Estate of Marie M. Chavez

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
August 4, 2022

2022COA89

No. 20CA1125, In re Estate of Chavez — Crimes — Civil Theft
— Rights in Stolen Property — Treble Damages

As a matter of first impression, a division of the court of

appeals concludes that in awarding treble damages under section

18-4-405, C.R.S. 2021, a trial court must treble the actual damages

awarded by the jury before offsetting any amounts already repaid.

The civil theft judgment is reversed and remanded for the trial court

to recalculate treble damages. The judgment is affirmed in all other

respects.
COLORADO COURT OF APPEALS 2022COA89

Court of Appeals No. 20CA1125
Douglas County District Court No. 18PR30128
Honorable Michael J. Spear, Judge

In re the Estate of Marie M. Chavez, deceased.

Gilbert M. Chavez,

Appellant and Cross-Appellee,

v.

Teresa Chavez-Krumland, as Personal Representative of the Estate of Marie M.
Chavez,

Appellee and Cross-Appellant.

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

Division V
Opinion by JUDGE FREYRE
Fox and Gomez, JJ., concur

Announced August 4, 2022

Anne Whalen Gill, L.L.C., Anne Whalen Gill, Castle Rock, Colorado; Gill &
Ledbetter, LLP, H.J. “Jay” Ledbetter, Castle Rock, Colorado, for Appellant and
Cross-Appellee

Wade Ash Woods Hill & Farley, P.C., Jody J. Pilmer, Zachary D. Schlichting,
Denver, Colorado, for Appellee and Cross-Appellant
¶1 In this probate matter, Gilbert M. Chavez appeals the breach

of fiduciary duty, unjust enrichment, and civil theft orders entered

in favor of Teresa Chavez-Krumland, conservator to Marie M.

Chavez and personal representative to Marie’s1 estate (collectively,

the Estate), after a jury trial.2 The Estate cross-appeals the court’s

ruling denying treble damages on the civil theft claim. This claim

presents an issue of first impression — whether a trial court may

offset a defendant’s repayment against a jury’s damages award

before determining treble damages. We conclude that it may not

and that a court must first treble the jury’s damages awarded for

civil theft and then deduct any amounts already repaid.

Accordingly, we affirm in part, reverse in part, and remand for

further proceedings.

I. Background

¶2 After her husband died, Marie lived by herself on their ten-

acre ranch (the Ranch). At various times over the years, her

1 Because multiple parties share the same last name, we use first
names to distinguish them and mean no disrespect to the parties.
2 During the course of this appeal, Marie died and Teresa was

appointed personal representative of Marie’s estate. Teresa was
then substituted for Marie for purposes of this appeal.

1
children, including her son Gilbert, and grandchildren temporarily

lived on the Ranch with her. As part of the distribution of her

husband’s estate, Marie received monthly pension payments from

her husband’s family-run auto body shop. Marie used this money

to support herself and also to help her children.

¶3 Beginning in March 2005, Marie executed the following powers

of attorney designating Gilbert as her agent:

 a March 2005 general power of attorney;

 an April 2007 special power of attorney designating

Gilbert as her agent in fact for her bank account;

 a July 2008 general durable power of attorney and

medical durable power of attorney; and

 a February 2014 power of attorney for her bank account.

¶4 In September 2014, Marie, with Gilbert’s help, hired an

attorney to complete her estate planning. Marie executed a will

that, as relevant here, devised the Ranch to Gilbert and his wife.

Marie also executed a general durable power of attorney and a

medical durable power of attorney designating Gilbert as her agent.

¶5 In late 2015, Marie’s physician told the family that she needed

twenty-four-hour care due to her declining health following a series

2
of falls. Based on this recommendation, the family agreed to place

Marie in a rehabilitation and retirement facility that offered the

recommended care.

¶6 As the person acting with power of attorney, Gilbert managed

Marie’s finances and maintained the Ranch. Over time, Gilbert

became increasingly concerned about Marie’s financial stability and

his sisters’ taking advantage of Marie’s generosity. He expressed

these concerns to his sister Teresa and to Marie’s estate attorney.

¶7 On July 29, 2016, Gilbert drove Marie to her bank, where she

executed a quitclaim deed transferring the Ranch to Gilbert and his

wife without consideration. At Marie’s request, Gilbert drafted and

recorded the deed, and he kept the transfer a secret from the rest of

the family. Gilbert then changed all the locks at the Ranch and

donated most of Marie’s personal property inside the house. But he

continued to use Marie’s money to maintain the Ranch.

¶8 Gilbert ultimately told Marie’s estate attorney about the

quitclaim deed in May 2017. In July 2017, he changed his status

on Marie’s bank account from agent to joint owner. All of Marie’s

bank statements were mailed to the Ranch, where Gilbert and his

wife were then living.

3
¶9 In November 2017, Teresa learned about the deed transferring

the Ranch to Gilbert. She confronted him, and he assured her that

he was following Marie’s wishes. Gilbert then reached out to

Marie’s estate attorney in December 2017 with concerns about

Marie’s mental capacity and memory and family members

pressuring her.

¶ 10 Around the same time, Teresa noticed that Marie was

depressed and uncomfortable. When she asked what was

happening, Marie said that Gilbert was not listening to her. Marie

had asked to return home to the Ranch, but Gilbert had refused. In

January 2018, Marie met with the estate attorney to discuss her

request to return to the Ranch. Marie told her attorney that she

wanted the Ranch back. She said she had not expected the

transfer to be permanent and she had believed that if she asked

Gilbert to return the Ranch, he would do so. Marie’s attorney asked

Gilbert to allow Marie to return to the Ranch, and Gilbert again

refused. Marie then executed a general durable power of attorney

and a medical durable power of attorney designating both Teresa

and Gilbert as co-agents. These powers of attorney were later

revoked in March 2018, and Teresa was designated the sole person

4
with general durable power of attorney and medical durable power

of attorney.

¶ 11 Because Gilbert refused to provide Teresa with Marie’s bank

records, Teresa requested the bank records from the bank after she

became Marie’s sole agent. Teresa discovered that, from December

2016 through March 20, 2018, Gilbert had transferred in excess of

$59,000 from Marie’s account into his commercial bank account.

He said that the transfers were to prevent his sisters from getting

Marie’s money. Teresa asked Marie if she knew about the bank

transfers and Marie said no. Marie wanted her money to remain in

her own bank account.

¶ 12 Teresa then filed a petition to appoint herself as special

conservator for Marie. The trial court granted the petition and

limited her authority to “(1) securing and applying [Marie’s] assets

and income for [Marie’s] health, maintenance, and support; (2)

investigating Marie’s estate plan; and (3) filing a Notice of Lis

Pendens on [the Ranch].” As special conservator, Teresa demanded

the return of funds that were used for expenses associated with the

Ranch and transferred from Marie’s bank account into Gilbert’s

commercial bank account. Gilbert complied with the demand and

5
paid Teresa’s attorney $70,901.17. The court later ordered Gilbert

to allow Teresa access to the Ranch to prepare an inventory of any

and all of Marie’s personal property. But when she arrived, Teresa

was unable to locate any of Marie’s personal property because

Gilbert had already donated most of it.

¶ 13 The Estate filed a petition to void the quitclaim deed

transferring the Ranch from Marie to Gilbert. The Estate also

brought claims against Gilbert for breach of fiduciary duty, unjust

enrichment, and civil theft related to the transfer of the Ranch and

the money transfers from Marie’s bank account. It requested, as

remedies, a surcharge for the breach of fiduciary duty claim, a

constructive trust for the unjust enrichment claim, and the voiding

of the quitclaim deed. In his response, Gilbert asserted a cross-

claim of promissory estoppel for the quitclaim deed and demanded

a jury trial. The Estate raised the affirmative defense of unclean

hands, among others.

¶ 14 On the morning of trial, the Estate, through counsel, objected

to treating jury verdicts for the breach of fiduciary duty and unjust

enrichment claims as binding because those claims were equitable

in nature. But the Estate agreed that the civil theft claim should be

6
presented to the jury. Gilbert responded that the Estate had

consented to a jury trial under C.R.C.P. 39(c) and that all claims

should be presented to the jury. The trial court denied the Estate’s

objection, concluding that the breach of fiduciary duty and unjust

enrichment claims could be tried to a jury. The court did, however,

agree that the claims for a surcharge and a constructive trust, as

well as the defense of unclean hands, were equitable issues to be

decided by the court after the trial.

¶ 15 The jury returned verdicts in the Estate’s favor on the breach

of fiduciary duty and unjust enrichment claims. The jury also

returned a verdict in the Estate’s favor on the civil theft claim but

only for the money transferred out of Marie’s account. It then made

the following damages findings:

 Gilbert received $775,000 from breaching his fiduciary

duty and Marie lost $775,000 in property or assets as a

result of the breach.

 Gilbert was unjustly enriched in the amount of

$845,901.17.3

3This value represents the combined value of the Ranch and the
value of the money transferred out of Marie’s bank account.

7
 Marie lost $70,901.17 as a result of the civil theft.

However, the jury returned a verdict in Gilbert’s favor on the

promissory estoppel claim and declined to rescind or void the

quitclaim deed.

¶ 16 After trial, the trial court issued an order addressing the jury’s

verdicts and the remaining equitable claims. First, the court found

that Marie intended to give the Ranch to Gilbert by signing the deed

and that Gilbert had not acted “in any manner to overcome her will

to the extent that she was prevented from voluntary action and was

deprived of free agency.” Thus, it rejected the Estate’s unclean

hands defense and gave effect to the jury’s promissory estoppel

verdict. And second, consistent with its unclean hands ruling, the

court declined to impose a constructive trust on the Ranch. Finally,

the court offset the $70,901.17 Gilbert had repaid the Estate before

trial from the jury’s damages award for civil theft. Because the

order was then zero, the court denied treble damages. Therefore,

the court entered an order in the Estate’s favor for breach of

fiduciary duty and civil theft, and it awarded the Estate $775,000 in

damages. It then entered an order for Gilbert on the promissory

estoppel claim and ruled that he could retain title to the Ranch.

8
The court declined to enter an order in the Estate’s favor on the

unjust enrichment claim and found that the award duplicated the

awards on the breach of fiduciary duty and civil theft claims.

¶ 17 Later, the court held a hearing on the parties’ requests for

attorney fees and costs. The court found that the Estate and

Teresa, as special conservator, were entitled to surcharges under

section 15-10-605(1), C.R.S. 2021, and awarded them attorney fees

and costs on all their successful claims. It denied Gilbert’s request

for attorney fees and costs under section 15-10-602(1)-(6), C.R.S.

2021. Because Gilbert had engaged in a self-interested transaction

when transferring the Ranch to himself, the court found that he

had defended the breach of fiduciary duty claim in bad faith and

was, therefore, ineligible for fees and costs.

II. Jury Instructions

¶ 18 Gilbert first contends that the trial court erroneously rejected

his attorney’s proposed jury instructions on (1) undue influence; (2)

capacity; (3) knowledge of an agent imputable to the principal;

(4) acknowledged deeds; (5) multi-party accounts; and (6) nominee

accounts. Specifically, he argues that he was entitled to these

9
instructions because they embodied his theory of the case. We

disagree.

A. Preservation and Standard of Review

¶ 19 We review a trial court’s decision to tender a particular jury

instruction for an abuse of discretion. Schuessler v. Wolter, 2012

COA 86, ¶ 10. A court abuses its discretion when its ruling is

manifestly arbitrary, unreasonable, unfair, or is based on a

misapprehension or misapplication of the law. Core-Mark

Midcontinent Inc. v. Sonitrol Corp., 2016 COA 22, ¶ 28.

¶ 20 The Estate contends that this issue is unpreserved because

Gilbert’s counsel did not object to the district court’s rejection of the

proposed instructions. An alleged instructional error is

unpreserved when the “trial court requests input from the parties

on the proposed instructions, and a party affirms that it has no

objections to any of them.” Hendricks v. Allied Waste Transp., Inc,

2012 COA 88, ¶ 31. However, absent these circumstances,

tendering a jury instruction is sufficient to preserve the alleged

instructional error for appeal. Id.; see also People v. Tardif, 2017

COA 136, ¶ 10 (“An alleged instructional error is preserved if the

defendant tenders the desired relevant instruction even if the

10
defendant does not object or otherwise raise the issue during the

jury instruction conference.”).

¶ 21 Here, the trial court requested input on one of the proposed

instructions — undue influence. Gilbert’s counsel argued that this

instruction should be submitted to the jury because all claims

should be submitted to the jury. Because Gilbert’s counsel asked

the court to tender the undue influence instruction, and because

the court did not ask for input on the remaining proposed

instructions before rejecting them, we conclude this issue is

preserved. Cf. Hendricks, ¶ 32 (concluding the instructional error

was waived because the party agreed to the challenged instruction).

¶ 22 We review preserved instructional errors under the harmless

error standard. Waneka v. Clyncke, 134 P.3d 492, 494 (Colo. App.

2005), aff’d, 157 P.3d 1072 (Colo. 2007). We will reverse only if any

erroneous refusal to give requested instructions resulted in

substantial, prejudicial error. Schuessler, ¶ 11. “Prejudicial error

exists when the record shows that a jury might have reached a

different verdict if a proper instruction had been given.” Id.

11
B. Analysis

¶ 23 At trial, Gilbert asserted that Marie wanted him to have the

Ranch and that he did not exercise any undue influence over her

decision to give him the Ranch. He also asserted that he

transferred money from Marie’s bank accounts to protect it from

being dissipated by his siblings because Marie was unable to

manage her finances. Thus, he argues, the court’s rejection of his

instructions for (1) undue influence, see CJI-Civ. 34:15 (2022); (2)

capacity, see Anderson v. Lindgren, 113 Colo. 401, 406-07, 157

P.2d 687, 689 (1945); (3) knowledge of an agent imputable to the

principal, see CJI-Civ. 8:15 (2022); and (4) acknowledged deeds, see

§ 38-35-101(2), (3)(a), C.R.S. 2021, precluded him from presenting

his theory of the case. See Schuessler, ¶ 12 (“A party is entitled to

an instruction embodying his or her theory of the case if it is

supported by competent evidence and is consistent with existing

law.”).

¶ 24 The jury was tasked with deciding four claims related to the

transfer of the Ranch and the money transfers from Marie’s bank

account — (1) breach of fiduciary duty; (2) unjust enrichment;

(3) civil theft; and (4) promissory estoppel. Arguably, the rejected

12
instructions were relevant to the Estate’s civil theft claim and to

Gilbert’s promissory estoppel claim. However, we conclude that any

error in rejecting the proposed instructions was harmless because

the jury found for Gilbert on the promissory estoppel claim, and he

has not explained how the absence of these instructions prejudiced

him. As the trial court noted, undue influence and capacity are not

elements of civil theft and Gilbert was not precluded from arguing

that he moved money from Marie’s account to his own account to

protect it. As well, the jury found that the Estate was unable to

rescind or void the quitclaim deed transferring the Ranch to Gilbert.

Thus, the jury agreed with Gilbert’s theory of the case that the

quitclaim deed transferring the Ranch to Gilbert was valid. And the

trial court gave effect to the jury’s verdicts when it found that Marie

intended to transfer the Ranch to Gilbert by signing the quitclaim

deed and that title to the Ranch remained with Gilbert.

¶ 25 Concerning the jury’s verdicts for the Estate on the breach of

fiduciary duty and unjust enrichment claims, we conclude that

none of the proposed instructions were relevant to the elements of

those claims. As the trial court correctly noted, the jury found that

13
there was a valid transfer, but it also rejected Gilbert’s claim that he

should not have to pay for the Ranch.

¶ 26 Next, Gilbert contends, in conclusory fashion, that the

proposed instructions on multi-party accounts, §§ 15-15-211

to -212, C.R.S 2021, and nominee accounts, § 15-1-502, C.R.S.

2021, related to the money transfers from Marie’s bank account.

But he failed to develop this argument, so we decline to consider it.

See Woodbridge Condo. Ass’n v. Lo Viento Blanco, LLC, 2020 COA

34, ¶ 41 n.12 (“We don’t consider undeveloped and unsupported

arguments.”), aff’d, 2021 CO 56.

¶ 27 Finally, to the extent Gilbert contends that the jury should

have decided all the claims asserted against him, we conclude that

any verdict on the equitable claims would have been advisory and,

therefore, not binding on the trial court. See Am. Pride Co-op. v.

Seewald, 968 P.2d 139, 142 (Colo. App. 1998). And we reject

Gilbert’s contention that the jury should have been instructed on

the trial court’s post-verdict findings because such an instruction

would have improperly invaded the independent factfinding

province of the jury. See People v. Perez, 2016 CO 12, ¶ 31 (“The

jury, not the court, must perform the fact-finding function when

14
conflicting evidence — and conflicting reasonable inferences — are

presented.”). As the trial court correctly noted in its post-trial

order, the court’s “findings are necessarily the Court’s findings and

are not meant, in any way, to reflect the Court’s belief as to the

facts found by the jury except as those facts might be ascertained

by the verdicts reached by the jury.”

¶ 28 Accordingly, we discern no abuse of discretion.

III. Inconsistent Verdicts

¶ 29 Gilbert next contends that the jury’s verdicts in the Estate’s

favor on the breach of fiduciary duty, unjust enrichment, and civil

theft claims are inconsistent with its verdict in his favor on the

promissory estoppel claim. The Estate argues that this issue was

not preserved for our review. It argues that Gilbert’s attorney was

required to object to the verdict forms before they were submitted to

the jury. See Bear Valley Church of Christ v. DeBose, 928 P.2d

1315, 1330 (Colo. 1996) (“According to our rules of civil procedure,

a party cannot seek appellate review of the propriety of a jury

instruction unless counsel tenders such an objection prior to the

court’s presentation of the instructions to the jury . . . .”). We agree

that this issue is unpreserved, but for a different reason. See

15
Taylor v. Taylor, 2016 COA 100, ¶ 31 (“An appellate court may . . .

affirm on any ground supported by the record.”).

¶ 30 Contrary to the Estate’s contention, Gilbert does not challenge

the verdict forms or the propriety of the jury instructions. Instead,

he challenges the consistency of the jury’s verdicts themselves.

Thus, Gilbert’s attorney was not required to object to the verdict

forms before they were tendered to the jury to preserve this issue

for appeal. Cf. Nichols v. Burlington N. & Santa Fe Ry. Co., 148 P.3d

212 (Colo. App. 2006) (finding waiver where counsel did not object

to the order of conditions on the special verdict form before that

form was submitted to the jury).

¶ 31 Whether a party waives the right to challenge an inconsistent

verdict on appeal turns on the characterization of the verdict.

Morales v. Golston, 141 P.3d 901, 905 (Colo. App. 2005). If a party

fails to object to a general verdict or a general verdict coupled with

written interrogatories before the jury is discharged, the party

“waives any future challenge to the inconsistency because its failure

to object timely deprives the court of the option of sending the jury

back for further deliberations.” Id.; see also C.R.C.P. 49(b). But,

because any inconsistencies in a special verdict would not be

16
resubmitted to the jury, a party is not required to object to the

special verdict before the jury is discharged to preserve the right to

challenge the inconsistencies. Morales, 141 P.3d at 905; see also

C.R.C.P. 49(a).

¶ 32 We conclude that the verdicts here were general verdicts

accompanied by answers to interrogatories rather than special

verdicts. See Morales, 141 P.3d at 906 (“[T]he hallmark of a general

verdict is that it requires the jury to announce the ‘ultimate legal

result of each claim.’” (quoting Johnson v. ABLT Trucking Co., 412

F.3d 1138, 1142 (10th Cir. 2005))). Consequently, because

Gilbert’s counsel failed to object to the general verdicts before the

jury was discharged, he waived the inconsistent verdicts issue for

purposes of appeal. See id. at 905.

IV. Sufficiency

¶ 33 Gilbert also contends that the jury’s verdict finding a breach of

fiduciary duty and the court’s equitable ruling denying the Estate’s

request to void the deed transferring the Ranch to him are

inconsistent. Specifically, he asserts that because Marie intended

to transfer the Ranch to him, he could not have violated his

fiduciary duty in carrying out her wish. As best we can discern, he

17
asks us to vacate the breach of fiduciary duty verdict by arguing

that “[t]he very nature of the Court’s determinations preclude[s] a

finding that the Transfer was a breach of a fiduciary duty.” We

construe his argument as one challenging the sufficiency of the

evidence to support the breach of fiduciary duty verdict, which we

address below in Part IV.B. In doing so, we reject the Estate’s

contention that this claim of error was not preserved. Because the

court made its equitable findings after the jury’s verdict, Gilbert’s

post-trial motion preserved this issue for our review. See Briargate

at Seventeenth Ave. Owners Ass’n v. Nelson, 2021 COA 78M, ¶ 66

(“Objections to trial court rulings must be made contemporaneously

with the court’s actions before appellate review is afforded.”).

¶ 34 Further, Gilbert contends that there was insufficient evidence

to support the jury’s verdicts in the Estate’s favor on the breach of

fiduciary duty, unjust enrichment, and civil theft claims. We

disagree.

A. Standard of Review

¶ 35 “When a jury verdict is challenged on the grounds that it is

unsupported by the evidence, we must review the entire record to

determine whether there is competent evidence from which the jury

18
logically could have reached its verdict.” Vititoe v. Rocky Mountain

Pavement Maint., Inc., 2015 COA 82, ¶ 34. In doing so, we must

determine whether the evidence, viewed as a whole and in the light

most favorable to the prevailing party, is sufficient to support the

verdict. Black v. Black, 2018 COA 7, ¶ 92.

B. Breach of Fiduciary Duty

¶ 36 To recover on a claim for breach of fiduciary duty, “a plaintiff

must prove: 1) that the defendant was acting as a fiduciary of the

plaintiff; 2) that he breached a fiduciary duty to the plaintiff; 3) that

the plaintiff incurred damages; and 4) that the defendant’s breach

of fiduciary duty was a cause of the plaintiff’s damages.” Graphic

Directions, Inc. v. Bush, 862 P.2d 1020, 1022 (Colo. App. 1993).

¶ 37 A party who has been appointed as a fiduciary pursuant to a

power of attorney has a duty to

(a) [a]ct in accordance with the principal’s
reasonable expectations to the extent actually
known by the agent and, otherwise, in the
principal’s best interest;

(b) [a]ct in good faith; and

(c) [a]ct only within the scope of authority
granted in the power of attorney.

19
§ 15-14-714(1), C.R.S. 2021. As well, the fiduciary “shall . . . [a]ct

so as not to create a conflict of interest that impairs the agent’s

ability to act impartially in the principal’s best interest.” § 15-14-

714(2)(b).

¶ 38 Relying on the jury’s verdict in his favor on the promissory

estoppel claim and the trial court’s post-verdict findings that Marie

intentionally transferred the Ranch to him and that she did so

without undue influence, Gilbert contends there is insufficient

evidence to show that he breached his fiduciary duty. However, the

valid transfer and absence of undue influence do not necessarily

negate a finding of a breach of a fiduciary duty. Instead, we

conclude the record contains sufficient evidence that Gilbert

breached his fiduciary duty by engaging in a self-interested

transaction that created a conflict of interest, and thereby impaired

his ability to act in Marie’s best interest.4

4 The jury’s verdict in the Estate’s favor on the breach of fiduciary
duty claim was limited to the value of the Ranch. Thus, the jury
did not find that Gilbert breached his fiduciary duty when he
transferred money out of Marie’s bank account and into his
commercial bank account.

20
¶ 39 While Marie was an inpatient at the rehabilitation facility,

Gilbert drafted the quitclaim deed transferring the Ranch to himself

and his wife, drove Marie to her bank where she executed the deed,

and recorded the deed. Although we acknowledge that Marie

requested this transfer, Gilbert, as her fiduciary, did nothing to

mitigate any conflict of interest or to ascertain whether the transfer

was in Marie’s best interest. Gilbert testified that he asked Marie if

she wanted to consult her estate attorney and Marie declined. Even

if true, Gilbert communicated with Marie’s attorney regularly and

Gilbert voiced his concerns about family pressures on multiple

occasions. Thus, in carrying out his fiduciary duty, he could have

consulted Marie’s attorney before executing the deed. But he did

not reveal the transfer to Marie’s attorney until approximately ten

months after recording the quitclaim deed.

¶ 40 Further, Gilbert retained title to the Ranch without

consideration with the expectation that he would care for the

property while Marie was at the rehabilitation facility. Without her

knowledge, Gilbert continued to use Marie’s money to pay for

utilities and expenses for the Ranch. However, when Marie asked

to return to the Ranch, Gilbert refused. Marie then told her

21
attorney that she did not believe the transfer was permanent and

that she reasonably expected that she could return to the Ranch

upon request.

¶ 41 Finally, Gilbert changed the locks to the gates on the Ranch

and to the house, restricting his siblings’ access to the home. He

also donated most of Marie’s personal property, thereby precluding

Teresa from inventorying Marie’s property as special conservator.

¶ 42 As the trial court noted, the record shows that, while Marie

intended to transfer the Ranch to Gilbert, she did not intend to do

so without consideration. Accordingly, sufficient evidence supports

the jury’s finding that Gilbert breached his fiduciary duty when he

retained title to the Ranch by way of the quitclaim deed.

C. Unjust Enrichment

¶ 43 Unjust enrichment is a “judicially-created remedy designed to

undo the benefit to one party that comes at the unfair detriment of

another.” Lewis v. Lewis, 189 P.3d 1134, 1141 (Colo. 2008). To

prevail on a claim for unjust enrichment, the plaintiff 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

22
defendant to retain the benefit without commensurate

compensation.” Id.

¶ 44 The jury found that Gilbert was unjustly enriched by the

transfer of the Ranch without consideration and by the money

transfers out of Marie’s account. Gilbert does not contend that he

did not receive a benefit at Marie’s expense by engaging in these

transactions. Instead, he relies on the trial court’s finding that

Marie transferred the Ranch to him without undue influence. But

in doing so, he ignores the jury’s finding and the trial court’s finding

that Marie did not intend to transfer the Ranch to him without

consideration. Thus, Gilbert received the Ranch at Marie’s expense,

and, for the reasons explained in Part IV.B, he did so under unjust

circumstances.

¶ 45 We further conclude that the following trial evidence

sufficiently shows that Gilbert was unjustly enriched. Gilbert

repeatedly told Marie’s estate attorney and his siblings that he was

concerned about Marie’s finances and that she was running out of

money. But, without their or Marie’s knowledge, he transferred

more than $59,000 from Marie’s account to his. And he used

Marie’s money to maintain the Ranch that he owned.

23
¶ 46 Additionally, the bank mailed Marie’s bank statements to the

Ranch when she lived at the rehabilitation facility, and she testified

that she had not seen her bank statements in years. Further, after

Teresa became co-agent, Gilbert withheld Marie’s bank statements

from Teresa. Teresa was unable to access the statements until she

was designated Marie’s sole agent.

D. Civil Theft

¶ 47 To prevail on a claim for civil theft, “a party must prove, by a

preponderance of the evidence, that the defendant committed all of

the elements of criminal theft.” Black, ¶ 93. A person commits civil

theft when he (1) knowingly obtained, retained, or exercised control

over “anything of value of another without authorization or by

threat or deception”; and (2) acted intentionally or knowingly in

ways that deprived the plaintiff of the thing of value permanently.

§ 18-4-401(1), C.R.S. 2021; Scott v. Scott, 2018 COA 25, ¶ 26.

“Thus, civil theft, like criminal theft, requires the specific intent of

the defendant to permanently deprive the owner of the benefit of the

property.” Scott, ¶ 26. And a party’s intent is a question of fact to

be determined by the fact finder. Nixon v. City & Cnty. of Denver,

2014 COA 172, ¶ 31.

24
¶ 48 Gilbert contends that there is insufficient evidence of civil theft

because he repaid the $70,901.17 that he had transferred out of

Marie’s bank account. However, returning funds taken from

Marie’s account is not a defense to civil theft. See People v. Pedrie,

727 P.2d 859, 863 (Colo. 1986) (“The fact that stolen property was

eventually returned is not a defense to a theft charge.”). As well,

Gilbert did not return the funds until Teresa, in her capacity as

special conservator, discovered the transfers and demanded the

return of the funds. Under these circumstances, and considering

the evidence that Marie had no knowledge of the bank transfers, we

conclude there is sufficient evidence that Gilbert obtained

$70,901.17 of Marie’s funds with the intent to deprive Marie of

those funds.

V. Trial Attorney Fees and Costs

¶ 49 Gilbert last contends that, as the prevailing party on appeal,

the trial court’s award of attorney fees and costs to the Estate

should be reversed. However, we have discerned no error in the

trial court’s order in the Estate’s favor and, therefore, decline to

reverse the court’s award of attorney fees and costs.

25
VI. Appellate Attorney Fees and Costs

¶ 50 Gilbert requests an award of attorney fees and costs incurred

on appeal pursuant to section 15-10-602. We deny the request

because he does not explain the legal and factual basis for an

award. See C.A.R. 39.1. Specifically, he does not identify which

provision of section 15-10-602 applies, nor does he explain why he

is entitled to attorney fees and costs under this statute. Herbst v.

Univ. of Colo. Found., 2022 COA 38, ¶ 20.

VII. Cross-Appeal

¶ 51 The Estate contends that the trial court erred by deducting the

returned funds from the jury’s damages award before trebling the

damages. We agree.

A. Standard of Review and Applicable Law

¶ 52 The trial court “has the sole prerogative to assess the amount

of damages, and its award will not be set aside unless it is

manifestly and clearly erroneous.” Lawry v. Palm, 192 P.3d 550,

565 (Colo. App. 2008). However, whether the district court

misapplied the law when determining the measure of damages

presents a question of law that we review de novo. Sos v. Roaring

Fork Transp. Auth., 2017 COA 142, ¶ 37.

26
¶ 53 We also review questions of statutory interpretation de novo.

Garhart v. Columbia/Healthone, L.L.C., 95 P.3d 571, 591 (Colo.

2004). When construing a statute, our primary objective is to

ascertain and give effect to the General Assembly’s intent. Id. If

more than one statute addresses an issue, we must construe the

related provisions as a whole and read the statutes together. Foiles

v. Whittman, 233 P.3d 697, 699 (Colo. 2010). We begin with the

plain language of the statute, and “if we can clearly discern intent

from the language, we need look no further.” Garhart, 95 P.3d at

591.

¶ 54 Section 18-4-405, C.R.S. 2021, provides as follows:

All property obtained by theft, robbery, or
burglary shall be restored to the owner, and no
sale, whether in good faith on the part of the
purchaser or not, shall divest the owner of his
right to such property. The owner may
maintain an action not only against the taker
thereof but also against any person in whose
possession he finds the property. In any such
action, the owner may recover two hundred
dollars or three times the amount of the actual
damages sustained by him, whichever is
greater, and may also recover costs of the
action and reasonable attorney fees; but
monetary damages and attorney fees shall not
be recoverable from a good-faith purchaser or
good-faith holder of the property.

27
(Emphasis added.)

¶ 55 To be awarded treble damages, a plaintiff need only prove that

the defendant committed acts constituting the statutory crime of

theft. Itin v. Ungar, 17 P.3d 129, 133 (Colo. 2000). If all of the

elements of civil theft have been proved by a preponderance of the

evidence, the trial court lacks discretion to decline to award treble

damages. Franklin Drilling & Blasting, Inc. v. Lawrence Constr. Co.,

2018 COA 59, ¶ 25 n.5.

B. Analysis

¶ 56 The trial court calculated the civil theft damages by offsetting

the $70,901.17 Gilbert repaid to the Estate before trebling the

damages. Because the jury awarded the Estate $70,901.17 in

actual damages, the offset resulted in a net order of zero. Thus, the

trial court ruled that it had “nothing to treble.” We conclude, for

three reasons, that the trial court erred by offsetting the repayment

before trebling the damages.

¶ 57 First, nothing in section 18-4-405 provides for an offset to

actual damages based on the return of property obtained by theft

before trebling the damages. Instead, the statute provides for both

the return of the property obtained by theft and treble damages in

28
the amount of “two hundred dollars or three times the amount of

the actual damages sustained by him, whichever is greater.” Id.

Absent some statutory command, the statute provides no basis for

such an offset. See Am. Fam. Mut. Ins. Co. v. Barriga, 2018 CO 42,

¶¶ 10-11 (concluding that, absent some statutory command, the

statutory penalty in section 10-3-1116(1), C.R.S. 2021, precludes a

setoff for an insurer’s prior payment of the covered benefit itself in

calculating the penalty owed).

¶ 58 Second, “the placement of the rights in stolen property statute

in the Criminal Code and its allowance of treble damages ‘strongly

suggest that [the] section was intended to serve primarily a

punitive, rather than a remedial, purpose.’” Bermel v. BlueRadios,

Inc., 2019 CO 31, ¶ 30 (quoting In re Marriage of Allen, 724 P.2d

651, 656 (Colo. 1986)). Indeed, the “availability of treble damages

and attorney fees for civil theft reflects the legislature’s displeasure

with the proscribed conduct and its desire to deter it.” Id. at ¶ 35.

Therefore, we conclude that recognizing an offset of the returned

property before the actual damages are trebled contravenes the

purpose of the statute. And because an offset for returned property

before trebling the damages verdict would result in an award less

29
than what the statute contemplates, such action risks

disincentivizing individuals from bringing civil theft claims.

¶ 59 Third, we find federal case law interpreting Section 4 of the

Clayton Act, a federal antitrust statute, instructive and persuasive.

See 15 U.S.C. § 15; see also Vining v. Martyn, 660 So. 2d 1081,

1082 (Fla. Dist. Ct. App. 1995) (finding federal case law persuasive,

the division concluded that any offset of settlement payments

received prior to the civil theft verdict must occur after the verdict is

trebled).

¶ 60 Like section 18-4-405, Section 4 provides that a plaintiff may

recover actual damages and “threefold the damages by him

sustained” as a result of an antitrust violation. 15 U.S.C. § 15(a).

Federal courts have consistently held that district courts should

first treble the amount of the jury’s verdict and then subtract any

amount already paid in settlement. See Flintkote Co. v. Lysfjord,

246 F.2d 368, 397-98 (9th Cir. 1957); Hydrolevel Corp. v. Am. Soc’y

of Mech. Eng’rs, Inc., 635 F.2d 118, 130 (2d Cir. 1980), aff’d, 456

U.S. 556 (1982); Burlington Indus. v. Milliken & Co., 690 F.2d 380,

391-92 (4th Cir. 1982) (“[T]he . . . unbroken rule has been that any

settlement payments are deducted from the damages award after

30
trebling.”). The court in Hydrolevel Corp. identified three reasons

for trebling damages before deducting settlement proceeds: (1) the

statute provides that the plaintiff should receive three times the

proven actual damages; (2) reducing the amount of damages trebled

would weaken the incentive for private plaintiffs to file suit; and (3)

the deduction of the settlement proceeds would discourage

settlement before a verdict. 635 F.2d at 130 (citing Flintkote Co.,

246 F.2d 368). We find these reasons persuasive and applicable to

our interpretation of section 18-4-405.

¶ 61 Accordingly, we conclude the court erred by deducting the

$70,901.17 repaid to the Estate from the jury’s damages verdict

before trebling the actual damages. The trial court should first

treble the amount of actual damages and then subtract the

$70,901.17 repaid. We therefore reverse the trial court’s order on

the civil theft claim in part and remand for the court to award the

Estate $212,703.51 in treble damages on that claim.

VIII. Conclusion

¶ 62 We reverse the trial court’s award on the civil theft claim in

part and remand for the trial court to award the Estate

31
$212,703.51 in treble damages on that claim. The order is

otherwise affirmed.

JUDGE FOX and JUDGE GOMEZ concur.

32