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.”).
¶ 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
¶ 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
26 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.
27 ¶ 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
28 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.
29 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.