Matter of Carol A Casal Trust

24CA0638 Matter of Carol A Casal Trust 08-21-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0638
La Plata County District Court No. 21PR30167
Honorable A. Nathaniel Baca, Judge

In the Matter of Carol A. Casal Trust.

Dennis Casto,

Appellant,

v.

Deann Lantry and Denise Hackman,

Appellees.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE LIPINSKY
Johnson and Hawthorne*, JJ., concur

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

Evans Case LLP, Amy E. Arlander, Timothy D. Bounds, Denver, Colorado, for
Appellant

Coan, Payton & Payne, LLC, John M. Seebohm, Denver, Colorado; M. Lynne
Bruzzese, Durango, Colorado, for Appellees

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Carol A. Casal — the mother of petitioners, Denise Hackman

and Deann Lantry (jointly, the sisters), and respondent, Dennis

Casto — established the Carol A. Casal Trust (the trust). Casal

served as the initial trustee and designated her three children as

equal beneficiaries. Casto succeeded Casal as trustee. Casto

appeals the district court’s entry of judgment in the sisters’ favor on

their claims arising from his administration of the trust. We affirm.

I. Background

¶2 Casal established the trust in California in October 2007. In

2016, Casto petitioned a California probate court to appoint him

conservator of Casal and her estate. Shortly after his appointment

as conservator of her estate, Casto began paying himself from trust

funds, opened bank accounts in his name, both in an individual

capacity and as conservator, and shifted money between the trust’s

accounts and those of another family trust to which he had access

as conservator.

¶3 Casto relocated Casal to his home state of Colorado while

acting as conservator, citing her declining health. She died in

January 2019.

1
¶4 As required under California law, Casto provided the

California court with two accountings documenting his financial

dealings as conservator of Casal’s estate. After Casto responded to

questions from a California probate examiner, the California court

approved the accountings.

¶5 In October 2019 — approximately nine months after Casal’s

death — the sisters sued Casto in California for breach of trust, an

order compelling him to provide an accurate accounting of the

trust’s finances, and an order removing him as trustee. During that

litigation, Casto sent the sisters a 500-page compilation, which

contained statements for the trust’s bank accounts, among other

financial documents. The compilation also included a summary of

the trust’s finances (the summary) from March 2017 (when Casto

was appointed conservator of Casal’s estate) through April 2019

(several months after Casal’s death). The sisters questioned the

summary’s completeness. Casto later sent them another 500-page

compilation of financial documents, some of which pertained to the

time period covered in the summary, and some of which provided

updated account information available after April 2019.

2
¶6 In November 2020, Casto moved to dismiss the California

case, arguing that the California court lacked jurisdiction over the

action because he had registered the trust in Colorado earlier that

year and had been administering it from that state. See Cal. Civ.

Proc. Code § 418.10(a) (West 2024) (providing that, as relevant here,

a defendant may move to dismiss a civil action on jurisdictional or

inconvenient forum grounds). The California court dismissed the

sisters’ complaint because “Casto has not subjected himself or the

trust to the jurisdiction of the court” and California was an

“inconvenient forum.”

¶7 In October 2021, the sisters filed a new action against Casto in

Colorado. They alleged in their new case that Casto (1) failed to

provide them with the legally required notice of changes to the

trust’s status upon Casal’s death; (2) breached his duty to account

to them, as trust beneficiaries; (3) breached his fiduciary duty to

administer the trust in good faith and in the beneficiaries’ interests;

and (4) committed civil theft. They asked the Colorado court to

order Casto to provide a “full and complete accounting,” to remove

Casto as trustee, to appoint a fiduciary, and to award damages.

3
Casto denied the allegations, and the case proceeded to a bench

trial.

¶8 At trial, the sisters argued that Casto defrauded them through

“a multitude of relatively modest dishonest transactions which

[added] up to a substantial amount.” They asserted that Casto

concealed his actions by providing incomplete, unorganized, and

incomprehensible financial records for his many transactions in the

trust’s name, including transfers of funds among several bank

accounts, while serving as conservator and trustee. To support

their arguments, the sisters presented the testimony of a forensic

accountant and fraud examiner, Pamela Kerr, who reconstructed

Casto’s extensive financial dealings.

¶9 Kerr testified that the summary was “so inaccurate it cannot

be relied upon” and noted errors in his trust accounting, missing

documents, a multitude of “fund transfers back and forth,” an

unreported transfer of title to Casal’s car to Casto and his wife, and

other misrepresentations in Casto’s documents. At trial, the sisters

requested an award of $115,000 in damages for breach of trust,

damages for civil theft in the amount of $65,000 (to be trebled

under the civil theft statute), reimbursement for Kerr’s expert

4
witness fees, an award of attorney fees and other costs, and

prejudgment interest.

¶ 10 In response, Casto called his own forensic accounting expert,

Marcia McMinimee, who testified that Casto’s errors and

commingling of accounts were not “that problematic” considering

his status as a “layperson” rather than as a professional fiduciary.

¶ 11 Following the trial, the Colorado court issued a written order

in which it found Casto liable on all the sisters’ claims, awarded the

sisters the damages and fees they requested, removed Casto as

trustee, and appointed a special fiduciary to serve in his place.

After receiving the sisters’ bill of costs, the Colorado court issued a

final judgment reducing all damages, attorney and expert witness

fees, and prejudgment interest to a sum certain.

¶ 12 Casto raises four issues on appeal. He contends that (1) the

Colorado court erred by failing to apply issue preclusion to bar

relitigation of claims decided in the California conservatorship

proceedings; (2) the Colorado court erroneously conflated the

conservatorship accounting with the trust accounting and thereby

failed to properly apply the provision in the trust instrument

limiting the trustee’s liability; (3) the evidence did not support a

5
finding of civil theft; and (4) the Colorado court erred by awarding

the sisters attorney fees and expert witness fees from 2019 onward,

even though they did not file the Colorado action until 2021.

II. Issue Preclusion

¶ 13 We initially consider whether Casto preserved his issue

preclusion affirmative defense. We agree with the sisters that he

failed to do so.

¶ 14 “It is axiomatic that issues not raised in or decided by a lower

court will not be addressed for the first time on appeal.” Melat,

Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012 CO 61,

¶ 18, 287 P.3d 842, 847. While talismanic language is not required

to preserve an argument for appeal, a party must have presented

“the sum and substance” of the argument to the district court.

Madalena v. Zurich Am. Ins. Co., 2023 COA 32, ¶ 50, 532 P.3d 776,

788 (quoting Berra v. Springer & Steinberg, P.C., 251 P.3d 567, 570

(Colo. App. 2010)).

¶ 15 The issue preclusion doctrine is intended to conserve the

court’s and the parties’ resources by avoiding duplicative litigation

on an issue that was resolved in a prior action. See Vanderpool v.

Loftness, 2012 COA 115, ¶ 11, 300 P.3d 953, 957. In Vanderpool,

6
the plaintiff attempted to assert issue preclusion for the first time at

trial. Id. at ¶ 7, 300 P.3d at 956. The district court denied the

plaintiff’s assertion of the doctrine based on, among other things,

his failure to raise it earlier. Id. at ¶ 8, 300 P.3d at 957. A division

of this court affirmed. Id. at ¶ 21, 300 P.3d at 960. Underlying its

reasoning were the plaintiff’s (1) knowledge of the relevant facts

throughout the litigation; (2) persistent litigation on the merits;

(3) filing of “numerous discovery and pretrial motions, briefs, and

other papers” that made no reference to issue preclusion; and

(4) failure to assert the doctrine in the “proposed trial management

order, a document which is intended, in part, to identify the issues

to be tried and the evidence to be presented.” Id. at ¶ 20, 300 P.3d

at 959-60; see also C.R.C.P. 16(f)(3), (5). But see Mid-Century Ins.

Co. v. HIVE Constr., Inc., 2023 COA 25, ¶ 23, 531 P.3d 427, 432

(holding that failure to list an economic loss rule defense in a trial

management order does not waive the defense when the party

asserted it in its answer and in a motion for directed verdict), aff’d,

2025 CO 17, 567 P.3d 153.

¶ 16 Thus, Vanderpool instructs litigants to raise issue preclusion

arguments “as early as possible so as to avoid undermining the

7
purposes of the issue preclusion doctrine.” Id. at ¶ 22, 300 P.3d at

960. “[W]hatever evidence a party has supporting a claim of issue

preclusion should be presented with a timely motion or at a hearing

thereon.” Id.

¶ 17 Casto, however, never sought a pretrial ruling on issue

preclusion. Like the plaintiff in Vanderpool, Casto knew the

relevant facts throughout this litigation. Casto asserted in his

answer that “[p]etitioners’ claims are or may be barred by issue

preclusion,” but he did not ask the Colorado court to rule on the

issue before trial even though he had numerous opportunities to do

so. See JW Constr. Co. v. Elliott, 253 P.3d 1265, 1271 (Colo. App.

2011) (“The identification of an affirmative defense in an

answer . . . , without more, fails to preserve a matter for appellate

review.”). Unlike the plaintiff in Vanderpool, Casto did not assert

the issue at trial, in his closing argument, or in his motion for

directed verdict. Although Casto referred in that motion to several

other affirmative defenses he had pleaded in his answer, he did not

address issue preclusion.

¶ 18 In his opening brief, Casto asserts that he preserved the issue,

citing several parts of the record where he claims he asked the

8
Colorado court to rule on issue preclusion. But none of these

citations supports his contention. In addition to the reference to

issue preclusion in his answer — which alone was insufficient to

preserve the issue — Casto points to the discussion of the

California conservatorship proceedings in McMinimee’s amended

expert report. Further, he cites a pretrial filing in which he said the

sisters “are now seeking not a second, but a third bite at the apple.”

Finally, he cites his trial brief, in which he included, as background

information, the statement that the sisters “first filed this action in

Contra Costa County, CA. The [court] dismissed [their] claim for

improper venue and lack of jurisdiction.”

¶ 19 None of these references was sufficient to preserve Casto’s

issue preclusion argument for appeal, however. Indeed, while we

acknowledge that McMinimee appears to suggest at the conclusion

of her report that the conservatorship accounting issues had

“already been litigated in the California court” and, therefore, were

not “open to re-analysis in this case,” we see no place in the record

where Casto himself asked the court to apply issue preclusion to

defeat any of the sisters’ claims. “[M]erely acknowledging the

existence of a particular legal principle is not the same as asking a

9
court to make a ruling applying it.” Vanderpool, ¶ 23, 300 P.3d at

960.

¶ 20 In sum, because Casto did not preserve his issue preclusion

affirmative defense, we do not consider it on the merits. See Melat,

Pressman & Higbie, ¶ 18, 287 P.3d at 847.

III. The Colorado Court’s Judgment on
the Sisters’ Breach of Trust and Civil Theft Claims

¶ 21 Casto next challenges the Colorado court’s judgment in the

sisters’ favor on their breach of trust and civil theft claims. His

arguments are unavailing.

A. Standard of Review

¶ 22 “A trial court’s judgment following a bench trial presents a

mixed question of law and fact.” State ex rel. Weiser v. Ctr. for

Excellence in Higher Educ., Inc., 2023 CO 23, ¶ 33, 529 P.3d 599,

607. “We review the court’s factual findings for an abuse of

discretion and its legal conclusions de novo.” Id. (Although a

division of this court applied the clear error standard of review to

the court’s factual findings when considering a sufficiency of the

evidence challenge in a civil case, see Black v. Black, 2018 COA 7,

¶ 92, 422 P.3d 592, 607, we are bound by the supreme court’s

10
holding in Center for Excellence in Higher Education and therefore

review the court’s findings of fact for an abuse of discretion. The

record supports the Colorado court’s findings in this case under

either standard of review.)

B. Choice of Law

¶ 23 Before considering whether the record supports the Colorado

court’s entry of judgment in the sisters’ favor on their breach of

trust and civil theft claims, we must first determine whether

California or Colorado law governs those claims.

¶ 24 “Parties may contract for the application of a state’s law to

determine particular issues.” McWhinney Centerra Lifestyle Ctr.

LLC v. Poag & McEwen Lifestyle Ctrs.-Centerra LLC, 2021 COA 2,

¶ 14, 486 P.3d 439, 446. The trust instrument provides that “[a]ll

questions concerning the validity, interpretation, and

administration of this instrument . . . shall be governed by the laws

of the State of California, regardless of the domicile of any Trustee

or beneficiary.” A trial court’s ruling on choice of law involves a

question of law that we review de novo. Paratransit Risk Retention

Grp. Ins. Co. v. Kamins, 160 P.3d 307, 314 (Colo. App. 2007).

11
¶ 25 In their breach of trust claim, the sisters alleged that Casto

violated the trust instrument and his corresponding duties under

Colorado and California law to act in good faith and in the

beneficiaries’ interests. To the extent that this claim requires us to

consider legal principles, and not solely the terms of the trust

instrument, we apply California law. But the terms of the trust

instrument largely control our analysis, and each state’s laws

impose similar duties upon trustees. Compare Cal. Prob. Code

§ 16002(a) (West 2024), with § 15-5-105(2)(b), C.R.S. 2024. Thus,

our conclusion regarding the governing law is not outcome-

determinative.

¶ 26 The sisters’ civil theft claim, however, sounded in tort.

Although the trust instrument provides that California law applies

to questions regarding the trust’s administration, we are not

convinced that a trustee’s alleged commission of torts merely raises

issues of trust administration. See McWhinney, ¶ 69, 486 P.3d at

453-54 (applying the parties’ contracted-for choice of law provision

to the contract claims but applying Colorado law to the tort claims);

see also Restatement (Second) of Conflict of L. § 268 (Am. L. Inst.

1971). To determine which state’s substantive law applies to a tort

12
claim filed in a Colorado civil action, courts in this state apply the

“most significant relationship to the occurrence and parties” test.

AE, Inc. v. Goodyear Tire & Rubber Co., 168 P.3d 507, 508 (Colo.

2007); see also § 15-5-107(1)(b), C.R.S. 2024. Under that test,

“[t]he rights and liabilities of the parties with respect to an issue in

tort are determined by the local law of the state which, with respect

to that issue, has the most significant relationship to the

occurrence and the parties.” AE, Inc., 168 P.3d at 510 (quoting

Restatement (Second) of Conflict of L. § 145(1) (Am. L. Inst. 1971));

see also Restatement (Second) of Conflict of L. at § 6. Relevant

considerations include

(a) “the place where the injury occurred”;

(b) “the place where the conduct causing the injury

occurred”;

(c) “the domicil [sic], residence, nationality, place of

incorporation and place of business of the parties”; and

(d) “the place where the relationship, if any, between the

parties is centered.”

AE, Inc., 168 P.3d at 510 (quoting Restatement (Second) of Conflict

of L. § 145(2)).

13
¶ 27 In an October 2019 filing with the California court, Casto said

that he resided in Colorado and performed the trust’s “day-to-day

activities” in this state. Casto later registered the trust in Colorado.

Casal resided in Colorado at the end of her life, and the sisters lived

in Illinois and North Carolina, respectively, when Casto

administered the trust. Thus, Colorado has the most significant

relationship to the trust and Casto’s conduct during his tenure as

trustee. Accordingly, based on the record in this case, we apply

Colorado law to the sisters’ civil theft claim.

C. The Record Supports the Colorado Court’s Judgment on
the Sisters’ Breach of Trust Claim

¶ 28 Casto contends that “the trial court erroneously conflated the

conservatorship accounting with the trust accounting and . . .

misapplied the trust [instrument’s] limitation of liability for the

trustee.” But Casto’s argument on this point is a moving target. As

best as we can determine from his briefs, he argues that the

Colorado court erred by finding that his conduct fell below the

standard of care for purposes of the sisters’ breach of trust claim.

(Similarly, he asserts that the Colorado court erred by finding that

14
he had acted knowingly or intentionally for purposes of the sisters’

civil theft claim. We address the civil theft claim in Part III.D infra.)

¶ 29 California probate law provides that “[t]he trustee has a duty

to administer the trust solely in the interest of the beneficiaries,”

Cal. Prob. Code § 16002(a), and a violation of that duty is a breach

of trust, see Cal. Prob. Code § 16400 (West 2024). Similarly,

trustees administering a trust in Colorado have a duty to “act in

good faith and in accordance with the terms and purposes of the

trust and the interests of the beneficiaries.” § 15-5-105(2)(b).

¶ 30 Casto’s argument centers on the trust instrument’s

exculpation clause, which provides that “[n]o Trustee shall be liable

to any interested party for acts or omissions of that Trustee, except

those resulting from that Trustee’s willful misconduct or gross

negligence.” He contends that, even if he acted negligently, he did

not engage in “willful misconduct or gross negligence”; therefore,

the exculpation clause defeats the sisters’ breach of trust claim.

¶ 31 In its post-trial order, the Colorado court said that,

Given the frequency of the movements and the
selective provision of account summaries, the
court finds, by a preponderance of the
evidence, that the money was being
intentionally moved in an attempt to obscure

15
the beneficiaries from receiving a full
accounting. The court finds that the
movement of funds was more than mere
negligence and rose to the level of knowingly
hiding funds in a manner that would result in
the beneficiaries being deprived of an accurate
accounting.

The Colorado court cited, as additional evidence of Casto’s willful

misconduct and gross negligence, his (1) failure to provide

information that the sisters reasonably requested; (2) false,

incomplete, and misleading accounting and financial reports;

(3) failure to provide annual trust accountings; (4) failure to support

his trustee compensation with any description of the services he

provided to the trust; (5) expenditure of trust funds for his own

benefit and for the benefit of his spouse; (6) use of trust monies to

pay personal travel expenses; (7) failure to provide documentation

to support numerous expenditures; and (8) failure to file timely

income tax returns.

¶ 32 The record supports the Colorado court’s findings. Kerr

testified that Casto frequently moved money between several bank

accounts, commingled trust funds with funds in a separate family

trust to which he had access, paid himself and others from the

trust without any documentation or receipts, used trust assets to

16
pay for personal travel, and provided incomplete and unreliable

accountings of his financial dealings as trustee.

¶ 33 Kerr further testified that Casto transferred title to Casal’s

vehicle to himself and his wife without reporting the transfer in any

of his accountings. Kerr also identified specific conduct

demonstrating that Casto acted intentionally, rather than

negligently: (1) he reported some, but not all, of the transactions

that appeared in certain trust bank account statements; (2) he

reported certain expenses in uneven dollar amounts as “gift card”

purchases for caregivers, although gift cards are usually purchased

in even dollar amounts; and (3) he made payments in the same

dollar amount to different entities on the same day so the second

payment would appear to be an accidental duplicate. The sisters’

testimony corroborated Kerr’s analysis.

¶ 34 Casto sought to justify certain of his actions as either

expressly authorized by the trust instrument or beneficial to the

trust. The Colorado court was afforded the opportunity to consider

Casto’s explanations, together with the above evidence, and

concluded that Casto was liable to the sisters. “If the evidence is

conflicting, we may not substitute our own conclusions for those of

17
the trial court merely because there may be credible evidence

supporting a different result.” Frisco Lot 3 LLC v. Giberson Ltd.

P’ship, LLLP, 2024 COA 125, ¶ 66, 564 P.3d 1061, 1074.

¶ 35 For these reasons, the Colorado court did not err by entering

judgment against Casto on the sisters’ breach of trust claim.

D. The Record Supports the Colorado Court’s Judgment
in the Sisters’ Favor on Their Civil Theft Claim

¶ 36 Casto next contends that the record does not support the

Colorado court’s finding that he committed civil theft. We are

unpersuaded.

¶ 37 Colorado’s civil theft statute allows the owner of stolen

property to recover three times the amount of actual damages, plus

attorney fees, from the thief. § 18-4-405, C.R.S. 2024; State v. 5

Star Feedlot Inc., 2019 COA 162M, ¶ 14, 487 P.3d 1183, 1187, aff’d

on other grounds sub nom. Dep’t of Nat. Res. v. 5 Star Feedlot, Inc.,

2021 CO 27, 486 P.3d 250. “[T]o prevail on a civil claim under that

statute, the owner must prove all of the elements of criminal

theft . . . .” 5 Star Feedlot, ¶ 14, 487 P.3d at 1187. Those elements

include that the defendant “(1) knowingly obtained, retained, or

exercised control over anything of value of another without

18
authorization; and (2) intentionally or knowingly deprived the other

person permanently of the use or benefit of the property.” Million v.

Grasse, 2024 COA 22, ¶ 44, 549 P.3d 1043, 1051; § 18-4-401(1),

C.R.S. 2024.

¶ 38 The Colorado court found that Casto

• “repeatedly moved money between accounts when

providing trust accountings”;

• “failed to provide information” that the sisters had

requested;

• “made disbursements to himself” for “personal trips,”

charged expenses to Casal’s credit cards, and paid third

parties “without providing supporting documentation”;

• misrepresented “the nature of payments”; and

• “knowingly exercised control over trust assets[,] and,

through deception, by transferring money between

accounts and misrepresenting the nature of the

transactions, intended to deprive the beneficiaries of the

funds.”

¶ 39 The record supports the Colorado court’s findings. Kerr

testified at length about Casto’s repeated transfers of trust assets

19
between bank accounts and said that Casto made payments from

the trust assets to himself and others without documentation or

receipts. The same evidence that was sufficient to prove that Casto

engaged in willful misconduct similarly proves that he acted

intentionally or knowingly for purposes of the sisters’ civil theft

claim. We perceive no abuse of discretion in the Colorado court’s

finding that these actions demonstrated Casto’s knowing retention

of trust assets with the intent to deprive the sisters — who were

equal trust beneficiaries with Casto — of those assets.

¶ 40 Thus, the Colorado court did not err by entering judgment in

the sisters’ favor on their civil theft claim.

IV. Attorney Fees

A. Attorney Fees and Expert Witness Fees

¶ 41 Casto argues that the Colorado court’s award of attorney fees

and Kerr’s expert witness fees to the sisters was unreasonable

because it included fees for work begun in 2019, two years before

the sisters filed their complaint in Colorado. But Casto failed to

raise this argument below. He neither responded to the sisters’ bill

of costs nor requested a hearing on the reasonableness of the

amount of attorney fees and expert witness fees they sought. Casto

20
contends that he preserved this issue in his answer, but nowhere in

that pleading did he challenge the reasonableness of the sisters’ fee

requests, nor could he have done so at that early point in the

litigation. Thus, we decline to address the issue on the merits. See

Hoyman v. Coffin, 976 P.2d 311, 315 (Colo. App. 1998) (declining to

consider an unpreserved argument regarding the district court’s

attorney fee award).

B. Appellate Attorney Fees

¶ 42 Both Casto and the sisters request an award of appellate

attorney fees.

¶ 43 Casto supports his request by citing a provision of the trust

instrument that allows the trustee to obtain reimbursement from

the trust for all expenses incurred in taking actions “for the

protection of the trust property and of the Trustee in the

performance of the Trustee’s duties.” However, because Casto did

not explain the legal and factual basis for his request for a fee

award from the sisters, his request fails. See C.A.R. 39.1.

¶ 44 The sisters request, under section 15-10-504(2)(a), C.R.S.

2024, and section 16420(a)(3) of the California Probate Code (West

2024), an award of the attorney fees they incurred in this appeal to

21
defend the judgment in their favor on their breach of trust claim,

and, under section 18-4-405, an award of the appellate attorney

fees they incurred in defending the judgment in their favor on their

civil theft claim. They also seek an award of all their appellate

attorney fees under section 13-17-102(2), C.R.S. 2024, on the

grounds that all of Casto’s arguments in this appeal lacked

substantial justification. We address each request in turn.

¶ 45 First, the sisters contend that they are entitled to an award of

their appellate attorney fees, under Colorado and California law, for

defending the Colorado court’s breach of trust judgment in this

appeal. We apply California law to such request, as we did when

considering the merits of the breach of trust claim. See Target

Corp. v. Prestige Maint. USA, Ltd., 2013 COA 12, ¶ 18, 351 P.3d

493, 498.

¶ 46 The sisters argue that they are entitled to such appellate

attorney fees under section 16420(a)(3) of the California Probate

Code, which provides, “If a trustee commits a breach of trust, . . . a

beneficiary . . . of the trust may commence a proceeding . . . [t]o

compel the trustee to redress a breach of trust by payment of

money or otherwise.” Cal. Prob. Code. § 16420(a)(3). But the

22
sisters do not identify a statute analogous to section 16420(a)(3)

that allows beneficiaries to recover their appellate attorney fees.

The general rule in California is that “[t]rust beneficiaries must

ordinarily pay their own attorney fees in challenging the trustee’s

conduct, even when they are successful.” Leader v. Cords, 107 Cal.

Rptr. 3d 505, 510 (Ct. App. 2010); see also Cal. Civ. Proc. Code

§ 1021 (West 2024). Section 17211(b) of the California Probate

Code (West 2024) provides a limited exception to the general rule,

but the sisters do not assert that such exception applies.

¶ 47 In the section of his reply brief addressing the Colorado court’s

award of attorney fees and expert witness fees to the sisters, Casto

concedes, without analysis or explanation, that he “does not

dispute that the fees and costs may be awarded pursuant to . . .

Cal. Prob. C[o]de § 16420,” although he contests the amount of fees

the Colorado court awarded to the sisters. But we are not bound by

unsupported legal assertions. Because the sisters do not explain

why they are entitled to an award of their appellate attorney fees

under section 16420(a)(3), we decline to award them the appellate

fees they incurred in defending the judgment entered in their favor

on their breach of trust claim.

23
¶ 48 Second, the sisters contend that, under section 18-4-405, they

are entitled to recover the appellate attorney fees they incurred in

defending the judgment entered in their favor on their civil theft

claim. Under Colorado law, “an award of attorney fees to a

prevailing plaintiff on a civil theft claim is mandatory.” Steward

Software Co. v. Kopcho, 275 P.3d 702, 712 (Colo. App. 2010), rev’d

on other grounds, 266 P.3d 1085 (Colo. 2011). Such an award

includes “fees incurred in [the] appeal allocable to the issues on

which [the subject party] prevailed.” Id. We award the sisters their

appellate fees for the civil theft claim on this basis. Because Casto’s

issue preclusion argument impacted all of the sisters’ claims —

including their civil theft claim — the attorney fees to which they

are entitled under the fee-shifting provision of the civil theft statute

includes the fees they incurred in responding to Casto’s issue

preclusion argument in this appeal.

¶ 49 Finally, the sisters contend that they are entitled to an award

of their appellate attorney fees under section 13-17-102(2), which

provides that “the court shall award . . . reasonable attorney fees

against any attorney or party who has brought or defended a civil

24
action, either in whole or in part, that the court determines lacked

substantial justification.”

¶ 50 We conclude that the fourth issue Casto asserted on appeal —

that the Colorado court’s imposition of attorney fees and expert

witness fees was unreasonable — lacked substantial justification

for two reasons. First, Casto did not contest below the Colorado

court’s award of attorney fees to the sisters, nor did he cite in his

opening brief any portion of the record where he preserved the

issue. Second, Casto cited no legal authority for the proposition

that a court may not award attorney fees for work performed two

years before the filing of the case. Thus, we award the sisters their

appellate attorney fees as to the fourth issue, pursuant to section

13-17-102(2).

¶ 51 We remand the case to the Colorado court to determine the

amount of reasonable appellate attorney fees that the sisters

incurred in defending the judgment entered in their favor on their

civil theft claim, including their appellate attorney fees relating to

Casto’s issue preclusion argument, and the appellate fees they

incurred in addressing Casto’s attack on the reasonableness of the

25
amount of attorney fees and expert witness fees the Colorado court

awarded to the sisters. See C.A.R. 39.1.

V. Disposition

¶ 52 The judgment is affirmed, and the case is remanded to the

Colorado court for determination of the amount of attorney fees to

be awarded to the sisters.

JUDGE JOHNSON and JUDGE HAWTHORNE concur.

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