Vinton v. Virzi
2012 CO 10
| Colo. | 2012Background
- Kirkland & Elaine Kirkland Irrevocable Living Trust (2002) named co-trustees; Debra McWilliams became successor trustee in 2007 and administered the trust.
- Virzi sought accounting of trust administration and alleged breach of fiduciary duty and fraud by McWilliams related to property valued below FMV and mislabeling California properties as trust assets.
- McWilliams retained Amanda Vinton to represent her; Virzi sought to amend to add fraud claim against Vinton.
- Probate court allowed Virzi's amendment against Vinton, forcing Vinton to withdraw as counsel, and denied Vinton’s motions to dismiss while approving attorney-fee award against Vinton.
- Vinton petitioned for relief under C.A.R. 21; Colorado Supreme Court issued a rule to show cause seeking review of lower-court orders.
- Court ultimately held the fraud claim against Vinton lacked particularity and the joinder of the attorney was improperly granted; remanded with directions to dismiss the fraud claim and vacate attorney-fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the amendment to add fraud against the attorney was proper | Virzi argues for fraud claim against Vinton. | Vinton contends amendment was improper due to lack of adequate pleadings and undue prejudice. | Amendment was improper; court abused by permitting joinder and must be dismissed. |
| Whether the fraud claim was sufficiently pled with particularity | Virzi contends sufficient facts alleged to support fraud. | Vinton argues failure to plead with particularity under Rule 9(b). | Fraud claim failed for lack of particularity and supporting facts. |
| Whether the probate court had subject-matter jurisdiction over the fraud claim | Virzi asserts court had jurisdiction under probate rules. | Vinton argues lack of subject-matter jurisdiction over the fraud claim. | Court lacked a cognizable basis for the fraud claim against Vinton; improper jurisdiction. |
| Whether the attorney-fee award was proper | Virzi sought fees due to substantially frivolous motion. | Vinton contends fee award was premature and lacked findings. | Fee award vacated; no adequate findings; remanded for proper consideration. |
Key Cases Cited
- Lazar v. Riggs, 79 P.3d 105 (Colo.2003) (discretion to exercise original jurisdiction; error corrections when appellate review inadequate)
- Coquina Oil Corp. v. Dist. Court, 623 P.2d 40 (Colo.1981) (exercise of original jurisdiction to correct abuse of discretion)
- Stone v. Satriana, 41 P.3d 705 (Colo.2002) (attorney disqualification and impact on attorney-client relationship evaluated with scrutiny)
- Pedlow v. Stamp, 776 P.2d 382 (Colo.1989) (need for hearings and findings in fee-shifting orders)
- Western United Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo.1984) (frivolous claim and rational argument standard)
- M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380 (Colo.App.1994) (reliance on equally available information; public-record title law limits reliance)
- Cherrington v. Woods, 132 Colo. 500, 290 P.2d 226 (Colo.1955) (particularity requirements for fraud allegations)
- Balkind v. Telluride Mountain Title Co., 8 P.3d 581 (Colo.App.2000) (title ownership and trust property; reliance on public records)