COLORADO COURT OF APPEALS                                         2016COA160


Court of Appeals No. 14CA2409
Baca County District Court No. 11CV14
Honorable Douglas Tallman, Judge


Red Flower, Inc., a Kansas corporation,

Plaintiff-Appellant and Cross-Appellee,

v.

Kevin R. McKown,

Defendant-Appellee and Cross-Appellant.


            JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
                AND CASE REMANDED WITH DIRECTIONS

                                 Division IV
                         Opinion by JUDGE HARRIS
                      Hawthorne and Román, JJ., concur

                         Announced November 3, 2016


Shinn, Steerman & Shinn, Donald L. Steerman, Lamar, Colorado, for Plaintiff-
Appellant and Cross-Appellee

Brett R. Lilly, LLC, Brett R. Lilly, Wheat Ridge, Colorado, for Defendant-
Appellee and Cross-Appellant
¶1    If a property owner fails to pay his or her property taxes, the

 county may sell a tax lien on the property to a third party.

 §§ 39-11-101 to -109, C.R.S. 2016. After three years, and upon

 notice to the owner, occupant, and other interested parties, the

 holder of an unredeemed lien may obtain a treasurer’s deed for the

 property. § 39-11-120(1), C.R.S. 2016.

¶2    Plaintiff, Red Flower, Inc., bought tax liens on farmland owned

 by defendant, Kevin R. McKown. After the redemption period

 expired, the Baca County Treasurer issued the tax deeds to Red

 Flower. McKown subsequently challenged the validity of the deeds

 on the ground that the Treasurer had failed to provide notice to a

 tenant farmer who grew crops on the property.

¶3    The district court ruled that unlike owners and other

 interested parties — who are subject to a “diligent inquiry” standard

 of notification — the occupant is entitled to actual notice of the

 issuance of the treasurer’s deed. Because the tenant farmer had

 not received actual notice, the court voided the deeds.

¶4    We disagree with the district court’s interpretation of the

 relevant statute, but we affirm, in part, on the alternative ground

 that, with respect to one of the deeds, Red Flower’s publication


                                    1
 notice was deficient. With respect to the other deed, we remand to

 the district court to determine whether the Treasurer used diligent

 efforts to notify the tenant farmer of the issuance of the deed.

                            I.   Background

¶5    McKown owned 320 acres of farmland in rural Baca County.

 There were no structures, fencing, corner posts, or other

 improvements on the property. Access to the property is by “field

 roads”; the nearest county road is two miles away.

¶6    From 2004 until 2011, Don Lohrey farmed the property

 pursuant to an oral sharecrop agreement. He received the value

 from two-thirds of the harvest and McKown, as the owner, received

 the remaining one-third.

¶7    Lohrey lived approximately ten miles away from McKown’s

 property, in Walsh, Colorado. During the winter months, Lohrey

 was present at McKown’s farm about once every two weeks. During

 the growing season, he was on the property more frequently —

 about once a week. Lohrey had similar oral agreements with six

 other property owners, and he farmed a total of 5000 acres in the

 general vicinity.




                                    2
¶8     Though McKown’s agreement with Lohrey was not recorded

  with the county clerk and recorder’s office, it was documented in a

  form required by the United States Department of Agriculture and

  kept on file at the Baca County Farm Service Agency.

¶9     After McKown failed to pay his county property taxes, the

  Treasurer sold tax liens for the real property and the mineral rights.

  Red Flower bought the tax lien certificates on November 15, 2007.

  In August 2010, a few months before the expiration of the

  redemption period, Red Flower applied for treasurer’s deeds. The

  Treasurer attempted to notify McKown, but her efforts were

  unsuccessful. She published a series of notices in the newspaper

  in September 2010 and, in December 2010, she issued the deeds to

  Red Flower.

¶ 10   The following year, Red Flower filed a C.R.C.P. 105 action to

  quiet title in the property. McKown appeared and defended on the

  ground that the tax deeds were invalid, based on insufficient notice

  to McKown and also to Lohrey, whom the parties stipulated had

  been in actual possession or occupancy of the property but had not

  received notice.




                                    3
¶ 11   The district court found that the Treasurer had made a

  “diligent inquiry” to find the owner, McKown, as required by the

  statute, and it entered judgment for Red Flower. A division of this

  court affirmed that ruling, Red Flower, Inc. v. McKown, (Colo. App.

  No. 12CA2128, July 11, 2013) (not published pursuant to C.A.R.

  35(f)) (Red Flower I), but remanded for a determination of whether

  the Treasurer had complied with the separate requirement to notify

  the occupant.

¶ 12   On remand, the district court considered the plain language of

  the statute, which requires that, prior to issuance of a tax deed, the

  county treasurer serve, by personal service or mail, notice “on [1]

  every person in actual possession or occupancy” of the property,

  “and also on [2] the person in whose name [the property] was taxed”

  if, “upon diligent inquiry, such person can be found in the county

  or if his residence outside the county is known,” and on [3] “all

  persons having an interest or title of record in” the property if,

  “upon diligent inquiry, the residence of such persons can be

  determined.” § 39-11-128(1)(a), C.R.S. 2016.

¶ 13   The court determined that the Treasurer’s obligation to make

  “diligent inquiry” applied only to notification of owners and other


                                     4
  interested parties, but not to actual occupants. It reasoned that the

  absence of the qualifier “if, upon diligent inquiry,” in the clause

  referring to occupants meant that the Treasurer was obligated to

  make all efforts necessary to notify the occupant. Indeed, according

  to the district court, there was no limit on the efforts required of the

  Treasurer to provide the occupant with notice of the issuance of the

  deed.

¶ 14   The court determined — presumably based on the parties’

  stipulation — that Lohrey qualified as a person in possession of the

  property. From there, it concluded that because the Treasurer had

  not complied with her statutory obligation to provide Lohrey with

  actual notice, the tax deeds were void.

¶ 15   On appeal, Red Flower argues that the district court’s

  construction cannot be squared with the language or intent of the

  statutory scheme. McKown contends that the district court could

  have granted summary judgment in his favor for the additional

  reason that the Treasurer’s publication notice was deficient and

  therefore the deeds were void.

¶ 16   Though we do not fully adopt Red Flower’s reasoning, we agree

  that the district court’s interpretation is incorrect. However, we


                                     5
  agree with McKown that, at least with respect to the real property

  deed, publication notice was deficient.

                     II.   The Notice Requirement

¶ 17   Red Flower contends that the district court’s interpretation of

  the notification requirement in section 39-11-128(1)(a) places an

  illogically high burden on the Treasurer to notify persons in “actual

  possession or occupancy” of the property. It urges a reading of the

  statute that essentially adds a “diligent inquiry” element to the

  clause referring to actual possessors or occupants. Though we

  disagree with Red Flower’s reasoning, we conclude that section

  39-11-128 does not require actual notice to any of the listed

  persons.

                           A. Standard of Review

¶ 18   We review de novo the district court’s interpretation of a

  statute as well as its decision granting summary judgment. Klinger

  v. Adams Cty. Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo. 2006);

  Collard v. Vista Paving Corp., 2012 COA 208, ¶ 16.

¶ 19   Red Flower asks us to temper our de novo review by deferring

  to the Treasurer’s interpretation of the statute. We acknowledge the

  general principle on which Red Flower relies — that courts


                                     6
traditionally defer to an agency’s interpretation of a statute it is

entrusted to administer, Hertz Corp. v. Indus. Claim Appeals Office,

2012 COA 155, ¶ 12 — but we conclude that it is inapplicable here.

Under this general principle, courts ordinarily defer to the state

property tax administrator’s interpretation of property tax statutes

and the rules promulgated to implement those statutes. See

Aberdeen Inv’rs, Inc. v. Adams Cty. Bd. of Cty. Comm’rs, 240 P.3d

398, 403 (Colo. App. 2009) (courts generally defer to the Board of

Assessment Appeals’ and the Property Tax Administrator’s

interpretations of tax statutes because “they are charged with

administering the tax code”). But county treasurers are not the

“agency” charged with administering the state tax code, and so we

will not defer to the Treasurer’s interpretation of her own

obligations under section 39-11-128(1)(a). Moreover, because

statutory construction is a question of law, we would not be bound

by the agency’s interpretation of the statute in any event. Bd. of

Cty. Comm’rs v. Colo. Pub. Utils. Comm’n, 157 P.3d 1083, 1088

(Colo. 2007).




                                    7
              B. Interpretation of Section 39-11-128(1)(a)

¶ 20   Our efforts to interpret a statute must always begin with the

  language of the statute itself. People v. Cooper, 27 P.3d 348, 354

  (Colo. 2001). If the statutory language is unambiguous, we look no

  further and apply the words as written. People v. Summers, 208

  P.3d 251, 254 (Colo. 2009). The plainness or ambiguity of statutory

  language is determined by reference to the language itself, the

  specific context in which that language is used, and the broader

  context of the statute as a whole. Robinson v. Shell Oil Co., 519

  U.S. 337, 341 (1997). The statutory scheme is read as a whole to

  give consistent, harmonious, and sensible effect to all of its parts, in

  accordance with the presumption that the legislature intended the

  entire statute to be effective. Bryant v. Cmty. Choice Credit Union,

  160 P.3d 266, 274 (Colo. App. 2007). We avoid constructions that

  are at odds with the legislative scheme or that lead to illogical or

  absurd results. Id.

¶ 21   The supreme court has construed section 39-11-128(1)(a)’s

  notice requirement in this way:

             With regard to notice, the General Assembly
             requires that several steps be taken. Prior to
             the issuance of a tax deed, the county


                                     8
             treasurer must serve, by personal service or
             mail, notice “on every person in actual
             possession or occupancy” of the property. The
             treasurer must also serve notice “on the
             person in whose name [the property] was
             taxed,” and on “all persons having an interest
             or title of record in” the property, if they can be
             located through “diligent inquiry.”

  Lake Canal Reservoir Co. v. Beethe, 227 P.3d 882, 889 (Colo. 2010)

  (alteration in original) (citations omitted).

¶ 22   There is no serious dispute that, as a matter of plain language,

  the “diligent inquiry” qualifier does not apply to notification of the

  actual possessor or occupant. Red Flower suggests that “and”

  might mean “or” in the provision, and that the “diligent inquiry”

  term modifies each clause of the provision, but neither argument is

  developed or persuasive.

¶ 23   We agree with the district court that the “diligent inquiry”

  standard does not apply to notice to actual possessors or

  occupants. The provision lists three categories of persons entitled

  to notice. The “diligent inquiry” qualifier is connected, spatially and

  grammatically, to only two of those categories. Generally, qualifying

  or modifying words and phrases refer to the word, phrase, or clause

  with which they are grammatically connected. Moreover, where



                                      9
  qualifying words are in the middle of a sentence, and apply to a

  particular branch of it, they are not to be extended to that which

  precedes or follows. See 73 Am. Jur. 2d, Statutes § 128 (2d ed.

  2015). In addition, the provision uses the singular “person” to

  signify that the qualifier applies only to the preceding category or

  persons: “The treasurer shall serve . . . a notice . . . on every person

  in actual possession or occupancy of [the property] . . . and also on

  the person in whose name [the property] was taxed . . . if, upon

  diligent inquiry, such person can be found in the county . . . .”

  § 39-11-128(1)(a) (emphasis added). If the “diligent inquiry”

  qualifier covered the preceding reference to an actual occupant, the

  next clause would refer to “persons” — both the occupant and the

  person in whose name the property was taxed.

¶ 24   The harder issue though, and where the views diverge, is in

  discerning the effect of the omission of the “diligent inquiry”

  qualifier with respect to actual possessors or occupants. The

  district court concluded, though it questioned the rationale, that

  the effect was a requirement that the Treasurer use whatever

  inquiry is necessary — potentially beyond diligent and into

  extraordinary — to notify the actual occupant of the issuance of the


                                     10
  deed. Red Flower counters that this effect is so illogical that it

  would be better to ignore the plain language and to imply the

  addition of the “diligent inquiry” qualifier to all actual possessors

  and occupiers.

¶ 25   We find both alternatives unsupportable. Red Flower’s

  proposal requires us to rewrite the statute, treating the omission of

  the “diligent inquiry” qualifier as a legislative error that we can

  remedy through judicial interpretation. But in interpreting a

  statute, we must “accept the General Assembly’s choice of language

  and not add or imply words that simply are not there.” People v.

  Benavidez, 222 P.3d 391, 393-94 (Colo. App. 2009); see also Dep’t

  of Labor & Emp’t v. Esser, 30 P.3d 189, 196 (Colo. 2001) (“We do

  not presume that the General Assembly used language idly; rather,

  we give effect to the statute’s words and terms.”).

¶ 26   On the other hand, we decline to adopt the district court’s

  construction because it is inconsistent with the overall statutory

  scheme and leads to absurd results. We start by noting that “the

  notice requirement has long been understood to primarily protect

  the interests of owners of record.” Lake Canal, 227 P.3d at 890; see

  also Mitchell v. Espinosa, 125 Colo. 267, 272, 243 P.2d 412, 414


                                     11
  (1952) (“The only purpose of the law in requiring the publication of

  notice . . . is to protect the interest of the fee-title owner and afford

  him an opportunity for redemption . . . .”). It is indeed

  incongruous, as Red Flower points out, that the occupant of the

  property would be entitled to demand that the county treasurer

  make extraordinary efforts to notify him or her when the owner is

  entitled only to reasonable efforts. We do not mean to suggest that

  service on the occupant is a mere “technicality,” as Red Flower

  insists, see Meyer v. Haskett, 251 P.3d 1287, 1291 (Colo. App.

  2010) (in the absence of “full compliance” with notification

  requirements, treasurer’s deed is subject to invalidation), but, if the

  legislature had intended to require a heightened notification

  standard for one category of people under section 39-11-128(1)(a), it

  is unlikely that it would have chosen occupants over owners.

¶ 27   We are confident, though, that the legislature did not intend to

  create a heightened standard for any category of persons entitled to

  notice under the statute. A division of this court has previously

  noted the “unbroken line of Colorado cases” interpreting section

  39-11-128 to require no more than those efforts that comport with

  minimum due process standards. Schmidt v. Langel, 874 P.2d 447,


                                      12
  451 (Colo. App. 1993). Indeed, as the court observed in Schmidt,

  the adoption of more expansive standards of diligence would

  “provide little guidance as to when the inquiry must cease and little

  assurance that the efforts required would be fruitful or within the

  limits of practicality.” Id. These concerns are highlighted here: the

  district court’s construction of the statute requires a potentially

  never-ending inquiry that could easily exceed the limits of

  practicality for county treasurers.

¶ 28   McKown contends that the district court’s interpretation is

  compelled by Taylor v. Lutin, 106 Colo. 170, 102 P.2d 484 (1940),

  but we are not convinced. In Taylor, the issue presented was

  whether the lessee of the property owner qualified as an occupant

  entitled to notice. When the treasurer’s sole attempt to serve the

  lessee failed, she argued he was not an occupant under the statute.

  But at a trial to determine the validity of the deed, the treasurer

  conceded that the lessee “had the occupancy of the land,” a

  concession the court deemed generally dispositive of the issue. Id.

  at 173, 102 P.2d at 485. Taylor did not address the efforts required

  of a treasurer in notifying an occupant of a tax sale or issuance of a




                                    13
  deed, and we therefore do not read the case to establish a

  requirement of actual notice.

¶ 29   Accordingly, we must reject the district court’s interpretation

  of the statute to require nothing short of actual notice — no matter

  the efforts necessary — to the actual possessor or occupant.

¶ 30   Instead, in our view a harmonious reading of the provision’s

  language establishes that the “diligent inquiry” qualifier was

  omitted from the occupant clause because the statute contemplates

  that a person “in actual possession or occupancy” of the property

  will be found on the property, obviating the need for any inquiry as

  to the person’s whereabouts.

¶ 31   The statute does not define the term “actual possession or

  occupancy.” § 39-11-128(1)(a). The addition of the word “actual”

  suggests that the legislature intended a narrower meaning than the

  word “possession” or “occupancy” would have on its own. Vigil v.

  Franklin, 103 P.3d 322, 327 (Colo. 2004) (in construing statutes,

  courts must give effect to every word). In the absence of a statutory

  definition, we may refer to a dictionary definition to determine the

  meaning of a word or phrase. City of Arvada v. Colo.

  Intergovernmental Risk Sharing Agency, 988 P.2d 184, 187 (Colo.


                                    14
  App. 1999) (ruling that it was appropriate for district court to look

  to Black’s Law Dictionary to determine definition of legal term),

  aff’d, 19 P.3d 10 (Colo. 2001).

¶ 32   Black’s Law Dictionary defines “actual possession” as

  “[p]hysical occupancy or control over property,” as distinguished

  from “constructive” possession, meaning “[c]ontrol or dominion over

  a property without actual possession,” or possession that is

  “[l]egally imputed; existing by virtue of legal fiction though not

  existing in fact.” Black’s Law Dictionary 380, 1351 (10th ed. 2014).

  The term “occupancy” is defined as “[t]he act, state, or condition of

  holding, possessing, or residing in or on something; actual

  possession, residence, or tenancy, esp. of a dwelling or land.” Id. at

  1247.

¶ 33   Brown v. Davis, 103 Colo. 110, 83 P.2d 326 (1938), is

  instructive on this point. In Brown, the purchaser of the tax deed

  failed to notify the occupant of the property, but argued that,

  because the owner had been served and the owner was legally in

  possession of the property, notice to the actual occupant was

  unnecessary. The supreme court disagreed, explaining that “the

  status of the property as to its actual physical occupancy, as


                                     15
  distinguished from the constructive possession thereof, to a major

  degree controls the procedure with reference to the required notice.”

  Id. at 113, 83 P.2d at 327. Where the property is “actually

  occupied,” the court instructed,

             the statute clearly contemplates . . . that
             service of notice not only must be made upon
             the [owner], if he can be found in the county,
             and upon those having an interest in or title of
             record to the premises when their residence
             can be learned, but also upon the person in
             the actual possession or occupancy of the
             premises.

  Id. at 113, 83 P.2d at 327-28.

¶ 34   It makes sense, then, that the statute would not require the

  county treasurer to make a “diligent inquiry” to find a person who is

  physically possessing or occupying the premises. “No such

  provision [the “diligent inquiry” requirement] is made with respect

  to occupants of the property [because they] presumably may be

  found at the property.” In re Application for Tax Deed, 675 N.E.2d

  285, 286 (Ill. App. Ct. 1997).1


  1 The Colorado and Illinois statutes are identical in all relevant
  respects, the Colorado statute having originally been adopted from
  the Illinois law. Brown v. Davis, 103 Colo. 110, 114, 83 P.2d 326,
  328 (1938). Under 35 Ill. Comp. Stat. 200/22-15 (2016), notice
  shall be served “upon owners who reside on any part of the property

                                     16
¶ 35   The district court was therefore correct in concluding that the

  “diligent inquiry” standard does not apply to notification of actual

  possessors or occupants, but it erred in determining that some

  limitless duty to find and notify the occupants applied instead.

  Rather, when the premises are actually occupied, the county

  treasurer may serve notice on the occupants at the property.

¶ 36   The wrinkle in this case is that the parties appear to have

  stipulated, and the district court found, that Lohrey — who neither

  lives on the property nor can be found there on more than an

  occasional basis — was an actual occupant.2 It is undisputed that



  sold by leaving a copy of the notice with those owners personally,”
  and “upon all other owners and parties interested in the property, if
  upon diligent inquiry they can be found in the county, and upon
  the occupants of the property.”
  2 The district court referred to Lohrey as a “tenant,” and the parties

  sometimes refer to him as a “tenant farmer.” The record, however,
  is not clear as to Lohrey’s precise legal status. Lohrey testified that
  he had a verbal sharecrop arrangement with McKown that began in
  2004 and continued without formal renewal until about the time
  Lohrey retired from farming in 2012. Under the terms of the
  arrangement, Lohrey farmed the land, paid two-thirds of the
  expenses and took two-thirds of the crops, while McKown paid one-
  third of the expenses and took one-third of the crops. A tenant
  typically has a right of exclusive possession of the property
  whereas, in a sharecropper arrangement, the owner retains the
  right to enter and occupy the land subject only to the rights of the
  sharecropper with respect to the crops. Hampton v. Struve, 70
  N.W.2d 74, 79 (Neb. 1955); see also Burton v. Miller, 86 Colo. 166,

                                    17
  Lohrey lived nearly ten miles away from the property, he visited

  McKown’s field somewhere between once every two weeks and once

  a week for the limited purpose of checking on his crops, and his

  right to enter on the property derived exclusively from a verbal

  sharecropper arrangement with McKown.

¶ 37   Still, we will assume, though we decline to decide that the

  statute readily contemplates it, that there could be a category of

  occupants who do not in fact occupy the premises; in other words,

  persons, like Lohrey and like many owners and others with an

  interest in the property, who must be found before they can be

  served with notice.

¶ 38   But whenever the person entitled to notification is not on the

  premises, section 39-11-128(1)(a) requires the county treasurer to

  make only a “diligent inquiry” to determine the person’s

  whereabouts and then to notify him of the sale. See Milroy v.

  McFerran, 270 P.2d 329, 331 (Okla. 1954) (holding that statute did

  168, 279 P. 51 (1929) (sharecropper is not a tenant); Warner v.
  Hoisington, 42 Vt. 94, 96-97 (1869) (sharecropper arrangement
  “does not amount to a lease of the land”). The distinction might be
  relevant as to whether Lohrey qualifies as an actual possessor or
  occupant of the property, but we need not decide that issue
  because, as we have noted, the parties stipulated that Lohrey was
  an occupant for purposes of section 39-11-128(1)(a), C.R.S. 2016.

                                    18
  not include “diligent inquiry” qualifier for notice to occupant but,

  where occupant was tenant farmer who lived on adjoining property,

  “diligent inquiry” standard applied); cf. Dohrn v. Mooring Tax Asset

  Grp., L.L.C., 743 N.W.2d 857, 861 (Iowa 2008) (stating that statute

  did not include “diligent inquiry” standard but, where occupant was

  not on premises and had to be located to be served, a reasonable

  efforts standard might apply).

¶ 39   The statute contemplates three categories of persons entitled

  to notice, who fall into two broad classifications: (1) persons who

  can be found on the property (ordinarily, actual possessors and

  occupants and, often, owners) and (2) persons likely to be found off

  the property (sometimes owners and, often, other persons with an

  interest in the property). Those are the classifications that matter

  for purposes of determining the county treasurer’s burden. If the

  person is on the property, the statute presumes no real burden on

  the treasurer to locate the person. If the person is off the property,

  the statute requires the treasurer to make a “diligent inquiry” to

  find the person.

¶ 40   But under no circumstances is the treasurer held to a higher

  standard than the use of efforts reasonably calculated to effectuate


                                    19
  notice. See Jones v. Flowers, 547 U.S. 220, 229 (2006); see also

  Schmidt, 874 P.2d at 451 (“[E]xtraordinary efforts at locating an

  address are not demanded by principles of due process.”); cf.

  Klingsheim v. Cordell, 2016 CO 18, ¶ 20 (“[T]he purpose of section

  39-11-128(1) is to forbid the issuance of a treasurer’s deed absent

  reasonably diligent efforts to notify persons with an interest in the

  property, especially those with a right to redeem.”).

¶ 41   Here, the parties tell us that Lohrey was an occupant who was

  found off the property — a curious designation, but one we accept

  for purposes of our decision. In that case, he was entitled to have

  the Treasurer make “diligent inquiry” to locate and serve him with

  notice of the issuance of the deed.

¶ 42   Our conclusion is supported by another provision of the

  statute. See People v. Yoder, 2016 COA 50, ¶ 17 (We “look at the

  statute as a whole in order to interpret the meaning and purpose of

  its language.”). Under subsection 128(1)(b), when the value of the

  property exceeds $500, the Treasurer is required to publish notice

  of the issuance of the tax deed. A copy of such notice must be sent

  to “each person not found to be served whose address is known or

  can be determined upon diligent inquiry.” § 39-11-128(1)(b).


                                    20
¶ 43   This provision confirms that any person who must be “found”

  off the property in order to be notified by mail of the issuance of the

  deed is entitled to have the Treasurer make a “diligent inquiry” to

  determine his or her whereabouts. At the same time, the provision

  makes clear that there is no category of persons who must be

  “found” for notification purposes entitled to actual notice.

¶ 44   The district court determined that McKown was entitled to

  demand that the Treasurer go to any lengths necessary to locate

  and serve Lohrey. Using that standard, the district court

  determined that Lohrey did not have actual notice of the transfer of

  the deeds and entered summary judgment for McKown. We

  conclude that the court applied the wrong standard.

¶ 45   Red Flower opposes a remand, arguing that, as a matter of

  law, the Treasurer made a “diligent inquiry” to determine Lohrey’s

  whereabouts. In our view, whether efforts amount to a “diligent

  inquiry” and were reasonably calculated to effectuate notice

  depends on the circumstances of each case. Cf. Sandstrom v. Solen,

  2016 COA 29, ¶ 22 (“‘Diligent’ means a ‘steady, earnest, attentive,

  and energetic application and effort in a pursuit’ . . . .” (quoting




                                     21
  Schmidt, 874 P.2d at 450)). Therefore, we determine that a remand

  is necessary.

¶ 46   However, we need not remand with respect to both deeds. The

  real property deed, unlike the mineral deed, could not be issued

  until the Treasurer published notice of its impending issuance.

  McKown contends that the publication notice was deficient and, for

  the reasons discussed below, we agree. Therefore, we affirm the

  district court’s entry of summary judgment in favor of McKown on

  the real property deed on this alternative basis. See Colo. Pool Sys.,

  Inc. v. Scottsdale Ins. Co., 2012 COA 178, ¶ 71 (we may affirm

  summary judgment for any reason supported by the record, even

  reasons not decided by the trial court) (cert. granted in part Sept. 3,

  2013). We remand, therefore, only with respect to the mineral deed.

              C. Interpretation of Section 39-11-128(1)(b)

¶ 47   In all cases where the assessed value of the property is $500

  or more, the Treasurer must publish notice of the issuance of the

  deed in the following manner: “three times, at intervals of one

  week, . . . not more than five months nor less than three months

  before the time at which the tax deed may issue.”

  § 39-11-128(1)(b).


                                    22
¶ 48   According to the Treasurer’s testimony, she published the first

  notice in the newspaper on September 2, 2010, and the third and

  final notice on September 16, 2010. (She did not provide the date

  of the second notice.) The tax deed issued to Red Flower on

  December 8, 2010 — less than three months after the last notice.

¶ 49   Red Flower reads the provision to require that only the first

  notice be published three months before issuance of the deed. But

  we cannot square that construction with the plain language of the

  statute.

¶ 50   In our view, the provision creates a window within which the

  notices must be published: sometime between five and three

  months before the deed is issued, the Treasurer must publish three

  notices, once each week. Our reading gives full effect to all of the

  words in the provision, see Bd. of Cty. Comm’rs v. Vail Assocs., Inc.,

  19 P.3d 1263, 1273 (Colo. 2001) (we construe statutory provision as

  a whole, giving effect to every word and term, whenever possible),

  while Red Flower’s interpretation disregards the “three times”

  language.




                                    23
¶ 51   Accordingly, we conclude that the Treasurer’s publication

  notice was statutorily deficient.3

¶ 52   McKown argues that the deficient notice renders the deed void.

  Though we disagree that the deed is void, we determine that it is

  voidable and, therefore, the court properly set it aside.

¶ 53   A deed is void when the taxing entity had no jurisdiction or

  authority to issue it. Lake Canal, 227 P.3d at 886. By contrast, a

  deed is voidable when the county treasurer’s notice is statutorily

  insufficient. Id. at 887. As the supreme court explained,


  3 Red Flower contends that the sufficiency of the publication notice
  was resolved in its favor in Red Flower I and that we are bound by
  the prior division’s determination under the law of the case
  doctrine. True enough, the prior division concluded, “the
  undisputed facts show that the county treasurer fulfilled
  [subsection (1)(b)’s] requirements by publishing the notice for three
  weeks in a Baca County newspaper in September 2010, four
  months before the deed to the real property was issued in
  December.” No. 12CA2128, slip op. at 5 (footnote omitted). But as
  the division had just noted, the issue was not raised by McKown;
  rather, he argued that the Treasurer failed to comply with
  subsection (1)(a) by not making a diligent effort to discover his
  address. Consequently, the division’s observations about the
  Treasurer’s compliance with subsection (1)(b) were not necessary to
  its ruling and were dicta. In general, dictum does not become law
  of the case. Hardesty v. Pino, 222 P.3d 336, 340 (Colo. App. 2009).
  But even if we construe the prior division’s determination as law of
  the case, we may decline to apply the doctrine if we discern a
  factual error. Here, Red Flower itself concedes that notice was not
  published four months before the deeds issued.

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  inadequate notice does not implicate jurisdiction or authority, but

  rather “the manner in which the authority was exercised.” Id. at

  889.

¶ 54     We are not persuaded by McKown’s argument that Gomer v.

  Chaffee, 6 Colo. 314 (1882), compels a different conclusion. In

  Gomer, the treasurer sold the tax lien on April 17th, in violation of

  the statute that authorized the sale of tax liens only after April 20th

  of each year. Id. at 316. Because the treasurer’s authority to sell

  tax liens is purely statutory, he had no power to sell the liens prior

  to the date authorized by statute. Id. at 315.

¶ 55     Here, if the Treasurer had issued the deeds before the

  expiration of the redemption period, we would be presented with an

  analogous issue. But the statutory redemption period ended on

  November 15, 2010, and the Treasurer had the power to issue the

  deed at any time thereafter. The defect in this case was procedural,

  not jurisdictional. See Sandstrom, ¶ 24 (insufficient notice is a

  procedural defect that renders tax deed voidable, not void).

¶ 56     Still, the point of publication notice is to encourage

  redemption and protect the owner’s interest in his or her property,

  see Lake Canal, 227 P.3d at 890, and, as we noted earlier, it is no


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  mere technicality. The taxpayer is entitled to redeem until the end

  of the redemption period or three months after the last publication

  notice, whichever comes later. See § 39-11-128(1)(a) (Notice must

  state “when the time of redemption will expire or when the tax deed

  shall be issued.”). The Treasurer did not publish the last notice

  until September 16, 2010; thus, McKown should have had until

  December 16, 2010, to redeem the lien.

¶ 57   A voidable deed may be set aside so long as the claim to

  recover property is brought within five years after the issuance of

  the deed. Sandstrom, ¶ 30. Here, McKown’s counterclaim was filed

  well within the statute of limitations.

¶ 58   The district court voided the tax deed for a different reason,

  but we may affirm its decision on an alternative ground supported

  by the record. Id. Because the Treasurer failed to comply with

  section 39-11-128(1)(b), the district court properly set aside the real

  property deed.

                           III.   Conclusion

¶ 59   The district court’s entry of summary judgment in favor of

  McKown is affirmed in part, reversed in part, and remanded for

  further proceedings. On remand, the district court should


                                     26
determine, with respect to the mineral deed only, whether the

Treasurer used diligent efforts to notify Lohrey of the issuance of

the deed.

     JUDGE HAWTHORNE and JUDGE ROMÁN concur.




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