In re Donald C. Taylor and Margaret Ann Taylor Trust

COLORADO COURT OF APPEALS 2016COA100

Court of Appeals No. 15CA0143
Jefferson County District Court Nos. 12PR1404 & 13CV742
Honorable Lily W. Oeffler, Judge

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.

JUDGMENT AND ORDER AFFIRMED

Division I
Opinion by JUDGE DAILEY
Freyre, J., concurs
Taubman, J., concurs in part and dissents in part

Announced June 30, 2016

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
¶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

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 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

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 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

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 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.

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 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

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claim of breach of fiduciary duty1 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.”).

1 A fiduciary is required to act with good faith and loyalty,
unaffected by personal motives. See, e.g., Bernhard v. Farmers Ins.
Exch., 915 P.2d 1285, 1289 (Colo. 1996) (“One who is acting as a
fiduciary for another has the duty to act with the utmost good faith
and loyalty on behalf of, and for the benefit of, the other person.”);
Wright v. Wright, 182 Colo. 425, 428, 514 P.2d 73, 75 (1973) (“A
fiduciary may not allow personal motives to interfere with the
discharge of [fiduciary] duties.”).

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 B. Plaintiffs Can Recover for a Breach of
Fiduciary Duty Owed to Margaret Ann

¶ 14 To be sure, some Colorado authority supports defendant’s

position that plaintiffs cannot recover damages based on a fiduciary

duty owed not to them but to someone else. For instance, in

Graphic Directions, Inc. v. Bush, 862 P.2d 1020 (Colo. App. 1993), a

division of this court said that

[i]n order to recover on a claim for breach of
fiduciary duty, a plaintiff must prove: 1) that
the defendant was acting as a fiduciary of the
plaintiff; 2) that he breached a fiduciary duty to
the plaintiff; 3) that the plaintiff incurred
damages; and 4) that the defendant’s breach of
fiduciary duty was a cause of the plaintiff’s
damages.

Id. at 1022 (emphasis added).

¶ 15 The division in Graphic Designs, Inc., however, was not

confronted, as we are here, with the question of whether a plaintiff

may sue on the basis of a fiduciary duty owed to someone else. Nor

has any other Colorado appellate decision responded to such a

question.2

2 Defendant has cited, as a supplemental authority, Baker v. Wood,
Ris & Hames, P.C., 2016 CO 5, with respect to the issue
“concerning whether he owed plaintiffs a fiduciary duty.” But
plaintiffs have not argued on appeal that defendant owed them a

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¶ 16 In our view, this question presents an issue of standing.

Colorado’s traditional test for establishing standing is whether a

plaintiff has suffered (1) an injury-in-fact (2) to a legally protected

interest. See Ainscough v. Owens, 90 P.3d 851, 855-56 (Colo.

2004).

¶ 17 Plaintiffs here have certainly alleged an injury-in-fact: as a

result of defendant’s actions, their interest in particular monies has

been reduced by half.

¶ 18 The question, then, is whether that injury was to a “legally

protected interest.” We perceive that it was.

¶ 19 We do so largely based on the analysis employed by the

California Supreme Court in Estate of Giraldin, 290 P.3d 199 (Cal.

2012). There, the court said that, although “[t]he Probate Code

does not address this question directly[,] . . . the code, as a whole,

implies that after the settlor [of a revocable trust] has died, the

beneficiaries . . . may challenge the trustee’s breach of the fiduciary

fiduciary duty. Moreover, the holding in Baker — that children may
not maintain a legal malpractice or breach of contract action
against attorneys who prepared a parent’s estate plan — is based
largely on policies peculiar to the attorney-client relationship and,
consequently, the need to protect attorneys from liability to persons
not privy to that relationship. The concerns addressed in Baker are
simply not present in this case.

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 duty owed to the settlor to the extent that breach harmed the

beneficiaries’ interests.” Id. at 212.

¶ 20 A similar “implication” exists in Colorado’s Probate Code. Part

5 of Title 15, Article 10 of the Colorado Revised Statutes is entitled

“Fiduciary Oversight, Removal, Sanctions, and Contempt.” Its

provisions address a court’s authority to “maintain the degree of

supervision necessary to ensure the timely and proper

administration of estates by fiduciaries over whom the court has

obtained jurisdiction.” § 15-10-501(1), C.R.S. 2015. Consequently,

the provisions empower courts to take various actions regarding the

ongoing administration of estates. They do not, in and of

themselves, create either a cause of action or additional fiduciary

duties.

¶ 21 But one provision, section 15-10-504(2)(a), endorses the view

that compensatory damages ought to be recoverable by third parties

harmed by breaches of fiduciary duties owed to others. This

provision states:

If a court, after a hearing, determines that a
breach of fiduciary duty has occurred or an
exercise of power by a fiduciary has been
improper, the court may surcharge the
fiduciary for any damage or loss to the estate,

9
 beneficiaries, or interested persons. Such
damages may include compensatory damages,
interest, and attorney fees and costs.

§ 15-10-504(2)(a) (emphasis added); see § 15-10-201(27), C.R.S.

2015 (defining “[i]nterested person” as including “children . . . and

. . . others having a property right in or claim against a trust estate

or the estate of a decedent, ward, or protected person”).

¶ 22 This provision is consistent with common law principles

recognizing third party standing to sue for breaches of fiduciary

duties. See George Gleason Bogert, George Taylor Bogert & Amy

Morris Hess, Bogert Trusts & Trustees § 964 (3d ed. 2010) (“[M]any

courts have allowed other beneficiaries to pursue breach of duty

claims after the settlor’s death, related to the administration of the

trust during the settlor’s lifetime, when, for example, there are

allegations that the trustee breached its duty during the settlor’s

lifetime and that the settlor had lost capacity, was under undue

influence, or did not approve or ratify the trustee’s conduct.”); see

also, e.g., Brundage v. Bank of Am., 996 So. 2d 877, 882 (Fla. Dist.

Ct. App. 2008) (Although the trustee owes no duty to the

beneficiaries of a revocable trust, “once the interest of the

contingent beneficiary vests upon the death of the settlor, the

10
 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 settlor’s lifetime can amount to a

breach of trust for which the beneficiaries of a formerly revocable

trust are entitled to seek redress after the settlor’s death is

consistent with the common law of trusts generally”).

¶ 23 Persuaded by these authorities, we conclude that, under the

circumstances presented here, plaintiffs could pursue a claim for a

breach of fiduciary duty that proved harmful to them, even though

the duty was owed to Margaret Ann.

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¶ 24 In so concluding, we necessarily reject defendant’s attempt to

distinguish Giraldin and other authorities on the ground that the

beneficiaries in those cases were harmed by the trustees’ actions in

reducing the trusts’ assets that would ultimately pass to the

beneficiaries. We are unwilling to limit the reach of the principles

espoused in those cases to only that factual scenario; where a

trustee’s actions breach a fiduciary duty to a settlor, causing harm

to the trust’s beneficiaries, the beneficiaries ought to be able to

recover for the harm caused to them.

¶ 25 Consequently, we perceive no grounds upon which to disturb

the jury’s verdicts.

III. The Trial Court’s Attorney Fee Awards

¶ 26 Defendant contends that the trial court erred in awarding

plaintiffs attorney fees under section 15-10-504(2). We disagree.

This is a matter of statutory interpretation and thus presents

us with a question of law, which we review de novo. Town of

Telluride v. San Miguel Valley Corp., 197 P.3d 261, 262 (Colo. App.

2008).

¶ 27 When interpreting a statute, “a court must ascertain and give

effect to the intent of the General Assembly and refrain from

12
 rendering a judgment that is inconsistent with that intent.”

Trappers Lake Lodge & Resort, LLC v. Colo. Dep’t of Revenue, 179

P.3d 198, 199 (Colo. App. 2007). To determine legislative intent, we

first look to the words of the statute, id., and give effect to their

common meanings, Bd. of Cty. Comm’rs v. Roberts, 159 P.3d 800,

804 (Colo. App. 2006). If those words are clear and unambiguous

in import, we apply the statute as written. Trappers Lake Lodge,

179 P.3d at 199. “[W]ords omitted by the Legislature may not be

supplied as a means of interpreting a statute.” Miller v. City & Cty.

of Denver, 2013 COA 78, ¶ 21 (quoting McWreath v. Dep’t of Pub.

Welfare, 26 A.3d 1251, 1258 (Pa. Commw. Ct. 2011)).

¶ 28 As noted above, section 15-10-504 does not create remedies or

procedures for adjudicating tort claims. Rather, it is part of a

broader section of law dealing with judicial “oversight” or

“supervision” of fiduciaries in the administration of estates. Section

15-10-504 authorizes various sanctions, to be imposed by the

court, for breaches of fiduciary duty or other improper conduct by

fiduciaries.

¶ 29 As pertinent here, the text of section 15-10-504(2) (which is

recited above) authorizes judicial imposition of “surcharge[s]” upon

13
 notice to the fiduciary and after “a hearing” by the court. The

context and manner in which the word “surcharge” is used in the

provision suggest that it was intended, in its verb form, to mean

something like “([o]f a court) to impose a fine on a fiduciary for

breach of duty.” Black’s Law Dictionary 1670 (10th ed. 2014). The

text of the provision does not purport to apply to trials resulting in

jury determinations of tort claims.

¶ 30 Because we may “not read into a statute an exception,

limitation, or qualifier that its plain language does not suggest,

warrant, or mandate,” People v. Sorrendino, 37 P.3d 501, 504 (Colo.

App. 2001), we conclude that a trial on a tortious breach of

fiduciary duty claim is not a “surcharge proceeding” under section

15-10-504, and, consequently, an award of attorney fees in

connection with such a trial is not warranted under section 15-10-

504(2). See In Interest of Delluomo v. Cedarblade, 2014 COA 43,

¶ 24 & n.4.3

3 The partial dissent in this case asserts otherwise, based, at least
in part, on the trial court’s opinion that, upon consolidation of
plaintiff’s civil action with defendant’s probate action, the case
became a “probate matter.” To the contrary, it would appear that
the “civil action” would not “merge” into the probate action. See
Mission Viejo Co. v. Willows Water Dist., 818 P.2d 254, 259 (Colo.

14
¶ 31 An appellate court may, however, affirm on any ground

supported by the record. Rush Creek Solutions, Inc. v. Ute Mountain

Ute Tribe, 107 P.3d 402, 406 (Colo. App. 2004).

¶ 32 Intervenor argues that an award of attorney fees was properly

awarded under the breach of trust exception to the American Rule4

articulated in Heller v. First National Bank, N.A., 657 P.2d 992

(Colo. App. 1982). He points out that both this case and Heller

concern the “improper management of a trust.” Id. at 995.

¶ 33 Ordinarily, “to support an award for attorney’s fees under

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

1991) (“Consolidation does not merge the consolidated actions into
a single action.”); see also Marvin Johnson, P.C. v. Myers, 907 P.2d
67, 71 (Ariz. 1995) (“[I]f a tort action is consolidated with a probate
proceeding, the parties to that tort action are entitled to all the
rights they would have had under the Rules of Civil Procedure or
otherwise, just as though the action had been consolidated with
another tort action.”).
4 The American rule “requires each party in a lawsuit to bear its
own legal expenses.” Bernhard, 915 P.2d at 1287; see Rhodes v.
Copic Ins. Co., 819 P.2d 1060, 1061 (Colo. App. 1991) (“The
‘American rule’ follows a general policy of disallowing taxation of
attorney fees against a losing party and in favor of a prevailing party
to litigation.”).

15
 a breach of trust by defendant. But, as the court recognized, the

jury determined that defendant had breached a fiduciary duty owed

to Margaret Ann and the undisputed evidence was that defendant

was a trustee, Margaret Ann was a trust beneficiary, and defendant

and his siblings stood to personally gain by the inclusion of the

challenged property in the trust.

¶ 34 Under these circumstances, the requirements for a recovery of

attorney fees under the breach of trust exception to the American

Rule are satisfied. See Delluomo, ¶ 10 (noting recovery of fees under

this exception requires that the action involve (1) a trust estate; (2)

a breach of duty that affects trust assets; and (3) a breach by the

trustee); cf. Restatement (Third) of Trusts § 95 cmt. b (Am. Law.

Inst. 2012) (recognizing that a trustee is subject to breach of trust

liability arising from the improper administration of a trust not only

for losses to the trust itself but also “as may be necessary to prevent

the trustee from benefiting individually from the breach of trust”).

¶ 35 In so concluding, we reject, as misplaced, defendant’s reliance

on the Delluomo division’s conclusion that fees were not warranted

under the breach of trust exception where a fiduciary misused her

influence to gain title to property held in trust. Unlike here, the

16
 fiduciary in Delluomo was a named beneficiary of the trust and not

a trustee.

IV. Attorney Fees on Appeal

¶ 36 We reject plaintiffs’ requests for awards of attorney fees

incurred on appeal.

¶ 37 C.A.R. 39.5 provides that “[i]f attorney fees are otherwise

recoverable for the particular appeal, the party claiming [them] shall

. . . state the legal basis therefor, in the party’s principal brief in the

appellate court.” In neither plaintiff’s nor intervenor’s principal

briefs was a request made for attorney fees incurred on appeal

under the breach of trust exception to the American Rule.

¶ 38 In her answer brief, plaintiff requests an award of appellate

fees only under section 15-10-504(2). For the reasons previously

stated, she is not entitled to fees in connection with a surcharge

proceeding (or an appeal therefrom).

¶ 39 In his answer brief, Intervenor requests an award of fees

incurred on appeal under section 13-17-102, C.R.S. 2015.

Contrary to intervenor’s assertion, however, defendant’s appeal was

neither frivolous nor groundless. Consequently, fees are not

available for this appeal under section 13-17-102.

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 V. Conclusion

¶ 40 The judgment and order awarding attorney fees are affirmed.

JUDGE FREYRE concurs.

JUDGE TAUBMAN concurs in part and dissents in part.

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¶ 41 JUDGE TAUBMAN, concurring in part and dissenting in part.

¶ 42 I agree with the majority’s opinion, except its conclusion in

Parts IV and V that plaintiff, Vicki Spacek, and intervenor, Darren

Ferguson (collectively plaintiffs), are not entitled to trial attorney

fees or appellate attorney fees under section 15-10-504(2)(a), C.R.S.

2015. I agree with the trial court’s well-reasoned decision that

plaintiffs are entitled to an award of attorney fees under that statute

against defendant, Benjamin Luke Taylor, individually and as co-

trustee of the Donald C. Taylor and Margaret Ann Taylor Joint

Revocable Trust.

¶ 43 Section 15-10-504(2)(a) provides:

If a court, after a hearing, determines that a
breach of fiduciary duty has occurred or an
exercise of power by a fiduciary has been
improper, the court may surcharge the
fiduciary for any damage or loss to the estate,
beneficiaries, or interested persons. Such
damages may include compensatory damages,
interest, and attorney fees and costs.

¶ 44 The probate code expressly defines “interested person” to

include “children . . . and any others having a . . . claim against a

trust estate or the estate of a decedent, ward, or protected person,

which may be affected by the proceeding.” § 15-10-201(27), C.R.S.

19
 2015. Because plaintiffs are children of the decedent, Margaret

Ann Taylor, they would be entitled to receive attorney fees under

section 15-10-504(2)(a) if the trial court, after a hearing, determines

either that a breach of fiduciary duty has occurred or an exercise of

power by a fiduciary has been improper.

¶ 45 Here, a jury determined that defendant had breached his

fiduciary duty to plaintiffs, a conclusion which the majority affirms.

Nevertheless, defendant argues that section 15-10-504(2)(a) is

inapposite because the breach of fiduciary duty was determined

here by a jury rather than by the trial court.

¶ 46 However, I agree with the trial court that the jury trial in this

case may be considered a surcharge hearing, especially because

defendant demanded a jury trial on the breach of fiduciary duty

claim. This conclusion is logical because, as the trial court noted,

this action began as a civil case, and after the probate case and the

civil case were consolidated, the first trial court judge ruled that the

consolidated case was a probate matter in its entirety.1

1 The trial court was authorized to consolidate the breach of
fiduciary duty action with the probate proceeding under section 15-
10-303, C.R.S. 2015. The section provides, in pertinent part, that
proceedings involving “the same estate, protected person, ward, or

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 Accordingly, it follows that the probate code, and specifically section

15-10-504(2)(a), applies here. In the alternative, I would conclude

that the separate hearing on attorney fees satisfied the terms of the

statute.

¶ 47 I further agree with the trial court’s conclusion that section

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

trust” may be consolidated in the court where the first proceeding
was filed ― here, the probate proceeding. See also C.R.C.P. 42(a).
In addition, the probate code expressly provides for jury trials when
a party has a constitutional right to a trial by jury, so defendant’s
request for a trial by jury on his breach of fiduciary claim was
consistent with the trial court consolidating the two cases under the
probate code. See § 15-10-306(1), C.R.S. 2015. Further, the
supreme court’s admonition in Mission Viejo Company v. Willows
Water District, 818 P.2d 254, 259 (Colo. 1991), that “consolidation
does not merge the consolidated actions into a single action” does
not apply here, where the parties are the same in both proceedings.
Finally, the Arizona case on which the majority relies for the
proposition that parties to a tort action that is consolidated with a
probate action “are entitled to all the rights they would have had
under the Rules of Civil Procedure, or otherwise,” is inapposite,
because defendant here has not been deprived of any of his rights
under the Colorado Rules of Civil Procedure. See Marvin Johnson,
P.C. v. Myers, 907 P.2d 67, 71 (Ariz. 1995). Rather, he has been
assessed attorney fees under the Colorado Probate Code, and he
has not cited authority to support his contention that he has a right
not to be assessed attorney fees under the circumstances presented
here.

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 court could properly exercise its responsibilities as a fact finder to

determine whether attorney fees should be awarded, and, if so, in

what amount.

¶ 48 I disagree with the majority’s rejection of plaintiffs’ request for

an award of appellate attorney fees. Because that request was

predicated on the applicability of section 15-10-504(2)(a), and

because plaintiffs have prevailed on the merits, I would conclude

that they are entitled to an award of appellate attorney fees.

Accordingly, I would remand to the trial court to determine the

amount of appellate attorney fees to which I believe plaintiffs are

entitled.

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