Technical Computer Services, Inc. v. Buckley

• Decision Date: 30 July 1992
• Docket Number: No. 90CA1932,90CA1932
• Citation: 844 P.2d 1249
• Parties: TECHNICAL COMPUTER SERVICES, INC., Plaintiff-Appellant and Cross-Appellee, v. James BUCKLEY, Defendant-Appellee and Cross-Appellant. . II
• Court: Colorado Court of Appeals

Page 1249

844 P.2d 1249

TECHNICAL COMPUTER SERVICES, INC., Plaintiff-Appellant and Cross-Appellee, v. James BUCKLEY, Defendant-Appellee and Cross-Appellant.

No. 90CA1932.

Colorado Court of Appeals Div. II.

July 30, 1992.

Rehearing Denied Aug. 27, 1992.

Certiorari Denied Feb. 16, 1993.

Stutz, Dyer & Miller, Paul G. Urtz, Denver, for plaintiff-appellant and cross-appellee.

Marshall D. Brodsky, Denver, for defendant-appellee and cross-appellant.

Opinion by Judge HUME.

Plaintiff, Technical Computer Services, Inc. (TCSI), appeals from a judgment entered on a jury verdict in favor of defendant, James Buckley, on his counterclaim for abuse of process. Defendant cross-appeals the amount awarded to him pursuant to the jury's verdicts in his favor on his counterclaims for breach of contract, for compensation and penalty due upon his termination pursuant to § 8-4-101, et seq., C.R.S. (1986 Repl.Vol. 3B) (Wage Act), and for damages on his claim of abuse of process. We affirm in part, reverse in part, and remand with directions.

Buckley was hired by TCSI under a written one-year employment contract. After his discharge by TCSI during the contract term, Buckley filed a complaint in county court seeking the next installment of pay due to him under the employment contract, plus an amount he claimed was fully earned and owed to him at the time of his termination, together with the penalty provided by § 8-4-104, C.R.S. (1986 Repl.Vol. 3B).

Alleging that it possessed claims against Buckley arising from the employment relationship between the parties that exceeded the then existing $5,000 jurisdictional limit of the county court, TCSI filed suit asserting those claims in the district court and requested transfer of the county court proceedings for consolidation in the district court action pursuant to C.R.C.P. 313(b)(1). TCSI's district court complaint included claims for Buckley's breach of the employment contract, for fraudulent misrepresentation, and conversion.

Upon consolidation, Buckley was aligned as a party-defendant, and his original Wage Act claim and his added claims for breach of employment contract and abuse of process were designated as counterclaims in the district court proceedings. All issues save one, were determined by the jury. The amount of damages on defendant's abuse of process counterclaim was determined by the court after a separate hearing was held on that issue.

I.

TCSI contends that the trial court erred in denying its pretrial motion for dismissal or for summary judgment and its subsequent motion for directed verdict as to the abuse of process counterclaim. We disagree.

A.

The denial of a motion for summary judgment is an interlocutory, non-final ruling which may not be reviewed on appeal after trial and entry of final judgment. Manuel v. Fort Collins Newspapers, Inc., 631 P.2d 1114 (Colo.1981); Southerland v. Argonaut Insurance Co., 794 P.2d 1102 (Colo.App.1990).

Similarly, any errors asserted concerning a trial court's ruling denying a motion to dismiss for failure to state a claim are capable of preservation for review on appeal by other means. To the extent that such issues are not so preserved, they are deemed to have been waived.

Here, for example, the issue presented by TCSI's motion to dismiss was preserved by its later motion for directed verdict. Thus, the trial court's denial of TCSI's pretrial motion is not reviewable on appeal.

B.

We also reject TCSI's contention that the trial court erred in denying its motion for directed verdict on the abuse of process counterclaim. That contention was premised upon an argument that the law requires evidence of an overt wrongful act in addition to initiation of abusive legal process. We reject the premise that an additional overt wrongful act is an essential element of an abuse of process tort claim.

The assertion of "sham" claims or defenses as a means of improperly interfering with another person's right to petition or to pursue legitimate claims in judicial proceedings may constitute actionable abuse of legal process. To succeed in such an action, the party asserting abuse of process must show: (1) that the other party's petitioning activities (claims or defenses) are devoid of factual support or, if supportable in fact, have no basis in law; (2) the primary purpose of such activities is to harass the claimant or to effectuate some other improper objective; and (3) such "sham" activities adversely affect the legal interest of the abuse of process claimant. Concerned Members of Intermountain Rural Electric Ass'n v. District Court, 713 P.2d 923 (Colo.1986); Protect Our Mountain Environment, Inc. v. District Court, 677 P.2d 1361 (Colo.1984); Ware v. McCutchen, 784 P.2d 846 (Colo.App.1989). If such elements are present, no additional overt wrongful act need be shown in order to sustain a claim for abuse of process.

In reviewing a trial court's ruling on a motion for directed verdict, the evidence must be considered in a light most favorable to the party against whom such relief is requested. Hildyard v. Western Fasteners, Inc., 33 Colo.App. 396, 522 P.2d 596 (1974). And, when a party makes out a prima facie case, even though the facts are in dispute, it is for the jury, rather than the court, to resolve the conflict. Romero v. Denver & Rio Grande Western Ry. Co., 183 Colo. 32, 514 P.2d 626 (1973).

Here, Buckley alleged in his counterclaim that TCSI's claims were baseless and without any foundation in fact and that they were asserted as a sham for the purpose of hindering, harassing, and delaying the pursuit of his legitimate claims under the employment contract and the Wage Act through appropriate court proceedings. He offered affidavits tending to support the "sham claim theory" in response to TCSI's motion for summary judgment, and he offered further evidentiary support for this claim through testimony presented at trial.

Therefore, we perceive no error in the trial court's denial of TCSI's motion for directed verdict.

II.

A.

On cross-appeal, Buckley contends that the damages award on his counterclaim under the Wage Act must be reversed because the court submitted an improper verdict form for the jury's use in determining that issue. We disagree.

Section 8-4-104(1), C.R.S. (1986 Repl.Vol. 3B) provides that if an employee is terminated by the employer "the wages or compensation for labor or service earned and unpaid at the time of such discharge is due and payable immediately." If the employer refuses to pay wages due an employee as required by the statute and does so without a good faith legal justification, the employer is liable to the employee for a 50% penalty on all unpaid wages. See §§ 8-4-104(1) and 8-4-104(3), C.R.S. (1986 Repl.Vol. 3B).

Here, the court instructed the jury, in language which tracked the statute, as to the elements which must be proved in order for defendant to receive the penalty. Buckley made no contemporaneous objection to the elemental instruction and has also conceded its correctness on appeal.

On appeal, Buckley argues that the verdict form was erroneous because it required the jury to determine damages rather than the amount of wages which were unpaid on the date of his termination. At trial, although Buckley did tender a multi-purpose verdict form which contained, among other things, the language he now asserts to be appropriate, he has not provided a record contemporaneous with that tender demonstrating the basis of the trial court's ruling in rejecting it. Hence, we deem the record insufficient to warrant reversal. See Kennedy-Fudge v. Fink, 644 P.2d 91 (Colo.App.1982).

Moreover, Buckley's contention of error is based on the mere semantics of the verdict form. We decline to reverse a jury verdict based on a legally correct instruction, even though the verdict form itself might have been more appropriately worded. See Stephens v. Koch, 192 Colo. 531, 561 P.2d 333 (1977).

Here, the jury was properly instructed that the statute requires that compensation earned and unpaid at the time of discharge is due and payable upon termination. If the jury followed this instruction correctly, which we presume it did, People v. Moody, 676 P.2d 691 (Colo.1984), it logically would have equated the amount of unpaid wages with the amount of plaintiff's damages. Furthermore, assessment of the amount of the monetary award is the exclusive province of the jury, and it is only in the clearest of cases that its award will be overturned on review. Martin v. Bralliar, 36 Colo.App. 254, 540 P.2d 1118 (1975).

B.

Buckley next contends that the trial court erred in denying two of his motions in limine. We agree in part.

1.

Buckley's first motion in limine requested that, by virtue of the collateral source rule, no evidence of his receipt of unemployment compensation benefits should be admitted. He also contends that the court erred in instructing the jury to deduct any benefits received from unemployment compensation from damages assessed for TCSI's breach of the employment contract. We agree.

The collateral source rule provides that recoverable damages are not diminished because the injured party has been wholly or partially indemnified or compensated for his loss by insurance effected by him and to which the wrongdoer did not contribute. Powell v. Brady, 30 Colo.App. 406, 496 P.2d 328 (1972), aff'd, 181 Colo. 218, 508 P.2d 1254 (1973).

The collateral source rule is often identified with tort cases, and indeed, the codification of the collateral source rule relates specifically to torts. Section 13-21-111.6, C.R.S. (1987 Repl.Vol. 6A). However, the common law collateral source rule is equally applicable to contract actions. See Coleman v. United Fire & Casualty Co., 767 P.2d 761 (Colo.App.1988); Fleming, The Collateral Source Rule and Contract Damages, 71 Cal.L.Rev. 56 (1983).

We have refused to apply the collateral source rule to gratuitous benefits received by plaintiffs from governmental sources. Gomez v....