23CA0650 Estate of Pozsonyi 12-12-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0650 City and County of Denver Probate Court No. 12PR406 Honorable Elizabeth D. Leith, Judge
In the Matter of the Estate of Erika Pozsonyi, deceased.
Mark Denison,
Appellant,
v.
Melissa R. Schwartz, Special Administrator, and Anthony Pozsonyi,
Appellees.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE GROVE Freyre and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 12, 2024
Mark Denison, Pro Se
Anne Whalen Gill L.L.C., Anne Whalen Gill, Castle Rock, Colorado, for Appellee Melissa R. Schwartz
No Appearance for Appellee Anthony Pozsonyi ¶1 Appellant, Mark Denison, challenges the probate court’s
assessment of $84,617.75 in costs and fees against him and his
share of the estate of Erika Pozsonyi (the decedent). We affirm.
I. Background
¶2 When the decedent died in 2011, she was survived by Denison
(her second husband) and Anthony Pozsonyi (Pozsonyi) (her first
husband). The decedent and Pozsonyi were divorced many years
before her death; as part of their divorce, they signed a separation
agreement that gave rise to many of the issues before us now.
¶3 Decedent lived in New York at the time of her death, but she
owned a commercial building in Denver that represented a large
portion of the value of her estate. In her will — which was probated
in New York — decedent named Denison as the executor of her
estate and devised the Denver property to him. However, the
separation agreement from the decedent’s first marriage provided
that if her will did not name Pozsonyi as a beneficiary to specific
assets, Pozsonyi would be able to submit a claim against the estate
for seventy percent of its net value. Pozsonyi submitted just such a
claim after discovering that the decedent had not devised those
assets to him.
1 ¶4 After learning of Pozsonyi’s claim, Denison, as the executor of
the estate, conveyed the Denver property to himself as a devisee.
Denison also initiated probate proceedings in New York, where he
and Pozsonyi lived, as well as in Denver. A related but separate
civil action was also initiated in the New York courts. In one of the
New York proceedings, after Pozsonyi submitted a formal claim
against the estate for seventy percent of its net value, the court
ruled that Pozsonyi was entitled to that portion of the estate and
established a constructive trust over the Denver property and all
income derived from it. Both the New York court and the Denver
probate court ordered Denison to convey the Denver property back
to the estate. He did so, and a public administrator was appointed
to replace Denison as the estate’s representative in New York.
¶5 However, it was soon revealed that the Denver property faced a
dilemma. Under its existing financing, a balloon payment of some
$550,000 was due on December 1, 2014. The probate court
appointed Melissa Schwartz, the Denver Public Administrator, as a
special administrator over the Denver property; directed her to
cooperate with the New York Public Administrator; and tasked her
with preserving the Denver property, including negotiating any
2 refinancing and undertaking its ongoing management. After her
appointment in December 2014, Schwartz eventually lawfully sold
the Denver property in 2015.
¶6 The following timeline is pertinent to the issues before us in
this appeal:
• In March 2017, Schwartz submitted a petition for accounting and fees covering her work as Special Administrator from December 2014 to March 2017.
• Denison filed various objections.
• In November 2019, Schwartz filed a Petition for Final Settlement to close the estate.
• On October 22, 2021, the probate court issued an order titled “Findings of Fact, Conclusions of Law and Order” (the October 2021 order) in which it granted Schwartz’s November 2019 Petition for Final Settlement and her March 2017 petition for accounting and fees. • On November 4, 2021, the probate court issued an order clarifying that, in the October 2021 order, it had approved Schwartz’s fees from the date of her appointment through February 26, 2020. Schwartz’s approved compensation, costs, and fees for her work on behalf of the estate from December 2014 to February 26, 2020, total $96,941.07.
• In September 2022 — in the request underlying this appeal — Schwartz filed a “Petition for Final Accounting
3 (Supplemental)” and a “Petition for Final Settlement.” These petitions requested the probate court assess an additional $84,617.75 against Denison and his share of decedent’s estate. This sum included $82,663.75 in Schwartz’s costs and fees incurred from February 26, 2020, through September 20, 2022, incurred when Schwartz had to defend the amount awarded in the October 2021 order from Denison’s various legal challenges. (The remaining $1,954 was the outstanding balance owed to Schwartz from the October 2021 award and encompassed some fees and costs dating back to November and December 2019.)
• Denison filed various objections, including moving to “dismiss” the Petition for Final Settlement.
• On February 1, 2023, the probate court issued an Order for Final Settlement (the February 2023 order) in which it granted Schwartz’s request for fees incurred from December 2019 to August 2022 and assessed $84,617.75 against Denison and his share of decedent’s estate.
• On February 27, 2023, the probate court denied Denison’s motion to vacate its February 1, 2023, order and reiterated it had denied Denison’s motion to dismiss in its February 1, 2023, order.
¶7 Denison filed a notice of appeal that encompassed both the
October 2021 order and the February 2023 order. A division of this
court deemed Denison’s appeal of the October 2021 order untimely
4 and limited his appeal to claims related to the February 2023
order.1
II. Schwartz’s Appointment and Costs
¶8 Denison contends the probate court erred when, in the
February 2023 order, it assessed Schwartz’s $84,617.75 costs and
fees against his share of the estate. Denison asserts instead that
Schwartz was appointed as a special administrator under a section
of the probate code that required Pozsonyi, and not the estate or
Denison, to foot Schwartz’s reasonable costs and fees.
A. Standard of Review and Applicable Law
¶9 We review de novo whether the probate court applied the
correct legal standard. Freedom Colo. Info., Inc. v. El Paso
Cnty. Sheriff’s Dep’t, 196 P.3d 892, 897 (Colo. 2008). We review de
1 The motions division also considered, and rejected, a motion from
Schwartz to dismiss Denison’s entire appeal as untimely filed. In her answer brief, Schwartz asks us to reconsider that ruling. While we are not bound by a motions division’s ruling, Chavez v. Chavez, 2020 COA 70, ¶ 13, we generally will not revisit a motions division’s ruling on an issue unless we have serious questions about our own jurisdiction. FSDW, LLC v. First Nat’l Bank, 94 P.3d 1260, 1262 (Colo. App. 2004); see also Parker v. USAA, 216 P.3d 7, 10 (Colo. App. 2007), aff’d, 200 P.3d 350 (Colo. 2009). We have no such questions here.
5 novo questions of law concerning the construction and application
of statutes. In re Estate of Fritzler, 2017 COA 4, ¶ 24. We accept
the court’s factual findings unless they are so clearly erroneous as
not to find support in the record. Est. of Keenan v. Colo. State Bank
& Trust, 252 P.3d 539, 546 (Colo. App. 2011).
¶ 10 In probate, a personal representative is a fiduciary tasked with
settling and distributing an estate as expeditiously and efficiently as
is consistent with the best interests of the estate. § 15-12-703(1),
C.R.S. 2024. A court may appoint a special administrator or public
administrator to act as the personal representative of an estate to
aid in the administration of a contested asset. See §§ 15-10-
201(39), 15-12-622, 15-12-614, C.R.S. 2024.
¶ 11 The probate court may formally appoint a special
administrator on petition of any interested person upon finding,
after notice and hearing, “that appointment is necessary to preserve
the estate or to secure its proper administration including its
administration in circumstances where a general personal
representative cannot or should not act.” § 15-12-614(1)(b). The
probate court may appoint “any proper person” as a special
administrator, as long as a pending will is not the subject of the
6 petition for probate. § 15-12-615, C.R.S. 2024. Any application or
petition for a special administrator under section 15-12-614 shall
include a statement by the applicant or petitioner disclosing the
basis upon which any compensation is to be charged to the estate
by the fiduciary, or “shall state that the basis has not yet been
determined.” § 15-10-602(9), C.R.S. 2024. A formally appointed
special administrator has the power of a general personal
representative except as limited by such terms as the probate court
may direct. § 15-12-617, C.R.S. 2024; In re Estate of Franchs, 722
P.2d 422, 423 (Colo. App. 1986).
¶ 12 The probate court may also appoint a public administrator to
act as a fiduciary of any estate that has an asset requiring
protection. § 15-12-622(1). A public administrator is a private
individual appointed by a district or probate court (in Denver, the
City and County of Denver Probate Court) to collect, protect, and
manage the assets of certain living individuals and to administer
the estates of certain decedents. See § 15-12-619, C.R.S. 2024. A
public administrator may act as a special administrator of a
decedent’s estate when a creditor requests the appointment for the
purpose of representing said estate against said creditor. § 15-12-
7 621(9), C.R.S. 2024. In these cases, a public administrator “need
act only if the creditor . . . makes advance arrangements,
satisfactory to the public administrator, to pay all reasonable fees
and costs likely to be incurred” during special administration. Id.
Like a special administrator, any petition for or appointment of a
public administrator under section 15-12-621 shall include a
statement by the applicant or petition disclosing the basis upon
which any compensation is to be charged to the estate by the
fiduciary or “shall state that the basis has not yet been determined.”
§ 15-10-602(9).
¶ 13 As a fiduciary to an estate, public administrators and special
administrators are entitled to reasonable compensation for services
rendered on behalf of an estate, as well as costs and fees. § 15-10-
601(2), C.R.S. 2024 (defining fiduciary to include a public
administrator and personal representative); § 15-10-602(1), (6); §
15-12-620(3), C.R.S. 2024. However, a 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). The court considers multiple factors when determining
8 the reasonableness of compensation and costs. § 15-10-603(3),
C.R.S. 2024.
B. Analysis
¶ 14 As relevant to our analysis, the probate code includes two
statutes that allow the appointment of a special administrator:
section 15-12-621(9) and section 15-12-614(1)(b).
¶ 15 Denison asserts that Schwartz was appointed as a special
administrator under section 15-12-621(9), which allows a public
administrator to act as a special administrator in creditor
situations, and not section 15-12-614(1)(b), which applies in cases
where the court finds the appointment of a special administrator
necessary to preserve the estate. The authority for Schwartz’s
appointment is important, Denison contends, because under
section 15-12-621(9), Schwartz was not required to act as a special
administrator unless Pozsonyi, as a creditor of the estate, made
advance arrangements to pay her all reasonable fees and costs
related to his claim. This advance arrangement of costs and fees
was never done, he says, thus making Schwartz’s appointment as
special administrator invalid.
9 ¶ 16 We conclude that Denison’s argument is unsupported by the
record. In its original order appointing Schwartz as special
administrator, the court wrote that the appointment was “necessary
to preserve” the Colorado property, language that echoes section
15-12-614(1)(b). And to the extent that the probate court did not
originally make clear the authority for Schwartz’s appointment as
special administrator, any uncertainty was resolved in an order
issued on July 10, 2017, in which the court wrote that Schwartz,
the special administrator, was a “fiduciary of the [e]state pursuant
to C.R.S. 15-12-614(1)(b) and 15-12-617.”
¶ 17 We also reject Denison’s argument that Schwartz’s
appointment as special administrator was invalid due to missing
documentation required by section 15-10-602(9) stating the basis of
her compensation. To be sure, the probate court granted Pozsonyi’s
request to appoint Schwartz as the special administrator over the
Denver property, and, as far as we can tell, the record does not
contain a statement or disclosure outlining the basis of Schwartz’s
compensation. Denison did not raise this apparent omission at the
time of Schwartz’s appointment as special administrator in
December 2014. Nor did he raise it on any of the five subsequent
10 occasions (in December 2015, June 2016, December 2016, July
2017, or July 2018) that Schwartz requested an extension of her
appointment. To the contrary, Denison, through counsel, indicated
that he did not object to any of these extensions.
¶ 18 Instead, Denison waited to raise this issue until Schwartz
sought to close the estate for a second time, and even then devoted
only two sentences of argument to it in his motion to dismiss the
petition. Under these circumstances, we consider the argument
waived and decline to consider it further. Brown v. Silvern, 141
P.3d 871, 874 (Colo. App. 2005) (“[A]rguments never presented to,
considered by, or ruled upon by a trial court may not be raised for
the first time on appeal.”).2
C. Motion to Dismiss the Second Petition for Final Settlement
¶ 19 Denison next contends the probate court erred when it denied
his motion to dismiss Schwartz’s second petition for final
2 Even if Denison did not waive his objection to the apparent
omission of the documentation accompanying Schwartz’s appointment as special administrator, we would conclude that any error was harmless. See Meggitt v. Stross, 2021 COA 50, ¶ 51 (holding that special administrator’s failure to disclose fee amount and petitioner’s admission that the fees ultimately assessed were reasonable was harmless).
11 settlement, which she submitted in September 2022, and which
sought an additional award of $84,617.75 for costs and fees
incurred while defending against Denison’s previous arguments.
Denison argues that the motion to dismiss should have been
granted because Schwartz lost her authority to petition the court as
special administrator when the probate court granted her first
petition for final settlement in October 2021.
1. Additional Facts
¶ 20 To recap, in the October 2021 order, the probate court
approved a petition for interim accounting filed by Schwartz in
2017, as well as her first petition for a final settlement, which was
filed in November 2019. In a subsequent order that remedied
several clerical errors, the court specified the amounts that it was
awarding Schwartz in compensation, costs, and fees. In sum, in
the October 2021 order, the court approved a total of $96,947.07 in
compensation, costs, and fees that Schwartz incurred from
December 2014 through February 2020.
¶ 21 Although Schwartz described the petition that led to this
award as “final,” she also stated in the petition that her request for
compensation, costs, and fees was “based on the assumption that
12 the closing [of the estate] will be uncontested,” and noted that if the
closing was contested, “additional fees and costs will be incurred.”
Denison did contest the closing of the estate, causing Schwartz to
incur additional fees and costs.
¶ 22 Consequently, in September 2022, Schwartz submitted a
supplemental petition for final accounting and a second petition for
final settlement. In it, Schwartz requested the additional costs and
fees she incurred defending the initial award from Denison’s legal
challenges. She requested these additional costs and fees be
assessed against Denison and his share of the estate under section
15-10-605(1), C.R.S. 2024 (allowing the court to assess fees against
a party whom it finds litigated in bad faith), and section 15-10-
605(2) (entitling a special administrator to reasonable fees incurred
when defending the estate).
¶ 23 In the February 2023 order, the probate court found Denison
had been “relentless in his pursuit of all assets related to the estate
of his late wife for his sole benefit,” and assessed $84,617.75
against Denison and his share of the estate under section 15-10-
605(1).
13 2. Standard of Review and Applicable Law
¶ 24 We review de novo whether the probate court applied the
correct legal standard. Freedom Colo. Info., Inc., 196 P.3d at 897.
We review de novo questions of law concerning the construction
and application of statutes. Fritzler, ¶ 24. We accept the court’s
factual findings unless they are so clearly erroneous as not to find
support in the record. Keenan, 252 P.3d at 546.
¶ 25 In construing a statute, if the language is plain and its
meaning clear, a statute must be applied as written. Ryser v.
Shelter Mut. Ins. Co., 2021 CO 11, ¶ 14.
¶ 26 A special administrator’s power is governed by Title 15, Article
12 of Colorado’s probate code. When a special administrator
believes that the affairs of the estate have been wound up, she may
close the estate in one of two ways. Hill v. Boatright, 890 P.2d 180,
183 (Colo. App. 1994), aff’d in part and rev’d in part sub nom.
Boatright v. Derr, 919 P.2d 221 (Colo. 1996). As relevant here, the
special administrator may “petition for an order of complete
settlement of the estate,” which the court may grant “on appropriate
conditions,” and “as circumstances require, approv[e] settlement
and direct[] or approv[e] settlement and direct[] or approv[e]
14 distribution of the estate.” § 15-12-1001(1), C.R.S. 2024. An order
under this section closing the estate “terminates an appointment of
a [special administrator].” § 15-12-610(2), C.R.S. 2024; see also §
15-12-618, C.R.S. 2024.
3. Analysis
¶ 27 Although Schwartz sought to settle the estate and terminate
her appointment in November 2019, the final settlement and
distribution of the estate was delayed by Denison’s unsuccessful
attempts to challenge the validity of Schwartz’s costs and fees.
Schwartz’s motion made clear that her request to completely close
the estate depended on whether Denison was going to object and
thereby extend the proceedings further, and her request to be
discharged was contingent on her submission of “final receipts or
evidence of distribution.” Given this context, we understand the
probate court’s order granting Schwartz’s first petition for final
settlement to be conditional, consistent with the probate court’s
authority to enter such an order pursuant to section 15-12-1001(1).
Because Denison continued to litigate and no “final receipts” were
filed, the conditions for final settlement were not met. We therefore
15 perceive no error in the probate court’s refusal to treat the estate as
closed or discharge Schwartz from her role as special administrator.
D. Charging the Estate for Time Spent Litigating Fees
¶ 28 Denison contends that his share of the estate cannot be
charged for the fees and costs Schwartz incurred while litigating the
costs and fees she claimed she was owed. We are not persuaded.
¶ 29 In the October 2021 order, the probate court granted
Schwartz’s request for compensation, costs, and fees incurred from
December 2014 to February 2020. Denison repeatedly challenged
that award, and Schwartz incurred substantial additional expenses
defending it.
¶ 30 Citing In re Estate of Painter, 671 P.2d 1331 (Colo. App. 1983),
Denison contends that “time spent litigating fees is not chargeable
against the estate.” The Painter division did reach that conclusion,
but it relied on a since-repealed statute to do so. The current
version of section 15-10-605(2) provides in pertinent part:
If any person entitled to compensation under this part 6 is required to defend the reasonableness of compensation or costs in a proceeding, the court may review the fees and costs incurred by the person in defending the compensation or costs, and the fees incurred in challenging the compensation and costs,
16 and may assess the reasonable fees and costs incurred in the proceeding as the court deems equitable.
Denison’s argument that Schwartz was not entitled to recover fees
incurred in defending the previous award is contrary to the plain
language of section 15-10-605(2), which makes clear that the
probate court had discretion to do exactly that.
E. Timeliness of Bill of Costs and Request for Fees
¶ 31 Denison contends that Schwartz was not entitled to costs or
fees because, when she filed her second petition for final settlement,
she did not submit a bill of costs or motion for attorney fees in
accordance with the deadline contemplated by C.R.C.P. 121, section
1-22.
¶ 32 Although the contours of this argument are not entirely clear,
it appears that it depends entirely on Denison’s position that the
October 2021 order was final under section 15-12-1001(1). We
have already rejected that argument, and additionally observe that
Schwartz accompanied her second petition for final settlement with
an itemized list for fees and costs. Thus, assuming without
deciding that C.R.C.P. 121, section 1-22 applies to an award of fees
17 and costs under section 15-10-605(1) or (2), Schwartz’s request was
timely.
F. Remaining Issues
¶ 33 Because they do not require a detailed analysis, we briefly
address Denison’s remaining appellate contentions.
1. Jurisdiction to Assess Fees and Costs From the Estate
¶ 34 We reject Denison’s contention that, because the estate’s
funds had been transferred to the domiciliary representative and
the estate never appeared nor subjected itself to Colorado’s
jurisdiction, the probate court lacked subject matter jurisdiction to
rule on Schwartz’s request for fees. The probate court had broad
jurisdiction “to determine every legal and equitable question arising
in connection with” the decedent’s estate. § 13-9-103(3), C.R.S.
2024. Moreover, as the court pointed out in its order granting fees
and costs, “a grant or award of attorney fees and costs pursuant to
[section 15-10-605] is separate from the payment of those fees.”
Because the order did not purport to authorize the seizure of funds
held in New York, it did not exceed the probate court’s jurisdiction.
18 1. Standing
¶ 35 We likewise reject Denison’s claim that Schwartz did not have
standing to request fees and costs against Denison and his share of
the estate. The probate court awarded Schwartz compensation,
costs and fees under sections 15-10-602 and 15-10-605. Both
statutes explicitly provide that a special administrator may recover
fees from the estate. See § 15-10-602(2); § 15-10-605(1), (2). And
the latter statute states that the person entitled to compensation
may recover from the estate or “any party, person, or entity.” § 15-
10-605(1), (2).
2. Bad Faith
¶ 36 We reject Denison’s contention that the probate court awarded
fees against him without making a finding of bad faith. True, the
court did not explicitly use the phrase “bad faith” to describe
Denison’s conduct in awarding fees under section 15-10-605(1).
But the court clearly found that Denison had engaged in vexatious
or otherwise improper litigation tactics. For example, in the
February 2023 order, the court found that Denison had been
“relentless” in his pursuit of the estate’s assets “without regard to
his wife’s agreements or her wishes, or the law.” (Emphasis added.)
19 That finding is consistent with the court’s earlier observations in
the October 2021 order that Denison had engaged in
“machinations” that amounted to “attempts to obfuscate the issues
and to divert the court’s attention,” that he had created a “din of
litigation” that made it difficult to properly assess the issues before
the court, and that he had “continuously obstructed all efforts to
reasonably resolve this matter.” These findings are more than
sufficient to support an award of fees under section 15-10-605(1).
3. Motion to Dismiss
¶ 37 We reject, as factually incorrect, Denison’s claim that the
probate court failed to rule on his motion to dismiss Schwartz’s
second petition for final settlement prior to issuing its February
2023 order. In its February 27, 2023 order, the court wrote that
“the motion to dismiss petition referenced by Mr. Denison was
denied by the Order entered February 1, 2023.”
4. Unpreserved Arguments
¶ 38 Finally, Denison contends that the court erred by failing to
consider the size of the estate as a factor when determining the
reasonableness of Scwartz’s compensation, costs, and fees. He also
20 contends that the October 2021 and February 2023 orders should
be reversed due to judicial bias.
¶ 39 Neither of these issues is preserved. While Denison did
mention the size of the estate in the probate court proceedings, the
only time that he raised such arguments was in response to
Schwartz’s first petition for final settlement and were therefore
resolved by the October 2021 order (which is not before us on
appeal).
¶ 40 Regarding Denison’s claim of judicial bias, we note that
Denison did not raise this issue in the probate court by seeking
relief under C.R.C.P. 97. Generally, the failure to file a motion
compliant with C.R.C.P. 97 precludes appellate review. See Jones v.
Lambourn’s Est., 411 P.2d 11, 14 (Colo. 1966); In re Life Ins. Trust
Agreement of Seeman, 841 P.2d 403, 407 (Colo. App. 1992).
¶ 41 To the extent that Denison asserts actual bias on the part of
the probate judge, that is an issue that may be raised for the first
time on appeal. See Bocian v. Owners Ins. Co., 2020 COA 98, ¶ 52.
But Denison focuses his complaints about the trial judge primarily
on the probate judge’s “errant findings,” along with a few remarks
made to Denison’s attorneys at various points in the case.
21 ¶ 42 It is well established that adverse legal rulings, standing alone,
do not constitute grounds for claiming prejudice or bias. In re
Marriage of Hatton, 160 P.3d 326, 330 (Colo. App. 2007); People in
Interest of S.G., 91 P.3d 443, 447 (Colo. App. 2004) (a judge’s ruling
on a legal issue or opinions formed against a party are not bases for
disqualification). Likewise, even if the judge’s statements
“reflect[ed] an ill disposition” toward Denison or his attorneys, Black
v. Black, 2020 COA 64M, ¶ 126, we see nothing suggesting that the
views expressed in the statements that Denison identifies on appeal
lacked record support. See id.; see also Watson v. Cal-Three, LLC,
254 P.3d 1189, 1192 (Colo. App. 2011) (“[A] judge is not recusable
for bias or prejudice that is based on the facts and circumstances of
the case, even where, upon completion of the evidence, the court is
exceedingly ill disposed toward a party.”).
III. Attorney Fees
¶ 43 Schwartz requests an award of appellate attorney fees under
section 15-10-605 and section 13-17-101, C.R.S. 2024. However,
Schwartz does little more than cite these two provisions, does not
cite C.A.R. 39.1 as a basis for her request, and does not develop any
22 substantive argument as to why a fee award is warranted under
either statute. We therefore decline to award fees.
IV. Disposition
¶ 44 We affirm the February 2023 order.
JUDGE FREYRE and JUDGE LUM concur.