noting that a transaction may be set aside for abuse of a confidential relationship if the plaintiff proves that the party in possession of the property at issue refused to act in accordance with the parties’ mutual intent
How later courts described this case
- noting that a transaction may be set aside for abuse of a confidential relationship if the plaintiff proves that the party in possession of the property at issue refused to act in accordance with the parties’ mutual intent
- applying section 18-25-127(1) preponderance of the evidence standard to imposition of constructive trust, abrogating Botkin and other cases applying clear and convincing burden of proof
- "The refusal to perform the promise to reconvey is itself a sufficient abuse of confidence to allow the conveyance to be set aside."
- a constructive trust may be imposed to set aside transactions within the scope of a confidential relation ship which has been abused
Written by the judges who cited it.
The opinion
MR. JUSTICE GROVES
concurring in the result.
I think there is a viable distinction between “clear and convincing” and “preponderance.” If I had been a member of the General Assembly at the time section 13-25-127(1), C.R.S. 1973 was enacted, I would have voted against it. Nevertheless, I regard the legislative resolution of burden of proof in this respect as binding upon us.