Foxley v. Foxley

• Decision Date: 08 August 1996
• Docket Number: Nos. 94CA1979,95CA0511,s. 94CA1979
• Citation: 939 P.2d 455
• Parties: William C. FOXLEY, Plaintiff-Appellant, and Durant D. Davidson, Appellant, v. Sandra M. FOXLEY, Lawrence Litvak, and Richard Raymond Alasko, Defendants-Appellees. . V
• Court: Colorado Court of Appeals

Page 455

939 P.2d 455

William C. FOXLEY, Plaintiff-Appellant and Durant D. Davidson, Appellant, v. Sandra M. FOXLEY, Lawrence Litvak, and Richard Raymond Alasko, Defendants-Appellees.

Nos. 94CA1979, 95CA0511.

Colorado Court of Appeals Div. V.

Aug. 8, 1996.

As Modified on Denial of Rehearing

Oct. 31, 1996.

Certiorari Denied June 30, 1997.

John M. Cogswell Law Offices, John M. Cogswell, Buena Vista, for Plaintiff-Appellant and Appellant.

Reiman & Associates, P.C., Jeff Reiman, Marcie Bayaz, Denver, for Defendant-Appellee Sandra M. Foxley.

Nichols & Hecht, L.L.C., Charles B. Hecht, Julie C. Tolleson, Denver, for Defendant-Appellee Richard Raymond Alasko.

Hamil Professional Corporation, J. Lawrence Hamil, Michelle W. Stern, Christina V. Miller, Denver, for Defendant-Appellee Lawrence Litvak.

Gary L. Polidori, Lakewood, for amicus curiae American Academy of Matrimonial Lawyers.

Opinion by Judge RULAND.

Plaintiff, William C. Foxley, appeals from the judgment dismissing his first amended complaint against defendants, Sandra M. Foxley, Lawrence Litvak, and Richard Raymond Alasko. Plaintiff and his former attorney, Durant D. Davidson, also appeal the order of the trial court awarding attorney fees to defendants. We affirm in part, reverse in part, and remand for further proceedings.

In December 1988, plaintiff filed a petition for dissolution of his marriage with defendant Foxley. A major asset in the marital estate was an art collection owned by the parties either directly or through a corporation owned by them.

Plaintiff designated two expert art appraisers, one of whom valued the art collection at approximately $39 million and the other valued it at $32 million. An expert appraiser originally engaged by defendant Foxley valued the art collection at approximately $39 million. However, approximately 20 days before trial, defendant Foxley designated a second expert appraiser, defendant Alasko, who valued the art collection at approximately $62 million.

Following the hearing on final orders in 1990, the dissolution court found Alasko's testimony on value persuasive, valued the art collection at $62 million, and divided the marital estate on that basis.

In lieu of an appeal by plaintiff, the parties entered into a settlement. Defendant Foxley accepted approximately $3 million less than she would have received pursuant to the court's final orders.

Plaintiff then filed a legal malpractice action against his dissolution attorney. Following discovery in his action against the dissolution attorney, plaintiff filed this action.

In his first amended complaint in this case, plaintiff asserted 10 claims for relief. The factual allegations in support of the claims require in excess of 17 pages. In support of all of the claims, plaintiff alleged that he had discovered for the first time a number of facts, which called the Alasko appraisal into question.

In summary, plaintiff alleges that Alasko was an officer of the American Society of Appraisers but that he failed to comply with a number of the appraisal requirements of that association as well as its Code of Ethics in preparing his appraisal. Plaintiff further alleges that Alasko failed to disclose these omissions and instead certified that he had complied with these requirements. In addition, plaintiff alleges that Alasko misrepresented his qualifications and knowledge to do the appraisal.

Of more importance, plaintiff alleges that Alasko was retained in secrecy by defendants Litvak and Foxley to perform the appraisal in violation of the then applicable Colorado Rules of Civil Procedure and that his appraisal was deliberately not disclosed until just prior to trial. In addition, plaintiff in effect makes allegations from which it may be inferred that defendants agreed in advance on what the total appraisal should be before it was completed and that the analysis deliberately was skewed to support the predetermined value.

Plaintiff alleges that Alasko also committed perjury in his deposition and at trial concerning what information he had seen in preparing his appraisal and that defendants Litvak and Foxley were aware of the misstatements at the time. Further, he alleges that Alasko's misrepresentation as to whether he had reviewed another appraiser's report was made in order to avoid the use of that report at trial for impeachment purposes.

Based upon these and other allegations, plaintiff alleges that Alasko's appraisal opinion was, among other things, a "fraud or a sham." Further, plaintiff alleges that all defendants conspired to proceed with the appraisal in this manner in order to conceal the defects in the appraisal from the dissolution court and to deprive plaintiff of an opportunity to investigate and challenge the appraisal at the dissolution trial. While plaintiff asserts that his dissolution counsel was negligent in representing him, plaintiff claims that he is "without fault" in failing to take earlier action to discover and rectify the fraud.

Plaintiff asserted claims for equitable relief and damages. In the first three claims for relief (equitable claims), plaintiff asked that the dissolution decree be vacated, and that he be relieved from any further obligation under the settlement agreement. He also asked that defendant Foxley be ordered to repay certain amounts to plaintiff that were previously paid under that agreement. As a second equitable claim, plaintiff requested entry of an injunction enjoining defendant Foxley from enforcing a promissory note executed in connection with the settlement agreement. As a final equitable claim, plaintiff requested imposition of an equitable resulting or constructive trust claiming that amounts paid in excess of $4 million to defendant Foxley should be deemed the property of plaintiff and that she be deemed as a trustee to hold those assets for the benefit of plaintiff.

In his damage claims, plaintiff alleged appraisal malpractice, breach of fiduciary duty, and negligent misrepresentation by Alasko. In a separate claim, plaintiff alleged that Alasko aided defendant Foxley in breaching her fiduciary duty to plaintiff.

As to defendant Foxley, plaintiff alleged damage claims for breach of fiduciary duty. As to Litvak, plaintiff asserted damage claims for breach of fiduciary duty, abuse of process, and aiding defendant Foxley in her breach of fiduciary duty to plaintiff.

As to all defendants, plaintiff alleged a conspiracy to commit unlawful acts consisting of "tortious interference with prospective pecuniary benefits to the plaintiff resulting from the dissolution trial," a "tortious interference with the dissolution relationship and the property rights flowing from the status of marriage," as well as "tortious interference with the judicial process, outrageous conduct, fraud and breach of fiduciary duty."

In response to the amended complaint, each of the defendants filed motions pursuant to C.R.C.P. 12(b)(5) to dismiss the complaint asserting various deficiencies in the pleading as well as immunity. Among their contentions, defendants argued that any determination of damages claimed by plaintiff would be totally speculative. The trial court granted defendants' motions on all of the grounds urged.

Following entry of the judgment of dismissal, the trial court conducted an evidentiary hearing on defendants' requests for attorney fees pursuant to §§ 13-17-201 & 13-17-102, C.R.S. (1987 Repl.Vol. 6A) and C.R.C.P. 11. Following that hearing, the court awarded all fees requested based upon both statutes and the rule. This award consisted of approximately $72,000 jointly and severally against plaintiff and Davidson in favor of Litvak, $35,000 in favor of defendant Foxley, and $14,000 in favor of Alasko.

I

Relying upon McGovern v. Broadstreet, 720 P.2d 589 (Colo.App.1985), defendants argued in the trial court that all of the damage claims must be dismissed because any damages awarded pursuant to those claims were totally speculative. In McGovern, a division of this court held that under the facts of that case, there was no "tangible or quantifiable way" to measure what a trial court might do on retrial of permanent orders in a dissolution case because of the discretion the court is authorized to exercise over the division of property.

As noted, the trial court adopted this argument as one basis for dismissal of the damage claims. Plaintiff has not challenged that ruling on appeal. Accordingly, defendants contend that the trial court's dismissal of the damage claims must be upheld on this basis. We agree.

When, as here, the trial court dismisses a complaint based upon alternative grounds, we must consider each. See Sussman v. University of Colorado Health Sciences Center, 706 P.2d 443 (Colo.App.1985). Failure to challenge any one of those grounds on appeal in effect requires that we accept that ruling as the law of the case. See People v. Allen, 885 P.2d 207 (Colo.1994). Further, plaintiff may not challenge the trial court's ruling for the first time in his reply brief. People v. Czemerynski, 786 P.2d 1100 (Colo.1990). Accordingly, we affirm the dismissal of the damage claims.

II

Relying upon Southeastern Colorado Water Conservancy District v. Cache Creek Mining Trust, 854 P.2d 167 (Colo.1993), plaintiff contends that the trial court...