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Fiduciary Remedy and Damages Survey ACTEC Fiduciary Litigation Committee Fiduciary Remedy and Damages Survey 50-STATE DAMAGES March 2018 In 2015, the Fiduciary Surcharge and Damages Sub-Committee distributed a twenty-six (26) question survey to ACTEC fellows regarding current case law, statutes and rules within each U.S. State on key issues relevant to financial remedies for trust and probate disputes. Separate topics related to damages and other remedies were presented to outline potential damage issues, followed by citations to language in Restatements, treatises, case law and other sources which may be followed by each State. Please direct any queries or comments regarding this 50-State Survey to Dom Campisi ([email protected]), Evans, Latham & Campisi, One Post Street, Suite 600, San Francisco, CA, 94104, (415) 421-0288. CONTRIBUTORS TO THE SURVEY Tracy Adamovich (Schiff Hardin)—New York Paul J. Barulich (Barulich Dugoni)—North Dakota, Oregon, South Dakota Kevin Bender (McGuire Woods)—Virginia David Benedetto (Vorys, Sater, Seymour and Pease)—Indiana Gerald Carp (Schiff Hardin)—New York T. Jack Challis (Polsinelli Shughart)—Missouri Patricia H. Char (K&L Gates)—Washington 2 William E. Davis (Jackson & Campbell)—District of Columbia Jane Gorham Ditelberg (Northern Trust)—Illinois W. Birch Douglas III (McGuire Woods)—Virginia Bruce K. Dudley (Wyatt, Tarrant & Combs)—Kentucky Danielle P. Ferrucci (Shipman & Goodwin)—Connecticut Lisa Forbes (Vorys, Sater, Seymour and Pease)—New Hampshire Lynn Foster (Univ. of Ark. at Little Rock School of Law)—Arkansas Stanbery Foster, Jr. (Williams, Kastner & Gibbs)—Washington Adam Gaslowitz (Gaslowitz Frankel)—Georgia Philip J. Halley (Husch Blackwell)—Wisconsin Bryon W. Harmon (Shipman & Goodwin)—Connecticut Frank N. Ikard, Jr. (Ikard Golden Jones)—Texas Bernard A. Jackvony (Pannone Lopes Devereaux & O’Gara)—Rhode Island William Kelleher (Gordon, Fournaris & Mammarella)—Delaware Rohan Kelley (The Kelley Law Firm)—Florida Shane Kelley (The Kelley Law Firm)—Florida Stanley C. Kent, additions--Colorado Cynthia G. Lamar-Hart (Maynard, Copper & Gale)—Alabama Mary M. Lyneis (Loprete & Lyneis)—Michigan Brianna Mannion (Evans, Latham & Campisi)—Kansas, Maryland, Nebraska, Vermont David R. Marchetti (Wells, Marble & Hurst)—Mississippi Casey Marshall (Bassford Remele)—Minnesota Steven K. Mignogna (Archer & Greiner)—Maine, New Jersey, North Carolina, South Carolina James C. Milton (Hall, Estill, Hardwick, Gable, Golden & Nelson)—Oklahoma Margaret E. W. Sager (Heckscher, Teillon, Terrill & Sager)—Pennsylvania Robert M. St. John (Rodey, Dickason, Sloan, Akin & Robb)—New Mexico Ronald J. Scalise (Tulane University School of Law)—Louisiana Michael G. Schwartz (Vorys, Sater, Seymour and Pease)—Indiana, New Hampshire, Ohio Alan I. Silver (Bassford Remele)—Minnesota Eddy R. Smith (Holbrook Peterson Smith)—Tennessee Susan D. Snyder (Northern Trust)—Illinois Carroll S. Taylor (Taylor, Leong & Chee)—Hawaii Raymond H. Young (Hemenway & Barnes)—Massachusetts Carol Warnick (Holland & Hart)—Colorado, Utah, Wyoming Evan D. Winet (Evans, Latham & Campisi)—Alaska, Arizona, Idaho, Iowa, Montana, Nevada, West Virginia Evan D. Winet (Johnston, Kinney & Zulaica, LLP)—California CONTENTS 1. Alternatives Remedies 4 2. Election of Remedies 22 3. Damages for Improper Sale Where Fiduciary Should Have Retained 35 4. Statutory Interest 48 3 5. Discretion to Charge Full Statutory Interest 58 6. Treasury Bill Interest 73 7. Simple or Compound Interest 80 8. Specific Reparation if Reasonable Under the Circumstances 91 9. Equitable Lien 102 10. Disgorge Profit 111 11. What Would Have Been Earned But For the Breach 123 12. Failure to Invest 135 13. Damages For Purchase of Imprudent Investment 146 14. Failure to Sell or Diversify 156 15. Determination of Date of Sale—A Question of Fact 175 16. Calculation of Damages From Date Asset Should Have Been Sold 183 17. Benchmark 198 18. Offsetting Losses With Gains 207 19. Estimation of Damages 213 20. Failure to Purchase Assets 223 21. Failure to Maximize Income Where Same Risk 232 22. Failure to Maximize Income By Retaining Too Much Cash 245 23. Punitive Damages 257 24. Double Damages 269 25. Common Law As Default Or Supplement 275 26. Uniformity in Applying and Construing Uniform Acts 283 1) ALTERNATIVE REMEDIES. “The law recognizes three alternative remedies available to beneficiaries when the trustee had breached the duty of loyalty to the trust. First, the trustee is obviously charged with any loss to the trust estate. Second, the trustee is liable for any profit made through the breach. Third, the beneficiary may recover from the trustee a profit that would have accrued to the trust if there had been no breach.” Restatement (Second) of Trusts § 205 (1959); see also Restatement (Third) of Trusts § 95 (2012); Scott and Ascher on Trusts § 24.3 (5th ed. 2007); Bogert, Trusts and Trustees § 861 (2d ed. rev. 1995); Loring and Rounds, A Trustee’s Handbook § 7.2.3.2 4 (2012); Unif. Trust Code § 1002; Unif. Trust Code Art. 10 gen. cmt.; Redke v. Silvertrust (1971) 6 Cal.3d 94, 107; Coster v. Crookham (Ia. 1991) 468 N.W.2d 802, 806. Alabama: Accord: Damages for breach of trust. ALA. CODE § 19-3B-1002 (1975): ( a) A trustee who commits a breach of trust is liable to the beneficiaries affected for: (1) The greater of: (i) The amount required to restore the value of the trust property and trust distributions to what they would have been had the breach not occurred; or (ii) The profit the trustee made by reason of the breach; (2) Any measure of damage otherwise provided by law. (b) Except as otherwise provided in this subsection, if more than one trustee is liable to the beneficiaries for a breach of trust, a trustee is entitled to contribution from the other trustee or trustees. A trustee is not entitled to contribution if the trustee was substantially more at fault than another trustee or if the trustee committed the breach of trust in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries. A trustee who received a benefit from the breach of trust is not entitled to contribution from another trustee to the extent of the benefit received; Damages in absence of breach. ALA. CODE § 19-3B-1003 (1975): (a) A trustee is accountable to an affected beneficiary for any profit made by the trustee arising from the administration of the trust, even absent a breach of trust; (b) Absent a breach of trust, a trustee is not liable to a beneficiary for a loss or depreciation in the value of trust property or for not having made a profit. Alaska: See Alaska Stat. Ann. § 13.36.080 (duty to inform and account to beneficiaries), Editors’ Notes citing Bogert Law of Trusts § 861 (remedies of the beneficiary against the trustee); Alaska Stat. Ann. § 34.20.070 (West) (including provisions for alternative remedies for improper sale of real property by trustee). Arizona: “Except as provided in § 14-7404, a trustee who commits a breach of trust is liable to the beneficiaries affected for the greater of either: 1. The amount required to restore the value of the trust property and trust distributions to what they would have been had the breach not occurred; 2. The profit the trustee made by reason of the breach.” Ariz. Rev. Stat. Ann. § 14-11002. Arkansas: Arkansas has enacted section 1002 of the Uniform Trust Code. Ark. Code Ann. § 28-73-1002. No appellate decision has cited this section of the code. No appellate decisions cite either Restatement section. California: “If the trustee commits a breach of trust, the trustee is chargeable with any of the following that is appropriate under the circumstances: (1) Any loss or depreciation in value of the trust estate resulting from the breach of trust, with interest; (2) Any profit made by the trustee through the breach of trust, with interest; (3) Any profit that would have 5 accrued to the trust estate if the loss of profit is the result of the breach of trust.” Cal. Prob. C. § 16440(a); also see Uzyel v. Kadisha (2010) 188 Cal.App.4th 866, 906. Colorado: “If a court, after a hearing, determines that a breach of fiduciary duty has occurred or an exercise of power by a fiduciary has been improper, the court may surcharge the fiduciary for any damage or loss to the estate, beneficiaries, or interested persons. Such damages may include compensatory damages, interest, and attorney fees and costs.” C.R.S. § 15-10-504; see also Foiles v. Foiles (In re Estate of Foiles), 2014 COA 104, P47 (Colo. Ct. App. 2014). Connecticut: Efthimious v. Smith, 2002 WL 1447642. Delaware: Delaware law recognizes all three options as potential remedies. “A beneficiary may charge a trustee who commits a breach of trust with: (1) The amount required to restore the value of the trust property and trust distributions to what they would have been had the breach not occurred; (2) The profit that the trustee made by reason of the breach; or (3) Such other relief as may be fashioned by the court.” Del. Code Ann. tit. 12, § 3582; see also Del Code Ann. tit. 12, § 3581(b)(3) (“To remedy a breach of trust that has occurred or may occur, the court may order any equitable remedy, including… (3) Compelling the trustee to redress a breach of trust by paying money, restoring property, or other means.”); Mennen v. Wilmington Trust Co., No. CV 8432-ML, 2015 WL 1914599 (Del. Ch. Apr. 24, 2015) (The “appropriate remedy [of] a monetary judgment that includes the value of the lost principal associated with [the trustee’s] breaches and an additional amount to restore the value of the trust to what it would have been had the breach not occurred.”); McNeil v. McNeil, 798 A.2d 503, 509 (Del. 2002) (“With respect to the Court of Chancery’s application of remedies for breach of a trustee’s duties… [the] court, in exercise of its plenary equitable authority over the supervision of trusts is accorded broad discretion.”) (citing Hogg v.
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