Estate of Romero

24CA1606 & 25CA0693 Estate of Romero 08-21-2025

COLORADO COURT OF APPEALS

Court of Appeals Nos. 24CA1606 & 25CA0693
Adams County District Court No. 21PR4
Honorable Sara S. Price, Magistrate

In re the Estate of Mary A Romero, a/k/a Mary Angie Romeo, a/k/a Mary
Angelina Romero, a/k/a Marie Angelina Romero, a/k/a Angie Romero,
deceased.

Sandra A. Romero,

Appellant,

v.

Matthew Romero, Personal Representative of the Estate of Phillip G. Romero,

Appellee.

ORDERS AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE J. JONES
Moultrie and Graham*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 21, 2025

Joshua Moses, Morrison, Colorado, for Appellant

Solem, Woodward and McKinley, P.C., Zachary F. Woodward, Stephanie T.
Schrab, Englewood, Colorado, for Appellee

*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 In this probate case, Sandra A. Romero appeals the district

court magistrate’s order removing her as personal representative of

Mary A. Romero’s estate and ordering her to pay compensatory

damages to Mary Romero’s and Phillip G. Romero’s estates.1 She

also appeals the magistrate’s order awarding attorney fees to

Phillip’s estate. We affirm both orders.

I. Background

¶2 The decedent was survived by her four children: Phillip,

Sandra, Steve, and Kenny. She had nominated Sandra as the

executor of her estate in her last will and testament. The district

court appointed Sandra as the estate’s personal representative.

¶3 About a month after the decedent died, the district court

granted Sandra’s petitions to become Phillip’s emergency guardian

and special conservator because he had been in a coma for about

two months. After Phillip recovered several months later, Sandra

voluntarily terminated the guardianship and conservatorship.

1 For clarity’s sake, we will refer to Mary Romero as the decedent,

Mary, or mother, and refer to the other Romeros by their first
names. We don’t intend any disrespect by doing so.

1
¶4 But Phillip became suspicious of Sandra’s actions as his

guardian and conservator. For instance, Sandra had transferred

the title of a pickup truck, titled in his name, to herself for no

consideration. Sandra later explained during the hearing on the

motion to remove her as personal representative that her mother

had thought Phillip was going to die and therefore gave the truck to

her. Though Sandra testified that her mother and Phillip jointly

owned the truck, it was titled in Phillip’s name. And although

Sandra transferred the truck’s title back to Phillip after he

recovered, he remained concerned that she had done similar things

with other property of his while he was in a coma.

¶5 About two years after his coma, Phillip died. The district court

appointed Matthew, Phillip’s only son, as the personal

representative of Phillip’s estate. Sandra prevented Matthew from

accessing vehicles belonging to Phillip’s estate, and she threatened

to sell them unless Matthew paid her “storage fees” for holding the

vehicles. Matthew also found out that Sandra was trying to sell the

decedent’s house, in which Phillip had owned a three-quarters

interest (after paying Steve and Kenny for their quarter interests).

2
¶6 After reviewing Phillip’s estate and learning of Sandra’s actions

as the decedent’s personal representative, Matthew, on behalf of

Phillip’s estate, petitioned the court for the immediate suspension of

her role as personal representative of the decedent’s estate and for

an order directing Sandra to deposit money belonging to the

decedent’s estate into the court registry, permanently removing

Sandra as personal representative for breach of fiduciary duty, and

surcharging and assessing sanctions against Sandra for her

breaches of her fiduciary duty. Much of the petition focused on

Sandra’s alleged taking of all the decedent’s estate’s assets,

notwithstanding that Mary’s will didn’t say how those assets should

be distributed, and, therefore, the assets were to be distributed

equally among the four siblings. As well, the petition claimed that

Sandra had paid herself from the estate for unnecessary or

nonexistent services. The district court immediately suspended

Sandra as personal representative and ordered a hearing to be set

on the remainder of Matthew’s petition.

¶7 At the hearing, the magistrate assigned to the case heard

testimony from Sandra (appearing pro se), Matthew, and other

witnesses. After both Sandra (still appearing pro se) and Matthew

3
(through counsel) submitted written closing arguments, the

magistrate entered a written order permanently removing Sandra as

the decedent’s personal representative, surcharging and

sanctioning her for breaching her fiduciary duty, and awarding

Phillip’s estate attorney fees. The magistrate later determined the

reasonable amount of attorney fees awarded.

II. Appeal of the Removal Order

¶8 Sandra contends that the magistrate (1) misinterpreted the

decedent’s will; (2) improperly excluded evidence based on a

misinterpretation of the “Dead Man’s Statute”; and (3) exhibited

actual bias against her. We consider and reject these contentions

in turn.

A. Construction of Decedent’s Will

¶9 Sandra contends that the magistrate erroneously construed

the decedent’s will as ambiguous with respect to distribution of the

estate’s assets when, she says, it unambiguously devised to her the

decedent’s entire estate, including full ownership of the decedent’s

house and the truck. We conclude that Sandra not only failed to

preserve this contention, she also waived it.

4
¶ 10 Matthew argues that Sandra failed to preserve this issue for

appeal because she never raised it with the magistrate. In

response, Sandra seemingly concedes that she didn’t preserve the

issue but asks us to review her unpreserved contention because

addressing it is “necessary to prevent manifest injustice.” See In re

Estate of Ramstetter, 2016 COA 81, ¶ 73.

¶ 11 We generally don’t address issues raised for the first time on

appeal. Gestner v. Gestner, 2024 COA 55, ¶ 18. But we may, in

our discretion — “‘very rarely’ and only ‘where necessary to prevent

manifest injustice’” — review unpreserved claims of error.

Ramstetter, ¶ 73 (quoting JW Constr. Co. v. Elliott, 253 P.3d 1265,

1271 (Colo. App. 2011)); see Robinson v. Colo. State Lottery Div.,

179 P.3d 998, 1008-09 (Colo. 2008) (“[A]ppellate courts also have

the discretion to notice any error appearing of record, whether or

not a party preserved its right to raise or discuss the error on

appeal.” (citing C.A.R. 1(d))).

¶ 12 We aren’t persuaded that reviewing Sandra’s unpreserved

contention on the merits is necessary to prevent manifest injustice.

Nothing in the record shows the sort of extraordinary

circumstances that would justify overlooking Sandra’s failure to

5
preserve the issue. To the contrary, addressing the merits of the

issue would subvert justice because she explicitly waived it.

¶ 13 “Waiver is the intentional relinquishment of a known right or

privilege.” Dep’t of Health v. Donahue, 690 P.2d 243, 247 (Colo.

1984). Waiver extinguishes error and precludes appellate review,

even for plain error. People v. Rediger, 2018 CO 32, ¶ 40.

¶ 14 Before the hearing, Sandra and Matthew filed a joint

stipulation indicating the parties’ stipulated points of agreement.2

Therein, Sandra stipulated that “[the] [d]ecedent’s will does not

describe the distributions of the assets in her estate. When a will

fails to dispose of assets, the intestate statutes control.” She also

stipulated that “[the decedent’s] assets would be distributed into

four shares, one for each child.” In doing so, she made an

unequivocal judicial admission that the will didn’t devise all the

decedent’s assets to her. Calvert v. Mayberry, 2019 CO 23, ¶ 18 (“A

judicial admission is a formal, deliberate declaration which a party

or his attorney makes in a judicial proceeding for the purpose of

dispensing with proof of formal matters or of facts about which

2 At the parties’ request, the magistrate made the joint stipulation

an order of the court.

6
there is no real dispute.” (quoting Kempter v. Hurd, 713 P.2d 1274,

1279 (Colo. 1986))); accord D.R. Horton, Inc.-Denver v. Bischof &

Coffman Constr., LLC, 217 P.3d 1262, 1276 (Colo. App. 2009).

“Judicial admissions are binding on the party who makes

them . . . .” Salazar v. Am. Sterilizer Co., 5 P.3d 357, 365 (Colo.

App. 2000); accord People ex rel. State Eng’r v. Sease, 2018 CO 91,

¶ 28. And they “continue to have effect for a subsequent part of the

same proceedings.” Kempter, 713 P.2d at 1279; see also In re

Marriage of Blaine, 2019 COA 164, ¶¶ 24-25 (because party did not

ask the district court to relieve him from a stipulation, the appellate

court would not address an issue subject to that stipulation), rev’d

on other grounds, 2021 CO 13.

¶ 15 In asking us to disregard this judicial admission, Sandra

points only to the fact that she represented herself at the hearing.3

But a self-represented party is subject to “the same rules,

procedures, and substantive law applicable to a licensed attorney.”

People v. Romero, 694 P.2d 1256, 1266 (Colo. 1985); see also Manka

v. Martin, 614 P.2d 875, 880 (Colo. 1980).

3 Sandra was represented by several lawyers at various points in

the proceedings below.

7
¶ 16 We therefore decline to address the merits of Sandra’s

contention challenging the magistrate’s construction of the

decedent’s will.

B. Dead Man’s Statute

¶ 17 Next, Sandra contends that the magistrate erred by excluding

“crucial” testimony of the decedent’s last wishes under the “Dead

Man’s Statute.” Specifically, the magistrate excluded Sandra’s

testimony that Mary told her on the way to the hospital that if she

(Mary) died, her money should be used to pay bills and funeral

expenses; whatever assets were left, including the truck, belonged

to Sandra.

¶ 18 The statute, as codified in section 13-90-102, C.R.S. 2024,

bars evidence of oral statements made by a decedent unless one of

four exceptions applies. Only one of those exceptions is relevant to

this case: a court may admit testimony of the decedent’s statement

if the evidence is “corroborated by material evidence of a

trustworthy nature.” § 13-90-102(1)(b).

¶ 19 Sandra argues that (1) the magistrate misinterpreted

section 13-90-102; (2) her testimony was otherwise admissible

under CRE 803(2), 803(3), and 807; (3) Matthew’s counsel elicited

8
hearsay testimony from witnesses, and therefore Sandra should

have been allowed introduce her hearsay testimony too; and (4) her

testimony was admissible under section 13-90-102(1)(b) because it

was corroborated by material evidence of a trustworthy nature.4 We

conclude that Sandra failed to preserve any of these arguments.

1. Additional Facts

¶ 20 On the night before her death, the decedent suffered from pain

at her house and called Sandra for help. Sandra arrived, called for

an ambulance, and rode with the decedent to the hospital. On that

drive, Sandra says the decedent told her that if she died, Sandra

should pay the decedent’s bills and funeral expenses; the rest of her

assets would belong to Sandra.

4 Sandra also asserts that the magistrate ignored her attorney-client

privilege objection to Arlene Barringer’s testimony. Barringer was
the court-appointed attorney who represented Phillip during and
after his coma. But Sandra doesn’t say what that has to do with
the magistrate’s ruling on the Dead Man’s Statute; she merely
complains that the magistrate enforced the statute while not
enforcing attorney-client privilege. We don’t consider such
undeveloped and unsupported arguments. Woodbridge Condo.
Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34, ¶ 41 n.12, aff’d, 2021
CO 56.

9
¶ 21 At the hearing, Matthew’s counsel asked the magistrate to

exclude any testimony that would violate section 13-90-102. The

magistrate agreed to exclude any such testimony.

¶ 22 In response, Sandra said, “The dead man thing, that is really

vital to my case.” The magistrate replied,

Well, it’s the law, and it’s my job to uphold the
law. So I’m going to have to enforce that rule.
If anybody has interest in [the decedent’s]
estate or Phillip’s estate, they can’t testify as to
what Phillip or [the decedent] said. Under the
probate code, the way people make their last
wishes known is by executing a last will and
testament. If they haven’t executed a last will
and --

¶ 23 Sandra interjected, “She was in the ambulance, how could she

make a last will? She was in the ambulance at the time when she

told me.” The magistrate explained, “In the State of Colorado, the

way people let their last wishes known is in writing in a

document. . . . Oral statements of what somebody wants for their

last wishes doesn’t make it legal, essentially.”

¶ 24 Sandra asked, “Doesn’t matter then what somebody tells you?

Your mother?” The magistrate replied, “If your mother told you

what she wanted in an ambulance and then passed away, then, no,

10
it doesn’t. . . . Listen folks, I know you may not like the law, but I

didn’t write it, okay? I just have to uphold it.”

2. Analysis

¶ 25 On appeal, Sandra contends that she preserved each of her

arguments based on her colloquy with the magistrate, two exhibits

admitted at the hearing, and her written closing argument. We

disagree.

¶ 26 While we don’t require “talismanic language” to preserve an

issue for appeal, the district court must have had “an adequate

opportunity to make findings of fact and conclusions of law” on the

issue. Martinez v. People, 2015 CO 16, ¶ 14 (quoting People v.

Melendez, 102 P.3d 315, 322 (Colo. 2004)).

¶ 27 The magistrate in this case had no such opportunity. None of

Sandra’s contentions on appeal appear in the record. She didn’t

object to the magistrate’s interpretation of the statute after the

magistrate explained her reasoning in detail and never objected on

the basis she raises on appeal. Sandra never argued that other

rules of evidence made the evidence admissible. She never objected

to the supposed hearsay testimony she claims Matthew’s attorney

elicited, much less argued that this gave her license to admit her

11
own hearsay. And she never argued that the exception under

section 13-90-102(1)(b) applied.5

¶ 28 We also observe that, given Sandra’s stipulation, discussed

above, none of her arguments on appeal concerning the Dead Man’s

Statute are viable. This is so because she claims the evidence of

what the decedent told her was relevant to show that she was

entitled to all the decedent’s estate under the will. As discussed,

she stipulated to the contrary.

C. Judicial Bias

¶ 29 Next, Sandra contends that we should reverse the order

because the magistrate showed actual bias against her throughout

the hearing. We disagree.

5 As to this last issue, Sandra asserts that the corroborating

evidence includes the decedent’s will, Kenny’s “testimony,” and
other documents. But Sandra never asked the magistrate to
consider this supposed evidence in connection with the Dead Man’s
Statute. We also observe that one of the supposed corroborating
pieces of evidence — a letter from Kenny prepared on January 19,
2025, more than four months after Sandra appealed the judgment
— wasn’t presented to the court. She attaches that letter to her
opening brief as Exhibit A. Sandra’s counsel’s representation in the
reply brief that “Exhibit A was presented to the trial court” is false.
See Colo. RPC 3.3(a), (c) (a lawyer shall not knowingly make a false
statement of fact to the tribunal). Because Exhibit A doesn’t appear
in the record, we strike it from her brief and don’t consider it.
C.A.R. 10, 28.

12
1. Applicable Law and Standard of Review

¶ 30 The Code of Judicial Conduct requires disqualification of a

judge when (1) the judge’s involvement with a case creates the

appearance of impropriety or (2) the judge has a personal bias for or

against a party. People in Interest of A.G., 262 P.3d 646, 650-51

(Colo. 2011); see C.J.C. 2.11(A).

¶ 31 “[T]here is a difference between a judge who has the

appearance of impropriety and a judge who has actual bias.”

People v. Jennings, 2021 COA 112, ¶ 18. “A judge who is

disqualified based on an appearance of impropriety may be able to

act impartially, but the judge is disqualified nonetheless because a

reasonable observer might have doubts about the judge’s

impartiality.” A.G., 262 P.3d at 650. Actual bias exists when, in all

probability, a judge will be unable to deal fairly with a party. People

in Interest of A.P., 2022 CO 24, ¶ 28. While both an appearance of

impropriety and actual bias are grounds for recusal, only actual

bias allows us to question the result of the proceedings. Id.6

6 Sandra doesn’t contend that there was an appearance of

impropriety warranting reversal.

13
¶ 32 To disqualify a judge for actual bias, a party must show that

the judge had a “substantial bent of mind” against her. Jennings,

¶¶ 19-20, 28 (quoting People v. Drake, 748 P.2d 1237, 1249 (Colo.

1988)). Mere speculative statements and conclusions aren’t

sufficient; the record must clearly show the judge’s alleged bias. Id.

¶ 33 “[A] claim of actual bias may be reviewed on appeal even where

the parties did not properly raise the issue in the trial court.” Id. at

¶ 21. We review a claim of actual bias de novo. Id. at ¶ 27.

2. Analysis

¶ 34 Sandra’s argument on this issue consists mainly of hyperbolic,

conclusory assertions, many of which are based on

mischaracterizations of the record. With one exception, we

conclude that they are completely without merit.7

7 In connection with her claim of actual bias, Sandra’s opening brief

cites an unpublished decision of this court, which violates our
formal policy prohibiting parties from citing such cases (with
exceptions that don’t apply in this case). See Colo. Jud. Branch,
Court of Appeals Policies, Policy Concerning Citation of Opinions Not
Selected for Official Publication (2025), https://perma.cc/Z88K-
5U7F. We trust that this violation of our policy won’t be repeated.

14
a. Refusal to Postpone the Hearing

¶ 35 Sandra argues that the magistrate unfairly forced her to

proceed without an attorney when the magistrate refused her mid-

hearing request to postpone the hearing. We disagree.

¶ 36 Sandra didn’t move for a continuance before the hearing. But

during the hearing, she asked the magistrate to postpone the

hearing so that she could retain counsel. The magistrate refused

because Sandra had three months to retain new counsel after her

last attorney had withdrawn and the hearing had been set for

several months. Matthew’s counsel also noted that Sandra’s last

attorney was the fourth attorney to represent her in the case and

represented that Matthew’s witnesses were present and prepared to

testify.

¶ 37 Nothing about the magistrate’s ruling shows any actual bias.

Rather, the magistrate’s ruling is supported by the record and was

well within her discretion to manage the case. See People v. Travis,

2019 CO 15, ¶ 16; Todd v. Bear Valley Vill. Apartments, 980 P.2d

973, 976 (Colo. 1999) (whether to grant a request for a continuance

is left to the court’s discretion; the movant must show “good cause”

(quoting C.R.C.P. 121, § 1-11)).

15
b. Exclusion of Decedent’s Statement

¶ 38 Sandra argues that the magistrate improperly excluded her

testimony of what the decedent allegedly told her on their way to

the hospital. But, as discussed above, the magistrate did so based

on Matthew’s counsel’s objection under the Dead Man’s Statute and

Sandra failed to alert the court to any possible exception to the

statute’s general rule. And any such testimony would have been

intended to contradict Sandra’s pre-hearing stipulations. See A.P.,

¶ 32 (“[A]dverse legal rulings by a judge are unlikely to provide

grounds for a bias claim, as they are proper grounds for appeal, not

for recusal.” (citing Liteky v. United States, 510 U.S. 540, 555

(1994))).

¶ 39 Relatedly, Sandra asserts that the magistrate exhibited bias by

disallowing her hearsay testimony while allowing hearsay testimony

in response to questions by Matthew’s counsel. But the record

shows that the court sustained her only hearsay objection. The

magistrate didn’t exhibit bias by failing to step in when Sandra

didn’t object to questions by Matthew’s counsel; indeed, had the

magistrate done so, the magistrate arguably would have taken on

the role of advocate, departing from her role as an impartial arbiter.

16
See Romero, 694 P.2d at 1266; Loomis v. Seely, 677 P.2d 400, 402

(Colo. App. 1983) (“A judge may not become a surrogate attorney for

a pro se litigant.”).

c. Limitation on Cross-Examination

¶ 40 Sandra also argues that the magistrate improperly limited her

cross-examination of a witness. Again, this argument is meritless.

¶ 41 Sandra asked Matthew about whether she may have paid

Phillip in cash, insinuating that Phillip had lost that money

gambling. Matthew responded by accusing Sandra of writing illicit

checks to her husband and son. The magistrate stopped their

argument because the dispute wasn’t relevant to the issues to be

decided at the hearing.

¶ 42 A court has “substantial discretion to limit cross-examination

if the questioning is irrelevant.” People in Interest of E.G., 2015 COA

18, ¶ 28; aff’d, 2016 CO 19. Sandra doesn’t explain how the

magistrate abused her discretion by terminating this exchange,

much less show that the magistrate’s ruling demonstrates any bias

against her.

17
d. Magistrate’s Use of the Word “We”

¶ 43 After sustaining Sandra’s hearsay objection to a question that

Matthew’s counsel posed to a witness, the magistrate said, “We got

to rephrase the question.” Sandra asserts that the magistrate’s use

of the word “we” somehow shows that the magistrate viewed herself

as “part of [Matthew’s] team.” The context, however, doesn’t

reasonably permit of such an inference. See United States v.

Wilson, No. 21-1099, 2022 WL 1184043, at *11 (10th Cir. Apr. 21,

2022) (unpublished opinion) (a defendant’s speculation that a judge

“was acting as a co-prosecutor” because the judge used the

pronouns “we” and “us” didn’t establish actual bias).

e. Limitation of Recess

¶ 44 About halfway through the hearing, the magistrate asked the

parties, “Do we want to take a few minutes for a break?” Sandra

replied, “Can I request a fifteen minute [break]? I’m over my head.”

Matthew’s counsel said he didn’t need a break. The magistrate

granted Sandra a ten-minute recess.

¶ 45 Sandra contends that the magistrate was biased against her

because she gave her five minutes less than what she asked for.

We disagree. The magistrate simply wanted to keep the proceedings

18
moving. And, contrary to Sandra’s characterization of the

magistrate’s statements, the record doesn’t show that in making

this ruling the magistrate gave her a “lecture.” The magistrate only

expressed a desire to “keep going and . . . get through this as fast as

we can.”

f. Admitting Exhibit M

¶ 46 Gary Schwartz, Matthew’s forensic accounting expert witness,

testified at the hearing. During his testimony, Matthew’s counsel

introduced into evidence several bank statements and other

business records. On counsel’s motion, the magistrate admitted

Exhibits L, M, N, and O into evidence. Sandra didn’t object.

Immediately thereafter, Matthew’s counsel moved to admit Exhibit

P. The magistrate did so but then said (incorrectly) that Exhibit M

hadn’t been admitted. Matthew’s counsel reminded the court that

Exhibit M was one of the bank statements (that had already been

admitted). The court said, “We can admit Exhibit M.”

¶ 47 Sandra characterizes this exchange as showing that the

magistrate entered Exhibit M without prompting, to Matthew’s

benefit. This is a mischaracterization of the record.

19
g. Exclusion of Kenny’s Testimony

¶ 48 At the beginning of the hearing, Matthew’s counsel requested a

sequestration order for anyone whom the parties intended to call as

witnesses. The magistrate asked both Matthew’s counsel and

Sandra whether they planned to call Kenny as a witness. Both said

they didn’t plan to call him. So the court allowed Kenny to remain

in the courtroom during the hearing.

¶ 49 Then, at the end of the hearing, Sandra attempted to call

Kenny as a witness. Matthew’s counsel objected on the bases that

Kenny had seen and heard the entire day of testimony and that

allowing him to testify would violate the magistrate’s sequestration

order. The magistrate agreed, and Sandra said, “I forgot. . . . Okay.

No witnesses then.”

¶ 50 The magistrate acted well within her discretion by excluding

Kenny’s testimony based on her previous sequestration order, to

which Sandra had agreed. Indeed, Sandra conceded that Kenny

was subject to that order. Again, this ruling shows no bias on the

magistrate’s part. See A.P., ¶ 32.

20
h. Time for Drafting a Written Closing Statement

¶ 51 At the close of the testimony and presentation of evidence,

Matthew’s counsel offered to submit a written closing statement.

The magistrate agreed and asked how long counsel needed to

submit one. After looking at his calendar, Matthew’s attorney said

he needed two weeks. The magistrate asked Sandra how much

time she wanted to respond to Matthew’s closing statement.

Sandra asked for four weeks. The magistrate asked Sandra if she

had vacation planned or another reason for needing four weeks.

Sandra said she wanted to get an attorney to help her with her

closing statement. The magistrate ruled that the parties would

have equal time — two weeks. Sandra said, “Okay. That will work.”

¶ 52 We don’t perceive any actual bias on the magistrate’s part by

her giving the parties equal time to draft a written closing

statement. (Actually, Sandra got a total of four weeks to draft her

statement, including the two weeks Matthew’s counsel was drafting

his.)

21
i. Hostility

¶ 53 Sandra asserts that the record of the hearing shows that the

magistrate was unfriendly, annoyed, and hostile when interacting

with her. The record shows nothing of the sort.

j. Suggestion to Plead a Civil Theft Claim

¶ 54 As noted, the magistrate asked for written closing statements.

She then said, “I’m going to issue a written order. And [Matthew’s

counsel], you don’t have a claim for civil theft. I’m going to give you

leave to amend your petition to add a claim for civil theft. . . . And

you can include those arguments in your written closing.” Sandra

contends that, by so suggesting, the magistrate unfairly assisted

Matthew.8

¶ 55 We don’t see any mention of civil theft in the record before the

magistrate’s comment. All we can glean from the record is that the

magistrate apparently believed that the facts of the case lent

themselves to a civil theft claim. The magistrate went too far. But,

having considered the entire record, we conclude that this single

remark, made at the conclusion of evidence, doesn’t rise to the level

8 Matthew didn’t add such a claim.

22
of actual bias because, on the whole, the magistrate didn’t exhibit a

“substantial bent of mind” against Sandra. Jennings, ¶¶ 19-20, 28

(quoting Drake, 748 P.2d at 1249); People v. Gibson, 203 P.3d 571,

579 (Colo. App. 2008) (we review the district court’s comments

individually and collectively and determine whether the court

displayed a negative bent of mind against a party).

III. Lower Court Attorney Fees

¶ 56 Sandra also appeals the magistrate’s order awarding attorney

fees. Her sole contention is that, if we reverse the removal order, we

must reverse the award of fees. Because we affirm the magistrate’s

removal order, we affirm the attorney fees award as well. See § 15-

10-504(2)(a), C.R.S. 2024 (surcharge damages for a breach of

fiduciary duty may include attorney fees and costs).

IV. Appellate Attorney Fees

¶ 57 Matthew requests an award of his appellate attorney fees

under both C.A.R. 38 and section 15-10-504(2)(a). He is entitled to

fees under section 15-10-504(2)(a). See In re Marriage of Pawelec,

2024 COA 107, ¶ 88; Melssen v. Auto-Owners Ins. Co., 2012 COA

102, ¶ 75 (“When a party is awarded attorney fees for a prior stage

of the proceedings, it may recover reasonable attorney fees and

23
costs for successfully defending the appeal.” (quoting Kennedy v.

King Soopers Inc., 148 P.3d 385, 390 (Colo. App. 2006))); People ex

rel. Rein v. Meagher, 2020 CO 56, ¶¶ 50-51. We therefore don’t

address his Rule 38-based request.

¶ 58 We remand this case to the district court to determine the

reasonable amount of Matthew’s attorney fees incurred on appeal.

See C.A.R. 39.1.

V. Disposition

¶ 59 The magistrate’s orders are affirmed. We remand the case to

the district court to determine the reasonable amount of attorney

fees incurred by Phillip’s estate on appeal.

JUDGE MOULTRIE and JUDGE GRAHAM concur.

24