*1 present of one crime while element was at finding same time element of charged
another crime was absent.” Peo- (Colo.1981); Morgan, v.
ple 399,
People Mayfield, 184 v. Colo. P.2d jury could reasoned from have testimony presented that defendant burglarize aware Peltz’ intent shop, partic
the scuba and that she did not
ipate jury in that crime. could however, determined,
further that once the
burglary committed, defendant con
spired and aided in the commission of the Accordingly, jury
theft. verdicts were necessarily inconsistent.
Judgment affirmed. METZGER, JJ.,
BABCOCK and concur. RUPERT, Plaintiff-Appellee,
Patrick A.
CLAYTON COMPANY BROKERAGE LOUIS, INC., OF ST. Missouri
corporation, Defendant-Appellant.
No. 83CA0576. Appeals,
Colorado Court I.
Div. 7,
March 1985. 4,
Rehearings April Denied 1985. Sept.
Certiorari Granted 1985. *2 Clayton Brokerage
against and Forward on pertaining only issues to account with Clayton Brokerage. complaint
Rupert’s separate consisted of alleged duty, claims for of negligence negligent supervision, and out- conduct, (churn- rageous trading excessive ing), repre- and deceit fraudulent Clayton Brokerage sentations. denied lia- bility grounds on several and also asserted risk, knowledge of compa- the defenses negligence, release. rative trial that Rupert court found had opened discretionary commodity trading account with a bal- with slightly in ance excess of and had signed a risk in which disclosure statement he indicated that he understood that trading of loss in futures risk commodities time, could be substantial. At that Hunt Rupert he could make a indicated that money lot of or lose his investment. account, accepting In Keene, A. Munsinger Stuckey, & Sharon Clayton Brokerage did not follow its own Denver, Sievers, Munsinger, Stephen M. (1) opening in rules that: bal- internal plaintiff-appellee. for $15,000 mini- required ance was below the Garnsey Kahn, Kelly, Haglund, & Edwin accounts; (2) new none of the mum for Kahn, Denver, defendant-appellant. for S. Forward, (Hunt, three account executives McAdam) handling the CISE, Judge. VAN years had minimum three account had commodity trading in or two experience trial, action, following a non-jury In this broker; (3) years there was with defendant, Clayton held Bro- the court that Rupert’s made to source attempt determine Louis, (Clayton kerage Company of St. Inc. income, experience, or investment broker, Brokerage), a securities breached (4) capital; additions amount of customer, towards its Rupert signed forms had made to after Rupert. plaintiff, Patrick A. him as an qualify in order to investor. them Rupert in then entered favor of Also, equity when trading less in the amount his net losses $7,500, Clayton Bro- dropped below ap- a release setoff. own rule which kerage did not follow its peals. We reverse. he advised required that be that Rupert originally sued not account, options liquidate the three had —to broker, Brokerage another with but also money, or to revoke deposit more he had an earlier whom the account. status of salesmen, Hunt, David M. Robert three findings, McAdam, the court Forward, losses Based on above Gary for his indica- trial, rules were an he that the internal trading Prior to held in both accounts. of care should be what the standard Hunt, with McAdam tion of released settled money. people’s dealing with $750, other and settled with other broker neg- $5,300 (the his losses concluded amount of with its internal account). complying in not ligent trial The case went rules, “not but the violations were reckless on a broker state common law tort claim It stated: preempted. wanton.” is Patry & Rosenthal Co., F.Supp. (D.Kansas, 1982). In solely “No one of these violations was fact, although grants 7 U.S.C. totality everything the Com-
responsible but jurisdiction mission “exclusive respect to the done indicates court that to ... Brokerage] involving did not transactions [Clayton exercise contracts *3 necessary, sale of a commodity delivery, and that the care breached future [it] duty [Rupert], any owed traded or executed on ... ... of board [it] damage trade, ...,” exchange, resulted in breach market that sec- [him].” tion of the provides Act also that: “Noth- The court then determined that the amount ing in this supersede section shall or limit damages of Rupert’s resulting Clay- from jurisdiction the conferred on courts of the Brokerage’s fiduciary duty ton any United States or State.” Jones v. consisted of the amount of his net losses Co., Christopher B.C. F.Supp. & 213 was Clayton while his account Broker- (D.Kansas 1979). $11,881, age, less a set-off of the $750 for paid, plus amount in- McAdam settlement We therefore conclude that the common Judgment terest and costs. was entered law fiduciary duty claim for breach of accordingly. by Rupert raised in this action is not by preempted held that the claim for the Act. fiduciary duty of proved; had been Also, all other claims dismissed. the II. against court held that the case Forward Contrary contentions, to its proven, was and the action not was dis- release of Hunt and McAdam and the find Only judgment missed as to him. ing liability of no as to Forward do not damages for breach of has Clayton Brokerage. Clayton absolve Bro appealed. been kerage’s liability was based on its own respondeat conduct and superior. not I. And, 13-50.5-105(1), (1984 under C.R.S. § Clayton Brokerage first contends Cum.Supp.), the of release one or more that, finding liability in for breach of fiduci tortfeasors does not release the others. ary duty, the trial court created standard required The $750 setoff was allowed. of care which is inconsistent with the stan imposed by Congress dard in the Commodi III. ty Act, Exchange (the seq. et U.S.C. § Clayton Brokerage next contends Act). argues It that unless a customer that non-compliance house with its rules proves a provi violation of the antifraud ipso does not make the broker an facto Act, recovery sions set forth in 4b of the § against insurer all incurred losses damages of against the broker is an not by that, argues customer. unless and, remedy available since fraud not by losses resulted from or were caused proved, Rupert’s action must fail. doWe rules, it violation these should not have agree. agree. been held liable. We It further language of 7 6b U.S.C. does not sup asserts that there was no evidence to in any way relate to tort standard of port finding the trial court’s and conclusion care; instead, it sets forth conduct which Clayton losses resulted from Furthermore, constitutes a crime. al- Brokerage’s failure to follow the internal though may the Act accord the Commodi- agree, rules set forth above. We at least (the ties Futures Trading Commission Com- part. mission) exclusive regulatory authority trading industry may commodities accepted When it preempt regulation, state prior this does not as to which authorization mean that a against transaction, civil Clay- customer’s action was not needed for each being showing no improper for its There con- Brokerage became a ton losses, customer, causing the initial no Rupert,, a matter law. duct there is as Pierce, Fenner and Lynch, Merrill Clayton basis for Leib v. liable. (E.D.Mich.1978). Therefore, Smith, principal F.Supp. amount of the Paine, Webber, & (before setoff) Adams v. Jackson must be reduced Cf. Inc., Curtis, (Colo.App.1983). the amount of the losses which occurred equity before the However, ac until the account was fell to $7500. cepted, relationship whatsoev there was However, evidence, conflicting from Clayton Bro parties, er between that, equity court found when the value of duty Rupert. The fidu kerage owed no Rupert’s trading account fell below duty the account ciary commenced after Brokerage, inter- violation Therefore, opened not before. rule, he had nal did advise accept Brokerage’s decision options liquidating, depositing addi- *4 own rules not in violation of its did account revoking money, or tional the any duty. of the account. There was further nature trading after this threshold had been trades, although some were reached, in- and additional losses were losses; ultimately resulted profitable, did curred. If the account continue to have alone, fact, standing does es not but that status, then there would exist fault of the that losses were the tablish the causal connection between the conduct broker/fiduciary. fiduciary A is not an subsequent and the against any and all losses. Securi insurer losses. 328, Appleton, 303 Ky. ty Trust Co. v. 197 (1946). 70 liable loss S.W.2d is However, Clayton Brokerage contends the of its own con by es or result caused (1) that, at or near the the evidence shows Bank, Minnequa v. 162 duct. See Cash $7,500, Rupert the fell below time 236, (1967). P.2d Colo. 426 767 Hunt terminate the discretion- instructed that this was ary status of account and any The record does disclose done, (2) trading all thereafter and that by Clayton Brokerage or improper conduct by Ru- approved made or were decisions representatives by any of han so, If then pert. that is opened, it at dling the account after was incurred any of the losses is not liable equity balance therein until least the account was the nature of after $7,500. Rupert made no below dropped changed. showing any of the transac claim or that findings as to court made no The trial tions, by facts and conditions viewed when, ever, changed if the account was into, existing they entered at the time or, account if it was non-discretionary Bank, First see Heller v. National 657 changed, of the losses occurred how much (Colo.App.1982), judg bad 992 showed P.2d made, much change and how after imprudent. There was or were ment on transactions occurred exchange any market or indication Rupert. On approved by made or decisions any security violated. law been rule or remand, findings be made should those undisputed also account It was record, appropri- an existing and from Rupert, kept close contact executives be entered based should ate promptly received confirmations and he thereon. monthly also every transaction and state that, house argues if all of the showing his then account balance ments with, the Weber, complied Paine, Jackson & rules had been Adams v. Cf. Curtis, Inc., supra. Nor opened and there any been there would therefore, losses; been no churning mis would have fraudulent proof of is not all losses. That is liable for handling. broker 992 law, adopt we decline to such a When a commits a breach of
principle. duty, whether that breach be intentional or
negligent, beneficiary of that fiduciary obligation right has the to recover any loss IV. flowing from that breach. See Restate above, our In in III view of we (Second) (1959); ment of Trusts A. § by need not address other issues raised Scott, (3rd ed.1967); Trusts G. Bo § Brokerage. gert, (Rev.2d Trusts & Trustees ed. § reversed, judgment is cause 1982); (Second) Restatement Agency proceedings is for further as in- remanded 404(a) (1958). Brock, See also White v. opinion. dicated in this Colo.App. granted upon Since relief was J., PIERCE, concurs. claim that breached its TURSI, J., part concurs in duty by and dissents him placing high in a part. commodity whether Clayton Brokerage aggravated the loss TURSI, Judge, concurring part negligent management of the discretionary part. dissenting in rights account is irrelevant to his to be I I II majority concur in Parts of the made whole for the loss suffered because opinion. portion part I dissent remedy of the breach. This has been called imposes upon III who party which has “out-of-pocket” recovery. Twomey established a re- Mitchum, Templeton, Inc., Jones & *5 loss, sulting in burden additional Cal.App.2d Cal.Rptr. proving by negli- the loss was caused However, agree I do Bro- gence subsequent to the established kerage's contention trial court breach. computation Here, erred its loss. upon which the claim trial ren- recovery must be limited to the loss flow- Clayton Brokerage’s dered ing from the duty. breach of Rupert by appears undisputed evidence to be that at placing high risk him Rupert the time was informed that he commodity futures account. Un- could terminate his account us, der the before is no record there dis- had leaving there been a loss of pute fiduciary relationship as to the estab- $4,445. Rupert balance of at that time Rupert lished between Broker- money chose to have the transferred to a age concerning his account which was guidance standard account under the byit transferred to salesmen in whom he Hunt. No breach of relationship reposed trust confidence. See Ad- by Clayton Brokerage urged has been re- Paine, Webber, Curtis, ams v. Jackson & garding the latter account. Inc., (Colo.App.1983). 686 P.2d Therefore, I would remand the trial record, upon Based the trial court court with directions that recov- found that breached its ery upon should be origi- amount duty Rupert by opening high deposited nally discretionary commodity futures account. the amount minus transferred to the stan- thus, And trial court properly found dard account and minus settlement of obligated to be to reim- contributed McAdam. $750 burse for the would loss he open- suffered but the breach ing the There evi- account. is sufficient dence in support the record to the trial
court's on this issue and we are thereby.
bound