concurring in part and dissenting in part:
I agree with that part of the majority opinion which concludes that the defendants waived their right to contest the award of exemplary damages. I respectfully dissent from that part of the opinion which holds that the trial court was correct in directing the jury that a fiduciary relationship had been established as a matter of law. See majority op. at 515.
Although I agree with the majority’s conclusion that “proof of practical control of a customer’s account by a broker will establish that the broker owes fiduciary duties to the customer with regard to the broker’s handling of the customer’s account,” majority op. at 517, I do not agree that the evidence in this case meets the standard for granting a directed verdict set forth in our previous decisions. Consequently, I believe that the trial court committed reversible error in taking from the jury the issue of whether defendants owed the plaintiff fiduciary duties during the periods set forth in Instruction No. 13.
The majority recognizes that “the existence of a fiduciary relationship is a question of fact.” Majority op. at 518; see also Tschudy v. Amos C. Sudler & Co., 158 Colo. 421, 426, 407 P.2d 877, 879 (1965). The question of whether a fiduciary relationship exists will, in turn, “almost invariably” rest on a determination of whether the broker has “functional control” over the customer’s account. Id. The majority sets forth four related factors to be used in assessing the existence of control by a broker. Majority op. at 516-517. First, a court must examine the manner in which account transactions have actually been conducted. Second, the court must look to the broker’s “involvement” in transactions in a customer’s account. In other words, the court must determine whether, and to what degree, the broker has acted as an investment adviser rather than merely as an order taker. Third, the court must look to whether the broker may initiate trading without prior customer approval. Finally, in determining the existence of control, the court should consider the sophistication of the customer. In addition to these factors, the majority also notes that whether the relationship between broker and customer is one of trust and confidence is “closely related” to a determination of control. Majority op. at 518.
The majority also notes three factors which, if present, indicate that the broker did not exercise control. First, control is unlikely where the broker merely receives and executes the customer’s orders. Majority op. at 517. Second, “Frequent communication between the broker and the customer concerning the status of the account *523... suggest absence of control.” Id. Finally, a relatively high degree of customer sophistication, as measured by the customer’s age, education, intelligence, and investment experience indicates that the customer has retained control of the account. Majority op. at 517.
As the majority acknowledges, a directed verdict is only appropriate where the evidence introduced is susceptible to only one interpretation by a reasonable person and only in the absence of evidence upon which a jury could determine the issue for the party opposing the directed verdict. Majority op. at 518. When considering a motion for directed verdict, the court must view the evidence, including every reasonable inference to be drawn from that evidence, in the light most favorable to the party against whom the motion is directed. Safeway Stores v. Langdon, 187 Colo. 425, 429-30, 532 P.2d 337, 340 (1975); McGlasson v. Barger, 163 Colo. 438, 442, 431 P.2d 778, 779 (1967). “A motion for directed verdict can only be granted where the evidence, when so considered, compels the conclusion that the minds of reasonable men could not be in disagreement and that no evidence, or legitimate inference arising therefrom, has been received or shown upon which a jury’s verdict against a moving party could be sustained.” Safeway Stores, 187 Colo, at 430, 532 P.2d at 340.
The parties presented a great deal of evidence bearing on the factors used to determine control. Although that evidence suggests the presence of a number of factors that lead to an inference of control, such as the broker’s authority to initiate transactions without prior approval and the fact that the broker served as an investment advisor, see majority op. at 519-520, the record also contains evidence that, when considered in the light most favorable to the defendants, tends to establish two of the factors which negate the inference of control.
First, Caryl Adams’ communications and involvement with a number of professionals who were highly experienced in the area of investment and finance could support an inference that Adams either made use of their investment experience and knowledge or increased her own level of sophistication. In particular, the record shows that Adams had “over a hundred” conversations with William Fishman, an attorney specializing in securities, starting in January 1975. Fishman’s testimony reveals a painstaking effort to teach Adams how to understand and follow the trading in her account. In that effort, Fishman used the summaries sent by Ocrant to Adams to illustrate sophisticated concepts such as purchasing on margin, differentiation between different types of interest rates, and determinations of equity and profitability. These conversations would support the view not only that Adams may have gained a much greater understanding of investment analysis, but also that she was in a position to make use of Fishman’s expertise in reviewing at least the significant number of actual transactions he used as his examples.
The testimony of Kermit Turley, Adams’ second husband, also supports a conclusion that she was not naive and unsophisticated. Turley, a former stockbroker, testified that he on occasion discussed the Paine, Webber accounts with Adams. During these discussions they “talked about the buys and sells of various companies.” Turley also testified that he and Adams spent a weekend at a YMCA camp in the fall of 1975 going over the account statements and preparing spread sheets in an effort to determine the profitability of the personal and trust accounts. Turley’s testimony indicates that the preparation of the spread sheets was a joint undertaking in which both he and Adams participated. Again, Adams’ participation in this analysis, when viewed in the light most favorable to the defendants, could support the conclusion that she had by this time gained a considerable level of investment sophistication.
Adams’ association with Fishman and Turley, and her retention of attorney Robert Appel and James Weist, an Arthur Anderson & Company accountant, could also support the conclusion that she was in a position to make use of the investment knowledge and experience of those individ*524uals in reviewing the management of her Paine, Webber accounts.
In addition to the possibility that Adams either became relatively sophisticated or made use of the sophisticated individuals available to her, the record presents an extraordinarily high frequency of communication between Ocrant and Adams. She received frequent account statements, summaries, and computer printouts from Ocrant. Several witnesses also testified to the fact that Adams communicated with Ocrant as often as several times per day. Indeed, Turley testified that even during a vacation in Mazatlan, Mexico, Adams was in telephone contact with Ocrant to discuss her account. In addition to phone conversations and meetings with Ocrant in her home, Turley testified that Adams went down to Paine, Webber’s offices to discuss her account roughly five times per month. Thus, Adams was in frequent communication with Ocrant, a consideration which could suggest that their relationship might not have been one of trust and confidence and that Ocrant did not in fact exercise control over her accounts. See majority op. at 517.
The possibility that Adams was not as naive as the majority suggests and the fact of frequent communication must be weighed against the substantial evidence indicating that Ocrant did in fact exercise control over the accounts. Indeed, the plaintiff here presented so much persuasive evidence that I would be willing to accept the majority’s affirmance of the decision to take the question of the existence of a fiduciary relationship away from the jury were the standard for a directed verdict merely “a preponderence of the evidence” or “clear and convincing evidence.” Safeway Stores; McGlasson. However, the decision to remove the issue of fiduciary duty from the jury would only be appropriate in the absence of evidence upon which a jury could justifiably find that a fiduciary relationship existed. See Tri-Aspen Construction Co. v. Johnson, 714 P.2d 484, 487 (Colo.1986). The evidence presented as to Adams’ sophistication and frequent communications with Ocrant is, when viewed in the light most favorable to the defendants, sufficient to support the conclusion that Adams, and not Ocrant, exercised control over the accounts. Since the evidence is disputed and reasonable persons could reach different conclusions from that evidence, I conclude that the trial court committed reversible error in taking this issue from the jury. I would therefore reverse and remand for a new trial.