Documente Academic
Documente Profesional
Documente Cultură
2016COA100
Hall & Evans, LLC, Alan Epstein, Bruce A. Menk, Denver, Colorado, for
Defendant-Appellant
Law Offices of Daniel T. Goodwin, Daniel T. Goodwin, Broomfield, Colorado;
Donelson Barry, LLC, Caroline R. Kert, Paige Orgel, Broomfield, Colorado, for
Intervenor-Appellee
Background
trust with Margaret Ann, who was suffering from a terminal illness.
Margaret Ann relied on defendant for financial advice. He
purported to sign documents under her name on several occasions,
including once when she was out of the state. Shortly before her
death in 2011, Margaret Ann, at defendants urging, transferred
into the trust monies which she had separately placed in her
investment accounts and designated as payable upon death only to
her children. By transferring these monies into the trust, only half
of the monies would pass to her children and the other half would
pass to Donalds children.
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and the civil action was consolidated with the probate action,
intervenor was allowed to file, on behalf of himself and Margaret
Anns estate, a complaint presenting allegations similar to those in
plaintiffs amended complaint. (For convenience, plaintiff and
intervenor will hereafter be referred to, collectively, as plaintiffs.)
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plaintiffs could not recover damages and attorney fees for a breach
of fiduciary duty in this case. He asserts, in this regard, that
(1) there was no evidence presented of a breach of fiduciary duty
owed to Margaret Ann or (2) even if there was, plaintiffs could
neither pursue the breach of fiduciary duty claim nor obtain an
award of attorney fees under section 15-10-504(2). We address
these contentions below.
II.
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duty owed to the settlor to the extent that breach harmed the
beneficiaries interests. Id. at 212.
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beneficiary may sue for breach of a duty that the trustee owed to
the settlor/beneficiary which was breached during the lifetime of
the settlor and subsequently affects the interest of the vested
beneficiary.); Siegel v. Novak, 920 So. 2d 89, 96 (Fla. Dist. Ct. App.
2006) (Denying standing would be contrary to our sense of justice
a trustee should not be able to violate its fiduciary duty . . . and
yet escape responsibility because the settlor did not discover the
transgressions during her lifetime. . . . Without this remedy,
wrongdoing concealed from a settlor during her lifetime would be
rewarded.) (footnote omitted); Tseng v. Tseng, 352 P.3d 74, 82 (Or.
Ct. App. 2015) (recognizing that actions by the trustee of a
revocable living trust during the settlors lifetime can amount to a
breach of trust for which the beneficiaries of a formerly revocable
trust are entitled to seek redress after the settlors death is
consistent with the common law of trusts generally).
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Heller the [trial] court must find that a breach of trust has
occurred. In re Estate of Klarner, 113 P.3d 150, 157 (Colo. 2005).
Here, neither the trial court nor the jury made an express finding of
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incurred on appeal.
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recoverable for the particular appeal, the party claiming [them] shall
. . . state the legal basis therefor, in the partys principal brief in the
appellate court. In neither plaintiffs nor intervenors principal
briefs was a request made for attorney fees incurred on appeal
under the breach of trust exception to the American Rule.
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V.
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Conclusion
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However, I agree with the trial court that the jury trial in this
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15-10-504 provides that court not the jury with the power to
surcharge a fiduciary for attorney fees. Consequently, even though
the breach of fiduciary duty was determined by the jury, the trial
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