concurring in part and dissenting in part.
I concur in Parts I and II of the majority opinion. I dissent to that portion of part III which imposes upon a party who has established a breach of fiduciary duty resulting in a loss, the additional burden of proving that the loss was caused by negligence subsequent to the established breach.
The claim upon which the trial court rendered judgment was Clayton Brokerage’s breach of its fiduciary duty to Rupert by placing him in a high risk discretionary commodity futures trading account. Under the record before us, there is no dispute as to the fiduciary relationship established between Rupert and Clayton Brokerage concerning his account which was transferred to it by salesmen in whom he had reposed trust and confidence. See Adams v. Paine, Webber, Jackson & Curtis, Inc., 686 P.2d 797 (Colo.App.1983).
Based upon this record, the trial court found that Clayton Brokerage breached its duty to Rupert by opening the high risk discretionary commodity futures account. And thus, the trial court properly found Clayton Brokerage to be obligated to reimburse Rupert for the loss he would not have suffered but for the breach in opening the account. There is sufficient evidence in the record to support the trial court's holding on this issue and we are bound thereby.
When a fiduciary commits a breach of duty, whether that breach be intentional or negligent, the beneficiary of that fiduciary obligation has the right to recover any loss flowing from that breach. See Restatement (Second) of Trusts § 205 (1959); A. Scott, Trusts § 205 (3rd ed.1967); G. Bogert, Trusts & Trustees § 862 (Rev.2d ed. 1982); Restatement (Second) of Agency § 404(a) (1958). See also White v. Brock, 41 Colo.App. 156, 584 P.2d 1224 (1978).
Since relief was granted upon Rupert’s claim that Clayton Brokerage breached its fiduciary duty by placing him in a high risk discretionary commodity account, whether Clayton Brokerage aggravated the loss by negligent management of the discretionary account is irrelevant to his rights to be made whole for the loss suffered because of the breach. This remedy has been called the “out-of-pocket” recovery. See Twomey v. Mitchum, Jones & Templeton, Inc., 262 Cal.App.2d 690, 69 Cal.Rptr. 222 (1908).
However, I do agree with Clayton Brokerage's contention that the trial court erred in its computation of loss. Here, the recovery must be limited to the loss flowing from the breach of fiduciary duty. The evidence appears to be undisputed that at the time Rupert was informed that he could terminate his discretionary account there had been a loss of $7,277, leaving a balance of $4,445. Rupert at that time chose to have the money transferred to a standard account under the guidance of Hunt. No breach of fiduciary relationship by Clayton Brokerage has been urged regarding the latter account.
Therefore, I would remand to the trial court with directions that Rupert’s recovery should be based upon the amount originally deposited in the discretionary account minus the amount transferred to the standard account and minus the settlement of $750 contributed by McAdam.