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Actarus, LLC v. Johnson

Court of Appeals of Colorado, First Division

August 1, 2019

ACTARUS, LLC, Plaintiff-Appellant,
Larnitta Darlene JOHNSON, BY AND THROUGH Bret JOHNSON, as next friend, Defendant-Appellee.

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[Copyrighted Material Omitted]

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          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


         GROVE, 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

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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 ...

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