The representative will be liable to the estate28 for any loss to the estate resulting from lack of diligence on his or her part. The law is not settled on the question of whether the representative is liable for the mistakes of agents employed by him or her.29 The representative is not in any sense an insurer or guarantor that all of his or her actions will turn out for the best, but the test of liability is whether he or she has been guilty of some violation of fiduciary duty. C.R.S. § 15-12-712; see Estate of Blanpied, 393 P.2d 355. See also Chapter 40, "Fiduciary and Attorney Misconduct."

Where a trustee bank's periodic accounting was unclear and inconsistent, the bank breached its duty to account and reasonable accountant fees were properly awarded as part of a surcharge remedy. An award of damages with interest and reduction of trustee's compensation were also upheld. Heller v. First Nat'l Bank of Denver, 657 P.2d 992 (Colo. App. 1982).

In a surcharge action, being essentially equitable in nature, the claimant was not entitled to receive exemplary damages or have the case tried to a jury. Kaitz v. District Court, 650 P.2d 553 (Colo. 1982). See also In re Trust of Malone, 658 P.2d 284 (Colo. App. 1992) (where complaint states equitable causes of action, counterclaim raises a legal issue, does not change the basic nature of the suit so as to allow a jury trial on the counterclaim); DiFede v. Mountain States Tel. & Tel. Co., 763 P.2d 298 (Colo. App. 1988) (equitable issues may be tried to a jury only with the consent of the parties); Snow Basin Ltd. v. Boettcher & Co. Inc., 805 P.2d 1151 (Colo. App. 1990). But see Virdanco, Inc. v. MTS Int'l, 820 P.2d 352 (Colo. App. 1991), where it was held that an award of exemplary or punitive damages was appropriate in breach of fiduciary duty cases that are attended by wanton and reckless conduct.

In Murphy v. Central Bank & Trust Co., 699 P.2d 13 (Colo. App. 1985), a trustee was surcharged for breach of duty regarding management of real estate and sale of real estate for inadequate consideration. Accounting and trustee fees were included as elements of surcharge remedy.

In Zeligman v. Juergens, 762 P.2d 783 (Colo. App. 1988), it was held that a fiduciary accused of breach of duty has the benefit of affirmative defenses such as estoppel. In Beyer v. First National Bank of Colorado Springs, 843 P.2d 53 (Colo. App. 1992), the court adopted the standards of Restatement of Trusts § 216 to determine the effectiveness of the consent of beneficiaries to approve fiduciary misconduct. The court noted that, in applying the principles of the Restatement, the court should not use the advantage of hindsight. See also § 40.10 regarding defenses to surcharge actions.

In Conservatorship of Roth, 804 P.2d 265 (Colo. App. 1990), it was held that a bank became a fiduciary when it acknowledged, and then acted in violation of, restricted letters of conservatorship. Under the circumstances, the minor's estate was entitled to reasonable attorney fees for defending the action and defense on appeal.

Formerly, a majority of the breach of fiduciary cases arose out of traditional fiduciary relationships involving personal representatives, trustees, and conservators. In addition, a fiduciary duty may arise out of agency relationships and contractual relationships. However, a substantial number of cases have involved breach of fiduciary duty claims, often joined with negligence and fraud claims, arising out of business relationships.

Stock brokerage cases include:

Paine Webber, Jackson & Curtis, Inc. v. Adams, 718 P.2d 508 (Colo. 1986);
Rupert v. Clayton Brokerage Co. of St. Louis, 737 P.2d 1106 (Colo. 1987); and

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