Boatright v. Derr

• Decision Date: 24 June 1996
• Docket Number: No. 94SC596,94SC596
• Citation: 919 P.2d 221
• Parties: Virgil A. BOATRIGHT, Gerald Boatright, and Boatright & Ripp, Petitioners and Cross-Respondents, v. Rick DERR, as Personal Representative of the Estate of Charlene Hill; Rick Derr, as the Personal Representative of the Estate of Waunita Nixon; and Rick Derr, as the Personal Representative of the Estate of Gertrude Nixon, Respondents and Cross-Petitioners.
• Court: Colorado Supreme Court

Page 221

919 P.2d 221

Virgil A. BOATRIGHT, Gerald Boatright, and Boatright & Ripp, Petitioners and Cross-Respondents, v. Rick DERR, as Personal Representative of the Estate of

Charlene Hill; Rick Derr, as the Personal Representative of

the Estate of Waunita Nixon; and Rick Derr, as the Personal

Representative of the Estate of Gertrude Nixon, Respondents

and Cross-Petitioners.

No. 94SC596.

Supreme Court of Colorado,

En Banc.

June 24, 1996.

Rehearing Denied July 29, 1996.

Kennedy & Christopher, P.C., John R. Mann, Denver, for Petitioners and Cross-Respondents.

Haddon, Morgan & Foreman, P.C., Norman R. Mueller, Denver, Cook & Lee, P.C., Steven H. Cook, Larry D. Lee, Boulder, for Respondents and Cross-Petitioners.

Justice KIRSHBAUM delivered the Opinion of the Court.

In Hill v. Boatright, 890 P.2d 180 (Colo.App.1994), the court of appeals determined, inter alia, that Charlene Hill (Hill), the initial plaintiff-respondent and cross-petitioner, ¹ had standing as personal representative of the estates of her mother, Waunita Nixon, and her aunt, Gertrude Nixon (hereafter collectively referred to as "the Nixon estates"), to pursue this civil action for professional negligence and breach of fiduciary duty against the defendants-petitioners and cross-respondents, Virgil A. Boatright, Gerald Boatright, and the law firm of Boatright & Ripp (the Boatrights). The court of appeals also determined that Hill was not entitled to recover noneconomic damages caused by the Boatrights' conduct either as the personal representative or as a beneficiary of the Nixon estates. Having granted certiorari to review the court of appeals' judgment, we affirm in part, reverse in part, and remand the case to the court of appeals with directions.

I

In June of 1987 Hill was appointed personal representative of the estate of her mother, Waunita Nixon. The inventory of estate assets included a duplex located in Wheat Ridge, Colorado, which at one time was owned by Waunita and her sister-in-law Gertrude Nixon. Waunita's will provided that her interest in the duplex would pass to Gertrude as a life estate unless Gertrude predeceased Waunita, in which event Waunita's interest in the duplex would pass to Hill and Hill's sister, Janice Kennedy (Kennedy). Hill and Kennedy were the named beneficiaries of the balance of Waunita's residuary estate.

Hill retained the Boatrights to represent her in probating Waunita's estate. Shortly after Hill's appointment as personal representative, it was determined that it would be in the best interest of the estate to sell the duplex. Hill intended to distribute half of the net proceeds of the sale to Gertrude and to divide the other half equally between herself and Kennedy. The duplex was sold for $124,000. As partial payment for the property, the purchaser assigned two promissory notes to Gertrude and Hill. While the extent of the Boatrights' involvement in the real estate transaction was disputed at trial, it is undisputed that the Boatrights represented Hill at the closing in March of 1988.

Gertrude died in April of 1989. Her estate included her one-half interest in the two promissory notes, and her will listed her son, George Wellman, and Hill as beneficiaries of Gertrude's interest in those promissory notes. Hill retained the Boatrights to assist her in probating Gertrude's estate and was appointed personal representative of Gertrude's estate in May of 1989.

In 1990 the purchaser of the duplex defaulted on the payment of the two promissory notes and it was discovered that the security for the notes was of little or no value. Hill then retained new counsel to represent her in connection with the Nixon estates. In March and April of 1991, Kennedy and George Wellman assigned their interests in the two promissory notes to Hill. In March of 1991 Hill filed closing statements for the Nixon estates pursuant to section 15-12-1003(1), 6B C.R.S. (1995 Supp.).

In October of 1991 Hill filed this action against the Boatrights alleging claims of professional negligence, breach of fiduciary duty, breach of contract, and unjust enrichment. Hill also alleged that the Boatrights' failure to protect her interests individually and in her capacity as personal representative of the Nixon estates caused her "emotional and financial damage."

The trial court entered summary judgment in favor of the Boatrights and against Hill on her breach of contract and unjust enrichment claims. In February of 1993, after a trial, a jury returned a verdict in favor of Hill on her negligence and breach of fiduciary duty claims in the amount of $366,550.82, which amount included an award of $100,000 for noneconomic damages on her negligence claim and $100,000 for noneconomic damages on her breach of fiduciary duty claim. The Boatrights appealed the judgment entered on the jury verdict, asserting, inter alia, that Hill did not have standing to pursue her claims against the Boatrights after March of 1992, when her appointment as personal representative of the Nixon estates had terminated, and that noneconomic damages cannot be recovered in a legal malpractice action where such damages result solely from pecuniary loss.

The court of appeals determined, inter alia, that Hill had standing to pursue this action as personal representative of the Nixon estates because she commenced the action prior to termination of her appointments as personal representative for the Nixon estates. Boatright, 890 P.2d at 183. The court of appeals also concluded that Hill was not entitled to recover noneconomic damages either as personal representative of the Nixon estates or as a beneficiary of the Nixon estates. The court of appeals did not determine whether Hill was entitled to recover noneconomic damages as an individual. ²

II

The Boatrights contend that Hill lacked authority to represent the Nixon estates as personal representative thereof after her initial appointment terminated pursuant to sections 15-12-610(1), 6B C.R.S. (1987), and 15-12-1003(2), 6B C.R.S. (1987 & 1995 Supp.), of the Probate Code. We disagree.

In construing a statute, our responsibility is to effectuate the intent of the General Assembly in enacting the measure. Lakeview Assocs. v. Maes, 907 P.2d 580, 584 (Colo.1995); General Elec. Co. v. Niemet, 866 P.2d 1361, 1364 (Colo.1994). To carry out that responsibility, we first examine the language of the statute. Scoggins v. Unigard Ins. Co., 869 P.2d 202, 205 (Colo.1994); May Dep't Stores Co. v. State ex rel. Woodard, 863 P.2d 967, 972 (Colo.1993).

Estates administered in unsupervised proceedings may be closed pursuant to section 15-12-1003(1) of the Probate Code, which section contains the following pertinent provisions:

(1) [A] personal representative may close an estate by filing with the court ... a verified statement stating that he or she, or a prior personal representative whom he or she has succeeded, has or have:

(a) Fully administered the estate of the decedent by making payment, settlement, or other disposition of all lawful claims, expenses of administration and estate, inheritance and other death taxes ... and that the assets of the estate have been distributed to the persons entitled. If any claims remain undischarged, the statement shall state whether the personal representative has distributed the estate subject to possible liability with the agreement of the distributees or it shall state in detail other arrangements which have been made to accommodate outstanding liabilities....

§ 15-12-1003(1), 6B C.R.S. (1995 Supp.). The closing of an estate signifies that the personal representative has distributed the assets of the estate and has paid all known taxes, costs of administration, and claims against the state.

The closing of an unsupervised estate does not, however, relieve the personal representative of the estate from all responsibilities for estate matters. Section 15-12-1003(2) contains the following provisions concerning termination of the personal representative's authority:

(2) If no proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates.

§ 15-12-1003(2), 6B C.R.S. (1987). ³ In addition, section 15-12-610(1), 6B C.R.S. (1987) provides that "an appointment of a personal representative terminates as provided in section 15-12-1003 one year after the filing of a closing statement." The personal representative is thus authorized to act on behalf of the estate for a period of one year following the date of the closing. Such authorization permits distributees in an unsupervised estate administration proceeding to seek adjustment or correction of the distribution and enables the personal representative to take steps to make appropriate adjustments to the distribution pattern. See 1 American Law Institute & American Bar Association, Uniform Probate Code Practice Manual 304 (Richard V. Wellman ed.1977) (hereafter "UPC Practice Manual").

The Boatrights argue that Hill lost all authority to act on behalf of the estate in March of 1992, one year after she filed her closing statements, pursuant to the provisions of section 15-12-608, 6B C.R.S. (1987). We disagree.

Section 15-12-608, 6B C.R.S. (1987), contains the following language:

Termination of appointment--general. Termination of appointment of a personal representative occurs as indicated in sections 15-12-609 to 15-12-612. Termination ends the right and power pertaining to the office of personal representative as conferred by this code or any will; except that a personal representative, at any time prior to distribution or until restrained or enjoined by court order, may perform acts necessary to protect the estate and may deliver the assets to a successor representative. Termination does not discharge a personal representative from liability for transactions or omissions occurring before termination, or relieve him of the duty to preserve...