Cordell v. Klingsheim

• Decision Date: 31 May 2018
• Docket Number: Court of Appeals No. 17CA0233
• Citation: 434 P.3d 741
• Parties: Carl A. CORDELL and Wanda M. Cordell, Plaintiffs-Appellants, v. Bradley KLINGSHEIM, Defendant-Appellee.
• Court: Colorado Court of Appeals

434 P.3d 741

Carl A. CORDELL and Wanda M. Cordell, Plaintiffs-Appellants,

v.Bradley KLINGSHEIM, Defendant-Appellee.

Court of Appeals No. 17CA0233

Colorado Court of Appeals, Division V.

Announced May 31, 2018

Jon Lewis Kelly, P.C., Jon Lewis Kelly, Dolores, Colorado, for Plaintiffs-Appellants

The Baty Law Firm P.C., Michael W. Baty, Durango, Colorado, for Defendant-Appellee

Opinion by JUDGE WELLING

¶ 1 Carl A. and Wanda M. Cordell (the Cordells) appeal the trial court’s 2016 order reinstating a treasurer’s deed for a tract of land in La Plata County (the reinstatement order). But this is not these parties' first visit to this court. In 2014, a division of this court affirmed a trial court order voiding a treasurer’s deed following a 2013 tax sale of the disputed tract (the voiding order). See Cordell v. Klingsheim , 2014 COA 133, 412 P.3d 629 ( Cordell I ). In 2016, our supreme court reversed Cordell I . See Klingsheim v. Cordell , 2016 CO 18, 379 P.3d 270 ( Cordell II ).

¶ 2 The trial court issued the reinstatement order on remand following the decision in Cordell II . It did so without substantive analysis of its own. On appeal, the Cordells contend that the trial court was not required to reinstate the treasurer’s deed on remand because the holding in Cordell II reached only one of the two grounds on which the trial court rested the voiding order. In other words, they contend that the alternative ground for voiding the treasurer’s deed remained viable following Cordell II and that alternative basis was meritorious. Although we agree with the Cordells that their alternative argument for voiding the treasurer’s deed was not foreclosed by Cordell II , we affirm the trial court’s reinstatement order because we reject the contention on its merits.

I. Facts and Procedural History

¶ 3 The Cordells were the record owners of a tract of land located in La Plata County (Tract 1).¹ After the Cordells failed to pay the taxes owed on Tract 1 for several years, Brenda Heller purchased a tax lien for the property. Heller assigned that lien to Bradley Klingsheim, who later requested a deed to the property from the La Plata County Treasurer.

¶ 4 Before issuing the requested deed, the Treasurer sent the Cordells a copy of the notice of the application for a treasurer’s deed on Tract 1 by certified mail.² The Treasurer mailed the notice to the Cordells in one envelope addressed to "Carl A. Cordell" and "Wanda M. Cordell" to 705 N. Vine in Farmington, New Mexico, the address listed for the Cordells in the county tax records. The Treasurer later received a return receipt indicating that the notice had been received by Mr. Cordell’s mother, Cleo Cordell. When the Cordells failed to exercise their rights to redeem the property, the Treasurer issued the treasurer’s deed to Tract 1 to Klingsheim.

¶ 5 The Cordells learned of the notice some time later, at which time they filed suit seeking a declaratory judgment that they were the owners of Tract 1, and that the treasurer’s deed was void.³ After a bench trial, the trial court ruled that the Treasurer had not complied with section 39-11-128, C.R.S. 2017, because he had not made "diligent inquiry" in attempting to notify the Cordells that their land may be sold to satisfy a tax lien. Because it concluded that the Treasurer had not made the diligent inquiry required under the statute, the trial court voided the deed. The trial court also ruled that the treasurer’s deed was void because no "separate notice" was mailed to Ms. Cordell. This is the alternative basis referred to at the outset of this opinion.

¶ 6 Klingsheim appealed. He argued that the Treasurer satisfied his statutory duty of diligent inquiry and that the Treasurer was not required to mail a separate notice to Ms. Cordell. In Cordell I , a division of this court concluded that the Treasurer failed to make the diligent inquiry required by section 39-11-128, and on that basis affirmed the voiding order. See Cordell I , ¶¶ 6-20. Having concluded that the Treasurer failed to comply with section 39-11-128, the division stated that it "need not address Klingsheim’s additional contention concerning the treasurer’s failure to mail separate notices to each record owner." Id. at ¶ 20.

¶ 7 Judge Jones dissented from the majority’s opinion in Cordell I . In his dissenting opinion, he considered and rejected the argument that the Treasurer’s notice to Ms. Cordell "was defective as to her because it was not sent to her in a separate envelope." Id. at ¶¶ 22, 65-68 (J. Jones, J., dissenting).

¶ 8 Klingsheim petitioned our supreme court for certiorari review, which it granted to decide "[w]hether the court of appeals' decision in [ Cordell I ] erroneously construed county treasurers' ‘diligent inquiry’ duties under section 39-11-128(1)(a) and (b)." Cordell II , ¶ 13 n.2. It concluded that the Treasurer fulfilled the duty of diligent inquiry required by section 39-11-128. Id. at ¶¶ 15-41. The supreme court also concluded that the Treasurer’s transmission of the notices by certified mail to the Cordells' address listed in the tax rolls, where the return receipt indicated that the notices were received by the person (Cleo Cordell, Mr. Cordell’s mother) whom the Cordells anticipated would receive mail on their behalf, satisfied due process. Id. at ¶¶ 42-46. Having so concluded, it reversed the judgment in Cordell I and remanded the case "for further proceedings consistent with th[e] opinion." Id. at ¶ 48.

¶ 9 On remand to this court, the Cordells requested that the division from Cordell I consider the issue of whether due process required the Treasurer to mail a separate notice to Ms. Cordell. The division declined to do so. Judge Jones dissented, indicating that he would address "appellee’s additional contention concerning the failure to mail separate notices to each record owner." Cordell v. Klingsheim , (Colo. App. No. 13CA388, July 13, 2016) (unpublished order). A mandate was ultimately issued reversing the voiding order and remanding the case to the trial court "for further proceedings consistent with the opinion of the Colorado Supreme Court" in Cordell II .

¶ 10 On remand to the trial court, Klingsheim moved for the trial court to reverse the voiding order and reinstate both treasurer’s deeds, arguing that doing so was consistent with and required by Cordell II . Specifically, he argued that Cordell II was a "complete reversal" of the voiding order and, therefore, reinstatement was required by the supreme court’s holding in the case. The Cordells, on the other hand, contended that neither Cordell I nor Cordell II reached the separate notice issue, and, therefore, the trial court remained free to and should—as it had done previously—void the deed to Tract 1 on that basis. In the reinstatement order, it is unclear whether the trial court rejected the Cordells' separate notice argument on the merits or did so because it understood Cordell II as disposing of the contention, as the trial court granted Klingsheim’s motion and adopted his proposed order without further analysis. The Cordells appeal the reinstatement order.

II. Analysis

A. Cordell II Did Not Resolve the Separate Notice Issue

¶ 11 Klingsheim contends that issuance of the reinstatement order was consistent with the supreme court’s opinion in Cordell II . He argues that, in holding that "the notices at issue satisfied due process," the supreme court in Cordell II concluded that due process did not require the Treasurer to mail a separate notice to Ms. Cordell. Id. at ¶ 46. We disagree that the supreme court’s opinion in Cordell II reached that issue.

¶ 12 Trial courts have no discretion to disregard binding appellate rulings. Thompson v. United Sec. All., Inc. , 2016 COA 128, ¶ 13, 433 P.3d 50 (cert. granted sub nom. Rogers v. Catlin Ins. Co. , 2017 WL 3977988 (Colo. Sept. 11, 2017) ); Kuhn v. State Dep't of Revenue , 897 P.2d 792, 795 (Colo. 1995). When a trial court must determine whether an appellate decision dictates a particular result under the law of the case doctrine, we review its determination de novo. See Hardesty v. Pino , 222 P.3d 336, 339 (Colo. App. 2009).

¶ 13 "Conclusions of an appellate court, and rulings logically necessary to those conclusions, become the law of the case and generally must be followed in later proceedings." In re Estate of Shimizu , 2016 COA 163, ¶ 13, 411 P.3d 211 (citation omitted). The law of the case doctrine does not apply, however, if there has been no prior decision by an appellate court on an issue. Kuhn , 897 P.2d at 796.

¶ 14 We are unpersuaded that the law of the case, as established by the supreme court’s opinion in Cordell II , required the complete reversal of the voiding order. We reach this conclusion for two reasons. First, the question presented on certiorari in Cordell II does not encompass the issue of whether due process requires the mailing of a separate notice to each record owner. In Cordell II , ¶ 13 n.2, our supreme court granted certiorari to review "[w]hether the court of appeals' decision in [ Cordell I ] erroneously construed county treasurers' ‘diligent inquiry’ duties under section 39-11-128(1)(a) and (b)." Because our supreme court limits the scope of its review to the question presented on certiorari, see White v. Muniz , 999 P.2d 814, 818 n.7 (Colo. 2000) (declining to address a question outside the scope of the issue on certiorari); People v. Branch , 805 P.2d 1075, 1080 n.1 (Colo. 1991) (same), we cannot presume that an issue beyond the question presented was decided, see Sprague v. Ticonic Nat'l Bank , 307 U.S. 161, 168, 59 S.Ct. 777, 83 L.Ed. 1184 (1939) ("While a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues."); Gavend v. Malman , 946 P.2d 558, 562 (Colo. App. 1997) (although the mandate required the reinstatement of improperly dismissed claims, on remand the court could nonetheless dismiss those claims on alternate grounds).

¶ 15 Second, the...