Bennett v. Boling — Case 98 CV 54

Sixteenth Judicial District — Otero County

District Judge Michael Kolomitz
Hearing date: 1998
Matter before the bar: Partnership dissolution

Facts of the case

Bennett and Boling were a ranching partnership in Rocky Ford, Colorado, ("the ranch"), acquired through inheritance by two brothers (Daniel and Ed Bennett) and one stepsister, Louise Boling. The partnership also owned property, three acres and two houses overlooking Red Rocks Amphitheater near Morrison, Colorado, identified as "The Morrison Property."

Ed gave 100% of his share of the Morrison property as collateral for a loan from Dan and Louise with the option of paying back the loan within five years and rejoining the partnership. Ed chose not to buy back his share, leaving the partnership between Dan and Louise.

Dan went to California with his wife around 1985 and testified that he came back to Colorado to "work" on the ranch about twice a year for about two weeks each time between 1985 and 1995.

Louise, and her son Patrick maintained the ranch on a daily basis during Dan's absence, but gave Dan his share of the profits while Dan was in California (Dan's testimony in Transcript February 1999 at page 23). The definition of "profits" was contested by the parties.

Louise collected rent from a house on the Morrison property, used that rental income for expenses to help run the ranch in Rocky Ford, and then calculated profits, sending Dan (in California) his share. Dan asserted that the rental income should have been clear profit to be divided by two, and not used for expenses on the ranch prior to division.

In 1995 Dan returned from California and wanted to liquidate the partnership. Louise did not want to.

Because Dan and Louise had fundamental differences of opinion in the raising of cattle and horses, which had not been at issue when Dan was in California, enjoying the profits without the work, Louise and Dan agreed that the partnership could not go on. The issue of a fair and equitable division of property became issues in dispute in the within court action.

By 1996 Dan no longer wanted to own the ranch in Rocky Ford with Louise and also wanted all of the Morrison property for himself. To accomplish this, Dan filed a lawsuit to terminate, or "Partition" the partnership. Judge Michael Kolomitz presided over the case.

To divide the partnership property located in Morrison, Dan had penciled in three dividing lines on the plat map. He determined that "Plot 1" with the big house was his, "Plot 2" (vacant and dry) was Louise's, and "Plot 3" (small house) was partnership property. This division was not done by a surveyor or an engineer, or in conjunction with Louise, just Dan.

Summary of inequities and violations of law


A review of the record demonstrates that there was definitely not an equitable division of property for this liquidation. A comparison with law also discloses that Judge Michael Kolomitz ignored Colorado Title Conveyance law.

The following transgressions are apparent:

(a) Louise was denied an equal share of the Morrison Property because part of the property was removed by order of Judge Kolomitz as a joint partnership asset — per Dan's request. Dan was given 100% of the severed property, and Louise and Dan then received 50/50 of the remaining property — which was never appraised. There was no valid evidence {in compliance with law} that proved that Dan deserved "Plot 1" of the Morrison property as exclusively his own personal property. Judge Kolomitz simply took Dan's verbal "say-so." Louise denied any verbal agreement. Without a recording with the Clerk and Recorder's office, any alleged agreement to convey property is deemed invalid, C.R.S. § 38-35-106, § 38-35-108, § 38-35-109. Title can only be conveyed by agreement of the parties, (C.R.S. § 38-30-101) or by foreclosure (§ 38-39-102). Title cannot be lawfully conveyed by court order without compliance with Colorado Real Property conveyance procedures. Real Property Title is held in trust by the Public Trustee, and only the public trustee can convey title when there has been no deed of conveyance between the parties. There was no deed of conveyance between Louise and Dan giving Dan 100% of the valuable corner of the Morrison property. When Judge Kolomitz entered an order determining that Dan owned 100% of the corner of the property that was in the name of a partnership, the court violated Colorado's title conveyance statutes.

(b) Louise was denied the value of her labor and costs during the ten years that she ran the ranch while Dan was in California. She was also denied an offset for the expenses accrued after Dan returned from California.

(c) Louise was forced by Judge Kolomitz to pay for improvements (a septic tank) which only benefited Dan's newly placed trailer home, which she did not authorize (Transcript January 4, 1999, at page 44). This was inequitable because when Dan returned from California, Dan told Louise that no improvements would be paid for by the partnership without authorization from both partners. Because of this term imposed by Dan, Judge Kolomitz would not allow reimbursement to Louise for improvements made by Louise, saying they were unauthorized improvements, but did require Louise to reimburse Dan for the improvements he made during the same period of time that the "no improvements" policy was in effect. In fact, the record shows that Judge Michael Kolomitz refused to take testimony from Louise concerning the expenses she paid during the ten years Dan was in California. Judge Kolomitz silenced Louise whenever Louise attempted to talk about her expenses. (See in particular Transcript September 2, 1998 at page 57; Transcript February 1999 at page 102; Transcript January 4, 1999 at page 51, 58).

The following statements are supported by the record:


    1. On the "Morrison Property" there were two houses. One was on the property when it was acquired. The second was built by Dan (as his home) with the help of neighbors, Louise and her electrician husband. At the time of the liquidation, Dan asserted that the house referred to as "his" house should not be included in the joint property distribution. He asserted this because he said "everyone knew" it was supposed to be his house and not part of the joint partnership property. This assertion is contradicted by the evidence, which was also ignored by Judge Kolomitz. To wit:

    a. The title to the property did not subdivide off "Dan's house" or give Dan a specific area of the Morrison property. (On record with Jefferson County Clerk and Recorder).

    b. Dan did not pay a larger portion of taxes for "his house" but reimbursed the partnership an equal share as did Louise. (Transcript January 4, 1999 at page 19). The partnership paid the taxes on the Morrison property. When questioned, Dan said he didn't want to put "his" house in his name because he wanted to keep the low tax assessment. Judge Kolomitz essentially permitted Dan the benefits of "owning" property without the associated statutory tax responsibility. The partnership paid the taxes because it was partnership property — not Dan's — yet Judge Michael Kolomitz ignored this to favor Dan in the settlement.

    c. The contract describing the buy-back terms imposed upon Ed at the time of loan given by Louise and Dan to Ed specifically said that if Ed bought back in, he would have to pay one third of improvements which had been made to the Morrison Property during the five years that Ed had been "out." In addition to the recorded title, this agreement proves that the Morrison property was considered by all interested parties to be partnership property with all expenses and profits shared equally.

    Judge Kolomitz ignored this evidence and ruled that the value of "Dan's house" was not to be considered partnership property and shared with Louise when the property was liquidated — yet Dan was to have a 50/50 share of everything else.

    What was particularly damaging to Louise with this determination was the fact that "Dan's house" was built on the only valuable area of the property — "Plot 1" — and the rest of the land had limited usefulness. (Transcript, February 1999 at page 95). Dan kept his horses on Plot 2 but didn't offer any monetary reimbursement to Louise for use of "her" alleged Plot 2. (Transcript June 14, 1999, at page 28). This again proves that, in addition to the recorded title, Plot 1 and Plot 2 were not designated as separately owned but belonged to the partnership and should have been evenly divided when sold.

    2. One of Dan's reasons for dissolving the partnership was because he believed that Patrick, Louise's son, was charging personal expenses to the partnership. Louise did not dispute this, but considered the living expenses paid for Patrick were in lieu of a salary and as reimbursement to Patrick for using his personal property for maintenance of the ranch, i.e., Patrick used his personal trucks to do partnership work. At no time was Patrick paid a wage for running the ranch.

    3. Another expense that Louise was not reimbursed for was for the loss of nine foals. This occurred because Louise's horses were fenced in a muddy corral and the foals were unable to deal with the treacherous conditions. (Transcript January 4, 1999 at page 40). Louise's horses were corralled because Judge Michael Kolomitz had imposed a restraining order against Louise, in favor of Dan, which prohibited Louise from using any of the 2,477 acres of grazing areas on the Rocky Ford ranch.

    This restriction forced Louise's horses into only designated areas of the ranch that are dangerous during hard rains. When Louise asked for relief from the restraining order that was endangering her livestock, Judge Kolomitz denied her request, and threatened to hold her in contempt if she did not continue to comply with the order to keep horses out of certain areas of the ranch.

    The reason Judge Michael Kolomitz gave for determining that Dan had a right to enjoin Louise from having horses roaming freely on the property is that Dan verbally asserted that the partnership did not permit Louise to have so many horses. There was no evidence for his assertion. No contract forbade Louise from raising horses — and the doctrine of laches — e.g. failure to complain — allowed Louise to have horses since Dan had never complained for the previous ten years. Judge Kolomitz, however, ignored prevailing law on the doctrine of laches in order to rule in favor of Dan's unsupported assertion.

It might be noted here, that Judge Kolomitz was obviously not a rancher. He continually demonstrated his ignorance of ranching when having to ask for explanations of ranching terms, to wit: he didn't know what a "loaded horse" was, and didn't know that you can't put mares/stallions/fillies/geldings/foals all in one corral. But rather than allow a jury of ranchers to decide the facts, Judge Michael Kolomitz presumed to see himself as qualified to enter decisions.

In making his decisions, Judge Michael Kolomitz took the self serving testimony of Dan and his wife as the prevailing testimony — even though Dan had not worked the ranch for the previous ten years, and only worked it minimally prior to that because of his stomach ulcers.



Without a doubt the end result of this litigation would have been more equitable for Louise if Judge Michael Kolomitz had obeyed Colorado Title law and if a jury of citizens of Otero County had decided the issues in dispute.

Louise was not only deprived of an equal share of the liquidated partnership property, she was denied consideration for her work and expenses in running the ranch. Judge Kolomitz imposed a judgment against her in favor of Dan, for $44,000 for alleged profits owed to Dan — accrued while Dan was in California — and while Louise ran the ranch alone with her son.

While it is true that a jury of her peers would have been a far better judge of the issues, Louise was denied a jury trial, even though she made a timely demand for one, because she submitted a late jury fee. However, a late jury fee is not fatal and does not preclude the use of a jury. Rule 39 allows a judge to permit a jury to decide the facts even if the fee is paid late.

An honorable judge, which Judge Michael Kolomitz clearly is not, would have applied Rule 38. A jury from Otero County, who would understand the issues presented by the parties, would have adjudicated the issues impartially. Instead, Judge Kolomitz violated Colorado title conveyance laws and presumed himself to be qualified, despite clear evidence to the contrary, to hear issues that only a jury with local knowledge could adjudicate fairly.

The most unfortunate part of this story, however, is that Louise's suffering didn't end with the unlawful conversion of her property rights to her step brother. Because she was "ordered" off the ranch she was forced to hurry up and buy another ranch and to move her horses and cattle off.

In her dismay, she bought another ranch in a hurry — in the middle of winter. When spring came she discovered two of the wells on the new ranch were inoperative — a fatal defect for a western ranch.

It proved impossible to make a profit and her efforts at making a living on her new ranch were doomed. That ranch was subsequently foreclosed and she lost her $100,000 down payment. She then had to move to a small house and pay to have her horses, cattle and dogs boarded — which cost over $2000 a month until these assets were also lost for failure to pay.

This chain of adversity caused her to spiral down into poverty. Louise was recently served again with an eviction notice and in February, 2004 she will be homeless. She is 85-years old and has worked hard all her life — and all that hard work was unlawfully given to her stepbrother by Judge Michael Kolomitz.


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