Virgil A. BOATRIGHT, Gerald Boatright, and Boatright & Ripp, Petitioners and Cross-Respondents, v. Rick DERR, as Personal Representative of the Estate of Charlene Hill; Rick Derr, as the Personal Representative of the Estate of Waunita Nixon; and Rick Derr, as the Personal Representative of the Estate of Gertrude Nixon, Respondents and Cross-Petitioners.
No. 94SC596.
Supreme Court of Colorado, En Banc.
June 24, 1996.
Rehearing Denied July 29, 1996.
919 P.2d 221
Justice KIRSHBAUM
Admirably, counsel for Eagle Peak filed a simultaneous rulemaking judicial review petition in the Denver District Court for on-the-record review under the APA. That proceeding is proper, and we express no opinion on the merits thereof.
“To place the ultimate determination in the courts through judicial review of this legislative action would violate the constitutional principle of the separation of powers.” Colorado Land Use Comm‘n, 604 P.2d at 35. In light of our holding, we do not reach the Commission‘s argument that section 37-90-115(1), if applicable to Commission rules, would violate the separation of powers doctrine. We are to avoid, if possible, a statutory construction which may result in constitutional invalidity. See Adams County School Dist. No. 50 v. Heimer, 919 P.2d 786, 792 (Colo.1996); see also People v. Thomas, 867 P.2d 880, 883 (Colo.1994).
IV.
Accordingly, we reverse the decision of the court of appeals and remand for further proceedings consistent with this opinion, with directions that it return the case to the ground water judge for dismissal of the rulemaking appeal filed in Adams County.
Haddon, Morgan & Foreman, P.C., Norman R. Mueller, Denver, Cook & Lee, P.C., Steven H. Cook, Larry D. Lee, Boulder, for Respondents and Cross-Petitioners.
In Hill v. Boatright, 890 P.2d 180 (Colo.App.1994), the court of appeals determined, inter alia, that Charlene Hill (Hill), the initial plaintiff-respondent and cross-petitioner,1 had standing as personal representative of the estates of her mother, Waunita Nixon, and her aunt, Gertrude Nixon (hereafter collectively referred to as “the Nixon estates“), to pursue this civil action for professional negligence and breach of fiduciary duty against the defendants-petitioners and cross-respondents, Virgil A. Boatright, Gerald Boatright, and the law firm of Boatright & Ripp (the Boatrights). The court of appeals also determined that Hill was not entitled to recover noneconomic damages caused by the Boatrights’ conduct either as the personal representative or as a beneficiary of the Nixon estates. Having granted certiorari to review the court of appeals’ judgment, we affirm in part, reverse in part, and remand the case to the court of appeals with directions.
I
In June of 1987 Hill was appointed personal representative of the estate of her mother, Waunita Nixon. The inventory of estate assets included a duplex located in Wheat Ridge, Colorado, which at one time was owned by Waunita and her sister-in-law Gertrude Nixon. Waunita‘s will provided that her interest in the duplex would pass to Gertrude as a life estate unless Gertrude predeceased Waunita, in which event Waunita‘s interest in the duplex would pass to Hill and Hill‘s sister, Janice Kennedy (Kennedy). Hill and Kennedy were the named beneficiaries of the balance of Waunita‘s residuary estate.
Hill retained the Boatrights to represent her in probating Waunita‘s estate. Shortly after Hill‘s appointment as personal representative, it was determined that it would be in the best interest of the estate to sell the duplex. Hill intended to distribute half of the net proceeds of the sale to Gertrude and to divide the other half equally between herself and Kennedy. The duplex was sold for $124,000. As partial payment for the property, the purchaser assigned two promissory notes to Gertrude and Hill. While the extent of the Boatrights’ involvement in the real estate transaction was disputed at trial, it is undisputed that the Boatrights represented Hill at the closing in March of 1988.
Gertrude died in April of 1989. Her estate included her one-half interest in the two promissory notes, and her will listed her son, George Wellman, and Hill as beneficiaries of Gertrude‘s interest in those promissory notes. Hill retained the Boatrights to assist her in probating Gertrude‘s estate and was appointed personal representative of Gertrude‘s estate in May of 1989.
In 1990 the purchaser of the duplex defaulted on the payment of the two promissory notes and it was discovered that the security for the notes was of little or no value. Hill then retained new counsel to represent her in connection with the Nixon estates. In March and April of 1991, Kennedy and George Wellman assigned their interests in the two promissory notes to Hill. In March of 1991 Hill filed closing statements for the Nixon estates pursuant to
In October of 1991 Hill filed this action against the Boatrights alleging claims of professional negligence, breach of fiduciary duty, breach of contract, and unjust enrichment. Hill also alleged that the Boatrights’ failure to protect her interests individually and in her capacity as personal representative of the Nixon estates caused her “emotional and financial damage.”
The trial court entered summary judgment in favor of the Boatrights and against Hill on her breach of contract and unjust enrichment claims. In February of 1993, after a trial, a jury returned a verdict in favor of Hill on her negligence and breach of fiduciary duty claims in the amount of $366,550.82, which amount included an award of $100,000 for noneconomic damages on her negligence claim and $100,000 for noneconomic damages
The court of appeals determined, inter alia, that Hill had standing to pursue this action as personal representative of the Nixon estates because she commenced the action prior to termination of her appointments as personal representative for the Nixon estates. Boatright, 890 P.2d at 183. The court of appeals also concluded that Hill was not entitled to recover noneconomic damages either as personal representative of the Nixon estates or as a beneficiary of the Nixon estates. The court of appeals did not determine whether Hill was entitled to recover noneconomic damages as an individual.2
II
The Boatrights contend that Hill lacked authority to represent the Nixon estates as personal representative thereof after her initial appointment terminated pursuant to
In construing a statute, our responsibility is to effectuate the intent of the General Assembly in enacting the measure. Lakeview Assocs. v. Maes, 907 P.2d 580, 584 (Colo.1995); General Elec. Co. v. Niemet, 866 P.2d 1361, 1364 (Colo.1994). To carry out that responsibility, we first examine the language of the statute. Scoggins v. Unigard Ins. Co., 869 P.2d 202, 205 (Colo.1994); May Dep‘t Stores Co. v. State ex rel. Woodard, 863 P.2d 967, 972 (Colo.1993).
Estates administered in unsupervised proceedings may be closed pursuant to
(1) [A] personal representative may close an estate by filing with the court ... a verified statement stating that he or she, or a prior personal representative whom he or she has succeeded, has or have:
(a) Fully administered the estate of the decedent by making payment, settlement, or other disposition of all lawful claims, expenses of administration and estate, inheritance and other death taxes ... and that the assets of the estate have been distributed to the persons entitled. If any claims remain undischarged, the statement shall state whether the personal representative has distributed the estate subject to possible liability with the agreement of the distributees or it shall state in detail other arrangements which have been made to accommodate outstanding liabilities....
The closing of an unsupervised estate does not, however, relieve the personal representative of the estate from all responsibilities for estate matters.
(2) If no proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates.
provides that “an appointment of a personal representative terminates as provided in section 15-12-1003 one year after the filing of a closing statement.” The personal representative is thus authorized to act on behalf of the estate for a period of one year following the date of the closing. Such authorization permits distributees in an unsupervised estate administration proceeding to seek adjustment or correction of the distribution and enables the personal representative to take steps to make appropriate adjustments to the distribution pattern. See 1 American Law Institute & American Bar Association, Uniform Probate Code Practice Manual 304 (Richard V. Wellman ed.1977) (hereafter “UPC Practice Manual“).
The Boatrights argue that Hill lost all authority to act on behalf of the estate in March of 1992, one year after she filed her closing statements, pursuant to the provisions of
Termination of appointment—general. Termination of appointment of a personal representative occurs as indicated in sections 15-12-609 to 15-12-612. Termination ends the right and power pertaining to the office of personal representative as conferred by this code or any will; except that a personal representative, at any time prior to distribution or until restrained or enjoined by court order, may perform acts necessary to protect the estate and may deliver the assets to a successor representative. Termination does not discharge a personal representative from liability for transactions or omissions occurring before termination, or relieve him of the duty to preserve assets subject to his control, to account therefor, and to deliver the assets. Termination does not affect the jurisdiction of the court over the personal representative, but terminates his authority to represent the estate in any pending or future proceeding.
It must first be observed that this statute expressly provides that termination of an appointment as personal representative does not relieve the personal representative from liability to beneficiaries of the estate for acts performed on behalf of the estate prior to termination. See
More importantly,
The Boatrights emphasize that portion of
As the Boatrights note, at any time after a period of one year has elapsed from the date a closing statement has been filed a probate court may reappoint a personal representative to complete the administration of the estate.
Subsequent administration. If, after an estate has been settled and the personal representative discharged or after one year after a closing statement has been filed, it is determined that the estate has not been fully administered or fully distributed by reason of subsequently discovered property or for any other reason, the court, upon petition of any interested person, and upon notice as it directs, may appoint the same or a successor personal representative to complete the administration or distribution of the estate. If a new appointment is made, unless the court orders otherwise, the provisions of this code apply as appropriate; but no claim previously barred may be asserted in the subsequent administration.
Thus, a personal representative whose appointment has terminated by operation of
It would be at best anomalous to conclude that a personal representative who filed a lawsuit during the one-year period after the filing of a closing statement must wait until termination occurs and then obtain reappointment as personal representative to either continue the litigation or, if it is dismissed in the interim, to refile the lawsuit. Statutes should be construed to avoid rather than to enhance absurd consequences. Board of County Comm‘rs v. IBM Credit Corp., 888 P.2d 250, 252 (Colo.1995).
We conclude that the availability of the procedure established by
III
In reversing the jury‘s verdicts awarding Hill noneconomic damages, the court of appeals held that she had no capacity to recover such damages either on behalf of the estate or as a beneficiary of the estate. Hill, 890 P.2d at 185-86. Hill argues here, as she did before the court of appeals and at trial, that as the Boatrights’ client she was entitled to recover damages for noneconomic injuries individually. We agree with her argument in the circumstances of this case.
A
It must be noted initially that the Boatrights contend, inter alia, that noneconomic damages resulting solely from pecuniary loss are not recoverable in legal malpractice actions in Colorado, regardless of whether liability is asserted on a theory of negligence or
Whatever the merits of the Boatright‘s argument, we do not address it in this certiorari proceeding. At trial, the Boatrights did not argue that noneconomic damages cannot be recovered by a client who establishes that his or her attorney committed the torts of negligence and breach of fiduciary duty where the noneconomic damages result solely from pecuniary loss. The Boatrights did file a pretrial motion to strike a portion of Hill‘s claim for noneconomic damages because of alleged discovery abuses by Hill. The motion contained a footnote asserting that because Hill was not in any “zone of danger” her alleged noneconomic injuries were not foreseeable and that because such injuries were not alleged to have resulted from wanton and willful misconduct, she could not recover damages for emotional distress.6 The Boatrights renewed this argument in their objections to instructions on damages and in their motion for new trial. However, the Boatrights at no time prior to the filing of their brief in the court of appeals argued that noneconomic damages are not available to clients who prevail in legal malpractice actions based on allegations of negligence and breach of fiduciary duties where the noneconomic damages are a consequence of purely pecuniary loss. We will not address issues raised for the first time in appellate proceedings. Paine, Webber, Jackson & Curtis, Inc. v. Adams, 718 P.2d 508, 514 (Colo.1986).
B
The court of appeals held that Hill could not recover noneconomic damages in her capacity as personal representative of the estate because the estate is a legal entity and therefore cannot sustain noneconomic damages. Boatright, 890 P.2d at 185. The court cited no authority for the statement that an estate is a legal entity. In Heuschel v. Wagner, 73 Colo. 327, 329, 215 P. 476, 477 (1923), we reached a contrary conclusion. Many other jurisdictions have also determined that
We need not revisit the question of the legal status of an estate to determine whether Hill was entitled to an award of noneconomic damages as an individual. At trial, Hill contended that she was entitled to recover noneconomic damages “personally” as well as in the capacity of personal representative of the Nixon estates.7 We conclude that under the circumstances of this case, the jury properly awarded Hill noneconomic damages personally, as the Boatrights’ client.8
As previously noted, the pleadings, instructions, jury interrogatories and special verdict forms establish that at trial Hill asserted claims of negligence and breach of fiduciary duty both as the personal representative of the Nixon estates and personally. We have also determined that we will not address the question of whether Hill is entitled to recover noneconomic damages as a beneficiary of the Nixon estates.
At trial the Boatrights asserted in their pleadings that Hill hired them to represent her in her capacity as personal representative of the estates. They did not, however, seek a trial court ruling that Hill was not entitled to pursue her malpractice claims of negligence and breach of fiduciary duty personally, as their client.9 While the Boatrights did produce evidence at trial to establish that they represented Hill in her capacity as personal representative of the Nixon estates, they did not produce evidence that they did not represent Hill personally. While Hill presented very little evidence to support her allegations that she was a client of the Boatrights not only as the personal representative of the Nixon estates but also personally, that evidence must be viewed in the light most favorable to Hill, together with all permissible inferences to be drawn therefrom. See Moses v. Diocese of Colo., 863 P.2d 310, 314 n. 1 (Colo.1993), cert. denied, 511 U.S. 1137, 114 S.Ct. 2153, 128 L.Ed.2d 880 (1994); People v. Young, 192 Colo. 65, 68, 555 P.2d 1160, 1162 (1976).
We conclude that the evidence, when so viewed, supports the jury‘s implicit finding that Hill pursued this action personally as well as in her capacity as personal representative of the Nixon estates. When viewed in the light most favorable to Hill, the evidence also supports the finding that Hill personally suffered noneconomic damages as the result of the Boatrights’ negligence and breach of fiduciary duty to her.10 See
IV
For the foregoing reasons, we affirm the judgment of the court of appeals insofar as that court determined that Hill was entitled to recover economic damages from the Boatrights for the benefit of the Nixon estates in her capacity as personal representative of those estates. We reverse the court of appeals’ determination that Hill was not entitled to recover noneconomic damages and return the case to the court of appeals with
SCOTT, J., dissents and VOLLACK, C.J., joins the dissent.
Justice SCOTT, dissenting:
This case requires that we determine the force of
I
Our primary task in construing a statute is to give effect to the intent of the General Assembly. Scoggins v. Unigard Ins. Co., 869 P.2d 202 (Colo.1994); Farmers Group, Inc. v. Williams, 805 P.2d 419 (Colo.1991). To discern intent, we first look to the plain language of the statute. People v. Terry, 791 P.2d 374 (Colo.1990). If the language of the statute is clear and the intent of the General Assembly may be discerned with certainty, it is not necessary to resort to other rules of statutory interpretation. McKinney v. Kautzky, 801 P.2d 508 (Colo.1990). Even if the intent of the General Assembly can be disputed, if the plain language of the statute is clear, it is controlling. Scoggins, 869 P.2d at 205. We should not read a statute to accomplish something the plain language does not suggest, warrant, or mandate. See Schlessinger v. Schlessinger, 796 P.2d 1385 (Colo.1990) (holding that the court should be careful to avoid judicial legislation by adding to a statute that which the legislature did not deem proper); Jones v. People, 155 Colo. 148, 393 P.2d 366 (1964) (stating the court may not change the laws enacted by the legislature).
II
Termination of appointment—general. Termination of appointment of a personal representative occurs as indicated in sections 15-12-609 to 15-12-612.1 Termination ends the right and power pertaining to the office of personal representative as conferred by this code or any will; except that a personal representative, at any time prior to distribution or until restrained or enjoined by court order, may perform acts necessary to protect the estate and may deliver the assets to a successor representative. Termination does not discharge a personal representative from liability for transactions or omissions occurring before termination, or relieve him of the duty to preserve assets subject to his control, to account therefor, and to deliver the assets. Termination does not affect the jurisdiction of the court over the personal representative, but terminates his authority to represent the estate in any pending of future proceeding.
(Emphasis added.)
The plain language of the second sentence of
Here, and as the majority acknowledges, Hill filed closing statements in March of 1991. See maj. op. at 223. Under the plain language of
The majority‘s reading of the second sentence of
Because the plain language of
Accordingly, I respectfully dissent.
I am authorized to say that Chief Justice VOLLACK joins in this dissent.
The CITY OF LAKEWOOD, a Colorado Municipal Corporation; Walter C. Kane, City Manager, in his Official Capacity and Individually; James M. Zelenski, Assistant City Manager, in his Official Capacity and Individually; and Linda Shaw, Gordon Garrett, Norma Beard, David Larkin, Linda Morton, Tom Leadabrand, Harold Scatterday, Dennis Mateski, and Kathy Stapleton, in their Official Capacities as Members of the City Council, City of Lakewood, Colorado, Petitioners, v. Richard W. BRACE, Respondent.
No. 95SC196.
Supreme Court of Colorado, En Banc.
June 24, 1996.
Rehearing Denied July 29, 1996.
Notes
We are aware that at trial the following colloquy occurred between Hill‘s counsel and John Brian Dougherty, a witness called for Hill:
Q. Mr. Dougherty, do you have an opinion, based on a reasonable degree of legal probability, whether or not the duty to advise the client and disclose all the information as relevant was discharged in this case?
A. Yes, I do.
Q. What is that opinion?
A. My opinion is that that duty was not fulfilled toward Charlene Hill.
Q. As an individual or as an estate representative?
A. As both. I‘m sorry. Whenever we‘re talking about Charlene Hill, I‘m talking about in both capacities. She had an interest as an individual in the sense she‘s eventually going to become a beneficiary of the estates and get the property, and she‘s also acting as a personal representative at this time, a personal representative being a person who handles the estate.
So it doesn‘t matter which capacity you talk about her in. The duty that the Boatrights have to her is the same in either circumstance. Whether she‘s an individual or acting as a personal representative doesn‘t make a bit of difference.
In spite of this testimony, Hill never requested the jury to award her damages as a beneficiary of the estates. In view of the posture of the case at trial, we do not address this issue here. Paine, Webber, 718 P.2d at 514.