Estate of Gebhardt

24CA0424 Estate of Gebhardt 03-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0424
Douglas County District Court No. 19PR30212
Honorable H. Clay Hurst, Judge

In re the Estate of Doris M. Gebhardt, deceased.

Carol S. Gebhardt,

Appellant,

v.

Linda Erickson,

Appellee.

ORDERS AFFIRMED IN PART
AND VACATED IN PART

Division I
Opinion by JUDGE YUN
J. Jones and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 20, 2025

Foster Graham Milstein & Calisher, LLP, Chip G. Schoneberger, Denver,
Colorado; Larry D. Harvey, P.C., Larry D. Harvey, Denver, Colorado, for
Appellant

Creer Law, LLC, Gregory R. Creer, Greenwood Village, Colorado, for Appellee
¶1 In this probate case, Carol S. Gebhardt (Gebhardt) appeals the

district court’s orders that (1) removed her as personal

representative of her mother’s estate; (2) found her in breach of her

fiduciary duty; (3) imposed a surcharge of $51,579.41 for payments

she made to herself and for her own legal fees; (4) held her in

contempt and ordered her to pay the surcharged amount within

sixty days; and (5) denied her motion for reconsideration under

C.R.C.P. 59. We vacate the contempt finding and remedial sanction

but affirm the orders in all other respects.

I. Background

¶2 In February 2019, Doris M. Gebhardt passed away at the age

of ninety. She was survived by three children: Gebhardt, Linda

Erickson (Erickson), and David Gebhardt (David) (collectively, the

heirs). Her will designated Gebhardt as personal representative and

directed that her property be placed in an existing trust with

Gebhardt as trustee. The trust estate consisted mainly of five

properties, which we will refer to as Lamar, Portland, Marion,

Catamount, and the Cabin. Excluding the Cabin, the trust directed

equal distribution of all assets to the heirs. The Cabin was to be

1
placed in a limited liability company and held in a separate trust,

with Gebhardt again as trustee, for the family’s use and enjoyment.

¶3 The heirs entered into a stipulation regarding the distribution

of property from the estate, which the court adopted as an order in

July 2021. The stipulation provided that David would receive

Lamar, valued at $824,000; Erickson would receive Portland,

valued at $781,000, plus a $43,000 equalization payment; and

Gebhardt would receive Marion, valued at $608,000, plus a

$216,000 equalization payment. It further provided that

Catamount would be sold for no less than $399,500, with Gebhardt

entitled to purchase it if she wished, and that the sale proceeds

would be the source of the equalization payments.

¶4 Gebhardt decided to purchase Catamount and took title to it

in December 2021. In February 2022, she paid the estate $50,333

for it. She later claimed that she had believed she owed $50,333

based on two offsets: $133,166 for her one-third interest in

Catamount, and her right to a $216,000 equalization payment

under the stipulation.

¶5 In August 2022, Erickson filed a petition to remove Gebhardt

as personal representative, alleging that she had breached her

2
fiduciary duties and violated the stipulation by purchasing

Catamount for less than $399,500. The court ordered the parties to

mediate the dispute, and the parties jointly retained a certified

public accountant (the CPA) to “review . . . the pertinent business

and financial data, and other documents relating to the estate.”

¶6 In December 2022, Erickson filed a motion to compel,

explaining that tens of thousands of dollars had been taken from

the estate’s bank account since the stipulation was approved and

that the CPA had requested copies of account statements, deposit

slips, and checks to understand how the money was spent or

distributed. The court granted the motion and ordered Gebhardt to

provide the CPA with all of the requested statements, deposit slips,

and checks, along with an explanation of each transaction.

Erickson subsequently filed two motions for contempt, alleging that

Gebhardt had not fully complied with the court’s order.

¶7 After a bench trial at which Gebhardt, Erickson, David, and

the CPA all testified, the court entered the following findings of fact

and conclusions of law:

• Gebhardt continued to collect rent for Portland after it

was transferred to Erickson and initially refused to

3
provide Erickson with the lease agreement or contact

information for the current renters.

• Instead of selling or purchasing Catamount pursuant to

the stipulation, Gebhardt continued to manage it as a

landlord from July to December 2021, during which time

she collected rent, paid herself for management duties as

part of the compensation she was charging the estate,

and had the estate pay for maintenance items and her

time traveling to and from the property. Although she

testified that she did not immediately sell or purchase

Catamount because she was busy opening the limited

liability company to hold the Cabin, the court did not find

her testimony credible.

• Gebhardt transferred Catamount to herself in December

2021 and paid the estate $50,333 for it in February

2022. In doing so, she “transferred estate property to

herself at a discounted amount for the sole benefit of

herself and to the detriment of” the other heirs.

• Gebhardt paid herself thousands of dollars a month in

compensation for the administration of the estate.

4
Although “there was some testimony regarding the work

she did,” she did not submit any task logs or other

reliable documentation as evidence of her work for the

estate.

• Many checks that were issued to Gebhardt for estate

expenses had no backup voucher information to support

the check or information as to what vendor was being

paid.

• Gebhardt failed to provide an accounting for rents

collected on the properties that she managed during her

appointment as personal representative, and the

amounts collected thus could not be verified.

• There was “clear evidence” that Gebhardt “breached her

fiduciary duty to the beneficiaries of the estate.”

• Gebhardt’s conduct “in not timely providing information

when requested or as ordered, withholding money of the

other [h]eirs, [and] benefiting from a transaction that was

in conflict with [c]ourt [o]rders and her duty as a

fiduciary” caused damage to the heirs and the estate.

5
¶8 Accordingly, the court removed Gebhardt as personal

representative. It ordered her to “complete the purchase of

[Catamount] for the remaining balance of the $399,500 within the

next 45 days” or, alternatively, to return the property to the estate

for sale to a third party. In addition, it surcharged her

(1) $40,517.18 for payments she made to herself that lacked

documentation showing if or how they were related to the estate;

(2) $11,062.23 for her own legal fees, as those services did not

benefit the estate; and (3) for Erickson’s costs and attorney fees, in

a reasonable amount to be determined later. Finally, the court

found that Gebhardt was in contempt and, “[a]s a remedial [o]rder,”

it ordered her to pay the surcharged amounts within sixty days.

¶9 Gebhardt requested an extension of time to file a motion for

reconsideration, which the court denied in part. She then filed a

motion for reconsideration, and the court denied it.

II. Analysis

¶ 10 Gebhardt contends that the district court erred by (1) denying

in part her extension request and denying her motion for

reconsideration; (2) ruling that the CPA could not provide expert

testimony but allowing him to testify as a lay witness and admitting

6
his report into evidence; (3) applying a presumption of fiduciary

breach; (4) surcharging her without adequate findings of loss to the

estate; and (5) finding that she was in contempt without following

the proper procedure. We address each contention in turn.

A. Partial Denial of Extension Request and Denial of Motion for
Reconsideration

¶ 11 Gebhardt contends that the district court erred by denying in

part her request for an extension of time to file a motion for

reconsideration and then denying her motion for reconsideration as

untimely. We agree.

1. Additional Background

¶ 12 Under C.R.C.P. 59(a), a party may move for post-trial relief

“[w]ithin 14 days of entry of judgment . . . or such greater time as

the court may allow pursuant to a request for an extension of time

made within that 14-day period.” The court entered judgment

against Gebhardt on September 29, 2023. Seven days later, on

October 6, 2023, Gebhardt filed a motion requesting an extension of

time to file a C.R.C.P. 59 motion for reconsideration. She explained

that she needed a trial transcript to prepare the motion for

reconsideration, and she attached an affidavit from counsel to that

7
effect. She asked the court to give her fourteen days from the time

she received the transcript to file the motion for reconsideration.

¶ 13 On December 1, 2023, Gebhardt received the transcript and

began preparing her motion for reconsideration. Then, on

December 11, 2023, the court denied in part her motion for an

extension of time (the December 11 order). It ordered that, if

Gebhardt had received the transcript, she must file it with the court

and indicate the date she received it. It then ordered that her

request for an extension of time

should be granted in-part but only up to and
including the date the transcript was issued to
Carol Gebhardt. . . . The date which the
transcript was issued will determine if a
[m]otion to [r]econsider has been timely filed
including the days prior to the [m]otion for [an
extension of time] and days that have elapsed
since the transcript was issued.

¶ 14 Gebhardt was served with this order on December 12, 2023,

and she filed the transcript and her motion for reconsideration the

next day. On January 30, 2024, the court denied the motion for

reconsideration as untimely. It explained,

On December 11, 2023, the [c]ourt issued an
[o]rder granting the [m]otion for [an extension
of time] in part, directing Ms. Gebhardt to file
the transcript . . . and noting that “The date

8
which the transcript was issued will determine
if a [m]otion to [r]econsider has been timely
filed including the days prior to the [m]otion
for [an extension of time] and days that have
elapsed since the transcript was issued.”

The transcript was issued on December 1,
2023. Carol Gebhardt proceeded with filing a
[m]otion to [r]econsider but did not do so until
December 13, 2023. Therefore, adding the
seven days prior to the motion [for an
extension of time] and the thirteen days since
the transcript was issued[,] a total of 20 days
elapsed. . . . C.R.C.P. 59(a) requires that
motions for reconsideration be filed within 14
days. Pursuant to the [December 11 order]
and C.R.C.P. 59(a) the motion is untimely and
therefore denied.

The court further noted that, even if the motion for reconsideration

had been timely, it “remained comfortable” with its order and would

have denied the motion.

2. Standard of Review

¶ 15 “[W]e review a trial court’s denial of an enlargement of time

within which to perform an act for an abuse of discretion.” Premier

Members Fed. Credit Union v. Block, 2013 COA 128, ¶ 9. A district

court abuses its discretion if its decision is manifestly arbitrary,

unreasonable, or unfair, or if it misapplies the law. In Interest of

Spohr, 2019 COA 171, ¶ 32.

9
3. Law and Discussion

¶ 16 Gebhardt argues that the December 11 order constituted an

abuse of discretion. We agree.

¶ 17 First, the order was unclear. As noted above, C.R.C.P. 59(a)

allows a party fourteen days from the entry of judgment to either

move for post-trial relief or request an extension of time in which to

do so. But the December 11 order did not mention C.R.C.P. 59 or

refer to the fourteen-day deadline under that rule. The calculation

it set forth — “[t]he date which the transcript was issued will

determine if a [m]otion to [r]econsider has been timely filed

including the days prior to the [m]otion for [an extension of time]

and days that have elapsed since the transcript was issued” — was

thus difficult to decipher. Only in the court’s subsequent order

denying Gebhardt’s motion for reconsideration did it explain that it

had granted her only seven days from the time she received the

transcript to file the motion for reconsideration — that is, the

fourteen days she requested minus the seven days it took her to file

the extension request.

¶ 18 Second, even taking into account this explanation, the

December 11 order created an uncertain deadline. The court did

10
not know if or when Gebhardt had received the transcript. (Indeed,

Gebhardt had alerted the court on November 10 that the transcript

likely would not be ready for another five weeks.) The December 11

order thus meant that Gebhardt could file a timely motion for

reconsideration (1) if she had not yet received the transcript or (2) if

she had received it fewer than seven days ago. But because she

had in fact received the transcript on December 1, the order

amounted to a denial of her extension request.

¶ 19 Third, there is no dispute that Gebhardt’s extension request

was timely filed. The court did not mention any concerns about

delay, prejudice, or any other factors it considered in ruling on the

extension request. In fact, the court appeared to accept Gebhardt’s

argument, supported by counsel’s affidavit, that the transcript was

necessary to prepare the motion for reconsideration. Under these

circumstances, the court’s decision to penalize Gebhardt for “the

days prior to the [m]otion for [an extension of time]” was arbitrary.

See Spann v. People, 561 P.2d 1268, 1270 (Colo. 1977) (“The fact

that a trial court has discretion in deciding a matter does not justify

exercising that discretion arbitrarily or capriciously.”).

11
¶ 20 Having concluded that the court erred by partially denying

Gebhardt’s request for an extension of time, we thus conclude that

it erred by subsequently denying her motion for reconsideration as

untimely. Accordingly, we reject Erickson’s argument that this

appeal was not timely filed. See C.A.R. 4(a)(3) (a C.R.C.P. 59 motion

must be timely to stay the running of the time for filing a notice of

appeal). But because the district court also considered and rejected

Gebhardt’s motion for reconsideration on the merits, a remand is

not necessary.

¶ 21 We thus proceed to consider Gebhardt’s other contentions on

appeal.

B. The CPA’s Testimony

¶ 22 Gebhardt contends that the district court reversibly erred by

ruling that the CPA could not provide expert testimony but allowing

him to testify as a lay witness and admitting his report into

evidence. We agree that the court’s rationale for admitting the

CPA’s testimony was erroneous, but because his testimony was still

admissible for a different reason, we discern no abuse of discretion.

Deutsche Bank Tr. Co. Ams. v. Samora, 2013 COA 81, ¶ 38 (“An

12
appellate court may affirm the trial court’s ruling based on any

grounds that are supported by the record.”).

1. Additional Background

¶ 23 The parties jointly retained the CPA in September 2022. In

February 2023, he provided the parties with a report proposing one

way to equalize the distribution of the estate among the three heirs.

His report noted that, based on the documents the parties had

provided to him, “[Gebhardt] may not be an accountant (not a

criticism, but may give rise to reduced levels of trust/confidence),”

and noted specifically that (1) many checks were paid to Gebhardt

for expenses that appeared as though they could have been paid

directly to the vendor; (2) there was no documentation supporting

the monthly fees paid to Gebhardt; and (3) Gebhardt had written

and signed the checks paying her monthly fees, while “accounting

controls recommend that a different individual sign any checks that

[Gebhardt], as executor of estate, would have paid to herself.”

¶ 24 Erickson’s witness list indicated that the CPA would “testify

regarding his audit of the estate accounts and report and opinion

on the proposed distribution.” But on the morning of trial,

Gebhardt filed a motion in limine seeking to preclude the CPA’s

13
testimony because, as relevant here, “Erickson [had not] designated

him as an expert witness.”

¶ 25 At trial, Gebhardt reiterated that Erickson’s witness list had

not indicated that the CPA was an expert. Erickson responded that

Gebhardt had had the CPA’s report for months and that she was

“well aware” of his credentials, the work he had performed for the

parties, the fact that he was going to testify as a witness, and the

substance of his testimony. Because Gebhardt was not claiming

surprise or prejudice from Erickson’s failure to indicate that the

CPA was an expert in accounting, Erickson argued, Gebhardt was

merely trying to exclude the CPA’s testimony “on a technicality.”

¶ 26 The district court ruled that, because the CPA had not been

“disclosed as an expert,” he could not provide expert testimony.

But as a lay witness, the court ruled, the CPA could testify about

“the numbers that he calculated and what those number[s] say,”

“his audit,” “the estate accounts and [his] opinion on the proposed

distribution,” “what he did on behalf of both parties,” and “what he

figured out.” The CPA proceeded to testify about the work he had

done for the parties and the “red flags” he had noticed based on his

training “[a]s a certified public accountant with an auditor

14
background.” He testified that the “accounting state” of the

documents he reviewed was so “confusing” that he could not

“imagine somebody who is not an accountant really making sense

of much of this.”

¶ 27 The court also admitted the CPA’s report into evidence over

Gebhardt’s objection.

2. Governing Law and Standard of Review

¶ 28 Under CRE 701, a lay witness may testify to opinions or

inferences that are “not based on scientific, technical, or other

specialized knowledge within the scope of [CRE] 702.” To determine

whether testimony is lay testimony under CRE 701 or expert

testimony under CRE 702, “the trial court must look to the basis for

the opinion.” Venalonzo v. People, 2017 CO 9, ¶ 16. “If the witness

provides testimony that could be expected to be based on an

ordinary person’s experiences or knowledge, then the witness is

offering lay testimony.” Id. “If, on the other hand, the witness

provides testimony that could not be offered without specialized

experiences, knowledge, or training, then the witness is offering

expert testimony.” Id.

15
¶ 29 Under C.R.C.P. 26(a)(2), a party shall disclose to other parties

the identity of any person who may present expert testimony at

trial. See C.R.C.P. 26(a)(2) (listing disclosure requirements

applicable to retained and other experts).

¶ 30 The district court has broad discretion in determining the

admissibility of evidence based on its relevance, probative value,

and prejudicial impact. People v. Elmarr, 2015 CO 53, ¶ 20. This

includes the discretion to rule on the admissibility of expert

testimony. Kutzly v. People, 2019 CO 55, ¶ 8. We review these

evidentiary rulings for an abuse of discretion. People v. Quillen,

2023 COA 22M, ¶ 14.

3. Discussion

¶ 31 Gebhardt argues that, because the CPA’s testimony was based

on his specialized experiences, knowledge, and training, the district

court erred by ruling that he could testify as a lay witness. See

Venalonzo, ¶ 2. We agree. The CPA referred to his training and

expressed doubt that “somebody who is not an accountant” could

have done the work he performed for the estate. His opinions were

not “based on an ordinary person’s experiences or knowledge,” id.;

rather, as he explained, they were based on his training “[a]s a

16
certified public accountant with an auditor background.” His

testimony was expert testimony.

¶ 32 Although the district court’s rationale for admitting the CPA’s

testimony was incorrect, the court did not abuse its discretion by

admitting the testimony because it was still admissible for a

different reason. See People v. Quintana, 882 P.2d 1366, 1375

(Colo. 1994) (explaining that “[t]he trial court’s decision to admit the

evidence was correct although an incorrect reason was given for

that decision” and that “[a]dmissible evidence does not become

inadmissible because a trial court relied on an inappropriate rule of

evidence”), abrogated on other grounds by Rojas v. People, 2022 CO

8; cf. People v. Pernell, 2014 COA 157, ¶ 36 (concluding that

statements were not admissible as excited utterances but that

reversal was not required because the statements were admissible

on an alternative basis), aff’d on other grounds, 2018 CO 13. The

CPA testified that he was a licensed CPA with thirty years’

experience in forensic accounting and that he was the president of a

small accounting firm. His testimony was admissible as expert

testimony.

17
¶ 33 Gebhardt does not dispute that the CPA was qualified to

testify as an expert — rather, she argues that the district court was

required to exclude his testimony because he was not formally

endorsed as an expert in violation of C.R.C.P. 26. But “[a] trial

court has considerable discretion in determining whether and what

sanctions should be imposed for discovery violations.” Camp Bird

Colo., Inc. v. Bd. of Cnty. Comm’rs, 215 P.3d 1277, 1290 (Colo. App.

2009). If sanctions are warranted, “the trial judge must craft an

appropriate sanction by considering the complete range of

sanctions and weighing the sanction in light of the full record in the

case.” Pinkstaff v. Black & Decker (U.S.) Inc., 211 P.3d 698, 702

(Colo. 2009) (quoting Nagy v. Dist. Ct., 762 P.2d 158, 161 (Colo.

1988)). A court should impose the least severe sanction that will

ensure there is full compliance with the disclosure rules and is

commensurate with the prejudice caused to the opposing party. Id.

In determining whether a late disclosure is prejudicial, the question

is whether the late disclosure will deny the opposing party an

adequate opportunity to defend against the evidence. Brooktree Vill.

Homeowners Ass’n v. Brooktree Vill., LLC, 2020 COA 165, ¶ 92.

And “reviewing courts ‘must remember that courts “exist primarily

18
to afford a forum to settle litigable matters between disputing

parties,”’ and that, unless enforcement of procedural requirements

is essential to shield substantive rights, litigation should be

determined on the merits and not on formulistic application of the

rules.” Pinkstaff, 211 P.3d at 703 (citations omitted).

¶ 34 Here, the district court’s ruling that the CPA could testify as a

lay witness, while erroneous, was in essence a decision not to

impose sanctions for Erickson’s failure to formally endorse the CPA

as an expert given the lack of prejudice to Gebhardt. The parties

jointly retained the CPA to “review . . . the pertinent business and

financial data, and other documents relating to the estate.”

Gebhardt received the CPA’s report four months before trial and

does not allege that she was surprised by his opinions. Nor does

she allege prejudice from Erickson’s failure to indicate that the CPA

was an expert or that such disclosure would have affected her trial

preparation. She does not dispute that, as Erickson pointed out at

trial, she knew the CPA would testify as a witness and knew the

substance of his testimony. Because Gebhardt does not argue that

any surprise or unfairness resulted from the disclosure violation,

19
we conclude that the court was not required to exclude the CPA’s

testimony.

¶ 35 Gebhardt further argues that the district court erred by

admitting the CPA’s report into evidence. See Nat’l Can. Corp. v.

Dikeou, 868 P.2d 1131, 1138 (Colo. App. 1993) (a report prepared

by an expert is generally not admissible because it is hearsay). But

the CPA testified to the contents of his report, and Gebhardt does

not allege any prejudice from the admission of the report itself. We

thus conclude that any error was harmless. See People in Interest

of R.D.H., 944 P.2d 660, 664 (Colo. App. 1997) (concluding that any

error in admitting evidence that is cumulative of other admissible

evidence is harmless).

C. Presumption of Fiduciary Breach

¶ 36 Gebhardt contends that the district court erred by applying a

presumption of fiduciary breach. Even assuming, without deciding,

that the court erred, we again conclude that any error was

harmless.

¶ 37 In its order, the court reviewed the evidence and made detailed

factual findings about Gebhardt’s handling of the rent and lease

agreement for Portland, her delay in selling or purchasing

20
Catamount and her eventual transfer of it to herself, her credibility,

and her payments to herself that were unsupported by

documentation. “There is clear evidence as outlined above,” the

court concluded, “that [Gebhardt] breached her fiduciary duty to

the beneficiaries of the estate.”

¶ 38 Only after setting forth these findings and reaching this

conclusion did the court add the following:

Moreover, “a plaintiff need only demonstrate a
fiduciary relationship and a transfer to or use
of trust property by a fiduciary to raise a
rebuttable presumption and establish a prima
facie case of breach of fiduciary duty.” [In re
Estate of Foiles, 2014 COA 104, ¶ 15 (citing In
re Estate of Heyn, 47 P.3d 724, 726 (Colo. App.
2002))]. . . . [Gebhardt’s] transfers to herself,
including her purchase of the Catamount
Property, the unexplained checks written to
herself and her failure to account for collected
rent is prima facie evidence that she breached
her fiduciary duty [owed] to the [e]state’s
beneficiaries. [Gebhardt] failed to overcome
the presumption that such transfers were not
a breach of her fiduciary duties.

¶ 39 Gebhardt argues that Foiles and Heyn are distinguishable,

and that the presumption applied in those cases — that “a plaintiff

need only demonstrate a fiduciary relationship and a transfer to or

use of trust property by a fiduciary to raise a rebuttable

21
presumption . . . of breach of fiduciary duty,” Foiles, ¶ 15 (citing

Heyn, 47 P.3d at 726) (the Foiles-Heyn presumption) — should not

apply in this case. While the actions of the fiduciaries in Foiles and

Heyn were prohibited or unauthorized, see id. at ¶ 6; Heyn, 47 P.3d

at 727, Gebhardt argues that her actions in this case were

expressly authorized. According to Gebhardt, the stipulation

authorized her to purchase Catamount, and the probate code

authorized compensation payments for personal representative

services. See § 15-10-602(1), C.R.S. 2024. As a result, she argues,

the district court erred by applying the Foiles-Heyn presumption

here.

¶ 40 Erickson argues vigorously that Gebhardt’s actions were not

authorized. While the stipulation authorized Gebhardt to purchase

Catamount for $399,500, it did not authorize her to continue to

manage it as a landlord for six months and then purchase it for

$50,333. And while a fiduciary is entitled under section

15-10-602(1) to “reasonable compensation” for services rendered on

behalf of an estate, the district court did not find that Gebhardt’s

payments to herself were reasonable — on the contrary, it found

that there was no “reliable documentation” of her work for the

22
estate. Under these circumstances, she argues, Gebhardt’s efforts

to distinguish Foiles and Heyn fail.

¶ 41 We need not resolve this dispute because, even assuming that

the district court erred by applying the Foiles-Heyn presumption,

the error was harmless. See C.R.C.P. 61. Before the court even

mentioned the presumption, it first reviewed the evidence, made

factual findings, and concluded that there was “clear evidence as

outlined above that [Gebhardt] breached her fiduciary duty.”

(Emphasis added.) It later introduced the presumption with the

word “[m]oreover,” indicating that it was treating the presumption

as an additional ground for concluding that Gebhardt breached her

fiduciary duty. Thus, even if we were to disregard the portion of

court’s order discussing the presumption, the court’s earlier

conclusion that Gebhardt breached her fiduciary duty would

remain.

D. Surcharges

¶ 42 Gebhardt contends that the district court erred by surcharging

her without adequate findings of loss to the estate. We are not

persuaded.

23
1. Standard of Review

¶ 43 A district court’s judgment following a bench trial presents a

mixed question of fact and law. Sandstead-Corona v. Sandstead,

2018 CO 26, ¶ 37. We review the court’s factual findings for an

abuse of discretion and its legal conclusions de novo. Id. “When

the evidence is conflicting, a reviewing court may not substitute its

conclusions for those of the trial court merely because there may be

credible evidence supporting a different result.” Lawry v. Palm,

192 P.3d 550, 558 (Colo. App. 2008).

2. Law and Discussion

¶ 44 A fiduciary is entitled to reasonable compensation for services

rendered on behalf of an estate. § 15-10-602(1). However, the

fiduciary’s “entitlement to compensation or costs shall not limit or

remove a court’s inherent authority, discretion, and responsibility

to determine the reasonableness of compensation and costs when

appropriate.” § 15-10-602(4). If a court determines after a hearing

that a breach of fiduciary duty has occurred, “the court may

surcharge the fiduciary for any damage or loss to the estate.”

§ 15-10-504(2)(a), C.R.S. 2024.

24
¶ 45 After concluding that she breached her fiduciary duty, the

court surcharged Gebhardt for $40,517.18 in payments that she

made to herself for which she was unable to provide

“documentation supporting the charges/payments as they apply to

the Estate.” Gebhardt argues that the court erred by surcharging

her because “[t]he mere absence of backing documents . . . cannot

establish damage to the estate.” She argues that the payments

were compensation for her services and that “[t]he estate only

suffers damage from such payments to the extent they are

unreasonable.”

¶ 46 In the absence of supporting documentation, however, the

court was not obligated to accept Gebhardt’s testimony that the

payments she made to herself constituted reasonable compensation

for her services to the estate. Rather, the “responsibility to

determine the reasonableness of compensation” rested with the

court. § 15-10-602(4). As a fact finder, the court could determine

that these payments were not for the benefit of the estate or even

related to the estate. See Lawry, 192 P.3d at 558 (we defer to the

district court’s credibility determinations). And “we will not reweigh

25
testimony or reevaluate evidence on appeal.” In re Estate of Romero,

126 P.3d 228, 231 (Colo. App. 2005).

¶ 47 We thus conclude that the district court did not abuse its

discretion by surcharging Gebhardt for payments to herself that

lacked supporting documentation.

E. Contempt

¶ 48 Gebhardt contends that the district court erred by finding that

she was in contempt without following the procedure required

under C.R.C.P. 107(c). We agree.

¶ 49 As an initial matter, Erickson argues that Gebhardt did not

preserve this issue because she “did not object to any procedural

violations of C.R.C.P. 107 during the proceeding with the district

court nor in her motion to reconsider.” But the court twice

expressly acknowledged the Rule 107 requirements at status

conferences and required Erickson to clarify her intent to pursue

contempt and to submit a proposed citation and show cause order.

Specifically, the court said, “[I]f you’re actually seeking a contempt

under Rule 107, you need to let me know if it’s punitive or remedial.

I have to set it for advisement hearing 21 days after she’s served.”

The court later told counsel, “I didn’t get a proposed order or a

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citation, so I haven’t ruled on that . . . .” Therefore, the issue is

preserved. See Brown v. Am. Standard Ins. Co. of Wis., 2019 COA

11, ¶¶ 21-23 (issue preserved where the district court recognized

and addressed it); Battle N., LLC v. Sensible Hous. Co., 2015 COA

83, ¶ 13 (despite ambiguity in the party’s presentation, issue was

preserved where the district court ruled on it); see also Gravina

Siding & Windows Co. v. Gravina, 2022 COA 50, ¶ 31 (the merits of

a district court’s ruling are reviewable on appeal even if the district

court addressed the issue sua sponte).

¶ 50 Under section 15-10-505(1)(c), C.R.S. 2024, “[f]or a hearing to

determine possible contempt of a fiduciary, the court shall provide

notice to the fiduciary as required by rule 107 of the Colorado rules

of civil procedure.” Rule 107, in turn, distinguishes between two

forms of contempt: direct and indirect. Indep. Reservoir Co. v.

Lichter, 2025 COA 13, ¶ 12. Direct contempt is “[c]ontempt that the

court has seen or heard and is so extreme that no warning is

necessary or that has been repeated despite the court’s warning to

desist.” C.R.C.P. 107(a)(2). A court can punish such contempt

summarily, without notice or a hearing. Lichter, ¶ 12.

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¶ 51 Indirect contempt, by contrast, is “[c]ontempt that occurs out

of the direct sight or hearing of the court.” C.R.C.P. 107(a)(3).

Before punishing such contempt, the court must provide notice of

the charged contempt and a right to a hearing on those charges.

Lichter, ¶ 12. Under Rule 107(c), a court is required to “order a

citation to issue to the person so charged [with contempt] to appear

and show cause at a date, time and place designated why the

person should not be punished.” The citation “shall be served

directly upon such person at least 21 days before the time

designated for the person to appear.” C.R.C.P. 107(c).

¶ 52 Here, the district court failed to follow these steps before trial.

It never issued a contempt citation or show cause order identifying

the charges. See People v. Razatos, 699 P.2d 970, 974 (Colo. 1985)

(“In all proceedings for contempt committed out of the presence of

the court, the alleged contemner must be given notice of the

purpose of the hearing, including the nature of the acts of contempt

that he is alleged to have committed.”). Nor did the court serve

such a citation on Gebhardt as required by Rule 107(c).

Accordingly, we vacate the contempt finding and remedial contempt

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sanction1 as procedurally defective and inadequately noticed under

C.R.C.P. 107(c). See Dooley v. Dist. Ct., 811 P.2d 809, 811 (Colo.

1991) (contempt vacated where the citation and show cause order

provided no notice regarding conduct addressed at the hearing or

found contemptuous by the court).

F. Attorney Fees

¶ 53 Erickson requests an award of her appellate attorney fees and

costs as a sanction under C.A.R. 38(b) on the ground that

Gebhardt’s appeal is frivolous. We deny this request. Gebhardt

prevailed on the first and last issues and her arguments on the

remaining issues were not frivolous. See In re Marriage of Boettcher,

2018 COA 34, ¶ 38 (“Fees should be awarded only in clear and

unequivocal cases when the appellant presents no rational

1 The district court ruled that “[a]s a remedial [o]rder [Gebhardt]

shall repay the [e]state as [o]rdered above within 60 days of the date
of this [o]rder.” Remedial contempt is civil in nature and aimed at
forcing compliance with lawful court orders. In re Marriage of Cyr,
186 P.3d 88, 92 (Colo. App. 2008). “Remedial sanctions for
contempt must be supported by findings of fact establishing the
contemnor (1) did not comply with a lawful order of the court;
(2) knew of the order; and (3) has the present ability to comply with
the order.” Id. The court’s order does not explain how the remedial
order is tied to the discovery violation, much less make any of these
findings.

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argument, or the appeal is prosecuted for the purpose of

harassment or delay.”), aff’d, 2019 CO 81.

III. Disposition

¶ 54 We vacate the contempt finding and remedial sanction. In all

other respects, we affirm the orders.

JUDGE J. JONES and JUDGE BROWN concur.

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