dissenting.
I agree with Part I of the majority opinion. I disagree with Part II, and therefore, respectfully dissent.
In my view the broker and salesman were correct in their contention that seller is not entitled to recover from them because it failed to prove that it incurred any injury, damages, or losses or that the broker or salesman profited as a result of the breach of fiduciary duty.
It is axiomatic that to recover damages for misconduct (other than recovery of profits resulting therefrom), a necessary element is proof of actual loss by, or detriment to, the wronged party. Carey v. After the Gold Rush, 715 P.2d 803 (Colo.App.1986). Specifically, in order for a principal to recover from its agent on a claim of breach of fiduciary duty, the evidence must establish, not only that the agent was acting as a fiduciary for the principal and that the agent breached that duty, but also that the principal incurred damages or losses and that the agent’s breach was a cause of the damages or losses. Rupert v. Clayton Brokerage Co., 737 P.2d 1106 (Colo.1987).
In this case, the trial court concluded:
“[T]his court does not feel [seller] has met its burden to prove damages. [Seller] has proven the fiduciary breach resulted in lost opportunities, but it could be only but surmise and speculation to say that a specific monetary loss occurred.”
I agree with that conclusion. My reading of the record reveals that seller had a valid contract which purchaser could have required to be specifically performed. Also, when told by the salesman about DG’s interest in the property, seller re*1043sponded that it was not interested in a contract with contingencies. Finally, DG’s position was that if a backup contract involved litigation, it would look elsewhere for a deal. Therefore, any hope on the part of seller for an option contract or backup offer was speculative.
While it is true that it was seller’s right to control confidential information about its deal, no harm was shown as a result of the breach of that right. Indeed, seller concedes in its appellate briefs that the breaches committed by the broker and salesman only potentially harmed seller. Therefore, as a matter of law, seller failed to prove any actual loss or detriment.
An award of damages based on misconduct without actual harm takes on the cast of punishment of the wrongdoer. In a civil suit, damages awarded to punish wrongful conduct are labeled punitive or exemplary damages. These are awarded pursuant to a statutory scheme, see § 13-21-102, C.R. S. (1987 RepLVol. 6A), but only if there are actual damages. Wagner v. Dan Unfug Motors, Inc., 35 Colo.App. 102, 529 P.2d 656 (1974). There were none here.
Also, this case is distinguishable from Collins v. McClurg, Elijah v. Fender, White v. Brock, and Lestoque v. Mansfield Realty, Inc., cited and relied on by the majority. In each of those cases, the principal incurred losses or the agent obtained secret profits as a result of the agent’s breach of fiduciary duty.
By requiring return of the real estate commission “on the equitable theory of unjust enrichment,” the majority ignores the facts in this case. It is undisputed that in this transaction seller received what he had contracted for and the broker and salesman received the agreed upon commission and nothing more. Thus, by its ruling, the majority delivers a windfall to, and unjustly enriches, the seller.
I would reverse the judgment and remand with directions to dismiss the complaint.