Grosboll v. Grosboll

2013 COA 141, 315 P.3d 1284, 2013 WL 5761106
CourtColorado Court of Appeals
DecidedOctober 24, 2013
DocketCourt of Appeals No. 11CA2626
StatusPublished
Cited by1 cases

This text of 2013 COA 141 (Grosboll v. Grosboll) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grosboll v. Grosboll, 2013 COA 141, 315 P.3d 1284, 2013 WL 5761106 (Colo. Ct. App. 2013).

Opinion

Opinion by

JUDGE LICHTENSTEIN

T1 In this probate matter concerning the consolidated estates of Jeanette Elizabeth Grosboll and Ashley Nelson Grosboll (collectively decedents), Jo Ann C. Grosboll, decedents' daughter, appeals the district court's order finding that the sales proceeds of Loma Vista Apartments (Loma Vista) were an estate asset rather than an asset of Grosboll Manor, L.L.L.P. (partnership), a limited partnership formed between decedents and Jo Ann.1

12 As a matter of first impression, we consider whether real property owned individually by one who enters into a partnership may become a partnership asset without a written conveyance sufficient to satisfy the statute of frauds.2

T 3 We conclude that a written conveyance from a partner to the partnership is not required because the General Assembly has enacted legislation specifically allowing real property titled in an individual partner's name to be deemed an asset of the partnership, and because the trust relationship between partners provides adequate protection against fraud in oral agreements making a partner's real property a partnership asset. Thus, the intention of the partners determines whether such real property is a partnership asset, but a written conveyance is a factor for a court to consider in evaluating that intent.

T4 We therefore reverse the district court's order finding that because decedents did not execute a deed transferring their individual interest in Loma Vista to the partnership, it was not a partnership asset. We [1286]*1286remand for further findings of fact and conclusions of law consistent with this opinion.

I. Background

T5 In 2004, the decedents and Jo Ann entered into a limited liability limited partnership by executing a written partnership agreement. Decedents, as general partners each with a 49.5% partnership interest, made initial capital contributions of $750,000; and Jo Ann, as a limited partner with a 1% partnership interest, contributed $100.

T6 On the same day, decedents drafted joint wills. The wills devised each decedent's entire estate to his or her surviving spouse. However, in the event that there was no surviving spouse, the wills provided that Jo Ann would receive the interests in the limited partnership. The wills also provided that the decedents' two sons, Edward E. Grosboll and Robert N. Grosboll, would equally divide the residuary estate.

T7 On separate dates in 2009 and 2010, decedents and Robert died3 Edward was informally appointed personal representative of decedents' estate.

T8 When decedents died, Loma Vista was titled in their individual names. After their deaths, a foreclosure action was initiated against it. A few days before the foreclosure sale date, Jo Ann and the personal representative sold Loma Vista and another apartment building owned by Jo Ann to a single purchaser.

19 The purchaser executed a promissory note for the benefit of the estate, and made monthly payments to the estate. When the personal representative received these monthly payments, he distributed them to Jo Ann.

10 At the probate hearing, Robert's surviving sons contended that Loma Vista was an estate asset because it was titled in decedents' names. Thus, they asserted that the proceeds from its sale must be distributed among the residuary beneficiaries.

{11 In contrast, Jo Ann contended that, according to the terms of the written partnership agreement and the intention of the partners, Loma Vista was a partnership asset. The partnership agreement provided that (1) "[tlitle to all assets of the [plartnership shall be deemed to be owned by the [plartnership"; (2) "[rlecord title to any or all assets of the [plartnership may be held in the name of ... one or more nominees"; and (8) "[alll assets of the [plartnership shall be recorded as the property of the [plartnership in the books and records of the [plartnership, irrespective of the name in which record title to such assets is held." Jo Ann testified that when the partnership was established, she and decedents had agreed to make Loma Vista a partnership asset. Additionally, the accountant for the partnership testified that he treated Loma Vista as a partnership asset on the partnership books. Therefore, Jo Ann asserted she was entitled to the sale proceeds because decedents' wills devised their interests in the partnership to her.

{12 Relying on the statute of frauds, § 38-10-106, C.R.S.2018, the district court ruled that Loma Vista was not a partnership asset because decedents never executed a deed transferring it to the partnership, and further concluded that nothing in the partnership agreement overcame the statute of frauds requirement.

T 13 The district court subsequently denied a motion to reconsider, in which the personal representative and Jo Ann asserted the doctrines of resulting and constructive trusts supported Jo Ann's entitlement to the sale proceeds. The court then certified its orders as final pursuant to C.R.C.P. 54(b).

" 14 This appeal followed.

IL - Partnership or Estate Asset

Jo Ann contends that the district court erred when it applied the statute of frauds to conclude that Loma Vista was not a partnership asset. We agree.

We review de novo the district court's interpretation of Colorado law. See In re Estate of Beren, 2012 COA 208, ¶ 43, - [1287]*1287P.3d - (cert. granted Sept. 9, 2013); In re Estate of Reed, 201 P.3d 1264, 1267 (Colo.App.2008).

As adopted in Colorado, the statute of frauds provides in part:

No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands or in any manner relating thereto shall be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by deed or conveyance in writing subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereunto authorized by writing.

§ 38-10-106.

115 Here, decedents received title to Loma Vista before the partnership was created. They did not execute a deed transferring Loma Vista to the partnership. The district court concluded that without such a deed, Loma Vista could not be deemed a partnership asset:

[TJo satisfy [the] [statute of [firauds, the [dlecedents were required to issue a deed transferring their individual interest in Loma Vista to [the partnership]. No evidence was presented to the [cJourt establishing that the property was in fact transferred to [the partnership]. Nothing in the [plartnership [algreement for [the partnership] overcomes this [statute of [flrauds requirement.

1116 Colorado appellate courts have not directly addressed whether real property owned individually by one who enters into a partnership may become a partnership asset without a written conveyance sufficient to satisfy the statute of frauds. A conflict exists among other states that have addressed the issue.

17 Apparently, this conflict stems from the historical treatment of partnerships. At common law, a partnership was not regarded as a legal entity, and could not hold or convey title to property independently of the partners.

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Cite This Page — Counsel Stack

Bluebook (online)
2013 COA 141, 315 P.3d 1284, 2013 WL 5761106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grosboll-v-grosboll-coloctapp-2013.