English v. Thorpe

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
April 16, 2026

2026COA29

No. 25CA0687, English v. Thorpe — Civil Procedure —
Amended and Supplemental Pleadings — Amendments by Leave
of the Court — Dismissal of Actions

After the filing of a responsive pleading, C.R.C.P. 15(a) permits

a party to amend their pleading “by leave of court” and dictates that

“leave shall be freely given when justice so requires.” By contrast,

C.R.C.P. 41 addresses the dismissal of an action against a party.

No rule or reported Colorado appellate case has yet addressed

which rule applies when a party seeks to amend their pleading by

dismissing some, but not all, of the claims it brought against a

defending party.

For the first time in a published Colorado opinion, a division of

the court of appeals addresses this question. The division

concludes that Rule 15, rather than Rule 41, controls when a
motion to amend a pleading proposes to dismiss some, but not all,

claims asserted against a defending party.
COLORADO COURT OF APPEALS 2026COA29

Court of Appeals No. 25CA0687
Montrose County District Court No. 22CV30100
Honorable D. Cory Jackson, Judge

Danny English and Dean English,

Plaintiffs-Appellees,

v.

Shirley J. Thorpe,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE SCHUTZ
Freyre and Brown, JJ., concur

Announced April 16, 2026

Brian Kidnay, P.C., Brian Kidnay, Montrose, Colorado, for Plaintiffs-Appellees

Wegener Lane & Evans, P.C., Benjamin Wegener, Grand Junction, Colorado,
for Defendant-Appellant
¶1 This appeal arises from a dispute between Shirley J. Thorpe

and the estate of Joseph English. The estate, through co-personal

representatives Dean English and Daniel “Danny” English, brought

claims against Thorpe for unjust enrichment and conversion related

to a home that Joseph and Thorpe jointly occupied.1 Dean and

Danny are Joseph’s sons.

¶2 Several months into the litigation, Thorpe moved to amend her

answer and counterclaims to dismiss her counterclaims for entry of

a declaration that a business partnership existed between her and

Joseph and for winding up that partnership. The district court

denied her motion, and the case proceeded to trial. The district

court found that a partnership existed, awarded the estate

monetary damages for Joseph’s interest in the partnership, and,

alternatively, awarded the estate damages on its unjust enrichment

claim.

¶3 Thorpe now appeals the district court’s ruling precluding her

from amending her answer and counterclaims, its conclusion that a

1 Because there are multiple parties involved in this case with the

shared surname of English, we refer to Joseph English, his brother,
and his sons by their first names. We intend no disrespect by doing
so.

1
partnership existed, and its damage awards to the estate. We

reverse the judgment and remand the case to the district court for

further proceedings.

I. Background

¶4 Thorpe and Joseph were in a romantic relationship for almost

twenty-five years, which ended with Joseph’s death in 2022. For

the first several years of their relationship, the couple lived in a

ranch house that Thorpe owned, which was located on

approximately forty-three acres of property. In 2009, Thorpe

subdivided two three-acre parcels, Lot 1 and Lot 2, from her original

tract. Thorpe and Joseph built a new house on Lot 1. The parties

agreed that Thorpe would provide the land and Joseph would

provide the funds for construction of the house.

¶5 Joseph’s brother, Alvin English, built the home for Joseph and

Thorpe. Alvin testified that Joseph paid him to construct the

house. Thorpe and Joseph obtained a joint loan, secured by Lot 1,

to finance the home’s construction. Thorpe and Joseph first owned

Lot 1 as tenants in common but changed the ownership to joint

tenancy in 2011. Until his death, Joseph paid the sums due on the

2
mortgage. In addition to contributing the land, Thorpe paid the

utility bills, taxes, and insurance.

¶6 Thorpe and Joseph maintained their own bank accounts and,

except for Lot 1, kept their property in their individual names. They

did not own any businesses together. If the couple memorialized

any arrangement regarding the ownership of Lot 1 other than the

deed in joint tenancy, the document was not produced or admitted

into evidence. During their relationship, neither party paid the

other rent, and they used Lot 1 for no economic purpose other than

their home.

¶7 Joseph eventually purchased Lot 2 from Thorpe and gifted it to

Danny and Danny’s wife. By then, Thorpe’s original forty-three acre

parcel had been divided into three distinct parcels: Thorpe and

Joseph owned Lot 1 as joint tenants with rights of survivorship;

Danny and his wife owned Lot 2; and Thorpe solely owned the

remaining thirty-seven acres of land that included the ranch house.

¶8 Joseph’s will includes a provision addressing Lot 1 as follows:

I give and devise my interest in this real
property in equal shares to Dean English, by
representation, and Daniel English. If Daniel
English shall predecease me and he is still
married to Sherry English at his death, Sherry

3
English shall receive his share. If this property
is titled in joint tenancy at the time of my
death with Shirley Thorpe, this joint tenancy is
subject to the agreement between me and
Shirley Thorpe to equally contribute to the
construction and maintenance of this property.
Shirley Thorpe, in violation of our agreement,
has not equally contributed to this property.
My personal representative, at their discretion,
is authorized to bring the appropriate action
for reimbursement owing to me by Shirley
Thorpe, which I estimate to be $300,000.

¶9 After Joseph’s death, Danny and Dean approached Thorpe

about Lot 1. The sons wanted Thorpe to convey to each of them a

25% interest in half of Lot 1 and provide them with a right to

purchase the other half. Thorpe declined their offer.

¶ 10 Danny and Dean, as co-personal representatives of Joseph’s

estate, then sued Thorpe for unjust enrichment and conversion,

claiming that the estate was entitled to the monetary value of

Joseph’s financial contributions to Lot 1. Thorpe’s first attorney

timely filed an answer and three counterclaims: (1) a declaration

that a partnership existed between Thorpe and Joseph regarding

Lot 1; (2) judicial winding up of the partnership; and (3) unjust

enrichment for payments Thorpe made to service, and ultimately

pay off, the loan on Lot 1 after Joseph’s death. The estate admitted

4
there was a partnership between Thorpe and Joseph, and the case

moved forward. Shortly thereafter, Thorpe’s first attorney filed a

motion for judicial supervision to wind up the alleged partnership,

premised on the claim that Thorpe and Joseph were business

partners.

¶ 11 Before the court ruled on the winding-up motion, however,

Thorpe hired a new attorney. Thorpe later sought to amend her

answer and counterclaims to drop the two partnership claims. In

support of the motion, Thorpe’s counsel stated that Thorpe did not

know about the partnership counterclaims her first attorney made

on her behalf and rejected the idea that there had ever been a

business partnership between her and Joseph. Thorpe filed her

motion to amend before any depositions had been conducted,

approximately two months before discovery closed, and three and a

half months prior to the then-scheduled trial date. The court

denied the motion.

¶ 12 Although Thorpe filed the motion to amend under C.R.C.P.

15(a), which is the mechanism for amending pleadings, the court

reasoned that because Thorpe was seeking to voluntarily dismiss

two of her counterclaims, the motion was governed by C.R.C.P.

5
41(a)(2), which concerns the voluntary dismissal of actions.

Applying that rule, the court determined that permitting Thorpe to

dismiss her counterclaims would alter the nature of the case and

lead to new discovery and additional delay and would therefore

prejudice the estate. Based on this finding, the court denied the

motion.

¶ 13 The matter proceeded to trial several months later. Even

though the estate had never filed a claim asserting that a

partnership existed, and Thorpe sought to abandon her

counterclaims to that effect, the court determined that (1) a

partnership existed between Thorpe and Joseph; (2) Thorpe was

required to pay the estate $472,990 for Joseph’s share of the

partnership; and (3) alternatively, Thorpe was required to pay the

estate $365,299.62 for Joseph’s contributions to Lot 1 pursuant to

the estate’s unjust enrichment claim.

¶ 14 Thorpe now appeals the district court’s denial of her motion to

amend, its determination that there was a partnership between her

and Joseph, and its damage awards to the estate.

6
II. Analysis

¶ 15 We first conclude that the district court erred by denying

Thorpe’s motion to amend. We then turn to the question of whether

the amendment should have released Thorpe from the binding effect

of her judicial admission regarding the existence of a partnership,

and, if so, whether the district court’s monetary judgments on the

partnership and unjust enrichment claims can be supported absent

the preclusive effect the court gave the judicial admission.

A. Thorpe’s Motion to Amend

1. Standard of Review and Applicable Law

¶ 16 A party may amend their pleading once as a matter of course

before a responsive pleading is filed. C.R.C.P. 15(a). If a responsive

pleading has been filed, a party may amend their pleading only by

leave of court or the written consent of the adverse party. Id. Rule

15(a) provides that “leave [to amend] shall be freely given when

justice so requires.” When considering a Rule 15(a) motion, “the

[district] court must assess the motion to amend in light of the

totality of the circumstances [and] balance the policy favoring the

amendments of pleadings against the burdens which granting the

7
amendment may impose on the other parties.” Polk v. Denv. Dist.

Ct., 849 P.2d 23, 26 (Colo. 1993).

¶ 17 “The rule prescribes a liberal policy of amendment and

encourages the courts to look favorably on requests to amend.”

Varner v. Dist. Ct., 618 P.2d 1388, 1390 (Colo. 1980). But the

district court retains discretion to grant or deny a motion to amend

a pleading. Polk, 849 P.2d at 25. Therefore, we review the denial of

a Rule 15(a) motion to amend for an abuse of discretion. Davis v.

GuideOne Mut. Ins. Co., 2012 COA 70M, ¶ 69. “A court abuses its

discretion where its decision rests on a misunderstanding or

misapplication of the law, or is manifestly arbitrary, unreasonable,

or unfair.” In re Estate of Shimizu, 2016 COA 163, ¶ 15 (citation

omitted).

¶ 18 In contrast, C.R.C.P. 41 addresses motions to dismiss an

action. Rule 41(a)(1) allows a party to dismiss an action against an

adverse party before any party has filed an answer or motion for

summary judgment by filing a notice of dismissal and paying all

costs or by filing a stipulation for dismissal signed by all parties

who appeared in the action. Rule 41(a)(2) governs dismissal of an

action after an answer or motion for summary judgment is filed. It

8
says, “Except as provided in subsection (a)(1) . . . , an action shall

not be dismissed at the plaintiff’s instance save upon order of the

court and upon such terms and conditions as the court deems

proper.” We review the district court’s ruling on a motion to

dismiss under C.R.C.P. 41(a)(2) for an abuse of discretion. In re

Water Rts. of Hines Highlands Ltd. P’ship, 929 P.2d 718, 728 (Colo.

1996).

¶ 19 The parties do not cite, and we are not aware of, any Colorado

authority addressing whether C.R.C.P. 15(a) or C.R.C.P. 41(a)

controls when a party seeks to amend a pleading by dismissing

some, but not all, of that party’s previously asserted claims against

a party.

¶ 20 We review de novo the district court’s interpretation of the

rules of civil procedure. Garcia v. Schneider Energy Servs., Inc.,

2012 CO 62, ¶ 7. We interpret rules of procedure according to their

“commonly understood and accepted meaning[s],” relying as

necessary on “various interpretational aids, including the federal

9
rules and federal precedent interpreting federal rules.” Id. (quoting

Leaffer v. Zarlengo, 44 P.3d 1072, 1078 (Colo. 2002)).2

2. Analysis

¶ 21 The district court’s order did not cite any case law or legal

authority other than the two rules in question. The order reads, in

relevant part as follows:

[Thorpe] seeks to dismiss two counterclaims by
way of amendment pursuant to [C.R.C.P.] 15.
The asserted basis for the request is the
substitution of counsel and renewed
investigation into the facts and merits of the
claims.

As a threshold matter, simple dismissal of
claims should proceed pursuant to [C.R.CP.]
41. The parties disagree about the real
difference in the semantic distinction between
the two rules. But what appears significant is
that amendment is sought to significantly
change the nature of the case. [Thorpe] wants
to abandon the position that there was a
formal partnership between her and [Joseph].

The [estate] argue[s] that [it] will be prejudiced
because the parties have answered each[ ]
other’s claims and . . . they have adopted
Thorpe’s prior partnership position and seek to

2 Although there are structural differences in the organization of

C.R.C.P. 15 and 41 and the parallel provisions of Fed. R. Civ. Pro.
15 and 41, those differences in the portions of the rules that we
cite — and the related state and federal cases we discuss — are not
material to our analysis.

10
incorporate it. The [estate is] also concerned
about amendment late into the development of
the case.

Discovery in this case was to be served before
the motion was ripe, and the depositions
completed. Trial has recently been continued.
To require a party to maintain claims they
want to dismiss or abandon is inefficient. But
leave to amend now would significantly alter
the nature of this case and may lead to a need
for new discovery, additional delay, and will
have wasted [previous] efforts to prosecute this
case. These issues will prejudice [the estate].

Because of the broad likely impact of the
amendment of this case, the motion to amend
is denied.

¶ 22 As both parties conceded at oral argument, no reported

Colorado decision directly addresses this issue. In its answer brief,

the estate argues that the district court correctly denied Thorpe’s

motion pursuant to C.R.C.P. 41(a)(2). In support of that contention,

the estate cites C.R.C.P. 41(c), asserting that it “makes clear that

‘counterclaims’ and ‘claims’ are treated the same under [C.R.C.P.

41].” Thus, the estate argues, the district court correctly applied

C.R.C.P. 41(a)(2) when denying Thorpe’s motion to dismiss the two

partnership claims. Indeed, despite the arguments Thorpe

presented under C.R.C.P. 15(a) in the district court and on appeal,

11
the estate’s appellate brief makes no argument that the district

court’s denial of Thorpe’s motion was appropriate under C.R.C.P.

15(a).

¶ 23 C.R.C.P. 41 applies to the dismissal of an action — that is,

when a party seeks to dismiss all claims against another party. See

Berthold Types Ltd. v. Adobe Sys. Inc., 242 F.3d 772, 777 (7th Cir.

2001) (“Rule 41(a)(1)(i) does not speak of dismissing one claim in a

suit; it speaks of dismissing ‘an action’ — which is to say, the whole

case.”). Nevertheless, at oral argument — after conceding the

C.R.C.P. 41 generally applies to the dismissal of an action rather

than the dismissal of claims — the estate’s counsel argued that

C.R.C.P. 41(c) distinguishes between claims and counterclaims,

suggesting for the first time that counterclaims should be treated

differently than claims under Rule 41 .

¶ 24 But the estate did not develop that argument, and we find no

support for it under Rule 41(c), which provides as follows:

The provisions of this Rule apply to the
dismissal of any counterclaim, cross claim, or
third-party claim. A voluntary dismissal by
the claimant alone pursuant to subsection
(a)(1) of this Rule shall be made before a
responsive pleading is filed or served or, if

12
there is none, before the introduction of
evidence at the trial or hearing.

¶ 25 Although we recognize that this paragraph refers to the

“dismissal of any counterclaim,” we understand it to mean that a

counterclaim is to be treated the same as a claim for purposes of

Rule 41. There is no principled reason to treat claims and

counterclaims differently under Rule 41. Equally important, the

estate’s undeveloped assertion is directly contrary to its prior

appellate argument that claims and counterclaims are treated the

same under Rule 41.

¶ 26 Given the lack of Colorado case law addressing whether Rule

15(a) or Rule 41(a)(2) controls a motion to dismiss under the

scenario presented in this case, we turn to the federal courts for

guidance. See Garcia, ¶ 7. Generally, federal courts have

concluded that Fed. R. Civ. P. 41 governs the dismissal of an action

asserted against a party, while Fed. R. Civ. P. 15 governs the

dismissal of some, but not all, claims asserted against a party.

¶ 27 The decision of the United States District Court for the District

of Kansas in Campbell v. Hoffman, 151 F.R.D. 682 (D. Kan. 1993),

13
is instructive on the two rules and the distinction between actions

and claims:

Rule 41(a)(2) refers to dismissal of “an action”
as opposed to an individual claim or claims.
The language of Rules 41(a)(1), 41(b), and 41(d)
refer[s] to both actions and claims, indicating
that the drafters of Rule 41 drew a distinction
between those two terms and intended them to
have different meanings. Thus, while the
Tenth Circuit apparently has not addressed
the question, the court concludes that Rule
41(a)(2) authorizes a plaintiff to dismiss
voluntarily an “action,” but does not apply
when a plaintiff seeks to dismiss some, but not
all, of his or her claims. A motion to eliminate
certain claims from a multi-count complaint
should be made in a motion to amend under
Rule 15.

Id. at 684 (footnotes and citations omitted); see also LaserCycle

USA, Inc. v. Balcourt, Civ. A. No. 11-cv-01995, 2011 WL 5331675, at

*1 (D. Colo. Nov. 3, 2011) (unpublished order) (“Although there is no

controlling decision of the Tenth Circuit, the weight of authority

from other circuits is that Rule 41(a) governs dismissal of all claims

against a defendant and does not allow for piecemeal dismissals.”);

Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 688

(9th Cir. 2005) (“Federal Rule of Civil Procedure 15(a) is the

appropriate mechanism ‘[w]here a plaintiff desires to eliminate an

14
issue, or one or more but less than all of several claims, but without

dismissing as to any of the defendants.’” (quoting Ethridge v. Harbor

House Rest., 861 F.2d 1389, 1392 (9th Cir. 1988))); Taylor v. Brown,

787 F.3d 851, 857 (7th Cir. 2015) (“Voluntary dismissal by court

order under Rule 41(a)(2) allows the plaintiff to dismiss ‘an action’

on ‘terms that the court considers proper.’ Although some courts

have held otherwise, we’ve said that Rule 41(a) ‘does not speak of

dismissing one claim in a suit; it speaks of dismissing “an

action” . . . .’” (first quoting Fed. R. Civ. P. 41(a)(2); and then

quoting Berthold, 242 F.3d at 777)). Finding these authorities

instructive, we return to the district court’s ruling on Thorpe’s

motion to amend.

¶ 28 Recall that Thorpe originally asserted three counterclaims

against the estate. The first counterclaim sought a declaratory

judgment that a partnership existed between Thorpe and Joseph;

the second sought her designation as the party in charge of winding

up the partnership; and the third was a claim for unjust

enrichment. In her motion to amend, Thorpe sought to drop both

15
partnership counterclaims. She still wished to pursue the unjust

enrichment counterclaim, however.3

¶ 29 Because Thorpe did not seek to dismiss all her counterclaims,

the district court applied the incorrect legal standard by treating

Thorpe’s Rule 15(a) motion to amend as a Rule 41(a)(2) motion to

dismiss and thus erred. This error was not harmless because — as

discussed more fully below — although similar, the factors applied

to evaluate a motion to amend a pleading under Rule 15(a) are more

favorable to the moving party than those applicable to a motion to

dismiss an action under Rule 41(a)(2).

¶ 30 When a district court is evaluating a Rule 15(a) motion, the

rule requires that leave to amend must be “freely given” absent

“undue delay, bad faith, . . . undue prejudice . . . , futility of

amendment, etc.” Varner, 618 P.2d at 1390 (first quoting C.R.C.P.

15(a); and then quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

The court’s order denying the motion to amend was grounded on its

finding that dismissal “would significantly alter the nature of this

case and may lead to a need for new discovery, additional delay,

3 Prior to trial, the parties stipulated to the dismissal of Thorpe’s

unjust enrichment counterclaim.

16
and will have wasted previous efforts to prosecute this case.” We

are not persuaded that, under the facts of this case, these reasons

were sufficient to deny the motion under Rule 15(a).

¶ 31 Of course, dismissal of Thorpe’s partnership counterclaims

would have impacted the procedural posture of the case because

Thorpe would no longer have been asserting the existence of a

partnership. But any prejudice associated with that procedural

change could have been readily and efficiently remedied by allowing

the estate to assert partnership claims against Thorpe. And if the

estate decided to assert the existence of a partnership, then its prior

litigation expenses would not have been wasted.

¶ 32 True, permitting the amendment may have necessitated

additional discovery. But importantly, at the time Thorpe filed her

motion, discovery had not yet concluded, and although Thorpe’s

deposition was scheduled, it had not yet occurred. Moreover, the

trial was not set to start for three and a half months. And nearly

three months later, when the court finally resolved Thorpe’s motion

to amend, it also continued the trial for another four months.

Thus, there was sufficient time to allow for additional discovery, if

needed. And the court could have entered appropriate orders to

17
financially compensate the estate for any economic losses it would

have incurred due to the delay. See Eagle River Mobile Home Park,

Ltd. v. Dist. Ct., 647 P.2d 660, 663 (Colo. 1982) (“[E]ven where the

party attempting to amend his pleadings is guilty of delay in seeking

an amendment, it is preferable to allow the amendment subject to

any conditions necessary to avoid prejudice to the opposing

parties.”). In short, the court could have addressed and mitigated

any prejudice the delay and new procedural posture may have

created for the estate.

¶ 33 The court did not conclude that Thorpe filed her motion in bad

faith. And in her motion, Thorpe represented that she had not

known that her first counsel had asserted the partnership

counterclaims. As the court later acknowledged in its final

judgment, Thorpe is advanced in years and has health issues

requiring extensive care. These findings, along with the fact that

the estate did not initially assert a claim that there was a

partnership between Joseph and Thorpe, inferentially support a

conclusion that Thorpe was not acting in bad faith. The estate did

not offer contradictory facts.

18
¶ 34 Finally, even if we were to assume for the sake of argument,

that the court properly converted Thorpe’s motion to amend into a

motion under Rule 41(a)(2), such a motion “generally should be

granted unless a dismissal would result in legal prejudice” to the

other party. Sinclair Transp. Co. v. Sandberg, 2014 COA 75M, ¶ 29

(quoting Powers v. Pro. Rodeo Cowboys Ass’n, 832 P.2d 1099, 1102

(Colo. App. 1992)). For the reasons previously stated, we discern no

prejudice to the estate that could not have been ameliorated. So

even if it had been proper for the court to treat the Rule 15(a)

motion as a Rule 41(a)(2) motion, denial of the motion was not

warranted. See Powers, 832 P.2d at 1103 (factors to consider when

evaluating a filing to voluntarily dismiss all of a party’s claims

include prejudice to the nonmoving party, progression of the

litigation, adequacy of the moving party’s explanation of the reasons

for dismissal, delay in pursuing the dismissal, and undue vexation

on the part of the moving party).

¶ 35 Thus, the district court’s erroneous denial of Thorpe’s motion

to amend was not harmless and constituted an abuse of discretion.

See Shimizu, ¶ 15 (“A court abuses its discretion where its decision

rests on a misunderstanding or misapplication of the law . . . .”).

19
B. Determination of Partnership

¶ 36 The next question is whether the district court erred by

determining that there was a partnership between Thorpe and

Joseph. The court found that Thorpe’s counterclaim requesting

winding up of the partnership “was dispositive of the issues related

to [L]ot 1.” The court treated the counterclaim as a “judicial

admission” and primarily relied on it when concluding that a

partnership existed and when rejecting Thorpe’s statute of

limitations and joint tenancy defenses.

¶ 37 Thorpe argues that if she had been allowed to dismiss the

partnership counterclaim, it could no longer serve as a judicial

admission. Further, Thorpe contends that in the absence of a

binding judicial admission, there was insufficient evidence to

support the district court’s factual finding that a partnership

existed. We address these contentions in turn.

1. Standard of Review and Applicable Law

¶ 38 A partnership is “the association of two or more persons to

carry on, as co-owners, a business for profit.” § 7-60-106(1), C.R.S.

2025; see Yoder v. Hooper, 695 P.2d 1182, 1187 (Colo. App. 1984)

(A partnership may also be defined “as an express or implied

20
contract between two or more persons to place their money, skill,

effects, or labor into a business and to share the profits and

losses.”), aff’d, 737 P.2d 852 (Colo. 1987). “The existence of a

partnership is a question of fact to be determined from direct

evidence and the inferences that can properly be drawn from that

evidence, but the question whether the evidence establishes a

partnership is one of law.” Reid v. Pyle, 51 P.3d 1064, 1067 (Colo.

App. 2002) (citing Blocker Expl. Co. v. Frontier Expl., Inc., 740 P.2d

983 (Colo. 1987)).

¶ 39 “We review findings of fact for clear error, meaning that we

won’t disturb such findings if there is any evidence in the record

supporting them.” Woodbridge Condo. Ass’n v. Lo Viento Blanco,

LLC, 2020 COA 34, ¶ 24, aff’d, 2021 CO 56. We review a district

court’s legal rulings de novo. Garcia, ¶ 7.

¶ 40 “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 there is no real dispute.” Kempter v. Hurd, 713 P.2d 1274,

1279 (Colo. 1986). Judicial admissions are binding on the party

who makes them, are evidence against such party, and may

21
constitute the basis of a verdict. Nw. Nat’l Cas. Co. v. State, 682

P.2d 486, 489 (Colo. App. 1983).

2. The Impact of a Judicial Admission in a Withdrawn Pleading

¶ 41 As we concluded above, the district court erred by denying

Thorpe’s motion to amend her answer and counterclaims. So we

must now consider whether Thorpe’s prior judicial admission would

have had any impact — legally or factually — had the court

permitted the amendment. If, despite the counterclaim’s

withdrawal, the original allegation could have been treated as a

judicial admission, it was — as the district court noted —

dispositive. On the other hand, if the withdrawn allegation was not

binding, the other evidence may not have been sufficient to support

the existence of a partnership. So the status of the prior judicial

admission is important to the disposition on appeal. There is no

recent Colorado case law on this point.

¶ 42 Although dated, the supreme court’s decision in Bowers v.

Cannon, 116 P. 336 (Colo. 1911), is instructive. There, the court

stated that admissions “made in a verified pleading, and afterwards

omitted from the pleading as amended, though not conclusive

against the party making them, are, nevertheless, admissible as

22
evidence in the case and may be considered by the court.” Id. at

338. This statement suggests that an admission made in a

subsequently withdrawn pleading should be treated as an

evidentiary admission, not as a judicial admission. See id.; see also

Georgia-Pacific, LLC v. Fields, 748 S.E.2d 407, 410-11 (Ga. 2013)

(concluding that if a pleading is withdrawn or amended, a judicial

admission contained within it can be tendered as evidence and

considered by the fact finder, although it no longer has the binding

effect of a judicial admission).

¶ 43 Thus, we conclude that an admission made in a pleading that

is subsequently withdrawn by amendment is no longer a judicial

admission, but can still be considered as an evidentiary admission.

See Gibbs v. Herman, 714 A.2d 432, 437 (Pa. Super. Ct. 1978)

(“Judicial admissions are conclusive, whereas evidentiary

admissions may always be contradicted or explained.” (quoting

Duquesne Light Co. v. Woodland Hills Sch. Dist., 700 A.2d 1038,

1054 (Pa. Commw. Ct. 1997))).

¶ 44 This rule strikes an appropriate balance between holding

litigants responsible for their representatives’ allegations and

facilitating the pursuit of truth over rigidly binding a party to an

23
allegation or claim that has since been dismissed. After all, the

evidence may establish that a subsequently withdrawn judicial

admission resulted from an error of counsel or the client. On the

other hand, the evidence may establish that the client created or

knowingly agreed to the original allegation, giving the evidentiary

admission more weight. Thus, the ultimate impact of the now-

withdrawn admission should be resolved as a matter of fact rather

than law.

3. Remaining Factual Evidence of a Partnership

¶ 45 In light of the district court’s erroneous denial of the motion to

amend and its corresponding treatment of the partnership

counterclaims as a judicial admission, we must consider whether

the remaining evidence was sufficient to find that a partnership had

been proved. We conclude that it was not.

¶ 46 The district court’s order of judgment states that, “[i]n addition

to the admissions entered before trial, the evidence presented at the

hearing proves that [Joseph] and [Thorpe] intended to engage in a

partnership. The nature of their tenancy in Lot 1 does not show a

contrary intent and does not defeat the partnership claim.”

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¶ 47 But these findings amplify the problems created by the district

court’s error in denying the motion to amend and treating Thorpe’s

partnership counterclaims as a judicial admission. If the court had

allowed Thorpe’s amendment dismissing the partnership

counterclaims, there would have been no judicial admission. And

the potential weight of any evidentiary admission cannot be

assessed based on the current record. Moreover, the estate would

have had to file an amended complaint asserting the existence of a

partnership. This would have dramatically impacted the legal and

procedural burdens applicable to any partnership claims. The

estate would have been required to come forward with affirmative

evidence establishing the existence of a partnership. And the estate

would have borne the burden of proving the alleged partnership by

a preponderance of the evidence. And, of course, Thorpe would

have been permitted to deny the existence of a partnership and fully

challenge any evidence that a partnership existed.

¶ 48 Finally, to the extent the estate argues that the existing

evidence was sufficient to establish the existence of a partnership

independent of a binding judicial admission, we are not persuaded.

We acknowledge that Danny and Dean testified about various

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expenditures Joseph made in the construction of the house and

related improvements on Lot 1. But they provided no testimony

that a partnership existed or evidence to suggest that Joseph and

Thorpe were carrying on a business for profit.

¶ 49 We also acknowledge that Joseph’s will includes a statement

that he and Thorpe owned Lot 1 in joint tenancy subject to an

agreement to “equally contribute to the construction and

maintenance of this property.” The will also asserts that Thorpe

had not equally contributed to the property and authorized

Joseph’s personal representative to bring an action against Thorpe

for reimbursement of Thorpe’s allegedly unpaid contributions,

which were estimated at $300,000. But noticeably absent from the

will is any reference to the existence of a partnership or an

agreement between Joseph and Thorpe to operate Lot 1 as a

business and share the profits and losses.

¶ 50 In sum, the district court’s conclusion that a partnership

existed was driven by the binding effect it gave to Thorpe’s judicial

admission in the partnership counterclaims. The judicial

admission, which the court characterized as “clear” and

“dispositive,” was its North Star, not only as it related to the

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partnership claims but also Thorpe’s defenses thereto. Thus, we

cannot say that the evidence was sufficient to support these claims

in the absence of the erroneous conclusion that the judicial

admission was dispositive.

4. Unjust Enrichment Claim

¶ 51 Similarly, the record before us does not support the court’s

damage award on the unjust enrichment claim. The elements of a

claim for unjust enrichment are (1) the opposing party received a

benefit; (2) it was at the asserting party’s expense; and (3) it was

under circumstances that would make it unjust for the opposing

party to retain the benefit without paying the asserting party

commensurate compensation. Pulte Home Corp. v. Countryside

Cmty. Ass’n, 2016 CO 64, ¶ 63. “Unjust enrichment is a quasi-

contractual, equitable remedy designed to undo a benefit conferred

on one party at the unfair expense of another party.” Id.

¶ 52 In its order, the court did not analyze the evidence to assess

whether these elements had been proved. Instead, the court

summarily stated,

As found above, [Thorpe] and [Joseph] had an
agreement to develop the property at Lot 1.
They agreed that [Thorpe] would contribute the

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land, and [Joseph] would pay to have the home
and shop built. [Joseph’s] contribution was
$365,299.62. [Thorpe] is now the fee simple
owner of Lot 1 with its dwelling and thus
benefits, to [the] estate’s detriment, from
[Joseph’s] contribution.

As demonstrated by the first sentence of this paragraph, the court’s

assessment of the unjust enrichment claim was predicated on its

previous finding that an agreement existed between Joseph and

Thorpe to develop the property. That “agreement” was the

partnership agreement that the court found based on the outcome-

determinative effect it gave to the judicial admission. Thus, for the

same reasons we cannot affirm the court’s conclusion that a

partnership existed, we cannot conclude that the evidence was

sufficient — absent the judicial admission — to support the court’s

unjust enrichment findings.

5. Conclusion

¶ 53 We reverse the judgment and remand for a new trial. On

remand, the court shall grant Thorpe’s motion to amend and permit

her to withdraw the partnership counterclaims. In its discretion,

the court may also permit the estate to amend its claims, if the

estate so desires, and allow the parties to conduct additional

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discovery. And the court may treat Thorpe’s prior judicial

admission as an evidentiary admission. Absent a negotiated

resolution of the dispute, the court shall conduct a new trial to

resolve the parties’ claims.

III. Disposition

¶ 54 We reverse the district court’s judgment and remand for

further proceedings consistent with this opinion.

JUDGE FREYRE and JUDGE BROWN concur.

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