& 23CA0663 Duran v. Montoya

• Court: Colorado Court of Appeals
• Decided: June 27, 2024
• Docket: 22CA2186
• Status: Unknown

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

trial. See Tisch, ¶ 34; Nelson, 802 P.2d at 454; Rains, ¶ 11.

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

and decline to address it. See O’Quinn, 250 P.3d at 631; cf. People

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

the evidence. See Hauser, 857 P.2d at 531; Tull, 709 P.2d at 945.

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

supported by the record. See Hauser, 857 P.2d at 531.

¶ 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.

See id. at 1230; see also Westfield Dev. Co. v. Rifle Inv. Assocs., 786

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

C.R.C.P. 54(d). Morris, 201 P.3d at 1263. But the district court

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

perceive no abuse of discretion. See Anderson, 244 P.3d at 1193.

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.