Carruthers v. Carrier Access Corp..

• Decision Date: 28 October 2010
• Docket Number: No. 09CA2138.,09CA2138.
• Citation: 251 P.3d 1199,16 Wage & Hour Cas.2d (BNA) 1553
• Parties: Philip CARRUTHERS, Plaintiff–Appellant,v.CARRIER ACCESS CORPORATION and Turin Networks, Inc., Defendants–Appellees.
• Court: Colorado Court of Appeals

251 P.3d 1199

16 Wage & Hour Cas.2d (BNA) 1553

Philip CARRUTHERS, Plaintiff–Appellant,

v.CARRIER ACCESS CORPORATION and Turin Networks, Inc., Defendants–Appellees.

No. 09CA2138.

Colorado Court of Appeals, Div. III.

Oct. 28, 2010.

Cross & Liechty, P.C., Robert M. Liechty, Greenwood Village, CO, for Plaintiff–Appellant.Evans & McFarland, LLC, J. Lucas McFarland, Golden, CO; Hartman Employment Law Practice, LLC, Amy Hartman, Boulder, CO, for Defendants–Appellees.Opinion by Judge J. JONES.

Does section 8–4–110(1), C.R.S.2010, of the Colorado Wage Claim Act, sections 8–4–101 to –123, C.R.S.2010 (the Wage Act), allow a court to award attorney fees to an employer that prevailed on an employee's Wage Act claim only if the employee's claim was frivolous? We hold that it does not: the court may make such an award in its discretion even if the claim was not frivolous. Therefore, we affirm the district court's order directing plaintiff, Philip Carruthers, to pay attorney fees to prevailing defendants, Carrier Access Corporation and Turin Networks, Inc. (collectively, Carrier). ¹ However, the district court did not adequately explain how it calculated its award of fees to Carrier, and therefore we remand the case to the district court for additional findings regarding the appropriate amount. Finally, we affirm the district court's awards of certain items of costs Mr. Carruthers challenges on appeal.

I. Background

Mr. Carruthers sued Carrier, claiming that Carrier violated section 8–4–109 of the Wage Act by failing to pay him commissions totaling approximately $210,000 owed under a written agreement when Carrier terminated his employment. He also asserted claims for breach of contract and unjust enrichment. At trial, the court directed a verdict in Carrier's favor on Mr. Carruthers' claim under the Wage Act. The jury found in Carrier's favor on Mr. Carruthers' other claims.

Carrier moved for an award of attorney fees under section 8–4–110(1) and section 13–17–101, C.R.S.2010, requesting an award of all the fees it had incurred in the case, totaling $140,442.55. Carrier argued, in part, that all of Mr. Carruthers' claims were essentially based on section 8–4–109, C.R.S.2010. Carrier filed a separate bill of costs pursuant to section 13–16–122, C.R.S.2010, seeking a total award of $6,595.72.

Following a hearing, the court found that an award of fees under section 8–4–110(1) was appropriate. Noting that Mr. Carruthers' Wage Act claim was “partially intertwined” with his other claims, the court concluded “in its discretion that an award of 67.5% of Defendants' total attorney fees is fair and will serve the interests of justice....” The court did not explain further its reasons for concluding that $94,798.72 (67.5% of $140,442.55) was a reasonable amount. It denied Carrier's requests for certain “witness travel and sustenance expenses” as costs, but otherwise allowed the costs Carrier requested.

Subsequently, the court reduced the attorney fee award under section 8–4–110(1) to $34,000.² The court's order provided in full as follows:

The court has carefully reviewed its Findings and Order of the September 2, 2009 hearing. Findings were made on the issues of costs and attorney's fees pursuant to the Colorado Wage Claim Act. [B]ased on the findings made at that time the court has reconsidered the attorney's fee award.

Having reconsidered the earlier award and in the exercise of the court's discretion the award of fees i[s] reduced to $34,000. The award for costs remains the same.

Mr. Carruthers does not appeal the court's directed verdict against him on his Wage Act claim. Nor does he appeal the jury's verdicts against him on his other claims. He challenges only the court's award of attorney fees under section 8–4–110(1) and the court's awards of certain items as costs.

II. Interpretation of Section 8–4–110(1)

The Wage Act allows an employee who has been terminated from employment to sue his former employer for earned wages and other compensation the employer has refused to pay. § 8–4–109. An employee's right to recover under the Wage Act is conditioned on his compliance with certain procedural steps, but if the employee complies with those steps and the employer refuses to pay, the employee may recover penalties in addition to the unpaid compensation. Id.

Section 8–4–110(1) allows the court to award costs and attorney fees to the party that prevailed on a Wage Act claim. As amended in 2007, and applicable here, that section provides:

Disputes—fees. (1) If, in any action, the employee fails to recover a greater sum than the amount tendered by the employer, the court may award the employer reasonable costs and attorney fees incurred in such action when, in any pleading or other court filing, the employee claims wages or compensation that exceed the greater of seven thousand five hundred dollars in wages or compensation or the jurisdictional limit for the small claims court, whether or not the case was filed in small claims court or whether or not the total amount sought in the action was within small claims court jurisdictional limits. If, in any such action in which the employee seeks to recover any amount of wages or compensation, the employee recovers a sum greater than the amount tendered by the employer, the court may award the employee reasonable costs and attorney fees incurred in such action. If an employer fails or refuses to make a tender within fourteen days after the demand, then such failure or refusal shall be treated as a tender of no money for any purpose under this article.

(Emphasis added.)

In opposing Carrier's motion for attorney fees under section 8–4–110(1), Mr. Carruthers argued that the statute only allows an award of fees to a prevailing employer if the employee's claim was frivolous, and that his claim was not frivolous. The district court rejected that argument because it awarded fees to Carrier but declined to find that Mr. Carruthers' claim was frivolous. (The court struck the language in the proposed order submitted by Carrier indicating that the award would deter “nuisance litigation ... by Plaintiff,” but did not otherwise change the order before signing it.) Mr. Carruthers contends on appeal that the district court erred in rejecting his argument.

We observe at the outset that section 8–4–110(1) includes the same operative language with respect to awards of attorney fees to both employers and employees—“the court may award the [employer or employee] reasonable costs and attorney fees incurred in such action.” Nonetheless, Mr. Carruthers argues that a prevailing employer is entitled to an award of attorney fees only if the court determines that the employee's claim was frivolous, but that a prevailing employee's request for attorney fees need not clear the same hurdle. That is, a prevailing employee is entitled to an award merely by virtue of having prevailed (so long as the employee recovers more than the employer tendered). He suggests no textual basis for this differing treatment. Rather, he argues that this result is consistent with the purposes of the statute and certain legislative history.

Mr. Carruthers' argument presents a question of statutory interpretation. We review such questions de novo. Foiles v. Whittman, 233 P.3d 697, 699 (Colo.2010); see also Madison Capital Co., LLC v. Star Acquisition VIII, 214 P.3d 557, 560 (Colo.App.2009) (“We review de novo the legal analysis employed by the trial court in reaching its decision to award attorney fees.”).

Our goals in interpreting a statute are to discern and give effect to the General Assembly's intent. Ceja v. Lemire, 154 P.3d 1064, 1066 (Colo.2007); Premier Farm Credit, PCA v. W–Cattle, LLC, 155 P.3d 504, 513 (Colo.App.2006). We first look to the statute's language, giving words and phrases therein their plain and ordinary meanings. Ceja, 154 P.3d at 1066; Bd. of County Comm'rs v. Costilla County Conservancy Dist., 88 P.3d 1188, 1193 (Colo.2004). And we also consider the statute as a whole so that we may give consistent, harmonious, and sensible effect to all of its parts. Costilla County Conservancy Dist., 88 P.3d at 1192; Premier Farm Credit, 155 P.3d at 513. If, after doing this, we determine that the statute is unambiguous, we will enforce it as written and not apply other rules of statutory construction. Ceja, 154 P.3d at 1066; Costilla County Conservancy Dist., 88 P.3d at 1193; Bd. of County Comm'rs v. ExxonMobil Oil Corp., 192 P.3d 582, 585 (Colo.App.2008), aff'd, 222 P.3d 303 (Colo.2009). If, however, we determine that the statute is ambiguous in some material way, we may look to extrinsic evidence of legislative intent, including, for example, prior law, legislative history, the consequences of a particular construction, and the goal of the statutory scheme. Costilla County Conservancy Dist., 88 P.3d at 1193; see § 2–4–203, C.R.S.2010.

A. Plain Language

We perceive no material ambiguity in section 8–4–110(1). It plainly says that a court “may” award costs and attorney fees to a prevailing employer or employee, subject to no qualification other than those pertaining to the amount of the employer's tender, the amount of the employee's recovery, and, in cases where the employer prevails, the amount sought by the employee. Though the statute does not define “may,” we see nothing in the text of the statute indicating that it should be given a meaning different from that ordinarily attributed to it. See ExxonMobil Oil Corp., 192 P.3d at 586 (where a term is not defined in a statute, it should be given its usual and ordinary meaning); Premier Farm Credit, 155 P.3d at 513 (same; also noting that a term must be considered in context). Read in context, the General Assembly's use of the term “may” in section 8–4–110(1) clearly indicates a grant of discretion. See People v. Triantos, 55 P.3d 131, 134 (Colo.2002) (“The legislature's use of the term ‘may’ is indicative of a grant of discretion or choice among...