Maltby v. J. F. Images, Inc., 80CA0922
| Decision Date | 06 August 1981 |
| Docket Number | No. 80CA0922,80CA0922 |
| Citation | 632 P.2d 646 |
| Parties | Phyllis MALTBY, Plaintiff-Appellee, v. J. F. IMAGES, INC., a Colorado Corporation, Defendant-Appellant. . II |
| Court | Colorado Court of Appeals |
Worstell & Wyatt, Louis A. Weltzer, Denver, for plaintiff-appellee.
Howard J. Glicksman, Denver, for defendant-appellant.
Defendant, J. F. Images, Inc., appeals from a judgment in favor of plaintiff, Phyllis Maltby, in an action for breach of an employment contract. Although defendant now contends that the trial court erred in not finding that impossibility of performance discharged its duty to perform the requirement for a termination notice specified in the contract, its motion for new trial did not address this; therefore, we do not consider it. C.R.C.P. 59(f); Fort Lupton State Bank v. Murata, Colo.App., 626 P.2d 757 (1981). However, we do agree with defendant that the measure of damages used by the trial court was erroneous and, therefore, reverse on this issue.
The material facts pertinent to our resolution of the damages issue are, with the exception noted below, essentially undisputed. Plaintiff began her employment as fashion director for defendant on June 4, 1979, at a salary of $1,000 per month. The parties entered into a written agreement which provided for one-year employment to be self-renewing at the beginning of each calendar year. It further provided that either party "shall have the right to terminate this Agreement upon ten (10) days' notice, in writing, given to the other party by certified mail, return receipt requested."
Plaintiff testified that defendant's president orally and summarily terminated her on June 12; defendant presented testimony to the effect that the date of termination was June 11. Plaintiff performed no further services for defendant subsequent to this termination. She received one paycheck for the period June 4 including June 11, 1979, computed at a daily rate of pay of $45.45.
Plaintiff initiated the present action on August 2, 1979, alleging that her employment with defendant had not been terminated because she had not received the notice specified in the contract and seeking compensation until such time as there had been compliance with the notice provisions. Thereafter, on August 3, defendant sent plaintiff a letter by regular mail to an address furnished by plaintiff in mid-June advising her of the termination of her employment as of June 11. Defendant's president stated in the letter and testified at trial that written notice of termination was not sent earlier because plaintiff did not furnish defendant with a mailing address. At trial, plaintiff conceded that the August 3 letter could be considered to have terminated the contract, entitling plaintiff, as an alternative to continuing compensation, to two months' salary.
Based on evidence that one or more addresses were known to defendant to which it could have attempted to send notice, the trial court found that defendant's performance with respect to the notice requirement of the contract was not excused. It awarded damages for two months' salary in the amount of $2,000, with interest commencing August 13, 1979, ten days from the date of written notice of termination.
On this appeal, the parties agree that the proper measure of damages in the event of a notice effective to terminate an employment contract but not in compliance with the notice provisions of the contract is compensation for the stipulated notice period. Plaintiff maintains that the trial court properly found that the only effective notice here was the letter of August 3, and that its award of damages based on that finding was correct. Defendant argues that plaintiff is limited to damages amounting to only what she would have earned during the ten-day notice period from the date of actual notice in June. The issue which we must...
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Medina v. State, No. 00SC747.
...evidence was not in dispute, and thus, trial court's conclusion was the product of statutory interpretation); Maltby v. J.F. Images, Inc., 632 P.2d 646, 648 (Colo.App.1981) (in determination of jurisdiction under C.R.C.P. 12(b)(1), the trial court's interpretation of the term "public" as us......
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Beal Corp. Liquidating Trust v. Valleylab, Inc., Civil Action No. 94-B-2480.
...effectively and properly terminates a contract that expressly calls for written notice under Colorado law, see Maltby v. J.F. Images, Inc., 632 P.2d 646 (Colo.App.1981), Valleylab fails to produce any evidence that it gave Beacon proper oral notice. Valleylab relies on the testimony of Jame......
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...May 11, 1988. Generally, courts have given little practical effect to requirements of written notice. See, e.g., Maltby v. J.F. Images, Inc., 632 P.2d 646 (Colo.Ct.App.1981) (Under employment contract providing from ten days written notice, employee who received oral notice followed by writ......
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...written notice of termination, was entitled to ten days compensation from the date of oral actual notice. E.g., Malby v. J.F. Images, Inc., 632 P.2d 646 (Colo.Ct. App.1981). The reason for this rule is simple; the usual purpose of a notice provision in an employment contract is to give the ......
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Fire at Will the Status of Judicially Created Exceptions to Employment-at-will in Kansas
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