Hill v. Boatright, 93CA0614
| Decision Date | 11 August 1994 |
| Docket Number | No. 93CA0614,93CA0614 |
| Court | Colorado Court of Appeals |
| Parties | Charlene HILL; Charlene Hill as the Personal Representative of the Estate of Waunita Nixon; and Charlene Hill as the Personal Representative of the Estate of Gertrude Nixon, Plaintiff-Appellee, v. Virgil A. BOATRIGHT; Gerald Boatright; and Boatright & Ripp, Defendants-Appellants, and Concerning Ronald H. Nemirow, Appellant. . III |
Haddon, Morgan & Foreman, P.C., Norman R. Mueller, Denver, Cook & Lee, P.C., Stephen H. Cook, Larry D. Lee, Boulder, for plaintiff-appellee.
Cooper & Kelley, P.C., John R. Mann, Denver, for defendants-appellants and appellant.
Opinion by Chief Judge STERNBERG.
Defendants, Virgil A. Boatright, Gerald Boatright, and Boatright & Ripp (the Boatrights), appeal the judgment entered in favor of plaintiff, Charlene Hill, personal representative of the estates of Waunita Nixon and Gertrude Nixon. One of the attorneys representing the Boatrights also appeals the trial court's finding him in contempt of court. We affirm the judgment against the Boatrights except for the award of non-economic damages, which we reverse. We also reverse the contempt order.
Hill retained the Boatrights as attorneys in connection with the administration of the estates of Gertrude and Waunita Nixon, for which she had been appointed personal representative. In the course of the administration of the estate, the Boatrights assisted Hill in the sale of certain unencumbered real property owned by the estates. The purchaser of the property assigned two unsecured notes to Hill as partial payment. In addition, the purchaser borrowed a sum of money from a bank which took a security interest in the property.
When the notes became delinquent, Hill discovered that they were uncollectible. She retained other counsel who brought this action against the Boatrights for professional negligence, breach of fiduciary duty, breach of contract, and unjust enrichment. Asserting numerous deficiencies in their legal representation, Hill alleged that the Boatrights had failed to represent her interests adequately with regard to the sale of the real property.
The jury returned verdicts in Hill's favor on her claims for negligence and breach of fiduciary duty, awarding total damages of $366,550, and judgment entered thereon.
I.
The Boatrights first contend that Hill was not the real party in interest and that she lacked standing to bring this malpractice action on behalf of the Nixon estates. We are not persuaded.
Colorado's version of the Uniform Probate Code vests a personal representative with broad powers. Section 15-12-711, C.R.S. (1987 Repl.Vol. 6B) provides:
Until termination of his appointment a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate. This power may be exercised without notice, hearing, or order of court.
Further, a personal representative has the same standing to sue and be sued as the decedent had immediately prior to death. Section 15-12-703(4), C.R.S. (1987 Repl.Vol. 6B); see Fry & Co. v. District Court, 653 P.2d 1135 (Colo.1982).
If the personal representative believes that the affairs of the estate have been wound up, there are two alternative closing procedures available. Under §§ 15-12-1001 and 15-12-1002, C.R.S. (1987 Repl.Vol. 6B), the personal representative may petition the probate court to conduct a formal proceeding to review the affairs of the personal representative and to adjudicate the final settlement and distribution of the estate. If the court grants the petition, the personal representative's authority to act on behalf of the estate is immediately terminated. See § 15-12-610(2), C.R.S. (1987 Repl.Vol. 6B).
Alternatively, the personal representative may informally close an estate by filing a "closing statement" in which the personal representative asserts that he or she believes the affairs of the estate have been completed. Section 15-12-1003, C.R.S. (1987 Repl.Vol. 6B). Unlike under §§ 15-12-1001 and 15-12-1002, the authority of the personal representative does not terminate until one year after the filing of a closing statement. Section 15-12-1003(2), C.R.S. (1987 Repl.Vol. 6B); § 15-12-610(1), C.R.S. (1987 Repl.Vol. 6B) ()
The Uniform Probate Code, from which Colorado's probate code is modeled, uses "termination" to refer to events which end the personal representative's authority. "Closing" refers to circumstances which support the conclusion that the affairs of the estate are or are alleged to have been wound up. Uniform Probate Code § 3-1003 (Comment), 8 Uniform Laws Annot. 403 (1983).
If the language is plain and its meaning clear, a statute must be applied as written. Jones v. Cox, 828 P.2d 218 (Colo.1992).
The Boatrights argue that because Hill filed her closing statements prior to bringing this action, her authority as personal representative had ended and, therefore, she lacked standing as the real party in interest. We do not agree.
Pursuant to § 15-12-1003, Hill filed the closing statements in March 1991, and her authority to act as personal representative did not terminate until one year later, in March 1992. Within that period, in October 1991, Hill filed this action on behalf of the Nixon estates. We perceive nothing in the Colorado probate code that would nullify Hill's authority to act as personal representative within one year of filing the closing statements or any provision that would require Hill to re-open the estate to bring this action. See § 15-12-1008, C.R.S. (1987 Repl.Vol. 6B). Accordingly, we conclude, as did the trial court, that Hill, as personal representative, was the real party in interest.
II.
The Boatrights next assert that the trial court abused its discretion in denying discovery of the files of the experts retained by Hill. We disagree.
In preparation for trial, in response to interrogatories, Hill listed as witnesses two attorneys who had assisted her with estate matters after she terminated the Boatrights' employment. They were to provide the following: (1) testimony about certain facts of the real estate transaction and (2) expert testimony of the applicable standard of care for attorneys.
The Boatrights requested that Hill produce the attorneys' files, including information concerning the real estate transaction and any probate proceedings involving the Nixon estates. Hill opposed the production of all of the files, maintaining that some documents were protected by the attorney-client and attorney-work-product privileges. The trial court denied the Boatrights' motion to compel production of documents on the grounds that Hill had provided the Boatrights with voluminous documentation and that Hill had not waived the attorney-client privilege. The Boatrights now assert an abuse of discretion in this ruling.
Pre-trial discovery issues are usually committed to the discretion of the trial court. Bond v. District Court, 682 P.2d 33 (Colo.1984). Only in the case of a clear abuse of discretion will a ruling on a matter such as this be overturned. See Rosenberg v. Grady, 843 P.2d 25 (Colo.App.1992).
Hill provided 386 pages of documents from these witnesses' files, including the same documents given Hill's counsel. Hill also provided a reconstruction of the Boatright's file from the real estate transaction which had been discarded. Further, she provided a release to enable the Boatrights to obtain documents from the title company that had closed the real estate transaction, and she gave documents obtained from the real estate agent involved. In addition, Hill provided all letters and reports from the witnesses giving their opinions and the basis therefor. And, the Boatrights deposed both witnesses.
Considering the extent of discovery provided on this issue and the breadth of the trial court's discretion in discovery matters, we perceive no abuse requiring reversal in the record.
III.
The jury awarded Hill damages in the amount of $366,550: $116,550 for her negligence claim, $50,000 for her breach of fiduciary duty claim, and a total of $200,000 in non-economic damages. The Boatrights argue that the damages awarded under Hill's negligence and breach of fiduciary duty claims are duplicative because Hill has only one loss under alternative claims for relief. In addition, the Boatrights argue that non-economic damages are not recoverable in a legal malpractice action. We agree with the latter contention, but reject the claim that the jury's award was duplicative.
A.
The Boatrights assert that regardless of the number of claims asserted by Hill, she can have only one recovery for the same losses. At trial, the following instruction was submitted to the jury:
The plaintiff, Charlene Hill, has sued for the same losses on two different claims for relief. The claims for relief on which the plaintiff has sued and on which you have been instructed are: (1) negligence and (2) breach of fiduciary duty.
If you find for the plaintiff on more than one claim for relief, you may award her damages only once for the same losses.
The Boatrights maintain that because the jury awarded Hill compensatory damages under both negligence and breach of fiduciary duty, the jury either misapprehended its task or failed to follow the instructions, particularly the one quoted above. For these reasons, the Boatrights assert the judgment must be reversed and the cause remanded for a new trial.
It is presumed that the jury followed the trial court's instructions in rendering its verdict. Woolsey v. Holiday Health Clubs, 820 P.2d 1201 (Colo.App.1991). A jury verdict will not be reversed for inconsistency if the record reveals any...
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