English v. Thorpe.
2026 COA 29. No. 25CA0687. Civil Procedure—Amended and Supplemental Pleadings—Amendments by Leave of Court—Dismissal of Actions—CRCP 15(a)—CRCP 41(a)(2).
April 16, 2026
Thorpe and Joseph English were in a romantic relationship for close to 25 years. They initially lived in a house Thorpe owned on approximately 43 acres. In 2009, Thorpe subdivided two three-acre parcels, Lot 1 and Lot 2, from her original tract. Thorpe and Joseph built a new house on Lot 1 (the home), agreeing that Thorpe would provide the land and Joseph would pay for the home’s construction. Thorpe and Joseph obtained a joint loan secured by Lot 1 to finance the home’s construction, but they had separate bank accounts and, other than Lot 1, kept their property in their individual names. Thorpe and Joseph first owned Lot 1 as tenants in common but changed the ownership to joint tenancy in 2011. Joseph paid the sums due on the mortgage, and Thorpe paid the utility bills, taxes, and insurance. Joseph eventually purchased Lot 2 from Thorpe and gifted it to his son Danny and Danny’s wife. Joseph died in 2022. His will devised Lot 1 to Danny and Joseph’s other son Dean. Danny and Dean are co-personal representatives of Joseph’s estate. After Joseph died, Danny and Dean asked Thorpe to convey to each of them a 25% interest in half of Lot 1 and give them a right to purchase the other half. Thorpe declined their offer.
Danny and Dean, as co-personal representatives of Joseph’s estate, sued Thorpe for unjust enrichment and conversion, alleging that the estate was entitled to the monetary value of Joseph’s financial contributions to Lot 1. Thorpe’s attorney answered and filed counterclaims for (1) a declaration that Thorpe and Joseph had a partnership regarding Lot 1; (2) judicial winding up of the partnership; and (3) unjust enrichment for payments Thorpe made to service and pay off the Lot 1 loan after Joseph’s death. The estate admitted there was a partnership, and Thorpe’s attorney moved for judicial supervision to wind up the alleged partnership, premised on Thorpe and Joseph being business partners. But before the court ruled on the motion, Thorpe hired a new attorney and sought to amend her answer and counterclaims under CRCP 15(a) to drop the two partnership claims. Thorpe’s new counsel stated that Thorpe didn’t know about the partnership counterclaims her first attorney made and alleged that there had never been a business partnership between her and Joseph. The district court denied the motion, reasoning that because Thorpe was seeking to voluntarily dismiss two of her counterclaims, the motion was governed by CRCP 41(a)(2), which concerns the voluntary dismissal of actions. Applying that rule, the court determined that allowing Thorpe to dismiss her counterclaims would change the nature of the case, lead to new discovery, and cause delay that would prejudice the estate. Following a trial, the court found that a partnership existed. The court awarded the estate monetary damages for Joseph’s interest in the partnership and, alternatively, awarded the estate damages on its unjust enrichment claim.
On appeal, Thorpe argued that the district court erred by denying her motion to amend. After filing a responsive pleading, Rule 15(a) permits a party to amend their pleading with leave of court. Rule 41 addresses the dismissal of an action—that is, all claims—against a party. The parties conceded that no reported Colorado decision directly addresses whether Rule 15(a) or Rule 41(a) controls when a party seeks to amend a pleading by dismissing some, but not all, of that party’s previously asserted claims. The court of appeals thus took guidance from federal courts, which have generally concluded that Fed. R. Civ. P. 41 governs the dismissal of an action asserted against a party, while Fed. R. Civ. P. 15 governs the dismissal of some, but not all, claims asserted against a party. The court found no reason to treat claims and counterclaims differently under Rule 41. Therefore, because Thorpe didn’t seek to dismiss all her counterclaims, the district court applied the incorrect legal standard by treating her Rule 15(a) motion to amend as a Rule 41(a)(2) motion to dismiss and thus erred. Further, the error was not harmless because, although similar, the factors applied to evaluate a motion to amend a pleading under Rule 15(a) are more favorable to the moving party than those applicable to a motion to dismiss an action under Rule 41(a)(2). Additionally, Thorpe filed her motion to amend before depositions had been conducted, approximately two months before discovery closed, and three and a half months before the then-scheduled trial date. So, while dismissal of Thorpe’s partnership counterclaims would have impacted the case’s procedural posture, any prejudice associated with that procedural change could have been remedied by allowing the estate to assert partnership claims against Thorpe.
Thorpe also argued that if she had been allowed to dismiss the partnership counterclaim, it could no longer serve as a judicial admission. And without a binding judicial admission, there was insufficient evidence to support the district court’s factual finding that a partnership existed. Based on relevant case law, the court concluded that an admission made in a pleading that is subsequently withdrawn by amending the pleading is no longer a judicial admission, though it can be considered as an evidentiary admission. Here, the judicial admission was dispositive to district court’s conclusion that a partnership existed. But had the court allowed Thorpe’s amendment dismissing the partnership counterclaims, there would have been no judicial admission. Further, the court could not assess the potential weight of any evidentiary admission based on the current record. Accordingly, there was insufficient evidence to support the existence of a partnership.
Lastly, because the district court did not analyze the evidence to assess whether the elements of unjust enrichment had been proved, the court of appeals concluded that there was insufficient evidence, absent the judicial admission, to support the court’s unjust enrichment findings.
The judgment was reversed and the case was remanded, with directions, for a new trial.