Ludlow v. Gibbons

Judge LOEB

concurring in part and dissenting in part.

I concur in Section II C. of the majority opinion affirming the summary judgment on the sellers' breach of fiduciary duty claim. However, I respectfully dissent regarding the majority's resolution of the sellers' negli*143gence claim in Section II.B. of the opinion. In my view, the sellers failed to submit evidence sufficient to establish a genuine issue of material fact as to causation and the fact of damages. Rather, the sellers' evidence in support of their theory of causation and damages was wholly speculative, and, accordingly, was not sufficient to withstand summary judgment on their negligence claims.

Initially, I note that I am in general agreement with the majority's recitation of the factual background here and with the majority's articulation of the basic legal standards that govern this case. In that regard, I agree that (1) a plaintiff in a case of alleged transactional professional negligence is required to prove that, but for the professional's negligence, he or she would have obtained a more favorable result, and (2) this case implicates the "no deal" seenario, where a plaintiff alleges he or she would have been better off walking away from the deal. See Viner v. Sweet, 117 Cal.App.4th 1218, 12 Cal.Rptr.3d 588, 588 (2004) (Viner II ).

I disagree with the majority, however, in its analysis of how a plaintiff may satisfy the requirement of proving causation and the fact of damages in a case such as this, and its conclusion that the sellers here satisfied that requirement.

The sellers contend the district court erred by granting summary judgment in favor of the brokers on the professional negligence and negligent supervision claims. According to the sellers, the record demonstrates a genuine issue of material fact as to whether the brokers' alleged negligence caused damages to the sellers, and, therefore, they are entitled to a trial on the merits of these claims. I disagree.

As with any negligence claim, to recover on a claim of professional negligence, a plaintiff must show that the professional breached a duty of care owed to the plaintiff and thereby caused the plaintiff to suffer damages. See, e.g., City of Westminster v. Centric-Jones Constructors, 100 P.3d 472, 485 (Colo.App.2003); McCafferty v. Musat, 817 P.2d 1039, 1043 (Colo.App.1990); see also CJI-Civ. 4th 15:25 (2010) (instruction on elements of liability in a professional malpractice case same as in a basic negligence case).

To recover on a claim of negligent supervision against the employer of a professional, a plaintiff must prove that the employer had a duty to prevent an unreasonable risk of harm to third - persons to whom the employer knew or should have known that the professional would cause harm. Keller v. Koca, 111 P.3d 445, 448 (Colo.2005). However, unless harm results from the wrongful action or actions of the person supervised, any negligence occurring in the supervision cannot be said to be the cause of any harm. Arnold v. Colo. State Hosp., 910 P.2d 104, 107 (Colo.App.1995).

Therefore, both varieties of negligence claims at issue here against the brokers require the plaintiff to demonstrate a causal connection between the breach of the professional's duty and the resulting injury. A plaintiff proves causation by showing by a preponderance of the evidence that the injury would not have occurred but for the defendant's negligent conduct. Kaiser Found. Health Plan v. Sharp, 741 P.2d 714, 719 (Colo.1987); Allen v. Martin, 203 P.3d 546, 565 (Colo.App.2008).

Where, as here, a plaintiff confronts a motion for summary judgment alleging lack of causation, the plaintiff must establish a triable issue of fact. Cont'l Air Lines, Inc. v. Keenan, 731 P.2d 708, 713 (Colo.1987). The plaintiff need not prove causation with absolute certainty, but causation must be established beyond mere possibility or speculation in order to avoid summary judgment in the moving party's favor as a matter of law. Kaiser, 741 P.2d at 719.

In this case, the district court granted summary judgment in the brokers' favor on the negligence claims because the sellers could not establish that, but for the brokers' alleged negligence, they would have sold the forty-nine-acre portion of their property for a more favorable amount. According to the court,

[blecause [the sellers] have not provided any evidence other than impermissible speculation in support of their negligence claims against [the brokers], they cannot, as a matter of law, demonstrate that [the brokers'] negligence caused them injury.

*144Based upon my de novo review of the record, I agree with the court that the sellers did not put forth sufficient evidence to create a genuine issue of material fact that the brokers' professional negligence caused damages to them.

I start my analysis with an articulation of the sellers' theory of causation and damages. From the very beginning of this case through this appeal, the sellers contended that, but for the negligence of the brokers, they would not have sold their property to Actis, but rather would have sold their property to some undefined buyer for $1.6 million more than they actually received in the Actis transaction. Contrary to the majority's analysis, as I interpret the record, the sellers have never simply said they lost their property as a result of the brokers' alleged negligence. Indeed, there is no dispute that Actis paid the sellers in exeess of $5 million for the subject property. Rather, the sellers have always defined their injury or fact of damages as the opportunity to sell their property for an extra $1.6 million, or what they "anticipated" they were going to receive in the Actis transaction.

The only evidence provided by the sellers to create a triable issue as to causation was the affidavit of a real estate appraiser who valued the land sold to Actis. According to this appraiser, the market value of the land was $6.6 million, both on the day that the parties entered into their sales contract and on the day of the closing. However, as the district court properly observed, this affidavit established only that the land was worth $6.6 million; it did not establish that the sellers would have been able to sell the land to any buyer for that amount. In other words, we are left guessing as to whether the sellers would have been able to sell the property for a more favorable amount (either during the contract period with Actis or any time in the future) had they known about the eredit provision that reduced the purchase price. Even the appraiser agreed in his deposition testimony that he could not determine whether the sellers would be able to find a buyer willing to pay the full market value:

Q: [There's no way you can determine that someone actually would have bought this property if Actis hadn't, is there?
A: [Thhat's a hypothetical I can't begin to answer.

There is a difference between the fact of damages to the plaintiff and the amount of the damages, see Miami Int'l Realty Co. v. Paynter, 841 F.2d 348, 350 (10th Cir.1988); U.S. Nat'l Bank v. Bartges, 120 Colo. 317, 335-36, 210 P.2d 600, 609 (1949), and here, I conclude the sellers failed to put on sufficient evidence of the former. The appraiser's valuation of the land alone does not establish beyond mere possibility or speculation that the sellers suffered a financial loss because of the brokers' professional negligence. See City of Westminster, 100 P.3d at 485-86 {opinion by expert that alleged negligence "may have resulted in damage" is not sufficient evidence that the defendant's alleged breach of the standard of care caused the plaintiff injury; testimony as to what may have happened does not create a genuine issue of material fact as to causation).

The majority argues that, because the appraisal here assumed a willing seller and a willing buyer, it provided sufficient evidence to overcome summary judgment. But, in my view, it is that very assumption that creates the speculation in the sellers' proof. I submit that something more than a mere assumption is necessary to show that the sellers would have sold the property at all, let alone at a price $1.6 million more than they received from Actis.

Moreover, the majority's reliance on the Bush offer to bolster the sellers' claim is misplaced for two reasons. First, although the fact of the Bush offer is in the record, the sellers never rely on that fact to support their contention that there is a disputed issue of material fact as to their theory of causation. (Nor do they even mention Mr. Groves' testimony in their briefs on appeal in support of their argument on the causation issue.) Rather, their briefs on appeal rely only on the appraisal of their property. Second, as recognized by the majority, the Bush offer fell through, and the sellers never offered any evidence to show that Bush would have thereafter been interested in purchasing the *145property at all, let alone at the price desired by the sellers. Similarly, the majority's reliance on previous offers for the property is not persuasive. These offers were remote in time from the Actis transaction, and there is no contention that any of those offers was even close to the price the sellers were seeking in the Actis transaction.

I also reject the sellers' argument (apparently accepted by the majority) that the district court imposed an impossible burden on them because it required them to show "an actual sale on an actual date" in order to survive the brokers' motion for summary judgment. According to the sellers, they only learned of the credit provision the week prior to closing, and onee they transferred their land, they "lost the ability to drum up a willing buyer to purchase a parcel of land which they no longer owned." In the first instance, although I recognize it is not an issue in this appeal, I question why the sellers chose to close on this transaction once they learned that Actis would receive a $1.6 million credit against the purchase price. Nevertheless, I do not read the court's order as requiring proof of an actual sale to overcome summary judgment or otherwise imposing an impossible evidentiary burden on the sellers at the summary judgment stage. Rather, the court simply required some evidence, beyond impermissible speculation,, to demonstrate that the brokers' negligence caused the sellers to suffer the loss they were alleging. Thus, expert testimony regarding current market conditions and trends or regarding the likelihood of a sale at a price higher than what Actis paid might have sufficed to raise a triable issue of fact that, but for the brokers' alleged negligence, the sellers could have sold their land for a more favorable amount. Cf. Republic Nat'l Life Ins. Co. v. Red Lion Homes, Inc., 704 F.2d 484, 489-90 (10th Cir.1983) (experienced home developer's testimony that past experience and market analysis indicated that homes would have sold easily and that past experience showed developer would have earned a profit on sale of homes was sufficient to overcome motion for directed verdict based on speculative damages).

While causation is usually a question of fact to be decided by the jury, if the facts are undisputed and reasonable minds could draw but one inference from them, causation becomes a question of law for the court. Allen, 203 P.3d at 566. Here, even granting the sellers all favorable inferences that may be drawn from the record, I conclude that they did not present sufficient evidence of causation, and, therefore, the court properly granted summary judgment in the brokers' favor on the negligence claims.

The majority finds inapposite cases where the sellers of property seek lost profits. However, I find those cases helpful to the analysis here because they more closely mirror the sellers' theory of causation and damages, namely, they lost the opportunity to sell their property for an extra $1.6 million. See, eg., Roberts v. Holland & Hart, 857 P.2d 492, 497-98 (Colo.App.1993) (distinguishing the evidence presented in Republic National and ruling that summary judgment in the defendant's favor was proper where the plaintiff's evidence of the fact of damages in the form of lost profits was speculative and based upon guesses and generalizations of the plaintiff and other affiants); Blackhawk Bldg. Sys., Ltd. v. Law Firm of Aspelmeier, Fisch, Power, Warner & Engberg, 428 N.W.2d 288, 291 (Iowa 1988) (trial court should have granted the defendant's motion for a judgment notwithstanding the verdict where there was insufficient evidence to connect the plaintiff's claimed damages to the defendant's negligent drafting of an employment contract); Raske v. Gavin, 438 N.W.2d 704, 706-07 (Minn.Ct.App.1989) (proper to grant the defendant's summary judgment motion because there was no evidence that the defendant's lack of legal advice was the proximate cause of the plaintiff's harm); cf. Miami Int'l Realty Co., 841 F.2d at 350-51 (proper to submit issue of damages to the jury where there was eredible and substantial evidence that the plaintiff lost prospective profits as a result of the defendant's legal malpractice); Jerry's Enters., Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811, 819-20 (Minn.2006) (sufficient testimony to create a question of fact as to whether, but for the defendant's negli*146gence, the plaintiff would have obtained a more favorable result in the transaction).

I am not persuaded by the majority's citation to cases involving damage to property where the measure of damages is diminution of market value of the property. See, e.g., Goodyear Tire & Rubber Co. v. Holmes, 193 P.3d 821, 827 (Colo.2008). Here, by contrast, we are not faced with a claim involving damage to property or a diminution of market value. Rather, this case involves a claim of a lost opportunity to sell property at a higher price. Similarly, the majority's reliance on cases where a complete loss of property was at issue is misplaced here. Those cases all involved the destruction or total loss of property and, in one cited case, evidence of a specific and recognized market for sale of the property. See, eg., Smith v. Eichheim, 147 Colo. 180, 183, 363 P.2d 185, 187 (1961) (total destruction of mature crops and evidence of a recognized and specific market for sale of such crops); Johnson v. Bd. of Cty. Comm'rs, 138 Colo. 392, 394, 336 P.2d 300, 301 (1959) (measure of damages for negligent destruction of a bridge was its value on the date it was destroyed). Again, here, by contrast, the sellers' property was not destroyed, nor did the sellers present any competent evi-denee that there was a recognized market for their property. And, as I have discussed above, I do not find the appraiser's affidavit, by itself, to create an issue of material fact as to causation of the claimed injury here.

I find more persuasive decisions from courts in other states that have expressly addressed the causation and fact of damages issue in a professional negligence case involving a "no deal" scenario. For example, in Viner v. Sweet, 30 Cal.4th 1232, 135 Cal.Rptr.2d 629, 70 P.3d 1046, 1050 (2003) (Viner 1), an attorney malpractice case, the California Supreme Court expressly held that the "but for" causation test applies in a case of alleged transactional negligence. The court then set forth the following reasoning, which I find applicable here:

"When a business transaction goes awry, a natural target of the disappointed principals is the attorneys who arranged or advised the deal. Clients predictably attempt to shift some part of the loss and disappointment of a deal that goes sour onto the shoulders of persons who were responsible for the underlying legal work. Before the loss can be shifted, however, the client has an initial hurdle to clear. It must be shown that the loss suffered was in fact caused by the alleged attorney malpractice. It is far too easy to make the legal advisor a scapegoat for a variety of business misjudgments unless the courts pay close attention to the cause in fact element, and deny recovery where the unfavorable outcome was likely to occur anyway, the client already knew the problems with the deal, or where the client's own misconduct or misjudgment caused the problems. -It is the failure of the client to establish the causal link that explains decisions where the loss is termed remote or speculative. Courts are properly cautious about making attorneys guarantors of their clients' faulty business judgment."

Viner I, 135 Cal.Rptr.2d 629, 70 P.3d at 1051-52 (emphasis in original) (quoting John H. Bauman, Damages for Legal Malpractice: An Appraisal of the Crumbling Dike and the Threatening Flood, 61 Temp. L.Rev. 1127, 1154-55 (1988)).

After remand by the California Supreme Court and a retrial, the California Court of Appeals rejected the plaintiffs' argument that in a "no deal" scenario, they established causation based on their claim that the lawyers' negligence in documenting a transaction caused them, in part, to lose various business opportunities. See Viner II, 12 Cal.Rptr.3d at 540-43. In that regard, the court concluded that the plaintiffs "presented no evidence any better deal was possible-the deal they wanted or a different but nonetheless economically preferable transaction with either [the buyer] or some other entity." Id. at 544 n. 13.

Similarly, in Bourne v. Lajoie, 149 Vt. 45, 540 A.2d 359 (1987), the seller in a real estate transaction brought a malpractice claim against her lawyer, alleging, in part, that the lawyer's negligent draftsmanship of a deed that referenced a list of parcels to be retained by the seller caused her to suffer damages in the form of a lost opportunity to sell two parcels omitted from the list in the *147deed. The Vermont Supreme Court affirmed the trial court's dismissal of this claim for lack of causation. The court held that this "contention is based only on [the seller's] speculation that she would have been able to sell the property, rather than on evidence of an actual offer from a prospective purchaser which she was unable to pursue." 7d. at 364.

Other state courts have reached similar conclusions in cases involving transactional professional negligence. See Girardi v. Gabriel, 38 Mass.App.Ct. 558, 649 N.E.2d 805, 808-09 (1995) (upholding summary judgment for the defendant-attorneys on grounds that the plaintiff's evidence consisted only of "assumptions" and that the plaintiff did not present evidence from which a jury could conclude that the attorneys' negligence caused an estate to lose its assets); Froom v. Perel, 377 N.J.Super. 298, 872 A2d 1067, 1075-80 (N.J.Super.Ct.App.Div.2005) (rejecting the plaintiffs' claim that alleged transactional negligence by their attorneys caused the plaintiffs to lose a 50% interest in a real estate development project on the grounds that expert testimony on the issue of causation was necessary and that the testimony presented by the plaintiffs was no more than bare conclusions that were unsupported by any factual evidence).

In sum, I conclude that the sellers' evidence here, in response to the brokers' motion for summary judgment, was conclusory and speculative and did not satisfy the sellers' burden to establish that there was a triable issue of fact on causation and fact of damages. See Comt'l Air Lines, Inc., 731 P.2d at 718. Accordingly, I would affirm the district court's sumniary judgment in favor of the brokers on the negligence claims.

Because I would affirm the summary judgment on all claims, I would not (and do not) address the cross-appeal issue discussed in Section III of the majority opinion.