& 23CA0663 Duran v. Montoya
& 23CA0663 Duran v. Montoya
& 23CA0663 Duran v. Montoya
Opinion
22CA2186 & 23CA0663 Duran v Montoya 06-27-2024
COLORADO COURT OF APPEALS
Court of Appeals Nos. 22CA2186 & 23CA0663
Larimer County District Court No. 20CV30843
Honorable Joseph D. Findley, Judge
Joseph Duran,
Plaintiff-Appellee,
v.
Jaclyn Montoya, John Kosmicki, and Kosmicki Investment Services, LLC,
Defendants-Appellants.
JUDGMENT AND ORDERS AFFIRMED
Division V
Opinion by JUDGE BROWN
Johnson and Taubman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 27, 2024
Randall J. Paulsen & Associates P.C., Randall J. Paulsen, Lafayette, Colorado,
for Plaintiff-Appellee
Peters Schulte Odil & Wallshein LLC, Jennifer Lynn Peters, Nathaniel
Wallshein, Loveland, Colorado, for Defendants-Appellants
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
1
¶ 1 Defendants, Kosmicki Investment Services, LLC (KIS), Jaclyn
Montoya, and John Kosmicki, appeal the jury verdicts entered in
favor of plaintiff, Joseph Duran. Defendants also appeal the district
court’s awards of costs and prejudgment interest. We affirm.
I. Background and Procedural History
¶ 2 KIS is an independent financial services firm, originally formed
by Kosmicki in 1997. Montoya began working for the company in
2006 and became a member in 2019. In September 2018, Duran
joined KIS.
¶ 3 On September 1, 2020, Montoya sent Duran a letter with the
subject line “Employment Relationship with Kosmicki Investment
Services, LLC,” stating that Duran’s “at-will employment” was
terminated effective August 21. Attached to the termination letter
was a memo defendants characterized as a “draft Employment
Offer,” which was titled “Payout to [Duran] for the first 12 months”
and included terms regarding Duran’s expected business generation
and the parties’ sharing of expenses and commissions.
¶ 4 In December 2020, Duran sued defendants, asserting claims
for (1) breach of contract against Montoya and Kosmicki based on a
2
violation of an alleged partnership agreement;
1
(2) breach of
fiduciary duty against Montoya and Kosmicki; and (3) liability
arising from agency against KIS. Duran alleged that he had joined
KIS as a partner and had formed an oral partnership with Montoya
and Kosmicki. He further alleged that he, Montoya, and Kosmicki
had agreed to equally divide profits, commissions, and expenses
beginning a year after he joined KIS. He claimed that Montoya and
Kosmicki breached the partnership agreement by denying that a
partnership had ever been formed and terminating him as an at-will
employee. And he claimed that he suffered damages because of the
breach, including the value of unpaid and deferred commissions
“wrongfully withheld by the [d]efendants.”
¶ 5 Defendants denied Duran’s allegations, claiming that Duran
was always an at-will employee and never a partner. Defendants
filed counterclaims for (1) declaratory judgment; (2) mandatory
injunction; (3) conversion; (4) civil theft; and (5) unjust enrichment,
1
Duran originally filed a breach of contract claim against all three
defendants based on a violation of the alleged partnership
agreement, but by the time of trial, he asserted that claim only
against Montoya and Kosmicki individually.
3
premised on their allegation that Duran continued to receive funds
he was not entitled to after his termination.
¶ 6 Duran amended his complaint in August 2021, adding two
alternative claims against KIS for failure to pay wages in the event a
jury determined he had been an at-will employee.
¶ 7 A five-day jury trial began on March 7, 2022. During trial,
Duran withdrew his claim for breach of fiduciary duty against
Montoya and Kosmicki and his claim for liability based on agency
against KIS. As reflected in the arguments and evidence presented
at trial, Duran’s remaining claims against Montoya and Kosmicki
included an alleged breach of their agreement that when Kosmicki
turned seventy, Montoya would split her trail commissions
2
equally
with Duran for a period of five years. On the third day of trial,
2
The parties do not agree on the definition of trail commissions,
and we are unable to discern from the record precisely what trail
commissions are in the context of this case. At oral argument,
counsel for Duran represented that trail commissions are earned
but deferred compensation, not future income of the partnership,
although he acknowledged that certain future conditions must be
met for the commissions to be paid. Counsel for defendants
represented that trail commissions are future income, not earned
but deferred compensation, which are paid only if certain
conditions are met. Our disposition does not require that we
resolve this dispute.
4
defendants moved for a directed verdict under C.R.C.P. 50 on
Duran’s remaining claims. The district court directed a verdict
against Duran on his two wage-based claims against KIS but denied
defendants’ motion as to the breach of contract claim.
¶ 8 The jury returned a verdict in favor of Duran on his breach of
contract claim against Montoya and Kosmicki and awarded him
$477,952.50 in damages. The jury also found against defendants
on their counterclaims of conversion and civil theft.
3
¶ 9 After trial, defendants moved for judgment on their remaining
counterclaims. The court issued a written order declaring
defendants’ counterclaims for declaratory judgment and mandatory
injunction moot in light of the jury’s verdict. But the court
determined that it was unjust for Duran to retain trail commissions
generated after the partnership was dissolved. The court found that
the partnership was dissolved when the defendants claimed to have
terminated Duran’s employment. After a damages hearing, the
3
We note that the jury verdict only identifies Montoya and Kosmicki
as the defendants who brought the counterclaims, but the district
court’s final judgment was entered against all three defendants on
their counterclaims.
5
court determined that Duran owed defendants $2,396.99 on their
claim for unjust enrichment.
¶ 10 Defendants filed a post-trial motion for a judgment
notwithstanding the verdict (JNOV) or a new trial under C.R.C.P.
59, arguing that a partner has a statutory right to dissociate for any
reason and that the act of dissociation could not form the basis of a
breach of contract claim. The court denied the motion.
¶ 11 Following a hearing, the court declared Duran the prevailing
party and awarded him a total of $20,594.09 in costs. The court
also awarded Duran prejudgment interest of $61,079.48, calculated
from August 21, 2020. All told, the court entered judgment (1) in
favor of Duran and against Montoya and Kosmicki in the amount of
$559,626.07, and (2) in favor of defendants and against Duran in
the amount of $2,396.99.
II. Challenge to the Existence of an Oral Partnership
¶ 12 On appeal, defendants contend that no oral partnership was
formed because Duran did not make a capital contribution as
required by statute. We disagree.
6
A. Standard of Review
¶ 13 Defendants raise both legal and factual issues regarding
whether a partnership existed. To the extent defendants’
arguments require us to interpret the partnership statute to
determine what is required to form a partnership, we do so de novo.
See Educhildren LLC v. Cnty. of Douglas Bd. of Equalization, 2023
CO 29, ¶ 27.
¶ 14 But because the jury found that Montoya and Kosmicki
breached a partnership agreement it also necessarily — albeit
implicitly — found that a partnership was formed. To the extent
defendants challenge the sufficiency of the evidence that a
partnership existed, see Fisher v. State Farm Mut. Auto. Ins. Co.,
2015 COA 57, ¶¶ 37-40 (construing an argument around disputed
factual issues as a challenge to the sufficiency of evidence
supporting a jury’s verdict), aff’d, 2018 CO 39, we “may not disturb
the jury’s verdict unless it is clearly erroneous,” Ovation Plumbing,
Inc. v. Furton, 33 P.3d 1221, 1225 (Colo. App. 2001).
¶ 15 When reviewing a sufficiency challenge, we must view the
evidence in the light most favorable to the prevailing party and
determine whether the evidence is sufficient to support the verdict.
7
Fisher, ¶ 40. It is the sole province of the jury to determine the
weight of the evidence and the credibility of the witnesses and to
draw all reasonable inferences from them. See Murphy v. Glenn,
964 P.2d 581, 584 (Colo. App. 1998). We will not disturb a jury’s
verdict if there is any support in the record for it. See id.
B. Formation of a Partnership
¶ 16 Under section 7-64-202(1), C.R.S. 2023, “the association of
two or more persons to carry on as co-owners a business for profit
forms a partnership, whether or not the persons intend to form a
partnership.” The district court instructed the jury on this
definition.
¶ 17 As an initial matter, defendants contend there was insufficient
evidence to show that the parties agreed to carry on a “separate”
business for profit beyond the financial planning business KIS was
already conducting. Defendants provide no authority for their
assertion that a partnership must engage in a “separate” business
from whatever business is already being conducted. By its plain
language, section 7-64-202(1) does not so require, and we note that
a person may be admitted as a partner to a partnership either upon
8
its formation or afterward, see § 7-64-205, C.R.S. 2023. So we
reject this contention.
¶ 18 Even though the jury was not asked to find that the parties
agreed to carry on a financial planning business as co-owners, we
conclude there was enough evidence for it to have made that
finding. Among other things, Duran testified that he was recruited
by Montoya and Kosmicki to join their financial planning business
as a partner. He testified that Kosmicki had installed a plaque that
said “Partner” outside Duran’s door and had advertised him on the
KIS website as a partner.
¶ 19 Duran explained that the memo titled “Payout to [Duran] for
the first 12 months” reflected the parties’ agreement to split
expenses and commissions equally between them for the first twelve
months after Duran joined KIS. Duran acknowledged that the
memo did not show the parties’ agreement that Montoya would
transfer half her trail commissions to him once Kosmicki turned
seventy, but he said it was a term verbally agreed upon by the
parties. Duran’s testimony was corroborated by an October 7,
2019, conversation he had with Montoya and Kosmicki, during
which Montoya expressed her understanding that they all “verbally
9
agreed” — indeed, the agreement “ha[d] always been” — that she
would split her trail commissions “50/50” with Duran when
Kosmicki turned seventy. The jury was given the full transcript and
played excerpts of the audio recordings of the October 7
conversation.
¶ 20 We acknowledge that there is contradictory evidence in the
record, but we may not reweigh that evidence on appeal. See
Murphy, 964 P.2d at 584. Thus, we conclude that there was
sufficient evidence for the jury to find that the parties agreed to
carry on a financial planning business as co-owners. See id.
C. Contribution
¶ 21 A “partnership agreement” is an “agreement, whether written,
oral, or implied, among the partners that governs relations among
the partners and between the partners and the partnership.”
§ 7-64-101(20), C.R.S. 2023.
4
Under section 7-64-205, a person
may be admitted as a partner to a partnership without making a
4
To the extent defendants contend that no partnership was formed
because there was no written partnership agreement, section 7-64-
101(20), C.R.S. 2023, makes clear that a partnership agreement
need not be written; it can be oral or even implied.
10
contribution if “admission is pursuant to a written partnership
agreement or other writing confirming the admission.”
¶ 22 Defendants contend, citing only section 7-64-205, that the
converse must be true — that is, if there is no written partnership
agreement, a person must make a contribution to become a
partner. Because there was no written partnership agreement, they
continue, Duran had to make a contribution to become a partner.
Defendants further argue that the required contribution must be a
capital contribution. They acknowledge that Duran claimed to have
brought client relationships to the alleged partnership. But, citing
only a 1995 Villanova Law Review article, defendants assert that,
“[a]s a matter of law, existing clients in a services-related business
such as financial planning . . . cannot be a contribution” creating a
partnership.
¶ 23 Although the statute does not define the term “contribution,”
because it is a word in common usage and “people of ordinary
intelligence needn’t guess at its meaning,” we consider its dictionary
definition. Butler v. Bd. of Cnty. Comm’rs, 2021 COA 32, ¶ 14;
see Broomfield Senior Living Owner, LLC v. R.G. Brinkmann Co.,
2017 COA 31, ¶ 18 (where a statute fails to define a term, we
11
consider its common usage). “Contribution” means “the act of
contributing,” such as “the giving or supplying of something (such
as money or time) as a part or share” or “the giving or supplying of
something that plays a significant part in making something
happen.” Merriam-Webster Dictionary, https://perma.cc/9TQU-
LF45; see Black’s Law Dictionary 416 (11th ed. 2019) (A
“contribution” is “[s]omething that one gives or does in order to help
an endeavor be successful,” or “[a]n amount of money one gives in
order to help pay for something.”).
5
¶ 24 To be sure, section 7-64-205 does not include the term
“capital contribution,” and defendants cite no authority for their
assertion that the type of contribution contemplated by the statute
is a capital contribution. Thus, we conclude that the contribution
required by statute to form a partnership need not be a capital
contribution. And although the jury was not asked whether Duran
made a contribution to the partnership, we conclude that there was
enough evidence for it to have made that finding.
5
The parties do not contend that “contribution” is an industry term
or a term of art that would have a different meaning in the context
of a partnership agreement.
12
¶ 25 The record shows that Duran brought over clients from his
prior employer, provided labor, and paid expenses. Duran testified
that he contributed $8 million in client assets from his prior
employer, UBS, to the partnership. In the audio recording and
transcript of the October 7 conversation, Montoya and Kosmicki
acknowledge that Duran brought over his “UBS clients.” And
Duran testified that, in addition to the $8 million in UBS clients, he
generated long-term care policies in the amount of $5 million.
¶ 26 Duran explained that as soon as he joined KIS in September
2018, he attended and made presentations at client meetings and
attempted to bring over UBS clients. He said he would be available
if a client needed a financial plan or if there were assets to discuss
that were not managed by KIS but posed an opportunity.
¶ 27 Duran also testified that he paid expenses to the partnership.
He said that he, Montoya, and Kosmicki each applied for Paycheck
Protection Program (PPP) loans for the partnership and that he put
all the funds he received from the PPP loan into a joint expense
account. And he introduced copies of checks he made from his
personal account to KIS for expenses and wage reimbursement.
13
¶ 28 We again acknowledge that there is contradictory evidence in
the record, but we may not substitute our judgment for that of the
jury when evidence in the record supports the verdict. See Murphy,
964 P.2d at 584. We conclude there was sufficient evidence
presented for the jury to reasonably find that Duran made the
necessary contribution to become a partner under an oral
partnership agreement. See id.
6
III. Challenge to the Denial of Defendants’ Motion for Directed
Verdict and Post-Trial Motion
¶ 29 Defendants next contend that the district court erred by
denying their motion for a directed verdict and allowing the breach
of contract claim to go to the jury and that it further erred by not
setting aside the jury verdict or granting a new trial. We are not
persuaded.
A. Standard of Review
¶ 30 We review de novo a trial court’s ruling on a motion for a
directed verdict. See Reigel v. SavaSeniorCare L.L.C., 292 P.3d 977,
6
Because there was sufficient evidence for the jury to find a
partnership on this basis, we need not address defendants’
alternative argument that the sharing of profits alone was
insufficient to support the formation of a partnership.
14
982 (Colo. App. 2011). A court may only grant a motion for a
directed verdict “if the evidence compels the conclusion that
reasonable jurors could not disagree because no evidence received
at trial, or inferences therefrom, could sustain a verdict against the
moving party.” Tisch v. Tisch, 2019 COA 41, ¶ 34.
¶ 31 We review de novo a court’s ruling on a motion for JNOV if
“there are no genuine issues of material fact.” Dream Finders
Homes LLC v. Weyerhaeuser NR Co., 2021 COA 143, ¶ 111 (quoting
Cardenas v. Fin. Indem. Co., 254 P.3d 1164, 1167 (Colo. App.
2011)). A court may grant a JNOV “only if the evidence, taken in
the light most favorable to the party opposing the motion and
drawing every reasonable inference which may legitimately be
drawn” in support of that party would not support a verdict by a
reasonable jury in favor of the opposing party. Nelson v. Hammon,
802 P.2d 452, 454 (Colo. 1990). Where the factual basis of a
directed verdict or a JNOV is called into question, we review the
evidence and the record in favor of the nonmoving party. See
Reigel, 292 P.3d at 982; Durdin v. Cheyenne Mountain Bank, 98
P.3d 899, 903 (Colo. App. 2004).
15
¶ 32 We review a trial court’s ruling on a motion for a new trial for
abuse of discretion. See Acierno v. Garyfallou, 2016 COA 91, ¶ 28.
A court may grant a motion for a new trial, as relevant here, if
“[a]ny irregularity in the proceedings . . . prevented . . . a fair trial”
or there were “[e]xcessive . . . damages.” C.R.C.P. 59(d)(1), (5);
Rains v. Barber, 2018 CO 61, ¶ 11.
B. Defendants Fail to Demonstrate that the District Court Erred
¶ 33 As best we understand, defendants contend that the basis for
Duran’s claim for breach of the partnership agreement was nothing
more than Montoya and Kosmicki dissociating
7
from the
partnership. Defendants argue that section 7-64-602(1), C.R.S.
2023, allows a partner an absolute right to withdraw from a
partnership at any time without liability unless the partner’s
dissociation is wrongful. That statute provides that “[a] partner has
the power to dissociate at any time, rightfully or wrongfully, by
express will pursuant to section 7-64-601(1)(a)[, C.R.S. 2023].”
§ 7-64-602(1) (emphasis added).
7
Section 7-64-601, C.R.S. 2023, provides the circumstances under
which a partner is “dissociated from a partnership,” and includes,
as relevant here, a partner providing notice of their “express will to
withdraw as a partner.”
16
¶ 34 Defendants assert that there are two ways that dissociation
may be “wrongful,” neither of which applies here. They argue that
because the alleged partnership had no express terms, their
dissociation from it could not be wrongful under section
7-64-602(2)(a) (dissociation is wrongful if it “is in breach of an
express provision of the partnership agreement”). Defendants also
argue that because the partnership had no defined terms or
undertakings, it was a partnership at will, and their dissociation
from it could not be wrongful under section 7-64-602(2)(b) (if a
partnership is “for a definite term or particular undertaking,”
dissociation is wrongful if it occurs “before the expiration of the
term or the completion of the undertaking”). So, the argument
goes, if defendants did not wrongfully dissociate from the
partnership, their dissociation cannot support a claim for breach of
the partnership agreement.
¶ 35 Initially, we note that the record does not clearly establish that
Montoya and Kosmicki’s dissociation from the partnership was
rightful. True, the partnership agreement was not in writing, but
that does not prevent it from having “express terms” that Montoya
17
and Kosmicki breached.
8
But even if we assume that Montoya and
Kosmicki’s dissociation from the partnership was not wrongful, the
defendants’ arguments still fail for two reasons.
¶ 36 First, defendants did not argue that their dissociation was not
wrongful in their motion for a directed verdict — they raised this
argument for the first time in their C.R.C.P. 59 post-trial motion. At
trial, defendants only argued that “a partnership agreement may
not vary the power to dissociate as a partner under section
7-64-602[(1)].” Thus, the argument that the dissociation was not
wrongful could not have been a basis for the district court to enter a
directed verdict on Duran’s breach of contract claim. See State
Farm Mut. Auto. Ins. Co. v. Goddard, 2021 COA 15, ¶ 25 (directed
verdicts are not favored and may only be granted in the clearest of
cases).
¶ 37 Second, and more importantly, to the extent that Montoya and
Kosmicki argue that their dissociation from the partnership
absolves them of liability for any breach of the partnership
8
Although the jury was not asked to find whether the partnership
was “at will” — meaning that it had no defined terms or
undertakings, see § 7-64-101(21) — it appears that the district
court so found.
18
agreement, they are wrong. Their argument appears to rest on a
faulty premise — that the only possible breach of the partnership
agreement was their dissociation from the partnership. But
Duran’s theory of the case, and the evidence presented at trial, was
not that dissociation alone was the breach; instead, Duran argued
that Montoya and Kosmicki breached the partnership agreement by
claiming that Duran was never a partner and denying him
associated trail commissions.
¶ 38 Whether a partner has an absolute right to dissociate and
whether dissociation was rightful or wrongful are irrelevant
questions when dissociation is not the alleged breach. Indeed,
section 7-64-405(2)(a), C.R.S. 2023, authorizes a partner to
maintain an action against the partnership or another partner to
“[e]nforce the partner’s rights under the partnership agreement.”
And section 7-64-602(3), which specifies the damages that are
recoverable for wrongful dissociation, clarifies that such “liability is
in addition to any other obligation of the partner to the partnership
or to the other partners.” These provisions make clear that a
partner is not absolved of liability for breach of a partnership
agreement by dissociating from the partnership.
19
¶ 39 A reviewing court’s duty is to reconcile a jury’s verdict with the
evidence if at all possible. Lee’s Mobile Wash v. Campbell, 853 P.2d
1140, 1143 (Colo. 1993). As the district court noted in denying
defendants’ post-trial motion, this case involved a simple breach of
contract claim. Despite defendants’ attempt to recharacterize the
claim, Duran always alleged that the breach was the refusal to
recognize the partnership and the resultant denial of the value of
his interest in the partnership. Viewing the record evidence in favor
of Duran as the nonmoving party, see Reigel, 292 P.3d at 982, we
conclude that the defendants have failed to meet their burden to
prove they were entitled to a directed verdict, a JNOV, or a new
IV. Challenge to the Jury Instructions
¶ 40 Defendants contend that the district court erred in its
instructions to the jury on the law of partnerships. We disagree.
A. Standard of Review
¶ 41 “We review de novo whether a jury instruction states the law
correctly, and we review the trial court’s decision to give a particular
jury instruction for an abuse of discretion.” Walker v. Ford Motor
Co., 2017 CO 102, ¶ 9. “The trial court has substantial discretion
20
in formulating jury instructions so long as they include correct
statements of the law and fairly and adequately cover the issues
presented.” Taylor v. Regents of Univ. of Colo., 179 P.3d 246, 248
(Colo. App. 2007). A court abuses its discretion when its ruling is
manifestly arbitrary, unreasonable, unfair, or is based on a
misapprehension or misapplication of the law. See Core-Mark
Midcontinent Inc. v. Sonitrol Corp., 2016 COA 22, ¶ 49.
B. The District Court Did Not Err in Instructing the Jury
¶ 42 Defendants contend that the district court misstated the law
regarding partnerships in its instructions to the jury. But they do
not identify any instruction that was legally inaccurate. Instead,
they contend that the court should have given additional
instructions so that the jury had a more complete view of the law of
partnerships. We review these contentions for an abuse of
discretion. See Walker, ¶ 9.
1. Sharing Profits
¶ 43 Defendants specifically contend that the court did not instruct
the jury that sharing profits does not create a partnership where
those profits were paid as wages. We note that defendants fail to
identify where they tendered an instruction on profit sharing or
21
where the court rejected it, so we reject this contention. See
O’Quinn v. Baca, 250 P.3d 629, 631 (Colo. App. 2010) (declining to
address an issue where the parties failed to direct the court to a
place in the record where the issue was raised and ruled on).
2. Contribution
¶ 44 Defendants also contend that the court failed to instruct the
jury that a contribution was necessary to establish an oral
partnership. As an initial matter, the parties dispute whether this
argument is preserved but fail to point us to relevant portions of the
record. See Scoular Co. v. Denney, 151 P.3d 615, 617 (Colo. App.
2006) (the appellant is responsible for providing an adequate record
to support his claims of error).
¶ 45 Defendants cite to a redlined version of a proposed instruction
stating that “[a] person shall not be admitted to a partnership
without an economic interest unless there is a written partnership
agreement or other writing confirming the admission.” The
proposed instruction to which defendants cite is an attachment to
an email chain between the attorneys and the court clerk sent on
March 9, 2022, which defendants attached as an exhibit to their
post-trial motion. But that email does not appear to be the end of
22
the discussion between counsel regarding the jury instructions.
Instead, as reflected in an attachment to a “Notice: Filing of
Attorney/Court Correspondence and Attachments” filed post-trial
by the defendants, the email chain continues on March 10 and
includes a clean version of the instructions to which the parties had
apparently agreed. This version of the instructions, which does not
include the instruction defendants argue should have been given,
appears to be the one that the court reviewed with the parties
during the jury instruction conference. Indeed, the words
“contribution” and “economic interest” do not appear in the part of
the transcript reflecting the jury instruction conference.
¶ 46 Because it does not appear that the proposed instruction was
ever tendered to the court, we conclude the issue was not preserved
v. Tardif, 2017 COA 136, ¶ 10 (“An alleged instructional error is
preserved if the defendant tenders the desired relevant instruction
even if the defendant does not object or otherwise raise the issue
during the jury instruction conference.”).
23
3. Right to Dissociate
¶ 47 Lastly, defendants contend that the district court failed to
instruct the jury on a partner’s right to dissociate at any time and
that a partnership agreement may not abrogate that right. At trial,
defendants tendered a proposed instruction stating the following:
A partnership agreement may not vary the
power to dissociate as a partner.
A partner has the power to dissociate at any
time, rightfully or wrongfully, by express will.
A partner is dissociated from a partnership
upon the partnership’s having notice of the
partner’s express will to withdraw as a partner.
¶ 48 Defendants did not tender an instruction explaining what it
means to “wrongfully” dissociate. So, to the extent defendants
contend that the court erred by not instructing the jury on what
“wrongful dissociation” means, we conclude that contention is not
preserved.
9
See Mobell v. City & Cnty. of Denver, 671 P.2d 433, 435
(Colo. App. 1983) (declining to consider whether the trial court
9
Duran argues that defendants waived the entire issue because
counsel said “[o]kay” after the court declined to give defendants’
proposed combined instruction on partnership law. However,
tendering an instruction is generally sufficient to preserve an issue
for appeal. See In re Estate of Chavez, 2022 COA 89M, ¶ 20; People
v. Tardif, 2017 COA 136, ¶ 10.
24
should have instructed the jury on a particular issue where there
was no request for or tender of an instruction).
¶ 49 We further conclude that the court did not abuse its discretion
by declining to instruct the jury on a partner’s statutory right to
dissociate from a partnership because, again, Duran’s theory of
breach was not that Montoya and Kosmicki withdrew from the
partnership but that they denied the existence of the partnership
and deprived Duran of the agreed-upon trail commissions. See
Taylor, 179 P.3d at 248 (trial courts have broad discretion over jury
instructions).
V. Challenge to the Damages Awarded
¶ 50 Defendants challenge the damages awarded on several
grounds, asserting that (1) the district court did not enforce its own
order excluding certain damages testimony and evidence; (2) the
damages were speculative and based on insufficient evidence;
(3) there was no legal basis to award the damages; and (4) the court
erroneously awarded prejudgment interest. We address and reject
each contention in turn.
25
A. The Court’s Prior Order
¶ 51 Before trial, Duran sought an extension of time to submit
expert disclosures because his expert needed more time to review
documentation recently received in response to a subpoena. The
district court denied the request because it found that the delay
was due to Duran’s own failure to timely serve the subpoena on a
broker dealer, which resulted in the information being disclosed late
to his expert. The court further sanctioned Duran by ordering that
the late-disclosed expert witness would not be allowed to testify and
that any information received after the discovery deadline that had
not been shared with defendants would be inadmissible.
¶ 52 Defendants contend that by allowing Duran to testify to his
damages at trial, the court did not enforce its own order. We do not
read the court’s order so narrowly. The court precluded Duran
from presenting expert testimony on damages and from relying on
any late-disclosed information, but it did not ban Duran from
presenting any evidence regarding damages. Duran did not
introduce the excluded expert report or testimony at trial. Nor did
he rely on the expert’s calculations or on the information received
26
after the discovery cutoff to calculate his damages.
10
Accordingly,
we perceive no inconsistency between the court imposing discovery
sanctions and allowing Duran to testify to a measure of his
damages at trial.
B. Evidence Supporting the Damages Award
¶ 53 Defendants contend that Duran’s damages were speculative,
based on insufficient evidence, and must be discounted to present
value. We are not persuaded.
¶ 54 “The amount of damages to be awarded is a matter within the
sole province of the jury and may not be disturbed unless it is
completely without support in the record.” Hauser v. Rose Health
Care Sys., 857 P.2d 524, 531 (Colo. App. 1993). For a breach of
contract claim, “[t]he measure of damages . . . is the amount it
takes to place the plaintiff in the position [they] would have
occupied had the breach not occurred.” Technics, LLC v. Acoustic
10
To the extent defendants argue that only an expert could have
computed damages, we decline to address the argument because
defendants waived it by conceding at trial that expert testimony was
not necessary. Vititoe v. Rocky Mountain Pavement Maint., Inc.,
2015 COA 82, ¶ 60 (arguments premised on waived errors “will
receive no consideration by an appellate court” (quoting Robinson v.
City & Cnty. of Denver, 30 P.3d 677, 684 (Colo. App. 2000))).
27
Mktg. Rsch. Inc., 179 P.3d 123, 126 (Colo. App. 2007), aff’d, 198
P.3d 96 (Colo. 2008).
¶ 55 The amount claimed may be an approximation so long as the
fact that damages exist is certain and “the plaintiff introduces some
evidence which is sufficient to permit a reasonable estimation of
damages.” Hauser, 857 P.2d at 531. “In proving the amount of
damages it is sufficient for a plaintiff to provide ‘[a] reasonable basis
for computation and the best evidence obtainable under the
circumstances of the case which will enable the trier of the facts to
arrive at a fairly approximate estimate of the loss.’” Tull v.
Gundersons, Inc., 709 P.2d 940, 945 (Colo. 1985) (quoting A to Z
Rental, Inc. v. Wilson, 413 F.2d 899, 908 (10th. Cir. 1969)).
¶ 56 Duran presented sufficient evidence to allow the jury to make
a reasonable estimate of his damages. Duran measured the value
of his lost interest in the partnership by the amount of Montoya’s
trail commissions to which he would have been entitled over a
period of five years if Montoya and Kosmicki had not denied that
the partnership existed. See Technics, LLC, 179 P.3d at 126
(defining the measure of damages). Duran testified that he
calculated his damages by analyzing a trail commissions chart, a
28
copy of Montoya’s tax return Schedule C, and the amount of his
own transactional commissions. From these data sources, he
computed a base sum of estimated trail commissions for 2019,
multiplied the base sum by five for the five years he was supposed
to have received half of Montoya’s commissions, and then divided
that figure by two. Duran also introduced the exhibits that he
relied upon for his calculations.
¶ 57 Duran’s damages were neither speculative nor unsupported by
To be sure, defendants were entitled to attack Duran’s computation
of damages, and they did so thoroughly at trial, including through
the presentation of expert testimony. But in the end, the jury was
tasked with determining the amount of damages to award, and
apparently it was persuaded by Duran’s evidence. We are not at
liberty to second-guess the jury’s damages award when it is
¶ 58 We are also not persuaded by defendants’ argument that
Duran claimed future lost profits as damages and therefore the
award should have been discounted to present value. True,
damages for future lost profits should be reduced to present value.
29
See Technics, LLC, 179 P.3d at 126. But, as the district court
determined, Duran’s damages were a measure of the lost value of
his partnership interest, not an award of the partnership’s future
profits. Under these circumstances, it is not clear to us, and
defendants cite no authority establishing, that the damages award
must, as a matter of law, be discounted to present value. See
DSCO, Inc. v. Warren, 829 P.2d 438, 442 (Colo. App. 1991) (Once
the plaintiff establishes its damages resulting from a breach of
contract, the burden of proof is on the breaching party “to produce
evidence on which any reduction of damages is to be predicated.”).
¶ 59 Even so, defendants presented expert testimony explaining the
concept of “present value” as discounting a future projection based
on risk and uncertainty. The expert also testified that Duran’s
damages calculations were “a projection of future income” and
should be discounted. We presume the jury weighed this evidence
when determining damages and we may not disturb its
determination. See Margenau v. Bowlin, 12 P.3d 1214, 1219 (Colo.
App. 2000) (“It is for the jury to determine the weight of, and to
resolve conflicts and inconsistencies in, the evidence.”); Lee’s Mobile
30
Wash, 853 P.2d at 1143 (reviewing courts should not disregard a
jury’s verdict if it has support in the evidence).
C. Legal Basis
¶ 60 Defendants contend that there was no legal basis for Duran to
receive damages because the dissolution of a partnership cuts off a
partner’s right to future profits. Defendants’ argument again rests
on the faulty premise that the jury awarded Duran future
partnership profits as damages.
¶ 61 As noted, the measure of damages for a breach of contract “is
the amount it takes to place the plaintiff in the position it would
have occupied had the breach not occurred.” Technics, LLC, 179
P.3d at 126. The district court instructed the jury that if it found in
favor of Duran on the breach of contract claim, it must award
general or nominal damages. To be entitled to general damages,
Duran had to prove by a preponderance of the evidence that he had
incurred damages resulting from the breach. “General damages”
were defined as “the amount required to compensate the plaintiff for
losses that are the natural and probable consequence of the
defendants’ breach of the contract.” Losses that are a “natural”
31
result of a breach are those “that an ordinary person of common
experience would expect to follow from a breach.”
¶ 62 Duran alleged he was damaged by defendants’ denial of the
partnership’s existence and presented evidence that the value of his
lost partnership interest could be measured by the amount of trail
commissions he expected to earn over a five-year period. Duran did
not claim that he was entitled to a share of future partnership
income after the partnership dissolved.
D. Prejudgment Interest
¶ 63 Defendants contend that Duran was not entitled to
prejudgment interest on his damages award because the money
was not “wrongfully withheld” under section 5-12-102(1)(b), C.R.S.
2023, and because prejudgment interest is not applicable to an
award of future lost profits. We disagree.
¶ 64 First, to the extent that defendants’ argument is based on the
premises that (1) they had an absolute right to dissociate from the
partnership without liability, or (2) Duran was claiming future
profits rather than the value of his lost partnership interest, it fails
for the reasons we have already explained.
32
¶ 65 Second, in a breach of contract action, the nonbreaching party
is entitled to recover prejudgment interest from the time of the
breach. See Logixx Automation, Inc. v. Lawrence Michaels Fam. Tr.,
56 P.3d 1224, 1230 (Colo. App. 2002). The phrase “wrongfully
withheld” is “given a broad, liberal construction to effectuate the
legislative purpose of compensating parties for the loss of money or
property to which they are entitled.” Id. at 1229. Given that the
jury awarded Duran damages for the value of the partnership
interest he lost when Montoya and Kosmicki breached the
partnership agreement, we conclude that the district court did not
err by awarding prejudgment interest from the date of the breach.
P.2d 1112, 1122 (Colo. 1990) (affirming award of prejudgment
interest under section 5-12-102(1)(b) on lost profits awarded as
damages for intentional interference with contract).
VI. Challenge to the Costs Order
¶ 66 Defendants contend that the district court abused its
discretion by (1) determining that KIS was not the prevailing party
entitled to attorney fees and costs and (2) awarding Duran fees for
paralegal work disguised as costs. We disagree.
33
A. Prevailing Party
¶ 67 Defendants contend that the district court abused its
discretion by concluding that KIS was not the prevailing party when
all claims asserted against it were resolved in its favor. We
disagree.
¶ 68 To be considered a “prevailing party,” the “party must succeed
on a significant issue in the litigation and achieve some of the
benefits sought.” Anderson v. Pursell, 244 P.3d 1188, 1194 (Colo.
2010). It is the “sole discretion” of a trial court to determine who is
the prevailing party in a case that involves many claims. Archer v.
Farmer Bros. Co., 90 P.3d 228, 231 (Colo. 2004). This is because
“the trial court is in the best position to evaluate the relative
strengths and weaknesses of each party’s claims, the significance of
each party’s successes in the context of the overall litigation, and
the time devoted to each claim.” Id.
¶ 69 The district court did not consider KIS to be a “prevailing
party” because Duran prevailed on “significant issues.” And “based
on the totality of the results” of the case, the court determined that
Duran was the only prevailing party. We see no reason to disagree.
34
¶ 70 True, Duran brought two wage-related claims against KIS, and
the court directed a verdict in favor of KIS on those two claims. But
the jury entered a verdict against Montoya and Kosmicki in favor of
Duran on his breach of contract claim, which was the primary focus
of his lawsuit, and the court entered a judgment against all three
defendants on their counterclaims. Because defendants filed their
counterclaims jointly and their interests were aligned throughout
the trial proceedings, we are unpersuaded by their attempt to
separate each individual defendant now. Thus, we conclude that
the court was within its discretion to declare Duran the sole
prevailing party in this multi-party, multi-claim litigation. See id.
B. Costs
¶ 71 Defendants contend that the district court abused its
discretion by awarding as costs the amounts Duran paid i-Legal.
They maintain that i-Legal performed paralegal tasks such as
preparing and reviewing documents for disclosure, preparing
exhibits for trial, and assisting Duran’s attorney at trial.
Defendants highlight the fact that the person performing the tasks
for i-Legal held a law degree. Thus, they argue that i-Legal provided
35
paralegal work, which can only be recovered as attorney fees. We
are not persuaded.
¶ 72 Under C.R.C.P. 54(d), the prevailing party is entitled to recover
their “reasonable costs.” See also § 13-16-122, C.R.S. 2023
(identifying the types of costs recoverable); Cherry Creek Sch. Dist.
No. 5 v. Voelker, 859 P.2d 805, 813 (Colo. 1993) (explaining that the
list of expenses that can be awarded as costs under section
13-16-122 is illustrative and not exclusive). An award of costs is
within the discretion of the trial court, and “that court’s findings as
to the reasonableness and amount of costs will not be disturbed on
appeal absent an abuse of discretion.” Morris v. Belfor USA Grp.,
Inc., 201 P.3d 1253, 1261 (Colo. App. 2008).
¶ 73 Defendants are correct that fees billed for duties performed by
a paralegal are not properly classified as costs recoverable under
found that the services provided at trial by i-Legal were
“professional IT services” that were not performed under the
supervision of an attorney. The invoices submitted for i-Legal’s
work support the court’s finding and reflect that i-Legal processed,
prepared, and printed exhibits for disclosure and use at trial and
36
assisted with presenting exhibits at trial. It is irrelevant that the
person who performed the tasks has a law degree when the tasks
performed are not considered legal work. The court concluded that
it “greatly benefited by the efficient services performed” and that
neither the cost documentation nor the court’s own observations led
it to conclude that i-Legal had performed paralegal work. We
VII. Request for Appellate Attorney Fees and Costs
¶ 74 Defendants request an award of appellate attorney fees under
section 8-4-109, C.R.S. 2023, of the Wage Claim Act. They also
request an award of attorney fees under section 13-17-102, C.R.S.
2023, asserting that Duran’s “claims lacked substantial
justification.” Because defendants have not prevailed on appeal, we
necessarily conclude that they are not entitled to appellate attorney
fees and costs.
VIII. Disposition
¶ 75 We affirm the judgment and orders of the district court.
JUDGE JOHNSON and JUDGE TAUBMAN concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.