Arnold v. Brent

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
September 19, 2024

2024COA104

No. 23CA1288, Arnold v. Brent — Real Property — Quiet Title;
Taxation — Property Tax — Sale of Tax Liens — To Whom Tax
Lien Shall be Sold — Entire Piece of Property

In this quiet title action, a division of the court of appeals

considers whether a county treasurer’s office is authorized under

section 39-11-115, C.R.S. 2024, to sell a tax lien on a partial

interest in real property consisting of distinct, but undivided,

interests. The division concludes that a treasurer’s office does not

have this authority because section 39-11-115 requires that a tax

lien be sold for “an entire piece of property.” Accordingly, a

treasurer’s deed issued under section 39-11-128, C.R.S. 2024,

resulting from such a sale and without notice to all interest holders

is void.
COLORADO COURT OF APPEALS 2024COA104

Court of Appeals No. 23CA1288
Washington County District Court No. 22CV4
Honorable Justin B. Haenlein, Judge

April Katri Arnold,

Plaintiff-Appellant,

v.

Nelson Brent,

Defendant-Appellee.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE MOULTRIE
Fox and Schutz, JJ., concur

Announced September 19, 2024

April Katri Arnold, Pro Se

No Appearance for Defendant-Appellee

Gordon Rees Scully Mansukhani LLP, Reagan Larkin, Denver, Colorado;
Messner Reeves, LLP, Deanne R. Stodden, Denver, Colorado, for Amicus Curiae
Colorado Bar Association Real Estate Law Section
¶1 In this action to quiet title to real property, plaintiff, April Katri

Arnold, appeals the judgment entered in favor of defendant, Nelson

Brent. We reverse and remand the case to the district court with

directions.

I. Background

¶2 Arnold, Ronald Brown, Roy Brown, Mary Alley, and Jack

Waldrop owned a forty-acre property (the property) located in

Washington County as tenants in common. Arnold owned an

undivided one-quarter interest in the property, which was granted

to her by quitclaim and trustee’s warranty deeds executed in 2007.

Ronald Brown, Roy Brown, Alley, and Waldrop collectively owned

the remaining undivided three-quarters interest in the property,

allocated as follows: one quarter owned by Alley, one quarter owned

by Waldrop, and one eighth each owned by Ronald Brown and Roy

Brown. For reasons not clear from the record, at some unstated

time the Washington County Assessor (the assessor) assigned

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separate parcel identification numbers1 to Arnold’s interest and the

remaining three-quarters interest. As a consequence, Arnold and

the owners of the three-quarters interest were separately billed for

their shares of the taxes assessed against the property as a whole.

¶3 In 2011, the owners of the three-quarters interest failed to pay

their portion of the taxes, and the Washington County Treasurer

(the treasurer) issued a notice of delinquent taxes — but only with

respect to the three-quarters interest and only to the owners of that

interest. A tax lien was later issued on that interest only and, in

2012, the treasurer issued notice of a pending sale of the lien.

Arnold was not notified of the sale. In December 2014, Nelson

Brent purchased the purported tax lien.

¶4 After the applicable redemption period expired, Brent

requested a treasurer’s deed for the three-quarters interest from the

treasurer. The treasurer provided notice of Brent’s request for the

1 A parcel is “a defined, single unit of real estate,” and a parcel

identification number is “a composite of numbers representing a
specific defined area of real estate on an assessment map.” 2 Div.
of Prop. Tax’n, Dep’t of Loc. Affs., Assessors’ Reference Library § 14,
at 14.2 (rev. Mar. 2024). Each parcel identification number is
based on the legal description of the parcel and ownership status.
Id. at 14.26.

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deed by posting notice at the county courthouse, publishing the

notice, and sending it to the four individuals who owned a portion

of the three-quarters interest. The treasurer sent the notices via

certified mail. But the treasurer didn’t send the notice to Arnold.

None of the owners of the three-quarters interest redeemed the tax

lien, so in August 2017, the treasurer issued Brent a treasurer’s

deed purportedly conveying the three-quarters interest in the

property to him.

¶5 Arnold learned about Brent’s treasurer’s deed for the

three-quarters interest in the property after he sent her a letter in

December 2017 asking to buy her interest.

¶6 Arnold filed a quiet title complaint to determine ownership of

the property in October 2022. Arnold alleged that the treasurer’s

deed was void or voidable because a tax lien must be sold for an

entire piece of property and because she did not receive notice of

the tax lien sale or Brent’s request for the treasurer’s deed. Brent

filed an answer and a counterclaim for partition.

¶7 After a bench trial, the district court found that because

Arnold was not a record owner of the three-quarters interest in the

property, she was not entitled to notice of the tax lien sale or

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Brent’s request for the issuance of the treasurer’s deed. The court

therefore concluded that the deed was not void because the

treasurer had complied with the statutory requirements for issuing

notices of the tax lien sale and Brent’s request for a treasurer’s

deed. The district court also found that, even if Arnold was an

interested party entitled to notice, she did not suffer an injury

because Roy Brown, one of the three-quarters interest owners, was

likely to redeem the three-quarters interest if the deed were voided

and the tax lien sale were started anew. The district court then

granted Brent’s request to partition the property, allowing Arnold to

select a contiguous ten-acre tract located at “any corner of the

property or any continuous strip.” The court awarded the rest of

the property to Brent and made Arnold responsible for twenty-five

percent of the costs associated with partitioning the property.

II. Discussion

¶8 On appeal, Arnold contends that the district court erred by

failing to void Brent’s treasurer’s deed and by concluding that she

was not otherwise entitled to relief. Arnold is self-represented in

this appeal, so we broadly construe her pleadings “to ensure that

[she is] not denied review of important issues because of [her]

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inability to articulate [her] argument like a lawyer.” People v. Cali,

2020 CO 20, ¶ 34 (quoting Jones v. Williams, 2019 CO 61, ¶ 5).

However, we will not rewrite her pleadings or act as an advocate on

her behalf. Id.

¶9 Applying these principles, we construe Arnold’s opening brief

to contend that the district court committed multiple errors. Her

main contention is that the district court erred by determining that

the treasurer’s deed was not void or voidable. We agree with Arnold

that the district court erred by not determining the deed to be void.

Accordingly, of her remaining arguments, we address only whether

the district court should have awarded her costs.

A. Validity of the Treasurer’s Deed

¶ 10 We first note that section 39-12-101, C.R.S. 2024, places a

five-year time limit on actions to recover land. That section states

that “[n]o action for the recovery of land for which a tax deed was

issued . . . for delinquent taxes shall lie unless the same is brought

within five years after the execution and delivery of the deed.”

§ 39-12-101.

¶ 11 Arnold filed suit in October 2022 — two months past section

39-12-101’s five-year time limit. However, a void deed is not

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subject to section 39-12-101’s time bar. Lake Canal Reservoir Co.

v. Beethe, 227 P.3d 882, 886 (Colo. 2010) (“[A] deed is void and

therefore not subject to the statute of limitations when the taxing

entity had no jurisdiction or authority to issue the deed.”).

¶ 12 In her reply to Brent’s counterclaim, Arnold referenced Lake

Canal Reservoir Co. in support of her argument that the deed was

void. During the hearing, Brent repeatedly expressed concern that

Arnold waited “twelve years” to seek recourse — despite knowing

that she maintained a one-quarter interest in the property and that

there was “potential for the other three-fourths to [go] to tax sale.”

To the extent that Brent, who appeared pro se in the district court,

was asserting that Arnold’s claim was time barred, we conclude that

it was not because, as discussed below, the deed was void. See

Grear v. Mulvihill, 207 P.3d 918, 922 (Colo. App. 2009) (expired

statute of limitations is an affirmative defense, not a jurisdictional

bar). See generally Soicher v. State Farm Mut. Auto. Ins. Co., 2015

COA 46, ¶ 32 (discussing parties’ implicit adjudication of affirmative

defenses not raised in pleadings).

¶ 13 Turning to the merits of Arnold’s challenge to the validity of

Brent’s deed, we conclude, for the reasons explained below, that the

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district court erred by failing to declare the deed void because it

originated from a tax lien issued and sold by the treasurer contrary

to statute.

1. Standard of Review and Applicable Law

¶ 14 We apply a mixed standard of review to orders entered after a

trial before a judge. We review the district court’s factual findings

for clear error. See C.R.C.P. 52. A factual finding is clearly

erroneous only when it lacks any support in the record. Cronk v.

Bowers, 2023 COA 68M, ¶ 12. We review a district court’s legal

conclusions, including its interpretation of relevant statutes, de

novo. McMullin v. Hauer, 2018 CO 57, ¶ 13.

¶ 15 County assessors are tasked with valuing real property for

property tax purposes. § 39-1-103(5)(a), C.R.S. 2024; Bartlett &

Co., Grain v. Bd. of Cnty. Comm’rs, 382 P.2d 193, 200 (Colo. 1963)

(“The duty of listing and valuing all taxable property devolves upon

the assessor . . . alone.”). The county assessor is required to

ascertain ownership of property from the records of the county clerk

and recorder. § 39-5-102(1), C.R.S. 2024.

¶ 16 Property owners with record title are responsible for paying

property taxes. Hinsdale Cnty. Bd. of Equalization v. HDH P’ship,

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2019 CO 22, ¶ 25. County treasurers are responsible for collecting

the taxes. § 39-10-101, C.R.S. 2024. If a property owner does not

timely pay their real property taxes, “a tax lien attaches against the

property for the amount of taxes levied against the property

together with any delinquent interest, costs, and fees.” Dove Valley

Bus. Park Assocs., Ltd. v. Bd. of Cnty. Comm’rs, 945 P.2d 395, 399

(Colo. 1997); see also § 39-1-107, C.R.S. 2024.

¶ 17 The county treasurer must notify delinquent owners of any

delinquent amount and inform them that the tax lien will be sold at

a public auction if the delinquent amount is not paid by a date

certain. § 39-11-101, C.R.S. 2024. “Each tax lien shall be sold for

an entire piece of property.” § 39-11-115(1), C.R.S. 2024.

¶ 18 A third party may purchase a tax lien by paying the

outstanding taxes, interest, and fees. See Red Flower, Inc. v.

McKown, 2016 COA 160, ¶ 1; see §§ 39-11-101 to -115, C.R.S.

2024. After the tax lien is sold, a property owner — or any person

with a legal or equitable interest in the property — has a right to

redeem the tax lien within three years of the date of sale. Red

Flower, ¶ 1; § 39-11-120(1), C.R.S. 2024; § 39-12-103(1), C.R.S.

2024. But if no one with a right to redeem does so within the

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redemption period, the tax lienholder may apply for a treasurer’s

deed. Wells Fargo Fin. Colo., Inc. v. Olivas, 2017 COA 158, ¶ 2; see

§ 39-11-120(1).

¶ 19 We presume that a treasurer’s deed is valid. Olivas, ¶ 17.

Thus, a party “attacking the validity of a [treasurer’s] deed on the

ground of defective notice of a pending tax sale has the burden of

presenting evidence of the defect.” Id. A deed is voidable when the

county treasurer’s notice is statutorily insufficient, but a deed is

void when the taxing entity had no jurisdiction or authority to issue

it. Red Flower, ¶ 53.

2. Additional Relevant Facts

¶ 20 Patricia Bartlett, the Logan County Treasurer, was called as a

witness by Arnold and qualified as an expert to testify about

property titles, collection of taxes, tax lien sales, and the treasurer’s

deed process. She testified that a property is usually assessed as a

whole, regardless of its various interests.

¶ 21 Bartlett testified that, prior to “the late 1990s or early 2000s,”

it was common practice for treasurers’ offices to see separate parcel

identification numbers for partial interests in the same property,

but at some point, the Division of Property Taxation “told the

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assessor’s office that they need to be assessing, basically, one piece

of property, one parcel.”

¶ 22 The court asked Bartlett whether assessing an entire parcel,

rather than its individual interests, was “just a best practice” or a

legal requirement. Bartlett responded, “As far as I know, it’s not a

requirement.” She testified that, in 2005, the Division of Property

Taxation informed county assessors that “[o]ne parcel identification

number should be assigned to a parcel regardless of the number of

undivided interest holders,” but if an owner requested that their

partial interest be assigned a separate parcel identification number,

the assessor could accommodate the owner.

¶ 23 Bartlett testified that treasurers’ offices rely on property

records supplied by assessors’ offices to determine the appropriate

amount of tax for a property, and that “how [the property

information] comes over to the treasurer, that’s how [the treasurer]

continue[s] to collect and eventually sell, if that’s necessary.”

¶ 24 Bartlett confirmed that section 39-11-128, C.R.S. 2024,

requires notice to be sent to all persons with an interest in the

property or title of record before a deed is issued. And she testified

that it appeared Arnold had not been provided with any of the

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required notices of Brent’s request for the issuance of the

treasurer’s deed because her name was not included on the notice

created by the treasurer.

¶ 25 Arnold admitted as an exhibit the certificate of purchase for

the tax sale and asked Bartlett whether the description of property

on it would cause Bartlett to question whether there was an

additional owner who needed to be provided with notice. Bartlett

testified that she would attempt to notify all of a property’s potential

owners before issuing a treasurer’s deed, but that she did not

believe that the treasurer had the authority to change how property

is listed on the tax assessment rolls.

¶ 26 Arnold also submitted as an exhibit a letter from an attorney

representing the Washington County Board of Commissioners

acknowledging that

the establishment of the two accounts did not
result (nor was it intended to) in the division of
the undivided interests in the property and Ms.
Arnold was still a co-tenant of the entire 40
acre parcel. . . . Ms. Arnold, as a co-tenant of
the 40-acre parcel, is one of the individuals
entitled to notice under [section 39-11-128] if
her ownership interest was reasonably
discernable. . . . In this circumstance, the
Treasurer’s Deed was issued for only [three-
fourths] of the entire parcel. A treasurer’s

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deed may be void if it conveys only a portion of
the entire property because the underlying tax
lien must be for the entire property. Void
deeds are not subject to the statute of
limitations and may be challenged at any time
in the future.

¶ 27 The letter also stated (without reference to authority) that

“[a]lthough previously it was permissible to assess property by

fractional interest, that practice is no longer permitted in Colorado.”

¶ 28 In its written order, the district court found that the assessor

complied with Colorado law, even though the assessor provided

separate parcel identification numbers for Arnold’s interest and the

three-quarters interest in the property, because no Colorado statute

or regulation prohibits the assessor from providing separate parcel

identification numbers for separate interests in a property.

¶ 29 The court further found that, when the owners of the

three-quarters interest failed to pay their portion of the taxes on the

property, Arnold was not entitled to notice of the tax lien sale

because she “was not a recorded owner of [the three-quarters

interest] and had a separate property tax identification number [for

her one-quarter interest in the property].” Similarly, the court

found that Arnold was not entitled to notice of Brent’s application

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for the treasurer’s deed because the three-quarters interest was not

taxed in her name, and she was not “a person having an interest or

title of record in or to” the three-quarters interest. Consequently,

the court concluded that the treasurer2 “complied with the proper

procedures in the tax sale and subsequent issuance of the

Treasurer’s Deed.”

¶ 30 After also finding that Arnold had not otherwise demonstrated

an injury, the court denied her request to void the treasurer’s deed

and granted Brent’s request for partition.

3. Analysis

¶ 31 The court concluded that there was no legal prohibition

against the assessor assigning separate parcel identification

numbers to distinct (but undivided) interests in the same property.

We have not found any legal authority that supports this

conclusion.

2 The order references the assessor, but we presume this was

inadvertent because the treasurer is responsible for coordinating
tax lien sales and executing treasurer’s deeds. See §§ 39-11-101,
-129, C.R.S. 2024.

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¶ 32 Even if the assessor had the authority to issue separate parcel

identification numbers,3 the court erroneously overlooked the

treasurer’s independent duty to “carefully examine” the assessor’s

delinquent tax list and compare it to the treasurer’s own records to

prevent an erroneous tax lien from being sold. See § 39-11-107,

C.R.S. 2024. And to the extent that the treasurer identified any

confusion created by using separate parcel identification numbers,

the treasurer had both the authority and responsibility to correct

that confusion before initiating the tax sale process. See

§ 39-10-101; Marsico Cap. Mgmt., LLC v. Denver Bd. of Cnty.

Comm’rs, 2013 COA 90, ¶ 32 (noting the assessor and the treasurer

are authorized to correct errors in the assessment roll).

¶ 33 Arnold and the owners of the three-quarters interest each

owned separate fractional shares of one undivided property. See

Sandstrom v. Solen, 2016 COA 29, ¶ 36. Though the interested

owners were billed separately, the property was valued and

3 As illustrated by the facts of this case, the use of separate parcel

identification numbers to bill portions of the taxes due from various
owners of a single property creates a significant risk of confusion for
assessors, treasurers, property owners, and the public. But it is
the General Assembly’s exclusive province to consider changes to
the legislative scheme that might prevent or eliminate such risks.

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assessed as one parcel. The plain language of section 39-11-115(1)

requires each tax lien to be sold for an entire piece of property.

Because the treasurer purportedly sold a lien encumbering only the

three-quarters interest in the property in violation of the statute,

the treasurer lacked authority to issue the treasurer’s deed to

Brent, rendering the deed void.4 See Lake Canal Reservoir Co., 227

P.3d at 886; see also Red Flower, ¶ 53 (a deed is void when the

taxing entity had no authority to issue it).

¶ 34 The basis of Brent’s legal interest in the property was the

treasurer’s deed. Because the deed was void, he had no legal

interest in the property on which to make a request for partition.

See Lake Canal Reservoir Co., 227 P.3d at 887 (“A void deed is a

nullity, invalid ab initio, or from the beginning, for any purpose. It

does not, and cannot, convey title, even if recorded.” (quoting

Delsas v. Centex Home Equity Co., 186 P.3d 141, 144 (Colo. App.

2008))); see also 59A Am. Jur. 2d Partition § 61, Westlaw (database

4 Having concluded that Brent’s deed was void because it was

issued contrary to the treasurer’s statutory authority, we need not
address Arnold’s argument that the deed was voidable due to lack
of notice.

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updated May 2024) (property cannot be partitioned unless its title

has been clearly established).

¶ 35 Lastly, we reject the district court’s conclusion that, even if the

deed were void, Arnold would not be able to redeem the tax lien

because Roy Brown testified that he would redeem it. The future

actions of the interested owners are speculative. Moreover, Roy

Brown’s stated intent to redeem the lien if the court determined the

deed to be void was inconsequential to the determination of whether

the treasurer had the authority to sell a lien encumbering only the

three-quarters interest in the property in the first place.

¶ 36 Accordingly, we reverse the district court’s judgment

determining that Brent’s deed was valid and its order of partition.

B. Denial of Costs

¶ 37 It’s unclear whether Arnold is appealing the court’s denial of

her motion for summary judgment, in which Arnold requested that

she be awarded various damages and costs, or the court’s denial of

her asserted costs associated with bringing her complaint as the

non-prevailing party.

¶ 38 To the extent that she is appealing the court’s denial of her

motion for summary judgment, we have no jurisdiction to consider

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that issue. Tisch v. Tisch, 2019 COA 41, ¶ 47 (denial of a motion for

summary judgment is not a final determination on the merits and is

therefore not appealable after a final judgment following a trial).

¶ 39 The district court’s cost award in favor of Brent is vacated by

virtue of our reversal of the judgment in favor of Brent. See, e.g.,

Nichols v. Burlington N. & Santa Fe Ry. Co., 56 P.3d 106, 110 (Colo.

App. 2002) (an award of costs must be vacated when the judgment

supporting that award is reversed). To the extent Arnold is arguing

that the court should have considered awarding her reasonable

costs because she should have been the prevailing party below, the

district court on remand is directed to consider and award to Arnold

her reasonable costs related to her pursuit of the quiet title and

defense of the partition claims, as contemplated by C.R.C.P. 54(d)

and C.A.R. 39. See Miller v. Hancock, 2017 COA 141, ¶ 46 (district

court’s award of costs must include an explanation of whether and

which costs are deemed reasonable).

III. Disposition

¶ 40 The district court’s judgment determining the treasurer’s deed

to be valid and ordering partition of the property is reversed. On

remand, the district court must (1) enter an order declaring the

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treasurer’s deed to be void and (2) determine and award to Arnold

her reasonable costs associated with bringing her quiet title

complaint, defending against Brent’s counterclaim, and pursuing

this appeal.

JUDGE FOX and JUDGE SCHUTZ concur.

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