Matter of Swinehart

23CA2227 Matter of Swinehart 12-19-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2227
Delta County District Court No. 23PR30058
Honorable Steven L. Schultz, Judge

In the Matter of William E. Swinehart,

Kenneth Swinehart,

Appellant,

v.

William E. Swinehart and Arta Kay Denison,

Appellees.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE YUN
Harris and Martinez*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 19, 2024

Kenneth Swinehart, Pro Se

Hoskin Farina & Kampf, David A. Younger, Lacie M. Lochard, Grand Junction,
Colorado, for Appellee William E. Swinehart

Coleman Law Office, P.C., Cassie L. Coleman, Glenwood Springs, Colorado, for
Appellee Arta Kay Denison

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Kenneth Swinehart appeals the probate court’s entry of

summary judgment dismissing his petition to appoint a guardian

for his father, William Swinehart.1 He contends that the probate

court erred by granting summary judgment without compelling his

father to undergo a professional examination and without holding a

hearing. We disagree and therefore affirm.

I. Background

¶2 The father is an eighty-six-year-old man with two adult

children, Swinehart and Arta Kay Denison.

¶3 Swinehart lived with his parents at their home in Canõn City

during the COVID pandemic. But in 2022, after Swinehart’s

mother passed away, his father moved to Cedaredge to be closer to

Denison and began living on his own. Swinehart strongly opposed

the move and believed that it was bad for his father’s health and

well-being.

¶4 Swinehart filed a petition for permanent guardianship of his

father in 2023. In the petition, Swinehart asserted that his father

1 William Swinehart and Kenneth Swinehart have the same last

name. To avoid confusion, in this opinion we identify William
Swinehart as the father and Kenneth Swinehart by his last name.

1
has memory issues that “present[] significant issues when it comes

to seeking healthcare and making decisions on where to live” and

suggested that Denison might be manipulating him. Swinehart’s

petition did not include any medical records or a letter from a

physician; instead, it requested that the probate court order “an

evaluation of [the father’s] cognitive and functional abilities.”

¶5 Denison and her father retained separate counsel and opposed

the petition for guardianship. Denison asserted that her father is

fully competent, lives independently, drives himself, fully cares for

himself, and is able to perform all his activities of his daily living.

She further noted that her father “is of sound mind, capable of

making his own decisions and acting in his own best interest.”

¶6 The father separately filed a response to the petition that

included his affidavit and a letter from his doctor. In the affidavit,

the father asserted that he

• had wanted to move to Cedaredge and does not want to

move away;

• “take[s] care of [him]self, which includes making meals,

purchasing groceries, paying bills, scheduling doctor

appointments, maintaining [his] house, driving to and

2
from doctor appointments, [and] driving on errands and

to visit family and friends”;

• has “a social life and support system in place in

Cedaredge”;

• drives himself to visit Denison at least once per week;

• manages his finances without assistance;

• was evaluated about a week earlier by his doctor, who

confirmed that he is not incapacitated;

• does not want or need a guardian or another evaluation

of his mental and physical health; and

• had last seen his son about six months earlier, does not

presently communicate with him, and would prefer his

daughter to be his guardian should he require one.

And the letter from the father’s physician stated the following:

[The father’s] formal testing scores indicate
mild to moderat[e] cognitive impairment.
However, he is able to perform his activities of
daily living independently. [The father] has
demonstrated the ability to care for himself at
this point in time. He is likely at risk of
manipulation and acknowledges this. He has
good insight into his memory problems.
Certainly in this situation there is no black
and white answer, but it appears to me he is
safe making his own decisions about his care.

3
Please refer to my encounter note . . . if more
detailed information is required.

Neither the encounter note nor any other medical records were filed

with the court.

¶7 Given the conflicting petition and responses, the probate court

directed the parties to file briefs addressing (1) “whether a [c]ourt is

required to hold a hearing once a guardianship petition is filed” and

(2) “any legal or factual argument for or against the request for an

independent evaluation” of the father. After reviewing the parties’

briefs, the court determined that nothing “prohibits a trial court

from dismissing a guardianship pleading in the pre-hearing stages

if that relief is appropriate under either C.R.C.P. 12 or C.R.C.P. 56.”

Nevertheless, the court appointed an independent visitor to

investigate the claims made in the petition. But the court denied

Swinehart’s request for a court-ordered evaluation because the

allegations in the petition were “not sufficient to justify a court

order compelling [the father] to be subjected to a professional

evaluation against his wishes.”

¶8 The court-appointed visitor visited the father’s residence, and

she interviewed the father, Swinehart, and Denison. In her sworn

4
report, the visitor observed that the father “was oriented to time

[and] place, . . . was able to give his date of birth, and . . . was able

to speak about short-term and long-term events with ease.” She

determined that the father independently showers, grooms,

prepares meals, grocery shops, cleans, takes medication, schedules

appointments, and takes care of his dog. The visitor also reviewed

the letter from the father’s physician and recited it in her report.

The visitor ultimately concluded that the father “is able to

independently complete his daily living activities” and, under the

definition of an incapacitated person, does not require a guardian.

¶9 After the visitor filed her report with the court, Swinehart’s

attorneys withdrew from the case, and Swinehart proceeded pro se.

He filed a new affidavit contesting the statements made in his

father’s affidavit and the visitor’s report, filed a motion to conduct

discovery “to determine the motivations and reasons why . . . [his

father] was induc[ed] to file a fraudulent affidavit,” and renewed his

request for an independent examination of the father. The father,

on the other hand, moved for summary judgment, relying on his

prior affidavit, the letter from his physician, and the visitor’s report

5
to establish that “there is no genuine issue as to any material fact

that . . . [he] is not incapacitated.”

¶ 10 In a detailed order, the probate court granted summary

judgment and denied each of Swinehart’s pending motions. It

determined that Swinehart’s request for discovery was just another

request for his father to undergo a compulsory examination. Noting

that a compulsory examination “is extremely intrusive and is only

appropriate if there is a sufficient factual basis to make it

necessary,” the court found that Swinehart “failed to make that

necessary threshold showing.” As to summary judgment, the court

concluded that the father had made a sufficient showing to shift the

burden to Swinehart to establish that there was a genuine issue of

material fact that the father is incapacitated. And the court

concluded that Swinehart’s response to the summary judgment

motion did not meet this burden because it was “largely based on

either past events with little or no evidentiary value, such as

conversations that pre-date this proceeding, or self-serving

speculation as to the meaning of recent incidents” and did not

“give[] rise to a credible claim that [the father] qualifies as an

incapacitated person under Colorado law.”

6
II. Analysis

¶ 11 Swinehart’s contentions on appeal2 can be sorted into three

general categories: (1) the probate court should have ordered the

father to undergo a professional evaluation and should have held

an evidentiary hearing; (2) the probate court was required by

statute to hold a hearing because summary judgment is

impermissible in guardianship proceedings; and (3) summary

judgment was not warranted because there were genuine issues of

material fact. We address and reject each contention in turn.

A. The Probate Court Was Not Required to Order an Evaluation
or to Hold an Evidentiary Hearing

¶ 12 Swinehart first contends that the probate court reversibly

erred by failing to order a professional examination of the father

and by declining to hold an evidentiary hearing on Swinehart’s

allegations of undue influence and fraud. We disagree.

2 Because Swinehart appears pro se, “we liberally construe his

filings while applying the same law and procedural rules applicable
to a party represented by counsel.” Gandy v. Williams, 2019 COA
118, ¶ 8. Accordingly, we seek to effectuate the substance, rather
than the form, of his briefing. See People v. Cali, 2020 CO 20, ¶ 34.
We will not, however, rewrite his arguments or act as an advocate
on his behalf. See Johnson v. McGrath, 2024 COA 5, ¶ 10.

7
1. Applicable Law and Standard of Review

¶ 13 A court can appoint a guardian for a person only if it finds by

clear and convincing evidence that they are an incapacitated

person. § 15-14-311(1)(a)(I), C.R.S. 2024. An incapacitated person

is

an individual other than a minor, who is
unable to effectively receive or evaluate
information or both or make or communicate
decisions to such an extent that the individual
lacks the ability to satisfy essential
requirements for physical health, safety, or
self-care, even with appropriate and
reasonably available technological assistance.

§ 15-14-102(5), C.R.S. 2024. “Clear and convincing evidence

means evidence which is stronger than a mere ‘preponderance’; it is

evidence that is highly probable and free from serious or

substantial doubt.” People In Interest of R.F., 2019 COA 110, ¶ 16

(quoting Metro Moving & Storage Co. v. Gussert, 914 P.2d 411, 414

(Colo. App. 1995)).

¶ 14 Probate courts enjoy wide discretion when deciding whether to

appoint a guardian. Arguello v. Balsick, 2019 COA 20M, ¶ 13. In a

guardianship proceeding, “the court may order a professional

evaluation of” an allegedly incapacitated person but is only required

8
to do so if the allegedly incapacitated person demands one.

§ 15-14-306(1), C.R.S. 2024 (emphasis added). “The word ‘may’

denotes a grant of discretion and is usually permissive.” Cagle v.

Mathers Fam. Trust, 2013 CO 7, ¶ 31. Thus, whether to order a

professional evaluation of an allegedly incapacitated person —

unless requested by that person — is a decision left to the probate

court’s discretion. A court abuses its discretion if its decision is

manifestly arbitrary, unreasonable, or unfair, or if the court

misconstrues or misapplies the law. Arguello, ¶ 13.

2. Court-Ordered Evaluation

¶ 15 The probate court rejected Swinehart’s request to order a

professional evaluation of his father on two occasions — once before

appointing a visitor and once after receiving the visitor’s report.

Neither rejection constitutes an abuse of discretion.

¶ 16 Before denying Swinehart’s initial request for an evaluation,

the court allowed the parties to submit “any legal or factual

argument for or against the request for an independent evaluation.”

After reviewing the parties’ submissions, including the father’s

affidavit and a letter from his physician that both asserted that the

father was not incapacitated, the court ruled that the allegations in

9
Swinehart’s petition were “not sufficient to justify a court order

compelling his father to be subjected to a professional evaluation

against his wishes.” At the same time, the court appointed a visitor

and made it clear that the parties could “seek further relief” once

the visitor filed her report.

¶ 17 While Swinehart did thereafter renew his request for a

court-ordered evaluation, the visitor’s report stated that a

professional examiner should not be appointed to examine the

father. The court noted that two professionals had already

examined the father and “neither professional [had] recommended a

further evaluation.” Accordingly, it denied Swinehart’s new request.

¶ 18 Under these circumstances, we perceive no abuse of discretion

by the probate court.3 Our supreme court has “recognized that

requiring a party ‘to undergo a medical examination against [his]

will’ is a decision that ‘implicates [his] privacy interests in [his] body

and [his] health.’” People In Interest of B.B.A.M., 2019 CO 103, ¶ 19

(quoting Schultz v. GEICO Cas. Co., 2018 CO 87, ¶ 13). Here, the

3 To the extent that Swinehart contends that the probate court

abused its discretion by denying his motion for discovery, we agree
with the court that a compelled professional evaluation “is the only
‘discovery’ that [Swinehart] actually identifie[d] in his motion.”

10
court balanced the father’s privacy interests with the need for

information and, after carefully weighing those competing interests,

rejected Swinehart’s initial request. And the visitor’s report

confirmed the court’s decision that an evaluation was unnecessary,

rendering the court’s denial of Swinehart’s second request even

more reasonable.

3. Evidentiary Hearing

¶ 19 Swinehart argues that, under the circumstances of this case,

the probate court should have held an evidentiary hearing to

address his allegations that Denison was “exerting undue influence”

over the father and that Denison and the father’s attorney were

“committing fraud upon the court.” We conclude that neither

category of allegations required a hearing.

¶ 20 First, Swinehart’s allegations of Denison’s “undue influence”

are not sufficiently relevant to whether the father is incapacitated.

For example, Swinehart alleges that Denison “was not acting in [the

father’s] best interest” when she sold the Canõn City home — which

Denison owned — that the father was living in, thereby forcing him

to move to Cedaredge. Similarly, he argues that “Denison

manipulated her father” into undergoing a surgery that Swinehart

11
opposed. But a person can be manipulated or make a decision that

is not in their best interest without being “unable to effectively

receive or evaluate information or both or make or communicate

decisions to such an extent that the [person] lacks the ability to

satisfy essential requirements for physical health, safety, or

self-care.” § 15-14-102(5). These types of allegations, without

more, are unclear and without sufficient detail to have more than

minimal relevance to whether the father is incapacitated.4

¶ 21 Second, Swinehart did not present any evidence of the “fraud

upon the court” that he contends Denison and the father’s attorney

were committing. In support of his fraud allegations, Swinehart

argues that, because the father’s affidavit contains false statements

such as the assertion that the father is capable of caring for

himself, it must have been fraudulently crafted by Denison and the

father’s attorney. But Swinehart does not provide any evidence that

the father did not agree with the contents of his affidavit or was

otherwise coerced into signing it. Nor does Swinehart present any

4 For similar reasons, we reject Swinehart’s argument that the

probate court reversibly erred by “not[ing] that, contrary to
[Swinehart’s] belief, Canõn City and the Town of Cedaredge are
similar with respect to their average altitude.”

12
evidence in support of his contention that the erroneous filing of an

unsigned, earlier version of the letter from the father’s physician

demonstrated that “[the father’s] attorney (and probably

Ms. Denison and her attorney) had been dictating [the physician’s]

medical findings and opinions.” Without any such evidence,

Swinehart’s claims of fraud are entirely speculative and did not

necessitate a hearing.

B. Adult Guardianship Proceedings Are Subject to C.R.C.P. 56

¶ 22 Swinehart next contends that section 15-14-305, C.R.S. 2024,

always requires the probate court to hold an evidentiary hearing.5

We are not persuaded.

1. Standard of Review

¶ 23 “We review the interpretation of statutes and rules of civil

procedure de novo.” In re Estate of Everhart, 2021 COA 63, ¶ 11

(quoting Nesbitt v. Scott, 2019 COA 154, ¶ 19). When interpreting a

5 The father argues that this issue cannot be raised on appeal

because the probate court’s rulings on it were interlocutory and
Swinehart did not request that the orders be certified as final. But
“[i]f an interlocutory appeal is not taken from an order . . . , a party
may still appeal the subject matter of the interlocutory order upon
the entry of a final judgment. In re Nw. Mut. Life Ins. Co., 703 P.2d
1314, 1317 (Colo. App. 1985); see Prefer v. PharmNetRx, LLC,
18 P.3d 844, 848 (Colo. App. 2000).

13
statute, we aim to give effect to the legislature’s intent and

“interpret the statute in a way that best effectuates the purpose of

the legislative scheme.” Id. (quoting In re Estate of Morgan,

160 P.3d 356, 358 (Colo. App. 2007)).

2. Discussion

¶ 24 The probate code allows “a person interested in [an]

individual’s welfare [to] petition for a determination of incapacity, in

whole or in part, and for the appointment of a limited or unlimited

guardian for the individual.” § 15-14-304(1), C.R.S. 2024. Upon

receiving such a petition, the probate court “shall set a date and

time for hearing the petition.” § 15-14-305(1).

¶ 25 Swinehart argues that, by commanding the probate court to

“set a date and time for hearing,” the statute “requires the court to

hold a hearing before ruling on a petition filed by an interested

person.” But a division of this court has already rejected this same

argument as to a substantially similar statute from a different

article of the probate code. See Everhart, ¶¶ 19-28.

¶ 26 Section 15-12-403(1)(a), C.R.S. 2024, provides that the

probate court “shall fix a time and place of hearing” upon receiving

a petition to contest a will. Despite this language, the Everhart

14
division concluded that “petitions contesting a will are subject to

dismissal under [C.R.C.P.] 12(b)(5).” Everhart, ¶ 13. The division’s

reasoning is summarized as follows:

(1) The statute does not address whether these petitions

may be dismissed without a hearing, and the probate

code states that the rules of civil procedure apply to

probate proceedings “unless specifically provided

otherwise or unless inconsistent with a statutory

provision.” Id. at ¶ 14 (citing § 15-10-304, C.R.S. 2024,

and C.R.P.P. 5(b)). “[I]f the legislature had intended to

preclude motions to dismiss in formal probate

proceedings, . . . it would have said so.” Id. at ¶ 16.

“[T]he mere fact that the statute directs the court to ‘fix a

time and place of hearing’ . . . does not mean that, in

every case, a party is entitled to discovery and an

evidentiary hearing.” Id. at ¶ 17.

(2) “[T]he probate rules specifically contemplate dispositive

motions practice. C.R.P.P. 24, which allows matters to

be set for a hearing without appearance, explains that

‘[m]otions for summary judgment and motions to dismiss

15
are not appropriate for placement on a docket for hearing

without appearance,’ and advises that ‘these motions

should be filed using the procedure set forth in C.R.C.P.

121 § 1-15.’” Id. at ¶ 18 (quoting C.R.P.P. 24 cmt. 2).

(3) Rule 12(b)(5) “advances the purpose of the probate code”

by “weeding out petitions that fail to state a plausible

claim for relief and protecting parties from frivolous

litigation.” Id. at ¶ 19.

(4) Interpreting the statute to always require a hearing

would lead to the absurd result of “requir[ing] the

[probate] court to hold an evidentiary hearing when the

petition’s factual allegations, even if proved at the

hearing, would not lead to invalidation of the will.” Id. at

¶ 24.

¶ 27 Swinehart argues that Everhart is inapplicable because it

concerned Rule 12 instead of Rule 56. But he does not explain how

that distinction makes a difference. In any event, section

15-14-109(1), C.R.S. 2024, expressly provides that “the rules of civil

procedure and the Colorado rules of probate procedure . . . govern”

guardianship proceedings. See Everhart, ¶ 14. As such, “[w]e

16
cannot think of a principled reason why” Rule 12 would apply in

Everhart but Rule 56 would not apply in this case. Id. at ¶ 18.

Accordingly, we conclude that a petition in an adult guardianship

proceeding is subject to disposition under Rule 56.

C. Summary Judgment Was Appropriate

¶ 28 Finally, Swinehart contends that the probate court erred by

granting summary judgment in favor of his father because genuine

issues of material fact exist. We disagree.

1. Applicable Law and Standard of Review

¶ 29 We review an order granting summary judgment de novo and

apply the same standard as the probate court. People ex rel. Rein v.

Meagher, 2020 CO 56, ¶ 19.

¶ 30 “Summary judgment is only proper when ‘the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.’” Rein, ¶ 19 (quoting C.R.C.P. 56(c)).

The moving party bears the initial burden of “informing the court of

the basis for his motion and identifying those portions of the record

and of the affidavits, if any, which he believes demonstrate the

17
absence of a genuine issue of material fact.” Cont’l Air Lines, Inc. v.

Keenan, 731 P.2d 708, 712 (Colo. 1987).

¶ 31 If the moving party clears this initial hurdle, the burden shifts

to the nonmoving party to show a “triable issue of fact.” Griswold v.

Nat’l Fed’n of Indep. Bus., 2019 CO 79, ¶ 24 (quoting Keenan,

731 P.2d at 713). In considering a motion for summary judgment,

“a court grants the nonmoving party the benefit of all favorable

inferences that may reasonably be drawn from the undisputed facts

and resolves all doubts against the moving party.” Rein, ¶ 20.

However, in responding to a properly supported motion for

summary judgment, the nonmoving party may not rest on mere

allegations in his pleadings but instead must provide specific facts

demonstrating a genuine issue for trial. Id.

¶ 32 The mere existence of an alleged factual dispute is insufficient

to defeat a summary judgment motion; instead, the disputed factual

issue must be “genuine” and “material.” Andersen v. Lindenbaum,

160 P.3d 237, 239 (Colo. 2007). A fact is material if it will affect the

outcome of the case. Gognat v. Ellsworth, 224 P.3d 1039, 1045

(Colo. App. 2009), aff’d, 259 P.3d 497 (Colo. 2011). And to show

that an issue is genuine, the nonmoving party must provide

18
sufficient evidence to demonstrate that a reasonable fact finder

could return a verdict in his favor. Andersen, 160 P.3d at 239. “If

the evidence opposing summary judgment is merely colorable or is

not significantly probative, summary judgment may be granted.”

Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986)).

2. The Father Met His Initial Summary Judgment Burden

¶ 33 We agree with the probate court that the father’s summary

judgment motion was “sufficient to shift the burden to [Swinehart]

to establish that there is a triable issue of fact in the case.”

¶ 34 The father’s motion for summary judgment contended that he

is not incapacitated within the meaning of section 15-14-102(5),

and therefore, there was no genuine issue of material fact. In

support, the father’s motion included

• the father’s affidavit, in which the father attested that he

was fully capable of taking care of himself and his

finances;

• the court-appointed visitor’s sworn report concluding

that the father “is able to independently complete his

daily living activities” and does not need a guardian; and

19
• the unsworn letter from the father’s physician concluding

that the father has “demonstrated the ability to care for

himself” and “is safe making his own decisions about his

care.”

This evidence was sufficient to meet the father’s initial burden.

¶ 35 The letter from the father’s physician was unsworn and

ordinarily could not be relied upon by a court addressing a motion

for summary judgment.6 See McDaniels v. Laub, 186 P.3d 86, 87

(Colo. App. 2008) (“Unsworn expert witness reports are not

admissible to support or oppose a motion for summary judgment.”).

But the visitor relied on the physician’s letter — as required by

statute, see § 15-14-305(4)(c) — in forming her opinions. A court

appointed visitor is an expert, see § 15-14-305(1), and “experts may

testify as to inadmissible facts and data, including hearsay, if that

evidence formed the basis of the expert’s opinion and is of the type

reasonably relied on by others in the field,” People ex rel. Strodtman,

293 P.3d 123, 130 (Colo. App. 2011). Therefore, the probate court

6 On appeal, Swinehart does not argue that the physician’s letter is

inadmissible hearsay. Instead, he appears to rely on portions of the
letter to argue that his father has some cognitive impairment and is
likely at risk of manipulation.

20
did not err by concluding that “[a]ll three pieces of evidence,

including the evaluation performed by the independent visitor,

demonstrate[] that the [father] is able to safely handle his own

affairs and does not require court supervision.”

3. Swinehart Did Not Meet His Burden to Demonstrate a Triable
Issue

¶ 36 Given that the father met his initial burden, Swinehart was

required to establish the existence of a triable issue to defeat the

motion for summary judgment. Andersen, 160 P.3d at 239. As the

probate court noted,

Importantly, the issue of fact that [Swinehart]
must come forward with is not a disagreement
over whether something did or did not happen,
or how it should be characterized. Instead,
[Swinehart] must present evidence showing
that there is an issue of fact that the [father] is
incapacitated and that he is unable to ensure
his own physical health or safety.

We agree with the court that Swinehart’s response fell short of this

standard.

¶ 37 The admissible assertions in Swinehart’s affidavit include the

following:

• Starting around the fall of 2020, Swinehart drove his

father and mother to “their doctor visits that were mostly

21
in Colorado Springs and Pueblo,” and he and his sister

made medical appointments for his father.

• In the winter of 2020, Swinehart observed the father

“having difficulty remembering and paying his bills.”

• In the spring of 2021, Swinehart observed that the father

was becoming more forgetful. For example, the father

would “forget to schedule doctor appointments,” would

“not remember something important in relation to a

medical condition,” and would sometimes misunderstand

or mishear questions and give inaccurate responses.

• In both 2020 and 2021, the father “was unable to

effectively file his taxes.”

¶ 38 We conclude that these assertions are insufficient to establish

the existence of a genuine issue of material fact. As the probate

court noted, the specific events that Swinehart references all

occurred at least two years before this guardianship proceeding was

initiated and therefore offer “little or no evidentiary value” as to

whether the father is currently incapacitated. And while some of

Swinehart’s observations do indicate some amount of cognitive

impairment, that does not necessarily mean that the father is

22
“unable to effectively receive or evaluate information . . . to such an

extent that [he] lacks the ability to satisfy essential requirements for

physical health, safety, or self-care.” § 15-14-102(5). Thus, while

Swinehart did produce some evidence relevant to incapacity, this

evidence was “merely colorable” and “not significantly probative” to

stave off summary judgment. Andersen, 160 P.3d at 239.

¶ 39 Other statements in Swinehart’s affidavit cannot be used to

resist summary judgment. Rule 56(e) provides that “[s]upporting

and opposing affidavits shall be made on personal knowledge” and

“shall set forth such facts as would be admissible in evidence.” In

his affidavit, Swinehart states that “[my mother] informed me that

[the father] had an incident where he got lost in Colorado Springs,”

that “[my mother] stated she was concerned about his driving

abilities and didn’t want [the father] to drive her to any future

doctor visits,” and that “[the father] attended a doctor’s

appointment and it was found he had a stroke sometime in the

past.” All these statements are based on inadmissible hearsay and

cannot be used to defeat summary judgment. See C.R.C.P. 56(e);

People v. Hernandez & Assocs., Inc., 736 P.2d 1238, 1240 (Colo.

23
App. 1986) (affidavits based on inadmissible hearsay are

insufficient for the purpose of summary judgment).

¶ 40 And some statements in Swinehart’s affidavit are merely

conclusions on ultimate issues without supporting evidence. See

Olson v. State Farm Mut. Auto. Ins. Co., 174 P.3d 849, 858 (Colo.

App. 2007) (“Mere conclusory statements are not sufficient to raise

genuine factual issues.”). For instance, although Swinehart says

that his father “is incapacitated to manage his retirement account”

and “incapacitated to fulfill [his] legal responsibilities as a trustee

and understand his responsibilities under Colorado law,” he does

not provide any supporting medical evidence.

¶ 41 Finally, Swinehart’s remaining assertions are either based on

argument about how to interpret the father’s evidence or based on

“suspicion, surmise, speculation, rationalization, conjecture, [or]

innuendo.” Litinsky v. Querard, 683 P.2d 816, 818 (Colo. App.

1984) (alteration in original) (citation omitted). For example,

Swinehart’s supplemental affidavit goes through the father’s

affidavit and the visitor’s report point by point and states

Swinehart’s belief on whether it is “true,” “false,” or “misleading.”

But “[a] party may not avoid summary judgment with bare

24
assertions concerning the truthfulness of a witness’ affidavit,” but

instead must counter it “with evidence, not speculation concerning

the credibility of the attesting witness.” Miner v. Jesse & Grace,

LLC, 2014 WY 17, ¶ 31.

¶ 42 Accordingly, we agree with the probate court that “nothing in

[Swinehart’s] responses gives rise to a credible claim that the

[father] qualifies as an incapacitated person under Colorado law,”

and we therefore conclude that summary judgment was appropriate

in this case.

D. Attorney Fees

¶ 43 The father and Denison request their appellate attorney fees

under section 13-17-102(2), C.R.S. 2024, on the grounds that

Swinehart’s appeal “lacked substantial justification.” An argument

lacks substantial justification if it is “substantially frivolous,

substantially groundless, or substantially vexatious.”

§ 13-17-102(9)(a).

¶ 44 However, though we agree that Swinehart’s assertions of

widespread “fraud upon the court” were groundless, we do not view

the appeal as a whole as so lacking in substantial justification that

a fee award is appropriate. We therefore deny the request. See

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Mission Denver Co. v. Pierson, 674 P.2d 363, 365 (Colo. 1984)

(“Standards for determining whether an appeal is frivolous should

be directed toward penalizing egregious conduct without deterring a

lawyer from vigorously asserting his client’s rights.”); see also In re

Marriage of Boettcher, 2018 COA 34, ¶ 38 (“Fees should be awarded

only in clear and unequivocal cases . . . .”), aff'd, 2019 CO 81.

III. Disposition

¶ 45 The judgment is affirmed.

JUDGE HARRIS and JUSTICE MARTINEZ concur.

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