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In re Taylor

Court of Appeals of Colorado, First Division

June 30, 2016

In the Matter of Donald C. Taylor and Margaret Ann Taylor Trust, and Vicki Spacek, Plaintiff-Appellee,
v.
Benjamin Luke Taylor, individually and as Co-Trustee of the Donald C. Taylor and Margaret Ann Taylor Joint Revocable Trust, Defendant-Appellant, and Darren Ferguson, individually and as Co-Trustee of the Donald C. Taylor and Margaret Ann Taylor Joint Revocable Trust and as Co-Personal Representative of the Estate of Margaret Ann Taylor, Deceased, Intervenor-Appellee.

         Jefferson County District Court Nos. 12PR1404 & 13CV742 Honorable Lily W. Oeffler, Judge.

          Evans Case, LLP, Aaron L. Evans, Larry Jacobs, Denver, Colorado, for Plaintiff-Appellee.

          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.

          OPINION

          DAILEY, JUDGE.

         ¶ 1 In this case involving a breach of fiduciary duty claim, defendant, Benjamin Luke Taylor, individually and as a co-trustee of the Donald C. Taylor and Margaret Ann Taylor Joint Revocable Trust, appeals the judgment and order awarding attorney fees in favor of plaintiff, Vicki Spacek, and intervenor, Darren Ferguson, individually and as a co-personal representative of the Estate of Margaret Ann Taylor and a co-trustee of the Donald C. Taylor and Margaret Ann Taylor Joint Revocable Trust. We affirm.

         I. Background

         ¶ 2 Donald and Margaret Ann Taylor were married to one another. They each had children from prior marriages: defendant is Donald's son, and plaintiff and intervenor are Margaret Ann's children.

         ¶ 3 Donald and Margaret Ann created a revocable trust, the primary purpose of which was to benefit whichever spouse survived the other. Upon the death of the surviving spouse, half of the trust's remaining assets were to be distributed to Donald's children, with the other half going to Margaret Ann's children.

         ¶ 4 Donald and Margaret Ann also separately created investment accounts with identical values that were transferable upon death only to their respective children. When Donald died in 2010, the assets in his separate investment accounts passed to his children.

         ¶ 5 Upon Donald's death, defendant became a co-trustee of the 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 defendant's 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 Donald's children.

         ¶ 6 Following Margaret Ann's death, defendant filed a probate petition in Jefferson County District Court for distribution of the trust's assets. Thirteen days after defendant filed the petition, however, plaintiff filed a civil action in El Paso County District Court against defendant. In her amended complaint, plaintiff alleged, as pertinent here, that (1) as a co-trustee of the trust, as Margaret Ann's agent under a written power of attorney, and as a result of a confidential relationship he had with Margaret Ann, defendant owed fiduciary duties to Margaret Ann; and (2) defendant breached these duties by improperly influencing Margaret Ann to transfer into the trust the monies that she had set aside as only for her children.

         ¶ 7 After venue in the civil action was changed to Jefferson County and the civil action was consolidated with the probate action, intervenor was allowed to file, on behalf of himself and Margaret Ann's estate, a complaint presenting allegations similar to those in plaintiff's amended complaint. (For convenience, plaintiff and intervenor will hereafter be referred to, collectively, as "plaintiffs.")

         ¶ 8 Defendant requested a trial by jury. At the conclusion of plaintiffs' evidence, defendant moved for a directed verdict primarily on the ground that (1) plaintiffs' claim related only to activity prior to Margaret Ann's death, when she was the sole beneficiary of the trust; and (2) consequently, the only person to whom defendant could have owed a fiduciary duty at the time was Margaret Ann. Plaintiffs could not, defendant asserted, "recover for a breach of fiduciary duty owed to someone other than [themselves]." The trial court disagreed, relying on section 15-10-504(2), C.R.S. 2015, and submitted the breach of fiduciary duty claim to the jury.

         ¶ 9 On that claim, the jury returned verdicts awarding damages of $65, 000 to each of the plaintiffs. Subsequently, the trial court, again relying on section 15-10-504(2), awarded each of the plaintiffs $40, 000 in attorney fees.

         ¶ 10 On appeal, defendant contends that, as a matter of law, 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. Plaintiffs' Recovery for Breach of Fiduciary Duty

         ¶ 11 Defendant contends that the trial court erroneously allowed plaintiffs to recover damages (1) when there was no evidence of a breach of fiduciary duty, or, alternatively, (2) based on a fiduciary duty owed not to them but to a third party - i.e., Margaret Ann. We disagree.

         A. We Do Not Address Defendant's Contention That There Was No Breach of a Fiduciary Duty Owed to Margaret Ann

         ¶ 12 In his brief to the trial court, defendant conceded that "[plaintiff's] allegations, if true, may support a claim by [Margaret Ann] for breach of fiduciary duty." When he asked for a directed verdict, defendant did not contradict this position, except to assert that the evidence showed that Margaret Ann had voluntarily decided to make the challenged transfers of monies into the trust. Defendant did not argue, as he does now on appeal, that no fiduciary duty was breached as to Margaret Ann because he did not harm the trust or Margaret Ann's interest as beneficiary, nor did he deplete trust funds or divert them to himself.

         ¶ 13 For two reasons, we decline to address the argument that defendant asserts on appeal. First, "[a]rguments never presented to, considered or ruled upon by a trial court may not be raised for the first time on appeal." Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992). Second, defendant's contention is essentially one paragraph in length, conclusory in nature, and fails to address the real issue - that is, whether a claim of breach of fiduciary duty[1] owed to Margaret Ann was supported by evidence that defendant exercised undue influence over her to gain access, through the trust, to property which she had intended would pass only to her children. Because defendant's contention is, in our view, unsupported by any substantial argument, we decline to address it further. See People v. Wallin, 167 P.3d 183, 187 (Colo.App. 2007) (declining to address arguments presented in a perfunctory or conclusory manner); see also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("A skeletal 'argument, ' really nothing more than an assertion, does not preserve a claim."); Topco, Inc. v. State, Dep't of Highways, 912 P.2d 805, 812 (Mont. 1996) ("It is not the function of this Court on appeal to advocate a party's position, to develop arguments or to locate and cite supporting or opposing authority.").

         B. Plaintiffs Can Recover for a Breach of Fiduciary Duty ...


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