[Copyrighted Material Omitted]
Arapahoe County District Court No. 17CV32137, Honorable John
L. Wheeler, Judge
Ray Olsen Conant, LLC, Robert W. Hatch, II, Christopher J.
Conant, Denver, Colorado, for Plaintiff-Appellant
LLP, Kieran A. Lasater, Denver, Colorado; Pelz & Associates,
P.C., Harlan P. Pelz, Denver, Colorado, for
Plaintiff-appellant, Actarus, LLC, appeals the district
courts declaration that defendant-appellee, Larnitta Darlene
Johnson, has a statutory right of redemption to the property
for which Actarus holds a treasurers deed. Because Johnson
was under a legal disability and did not have a legal
guardian when Actarus received a treasurers deed for the
property from the Arapahoe County Treasurer, we affirm.
Johnson suffers from severe mental illness and has lived in
an assisted care facility since 1997. Her husband, Robert
Johnson, served as her court-appointed guardian
until his death in 2012. That same year, Johnson failed to
pay property taxes on a house that she owned. The county
placed a tax lien on the property and then sold it. Actarus
bought the lien from its original buyer and, when the lien
went unredeemed, received a treasurers deed from the county
in August 2017.
Robert had not filed his annual guardians report before his
death, and so, beginning in March 2012, the probate court
issued a series of delay prevention notices requesting
updates on the guardianship as well as on Johnsons status.
The first of these was addressed to Robert, but after an
unknown person filed Roberts certificate of death with the
Arapahoe County probate court, subsequent notices were
addressed to the other members of Johnsons family.
No one responded to the delay prevention notices until
February 2013, when Johnsons son Bret, apparently having
learned of at least one of them, mailed a "Guardians
Report - Adult" to the court. Using a court-approved
form, Bret listed his name and contact information in the
section entitled "guardian information," wrote
"this is the first report for the new guardian,"
and checked a box indicating that he wished to "remain
guardian." He also provided information about Johnsons
health, activities, finances, and living conditions.
Even though it had received notice that Robert —
Johnsons initial court-appointed guardian — had died,
and notwithstanding Brets representation in the report that
he was "the new guardian," the probate court took
no action to formally appoint Bret or anyone else as
Johnsons guardian. In fact, the probate court did nothing
three years, when, in early 2016, it issued another delay
prevention order — this time addressed to Bret —
ordering him to file the guardians report for 2015 no later
than February 4, 2016. Although Bret had never been formally
appointed as Johnsons guardian, the order included a bold
"X" by the stock language, "[t]he Letters of
Guardianship/Conservatorship that authorize you to act will
be suspended if the document(s) remain delinquent."
Bret filed a second guardians report, again identifying
himself as Johnsons guardian and indicating a desire to
remain guardian. The pattern then repeated itself the next
year. Each of Brets reports was handwritten on the standard
court-prescribed form, which included a verification that it
was being filed under penalty of perjury.
Meanwhile, the clock was running on the tax lien that the
Treasurer had sold in 2013. The lien went unredeemed, and, on
August 15, 2017, the Treasurer issued a treasurers deed to
Actarus, which promptly recorded it.
After the treasurers deed was issued, Bret formally
petitioned the probate court to be appointed Johnsons
conservator and for his sister to be appointed guardian.
Actarus then filed this quiet title action seeking a
declaration that it was the sole legal owner of Johnsons
home. Johnson (acting through Bret with the district courts
approval) filed cross-claims against the Treasurer, for
allegedly failing to comply with statutory notice and due
diligence requirements, and counterclaims against Actarus,
asserting that Johnson had a statutory right to redeem her
interest in the property due to her legal disability.
Actarus moved for partial summary judgment, asking the court
to "decree[ ] that Ms. Johnson has no right of
redemption under C.R.S. § 39-12-104[, C.R.S. 2018]." The
Treasurer also moved for summary judgment, arguing that the
undisputed facts established that the treasurers deed had
been validly issued. The district court granted the
Treasurers motion but denied summary judgment for Actarus
after concluding that Johnson was under a legal disability
— and was without a guardian — when the
treasurers deed was issued. As a result, the court
concluded, section 39-12-104 applied to extend Johnsons
redemption period by nine years beyond the date on which
Actarus recorded the treasurers deed.
Actarus appeals the district courts order denying its motion
for summary judgment and declaration that ...