Semler v. Hellerstein
2016 COA 143
| Colo. Ct. App. | 2016Background
- Semler and Perfect Place are members of a condominium association; disputes arose over ownership of three parking spaces (C, D, E). A related quiet-title action determined Semler owned C and D and Perfect Place owned E; that appeal remains pending.
- Semler sued Hellerstein (a board treasurer and owner of Perfect Place and a CPA firm), Bewley (attorney at Berenbaum Weinshienk), Perfect Place, and the CPA firm for breach of fiduciary duty, aiding and abetting, civil conspiracy, and later sought to amend to add fraud, negligent supervision, negligent misrepresentation, vicarious liability, and breach of contract claims.
- Defendants moved to dismiss under C.R.C.P. 12(b)(5) and for lack of standing; the trial court granted dismissal, denied Semler’s second motion to amend, and awarded attorney fees to defendants. Semler appealed.
- The Court of Appeals found Semler’s notice of appeal timely (C.R.C.P. 59 motion tolled the appeal period) and reviewed the dismissal and denial of leave to amend (de novo as to futility).
- The court affirmed dismissal of all tort-based claims (fraud-related, conspiracy, breach of fiduciary duty, aiding/abetting, negligent supervision, vicarious liability) for stated reasons, but reversed as to one non-tort claim: Semler plausibly pleaded a third-party-beneficiary breach of contract claim against the law firm and Bewley and remanded on that claim only.
- The court affirmed the fee award to the Perfect Place defendants (whose claims were entirely dismissed) but reversed the fee award to Bewley and Berenbaum Weinshienk because a non-tort claim against them survived dismissal; Perfect Place is entitled to appellate fees and the trial court must determine the amount.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of appeal | Semler argued his postjudgment Rule 59 motion tolled appeal time; appeal was timely | Defendants argued postjudgment motion was effectively a Rule 60 motion and did not toll the appeal period | Held: Motion was a C.R.C.P. 59 motion; appeal timely filed (49-day rule) |
| Standing for fraud-based claims | Semler argued defendants’ fraud toward prior owner was intended to harm him and caused lost income | Defendants argued Semler lacked standing because he was not the direct victim of alleged fraud | Held: Even assuming standing, lost-opportunity damages were too remote/unforeseeable; fraud-based claims dismissed |
| Civil conspiracy / attorney liability | Semler alleged Bewley conspired with Perfect Place/Hellerstein | Defendants argued an attorney acting within scope cannot conspire with client absent personal gain or independent wrongful act | Held: Conspiracy claim dismissed; plaintiff failed to allege attorney acted for personal benefit or committed independent tort |
| Breach of fiduciary duty and related torts | Semler alleged Hellerstein breached fiduciary duty as association treasurer and Bewley aided/abetted; firm negligently supervised and is vicariously liable | Defendants argued transactions were in defendants’ individual capacities, outside association duties, so no fiduciary duty and no tort by Bewley | Held: No fiduciary duty owed to Semler for conduct outside association scope; aiding/abetting, negligent supervision, and vicarious liability dismissed |
| Breach of contract (third-party beneficiary) | Semler claimed the association’s instruction to Bewley (to avoid representing members against each other) created contractual protection that benefited him as a member | Defendants invoked strict privity and Baker limiting nonclient recovery against attorneys | Held: Semler plausibly pleaded third-party-beneficiary breach of contract; claim survives and case remanded for further proceedings |
| Attorney fees (trial and appellate) | Semler argued reversal of dismissal requires reversal of fee awards | Defendants sought fees under §13-17-201 and appellate fees under C.A.R. 39.1/39.5 | Held: Fees under §13-17-201 affirmed for Perfect Place (all claims dismissed against them) but reversed for Bewley and firm (non-tort claim survives); Perfect Place entitled to appellate fees; Bewley/firm not entitled to appellate fees |
Key Cases Cited
- Estep v. People, 753 P.2d 1241 (Colo. 1988) (timely filing of notice of appeal is jurisdictional)
- Goodwin v. Homeland Cent. Ins. Co., 172 P.3d 938 (Colo. App. 2007) (Rule 59 motion tolls appeal period)
- SMLL, L.L.C. v. Daly, 128 P.3d 266 (Colo. App. 2005) (postjudgment motions in pretrial dispositions treated as Rule 59 motions)
- Small v. Gen. Motors Corp., 694 P.2d 374 (Colo. App. 1984) (similar tolling/Rule 59 principles)
- Rush Creek Sols., Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402 (Colo. App. 2004) (appellate courts may affirm on any ground supported by the record)
- Warne v. Hall, 2016 CO 50 (Colo. 2016) (standard for plausibility in Rule 12(b) motions—complaint must state plausible claim)
- Mintz v. Accident & Injury Med. Specialists, PC, 284 P.3d 62 (Colo. App. 2010) (when fiduciary duty arises as a matter of law)
- Michaelson v. Michaelson, 939 P.2d 835 (Colo. 1997) (association board members owe fiduciary duties like corporate officers)
- Jet Courier Serv., Inc. v. Mulei, 771 P.2d 486 (Colo. 1989) (elements of civil conspiracy)
- Pittman v. Larson Distrib. Co., 724 P.2d 1379 (Colo. App. 1986) (corporation and its employees generally cannot form the two persons required for conspiracy)
- Heffernan v. Hunter, 189 F.3d 405 (3d Cir. 1999) (attorney acting within scope cannot be held liable for conspiracy absent independent wrongdoing)
- Farese v. Scherer, 342 F.3d 1223 (11th Cir. 2003) (same principle regarding attorney-client conspiracy liability)
- Bridge v. Phx. Bond & Indem. Co., 553 U.S. 639 (2008) (proximate causation and foreseeability limits on damages for certain tort claims)
- Roberts v. Holland & Hart, 857 P.2d 492 (Colo. App. 1993) (foreseeability limits on recoverable damages in tort)