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April 2, 2026 Get Citation Alerts Download PDF Add Note

McClaflin v. Land Title

Colorado Court of Appeals

• Citations: None known
• Docket Number: 24CA2193

• Precedential Status: Non-Precedential

• Opinion

• Authorities (22)

• Cited By (0)

• Summaries (0)

• Similar Cases (51.7K)

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Combined Opinion

24CA2193 McClaflin v Land Title 04-02-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA2193
City and County of Denver District Court No. 22CV33638
Honorable J. Eric Elliff, Judge

Andy McClaflin, Jacob Hocker, and Laura Hocker,

Plaintiffs-Appellees,

v.

Land Title Exchange Corporation, a Colorado corporation, and Kacey Neer,

Defendants-Appellants.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE JOHNSON
Harris and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 2, 2026

Adams & Reese, LLP, Victoria E. Edwards, Highlands Ranch, Colorado, for
Plaintiffs-Appellees

Anderson Notarianni McMahon LLC, Kimberly A. Bruetsch, Denver, Colorado,
for Defendants-Appellants
¶1 Land Title Exchange Corporation (Land Title) and Kacey Neer

(Neer) (collectively defendants) appeal the district court’s judgment

entered in favor of Andy McClaflin (Andy), Jacob Hocker (Jacob),

and Laura Hocker (Laura) (collectively the plaintiffs).1 On appeal,

defendants contend that the district court erred by (1) finding them

negligent; (2) awarding damages to Andy based on a nonparty, Gina

McClaflin (Gina), having assigned claims to Andy; and (3) awarding

damages not attributable to the negligence. We affirm.

I. Background

¶2 In 2016, Andy, Gina, Laura, and Jacob (collectively the

couples) formed McHock Real Estate, LLC (McHock) to purchase an

investment property in Breckenridge, Colorado (the Property). The

couples purchased the Property in 2017 and used it as a rental

property for several years. In April 2021, the Property was listed for

sale, and soon after, McHock entered into a purchase and sale

agreement.

1 We refer to most individuals in this opinion by their first name as

several individuals share the same last name. We intend no
disrespect by doing so.

1
¶3 The couples wanted to take advantage of what is known as a

1031 exchange, which allows individuals to defer capital gains from

the sale of a property under 26 U.S.C. § 1031 of the Internal

Revenue Code. Andy’s certified public accountant advised him that

the couples should engage an exchange intermediary — also

referred to as an exchange facilitator — to complete the transaction.

¶4 McHock and Land Title entered into an agreement in which

Land Title would act as a qualified exchange facilitator. While

McHock was the seller of the Property, the couples decided that

they wanted to dissolve the legal entity, split the proceeds from the

sale of the Property, and purchase separate properties by couple.

The couples expressed their desire to complete separate 1031

exchanges to Neer, Land Title’s representative. Neer advised the

couples that they would need to execute quitclaim deeds

transferring the Property from McHock to their individual names

before the sale and that she could help coordinate the deeds to that

effect.

¶5 The sale closed in May 2021. Shortly after, the couples

realized that the quitclaim deeds were missing from the closing

documents and later discovered that Neer had never prepared them;

2
thus, the sale closed in the name of McHock, not the couples’

individual names.

¶6 Thereafter, Neer advised the couples that to comply with

Internal Revenue Service (IRS) guidelines, they would need to

purchase the new properties in McHock’s name. Later, though,

Neer advised the couples that “it shouldn’t be a problem for [them]

to purchase the replacement properties in [their] names rather than

the LLC.” On that same day, Andy’s banker advised him that

having the couples purchase replacement properties in their own

names put the 1031 exchange at risk. Nonetheless, the couples

proceeded to use the Property’s sale proceeds to purchase

replacement properties in their own names. The 1031 exchange

ultimately failed and each couple was subject to a $121,410 tax

liability.

¶7 In the interim, Andy and Gina divorced, and through their

separation agreement, Gina agreed that Andy would be entitled to

any damages he recovered as a result of litigation against Land Title

and Neer. Plaintiffs filed this lawsuit against several defendants,

asserting that Land Title and Neer negligently advised the couples

regarding the sale of the Property and 1031 exchanges, and, as a

3
result, the couples were unable to defer the taxes from the sale.2

Plaintiffs asserted claims for breach of contract, promissory

estoppel, unjust enrichment, negligence, professional negligence,

breach of fiduciary duty, respondeat superior, and vicarious

liability.

¶8 Following a bench trial, the district court entered judgment

against plaintiffs on all their claims except for negligence,

professional negligence, respondeat superior, and vicarious liability.

The court determined that plaintiffs were thirty percent at fault,

awarding Jacob and Laura $81,344.70 and Andy $81,344.70

against Neer and Land Title, jointly and severally. The district court

awarded $20,114.21 and $16,824.79 in prejudgment interest to

Jacob and Laura and to Andy, respectively. Plaintiffs were also

awarded their costs in the amount of $52,221.43 and postjudgment

interest in the amount of $23.84 per day starting November 1,

2024.

2 Plaintiffs named other defendants, but Neer and Land Title were

the only defendants remaining when judgment was entered.

4
II. Negligence

¶9 Defendants contend that the district court erred by finding

them negligent because they did not owe plaintiffs a duty of care

and did not cause the 1031 exchange to fail.

A. Standard of Review

¶ 10 We review a district court’s judgment following a bench trial as

a mixed question of law and fact. See Fear v. GEICO Cas. Co., 2023

COA 31, ¶ 15, aff’d on other grounds, 2024 CO 77. We review legal

conclusions de novo, see id., but we review findings of facts for clear

error, see Cronk v. Bowers, 2023 COA 68M, ¶ 12. A court’s findings

are clearly erroneous if there is no record support for such findings.

Id.

B. Analysis

¶ 11 To prevail on a negligence claim, a plaintiff must establish that

(1) the defendant owed the plaintiff a legal duty of care; (2) the

defendant breached that duty; (3) the plaintiff was injured; and (4)

the defendant’s breach caused the injury. N.M. v. Trujillo, 2017 CO

79, ¶ 23.

5
1. Duty of Care

¶ 12 Defendants first argue that the district court erred by finding

that defendants assumed a duty of care to plaintiffs.

¶ 13 Generally, we review de novo a court’s determination that a

duty of care exists. Blakesley v. BNSF Ry. Co., 2019 COA 119,

¶ 12. But the question of whether a party assumed a duty is a

mixed question of law and fact because the court’s legal

determination is based on factual findings. Jefferson Cnty. Sch.

Dist. R-1 v. Justus, 725 P.2d 767, 771 (Colo. 1986).

¶ 14 Whether a duty has been assumed is based on two factual

findings: first, that the “defendant, either through its affirmative

acts or through a promise to act, undertook to render a service that

was reasonably calculated to prevent the type of harm that befell

the plaintiff,” and second, that the plaintiff “either . . . relied on the

defendant to perform the service or . . . defendant’s undertaking

increased plaintiff’s risk.” Id.

¶ 15 The district court entered judgment against plaintiffs on their

contractual claims because the contract to conduct the 1031

exchange was between McHock and Land Title, not the individuals.

But the court reached a different conclusion with respect to the

6
negligence claims. It reasoned that the members of McHock relied

on Neer’s assurance that she was going to help execute the

quitclaim deeds, but she did not, and then Land Title and Neer

continued to provide advice to the individuals following the closing

to try to salvage the 1031 exchange — advice that turned out to be

incorrect. Because Neer was acting within the scope of her

employment with Land Title, that entity in turn owed plaintiffs a

legal duty of care.

¶ 16 Nonetheless, defendants argue that the court’s conclusion is

in error because (1) the court did not explain how the defendants

owed duties to the individual members of McHock, and (2)

defendants did not speak to Laura or Gina at all as part of the

transaction. We disagree with their contentions.

¶ 17 First, the record supports that defendants affirmatively

undertook the responsibility to advise plaintiffs as to how to comply

with the 1031 exchange if the couples wanted to receive the

proceeds of the sale individually and not through McHock. True,

Land Title’s contractual relationship was with McHock, but

defendants were aware that the couples wanted to dissolve McHock

and receive the proceeds in their individual capacities, and Neer

7
specifically volunteered to prepare the quitclaim deeds for the

couples, asking that the couples provide information on how the

individual names should be reflected on the documents. That

advice was for the benefit of the couples, not McHock.

¶ 18 Then, as the district court reasoned, defendants affirmatively

assumed a legal duty to prevent the 1031 exchange from failing

after it was discovered by the couples that McHock was the seller of

the Property, not the individual couples. While defendants argue

that it is unclear when defendants’ duty shifted from advising

McHock to advising plaintiffs, emails between Neer and Andy and

Jacob from May 24-26, 2024 support defendants’ affirmative advice

to the couples. Specifically, those emails support a finding that

Neer was aware of the couples’ intent to conduct the sale through

their individual names, not McHock, so that the couples could

purchase separate properties.

¶ 19 Second, we reject the argument that because defendants did

not speak directly to Laura or Gina, they had not assumed a duty to

the spouses as well. Although Jacob and Andy were primarily

corresponding with Neer, the emails reflected that Land Title was

advising the two men with Jacob’s wife, Laura, and Andy’s ex-wife,

8
Gina, in mind. Specifically, Jacob wrote that “Jacob and Laura will

be doing their own thing” with their half of the proceeds when he

emailed Neer questioning why the closing paperwork was in the

name of McHock.

¶ 20 Likewise, when Neer responded to another email from Jacob,

she forwarded him an email chain between her and Andy in which

she acknowledged she was aware that “[Andy] did specify how

[Andy] and Gina wanted [their] names to read” in the quitclaim

deeds and she apologized that this instruction “was missed and

that a quit claim wasn’t discussed with your closing team.”

¶ 21 Therefore, while it is true that Laura and Gina never had

direct discussions with representatives at Land Title or Neer, the

record supports that Neer was advising the husbands along with

their spouses, with the same legal advice that was intended to

benefit Laura and Gina in the same manner, thus extending any

assumed duty owed to Jacob and Andy to their spouses.

¶ 22 Based on this evidence, we cannot say the district court erred

by holding that defendants owed the individuals a legal duty

because they were aware that Laura’s and Gina’s interests would be

affected by the transaction and thereby “undertook to render a

9
service that was reasonably calculated to prevent the type of harm

that befell [Laura and Gina].” Justus, 725 P.2d at 771.

¶ 23 Likewise, plaintiffs relied on defendants to advise them with

regard to executing 1031 exchanges in their individual names,

knowing that if they gave plaintiffs incorrect advice, the 1031

exchange had an increased risk of failing.

¶ 24 Therefore, we conclude that the district court did not err by

finding that defendants assumed a duty of care to plaintiffs.

1. Causation

¶ 25 Defendants further argue that the district court erred by

finding that defendants were the cause of the 1031 exchange

failing.

¶ 26 “Causation is a question of fact for the [fact finder] unless the

facts are undisputed and reasonable minds could draw but one

inference from them.” Wagner v. Planned Parenthood Fed’n of Am.,

Inc., 2019 COA 26, ¶ 18 (quoting Reigel v. SavaSeniorCare L.L.C.,

292 P.3d 977, 985-96 (Colo. App. 2011)), aff’d, 2020 CO 51.

¶ 27 A plaintiff must establish that the defendant’s breach caused

the injury by demonstrating both “cause in fact” and “proximate

cause.” Garcia v. Colo. Cab Co., 2023 CO 56, ¶ 20 (quoting Rocky

10
Mountain Planned Parenthood, Inc. v. Wagner, 2020 CO 51, ¶ 27).

Cause in fact considers whether, “but for the alleged negligence, the

harm would not have occurred.” Id. (quoting Rocky Mountain

Planned Parenthood, ¶ 28). Cause in fact is satisfied “if the

negligent conduct in a ‘natural and continued sequence, unbroken

by any efficient, intervening cause, produce[s] the result complained

of, and without which that result would not have occurred.’” Deines

v. Atlas Energy Servs., LLC, 2021 COA 24, ¶ 12 (quoting Smith v.

State Comp. Ins. Fund, 749 P.2d 462, 464 (Colo. App. 1987)).

Proximate cause is proved if a plaintiff can establish that the

resulting harm was a foreseeable result of the defendant’s action.

Id.

¶ 28 Looking first at cause in fact, the record supports the district

court’s finding that the 1031 exchange ultimately failed because

plaintiffs acted on defendants’ advice to purchase properties in their

individual names. Both parties’ experts testified that the primary

reason for the failure of the 1031 exchange was plaintiffs’ decision

to purchase the replacement properties in their individual names.

¶ 29 And both experts testified that the 1031 exchange could have

been saved if the couples had done a “swap and drop” by

11
purchasing a replacement property in the name of the LLC, holding

onto it for a few years, and then deeding the property from McHock

to the individual parties. We acknowledge that Neer initially

provided plaintiffs with this advice when she and Jacob

corresponded through emails. But after speaking with another

Land Title employee about additional options, Jacob rejected Neer’s

initial advice. Neer then confirmed that plaintiffs’ preferred course

of action to purchase properties in their individual names

“shouldn’t be a problem.” It was the unbroken chain of advice

received from Neer and another Land Title employee that led to the

couples’ purchasing properties in their individual names and that

ultimately caused the 1031 exchange to fail.

¶ 30 Defendants assert that “plaintiffs were required to prove they

otherwise met the criteria for the exchange in order to satisfy the

element of causation.” Defendants offer several hypotheticals as to

why the 1031 exchange would never have been successful. The

court discounted that the couples held the Property for sale or

personal use, as the evidence showed that the couples used the

Property for many years as a vacation investment property.

Therefore, we disagree with defendants that the record necessarily

12
establishes that the 1031 exchange would not have been

successful, even without Neer’s original error with the quitclaim

deeds and subsequent advice. See Gagne v. Gagne, 2019 COA 42,

¶ 17 (“[W]e review any challenges to the court’s underlying factual

findings for clear error.”).

¶ 31 Turning to proximate cause, Neer’s trial testimony supports

that she knew there was a risk of the 1031 exchange failing if the

couples purchased replacement properties in their own names — as

she advised them to do. We acknowledge that there was evidence

that Andy had received contrary advice from his banker, which

could suggest that Land Title and Neer might not have proximately

caused the injury. But, as discussed above, the record also

supports that the couples received advice from another Land Title

employee, which was confirmed by Neer, to proceed in the manner

preferred by the couples, making it foreseeable that the couples

would take the advice, given that they had contracted with Land

Title, Land Title was attempting to salvage the deal, and the parties

wanted to proceed in a manner based on their preferred method if it

meant the 1031 exchange could be successful. See Dahl v. Young,

862 P.2d 969, 971 (Colo. App. 1993) (“If there is sufficient evidence

13
in the record to sustain a trial court’s findings, the reviewing court

is bound by the trial court’s determination, even though it is

possible for reasonable persons to arrive at a different conclusion

based on the same facts.”).

¶ 32 Therefore, we conclude the district court did not err in its

conclusion that defendants caused plaintiffs’ injury.

III. Damages

¶ 33 Defendants contend that the district court erred by (1)

awarding damages to Andy on behalf of Gina, as Gina was a

nonparty; and (2) improperly awarding damages not attributable to

the alleged negligence.

A. Standard of Review and Applicable Law

¶ 34 We review the district court’s damages award for clear error.

Sos v. Roaring Fork Transp. Auth., 2017 COA 142, ¶ 49. The court’s

assessment of damages “will not be set aside unless it is manifestly

and clearly erroneous.” Kroesen v. Shenandoah Homeowners Ass’n,

Inc., 2020 COA 31, ¶ 56 .

B. Damages to Nonparty

¶ 35 Defendants claim that Andy did not have standing to assert

damages on behalf of Gina as a nonparty, and that, even if he had

14
standing, it was error for the court to award him damages for Gina’s

loss. We disagree with both contentions.

¶ 36 To begin, defendants did not raise this argument below. But

we agree that because standing is a jurisdictional prerequisite, it

can be raised at any point, even on appeal. Anderson v. Suthers,

2013 COA 148, ¶ 12.

¶ 37 To prove an individual has standing, a plaintiff must establish

that (1) he suffered an injury in fact, and (2) his injury was to

a legally protected interest. Hickenlooper v. Freedom from Religion

Found., Inc., 2014 CO 77, ¶ 8; see also Wimberly v. Ettenberg, 570

P.2d 535, 539 (Colo. 1977) (establishing the test for standing).

¶ 38 Defendants appear to concede that, if Gina had properly

assigned her litigation claim to Andy, he would have standing to

pursue Gina’s claim. But they claim the document purporting to be

Gina’s assignment is invalid.

¶ 39 We review the validity of an assignment de novo. Hawg Tools,

LLC v. Newsco Int’l Energy Servs., Inc., 2016 COA 176M, ¶ 47. To

the extent that we review the question of division of marital

property, we will defer to the district court’s factual findings unless

15
there is a showing of abuse of discretion. In re Marriage of

Medeiros, 2023 COA 42M, ¶ 28.

¶ 40 “Generally, Colorado law favors the assignability of claims.”

McKenna v. Oliver, 159 P.3d 697, 699 (Colo. App. 2006). And the

right to receive money may be assigned. SDI, Inc. v. Pivotal Parker

Com., LLC, 2014 CO 80, ¶ 21. “No specific formality is required to

execute a valid assignment, but the intent to make an assignment

must be clearly reflected in the plain language of the parties’

agreements.” People v. Adams, 243 P.3d 256, 263 (Colo. 2010).

¶ 41 The record supports the district court’s finding that Andy was

contractually entitled to receive Gina’s share of the damages in this

lawsuit. In January 2023, Andy and Gina entered into a

“Memorandum of Understanding and Mediated Separation

Agreement” (MOU) as part of their dissolution of marriage

proceedings. With respect to Gina, the MOU states that “to the

extent there is any further pursuit against the title company for

what we believe was error, Andy may pursue this lawsuit if he so

chooses” and “Gina does not wish to further pursue this matter.”

We conclude that this allowed Andy to recover Gina’s share of the

damages.

16
¶ 42 The MOU further states that “damages recovered shall be

solely [Andy’s]” and “[Gina] agrees that any damages received by

Andy shall be free and clear from any demands made by her.”

Defendants argue, without citing specific authority, that there is a

difference between an assignment of interest in litigation and an

assignment of a claim.

¶ 43 Regardless, we must review the entire MOU to give effect to the

parties’ intent. See Johnson-Linzy v. Conifer Care Cmtys. A, LLC,

2020 COA 88, ¶ 24. The MOU also states, “It is our intent that the

division of property specified in this Agreement shall be construed

as a division of co-owned marital property pursuant to Section 1041

of the Internal Revenue Code of 1986, as amended from time to

time . . . .” The MOU continues,

During the pendency of mediation, we paid
nearly $300,000 in cash assets from shared
bank accounts to satisfy taxes due and owing
to the [IRS] and the state. Due to the nature of
Andy’s business and in large part because he
holds securities licenses, and has a profitable,
reputable firm that neither of us wish to
compromise or harm; and to avoid adverse
actions against us, we agreed to make these
payments resulting in the liquidation of nearly
all our unencumbered marital cash,
notwithstanding the cash held as collateral by
IB/SBA.

17
With respect to the 1031 exchange, the MOU says,

There was a lawsuit initiated by Andy and
Gina along with the other couple, related to
the 1031 exchange which is believed to have
been mishandled thereby creat[ing] a large tax
consequence for both couples. To avoid a tax
lien which would adversely impact Andy’s
position as licensed wealth manager, we paid
off the tax debt due and owing for the sale of
Breckenridge. To the extent there is any
further pursuit against the title company for
what we believe was an error, Andy may
pursue this lawsuit if he so chooses. If he
does so, any legal and/or Court fees paid, and
damages recovered shall be solely his.

We acknowledge that it does not appear that Gina was ever a

plaintiff in this lawsuit. Even so, in reading these provisions

together, we conclude that the plain language of the MOU

unequivocally reflects that Gina intended to allow Andy to pursue

this claim and recover the damages for any tax liability the couple

paid together when they were married. See In re Estate of Gadash,

2017 COA 54, ¶¶ 40, 45-49 (finding that the parties’ intent was

unambiguous based on the plain language of the contract and

enforcing the contract terms as written). Therefore, the assignment

is valid.

18
¶ 44 Defendants further argue that even if the assignment is valid,

there is no evidence in the record that would support a claim by

Gina against defendants for negligence. But we have already

addressed above that the court did not err by finding defendants

negligent, even if Gina did not have direct communications with

Land Title or Neer.

¶ 45 Therefore, we conclude that the district court did not err in

concluding that Gina had executed a valid assignment of her claims

and her interest in damages to Andy and, therefore, Andy had

standing to pursue this claim and obtain any award of damages

resulting from a judgment.

C. Damages Amount

¶ 46 We conclude that the record supports the district court’s

assessment of damages.

¶ 47 The district court determined that the appropriate measure of

damages “is the tax that the parties were required to pay as a result

of the failed exchange.” And it further found that each couple’s tax

liability as a result of the failed exchange was $121,410. The court

entered judgment in favor of Jacob and Laura in the amount of

$81,344.70 and another judgment in favor of Andy in the same

19
amount, which presumably reflected a reduction based on the

court’s finding that plaintiffs were thirty percent contributorily

negligent.

¶ 48 Defendants do not challenge the measure of damages or the

amount of the tax that plaintiffs were required to pay. Rather, on

appeal, they argue that the court should have deducted $36,503.01

from the damages awarded to Laura and Jacob because that couple

did not reinvest a portion of the proceeds from the sale of the

Property, as required by IRS regulations, so the couple would have

been taxed on the capital gains of the uninvested portion. Likewise,

they contend that the damages amount should be reduced in half

for Andy because Andy cannot recover damages on behalf of Gina.

We are unpersuaded.

¶ 49 With respect to Laura and Jacob, it is true that defendants

argued below that the couple did not comply with IRS regulations

requiring the couple to reinvest the full amount of the proceeds of

the Property into a new property. Defendants argued below that for

Laura and Jacob to receive the full benefit of the tax deferral, they

would have needed to reinvest $930,000, but they purchased a

20
property valued at only $776,626, leaving $153,374 uninvested to

which they would have been subject to a tax liability.

¶ 50 On appeal, defendants now specifically argue that the court

should have reduced damages by $36,503.01 to reflect the amount

of taxes the couple would have had to pay on the $153,374 that

was not reinvested. At trial, although plaintiffs’ expert testified

about the amount of taxes Jacob and Laura might have owed on

the uninvested amount, defendants never asked the court to reduce

the damages by any specific amount reflecting a potential tax

liability and, as a result, the court did not address that issue.

Accordingly, we conclude that this argument is unpreserved and we

may not address it. See Wisehart v. Zions Bancorporation, 49 P.3d

1200, 1204 (Colo. App. 2002) (In a civil case, “this court will not

consider arguments not presented to the trial court.”).

¶ 51 And as for their argument that Andy’s award should be

reduced by half because he cannot recover Gina’s amount, we have

already determined that Gina’s assignment was valid, so their

contention that damages should be reduced necessarily fails.

¶ 52 Therefore, we conclude that the court did not err in its

assessment of damages.

21
IV. Conclusion

¶ 53 We affirm the district court’s judgment.

JUDGE HARRIS and JUDGE SCHOCK concur.

22