Wine v. Weiman

24CA0680 Wine v Weiman 05-01-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0680
Arapahoe County District Court No. 19CV30266
Honorable Don J. Toussaint, Judge

Alyn D. Wine and Wine Properties, LLC,

Plaintiffs-Appellees,

v.

Julie A. Weiman,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE YUN
Román, C.J., and Berger*, J., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 1, 2025

Fennemore Craig, P.C., David A. Laird, Allison M. Hester, Denver, Colorado, for
Plaintiffs-Appellees

Van Remortel LLC, Fred Van Remortel, Littleton, Colorado, for Defendant-
Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Julie A. Weiman, appeals the district court’s

judgment in favor of plaintiffs, Alyn D. Wine and Wine Properties,

LLC, finding Weiman liable for breach of contract, fraud, and civil

conspiracy. She contends that the court erred by (1) finding that

certain deeds of trust were invalid because they were part of a

fraudulent scheme; (2) finding that Weiman fraudulently induced

Wine to enter into a settlement agreement; (3) granting partial

summary judgment to Wine on his breach of contract claim;

(4) excluding certain evidence; and (5) finding that Weiman

participated in a conspiracy that caused Wine to suffer damages.

We disagree with these contentions and therefore affirm the

judgment.

I. Background

¶2 Weiman’s husband, Antheiaus Conquest, entered into an

informal real estate investment partnership with Wine. Conquest

located, and Wine put up most of the money to purchase, six rental

properties. The properties were purchased in Weiman’s name

because she “worked at a bank and was able to get financing

relatively simply.”

1
¶3 Then, without consulting Wine, Conquest and Weiman sold

two of the rental properties and used the proceeds to purchase a

house for themselves, which we will refer to as Arapahoe. At that

point, feeling that Conquest was “running very, very loose and

wild,” Wine sought to formalize their business relationship.

Weiman and Conquest gave Wine a promissory note for $570,000,

which represented the money Wine had invested in the partnership.

The promissory note was secured in June 2017 by a deed of trust

(the Wine DOT) encumbering Arapahoe and the four remaining

rentals, which we will refer to as Joliet, Elkhart, Lansing, and

Kramer (together, the rentals).

¶4 Weiman and Conquest eventually defaulted on the promissory

note. Wine sued, Weiman and Conquest countersued, and the

following events took place.

A. The Street Investments, LLC, Deeds of Trust

¶5 Conquest told his extramarital girlfriend that he needed money

for attorney fees and persuaded her to lend him $86,000. He

drafted two promissory notes in which his business entity,

Conglomeride, promised to repay the $86,000 to Street

Investments, LLC (SIL), an entity that did not exist at the time. To

2
secure the promissory notes, Weiman granted SIL deeds of trust

encumbering Joliet and Elkhart (the SIL DOTs). The two SIL DOTs

were signed by Weiman and executed on August 6 and

September 8, 2018. They did not contain legal descriptions of the

properties they purported to encumber and were not recorded.

B. The Settlement Agreement

¶6 On September 10, 2018, two days after the second SIL DOT

was executed, Weiman was deposed. During her deposition, she

said that the rentals were encumbered only by bank loans and the

Wine DOT. Despite being explicitly questioned about

“encumbrances that you’re aware of,” she did not mention the SIL

DOTs.

¶7 Nine days later, on September 19, 2018, the parties settled.

The settlement agreement provided:

• Wine would pay Weiman and Conquest a total of

$40,000.

• Wine would use his best efforts to take out new loans to

resolve the mortgages on the rentals.

• Wine would make the mortgage payments on the rentals

until replacement financing was secured.

3
• Weiman and Conquest would transfer title to the rentals

to Wine by quitclaim deed, effective October 1, 2018.

• Wine would release the Wine DOT encumbering Arapahoe

and the rentals and deem the $570,000 promissory note

paid in full.

• Weiman and Conquest would transfer the leases and

deposits on the rentals to Wine.

• Wine would be entitled to all rental income from the

rentals, effective October 1, 2018.

C. The Foreclosure

¶8 On September 24, 2018, Conquest’s girlfriend formed SIL as a

limited liability company with the Colorado Secretary of State. On

September 29, ten days after the settlement agreement was signed

and two days before the transfer of title to Wine became effective,

the SIL DOTs were recorded.

¶9 After Wine took title to the rentals, SIL, under Conquest’s

direction and at his expense, hired a lawyer to foreclose on the SIL

DOTs. Wine learned of the SIL DOTs in January 2019 when he

received a notice of sale on Elkhart.

4
¶ 10 Wine filed suit against Weiman and Conquest, asserting

claims including fraud, conspiracy, and breach of the settlement

agreement. Weiman and Conquest countersued, alleging that Wine

had breached the settlement agreement first.

D. The Home Invasion

¶ 11 In the early morning hours of December 11, 2019, Conquest

and his son entered Wine’s home armed with guns. Conquest woke

up Wine and his caretaker, threatened them with his firearm, and

struck Wine in the body and face. Conquest demanded another

$40,000 check, demanded that Wine sign a quitclaim deed

transferring title of the rentals to Conquest, and stole $3,000 in

cash, all while holding Wine at gunpoint. Conquest fired his

weapon, but no one was hit.

¶ 12 Conquest was later arrested at his girlfriend’s home. While

detained, he called Weiman and directed her to go to the girlfriend’s

house to recover his personal items and delete information from his

phone. Following Conquest’s instructions, Weiman went to the

girlfriend’s house in the middle of the night.

5
E. The District Court’s Rulings

¶ 13 In March 2020, the district court granted partial summary

judgment to Wine on his breach of contract claim, finding that

Weiman and Conquest had breached the settlement agreement

when they “collected rents for the [rentals] for October 2018 and did

not remit those rents to Wine.” The court dismissed Weiman and

Conquest’s breach of contract counterclaim with prejudice.

¶ 14 The remaining claims proceeded to a three-day bench trial in

November 2023. After trial, the court entered judgment in favor of

Wine and Wine Properties, LLC.1 As relevant here, the court found:

• The SIL DOTs were invalid, did not encumber Joliet or

Elkart, and could not be used to foreclose on those

properties.

• Conquest and Weiman fraudulently induced Wine to

enter into the settlement agreement.

• In addition to withholding the October 2018 rent

payments, Conquest and Weiman also breached the

settlement agreement by retaining the security deposits

1 Wine Properties, LLC, was joined as a plaintiff after the summary

judgment.

6
for the rentals and redirecting Wine’s mortgage payments

on the rentals to Arapahoe.

• Conquest, Weiman, Conglomeride, and SIL “were parties

to a conspiracy to fraudulently induce [Wine] into the

[s]ettlement [a]greement and thereafter unlawfully regain

from [him] much of the consideration given for the

[s]ettlement [a]greement.”

¶ 15 Weiman now appeals.2

II. Validity of the SIL DOTs

¶ 16 Weiman contends that the district court erred by finding that

the SIL DOTs are invalid because they were part of a fraudulent

scheme. We are not persuaded.

A. Governing Law and Standard of Review

¶ 17 “An agreement to perpetrate a fraud on a third person is illegal

and void.” Armstrong v. Gresham, 213 P. 114, 115-16 (Colo. 1923);

see HMLL LLC v. MJM Holdings Ltd., 2024 COA 85, ¶ 43

2 Initially, Conquest, SIL, and Weiman all filed separate appeals.

Conquest’s and SIL’s appeals have been dismissed. Weiman’s
appeal is the only one remaining.

7
(promissory note was “void as against public policy” because of “its

integral role in the perpetration of [an] illegal scheme”).

¶ 18 “We review a trial court’s judgment entered following a bench

trial as a mixed question of fact and law.” Fear v. GEICO Cas. Co.,

2023 COA 31, ¶ 15, aff’d on other grounds, 2024 CO 77. “We

review legal conclusions de novo and will disturb factual findings

only if they are clearly erroneous and not supported by the record.”

Id. (citations omitted).

B. Discussion

¶ 19 The district court found that the SIL DOTs were instruments

of fraud because they were intended to enable Conquest and

Weiman to “unlawfully regain from [Wine]” two of the four rentals

that constituted consideration for the settlement agreement. The

district court’s finding is supported by the following evidence in the

record:

• Weiman concealed the existence of the executed but

unrecorded SIL DOTs in her deposition prior to

settlement.

• The SIL DOTs were not recorded until ten days after the

settlement agreement was signed.

8
• The SIL DOTs were recorded without legal descriptions of

the properties they purported to encumber.

• Conquest orchestrated and paid for the foreclosure

proceedings against his own entity, the purported

borrower.

¶ 20 Because the district court’s finding that the SIL DOTs were

instruments of fraud is not clearly erroneous, we will not disturb it

on appeal.

III. Fraudulent Inducement

¶ 21 Weiman contends that the district court erred by finding that

she fraudulently induced Wine to enter into the settlement

agreement. We disagree.

A. Governing Law and Standard of Review

¶ 22 The elements of fraud are as follows:

(1) A false representation of a material existing
fact, or a representation as to a material
existing fact made with a reckless disregard of
its truth or falsity; or a concealment of a
material existing fact, that in equity and good
conscience should be disclosed. (2) Knowledge
on the part of the one making the
representation that it is false; or utter
indifference to its truth or falsity; or knowledge
that he is concealing a material fact that in
equity and good conscience he should disclose.

9
(3) Ignorance on the part of the one to whom
representations are made or from whom such
fact is concealed, [of] the falsity of the
representation or of the existence of the fact
concealed. (4) The representation or
concealment made or practiced with the
intention that it shall be acted upon.
(5) Action on the representation or
concealment resulting in damage.

Trimble v. City & Cnty. of Denver, 697 P.2d 716, 724 (Colo. 1985)

(quoting Bemel Assocs., Inc. v. Brown, 435 P.2d 407, 409 (Colo.

1967)), superseded by statute on other grounds, Ch. 166, sec. 4,

§ 24-10-105, 1986 Colo. Sess. Laws 876, as recognized by Colo.

Dep’t of Transp. v. Brown Grp. Retail, Inc., 182 P.3d 687, 688 (Colo.

2008).

¶ 23 Whether a person has a right to rely on a misrepresentation “is

a question of fact and is binding on appeal if supported by the

evidence.” Colo. Coffee Bean, LLC v. Peaberry Coffee Inc., 251 P.3d

9, 17 (Colo. App. 2010) (quoting M.D.C./Wood, Inc. v. Mortimer, 866

P.2d 1380, 1382 (Colo. 1994)). “However, ‘[t]he determination of the

sufficiency and validity of an exculpatory agreement is a question of

law for the court to determine.’” Id. (quoting Jones v. Dressel,

623 P.2d 370, 376 (Colo.1981)).

10
B. Discussion

¶ 24 Weiman does not challenge the district court’s finding that the

elements of fraud were satisfied. Nor could she successfully do so,

as the record demonstrates that (1) Weiman executed the SIL DOTs

but concealed their existence from Wine; (2) she knew she was

concealing the existence of the SIL DOTs; (3) Wine was ignorant of

the existence of the SIL DOTs; (4) Weiman intended that Wine enter

into the settlement agreement believing that, as she said in her

deposition, the only encumbrances on the rentals were bank loans

and the Wine DOT; and (5) Wine acted to his detriment on

Weiman’s misrepresentation.

¶ 25 Instead, Weiman argues that Wine’s fraudulent inducement

claim must fail because Wine (1) “had constructive notice of the

recorded SIL DOTs” and (2) “waived his rights to his fraudulent

inducement claim.” We are not persuaded.

¶ 26 First, the SIL DOTs were not recorded until after the

settlement agreement was signed. Indeed, the district court found

that Conquest and his girlfriend “purposefully failed to record” the

SIL DOTs until after Wine entered into the settlement agreement.

We thus cannot agree with Weiman that Wine had constructive

11
notice of the SIL DOTs and that “any undiscovered facts were of his

own making.”

¶ 27 Second, the provisions in the settlement agreement did not

constitute a waiver of Wine’s fraudulent inducement claim.

Weiman directs our attention to a provision titled “Unknown Facts”

that states,

This Agreement includes claims of every
nature and kind, known or unknown,
suspected or unsuspected, up to and including
the dates on which each Party executes this
Agreement. The Parties acknowledge they may
hereafter discover facts different from, or in
addition to, those which they now know to be
or believe to be true with respect to the
Agreement, and the Parties agree this
Agreement and the releases contained herein
shall be and remain effective in all respects,
notwithstanding such different or additional
facts or the discovery thereof.

Because Wine acknowledged that he might later discover “facts

different from” those he believed to be true when he entered into the

settlement agreement, Weiman argues, he cannot claim that he was

fraudulently induced to enter the contract.

¶ 28 But “[m]ost courts will not enforce exculpatory and limiting

provisions if they . . . purport to relieve parties from their own

willful, wanton, reckless, or intentional conduct.” Rhino Fund,

12
LLLP v. Hutchins, 215 P.3d 1186, 1191 (Colo. App. 2008); see also

Thomas H. Lee Equity Fund V, L.P. v. Mayer Brown, Rowe & Maw

LLP, 612 F. Supp. 2d 267, 288 (S.D.N.Y. 2009) (“An agreement

induced on knowingly false pretenses, ‘constitutes fraud and,

despite the so-called merger clause, [plaintiffs are] free to prove that

[they were] induced by false and fraudulent misrepresentations

to . . . execute the [agreement].’”) (citation omitted); Mankap Enters.,

Inc. v. Wells Fargo Alarm Servs., 427 So. 2d 332, 333-34 (Fla. Dist.

Ct. App. 1983) (“The law is settled that a party cannot contract

against liability for his own fraud in order to exempt him from

liability for an intentional tort, and any such exculpatory clauses

are void as against public policy.”); Slack v. James, 614 S.E.2d 636,

641 (S.C. 2005) (“A party should not be given the opportunity to free

himself from an allegation of fraud by incorporating a generalized

non-reliance clause into a contract.”).

¶ 29 Weiman does not dispute that she intentionally concealed the

existence of the SIL DOTs from Wine or that she intended for him to

sign the settlement agreement believing that the only

encumbrances on the rentals were bank loans and the Wine DOT.

Such intentional acts are not capable of protection through contract

13
language, and construing the provisions in the settlement

agreement as a waiver of Wine’s fraudulent inducement claim would

be contrary to public policy. See Core-Mark Midcontinent, Inc. v.

Sonitrol Corp., 2012 COA 120, ¶ 16 (“Because of the egregiously

wrongful nature of the conduct, enforcing a limitation of liability

provision to shield a party from the consequences of such conduct

is deemed to be contrary to public policy.”).

¶ 30 We thus conclude that the district court did not err by finding

that Weiman fraudulently induced Wine to enter into the settlement

agreement.

IV. Breach of Contract

¶ 31 Weiman contends that the district court erred by granting

partial summary judgment to Wine on his breach of contract claim.

We conclude that no reversible error occurred.

A. Governing Law and Standard of Review

¶ 32 “To prove a breach of contract claim, a plaintiff must prove:

(1) the existence of a contract; (2) performance by the plaintiff or

some justification for nonperformance; (3) failure to perform the

contract by the defendant; and (4) resulting damages to the

plaintiff.” Marquardt v. Perry, 200 P.3d 1126, 1129 (Colo. App.

14
2008). “Under contract law, a party to a contract cannot claim its

benefit where he is the first to violate its terms.” Coors v. Sec. Life

of Denver Ins. Co., 112 P.3d 59, 64 (Colo. 2005); see Sci. Packages,

Inc. v. Gwinn, 301 P.2d 719, 722 (Colo. 1956) (material breach

deprives party of right to demand performance by the other party).

¶ 33 “Summary judgment is appropriate only when no genuine

issue of material fact exists and the moving party is entitled to

judgment as a matter of law.” S. Cross Ranches, LLC v. JBC Agric.

Mgmt., LLC, 2019 COA 58, ¶ 12; see C.R.C.P. 56(c). “The opposing

party is entitled to the benefit of all favorable inferences that may

reasonably be drawn from the undisputed facts, and all doubts as

to the existence of a triable issue of fact must be resolved against

the moving party.” Id. We review summary judgment de novo,

applying the same standard as the district court. Id. at ¶ 11.

B. Additional Background

¶ 34 In his motion for summary judgment, Wine argued that

Weiman and Conquest breached the settlement agreement by

collecting October 2018 rent for the rentals, which Wine was

entitled to under the agreement. Specifically, in his statement of

undisputed material facts, Wine asserted that “[w]hen Wine went to

15
collect rent on October 1, 2018, he was advised by the tenants they

had already paid October rent to Conquest a few days prior.”

¶ 35 Weiman admitted in her response that this was true.

However, she argued that her breach was excused because Wine

had breached the settlement agreement first, in two ways: (1) he

“failed to make the first mortgage payments on October 1, 2018”;

and (2) while he recorded the quitclaim deeds to the rentals on

October 1, 2018, he did not release the Wine DOT until two and a

half months later, on December 17, 2018.

¶ 36 The district court granted summary judgment to Wine, finding

that Weiman and Conquest breached the settlement agreement

when they “collected rents for the [rentals] for October 2018 and did

not remit those rents to Wine.” In doing so, the court rejected

Weiman’s arguments that Wine had breached the settlement

agreement first. Regarding the October mortgage payments, the

court found that there was no evidence to rebut Wine’s affidavit

explaining that he made the mortgage payments on time but that

the bank initially failed to process them because Weiman had not

provided him with all of the necessary payment information. And

16
regarding the Wine DOT, the court found that Wine had no duty

under the settlement agreement to release it.

C. Discussion

¶ 37 Weiman argues, Wine appears to concede, and we agree that

the court erred by finding that Wine had no duty to release the

Wine DOT encumbering Arapahoe and the rentals. The settlement

agreement begins with references to “that certain Promissory Note

dated June 1, 2017 for $570,000” and “that certain Deed of Trust

dated June 1, 2017 . . . securing the Note.” The “Deed of Trust

dated June 1, 2017” is undisputedly the Wine DOT. The settlement

agreement then provides that, “[u]pon recording of the Quit Claim

Deeds, Wine shall release the [Wine] DOT and deem the Note paid

in full.” The district court was thus mistaken when it found that

“Wine had no . . . duty” under the settlement agreement “to release

a Deed of Trust on” Arapahoe.

¶ 38 We conclude, however, that the error was harmless. See

C.A.R. 35(c); C.R.C.P. 61 (“The court at every stage of the

proceeding must disregard any error or defect in the proceeding

which does not affect the substantial rights of the parties.”). The

settlement agreement does not specify exactly when Wine was

17
required to release the Wine DOT. But even assuming he was

required to do so on October 1, 2018, as Weiman argues, it is

undisputed that Conquest collected the October 2018 rents, in

violation of the settlement agreement, “a few days prior” to

October 1. Accordingly, Wine’s failure to release the Wine DOT on

October 1 cannot support Weiman’s argument that Wine breached

the settlement agreement first.

¶ 39 We thus discern no reversible error in the district court’s grant

of summary judgment to Wine on his breach of contract claim.

V. Evidentiary Ruling

¶ 40 Weiman contends that the district court erred by excluding

certain evidence. We disagree.

A. Governing Law and Standard of Review

¶ 41 Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without

the evidence.” CRE 401. Generally, all relevant evidence is

admissible, and evidence that is not relevant is not admissible.

CRE 402. But under CRE 403, relevant evidence may be excluded

if its probative value is substantially outweighed by the danger of

18
unfair prejudice, confusion of the issues, potential to mislead the

jury, undue delay, waste of time, or needless presentation of

cumulative evidence.

¶ 42 “A trial court has considerable discretion in ruling upon the

admissibility of evidence, and we will find an abuse of discretion

only if its ruling is manifestly arbitrary, unreasonable, or unfair.”

Wark v. McClellan, 68 P.3d 574, 578 (Colo. App. 2003).

B. Additional Background

¶ 43 Two and a half years after Weiman’s breach of contract

counterclaim was dismissed with prejudice, her counsel sought

“judicial leniency” from the court to “revive” it based on new

evidence. At a pretrial conference in September 2022, Weiman’s

counsel explained that Wieman and Conquest remained “adamant”

that Wine had breached the settlement agreement first by failing to

timely pay the October 2018 mortgages. Although Wine had

produced copies of the October 2018 mortgage payment checks

years earlier, Weiman’s counsel explained that Weiman and

Conquest had taken the checks to a bank “less than a week ago”

and had gotten an affidavit from a branch operations manager

stating that the checks were not actually “processed thru a bank”

19
until December 2018. Counsel explained that, based on this

affidavit, Wieman and Conquest were convinced that Wine had

committed fraud by backdating the checks.

¶ 44 The court declined to consider the bank manager’s affidavit,

noting that it would not allow Weiman and Conquest “to start

relitigating issues that were dismissed with prejudice.” A year later,

in October 2023, Weiman filed a pro se C.R.C.P. 60(b)(2) motion

asking the court to consider the affidavit and allow her to

“resurrect” her breach of contract counterclaim “based on newly

discovered evidence that uncontrovertibly shows [Wine] (and his

minions) committed frauds upon this court.” The court found that

the motion was “inappropriate” and denied it.

C. Discussion

¶ 45 Weiman argues that the bank manager’s affidavit was

“relevant and material” to her contention that Wine breached the

settlement agreement first by failing to make the October 2018

mortgage payments in a timely manner and that the court therefore

“should have allowed [her] to use” it to revive her breach of contract

counterclaim. We are not persuaded.

20
¶ 46 First, Wine had already explained at the summary judgment

stage that the bank had at first “failed to properly apply” his

October 2018 mortgage payments because Weiman had not

provided him with the proper payment information. The bank

manager’s affidavit stating that Wine’s checks were not processed

until December 2018 was thus consistent with Wine’s own account

and, contrary to Weiman’s argument, did not suggest that Wine had

fraudulently backdated the checks. (Indeed, Wine testified at trial

that his October 2018 mortgage payments were initially rejected by

the bank because they lacked “the right information, the account

number and the loan number and all the information we needed [to

make] the payment.”) Because the bank manager’s affidavit was

cumulative of Wine’s own affidavit and testimony, it provided no

grounds for reviving Weiman’s dismissed counterclaim.

¶ 47 Second, even assuming that the court erred by excluding the

bank manager’s affidavit, we conclude that any error was harmless.

Weiman’s breach of contact counterclaim was based on the

assertion that Wine breached the settlement agreement first — as

relevant here, because he “failed to make the first mortgage

payments on October 1, 2018.” But the court granted summary

21
judgment to Wine based on Weiman and Conquest’s admission that

Conquest collected the October 2018 rent payments, in violation of

the settlement agreement, “a few days prior” to October 1, 2018.

Accordingly, even if the bank manager’s affidavit had demonstrated

that Wine failed to make the mortgage payments by October 1,

2018, it would not have affected the court’s conclusion that Weiman

and Conquest breached the settlement agreement first.

¶ 48 For these reasons, we discern no reversible error in the court’s

exclusion of the bank manager’s affidavit.

VI. Conspiracy

¶ 49 Finally, Weiman contends that the district court erred by

finding that she participated in a civil conspiracy that caused Wine

to suffer damages. We disagree.

A. Governing Law and Standard of Review

¶ 50 “A claim for civil conspiracy has the following elements: (1) two

or more persons; (2) an object to be accomplished; (3) a meeting of

the minds on the object or course of action; (4) an unlawful overt

act; and (5) damages as the proximate result thereof.” Stauffer v.

Stegemann, 165 P.3d 713, 718 (Colo. App. 2006).

22
¶ 51 We review the district court’s findings of fact for clear error

and its legal conclusions de novo. Fear, ¶ 15.

B. Discussion

¶ 52 Weiman contests only two elements of the district court’s

conspiracy finding: an unlawful overt act and damages.

¶ 53 The district court found, with record support, that Weiman

participated in the following unlawful overt acts: She intentionally

withheld material information about the SIL DOTs encumbering

Elkhart and Joliet during her deposition; she failed to disclose those

encumbrances when she entered into the settlement agreement;

and she participated in the attempted cover up of Conquest’s

physical attack on Wine when she went to the girlfriend’s house

after Conquest asked her to destroy evidence there. Although

Weiman asserts, without elaboration, that she “engaged in no

unlawful overt acts,” she does not specifically dispute any of these

well-supported findings.

¶ 54 Next, Weiman argues that, even if she undertook an unlawful

overt act, “[a]ny damages Wine incurred were of his own doing”

when he agreed to the “Unknown Facts” provision in the settlement

agreement “and did not review title” to the rentals. But as

23
previously discussed, Weiman’s deliberate fraud is not capable of

protection through contract language, and a title search would not

have revealed the SIL DOTs because, as the district court found,

they were “purposefully” not recorded until after the settlement

agreement was signed. We therefore cannot agree that Wine’s

damages were “of his own doing.”

¶ 55 We thus conclude that the district court did not err by finding

that Weiman participated in a civil conspiracy.

VII. Attorney Fees

¶ 56 Wine requests an award of his appellate attorney fees as a

sanction under section 13-17-102(2), C.R.S. 2024, on the ground

that Weiman’s appeal is frivolous, groundless, and vexatious. We

deny this request. Although Weiman did not prevail, we do not

agree that her appeal was frivolous or lacking in substantial

justification. See In re Marriage of Boettcher, 2018 COA 34, ¶ 38

(“Fees should be awarded only in clear and unequivocal cases when

the appellant presents no rational argument, or the appeal is

prosecuted for the purpose of harassment or delay.”), aff’d, 2019

CO 81.

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VIII. Disposition

¶ 57 The judgment is affirmed.

CHIEF JUDGE ROMÁN and JUDGE BERGER concur.

25