McGreevy v. Jenkins

23CA1666 McGreevy v Jenkins 04-17-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1666
Arapahoe County District Court No. 18CV32241
Honorable Elizabeth Beebe Volz, Judge

William McGreevy and Colleen McGreevy,

Plaintiffs-Appellees and Cross-Appellants,

v.

Justin Tobias Jenkins,

Defendant-Appellant and Cross-Appellee.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE BROWN
J. Jones and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 17, 2025

The Law Offices of Peter R. Bornstein, Peter R. Bornstein, Greenwood Village,
Colorado, for Plaintiffs-Appellees and Cross-Appellants

Gersh & Thomaidis, LLC, James N. Thomaidis, Denver, Colorado, for
Defendant-Appellant and Cross-Appellee
¶1 This is the second appeal in a dispute between Justin Tobias

Jenkins; his former wife, Mary E. Jenkins; and his former

parents-in-law, Colleen and William McGreevy. As relevant here,

the district court determined that Justin1 breached a joint venture

agreement with the McGreevys to purchase, remodel, and sell a

property and that the McGreevys were entitled to damages. The

McGreevys appealed, and a division of this court affirmed the

judgment in part, reversed it in part, and remanded the case with

specific instructions for the district court to make additional

findings and conclusions on certain claims and categories of

damages. See McGreevy v. Jenkins, (Colo. App. No. 21CA1249, Feb.

9, 2023) (not published pursuant to C.A.R. 35(e)) (McGreevy I).

¶2 On remand, the court reversed its original determination that

a joint venture existed and instead concluded that the parties had

entered into an oral contract, which rendered most of the McGreevy

I division’s remand instructions inapplicable. Justin appeals,

attempting to challenge parts of both the original and amended

1 Because the parties share last names, we refer to them

individually by first names and mean no disrespect in doing so.

1
judgments,2 and the McGreevys cross-appeal, principally arguing

that the district court exceeded the mandate from McGreevy I.

Because we agree with the McGreevys that the district court

exceeded the mandate, we reverse almost all of the amended

judgment,3 reinstate the original judgment except to the extent it

was reversed by McGreevy I, and again remand the case to the

district court to comply with the mandate from McGreevy I.

I. Background and Procedural History

A. The Joint Venture and the Divorce

¶3 The division in McGreevy I detailed the underlying facts, so we

only briefly reiterate those that are relevant to our disposition of

this appeal. See McGreevy I, No. 21CA1249, slip op. at ¶¶ 2-19.

¶4 In 2011, the McGreevys and the Jenkinses began working

together on a fix-and-flip project in Castle Rock, Colorado. The

Jenkinses purchased the property in their names for $246,000 —

2 During oral argument, Justin’s attorney said that Justin was not

attempting to challenge portions of the original judgment that were
not affected by the district court’s amended judgment, but his briefs
clearly contradict this, as detailed below.
3 We leave undisturbed the part of the amended judgment denying

the McGreevys attorney fees under section 13-17-102, C.R.S. 2024,
because they did not appeal that issue.

2
they made a down payment of $61,500 and obtained a mortgage

loan of $184,500. The McGreevys took out a $157,000 home equity

line of credit (HELOC) on their personal residence to provide the

down payment, pay off some of Justin’s debt so he could get a

better interest rate on the mortgage, and fund the renovation of the

house. Colleen McGreevy testified that, while the renovation was in

progress, the McGreevys also used funds from the HELOC to make

the monthly mortgage payments for the Jenkinses. Colleen said

they used all the HELOC funds and had to put another $10,000 or

more into the project.

¶5 After the renovation was completed, the Jenkinses rented out

the house under a five-year lease for $2,500 a month and used the

rental income to pay the monthly mortgage payments and the

interest on the McGreevys’ HELOC. The renter later purchased the

house for $480,000, and the net proceeds from the sale — after

paying closing costs and the Jenkinses’ mortgage — were

$299,223.76. By the time the house was sold, Justin and Mary

were in the midst of a divorce and disagreed about how to distribute

the sale proceeds.

3
¶6 Eventually, the domestic relations court found that Mary did

not present sufficient evidence to establish that the McGreevys had

an interest in the property or that the Jenkinses had to repay the

McGreevys for their financial assistance. The domestic relations

court found that the McGreevys’ financial assistance was a gift to

the marriage and treated the proceeds from the sale of the home as

marital property. Although the domestic relations court

disproportionately allocated the sale proceeds between Mary and

Justin — $249,763.16 to Mary and $49,236.84 to Justin — it also

allocated the marital home, worth $207,870, to Justin and

otherwise equitably divided the marital estate.

B. The Underlying Lawsuit

¶7 The McGreevys filed a civil suit against Justin, asserting

claims for civil theft, breach of fiduciary duty, breach of a joint

venture agreement, and unjust enrichment. Justin asserted claims

against the McGreevys (as counterclaim defendants) and Mary (as a

third-party defendant) for breach of fiduciary duty, breach of

contract, and civil conspiracy.

¶8 The district court conducted a six-day bench trial and issued a

written order on May 14, 2021. The court found “that there is

4
ample evidence from which it can conclude that there was a joint

venture agreement between the McGreevys and the Jenkins[es] to

purchase and remodel a home for resale, i.e. fix-n-flip, and to share

equally between the two couples any losses or profits from this

venture.” The court also found that no contract existed because

“there was no meeting of the minds or agreement on an essential

element related to complete repayment to the McGreevys for

whatever amount they decided to contribute to the project.” It

rejected the McGreevys’ claims for unjust enrichment and civil theft

and implicitly dismissed their claim for breach of fiduciary duty as

moot because that claim sought the same economic damages as the

joint venture claim. It also rejected Justin’s civil conspiracy claim

and implicitly rejected Justin’s breach of fiduciary duty claim.

¶9 As for damages, the court found that the McGreevys should

have recovered half of the sale proceeds, totaling $149,611.88. The

court allocated to the McGreevys $31,613.14 that had been

deposited into the registry of the court after the divorce, leaving a

balance due to the McGreevys of $117,998.74. It entered judgment

against Justin for half that amount — $58,999.37 — finding that

Mary would be responsible for the other half but noting that the

5
McGreevys had not asserted any claims against her. On August 24,

2021, the court entered default judgment against Mary and

awarded Justin a sum certain in damages, resolving all remaining

claims.4

C. The First Appeal

¶ 10 On August 20, 2021, the McGreevys filed an appeal with this

court. They contended that the district court erred by (1) failing to

assess damages for return of their contribution to the joint venture;

(2) rejecting their civil theft claim; (3) declining to resolve their

breach of fiduciary duty claim; (4) failing to consider their request

for noneconomic damages; (5) denying their motion to add a claim

for exemplary damages; (6) declining to award prejudgment interest;

(7) declining to award them attorney fees for the breach of fiduciary

duty claim; and (8) declining to award them attorney fees under

4 The district court also entered an order on September 24, 2021,

adding awards of attorney fees and costs against Mary, and a
“Judgment and Certification under Rule 54(b)” purporting to enter a
“final judgment” on October 8, 2021. The McGreevy I division
concluded that all claims were resolved and a final judgment was
entered on August 24, 2021, when the court entered default
judgment against Mary. See McGreevy v. Jenkins, (Colo. App. No.
21CA1249, Feb. 9, 2023) (not published pursuant to C.A.R. 35(e)).

6
section 13-17-102, C.R.S. 2024. McGreevy I, No. 21CA1249, slip

op. at ¶ 18.

¶ 11 Justin moved to dismiss the appeal, arguing that this court

lacked jurisdiction because the McGreevys appealed prematurely —

before all the claims were resolved — and because the district court

had not certified the judgment as final under C.R.C.P. 54(b). Id. at

¶¶ 17-18. A motions division of this court denied the motion to

dismiss and Justin’s subsequent motion to reconsider the order

denying the motion. Id. at ¶ 18. Justin also filed a notice of

cross-appeal on November 26, but the motions division dismissed it

for lack of jurisdiction because it was filed more than forty-nine

days after the district court entered its final judgment.5 See C.A.R.

5 C.A.R. 4(a)(1) provides, with exceptions not relevant here, that a

notice of appeal must be filed “within 49 days after entry of the
judgment, decree, or order being appealed.” C.A.R. 4(a)(2) provides
that, “[i]f one party timely files a notice of appeal, any other party
may file a notice of appeal within 14 days after the date when the
first notice was filed, or within the time otherwise prescribed by this
section (a), whichever period ends later.” Fourteen days after the
McGreevys filed their notice of appeal was September 3, 2021.
Forty-nine days from the district court’s August 24, 2021, final
judgment was October 12, 2021. The motions division even gave
Justin the benefit of calculating his appeal deadline from the court’s
September 24, 2021, order, but even then, Justin’s notice of cross-
appeal was due no later than November 12, 2021.

7
4(a)(1)-(2); People in Interest of M.R.M., 2021 COA 22, ¶ 42 (“Unless

a notice of appeal is timely filed, the court of appeals lacks

jurisdiction to hear the appeal.”) (citation omitted).

¶ 12 Justin re-raised his jurisdictional challenge in his answer

brief, arguing that the district court was required to certify its

judgment as final under C.R.C.P. 54(b) before the McGreevys could

appeal. McGreevy I, No. 21CA1249, slip op. at ¶ 18. The merits

division rejected that challenge, explaining that all claims were

resolved when the district court entered default judgment against

Mary in August 2021, which rendered the judgment final without

the need for a C.R.C.P. 54(b) certification. Id. at ¶¶ 21-24.

Although the division recognized that the McGreevys’ appeal had

been filed prematurely, it concluded that the district court’s entry of

default judgment against Mary cured any jurisdictional defect, and

that Justin had failed to show how he was prejudiced by the

premature filing. Id. at ¶¶ 25-26.

¶ 13 On the merits, the division affirmed the district court’s denial

of the McGreevys’ civil theft claim and their pretrial motion to

amend their complaint to seek exemplary damages. Id. at ¶¶ 35,

56. The division also affirmed the court’s joint venture liability

8
determination. Id. at ¶ 78. However, the division concluded that

the court erred by (1) failing to enter findings and conclusions as to

whether the McGreevys were entitled to a return of their

contribution to the joint venture under partnership law;

(2) effectively dismissing the McGreevys’ breach of fiduciary duty

claim as moot because that claim sought the same economic

damages as their breach of joint venture claim; (3) failing to explain

why it rejected the McGreevys’ claims for noneconomic damages

and attorney fees that might be available if the McGreevys were to

establish their breach of fiduciary duty claim; (4) denying the

McGreevys’ request for prejudgment interest; and (5) failing to

explain why it denied the McGreevys’ request for attorney fees

under section 13-17-102. See id. at ¶¶ 27, 42, 50-55, 61, 66, 72.

¶ 14 Consequently, the division reversed the judgment in part and

remanded for the district court to (1) enter findings and conclusions

as to “whether the McGreevys are entitled under partnership law to

a return of their contributions to the joint venture” and adjust the

damage award accordingly; (2) enter findings and conclusions as to

whether the McGreevys proved their claim for breach of fiduciary

duty and, if so, “consider any additional damages, including

9
noneconomic damages and attorney fees” they are entitled to

recover for that claim; (3) award prejudgment interest “once the

court determines the amount of the judgment”; and (4) enter

findings and conclusions “explaining its decision on the McGreevys’

request for fees” under section 13-17-102. Id. at ¶ 77.

D. Proceedings on Remand

¶ 15 On remand, the district court held a status conference and

ordered the parties to brief the remand issues. It did not receive

additional evidence. In an amended judgment, the court reversed

its prior joint venture liability determination and instead concluded

that the parties had entered into an oral contract.6 And because

the court determined that no joint venture existed, it reasoned “that

further analysis of the application of partnership law to the return

of contributions is unnecessary” and that “the [b]reach of [f]iduciary

[d]uty claim is inapplicable.”

¶ 16 The court did enter further findings, as directed by the

McGreevy I division, on the McGreevys’ request for attorney fees

6 We note that the McGreevys did not assert a claim against Justin

for breach of contract. Justin asserted a breach of contract claim
against the McGreevys, but the district court denied it on the basis
that there was no meeting of the minds and therefore no contract.

10
under section 13-17-102, concluding they were not entitled to fees

under that statute because Justin’s counterclaims were not brought

in bad faith and were not frivolous, groundless, or vexatious. The

court also separately determined the amount of prejudgment

interest. This appeal and cross-appeal followed.

II. The McGreevys’ Contentions

¶ 17 The McGreevys contend that the district court erred by

(1) violating the McGreevy I mandate by reversing its original

judgment and not otherwise following the remand instructions;

(2) concluding that an oral contract existed because that factual

finding is unsupported by the record; (3) failing to enter findings

and conclusions on whether the McGreevys proved their breach of

fiduciary duty claim; and (4) failing to adjust the damages award as

directed in the mandate. We conclude that the court violated the

McGreevy I mandate by reversing its original joint venture liability

determination. As a result, we also conclude that the court erred

by failing to enter findings and conclusions on the McGreevys’

breach of fiduciary duty claim and any damages associated with

that claim.

11
A. Compliance with the Mandate

1. Applicable Law and Standard of Review

¶ 18 “Under the mandate rule, ‘[c]onclusions of an appellate court

on issues presented to it as well as rulings logically necessary to

sustain such conclusions become the law of the case,’ which the

trial court must follow on remand.” Owners Ins. Co. v. Dakota

Station II Condo. Ass’n, 2021 COA 114, ¶ 24 (citation omitted). If

“an appellate court remands a case with specific directions . . . to

pursue a prescribed course, a trial court has no discretion except to

comply with the instructions.” People in Interest of M.D., 2014 COA

121, ¶ 18.

¶ 19 We review de novo whether a trial court followed a mandate

from the court of appeals. Thompson v. Catlin Ins. Co. (UK) Ltd.,

2018 CO 95, ¶¶ 20-22.

2. The District Court Failed to Follow the Mandate

¶ 20 The McGreevys contend that the district court violated the

McGreevy I mandate by reversing its previous joint venture liability

determination. We agree.

¶ 21 In its original judgment, the district court found the signature

features of a joint venture: the parties agreed to jointly invest in a

12
property; cooperated in the renovation and sale of the property; and

were to “share equally between the two couples any losses or profits

from this venture,” with each couple taking “the chance that there

would be losses and they would share equally in these losses or

there would be profits and each couple would share equally in the

profits.” See Scott R. Larson, P.C. v. Grinnan, 2017 COA 85, ¶ 45 (“A

joint venture exists when there is: (1) a joint interest in [the]

property; (2) an express or implied agreement to share in profits or

losses of the venture; and (3) actions and conduct showing joint

cooperation in the venture.”) (citation omitted); Colo. Performance

Corp. v. Mariposa Assocs., 754 P.2d 401, 405 (Colo. App. 1987)

(explaining that a “chief characteristic of a joint adventure is a joint

and not a several profit” (quoting Fedderson v. Goode, 145 P.2d

981, 985 (Colo. 1944))); Batterman v. Wells Fargo Ag Credit Corp.,

802 P.2d 1112, 1117 (Colo. App. 1990) (The element of joint and

not several profit sharing “is not present if one of the parties to the

alleged joint venture receives a fixed sum, irrespective of the

venture’s profits or losses, or if one of the parties could” enjoy

individual profit while the other enjoys individual loss.) (citation

omitted). Thus, the court found “ample evidence from which it can

13
conclude that there was a joint venture agreement” to “fix-n-flip”

the Castle Rock property and awarded the McGreevys damages for

Justin’s breach of that joint venture.

¶ 22 But the court did not award the McGreevys a return of their

initial contribution to the joint venture. The McGreevy I division

explained that “after finding that the parties had entered into a joint

venture relationship, the court was required to direct a return of

each partner’s contributions in the winding up of that joint venture,

unless the court found that the partners had agreed there would be

no return of their contributions.” McGreevy I, No. 21CA1249, slip

op. at ¶ 31; see §§ 7-64-103(1), -401(1)(a), -807(2), C.R.S. 2024; see

also Turkey Creek, LLC v. Rosania, 953 P.2d 1306, 1310 (Colo. App.

1998) (“The rights of a party to a joint venture agreement are

subject to any agreements between the parties of the venture.”).

The division was perplexed by the court’s seemingly contrary

findings that “[t]here was no provision that the Jenkins[es] would

first recoup all of their mortgage payments and there can be no

provision that the McGreevys recoup all of their expenditures before

these profits are calculated,” that the parties had no meeting of the

minds “related to complete repayment of the McGreevys for

14
whatever amount they decided to contribute,” and that the parties

agreed “to share equally in any losses or profits, without any

consideration of first paying back expenses.”

¶ 23 Unable to discern the basis for the court’s decision not to

award the McGreevys a return of their contribution, the McGreevy I

division reversed the original judgment on the joint venture claim

only as it related to the court’s computation of damages. It expressly

affirmed the judgment “[i]n all other respects,” which included

affirming the court’s determination that the parties had entered into

a joint venture and that Justin was liable to the McGreevys for

breaching it. McGreevy I, No. 21CA1249, slip op. at ¶¶ 77-78. The

division directed the court only to enter additional findings and

conclusions on whether the McGreevys “are entitled under

partnership law to a return of their contributions to the joint

venture” and to adjust the damage award accordingly. Id. at ¶ 77.

¶ 24 But on remand, the district court reversed course entirely,

finding that no joint venture agreement existed and that an oral

contract existed instead. And because it found no joint venture

agreement existed, it saw no need to comply with the McGreevy I

division’s instructions to apply partnership law and recalculate

15
damages on the breach of joint venture claim. The court’s amended

judgment effectively unwound the McGreevy I division’s decision to

affirm the joint venture liability determination. The court had no

discretion to revisit the parts of the judgment the McGreevy I

division affirmed or to ignore the division’s specific remand

instructions. See Owners Ins. Co., ¶ 24; M.D., ¶ 18. By doing both,

the court violated the mandate.

¶ 25 We reverse the amended judgment to the extent it determined

that no joint venture existed or found that an oral contract existed.

We again remand the case to the district court to comply with the

McGreevy I mandate.7

B. The Breach of Fiduciary Duty Claim

¶ 26 The McGreevys contend that the district court failed to enter

findings and conclusions on whether they proved their breach of

7 We note that the district court’s amended judgment said that “if a

[j]oint [v]enture did exist and the [c]ourt considered reimbursement
to the parties for the ‘capital contributions’ such consideration
would necessarily include return of the mortgage payments made
by the Jenkins[es].” To the extent that the Jenkinses made
mortgage payments that were not covered by the rental income, as
Justin testified, or drawn from the McGreevys’ HELOC, as Colleen
testified, we agree that the court should consider those
unreimbursed contributions in recalculating damages.

16
fiduciary duty claim as required by the McGreevy I mandate. Again,

we agree.

¶ 27 In the original judgment, the court effectively dismissed the

McGreevys’ breach of fiduciary duty claim as moot because it

sought the same economic damages as the joint venture claim.

Recognizing that the McGreevys might be entitled to noneconomic

damages and attorney fees if they succeeded on the breach of

fiduciary duty claim, the McGreevy I division determined that the

claim was not moot and directed the court on remand to enter

findings and conclusions on whether the McGreevys proved the

claim and, if so, to consider whether noneconomic damages and

attorney fees should also be awarded. McGreevy I, No. 21CA1249,

slip op. at ¶¶ 48, 77.

¶ 28 On remand, the court reasoned that the breach of fiduciary

duty claim was “based on whether or not there was a [j]oint

[v]enture” because parties to a joint venture owe one another a

fiduciary duty. See Hooper v. Yoder, 737 P.2d 852, 857 n.4 (Colo.

1987) (“The substantive law of partnership applies to joint ventures

as well as partnerships,” and “[p]artners as well as joint venturers

are fiduciaries with respect to each other and owe to each other the

17
highest duty of loyalty.”). Because the court reversed its prior

finding that a joint venture existed, it determined that the

McGreevys’ breach of fiduciary duty claim “is barred” — presumably

because, in the absence of a joint venture, Justin would not owe the

McGreevys a fiduciary duty.

¶ 29 However, we have reversed the amended judgment to the

extent it found that a joint venture did not exist and have reinstated

the court’s original determination that a joint venture existed,

which means that the McGreevys and Justin owed each other a

fiduciary duty. See id. Consequently, we again remand to the

district court to determine, as the McGreevy I division instructed,

whether the McGreevys proved a breach of that duty and whether

they are entitled to noneconomic damages and attorney fees as a

result. McGreevy I, No. 21CA1249, slip op. at ¶ 77.

III. Justin’s Contentions

¶ 30 Justin contends that the district court erred in entering the

original judgment by (1) determining that the parties entered into a

joint venture agreement; (2) creating a “new and different” joint

venture agreement than the one the McGreevys alleged in their

complaint; and (3) computing damages inconsistent with the court’s

18
own findings.8 He also contends that the court erred in entering the

amended judgment by (1) determining that the parties entered into

an oral contract and (2) adopting essentially the same computation

of damages for the oral contract as it had for the joint venture

agreement.

¶ 31 To the extent that Justin attempts to appeal the district

court’s original judgment, we decline to address his arguments

because they were either not raised in a timely cross-appeal in

McGreevy I or were already rejected by the McGreevy I division. See

M.R.M., ¶ 42; Youngs v. Indus. Claim Appeals Off., 2012 COA 85M,

¶ 49 (“Once an issue has been raised and decided, it becomes the

law of the case.”). And because we have reversed the amended

judgment to the extent it found an oral contract, Justin’s

arguments that the court erred by finding a contract and adopting

its prior damage computation are moot. See People in Interest of

C.G., 2015 COA 106, ¶ 12 (explaining that “[a]n issue is moot when

8 Justin also said he was challenging the district court’s entry of

default judgment against Mary, but he failed to develop that
argument, so we do not address it. See Taylor v. Taylor, 2016 COA
100, ¶ 13 (declining to address a contention stated in one
paragraph in a conclusory nature that was unsupported by any
substantial argument).

19
the relief sought, if granted, would have no practical effect on an

existing controversy” and that courts ordinarily refrain from

addressing a moot issue on the merits).

IV. Appellate Attorney Fees and Costs

¶ 32 The McGreevys request appellate attorney fees under C.A.R.

38(a), which provides for attorney fees as a sanction for failure to

comply with the appellate court’s orders or rules, and C.A.R. 38(b),

which provides for attorney fees as damages for frivolous appeals.

We decline to award attorney fees under C.A.R. 38(a) because we

perceive no sanctionable violation of this court’s orders or rules.

But we conclude that the McGreevys are entitled under C.A.R. 38(b)

and section 13-17-102(4) to recover appellate attorney fees incurred

in connection with Justin’s attempt to relitigate claims relating to

the original judgment and first appeal.

¶ 33 An appeal may be frivolous as filed or as argued. Calvert v.

Mayberry, 2019 CO 23, ¶ 45. An appeal “is frivolous as filed when

there are no legitimately appealable issues because the judgment

below ‘was so plainly correct and the legal authority contrary to the

appellant’s position so clear.’” Id. (quoting Castillo v.

Koppes-Conway, 148 P.3d 289, 292 (Colo. App. 2006)). If there are

20
legitimately appealable issues, then “an appeal may still be frivolous

as argued if the appellant ‘fail[s] to set forth . . . a coherent

assertion of error, supported by legal authority.’” Id. (quoting

Castillo, 148 P.3d at 292).

¶ 34 The arguments that Justin raises relative to the district court’s

amended judgment and the new finding that a contract existed are

not frivolous even though we did not reach their merits. However,

Justin’s continued efforts to relitigate issues related to the original

judgment that were either rejected by the McGreevy I division or not

timely appealed in the first instance are frivolous and waste this

court’s and the McGreevys’ resources. See Calvert, ¶ 45; Castillo,

148 P.3d at 292 (“Sanctions under Rule 38 thus perform two vital

functions: They compensate the prevailing party for the expense of

having to defend a wholly meritless appeal, and by deterring

frivolity, they preserve the appellate calendar for cases truly worthy

of consideration.” (quoting Finch v. Hughes Aircraft Co., 926 F.2d

1574, 1578 (Fed. Cir. 1991))). Thus, the McGreevys are entitled to

recover attorney fees incurred in connection with those issues, to

the extent those fees can be separately quantified. They are also

entitled to their costs under C.A.R. 39(a)(3).

21
¶ 35 In a footnote, Justin reiterates his prior request for attorney

fees and costs incurred in seeking dismissal of and responding to

the McGreevys’ first appeal. For similar reasons, we reject his

request.

¶ 36 Pursuant to C.A.R. 39.1, we direct the district court on

remand to (1) determine the amount of reasonable attorney fees and

costs the McGreevys incurred on appeal related to the issues that

Justin attempts to relitigate, if those fees can be separately

quantified; and (2) determine how the award of attorney fees should

be allocated as between Justin and his attorney, see

§ 13-17-102(3); Castillo, 148 P.3d at 293.

V. Disposition

¶ 37 We reverse the district court’s amended judgment — except as

to its denial of the McGreevys’ request for attorney fees under

section 13-17-102, which was not appealed and therefore remains

undisturbed — and reinstate the court’s original judgment except to

the extent that it was otherwise reversed by the McGreevy I division.

On remand, the court should take the following steps:

• With respect to the joint venture claim, the court must

decide whether the parties (a) agreed not to reimburse

22
contributions or (b) never reached any agreement on the

reimbursement of contributions. If the court finds that the

parties agreed not to reimburse contributions, then the

McGreevys are not entitled to recover their contributions

and the court’s original damages calculation as to this claim

may stand. If the court finds that the parties never reached

an agreement, then the court must award the McGreevys

additional damages for a return of their contributions.

• With respect to the breach of fiduciary duty claim, the court

must determine whether the McGreevys proved the

elements of the claim. If the court determines that the

McGreevys did not prove the claim, the court must make

findings and conclusions denying the claim on the merits.

If the court determines that the McGreevys proved the

claim, it must make findings and conclusions supporting

that decision and determine whether the McGreevys are

entitled to noneconomic damages and attorney fees flowing

from that claim.

• If the court amends the amount of damages it awards the

McGreevys based on either the joint venture claim or the

23
breach of fiduciary duty claim, then it must also recalculate

and award prejudgment interest on the modified damages.

• The court must determine the amount of appellate attorney

fees and costs the McGreevys incurred related to the issues

that Justin attempts to relitigate and how the award of fees

should be allocated as between Justin and his attorney.

JUDGE J. JONES and JUDGE YUN concur.

24