     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                            January 25, 2018

                                 2018COA7

No. 16CA198 In the Interest of Black — Probate — Persons
Under Disability — Conservators — Fiduciary Duties —
Conflicts of Interest

     In this conservatorship case, appellant Bernard Black, the

former conservator of his mentally-ill sister, appeals the probate

court’s order finding that he breached his fiduciary duties and

committed civil theft by converting his sister’s assets for his own

benefit.

     Construing section 15-14-423, C.R.S. 2017, which allows a

fiduciary to engage in a conflicted transaction under certain

circumstances, a division of the court of appeals holds that this

provision applies only when the fiduciary has disclosed the conflict

of interest and demonstrated that the conflicted transaction is
nonetheless reasonable and fair to the protected person. Because

Black did neither, he cannot seek safe harbor under the statute.

     The division also holds that the probate court had jurisdiction

to resolve the civil theft allegations and to impose civil theft

damages, that Black had notice of the allegations against him and

the remedies sought, and that the hearing was otherwise fair.

     Accordingly, the division affirms the probate court’s order.
COLORADO COURT OF APPEALS                                         2018COA6


Court of Appeals No. 16CA0198
City and County of Denver Probate Court No. 12PR1772
Honorable Elizabeth D. Leith, Judge


In the Interest of Joanne Black, Protected Person,

Appellee and Cross-Appellant,

v.

Bernard Black, in his Capacity as Trustee for the Supplemental Needs Trust for
the Benefit of Joanne Black,

Appellant and Cross-Appellee.


                        ORDER AFFIRMED AND CASE
                       REMANDED WITH DIRECTIONS

                                 Division VI
                         Opinion by JUDGE HARRIS
                       Furman and Berger, JJ., concur

                         Announced January 25, 2018


Holland Hart LLP, Christina Gomez, Matthew S. Skotak, Morgan M. Wiener,
Denver, Colorado, for Appellee

Davis Graham Stubbs LLP, Shannon Wells Stevenson, Paul D. Swanson,
Denver, Colorado, for Appellant
¶1      Bernard Black is the former conservator for his sister, Joanne

 Black. The probate court found that Mr. Black breached his

 fiduciary duty by converting Joanne’s1 assets for his own benefit.

 Based on its findings, the court surcharged Mr. Black in the

 amount of the converted funds and then trebled those damages

 under the civil theft statute.

¶2      Mr. Black’s primary argument on appeal is that he could not

 have breached his fiduciary duty because the conflicted transaction

 that resulted in the conversion of his sister’s assets was disclosed

 to, and approved by, the probate court. But we are not persuaded

 that Mr. Black complied with his obligations under section 15-14-

 423, C.R.S. 2017, the statute that he contends provides him safe

 harbor.

¶3      Nor are we persuaded that the court erred in finding Mr. Black

 liable for civil theft or that the evidentiary hearing was so unfair as

 to require reversal.

¶4      Accordingly, we affirm the probate court’s order.




 1   For ease of reading, we refer to Ms. Black by her first name.
                                     1
                             I. Background

                        A. Factual Background

¶5    The Black siblings’ mother died in New York in 2012. Mr.

 Black believed that his children would inherit one-third of mother’s

 entire estate. But his belief was mistaken.

¶6    Joanne suffers from chronic schizophrenia and cannot

 manage her own financial affairs. To account for Joanne’s

 condition, mother created a special needs trust (the SNT) and, in

 her will, devised two-thirds of her estate to the SNT. The remaining

 one-third of the estate was devised to a trust for the benefit of Mr.

 Black and his children (the Issue Trust).

¶7    The bulk of mother’s estate consisted of multiple accounts,

 including a Roth individual retirement account (Roth IRA), with a

 total value of approximately $3 million. Mr. Black expected that,

 upon mother’s death, the $3 million would become part of the

 estate and be distributed to the SNT and the Issue Trust. But

 shortly before her death, mother designated the accounts as

 payable-on-death (POD) directly to Joanne. (More precisely, mother

 left 95% of the value of the accounts to Joanne and 1% to each of

 Mr. Black’s five children from his first marriage. The Roth IRA was

                                    2
  left entirely to Joanne.) That left only the residual estate to be

  divided two-thirds to Joanne and one-third to Mr. Black and his

  children.

¶8     The discovery that he and his children had mostly been cut

  out of $3 million of mother’s estate did not sit well with Mr. Black.

  Nor did it sit well with Mr. Black’s second wife, with whom he had

  two children. Mr. Black’s wife, along with his older children,

  threatened to mount a legal challenge to the validity of mother’s

  POD designation.

¶9     As Mr. Black saw it, the situation presented only two options:

  his family could litigate the POD designation, or he could figure out

  another way to get what he considered to be his fair share of the

  money. But either way, as Mr. Black candidly admitted at the later

  evidentiary hearing, his goal was to “get the POD assets back into

  the estate.”

¶ 10   Mr. Black, a tenured law professor who has written on the

  subject of corporate directors’ fiduciary duties, decided that the best

  course of action was to seek appointment as Joanne’s conservator.




                                     3
  Then, acting on Joanne’s behalf, he could “disclaim”2 the money in

  the POD accounts, and the money would revert to the estate and be

  distributed two-thirds to the SNT and one-third to the Issue Trust.

  In this way, Mr. Black later explained, he could unilaterally correct

  the “mistake” made in mother’s designation of the POD accounts

  without enduring intra-family litigation.

                       B. Procedural Background

¶ 11   Joanne had been a longtime resident of New York. But at the

  time of mother’s death, Joanne was in Denver, homeless and in a

  deteriorated state. Thus, Mr. Black initiated the conservatorship

  action in the probate court in Denver. In his petition, he told the

  court that Joanne’s approximately $3 million in assets were at risk

  of being “wasted or dissipated” because mother had “inadvertently”



  2 To “disclaim” means to refuse to accept an interest in property.
  § 15-11-1202(3), C.R.S. 2017. A fiduciary may disclaim an interest
  in property on behalf of another. § 15-11-1205(2), C.R.S. 2017.
  Generally, if an interest in property is disclaimed, “the disclaimed
  interest passes as if the disclaimant had died immediately before
  the time of distribution,” § 15-11-1206(2)(c)(II), C.R.S. 2017, unless
  the instrument creating the interest provides otherwise, § 15-11-
  1206(2)(b). The parties appear to agree that once Mr. Black
  disclaimed Joanne’s interest in the POD accounts, those accounts
  became property of mother’s estate, to be distributed pursuant to
  the terms of her will.
                                    4
  designated the accounts as POD to Joanne, rather than routing the

  funds through the SNT. In support of his petition, Mr. Black

  emphasized that the “assets need to be secured.”

¶ 12   After a hearing on the petition in December 2012, during

  which Mr. Black first proposed the disclaimer as a method for

  securing the assets, the probate court appointed Mr. Black as

  Joanne’s conservator. The order of appointment authorized the

  conservator to disclaim Joanne’s interests in the POD accounts and

  further provided that “[Joanne’s] assets will be placed into a

  Supplemental Needs Trust for [Joanne’s] benefit.”

¶ 13   Mr. Black promptly executed the disclaimer. Pursuant to his

  plan, the POD assets (with the exception of the Roth IRA) were then

  redistributed two-thirds to the SNT and one-third to the Issue

  Trust. As for the $300,000 Roth IRA, Mr. Black simply moved those

  funds into new accounts in the name of his children.

¶ 14   Questions about the propriety of the disclaimer were first

  raised two years later. By that time, Joanne had returned to New

  York and parallel guardianship proceedings had been initiated in

  that state. During the course of those proceedings, and in response



                                    5
  to Joanne’s inquiries, Mr. Black admitted that he had diverted

  approximately $1 million of the POD assets to the Issue Trust.

¶ 15   Joanne’s court-appointed counsel filed a motion to void the

  disclaimer. Counsel argued that Mr. Black’s diversion of one-third

  of the POD assets was “antithetical to the terms and intent of

  [mother]. All of this money was meant for [Joanne’s] care and

  benefit.” Counsel alleged that, in failing to “preserve and maintain

  [Joanne’s] assets for her sole benefit,” Mr. Black had breached his

  fiduciary duty as Joanne’s conservator.

¶ 16   At a subsequent status conference, the court approved a

  request for an independent accounting of Joanne’s assets and

  scheduled an evidentiary hearing to resolve the issue of whether Mr.

  Black had properly disclosed his intent to redirect one-third of

  Joanne’s POD assets to Mr. Black’s children and whether the

  disclaimer gave Mr. Black the authority to do so. The court advised

  the parties that it would consider whether “disgorgement or

  unwinding of fiduciary actions” was appropriate.

¶ 17   Shortly before the first day of the evidentiary hearing, Joanne’s

  guardian ad litem (GAL) filed a motion alleging that Mr. Black’s



                                    6
  conduct amounted to civil theft and requesting that the court award

  treble damages.

¶ 18   The evidentiary hearing occurred over the course of four days,

  from June to September 2015. Following the hearing, the court

  issued a written “hearing order” finding that Mr. Black had

  breached his fiduciary duty to Joanne. Specifically, the court

  concluded that Mr. Black had failed to adequately disclose his

  intent to use the disclaimer to divest his sister of one-third of the

  POD assets and, therefore, he did not have the court’s authorization

  to redirect the assets. Mr. Black’s actions in redirecting the funds

  were “deceptive and undertaken in bad faith,” the court determined,

  and his conduct satisfied the elements of civil theft. Accordingly,

  the court “surcharged” — or, ordered reimbursement by — Mr.

  Black in the amount of $1.5 million, the value of the improperly

  diverted assets, including the Roth IRA. Then, under the civil theft

  statute, it trebled the damages.

                         II. Jurisdictional Issues

¶ 19   We begin by addressing Mr. Black’s jurisdictional challenges

  to the court’s hearing order. First, he contends that the probate

  court lacked jurisdiction to enter the hearing order because any

                                     7
  challenge to the disclaimer had to be brought under C.R.C.P. 60,

  the procedural mechanism for attacking a final judgment. And

  second, he says that he did not receive sufficient notice that the

  evidentiary hearing was a “surcharge proceeding.”

¶ 20   When resolution of a jurisdictional issue involves a factual

  dispute, we apply a clearly erroneous standard of review. Tulips

  Investments, LLC v. State ex rel. Suthers, 2015 CO 1, ¶ 11. But

  when there are no disputed facts, the determination of a court’s

  subject matter jurisdiction presents a question of law we review de

  novo. Id.

                 A. The Motion to Void the Disclaimer

¶ 21   Mr. Black argues that only a Rule 60(b) motion — not a

  motion to void the disclaimer — could undo the court’s order

  authorizing the disclaimer.

¶ 22   True, a final judgment may be vacated only as provided for in

  C.R.C.P. 60. In re Marriage of Scheuerman, 42 Colo. App. 206, 208,

  591 P.2d 1044, 1046 (1979). But the motion to void the disclaimer

  did not seek relief from a final order. Instead, the motion alleged

  that Mr. Black had breached his fiduciary duties to Joanne while

  acting as conservator, and it sought to unwind a transaction based

                                    8
  on this breach. Levine v. Katz, 167 P.3d 141, 144 (Colo. App. 2006)

  (“[I]t is the facts alleged and the relief requested that decide the

  substance of a claim, which in turn is determinative of the existence

  of subject matter jurisdiction.”) (citation omitted).

¶ 23   Thus, the probate court’s jurisdiction to conduct a hearing

  regarding a possible breach of Mr. Black’s fiduciary duties and to

  enter the hearing order (which, we note, did not unwind the

  transaction) was based not on Rule 60 but on the court’s authority

  to monitor fiduciaries over whom it has obtained jurisdiction. See

  § 15-10-501, C.R.S. 2017. Pursuant to section 15-10-503, C.R.S.

  2017, the probate court has authority, either by petition or on its

  own motion, to address alleged misconduct of a fiduciary.

  Accordingly, the court had jurisdiction to adjudicate the allegations

  and issues raised by the motion to void the disclaimer.

                    B. Notice of Surcharge Proceeding

¶ 24   Mr. Black further contends that the court lacked subject

  matter jurisdiction because he did not receive sufficient notice of

  the surcharge proceeding.




                                      9
¶ 25   Section 15-10-504, C.R.S. 2017, sets forth remedies, including

  imposition of a surcharge, against a fiduciary who has breached his

  fiduciary duties:

             (2) Surcharge. (a) If a court, after a hearing,
             determines that a breach of fiduciary duty has
             occurred or an exercise of power by a fiduciary
             has been improper, the court may surcharge
             the fiduciary for any damage or loss to the
             estate, beneficiaries, or interested persons.
             Such damages may include compensatory
             damages, interest, and attorney fees and costs.

  See also § 15-10-503(2)(g) (listing remedies available for fiduciary’s

  breach of his duties, including “[a] surcharge or sanction of the

  fiduciary pursuant to section 15-10-504”). Under section 15-10-

  401, C.R.S. 2017, the fiduciary must receive notice by mail of the

  time and place of the surcharge proceeding fourteen days before the

  hearing.

¶ 26   We are not convinced that the notice was statutorily deficient.

  The court bifurcated the proceedings into a liability phase and a

  damages phase. On August 6, after the conclusion of the liability

  phase, the court issued a minute order, explaining that the next

  hearing, set for September 8, would address the issues of surcharge




                                    10
  and civil theft. Thus, Mr. Black had more than fourteen days’

  notice of the damages portion of the hearing.

¶ 27   But even if we assume that notice of the hearing did not

  strictly comply with section 15-10-401, we disagree that any defect

  divested the court of jurisdiction. Mr. Black had actual notice of

  the proceedings, and the possible consequences, more than

  fourteen days before the evidentiary hearing. “[I]n the absence of

  explicit statutory language requiring it, a statute requiring the

  providing of notice by a specified means need not be strictly

  applied.” Feldewerth v. Joint Sch. Dist. 28-J, 3 P.3d 467, 471 (Colo.

  App. 1999). Nothing in section 15-10-401 indicates that the form of

  notice is a jurisdictional requirement; thus, “actual notice may be

  substituted for it.” Id.

¶ 28   The GAL filed her motion to void the disclaimer on February 9,

  2015, approximately four months before the first day of the

  evidentiary hearing. The motion alleged that Mr. Black had

  breached his fiduciary duties by converting more than $1 million of

  Joanne’s assets for his own benefit. The GAL sought an order

  voiding the disclaimer and the return of the converted assets to the

  court registry.

                                    11
¶ 29   The court held a status conference on April 2, 2015. In

  response to a suggestion that the disclaimer could not be unwound,

  the court reminded Mr. Black that “disgorgement” was a possible

  remedy: “And does Mr. Black understand that under this process

  he can be required to disgorge money?”

¶ 30   Following the status conference, the court issued a status

  conference order, explaining that Mr. Black was “the subject of

  allegations of misconduct” and suspending him as conservator

  pending an evidentiary hearing to resolve the allegations. The

  court’s order advised the parties that the evidentiary hearing would

  address “whether the allegations of breach of fiduciary duty are

  supported by the evidence and whether any disgorgement or

  unwinding of fiduciary actions, including the creation of trusts, is

  appropriate.”

¶ 31   We conclude that the notice of the allegations of breach of

  fiduciary duty, and warnings that “disgorgement” was a possible

  remedy, gave Mr. Black actual notice that he might be ordered to

  reimburse Joanne for any funds improperly diverted out of the

  conservatorship estate.



                                    12
¶ 32   In any case, by the time of the hearing, the parties and the

  court specifically used the term “surcharge” instead of

  “disgorgement” to describe the possible remedy for a breach of

  fiduciary duty. In her prehearing brief, Joanne’s counsel asked the

  court to “surcharge the fiduciary” under section 15-10-504(2)(a).3

  Mr. Black did not object to proceeding with the evidentiary hearing.

  Then, on the second day of the hearing, the court noted that “this is

  a surcharge action.” Again, Mr. Black did not object on the ground

  that he was unaware of the nature of the proceedings. In fact, on

  the third day of the hearing, Mr. Black’s counsel objected to certain

  cross-examination as irrelevant because “it has nothing to do with

  the issue[s],” one of which he defined as “whether or not a

  surcharge ought to be imposed.” Later during the hearing, Mr.

  Black’s counsel suggested to the court that a surcharge “would be

  the only remedy available” for any breach of fiduciary duty.

¶ 33   Indeed, Mr. Black does not dispute that he had actual notice

  of the surcharge proceedings. His argument is that any failure to


  3 To the extent Mr. Black argues that no party sought surcharge
  damages, Joanne’s prehearing brief refutes that claim. Moreover,
  surcharge damages can by imposed on the court’s own motion.
  § 15-10-503(2)(g), C.R.S. 2017.
                                   13
  strictly comply with the statutory notice requirement constituted a

  due process violation that deprived the court of jurisdiction to

  impose sanctions. But we must reject that argument in light of Mr.

  Black’s actual notice, coupled with his failure to object to a

  purported lack of notice and his participation in the surcharge

  proceedings. See Feldewerth, 3 P.3d at 471; see also City of

  Philadelphia v. Urban Mkt. Dev., Inc., 48 A.3d 520, 522 (Pa. Commw.

  Ct. 2012) (no due process claim based on lack of notice where party

  had actual notice and participated in hearing).

                       III. Breach of Fiduciary Duty

¶ 34     We turn now to Mr. Black’s primary argument on appeal: that

  he could not have breached his fiduciary duty to Joanne because

  his conversion of one-third of her POD assets was disclosed to, and

  approved by, the probate court, in accordance with section 15-14-

  423.

¶ 35     We review de novo the legal questions concerning the fiduciary

  duty’s nature and scope, but whether a fiduciary duty has been

  breached is a factual question we review for clear error. Mintz v.

  Accident & Injury Med. Specialists, PC, 284 P.3d 62, 68 (Colo. App.



                                    14
  2010), aff’d, 2012 CO 50. We review questions of statutory

  interpretation de novo. Taylor v. Taylor, 2016 COA 100, ¶ 26.

       A. A Fiduciary Has a Duty of Loyalty That Generally Precludes
                         Conflicted Transactions

¶ 36     A conservator is a fiduciary and must “observe the standards

  of care applicable to a trustee.” § 15-14-418(1), C.R.S. 2017. Thus,

  as Joanne’s conservator, Mr. Black owed her a “duty of undivided

  loyalty.” Estate of Keenan v. Colo. State Bank & Tr., 252 P.3d 539,

  543 (Colo. App. 2011) (citation omitted). Indeed, the “duty of loyalty

  is, for trustees, particularly strict even by comparison to the

  standards of other fiduciary relationships.” Restatement (Third) of

  Trusts § 78 cmt. a (Am. Law Inst. 2007) (hereinafter Restatement).

¶ 37     Consistent with the duty of loyalty, a conservator must

  manage the protected person’s assets for her sole benefit, without

  regard to the interests of others. Jones v. Estate of Lambourn, 159

  Colo. 246, 250, 411 P.2d 11, 13 (1966); see also § 15-1.1-105,

  C.R.S. 2017 (“A trustee shall invest and manage the trust assets

  solely in the interests of the beneficiaries.”); Hilliard v. McCrory, 110

  Colo. 369, 371, 134 P.2d 1057, 1058 (1943) (“[I]t is the duty of a




                                     15
  conservator to conserve . . . the property and safeguard the interest

  of its owner . . . .”).

¶ 38    To that end, the duty of loyalty strictly prohibits a conservator

  from entering into transactions involving the protected person’s

  property if the transaction is for the conservator’s personal benefit

  or otherwise involves or creates a conflict between the fiduciary

  duties and personal interests of the conservator. See Restatement §

  78; see also In re Estate of Heyn, 47 P.3d 724, 726 (Colo. App.

  2002) (trustee’s use of trust property creates presumption that

  trustee has breached his fiduciary duties).

   B. A Fiduciary May Engage in a Conflicted Transaction if He Gives
       Notice of the Conflict and Shows That the Transaction is
                   Nonetheless Reasonable and Fair

¶ 39    Still, a conservator may obtain approval to engage in a

  conflicted transaction if he (1) complies with section 15-14-423’s

  notice requirement and (2) establishes that the conflicted

  transaction is nonetheless reasonable and fair to the protected

  person.

            1. The Notice Requirement Under Section 15-14-423

¶ 40    Section 15-14-423 provides that “[a]ny transaction involving

  the conservatorship estate that is affected by a substantial conflict

                                     16
  between the conservator’s fiduciary and personal interests is

  voidable unless the transaction is expressly authorized by the court

  after notice to interested persons.” The provision explains that a

  “transaction affected by a substantial conflict between personal and

  fiduciary interests includes any sale, encumbrance, or other

  transaction involving the conservatorship estate entered into by the

  conservator . . . .” Id.

¶ 41   Mr. Black acknowledges that the act of disclaiming Joanne’s

  assets created a conflict between his fiduciary duties to Joanne and

  his own personal interests. But he insists that he did not breach

  his fiduciary duties by engaging in the conflicted transaction

  because he satisfied the notice requirement under section 15-14-

  423 and the court expressly authorized the transaction.

   a. The Statute Requires Objectively Reasonable Notice, Not Actual
                 Notice, of the Conflicted Transaction

¶ 42   As an initial matter, we agree with Mr. Black that whether he

  complied with his notice obligations under the statute turns on the

  nature of his disclosures and not the court’s subjective

  understanding of those disclosures. In other words, to determine

  Mr. Black’s compliance with the statute, we look at his actions and


                                   17
  evaluate whether his disclosures were sufficient to meet the

  purpose of the statute. We do not attempt to divine the effect of the

  disclosures on a particular judge to determine whether the court

  received actual notice. See, e.g., Weaver v. Colo. Dep’t of Soc.

  Servs., 791 P.2d 1230, 1233 (Colo. App. 1990) (Adequacy of notice

  must be tested on an objective basis; “its validity . . . is dependent

  upon its adequacy in providing the necessary information to a

  reasonable person.”).

¶ 43   But we disagree with Mr. Black that the court improperly

  applied an actual notice standard in finding that he failed to

  adequately disclose all of the relevant information related to the

  disclaimer transaction. The court reviewed all of the pleadings and

  other documents, as well as Mr. Black’s statements, and

  determined that the information provided was inadequate because

  “at no time did [Mr. Black] explain his true intentions with regard to

  the funds held in the [POD accounts].”

¶ 44   In our view, the court assessed compliance with the statutory

  requirements based on an objective reasonableness standard. As

  the court explained at the hearing, “none of th[e] documentary

  evidence” amounted to a full disclosure: there was no “explicit

                                    18
  explanation of [the disclaimer] in any way, shape, or form.” The

  notice of a conflicted transaction was not “in any of th[e] exhibits,”

  or in the “transcript of the December hearing” to appoint the

  conservator, or in any of the “written form of the orders” that the

  court signed. The court looked at Mr. Black’s actions — not at its

  subjective understanding of those actions — and found that he had

  “failed to plainly and fully disclose his intentions and the intended

  result of the disclaimer” and that, as an objective matter, his

  disclosures were “woefully inadequate.”

¶ 45   To the extent the probate court also noted that it did not have

  actual notice of the conflicted nature of the disclaimer transaction,

  we discern no error.

¶ 46   At the evidentiary hearing, Mr. Black attempted to establish

  that he had sufficiently disclosed the nature of the disclaimer

  transaction by filing various documents that referenced Joanne’s

  entitlement to two-thirds of mother’s residual estate. But his efforts

  were undermined by his own conservatorship counsel’s repeated

  concessions that these references did not provide unequivocal

  notice of Mr. Black’s intent to divert one-third of the POD assets

  into the Issue Trust. For example, counsel agreed that certain of

                                    19
  the documents were “ambigu[ous]” and that, in retrospect, he

  understood that Mr. Black should have made an “actual” and

  “express” disclosure “in a document filed with the court.” Even Mr.

  Black’s litigation counsel acknowledged that Mr. Black’s disclosure

  of the transaction did not qualify as “full” disclosure and conceded

  that “if we could do it over — and by ‘we,’ I mean me,

  [conservatorship counsel], and [Mr. Black] — we would do it

  differently.”

¶ 47   So, Mr. Black presented an alternative argument: that,

  notwithstanding any deficiencies in the disclosures, all of the

  interested parties, at least, had actual notice of his interest in the

  transaction. According to Mr. Black, he and his lawyer had

  numerous, but undocumented, discussions with Joanne’s lawyer,

  the GAL, and Joanne’s cousin, who was participating in the

  proceedings as her advocate. Not only that, Mr. Black maintained,

  but the parties had access to various documents, and approved a

  proposed order submitted by Mr. Black, that put them on notice of

  the consequences of the disclaimer. As Mr. Black’s litigation

  counsel argued, “I think it’s pretty solid that [Joanne’s lawyer and

  the GAL] had actual knowledge because we – the record is also very

                                     20
  clear that they had this will in their possession and they knew what

  the will did.”

¶ 48   In its hearing order, the probate court not only rejected Mr.

  Black’s argument that he had provided objectively reasonable notice

  of the transaction, but also rejected his argument that the

  disclosures, even if objectively deficient, had provided the court with

  actual knowledge of the conflicted nature of the disclaimer.

  Rejection of the latter argument necessarily required the court to

  explain that it did not share Mr. Black’s subjective understanding of

  the proffered documents. We perceive no error in the court’s

  decision to address an argument expressly advanced by Mr. Black.

   b. To Satisfy the Notice Requirement, the Fiduciary Must Disclose
                              the Conflict

¶ 49   Section 15-14-423, which is entitled “[s]ale, encumbrance, or

  other transaction involving conflict of interest,” provides an

  exception to the strict prohibition against a fiduciary’s participation

  in transactions involving a conflict of interest. The purpose of the

  notice requirement is to allow the court (and all interested parties)

  to evaluate the nature of the conflict to determine whether, despite

  the conflict, the transaction is permissible. At a minimum, then, the


                                    21
  fiduciary must disclose the conflict. A fiduciary may not seek safe

  harbor under a provision that allows him to engage in a conflicted

  transaction upon the approval of the court if he does not disclose to

  the court that he is engaging in a conflicted transaction. This

  seems so obvious to us as to be almost syllogistic.

¶ 50   And yet, by his own admission, at every stage of the

  proceeding, Mr. Black failed to disclose his substantial conflict of

  interest.

¶ 51   From its inception, the integrity of the conservatorship was

  undermined by Mr. Black’s undisclosed conflict. Mr. Black

  admitted that he sought the appointment as conservator for the

  purpose of disclaiming Joanne’s interest in the POD assets so that

  they could be redistributed in accordance with his and his

  children’s expectations of his mother’s estate plan. He agreed that

  the “interests of [his] children were in tension with the interest of

  Joanne Black,” and that this “tension” amounted to a conflict of

  interest. But he did not tell the probate court that he was laboring

  under this conflict of interest when he filed his petition to be

  appointed as Joanne’s conservator. “[A] person with a conflict of

  interest cannot serve as conservator of the estate.” Fitzmaurice v.

                                     22
  Vandevort, ___ So. 3d ___, ___, 2017 WL 3426214, at *6 (Miss. Ct.

  App. 2017) (citation omitted). If a conflict exists, “the fiduciary has

  a duty to refuse the trust, resign, or remove the conflicting personal

  interest.” Id. (citation omitted).

¶ 52   Nor did Mr. Black disclose the existence of a conflict of interest

  at the time he requested authorization to disclaim Joanne’s assets,

  even though he knew that “taking one-third of [Joanne’s] assets for

  the benefit of [him] and [his] children was a conflict.” At the

  evidentiary hearing, Mr. Black admitted that he never told the

  probate court that “he faced a conflict” as conservator in seeking to

  disclaim Joanne’s assets.

     c. Even if Section 15-14-423 Requires Only Disclosure of the
   Material Facts Concerning the Conflict, Mr. Black Failed to Satisfy
                           this Requirement

¶ 53   In the probate court, Mr. Black insisted that he “provided the

  facts underlying the conflict,” and that the conflict was so “obvious”

  that the underlying facts sufficed. On appeal, he reasserts the

  argument that disclosure of certain facts satisfied his statutory

  obligation to provide notice of the conflicted transaction.

¶ 54   We decline to deviate from our determination that the statute

  requires disclosure of the nature of the conflict itself. But even if

                                       23
  disclosure of certain facts could substitute for disclosure of the

  conflict, Mr. Black failed in this regard as well.

¶ 55   As a preliminary matter, we reject out of hand Mr. Black’s

  argument that he had to disclose the facts only to “interested

  parties” (the GAL, court-appointed counsel, and Joanne’s family

  members), “not the court.” The statute requires that the proposed

  conflicted transaction be “expressly authorized by the court.” Mr.

  Black does not explain how the court could authorize the conflicted

  transaction without notice of the conflict or even of the underlying

  facts.

¶ 56   As for the adequacy of the disclosed information, the probate

  court found that Mr. Black failed to disclose the intended effect of

  the disclaimer — in other words, that the disclaimer involved a

  conflict of interest. That finding is supported by the record.

¶ 57   In his petitions, Mr. Black assured the court that he intended

  to “secure” the “$3 million in [POD] assets” until “such time as the

  Court can determine the proper protection for the assets.” He did

  not reveal his plan to disclaim the assets (or the anticipated loss to

  Joanne of more than $1 million), though he acknowledged at the



                                     24
  evidentiary hearing that he sought the conservatorship for the very

  purpose of disclaiming the assets.

¶ 58   At the December 11 hearing on the petition, when the

  disclaimer was first raised, Mr. Black told the court that he was

  going to “get [the] money from my mother into a trust; my cousin

  will then be the trustee so she’ll have financial support.” He did not

  mention that he intended to place only two-thirds of the assets into

  a trust for Joanne and to distribute the remainder to himself and

  his children.

¶ 59   In its order appointing Mr. Black as conservator, the court

  directed that Joanne’s “assets will be placed into a Supplemental

  Needs Trust” for her benefit. The order authorized Mr. Black to

  disclaim the POD assets, but did not authorize any diversion of

  those assets into a trust for the benefit of another person.

¶ 60   Indeed, as we have noted, even Mr. Black’s conservatorship

  counsel conceded that, in hindsight, the disclosures were

  ambiguous. And Mr. Black admitted that the information was

  disclosed only “in effect” and “implicit[ly].”

¶ 61   Moreover, after Mr. Black was appointed conservator, he

  further obfuscated the effect of the disclaimer by filing an original

                                      25
  inventory form that showed the value of the conservatorship assets

  after Mr. Black had redirected one-third of the assets into the Issue

  Trust, rather than their value as of the date of his appointment.

¶ 62   On appeal, however, Mr. Black says that the conflicted nature

  of the disclaimer transaction was disclosed to the court in the

  following documents: (1) a court visitor’s report and a doctor’s

  letter, both submitted in October 2012; (2) two proposed orders

  submitted in November 2012 and January 2013, respectively; and

  (3) mother’s will and trust documents, submitted to the court and

  parties in advance of the conservatorship hearing.

¶ 63   The probate court was not convinced that these documents

  provided notice of the import of the disclaimer, and we cannot say

  that the court is clearly wrong.

¶ 64   Both the court visitor report and the doctor’s letter recounted

  statements from Mr. Black on the general distribution of mother’s

  estate: two-thirds to Joanne and one-third to Mr. Black. Neither

  document mentioned a planned disclaimer (Mr. Black would not

  propose the disclaimer to the court for another six weeks) or that,

  under the disclaimer transaction, some of Joanne’s POD assets

  would be diverted to the Issue Trust.

                                     26
¶ 65   The proposed orders did not provide any additional

  information. In fact, the proposed orders did not mention a two-

  thirds/one-third distribution at all. The proposed orders provided

  only that, once the POD assets were disclaimed, they would revert

  to the estate and two-thirds would be distributed to the SNT

  pursuant to mother’s will. But the same proposed orders stated

  that the POD assets would “flow into the Estate of [mother] and

  then into the Supplemental Needs Trust for Respondent’s benefit”

  and, even more unequivocally, that “Respondent’s assets will be

  placed into a Supplemental Needs Trust for Respondent’s benefit.”

¶ 66   As for the will and trust documents, they would have provided

  confirmation of the two-thirds/one-third split of assets from the

  estate, but would not have explained that a portion of the

  nonprobate POD assets were to be redirected to Mr. Black, despite

  language in the petitions and proposed orders to the contrary.

¶ 67   Mr. Black contends that the court had a duty to synthesize all

  of the disparate disclosures and infer from the information that Mr.

  Black intended to redirect one-third of Joanne’s assets for his own

  benefit. But as the Seventh Circuit has famously admonished,

  “[j]udges are not like pigs, hunting for truffles buried in” the parties’

                                     27
  submissions. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.

  1991). No document or statement submitted during the course of

  the proceedings mentioned that Joanne’s disclaimed POD assets

  would be redistributed, in part, to a trust of which Mr. Black and

  his children were beneficiaries.

¶ 68   The fiduciary has “an affirmative duty to disclose material

  information” about a conflicted transaction. Restatement § 78 cmt.

  c(1). We conclude that the record fully supports the probate court’s

  finding that Mr. Black failed to satisfy this duty.

   2. The Requirement That a Conflicted Transaction be Reasonable
                  and Fair to the Protected Person

¶ 69   Disclosure of the conflicted transaction is not enough to

  immunize a conservator from a breach of fiduciary duty claim. In

  addition, the fiduciary has an obligation, independent of section 15-

  14-423, to establish that the conflicted transaction is fair and

  reasonable and not adverse to the interests of the protected person.

  See In re Estate of Foiles, 2014 COA 104, ¶ 46; see also Day v.

  Stascavage, 251 P.3d 1225, 1230 (Colo. App. 2010) (self-dealing

  transaction must be undertaken in good faith, be fair to the party,

  and be accompanied by full disclosure); Restatement § 78 cmt. c(1)


                                     28
  (“The court will permit a [conflicted] transaction . . . only if it

  determines that it is in the interest of the beneficiaries to do so.”).

¶ 70   Mr. Black’s conservatorship lawyer acknowledged that the

  disclaimer “harmed” Joanne because “instead of $3 million for her

  lifetime, she now only has two,” and “$3 million . . . is clearly better

  than $2 million.” To be sure, Mr. Black testified that he believed

  the disclaimer benefitted Joanne. But the court was not obliged to

  accept his self-serving testimony, particularly because Mr. Black

  admitted that he did not consider any alternative to disclaiming and

  then redistributing Joanne’s assets for his own benefit. He did not,

  for example, seek any advice concerning options for protecting

  Joanne’s interest in the POD assets. Nor did he consider, once the

  assets were diverted into the Issue Trust, transferring Joanne’s

  share of the assets back into the SNT.

¶ 71   In sum, Mr. Black failed to disclose the conflicted transaction

  to the court and also failed to establish that the transaction, though

  conflicted, was nonetheless reasonable and fair to Joanne.

  Accordingly, the probate court did not err in finding that Mr. Black

  breached his fiduciary duties. See Wright v. Wright, 182 Colo. 425,

  428, 514 P.2d 73, 75 (1973) (trustee breached fiduciary duty by

                                      29
  using funds meant for the benefit of the beneficiaries for personal

  use); In re Estate of McCart, 847 P.2d 184, 186 (Colo. App. 1992)

  (trustee breached his fiduciary duties by acting with improper

  motive and clear conflict of interest in seeking to conserve the trust

  funds for himself and his heirs); see also Marshall v. Grauberger,

  796 P.2d 34, 37 (Colo. App. 1990) (court may properly consider the

  fiduciary’s motive in determining whether he breached his duties).

                              IV. Civil Theft

¶ 72   Next, Mr. Black contends that the probate court erred in

  finding him liable for civil theft. He insists that the probate court

  lacked jurisdiction over the claim; that the claim was time barred;

  and that, in any event, the evidence was insufficient to establish the

  elements of civil theft.

                             A. Jurisdiction

¶ 73   Mr. Black says that the probate court lacked jurisdiction to

  resolve a civil theft claim and that a lack of notice also deprived the

  court of jurisdiction.

              1. Jurisdiction to Decide the Civil Theft Claim

¶ 74   “A court is said to have jurisdiction of the subject matter of an

  action if the case is one of the type of cases that the court has been

                                    30
  empowered to entertain by the sovereign from which the court

  derives its authority.” Paine, Webber, Jackson, & Curtis, Inc. v.

  Adams, 718 P.2d 508, 513 (Colo. 1986) (citation omitted).

¶ 75   We review the issue of jurisdiction de novo. In re Estate of

  Murphy, 195 P.3d 1147, 1150 (Colo. App. 2008). In determining

  whether a particular court has jurisdiction, we consider the nature

  of the party’s claim and the relief sought. Id.

¶ 76   The Denver Probate Court has jurisdiction “in all matters of

  probate . . . [and] appointment of guardians, conservators and

  administrators, and settlement of their accounts . . . .” Colo. Const.

  art. VI, § 9. More specifically, the probate court may “determine

  every legal and equitable question arising in connection with

  decedents’, wards’, and absentees’ estates, so far as the question

  concerns any person who is before the court . . . by reason of any

  asserted obligation to the estate.” § 13-9-103(3), C.R.S. 2017.

¶ 77   Under section 13-9-103(3), the phrase “in connection with”

  has been construed broadly as a grant of authority to resolve

  disputes “logically relating” to the estate. In re Estate of Owens,

  2017 COA 53, ¶ 13 (quoting Estate of Murphy, 195 P.3d at 1151).



                                    31
¶ 78   The civil theft claim is coterminous with the breach of

  fiduciary duty claim, and is thus directly related to Mr. Black’s

  “obligation[s] to [Joanne’s] estate.” § 13-9-103(3). As a conservator,

  Mr. Black had an obligation to preserve Joanne’s assets, and any

  claim that he failed to do so arises “in connection with” her estate

  and concerns someone “who is before the court . . . by reason of

  an[] asserted obligation to [that] estate.” Id.; Estate of Murphy, 195

  P.3d at 1151. Accordingly, we conclude that the probate court had

  jurisdiction to consider the civil theft claim.

¶ 79   We are not persuaded otherwise by Mr. Black’s argument that

  jurisdiction is lacking because the civil theft statute is found in the

  criminal code. The civil theft statute does not set forth a criminal

  violation; it establishes a private civil remedy for theft. See Itin v.

  Ungar, 17 P.3d 129, 133 (Colo. 2000). Thus, pursuant to section

  13-9-103, a civil theft claim is cognizable by the probate court when

  the claim is logically related to the estate.

¶ 80   In his reply brief, Mr. Black also argues that the probate court

  lacks jurisdiction to order punitive relief while sitting in equity.

  Because this contention was raised for the first time in the reply, we



                                      32
  decline to address it. DeHerrera v. Am. Family Mut. Ins. Co., 219

  P.3d 346, 352 (Colo. App. 2009).

                          2. Notice of the Claim

¶ 81   Mr. Black also says that the court lacked jurisdiction to

  resolve the civil theft claim because he had no “advance notice” of

  the claim, as it was not raised in a complaint but instead was

  asserted in a motion.

¶ 82   First, Mr. Black did have notice of the civil theft claim. The

  motion was filed on June 15, the day before the evidentiary hearing

  began, but the court conducted a bifurcated proceeding and it

  informed the parties in advance (by order dated August 6) that it

  would not consider the civil theft claim until September 8.

¶ 83   Second, though not styled as a complaint, the motion set forth

  the allegations against Mr. Black and explained how the allegations

  satisfied the elements of a civil theft claim.

¶ 84   Third, whatever defects Mr. Black perceives in the timing or

  form of the allegations, he waived any claim on appeal by failing to

  object in the probate court. “Despite any defect in the pleadings, an

  issue is deemed properly before the court where it has been tried

  before the court without timely objection or motion.” CB Richard

                                     33
  Ellis, Inc. v. CLGP, LLC, 251 P.3d 523, 528-29 (Colo. App. 2010); see

  also C.R.C.P. 15(b) (“When issues not raised by the pleadings are

  tried by express or implied consent of the parties, they shall be

  treated in all respects as if they had been raised in the pleadings.”).

¶ 85   At no time — not after the motion was filed nor after the court

  issued the August 6 minute order — did Mr. Black complain that he

  had insufficient notice of the request for civil theft damages or that

  the form of the allegations was somehow deficient. To the contrary,

  Mr. Black filed a motion to dismiss the civil theft claim under

  C.R.C.P. 12(c), and challenged the claim as time barred and the

  allegations as insufficient to establish a statutory violation, but he

  said nothing about the adequacy of the notice or the form of the

  allegations.

¶ 86   He now maintains that he had “no opportunity” to conduct

  discovery on the claim or to demand a jury, but he did not ask to

  conduct discovery, nor did he request a jury. Instead, he proceeded

  to participate in the evidentiary hearing. Therefore, the civil theft

  issue was properly before the probate court. See Great Am. Ins. Co.

  v. Ferndale Dev. Co., 185 Colo. 252, 255, 523 P.2d 979, 980 (1974)

  (although answer was never formally amended to include

                                    34
  affirmative defense, issue was properly before the court where

  opposing counsel never objected to the issue being tried).

                 B. Timeliness of the Civil Theft Claim

¶ 87   In the alternative, Mr. Black contends that the civil theft claim

  is time barred. A claim for civil theft must be brought within two

  years after “the date both the injury and its cause are known or

  should have been known by the exercise of reasonable diligence.”

  §§ 13-80-102(1)(a), 13-80-108(1), C.R.S. 2017. The date a claim

  accrues is a question of fact that we review for clear error. Williams

  v. Crop Prod. Servs., Inc., 2015 COA 64, ¶ 4.

¶ 88   Mr. Black says that the claim accrued in March 2013, when

  the court issued its order authorizing the disclaimer. At that point,

  his argument goes, he had sufficiently disclosed the nature of the

  disclaimer transaction, and the court and all interested parties were

  on notice of his intent to convert Joanne’s assets for his own

  benefit. But we have already rejected that argument for purposes of

  the breach of fiduciary duty analysis, and so we reject it for present

  purposes as well.




                                    35
¶ 89   Instead, we affirm the probate court’s finding, which is amply

  supported by the record, that the claim accrued in September 2014,

  when Mr. Black filed an amended annual report.

¶ 90   Mr. Black’s original inventory did not accurately represent

  Joanne’s assets on the date of his appointment or reveal the

  transfer of assets to Mr. Black. Instead, the inventory simply listed

  Joanne’s assets (minus the Roth IRA, which was omitted entirely)

  as of the end of March 2013, after Mr. Black had diverted $1 million

  into the Issue Trust. Thus, as Mr. Black’s conservatorship counsel

  recognized, the inventory might have given the false impression that

  all of Joanne’s POD assets were disclosed, but that the assets had

  lost value over time. It was not until September 2014, when Mr.

  Black filed an amended accounting that showed some irregularities

  in his management of the conservatorship estate, that the parties

  had any reason to suspect misconduct. Therefore, the probate

  court did not err in determining that the civil theft claim accrued in

  September 2014 and was timely asserted in June 2015.




                                    36
                 C. Sufficiency of the Evidence of Theft

¶ 91   On the merits, Mr. Black contends that there was insufficient

  evidence in the record to support the court’s finding that he

  committed civil theft.

¶ 92   When sufficiency of the evidence is challenged on appeal, we

  must determine whether the evidence, viewed as a whole and in the

  light most favorable to the prevailing party, is sufficient to support

  the ruling. Parr v. Triple L & J Corp., 107 P.3d 1104, 1106 (Colo.

  App. 2004). Where, as here, the party challenges the court’s factual

  findings, we review those findings for clear error. Fid. Nat’l Title Co.

  v. First Am. Title Ins. Co., 2013 COA 80, ¶ 13. Because the

  credibility of the witnesses and the sufficiency, probative effect, and

  weight of all the evidence, as well as the inferences and conclusions

  to be drawn therefrom, are all within the province of the trial court,

  we will not disturb the court’s findings of fact unless they are so

  clearly erroneous as to find no support in the record. Id.

¶ 93   To recover civil theft damages, a party must prove, by a

  preponderance of the evidence, that the defendant committed all of

  the elements of criminal theft. Itin, 17 P.3d at 134. A person

  commits theft when he “knowingly obtains, retains, or exercises

                                     37
  control over anything of value of another without authorization or

  by threat or deception” with the intent to deprive the other person

  permanently of the thing of value. § 18-4-401(1), C.R.S. 2017.

  “[T]heft by deception requires proof that misrepresentations caused

  the victim to part with something of value and that the victim relied

  upon the swindler’s misrepresentations.” People v. Roberts, 179

  P.3d 129, 132 (Colo. App. 2007) (quoting People v. Warner, 801 P.2d

  1187, 1189-90 (Colo. 1990)), aff’d, 203 P.3d 513 (Colo. 2009),

  superseded by statute on other grounds, Ch. 244, sec. 2, § 18-4-

  401(4), 2009 Colo. Sess. Laws 1099-1100.

¶ 94   Mr. Black does not dispute that there was sufficient evidence

  that he obtained control over Joanne’s assets with the intent to

  permanently deprive her of them. He disputes only the probate

  court’s finding of deception.

¶ 95   A finding of deception requires proof that the defendant made

  misrepresentations to the victim.4 In this context, a



  4 In this case, the misrepresentations made to the probate court are
  sufficient. See People v. Devine, 74 P.3d 440, 444 (Colo. App. 2003)
  (deception made upon the probate court in an effort to commit theft
  from a victim’s estate satisfies the requirements of section 18-4-
  401(1), C.R.S. 2017). To the extent this creates any appearance of
                                   38
  “misrepresentation is a false representation of a past or present fact

  or a promise to perform a future act made with the present

  intention not to perform the promise or future act.” People v. Lewis,

  710 P.2d 1110, 1116-17 (Colo. App. 1985). This includes

  statements that are misleading or “convey a false understanding . . .

  by concealment of information.” People v. Harte, 131 P.3d 1180,

  1185 (Colo. App. 2005); see also People v. Campbell, 58 P.3d 1148,

  1161 (Colo. App. 2002) (failure to disclose material information

  could support element of theft by deception).

¶ 96   The record supports the probate court’s finding that Mr. Black

  made misrepresentations or misleading statements or that he

  concealed material facts:

       • In his petitions to the probate court, Mr. Black averred that

         Joanne was “entitled to approximately $3 million,” and he

         pledged to place the POD assets in trust for her benefit. In

         reality, though, Mr. Black sought appointment as



  impropriety with the probate court acting as the fact finder, Mr.
  Black did not raise this issue in the probate court or on appeal.
  Because he could have moved to disqualify the judge, but did not,
  he cannot now complain about any appearance of impropriety
  caused by the judge adjudicating the civil theft claim. See Bishop &
  Co. v. Cuomo, 799 P.2d 444, 447 (Colo. App. 1990).
                                    39
  conservator precisely because he believed that Joanne was

  not entitled to $3 million, but only to a two-thirds share of

  those assets, and he intended from the start to divert one-

  third for his own benefit, despite his duty of loyalty to

  Joanne.

• Mr. Black appropriated the entire value of the Roth IRA.

  Just after he exercised the disclaimer, he moved those funds

  into multiple accounts in the names of his children. He did

  not disclose the conversion of the Roth IRA funds to anyone,

  including his lawyer. At the hearing, he testified that he was

  advised to divest Joanne of the Roth IRA funds “for tax

  reasons,” but he could not identify the source of that advice.

• Mr. Black testified that he offset the value of the Roth IRA

  funds against his share of estate funds, but the independent

  accounting expert’s report contradicted that testimony.

• Mr. Black was required to submit an original inventory of

  Joanne’s assets as of the date of his appointment in

  December 2012. He determined, apparently with input from

  his lawyer, that it would be more “sensible” to file an original

  inventory that showed Joanne’s assets as of March 31,

                             40
  2013, after he had exercised the disclaimer. Thus, the

  inventory did not disclose that $1 million of the POD assets

  had been redirected into the Issue Trust. Mr. Black’s lawyer

  acknowledged that the inventory might have conveyed the

  false impression that all of the POD assets had been

  distributed to the SNT but had depreciated in value between

  December 2012 and March 2013.

• Mr. Black did not disclose the Roth IRA funds on the

  inventory.

• At trial, Mr. Black testified that “all the money is accounted

  for. There have been no improprieties, no misdeeds, no

  misspending of money.” He insisted that the allegations

  were a “complete concoction.” In fact, Mr. Black’s own

  accounting expert concluded that Mr. Black had failed to

  distribute even two-thirds of the assets to Joanne, leaving a

  “shortfall” owed by Mr. Black. According to the independent

  accounting expert, the estate no longer had sufficient assets

  to cover the shortfall. (Mr. Black admitted to paying his

  personal income taxes, his children’s private school tuition,

  and his older children’s student loan bills from the estate.)

                             41
¶ 97    Mr. Black also contends that there was insufficient evidence of

  reliance and that the court failed to make findings of fact on this

  element. When a conservator allegedly commits theft from a

  protected person by deception on the probate court, reliance is

  established if the probate court relied on the misrepresentations in

  authorizing the theft. People v. Devine, 74 P.3d 440, 444 (Colo.

  App. 2003).

¶ 98    Here, the court made clear that it relied on Mr. Black’s

  misrepresentations in authorizing the disclaimer, and that it would

  not have authorized the transaction had it known the true facts.

  Any documentary evidence contradicting Mr. Black’s

  misrepresentations does not negate the court’s reliance. See People

  v. Carlson, 72 P.3d 411, 416 (Colo. App. 2003) (victim’s testimony

  that he relied on defendant’s misrepresentation was sufficient to

  prove reliance, despite the fact that victim reviewed documents that

  purported to conflict with the misrepresentation).

¶ 99    We are not persuaded by Mr. Black’s contention that his

  purported reliance on counsel negates any finding of deception.

¶ 100   For one thing, his lawyer testified that Mr. Black did not

  disclose his conversion of the Roth IRA funds. Thus, contrary to

                                    42
  Mr. Black’s assertion, he did not “provid[e] full information to

  counsel.”

¶ 101   Moreover, the court was not required to credit Mr. Black’s

  testimony that he acted strictly in accordance with the advice of

  counsel. Mr. Black acknowledged that he, not his lawyer, devised

  the plan to seek appointment as Joanne’s conservator for the

  purpose of redistributing the POD assets. The probate court did

  not have to accept Mr. Black’s assurances that once he became

  conservator, his conduct was dictated entirely by his lawyer. The

  probate court’s rejection of Mr. Black’s testimony turns on

  credibility determinations that are binding on us, and we may not

  substitute our judgment for that of the probate court. People v. Poe,

  2012 COA 166, ¶ 14.

¶ 102   Accordingly, we conclude the evidence was sufficient to

  sustain a finding that Mr. Black committed civil theft.

                     V. The Fairness of the Hearing

¶ 103   Mr. Black contends that the probate court committed a series

  of errors that rendered the evidentiary hearing so unfair that

  reversal is required.

                          A. Denial of Continuances

                                     43
¶ 104   Mr. Black insists that the court abused its discretion when it

  denied two requests for continuances of the evidentiary hearing.

¶ 105   In his first request for a continuance, Mr. Black’s litigation

  counsel argued that he needed additional time to conduct

  discovery, including “likely” taking depositions. The court denied

  the request, noting that the New York proceedings had created

  some urgency to resolve the breach of fiduciary duty allegations.

  But, to accommodate Mr. Black’s potential deposition schedule, it

  substantially shortened the interested parties’ time to respond to

  written discovery.

¶ 106   In his second request for a continuance, submitted a week

  before the surcharge and civil theft hearing in September 2015, Mr.

  Black’s litigation counsel told the court that his mother had

  recently died and that he had suffered a knee injury, circumstances

  that affected his ability to prepare for the hearing. The court

  expressed sympathy but denied the request, citing the ongoing

  proceedings in New York and the difficulty in scheduling the

  September hearing.

¶ 107   The decision to grant or deny a continuance lies within the

  sound discretion of the trial court and will not be set aside on

                                     44
  appeal absent a clear abuse of discretion. Butler v. Farner, 704

  P.2d 853, 858 (Colo. 1985). In determining whether to grant a

  continuance, the court should consider the circumstances of the

  particular case, weighing the right of the party requesting the

  continuance to a fair hearing against the prejudice that may result

  from delay. Id. Even if the court abuses its discretion, however,

  reversal is not warranted unless a party demonstrates actual

  prejudice. People v. Chambers, 900 P.2d 1249, 1253 (Colo. App.

  1994).

¶ 108   We discern no abuse of discretion in the court’s denial of the

  requests for continuances, but even if we did, Mr. Black has failed

  to allege, much less demonstrate, any prejudice, except in the most

  cursory terms.

¶ 109   He says the denial of the first request was prejudicial because

  it prevented him from deposing the cousin. But he does not explain

  why he could not have deposed the cousin in the time allotted. Nor

  does he explain how the failure to depose the cousin rendered his

  cross-examination less effective. Moreover, counsel did not object

  to the cousin’s testimony on the ground that he had not had an

  opportunity to depose the witness. Thus, the court’s denial of the

                                    45
  first request does not constitute reversible error. See, e.g., id. (no

  showing of prejudice resulting from denial of continuance on

  grounds of late endorsement of witness where the defendant cross-

  examined the witness and did not articulate how further

  investigation would have helped); People v. Kraemer, 795 P.2d 1371,

  1376 (Colo. App. 1990) (no showing of prejudice from late

  endorsement of witness where defendant failed to establish that his

  preparation or performance would have been different had he

  known the content of the witness’s testimony earlier).

¶ 110   As for the denial of the second request, Mr. Black says only

  that he was “deprived of [his] senior, experienced counsel.” In fact,

  Mr. Black’s litigation counsel attended the hearing, along with co-

  counsel who had participated in the prior proceedings. Mr. Black’s

  litigation counsel told the court that he had assisted co-counsel in

  preparing for the hearing. Thus, in the absence of some

  particularized showing of prejudice, we discern no reversible error

  from the court’s denial of the second request for a continuance. See

  Farner, 704 P.2d at 859 (no prejudice from denial of request for

  continuance due to unavailability of principal counsel when

  alternative counsel was available).

                                     46
                            B. Expert Witness

¶ 111   We also reject Mr. Black’s contention that the court erred in

  excluding his proffered expert witness. We review a trial court’s

  decision to exclude expert testimony for an abuse of discretion and

  will not overturn the court’s ruling unless it is “manifestly

  erroneous.” People v. Williams, 790 P.2d 796, 797-98 (Colo. 1990).

¶ 112   Pursuant to CRE 702, expert testimony is admissible if it will

  “assist the trier of fact to understand the evidence or to determine a

  fact in issue.” “When the trial court is sitting as the fact finder, it

  need not admit expert testimony on an issue that it is capable of

  resolving itself.” Sniezek v. Colo. Dep’t of Revenue, 113 P.3d 1280,

  1284 (Colo. App. 2005). The probate court determined that the

  expert testimony would not have been helpful, and we will not

  second-guess the court’s determination.

¶ 113   Counsel explained that the expert would opine that Mr.

  Black’s disclosures were sufficient to put the interested parties on

  notice of the effect of the disclaimer — in other words, according to

  counsel, the expert would “tell [the court] the law.” To the extent

  the expert intended to testify about the correct legal standard, his

  testimony was inadmissible. See, e.g., People v. Pahl, 169 P.3d 169,

                                     47
  182 (Colo. App. 2006) (“[A]n expert may not usurp the function of

  the court by expressing an opinion on the applicable law or legal

  standards.”).

¶ 114   To the extent the expert intended to opine that the visitor’s

  report, the doctor’s letter, the proposed orders, and the will and

  trust documents disclosed the conflicted nature of the disclaimer

  transaction, the court could properly have concluded that it was in

  a better position than the expert to make that determination. As

  the court noted, resolution of the case depended on “the facts and

  the actions of what the people said and what they did and what

  they testified that they intended.” The court acted well within its

  discretion in determining that the expert’s testimony would not be

  helpful. See Sniezek, 113 P.3d at 1284; see also Huntoon v. TCI

  Cablevision of Colo., Inc., 969 P.2d 681, 689 (Colo. 1998) (in

  considering admissibility of expert testimony, court must first

  determine whether the proffered expert testimony will be helpful to

  the trier of fact).

              C. The Court’s Comments During the Hearing

¶ 115   Mr. Black also contends that the court “improperly testified

  about key facts and witness credibility.” He points to two instances

                                    48
  of supposed improper conduct by the court: First, he recounts an

  exchange between litigation counsel and the court in which the

  court explained that, based on its own memory of the

  circumstances surrounding Mr. Black’s disclosures, it “absolutely

  did not have any understanding that a third of these assets was

  going to go to somebody else.” Second, he notes that, at one point

  in the hearing, the court stated that, based on its observations of

  Joanne’s court-appointed counsel and the GAL, it was “satisfied”

  that neither of those interested parties had actual knowledge of Mr.

  Black’s plan to convert his sister’s assets for his benefit.

¶ 116   In addressing the first instance of alleged misconduct, we

  think some context is helpful. On the third day of the evidentiary

  hearing, Mr. Black’s litigation counsel raised a question about the

  scope of the hearing. But that discussion quickly morphed into an

  argument by counsel on the merits of Mr. Black’s position.

  Throughout counsel’s extended argument, the court asked

  questions and made comments. Several minutes into the

  argument, after counsel had described all of the evidence

  purportedly proving that the GAL and Joanne’s court-appointed



                                     49
counsel had actual knowledge that the disclaimer would divest

Joanne of one-third of her money, the following exchange occurred:

          THE COURT: Well, [court-appointed counsel
          and the GAL] have already testified that that’s
          not their understanding of the way this was
          going to work.

          MR. BLACK’S COUNSEL: Well, I – I agree that
          that’s what they testified to . . . .

          We’re now talking two and a half years later
          when apparently – I don’t know why they’re
          testifying the way they are, but I think it’s
          pretty solid that they had actual knowledge
          because we – the record is also very clear that
          they had this will in their possession and they
          knew what the will did.

          THE COURT: I mean, you know, part of the
          problem okay is I have my own independent
          memory of all this.

          MR. BLACK’S COUNSEL: And I guess – I’m
          dying to ask you, what is it?

          THE COURT: And I have to tell you it’s really
          in accord with what everyone else is saying. I
          absolutely did not have any understanding
          that a third of these assets were going to go to
          somebody else.

          MR. BLACK’S COUNSEL: Uh-huh.

          THE COURT: It was my understanding that
          the disclaimer would go, the money would go
          into the estate and then all go back out into
          her trust.

                                 50
             MR. BLACK’S COUNSEL: And then 100
             percent would go to –

             THE COURT: Right.

             MR. BLACK’S COUNSEL: And I appreciate
             your candidly sharing that with me, Your
             Honor.

¶ 117   As an initial matter, we are hard pressed to characterize the

  court’s comments as error when they were essentially invited by Mr.

  Black’s counsel. Cf. Hansen v. State Farm Mut. Auto. Ins. Co., 957

  P.2d 1380, 1385 (Colo. 1998) (Under the invited error doctrine, “a

  party may not later complain where he or she has been the

  instrument for injecting error in the case.”).

¶ 118   And, contrary to his assertion on appeal, Mr. Black never

  objected to any of the court’s comments during counsel’s extended

  argument.5 He complains that the court’s spontaneous “testimony”




  5 Mr. Black says that his counsel told the court that he was
  “disturbed” by the court’s comments; in fact, what he told the court
  was, “what I’m disturbed about is their [court-appointed counsel
  and the GAL] refusal to concede at any point that they might have
  known [about the effect of the disclaimer]” because “I just cannot
  accept that they didn’t know that’s what was going to happen.” And
  he “cho[se] his words carefully” not because he was about to object
  to the court’s comments and he thought the objection might offend
                                    51
  deprived him of a right to cross-examine a witness, but he never

  sought a remedy. Mr. Black could have moved to disqualify the

  judge or requested that she recuse herself, which would have

  allowed him the opportunity to call her as a witness. Because Mr.

  Black never sought to disqualify the judge, he waived any claim that

  he was denied his right to cross-examine her. See Estate of Binford

  v. Gibson, 839 P.2d 508, 511 (Colo. App. 1992) (declining to

  consider untimely motion to recuse), abrogated on other grounds by

  Scott v. Scott, 136 P.3d 892 (Colo. 2006); Bishop & Co. v. Cuomo,

  799 P.2d 444, 447 (Colo. App. 1990).

¶ 119   But perhaps more to the point, we reiterate that, in the

  probate court, Mr. Black argued vigorously that all of the interested

  parties had actual knowledge of, and had signed off on, Mr. Black’s

  plan to take money from his sister. For example, during his

  extended argument, Mr. Black’s counsel directed the court to a

  proposed order submitted by Mr. Black. When the court pointed

  out that it had not signed the order, counsel explained that he was

  offering the proposed order to show that “[court-appointed counsel]



  the court, but because he was about to accuse Joanne’s lawyer of
  knowingly allowing Mr. Black to convert Joanne’s assets.
                                    52
  and [the GAL] had actual knowledge of what the disclaimer was

  going to do.” He also told the court about telephone conversations

  between Mr. Black’s conservatorship counsel and the other

  interested parties, during which all parties supposedly reached “an

  agreement” that Mr. Black would take one-third of the assets by

  way of the disclaimer.

¶ 120   Thus, as we have explained, the court’s comments at the

  hearing and in its written hearing order were a direct response to

  Mr. Black’s actual notice argument. The court was not testifying as

  a witness; it was properly commenting on counsel’s position that

  the court, as well as the interested parties, had understood

  (notwithstanding the less-than-full disclosure) that Mr. Black

  intended to reroute a portion of Joanne’s assets into the Issue

  Trust. Under these circumstances, we cannot say that the court’s

  comments were improper.

¶ 121   We now address the second instance of alleged misconduct, in

  which, according to Mr. Black, the court improperly commented on

  the credibility of two witnesses. In response to counsel’s allegation

  that Joanne’s lawyer and the GAL had both agreed to Mr. Black’s

  plan, the court stated, “[court-appointed counsel] and [the GAL]

                                    53
  don’t get exercised about much and they’re pretty exercised about

  this. So I’m satisfied that they really didn’t know [about the effect

  of the disclaimer] and neither did I.”

¶ 122   We note, as a preliminary matter, that the court may consider

  demeanor in assessing credibility. People v. Constant, 645 P.2d

  843, 846 (Colo. 1982). But again, as Mr. Black acknowledges in his

  briefing, the court’s comment went to whether the interested parties

  had actual knowledge of the conflicted nature of the disclaimer

  transaction, an argument raised by Mr. Black.

¶ 123   In sum, these two comments by the court did not render the

  four-day evidentiary hearing so unfair as to require reversal.

                           VI. The 2013 Trust

¶ 124   Finally, Mr. Black contends that the probate court erred in

  concluding that he was not authorized to create a separate trust

  (the 2013 Trust), into which he deposited Joanne’s workers’

  compensation benefits and her Social Security disability insurance

  benefits. We discern no error.

¶ 125   Pursuant to section 15-14-411(1)(d), C.R.S. 2017, a

  conservator must obtain “express authorization” from the court

  before creating a trust of property of the estate. In considering

                                    54
  whether to approve this request, the court must consider whether

  the trust is in the best interest of the protected person, along with

  numerous other factors. § 15-14-411(3).

¶ 126   Mr. Black insists that “express authorization” was obtained in

  the conservatorship order because he requested, and was granted,

  authority to “place [workers’ compensation] benefits in trust for

  Respondent (Joanne Black Trust II).” However, no information

  (including documents related to the 2013 Trust) was submitted to

  the court that would have allowed it to make the necessary

  determination, required under section 15-14-411(3), of whether the

  2013 Trust was in Joanne’s best interest. And without this prior

  determination, the court could not have expressly authorized the

  2013 Trust. Accordingly, we conclude that the probate court did

  not err in determining that the 2013 Trust was not expressly

  authorized.

                            VII. Cross Appeal

¶ 127   Joanne cross-appeals, contending that the probate court erred

  by failing to make explicit findings denying her request to void the

  disclaimer. We discern no error.



                                     55
¶ 128   Under section 15-10-503, when a fiduciary has breached his

  duties, the probate court has significant discretion to impose a

  variety of remedies to protect the protected person or the assets of

  the estate. The statute empowers the probate court to order “[s]uch

  further relief as the court deems appropriate.” § 15-10-503(2)(i).

¶ 129   The determination of the proper remedy is within the sound

  discretion of the trial court. We discern no abuse of discretion in

  the court’s decision to impose a surcharge rather than to order that

  the disclaimer transaction be unwound. See Virdanco, Inc. v. MTS

  Int’l, 820 P.2d 352, 354 (Colo. App. 1991) (in breach of fiduciary

  duty action, court did not err in electing a different remedy than

  one initially requested by the plaintiff).

                       VIII. Appellate Attorney Fees

¶ 130   Joanne seeks appellate attorney fees pursuant to section 18-4-

  405, C.R.S. 2017, which requires an award of fees upon a finding of

  civil theft. We agree that she is entitled to fees under this provision.

  Pursuant to C.A.R. 39.1, we exercise our discretion and remand to

  the probate court for a determination of reasonable appellate

  attorney fees.



                                     56
                             IX. Conclusion

¶ 131   The order is affirmed, and the case is remanded to the probate

  court for a determination of reasonable appellate attorney fees.

        JUDGE FURMAN and JUDGE BERGER concur.




                                   57
