Gamblers Ridge v. Alejandre-Avina

24CA0398 Gamblers Ridge v Alejandre-Avina 12-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0398
Delta County District Court No. 23CV30006
Honorable Mary E. Deganhart, Judge

Gamblers Ridge Investments, LLC,

Plaintiff-Appellant,

v.

Cruz J. Alejandre-Avina and Fabiola Ma Gomez De Alejandre,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE DUNN
Gomez and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 5, 2024

Hoskin Farina & Kampf, PC, Andrew H. Teske, Brent A. Starnes, Grand
Junction, Colorado, for Plaintiff-Appellant

Rider & Quesenberry, LLC, Lloyd Quesenberry, Grand Junction, Colorado, for
Defendants-Appellees

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Plaintiff, Gamblers Ridge Investments, LLC (Gamblers Ridge),

owns property surrounding the property of defendants, Cruz J.

Alejandre-Avina and Fabiola Ma Gomez De Alejandre (Alejandres)

on three sides. Because Gamblers Ridge is the record owner of

some of the property occupied by the Alejandres, Gamblers Ridge

filed this action against the Alejandres asserting claims for trespass

and injunctive relief. The Alejandres counterclaimed for adverse

possession of the disputed property. The trial court found in favor

of the Alejandres on their adverse possession claim and dismissed

the remaining claims. Gamblers Ridge appeals that judgment. We

affirm.

I. Background

¶2 In 2011, the Alejandres purchased property in Cedaredge,

Colorado, that included a house. At that time, there was a driveway

leading to the house and fencing on the property’s north, east, and

west sides. According to evidence presented at trial, the driveway

had been in place since at least 1996, as had the fencing on the

property’s north, east, and west sides. Less clear is whether a fence

existed on the property’s south side when the Alejandres purchased

the property. But two witnesses testified that a wire fence crossed

1
the driveway (located on the property’s south side) in 1996. After

their purchase, the Alejandres replaced or added some fencing in

roughly the same location as the existing fencing, and perhaps

added some fencing on the south side, enclosing the area

highlighted below.

At trial, Mr. Alejandre testified that he understood and believed that

the highlighted area was included in the property he purchased.1

¶3 In 2022, Gamblers Ridge purchased the property that

surrounds the Alejandres’ property on three sides. At the time of its

purchase, the Alejandres’ house and driveway were visible, as was

1 This excerpt is from an admitted trial exhibit. The highlighted
portion is added simply for ease of reference.

2
the fencing on all sides of the property (as shown above). After its

purchase, Gamblers Ridge had the property surveyed. The survey

showed that Gamblers Ridge is the record owner of some of the land

occupied by the Alejandres — including the land on which the

driveway to their house sits. The survey excerpted below shows the

legal boundary lines of the Alejandres’ property — marked

“exception” — with the disputed property highlighted.

¶4 Armed with the survey, Gamblers Ridge brought a claim for

trespass against the Alejandres and requested injunctive relief. The

Alejandres counterclaimed to quiet title to the disputed property,

asserting legal ownership through adverse possession.

¶5 After a bench trial, the court issued a written order finding in

favor of the Alejandres on their adverse possession claim. In doing

so, the court relied on Mr. Alejandre’s testimony that the property

3
was “closed” when he bought it; a photograph from 1975 showing

boundary lines that corresponded to the current fence line; and the

“credible and compelling” testimony of a retired UPS driver and a

former chief of police who both confirmed the existence of fencing

on the property’s east, west, and north sides along with a wire fence

across the driveway leading to the house dating back to at least

1996. As additional support for its adverse possession finding, the

court inferred that previous owners had acquiesced in the

boundaries because it found that “the same boundaries” have “been

in place since at least 1975.” The court therefore dismissed the

claims for trespass and injunctive relief.

II. Analysis

¶6 Gamblers Ridge maintains that the Alejandres failed to prove

their adverse possession claim and that the court erred by

“considering the doctrine of boundary line acquiescence.” Because

we conclude the record supports the adverse possession judgment,

we needn’t consider whether the court separately quieted title under

the boundary line acquiescence doctrine.

4
A. Legal Principles and Standard of Review

¶7 To bring a successful adverse possession claim, a party must

demonstrate by clear and convincing evidence that possession of

the disputed area was actual, adverse, hostile, under a claim of

right, exclusive, and uninterrupted for eighteen years. See Smith v.

Hayden, 772 P.2d 47, 52 (Colo. 1989); § 38-41-101(1), C.R.S. 2024.

Adverse claimants need not actually possess the disputed property

for eighteen years but may rely on their predecessors’ use by

“tacking” successive adverse possessions. Doty v. Chalk, 632 P.2d

644, 646 (Colo. App. 1981). “Every reasonable presumption is

made in favor of the true owner as against adverse possession.”

Schuler v. Oldervik, 143 P.3d 1197, 1202 (Colo. App. 2006) (quoting

Lovejoy v. Sch. Dist. No. 46, 269 P.2d 1067, 1070 (Colo. 1954)).

¶8 An appeal from a judgment following a bench trial presents a

mixed question of fact and law. State Farm Mut. Auto. Ins. Co. v.

Johnson, 2017 CO 68, ¶ 12. We review the court’s factual findings

— including whether possession is hostile or adverse — for clear

error, meaning we will disturb the trial court’s findings only if they

are not supported by the record. See Smith, 772 P.2d at 52-53; see

also Beaver Creek Ranch, L.P. v. Gordman Leverich Ltd. Liab. Ltd.

5
P’ship, 226 P.3d 1155, 1161 (Colo. App. 2009). But we review the

court’s legal conclusions de novo. State Farm, ¶ 12.

B. Adverse Possession

¶9 Gamblers Ridge says that the Alejandres failed to prove “each

element of adverse possession.” We are unpersuaded.

1. Statutory Period

¶ 10 As we understand it, Gamblers Ridge first argues that the

court failed to find when the statutory period began to run and,

without that express finding, the court couldn’t “tack” the

Alejandres’ use to that of the previous owner.

¶ 11 We don’t read the court’s order the same way. Based on our

reading, the court found the statutory period began running no

later than 1996. Indeed, the court found — with record support —

that the fencing on the east, west, and north sides of the Alejandres’

property, along with the driveway and a fence crossing the

driveway, were in existence as early as 1996. And Mr. Alejandre

testified that he purchased the property in 2011 directly from the

previous owner and believed the fencing established the

boundaries. Privity of possession is all that’s required to permit the

6
Alejandres “to tack their possession to that of their predecessor.”2

Trueblood v. Pierce, 179 P.2d 671, 677 (Colo. 1947); see also

Maralex Res., Inc. v. Chamberlain, 2014 COA 5, ¶ 20 n.2.

¶ 12 But even assuming the court could have been more explicit in

finding that the statutory period began in 1996 or perhaps 1975

(another date referenced by the court), because either date satisfied

the statutory period and Gamblers Ridge never presented evidence

that the possession was interrupted, the exact date that the adverse

possession began is not critical. More specifically, any error in not

plainly identifying 1996 or 1975 as the start of the adverse entry is

harmless. See C.R.C.P. 61.

2. Uninterrupted Use

¶ 13 Gamblers Ridge briefly asserts that “[s]erious doubt exists with

respect to the uninterrupted and continuous elements.” But

Gamblers Ridge doesn’t point to any break or interruption between

the Alejandres’ possession and the previous owner. And the

evidence showed that the Alejandres purchased the property

2 At trial, Gamblers Ridge acknowledged that the owner previous to

the Alejandres possessed the property as far back as the 1960s.

7
directly from the previous owner with the driveway and at least the

north, west, and east fencing in place, all on the disputed property.

¶ 14 While there was some conflicting testimony about the

existence of the southern fence in 2011, it’s undisputed the

driveway was present on the disputed property in 1996, as was a

fence crossing the driveway. And Gamblers Ridge doesn’t explain

why the existence of a southern fence in 2011 relates to the

continuity of possession. Without explanation or developed

argument, we are unable to consider that assertion further. See

Antolovich v. Brown Grp. Retail, Inc., 183 P.3d 582, 604 (Colo. App.

2007) (addressing only “adequately developed” arguments).

3. Actual, Exclusive, and Adverse Use

¶ 15 Gamblers Ridge broadly asserts that the evidence was

insufficient to show actual, exclusive, and adverse use by the

Alejandres and their predecessor.

¶ 16 “[T]o actually and exclusively possess the land, the adverse

possessor need only act as the average landowner would in utilizing

the land for the ordinary use of which it is capable.” Schuler, 143

P.3d at 1203. To do that, the possessor may use visible means that

puts the world on notice of the possessor’s dominion over the

8
parcel. See id. Once a possessor demonstrates actual and

exclusive possession of the property for the statutory period, a

presumption arises that the possession was adverse. Id.; see also

Smith, 772 P.2d at 52.

¶ 17 The Alejandres presented evidence to support a finding of

actual and exclusive possession for the statutory period, raising a

presumption of adverse possession. Specifically, the evidence

established that a house was present in 1996 accessible by an open

and visible driveway located on the disputed property. A reasonable

inference from that evidence is the driveway was actually and

actively used to access the house and property. And a retired UPS

driver and a retired chief of police — who have no ownership

interest in the property — testified that fencing was in place in 1996

on the property’s east, west, and north sides and that a gate

crossed the driveway on the south side. From this evidence, it’s

reasonable to infer that the Alejandres’ immediate predecessor

openly claimed all the property within the fence as their own and

for their exclusive use. See Smith, 772 P.2d at 52 (“Any actual

visible means, which gives notice of exclusion from the property to

the true owner or to the public and of the defendant’s dominion

9
over it, is sufficient” to show actual occupancy.) (quoting Anderson

v. Cold Spring Tungsten, Inc., 458 P.2d 756, 759 (Colo. 1969)). And

Mr. Alejandre confirmed that when he purchased the property, the

driveway was present and he believed that the fencing marked the

boundaries of his property.

¶ 18 Gamblers Ridge presented no contrary evidence. Indeed, no

evidence suggests Gamblers Ridge’s predecessor ever claimed

ownership of the disputed property, used the disputed property, or

believed the fence didn’t establish the boundaries of the Alejandres’

property. See Bd. of Cnty. Comm’rs v. Ritchey, 888 P.2d 298, 304

(Colo. App. 1994) (“The act of creating a fence can permanently

establish boundaries even if there is a mutual mistake as to the

location of the fence.”); accord Lively v. Wick, 221 P.2d 374, 376-77

(Colo. 1950) (finding that title had vested in the party claiming

adverse possession because the parties, as well as their

predecessors in interest, “seem[ed] to have recognized the line of the

fence as the boundary between the two properties for as long as any

of the witnesses could remember”).

¶ 19 We are unpersuaded by Gamblers Ridge’s contention that the

court impermissibly drew evidentiary inferences in favor of the

10
Alejandres. Gamblers Ridge seems to say that because “reasonable”

presumptions must be made in favor of the record owner and

against adverse possession, such presumptions are irrefutable. But

that’s not the case. Presumptions may be rebutted by contrary

evidence and reasonable inferences drawn from that evidence. See

Haney v. Olson, 470 P.2d 933, 936 (Colo. App. 1970) (not published

pursuant to C.A.R. 35(f)) (noting the presumption in favor of the

record owner exists “until the party claiming adverse possession

has submitted sufficient evidence” to support its claim, then “a

presumption arises as to adverse possession which must be

rebutted by the record owner”). And it’s for the trial court to resolve

factual issues, determine witness credibility, weigh evidence, and

draw reasonable inferences from that evidence. See In re Estate of

Owens, 2017 COA 53, ¶ 22. To the extent that Gamblers Ridge

asks us to draw different evidentiary inferences, we may not do

that. See id.

¶ 20 Thus, the record supports the court’s findings that the

Alejandres occupied and possessed the disputed property as an

ordinary landowner would.

11
4. Hostile Use

¶ 21 Gamblers Ridge mostly argues that the Alejandres didn’t

present sufficient evidence of hostile use for the statutory period.

¶ 22 To establish hostile use, the adverse possessor must

demonstrate an intent to claim exclusive ownership of the occupied

property. Welsch v. Smith, 113 P.3d 1284, 1287 (Colo. App. 2005).

What’s not required is a “specific intent to take property from its

owner.” Id. Neither is it required to “make a showing of force or

actual dispute.” Beaver Creek Ranch, 226 P.3d at 1161.

¶ 23 The undisputed evidence supports the court’s finding that the

possession was “open and hostile.” As before, the evidence showed

the existence of the visible driveway leading to the house and

property. And the evidence established that fencing enclosed the

property. The driveway was on the disputed property and was open

and obvious, as was the fencing surrounding the property. Mr.

Alejandre testified to his open use of the enclosed property. And it

is reasonable to infer that the previous owner used the driveway to

access the property, intended the fences to mark the property

boundary, and exercised dominion and control over the disputed

property. See Anderson, 458 P.2d at 758 (explaining all that is

12
required to establish hostility when a boundary is at issue is that a

person intended to occupy the property with the belief that the

property is their own); accord Antholz v. Squirrell, 528 P.2d 257, 259

(Colo. App. 1974) (not published pursuant to C.A.R. 35(f)).

¶ 24 To the extent Gamblers Ridge speculates that the previous

owner’s possession wasn’t hostile, it presented no evidence to

support that argument.3 Nor was the trial court required to credit

testimony about the possible use of the fences from a witness who

admittedly had no personal knowledge about the disputed property

before 2022.

¶ 25 Thus, the undisputed evidence supports the court’s finding

that the possession was open and hostile.

5. Good Faith

¶ 26 Gamblers Ridge disagrees that the Alejandres had a good faith

and reasonable belief that they owned the disputed property. See

Lensky v. DiDomenico, 2016 COA 89, ¶ 25 (discussing good faith

requirement for adverse possession claims after 2008). It says that

3 Though Gamblers Ridge points to statements by its counsel in

closing argument speculating that the disputed property may have
been transferred among family members or the initial entry may
have been permissive, no evidence supported that argument.

13
Mr. Alejandre — who is not a native English speaker and can’t read

in any language — must have known from the property’s legal

description that the purchase didn’t include the disputed property.

¶ 27 But the trial court considered the evidence about the existing

driveway and fences and credited Mr. Alejandre’s testimony that he

believed the fences established the property’s boundary and

included the driveway and enclosed areas. The court’s factual

findings have record support, and its credibility findings are

binding. See Owens, ¶ 22.

6. The Court’s Findings

¶ 28 Gamblers Ridge asks us to reverse the court’s judgment

because it claims the court’s adverse possession findings are

inadequate. But the court correctly identified the requisite

elements, summarized the evidence presented, and found that the

possession and use was “open and hostile” for the statutory period,

the driveway and fencing dated back to 1996, the Alejandres used

the disputed property as an ordinary landowner, and the Alejandres

had carried their burden of proof on their adverse possession claim.

¶ 29 We are satisfied that the court adequately addressed the

elements of adverse possession (particularly the elements disputed

14
at trial) and made sufficient findings to allow us to understand the

basis of the order. See In re Marriage of Rozzi, 190 P.3d 815, 822

(Colo. App. 2008) (“A trial court’s order must contain findings of fact

and conclusions of law sufficiently explicit to give an appellate court

a clear understanding of the basis of its order and to enable the

appellate court to determine the grounds upon which it rendered its

decision.”).

¶ 30 Given all this, we affirm the trial court’s judgment in favor of

the Alejandres on their adverse possession claim. Having so

concluded, we needn’t consider Gamblers Ridge’s alternative

argument that the trial court erred by “sua sponte” considering “the

doctrine of boundary line acquiescence,” and, in its view, rendering

judgment under that doctrine as well.

III. Disposition

¶ 31 The judgment is affirmed.

JUDGE GOMEZ and JUDGE HAWTHORNE concur.

15