobato II, 70 P.3d at 1159 n.5. The trial court ordered that these landowners were not restricted as to whom they were allowed to bring onto the Ranch to assist in the exercise of their rights, but it advised Ranch Owner that it "may subsequently present matters to the Court" if landowners "are abusing the land or their rights."

         ¶ 25 In January 2004, before the trial court had decided how to proceed, Ranch Owner proposed a plan to personally serve all Costilla County landowners with notice of the proceedings and require them to come forward and make a claim to access the Ranch or be forever barred from asserting an access claim. The trial court rejected Ranch Owner's proposal, observing that "[t]here are presently over 31, 000 individual landowners" in Costilla County and that joinder of each individual landowner to the action would be "totally impractical." Additionally, the trial court expressed concern that personal service on all Costilla County landowners would not be sufficient to ensure the participation of all benefited landowners because many landowners would likely misapprehend the notices and believe that their rights had been adjudicated.

         ¶ 26 Rather than require each individual landowner to come forward to make a claim, the trial court decided to adjudicate landowners' rights by relying on the best available evidence of timely settlement - namely, Map A and Book E. The trial court then certified a class comprised of "all Costilla County landowners with use rights claims."[7] Finding that "this case represents a unique situation in which the conventional requirements of a class action have been determined" by the supreme court and that joinder of all 31, 000 landowners in Costilla County would be impractical, the trial court ruled that class certification was both necessary and authorized under C.R.C.P. 23.

         ¶ 27 Next, the trial court laid out a two-phase process to identify and adjudicate the rights of benefited landowners.

         ¶ 28 First, the trial court would identify all present-day owners of the lands shown on Map A. For that purpose, the trial court appointed David Duncan, the owner of San Luis Valley Title Company, as "an abstractor to advise the Court by written report of those present-day landowners in Costilla County who are successors in title to the original settlers of the Beaubien grant."[8]This was the opt-out process.

         ¶ 29 Second, once the identification process based on Map A and Book E was completed "to the Court's satisfaction," the trial court advised that it would "adopt other procedures to notify, locate, and adjudicate the rights of other present landowners who claim access" to the Ranch. This became the opt-in process.

         ¶ 30 Both the opt-out and opt-in processes included a res judicata component. Where Ranch Owner presented evidence sufficient to show that any individual landowner or a predecessor in interest was personally served in Taylor's 1960 Torrens action or the 1960 Salazar Torrens action, the trial court barred his or her access claim pursuant to res judicata. Depending on whether the evidence showed that the landowner was personally served in Taylor's 1960 Torrens action, the 1960 Salazar Torrens action, or both, the trial court barred that landowner's claim to the mountain tract, the Salazar estate portion of the Ranch, or both.

         1. The Opt-Out Process: 2004-2010

         ¶ 31 The title company submitted its initial report to the trial court in September 2004 (the 2004 Duncan Report). The report identified sixteen separate tracts of land from Map A. For each tract, the report cited to the page number within Book E where the tract was located and identified to whom Charles Beaubien made the original conveyance, the 1960 owner, [9] and the present-day owner.

         ¶ 32 In March 2005, the trial court decreed access rights for the owners of the tracts identified in the 2004 Duncan Report. In the order granting access rights, the trial court found that the information contained in the 2004 Duncan Report, considered along with the statements of the title company owner describing "the use of Map A and Book E together with the book and page number of each transaction," established by a preponderance of the evidence that "the information contained therein is true." The trial court also found that "no objection has been raised to the accuracy of or the factual information in the" 2004 Duncan Report.

         ¶ 33 The trial court then found that "all tracts identified in the Duncan Report of September 30, 2004 were timely settled," explaining that "[t]he report identifies each tract examined as one deeded by Carlos Beaubien to a first settler during Beaubien's lifetime and that such determination is sufficient to establish the issue of timely settlement. The [Ranch Owner] Defendants have presented no competent evidence to the contrary." Later in the remand proceedings, Ranch Owner stipulated to the timely settlement of all Map A lands.

         ¶ 34 In addition to finding that these tracts were timely settled, the trial court found that the 2004 Duncan Report "establishes the conclusive identity of the current owners," and that Ranch Owner "presented no competent evidence to the contrary." The trial court concluded, therefore, that the landowners identified in the 2004 Duncan Report had access rights to the Ranch, subject to the res judicata bar.

         ¶ 35 It then turned to the res judicata bar. The trial court found that, because "[r]es judicata in this case is a limitation upon a person otherwise entitled to the right of access," the bar "must be total and complete to be effective."[10] For example, the trial court explained, "a successor in title is not barred by the doctrine of Res Judicata who receives title through the barred co-owner and a co-owner who is not barred." The trial court also considered Ranch Owner's offer of proof, which included evidence of the returns of service in the 1960 Torrens actions. ¶ 36 The trial court then determined, on a tract-by-tract basis, whether any of the tracts listed in the 2004 Duncan Report were subject to the res judicata bar. After making findings about each tract, the trial court concluded that all such tracts that were not subject to the bar were entitled to access the Ranch "to graze animals, gather firewood, and remove timber."

         ¶ 37 From 2005 to 2010, the title company periodically issued new reports identifying separate Map A tracts and the present and 1960 owners of each tract. In 2006, the title company's reports revealed that certain portions of the Ranch were comprised of original vara strip lands that were once benefited by Beaubien's grant.

         ¶ 38 The trial court decreed access rights for the landowners identified in the Duncan Reports whose claims were not barred by res judicata. When the court determined that a landowner was barred by res judicata, that landowner was notified and offered a hearing. Through this initial phase of the identification process, the trial court identified all present-day owners of land within Map A. Altogether, this process resulted in access rights being decreed for 4500 landowners and 6000 parcels.[11]

         ¶ 39 The opt-out process reached substantial completion by 2010.[12]With the opt-out process nearing completion and upon finding no just reason to further delay entry of a final judgment, the trial court certified its orders on remand as final under C.R.C.P. 54(b). Ranch Owner appealed the judgment. Landowners cross-appealed. But a division of this court dismissed the appeal without prejudice as premature, concluding that the trial court had not, in fact, entered a final appealable judgment. See Lobato v. CVR Props., Ltd., (Colo.App. No. 09CA1822, Feb. 4, 2010) (unpublished order).

         2. The Opt-In Process: 2010-2016

         ¶ 40 In 2010, having exhausted the identification based on Map A and Book E, the trial court initiated a new identification process, the opt-in process.[13]

         ¶ 41 The trial court initiated the opt-in process by sending notices by mail to all landowners in the southern portion of Costilla County[14] advising them of their right to participate in the opt-in identification process. Ranch Owner did not renew its proposal to personally serve all Costilla County landowners.[15] Each notice advised that the landowner must respond within 120 days to participate in the opt-in process, but stated that "[l]andowners will not lose their opportunity to establish access rights if they choose not to participate in the identification process." Altogether, approximately 23, 000 advisory notices were mailed; roughly 1200 landowners came forward to make claims, and the trial court granted access rights to around 350 additional parcels.

         ¶ 42 In January 2015, landowners and Ranch Owner entered into a joint stipulation "to delineate certain geographic areas within Costilla County that were settled by January 1869." The parties stipulated that "landowners in Costilla County who are able to trace the settlement of their property to the Time of Gilpin, defined as January 1869 . . . are entitled to all appurtenant easement rights delineated by the Court in Lobato II." The parties further stipulated that all lands delineated in the map attached to the stipulation - areas termed the "Stipulated Settled Lands" - were settled no later than January 1869. The Stipulated Settled Lands encompassed all of the Map A and Book E land, plus the towns that were named in the Beaubien Document and lands that were within the other settlements to which Ranch Owner previously stipulated. The stipulation provided that "landowners may obtain Easement Rights for their property by showing, through the best available evidence, that their property is situated within the Stipulated Settled Lands."

         ¶ 43 In 2016, after the trial court adjudicated the claims of those landowners who responded to the 2010 advisory notices, Ranch Owner moved to serve any unidentified or nonresponding claimants with notice through publication. The trial court denied Ranch Owner's motion, concluding that service by publication would violate the supreme court's mandate by extinguishing the rights of any landowners who did not then come forward, without any attempt to personally serve them. The trial court concluded that "pragmatic finality" was achievable for purposes of Rule 54(b) without service by publication and certified its orders as final for appeal. The trial court reiterated that landowners whose rights had not been adjudicated were not foreclosed from asserting a claim in the future.

         ¶ 44 This appeal and cross-appeal followed.

         II. Analysis

         ¶ 45 Ranch Owner presents six claims on appeal, contending that (1) the trial court's opt-out identification process on remand violated the supreme court's mandate; (2) the trial court improperly decreed access rights to the Salazar estate portion of the Ranch through the same process used for the mountain tract portion of the Ranch; (3) the trial court erred in limiting the res judicata bar to landowners "personally named and served" in the 1960 Torrens actions, ignoring well-settled Colorado law concerning co-owners and successors; (4) the trial court improperly deprived Ranch Owner of the finality required in a quiet title action pursuant to C.R.C.P. 105 by denying Ranch Owner's request for service by publication at the conclusion of the opt-in process; (5) the trial court improperly refused to apportion landowners' access rights in proportion to their parcel sizes or implement rules and regulations governing their use to avoid harm to the Ranch; and (6) the trial court improperly refused to bar landowners from exercising access rights on portions of the present-day Ranch that were once part of the dominant estate and, therefore, not subject to the access rights.

         ¶ 46 Landowners cross-appeal, contending that the trial court's opt-in identification process implemented in 2010 violated the supreme court's mandate.

         ¶ 47 Before we discuss each issue raised by the parties, we first address whether the trial court properly certified its orders as a final judgment for appeal pursuant to Rule 54(b), as a jurisdictional requirement.

         A. Finality of the Trial Court's Judgment for Appeal

         ¶ 48 Ranch Owner and landowners contend that the trial court's final judgment is sufficiently final pursuant to Rule 54(b) to confer jurisdiction over the appeal and cross-appeal. For the reasons set forth below, we agree.

         1. Additional Background

         ¶ 49 In October 2016, as described in Part I.C, supra, the trial court issued a final order that certified all prior orders adjudicating access rights for landowners as final and appealable pursuant to Rule 54(b). The trial court acknowledged that "there may be additional landowners whose property has access rights that have not yet been adjudicated," but concluded that it had carried out its mandate "as completely as is reasonably possible" and "reached pragmatic finality." The trial court also noted that "the identification process has taken over a decade," and that no new landowner claimants had come forward in the past eight months. It reasoned that the remand proceedings "at some point must be considered final" for appeal, even though any remaining landowner claimants were not foreclosed from coming forward in the future.

         ¶ 50 In June 2017, this court ordered the parties to show cause as to why Ranch Owner's appeal and landowners' cross-appeal should not be dismissed for lack of jurisdiction. In the show cause order, we noted that the trial court's October 2016 order "does not contain an express determination that there is no just reason for delay and . . . express direction for the entry of judgment," as Rule 54(b) requires for an order to be certified as final and appealable.

         2. Rule 54(b)

         ¶ 51 When an action involves multiple parties or multiple claims for relief, Rule 54(b) permits a court to direct entry of a final judgment as to fewer than all claims or parties. Rule 54(b) creates an exception to the general rule that an entire case must be resolved by a final judgment before an appeal is brought. Grear v. Mulvihill, 207 P.3d 918, 921 (Colo.App. 2009). Rule 54(b) provides that the court may direct the entry of a final judgment as to fewer than all claims or parties "only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment."

         ¶ 52 Where multiple parties are involved, a certification under Rule 54(b) is proper when (1) the decision certified is final in the sense of being an ultimate disposition of an individual claim and (2) the trial court determines that there is no just reason for delay in entry of a final judgment on the claim. See Harding Glass Co. v. Jones, 640 P.2d 1123, 1125 (Colo. 1982) (describing a three-step process to determine whether Rule 54(b) certification is proper); see also Lytle v. Kite, 728 P.2d 305, 308 (Colo. 1986) ("[T]he first prong of the Harding Glass requirements does not apply to a certified decision involving multiple parties.").

         ¶ 53 Our jurisdiction to entertain an appeal of a decision certified under Rule 54(b) depends upon the correctness of the certification. Carothers v. Archuleta Cty. Sheriff, 159 P.3d 647, 651 (Colo.App. 2006). We review de ...


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