25CA0095 Swiecicki v Mielke 02-12-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0095 Summit County District Court No. 21CV30149 Honorable Reed W. Owens, Judge
Wiliam Swiecicki,
Plaintiff-Appellee,
v.
Gretchen Mielke,
Defendant-Appellant.
APPEAL DISMISSED
Division III Opinion by JUDGE DUNN Moultrie and Bernard*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 12, 2026
Montgomery Little & Soran, P.C., Alyson Evett, James Taravella, Greenwood Village, Colorado, for Plaintiff-Appellee
Foster, Graham, Milstein & Calisher, LLP, Chip G. Schoneberger, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Defendant, Gretchen Mielke, appeals the district court’s order
denying her postjudgment request to purchase property. Because
we conclude that we lack jurisdiction, we dismiss the appeal.
I. Background
¶2 In 2016, Mielke and her partner, plaintiff, Wiliam Swiecicki,
bought property in Breckenridge, Colorado, on which they planned
to build a custom home. A few years later, the couple ended their
relationship, and a dispute arose over the property. At the time,
Swiecicki was living on the property; Mielke was not. Swiecicki filed
a complaint seeking, as relevant here, to partition the property.
¶3 After a bench trial, the district court issued a written
judgment in February 2024 (judgment). The judgment apportioned
“50% of the equity in the [p]roperty to each party” and granted
Swiecicki, who still resided at the property, thirty-five days to buy
Mielke’s equitable share of the property. But if Swiecicki couldn’t
do that, the judgment provided that the property would be
“promptly listed and sold at private sale and the proceeds shall be
split” equally between the parties. The judgment contained no
reciprocal right for Mielke to purchase Swiecicki’s equitable share of
the property.
1 ¶4 Mielke did not appeal the judgment.
¶5 Swiecicki was unable to purchase Mielke’s equitable share of
the property within the required timeframe. Mielke then moved for
an opportunity to purchase Swiecicki’s equitable share of the
property, or, alternatively, for the appointment of a commissioner to
sell the property.
¶6 In April 2024, the court expressly denied Mielke’s request to
purchase Swiecicki’s equitable share of the property, finding that
her requested relief was not “equitable under the circumstances”
(April order). The court appointed a commissioner to sell the
property in a public sale and distribute the proceeds.
¶7 Mielke did not appeal the April order.
¶8 After the commissioner listed the property for sale, Mielke
submitted an offer to purchase it. Based on the judgment and the
April order, the commissioner did not believe that she had “the
authority to accept” Mielke’s purchase offer and sought “clarity”
from the court.
¶9 On December 2, the court entered an order stating, “[a]s
outlined in the [c]ourt’s previous order, the property is to be sold at
market to third party at the best and highest possible price that a
2 true market dictates, and the proceeds split accordingly.” The court
also “confirm[ed] that neither party to this case may purchase the
property via sale at market.”
¶ 10 Mielke’s father then submitted an offer to purchase the
property. The commissioner again sought clarification from the
court. After a hearing on the matter, the court issued an order on
December 4, incorporating its December 2 order and clarifying that
the “market sale” of the property “shall not be made to either party”
or to “any other person or entity on their behalf or for their benefit.”
And the order specified that the “sale must be to a bona fide third
party purchaser who is not connected to these proceedings.”
¶ 11 Mielke appealed the December 2 and December 4 orders.
Swiecicki filed a motion to dismiss the appeal as untimely, arguing
that the December postjudgment orders were not final, appealable
orders. A motions division of this court agreed as to the December
4 order and dismissed the appeal of that order with prejudice. It
deferred the motion to dismiss the December 2 order to this
division.
3 II. Appellate Jurisdiction
¶ 12 We now consider whether the December 2 order is a final,
appealable order. Swiecicki argues that it is not and, therefore, this
court lacks jurisdiction. Mielke disagrees.
¶ 13 Our jurisdiction is generally limited to final judgments. C.A.R.
1(a). Typically, a judgment is final if it disposes of the entire
litigation on the merits, leaving nothing for the court to do but
execute on the judgment. Mulberry Frontage Metro. Dist. v. Sunstate
Equip. Co., 2023 COA 66, ¶ 14. In postjudgment proceedings,
however, “the final judgment rule has distinct contours.” AA
Wholesale Storage, LLC v. Swinyard, 2021 COA 46, ¶ 10. In that
context, the underlying action has already concluded with the entry
of a final judgment, even as some part of the action remains “live.”
Id. at ¶ 12 (quoting Luster v. Brinkman, 250 P.3d 664, 667 (Colo.
App. 2010)).
¶ 14 To determine whether a postjudgment order is final, we
consider whether the order (1) ends “the particular part of the
action in which it is entered,” leaving “nothing further for the court
pronouncing it to do in order to completely determine the rights of
the parties as to that part of the proceeding”; and (2) is “more than
4 a ministerial or administrative determination,” such that it “affect[s]
rights or create[s] liabilities not previously resolved by the
adjudication of the merits.” Id. at ¶¶ 13-16 (citations omitted).
¶ 15 We review jurisdictional questions de novo. Id. at ¶ 7.
Without a final judgment, we must dismiss the appeal. State ex rel.
Suthers v. CB Servs. Corp., 252 P.3d 7, 10 (Colo. App. 2010).
¶ 16 The judgment completely determined the parties’ rights with
respect to the partitioned property. It provided a limited and
nonreciprocal right for Swiecicki — who lived on the property — to
purchase Mielke’s equitable share of the property. See Martinez v.
Martinez, 638 P.2d 834, 836 (Colo. App. 1981) (allowing the
occupying party the opportunity to retain the subject property to
“reach an equitable result”). And it provided that if Swiecicki was
unable to do that, the property would be sold and the proceeds
divided equally. Mielke could have appealed the judgment, but she
didn’t.
¶ 17 But even assuming some confusion existed about Mielke’s
right to purchase Swiecicki’s equitable share of the property, the
court plainly and expressly resolved that confusion in the April
order when it denied Mielke’s motion for an opportunity to purchase
5 Swiecicki’s equitable share of the property, concluding that Mielke’s
request was “not equitable under the circumstances.” Had Mielke
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25CA0095 Swiecicki v Mielke 02-12-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0095 Summit County District Court No. 21CV30149 Honorable Reed W. Owens, Judge
Wiliam Swiecicki,
Plaintiff-Appellee,
v.
Gretchen Mielke,
Defendant-Appellant.
APPEAL DISMISSED
Division III Opinion by JUDGE DUNN Moultrie and Bernard*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 12, 2026
Montgomery Little & Soran, P.C., Alyson Evett, James Taravella, Greenwood Village, Colorado, for Plaintiff-Appellee
Foster, Graham, Milstein & Calisher, LLP, Chip G. Schoneberger, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Defendant, Gretchen Mielke, appeals the district court’s order
denying her postjudgment request to purchase property. Because
we conclude that we lack jurisdiction, we dismiss the appeal.
I. Background
¶2 In 2016, Mielke and her partner, plaintiff, Wiliam Swiecicki,
bought property in Breckenridge, Colorado, on which they planned
to build a custom home. A few years later, the couple ended their
relationship, and a dispute arose over the property. At the time,
Swiecicki was living on the property; Mielke was not. Swiecicki filed
a complaint seeking, as relevant here, to partition the property.
¶3 After a bench trial, the district court issued a written
judgment in February 2024 (judgment). The judgment apportioned
“50% of the equity in the [p]roperty to each party” and granted
Swiecicki, who still resided at the property, thirty-five days to buy
Mielke’s equitable share of the property. But if Swiecicki couldn’t
do that, the judgment provided that the property would be
“promptly listed and sold at private sale and the proceeds shall be
split” equally between the parties. The judgment contained no
reciprocal right for Mielke to purchase Swiecicki’s equitable share of
the property.
1 ¶4 Mielke did not appeal the judgment.
¶5 Swiecicki was unable to purchase Mielke’s equitable share of
the property within the required timeframe. Mielke then moved for
an opportunity to purchase Swiecicki’s equitable share of the
property, or, alternatively, for the appointment of a commissioner to
sell the property.
¶6 In April 2024, the court expressly denied Mielke’s request to
purchase Swiecicki’s equitable share of the property, finding that
her requested relief was not “equitable under the circumstances”
(April order). The court appointed a commissioner to sell the
property in a public sale and distribute the proceeds.
¶7 Mielke did not appeal the April order.
¶8 After the commissioner listed the property for sale, Mielke
submitted an offer to purchase it. Based on the judgment and the
April order, the commissioner did not believe that she had “the
authority to accept” Mielke’s purchase offer and sought “clarity”
from the court.
¶9 On December 2, the court entered an order stating, “[a]s
outlined in the [c]ourt’s previous order, the property is to be sold at
market to third party at the best and highest possible price that a
2 true market dictates, and the proceeds split accordingly.” The court
also “confirm[ed] that neither party to this case may purchase the
property via sale at market.”
¶ 10 Mielke’s father then submitted an offer to purchase the
property. The commissioner again sought clarification from the
court. After a hearing on the matter, the court issued an order on
December 4, incorporating its December 2 order and clarifying that
the “market sale” of the property “shall not be made to either party”
or to “any other person or entity on their behalf or for their benefit.”
And the order specified that the “sale must be to a bona fide third
party purchaser who is not connected to these proceedings.”
¶ 11 Mielke appealed the December 2 and December 4 orders.
Swiecicki filed a motion to dismiss the appeal as untimely, arguing
that the December postjudgment orders were not final, appealable
orders. A motions division of this court agreed as to the December
4 order and dismissed the appeal of that order with prejudice. It
deferred the motion to dismiss the December 2 order to this
division.
3 II. Appellate Jurisdiction
¶ 12 We now consider whether the December 2 order is a final,
appealable order. Swiecicki argues that it is not and, therefore, this
court lacks jurisdiction. Mielke disagrees.
¶ 13 Our jurisdiction is generally limited to final judgments. C.A.R.
1(a). Typically, a judgment is final if it disposes of the entire
litigation on the merits, leaving nothing for the court to do but
execute on the judgment. Mulberry Frontage Metro. Dist. v. Sunstate
Equip. Co., 2023 COA 66, ¶ 14. In postjudgment proceedings,
however, “the final judgment rule has distinct contours.” AA
Wholesale Storage, LLC v. Swinyard, 2021 COA 46, ¶ 10. In that
context, the underlying action has already concluded with the entry
of a final judgment, even as some part of the action remains “live.”
Id. at ¶ 12 (quoting Luster v. Brinkman, 250 P.3d 664, 667 (Colo.
App. 2010)).
¶ 14 To determine whether a postjudgment order is final, we
consider whether the order (1) ends “the particular part of the
action in which it is entered,” leaving “nothing further for the court
pronouncing it to do in order to completely determine the rights of
the parties as to that part of the proceeding”; and (2) is “more than
4 a ministerial or administrative determination,” such that it “affect[s]
rights or create[s] liabilities not previously resolved by the
adjudication of the merits.” Id. at ¶¶ 13-16 (citations omitted).
¶ 15 We review jurisdictional questions de novo. Id. at ¶ 7.
Without a final judgment, we must dismiss the appeal. State ex rel.
Suthers v. CB Servs. Corp., 252 P.3d 7, 10 (Colo. App. 2010).
¶ 16 The judgment completely determined the parties’ rights with
respect to the partitioned property. It provided a limited and
nonreciprocal right for Swiecicki — who lived on the property — to
purchase Mielke’s equitable share of the property. See Martinez v.
Martinez, 638 P.2d 834, 836 (Colo. App. 1981) (allowing the
occupying party the opportunity to retain the subject property to
“reach an equitable result”). And it provided that if Swiecicki was
unable to do that, the property would be sold and the proceeds
divided equally. Mielke could have appealed the judgment, but she
didn’t.
¶ 17 But even assuming some confusion existed about Mielke’s
right to purchase Swiecicki’s equitable share of the property, the
court plainly and expressly resolved that confusion in the April
order when it denied Mielke’s motion for an opportunity to purchase
5 Swiecicki’s equitable share of the property, concluding that Mielke’s
request was “not equitable under the circumstances.” Had Mielke
disagreed with the court’s clarification or objected that the order
affected her statutory partition rights, she could have appealed that
order, but, again, she didn’t.
¶ 18 Applying the postjudgment finality test, even if we assume the
judgment left open some question as to whether Mielke could
purchase Swiecicki’s equitable share of the property — and that is a
generous assumption — the April order fully resolved that issue and
held that Mielke could not purchase Swiecicki’s equitable share of
the property. The April order left “nothing further for the court
pronouncing it to do in order to completely determine the rights of
the parties involved in the proceeding.” Swinyard, ¶ 9 (quoting CB
Servs. Corp., 252 P.3d at 10). The December 2 order did nothing
more than reiterate the court’s “previous” order that Mielke could
not purchase Swiecicki’s equitable share of the property. Thus, the
December 2 order didn’t “affect[] rights or create[] liabilities not
previously resolved” in the April order. Id. at ¶ 16 (quoting Luster,
250 P.3d at 667).
6 ¶ 19 We are unpersuaded otherwise by Mielke’s claim that the
December 2 order “affected” her partition right to a public sale. The
judgment plainly stated that if Swiecicki could not purchase
Mielke’s equitable share of the property, the property would be
“promptly listed and sold at private sale and the proceeds [would]
be split by the Parties equally 50/50.” And the April order
appointed a commissioner to “allow for public sale and distribution
of the proceeds.” But neither the judgment nor the April order
granted Mielke the right to purchase Swiecicki’s equitable share of
the property, and, indeed, the April order expressly denied Mielke
that right. The December 2 order changed nothing; it was simply
ministerial. See Swinyard, ¶ 22. That is, it neither changed
Mielke’s statutory partition rights nor created liabilities not
previously resolved in the judgment and April order. See id. at
¶¶ 13, 16. Thus, if Mielke believed that her statutory partition
rights had been violated, or that policy considerations “compel[]
permitting a joint owner like Mielke to purchase the partitioned
property” at a public sale, her remedy was to timely appeal the
judgment or the April order.
7 ¶ 20 Because the December 2 order isn’t a final, appealable order,
we must dismiss the appeal for lack of jurisdiction.
III. Attorney Fees and Sanctions
¶ 21 Swiecicki asks us to award appellate attorney fees under
section 13-17-102, C.R.S. 2025, and C.A.R. 39.1, and to impose
sanctions under C.R.C.P. 11. He generally maintains that the
appeal lacks substantial justification and that it “appears to have
been in bad faith.”
¶ 22 We cannot conclude, however, that the appeal — though
untimely — is so lacking in substantial justification as to warrant
an attorney fee award under section 13-17-102 or Rule 39.1. See
W. United Realty, Inc. v. Isaacs, 679 P.2d 1063, 1069 (Colo. 1984)
(noting that a claim is not considered frivolous merely because it
ultimately proves unsuccessful). Nor can we conclude from this
record that the appeal was filed for an improper purpose “such as
to harass or to cause unnecessary delay or needless increase in the
cost of litigation,” C.R.C.P. 11(a), or that Mielke’s counsel did not
meet “the reasonable inquiry and proper purpose threshold in
preparing and filing the pleading,” People v. Trupp, 51 P.3d 985,
991 (Colo. 2002).
8 ¶ 23 We therefore decline Swiecicki’s request to award appellate
attorney fees and impose sanctions. Swiecicki is entitled, however,
to his costs. See C.A.R. 39.
IV. Disposition
¶ 24 The appeal is dismissed.
JUDGE MOULTRIE and JUDGE BERNARD concur.