Rupert v. Clayton Brokerage Co. of St. Louis, Inc.

• Decision Date: 07 March 1985
• Docket Number: No. 83CA0576,83CA0576
• Citation: 705 P.2d 988
• Parties: Patrick A. RUPERT, Plaintiff-Appellee, v. CLAYTON BROKERAGE COMPANY OF ST. LOUIS, INC., a Missouri corporation, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 988

705 P.2d 988

Patrick A. RUPERT, Plaintiff-Appellee, v. CLAYTON BROKERAGE COMPANY OF ST. LOUIS, INC., a Missouri

corporation, Defendant-Appellant.

No. 83CA0576.

Colorado Court of Appeals,

Div. I.

March 7, 1985.

Rehearings Denied April 4, 1985.

Certiorari Granted Sept. 23, 1985.

Keene, Munsinger & Stuckey, Sharon A. Sievers, Stephen M. Munsinger, Denver, for plaintiff-appellee.

Kelly, Haglund, Garnsey & Kahn, Edwin S. Kahn, Denver, for defendant-appellant.

VAN CISE, Judge.

In this action, following a non-jury trial, the court held that defendant, Clayton Brokerage Company of St. Louis, Inc. (Clayton Brokerage), a securities broker, breached its fiduciary duty towards its customer, plaintiff, Patrick A. Rupert. The court then entered judgment in favor of Rupert in the amount of his net trading losses less a release setoff. Clayton Brokerage appeals. We reverse.

Rupert originally sued not only Clayton Brokerage but also another broker, with whom he had had an earlier account, and three salesmen, Robert Hunt, David M. Forward, and Gary McAdam, for his losses in both trading accounts. Prior to trial, he released Hunt, settled with McAdam for $750, and settled with the other broker for $5,300 (the amount of his trading losses in that account). The case went to trial against Clayton Brokerage and Forward on issues pertaining only to the account with Clayton Brokerage.

Rupert's complaint consisted of separate claims for alleged breach of fiduciary duty, negligence and negligent supervision, outrageous conduct, excessive trading (churning), and deceit based on fraudulent representations. Clayton Brokerage denied liability on several grounds and also asserted the defenses of knowledge of risk, comparative negligence, and release.

The trial court found that Rupert had opened a discretionary commodity trading account with Clayton Brokerage with a balance slightly in excess of $13,000, and had signed a risk disclosure statement in which he indicated that he understood that the risk of loss in trading commodities futures could be substantial. At that time, Hunt indicated to Rupert that he could make a lot of money or lose his investment.

In accepting the discretionary account, Clayton Brokerage did not follow its own internal rules in that: (1) the opening balance was below the required $15,000 minimum for new accounts; (2) none of the three account executives (Hunt, Forward, and McAdam) handling the discretionary account had had the minimum three years experience in commodity trading or two years with this broker; (3) there was no attempt made to determine Rupert's source of income, investment experience, or amount of risk capital; (4) additions were made to forms after Rupert had signed them in order to qualify him as an investor. Also, when the equity balance in Rupert's account dropped below $7,500, Clayton Brokerage did not follow its own rule which required that Rupert be advised that he had three options--to liquidate the account, to deposit more money, or to revoke the discretionary status of the account.

Based on the above findings, the court held that the internal rules were an indication of what the standard of care should be in dealing with other people's money. It concluded that Clayton Brokerage was negligent in not complying with its internal rules, but the violations were "not reckless or wanton." It stated:

"No one of these violations was solely responsible but the totality of everything that was done indicates to the court that [Clayton Brokerage] did not exercise the care necessary, and that [it] breached the fiduciary duty [it] owed [Rupert], and that breach resulted in damage to [him]."

The court then determined that the amount of Rupert's damages resulting from Clayton Brokerage's breach of fiduciary duty consisted of the amount of his net losses while his account was with Clayton Brokerage, $11,881, less a set-off of $750 for the McAdam settlement amount paid, plus interest and costs. Judgment was entered accordingly.

The court held that only the claim for breach of fiduciary duty had been proved; all other claims were dismissed. Also, the court held that the case against Forward was not proven, and the action was dismissed as to him. Only the judgment for damages for breach of fiduciary duty has been appealed.

I.

Clayton Brokerage first contends that, in finding liability for breach of fiduciary duty, the trial court created a standard of care which is inconsistent with the standard imposed by Congress in the Commodity Exchange Act, 7 U.S.C. § 1, et seq. (the Act). It argues that unless a customer proves a violation of the antifraud provisions set forth in § 4b of the Act, recovery of damages against the broker is not an available remedy and, since fraud was not proved, Rupert's action must fail. We do not agree.

The language of 7 U.S.C. § 6b does not in any way relate to a tort standard of care; instead, it sets forth conduct which constitutes a crime. Furthermore, although the Act may accord the Commodities Futures Trading Commission (the Commission) exclusive regulatory authority in the commodities trading industry and may preempt state regulation, this does not mean that a customer's civil action against a broker on a state common law tort claim is preempted. See Patry v. Rosenthal & Co., 534 F.Supp. 545 (D.Kansas, 1982). In fact, although 7 U.S.C. § 2 grants the Commission "exclusive jurisdiction with respect to ... transactions involving contracts of sale of a commodity for future delivery, traded or executed on ... any ... board of trade, exchange, or market ...," that section of the Act also provides that: "Nothing in this section shall supersede or limit the jurisdiction conferred on courts of the United States or any State." See Jones v. B.C. Christopher & Co., 466 F.Supp. 213 (D.Kansas 1979).

We therefore conclude that the common law claim for breach of fiduciary duty raised by Rupert in this action is not preempted by the Act.

II.

Contrary to its contentions, the release of Hunt and McAdam and the finding of no liability as to Forward do not absolve Clayton Brokerage. Clayton Brokerage's liability was based on its own conduct and not on respondeat superior. And, under § 13-50.5-105(1), C.R.S. (1984 Cum.Supp.), the release of one or more tortfeasors does not release the others. The $750 required setoff was allowed.

III.

Clayton Brokerage next contends that non-compliance with its house rules does not ipso facto make the broker an insurer against all trading losses incurred by a customer. It argues that, unless the losses resulted from or were caused by the violation of these rules, it should not have been held liable. We agree. It further asserts that there was no evidence to support the trial court's finding and conclusion that Rupert's losses resulted from Clayton Brokerage's failure to follow the internal rules set forth above. We agree, at least in part.

When it accepted the discretionary account, as to which prior authorization was not needed for each transaction, Clayton Brokerage became a fiduciary for its customer, Rupert, as a matter of law. Leib v. Merrill Lynch, Pierce, Fenner and Smith, 461 F.Supp. 951 (E.D.Mich.1978). Cf. Adams v. Paine, Webber, Jackson & Curtis, Inc., 686 P.2d 797 (Colo.App.1983).

However, until the account was accepted, there was no relationship whatsoever between the parties, and Clayton Brokerage owed no duty to Rupert. The fiduciary duty commenced after the account was opened and not before. Therefore, Clayton Brokerage's decision to accept the account in violation of its own rules did not breach any duty.

The trades, although some were profitable, ultimately resulted in losses; but that fact, standing alone, does not establish that the losses were the fault of the broker/fiduciary. A fiduciary is not an insurer against any and...