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
