In the Matter of Donald C. Taylor and Margaret Ann Taylor Trust, and Vicki Spacek, Plaintiff-Appellee,
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.
County District Court Nos. 12PR1404 & 13CV742 Honorable
Lily W. Oeffler, Judge.
Case, LLP, Aaron L. Evans, Larry Jacobs, Denver, Colorado,
& Evans, LLC, Alan Epstein, Bruce A. Menk, Denver,
Colorado, for Defendant-Appellant.
Offices of Daniel T. Goodwin, Daniel T. Goodwin, Broomfield,
Colorado; Donelson Barry, LLC, Caroline R. Kert, Paige Orgel,
Broomfield, Colorado, for Intervenor-Appellee.
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.
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
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
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.
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.
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 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.").
Plaintiffs Can Recover for a Breach of Fiduciary Duty ...