Zick v. Krob, 92CA0424

• Decision Date: 07 October 1993
• Docket Number: No. 92CA0424,92CA0424
• Citation: 872 P.2d 1290
• Parties: William R. ZICK, Jr., Lona L. Arnold, Sandra J. Zick Hutchinson, Plaintiffs-Appellants, and Mountain Harmony, Inc., d/b/a C & Z Builders, Third-Party Defendants, v. Scotty P. KROB, Janice Z. Krob, Defendants-Appellees. . III
• Court: Colorado Court of Appeals

Page 1290

872 P.2d 1290

William R. ZICK, Jr., Lona L. Arnold, Sandra J. Zick Hutchinson, Plaintiffs-Appellants and Mountain Harmony, Inc., d/b/a C & Z Builders, Third-Party Defendants, v. Scotty P. KROB, Janice Z. Krob, Defendants-Appellees.

No. 92CA0424.

Colorado Court of Appeals Div. III.

Oct. 7, 1993.

Rehearing Denied Nov. 18, 1993.

Petition and Cross-Petition for

Certiorari Denied May 2, 1994.

Peggy E. Stevens, Lakewood, for plaintiffs-appellants and third-party defendants.

Scotty P. Krob, Denver, for defendants-appellees.

Opinion by Judge TURSI.

Plaintiffs, William P. Zick, Jr., Lona Lee Arnold, and Sandra J. Zick Hutchinson, and third-party defendant, Mountain Harmony, Inc., d/b/a C & Z Builders, Inc., appeal from the trial court's judgment dismissing their claims and finding in favor of defendants, Scotty P. and Janice Z. Krob, on several of their counterclaims and third-party claims. We affirm in part and reverse in part.

Plaintiffs and defendant Janice Krob are siblings and were the sole legal heirs of their deceased mother's estate. They assumed equal and common ownership of the estate assets under a decree of heirship. The decree was prepared on their behalf by defendant Scotty Krob, the husband of Janice and a practicing attorney. Krob also performed other legal services for the siblings.

Several controversies arose concerning the control and distribution of the assets. Relations between the parties deteriorated, and plaintiffs commenced this action for a declaratory judgment as to their legal rights in the assets. Their complaint included claims against Krob in his professional capacity for breach of fiduciary duty, negligence, fraud, outrageous conduct, and an accounting. Plaintiffs also asserted a claim against both defendants for unjust enrichment based on defendants' occupancy of the mother's former home.

Defendants asserted counterclaims for, inter alia, breach of contract, extreme and outrageous conduct, and promissory estoppel and sought a declaratory judgment, contending primarily that they had remained in the mother's house pursuant to plaintiffs' invitation and that plaintiffs had breached a contract to sell them the property. Defendants also asserted third-party claims against Mountain Harmony and C & Z Builders, construction companies owned and operated by plaintiff Zick, alleging that they were in breach of a contract to remodel the home. The third-party claims were dismissed by the trial court after it found that the companies were mere instrumentalities of Zick's own affairs and had no separate corporate identities. That determination has not been challenged in this appeal.

After a trial to the court that spanned nineteen days, judgment entered in favor of the defendants. In addition, the trial court found that plaintiffs' claims were vexatious, frivolous, groundless, and lacked substantial justification. Accordingly, it awarded attorney fees to Krob, holding, however, that it could not make a similar award to Janice Krob because she had appeared pro se. Plaintiffs appeal from the judgment as well as the award of attorney fees.

I.

Plaintiffs first argue that the trial court erred by determining, on its own initiative, that plaintiffs were not entitled to a trial by jury. We disagree.

The right to a trial by jury in a civil action exists only in proceedings that are legal in nature. See C.R.C.P. 38 and 39; Mountain States Telephone & Telegraph Co. v. DiFede, 780 P.2d 533 (Colo.1989); Faucett v. Hamill, 815 P.2d 989 (Colo.App.1991).

The complaint fixes the nature of a suit, and if it joins or commingles legal and equitable claims, the court must determine whether the basic thrust of the action is equitable or legal. Citicorp Acceptance Co. v. Sittner, 772 P.2d 655 (Colo.App.1989).

Plaintiffs urge that this action is legal in nature because of the malpractice claims they assert against Krob. However, taking the amended complaint as a whole, we conclude that the overriding reason for the action was for a declaration setting forth the siblings' ownership rights in their mother's assets.

Defendants argue that because the action was for a declaratory judgment, it was a proceeding in equity. Declaratory relief, in and of itself, however, is not determinative of the type of action brought. See § 13-51-113, C.R.S. (1987 Repl.Vol. 6A); C.R.C.P. 57(i) and (m); and Baumgartner v. Schey, 143 Colo. 373, 353 P.2d 375 (1960).

Here, the primary remedy sought resembles that afforded in actions for partition. See § 38-28-101, C.R.S. (1982 Repl.Vol. 16A). Such actions are considered equitable in nature. Martinez v. Martinez, 638 P.2d 834 (Colo.App.1981). The claims for an accounting and for unjust enrichment are equitable as well. See Martinez v. Martinez, supra; and T-A-L-L, Inc. v. Moore & Co., 765 P.2d 1039 (Colo.App.1988). We, therefore, are not persuaded that the trial court's characterization of this action as equitable was contrary to law. Consequently, we reject plaintiffs' contention that they were improperly denied their right to a trial by jury.

II.

Plaintiffs next contend that the trial court erred by dismissing their claims for negligence, breach of fiduciary duty, and fraud. We disagree.

A.

Initially, we reject plaintiffs' assertion that the trial court improperly excluded the testimony of a probate attorney that was proffered to establish the standard of practice purportedly required of Krob.

CRE 702 provides that an expert witness may testify if scientific, technical, or other specialized knowledge will assist the trier of fact.

The general rule is that, except in clear and palpable cases of legal malpractice, expert testimony is necessary to establish the standards of acceptable professional conduct from which the alleged deviation has occurred. Boigegrain v. Gilbert, 784 P.2d 849 (Colo.App.1989). And, the general standard for admission of expert testimony in any type of malpractice action is whether it will provide assistance on a matter not within the knowledge or common experience of people of ordinary intelligence. Scognamillo v. Olsen, 795 P.2d 1357 (Colo.App.1990).

Here, however, the trial court served as the trier of fact. Because the proffered testimony concerned matters of legal practice, the trial court was in a particularly appropriate position to assess whether such testimony would be helpful in its deliberations. We, therefore, conclude that the trial court's exclusion of the testimony did not constitute an abuse of discretion. See Tri-State Generation & Transmission Co. v. City of Thornton, 647 P.2d 670 (Colo.1982) (fn. 12) (trial court sitting as fact finder need not admit expert testimony on a matter that it is capable of resolving without such testimony).

B.

A trial court sitting as the trier of fact has wide discretion to determine whether a plaintiff's claims should be dismissed, and we cannot overturn that judgment in the absence of a showing that the trial court's findings and conclusions are so manifestly against the weight of the evidence as to compel a contrary result. C.R.C.P. 41(b)(1); Smith v. Weindrop, 833 P.2d 856 (Colo.App.1992).

Here, the evidence supported the trial court's finding that Zick was appointed by the siblings to manage and control the estate's assets and that Krob, at the behest of the plaintiffs, undertook only a limited role in providing legal assistance. The evidence further showed that Krob complied with each specific request for legal services and that the delays complained of by plaintiffs were attributable to them. Finally, in light of the undisputed facts that the siblings were the sole legal heirs, that the estate assets were debt free, and that the siblings wanted to handle matters among themselves with as little outside interference and expense as possible, there is support for the finding that Krob did not act incompetently by recommending and preparing the decree of heirship.

As for plaintiffs' claims that Krob breached his fiduciary duty and made fraudulent misrepresentations, the record contains ample evidence to support the trial court's finding that Krob fully and timely apprised the siblings of possible conflicts he might have by virtue of his marriage to Janice and that plaintiffs understood the possible conflicts but insisted that he assist them anyway. The evidence also supports the trial court's findings that defendants occupied the house at the plaintiffs' invitation and that Krob fully and repeatedly advised plaintiffs concerning their rights to the home. Lastly, the record contained little if any evidence to contradict the presumption that the pre-death distributions given to defendants were gifts. See Fister v. Fister, 122 Colo. 432, 222 P.2d 620 (1950).

We, therefore, conclude that the trial court's findings of fact upon which its judgment of dismissal was predicated were supported by the weight of the evidence.

III.

Plaintiffs also challenge the trial court's finding in favor of defendants on their counterclaim for promissory estoppel. Again, we find that the trial court's judgment in that regard is supported by the record.

The doctrine of promissory estoppel, as set forth in Restatement (Second) of Contracts § 90(1) (1970), provides that:

A promise which the promisor should reasonably expect to induce action or a forbearance on the part of the promisee or third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

See also Kiely v. St. Germain, 670 P.2d 764 (Colo.1983). The purpose of the doctrine is to assure fairness by protecting one who relies to his detriment on the promise of another. See Mooney v. Craddock, 35 Colo.App. 20, 530 P.2d 1302 (1974).

A claim for promissory estoppel must be established by a preponderance of the evidence. Nicol v. Nelson, 776 P.2d 1144 (Colo.App.1989).

The record is replete with testimony from all pa...