Lensky v. DiDomenico

COLORADO COURT OF APPEALS 2016COA89

Court of Appeals No. 14CA0529
Huerfano County District Court No. 01CV91
Honorable Claude W. Appel, Judge

Gary Lensky and Camp D’Orvid at Casa Del Arroyo,

Plaintiffs-Appellants,

v.

Gery DiDomenico, Carol McDonald, Charles B. Choin, William R. Trujillo,
Manual D. J. Archuleta, Maria J. Archuleta, and William L. Trujillo,

Defendants-Appellees.

ORDER REVERSED

Division I
Opinion by JUDGE FREYRE
Taubman and Dailey, JJ., concur

Announced June 16, 2016

Dennis B. Green, Denver, Colorado, for Plaintiff-Appellant Camp D’Orvid at
Casa Del Arroyo (On the Briefs)

Gary Lensky, Pro Se

Kettelkamp Young & Kettelkamp, P.C., C. Todd Kettelkamp, Pueblo, Colorado,
for Defendants-Appellees
¶1 In this proceeding for use of a parcel of land, involving

plaintiffs Gary Lensky and Camp D’Orvid at Casa Del Arroyo, and

defendants, neighboring property owners,1 we are asked to decide

whether a putative adverse possessor, who lacks a legal claim to

title in property, nevertheless has an interest in the property

enforceable against everyone except the rightful owner. This is a

novel question in Colorado. We conclude that a putative adverse

possessor does have such an interest, and we reverse the trial

court’s order concluding otherwise.

I. Relevant Facts and Procedural History

A. Prior Proceeding

¶2 In 1998, Lensky purchased a one-acre parcel of property in

Gardner, Colorado, from Martha and Louis Valdez (the Valdezes).

Title insurance could not be provided because of “title problems.”

Lensky eventually learned the nature of the title problems — all of

1 Gery DiDomenico, Carol McDonald, Charles B. Choin, William R.
Trujillo, Manual D. J. Archuleta, Maria J. Archuleta, and William L.
Trujillo. The notice of appeal names Agnes F. Quillian and the heirs
of the estate of Agnes F. Quillian as defendants; however, the briefs
do not and, thus, we do not include them in our caption.

1
 the structures and improvements that he had purchased from the

Valdezes were “off the deed” and actually located on adjacent land

rather than on the deeded property. The adjacent land totaled

approximately twenty-three acres.

¶3 Lensky undertook to identify the last record owner of the

adjacent property. Initially, he was advised by Huerfano County

officials that the property had been “off the tax rolls” for seventy-two

years and was referred to as “no man’s land” because the record

owner “could not be traced.” Lensky claimed, however, that after

“extensive research,” he “traced” the adjacent property to a 1908

deed from Fred Griffith to Agnes F. Quillian, who “had been

deceased for over 80 years.” In 2000, Lensky paid the back taxes to

1994 on approximately seventeen acres of that property.

¶4 In October 2001, Lensky filed a quiet title action under

C.R.C.P. 105 (complaint). He claimed fee simple ownership to the

approximately twenty-three acres adjacent to the property he had

purchased from the Valdezes by adverse possession for at least

eighteen years, pursuant to section 38-41-101, C.R.S. 2015, and by

adverse possession under color of title, pursuant to section

38-41-108, C.R.S. 2015.

2
¶5 When Lensky filed the complaint, defendants or their

predecessors in interest were the record owners of certain parcels of

land located within the quiet title property. Defendants’ interests

were also apparent by their actual use of portions of the adjacent

property. Indeed, Lensky had observed people using the adjacent

property for a variety of purposes, such as riding ATVs, discarding

garbage, and drinking. The complaint, however, only named Agnes

F. Quillian and “all unknown persons who claim an interest in the

subject matter of this action” as defendants.

¶6 Lensky filed a verified motion for service by publication under

C.R.C.P. 4(g), stating that the defendants to be served by

publication “are unknown persons, who cannot be served by

personal service in the State of Colorado.” The motion identified the

addresses, or last known address of “Agnes Quillian” as “General

Delivery, Gardner, CO 81040.” Based on Lensky’s representations,

the trial court granted the motion for service by publication.2

2John and Marie Castro (the Castros) filed an answer, denying
Lensky’s right to quiet title to a portion of the property that was the
subject property in a related quiet title action brought by the
Castros against him in Huerfano County, case number 02CV38.
Lensky and the Castros stipulated that the property described in

3
¶7 On October 30, 2002, the trial court entered a default decree

quieting title to the adjacent property in Lensky, less the small

parcel awarded to the Castros. When the default decree was

entered, defendants each held an interest in portions of the

property described in the decree.

¶8 On October 23, 2007, Lensky conveyed a portion of the

subject property to Camp D’Orvid at Casa Del Arroyo, a section

501(c)(3) religious organization. Hereafter, unless the context

indicates otherwise, we refer to Lensky and Camp D’Orvid at Casa

Del Arroyo as “Lensky.”

¶9 In February 2009, defendants filed a C.R.C.P. 60(b)(3) motion

to vacate the order for service by publication and the subsequent

decree quieting title. Defendants argued that they were entitled to

personal service of the complaint based on their ownership claims

to portions of the quiet title property, and, thus, the order for

publication was void.

case number 02CV38 would be excluded from Lensky’s quiet title
action, and the trial court quieted title to a portion of the property
in the Castros.

4
¶ 10 The court granted defendants’ C.R.C.P. 60(b)(3) motion and

vacated the order for publication and the default decree. It found

that Lensky had misrepresented or “withheld material information”

from the court in the verified motion for service by publication.

Because defendants were omitted as named defendants in the quiet

title action “even though their interest and identity could have

easily been ascertained had plaintiff exercised the requisite due

diligence,” and because defendants were not personally served a

summons and petition for quiet title, they were not bound by the

decree and could “attack the same.”

¶ 11 After the court denied Lensky’s motion to amend the findings

and judgment, Lensky filed an amended C.R.C.P. 105 complaint

naming defendants as parties and requesting that their “property be

excluded from his request for a quiet title decree.” Defendants filed

a motion to dismiss the amended complaint or a motion for

summary judgment. The trial court granted the motion for

summary judgment and dismissed Lensky’s amended complaint,

finding that there were no facts to support Lensky’s claim for

adverse possession based on section 38-41-108, section 34-41-109,

C.R.S. 2015, or tacking.

5
¶ 12 Lensky appealed the trial court’s C.R.C.P. 60(b)(3) order

granting summary judgment. Simultaneously, defendants filed a

motion for order to vacate which the trial court stayed pending the

appeal.

¶ 13 A division of this court affirmed the trial court’s judgment and

orders in an unpublished opinion. See Lensky v. DiDomenico, (Colo.

App. No. 10CA2076, Mar. 22, 2012) (not published pursuant to

C.A.R. 35(f)). It concluded that defendants should have been

named as parties in the quiet title action, defendants should have

been personally served, and Lensky’s omissions and

misrepresentations in the verified motion for publication rendered

the service by publication void. Because the order for publication

and the default decree subsequently entered were void, the division

affirmed the court’s order granting defendants’ C.R.C.P. 60(b)(3)

motion.

¶ 14 The division also affirmed the trial court’s summary judgment

dismissing Lensky’s claim of adverse possession based on tacking.

It found Lensky’s claim that the Valdezes had abandoned the

property to be inconsistent with his claim that he and the Valdezes

had occupied the property for the requisite eighteen years based on

6
 tacking. Moreover, it agreed with the trial court that Lensky had

failed to present any evidence that the Valdezes owned or possessed

the adjacent property, including the abandoned structures.

B. Current Proceeding

¶ 15 While the case was on appeal, Lensky continued to occupy the

subject property.3 He renovated old structures, erected new

structures, erected fences, hung no trespassing signs, and placed

locks on existing gates. After the mandate was issued, the trial

court lifted the stay on defendants’ motion for an order to vacate.

That motion requested “additional orders” under C.R.C.P. 105(a) to

remove Lensky from the subject property, to restrain Lensky from

interfering with defendants’ use of the subject property, and to

require Lensky to remove all signs, barriers, and locked gates which

restricted defendants’ access to the subject property.

¶ 16 The trial court held a hearing on defendants’ motion. Before

the hearing, the parties stipulated that Lensky was a “putative

adverse possessor,” i.e., that Lensky was reputed or believed by

3 This includes the property adjacent to Lensky’s property,
excluding the land owned by the defendants that was identified in
the prior proceeding.

7
 most people to be one attempting to adversely possess the subject

property. Black’s Law Dictionary 1432 (10th ed. 2014). Defendants

acknowledged that they had no title to the subject property and

modified their request for relief. Instead of asking the trial court to

order Lensky’s removal from the property, they requested

unrestricted access to and use of it. Defendants argued that

because Lensky had been found to have no legal or equitable claim

to the subject property, he had no right to restrict their access to it.

They asked the court to issue an order preventing Lensky from

interfering with others’ use of the property.

¶ 17 Relying on Spring Valley Estates, Inc. v. Cunningham, 181

Colo. 435, 510 P.2d 336 (1973), Lensky responded that, as a

putative adverse possessor, he had an interest in the subject

property enforceable against everyone except the true owner. He

described renovating old structures, building new permanent

additions, erecting fences, locking the gates at the entrances, and

posting no trespassing signs. He admitted confronting people who

attempted to enter the subject property and telling them that they

could not be on “his” land.

8
¶ 18 The trial court issued an order granting in part and denying in

part defendants’ motion. As relevant here, it concluded as follows:

 Because Lensky’s claims had been fully and finally

adjudicated in the prior proceeding, the law of the case

was that Lensky had no legal or equitable right to the

subject property.

 Because Lensky had no legal or equitable right to the

property, Spring Valley Estates did not support his

claimed right as a putative adverse possessor to exclude

defendants or others from the subject property.

 C.R.C.P. 105(a) authorized the court to enter “additional

orders” to completely adjudicate the rights of all parties

to the subject property.

 Defendants did not claim an interest in or seek

possession of the subject property. They sought to use

the property without interference as they had used it for

many years before Lensky took possession.

 Because of his prior misrepresentations to the court,

Lensky had made improvements to the subject property

under a bad faith belief that he held title to the property.

9
¶ 19 The trial court ordered Lensky to remove barricades, barriers,

signs, and locks that restricted access to the subject property. It

further ordered Lensky and his associates to refrain from

confronting defendants as they entered or left the subject property.

Lensky appeals this order.

II. Rights of a Putative Adverse Possessor

¶ 20 Lensky contends the trial court erred in finding that he had no

rights as a putative adverse possessor. He argues that this court’s

prior decision affirming his lack of legal title to the subject property

fully adjudicated his prior claim to the property as an adverse

possessor, but that it had no prospective effect. He further argues

that his continued possession of the subject property as a putative

adverse possessor gives him an interest in the property (including

the right to restrict access to it) that is superior to everyone else’s

interest except for that of the rightful owner. We agree.

A. Applicable Law

¶ 21 Because no Colorado case has squarely addressed the rights of

a putative adverse possessor, we begin by examining Colorado’s law

on adverse possession and the dictum in Spring Valley Estates on

which Lensky relies. This issue involves a question of law that we

10
 review de novo. Matoush v. Lovingood, 177 P.3d 1262, 1269 (Colo.

2008). We then examine other jurisdictions’ resolutions of similar

issues.

¶ 22 To obtain title by adverse possession in Colorado, a party must

establish that his possession was hostile, actual, exclusive, adverse,

under a claim of right, and uninterrupted for the statutory period.

Beaver Creek Ranch, L.P. v. Gordman Leverich Ltd. Liab. Ltd. P’ship,

226 P.3d 1155, 1160 (Colo. App. 2009). Colorado’s statutory period

is eighteen years. § 38-41-101(1). Whether possession is hostile,

actual, exclusive, and adverse is a question of fact. Smith v.

Hayden, 772 P.2d 47, 52-53 (Colo. 1989).

¶ 23 “[H]ostile intent is based on the intention of the adverse

possessor to claim exclusive ownership of the property occupied.”

Id. at 56. Proof of adverse possession extends beyond actual

possession and must demonstrate that the record owner has been

excluded from the property. Id. at 52. The possession must be

hostile against both the true owner and the world from its

inception. Schuler v. Oldervik, 143 P.3d 1197, 1202-03 (Colo. App.

2006).

11
¶ 24 To actually possess the land, an adverse possessor must act

as an ordinary landowner would in utilizing the land for the

ordinary use of which it is capable. Smith, 772 P.2d at 52. And,

the adverse possessor’s use of the property must be sufficiently

open and obvious to apprise a true owner who exercises reasonable

diligence that the claimant intends to claim adversely. Schuler, 143

P.3d at 1197.

¶ 25 Finally, for any claim of title by adverse possession vesting on

or after July 1, 2008, an adverse claimant must establish a good

faith belief that he or she (or a predecessor in interest) was the

property’s actual owner, which belief was reasonable under the

circumstances. See People v. Guiterrez-Vite, 2014 COA 159, ¶ 14.

By adding the good faith belief requirement, “the General Assembly

made clear that it did not sanction the acquisition of property

simply through trespass.” People v. Bruno, 2014 COA 158, ¶ 11.4

4 Because neither party raises the good faith issue on appeal, we
need not address whether a putative adverse possessor must have a
good faith belief that they are the property’s actual owner or how
this new provision of the adverse possession statute would affect
Lensky’s future ability to obtain title by adverse possession. See
Kristine S. Cherek, From Trespasser to Homeowner: The Case
Against Adverse Possession in the Post-Crash World, 20 Va. J. Soc.

12
¶ 26 In Spring Valley Estates, our supreme court considered the

question of when remedies become available to an adverse

possessor against a former owner. It held that trespass damages

could only be recovered by an adverse possessor against a former

owner after the eighteen-year statutory period had run. In dictum,

the court discussed the rights of adverse possessors before the

completion of the statutory period:

[A]dverse possession does relate back to the
beginning of possession for some
purposes . . . . In other words, from the
beginning of his possession period, [an]
adverse possessor has an interest in a given
piece of property enforceable against everyone
except the owner or one claiming through the
owner. However, it is not until the adverse
possessor has possessed the land for the
duration of the statutory period that his
interest matures into an absolute fee and his
possessory rights become enforceable against
the former owner as well as third parties.

Spring Valley Estates, 181 Colo. at 437-38, 510 P.2d at 338. This

dictum suggests that a party who has hostile, actual, exclusive, and

Pol’y & L. 271, 317-21 (2012) (discussing changes to Colorado’s
adverse possession statute). We note, however, that the parties
stipulated that Lensky was a putative adverse possessor and that
attorneys are presumed to know the law. See Hinojos-Mendoza v.
People, 169 P.3d 662, 670 (Colo. 2007).

13
 adverse possession of a piece of property has rights in that property

which are enforceable against everyone but the true owner, even if

the party has possessed the property for less than the statutory

eighteen years. Even so, only at the conclusion of those eighteen

years does the party’s right in the property then become enforceable

against the true owner.

¶ 27 Other jurisdictions that have considered the rights of an

adverse possessor who has not yet acquired title have reached

similar conclusions. Defendants have not cited, nor have we

located any contrary authority.

¶ 28 For example, in Uliasz v. Gillete, 256 N.E.2d 290 (Mass. 1970),

petitioners sought a right of access across property adjacent to

respondents’ land in a residential development. Previously,

respondents had claimed ownership of the property by adverse

possession through the execution of a straw deed; however, the

recorded deed failed to mention adverse possession. Nevertheless,

respondents remained in possession of the property. Petitioners

sought, among other things, a declaration from the court that

respondents had no rights in the property.

14
¶ 29 The Massachusetts Supreme Judicial Court rejected

petitioners’ request, stating, “[t]he respondent, being in possession

of that land, has the right to continue in possession as against any

person except the true owner, or a person having a superior right to

possession.” Id. at 297.

¶ 30 Similarly, in Hallmark v. Baca, 301 P.2d 527 (N.M. 1956), the

plaintiff, a putative adverse possessor of property, sued the

defendant, who had erected a fence on the property and excluded

plaintiff from a portion of it. Neither party claimed an ownership

interest in the property. The issue was “whether the Defendant was

right in ousting the Plaintiff of his possession; or Plaintiff, by virtue

of his prior possession of the property was entitled to continue in

possession of it until the rightful owner would oust him.” Id. at

528. The New Mexico Supreme Court held that “plaintiff is right in

his declaration that he is entitled to hold possession until ousted by

someone showing a better right thereto[.]” Id.

¶ 31 Additionally, in Howard v. Mitchell, 105 S.W.2d 128, 133 (Ky.

Ct. App. 1936), the Kentucky Court of Appeals considered the

inheritance rights of an adverse possessor and concluded that such

rights existed. It described an adverse possessor’s right as

15
 “[c]onditional ownership,” “[i]mperfect ownership,” “inchoate title,”

and “[g]rowing title.” Id. (citations omitted). It concluded that the

courts will protect such an adverse possessor “against all the world

except the true owner.” Id.

¶ 32 The Wyoming Supreme Court considered the issue of

possession between an adverse possessor and a purported title

holder and held “[a]s a person in possession the plaintiff was

entitled to bring the action [for quiet title]. The admission of the

defendants [that plaintiffs possessed the disputed property]

constituted a prima facie showing of an interest in the land that

was good against any claimant that could not show a better right.”

Meyer v. Ellis, 411 P.2d 338, 341 (Wyo. 1966) (citation omitted).

¶ 33 Based on the dictum in Spring Valley and the decisions of

other state courts, we conclude that “from the beginning of his

possession period,” a putative adverse possessor has an interest in

the property enforceable against all other parties, except the true

owner. We also conclude that this possessory interest includes the

right to exclude all others from the property except the true owners.

See 3 Am. Jur. 2d Adverse Possession § 232 (2016) (“The

possession of one holding in adverse possession is good as against

16
 strangers. … The courts will protect the adverse claimant against all

the world except the true owner.”) (footnote omitted); see also 2

C.J.S. Adverse Possession § 251 (2016) (“During the period of

adverse possession, an adverse claimant has only an inchoate right

which if pursued and protested may ripen into title. However, he or

she has an ownership which the courts will protect against all the

world except the true owner or someone showing a better right.”).

B. Application

¶ 34 With these principles in mind, we review the trial court’s

conclusion that Lensky had no rights in the subject property as a

putative adverse possessor. The parties stipulated that Lensky was

a putative adverse possessor and Lensky’s testimony confirmed his

and Camp D’Orvid’s intent to attempt to gain title to the subject

property through adverse possession. The record shows that

Lensky had continuously possessed the subject property since

acquiring his land from the Valdezes and that he undertook efforts

to exclude others’ access to it by erecting fences, locking gates,

hanging no trespassing signs, and ordering third parties off of the

property.

17
¶ 35 While the trial court correctly concluded that Lensky had no

legal or equitable title to the subject property at the conclusion of

the prior proceeding, neither the trial court’s prior order nor the

division’s decision upholding that order addressed the parties’

possessory rights. Further, neither addressed Lensky’s ongoing

right to possess the subject property or prohibited him from

continuing to attempt to adversely possess the property. Therefore,

because the law of the case from the prior proceeding was irrelevant

to Lensky’s ongoing possessory rights, the trial court erred when it

found that “because Plaintiff has already been determined to not

have any rights in the Subject Property, including any right to

possess the property, he has no rights as a putative adverse

possessor to exclude the Defendants or others from the Subject

Property.” See People v. Dunlap, 975 P.2d 723, 758 (Colo. 1999)

(Under the law of the case doctrine, “prior relevant rulings made in

the same case are to be followed unless such application would

result in error or unless the ruling is no longer sound due to

changed conditions.”) (emphasis added); People ex rel. Gallagher v.

Dist. Court, 666 P.2d 550, 553 (Colo. 1983) (the law of the case

18
 doctrine is a discretionary rule of practice directing that prior

relevant rulings in the same case must generally be followed).

¶ 36 Furthermore, Lensky had the right to exclude defendants and

other third parties from the subject property because, as a putative

adverse possessor, he has an interest in the property “enforceable

against everyone except the owner or one claiming through the

owner.” Spring Valley Estates, 181 Colo. at 438, 510 P.2d at 338.

While the defendants argued in the trial court and argue on appeal

that they and other members of the Gardner community had used

the subject property for decades (riding horses, riding ATVs,

children playing, and removing sand) and thus should be allowed to

continue their traditional use of the property, they never claimed

any ownership interest in the property, nor did they assert a right

to a prescriptive easement or any other interest that is superior to

Lensky’s. Indeed, defendants failed to present any evidence at the

hearing of their traditional use of the property that would have

proven the elements of a prescriptive easement, and we will not

consider such an argument now. See Leggett & Platt, Inc. v. Ostrom,

251 P.3d 1135, 1143 (Colo. App. 2010).

19
¶ 37 In sum, Lensky, as a putative adverse possessor, has an

interest in the subject property which is enforceable against

defendants and third parties. This possessory interest gives Lensky

the right to exclude defendants and others from the property,

including locking the gates, erecting fences, and posting no

trespassing signs. Spring Valley Estates, 181 Colo. at 438, 510

P.2d at 338; see also Uliasz, 256 N.E.2d at 290; Hallmark, 301 P.2d

at 528; Howard, 105 S.W.2d at 133. We therefore reverse the trial

court’s order prohibiting Lensky from excluding defendants from

the subject property.

III. Lensky’s Remaining Arguments

¶ 38 Having concluded that the trial court applied the incorrect

legal standard when analyzing Lensky’s rights as a putative adverse

possessor, we need not reach Lensky’s remaining issues. We

therefore decline to address whether the court misapplied C.R.C.P.

105, whether the court should have considered this an ejectment

action, and whether the court misapplied the rulings in the prior

proceeding.

IV. Conclusion

20
¶ 39 We reverse the court’s order granting defendants’ motion for

order to vacate.

JUDGE TAUBMAN and JUDGE DAILEY concur.

21