23CA0847 Lucero v Morales 07-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0847
Weld County District Court No. 22CV30111
Honorable Shannon D. Lyons, Judge
Vincent John Lucero,
Plaintiff-Appellant,
v.
J. Pedro Morales,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division IV
Opinion by JUDGE NAVARRO
Pawar and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2024
Law Office of Leonard R. Higdon, PLLC, Leonard R. Higdon, Greenwood Village,
Colorado, for Plaintiff-Appellant
Lucero & Associates, R. Antonio Lucero, Denver, Colorado, for Defendant-
Appellee
1
¶ 1 Plaintiff, Vincent John Lucero, appeals the district court’s
judgment partitioning real property that he owned jointly with
defendant, J. Pedro Morales. We affirm.
I. Factual and Procedural History
¶ 2 In May 1996, defendant purchased the subject commercial
property and added plaintiff (his stepson) to the title as a joint
tenant. Defendant operated a repair business, L&M Auto, on the
property. After the business was closed, the parties disagreed
about the disposition of the property. Plaintiff then brought this
lawsuit, seeking severance of the joint tenancy and equitable
partition of the property.
¶ 3 The district court held a bench trial and then issued a written
order. According to the evidence admitted at trial and the court’s
factual findings, the property was purchased for $55,000 in May
1996. Defendant was the only person to contribute to the down
payment of $16,000, providing a check for $3,000 and a car valued
at $13,000. The remaining $39,000 was supplied via a loan as
documented by a promissory note executed by both parties in their
individual capacities. Defendant made monthly payments on the
promissory note until March 2001, when he took out a loan on his
2
residence to pay off the remaining balance. The promissory note
was cancelled on March 12, 2001.
¶ 4 Plaintiff testified that the funds defendant used to pay the
mortgage came from business proceeds of L&M Auto, to which both
parties were entitled. But the court did not find plaintiff’s
testimony credible, instead finding that he did not make any
contribution to the down payment or pay anything toward the
mortgage and that defendant made the mortgage payments out of
his own funds.
¶ 5 Defendant testified that, from 1996 to 2020, he and his wife
paid the property taxes and that plaintiff did not contribute to those
payments. Although plaintiff testified to the contrary, claiming that
he paid property taxes and bills with business funds, the court
found defendant’s testimony more credible because plaintiff failed
to present written evidence showing that the business had paid
those taxes.
¶ 6 Regarding L&M Auto, plaintiff testified that he was responsible
for the “business aspects” and that defendant did the mechanical
work. Plaintiff gave varied testimony about the ownership of L&M
Auto, testifying that it was a sole proprietorship but also that it was
3
a partnership he co-owned with defendant. But plaintiff presented
no documentary evidence of such a partnership. After weighing the
conflicting testimony, the court found that defendant was the
“principal in the business” and that plaintiff was only “peripherally
involved” in it.
¶ 7 The court concluded that the parties owned the property in
joint tenancy, and the court considered the contributions of each
party to equitably divide the proceeds from a future sale. The court
found that defendant paid the entire purchase price and property
taxes without any contribution from plaintiff. The court therefore
decided that defendant’s contribution was $55,000 (purchase price)
plus $91,988.20 (property taxes) for a total of $146,988.20.
Because plaintiff’s claim was based only “upon his position as a co-
owner under joint tenancy,” the court found plaintiff’s contribution
to the property was “essentially zero.”
¶ 8 In particular, the court found the “existence of L&M [Auto] and
the purported business partnership” between plaintiff and
defendant was not relevant to the disposition of the property. This
was true because (1) the property was owned in both party’s
individual capacities (not by a business entity); (2) to the extent
4
L&M Auto might have paid expenses that improved the condition of
the property, they were not well documented; and (3) there was
evidence that both plaintiff and defendant drew a distinction
between the property and the business. No credible evidence was
presented showing that the business paid the mortgage or the
property taxes. Instead, the court found that the business paid
rent to defendant for use of the property and paid compensation to
plaintiff “as an officer of L&M [Auto].”
¶ 9 The court further concluded as follows:
Given the length of time since the property was
acquired, the fact that Defendant was the more
responsible party who made all the payments
on the mortgage and paid all the property
taxes on the property, and the principles
concerning the time-value of money, the Court
finds it is equitable to quadruple the amount
of Defendant’s purchase price paid and to
double the amount of the overall property
taxes paid. Therefore, the Court shall credit
Defendant with $55,000 (purchase price) x 4 =
$220,000 plus $91,988.20 (property taxes) x 2
= $183,976.40, for a total credit of
$403,976.40. Neither party is entitled to any
special credits for other maintenance or
property improvements.
Thus, upon sale of the property, after payment
of closing costs and commissions, Defendant
shall receive the first $403,976.40. Thereafter
each party shall receive 50% of remaining
5
proceeds after payment of closing costs and
commissions. The parties shall split payment
of all closing costs and commissions 50/50.
¶ 10 On appeal, plaintiff argues that the district court erred by
(1) concluding that his alleged ownership of the business and
asserted partnership with defendant was irrelevant “to the issue of
contribution and equitable division”; and (2) crediting defendant
with quadruple the amount of contributions to the acquisition of
the property and double the amount of property taxes paid.
II. Credit for Contributions
¶ 11 As best as we can understand plaintiff’s first argument, he
contends that, because defendant’s payments toward the property’s
mortgage and taxes derived from the profits of their so-called
partnership, the district court should have found that such a
partnership existed and then credited plaintiff with an equal portion
of those payments when measuring the parties’ contributions to the
property. Given the evidence before the court, we are not
persuaded that it abused its discretion.
A. Relevant Principles
¶ 12 “A court’s function when deciding a partition action is not to
create new interests in property held by tenants in common[] but is
6
merely to sever the unity of possession owned by the tenants.”
Martinez v. Martinez, 638 P.2d 834, 836 (Colo. App. 1981). Thus,
when partitioning property held by tenants in common, who each
possess an undivided one half interest, the court may only assign
one half interest in the property to each tenant, not a greater share
that these same principles apply to partitioning property held in
joint tenancy. Having discovered no contrary authority, we also
agree.
¶ 13 A partition suit is an equitable proceeding, and a court must
make a “complete adjudication as to the rights of all persons to the
property.” Id. Under section 38-28-110, C.R.S. 2023,
The court at any time may make such orders
as it may deem necessary to promote the ends
of justice to completely adjudicate every
question and controversy concerning the title,
rights, and interest of all persons whether in
being or not, known or unknown, and may
direct the payment and discharge of liens and
have the property sold free from any lien or
may apportion any lien among the persons to
whom the partition is made.
After the court has divided the property, the court may then, to
reach an equitable result, “compute the contribution of each tenant
7
and offset any amount owing against the one half share held by
¶ 14 We review a trial court’s fashioning of an equitable remedy for
an abuse of discretion.
1
See Young Props. v. Wolflick, 87 P.3d 235,
237 (Colo. App. 2003). A court abuses its discretion only where it
misapplies or misconstrues the law, or if its decision is manifestly
arbitrary, unreasonable, or unfair. Gagne v. Gagne, 2019 COA 42,
¶ 16.
B. Application
¶ 15 We first emphasize that this action was brought simply to
partition real property. Plaintiff did not bring a cause of action
accusing defendant of misappropriation of profits from an alleged
partnership or any other misconduct related to the alleged
1
We disagree with plaintiff that de novo review is appropriate. His
contention does not require us to interpret a statute but merely to
review the district court’s equitable remedy.
8
partnership.
2
So we assume that defendant was fully entitled to
whatever money he received from the business. According to the
district court’s findings, defendant then used his own funds —
including taking out a mortgage on his home — to pay the mortgage
on the subject property and the property taxes. Plaintiff, although
paid compensation by the business, contributed nothing toward the
mortgage or the property taxes. On this record, we cannot conclude
that the court abused its discretion by crediting defendant with the
contributions at issue.
¶ 16 First, the evidence shows that defendant paid the full down
payment for the property. Plaintiff did not indicate that he
contributed anything to the down payment.
¶ 17 Second, as to the mortgage payments, the court noted that
numerous receipts evidenced payments from defendant to the prior
2
As the district court aptly put it at the bench trial,
[T]o the extent that anybody feels like they
were taken advantage of, or did not receive
their due compensation or business interests
out of the business, I’m really not
interested. . . . [I]t’s not something I’m going to
decide in this case. There’s not a lawsuit
about that. . . . I’m only divvying up the
property.
9
owners and that no evidence showed that the business made any of
those payments. And defendant testified that plaintiff did not give
him money for those payments. While plaintiff testified to the
contrary, the court credited defendant’s testimony over plaintiff’s.
As noted, defendant obtained a loan on his home to pay off the
mortgage early, also without contribution from plaintiff. Plaintiff
testified that he knew the loan was paid in full at some point but
did not know specifics, and the record showed it was paid off while
he was incarcerated.
¶ 18 Third, although plaintiff testified that he used business
proceeds to pay property taxes, no other evidence supported his
claim. Instead, defendant testified that he and his wife paid all
property taxes, which testimony the court found more credible than
plaintiff’s claim. Hence, the court determined that defendant was
the only one to contribute to property taxes for the duration of
property ownership.
¶ 19 To calculate the total of defendant’s contributions for property
taxes, the court relied on property tax records and receipts showing
the actual and assessed value of the property. While no evidence
was presented of property taxes paid from 1996 to 2007, the court
10
extrapolated the amount of property taxes paid for those years by
using the average amount of taxes paid from 2009 through 2021.
And the court included its calculations as an attachment to the
order.
¶ 20 The court had wide discretion in this partition action. See
Young Props., 87 P.3d at 237. Given that the court’s factual
conclusions are supported by the record, we do not see an abuse of
discretion and will not disturb the court’s findings. See E.S.V. v.
People in Interest of C.E.M., 2016 CO 40, ¶ 24 (“The credibility of
witnesses, the sufficiency, probative effect and weight of the
evidence, and the inferences and conclusions to be drawn therefrom
are all within the province of the district court, and we will not
disturb that court’s conclusions on review unless they are so clearly
erroneous as to find no support in the record.”).
¶ 21 Finally, even if some company funds were used to pay
expenses related to the property, that assumed fact would not
bolster plaintiff’s claim. The court found not credible his assertion
that he was significantly involved in the business. Instead, the
court found that defendant was the principal (if not, sole) owner of
11
the business. Because it has record support, we must defer to this
¶ 22 Accordingly, we conclude that the court did not abuse its
discretion by crediting defendant for his contributions to the
purchase of the property and payment of property taxes.
III. Scaling of Contributions
¶ 23 Plaintiff next contends that the district court erred by crediting
defendant with quadruple the amount of his actual contributions
for the cost of purchasing the land and double the amount of actual
contributions for the property taxes. Given the court’s broad
discretion over this equitable matter, we see no reason to reverse.
A. Relevant Principles
¶ 24 To repeat, a partition suit is an equitable proceeding and after
the court has divided the property, it may “compute the
contribution of each tenant and offset any amount owing against
the one half share held by each tenant.” Martinez, 638 P.2d at 836.
Determining those contributions falls within the court’s discretion.
¶ 25 In this process, a court typically begins with the value of the
property being partitioned and assigns half to each party. Martinez,
12
638 P.2d at 837. The court then subtracts one half of the plaintiff’s
contribution from the defendant’s share and adds one half of the
plaintiff’s contribution to the plaintiff’s share. Id. This is repeated
by subtracting one half of the defendant’s contribution from the
plaintiff’s share and adding one half of the defendant’s contribution
to the defendant’s share. Id.
B. Relevant Facts and Application
¶ 26 The court quadrupled defendant’s attributed contributions to
the purchase price of the property from $55,000 to $220,000 and
doubled defendant’s attributed contributions for the payment of
property taxes from $91,988.20 to $183,976.40. The court found it
equitable to increase defendant’s contributions in light of “the
length of time since the property was acquired, the fact that
Defendant was the more responsible party who made all the
payments on the mortgage and paid all the property taxes on the
property, and the principles concerning the time-value of money.”
The court therefore ordered that defendant receive the first
$403,976.40 of any sale proceeds and each party receive 50% of the
remaining proceeds after payment of closing costs and
commissions.
13
¶ 27 The record and common sense support the court’s rationale.
Even though the court did not know the exact value of the property
because it had not yet been sold (and no party asserted an
estimated value through an appraisal), the property’s value would
necessarily have appreciated over the prior twenty-seven years, so
the value of defendant’s contributions would have increased.
3
Because the court was tasked with finding an equitable remedy, it
could consider each party’s involvement and responsibility as it
related to the property’s value. Because the district court enjoys
wide powers while sitting in equity, we may not substitute our
¶ 22 (“We ‘may not reweigh evidence or substitute [our] judgment
for that of the trial court.’” (quoting Target Corp. v. Prestige Maint.
USA, Ltd., 2013 COA 12, ¶ 24)). And because the court supplied a
reasonable justification for its decision, we see no abuse of
discretion.
3
The record contains property valuations for tax purposes and an
agreed-upon listing price of $650,000 from an exclusive right-to-sell
listing contract executed before the lawsuit, although the parties
did not end up listing the property at that time. This information
supports a finding that the property’s value substantially
appreciated over the relevant time.
14
¶ 28 Additionally, when the parties do not present thorough
evidence to assist a court in partitioning the property, or where
there is no final sale amount, a court must rely on the evidence
presented to it to the best of its ability. See In re Marriage of
Rodrick, 176 P.3d 806, 815 (Colo. App. 2007) (“It is the parties’ duty
to present the trial court with the data needed to allow it to value
the marital property, and any failure by the parties in that regard
does not provide them with grounds for review.”); see also In re
Marriage of Nordahl, 834 P.2d 838, 842 (Colo. App. 1992)
(upholding business valuation where neither party provided expert
evidence and the trial court assessed value based on the only
evidence before it). Here, the court sufficiently considered the
evidence presented to determine defendant’s contributions and then
multiplied those values in accordance with the court’s discretionary
powers.
¶ 29 We also note that, while the court might not have followed
precisely the calculation process outlined in Martinez, this is likely
due to the fact that the court was not presented with the actual
value of the property. That is, the court did not have a precise
15
837 (accepting the parties’ stipulated value of the property at the
time of trial and using that to calculate the final interests). In
practice, however, the court’s order will reach the same outcome as
the method outlined in Martinez when the property is sold.
¶ 30 The court found that defendant is entitled to the first
$403,976.40 of profit from the sale and any remaining amount
would be split equally between the parties (because plaintiff is not
entitled to any contributions). This order accounts for defendant’s
contributions at the outset, rather than after the sale proceeds have
been evenly divided. Regardless of what the final sale price is,
however, the amounts allocated to each party remain the same
under either calculation method. And the court acted appropriately
by considering the parties’ contributions first and only then
considering the equitable remedy of increasing defendant’s share of
the property’s value. Practically, the court could not divide the
actual net equity of the property because there was no sale before
trial or stipulated value of the property. But the court’s order will
achieve the same financial division once the property is sold.
¶ 31 Consequently, we do not discern an abuse of discretion.
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IV. Conclusion
¶ 32 The judgment is affirmed.
JUDGE PAWAR and JUDGE JOHNSON concur.
