Arapahoe County District Court No. 17CV32137 Honorable John
L. Wheeler, Judge.
Hatch
Ray Olsen Conant, LLC, Robert W. Hatch, II, Christopher J.
Conant, Denver, Colorado, for Plaintiff-Appellant
Sparkmanᚊ LLP, Kieran A. Lasater, Denver, Colorado; Pelz
& Associates, P.C., Harlan P. Pelz, Denver, Colorado, for
Defendant-Appellee
OPINION
GROVE
T JUDGE.
¶
1 Plaintiff-appellant, Actarus, LLC, appeals the district
court's declaration that defendant-appellee, Larnitta
Darlene Johnson, has a statutory right of redemption to the
property for which Actarus holds a treasurer's deed.
Because Johnson was under a legal disability and did not have
a legal guardian when Actarus received a treasurer's deed
for the property from the Arapahoe County Treasurer, we
affirm.
I.
Background
¶
2 Johnson suffers from severe mental illness and has lived in
an assisted care facility since 1997. Her husband, Robert
Johnson, [1]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 treasurer's deed from the
county in August 2017.
¶
3 Robert had not filed his annual guardian's 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
Johnson's status. The first of these was addressed to
Robert, but after an unknown person filed Robert's
certificate of death with the Arapahoe County probate court,
subsequent notices were addressed to the other members of
Johnson's family.
¶
4 No one responded to the delay prevention notices until
February 2013, when Johnson's son Bret, apparently having
learned of at least one of them, mailed a
"Guardian's 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 Johnson's health, activities, finances,
and living conditions.
¶
5 Even though it had received notice that Robert -
Johnson's initial court-appointed guardian - had died,
and notwithstanding Bret's representation in the report
that he was "the new guardian," the probate court
took no action to formally appoint Bret or anyone else as
Johnson's guardian. In fact, the probate court did
nothing for nearly three years, when, in early 2016, it
issued another delay prevention order - this time addressed
to Bret - ordering him to file the guardian's report for
2015 no later than February 4, 2016. Although Bret had never
been formally appointed as Johnson's 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."
¶
6 Bret filed a second guardian's report, again
identifying himself as Johnson's guardian and indicating
a desire to remain guardian. The pattern then repeated itself
the next year. Each of Bret's reports was handwritten on
the standard court-prescribed form, which included a
verification that it was being filed under penalty of
perjury.
¶
7 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 treasurer's deed
to Actarus, which promptly recorded it.
¶
8 After the treasurer's deed was issued, Bret formally
petitioned the probate court to be appointed Johnson's
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 Johnson's
home. Johnson (acting through Bret with the district
court's 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.
¶
9 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
treasurer's deed had been validly issued. The district
court granted the Treasurer's motion but denied summary
judgment for Actarus after concluding that Johnson was under
a legal disability - and was without a guardian - when the
treasurer's deed was issued. As a result, the court
concluded, section 39-12-104 applied to extend Johnson's
redemption period by nine years beyond the date on which
Actarus recorded the treasurer's deed.
¶
10 Actarus appeals the district court's order denying its
motion for summary judgment and declaration that Johnson has
a right of redemption.[2]
II.
Analysis
A.
Standard of Review
¶
11 The district court ruled as a matter of law, basing its
conclusions on its interpretation of the probate and tax
codes. We review de novo questions of statutory
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