source: Caselaw Access Project

author: CARPENETI, Justice.

license: Public Domain

text:
    Jerry GUNTER, Appellant, v. KATHY-O-ESTATES, et al., Appellee.
    No. S-10931.
    Supreme Court of Alaska.
    March 19, 2004.

      Jerry Gunter, pro se, Anchorage.
    Allan E. Tesche, Russell, Tesche, Wage, Cooper & Gabbert, Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Jerry E. Gunter was permanently and totally disabled by a brain injury he suffered while working for Kathy-O-Estates. Gunter and Kathy-O-Estates entered a compromise and release agreement settling their dispute over Kathy-O-Estates's workers' compensation liability due to that injury. This case involves Gunter's attempt to overturn that agreement. The superior court appointed the Community Advocacy Project of Alaska, Inc. as Gunter's guardian/conservator and gave it the power, which the Community Advocacy Project then exercised, to dismiss Gunter's claims. Gunter also sought reimbursement for various costs related to his brain injury. These claims were denied by the Alaska Workers' Compensation Board and this denial was upheld by the superior court. We affirm the denial of Gunter's reimbursement claims because the Alaska Workers' Compensation Board correctly concluded that it lacked the authority to reimburse Gunter for the financial consequences of his work-related injury. We affirm the denial of Gunter's attempt to overturn the compromise and release because the superior court properly vested Gunter's guardian/conservator with the authority to dismiss the claim on Gunter's behalf.

II. FACTS AND PROCEEDINGS

A. Facts

Jerry E. Gunter suffered a severe head injury in a traffic accident on April 4, 1988 while working for Kathy-O-Estates, his parents' business. He was permanently and totally disabled as a result of the accident. Kathy-O-Estates and its insurer, Fireman's Fund Insurance Company, were liable for benefits under the Alaska Workers' Compensation Act. The parties agreed to settle the workers' compensation disputes stemming from the injury by entering into a partial Compromise and Release (C & R). The C & R provided that Gunter would be paid $175 per week for ten years and $200 per week after that. It was signed by both Gunter's guardian and his attorney, and was approved by the board on November 18, 1992.

B. Proceedings

Gunter filed a workers' compensation claim requesting that the board overturn the C & R in July 1998. The board originally refused to allow Gunter to proceed with his claim, ordering the Community Advocacy Project of Alaska, Inc. (CAPA) to seek a court-appointed guardian for Gunter. Gunter amended his complaint attempting to overturn the C & R in 1999 and added a number of claims against Kathy-O-Estates which have nothing to do with medical treatment, rehabilitation, or disability benefits. These claims included reimbursement for: a $500 fine imposed on him for disorderly conduct; the costs of court-ordered alcohol and drug testing and treatment; $500 in unpaid rent by one of his roommates; $10,000 for theft by a roommate; $4,000 for a stolen watch; and $6,000 for one-half of the value of his river boat. The board concluded that Gunter's claims were not com-pensable under the Alaska Workers' Compensation Act and, consequently, that it lacked authority to impose lability for them on Kathy-O-Estates. The board dismissed and denied all claims. Superior Court Judge Elaine M. Andrews affirmed the board's denial of Gunter's reimbursement claims in February 2002, citing as justification "the reasons stated in [the board's] decision, and based on the analysis contained in [Kathy-O-Estates's] brief."

The board's December 1999 opinion reaffirmed its earlier refusal to allow Gunter to proceed with his attempt to overturn the C & R unless he was represented by a court-appointed guardian or other competent representative. In September 2001, after an unsuccessful attempt to find counsel willing to represent Gunter, the superior court appointed CAPA as Gunter's guardian/conservator. In January 2002 the superior court ordered the board to dismiss all of Gunter's pending claims, including his challenge to the C & R, upon the filing with the board of a stipulation by CAPA to dismiss Gunter's claims. CAPA filed such a stipulation and the board dismissed Gunter's pending claims. Gunter, appearing pro se, appeals these decisions.

III. STANDARD OF REVIEW

We independently review the merits of an administrative board's decisions when the superior court is acting as an intermediate court of appeal in an administrative matter.

We have established that "[in questions of law involving an agency's expertise, a rational basis standard will be applied and we will defer to the agency's jurisdiction as long as it is reasonable." But we will use our independent judgment in reviewing questions of law that do not involve an agency's expertise. In applying our independent judgment we will "adopt the rule of law that is most persuasive in light of precedent, reason, and policy."

We review the appointment of a limited guardian or conservator for abuse of discretion. We review factual findings involved in determining whether a guardian or conservator should be appointed for clear error. We decide today that we will review a ward's challenge to the dismissal of his or her legal claims by a guardian or conservator by determining whether the ward presents a colorable legal claim.

IV. DISCUSSION

A. The Board Was Correct in Deciding that Gunter's Claims Seeking Reimbursement for a Court-Imposed Fine, Court-Ordered Alcohol Treatment and Testing, Theft, Unpaid Rent, an Interest in a Boat, and an Interest in Kathy-O-Estates Are Not Compensable.

Gunter claims that Kathy-O-Estates should reimburse him for a court-imposed fine for disorderly conduct, related court-ordered alcohol treatment and testing, rent that his roommates failed to pay, money and a gold watch allegedly stolen by his roommates, and a half-interest in a boat that he transferred to a mechanic because he was unable to maintain the boat on his own. He contends that Kathy-O-Estates should be held liable for all of these costs because none of them would have been incurred if his brain had not been injured in his work-related accident; he states that "[mly brain is broke in half from work. Therefore [Kathy-O-Estates] is responsible for everything that I do or what happen[s] to me." Specifically, he contends that he would not have been convicted of disorderly conduct and ordered to pay the associated fine and treatment costs if his brain had not been injured. He also reasons that if he had not been injured, he would not have been forced to live with roommates, and therefore would have been spared their alleged thefts.

The board found that it had to dismiss Gunter's claims because it lacked legal authority to award the relief he requested. It noted that it had no authority over Gunter's reimbursement claims because "claims for expenses for court-ordered alcohol abuse counseling, rent owed due from a former roommate, thefts and damage by another roommate, alcohol and drug testing, ... one-half the value of a boat, and a stolen gold watch are either criminal matters or claims for general civil damages, not claims under specific provisions of the Alaska Workers' Compensation Act." The board was correct in concluding that it can only adjudicate a dispute if the legislature has granted it adjudicatory authority. Therefore, we determine this issue by examining whether the board had authority over Gunter's claims. We find it unnecessary separately to address the issue whether the board correctly determined that it lacked jurisdiction to interfere with criminal sanctions and penalties. Instead, we affirm the board's dismissal of all of Gunter's reimbursement claims because those claims are not compensable under the workers' compensation act.

The board was created by the act and its authority is limited to the powers and duties prescribed by that act. Therefore, the board was empowered to grant Crunter's reimbursement claims only if his claims were compensable under the act. The workers' compensation act provides that employers are strictly liable to their injured employees for medical treatment, rehabilitation, and disability benefits. Gunter's reimbursement claims do not involve issues of medical treatment, rehabilitation, or disability benefits. Because the board is empowered to provide compensation under the act and because the act does not provide a means of compensating employees for the remote consequences of their injuries, such as those for which Crunter seeks reimbursement, the board was correct in deciding that it did not have the authority to grant Gunter's requested relief.

To the extent that Gunter was seeking reimbursement outside of the structure provided by the workers' compensation act, the board was correct that the act immunized Kathy-O-Estates from such civil liability. The act generally provides the exclusive remedy for injured employees: Alaska Statute 28.30.055 establishes that an employer's workers' compensation liability, which the employer must pay irrespective of fault, "is the exclusive remedy for an employee injured during the course of employment." This limited workers' compensation remedy was made exclusive for the benefit of both employers and employees:

The exclusiveness of the remedy reflects a quid pro quo exchange of rights and liabilities for both workers and employers. Workers gain an assured remedy without the burden of proving fault, but lose the right to sue their employers in tort. Employers gain relief from large tort damage awards and enjoy an absolute limit on liability under the Act, but are liable without fault for injuries covered under the Act.[]

The remedy provided by the act is exclusive, and employees generally cannot obtain compensation outside of the system provided by the act. Because Kathy-O-Estates provided workers' compensation benefits, the board was correct that Kathy-O-Estates is immune from Gunter's claims seeking to impose general civil liability on it. Kathy-O-Estates is only liable for the benefits provided by the act because Kathy-O-Estates is paying compensation pursuant to AS 28.30.055 under the C & R. Gunter's claims are not compensable because the limited and exclusive nature of workers' compensation benefits precludes Gunter from pursuing any claims for compensation beyond the wage-based compensation provided by the act.

B. The Superior Court Did Not Err in Allowing CAPA To Dismiss Gun-ter's Attempt To Overturn the C & R that Governed Kathy-O-Estates's Workers' Compensation Obligation to Him.

Gunter also challenges the 1992 C & R in which the parties agreed that Kathy, O-Estates would pay Gunter $175 per week for ten years and $200 per week after that. Gunter filed a claim seeking to overturn the C & R on July 8, 1998. The board initially determined, based on the opinion of Dr. Paul L. Craig, that Gunter was not competent to represent himself in seeking to overturn the C & R. It postponed ruling on Gunter's attempt to overturn the C & R because CAPA was attempting, pursuant to a superior court order, to find an attorney to represent Gunter in the matter. CAPA was unable to find an attorney willing to take Gunter's case, and the superior court appointed CAPA as Gunter's guardian/conservator "to provide legally trained staff to informally advise and assist Gunter in [these] proceedings." The superior court ordered the board to dismiss all pending claims, including Gunter's challenge to the C & R, if CAPA filed a stipulation to that effect. This stipulation was filed and the board dismissed Gunter's pending claims. Gunter appeals the superior court's dismissal of his challenge to the C & R, and, by implication, the superior court's decision allowing CAPA, as Gunter's guardian/conservator, to stipulate to the dismissal of Gunter's challenge to the C & R.

We must analyze Gunter's appeal in light of the superior court order denying Gunter the power to challenge the C & R without the assistance of counsel or his guardian/conservator. The order would appear to prevent Gunter from pursuing this appeal. But we recognize that a ward must have some means of contesting legal decisions made by his or her guardian. We conclude that we should review a ward's appeal of a tribunal's dismissal of his or her case pursuant to a guardian's or conservator's decision to dismiss the case by determining whether the ward presents a color-able, or plausible, claim. If the ward presents such a claim, we will appoint counsel to assist the ward in pursuing it. In this case, we would appoint counsel to assist Gunter in pursuing his challenge to the C & R if he presented a colorable claim that the superior court should not have allowed CAPA to dismiss his attempt to overturn the C & R. Upon our review of the record, we conclude that Gunter's challenge to the dismissal of the C & R is not colorable.

In examining Gunter's appeal of the dismissal of his challenge to the C & R, the key question is whether the superior court erred by granting CAPA the authority to dismiss Gunter's claims. We have established that a properly appointed conservator has the authority to settle a lawsuit under AS 13.26.280(c)(19). Therefore, CAPA's dismissal of Gunter's challenge to the C & R can be challenged on only two grounds on appeal: (1) that CAPA was improperly appointed as guardian/conservator with authority over Gunter's workers' compensation claims or (2) that CAPA's actions were unreasonable. Because CAPA was properly appointed as guardian/conservator over CGun-ter's claims and because CAPA's actions with respect to those claims were reasonable, Gunter does not have a plausible challenge to the superior court's decision granting CAPA the authority to dismiss Gunter's claims and the resulting dismissal of those claims.

1. CAPA was properly appointed as Gunter's guardian/conservator with authority over his claims seeking to overturn the C & R.

Gunter has a long history of guardianship and conservatorship proceedings, and the superior court's order appointing a "guardian/conservator" in September 2001 relies on that history. Though guardianship and con-servatorship proceedings are quite similar, there are separate statutes governing each appointment. Alaska Statute 18.26.165, which governs the appointment of conservators, provides that:

[ulpon petition and after notice and hearing in accordance with the provisions of AS the court may appoint a conservator or make other protective order for cause as follows:
(2) appointment of a conservator or other protective order may be made in relation to the estate and affairs of a person if the court determines that
(A) the person is unable to manage the person's property and affairs effectively for reasons such as mental iliness, mental deficiency, physical illness or disability ... and
(B) the person has property which will be wasted or dissipated unless proper management is provided ...

Likewise, AS 18.26.118(e), which governs the appointment of guardians, provides that after a hearing,

[Jf it is found that the respondent is able to perform some, but not all functions nee-essary to care for the respondent, and alternatives to guardianship are not feasible or adequate to provide for the needs of the respondent, the court may appoint a partial guardian, but may not appoint a full guardian.

The partial guardian's authority is limited to "the powers and duties respecting the ward enumerated in the court order."

It is apparent from the record that CAPA's authority to dismiss Gunter's claims for him was properly established in a manner that protected Gunter's rights under either the guardianship or conservatorship statutes. In its September 2001 order, the superior court modified Gunter's existing guardianship order to make CAPA Gunter's temporary, partial guardian/conservator "[flor the purposes of advising and assisting Mr. Gun-ter in all administrative proceedings before the [board]." The superior court order specifically granted CAPA the authority to "allow those proceedings to continue, engage in settlement negotiations and enter into binding settlement agreements on Mr. Gunter's behalf, or dismiss those actions on behalf of Mr. Gunter where CAPA determines that such action is in his best interests." The superior court held a hearing, at which Gun-ter was represented by an attorney and had the benefit of a court-appointed visitor. The superior court based its appointment of CAPA, for the limited purpose of protecting Gunter's workers' compensation benefits, on the "complexity of these proceedings and the severity of Mr. Gunter's injury." The determination that these proceedings were too complex for Gunter to manage on account of his brain injury is supported by a significant amount of evidence establishing the severity of Gunter's injury. Gunter himself establishes that his injury has left him unable to understand the C & R, stating that "(alll I understand about [the] compensation rate is work me for life. I have not understood at all compensation rate." The superior court cannot be said to have "committed] clear error in accepting the evidence as clear and convincing proof of [Gunter's] inability to manage his property and affairs effectively." Accordingly, the superior court did not abuse its discretion in appointing CAPA to protect Gunter's workers' compensation benefits. Therefore, Gunter does not present a colorable claim that the superior court erred by granting CAPA the authority to dismiss Gunter's challenge to the C & R.

2. CAPA acted reasonably by dismissing Gunter's claims attempting to overturn the C & R.

The superior court's approval of CAPA's decision to dismiss Gunter's claims also does not present a colorable claim of error because CAPA's decision was reasonable. After unsuccessfully attempting to secure representation for Gunter, CAPA stated in a report to the superior court that CAPA appears to be correct that Gunter faced a very real threat that he would receive a lesser award if the C & R was overturned, as Kathy-O-Estates originally claimed that Gunter was entitled to compensation of only $74.99 per week, a claim that was probably correct. Kathy-O-Estates eventually agreed to the weekly compensation rate of $175 to $200 per week specified in the C & R. The reasonableness of CAPA's decision is supported by CAPA's inability to find a lawyer to represent Gunter on a contingency basis. CAPA was also correct in noting, as discussed above, that it was highly unlikely that Gunter would succeed in his novel attempt to gain compensation for the inheritance he believes he would have received but for his injury. We hold that CAPA acted reasonably in exercising its authority to dismiss Gunter's challenge to the C & R. Therefore, we hold that Gunter does not have a color-able claim that the superior court erred by allowing the dismissal of his challenge to the C & R.

[tlhe fact that no attorney seems interested in representing Mr. Gunter in this matter is evidence that this appeal may be unlikely to bring sufficient financial benefit to Mr. Gunter to justify the expense of pursuing it.
If Mr. Gunter is successful in setting aside the compromise[ ] and release, he runs the risk that the ultimate decision could be the same or even less than he has been receiving under the settlement. For this appeal to benefit him, he must prevail in setting aside the agreement and then win substantially more. This result appears unlikely.

v. CONCLUSION

We hold that the board did not err in dismissing Gunter's claims seeking reimbursement for the alleged financial consequences of his brain injury and that the superior court did not err by allowing CAPA to dismiss Gunter's attempt to overturn the C & R. The decisions of the board and the superior court are accordingly AFFIRMED.

      . The Alaska Workers' Compensation Board was added as a party, but declined to participate because it has no independent interest in this case.

      . Gunter v. Kathy-O-Estates, AWCB Decision No. 02-0054 (March 27, 2002).

      . The superior court also ordered the board not to accept any future claims, applications, or petitions by Gunter unless they were filed through Gunter's counsel or guardian/conservator. Gun-ter has not challenged this ruling.

      . Dougan v. Aurora Elec. Inc., 50 P.3d 789, 793 (Alaska 2002).

      . Id.

      . Id. But cf. Palmer v. Municipality of Anchorage, Police & Fire Ret. Bd., 65 P.3d 832, 837 n. 7 (Alaska 2003) (noting that "[elven under the independent judgment standard we '[glive some weight to what the agency has done, especially where the agency interpretation is longstanding.' " (quoting Usibelli Coal Mine, Inc. v. State, Dep't of Natural Res., 921 P.2d 1134, 1142-43 (Alaska 1996))).

      . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . See H.C.S. v. Cmty. Advocacy Project of Alaska, Inc., 42 P.3d 1093, 1096 (Alaska 2002). But see In re S.H., 987 P.2d 735, 738-41 (Alaska 1999) (applying clearly erroneous standard to determine whether it was appropriate to appoint conservator).

      . See In re S.H., 987 P.2d at 738-41.

      . Gunter also appears to seek reimbursement for the entire value of Kathy-O-Estates, which he contends he would have inherited but for his brain injury, stating that "[blecause of this work accident I lost Kathy-O-Estates Inc. 4 million [dollars] & happy life." We decline to address this argument because the claim was not raised before the board or the superior court. See Reid v. Williams, 964 P.2d 453, 456 (Alaska 1998) (noting that we "will not ordinarily consider issues unless they were raised in the trial court").

      . See Far N. Sanitation, Inc. v. Alaska Pub. Util. Comm'n, 825 P.2d 867, 871 n. 5 & 873 (Alaska 1992) (holding that agency does not have "powers beyond those which are authorized by legislative grant," express or implied). See also Blanas v. Brower Co., 938 P.2d 1056, 1061 (Alaska 1997) (quoting with approval idea "that a public service commission is an administrative agency created by statute and as such has no inherent powers, but only such as have been expressly granted to it by the legislature or have, by implication, been conferred upon it as necessarily incident to the exercise of those powers expressly granted") (quoting Greater Anchorage Area Borough v. City of Anchorage, 504 P.2d 1027, 1033 n. 19 (Alaska 1972)).

      . AS 23.30.

      . See AS 23.30.005.

      . AS 23.30.045(a)-(b) (citing AS 23.30.041, which governs liability for rehabilitation, AS 23.30.050 and AS 23.30.095, which govern liability for medical costs, AS 23.30.145, which governs liability for legal costs, and AS 23.30.180-23.30.215, which govern liability for death and disability benefits).

      . The board has jurisdiction to grant permanent total disability benefits under AS 23.30.180, which provides that employees can only be compensated for their permanent total disabilities with a perceniage of their weekly wages: "[in case of total disability adjudged to be permanent 80 percent of the injured employee's spendable weekly wages shall be paid to the employee during the continuance of the total disability." The method for calculating the employee's spendable weekly wage is set out in AS 23.30.220(a), which provides in relevant part that "[clomputation of compensation under this chapter shall be on the basis of an employee's spendable weekly wage at the time of injury. An employee's spendable weekly wage is the employee's gross weekly earnings minus payroll tax deductions." As these statutes make clear, the Alaska Workers' Compensation Act attempts to replace an employee's lost wage-based income. It does not provide an employee with benefits covering any future expenses that might conceivably have some relation to his or her injuries, such as those for which Gunter now seeks compensation.

      . Alaska Statute 23.30.055 provides in relevant part that
      [t]he liability of an employer prescribed in AS 23.30.055 is exclusive and in place of all other liability of the employer and any fellow employee to the employee.... However, if an employer fails to secure payment of compensation as required by this chapter, an injured employee or the employee's legal representative in case death results from the injury may elect to claim compensation under this chapter, or to maintain an action against the employer in law or admiralty for damages on account of the injury or death.

      . Fenner v. Municipality of Anchorage, 53 P.3d 573, 575 (Alaska 2002).

      . Suh v. Pingo Corp., 736 P.2d 342, 344 (Alaska 1987).

      . Gunter v. Kathy-O-Estates, AWCB Decision No. 02-0054 (March 27, 2002).

      . A ward's challenge to a guardian's decision is analogous to an indigent defendant's challenge to appointed counsel's determination that the defendant does not have a colorable claim for post-conviction relief. See Alaska Rule of Criminal Procedure 35.1. In the event that an appointed attorney believes that his or her client's application for post-conviction relief is completely without merit, Rule 35.1(e)(2) provides that the attorney may: .
      file with the court and serve on the prosecuting attorney

      (B) a certificate that counsel
      (i) does not have a conflict of interest;
      (ii) has completed a review of the facts and law in the underlying proceeding or action challenged in the application;
      (ii?) has consulted with the applicant and, if appropriate, with trial counsel; and
      (iv) has determined that the application does not allege a colorable claim for relief.
      Rule 35.1({)(2) provides that the appellate court must review a certificate filed under Rule 35.1(e)(2)(B) and "permit counsel to withdraw and order the application dismissed" if the applicant has no colorable claim for post-conviction relief or fails to respond to the certificate.

      . The procedural posture of this case is somewhat unusual. Only final judgments may be appealed. Here, the superior court remanded an administrative appeal to an agency for further proceedings. A remand order is not a final judgment. City and Borough of Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979). (Moreover, Gunter, who is pro se, did not appeal the board's dismissal of Gunter's claims to the superior court.) But rather than dismiss Gunter's appeal on the ground that the superior court remanded the case to the administrative agency, we treat it as a petition for review because Gunter's injury poses a severe hardship in his efforts to navigate the court system. See Municipality of Anchorage v. Anderson, 37 P.3d 420, 421 (Alaska 2001) (stating that we will "treat an appeal improperly brought from a non-final order as a petition for review 'in order to prevent hardship and injustice' " (quoting Thibodeau, 595 P.2d at 631)).

      . In re S.H., 987 P.2d 735, 739 (Alaska 1999). Alaska Statute 13.26.280(c) requires that a conservator must be properly appointed and that the conservator's actions must be reasonable in order to settle a lawsuit for his or her ward:

        [a] conservator, acting reasonably in efforts to accomplish the purpose for which the conservator was appointed, may act, without court authorization or confirmation, to
      (19) pay or contest any claim; to setile a claim by or against the estate or the protected person by compromise, arbitration, or otherwise; and to release, in whole or in part, any claim belonging to the estate to the extent that the claim is uncollectible.

      . AS 13.26.150(b).

      . The court must appoint a visitor to investigate the prospective ward's incapacity and evaluate whether the prospective ward needs a guardian. AS 13.26.106(c); AS 13.26.108.

      . In re S.H., 987 P.2d at 741.

      . See H.C.S. v. Cmty. Advocacy Project of Alaska, Inc., 42 P.3d 1093, 1096 (Alaska 2002).


author: STEWART, Judge.

text:
    Alya S. LANDT, Appellant, v. STATE of Alaska, Appellee.
    No. A-8154.
    Court of Appeals of Alaska.
    March 19, 2004.

      Margi A. Mock, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    John A. Seukanee, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

At the beginning of Alya S. Landt's trial, Superior Court Judge Fred Torrisi informed the jury that each member could propose questions for the witnesses. During the trial, Judge Torrisi put several of the jurors' proposed questions to various witnesses after he and the parties had reviewed those questions. Landt now appeals, arguing that the superior court erred by allowing the members of the jury to propose questions. We conclude that Judge Torrisi did not abuse his discretion. In the context of the case, we also conclude that even if Judge Torrisi erred, the error was harmless. Therefore, we affirm Landt's convictions.

Background facts and proceedings

In the early morning of September 3, 2000, Unalaska Police Officer Aaron Renken contacted Landt, Ty Dushkin, and Robert Shapsnikoff because he saw the trio arguing outside a bar. Landt told Officer Renken that they were arguing because Shapsnikoff had taken her keys and he would not return them. Shapsnikoff said he took the keys because he believed that Landt was too intoxicated to drive.

Officer Renken also thought Landt was too intoxicated to drive, but since Landt said she needed her keys because her house key was on the key ring, Officer Renken told Shapsni-koff to return her keys. Officer Renken warned Landt that if he saw her driving, he would arrest her for driving while intoxicated. Dushkin pulled Landt away and said that he would not let Landt drive and would see that she got home.

About one and a half hours later, Landt telephoned Kent Steele, a physician's assistant whom she worked with, and asked him to come to the new HUD housing to care for a man [Shapsnikoff] whom she had found in the road. Landt told Steele that the man, who she thought had been hit by a car, was unconscious and not breathing. Steele immediately called 911. Despite emergency treatment, Shapsnikoff was pronounced dead at the scene.

Officer Renken and Officer Lowell Creeze spoke with Landt and Dushkin at the scene when the officers responded to the 911 call. Dushkin told officers that he and Landt had found Shapsnikoff lying in an intersection nearby, and that Dushkin had helped Shaps-nikoff almost to his house, where Shapsnikoff collapsed in the street. Landt said that she and Dushkin had been driving home when they found Shapsnikoff lying in the street, and that they had placed him in the truck and driven him home. Landt also explained that she and Dushkin had phoned for help when they realized that Shapsnikoff was not breathing. At trial, Officer Creeze testified that he understood Landt to have said that she, rather than Dushkin, had been driving the truck when they found Shapsnikoff.

Shapsnikoff died as a result of multiple blunt foree injuries, consistent with being run over by an automobile. The police discovered rub marks and cloth fibers consistent with Shapsnikoff's clothing on the undercarriage of Landt's truck.

At this point, police interviewed Dushkin again. Consistent with this interview, Dush-kin testified at trial that Landt was driving when she suddenly saw someone lying in the roadway and accidentally ran over the person. Landt stopped the car, and Dushkin ran back to the person [Shapsnikoff]. They put Shapsnikoff in the truck, and Landt drove to Shapsnikoffs house. When Landt and Dushkin realized that Shapsnikoff was probably dead, they phoned for help.

The grand jury indicted Landt on manslaughter, criminally negligent homicide, and tampering with evidence. The State also charged Landt with driving while intoxicated.

Before opening statements, Judge Torrisi told the attorneys that he would let the jurors propose questions for the witnesses. Landt objected, arguing that the procedure would allow jurors to aid the State in meeting its burden of proof. The judge overruled the objection, stating that he had allowed questioning in previous trials, that the practice helps jurors to understand the evidence better, and that he thought there was nothing unconstitutional about the practice.

After opening statements, Judge Torrisi gave the jury preliminary instructions. At this point, Judge Torrisi told the jurors that he would allow them to question witnesses:

T am going to allow-if there are questions that you feel are not answered by a witness, I'm going to allow you to ask questions. Now, the lawyers here are familiar with this case. _.... They also know the Rules of Evidence. They know certain things can come in, certain things can't come in. And so they are going to probably ask pretty much everything that's-that the witness knows. They know what the witness knows more than we do because most of these witnesses have been interviewed. So there's probably not much that you would need to ask about. On the other hand, you're the one that's going to have to decide it in the end. So if at the end of a witness' testimony you still have questions, then you can write down the question and pass it forward.. ...
I would sort of like somebody up front here to be the note taker-collector. I don't want anybody reading anybody else's [questions]. The way it's going to work is if you do pass it forward, I will try to remember before I excuse a witness, and maybe whoever's the note collector can remind me if I forget. But I promise to look at every question. I don't promise to ask any of them. The way it works is I'll bring the lawyers up. They can look at it. If it's something that didn't get asked, if it's a proper question, I'll ask it for you, and then they'll get a chance to follow up if they want to do that. But I may not get a chance-I mean it may be that there's no questions. It may be there's lots. It may be that I won't get a chance to tell you why I didn't ask something. But I'll just tell you if you want to do it, you've got the paper. When you think of it, you might want to write it down, and then if it still hasn't been asked when the thing's over, you might want to shoot it forward and we'll take it from there.

Whenever a juror proposed a question, Judge Torrisi and the parties discussed it outside the hearing of the jury. If Judge Torrisi asked the proposed question (or a modification of the question), he permitted the attorneys to ask follow up questions.

Jurors proposed fifty-two individual questions, forty-two of which the judge asked after discussing the questions with counsel outside the hearing of the jury. Many of the questions sought to clarify details about where and when pieces of evidence were found; some questions sought more detailed information than the police officers had gathered.

Jurors proposed three questions for Landt, one of which Judge Torrisi asked. Judge Torrisi rejected two questions because of objections by the defense-"[wlhy didn't you tell the police officers that you believed Ty [Dushkin] had hit Bobby [Shapsnikoff]?" and "[why did you consult with an attorney so soon after the accident?" The court did ask the third question, in which a juror sought to clarify by what name Landt was referring to Officer Creeze. (Landt was referring to Creeze by his first name, Lowell).

The jury convicted Landt of tampering with evidence and driving while intoxicated and acquitted her of manslaughter and criminally negligent homicide.

Did the superior court deprive Landt of a fair trial by allowing jurors to propose questions for the witnesses?

Landt argues that the superior court's decision to allow jurors to propose questions for the witnesses violated her rights to a fair trial and to an impartial jury under the federal and state constitutions. Landt argues that juror questioning requires jurors to form opinions about the case before the parties have presented all the evidence, because jurors must hypothesize about what happened in order to form a question.

Recently, in State v. Culkin, the Hawail Supreme Court upheld a pilot program that allows jurors to question witnesses against challenges similar to the ones Landt raises in this appeal. The court noted that several federal cireuit courts that have considered the issue have decided that the trial court has the discretion to permit juror questioning. Although no federal civreuit has declared juror questioning illegal, several have discouraged juror questioning. The majority of state courts that have considered the issue have upheld the process as within the discretion of the trial court, although some states have rejected the practice.

The Culkin court noted that even under the traditional adversary system, the parties and their attorneys are not in sole control of the presentation of evidence. The trial judge, too, has traditionally exercised the power to question witnesses and even to call witnesses that the parties have neglected or refused to call. Questions proposed by jurors resemble questioning by a judge, who, under our adversarial system, retains the power to question, or summon witnesses.

Obviously, a judge must be impartial, but the power to question or summon witnesses is not necessarily inconsistent with impartiality. In Cook v. State, we ruled that a trial judge can present evidence at trial under Alaska Rule of Evidence 614, as long as the judge does so impartially.

[A] trial judge must be careful to avoid taking actions that the jury would reasonably construe as partisanship. ... But [this does] not prohibit a judge from taking a role in the presentation of evidence at trial. Indeed, Evidence Rule 614 explicitly recognizes trial judges' authority to "call witnesses on [their] own motion" and to "examine any witness" called by the parties. The commentary to Rule 614 declares that "the court is not entirely a prisoner of the parties' approach to the case"; rather, "it is proper for the court to ask questions [of witnesses] in order to clear up confusion created by the parties", although] a judge's questioning "should be ... guarded so as not to constitute an implied comment" on the merits of the case.[]

Using analogous reasoning, the Hawaii Supreme Court in Culkin rejected the assertion that giving jurors the power to question witnesses was inconsistent with the adversary system of justice. The court quoted the words of the Court of Appeals for the District of Columbia in Yeager v. Greene:

Questions by jurors ... may bring to the court's and counsel's attention improper concerns which can be promptly addressed with cautionary instructions, admonishing the juror who asked the question that the matter is not relevant to the case and should not be brought to the attention of other jurors or play any part in the inquiring juror's consideration of the case. Additionally ... it seems indisputable that the increased effectiveness of communication with jurors that will result if they are permitted to pose questions to witnesses will aid in finding the truth. As one of the most recent and thorough commentaries on the questioning of witnesses by jurors observed:
Only when evidence and issues are communicated successfully to jurors can they begin to fulfill their duty to seek truth and deliver a just verdict. But, because the jury is relegated to a passive role, communication in a trial is basically a one-way system-a system notably lacking in ability to insure a reliable communication of evidence or issues to the jury.
Allowing jurors to ask questions of witnesses would promote better and more reliable communication, because a two-way system provides for constant clarification of messages being sent. Understanding testimony more clearly, jurors thus would be able to fulfill their basic function of finding the facts in dispute.
Finally, there is reason to believe that permitting receivers of information, e.g., jurors, to ask questions enhances not only their ability to understand what is being communicated, but results in their putting forth more effort to listen and to understand because they know they may ask questions. A concomitant benefit predictable from these effects might well be a reduced likelihood that the court will be required to intervene to question witnesses or elucidate issues that are clarified by juror questions.[]

Landt argues that juror questioning does not compare with questioning by the trial judge because the judge is trained in the law and is required to see that justice is done, while the jury is not legally trained and is instructed to sit as a neutral factfinding body. She relies on DeBenedetto v. Goodyear Tire & Rubber Co. for this argument. But the juror questioning process in DeBene-detto, unlike that in Landt's trial, did not prevent the jury from hearing the questioning juror's question, which was spoken aloud by the juror before the trial judge ruled on its propriety. In Landt's trial, jurors proposed questions in writing, and Judge Torrisi and both attorneys reviewed the questions. The attorneys were able to object to questions outside of the hearing of the jury. Therefore, we conclude that allowing jurors to propose questions in Landt's trial did not undermine jurors' impartiality.

In Commonwealth v. Britto, the Massachusetts Supreme Judicial Court recently upheld the constitutionality of jurors' questioning witnesses at criminal trials under a procedure similar to the one employed by Judge Torissi in this case. The court listed several concerns that a trial judge permitting juror questions should consider:

(1) "[The judge should instruct [the jury] ... that they will be given the opportunity to pose questions to witnesses." We suggest that the jury also be instructed not to let themselves become aligned with any party, and that their questions should not be directed at helping or responding to any party. Rather, they must remain neutral and impartial, and not assume the role of investigator or of advocate.

(Judge Torrisi informed the jury that he would let them propose questions.)

(2) Jurors' questions need not be limited to "important matters," ... but may also seek clarification of a witness's testimony. Reining in excessive questioning may present the greatest challenge to a judge[.] ...

(Many of the jurors' questions here sought clarification of the witnesses' testimony.)

(3) The judge should "emphasize [ ] to jurors that, although they are not expected to understand the technical rules of evidence, their questions must comply with those rules, and so the judge may have to alter or to refuse a particular question."

(Judge Torrisi informed the jurors that he would only ask proper questions.)

(4) "The judge further should emphasize that, if a particular question is altered or refused, the juror who poses the question must not be offended or hold that against either party."

(Judge Torrisi told the jurors that he might not tell them why a question was not posed.)

(5) "[I]t is important that the jurors are told that they should not give the answers to their own questions a disproportionate weight." We suggest that the judge also instruct jurors not to discuss the questions among themselves but, rather each juror must decide independently any questions he or she may have for a witness.

(There is no indication in the record that the jurors consulted each other about questions.)

(6) "These instructions should be repeated during the final charge to the jury before they begin deliberations."
(7) All questions should be submitted in writing to the judge. We suggest that the juror's identification number be included on each question. This will enable the judge to address problems unique to a juror, as by voir dire, or to give a curative instruction without exposing the entire jury to any potential prejudice.

(Judge Torrisi retained all the proposed juror questions.)

(8) On submission of questions, counsel should have an opportunity, outside the hearing of the jury, to examine the questions with the judge, make any suggestions, or register objections. This may be done at sidebar, or the jury may be removed at the judge's discretion. The judge should rule on any objections at this time, including any objection that the question touches on a matter that counsel purposefully avoided as a matter of litigation strategy, and that, if asked, will cause particular prejudice to the party.

(Judge Torrisi discussed the jurors' proposed questions outside the jurors' hearing.)

(9) Finally, counsel should be given the opportunity to reexamine a witness after juror interrogation. The scope of the examination should ordinarily be limited to the subject matter raised by the juror question and the witness's answer. The purpose of reexamination is two fold. First, it cures the admission of any prejudicial questions or answers; and second, it prevents the jury from becoming adversary in its interrogation.[]

(Judge Torrisi permitted follow up questions.)

Judge Torrisi followed almost all of these guidelines. He informed the jurors that he would allow them to propose questions in writing. He told the jurors that he and the parties would review the questions and that he might not be able to tell them why he would not ask a proposed question. Judge Torrisi retained the jurors' proposed questions. The parties objected to proposed questions outside the jurors' hearing. The parties were permitted to ask follow-up questions if a juror's proposed question was allowed.

Furthermore, allowing the jurors to propose questions can give the court notice that a juror might be considering improper factors. In this case, one of the proposed questions for Landt was "[why did you consult with an attorney so soon after the accident?" At this point, Landt's attorney might have asked Judge Torrisi to instruct the jury that there is nothing improper about consulting an attorney and that they should draw no negative inferences from this consultation. Landt did not request such an instruction.

Landt next argues that Judge Torrisi abused his discretion by allowing juror questioning without considering whether the benefits of doing so outweighed the risks of compromising her right to a fair trial. Landt relies on two opinions from the Second Circuit Court of Appeals that require district courts to find that the benefits to be gained by allowing juror questioning outweigh the risk of biasing the jury.

Although Judge Torrisi did not explicitly balance the benefits and risks of juror questioning, he explained that when he first considered the practice, he shared defense counsel's concern that juror questioning might help the State to meet its burden of proof. Having used juror questioning in previous trials, however, Judge Torrisi found the practice to capitalize on jurors' ability to "notice things," to be "interested [in the trial] in a common sense manner." Further, Judge Torrisi found there to be "nothing constitutionally wrong with the practice." Therefore, we conclude that Judge Torrisi did consider the risk that Landt would be prejudiced and found the benefits of juror questioning to outweigh that risk.

We conclude that Judge Torrisi did not abuse his discretion when he allowed the jurors to propose questions for the witnesses under the procedure he used in this trial. We wish to emphasize that this review is necessarily a case-by-case process. There may be a case where a defendant can show from the proposed questions from jurors, or the procedure adopted by the trial judge, that the questioning process prejudiced the defendant. But from our review of the ree-ord, we conclude that this is not one of those cases.

Finally, the State argues that even if the trial court erred by allowing juror questioning, this error was harmless. Landt argues that we should not consider whether such an error was harmless because the ef-feets of juror questioning are impossible to identify.

But we conclude that even if Judge Torrisi erred in one or more procedural aspects of juror questioning, this error was harmless beyond a reasonable doubt. None of the jurors' questions that were actually asked by Judge Torrisi elicited objectionable evidence. Additionally, none of the questions (either asked or rejected) involved elements of the tampering with evidence or driving while intoxicated charges. Landt was acquitted of the manslaughter and negligent homicide charges.

Allowing juror questioning did not prejudice Landt on the tampering with evidence charge because Landt testified that she helped move Shapsnikoff and because jurors submitted no questions regarding her intent. Because Landt's testimony supported a conviction on this charge, and because no juror questions considered the facts underlying the charge, we conclude that the questions actually asked could not have prejudiced her.

Conclusion

We AFFIRM Landt's convictions.

      . AS 11.41.120(a)(1), AS 11.41.130(a), and AS 11.56.610(a)(1), respectively.

      . AS 28.35.030.

      . 97 Hawai●Fi 206, 35 P.3d 233 (2001).

      . Id. at 252, citing United States v. Feinberg, 89 F.3d 333, 336 (7th Cir.1996); United States v. Sutton, 970 F.2d 1001, 1004-07 (1st Cir.1992); United States v. Lewin, 900 F.2d 145, 147 (8th Cir.1990); DeBenedetto v. Goodyear Tire and Rubber Co., 754 F.2d 512, 516 (4th Cir.1985); United States v. Callahan, 588 F.2d 1078, 1086 (5th Cir.1979); United States v. Gonzales, 424 F.2d 1055, 1056 (9th Cir.1970); United States v. Witt, 215 F.2d 580, 584 (2nd Cir.1954).

      . See Feinberg, 89 F.3d at 336 ("'We agree that the practice [of juror questioning of witnesses] is acceptable in some cases, but do not condone it."); United States v. Ajmal, 67 F.3d 12, 14 (2nd Cir.1995) (holding that trial courts abuse their discretion if they allow juror questioning of witnesses in the absence of "extraordinary or compelling circumstances", and without first balancing the potential benefits and disadvantages of the practice); United States v. Bush, 47 F.3d 511, 515 (2nd Cir.1995) ("Although we reaffirm ... that juror questioning of witnesses lies within the trial judge's discretion, we strongly discourage its use.").

      . See Culkin, 35 P.3d at 253; State v. LeMaster, 137 Ariz. 159, 669 P.2d 592, 596-97 (App.1983); Nelson v. State, 257 Ark. 1, 513 S.W.2d 496, 498 (1974); People v. McAlister, 167 Cal.App.3d 633, 213 Cal.Rptr. 271, 276-77 (1985); Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d 914, 930 (1991); Scheel v. State, 350 So.2d 1120, 1121 (Fla.App.1977); Rudolph v. Iowa Methodist Medical Center, 293 N.W.2d 550, 556 (Iowa 1980); Transit Auth. of River City v. Montgomery, 836 S.W.2d 413, 416 (Ky.1992); Commonwealth v. Urena, 417 Mass. 692, 632 N.E.2d 1200, 1206 (1994); People v. Heard, 388 Mich. 182, 200 N.W.2d 73, 76 (1972); Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 867 (Mo.1993); Sparks v. Danels, 343 S.W.2d 661, 667-68 (Mo.App.1961); State v. Graves, 274 Mont. 264, 907 P.2d 963, 966-67 (1995); State v. Jumpp, 261 N.J.Super. 514, 619 A.2d 602, 610-12 (App.1993); People v. Bacic, 202 A.D.2d 234, 608 N.Y.S.2d 452, 452 (1994); State v. Howard, 320 N.C. 718, 360 S.E.2d 790, 795 (1987); State v. Wayt, 83 Ohio App.3d 848, 615 N.E.2d 1107, 1112 (1992); Krause v. State, 75 Okla.Crim. 381, 132 P.2d 179, 182 (App.1942); State v. Munoz, 67 Wash.App. 533, 837 P.2d 636, 639 (1992).

      . See State v. Costello, 646 N.W.2d 204, 214 (Minn.2002); Wharton v. State, 734 So.2d 985, 990 (Miss.1998); Morrison v. State, 845 S.W.2d 882, 888 (Tex.Crim.App.1992); State v. Zima, 237 Neb. 952, 468 N.W.2d 377, 380 (1991); Matchett v. State, 257 Ga. 785, 364 S.E.2d 565, 566-67 (1988).

      . See Culkin, 35 P.3d at 254.

      . Id. at 252-53.

      . 36 P.3d 710 (Alaska App.2001).

      . Id. at 724-25.

      . Id. (footnote omitted).

      . Culkin, 35 P.3d at 252-53 (quoting Yeager, 502 A.2d 980, 998-1000 (D.C.App.1985) (citations and footnotes omitted)).

      . 754 F.2d 512 (4th Cir.1985).

      . Id. at 516.

      . Id. at 515 n. 1, 516.

      . 433 Mass. 596, 744 N.E.2d 1089 (2001).

      . Britto, 744 N.E.2d at 1105-06 (citations and footnotes omitted).

      . Bush, 47 F.3d 512; Feinberg, 89 F.3d 337.


author: Justice RICE

text:
    BOARD OF COMMISSIONERS OF PITKIN COUNTY, Colorado, Petitioners v. Grant Curtis TIMROTH, Respondents.
    No. 02SC704.
    Supreme Court of Colorado, En Banc.
    March 8, 2004.
    Rehearing Denied April 5, 2004.
    John M. Ely, Pitkin County Attorney, Aspen, Colorado, Attorney for Petitioner.

      Montgomery Little & McGrew, P.C., Frederick B. Skillern, Greenwood Village, Colorado, Wright & Adger, LLP, Gary Wright, Aspen, Colorado, Attorneys for Respondent.
    Kaplan Kirsch Rockwell, Lori Potter, Denver, Colorado, Attorney for Amicus Curiae Aspen Valley Land Trust, The Wilderness Society, Aspen Wilderness Workshop, and Wilderness Watch in Support of Pitkin County Board of County Commissioners.
   Justice RICE

delivered the Opinion of the Court.

The Pitkin County Board of County Commissioners ("the County") seeks review of the court of appeals decision in Timroth v. Oken, 62 P.3d 1042 (Colo.App.2002). The court of appeals reversed the district court's grant of summary judgment in favor of the County in a suit filed by respondent Grant Curtis Timroth ("Timroth"). Timroth bad filed a complaint in Pitkin County District Court seeking to quiet title to a mining claim pursuant to C.R.C.P. 105 ("Rule 105"). The County asserted ownership of the claim based on a treasurer's deed issued in 1964 for a tax sale held in 1908. On eross-motions for summary judgment, the district court quieted title in favor of the County, finding that extrinsic evidence demonstrated the validity of both the 1908 sale and the 1964 deed.

The court of appeals reversed the district court, holding that the 1964 deed was void on its face. It further held that while extrinsic evidence was admissible to prove the validity of the underlying tax sale, and indeed did so in this case, it was not admissible to rehabilitate a treasurer's deed that was void on its face. The court of appeals noted that the county was therefore entitled to the issuance of a new, valid, treasurer's deed. However, the County's entitlement to a new deed would be subject to the right of redemption by any party entitled to redeem, and the court of appeals found that disputed issues of fact remained regarding Timroth's right to redeem the property.

We granted certiorari on the issue of "[wlhether the court of appeals erred by refusing to admit extrinsic evidence under [Rule] 105 tending to support the validity of a treasurer's deed otherwise void on its face." We now reverse. We hold that Rule 105 requires courts to adjudicate all claims regarding real property in one action, and the issues and evidence before the trial court adequately presented a claim for reformation of the 1964 treasurer's deed. We further hold that under the facts of this case, the County was entitled to reformation of its treasurer's deed. The reformed deed relates back to the 1964 deed, and Timroth's claim of adverse possession therefore fails because one cannot adversely possess against the sovereign.

I. Facts and Procedural History

In 1892, the United States granted a patent in fee simple to Henry Powers and Powell Smith for the Twilight Lode Mining Claim, the property that is the subject of this dispute. Taxes were assessed in Pitkin County, and in 1908 a property tax sale was held for unpaid 1907 taxes. There were apparently no bidders at the sale. The property was therefore struck to Pitkin County and a tax certificate was issued to the County. In 1964, a treasurer's deed was issued to the County based upon the 1908 tax sale and certificate, and this deed was duly recorded.

In his complaint, Timroth alleged ownership on three grounds: a deed properly recorded in the chain of title, adverse possession pursuant to sections 38-41-101 to -103, 10 C.R.S. (2003), and possession and payment of takes pursuant to section 38-41-108, 10 C.R.S. (2008). Timroth's complaint also alleged that the County's title claim failed because the treasurer's deed upon which it relied was void. Timroth further contended that the tax sale-and resulting tax certificate, underlying the County's treasurer's deed were void. In his motion for partial summary judgment, Timroth based these assertions on the fact that the recitals in the deed indicate that the property was struck to the County on December 12, 1908. The statute governing the tax sale required the sale to be commenced on or before the second Monday in November. § 5714, R.S. 1908 (now codified with amendments at § 39-11-109, 11 C.R.S. (2003)). A statutory exception allowed for commencing the sale later:

If, from any cause, real property can not be duly advertised and offered for sale on or before the second Monday of November, it shall be the duty of the treasurer to make the sale on any subsequent day in which it can be made, allowing time for the publication of notice, as provided in this act.

§ 5715, R.S8.1908 (now codified with amendments at § 89-11-110, 11 CRS. (20083). However, neither the tax certificate nor the treasurer's deed recited any cause for the sale's delay. Moreover, the deed did not indicate when the sale commenced, and by statute property could not be struck to the County on the first day it was offered at a tax sale. § 5713, R.8.1908 (now codified with amendments at § 39-11-108, 11 CRS. (2003)).

In its cross motion for summary judgment, the County attacked Timroth's claims of ree-ord ownership of the property and payment of taxes. Timroth's deed was a special warranty deed received from Tyrone Austin Thompson in 1988. Thompson had received his interest from John Francis Powers III in 1979 by quitclaim deed. The County maintained this was a wild deed, as no recorded conveyance indicates how John Francis Powers III received his interest in the property. The County also asserted that neither Tim-roth nor his predecessors in title ever paid any property taxes. With respect to Tim-roth's adverse possession claim, the County noted that a claim of adverse possession cannot lie against the sovereign.

The district court dismissed Timroth's complaint. The court admitted extrinsic evidence offered by the County explaining the delay in the tax sale. The district court therefore held that the resulting tax deed was rehabilitated and thus valid. With respect to Timroth's claims of superior title, the court noted that the County had responded to Timroth's complaint by refuting his claims of ownership, and supported its contentions with affidavits and other evidence. Because Timroth, in his reply to the County's summary judgment motion, did not attempt to counter this evidence, the court held that Timroth held no claim to the property.

The court of appeals reversed the trial court. The court of appeals held that extrinsic evidence was admissible to show the validity of the tax sale, but it was not admissible to rehabilitate a treasurer's deed that was void on its face. Thus, the court noted that the County was still entitled to the issuance of a valid treasurer's deed. However, the right to a corrected treasurer's deed remained subject to the right of redemption of anyone who was entitled to redeem the property. The court of appeals upheld the district court's determination that Timroth's claim of title based on his deed issued from Tyrone Austin Thompson failed because Tim-roth had provided no evidence to counter the County's assertion that the deed was not in the recorded chain of title The court of appeals also upheld the trial court's determination that Timroth could not claim ownership based on payment of taxes, again because Timroth had not refuted the County's contention that no taxes had been paid or offered by Timroth or any of his predecessors in interest.

With respect to Timroth's claim of adverse possession, however, the court of appeals held that the County had not actually refuted Timroth's assertion. The County had merely declared that adverse possession cannot lie against the sovereign. Because the court of appeals had already determined that the County only possessed the right to a valid treasurer's deed and did not have preexisting legal title to the property, the court of appeals held that Timroth's adverse possession claim had not been defeated, and material questions of fact remained on that issue.

II. Analysis

A. Rule 105 Requires a Complete Adjudication of Rights ‘

Rule 105 provides for a "complete adjudication of the rights of all parties" in any action brought "with respect to any real property.... The court in its decree shall grant full and adequate relief so as to completely determine the controversy and enforce the rights of the parties." Prior to the enactment of Rule 105, the form of the complaint determined the nature of the suit. See Vogt v. Hansen, 128 Colo. 105, 111-12, 225 P.2d 1040, 1043 (1950) (noting that the rules of the old code "making specific provision for different forms of real-property action had been supplanted by Rule 105(a)"); cf. Miller v. Stoner, 107 Colo. 317, 319, 111 P.2d 903, 904 (1941) (declaring in a pre-Rule 105 case that the "complaint states a good cause of action to remove a cloud [and][dlefendants could not convert it into a suit to quiet title").

After the enactment of Rule 105, only one form of property action remained, and "Lt is not form but substance which determines the nature of the action." Levy v. Welsh, 44 Colo.App. 360, 612 P.2d 1135, 1137 (1978), aff'd, 200 Colo. 36, 612 P.2d 80 (1980). Thus, even though the pleadings do not raise a particular issue, if the evidence before the court makes the issue apparent, the court must reach that issue in order to grant full and appropriate relief. Keith v. Kinney, 961 P.2d 516, 519 (Colo. see also Stubbs v. Standard Life Ass'n, 125 Colo. 278, 280-81, 242 P.2d 819, 820 (1952) (declaring that "while the decree in form follows the old terminology of quieting title" the action set out the basis of a reformation claim and thus complied sufficiently with Rule 105); Hodge v. Terrill, 123 Colo. 196, 202-03, 228 P.2d 984, 987 (1951) (noting that adverse possession was not pled but evidence before the court raised the issue, and "it became the court's duty to determine the issue thus presented as if it had been raised by the pleadings").

In the case at hand, Timroth filed a complaint to quiet title in him and against the County. While the County did not file a counterclaim, its motion for summary judgment clearly placed the issue of reformation of its treasurer's deed before the trial court by essentially claiming that even if the treasurer's deed was void, it should be reformed. The County argued that the tax sale was lawfully conducted and that extrinsic evidence demonstrated this fact. The County further argued that this evidence therefore proved that the treasurer's deed resulting from this tax sale was not void. While these arguments did not explicitly state a claim for reformation, speaking instead of the validity of the deeds, the County adequately stated a claim for reformation. See Hodge, 123 Colo. at 202-03, 228 P.2d at 987; Keith, 961 P.2d at 519.

Neither the trial court nor the court appeals addressed this issue directly. We recognize that both the trial court and the court of appeals implicitly considered the sue of reformation by addressing the admissibility of extrinsic evidence to rehabilitate the County's treasurer's deed. However, neither court discussed or analyzed any pree-edent regarding reformation of treasurer's deeds. We do so here.

B. Reformation of the County's Treasurer's Deed

1. Case Law

Reformation of an instrument is an equitable remedy. See, e.g., Jackson Enters., Inc. v. Maguire, 144 Colo. 164, 167-68, 355 P.2d 540, 542 (1960). "Generally, equity will not entertain a suit to reform a tax deed." 72 Am.Jur.2d State and Local Taxation § 889 (2001). The rationale behind this rule is that tax sale proceedings are purely statutory and operate entirely against the interests of the original landowner, thus in order to be valid a treasurer's deed depends upon strict compliance with the requirements of the statute under which it was issued. 85 C.J.S. Taxation § 1487 (2001); see also Crisman v. Johnson, 23 Colo. 264, 267, 47 P. 296, 297-98 (1896). However, the authorities cited in these legal encyclopedias for the rule against reformation of treasurer's deeds are over sixty years old and from other jurisdictions. Furthermore, the rule has not been followed consistently in numerous jurisdictions in a wide variety of circumstances. See, e.g., Crompton v. Kirkland, 157 Fla. 89, 24 So.2d 902 (1946) (reformation of tax deed with incorrect property description); Resweber v. Jacob, 125 So.2d 241 (La.App.1960) (reformation of tax deed with incorrect recitation of the year of the delinquent taxes); Perkins v. Masek, 366 P.2d 101, 106 (Okla.1961) (reformation of tax deed where the property description in a tax deed was indefinite and void). Moreover, Colorado courts have not directly addressed the issue, and even those cases which bear indirectly on the subject do not provide clear guidance.

The court of appeals examined our precedent and determined that extrinsic evidence could only be considered for the purposes of demonstrating the validity of the underlying tax sale and not for the purposes of demonstrating the validity of the treasurer's deed. The court cited to Ireland v. Gunnison Mountain Coal & Coke Co., 87 Colo. 193, 286 P. 280 (1930), Kingore v. Wallace, 85 Colo. 381, 276 P. 332 (1929), and Miller v. Stoner, 107 Colo. 317, 111 P.2d 903 (1941), in support of this conclusion. We find none of these cases controlling.

In Ireland, the purchaser of the treasurer's deeds conceded that his deeds were voidable because the tax sale was held in violation of the statute, and the sole issue before the court was how much he should recover from the original owner who sought to redeem the properties. 87 Colo. at 195, 286 P. at 281. In Kingore, the tax sale was held late with no explanation, thus invalidating the tax sale. 85 Colo. at 383, 276 P. at 332. Thus, in Ireland and Kingore, the underlying tax sales were void. Because a valid tax sale is a necessary precondition to a valid treasurer's deed, the Ireland and Kingore courts never reached the issue we consider today.

In Miller the court stated that "we have before us the sole question of the sufficiency of the complaint" on the plaintiff's appeal of the trial court's demurrer in favor of the defendant. 107 Colo. at 319, 111 P.2d at 904. Thus, the court was considering the very narrow issue of whether the demurrer should be overruled. The Miller court declared that the defendant's treasurer's deeds were invalid, presumably because the date of the tax sale indicated on the deed did not comply with the statute, even though the defendant's deeds were accompanied by an affidavit explaining the late sale. However, the court did not explain its reasoning: "Analysis and authority are unnecessary to show that such deeds were prima facie invalid." Id. Thus we are left to speculate as to how and why the court reached its conclusion.

A number of our cases imply that extrinsic evidence might be admissible to rehabilitate a treasurer's deed. See, e.g., City & County of Denver v. Murry, 82 Colo. 128, 129, 257 P. 859, 359 (1927) (stating that the tax deed shows no cause for the delay of the sale, "nor does the record contain any evidence of cause"); Hamer v. Glenn Inv. Co., 5 Colo. 423, 424, 226 P. 299, 299 (1924) (noting that "the deed recites no cause for the postponement, and we find no evidence of cause in the record"). The court of appeals considered these cases but determined that none of them held that such extrinsic evidence would be admissible to directly rehabilitate a treasurer's deed that was void on its face. Instead, the court of appeals interpreted them to allow only for the admission of extrinsic evidence to validate the underlying tax sale, thereby entitling the holder of the tax certificate to the issuance of a valid treasurer's deed. We do not agree with the court of appeals' interpretation. While these cases do not explicitly sanction the use of extrinsic evidence to rehabilitate a void treasurer's deed, they do contemplate its admissibility under some cireumstances.

Still other Colorado cases prohibit the admission of extrinsic evidence to rehabilitate a treasurer's deed otherwise void on its face, but these cases do so because of the limitations of the issues pled. See, e.g., Page v. Gillett, 47 Colo. 289, 107 P. 290 (1910). For example, in Page, we stated:

The deeds themselves being void, ... outside testimony was not competent to bolster them up. Testimony showing or tending to show that the several parcels of land included in the deed were in fact offered and sold separately ... was properly excluded. This proof might tend to establish valid sales. It would not mend void deeds. It might be one step in proof that defendant was entitled to good deeds, when he got bad ones, but there is no such issue. This is not suit to reform the conveyances .... The defendant ... must be limited in proof to the issue tendered.

Id. at 294, 107 P. at 292 (emphasis added); see also Newsom v. Jacobs, 51 Colo. 579, 582, 119 P. 623, 624 (1911) (Because the defendant claimed to have a valid treasurer's deed, he could not then introduce evidence showing that the deed, which was void on its face, was actually valid; "he must be limited in proof to the issues tendered."); Emerson v. Valdez, 24 Colo.App. 458, 135 P. 137, 138 (1913) (noting that "[it is apparent that in the instant case the pleadings in no way indicate or suggest an action to reform a conveyance . although in a suit to reform such tax deeds ... [the evidence] might have been admitted ... to authorize a court of equity to decree the reformation"). The court of appeals never addressed this particular facet of these cases, instead determining that Page, Emerson, and Newsom stood only for the proposition that extrinsic evidence would be admissible to show a valid tax sale.

Thus, our precedent does not provide a clear answer to the issue of whether a treasurer's deed otherwise void on its face might be subject to reformation under limited circumstances. In the absence of such clear authority, we consider case law from other jurisdictions, where we find many instances where invalid treasurer's deeds were reformed or otherwise rehabilitated. See, e.g., Brannan v. Henry, 142 Ala. 698, 39 So. 92 (1905) (parol evidence admitted to aid in ambiguous description of land in the treasurer's deed); Crompton v. Kirkland, 157 Fla. 89, 24 So.2d 902 (1946) (court will allow equity to reform a treasurer's deed with an erroneous description of the property); Carousel v. Higgins, 169 Ill.App.3d 180, 119 Ill.Dec. 861, 523 N.E.2d 617, 619-20 (1988) (incorrect description of property on the treasurer's deed is "little more than a serivener's error" and "[the court has jurisdiction to correct an obvious clerical error"); Willson v. Davis, 832 So.2d 360, 364 (La.App.2002) (court allows for reformation of tax deeds just as any other deed; the need for stability in such transfers makes the non-consensual nature of the conveyance irrelevant); Buk Lhu v. Dignoti, 431 Mass. 292, 727 N.E.2d 73, 76 (2000) (reformation of a tax deed allowed to correct a mutual mistake); Kneeland v. Hull, 116 Mich. 55, 74 N.W. 300, 300 (1898) (while recognizing the general rule that the statute must be adhered to strictly, the court nevertheless determined that equity required a different regult where the deed misdeseribed the property sold); Albritton v. Fairley, 116 Miss. 705, 77 So. 651 (1918) (extrinsic evidence admitted to cure an ambiguous property description); Riggle v. Skill, 9 N.J.Super. 372, 74 A.2d 424 (Ch.Div.1950) (reformation of a treasurer's deed allowed where the deed erroneously included plaintiff's property); Perkins v. Masek, 366 P.2d 101, 106 (Okla.1961) (where the property description in a tax deed was indefinite and void, a court "has the power to reform a tax deed under the proper circumstances").

We find this case law from other jurisdictions persuasive. Because reformation is an equitable remedy, and equity exists "to promote and achieve justice with some degree of flexibility," Garrett v. Arrowhead Improvement Ass'n, 826 P.2d 850, 855 (Colo.1992), we hold that a treasurer's deed otherwise void on its face may be reformed-through the use of extrinsic evidence-under limited cireumstances. We now turn to the particular facts of this case.

2. Application

Timroth seeks to claim ownership based, essentially, on a technical error in the preparation of the County's deed. As determined by the court of appeals, the tax sale was lawfully conducted, and that issue is not before us on this appeal. Furthermore, Tim-roth does not assert that the County's deed was not properly recorded so as to fail to provide record notice. Rather, his argument is more tortured. Because one cannot adversely possess against the sovereign, § 38-41-101(2), 10 C.R.S. (2003), Timroth's claim of ownership is based entirely on the fact that the County's deed is invalid because of the technical error of failing to recite the cause for the delay of the tax sale. Thus, he asserts that the County is not the current owner but is instead only entitled to a corrected deed. This entitlement to a corrected deed would be subject to anyone entitled to redeem the property, including an adverse possessor. See Notch Mountain Corp. v. Elliott, 898 P.2d 550, 555 n. 6 (Colo.1995) (noting that an adverse possessor may redeem). We are not prepared to reward a claim such as this.

In essence, Timroth is attempting to claim adverse possession against a non-existent owner. When the County received and recorded its deed in 1964, such recordation provided constructive notice to the original owners and their assigns that any claim to ownership or redemption of the property had been extinguished. Thus, Timroth's claim of adverse possession stands against owners who believed that any interest they may have once had in the property had been lost.

Here, the County has adequately stated a claim for reformation of its treasurer's deed. The tax sale was lawfully conducted, the deed was duly recorded providing constructive notice to all, and the error complained of in the deed is little more than a scrivener's error. We therefore hold that the County is entitled to reformation of its 1964 deed to reflect the cause for delay in the tax sale. Such a holding is consistent with the general trend toward affirming tax titles as we have expressed in Smith v. Griffin, 14 Colo. 429, 23 P. 905 (1890), Waddingham v. Dickson, 17 Colo. 223, 29 P. 177 (1892), and Colpitts v. Fastenau, 117 Colo. 594, 192 P.2d 524 (1948). See generally, § 38-84-101, 10 C.R.S.2003 ("[IHt is ... the policy of this state that [all laws affecting title to real property] be liberally construed with the end in view of rendering such titles absolute ... and not defeated by technical or strict constructions.").

In Smith we stated that "where a mere clerical mistake has occurred in preparing the [treasurer's] deed, the purchaser has a right to have it corrected." 14 Colo. at 432, 23 P. at 906. The Smith court admitted extrinsic evidence showing that the description in the treasurer's deed, which differed from the description given when the land was originally subdivided, referred to the same tract of land. Id. In response to a challenge to the deed's validity, the court noted the description used would not have misled the original owner, and the incorrect description "should not be held so defective as to vitiate the sale." Id.

Two years later, we rejected a challenge to the validity of a treasurer's deed based on purely technical defects. Waddingham, 17 Colo. at 230-31, 29 P. at 180 (noting that the objections made "are purely technical, and cannot be allowed to prevail for the purposes of overthrowing a proceeding that in all substantial particulars appears to have been fair and regular"). The Waddingham court went on to explain that there was a trend toward affirming the validity of tax titles, and property owners who failed to pay their taxes could not rely upon mere technical errors by the public officers entrusted with the responsibility to collect taxes. Id. Some fifty years later, we reaffirmed this general trend toward affirming the validity of tax sales and the resulting tax titles. Colpitts, 117 Colo. at 597, 192 P.2d at 527.

Under the cireumstances of this case, where the tax sale was lawfully conducted, the deed was duly recorded, and the deed contained only a technical defect, equity permits the reformation of the County's treasurer's deed based on the undisputed evidence presented to the trial court regarding the validity of the underlying tax sale.

3. Relation Back

The only remaining question is whether the reformed deed relates back to the original 1964 deed. We hold that it does. Generally, reformation of an instrument relates back to the original date of execution of the instrument. 76 C.J.S. Reformation of Instruments § 89 (2001). An exception is made where such reformation would injure "bona fide purchasers without notice and those standing in similar relations." Id. Because the County's deed was properly recorded, providing constructive notice to anyone claiming an interest in the property, Timroth cannot take shelter under this exception. The mere fact that the deed was not reformed until after the institution of Timroth's action against the County is of no consequence. See, e.g., Foley v. Worthington, 202 Okla. 23, 209 P.2d 871, 872 (1949) (noting that a corrected tax deed, issued to replace a defective deed, related back to the original deed even though the corrected deed was not issued until after the litigation commenced); McCullough v. Young, 198 Okla. 96, 175 P.2d 322, 324 (1946) (same).

III. Conclusion

We hold that the County properly stated a claim for reformation of its treasurer's deed pursuant to Rule 105. We further hold that the County was entitled to reformation of this deed, and the deed as reformed relates back to the date of issuance of the original deed. We therefore reverse the court of appeals opinion and remand the case to the court of appeals for reinstatement of the district court order granting summary judgment and quieting title in the County.

      . Although Timroth's original claim asserted numerous grounds for quieting title, the only claim of title remaining on this appeal is one of adverse possession.

      . A treasurer's deed is often referred to as a tax deed or tax title. The terms are therefore used interchangeably.

      . James Blanning attempted to pay taxes in 1988 but the County refused this offer. No title or other evidence in the record indicates any connection between Blanning and Timroth.

      . When a court considers the use of extrinsic evidence to rehabilitate an otherwise void deed, that court is essentially considering whether the deed should be reformed to reflect what it was allegedly intended to recite. An action to reform a deed to include the allegedly correct recitations necessarily requires the admission of extrinsic evidence, because extrinsic evidence provides the means to demonstrate that the recitations contained in the original deed were somehow incorrect or incomplete. Thus, the real issue before us is not whether the court of appeals should have admitted extrinsic evidence, but rather whether treasurer's deeds may be reformed, and if so whether the County was entitled to have its deed reformed based on the evidence presented.

      . If the explanatory recital showing good cause for the late sale had been included on the face of the deed, the deed would not have been void. See City & County of Denver v. Bach, 92 Colo. 594, 600, 22 P.2d 1114, 1117 (1933).

      . Timroth also argues that the County never offered the property up for sale as required by section 39-1 1-142(5), 11 C.R.S. (2003), and equity will not come to the aid of one who violates the law. Because this issue was not raised before the trial court, we do not consider it here.