Baumberger v. McCulliss

24CA1987 Baumberger v McCulliss 10-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1987
Grand County District Court No. 23CV30028
Honorable Mary C. Hoak, Judge

Kathie Baumberger, individually and in her capacity as successor trustee of the
Mary Digor Baumberger Revocable Life Trust,

Plaintiff-Appellant,

v.

McCulliss Oil & Gas, Inc.; C.O.T.A. Resources, Inc.; and W.D. Real Estate
Investments LLC,

Defendants-Appellees.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE YUN
Freyre and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 23, 2025

Gray Bugos & Schroeder LLC, Joshua F. Bugos, Littleton, Colorado, for
Plaintiff-Appellant

Taft Stettinius & Hollister LLP, Tamir Goldstein, Ryan T. Shaffer, Denver,
Colorado, for Defendants-Appellees
¶1 In this quiet title case, the plaintiff, Kathie Baumberger,

appeals the district court’s grant of summary judgment in favor of

the defendants, McCulliss Oil & Gas, Inc.; C.O.T.A. Resources, Inc.;

and W.D. Real Estate Investments LLC (together, the defendants).1

Baumberger contends the district court erred by (1) finding that no

evidence supported her constructive trust claim; (2) finding that no

dispute of material fact existed as to whether the defendants were

bona fide purchasers for value; (3) finding that she could not prove

the hostility or good faith elements of her adverse possession claim;

(5) granting summary judgment on her unjust enrichment claim;

and (6) ruling against her on two evidentiary issues.

¶2 We agree with Baumberger’s first two contentions.

Accordingly, we affirm in part, reverse in part, and remand the case

to the district court for further proceedings consistent with this

opinion.

I. Background

¶3 The dispute in this case involves the ownership of a 26.90-acre

parcel of land in Grand County, Colorado (the property). The

1 Two additional defendants, Big Ray’s Enterprises LLC and

Teresa P. Flores, defaulted.

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property was originally granted in 1938 by the United States to

Baumberger’s grandfather, Stephan Digor, after he homesteaded it.

In 1994, Baumberger’s mother, Mary Baumberger, transferred her

interest in the property to Audra and Paul Coffey, who had adopted

her as an adult.2 Paul Coffey passed away, and in 2000, Audra

Coffey conveyed her interest in the property, at Mary Baumberger’s

direction, to Big Ray’s Enterprises LLC, a company owned by Mary

Baumberger’s friend, Raymond Flores.

¶4 Mary Baumberger paid taxes on the property until her death

in 2016. After her mother passed away, Baumberger lived on the

property and attempted to obtain record title by allowing the taxes

to go unpaid and purchasing the resulting tax lien at a public sale

in 2018. The tax lien gave Baumberger the right to receive a

treasurer’s deed for the property on December 19, 2022, if the lien

was not redeemed before that date.

¶5 In November 2022, Travis Besant, owner of the defendant

C.O.T.A. Resources, saw the public notice of Baumberger’s

2 The property consists of a 1.12-acre eastern tract and a 25.78-

acre western tract. At the time of this transfer, a third party owned
a one-sixth interest in the eastern tract. This appeal concerns only
the ownership of the remainder of the property.

2
application for a treasurer’s deed. After researching the property,

Besant contacted Raymond Flores’s widow, Teresa Flores. On

December 14, 2022, C.O.T.A. Resources and McCulliss Oil & Gas

purchased Big Ray’s interest in the property from Teresa Flores for

$5,000 and redeemed the tax lien for $2,741.57. Five days later,

C.O.T.A. Resources and McCulliss Oil & Gas transferred their

interest in the property to W.D. Real Estate.

¶6 In March 2023, Baumberger filed a lawsuit against the

defendants, asserting claims for quiet title, declaratory judgment,

adverse possession, constructive trust, and unjust enrichment. In

her complaint, she requested that the court void the December 14,

2022, sale of Big Ray’s interest in the property (the December 14

sale) and declare her the rightful owner of the property based on

either adverse possession or the imposition of a constructive trust.

Alternatively, if the court determined that the December 14 sale was

valid, she sought damages for unjust enrichment. The defendants

answered the complaint, and W.D. Real Estate asserted

counterclaims for quiet title, declaratory judgment, and eviction.

¶7 The defendants then moved for summary judgment on

Baumberger’s claims and W.D. Real Estate’s counterclaims. The

3
district court sua sponte dismissed W.D. Real Estate’s eviction

counterclaim and granted summary judgment for the defendants on

all the other claims and counterclaims.

¶8 Baumberger now appeals.

II. Standard of Review

¶9 We review de novo a district court’s order granting summary

judgment. Rocky Mountain Planned Parenthood, Inc. v. Wagner,

2020 CO 51, ¶ 19.

¶ 10 Summary judgment is proper only when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” C.R.C.P. 56(c). “In considering

whether summary judgment is appropriate, a court grants the

nonmoving party the benefit of all favorable inferences that may

reasonably be drawn from the undisputed facts and resolves all

doubts against the moving party.” Rocky Mountain, ¶ 20.

¶ 11 “Summary judgment is a drastic remedy, and it should only be

granted when it is clear that the applicable legal standards have

been met.” Id. at ¶ 21. “At the summary judgment stage, the trial

4
judge’s function is not to weigh the evidence and decide what

occurred, but to determine whether or not a genuine issue exists for

the jury.” Andersen v. Lindenbaum, 160 P.3d 237, 239 (Colo.

2007).

III. Constructive Trust

¶ 12 Baumberger contends that the district court erred by granting

summary judgment on her constructive trust claim. We agree.

A. Relevant Law

¶ 13 “[A] constructive trust is a ‘remedial device designed to prevent

unjust enrichment.’” Sandstead-Corona v. Sandstead, 2018 CO 26,

¶ 45 (quoting Mancuso v. United Bank of Pueblo, 818 P.2d 732, 737

(Colo. 1991)). “Constructive trusts ‘are raised by equity in respect

of property which has been acquired by fraud, or where, though

acquired originally without fraud, it is against equity that it should

be retained by him who holds it.’” Id. (quoting Page v. Clark,

592 P.2d 792, 798 (Colo. 1979)).

¶ 14 “[A] constructive trust can arise when two parties have a

‘confidential relationship’ that caused one party to act less vigilantly

than [they] would have . . . had [they] been dealing with a stranger.”

Id. at ¶ 46 (quoting Page, 592 P.2d at 798). Our supreme court has

5
recognized that “confidential relationships often arise between close

family members.” Id. The court has also noted that “a confidential

relationship may arise when one party has justifiably reposed

confidence in another, but for such a relationship to arise from a

transfer of property, the transferor must be justified in his or her

belief that the transferee will act in the transferor’s interests.” Id.

¶ 15 “Once a party demonstrates that a confidential relationship

exists, a transaction may be set aside if that relationship has been

abused.” Id. at ¶ 47. “A party can demonstrate an abuse of the

confidential relationship by showing, for example, that the party

who possesses the property at issue refused to act in accordance

with the parties’ mutual intent.” Id.

B. Additional Background

¶ 16 Baumberger argued in the district court that the facts of this

case warrant the “imposition of a constructive trust related to the

transfers of the [property] to Paul and Audra Coffey and then to Big

Ray’s.” Specifically, she argued that (1) “Mary Baumberger had a

close, confidential relationship with both the Coffeys (who adopted

Mary as an adult) and her longtime neighbor, Raymond Flores”; and

(2) Mary Baumberger conveyed the property to the Coffeys, and

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later directed Audra Coffey to convey it to Raymond Flores, in

reliance on those confidential relationships, with the understanding

that they would “hold [the property] in trust for her” and “reconvey

the [property] only as she directed.” Under Baumberger’s theory,

“Teresa Flores violated [the constructive trust] in December 2022

when she attempted to sell Big Ray’s interest” in the property to the

defendants. Accordingly, Baumberger asked the district court to

impose “an equitable constructive trust whereupon neither the

Coffeys nor Big Ray’s . . . held legal title to the [property] but were

instead trustees holding record title for the benefit of Mary

Baumberger (and now her estate).”

¶ 17 In response to the defendants’ motion for summary judgment,

Baumberger submitted her own affidavit and that of her mother’s

coworker, Dollie Darrah. In her affidavit, Baumberger stated as

follows:

• “Paul and Audra Coffey, husband and wife, adopted my

mother as their daughter when she was an adult. I

always considered Paul and Audra Coffey to be my

grandparents and I always had a close relationship with

them.”

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• “Although record title was transferred from Audra Coffey

to Big Ray’s Enterprises, that transfer was done at the

direction of Mary K. Baumberger.”

¶ 18 Darrah, in her affidavit, stated as follows:

• “Mary K. Baumberger and I were coworkers for years.”

• “For a time when I lived in Grand County, I was a

licensed real estate broker.”

• “During that time, Mary authorized me to list the

[property] for sale. At the time I listed the property for

sale, record title was in the name of Big Ray’s

Enterprises, LLC.”

• “I discussed with Mary the fact that although she owned

the [property], record title was in the name of Big Ray’s

Enterprises LLC. Mary told me not to worry about it

because she and Raymond Flores were good friends, and

he was just holding the [p]roperty for her in his business’

name.”

¶ 19 In granting summary judgment to the defendants on

Baumberger’s constructive trust claim, the district court ruled as

follows:

8
Although [Baumberger] testified to Mary
Baumberger’s friendship with Raymond Flores,
[she] offers no evidence of a confidential
relationship between the two. “[T]he transferor
must be justified in his or her belief that the
transferee will act in the transferor’s interests.”
Sandstead-Corona, [¶ 46].

The Court concludes no reasonable inference
can be drawn that a confidential relationship
existed between Mary Baumberger and Audra
Coffey.

C. Discussion

¶ 20 Although the court did not explain its finding that there was

“no evidence of a confidential relationship” between Mary

Baumberger and Raymond Flores, we understand its citation to

Sandstead-Corona to mean that it found no evidence that Mary

Baumberger was justified in her belief that Raymond Flores would

act in her interests. But Baumberger presented evidence, in

Darrah’s affidavit, that Mary Baumberger and Raymond Flores were

“good friends” and that he had agreed to “hold[] the [p]roperty for

her” in the name of his business. At the summary judgment stage,

the court “must resolve all doubts as to whether an issue of fact

exists against the moving party.” Mancuso, 818 P.2d at 738.

Accordingly, although the trier of fact may ultimately find this

9
evidence unpersuasive as to whether a confidential relationship

existed between Mary Baumberger and Raymond Flores, we

conclude that a reasonable inference may be drawn to that effect.

See id.

¶ 21 From the district court’s order, we cannot discern the basis for

its ruling that “no reasonable inference can be drawn that a

confidential relationship existed between Mary Baumberger and

Audra Coffey.” But again, Baumberger presented evidence, in her

affidavit, that Audra Coffey was Mary Baumberger’s adoptive

mother. Because “confidential relationships often arise between

close family members,” Sandstead-Corona, ¶ 46, we conclude that a

reasonable inference may be drawn that a confidential relationship

existed between Mary Baumberger and Audra Coffey.

¶ 22 Thus, we conclude the district court improperly granted

summary judgment on Baumberger’s constructive trust claim.

IV. Bona Fide Purchasers

¶ 23 Next, Baumberger contends that the district court erred by

finding that no dispute of material fact existed as to whether the

defendants were bona fide purchasers for value. Again, we agree.

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A. Relevant Law

¶ 24 A constructive trust is not “available against a bona fide

purchaser for value.” In re Marriage of Allen, 724 P.2d 651, 658

(Colo. 1986). A purchaser is classified as a bona fide purchaser if

they pay value for the property in good faith and without notice of

any title defect. Himes v. Schiro, 711 P.2d 1281, 1283 (Colo. App.

1985). “The rationale for the bona fide purchaser defense to the

imposition of a constructive trust is simply that ‘[a] person who has

obtained the title to property for value and without notice of the

claim of another to the property is not unjustly enriched if he is

permitted to retain it.’” Allen, 724 P.2d at 657 (quoting 5 Austin W.

Scott, The Law of Trusts, § 474, at 3454 (3d ed. 1967)). Whether a

purchaser is a bona fide purchaser for value is a question of fact.

Chandler Trailer Convoy, Inc. v. Rocky Mountain Mobile Home

Towing Servs. Inc., 552 P.2d 522, 524 (Colo. App. 1976).

¶ 25 In Colorado, there are three types of notice: actual,

constructive, and inquiry. Martinez v. Affordable Hous. Network,

Inc., 123 P.3d 1201, 1206 (Colo. 2005). “Actual notice occurs when

a party has actual knowledge of a title defect.” Id. Constructive

notice occurs when “a [party’s] search of the title records would

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have revealed [the] defect.” Id. Inquiry notice arises when “a party

becomes aware or should have become aware of certain facts which,

if investigated, would reveal the claim of another.” Id. (quoting

Franklin Bank, N.A. v. Bowling, 74 P.3d 308, 313 (Colo. 2003)).

Only inquiry notice is at issue here.

¶ 26 As to inquiry notice, “notice will not be ‘imputed to a

purchaser if a reasonable search would prove, or would have

proven, futile.’” Id. (quoting Littlefield v. Bamberger, 32 P.3d 615,

619 (Colo. App. 2001)). But if circumstances exist that would

arouse the “suspicions of an ordinary purchaser,” then “[i]nquiry

notice imputes knowledge” upon the purchaser. Id. at 1207. For

example, “possession of real estate is sufficient to put an interested

person on inquiry notice of any legal or equitable claim the person

or persons in open, notorious, and exclusive possession of the

property may have.” Id. A person has inquiry notice of a

constructive trust “when he knows facts which would lead a

reasonably intelligent and diligent person to inquire whether there

are circumstances which would give rise to a constructive trust,

and if such inquiry when pursued with reasonable intelligence and

diligence would give him knowledge or reason to know of such

12
circumstances.” Leyden v. Citicorp Indus. Bank, 782 P.2d 6, 12

(Colo. 1989) (citation and emphasis omitted).

B. Additional Background

¶ 27 Baumberger argued in the district court that the defendants

were not bona fide purchasers for value because they were on

inquiry notice of her claim to the property and the circumstances

giving rise to a constructive trust — specifically, “the likely

confidential relationship between the Baumbergers and Raymond

Flores.” In support of this argument, she relied on two emails sent

by Besant to Brian McCulliss, the owner of McCulliss Oil & Gas,

describing his research into the property, as well as Besant’s

deposition testimony.

¶ 28 In the first email, dated November 10, 2022, Besant noted the

following:

• “Research suggests [the property] has been in the

Baumberger family for a long period of time.”

• “The pending TD [treasurer’s deed] is from Big Ray’s

Enterprises[,] formerly associated with a man named

Raymond Flores. Big Ray’s name was recently changed

to Earl C. Baumberger [Baumberger’s father’s name] with

13
the CO SOS [Colorado Secretary of State], with Kathie

Baumberger as RA [registered agent]. So it appears the

TD process is being used to cure title and convey

property into an additional business entity of Kathie

Baumberger . . . .”

• “Grand County records suggest a Baumberger relative

conveyed the property to Big Ray’s in 2005. I do not

know if there is a connection between Raymond Flores

and [the] Baumberger family but I am assuming there is

because it is hard to believe he would walk away from the

property otherwise.”

¶ 29 In the second email, dated November 30, 2022, Besant noted

the following:

• He contacted Teresa Flores to discuss the property. She

“had good knowledge of the property” and had “lived on

the property with Raymond Flores.” She “also knew

about the Baumbergers” and was “especially familiar

with Mary and Earl [Baumberger’s parents] (both now

deceased).”

14
• He “offered $3400 for the property and explained the

problems associated with . . . ownership issues,

Baumberger problems, . . . [and] the likely legal battle

that would ensue.”

¶ 30 In his deposition, Besant testified that, when he learned that

Raymond Flores had passed away, he obtained the probate records

for his estate. He testified that he reviewed the documents and that

they included the information that

The personal representative has discovered
that the estate does not own any real property
in the state of Colorado. This information was
confirmed by the IRS agent who also
investigated whether there was any ownership
interest in any Colorado property by the estate
and determined that no such ownership
interest did exist.

¶ 31 In granting summary judgment to the defendants on

Baumberger’s quiet title and declaratory judgment claims, the

district court ruled that even if Baumberger could prove the

existence of a constructive trust, it could not operate against the

defendants because they were bona fide purchasers for value.

Specifically, the court rejected Baumberger’s argument that the

defendants were on inquiry notice of a “likely confidential

15
relationship between the Baumbergers and Raymond Flores.” To

the contrary, the court found that “there is nothing in the record

reflecting notice of . . . facts that would lead a reasonably intelligent

and diligent person to inquire as to whether there are

circumstances giving rise to a constructive trust” based on a

confidential relationship.

C. Discussion

¶ 32 The parties and the district court agree that, if there was a

constructive trust and enough evidence in the record to place the

defendants on inquiry notice of a confidential relationship, then the

defendants were not bona fide purchasers, and summary judgment

on Baumberger’s quiet title and declaratory judgment claims was

inappropriate. We have already concluded that, drawing all

reasonable inferences in Baumberger’s favor, see Rocky Mountain,

¶ 20, she offered sufficient evidence of a confidential relationship to

defeat the defendants’ motion for summary judgment on her

constructive trust claim. We further conclude that she provided

enough evidence that the defendants had inquiry notice of a

confidential relationship to create a disputed issue of material fact

as to whether they were bona fide purchasers.

16
¶ 33 Besant acknowledged in his first email to McCulliss that “it is

hard to believe” that Raymond Flores (or his heir, Teresa Flores)

would walk away from the property and allow Baumberger to

acquire title through the treasurer’s deed process unless there was

“a connection between Raymond Flores and [the] Baumberger

family.” He also noted that the property had been in the

Baumberger family for a long time and that a Baumberger relative

conveyed the property to Big Ray’s, the entity that was later

renamed to “Earl C. Baumberger” with Baumberger as the

registered agent. And he said it “appears” that Baumberger was

using the treasurer’s deed process to “cure title.”3 Further, in his

second email, he acknowledged anticipating “problems associated

with . . . ownership issues,” “Baumberger problems,” and a “likely

3 In his deposition, Besant testified that, by “cure title,” he meant

“trying to gain title.” But “cur[ing] title” is more commonly
understood as the process of removing any title defects. See Black’s
Law Dictionary 481 (12th ed. 2024) (“[C]ure” means “[t]o remove one
or more legal defects to correct one or more legal errors. . . . For
example, curing title involves removing defects from title to
unmarketable land so that title becomes marketable.”). The
discrepancy between Besant’s email and testimony could not be
resolved by the court at the summary judgment stage. See Cullen v.
Phillips, 30 P.3d 828, 832 (Colo. App. 2001) (at the summary
judgment phase, a court may not weigh evidence or pass judgment
on the credibility of witnesses).

17
legal battle.” This evidence, viewed in the light most favorable to

Baumberger, suggests the defendants knew there was a question as

to whether there was a confidential relationship between Raymond

Flores and the Baumberger family.

¶ 34 Further, Besant learned from his research that both Raymond

Flores’s personal representative and an IRS agent had previously

determined that Raymond Flores’s estate did not own any property

in Colorado. It was for the trier of fact to determine whether this

information would have aroused the “suspicions of an ordinary

purchaser,” Martinez, 123 P.3d at 1207, thus placing the

defendants on inquiry notice of a title defect and defeating their

status as bona fide purchasers.

¶ 35 Because a genuine issue of material fact exists as to whether

the defendants had inquiry notice of a confidential relationship that

could give rise to a constructive trust, we conclude that the district

court erred by determining, as a matter of law, that the defendants

were bona fide purchasers. Accordingly, it improperly granted

summary judgment on Baumberger’s quiet title and declaratory

judgment claims.

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V. Adverse Possession

¶ 36 Baumberger contends the district court erred by finding that

she could not prove the hostility or good faith elements of her

adverse possession claim. We are not persuaded.

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

demonstrate by clear and convincing evidence that possession of

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

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

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

2025. Additionally, “an adverse claimant must establish a good

faith belief that he or she (or a predecessor in interest) was the

property’s actual owner, which belief was reasonable under the

circumstances.” Lensky v. DiDomenico, 2016 COA 89, ¶ 25.

¶ 38 Adverse claimants need not actually possess the disputed

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

by “tacking” successive adverse possessions. Doty v. Chalk,

632 P.2d 644, 646 (Colo. App. 1981). And “[e]very reasonable

presumption [must be] made in favor of the true owner as against

adverse possession.” Schuler v. Oldervik, 143 P.3d 1197, 1202

19
(Colo. App. 2006) (quoting Lovejoy v. Sch. Dist. No. 46, 269 P.2d

1067, 1070 (Colo. 1954)).

¶ 39 Baumberger does not explain when she believes the adverse

possession period began to run or when title vested by adverse

possession. But her arguments make clear that she is relying on

her mother’s possession. It is undisputed, however, that Mary

Baumberger directed the transfer of title to the property to Big

Ray’s. “[H]ostile intent is based on the intention of the adverse

possessor to claim exclusive ownership of the property occupied.”

Id. (quoting Smith, 772 P.2d at 56). “The possession must be

hostile against both the true owner and the world from its

inception.” Id. at 1203. We thus agree with the district court that,

because Mary Baumberger expressly directed title away from

herself, she could not have intended to claim exclusive ownership

and her possession could not have been hostile.

¶ 40 For the same reason, as the district court correctly found,

Mary Baumberger could not have had “a reasonable belief that [she]

was the actual owner of the [property].” See Trask v. Nozisko,

134 P.3d 544, 553 (Colo. App. 2006) (“[W]hen an adverse occupier

acknowledges or recognizes the title of the owner during the

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occupant’s claimed prescriptive period, the occupant interrupts the

prescriptive use.”).

¶ 41 Because we agree with the district court that Baumberger did

not meet her burden to show a genuine issue of material fact on the

elements of hostility or good faith, we conclude that the district

court properly granted summary judgment in favor of the

defendants on her adverse possession claim.

VI. Unjust Enrichment

¶ 42 Baumberger contends the district court erred by granting

summary judgment on her unjust enrichment claim. We disagree.

¶ 43 “[A] party claiming unjust enrichment must prove that (1) the

defendant received a benefit (2) at the plaintiff’s expense (3) under

circumstances that would make it unjust for the defendant to retain

the benefit without commensurate compensation.” Lewis v. Lewis,

189 P.3d 1134, 1141 (Colo. 2008). Baumberger asserted her unjust

enrichment claim as an alternative to her other claims for relief,

arguing that, if the court rejected her other claims and found the

December 14 sale valid, “it would be unjust to allow the

[defendants] to realize and retain the benefits of those transactions

without paying [her] for all amounts, plus interest, she has incurred

21
in maintaining and improving the [property].” Specifically, in

response to the defendants’ motion for summary judgment, she

argued that (1) since her mother’s death, she had “paid for

excavation work, trench work, fencing, tree cutting, and well work

among other items in order to maintain the [property]”; and (2) “if

the “[d]efendants are determined to be the rightful owners of the

[property] after trial, equity requires [them to] reimburse [her] for

these expenditures since [they] would receive the benefits of this

work at [her] expense under circumstances that make it unjust for

them to retain these benefits without paying commensurate

compensation.”

¶ 44 The district court found that, although Baumberger provided

evidence of the work she performed on the property, she “offer[ed]

no argument as to why it would be unjust for a party validly taking

title to real property to retain the benefit of a previous possessor’s

work on such real property.” We agree with the district court.

Although Baumberger raised detailed arguments concerning the

validity of the December 14 sale, she did not explain why, if the sale

was ultimately deemed valid, it would be unjust for the defendants

to retain the benefit of her improvements to the property. As the

22
district court explained, we do not consider arguments presented in

a perfunctory and undeveloped manner. See In re Marriage of

Vittetoe, 2016 COA 71, ¶ 39; Antolovich v. Brown Grp. Retail, Inc.,

183 P.3d 582, 604 (Colo. App. 2007).

¶ 45 For the first time on appeal, Baumberger also argues that she

is entitled to compensation for her improvements to the property

under C.R.C.P. 105(e), which provides,

Where a party or those under whom he claims,
holding under color of title adversely to the
claims of another party, shall in good faith
have made permanent improvements upon real
property (other than mining property) the
value of such improvements shall be allowed
as a set-off or as a counterclaim in favor of
such party, in the event that judgment is
entered against such party for possession or
for damages for withholding of possession.

¶ 46 However, “[a]rguments not raised before the trial court may

not be raised for the first time on appeal.” Gold Hill Dev. Co., L.P. v.

TSG Ski & Golf, LLC, 2015 COA 177, ¶ 18 (quoting Am. Fam. Mut.

Ins. Co. v. Allen, 102 P.3d 333, 340 n.10 (Colo. 2004)). Further,

Baumberger does not explain why the provision regarding a party

“holding under color of title” should apply to her, since she knew

she was not the title owner. See Hinojos v. Lohmann, 182 P.3d 692,

23
700 (Colo. App. 2008) (“Color of title is defined as that which in

appearance has the semblance of title, either legal or equitable, but

which in fact is no title. Thus, color of title ‘can only arise out of a

conveyance purporting to convey title’ to real property, but which,

because of some defect, fails to do so.” (quoting First Nat’l Bank of

Wray v. McGinnis, 819 P.2d 1080, 1083 (Colo. App. 1991))).

¶ 47 We thus conclude that the district court properly granted

summary judgment in favor of the defendants on Baumberger’s

unjust enrichment claim.

VII. Evidentiary Issues

¶ 48 Baumberger contends that the district court erred by ruling

against her on two evidentiary issues. First, she contends the court

erred by ruling that, although a certain trust document would be

admissible at trial, it was inadmissible at the summary judgment

24
stage.4 And second, she contends the court erred by declining to

deem allegations in her complaint concerning the defaulted parties

(Big Ray’s and Teresa Flores) as admitted against the defendants for

purposes of demonstrating the existence of a genuine issue of

material fact.

¶ 49 Because the district court’s evidentiary rulings were relevant

only at the summary judgment stage, and we are reversing and

remanding the case for trial, we need not address them.

4 In her response to the defendants’ motion for summary judgment,

Baumberger submitted a declaration of trust signed by Audra
Coffey, Mary Baumberger, and Raymond Flores. The declaration
included a legal description of the property and stated that
“Raymond E Flores, of Big Rays Enterprises” would hold “said
property and all right, title and interest in and to said property and
all furniture, fixtures and personal property situated therein” in
trust for the benefit of Audra Coffey and Mary and Earl
Baumberger. The defendants moved to exclude the declaration of
trust, arguing that Baumberger had not offered evidence of its
authenticity. In her response to the defendants’ motion to exclude,
Baumberger submitted affidavits from herself and her son
authenticating the declaration of trust. The district court ruled that
the affidavits were sufficient to authenticate the declaration of trust
for purposes of admissibility at trial but that, because they were
submitted in response to the defendants’ motion to exclude rather
than in response to the defendants’ motion for summary judgment,
the declaration of trust was inadmissible at the summary judgment
stage.

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VIII. Attorney Fees

¶ 50 The defendants request an award of appellate attorney fees

under C.A.R. 38(b), which permits an award of attorney fees if we

determine that an appeal is frivolous, Glover v. Serratoga Falls LLC,

2021 CO 77, ¶ 70, and section 13-17-102(4), C.R.S. 2025, which

permits an award of attorney fees if we find that a party brought or

defended an action (or part of an action) that lacked substantial

justification, meaning it was substantially frivolous, groundless, or

vexatious. Because Baumberger prevailed on several of her

appellate contentions, we deny the defendants’ request for attorney

fees incurred on appeal.

IX. Disposition

¶ 51 The district court’s summary judgment on Baumberger’s

adverse possession and unjust enrichment claims is affirmed. Its

summary judgment on her quiet title, declaratory judgment, and

constructive trust claims, as well as W.D. Real Estate’s quiet title

and declaratory judgment counterclaims, is reversed, and the case

is remanded for trial on those claims and counterclaims.

JUDGE FREYRE and JUDGE PAWAR concur.

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