23CA1666 McGreevy v Jenkins 04-17-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1666 Arapahoe County District Court No. 18CV32241 Honorable Elizabeth Beebe Volz, Judge
William McGreevy and Colleen McGreevy,
Plaintiffs-Appellees and Cross-Appellants,
v.
Justin Tobias Jenkins,
Defendant-Appellant and Cross-Appellee.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE BROWN J. Jones and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 17, 2025
The Law Offices of Peter R. Bornstein, Peter R. Bornstein, Greenwood Village, Colorado, for Plaintiffs-Appellees and Cross-Appellants
Gersh & Thomaidis, LLC, James N. Thomaidis, Denver, Colorado, for Defendant-Appellant and Cross-Appellee ¶1 This is the second appeal in a dispute between Justin Tobias
Jenkins; his former wife, Mary E. Jenkins; and his former
parents-in-law, Colleen and William McGreevy. As relevant here,
the district court determined that Justin1 breached a joint venture
agreement with the McGreevys to purchase, remodel, and sell a
property and that the McGreevys were entitled to damages. The
McGreevys appealed, and a division of this court affirmed the
judgment in part, reversed it in part, and remanded the case with
specific instructions for the district court to make additional
findings and conclusions on certain claims and categories of
damages. See McGreevy v. Jenkins, (Colo. App. No. 21CA1249, Feb.
9, 2023) (not published pursuant to C.A.R. 35(e)) (McGreevy I).
¶2 On remand, the court reversed its original determination that
a joint venture existed and instead concluded that the parties had
entered into an oral contract, which rendered most of the McGreevy
I division’s remand instructions inapplicable. Justin appeals,
attempting to challenge parts of both the original and amended
1 Because the parties share last names, we refer to them
individually by first names and mean no disrespect in doing so.
1 judgments,2 and the McGreevys cross-appeal, principally arguing
that the district court exceeded the mandate from McGreevy I.
Because we agree with the McGreevys that the district court
exceeded the mandate, we reverse almost all of the amended
judgment,3 reinstate the original judgment except to the extent it
was reversed by McGreevy I, and again remand the case to the
district court to comply with the mandate from McGreevy I.
I. Background and Procedural History
A. The Joint Venture and the Divorce
¶3 The division in McGreevy I detailed the underlying facts, so we
only briefly reiterate those that are relevant to our disposition of
this appeal. See McGreevy I, No. 21CA1249, slip op. at ¶¶ 2-19.
¶4 In 2011, the McGreevys and the Jenkinses began working
together on a fix-and-flip project in Castle Rock, Colorado. The
Jenkinses purchased the property in their names for $246,000 —
2 During oral argument, Justin’s attorney said that Justin was not
attempting to challenge portions of the original judgment that were not affected by the district court’s amended judgment, but his briefs clearly contradict this, as detailed below. 3 We leave undisturbed the part of the amended judgment denying
the McGreevys attorney fees under section 13-17-102, C.R.S. 2024, because they did not appeal that issue.
2 they made a down payment of $61,500 and obtained a mortgage
loan of $184,500. The McGreevys took out a $157,000 home equity
line of credit (HELOC) on their personal residence to provide the
down payment, pay off some of Justin’s debt so he could get a
better interest rate on the mortgage, and fund the renovation of the
house. Colleen McGreevy testified that, while the renovation was in
progress, the McGreevys also used funds from the HELOC to make
the monthly mortgage payments for the Jenkinses. Colleen said
they used all the HELOC funds and had to put another $10,000 or
more into the project.
¶5 After the renovation was completed, the Jenkinses rented out
the house under a five-year lease for $2,500 a month and used the
rental income to pay the monthly mortgage payments and the
interest on the McGreevys’ HELOC. The renter later purchased the
house for $480,000, and the net proceeds from the sale — after
paying closing costs and the Jenkinses’ mortgage — were
$299,223.76. By the time the house was sold, Justin and Mary
were in the midst of a divorce and disagreed about how to distribute
the sale proceeds.
3 ¶6 Eventually, the domestic relations court found that Mary did
not present sufficient evidence to establish that the McGreevys had
an interest in the property or that the Jenkinses had to repay the
McGreevys for their financial assistance. The domestic relations
court found that the McGreevys’ financial assistance was a gift to
the marriage and treated the proceeds from the sale of the home as
marital property. Although the domestic relations court
disproportionately allocated the sale proceeds between Mary and
Justin — $249,763.16 to Mary and $49,236.84 to Justin — it also
allocated the marital home, worth $207,870, to Justin and
otherwise equitably divided the marital estate.
B. The Underlying Lawsuit
¶7 The McGreevys filed a civil suit against Justin, asserting
claims for civil theft, breach of fiduciary duty, breach of a joint
venture agreement, and unjust enrichment. Justin asserted claims
against the McGreevys (as counterclaim defendants) and Mary (as a
third-party defendant) for breach of fiduciary duty, breach of
contract, and civil conspiracy.
¶8 The district court conducted a six-day bench trial and issued a
written order on May 14, 2021. The court found “that there is
4 ample evidence from which it can conclude that there was a joint
venture agreement between the McGreevys and the Jenkins[es] to
purchase and remodel a home for resale, i.e. fix-n-flip, and to share
equally between the two couples any losses or profits from this
venture.” The court also found that no contract existed because
“there was no meeting of the minds or agreement on an essential
element related to complete repayment to the McGreevys for
whatever amount they decided to contribute to the project.” It
rejected the McGreevys’ claims for unjust enrichment and civil theft
and implicitly dismissed their claim for breach of fiduciary duty as
moot because that claim sought the same economic damages as the
joint venture claim. It also rejected Justin’s civil conspiracy claim
and implicitly rejected Justin’s breach of fiduciary duty claim.
¶9 As for damages, the court found that the McGreevys should
have recovered half of the sale proceeds, totaling $149,611.88. The
court allocated to the McGreevys $31,613.14 that had been
deposited into the registry of the court after the divorce, leaving a
balance due to the McGreevys of $117,998.74. It entered judgment
against Justin for half that amount — $58,999.37 — finding that
Mary would be responsible for the other half but noting that the
5 McGreevys had not asserted any claims against her. On August 24,
2021, the court entered default judgment against Mary and
awarded Justin a sum certain in damages, resolving all remaining
claims.4
C. The First Appeal
¶ 10 On August 20, 2021, the McGreevys filed an appeal with this
court. They contended that the district court erred by (1) failing to
assess damages for return of their contribution to the joint venture;
(2) rejecting their civil theft claim; (3) declining to resolve their
breach of fiduciary duty claim; (4) failing to consider their request
for noneconomic damages; (5) denying their motion to add a claim
for exemplary damages; (6) declining to award prejudgment interest;
(7) declining to award them attorney fees for the breach of fiduciary
duty claim; and (8) declining to award them attorney fees under
4 The district court also entered an order on September 24, 2021,
adding awards of attorney fees and costs against Mary, and a “Judgment and Certification under Rule 54(b)” purporting to enter a “final judgment” on October 8, 2021. The McGreevy I division concluded that all claims were resolved and a final judgment was entered on August 24, 2021, when the court entered default judgment against Mary. See McGreevy v. Jenkins, (Colo. App. No. 21CA1249, Feb. 9, 2023) (not published pursuant to C.A.R. 35(e)).
6 section 13-17-102, C.R.S. 2024. McGreevy I, No. 21CA1249, slip
op. at ¶ 18.
¶ 11 Justin moved to dismiss the appeal, arguing that this court
lacked jurisdiction because the McGreevys appealed prematurely —
before all the claims were resolved — and because the district court
had not certified the judgment as final under C.R.C.P. 54(b). Id. at
¶¶ 17-18. A motions division of this court denied the motion to
dismiss and Justin’s subsequent motion to reconsider the order
denying the motion. Id. at ¶ 18. Justin also filed a notice of
cross-appeal on November 26, but the motions division dismissed it
for lack of jurisdiction because it was filed more than forty-nine
days after the district court entered its final judgment.5 See C.A.R.
5 C.A.R. 4(a)(1) provides, with exceptions not relevant here, that a
notice of appeal must be filed “within 49 days after entry of the judgment, decree, or order being appealed.” C.A.R. 4(a)(2) provides that, “[i]f one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this section (a), whichever period ends later.” Fourteen days after the McGreevys filed their notice of appeal was September 3, 2021. Forty-nine days from the district court’s August 24, 2021, final judgment was October 12, 2021. The motions division even gave Justin the benefit of calculating his appeal deadline from the court’s September 24, 2021, order, but even then, Justin’s notice of cross- appeal was due no later than November 12, 2021.
7 4(a)(1)-(2); People in Interest of M.R.M., 2021 COA 22, ¶ 42 (“Unless
a notice of appeal is timely filed, the court of appeals lacks
jurisdiction to hear the appeal.”) (citation omitted).
¶ 12 Justin re-raised his jurisdictional challenge in his answer
brief, arguing that the district court was required to certify its
judgment as final under C.R.C.P. 54(b) before the McGreevys could
appeal. McGreevy I, No. 21CA1249, slip op. at ¶ 18. The merits
division rejected that challenge, explaining that all claims were
resolved when the district court entered default judgment against
Mary in August 2021, which rendered the judgment final without
the need for a C.R.C.P. 54(b) certification. Id. at ¶¶ 21-24.
Although the division recognized that the McGreevys’ appeal had
been filed prematurely, it concluded that the district court’s entry of
default judgment against Mary cured any jurisdictional defect, and
that Justin had failed to show how he was prejudiced by the
premature filing. Id. at ¶¶ 25-26.
¶ 13 On the merits, the division affirmed the district court’s denial
of the McGreevys’ civil theft claim and their pretrial motion to
amend their complaint to seek exemplary damages. Id. at ¶¶ 35,
56. The division also affirmed the court’s joint venture liability
8 determination. Id. at ¶ 78. However, the division concluded that
the court erred by (1) failing to enter findings and conclusions as to
whether the McGreevys were entitled to a return of their
contribution to the joint venture under partnership law;
(2) effectively dismissing the McGreevys’ breach of fiduciary duty
claim as moot because that claim sought the same economic
damages as their breach of joint venture claim; (3) failing to explain
why it rejected the McGreevys’ claims for noneconomic damages
and attorney fees that might be available if the McGreevys were to
establish their breach of fiduciary duty claim; (4) denying the
McGreevys’ request for prejudgment interest; and (5) failing to
explain why it denied the McGreevys’ request for attorney fees
under section 13-17-102. See id. at ¶¶ 27, 42, 50-55, 61, 66, 72.
¶ 14 Consequently, the division reversed the judgment in part and
remanded for the district court to (1) enter findings and conclusions
as to “whether the McGreevys are entitled under partnership law to
a return of their contributions to the joint venture” and adjust the
damage award accordingly; (2) enter findings and conclusions as to
whether the McGreevys proved their claim for breach of fiduciary
duty and, if so, “consider any additional damages, including
9 noneconomic damages and attorney fees” they are entitled to
recover for that claim; (3) award prejudgment interest “once the
court determines the amount of the judgment”; and (4) enter
findings and conclusions “explaining its decision on the McGreevys’
request for fees” under section 13-17-102. Id. at ¶ 77.
D. Proceedings on Remand
¶ 15 On remand, the district court held a status conference and
ordered the parties to brief the remand issues. It did not receive
additional evidence. In an amended judgment, the court reversed
its prior joint venture liability determination and instead concluded
that the parties had entered into an oral contract.6 And because
the court determined that no joint venture existed, it reasoned “that
further analysis of the application of partnership law to the return
of contributions is unnecessary” and that “the [b]reach of [f]iduciary
[d]uty claim is inapplicable.”
¶ 16 The court did enter further findings, as directed by the
McGreevy I division, on the McGreevys’ request for attorney fees
6 We note that the McGreevys did not assert a claim against Justin
for breach of contract. Justin asserted a breach of contract claim against the McGreevys, but the district court denied it on the basis that there was no meeting of the minds and therefore no contract.
10 under section 13-17-102, concluding they were not entitled to fees
under that statute because Justin’s counterclaims were not brought
in bad faith and were not frivolous, groundless, or vexatious. The
court also separately determined the amount of prejudgment
interest. This appeal and cross-appeal followed.
II. The McGreevys’ Contentions
¶ 17 The McGreevys contend that the district court erred by
(1) violating the McGreevy I mandate by reversing its original
judgment and not otherwise following the remand instructions;
(2) concluding that an oral contract existed because that factual
finding is unsupported by the record; (3) failing to enter findings
and conclusions on whether the McGreevys proved their breach of
fiduciary duty claim; and (4) failing to adjust the damages award as
directed in the mandate. We conclude that the court violated the
McGreevy I mandate by reversing its original joint venture liability
determination. As a result, we also conclude that the court erred
by failing to enter findings and conclusions on the McGreevys’
breach of fiduciary duty claim and any damages associated with
that claim.
11 A. Compliance with the Mandate
1. Applicable Law and Standard of Review
¶ 18 “Under the mandate rule, ‘[c]onclusions of an appellate court
on issues presented to it as well as rulings logically necessary to
sustain such conclusions become the law of the case,’ which the
trial court must follow on remand.” Owners Ins. Co. v. Dakota
Station II Condo. Ass’n, 2021 COA 114, ¶ 24 (citation omitted). If
“an appellate court remands a case with specific directions . . . to
pursue a prescribed course, a trial court has no discretion except to
comply with the instructions.” People in Interest of M.D., 2014 COA
121, ¶ 18.
¶ 19 We review de novo whether a trial court followed a mandate
from the court of appeals. Thompson v. Catlin Ins. Co. (UK) Ltd.,
2018 CO 95, ¶¶ 20-22.
2. The District Court Failed to Follow the Mandate
¶ 20 The McGreevys contend that the district court violated the
McGreevy I mandate by reversing its previous joint venture liability
determination. We agree.
¶ 21 In its original judgment, the district court found the signature
features of a joint venture: the parties agreed to jointly invest in a
12 property; cooperated in the renovation and sale of the property; and
were to “share equally between the two couples any losses or profits
from this venture,” with each couple taking “the chance that there
would be losses and they would share equally in these losses or
there would be profits and each couple would share equally in the
profits.” See Scott R. Larson, P.C. v. Grinnan, 2017 COA 85, ¶ 45 (“A
joint venture exists when there is: (1) a joint interest in [the]
property; (2) an express or implied agreement to share in profits or
losses of the venture; and (3) actions and conduct showing joint
cooperation in the venture.”) (citation omitted); Colo. Performance
Corp. v. Mariposa Assocs., 754 P.2d 401, 405 (Colo. App. 1987)
(explaining that a “chief characteristic of a joint adventure is a joint
and not a several profit” (quoting Fedderson v. Goode, 145 P.2d
981, 985 (Colo. 1944))); Batterman v. Wells Fargo Ag Credit Corp.,
802 P.2d 1112, 1117 (Colo. App. 1990) (The element of joint and
not several profit sharing “is not present if one of the parties to the
alleged joint venture receives a fixed sum, irrespective of the
venture’s profits or losses, or if one of the parties could” enjoy
individual profit while the other enjoys individual loss.) (citation
omitted). Thus, the court found “ample evidence from which it can
13 conclude that there was a joint venture agreement” to “fix-n-flip”
the Castle Rock property and awarded the McGreevys damages for
Justin’s breach of that joint venture.
¶ 22 But the court did not award the McGreevys a return of their
initial contribution to the joint venture. The McGreevy I division
explained that “after finding that the parties had entered into a joint
venture relationship, the court was required to direct a return of
each partner’s contributions in the winding up of that joint venture,
unless the court found that the partners had agreed there would be
no return of their contributions.” McGreevy I, No. 21CA1249, slip
op. at ¶ 31; see §§ 7-64-103(1), -401(1)(a), -807(2), C.R.S. 2024; see
also Turkey Creek, LLC v. Rosania, 953 P.2d 1306, 1310 (Colo. App.
1998) (“The rights of a party to a joint venture agreement are
subject to any agreements between the parties of the venture.”).
The division was perplexed by the court’s seemingly contrary
findings that “[t]here was no provision that the Jenkins[es] would
first recoup all of their mortgage payments and there can be no
provision that the McGreevys recoup all of their expenditures before
these profits are calculated,” that the parties had no meeting of the
minds “related to complete repayment of the McGreevys for
14 whatever amount they decided to contribute,” and that the parties
agreed “to share equally in any losses or profits, without any
consideration of first paying back expenses.”
¶ 23 Unable to discern the basis for the court’s decision not to
award the McGreevys a return of their contribution, the McGreevy I
division reversed the original judgment on the joint venture claim
only as it related to the court’s computation of damages. It expressly
affirmed the judgment “[i]n all other respects,” which included
affirming the court’s determination that the parties had entered into
a joint venture and that Justin was liable to the McGreevys for
breaching it. McGreevy I, No. 21CA1249, slip op. at ¶¶ 77-78. The
division directed the court only to enter additional findings and
conclusions on whether the McGreevys “are entitled under
partnership law to a return of their contributions to the joint
venture” and to adjust the damage award accordingly. Id. at ¶ 77.
¶ 24 But on remand, the district court reversed course entirely,
finding that no joint venture agreement existed and that an oral
contract existed instead. And because it found no joint venture
agreement existed, it saw no need to comply with the McGreevy I
division’s instructions to apply partnership law and recalculate
15 damages on the breach of joint venture claim. The court’s amended
judgment effectively unwound the McGreevy I division’s decision to
affirm the joint venture liability determination. The court had no
discretion to revisit the parts of the judgment the McGreevy I
division affirmed or to ignore the division’s specific remand
instructions. See Owners Ins. Co., ¶ 24; M.D., ¶ 18. By doing both,
the court violated the mandate.
¶ 25 We reverse the amended judgment to the extent it determined
that no joint venture existed or found that an oral contract existed.
We again remand the case to the district court to comply with the
McGreevy I mandate.7
B. The Breach of Fiduciary Duty Claim
¶ 26 The McGreevys contend that the district court failed to enter
findings and conclusions on whether they proved their breach of
7 We note that the district court’s amended judgment said that “if a
[j]oint [v]enture did exist and the [c]ourt considered reimbursement to the parties for the ‘capital contributions’ such consideration would necessarily include return of the mortgage payments made by the Jenkins[es].” To the extent that the Jenkinses made mortgage payments that were not covered by the rental income, as Justin testified, or drawn from the McGreevys’ HELOC, as Colleen testified, we agree that the court should consider those unreimbursed contributions in recalculating damages.
16 fiduciary duty claim as required by the McGreevy I mandate. Again,
we agree.
¶ 27 In the original judgment, the court effectively dismissed the
McGreevys’ breach of fiduciary duty claim as moot because it
sought the same economic damages as the joint venture claim.
Recognizing that the McGreevys might be entitled to noneconomic
damages and attorney fees if they succeeded on the breach of
fiduciary duty claim, the McGreevy I division determined that the
claim was not moot and directed the court on remand to enter
findings and conclusions on whether the McGreevys proved the
claim and, if so, to consider whether noneconomic damages and
attorney fees should also be awarded. McGreevy I, No. 21CA1249,
slip op. at ¶¶ 48, 77.
¶ 28 On remand, the court reasoned that the breach of fiduciary
duty claim was “based on whether or not there was a [j]oint
[v]enture” because parties to a joint venture owe one another a
fiduciary duty. See Hooper v. Yoder, 737 P.2d 852, 857 n.4 (Colo.
1987) (“The substantive law of partnership applies to joint ventures
as well as partnerships,” and “[p]artners as well as joint venturers
are fiduciaries with respect to each other and owe to each other the
17 highest duty of loyalty.”). Because the court reversed its prior
finding that a joint venture existed, it determined that the
McGreevys’ breach of fiduciary duty claim “is barred” — presumably
because, in the absence of a joint venture, Justin would not owe the
McGreevys a fiduciary duty.
¶ 29 However, we have reversed the amended judgment to the
extent it found that a joint venture did not exist and have reinstated
the court’s original determination that a joint venture existed,
which means that the McGreevys and Justin owed each other a
fiduciary duty. See id. Consequently, we again remand to the
district court to determine, as the McGreevy I division instructed,
whether the McGreevys proved a breach of that duty and whether
they are entitled to noneconomic damages and attorney fees as a
result. McGreevy I, No. 21CA1249, slip op. at ¶ 77.
III. Justin’s Contentions
¶ 30 Justin contends that the district court erred in entering the
original judgment by (1) determining that the parties entered into a
joint venture agreement; (2) creating a “new and different” joint
venture agreement than the one the McGreevys alleged in their
complaint; and (3) computing damages inconsistent with the court’s
18 own findings.8 He also contends that the court erred in entering the
amended judgment by (1) determining that the parties entered into
an oral contract and (2) adopting essentially the same computation
of damages for the oral contract as it had for the joint venture
agreement.
¶ 31 To the extent that Justin attempts to appeal the district
court’s original judgment, we decline to address his arguments
because they were either not raised in a timely cross-appeal in
McGreevy I or were already rejected by the McGreevy I division. See
M.R.M., ¶ 42; Youngs v. Indus. Claim Appeals Off., 2012 COA 85M,
¶ 49 (“Once an issue has been raised and decided, it becomes the
law of the case.”). And because we have reversed the amended
judgment to the extent it found an oral contract, Justin’s
arguments that the court erred by finding a contract and adopting
its prior damage computation are moot. See People in Interest of
C.G., 2015 COA 106, ¶ 12 (explaining that “[a]n issue is moot when
8 Justin also said he was challenging the district court’s entry of
default judgment against Mary, but he failed to develop that argument, so we do not address it. See Taylor v. Taylor, 2016 COA 100, ¶ 13 (declining to address a contention stated in one paragraph in a conclusory nature that was unsupported by any substantial argument).
19 the relief sought, if granted, would have no practical effect on an
existing controversy” and that courts ordinarily refrain from
addressing a moot issue on the merits).
IV. Appellate Attorney Fees and Costs
¶ 32 The McGreevys request appellate attorney fees under C.A.R.
38(a), which provides for attorney fees as a sanction for failure to
comply with the appellate court’s orders or rules, and C.A.R. 38(b),
which provides for attorney fees as damages for frivolous appeals.
We decline to award attorney fees under C.A.R. 38(a) because we
perceive no sanctionable violation of this court’s orders or rules.
But we conclude that the McGreevys are entitled under C.A.R. 38(b)
and section 13-17-102(4) to recover appellate attorney fees incurred
in connection with Justin’s attempt to relitigate claims relating to
the original judgment and first appeal.
¶ 33 An appeal may be frivolous as filed or as argued. Calvert v.
Mayberry, 2019 CO 23, ¶ 45. An appeal “is frivolous as filed when
there are no legitimately appealable issues because the judgment
below ‘was so plainly correct and the legal authority contrary to the
appellant’s position so clear.’” Id. (quoting Castillo v.
Koppes-Conway, 148 P.3d 289, 292 (Colo. App. 2006)). If there are
20 legitimately appealable issues, then “an appeal may still be frivolous
as argued if the appellant ‘fail[s] to set forth . . . a coherent
assertion of error, supported by legal authority.’” Id. (quoting
Castillo, 148 P.3d at 292).
¶ 34 The arguments that Justin raises relative to the district court’s
amended judgment and the new finding that a contract existed are
not frivolous even though we did not reach their merits. However,
Justin’s continued efforts to relitigate issues related to the original
judgment that were either rejected by the McGreevy I division or not
timely appealed in the first instance are frivolous and waste this
court’s and the McGreevys’ resources. See Calvert, ¶ 45; Castillo,
148 P.3d at 292 (“Sanctions under Rule 38 thus perform two vital
functions: They compensate the prevailing party for the expense of
having to defend a wholly meritless appeal, and by deterring
frivolity, they preserve the appellate calendar for cases truly worthy
of consideration.” (quoting Finch v. Hughes Aircraft Co., 926 F.2d
1574, 1578 (Fed. Cir. 1991))). Thus, the McGreevys are entitled to
recover attorney fees incurred in connection with those issues, to
the extent those fees can be separately quantified. They are also
entitled to their costs under C.A.R. 39(a)(3).
21 ¶ 35 In a footnote, Justin reiterates his prior request for attorney
fees and costs incurred in seeking dismissal of and responding to
the McGreevys’ first appeal. For similar reasons, we reject his
request.
¶ 36 Pursuant to C.A.R. 39.1, we direct the district court on
remand to (1) determine the amount of reasonable attorney fees and
costs the McGreevys incurred on appeal related to the issues that
Justin attempts to relitigate, if those fees can be separately
quantified; and (2) determine how the award of attorney fees should
be allocated as between Justin and his attorney, see
§ 13-17-102(3); Castillo, 148 P.3d at 293.
V. Disposition
¶ 37 We reverse the district court’s amended judgment — except as
to its denial of the McGreevys’ request for attorney fees under
section 13-17-102, which was not appealed and therefore remains
undisturbed — and reinstate the court’s original judgment except to
the extent that it was otherwise reversed by the McGreevy I division.
On remand, the court should take the following steps:
• With respect to the joint venture claim, the court must
decide whether the parties (a) agreed not to reimburse
22 contributions or (b) never reached any agreement on the
reimbursement of contributions. If the court finds that the
parties agreed not to reimburse contributions, then the
McGreevys are not entitled to recover their contributions
and the court’s original damages calculation as to this claim
may stand. If the court finds that the parties never reached
an agreement, then the court must award the McGreevys
additional damages for a return of their contributions.
• With respect to the breach of fiduciary duty claim, the court
must determine whether the McGreevys proved the
elements of the claim. If the court determines that the
McGreevys did not prove the claim, the court must make
findings and conclusions denying the claim on the merits.
If the court determines that the McGreevys proved the
claim, it must make findings and conclusions supporting
that decision and determine whether the McGreevys are
entitled to noneconomic damages and attorney fees flowing
from that claim.
• If the court amends the amount of damages it awards the
McGreevys based on either the joint venture claim or the
23 breach of fiduciary duty claim, then it must also recalculate
and award prejudgment interest on the modified damages.
• The court must determine the amount of appellate attorney
fees and costs the McGreevys incurred related to the issues
that Justin attempts to relitigate and how the award of fees
should be allocated as between Justin and his attorney.
JUDGE J. JONES and JUDGE YUN concur.