Voller v. Gertz, No. 01CA2384.

• Docket Nº: No. 01CA2384.
• Citation: 107 P.3d 1129
• Case Date: December 30, 2004
• Court: Court of Appeals of Colorado

107 P.3d 1129

Brenda 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.

December 30, 2004.

107 P.3d 1130

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.

PICCONE, J.

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 testified 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

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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 of 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.

C.R.C.P. 51 provides that a party must "make all objections [to proposed instructions] before they are given to a jury," and only the grounds so specified shall be considered on appeal. If counsel fails to make a contemporaneous objection to the instructions given to the jury, and if errors are not brought to the attention of the trial court, they are deemed waived. Martin v. Minnard, 862 P.2d 1014 (Colo.App.1993).

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 § 8-4-114, Colo. Sess. Laws 1967, ch. 398, § 80-8-14 at 861 (repealed Colo. Sess. Laws 2003, ch. 286, § 2 at 1850) supports an award of fees to a defending party only when an "employee" brings a claim pursuant to the CWA and that, because the jury determined she was not an employee, Harmony was not entitled to attorney fees under § 8-4-114. In a related contention, Voller asserts the trial court erred in not awarding her attorney fees pursuant to § 8-4-114. We reject each contention in turn.

The relevant portions of § 8-4-114, in effect at the time, provided:

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 such action

107 P.3d 1132

shall include a reasonable attorney fee in favor of the winning party, to be taxed as part of the costs of the action.

A.

Section 8-4-114 provided that a reasonable attorney fee must be awarded to the "winning party" on a CWA claim. See Van Steenhouse v. Jacor Broad. of Colo., Inc., 958 P.2d 464, 466 n. 5 (Colo.1998). "The purpose of [§ 8-4-114 was] twofold, to indemnify the employee against the necessity of paying an attorney's fee when he is successful and to protect the employer against nuisance litigation." Hartman v. Freedman, 197 Colo. 275, 280, 591 P.2d 1318, 1322 (1979). "Thus, either the employee or the employer may be the winning party under the statute." Van Steenhouse, supra, 958 P.2d at 468. To qualify as a winning party, a litigant must receive some relief on the merits. Hartman, supra.

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.

"When 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 § 2-4-201, C.R.S.2004 (it is presumed the General Assembly, when enacting a statute, intended to make the entire statute effective). We should avoid an unreasonable interpretation or one that produces an absurd result. Rocky Mountain Animal Defense v. Colo. Div. of Wildlife, 100 P.3d 508 (Colo.App.2004).

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 employee. 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, § 8-4-114 would never support an award of attorney fees to a defendant, because a finding that a plaintiff did not recover under § 8-4-114 would always mean that it was not "necessary" to sue under the Wage Claim Act. See § 8-4-114 (stating that attorney fees should be awarded to the "winning party" "[w]henever it shall become necessary for an employee to commence a civil action for the recovery or collection of wages").

Accordingly, we read § 8-4-114 as permitting an award of attorney fees to the winning party, even if the claim is asserted by one who is found not to be an employee.

B.

Voller asserts the trial court 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

107 P.3d 1133

the date of her separation from Harmony. We disagree

"A motion for directed...