2012 COA 188
Colo. Ct. App.2012Background
- Graham, a regional sales manager for Zurich, sued for unpaid bonuses under the Colorado Wage Claim Act after termination.
- The jury awarded $28,326.98 but did not include the statutorily mandatory penalties, and the verdict form suggested adjustments to penalties.
- The court declined to enter judgment on the verdict and sent the jury back to reconsider its award and penalties.
- A second verdict favored Zurich; the court did not enter judgment but reserved post-trial motions while Graham sought JNOV.
- The court granted JNOV for Graham, then entered judgment on the first verdict including penalties, after recognizing an error in instructing penalties to the jury.
- On appeal, Zurich challenged the process; Graham seeks discretionary appellate attorney fees under the Wage Claim Act, with remand to determine fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Should penalties be set by court, not the jury? | Graham argues penalties are statutory and should be determined by the court upon the jury's findings. | Zurich contends penalties can be resolved only after further jury deliberations. | Penalties must be determined by the court as a matter of law. |
| Was the court's order to further deliberate proper or incorrect? | Graham contends the court erred in requiring further jury deliberations. | Zurich argues the initial order was proper under CRCP 47(r). | The court erred in ordering further deliberations; reconsideration was appropriate. |
| Did the court properly enter judgment on the first verdict after reconsideration? | Graham maintains the first verdict supported liability and penalties once corrected. | Zurich argues the second verdict should govern. | Yes; judgment on the first verdict was proper after reconsideration, with penalties properly imposed as a matter of law. |
| Should appellate attorney fees be awarded to Graham and, if so, how much? | Graham is eligible for discretionary appellate fees under § 8-4-110(1). | Zurich challenges the award and amount as discretionary and remand-dependent. | Remand to determine in the trial court whether and how much reasonable appellate attorney fees Graham should recover. |
Key Cases Cited
- Heritage Village Owners Ass'n v. Golden Heritage Investors, Ltd., 89 P.3d 513 (Colo.App.2004) (avoid instructing jury on treble damages; penalties should be imposed by court when appropriate)
- HBE Leasing Corp. v. Frank, 22 F.3d 41 (2d Cir.1994) (trebling and related penalties should not be discussed in certain contexts)
- Lloyd A. Fry Roofing Co. v. State Dep't of Health Air Pollution Variance Bd., 191 Colo. 463, 553 P.2d 800 (1976) (after resolving facts, penalties can be determined by the court)
- Olsen v. Bondurant & Co., 759 P.2d 861 (Colo.App.1988) (court assesses penalty after jury findings when appropriate)
- Cole v. Angerman, 31 Colo.App. 279, 501 P.2d 136 (1972) (court can amend verdict form where liability is clear)
- Richards v. Sanderson, 39 Colo. 270, 89 P. 769 (1907) (penalties imposition by court or jury is immaterial if proper findings exist)
- Sandberg v. Borstadt, 48 Colo. 96, 109 P. 419 (1910) (penalties context; court/jury distinction discussed)
- Wymond v. Amsbury, 2 Colo. 213 (1873) (old authority on verdicts and penalties)
- Harris v. McLaughlin, 39 Colo. 459, 90 P. 93 (1907) (pertinent discussion on verdicts and proper computation)