Resolution Trust Corp. v. Heiserman

• Decision Date: 26 June 1995
• Docket Number: No. 94SA319,94SA319
• Citation: Resolution Trust Corp. v. Heiserman, 898 P.2d 1049 (Colo. 1995)
• Parties: RESOLUTION TRUST CORPORATION, a corporate instrumentality of the United States of America, Plaintiff, v. Richard D. HEISERMAN, individually and as a general and limited partner in Heiserman Family Partners, Ltd., and as a grantor, trustee and beneficiary of Heiserman Family Trust; Walter C. Kane, Guy E. Boyer, David G. Marberry, John C. Root, Charles R. Babb, James D. Grow, John B. Howell, Chester A. Latcham, Jr., individually and as a general and limited partner in Latcham Family Partners, Limited, and as a grantor, trustee and beneficiary of Latcham Family Trust; William T. McCallum; James C. Shearon, individually and as a general and limited partner in JCS Family Partners, Ltd., and as a grantor, trustee and beneficiary of JCS Family Trust; Heiserman Family Partners, Ltd., a limited partnership; Patricia A. Heiserman, as a general partner and limited partner in Heiserman Family Partners, Ltd.; John Does One and Two, as other unknown general and limited partners of Heiserman Family Partners, Ltd.; Heiserman Family Trust; Richard L. Smith, as a trustee of Heiserman Family Trust; John Does Three and Four, as other unknown trustees and beneficiaries of Heiserman Family Trust; Latcham Family Partners Limited, a limited partnership; John Does Five and Six as other unknown general and limited partners of Latcham Family Partners, Limited; Latcham Family Trust; John Does Seven and Eight, as other unknown trustees and beneficiaries of Latcham Family Trust; JCS Family Partners, Ltd., a limited partnership; Carol M. Shearon, as a general partner and limited partner in JCS Family Partners, Ltd.; John Does Thirteen and Fourteen, as other unknown general and limited partners of JCS Family Partners, Ltd.; JCS Family Trust; John Does Fifteen and Sixteen, as other unknown trustees and beneficiaries of JCS Family Trust; Engel & Rudman, P.C., a Colorado professional corporation; Barry S. Engel, personally and as a shareholder in Engel & Rudman, P.C.; Ronald L. Rudman, personally and
• Court: Colorado Supreme Court

Page 1049

898 P.2d 1049

RESOLUTION TRUST CORPORATION, a corporate instrumentality of the United States of America, Plaintiff, v.Richard D. HEISERMAN, individually and as a general and limited partner in Heiserman Family Partners, Ltd., and as a grantor, trustee and beneficiary of Heiserman Family TrustWalter C. Kane, Guy E. Boyer, David G. Marberry, John C Root, Charles R. Babb, James D. Grow, John B. HowellChester A. Latcham, Jr., individually and as a general and limited partner in Latcham Family Partners, Limited, and as a grantor, trustee and beneficiary of Latcham Family TrustWilliam T. McCallum; James C. Shearon, individually and as a general and limited partner in JCS Family Partners, Ltd., and as a grantor, trustee and beneficiary of JCS Family Trust; Heiserman Family Partners, Ltd., a limited partnership; Patricia A. Heiserman, as a general partner and limited partner in Heiserman Family Partners, Ltd.; John Does One and Two, as other unknown general and limited partners of Heiserman Family Partners, Ltd.; Heiserman Family Trust; Richard L. Smith, as a trustee of Heiserman Family Trust; John Does Three and Four, as other unknowntrustees and beneficiaries of Heiserman Family Trust; Latcham Family Partners Limited, a limited partnership; John Does Five and Six as other unknown general and limited partners of Latcham Family Partners, Limited; Latcham Family Trust; John Does Seven and Eight, as other unknowntrustees and beneficiaries of Latcham Family Trust; JCS Family Partners, Ltd., a limited partnership; Carol M. Shearon, as a general partner and limited partner in JCS Family Partners, Ltd.; John Does Thirteen and Fourteen, as other unknown general and limited partners of JCS Family Partners, Ltd.; JCS Family Trust; John Does Fifteen and Sixteen, as other unknowntrustees and beneficiaries of JCS Family Trust; Engel & Rudman, P.C., a Colorado professional corporation; Barry S. Engel, personally and as a shareholder in Engel & Rudman, P.C.; Ronald L. Rudman, personally and as a shareholder in Engel & Rudman, P.C.; John Does Seventeen and Eighteen, as other unknown shareholders in Engel & Rudman, P.C.; and Carolyn P. Boyer, Defendants.

No. 94SA319.

Supreme Court of Colorado, En Banc.

June 26, 1995.

Kobayashi & Associates, P.C., John M. Kobayashi, Kathleen M. Kulasza, Michele R. Lamontagne, Denver, Jeremiah B. Barry, Sr. Staff Atty., Resolution Trust Corp., Denver, for plaintiff.

James C. Shearon, Englewood, pro se.

Cooley, Godward, Castro, Huddleson & Tatum, William J. Leone, Denver, for defendants.

Justice KIRSHBAUMdelivered the Opinion of the Court.

Pursuant to C.A.R. 21.1, this court has agreed to answer the following questions certified to it by the United States District Court for the District of Colorado(the district court):

A.Whether joint and several liability may be imposed on two or more persons, pursuant to C.R.S. § 13-21-111.5(4), where the alleged "tortious act" is based on negligence, gross negligence, negligence per se, breach of the fiduciary duty of due care, or breach of fiduciary duty of loyalty.

B.Whether joint and several liability, pursuant to C.R.S. § 13-21-111.5(4), may be based upon evidence of a course of conduct from which a tacit agreement to act in concert may be implied.¹

These questions have been certified in connection with proceedings currently pending before the district court involving, inter alia, claims relating to the negligent underwriting, approval and subsequent administration of certain commercial banking and commercial real estate loans.We answer both questions in the affirmative.

I

The following undisputed facts are pertinent to this certification proceeding.On May 3, 1993, the plaintiff, Resolution Trust Corporation(RTC) filed this civil action in the district court as a corporate instrumentality of the United States of America and as the assignee of claims from Capitol Federal Savings and Loan Association of Denver(Capitol Federal), a federally chartered savings and loan association formerly located in Aurora, Colorado.Capitol Federal failed in May 1990.On June 15, 1990, the United States Office of Thrift Supervision, pursuant to 12 U.S.C. § 1464(d)(2)(1988 & Supp. V 1993), appointed RTC as Capitol Federal's receiver for the purposes of liquidation and winding up its affairs.On July 12, 1991, all claims against the officers, directors and attorneys of Capitol Federal were sold to RTC pursuant to 12 U.S.C. § 1441a(b)(4)and12U.S.C. § 1821(d)(2)(A)(1988 & Supp. V 1993).

The defendantRichard D. Heiserman served as President and a director of Capitol Federal beginning in 1978 and as chairperson of the board from 1983 until May of 1990.At various times during the 1980's, the defendantsWalter C. Kane, Guy E. Boyer, David G. Marberry, and John C. Root were officers of Capitol Federal and served on its loan committee.The defendantsCharles R. Babb, James D. Grow, John B. Howell, Chester A. Latcham, Jr., William T. McCallum, and James C. Shearon were outside directors of Capitol Federal during varying periods leading up to the failure.The defendants Engel & Rudman, Ronald L. Rudman, and Barry S. Engel were outside legal counsel for Capitol Federal during the relevant period of time.²

In this action, RTC seeks damages against all of the officer and director defendants based upon claims of negligence, negligence per se, gross negligence and breach of the fiduciary duty of care.³These claims relate primarily to conduct connected with the underwriting, approval, and subsequent administration of commercial banking and commercial real estate loans made by Capitol Federal from 1981 through May 1990.RTC alleges that the officer and director defendants acted tortiously and in concert by adopting inadequate policies and procedures for underwriting the loans and in otherwise failing to exercise adequate oversight over Capitol Federal's business.RTC further alleges that in all cases the officer and director defendants acted as a board of directors or as a loan committee, and not individually, in adopting and implementing these policies and procedures and that votes in favor of these actions were consistently unanimous.

Six series of loan transactions are alleged as the basis of RTC's claims for damages in excess of $50 million.RTC alleges that despite inadequate underwriting practices and policies, the officer and director defendants tortiously approved all of the loan transactions.RTC further alleges that a conspiracy to pursue a common plan or design can and should be inferred from the consistent conduct of the officer and director defendants in unanimously approving each of dozens of loan transactions over a period spanning nearly a decade.RTC has alleged in each claim against the officer and director defendants that they, through their votes on the loan committee or on the board of directors, "consciously conspired and deliberately pursued a common plan or design" within the terms of section 13-21-111.5(4) and are therefore jointly and severally liable for all losses occasioned thereby.RTC also alleges that the officer and director defendants are jointly and severally liable because they acted only as a board of directors or loan committee and did not act individually.

RTC alleges additional claims against certain of the officer and director defendants for breach of fiduciary duty of loyalty.RTC alleges that these defendants diverted funds of Capitol Federal to pay their personal legal fees for establishing trusts and partnerships to protect their assets from legitimate creditors, including RTC.RTC asserts claims against the attorney defendants for breach of fiduciary duty of due care and loyalty, ⁴ professional negligence, and negligent misrepresentation in connection with legal services provided by those defendants to Capitol Federal's officers and directors in the course of establishing the asset protection trusts and partnerships.In its breach of fiduciary duty claims RTC alleges that the officer and director defendants and the attorney defendants consciously and deliberately pursued a common plan or design and are therefore jointly and severally liable for all losses occasioned by the creation of the asset protection devices.

II

In construing statutes, courts must give effect to the intent giving rise to the legislation.Shapiro and Meinhold v. Zartman, 823 P.2d 120, 123-24(Colo.1992).To carry out that responsibility courts first look to the statutory language itself, giving words and phrases their commonly accepted and understood meaning.Id.If the statutory language is unambiguous, there is no need to resort to interpretive rules of statutory construction.Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237, 246(Colo.1992);Bloomer v. Board of County Comm'rs, 799 P.2d 942, 944(Colo.1990).That is, if courts can give effect to the ordinary meaning of the words adopted by a legislative body, the statute should be construed as written since it may be presumed that the General Assembly meant what it clearly said.Griffin v. S.W. Devanney & Co., 775 P.2d 555, 559(Colo.1989);State Bd. of Equalization v. American Airlines, Inc., 773 P.2d 1033, 1040(Colo.1989).Finally, words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.§ 2-4-101, 1B C.R.S.(1980).In this vein, the legislature must be presumed to have acted with full knowledge of relevant judicial precedent on the subject.Williams v. White Mountain Constr. Co., 749 P.2d 423, 428(Colo.1988);Smith v. Miller, 153 Colo. 35, 39, 384 P.2d 738, 740(1963).

III

A.Whether joint and several liability may be imposed on two or more persons, pursuant to C.R.S. § 13-21-111.5(4), where the alleged "tortious act" is based on negligence, gross negligence, negligence per se, breach of the fiduciary duty of due care, or breach of fiduciary duty of loyalty.

In...