Isabelle DerKEVORKIAN, Plaintiff-Appellee/Cross-Appellant, v. LIONBRIDGE TECHNOLOGIES, INC., dba Lionbridge US, Inc., Defendant-Appellant, Cross-Appellee, and Sharryn E. Ross and Ross, Martel & Silverman, LLP, Defendants/Cross-Appellees.
Nos. 07-1125, 07-1149
United States Court of Appeals, Tenth Circuit
Dec. 3, 2008
301 Fed. Appx. 727
If that were not enough, our cases also bar civil claims that impugn the integrity of outstanding criminal judgments. To do so would necessarily imply the invalidity of the judgment, which the Supreme Court has said requires the criminal judgment to be “reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court‘s issuance of a writ of habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Here, D‘Addabbo‘s complaint necessarily challenges the validity of his incarceration pursuant to the initial arrest and his threat to the Special Agent on which he was convicted, and is infirm for that reason as well.
Because D‘Addabbo failed to carry his burden of demonstrating a constitutional violation, the Special Agents are entitled to qualified immunity.
C. Civil Rights Claim
D‘Addabbo also raises a civil rights claim that was not developed below. He appears to refer to
D‘Addabbo has not sufficiently alleged that he was the victim of race or class-based invidiously discriminatory animus, so this claim fails as well.
III. Conclusion
For the foregoing reasons, the judgment of the district court is AFFIRMED.
David Bruce Wilson, Michael James Hofmann, Holme, Roberts & Owen, Denver, CO, for Defendant-Appellant, Cross-Appellee.
David E. Leavenworth, Hall & Evans, Denver, CO, for Defendants/Cross-Appellees.
Before LUCERO, ANDERSON, and O‘BRIEN, Circuit Judges.
ORDER AND JUDGMENT*
STEPHEN H. ANDERSON, Circuit Judge.
In this diversity case, defendant/appellant/cross-appellee Lionbridge Technologies, Inc., in appeal No. 07-1125, appeals the denial of a motion for a new trial and the entry of judgment, following a jury trial, in favor of plaintiff/cross-appellant Isabelle DerKevorkian, a former Lionbridge employee, in a dispute arising out of an effort to obtain a permanent resident “green card” for DerKevorkian. In appeal No. 07-1149, DerKevorkian cross-appeals an adverse ruling on summary judgment for attorney Sharryn Ross, an immigration attorney retained by Lionbridge to assist in the green card application process, as well as a reduction of pre-judgment interest on one of the amounts due her from Lionbridge. We affirm in part and reverse and remand in part.1
BACKGROUND
Plaintiff, appellee and cross-appellant Isabelle DerKevorkian is a citizen of France. In 1997, she was hired as a translator by ILE, a company engaged in localization and translation in Boulder, Colorado. Defendant, appellant and cross-appellee Lionbridge Technologies, Inc. bought ILE in 2000, with the result that DerKevorkian became an at-will employee for Lionbridge, working as a translator. DerKevorkian was subsequently promoted to project manager.
DerKevorkian had been issued an H1-B visa, which is valid for three years and can be renewed once for a second three-year term. Her most recent H1-B visa was going to expire on October 1, 2003. If DerKevorkian wished to remain permanently within the United States, however, she needed to obtain a green card denominating permanent resident status.
Lionbridge maintained a Permanent Resident Program (“PRP“), pursuant to which the company would “assist and support long-term employees in the process of applying for lawful permanent resident status.” DerKevorkian sought to participate in the PRP. To participate in the program, DerKevorkian agreed to work for Lionbridge for two years after her green card was issued and she agreed to allow an attorney hired by Lionbridge to handle her green card application. On December 17, 2001, Lionbridge approved its sponsorship of DerKevorkian‘s green card application. As of April 1, 2001,
In early March 2002, Lionbridge hired immigration attorney Sharryn E. Ross and her law firm to assist with DerKevorkian‘s green card application. At that time, it became apparent to everyone that DerKevorkian‘s H1-B visa needed to be amended to reflect her April 2001 promotion to translation manager, and that such an amendment was necessary prior to the issuance of a green card.
On March 15, 2002, DerKevorkian heard from Ross‘s law firm that the amendment process should be completed by the end of March. DerKevorkian emailed Ross‘s assistant on April 12, 2002, asking if he would keep her posted. On April 16, the assistant told DerKevorkian that they had that day requested a prevailing wage determination from the State of Colorado Department of Labor.2 When Lionbridge, assisted by Ross, obtained the prevailing wage determination on April 18, 2002, DerKevorkian‘s position of translation manager was classified by the State of Colorado Department of Labor as a “Level Two, General and Operations Manager.” The Department‘s applicable prevailing wage for such a position was $106,288,
On April 24, 2002, Ross discussed the prevailing wage problem with Lionbridge‘s visa liaison person. They apparently discussed conducting a wage survey to see if that would yield a prevailing wage for DerKevorkian more in line with her current salary. Ultimately, they decided to wait until the issuance of new national prevailing wage guidelines, to see if the new guidelines would be of assistance.
On May 29, 2002, DerKevorkian emailed Ross‘s assistant again, asking if there had been any progress on her green card application. He responded that there had been a problem with the prevailing wage and that they were waiting for clarification from the national Department of Labor. He further responded on June 4 that there was no new news to report.
On July 15, 2002, DerKevorkian again emailed Ross‘s assistant for an update, expressing concern that seven months had passed since her acceptance in the PRP, yet she was unaware of any real progress. Ross‘s assistant responded that he could not provide her with any information because the law firm had been instructed to have her direct all inquiries to Lionbridge‘s visa liaison person.
DerKevorkian then contacted the Lionbridge visa liaison person, who informed her on July 22 that the prevailing wage had come back almost double her salary and that Ross‘s office was waiting for a memo from the national Department of Labor. When the new national guidelines were issued in August 2002, they did not help DerKevorkian‘s situation.
On September 17, 2002, DerKevorkian asked for a meeting, noting that as of the following month (October 2002) she would only have one year left on her H1-B visa, and further stating “I have financial and personal commitments here, and it is really imperative for me to have a realistic outlook of my legal situation in this country.” Appellee‘s Supp.App. at 185.
On September 19, DerKevorkian met with the Human Resources manager and the site manager for Lionbridge, who told her that the only option for pursuing the green card was for DerKevorkian to accept a demotion to translator, without a reduction in pay.3 DerKevorkian refused, stating that she believed such a demotion would adversely affect her career and would limit her duties to translation work exclusively.
At various points throughout this process, other possibilities were discussed. As indicated, Ross investigated the possibility of performing a cross-industry wage survey, in order to establish a prevailing wage for DerKevorkian‘s job. When she found out that the survey would cost $10,000, she abandoned that possibility. DerKevorkian herself apparently had some suggestions for solving the prevailing wage problem. She suggested that Lionbridge “tweak” her job description so that it would fall within category 1, without actually changing her duties.4 Lionbridge refused, on the ground that it would not submit an inaccurate description of DerKevorkian‘s job duties.5 DerKevorkian then suggested that she remain as a translation manager, but that she no longer submit direct reports, to which Lionbridge responded that would leave her with very little to do. DerKevorkian also proposed that Lionbridge apply for a green card listing a different job for DerKevorkian—translator—which DerKevorkian would take after the green card was issued. Both Ross and another attorney testified that such an approach would be unethical and “an incredibly risky procedure,” which “raises a red flag” with the government. Appellant‘s App. at 872-73.
After negotiations, Lionbridge and DerKevorkian were unable to agree on a feasible solution, and Lionbridge ultimately failed to file an application with the Bureau of Immigration and Customs Enforcement (“BICE“) under the Department of Homeland Security (“DHS“) for DerKevorkian‘s green card. Her work
And, well, I sank into a depression. I couldn‘t sleep, I couldn‘t eat, I couldn‘t function. I could barely get out of bed. I had no taste for anything, no energy.... I was just like a ghost. So I went to a psychologist and then a doctor. I went to therapy and I had to take antidepressant pills and antianxiety pills.
Id. at 631. There was testimony about efforts DerKevorkian made to obtain work after she left the United States.
DerKevorkian sued Lionbridge in Colorado state court on May 18, 2004. Lionbridge removed the case to federal court based on diversity of citizenship, because DerKevorkian is French and Lionbridge is a Delaware corporation with its principal place of business in Massachusetts. DerKevorkian brought four claims against Lionbridge: negligence, breach of fiduciary duty, promissory estoppel and breach of contract. After the case was removed to federal court, she added as defendants Sharryn Ross and her law firm, Ross, Silverman & Levy, and asserted a legal malpractice claim against them on January 7, 2003. An amended complaint asserting a legal malpractice claim against Ross as well as Lionbridge was filed on March 15, 2005.6
After discovery, all defendants filed motions for summary judgment. The district court granted summary judgment against DerKevorkian on her negligence claim, concluding that because Lionbridge‘s duties to her were “purely contractual in nature,” Order at 10-11, Appellant‘s App. at 226-27, the negligence claim was barred by Colorado‘s economic loss rule. The district court refused to grant summary judgment against DerKevorkian on the contract, promissory estoppel and breach of fiduciary duty claims. On the breach of fiduciary duty claim, the court concluded that DerKevorkian‘s trust and confidence that Lionbridge would perform the contract gave rise to a fiduciary duty. In response to Lionbridge‘s argument that Colorado‘s Workers’ Compensation Act barred the fiduciary duty claim, the court held that the claim was not barred because DerKevorkian sought recovery solely for economic harm.
On Ross‘s motion for summary judgment, which alleged that there was no attorney-client relationship between herself and DerKevorkian, that DerKevorkian‘s claim was barred by the statute of limitations, and that no facts supported a claim that Ross committed legal malpractice by breaching a fiduciary duty owed to DerKevorkian, the district court ruled in favor of Ross on the ground that there was no evidence of an attorney-client relationship. Even though the court granted summary judgment to Ross on the ground of the lack of an attorney-client relationship, the court ruled against Ross on the statute of limitations issue.
The case was tried to a jury on the three claims (breach of contract, breach of fiduciary duty and promissory estoppel) in December 2006. At trial, the district court refused the instruction Lionbridge sought concerning DerKevorkian‘s mitigation of
Lionbridge moved for a new trial or to amend the judgment. The district court held that the jury‘s economic damage award was “not supported by any evidence in the record,” Order at 16, Appellant‘s App. at 459, and granted a new trial unless DerKevorkian accepted a remittitur to $221,433, which she did. The court also reduced the $1,000,000 non-economic damages award to $366,250, the maximum permitted by Colorado law,
With respect to the fiduciary duty claim, the court rejected Lionbridge‘s argument that, as a matter of law, it erred in finding that Lionbridge owed its employee, DerKevorkian, a fiduciary duty arising from the “purely contractual” obligation to support and assist her in obtaining permanent residency. The court held that DerKevorkian had, starting in 1997, “trusted” Lionbridge “to represent her interests in the handling of various filings in order for her to continue to work in the United States.” Appellant‘s App. at 451. The court accordingly concluded that Lionbridge‘s fiduciary duty to DerKevorkian existed “at least prior to the time they entered into a contract related to [DerKevorkian‘s] green card application.” Id.
DerKevorkian also moved to amend the judgment, asking the district court to apply a 9% rate of pre-judgment interest (the rate for “personal injury“) to the non-economic award; to start the pre-judgment interest running as of October 1, 2002, a year before she had to leave the country and thus the day her action accrued; and to award pre-judgment interest on the entire uncapped amount of the non-economic award. The court did award pre-judgment interest at the rate of 9%—the rate for “damages for personal injuries sustained by any person” pursuant to
Lionbridge filed this timely appeal. It argues the district court erred in: (1) concluding that DerKevorkian did not suffer a “personal injury” for which the Colorado Workers’ Compensation Act provides the exclusive remedy because she did not experience a “harmful change in the body“; (2) finding that Lionbridge had been in a confidential fiduciary relationship with DerKevorkian, even though their fundamental relationship was a contractual one of employer-employee; and (3) refusing to instruct the jury that it could consider whether DerKevorkian acted reasonably in refusing the translator job with Lionbridge that, although a demotion, would arguably have permitted her to remain in the United States working for Lionbridge.
DerKevorkian cross-appeals, arguing: (1) in her cross-appeal against Lionbridge, that the district court erred in failing to award her pre-judgment interest on the amount of damages assessed by the jury, as opposed to the capped amount ultimate-
DISCUSSION
“We review de novo a district court‘s grant of summary judgment, viewing the evidence in the light most favorable to the nonprevailing party.” Mullin v. Travelers Indem. Co., 541 F.3d 1219, 1222 (10th Cir. 2008). Summary judgment is appropriate if “there is no genuine dispute over any material fact, and a party is entitled to prevail as a matter of law.” Id. (further quotation omitted); see
I. Workers Compensation Act:
Lionbridge argues first that the district court erred in holding that Colorado‘s Workers Compensation Act (“WCA“) did not bar DerKevorkian‘s claim for emotional distress personal injury damages. The district court ruled on Lionbridge‘s motion for summary judgment that claims for tort injuries for economic injuries and harm affecting a proprietary or financial interest are not “personal injuries” within the meaning of the WCA. Thus, it ruled that DerKevorkian‘s tort-based claim for breach of fiduciary duty was not precluded by the Act. It ruled similarly on Lionbridge‘s motion for a new trial and/or to alter or amend the judgment. Order at 11-12, Appellant‘s App. at 454-55 (“The emotional distress incurred by [DerKevorkian], and related damages awarded as compensation therefore, were a result of [Lionbridge‘s] breach of its fiduciary duty; it was not a mental injury incurred as a result [of] or arising out of a work-related accident, injury or occupational disease.“).
“The WCA is an employee‘s exclusive remedy for compensation by an employer for certain work-related injuries.” Serna v. Kingston Enters., 72 P.3d 376, 379 (Colo. Ct. App. 2002). Under the WCA, an employee surrenders, as against his or her employer, “all causes of action, actions at law, suits in equity, proceedings, and statutory and common law rights and remedies for and on account of such death of or personal injury to any such employee and accruing to any person.”
The Colorado Court of Appeals has concluded that “as used in the WCA, the terms ‘personal injury’ and ‘personal injuries’ refer to the job-related physical or mental injuries of an employee.” Id. It further observed that “personal injury” “includes any harmful change in the body.” Id. (quoting 3 Larson‘s Workers Compensation Law, ch.55 at 55-1 (2002)). “[A]s a matter of law, job-related emotion-
We agree with Lionbridge that DerKevorkian‘s injury in the form of depression and anxiety, and its associated physical manifestations, is a mental injury which could be covered by the WCA. That, however, is not the end of the inquiry. The WCA is only the exclusive remedy for personal injuries “arising out of and in the course of the employee‘s employment.”
“The phrases ‘arising out of’ and ‘in the course of’ are not synonymous and a claimant must meet both requirements.” Horodyskyj v. Karanian, 32 P.3d 470, 475 (Colo. 2001). “The latter requirement refers to the time, place, and circumstances under which a work-related injury occurs ... [such that] an injury occurs in the course of employment when it takes place within the time and place limits of the employment relationship and during an activity connected with the employee‘s job-related functions.” Id. The “arising out of” requirement “refers to the origin or cause of an injury.” Id. “An injury ‘arises out of’ employment when it has its origin in an employee‘s work-related functions and is sufficiently related to those functions to be considered part of the employee‘s employment contract.” Id.
We agree with the district court that DerKevorkian‘s claimed injuries did not occur in the course of or arise out of her employment. They came about because of a completely separate agreement to assist her with her green card application. While it is true that she would not have been eligible to participate in the PRP were she not a Lionbridge employee, and it would have been mutually beneficial to both her and Lionbridge had she obtained a green card, we cannot say that her injuries occurred in connection with, or stemmed from, work-related activities or were related to her actual job function as a translator, translator manager, or any other functions she performed at Lionbridge.
II. Fiduciary Relationship:
Among other claims, DerKevorkian alleged that Lionbridge had breached a fiduciary duty it owed to her with respect to its handling of its efforts to obtain a green card for her, and that she incurred damages from that breach. In its motion for summary judgment, Lionbridge argued that DerKevorkian had failed to state a claim for breach of a fiduciary duty under tort law, and, in any event, the economic loss rule barred DerKevorkian‘s tort claim for breach of fiduciary duty. The district court held, in its order granting in part and denying in part Lionbridge‘s motion for summary judgment, as follows:
Although [DerKevorkian‘s] bare allegation that Lionbridge breached its fiduciary duty is admittedly conclusory, the factual allegations in [DerKevorkian‘s] complaint are sufficient to support her contention that Lionbridge owed her a fiduciary duty based either on an agency or a confidential relationship in order to state a claim under Colorado law ...
[DerKevorkian‘s] allegations in her amended complaint, although minimal, adequately assert[ ]a legal theory for breach of fiduciary duty, and set[ ] forth sufficient facts in support thereof, cognizable under Colorado law.
Order at 13, Appellant‘s App. at 229. The district court further concluded that the economic loss rule was not applicable, because the court had “determined that [DerKevorkian] has adequately stated facts to support a finding of an independent fiduciary duty.” Order at 14, id. at 230.7 Lionbridge appeals that determination, arguing that “as a matter of law, Colorado‘s economic loss rule bars DerKevorkian‘s breach of fiduciary duty claim.” Appellant‘s Op. Br. at 33.
As an initial matter, DerKevorkian argues that “Lionbridge failed to move for judgment as a matter of law pursuant to
In this case, DerKevorkian argues that a special, confidential relationship existed between her and Lionbridge, independent of any contractual employer-employee relationship that existed, that created a fiduciary duty supporting an award of damages based on the tort of breach of fiduciary duty. While she tries to argue that the existence of such a relationship, giving rise to a fiduciary duty, is a factual question, Colorado law makes clear that the overarching question is a legal one. “The question of whether a defendant owes a plaintiff a duty to act to avoid injury is a question of law to be determined by the court. The court determines, as a matter of law, the existence and scope of the duty.” Town of Alma v. Azco Constr. Co., 10 P.3d 1256, 1264 (Colo. 2000).8 The issue of the existence of such a duty is therefore properly before us, even though Lionbridge did not file a motion for judgment as a matter of law on the point.
We turn now to whether the district court properly concluded that a confidential relationship existed giving rise to a fiduciary duty owed by Lionbridge to DerKevorkian which supported a damage award not barred by the economic loss
Under Colorado law, “[c]ontract obligations arise from promises the parties had made to each other, while tort obligations generally arise from duties imposed by law to protect citizens from risk of physical harm or damage to their personal property.” A.C. Excavating v. Yacht Club II Homeowners Ass‘n, Inc., 114 P.3d 862, 865-66 (Colo. 2005). The economic loss, or independent duty, rule is “intended to maintain the boundary between contract law and tort law.” Town of Alma, 10 P.3d at 1259. Thus, “a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such a breach absent an independent duty of care under tort law. Economic loss is defined generally as damages other than physical harm to persons or property.” Id. at 1264. The tort duty must be independent of any contractual duties: “A breach of a duty which arises under the provisions of a contract between the parties must be redressed under contract, and a tort action will not lie. A breach of a duty arising independently of any contract duties between the parties, however, may support a tort action.” Id. at 1262.
Colorado law recognizes that “some special relationships by their nature automatically trigger an independent duty of care that supports a tort action even when the parties have entered into a contractual relationship.” Id. at 1263. Thus, an attorney-client, or physician-patient, or insurer-insured relationships may give rise to such a duty of care. Id. In denying Lionbridge‘s request for a new trial, the district court found “that there was sufficient evidence presented to establish a special relationship that would give rise to a fiduciary duty not recognized in the usual employment relationship, as well as a breach of that duty.” Order at 10, Appellant‘s App. at 453. The district court characterized that special relationship as a “confidential fiduciary relationship” which Lionbridge had with DerKevorkian.
A confidential relationship “exists when one party justifiably reposes confidence in another such that the parties drop their guard and assume that each side is acting fairly.” Lewis v. Lewis, 189 P.3d 1134, 1143 (Colo. 2008). Colorado does not “recognize a separate tort founded upon breach of a confidential relationship.” Univ. of Colo. Found., Inc. v. American Cyanamid, 880 F.Supp. 1387, 1404 (D.Colo. 1995), aff‘d in part, vac‘d in part on other grounds, 196 F.3d 1366 (Fed. Cir. 1999) (quoting Bock v. Brody, 870 P.2d 530, 533 (Colo.Ct.App. 1993)). However, “a confidential relationship may serve as an indication of fiduciary status.” Lewis, 189 P.3d at 1143. Furthermore, “[t]he confidential relationship ... must be established prior to the date of the transaction that gives rise to the claim.” Vikell Investors Pac., Inc. v. Kip Hampden, Ltd., 946 P.2d 589, 597 (Colo.Ct.App. 1997).
In order to establish, under Colorado law, a breach of a fiduciary duty arising from a confidential relationship between two parties:
there must be proof, among other things, that (1) either the reposing of trust and confidence in the other party was justified, or the party in whom such confidence was reposed either invited, ostensibly accepted, or acquiesced in such trust; (2) the alleged trustee assumed a primary duty to represent the
other party‘s interest in the subject of the transaction; (3) the nature and scope of the duty that arose by reason of the confidential relationship extended to the subject mater of the suit; and (4) that duty was violated, resulting in damage to the party reposing such confidence.
Equitex, Inc. v. Ungar, 60 P.3d 746, 752 (Colo.Ct.App. 2002) (quoting Jarnagin v. Busby, Inc., 867 P.2d 63, 67 (Colo.Ct.App. 1993)); see also Grynberg v. Total, S.A., 538 F.3d 1336, 1346-47 (10th Cir. 2008).
The parties do not cite to us, nor are we aware of, any Colorado case stating that an at-will employer-employee relationship should give rise to a confidential relationship indicative of a fiduciary duty in anything close to the circumstances of this case. Thus, we must consider whether Lionbridge‘s acceptance of DerKevorkian in the PRP created such a duty.
There is an initial question of whether Lionbridge may make the argument that the confidential relationship must be in existence prior to the date of the “transaction” giving rise to the complaint—in this case, the agreement that DerKevorkian could participate in the PRP. The district court held, in denying Lionbridge‘s motion for a new trial, that:
the evidence at trial was that during the duration of her employment, starting in 1997, [DerKevorkian] trusted [Lionbridge] to represent her interests in the handling of various filings in order for her to continue to work in the United States. From the beginning of their employment relationship, at least prior to the time they entered into a contract related to [DerKevorkian‘s] green card application, [Lionbridge] had a high degree of control and [DerKevorkian] placed a significant amount of trust and confidence that [Lionbridge] would look after her best interests related to her ability to work in the United States as its employee.
Order at 8, Appellant‘s App. at 451. However, that was, in essence, an alternative finding, because the district court first observed that Lionbridge had tendered jury instructions regarding the breach of a confidential fiduciary relationship which did not contain the preexistence requirement, which instructions were, in fact, given to the jury, and Lionbridge raised the preexistence issue for the first time in its post-trial motions. The district court therefore held that Lionbridge had waived this issue. Lionbridge responds that it had properly raised in its motion for summary judgment the general issue of the existence of a confidential relationship fiduciary duty, which includes the question of when the relationship must be established, and, in any event, the parties cannot stipulate to an error of law. Further, it argues the evidence at trial fails to support the conclusion that the confidential relationship preexisted DerKevorkian‘s acceptance into the PRP.
We agree with the district court that Lionbridge has waived its right to raise the issue of the preexistence of the confidential relationship. It did not raise this as an element of the confidential relationship prior to post-trial motions. Thus, neither the district court nor the jury had the opportunity to assess any such requirement. Moreover, while hardly overwhelming, we find sufficient evidence supporting the district court‘s conclusion that, throughout their employment relationship, DerKevorkian invariably relied upon Lionbridge and its expertise and experience to assist her in obtaining whatever documentation was necessary to remain a legal worker in the United States. This culminated in the PRP, pursuant to which we agree with DerKevorkian and the district court that Lionbridge assumed a fiduciary duty to assist her and support her in her green card application.
III. Mitigation of Damages:
“One of Lionbridge‘s primary defenses in this case was that the plaintiff could have mitigated her damages, and remained in the United States, by taking the lead translator position, offered to her at the same salary as her then-current job.” Appellant‘s Op. Br. at 43. The district court refused to give such an instruction, on the ground that “the translator position as a matter of law was not substantially similar to the translation manager position.” Appellant‘s App. at 989. Lionbridge argues this was an error by the district court, in that “[t]he defense presented a question of fact that the jury should have been allowed to consider,” that “Lionbridge was prejudiced by its exclusion from trial” and that we should “remand for a new trial on damages with the defense submitted to the jury.” Appellant‘s Op. Br. at 43.
“We review the district court‘s decision to give a particular jury instruction for abuse of discretion and consider the instructions as a whole de novo to determine whether they accurately informed the jury of the governing law.” Garcia v. Wal-Mart Stores, Inc., 209 F.3d 1170, 1173 (10th Cir. 2000) (further quotation omitted). The district court relied upon Fair v. Red Lion Inn, 943 P.2d 431 (Colo. 1997), in refusing to give an instruction regarding DerKevorkian‘s mitigation of damage by taking the translator job. Fair is not, however, particularly applicable to this case. Thus, we agree with Lionbridge that it was error to refuse to permit the jury to evaluate whether it was reasonable for DerKevorkian to refuse to accept the translator job in an effort to reduce or minimize her damages.
Fair was a wrongful termination case involving a breach of contract action by a
In evaluating whether the district court erred in failing to give the particular instruction that Lionbridge tendered, as opposed to some other instruction generally setting out DerKevorkian‘s obligation to mitigate her damages, we are hampered by the fact that the instruction Lionbridge tendered, and it now claims should have been given, is not a part of this record. Nonetheless, the district court referred to it generally in its order on Lionbridge‘s post-trial motions, and characterized it as “direct[ing] the jury to find that Plaintiff necessarily failed to mitigate her damages by refusing to immediately accept the demotion. Defendant‘s tendered instruction indicated that its affirmative defense was ‘proved’ if the jury found that Plaintiff ‘refused to accept an offer from Lionbridge for a translator position.‘” Order at 4, Appellant‘s App. at 447.
We agree with the district court that such an instruction directing the jury to find that DerKevorkian had failed to mitigate her damages by refusing to take the translator job would have been in error. However, some instruction giving the jury the opportunity to weigh DerKevorkian‘s duty to compromise to some extent to consider a less desirable job, if that meant she could obtain her green card, was in order.11 We accordingly remand to the
IV. Summary Judgment for Ross:
The district court granted summary judgment in favor of Ross against DerKevorkian on DerKevorkian‘s action for legal malpractice, on the ground that DerKevorkian had submitted insufficient evidence of an attorney-client relationship to raise a genuine issue of material fact. We affirm, but for a different reason than did the district court.
Even if there was an attorney-client relationship between Ross and her law firm and DerKevorkian, about which we express no opinion, any cause of action for malpractice arising therefrom accrued more than two years before DerKevorkian sued Ross on January 7, 2005, and thus is barred by the applicable statute of limitations. A claim for legal malpractice must be commenced within two years after the cause of action accrues.
DerKevorkian claims she did not know that Ross was her attorney until late 2004. Ross claims DerKevorkian knew Ross was her attorney, and believed that Ross was responsible in part for her inability to get a green card, in late 2002. Indeed, DerKevorkian conceded that she retained her current counsel in late 2002 (she believes November) and that she knew in late summer or in September 2002 that her green card would not go through. See Appellee‘s Supp.App. at 42-43, 45-46, 48. Even though DerKevorkian argues that she did not really know that her green card application would fail until January 7, 2003, because that is when Lionbridge apparently informed her finally that it would
In short, we affirm the district court‘s grant of summary judgment against DerKevorkian and in favor of Ross on the ground that the statute of limitations had expired at the time DerKevorkian filed her action against Ross and her firm.
Because we remand for a retrial on damages, we do not address the other issues relating to the damage award.
CONCLUSION
For the foregoing reasons, we AFFIRM in part, and REVERSE and REMAND for a new trial on damages for breach of a fiduciary duty, in accordance with this opinion.
LUCERO, J., concurring.
Although I agree with the outcome reached by the majority, I would affirm the district court‘s grant of summary judgment on the legal malpractice claim against Ross based on the lack of an attorney-client relationship and not based on the statute of limitations. In all other respects, I join the order and judgment.
STEPHEN H. ANDERSON
CIRCUIT JUDGE
Notes
Appellant‘s App. at 1019. That instruction mentions “alternative employment,” but because the district court had previously ruled that the translator job was not similar to the translation manager job DerKevorkian occupied at the time of her green card application process, the jury was prohibited from considering whether acceptance of the translator job could be considered a mitigation of damages.Instruction No. 18. If you find that plaintiff, Isabelle DerKevorkian, has had damages then you must consider whether defendant, Lionbridge Technologies, Inc., has proved its affirmative defense of plaintiff‘s failure to mitigate or minimize damages. The plaintiff has a duty to take reasonable steps under the circumstances to mitigate or minimize her damages. Damages, if any, caused by the plaintiff‘s failure to take such reasonable steps cannot be awarded to the plaintiff. This affirmative defense is proved if you find the following has been proved by a preponderance of the evidence: Plaintiff did not take reasonable steps under the circumstances to find alternative employment.