UNITED STATES COURT OF APPEALS July 25, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

DIANNA CHRISTINE MURPHY,

Plaintiff - Appellee,

v. No. 22-1421

THOMAS SCHAIBLE,

Defendant - Appellant,

and

SCHAIBLE, RUSSO & COMPANY, C.P.A.’S, L.L.P.,

Defendant. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:19-CV-02808-WJM-MEH) _________________________________

Kendra N. Beckwith (Hilary D. Wells, with her on the briefs), Lewis Roca Rothgerber Christie LLP, Denver, Colorado, for Defendant-Appellant.

Anthony T. Golz (Cory M. Curtis, with him on the brief), Cokinos Young, P.C., Houston, Texas, for Plaintiff-Appellee. _________________________________

Before HARTZ, McHUGH, and FEDERICO, Circuit Judges. _________________________________

HARTZ, Circuit Judge. _________________________________ Appellate Case: 22-1421 Document: 010111085110 Date Filed: 07/25/2024 Page: 2

Defendant Thomas Schaible appeals the district-court order denying his

motion for judgment as a matter of law that sought to set aside a jury verdict finding

him liable for breaching his fiduciary duty to Plaintiff Dianna Murphy, who was the

wife of his brother Michael during the relevant events.1 Thomas was the investment

advisor to Dianna and Michael with respect to an account the two held as joint

tenants with rights of survivorship. The alleged breach concerned Thomas’s

following Michael’s instructions to transfer virtually all the cash in the account to a

Colorado bank account in anticipation of Michael’s then transferring the funds to a

Mexican bank account controlled solely by Michael. This action by Thomas allegedly

breached his fiduciary duty to Dianna because he failed to inform her of the proposed

transfer when she could have prevented it or to advise her of steps she could have

taken to protect herself, despite his knowledge of the couple’s marital difficulties and

Dianna’s interest in dividing the couple’s assets.

Thomas contends (1) that Dianna did not suffer a legally compensable injury

from the transfer of funds by Michael, her joint tenant, who had full legal authority to

transfer the funds and (2) that he did not breach any fiduciary duty to her by

following Michael’s instructions without informing or advising her. We reject both

contentions. We also reject Thomas’s argument that Dianna was not entitled to

1 Because the three principal actors shared the same last name at the time of the relevant events, we hereafter avoid confusion by referring to them by their first names.

2 Appellate Case: 22-1421 Document: 010111085110 Date Filed: 07/25/2024 Page: 3

prejudgment interest because of alleged procedural deficiencies in district court. We

have jurisdiction under 28 U.S.C. § 1291 and affirm the judgment below.

I. BACKGROUND

A. Factual Background

Thomas, a licensed investment advisor, was the financial advisor and accountant

for Michael and Dianna. In particular, he was the couple’s “investment advisor

representative” for their investment account with Securities Service Network, Inc. (the

SSN account). When they opened the SSN account in 2007, the couple signed a “Client

Advisory Services Agreement” (the Agreement or Client Agreement). Aplt. App., Vol.

VII at 1991. It did not authoriz

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