Matter of Judith A McGraw

23CA1510 Matter of Judith A McGraw 08-07-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1510
El Paso County District Court No. 18PR30184
Honorable Vincent N. Rahaman, Magistrate

In the Matter of Judith A. McGraw, deceased.

Evelyn Jane Lawrence,

Appellant and Cross-Appellee,

v.

Stanton McGraw and Stacey McGraw Evans,

Appellees and Cross-Appellants,

and

Estate of Michael Fred Lawrence,

Appellee,

and

Lawrence Family Ranch Corporation,

Defendant.

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

Division VI
Opinion by JUDGE MOULTRIE
Welling and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 7, 2025
Daniel B. Slater, Canon City, Colorado, for Appellant and Cross-Appellee

John Henry Schlie P.C., John Henry Schlie, Greenwood Village, Colorado, for
Appellees and Cross-Appellants

Gardner Legal Services, LLC, Matthew R. Gardner, Linton Wright, Boulder,
Colorado, for Appellee Estate of Michael Lawrence

No Appearance for Defendant Lawrence Family Ranch Corporation
¶1 The parties to this probate appeal are family members involved

in a longstanding dispute concerning their asserted interests in a

family trust and certain parcels of land associated with the trust.

Evelyn Jane Lawrence (Jane)1 appeals the district court’s order and

challenges, among other things, the court’s jurisdiction and its

ownership determination of the disputed parcels. Stanton McGraw

and Stacey McGraw Evans (jointly, the McGraws) cross-appeal the

court’s parcel ownership determinations. We reverse the court’s

order determining ownership of the disputed parcels and remand

with directions. We otherwise affirm the court’s order.

I. Background

¶2 This action has a complex factual and procedural history, the

relevant portions of which we recite here.

¶3 Judith McGraw died intestate in El Paso County in 2005.

Judith was survived by her husband, Dale McGraw, and their two

children, Stanton and Stacey. Dale later remarried and died

intestate, survived by his second wife.

1 To avoid confusion between those who share a last name, we refer

to parties and others referenced in this opinion by their first names
or nicknames used in the district court proceedings. We intend no
disrespect in doing so.

1
¶4 Judith’s father, Robert Lawrence, died in 1981. Robert owned

hundreds of acres in Custer County, consisting of six parcels of

land (Parcels 1-6).

¶5 In 1989, Judith and her two siblings, Michael Lawrence and

Jane, formed the Lawrence Family Ranch Corporation (the LFRC)

“to honor Robert’s desire to create an entity that would hold his

property for his children and future descendants and to protect the

parcels from the reach of creditors.” Each sibling received 100

shares of the corporation. Between 1989 and 1994, the siblings

engaged in a series of transactions that transferred Parcel 1 to the

LFRC and Parcels 4 and 6 to Jane.2

¶6 In 2016, the McGraws filed suit against Jane and Michael in

Fremont County. The McGraws alleged that they each were entitled

to fifty shares of LFRC stock, which was inherited from Judith upon

her death. The Fremont County district court dismissed that case

for lack of subject matter jurisdiction, ruling that the dispute was

within the jurisdiction of the El Paso County district court because

2 Parcels 2, 3, and 5 aren’t at issue in this appeal.

2
the claims arose from Judith’s estate and Judith wasn’t a resident

of Fremont County when she died.

¶7 In February 2018, the McGraws filed a petition in the El Paso

County district court to determine heirship of Judith’s stock shares.

In November 2019, they amended their petition, additionally

seeking, as relevant here, a declaration of their ownership interests

in the LFRC, judicial dissolution of the LFRC, appointment of a

receiver for the LFRC, and partition of the LFRC’s property.

¶8 In response, Jane filed a series of pro se motions seeking

dismissal of the McGraws’ petition. As relevant here, Jane argued

that the district court lacked subject matter jurisdiction to consider

civil and corporate claims, the McGraws failed to join necessary and

indispensable parties to the litigation, and the McGraws’ petition

“raise[d] series concerns about the statute of limitations.”

¶9 The court ruled that it had subject matter jurisdiction to hear

the McGraws’ claims and appointed a receiver for the LFRC over

Jane’s objection. The issue of whether the McGraws were the

rightful heirs of Judith’s LFRC stock shares through inheritance

was resolved when Dale’s second wife disclaimed any interest in

those shares.

3
¶ 10 The court conducted a trial on the McGraws’ remaining claims

over six nonconsecutive days between April 2021 and December

2022. In June 2021, Jane — now represented by counsel — filed a

midtrial motion to dismiss in which her counsel raised numerous

issues, including that the court lacked jurisdiction to hear the

McGraws’ claims and that the McGraws’ claims were barred by

various statutes of limitation. The court didn’t specifically rule on

the midtrial motion but rather indicated its intent to issue a final

order at the end of the trial.

¶ 11 The court issued its final order in July 2023. The court

determined that, together, the McGraws possessed a one-third

interest in the LFRC; that Parcel 1 belonged to the LFRC because

Jane had held it in trust for the LFRC; and that Parcels 4 and 6

belonged to Jane. The court ordered the dissolution of the LFRC

and declined to reimburse any party for work that had been done

on the parcels or otherwise related to the LFRC.

¶ 12 On appeal, Jane argues that the court (1) didn’t have

“jurisdiction” to consider matters related to the LFRC’s real

property, order dissolution of the LFRC, or appoint a receiver;

(2) erred by failing to rule on the statute of limitations issues she

4
raised in her midtrial motion; (3) improperly considered as judicial

admissions prior arguments she made in a separate case;

(4) erroneously determined that she wasn’t entitled to any offsets for

expenses related to the LFRC; and (5) improperly determined title to

real property without the involvement of all interested parties. In

their cross-appeal, the McGraws argue that the court erred by

awarding Parcels 4 and 6 to Jane as her separate property rather

than concluding those parcels were property of the LFRC.

¶ 13 As discussed below, we conclude that the court erred when it

purported to determine ownership of Parcels 1, 4 and 6. We

otherwise reject Jane’s contentions. Accordingly, we reverse the

portions of the court’s order determining parcel ownership, affirm

the remaining portions of the order, and remand to the district

court for further proceedings consistent with this opinion.

II. The El Paso District Court, Sitting in Probate, Had Broad
Jurisdiction

¶ 14 Jane asserts that the El Paso district court didn’t have

“jurisdiction . . . or any other authority” to consider issues related

to the LFRC’s real property that was located in Custer County, to

dissolve the LFRC, or to appoint a receiver. We disagree.

5
A. Standard of Review and Applicable Law

¶ 15 A court’s subject matter jurisdiction concerns its authority to

deal with the class of cases in which it renders judgment, not its

authority to enter a particular judgment within that class. Meggitt

v. Stross, 2021 COA 50, ¶ 39. “In determining whether a particular

court has jurisdiction, we consider the nature of the party’s claim

and the relief sought.” Black v. Black, 2018 COA 7, ¶ 75. We

review the legal issue of jurisdiction de novo. In re Estate of

Murphy, 195 P.3d 1147, 1150 (Colo. App. 2008).

¶ 16 In Colorado, district courts sitting in probate have jurisdiction

to determine

every legal and equitable question arising in
connection with decedents’, wards’, and
absentees’ estates, so far as the question
concerns any person who is before the court
by reason of any asserted right in any of the
property of the estate or by reason of any
asserted obligation to the estate.

§ 13-9-103(3), C.R.S. 2024; see Est. of Lembach v. Lembach, 622

P.2d 606, 607 (Colo. App. 1980) (“[T]he specific enumeration of the

Denver Probate Court’s subject matter jurisdiction [in title 13,

article 9] is applicable to all district courts sitting in probate

matters.”).

6
¶ 17 District courts sitting in probate thus have “broad jurisdiction

‘to determine every legal and equitable question arising in

connection with decedents’ . . . estates,’” as long as the question

concerns a person who asserts a right in the property of the estate.

In re Estate of Owens, 2017 COA 53, ¶ 12 (quoting Murphy, 195

P.3d at 1151). This broad jurisdiction encompasses the authority

to resolve any dispute “logically relating to the estate.” Murphy, 195

P.3d at 1151.

B. The Court Had Jurisdiction to Consider Matters Related to the
Ownership of Real Property Located in Custer County

¶ 18 The McGraws asked the court to determine the ownership of

Judith’s LFRC stock shares and the extent of the McGraws’

interests in the LFRC, dissolve the LFRC, and partition the LFRC’s

property (which they argued included real property located in

Custer County). “Shares of stock in a company duly incorporated

under the laws of this state are personal property.” McClaskey v.

Lake View Mining & Tunneling Co., 31 P. 333, 334 (Colo. 1892).

And Jane concedes that it was “entirely appropriate” for the district

court, sitting in probate, to determine ownership of Judith’s shares.

But, she argues, the court exceeded its jurisdiction when it also

7
addressed issues related to the ownership of real property in Custer

County that wasn’t “owned or alleged to be owned by the decedent.”

We aren’t persuaded.

¶ 19 The nature of the McGraws’ claims and the relief sought by

those claims were logically related to the court’s legal determination

of who had inherited Judith’s LFRC stock shares after her death.

See Murphy, 195 P.3d at 1151. The McGraws claimed that they

were rightful shareholders of the LFRC and that the disputed

parcels were assets of the LFRC. The relief they sought, if the court

agreed with them, was judicial dissolution of the LFRC and

partition of the disputed parcels.

¶ 20 Thus, the court was tasked with determining the ownership of

Judith’s LFRC stock shares and how those shares were related, if at

all, to the ownership of the disputed parcels. After determining that

the McGraws inherited Judith’s LFRC stock shares, the court

considered whether the McGraws had a legal or equitable interest in

the LFRC’s assets to resolve whether the McGraws were entitled to

the partition of those assets. This determination, in turn, required

the court to consider the ownership interests in the disputed

8
parcels — and was therefore logically related to a question arising

in connection with Judith’s estate.

¶ 21 To the extent that Jane asserts that the court, which was

located in El Paso County, didn’t have authority to enter orders

concerning the parcels because the McGraws should have filed suit

in Custer County, where the parcels are located, we also reject that

argument. See Sanctuary House, Inc. v. Krause, 177 P.3d 1256,

1258 (Colo. 2008) (once subject matter jurisdiction is established,

venue determines which particular Colorado court should hear the

case). Judith died in El Paso County. When a person dies intestate

and leaves behind personal property, any person potentially affected

by the ownership of the property can file a petition to determine

heirship in the county where the decedent “was domiciled or

resided” at the time of their death. § 15-12-1302(1), C.R.S. 2024.

¶ 22 We recognize section 15-12-1302(1) also says that when a

person who dies intestate leaves behind real property, a person

seeking an heirship determination may petition the court in the

county where at least a part of the real property is located. But, as

we’ve just concluded, the court’s determination of the ownership of

the real property — the disputed parcels — was related to its

9
determination of the ownership of Judith’s personal property — the

LFRC stock shares. And because the McGraws properly filed their

petition for heirship in El Paso County, the El Paso County district

court was the court with exclusive jurisdiction to adjudicate all

claims related to Judith’s estate, despite the disputed parcels being

located in a different county. See § 15-10-303(1), C.R.S. 2024

(“Where a proceeding under [the probate code] could be maintained

in more than one place in [Colorado], the court in which the

proceeding is first commenced has the exclusive right to proceed.”);

see also § 15-10-201(41), C.R.S. 2024 (a “proceeding” includes an

action at law and a suit in equity).

III. Dissolution of the LFRC and the Court’s Appointment of a
Receiver

A. The Court Didn’t Err by Considering the Parties’ Voluntary
Dissolution of the LFRC

¶ 23 Jane asserts that the district court didn’t have jurisdiction to

dissolve the LFRC because “[the McGraws] brought their claim for

corporate dissolution under [section 7-114-302, C.R.S. 2024].” So,

she argues, the court exceeded its authority when it failed to

comply with the provisions of that section.

10
¶ 24 In relevant part, section 7-114-302(1) requires that a

proceeding for judicial dissolution of a corporation be brought in

the district court for the county where the corporation’s principal

office is located. The LFRC’s principal office is located in Fremont

County. However, a voluntary corporate dissolution isn’t subject to

these same requirements. See § 7-114-102, C.R.S. 2024 (detailing

the requirements for voluntary dissolution of a corporation). When,

as here, shares in a corporation have been issued, the corporation

can be voluntarily dissolved by a majority vote of the shareholders

who are entitled to vote. § 7-114-102(1), (2)(c), (5).

¶ 25 During the trial, the court received evidence indicating that

the McGraws and Michael wanted the LFRC to be dissolved but

Jane didn’t. And in December 2022, a majority of the LFRC’s

shareholders — consisting of the McGraws and Michael — voted to

voluntarily dissolve the corporation. Michael’s counsel notified the

court of the voluntary dissolution of the LFRC in January 2023.

¶ 26 In its order, the court found that a majority of the LFRC’s

shareholders had already voted to voluntarily dissolve the

corporation. Specifically, the court noted that

11
the parties admit[ted] that in the last LFRC
[shareholder] meeting, Michael, Stanton and
Stacey voted for the voluntary dissolution of
the corporation and Jane voted against the
dissolution of the corporation. . . . Based on
this Court’s determination of ownership of
shares, such a vote provide[d] a majority of
shareholders agreeing that LFRC should be
dissolved and the land sold. Based on the
evidence presented, there has already been a
vote . . . approving a voluntary dissolution of
the LFRC.

¶ 27 Voluntary dissolution of a corporation doesn’t require court

approval. See § 7-114-102. Thus, the dissolution of the LFRC was

effective upon the majority shareholder vote. And, in any event, the

court didn’t act upon the notice of dissolution. Instead, the court

merely acknowledged receipt of the information and referenced it in

its order.

¶ 28 We acknowledge that the court stated it was also ordering a

judicial dissolution of the LFRC because it found that “Jane ha[d]

misapplied and wasted corporate assets.” But since the court

found with record support that the LFRC had already been

voluntarily dissolved, we conclude that any error in the court

purporting to judicially dissolve the LFRC was harmless. See

C.R.C.P. 61; see also C.A.R. 35(c); In re Estate of Gonzalez, 2024

12
COA 63, ¶ 40 (“Under the harmless error standard, we will not

disturb a judgment unless a court’s error affected the substantial

rights of the parties.”); Bernache v. Brown, 2020 COA 106, ¶ 26

(noting that an error affects the substantial rights of the parties if it

substantially influenced the outcome of the case or impaired the

basic fairness of the trial).

B. The Court Had Jurisdiction to Appoint a Receiver

¶ 29 Turning to the court’s appointment of a receiver, Jane asserts

that the court appointed a receiver pursuant to “Part 3” of title 7,

article 114 of the Colorado Revised Statutes, which governs judicial

dissolution of corporations. In support of this contention, Jane

points to the court’s statements from an August 2020 hearing that

it had reviewed “[sections] 7-114-301, 7-114-303, 7-113-102, 201,

7-114-302, 303, [and] 305,” C.R.S. 2024, and “look[ed] at

7-114-303(2), which is the . . . applicable statute regarding a

receiver.” Jane asserts that the court committed reversible error

because it didn’t have “jurisdiction” to appoint a receiver under this

authority. We disagree that the court committed reversible error for

three reasons.

13
¶ 30 First, we reject the notion that the court didn’t have subject

matter jurisdiction to appoint the receiver. Again, subject matter

jurisdiction concerns the class of cases that a court may adjudicate,

Meggitt, ¶ 39, and we’ve already concluded that the court had

subject matter jurisdiction to consider all claims logically related to

Judith’s estate. When a court already has subject matter

jurisdiction, its later failure to follow a statutory requirement

doesn’t divest it of that jurisdiction. Id.; see also Riant Amusement

Co. v. Bailey, 249 P. 7, 7 (Colo. 1926) (holding that if the court’s

appointment of a receiver violates a statute, “that would be error,

not want of jurisdiction,” where court had jurisdiction over the

subject matter and parties).

¶ 31 Second, while we acknowledge that there is no specific

statutory authority authorizing appointment of a receiver in a

voluntary corporate dissolution, cf. § 7-114-303(1) (authorizing a

court to appoint a receiver to “to wind up and liquidate . . . the

business and affairs of the corporation” in a judicial corporate

dissolution), a court may appoint a receiver before judgment in any

case in accordance with established principles of equity, see

C.R.C.P. 66(a)(3).

14
¶ 32 Third, since a court’s appointment of a receiver is governed by

general equitable principles, it’s required to consider the totality of

the circumstances in deciding whether to appoint a receiver.

Premier Farm Credit, PCA v. W-Cattle, LLC, 155 P.3d 504, 519-20

(Colo. App. 2006). Whether to appoint a receiver generally “rests

within the sound discretion” of the court, and we won’t disturb the

court’s determination without a clear abuse of discretion. Id. at

512; see also Black v. Black, 2020 COA 64M, ¶ 118 (“A trial court

abuses its discretion when its decision is manifestly arbitrary,

unreasonable, unfair, or based on a misapplication of the law.”).

¶ 33 We can’t conclude, under the circumstances presented here —

including the LFRC’s lengthy history involving numerous financial

and property transactions, ongoing familial conflict, and contested

legal and equitable interests in Judith’s unresolved estate — that

the court’s appointment of the receiver was manifestly arbitrary,

unreasonable, or unfair. Quite to the contrary, doing so was

manifestly reasonable under the circumstances found by the

district court. Thus, even if the court erred by relying on section

7-114-303(2) as its authority for appointing a receiver, this error

was harmless because it didn’t affect Jane’s substantial rights, and

15
the court otherwise acted within its considerable discretion under

C.R.C.P. 66. See, e.g., Wunder v. Dep’t of Revenue, 867 P.2d 178,

181 (Colo. App. 1993) (noting that error was harmless where party

wasn’t prejudiced by non-jurisdictional statutory violation).

IV. Statute of Limitations

A. Additional Facts

¶ 34 Jane’s midtrial motion to dismiss asserted that the McGraws’

claims for breach of fiduciary duty, conversion, civil theft, civil

conspiracy, and unjust enrichment were barred by the applicable

statutes of limitation. The court didn’t specifically rule on these

arguments during the trial or in its final order. Jane also argued

that the McGraws’ claims of interest in the parcels were barred by

the eighteen-year statute of limitations in section 38-41-101, C.R.S.

2024.

B. Preservation, Standard of Review, and Applicable Law

¶ 35 Jane contends that the court erred by not ruling in her favor

on various statutes of limitation defenses that she raised. The

McGraws and Michael assert that these arguments weren’t properly

preserved.

16
¶ 36 The applicability of a statute of limitations is a question of law

that we review de novo. Gunderson v. Weidner Holdings, LLC, 2019

COA 186, ¶ 9.

¶ 37 Section 38-41-101(1) states that “[n]o person shall commence

or maintain an action for the recovery of the title or possession or to

enforce or establish any right or interest of or to real property . . .

unless commenced within eighteen years after the right to bring

such action . . . has first accrued.”

C. Analysis

¶ 38 Jane concedes that the court didn’t rule on her statute of

limitations arguments as they pertained to the McGraws’ claims for

breach of fiduciary duty, conversion, civil theft, civil conspiracy, and

unjust enrichment. Accordingly, we decline to address these

arguments because they are inadequately preserved. See Brown v.

Am. Standard Ins. Co. of Wis., 2019 COA 11, ¶ 21 (issues not raised

in or decided by the trial court generally will not be addressed for

the first time on appeal).

¶ 39 The court also didn’t address Jane’s argument that section

38-41-101(1) barred the McGraws’ ability to assert a claim of

interest in Parcel 1; thus, this argument also wasn’t preserved.

17
Nonetheless, because we review de novo whether a statute of

limitations applies in a particular case, we exercise our discretion to

address this argument and conclude that the court didn’t err

because section 38-41-101(1) “addresses only the time within which

to act to prevent another from obtaining title to property by adverse

possession.” Martinez v. Archuleta-Padia, 143 P.3d 1112, 1114

(Colo. App. 2006). Because there was no question of adverse

possession at issue in this case, section 38-41-101(1) doesn’t apply.

V. The Court Erred in Determining the Parcels’ Ownership

¶ 40 Jane and the McGraws each challenge the district court’s

ownership determinations. Jane contends the court erred by

determining that the LFRC owns Parcel 1, and the McGraws

contend the court erred by determining that Jane owns Parcels 4

and 6. We agree the court erred in its determination of each

parcel’s ownership.

A. Additional Facts

¶ 41 The court made the following findings with respect to the

parcels:

• Parcel 1 was transferred from the LFRC to Jane in 1994

and she remained the record owner of that parcel.

18
• Parcels 4 and 6 are titled in Jane’s name and were never

titled in the name of the LFRC.

• Parcel 1’s ownership was an issue in a prior dissolution

of marriage proceeding (divorce case) involving Jane.

• In 2005, after a multi-day hearing, the court in the

divorce case ruled that Parcel 1 was titled in Jane’s name

but held in trust for the LFRC as an asset protection

strategy.

• The court in the divorce case also ruled that Parcels 4

and 6 were Jane’s separate property and were not held in

constructive trust for the LFRC.

• After a remand from a division of this court, the divorce

court entered an order confirming that Parcels 1, 4,

and 6 were Jane’s separate property.

• A 2014 order from a division of this court affirmed the

divorce court’s findings that Parcels 1, 4, and 6 were

Jane’s separate property and that Jane held Parcel 1 in

constructive trust for the LFRC.

¶ 42 Relying on the findings and orders from Jane’s divorce case,

the district court determined that Jane held Parcel 1 in constructive

19
trust for the benefit of the LFRC and that she owned Parcels 4 and

6 as her “sole and separate property.”

B. Standard of Review

¶ 43 We review a trial court’s factual findings for clear error.

Owens, ¶ 39. A factual finding is clearly erroneous if there is no

support for it in the record. In re Marriage of Pawelec, 2024 COA

107, ¶ 55. But an error is only reversible if it affects the substantial

rights of the parties. Id. at ¶ 56.

¶ 44 While we defer to the court’s factual findings when supported

by the record, we review de novo its legal determinations. McMullin

v. Hauer, 2018 CO 57, ¶ 13. The determination of legal ownership

of property is a legal conclusion. See In re Marriage of Capparelli,

2024 COA 103M, ¶ 8.

C. Analysis

1. The Court’s Ownership Determinations as to Parcel 1 Were
Erroneous

¶ 45 As an initial matter, Jane contends that the court improperly

determined title to Parcel 1 without all interested parties being

named. We decline to address this unpreserved and

underdeveloped issue.

20
¶ 46 Jane’s opening brief doesn’t identify the interested parties she

asserts should have been named in the case or what interests she

asserts those parties have in the property. Despite this, she makes

the conclusory assertion that it was “inappropriate” for the district

court to “determine ownership of Parcel 1 without the involvement

and inclusion of those parties.” Instead of directing us to portions

of the record demonstrating that she sufficiently raised this issue in

the district court such that it had an adequate opportunity to

consider it, she merely directs us to a portion of a proposed order

she submitted to the court. And she fails to identify in the record

where the court addressed this contention. Accordingly, we

conclude this issue is neither adequately preserved nor adequately

briefed, and we decline to address it. See Brown, ¶ 21; see also

Taylor v. Taylor, 2016 COA 100, ¶ 13 (declining to address an

underdeveloped argument); Brighton Sch. Dist. 27J v. Transamerica

Premier Ins. Co., 923 P.2d 328, 335 (Colo. App. 1996) (“[I]t is not the

duty of the reviewing court to search the record for evidence to

support bald assertions.”), aff’d, 940 P.2d 348 (Colo. 1997).

21
a. Neither Issue Preclusion Nor Judicial Estoppel Prohibited
Jane’s Ownership Claim as to Parcel 1

¶ 47 Michael asserts that the doctrine of issue preclusion prevents

Jane from arguing in this case that Parcel 1 is her property when

she previously argued in the divorce case that she held Parcel 1 in

constructive trust for the LFRC. The McGraws assert that we

should apply the doctrine of judicial estoppel to reject Jane’s claim

that she didn’t hold Parcel 1 in constructive trust for the same

reason. We address and reject both arguments.

i. Issue Preclusion

¶ 48 The doctrine of issue preclusion “bars relitigation of issues

necessary to the outcome of a prior action,” and it may be invoked

offensively or defensively. Vanderpool v. Loftness, 2012 COA 115,

¶¶ 10-11. A plaintiff invokes issue preclusion offensively when they

seek to prevent a defendant from relitigating an issue that the

plaintiff must prove and that the defendant previously litigated

unsuccessfully. Id. at ¶ 11.

¶ 49 A party invoking issue preclusion must show that (1) the issue

sought to be precluded is identical to an issue that was actually

and necessarily determined in the prior proceeding; (2) the party

22
against whom estoppel is asserted was a party to, or is in privity

with a party to, the prior proceeding; (3) there was a final judgment

on the merits in the prior proceeding; and (4) the party against

whom issue preclusion is asserted had a full and fair opportunity to

litigate the issue in the prior proceeding. Id. at ¶ 17. If the prior

proceeding’s purposes and procedures are significantly different

than those in the current proceeding, the fourth element isn’t

satisfied. Byrd v. People, 58 P.3d 50, 55 (Colo. 2002).

¶ 50 Finally, a party entitled to assert issue preclusion may waive

it. Vanderpool, ¶ 15. Whether issue preclusion has been waived is

a discretionary determination for the court after consideration of

the circumstances of the current and prior cases, the timing of the

assertion that issue preclusion applies, and the fairness to the

party sought to be estopped. Id. at ¶ 19.

¶ 51 Michael concedes that he didn’t argue in the district court that

Jane was estopped by issue preclusion from asserting that she

owned Parcel 1 outright. Thus, he has arguably waived the right to

assert issue preclusion against Jane on appeal. But even if Michael

didn’t waive this argument, we conclude that issue preclusion

doesn’t apply for two reasons.

23
¶ 52 First, Michael is asserting issue preclusion offensively to

prevent Jane from relitigating the issue of Parcel 1’s ownership,

which he asserts was conclusively determined in the divorce case.

But he acknowledges that offensive issue preclusion doesn’t

“precisely” apply in this case because in her divorce case, Jane

successfully argued that she holds Parcel 1 in trust for the LFRC.

See id. at ¶ 11 (offensive issue preclusion requires the defendant to

have previously litigated the position unsuccessfully).

¶ 53 Second, the fourth element of issue preclusion requires Jane

to have had a full and fair opportunity in the divorce case to litigate

the same issue in controversy here: whether she, or the LFRC,

owned Parcel 1. But the issue in the divorce case was whether

Parcel 1 was marital or separate property. Parcel 1 could have been

Jane’s separate property in the divorce case whether she owned it

outright or held it in constructive trust for the LFRC. Jane wouldn’t

have been motivated to distinguish between those two ownership

statuses in the divorce because the purpose of that proceeding was

significantly different than the purpose of this one.

¶ 54 Thus, we conclude Jane didn’t have a full and fair opportunity

in the divorce case to litigate the dispute concerning Parcel 1 that is

24
at issue in this case. Accordingly, Michael’s argument that issue

preclusion applies fails.

ii. Judicial Estoppel

¶ 55 We next turn to the McGraws’ assertion that Jane should be

judicially estopped from claiming she owns Parcel 1 instead of

simply holding it in constructive trust for the LFRC.

¶ 56 Judicial estoppel applies when “a party take[s] a position in a

proceeding that is totally inconsistent with a position [she]

successfully took in an earlier, related proceeding in an intentional

effort to mislead the court.” Arko v. People, 183 P.3d 555, 560

(Colo. 2008). The doctrine is intended to “prevent the use of

‘intentional self-contradiction . . . as a means of obtaining unfair

advantage in a forum provided for suitors seeking justice.’” Est. of

Burford v. Burford, 935 P.2d 943, 948 (Colo. 1997) (citation

omitted). At a minimum, judicial estoppel requires demonstration

that (1) the same party has taken two positions; (2) the party took

the differing positions in the same or related proceedings involving

the same parties or parties in privity with each other; (3) the party

was successful in maintaining the first position and received some

benefit in the first proceeding; (4) the party’s two positions are

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totally inconsistent with each other; and, (5) the party’s

inconsistency was part of an intentional effort to mislead the court.

Id.

¶ 57 Because the McGraws weren’t parties to Jane’s divorce or in

privity with her ex-husband, judicial estoppel is inapplicable. See

Arko, 183 P.3d at 560. Accordingly, Jane isn’t barred from

asserting an ownership claim to Parcel 1.

b. The Court Erred by Adopting the Divorce Court’s Property
Ownership Determinations as to Parcel 1

¶ 58 We next consider whether the court’s determination that Jane

held Parcel 1 in constructive trust for the LFRC is supported by the

record. We conclude the court erroneously determined that Jane

held Parcel 1 in trust for the LFRC because its determination was

based solely on its finding that Jane made certain judicial

admissions in the divorce case.

¶ 59 The court indicated that the basis for its ownership

determination was its review of the “extensive filings” in the divorce

case, including statements made by Jane’s former attorneys, which

the court considered to be judicial admissions. In the divorce case,

Jane’s attorney stated that “Jane has testified that she believes she

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holds these three parcels in constructive trust on behalf of the

[LFRC].”

¶ 60 Despite referencing Jane’s purported “judicial admissions,” the

court didn’t treat them as binding. See Sandstead-Corona v.

Sandstead, 2018 CO 26, ¶ 69 (“A judicial admission is a formal,

deliberate declaration which a party or [her] attorney makes in a

judicial proceeding for the purpose of dispensing with proof of

formal matters or of facts about which there is no real dispute.”

(quoting Kempter v. Hurd, 713 P.2d 1274, 1279 (Colo. 1986))).

Indeed, had the court treated Jane’s and her counsel’s statements

made in the divorce case as judicial admissions, the court should

have concluded that Jane held all three disputed parcels in

constructive trust for the LFRC, not just Parcel 1.

¶ 61 Rather, as best we can tell, the court appears to have reviewed

the records from the divorce case and treated the divorce court’s

parcel ownership determinations as judicially noticeable facts upon

which it could base its parcel ownership determinations in this

case. Specifically, the court noted that

the record shows prior acknowledgements and
admissions that the . . . disputed parcels are
being held in trust for the benefit of the

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corporation. Ultimately, however, my review of
Judge Bromley’s February 3, 2005 Order
states that only Parcel 1 is held constructively
as part of LFRC. . . . [T]he ultimate Order from
the divorce case appears to be that only Parcel
1 was held constructively for LFRC. . . . My
order on the disputed parcels[’] ownership is
as follows – Parcel 1 is held in constructive
trust by Jane for the benefit of LFRC.

But a court can’t take judicial notice of disputed facts. See CRE

201(b); Mun. Subdistrict, N. Colo. Water Conservancy Dist. v. OXY

USA, Inc., 990 P.2d 701, 711 (Colo. 1999) (“[A] court may not take

judicial notice of facts on the very issue the parties are litigating.”).

¶ 62 Moreover, Jane presented evidence that could support the

conclusion that Parcel 1 was her property. For example, Jane said

she paid the LFRC $110,000 for Parcel 1, executed a conservation

easement agreement for Parcel 1 that required her to demonstrate

ownership of that parcel, and listed Parcel 1 for sale multiple times

over the years. But instead of considering the merits of Jane’s

argument based on this and other evidence, which, if believed,

could have supported Jane’s claim that she owned Parcel 1

outright, the court merely adopted the divorce court’s findings.

This was error. And the error wasn’t harmless because it affected

Jane’s substantial rights by denying her the opportunity to have the

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court thoroughly consider the evidence supporting her claim that

Parcel 1 was her sole legal property. See In re Estate of Fritzler,

2017 COA 4, ¶ 7.

2. The Court Erred by Adopting the Divorce Court’s Property
Ownership Determinations as to Parcels 4 and 6

¶ 63 As with Parcel 1, the court appears to have determined the

ownership of Parcels 4 and 6 by judicially noticing the findings in

Jane’s divorce case. Reciting from the same order it used to

determine Parcel 1’s ownership, the court found that

[P]arcels 4 and 6 were not part of [the] LFRC
and Judge Bromley ultimately rejected the
constructive trust arguments related to
[P]arcels 4 and 6 . . . . While [Jane’s] judicial
admissions may be binding, . . . the ultimate
Order from the divorce case appears to be that
only Parcel 1 was held constructively for [the]
LFRC.

¶ 64 The court then concluded — based on the ownership

determinations the divorce court made — that Parcels 4 and 6

belonged to Jane as her “sole and separate property.”

¶ 65 In addition to the prohibition on a court’s ability to judicially

notice disputed facts, see OXY USA, Inc., 990 P.2d at 711, because

the McGraws weren’t parties to Jane’s divorce proceedings, they

aren’t bound by the divorce court’s determination of the ownership

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of Parcels 4 and 6. Kowalchik v. Brohl, 2012 COA 49, ¶ 6

(“Generally, due process limits the binding effect of judgments to

persons who are parties to the action.”). And by taking judicial

notice of the divorce court’s findings and adopting those findings as

its own, the court denied the McGraws their opportunity to have a

court determine whether Parcels 4 and 6 belonged to Jane or the

LFRC on the merits of the competent evidence presented in this

case.

¶ 66 Accordingly, we reverse the court’s order determining

ownership to Parcels 1, 4, and 6 and remand to the district court

for a determination of ownership with respect to those parcels.

VI. The Court Didn’t Err by Declining to Award to Jane
Reimbursement for Expenses

¶ 67 Jane also contends that the court erred by finding that she

wasn’t entitled to reimbursements or offsets for expenditures she

made related to the LFRC. We aren’t persuaded.

A. Additional Facts

¶ 68 At an October 2020 pretrial conference, Jane told the court

that she would be seeking reimbursement for expenses she had

incurred over the years from protecting and maintaining the LFRC

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and its assets. The court ordered Jane to provide the receiver with

her receipts and documentation for those expenses.

¶ 69 Following trial, the court determined that none of the parties

had provided sufficient verification of what work was completed, by

whom, and for what purpose, nor had they provided sufficient

information about whether the work benefited the LFRC and, if so,

at what value. The court therefore denied all parties’ requests for

reimbursement of costs pursuant to its “inherent equitable

authority.”

B. Standard of Review and Applicable Law

¶ 70 “The purpose of a court sitting in equity is to promote and

achieve justice with some degree of flexibility, according to the

particular circumstances of each case.” Beren v. Beren, 2015 CO

29, ¶ 18. A court’s exercise of its inherent equitable powers allows

it to “account for the unique circumstances of a particular

proceeding and to ensure that parties are treated fairly.” Id.

¶ 71 A court’s factual findings — which we review for clear error —

are only erroneous if they have no support in the record. Pawelec,

¶ 55. “We ‘may not reweigh evidence or substitute [our] judgment

for that of the trial court.’” Owens, ¶ 22 (quoting Target Corp. v.

31
Prestige Maint. USA, Ltd., 2013 COA 12, ¶ 24). This is especially so

where the evidence is conflicting. See Est. of Breeden v. Gelfond, 87

P.3d 167, 172 (Colo. App. 2003).

C. Analysis

¶ 72 The record supports the court’s findings. Although Jane

testified that she incurred expenses, she also testified that she

could only estimate the expenses she had paid on behalf of the

LFRC. Michael testified that he had paid substantial expenses and

contradicted Jane’s testimony regarding certain payments and

agreements related to expenses. Michael further stated that he

wasn’t aware of many of the LFRC-related expenses for which Jane

was requesting reimbursement until litigation began. And despite

Jane being ordered to provide documentation to the receiver, the

receiver highlighted multiple examples of Jane’s uncooperativeness

in providing the documentation for her expenses.

¶ 73 Where, as here, there was conflicting evidence, it was up to the

court to resolve those conflicts. In re Estate of Ramstetter, 2016

COA 81, ¶ 52. And because the court’s findings are supported by

the record, we won’t disturb them. Id.

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VII. Disposition

¶ 74 The portion of the district court’s order determining the

ownership of Parcels 1, 4, and 6 is reversed, and the case is

remanded for the court to redetermine ownership of those parcels

after making its own findings of fact. The order is otherwise

affirmed.

JUDGE WELLING and JUDGE BROWN concur.

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