Ludlow v. Gibbons
2011 Colo. App. LEXIS 1820
Colo. Ct. App.2011Background
- Sellers entered into an exclusive listing agreement with Gibbons-White, Inc. to sell about 1831 acres of vacant land in Boulder County.
- Actis, LLC offered to buy 49.2 acres for $6,489,910 with an infrastructure cost-sharing credit provision to be escrowed, which was not in prior offers.
- Sellers counteroffered to 44.8 acres for $5,790,822.60, with Actis obtaining a later option for 4.98 acres; the infrastructure credit remained in the contract.
- A second contract for the remaining acreage brought total stated purchase price to $6,550,073.40; lawyers and a broker (Wilson) assisted in negotiations.
- Sellers learned at draft settlement that Actis would receive a $1,615,909.95 infrastructure credit at closing; they closed anyway under legal obligation.
- Sellers asserted four claims: professional negligence by lawyers and brokers, negligent supervision by Lynda Gibbons, and breach of fiduciary duty by brokers; brokers designated Groves and Actis as nonparties at fault.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Causation in transactional negligence | Ludlow alleged no-deal loss would have occurred but for brokers' negligence. | Sellers failed to show a 'better deal' or no-deal outcome; damages speculative. | Vacated summary judgment; causation for no-deal damages issue remains fact-bound. |
| Breach of fiduciary duty by brokers | Brokers acted as agents and owed fiduciary duties; failed to disclose agency status and Actis relationship. | Actis and Groves were not parties to the broker-seller agency; statute creates non-agent transaction brokers absent written agency. | Affirmed summary judgment finding no agency relationship; fiduciary-duty claim fails as a matter of law. |
| Nonparty fault designations | Groves and Actis owed duties; nonparty fault designations should stand. | No duty established; designation should be struck. | Affirmed trial court’s strike of nonparty fault designations. |
Key Cases Cited
- Kaiser Found. Health Plan of Colo. v. Sharp, 741 P.2d 714 (Colo. 1987) (causation in negligence proven by preponderance; case-within-a-case concept discussed)
- Goodyear Tire & Rubber Co. v. Holmes, 198 P.3d 821 (Colo. 2008) (measure of damages for property-related torts; market value focus)
- Vanderbeek v. Vernon Corp., 50 P.3d 866 (Colo. 2002) (lost profits; consequential damages doctrine and pleading proof)
- Roberts v. Holland & Hart, 857 P.2d 492 (Colo. App. 1993) (lost profits damages; credibility of speculative damages considered)
- Republic Nat'l Life Ins. Co. v. Red Lion Homes, Inc., 704 F.2d 484 (10th Cir. 1983) (damages for lost prospective profits analysis in Colorado context)
- Viner v. Sweet, 117 Cal.App.4th 1218 (Cal. App. 2004) (no-deal causation in transactional negligence; but-for standard applied)