Mercy v. Johnson

23CA1536 Mercy v Johnson 08-15-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1536

City and County of Denver District Court No. 23CV417

Honorable Andrew J. Luxen, Judge

Mercy Housing Management Group, Inc.,

Plaintiff-Appellee,

v.

Devette Johnson,

Defendant-Appellant.

JUDGMENT REVERSED, ORDER VACATED,

AND CASE REMANDED WITH DIRECTIONS

Division VI

Opinion by JUDGE SCHUTZ

Lipinsky and Martinez*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 15, 2024

Gordon Rees Scully Mansukhani LLP, John R. Mann, Denver, Colorado, for

Plaintiff-Appellee

CED Law, Spencer Bailey, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

1

¶ 1 In this eviction proceeding, Devette Johnson appeals the

district court’s orders granting judgment for possession to Mercy

Housing Management Group, Inc. (Mercy Housing) and denying his

motion for a new trial. We reverse the judgment, vacate the order

for issuance of a writ of restitution, and remand.

I. Background and Procedural History

¶ 2 In 1994, Johnson was diagnosed with a traumatic brain injury

(TBI) after an accident. His condition impacts his cognitive abilities,

and, consequently, he has difficulty regulating his emotions,

controlling impulses, and comprehending verbal and written

communications. As relevant here, Johnson’s injuries qualified him

as an individual with a disability under the Colorado Fair Housing

Act (CFHA), §§ 24-34-501 to -509, C.R.S. 2023, and the Federal

Fair Housing Act (FHA), 42 U.S.C. §§ 3601–3619.

¶ 3 Mercy Housing manages an apartment complex owned by

Parkside Apartments in Denver. The complex provides residences

for qualifying individuals under the Federal Low-Income Housing

2

Tax Credit Program.

1

To ensure that Johnson remained eligible for

the tax credit, the parties’ lease agreement required Johnson to

submit an annual financial recertification.

A. The County Court FED Proceedings

¶ 4 In July 2022, Mercy Housing filed a forcible entry and detainer

(FED) eviction action against Johnson in Denver County Court.

Mercy Housing alleged that Johnson committed material lease

violations including (1) failing to complete the recertification

documents; (2) cursing and screaming at fellow residents; and (3)

causing noise and excessive traffic.

¶ 5 In response, Johnson requested reasonable accommodations

based on his disability in the form of additional time to cure the

alleged violations and postponement of the court hearing on the

eviction claim. See C.R.C.P. 316.5(b) (requiring that eviction

hearings generally be held within seven to ten days after the

1

The Low-Income Housing Tax Credit program is administered by

the U.S. Department of Housing and Urban Development. The

program funds tax credits for the acquisition, rehabilitation, or new

construction of rental housing for low-income tenants. Off. of Pol’y

Dev. & Rsch., U.S. Dep’t of Hous. & Urb. Dev., Low-Income Housing

Tax Credit (LIHTC) (2024), https://perma.cc/8DZW-86ZG.

3

defendant files an answer); see also § 13-40-114, C.R.S. 2023 (if

either party requests a delay of the trial beyond five days, the court

may, upon a showing of good cause, require the posting of a bond).

The court granted the postponement and — in accordance with

section 13-40-111(6)(b), C.R.S. 2023 — ordered “discovery of all

‘documents in the landlord’s and tenant’s possession relevant to the

current action.’”

¶ 6 In September 2022, Mercy Housing representatives met with

Johnson and his counsel. Before the meeting, Johnson’s counsel

submitted a written request for reasonable accommodations, which

the parties discussed. On October 14, Johnson’s counsel

submitted a second written request for accommodations.

¶ 7 On October 17, the parties filed a “Non-Judgment Stipulation

Agreement” (the stipulation) allowing Johnson to retain possession

of the premises subject to his agreement to

• timely complete recertification paperwork;

• pay past due rent;

• provide Mercy Housing with a detailed statement

explaining how he would like to be made aware of future

alleged lease violations; and

4

• comply with the terms of the lease and commit no

substantial or repeat lease violations for 120 days

following the stipulation’s execution.

¶ 8 The stipulation provided that Mercy Housing would file a

motion to dismiss the county court case without prejudice, but it

also stated that, if Johnson failed to comply with the stipulation,

Mercy Housing could file a motion to reopen the case and request

entry of a judgment for possession after giving Johnson forty-eight

hours of advance notice. The county court accepted the stipulation

and dismissed the FED action without prejudice.

¶ 9 Unbeknownst to Johnson, the day following the stipulation’s

filing, an agent of Mercy Housing, Lisa Archuleta, signed the

request for reasonable accommodations in the format that

Johnson’s counsel had previously submitted on October 14. The

same day, Archuleta also signed an approval of the request for

accommodations stating,

Verbal and written notice will be provided for

alleged lease violations with the opportunity to

request a meeting to discuss within . . . [ten]

days of the request. [Johnson’s] attorneys will

also be notified via email [one] business day

prior to issuing the written notice . . . . Please

see accommodation request dated 9/23/22

5

signed by [Johnson’s counsel] 10/14/22 and

Lisa Archuleta 10/18/22 for additional details.

¶ 10 In February 2023, Mercy Housing informed Johnson’s counsel

that it intended to file a motion to reopen the FED case to seek a

judgment for possession of the premises because Johnson had

materially violated the lease during the 120-day period specified in

the stipulation. Johnson filed an objection, in which he asserted,

Johnson has a disability and [Mercy Housing]

failed to follow Mr. Johnson’s previously

agreed upon reasonable accommodations

regarding how to notify him of any allegations,

including requiring verbal and written notice,

and requiring that [Mercy Housing] take into

account whether his disability contributed to

the behavior underlying the allegations, in

violation of Federal and Colorado Fair Housing

laws.

In addition, Johnson asserted,

On September 23, 2022, the parties met in

person to discuss the reasonable

accommodation request and the allegations

underlying his FED case. At that meeting, in

addition to other topics, the parties discussed

in detail Mr. Johnson’s reasonable

accommodation request. Specifically, [Mercy

Housing] agreed that, as a reasonable

accommodation of Mr. Johnson’s disabilities,

moving forward [Mercy Housing] would provide

Mr. Johnson detailed notice of alleged violations

both in writing and verbally, as well as

ensuring that Mr. Johnson would have the

6

opportunity to request a meeting to discuss any

allegations. [Mercy Housing] also agreed to

take into consideration whether Mr. Johnson’s

disability contributed to the alleged lease

violations.

The updated [Reasonable Accommodation]

Request clearly states that Mr. Johnson will be

given verbal and written notice of any alleged

violations to ensure that he understands the

allegations against him, as well as the

opportunity to meet to discuss the

violations . . . . In addition to requiring that

[Mercy Housing] provide verbal and written

notice and an opportunity to meet, the request

also required that [Mercy Housing] notify Mr.

Johnson’s counsel via email about the intent

to provide him a notice at least [one] business

day prior to doing so . . . . [T]his

accommodation governed any potential future

issues which was understood and agreed upon

by all parties.

¶ 11 In April 2023, Johnson filed a motion for leave to file an

amended answer to enable him to pursue CFHA and FHA

counterclaims against Mercy Housing. To facilitate the filing of the

counterclaims, Johnson requested that the case be transferred to

the district court.

2

2

Counterclaims alleging unfair or discriminatory behaviors

pursuant to the CFHA must be brought in the United States district

court or state district court. § 24-34-505.6(1), C.R.S. 2023.

7

¶ 12 Without awaiting a response from Mercy Housing, the county

court granted Johnson’s motion to transfer the case to district court

and his motion to file an amended answer. In his amended answer,

Johnson asserted multiple counterclaims, including that Mercy

Housing engaged in unlawful discriminatory housing practices by

not providing him with reasonable accommodations.

¶ 13 Mercy Housing filed a motion for reconsideration in the county

court, asserting that the court erred as a matter of law by allowing

Johnson to amend his answer. It argued that the only issue

properly before the court was whether Johnson violated the

stipulation. But because the case had already been transferred to

the district court, the county court was without jurisdiction and

took no action on the motion.

B. The District Court Proceedings

¶ 14 On August 2, 2023, the district court granted Mercy Housing’s

motion to reconsider. It found that the county court had

improvidently granted Johnson’s motion for leave to amend the

answer and therefore denied the motion, striking Johnson’s

amended answer and counterclaims. But the district court retained

jurisdiction over the case and set the matter for a one-day hearing

8

to address Mercy Housing’s motion for entry of judgment for

possession based on Johnson’s alleged violation of the stipulation.

¶ 15 That same day, Johnson filed a “Motion for Leave to Amend

Answer, to Continue August 7, 2023 Hearing, and to Reconsider,”

requesting that the court reconsider its decision to deny the motion

to amend and accept Johnson’s amended answer and

counterclaims, which included affirmative defenses and

counterclaims based on Mercy Housing’s alleged CFHA and FHA

violations.

¶ 16 At the beginning of the hearing, Mercy Housing objected to

Johnson’s motion for leave to amend and moved to strike any

evidence of discrimination and to bar Johnson from raising the

CFHA or FHA. Johnson argued that he had consistently asserted

his rights to reasonable accommodations, that such rights applied

to the enforcement of the stipulation, and that Mercy Housing had

agreed to provide reasonable accommodations with respect to any

alleged future violations of the stipulation. Johnson also noted the

General Assembly’s recent adoption of S.B. 23-184, which codified a

tenant’s right to raise CFHA violations as an affirmative defense in

9

FED actions. Ch. 402, sec. 6, § 13-40-113(2.5), 2023 Colo. Sess.

Laws 2413–14.

¶ 17 The district court again denied Johnson’s motion for leave to

amend and granted, in part, Mercy Housing’s motion to strike any

discrimination defense. The court concluded that Mercy Housing’s

motion for possession of the premises was limited to whether

Johnson violated the stipulation and that evidence of Mercy

Housing’s alleged CFHA and FHA violations was irrelevant to its

effort to enforce the stipulation. But the court also ruled that

Johnson could attempt to establish that the parties agreed to

incorporate reasonable accommodation requirements into the

stipulation. In reaching this conclusion, the district court noted

that S.B. 23-184, by its terms, did not apply to this case;

3

Johnson

could pursue claims for the alleged CFHA and FHA violations

outside the pending proceeding to enforce the stipulation; and the

matter had gone on for too long.

3

S.B. 23-184 states that the legislation applies to “conduct that

occurs after the applicable effective date of this act,” August 7,

2023. Ch. 402, sec. 7(2), 2023 Colo. Sess. Laws 2414.

10

¶ 18 Following the evidentiary portion of the hearing, Johnson’s

counsel attempted to argue that Mercy Housing had failed to

provide Johnson with reasonable accommodations with respect to

the alleged violations of the stipulation. When Mercy Housing

objected based on the court’s prior rulings, the court responded by

stating, “I’m not going to consider evidence of [f]air [h]ousing

[v]iolations.” As the basis for its entry of a judgment for possession

and ordering issuance of a writ of restitution in favor of Mercy

Housing, the court reasoned:

So the Court finds that it does have

jurisdiction over this matter and that [Mercy

Housing] has proven by preponderance of the

evidence, violations, sufficient of the —

sufficient violations of this non-judgment

stipulation agreement.

And will find in favor of [Mercy Housing]. The

Court further finds that the testimony of [the

current or former employees of Mercy Housing]

was all credible. The evidence from Dr. Silva [a

medical doctor who treated Johnson)] about

[Johnson’s] mental health condition, about

his — his other disabilities or associated

conditions from his traumatic brain injury

is — is the Court is sympathetic.

However, that is not the issue to be decided

here today. The issue is to decide whether or

not there had been a violation of the

stipulation agreement and [Mercy Housing’s]

11

witnesses were credible in their efforts to

testify about those issues, those specifics.

¶ 19 Johnson appealed and, shortly thereafter, his counsel filed a

motion to set aside the judgment and for a new trial under C.R.C.P.

60(b)(2). Johnson premised the motion on Mercy Housing’s failure

to disclose the two October 2022 accommodation documents that

Archuleta signed. A motions division of this court issued a limited

remand order directing the district court to conduct a hearing to

consider Johnson’s C.R.C.P. 60(b) motion. The district court

subsequently denied the motion.

¶ 20 Johnson now appeals the judgment of possession and the

order denying his motion for a new trial. Johnson argues that the

district court abused its discretion when it precluded him from

raising Mercy Housing’s alleged CFHA and FHA violations as an

affirmative defense and that the court erred by denying his post-

trial motion. We agree with the first contention and therefore do

not address the second.

12

II. CFHA as an Affirmative Defense

A. Standard of Review and Applicable Law

¶ 21 The proper construction of a statute presents a mixed

question of fact and law that we review de novo. Mook v. Bd. of

Cnty. Comm’rs, 2020 CO 12, ¶ 24. Our primary goal is to give effect

to the General Assembly’s intent. Id. To achieve that purpose, we

read a statutory scheme as a whole and give consistent,

harmonious, and sensible effect to all its parts, and we read words

and phrases in accord with their ordinary and common meanings.

Colo. Prop. Tax Adm’r v. CO2 Comm., Inc., 2023 CO 8, ¶ 22.

¶ 22 Like the issue of statutory construction, we review de novo the

legal question of whether an affirmative defense is available to a

defendant. In re Marriage of Kann, 2017 COA 94, ¶ 11. The

interpretation of a settlement agreement also presents a question of

law that we review de novo. See, e.g., Ringquist v. Wall Custom

Homes, LLC, 176 P.3d 846, 849 (Colo. App. 2007).

1. Forcible Entry and Detainer Actions

¶ 23 FED actions are expedited proceedings. The General Assembly

created a “special forcible entry and detainer action with accelerated

trial procedures . . . to avoid much of the expense and delay

13

incident to the more cumbersome action of ejectment formerly

employed at common law.” Miles v. Fleming, 214 P.3d 1054, 1056

(Colo. 2009). Section 13-40-104, C.R.S. 2023, requires that, before

filing an FED action, a landlord must provide a residential tenant

who has allegedly violated the terms and conditions of a lease with

written notice and an opportunity to cure the alleged breach.

¶ 24 A tenant who wishes to contest an FED action must provide

the court with a written answer that (1) sets forth the grounds on

which the tenant bases their claim for possession and (2) admits or

denies the material allegations of the complaint. In addition, the

tenant must present every defense upon which the tenant intends

to rely in the answer or a simultaneously filed motion. § 13-40-

113(1), C.R.S. 2023.

¶ 25 Normally, affirmative defenses are asserted within an answer.

C.R.C.P. 8(c). However, in the context of a motion to enforce the

terms of a settlement agreement, if the parties and the court treat

such motion as the equivalent of a new claim, a defendant’s

response to that motion may be treated as an answer. See Pima

Fin. Serv. Corp. v. Selby, 820 P.2d 1124, 1126-27 (Colo. App. 1991)

(holding that, when a party sets forth a claim arising after the initial

14

pleadings, and the parties consent to the procedure to address the

issues raised in a motion to enforce a settlement agreement, the

trial court may treat the motion as a complaint and the response as

an answer).

2. Fair Housing Claims

¶ 26 The CFHA and FHA prohibit landlords from engaging in

unlawful discriminatory behavior. See § 24-34-502(1)(a)(I), C.R.S.

2023; 42 U.S.C. § 3604. Such behavior includes refusing to “make

reasonable accommodations in rules, policies, practices, or services

when such accommodations may be necessary to afford the

individual with a disability equal opportunity to use and enjoy a

dwelling.” § 24-34-502.2(2)(b), C.R.S. 2023.

3. The CFHA as an Affirmative Defense to an FED Action

¶ 27 In February 2024, the Colorado Supreme Court addressed in

Miller v. Amos, 2024 CO 11, whether a tenant may assert an

affirmative defense predicated on the CFHA in the expedited context

of an FED action. Id. at ¶ 2; see also §§ 13-4-101 to -128, C.R.S.

2023. While acknowledging the tension created by the potential

delays associated with allowing a defense based on the CFHA, the

supreme court concluded that statutory requirement that FED

15

proceedings be expedited does not bar a tenant from asserting an

affirmative defense based on an alleged CFHA violation. Miller, ¶ 2.

¶ 28 In reaching this conclusion, the supreme court noted that

“due process requires that a defendant in an FED action has ‘an

opportunity to fully present available defenses.’” Id. at ¶ 26

(quoting Butler v. Farner, 704 P.2d 853, 858 (Colo. 1985)).

Moreover, the court reasoned,

Colorado’s FED law does not sacrifice a

tenant’s rights at the altar of expediency. On

the contrary, a tenant’s right “to be heard on

relevant matters, and to be secure in their

constitutional rights, as well as the desirable

purpose of preventing a multiplicity of suits, is,

and must be, superior to the desire to provide

a speedy remedy for possession.” A tenant

must be afforded due process. And “[s]ome

delay, of course, is inherent in any fair-minded

system of justice.”

Id. at ¶ 36 (first quoting Rosewood Corp. v. Fisher, 263 N.E.2d 833,

839 (Ill. 1970); and then quoting Pernell v. Southall Realty, 416 U.S.

363, 385 (1974)).

B. Application

¶ 29 While we appreciate that the district court did not have the

benefit of the Miller decision at the time of the possession hearing,

the case establishes that a tenant may assert a CFHA violation as

16

an affirmative defense in an FED action. This is true even if the

FED action preceded Miller. Id. at ¶ 38 n.5 (“S.B. 23-184 makes

clear what the law has been since the CFHA was enacted: A

landlord cannot evict a tenant for reasons that are unlawful under

the CFHA.”). This language from Miller applies irrespective of

whether a tenant had a possible alternative remedy for money

damages based on the alleged violation of the CFHA. Id. at ¶ 34 (“A

tenant’s right to be free from discriminatory conduct and right to

due process are undermined if the tenant is not able to prevent an

unlawful eviction in the first instance.”).

¶ 30 We do not agree with Mercy Housing’s argument that Johnson

was precluded from asserting the affirmative defense because he

had not previously asserted it. Johnson’s initial answer filed in the

county court preserved the right to amend the answer and raise

counterclaims based on alleged violations of the CFHA and FHA.

His county court answer was neither vacated nor abandoned when

the case was transferred to the district court. And the district

court’s order striking the amended answer did not effect a waiver of

the right to assert his defenses under the CFHA and FHA.

17

¶ 31 The stipulation permitted Johnson to oppose Mercy Housing’s

motion to reopen and to request a hearing in the FED proceeding.

In its motion to reopen the case, Mercy Housing alleged that

Johnson violated the lease after the parties entered into the

stipulation. In the motion, Mercy Housing requested a judgment of

possession and writ of restitution, based not on the allegations in

the original complaint, but on its new allegations regarding

Johnson’s post-stipulation violations of the lease. In his response,

Johnson defended against these new allegations. The parties and

the district court ignored the original allegations — which Johnson

never admitted and upon which judgment was never entered — and

treated the new allegations in the motion to reopen as the basis for

a judgment of possession and writ of restitution.

¶ 32 Under these circumstances, Mercy Housing’s motion operated

as the functional equivalent of a complaint because it asserted a

claim for relief when it requested that the court reopen the case,

enter a judgment of possession in its favor, and issue a writ of

restitution. See Pima, 820 P.2d at 1126. Johnson’s response to the

motion operated as the functional equivalent of an answer and

asserted that he was denied his right to reasonable

18

accommodations in the enforcement of the stipulation. See id. And

the hearing on the motion to reopen was the functional equivalent

of a new FED hearing. Thus, the court erred by not allowing

Johnson to plead the CFHA as an affirmative defense.

¶ 33 Mercy Housing alternatively argues that, even if an alleged

violation of the CFHA was available as an affirmative defense and

Johnson adequately asserted it, he nevertheless waived such a

defense under the terms of the stipulation. Mercy Housing points

to the first paragraph of the stipulation, which notes that the

parties entered into it as a reasonable accommodation under the

CFHA and the FHA. Mercy Housing then points to paragraph three

of the stipulation, which sets forth the obligations that Johnson

agreed to perform, and paragraph four, which states as follows:

If [Mercy Housing] alleges that [Johnson] has

failed to comply with any of the requirements

stated in paragraph [three], [Mercy Housing]

will file a motion to Reopen Case and Enter a

Judgment for Possession and Issue a Writ of

Restitution [forty-eight] hours after giving

[Johnson], via [Johnson’s] counsel, a Notice of

Default specifying in detail the alleged

default . . . .

Taken together, Mercy Housing argues that these provisions

amounted to a settlement of any past CFHA and FHA violations and

19

a prospective waiver of the right to reasonable accommodations in

the enforcement of the stipulation based on subsequent breaches of

its terms.

¶ 34 Johnson responds by noting that Mercy Housing fails to cite

any authority to support the conclusion that a tenant may

prospectively waive their right to reasonable accommodations under

the CFHA or FHA. Johnson also argues that federal authorities

arising in the context of employment discrimination counsel against

the enforcement of a prospective waiver of rights under the CFHA or

FHA. See, e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 51

(1974) (“[W]e think it clear that there can be no prospective waiver

of an employee’s rights under Title VII [of the Civil Rights Act of

1964]. . . . [W]aiver of these rights would defeat the paramount

congressional purpose behind Title VII.”); Tex. Dep’t of Hous. &

Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 533

(2015) (applying disparate impact case law under Title VII in

interpreting the FHA).

¶ 35 But even if we assume, without deciding, that a tenant may

prospectively waive their rights under the CFHA and FHA, we

conclude that the stipulation did not accomplish such a waiver.

20

Although paragraph four allowed Mercy Housing to file a motion to

reopen the dismissed case to seek a judgment for possession and

writ of restitution in the event of Johnson’s alleged breach, the last

sentence of paragraph four permitted Johnson to oppose the motion

and request a hearing. The stipulation does not state that Johnson

waived any defenses he may have with respect to future breaches of

the lease or motions to enforce the stipulation.

¶ 36 Moreover, the stipulation does not support Mercy Housing’s

argument that the motion to enforce the stipulation presented only

a contractual claim that was independent of the parties’ rights and

obligations under the FED statutes. The stipulation repeatedly

references the substance, procedures, and remedies of the FED

statutes. Moreover, in its district court filings and at the hearing,

Mercy Housing repeatedly invoked its rights and remedies under

the FED statutes.

¶ 37 Finally, we fail to see a material distinction between a claim to

enforce the terms of a lease agreement through application of the

FED statutes and the claim to enforce this stipulation through

application of the FED statutes. Both actions are brought to

enforce the terms of a lease, and both actions are subject to the

21

rights, remedies, and defenses associated with the FED statutes,

including affirmative defenses under the CFHA. Miller, ¶ 2.

¶ 38 Based on the foregoing, we conclude that Johnson did not

waive his right to assert alleged violations of the CFHA and the FHA

as affirmative defenses to Mercy Housing’s motion to reopen the

FED case to enforce the stipulation.

¶ 39 Finally, we note that, in addition to his affirmative defense

based on the CFHA and the FHA, Johnson also asserted that the

parties agreed that enforcement of the stipulation would be subject

to reasonable accommodations. Mercy Housing disputes this

contention, and the district court resolved the contractual

interpretation claim against Johnson. But the district court did so

based on testimony from Mercy Housing representatives whom

Johnson was unable to impeach with evidence of the two

accommodation forms that Archuleta signed in October 2022.

Because the district court excluded it, we cannot say whether such

evidence would have materially impacted the court’s assessment of

the witnesses’ credibility or its interpretation of the stipulation. On

remand, the district court should determine, consistent with this

opinion, whether the documents may be admitted into evidence.

22

C. Other Matters

¶ 40 In view of our resolution of the reasonable accommodation

issues, we need not address Johnson’s contention that the district

court erred by denying his motion for a new trial.

¶ 41 It is important to summarize what we are not deciding. We do

not resolve the nature and extent of any reasonable

accommodations Mercy Housing was required to provide Johnson,

whether under the CFHA, FHA, or the stipulation, and we do not

decide whether Mercy Housing failed to fulfill any such obligations.

Similarly, we do not address the merits of Mercy Housing’s

argument that it was excused from providing Johnson with

reasonable accommodations based on its contention that his

conduct jeopardized the safety of other tenants. See

§ 24-34-502(1)(a)(I) (“[N]othing in this subsection (1)(a) requires a

dwelling to be made available to an individual whose tenancy would

constitute a direct threat to the health or safety of other individuals

or whose tenancy would result in substantial physical damage to

the property of others.”). The parties and the court may address

these issues on remand.

23

VI. Disposition

¶ 42 The district court’s judgment for possession is reversed, the

order for issuance of a writ of restitution is vacated, and the case is

remanded for further proceedings consistent with this opinion.

JUDGE LIPINSKY and JUSTICE MARTINEZ concur.