Gunderson v. Gunderson

CourtColorado Court of Appeals
DecidedMarch 27, 2025
Docket24CA0334
StatusUnpublished

This text of Gunderson v. Gunderson (Gunderson v. Gunderson) 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
Gunderson v. Gunderson, (Colo. Ct. App. 2025).

Opinion

24CA0334 Gunderson v Gunderson 03-27-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0334 Mesa County District Court No. 22CV30428 Honorable Dinsmore Tuttle, Judge

Kimberly Gunderson,

Plaintiff-Appellant,

v.

Jerry Gunderson,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division VII Opinion by JUDGE MOULTRIE Lipinsky and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 27, 2025

Wegener Lane & Evans, P.C., Benjamin M. Wegener, Dalen B. Porter, Grand Junction, Colorado, for Plaintiff-Appellant

Starritt Legal, LLC, Sam D. Starritt, Grand Junction, Colorado, for Defendant- Appellee ¶1 Plaintiff, Kimberly Gunderson (Kimberly), appeals the district

court’s order declining to take judicial notice of certain rulings in

earlier civil litigation between her and defendant, Jerry Gunderson

(Jerry) (jointly, the parties or the Gundersons).1 Kimberly also

appeals the judgment entered on the jury’s award of zero damages

to her. We affirm.

I. Background

¶2 The Gundersons have been married for over twenty-five years

but have been embroiled in divorce proceedings since 2015. They

have also been embroiled in civil litigation spanning multiple states

since at least 2017. The prior proceedings relevant to this appeal

include (1) a civil case in Colorado that Jerry initiated against

Kimberly and others (the prior Colorado case); and (2) a civil case in

Nevada that Jerry initiated against Kimberly, The Kimberly

Gunderson Trust (Kimberly’s trust), and others (the Nevada case).

Based on these prior proceedings, Kimberly filed a lawsuit against

Jerry in which she alleged abuse of process and malicious

prosecution (the current Colorado case). In her complaint filed in

1 Because the parties share the same last name, we refer to them by

their first names. No disrespect is intended.

1 the current Colorado case, she requested a jury trial and an award

of economic and noneconomic damages.

¶3 Relevant to this appeal are the following facts about the

parties’ practice of purchasing real estate with funds from

Kimberly’s trust and the parties’ litigation history after Kimberly

filed for dissolution of marriage.

A. Kimberly’s Trust

¶4 In 2003, Kimberly’s father set up an irrevocable trust under

Nevada law. In 2005, the trustees of that trust formed a spendthrift

trust for Kimberly’s benefit — Kimberly’s trust. During their

marriage, the Gundersons purchased multiple homes using funds

borrowed from Kimberly’s trust. The trustees of Kimberly’s trust

conditioned the loans on Kimberly’s and Jerry’s execution of loan

documents, such as promissory notes, that required them to repay

the funds with interest and transfer title to the properties to

Kimberly’s trust. A Nevada limited liability company that

Kimberly’s trust owned (the LLC) generally held the titles to the

Gundersons’ various residential properties. The trustees didn’t

require the Gundersons to make payments on the principal or

interest on the loans when their marriage was intact; instead, the

2 parties were simply required to maintain the properties in good

condition.

¶5 Between 2005 and 2015, the parties followed this practice of

using funds borrowed from Kimberly’s trust to purchase various

properties in Nevada, Colorado, and Montana. In 2015, Kimberly

filed for dissolution of marriage in Montana, where the parties then

resided. In 2017, the LLC — which held notes secured by the

parcel of Colorado real property on which the Gundersons lived —

called the notes due. The notes expressly provided that the LLC

could demand full payment from Kimberly and Jerry individually or

jointly, and the LLC demanded that Jerry individually pay the notes

in full by April 2017. Thereafter, the parties began their yearslong

civil litigation battle.

B. The Prior Colorado Case

¶6 Jerry didn’t pay the notes as the LLC demanded. Rather, in

May 2017, he initiated the prior Colorado case against Kimberly,

Kimberly’s father, the LLC, and others seeking declaratory relief

related to the notes. Jerry also asserted claims of affirmative fraud,

negligent misrepresentation, and fraudulent concealment or

nondisclosure against Kimberly, Kimberly’s father, and the LLC. He

3 further pleaded contribution, promissory estoppel, and unjust

enrichment claims against Kimberly individually.

¶7 In December 2021, the court entered an order granting

Kimberly’s motion to dismiss four of Jerry’s seven claims against

her (the prior Colorado order). A month later, the court entered

judgment in favor of the LLC and concluded that the LLC was

entitled to collect the entire amount due under the notes from

either Kimberly or Jerry (the prior Colorado judgment). The court

also found in favor of Jerry on his contribution claim against

Kimberly and concluded that, after Jerry had satisfied his

obligations under the notes, he could seek contribution from

Kimberly.

C. The Nevada Case

¶8 Jerry filed the Nevada case in April 2018, while the prior

Colorado case was pending. In the Nevada case, he asserted similar

claims to those he brought in the prior Colorado case but included

as defendants Kimberly’s father’s trust, Kimberly’s trust, and their

respective trustees (collectively, the trust defendants). Jerry also

asserted that he had a marital property interest in Kimberly’s trust.

4 ¶9 In December 2018, the Nevada court entered an order granting

the trust defendants’ motion to dismiss Jerry’s complaint with

prejudice and concluding that Jerry had no interest in Kimberly’s

trust (the Nevada order).

¶ 10 Although the trust defendants were dismissed under the

Nevada order, the claims against Kimberly individually and the LLC

remained pending in the Nevada case. In March 2019, the Nevada

court entered a judgment in favor of the LLC and denied Jerry’s

request for judgment.

¶ 11 In September 2020, Kimberly, Kimberly’s trust, the LLC, and

Jerry stipulated to the dismissal, with prejudice, of Jerry’s

remaining claims against the various defendants (the stipulation).

The Nevada case ended once the Nevada court approved the

stipulation.2

D. The Current Colorado Case

¶ 12 In November 2022, Kimberly filed the current Colorado case,

in which she asserted that Jerry abused the legal process and

2 Jerry appealed the Nevada order dismissing his complaint against

the trust defendants to the Nevada Supreme Court; the court affirmed the Nevada order in December 2021.

5 maliciously prosecuted her based on the litigation in the prior

Colorado case and the Nevada case. The court scheduled the

current Colorado case for a four-day jury trial and ordered the

parties to file trial briefs at least fourteen days before trial.

¶ 13 Two months before trial, Kimberly filed her “Plaintiff’s

Unopposed Motion for Judicial Notice of Adjudicative Facts

Pursuant to C.R.E. 201” (the motion) and requested that the court

take judicial notice of the prior Colorado order, the prior Colorado

judgment, and the Nevada order (collectively, the prior rulings). The

court granted the motion.

¶ 14 In his trial brief, filed two weeks before trial, Jerry objected to

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