Brеnda M. VOLLER and BMV Consulting, Ltd., a Colorado corporation, Plaintiffs-Appellants and Cross-Appellees, v. David GERTZ; Harmony Group, Ltd., a Colorado corporation; and Sunshine Master Builders, Ltd., a Colorado corporation, Defendants-Appellees and Cross-Appellants.
No. 01CA2384.
Colorado Court of Appeals, Div. III.
Dec. 30, 2004.
1129, 1130, 1131, 1132, 1133, 1134, 1135, 1136, 1137
The order is affirmed, and the case is remanded to the trial court with directions to issue a corrected mittimus.
Judge CASEBOLT and Judge ROY concur.
Brenda M. Voller, Helena, Montana, for Plaintiffs-Appellants and Cross-Appellees.
Scott R. Larson, P.C., Scott R. Larson, Heather R. Hanneman, Denver, Colorado, for Defendants-Appellees and Cross-Appellants.
Plaintiffs, Brenda M. Voller and her wholly-owned company, BMV Consulting, Ltd., appeal the trial court‘s judgment entered on a jury verdict in favor of defendants, David Gertz, Sunshine Master Builders, Ltd., and Harmony Group, Ltd. Defendants cross-appeal the court‘s order awarding attorney fees to Voller and setting the amount of attorney fees awarded to them. We affirm in part, reverse in part, and remand.
Gertz is the sole shareholder of Sunshine, a home building business. Gertz founded Harmony to market homes built by Sunshine, which in return paid Harmony commissions.
In 1995, Voller started working for Harmony as a contractor and became a twenty percent shareholder while Gertz held the other eighty percent.
Harmony paid Voller‘s compensation to BMV. Voller supervised the real estate salespeople and controlled day-to-day operations at Harmony. Gertz tеstified that Voller kept her own hours, and he did not tell her how to do her work or where she needed to be while she was working.
Gertz further testified that in 1999, Voller failed to perform certain duties associated with managing Harmony. After Gertz informed Voller of these problems, Voller tendered her resignation. Subsequently, they negotiated a new compensation agreement, under which Gertz agreed to pay BMV $12,500 per month to manage Harmony‘s business.
By August 1999, Gertz was still not satisfied with Voller‘s performance. According to Gertz, Voller failed to perform management duties as required by the agreement.
In November 1999, Voller presented a request to Harmony for $37,500 for payment of her management services from September to November. Gertz refused to pay Voller the $37,500. In January 2000, Voller sent Gertz a letter demanding payment of her salary for September through December 1999 and her commission for the sale of several homes.
Voller and BMV filed a lawsuit against Gertz, his wife, Harmony, and Sunshine, alleging breach of contract, violation оf the Colorado Wage Act (CWA), breach of fiduciary duty, wrongful discharge, and conspiracy, and requesting the imposition of a constructive trust. Voller also asserted a shareholder derivative claim on behalf of Harmony. Defendants asserted counterclaims for breach of contract, breach of fiduciary duty, and conversion. The parties agreed to bifurcate the trial with regard to the claim for imposition of a constructive trust.
The jury found that Voller was an independent contractor, not an employee of Harmony, and found against her on her wage claim. The jury found in favor of BMV on its breach of contract claim and awarded $65,618.44 in damages. The jury found in favor of Harmony on its counterclaim against Voller for breach of fiduciary duty, awarding $1,000 in damages. The trial court declined to impose a constructive trust. This appeal followed.
I.
Voller contends the trial court erred in instructing the jury that: “An employing real estate broker is not an employee but an independent contractor as a matter of law.” As a remedy, Voller requests that the jury verdict on the breach of contract claim be “instead awarded and attributed to her as damages on her wage claim.” We decline to address this issue because Voller did not object to the instruction in the trial court.
Voller did not object to this instruction, but specifically stated that, as relevant here, the instructions were “agreed to.” Voller also said she had no objections to the final packet of instructions. Based upon our review of the record, we reject Voller‘s assertion that she objected to this instruction and so preserved this issue for appellate review.
Further, Voller did not argue in the trial court that the jury verdict on BMV‘s breach of contract claim be awarded to her as damages on her wage claim. Arguments not asserted in the trial court may not be raised for the first time on appeal. Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718 (Colo.1992).
II.
Voller asserts the trial court erred in awarding attorney fees to Harmony for defending her wage claim. Specifically, she contends that the former
The relevant portions of
Whenever it is necessary for an employee to commence a civil action for the recovery or collection of wages and penalties due as provided by [the former] sеctions 8-4-104 and 8-4-105, the judgment in such action
shall include a reasonable attorney fee in favor of the winning party, to be taxed as part of the costs of the action.
A.
Voller relies on Hyland v. Pikes Peak Capital Corp., 714 P.2d 914 (Colo.App.1985). In Hyland, a real estate salesman sued a company that he contended was his employer for recovery of commissions under the CWA. With no analysis, a division of this court concluded that because the real estate salesman was not an “employee,” attorney fees were not available to the defendant company. For the reasons stated below, we decline to follow Hyland.
“Whеn interpreting a statute, we attempt to implement the intent of the General Assembly. To discern that intent, we look first to the plain language of the statute and interpret statutory terms in accordance with their commonly accepted meanings.” People v. Rockwell, 104 P.3d 900, 2003 WL 23095487 (Colo.App. No. 02CA1812, Dec. 31, 2003).
We are also guided by general principles of statutory interpretation. See
Under Hyland, nonemployees, like Voller here, would have no disincentive for advancing unwarranted litigation under the CWA. This is contrary to the purpose of protecting the employer from nuisance litigation. Further, the statute provides for fees to be awarded to the “winning party.” The first clause of the statute, which refers to the commencement of a civil action, does not limit the award. The CWA necessarily assumes that a claim will be brought by an employеe. If, however, a plaintiff does not prevail because he or she is determined not to be an employee, the provision does not preclude an award of attorney fees to the winning defendant. By focusing on the use of the term employee, the Hyland division created a result that is not required by the statutory language and is at odds with the statute‘s purpose.
Further, if we were to read this provision as did the division in Hyland,
Accordingly, we read
B.
Voller asserts the trial cоurt erred in not awarding her attorney fees under the CWA. We disagree. Here, the jury determined Voller was an independent contractor, not an employee of Harmony, and ruled against her on all her claims under the CWA. Therefore, Voller was not the winning party.
III.
Voller contends the trial court erred in granting a directed verdict on her CWA penalty claim in favor of Harmony on the ground that she had not made a written demand for payment within sixty days from
“A motion for directed verdict should not be granted unless the evidencе compels the conclusion that reasonable jurors could not disagree and that no evidence or inference has been received at trial upon which a verdict against the moving party could be sustained.” Brossia v. Rick Constr., L.T.D. Liab. Co., 81 P.3d 1126, 1131 (Colo.App.2003). The trial court must review the evidence in the light most favorable to the nonmoving party. Brossia, 81 P.3d at 1131.
The relevant version of
If an employer refuses to pay wages or compensation in accordance with subsection (1) of this section upon request by the employee and without good faith legal justification for such refusal, the employer is liable to the employee [for a penalty] . . . . The employee or his designated agent shall make a written demand for the payment within sixty days from the date of separation . . . . Any employee or his designated agent who has not made a written demand for the payment within sixty days from the date of separation who has otherwise not been available to receive payment shall not be entitled to any such penalty under this subsection (3).
Colo. Sess. Laws 1986, ch. 65 at 505.
The record supports the triаl court‘s determination that Voller did not present evidence that she gave the requisite notice within sixty days of her separation from Harmony. Voller admits that she was terminated on November 9, 1999, and that she submitted a letter to Gertz demanding wages on January 28, 2000. Further, Voller cites no record support for her contention that she “presented evidence that she performed duties on behalf of Harmony during January [2000] and that Harmony accepted those services.” See Westrac, Inc. v. Walker Field, 812 P.2d 714, 718 (Colo.App.1991)(counsel must designate portions of the record that support the contention).
IV.
Voller asserts the trial court abused its discretion by not “directing payment of the judgment in the shareholder derivative claim” to her. We decline to review this contention because it was never presented to, considered by, or ruled upon by the trial court. See Estate of Stevenson v. Hollywood Bar & Cafe, Inc., supra.
Voller never requested the trial court to enter judgment on the derivative claim in favor of her or to “direct payment” on Harmony‘s judgment to her. The jury instructions and verdict form, to which Voller did not object, specifically stated that an award on the derivative claim would be entered in favor of Harmony.
V.
Voller contends the trial court erred in refusing to impose a constructive trust on the assets of Gertz and Sunshine. We disagree.
A constructive trust “arises in the presence of fraud, duress, abuse of confidence, or some other form of questionable or unconscionable conduct by which the trustee obtained property.” Timothy C. Wirt, M.D., P.C. v. Prout, 754 P.2d 429, 430 (Colo.App. 1988); see Whalen v. Shepler, 104 P.3d 243, 2004 WL 1211888 (Colo. App. No. 03CA0509, June 3, 2004). Therefore, a constructive trust is appropriate only if there has been wrongful conduct by the party charged with the trust. Wirt, supra, 754 P.2d at 430.
For the court to impose a constructive trust, there must be some property to which the trust attaches. See In re Marriage of Allen, 724 P.2d 651, 657 (Colo.1986)(property that is subject of trust must be traceable to lost property); Schmidt-Tiago Constr. Co. v. City of Colorado Springs, 633 P.2d 533 (Colo.App.1981); State v. Benjamin, 41 Colo.App. 520, 587 P.2d 1207 (1978) (refusing to impose constructive trust where plaintiff failed to trace property wrongfully taken to proceeds being claimed).
“A party attempting to set aside a transaction on equitable grounds is required to prove the truth of his contentiоns by a preponderance of the evidence,” which persuades the trier of fact that “the existence of the contested fact is more probable than not.” Ralston Oil & Gas Co. v. July Corp., 719 P.2d 334, 338 (Colo.App.1985).
At trial, Voller failed to present any evidence in support of her claim for a constructive trust. Following argument and briefing, the trial court declined to impose a constructive trust, making the following findings based on the evidence presented on Voller‘s other eight claims:
On or about April 11, 2000, Harmony approved [a] $200,000 payment to Sunshine for compensation for Davi[d] Gertz‘s consultant work. Subsequently, Harmony paid the money to Sunshine. Gertz th[e]n paid the operational expenses of Sunshine. The Court found Mr. Gertz‘s testimony credible that Sunshine was incurring additional expenses that normally would have been incurred by Harmony. The Court finds that no credible evidence was presented as to what specific expenses were рaid. There is no credible evidence where the money Harmony paid to Sunshine went or is currently located . . . . Finally, the Court cannot find any asset upon which to impose a constructive trust. The Plaintiff never presented evidence to answer the ultimate question of what asset is in effect to be attached . . . .
We reject Voller‘s and BMV‘s argument that the evidence and the jury‘s verdict required the trial court to impose a constructive trust and that it was not necessary for them to present evidence of any identifiable assets subject to the trust. See Schmidt-Tiago, supra. Moreover, to the extent that Voller relies on exhibits attached to her brief in making this argument, we cannot consider them, because they are not part of the record on appeal. See In re Marriage of Tagen, 62 P.3d 1092, 1096 (Colo.App.2002)(any facts not appearing in the record cannot be reviewed, and we presume material portions omitted from the record would support the judgment of the trial court).
Accordingly, the trial court was correct in not imposing a constructive trust.
VI.
On cross-appeal, Harmony, Gertz, and Sunshine contend the trial court erred in awarding attorney fees to Voller based on the judgment in favor of Harmony on the shareholder derivative claim. We agree.
Attorney fees are generally not recoverable in the absence of “a specific contractual, statutory, or procedural rule providing otherwise.” Waters v. Dist. Court, 935 P.2d 981, 990 (Colo.1997).
Here, the trial court awarded $7,676.14 in attorney fees to Voller “in her capacity as a shareholder of Harmony.” The fact Voller pursued a derivative claim on behalf of Harmony does not entitle her to an award of attorney fees. The court‘s award of attorney fees was not premised on “a contractual, statutory, or procedural rule.” See Waters, supra.
In Van Schaack Holdings, Ltd. v. Fulenwider, 768 P.2d 740 (Colo.App.1988), aff‘d, 798 P.2d 424 (1990), a shareholder brought a derivative action against a property manager on behalf of a corporation. A division of this court concluded that because the trial court‘s award was not premised on any “contractual, statutory, or procedural rule,” Van Schaack, supra, 768 P.2d at 743, an award of attorney fees was improper. We reach the same conclusion here.
We reject Voller‘s contention that Collie v. Becknell, 762 P.2d 727 (Colo.App.1988), supports the trial court‘s award of attorney fees to her. The Collie division merely stated that “[a]n award of attorneys fees may be justified in a derivative action.” Collie, supra, 762 P.2d at 732 (emphasis added). The division did not, however, specify situations in which such an award may be justified. Notwithstanding the comment in Collie, an award of attorney fees still must be based on a contractual, statutory, or procedural rule. Therefore, the award to Voller cannot stand.
VII.
Harmony, Gertz, and Sunshine also contend the trial court abused its discretion in awarding them attorney fees in the amount of $7,676.14. We agree.
“The determination of the reasonableness of . . . attorney fees is a question of fact for the trial court and will not be disturbed on appeal unless patently erroneous and unsup-
Here, the court awarded attorney fees to Gertz and Harmony as the winning parties under the former
The trial court held Gertz, Harmony, and Sunshine did not meet their burden of proof that eighty percent of their time was spent on this issue, but nonetheless awarded them “the same amount of money per claim as was awarded to Voller.”
We conclude this was an abuse of discretion. Merely awarding to Gertz and Harmony the same amount awarded to Voller on a different claim was arbitrary and not based on any attempt to determine the reasonableness of the fees requested by Gertz and Harmony. See City of Wheat Ridge v. Cerveny, 913 P.2d 1110, 1115 (Colo.1996) (setting forth factors to consider in determining the reasonableness of attorney fees). Even if we assume the affidavit was not sufficient, it was still incumbent upon the trial court to determine the attorney fees attributable to the wage claim.
Accordingly, the judgment is reversed as to the award of attorney fees to Voller and as to the amount of attorney fees awarded to Gertz and Harmony, and the case is remanded to the trial court for a finding as to the allocation of attorney fees based on the evidence previously submitted to the court. In all other respects, the judgment is affirmed.
Judge VOGT concurs.
Judge TAUBMAN concurs in part and dissents in part.
Judge TAUBMAN specially concurring in part and dissenting in part.
Although I concur with most of the majority‘s opinion, I write separately to dissent from the majority‘s analysis in Parts II and VII. Specifically, I believe that Hyland v. Pikes Peak Capital Corp., 714 P.2d 914 (Colo.App.1985), correctly hеld that the former attorney fees provision of the Wage Claim Act, the former
In Hyland, a division of this court concluded that a real estate salesman was not an employee and thus, attorney fees could not bе awarded to the defendant company. Although the Hyland decision has sparse reasoning, I believe that the division nevertheless reached the proper conclusion.
As the majority notes, this appeal concerns a dispute between plaintiff, Brenda M. Voller, and her wholly owned company, BMV Consulting, Ltd., and three defendants, including Harmony Group, Ltd. Although the jury found in favor of BMV on its breach of contract claim and awarded it over $65,000 in damages, the jury also found that Voller was an independent contractor, not an employee of Harmony. Thus, the jury found against Voller on her wage claim and the court awarded attorney fees to Harmony under the former
To consider whether the former
Whenever it is necessary for an employee to commence a civil action for the recovery or collection of wages and penalties due as provided by [the former] sections 8-4-104 and 8-4-105, the judgment in suсh action shall include a reasonable attorney fee in favor of the winning party, to be taxed as part of the cost of the action.
When construing a statute, the court must ascertain and give effect to the intent of the General Assembly. State v. Nieto, 993 P.2d 493 (Colo.2000). To discern that intent, we must first examine the plain language of the statute. United Airlines, Inc. v. Indus. Claim Appeals Office, 993 P.2d 1152 (Colo. 2000). In so doing, words and phrases
First, the plain language of the former
Also, it is immaterial that the former
The jury here specifically found that Voller was not an employee. The parties do not dispute this factual finding. Accordingly, under Hyland and the plain language of the statute, Harmony is not entitled to an award of attorney fees under the former
Further, the legislature is presumed, in amending a previously construed statute without changing the portion that was construed, to have accepted and ratified the prior judicial construction. See Vaughan v. McMinn, 945 P.2d 404, 409 (Colo.1997); Tompkins v. DeLeon, 197 Colo. 569, 571, 595 P.2d 242, 243–44 (1979)(“When the legislature reenacts or amends a statute and does not change a section previously interpreted by settled judicial construction, it is presumed that it agrees with judicial construction of the statute.“).
Significantly, when the General Assembly adopted a comprehensive modification of the Wage Claim Act in 2003, it limited and revised the attorney fees provision, but did not modify its applicability to employers and employees. Under
Contrary to the majority‘s decision, I do not believe that Hyland leads to an unwarranted result. Although it is true that the Wage Claim Act is intended in part to protect an employer against nuisance litigation, see Hartman v. Freedman, 197 Colo. 275, 591 P.2d 1318 (1979), there is no suggestion here that Voller‘s Wage Claim Act litigation was in that category. Rather, Voller and her wholly owned company had an unusual and сomplicated relationship with the defendants, leading to various claims, and on one claim brought by BMV, BMV obtained a judgment of more than $65,000. Further, it is difficult to conceive that one who is not actually an employee would bring a claim under the Wage Claim Act against a putative employer for nuisance purposes, without otherwise running the risk of sanctions for frivolous and groundless litigation under either
Finally, if the concern about nuisance litigation resulting from application of Hyland were indeed substantial, the General Assembly could have amended the statute long ago to overrule that decision legislatively.
The majority also suggests that the Hyland division‘s interpretation of
For these reasons, I would reverse the trial court‘s award of attorney fees to Harmony for defending against Voller‘s wage claim. For the same reason, I would conclude in part IIB that Voller was not entitled to attorney fees under the Wage Claim Act, because she was not an employee. Finally, based on this analysis, I would not address the amount of attorney fees to which Harmony is entitled under the Wage Claim Act, because, in my view, it is not entitled to any attorney fees.
Rose REYES, Plaintiff-Appellant, v. Keven M. McCARLEY, Defendant-Appellee.
No. 03CA1149.
Colorado Court of Appeals, Division IV.
Dec. 30, 2004.
Law Office of Richard K. Blundell, Richard K. Blundell, Greeley, Colorado, for Plaintiff-Appellant.
Wick Bramer Ukasick & Trautwein, LLC, Kеnt N. Campbell, Kimberly B. Schutt, Fort Collins, Colorado, for Defendant-Appellee.
Opinion by Judge KAPELKE.
In this personal injury action, plaintiff, Rose Reyes, appeals the order dismissing her claims against defendant, Keven M. McCarley, for failure to prosecute. We reverse and remand for further proceedings.
Plaintiff filed her complaint in January 2002, alleging that she was injured in a car accident negligently caused by defendant. Defendant was served with the complaint and thereafter filed his answer. In May 2002, defendant filed a notice that he had filed for Chapter 7 bankruptcy, which triggered the automatic stay of all proceedings, including this action.