23CA2006 Bai v Shoyu Denver 11-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA2006 Arapahoe County District Court No. 21CV31019 Honorable Ben L. Leutwyler III, Judge
Xuanzhi Bai and Junchen Dai,
Plaintiffs-Appellees,
v.
Shoyu Denver LLC, a Colorado limited liability company,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE GOMEZ Welling and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 20, 2025
Xuanzhi Bai, Pro Se
Junchen Dai, Pro Se
AQMN Law, Charles S. McIntyre IV, Lakewood, Colorado, for Defendant- Appellant ¶1 After the parties’ business relationship ended, plaintiffs,
Xuanzhi Bai and Junchen Dai, brought claims against defendants,
Zuoquan Lin and Shoyu Denver LLC (Shoyu), for breach of contract,
fraudulent concealment, civil theft, civil conspiracy, breach of
fiduciary duty, promissory estoppel, and unjust enrichment. A jury
found in plaintiffs’ favor on the first five claims, and the trial court
later found in plaintiffs’ favor on the final two claims and entered
judgment accordingly. Shoyu now appeals that judgment.1
¶2 Shoyu raises various issues on appeal relating to the liability
findings on most of the claims, the calculation of damages, the
denial of its motion for a new trial, and the calculation of pre- and
post-judgment interest. We affirm the liability finding and
calculation of damages on the civil theft claim, decline to consider
Shoyu’s arguments on liability and damages as to the other claims
(as those arguments are mooted by our affirmance on the civil theft
claim), affirm the denial of Shoyu’s motion for a new trial, reverse
the establishment of the rate of postjudgment interest, decline to
consider Shoyu’s argument regarding prejudgment interest (as that
1 Initially, Lin also appealed the judgment. But his appeal was dismissed after a bankruptcy proceeding rendered it moot.
1 argument, too, is mooted by our affirmance on the civil theft claim),
and remand the case to the trial court to correct the rate of
postjudgment interest.
I. Background
¶3 Evidence of the following facts was presented at trial.
¶4 Lin, Dai, and a third person (the coworker) worked together at
a restaurant.2 In late 2018 or early 2019, the three of them began
discussing the possibility of opening a restaurant together. Dai told
Bai about the discussions, and Bai expressed interest in starting
the business with them.
¶5 After their initial discussions, the group began looking at
potential locations for the restaurant. Eventually, Dai found one.
In July 2019, the two plaintiffs, Lin, Lin’s wife, and the coworker
visited the location. Afterward, the group gathered at a coffee shop
and had a conversation during which plaintiffs, Lin, and the
coworker verbally agreed to start the restaurant. They further
agreed that Lin would file the articles of incorporation to establish a
2 The coworker, Nengbao Lin (who is not related to Zuoquan Lin),
was initially a defendant in this case, but plaintiffs dismissed their claims against him at the start of the trial.
2 limited liability company (LLC). Later, in a group text chain, Lin
confirmed that he had filed the articles, thus creating Shoyu, but
that he had listed only his name in those documents. He said he
would add both plaintiffs’ names to the filing later, but he never did.
¶6 As the months went on, plaintiffs paid for various expenses to
start the business, including the costs of hiring an artist to design a
logo, an attorney to negotiate the lease, and an architect and
contractor to design and improve the location. They also paid for
rent, supplies, a website, and a sign for the restaurant. In total,
pursuant to the parties’ agreement, plaintiffs invested about
$123,000, or roughly 40% of the startup costs, in exchange for a
combined 40% interest in the restaurant and 40% of the profits.
¶7 The restaurant opened in August 2020 and started turning a
profit a few months later. Per the parties’ agreement, plaintiffs
started receiving a combined 40% of the restaurant’s profits, which
Lin paid to them by check each month. At the same time, the profit
and loss statements Lin shared with plaintiffs started indicating
that Lin was withdrawing various amounts ranging from $2,700 to
$18,529 for “cash salary” purposes. After a few months, plaintiffs
asked Lin what the cash withdrawals were for, and he told them he
3 was using the cash to pay the employees. However, it was plaintiffs’
understanding that the employees were paid via checks issued by
Shoyu. Plaintiffs asked some of the employees how they were paid
in an attempt to confirm that understanding.
¶8 In March 2021, after plaintiffs made their inquiries with some
of the employees, Lin sent plaintiffs a letter telling them they could
no longer come to the restaurant or talk to the employees. After
that time, plaintiffs no longer received any profit payments. They
also didn’t receive any more profit and loss statements until such
statements were provided in discovery in this case.
¶9 The parties attempted without success to resolve their
disputes. Plaintiffs then filed this action against Lin and Shoyu.
¶ 10 The case proceeded to a jury trial. At the conclusion of the
trial, the jury found in plaintiffs’ favor on their claims for breach of
contract, fraudulent concealment, civil theft, civil conspiracy, and
breach of fiduciary duty. The jury awarded the same amount of
damages for each plaintiff on each claim: $593,060.70. For the civil
theft claim, the trial court tripled that amount to $1,779,182.10 for
each plaintiff pursuant to section 18-4-405, C.R.S. 2025. The court
further found in plaintiffs’ favor on their promissory estoppel and
4 unjust enrichment claims and awarded damages on those claims in
the amount of $51,928.14 to Bai and $99,247.28 to Dai, including
prejudgment interest.
¶ 11 Because plaintiffs’ claims reflected alternative theories of
recovery and sought duplicative damages, the court determined
that plaintiffs could not receive multiple recoveries. The court
accordingly entered judgment for each plaintiff in the amount of
$1,779,182.10 plus costs and attorney fees. The court also ordered
that interest on any unpaid amount of the judgments and fee and
cost awards would accrue at the rate of 9% per annum.
¶ 12 Defendants thereafter filed a motion for a new trial. The court
didn’t decide the motion within sixty-three days, so the motion was
deemed denied under C.R.C.P. 59(j).
II. Sufficiency of the Evidence
¶ 13 Shoyu first challenges the sufficiency of the evidence
supporting the liability findings and damage awards on several of
the claims. We consider only the civil theft claim, as we find it
dispositive.
5 A. Liability for Civil Theft
¶ 14 We first consider Shoyu’s challenge to the sufficiency of the
evidence to support the jury’s finding that it committed civil theft.3
¶ 15 We review sufficiency of the evidence challenges de novo.
Northstar Project Mgmt., Inc. v. DLR Grp., Inc., 2013 CO 12, ¶ 14. In
doing so, “we must determine whether the evidence, viewed as a
whole and in the light most favorable to the prevailing party, is
sufficient to support the verdict.” Parr v. Triple L & J Corp., 107
P.3d 1104, 1106 (Colo. App. 2004). We also must “draw every
reasonable inference from the evidence in favor of [the prevailing]
party.” Averyt v. Wal-Mart Stores, Inc., 2013 COA 10, ¶ 18 (quoting
Harris Grp., Inc. v. Robinson, 209 P.3d 1188, 1201 (Colo. App.
2009)). It is the jury’s sole prerogative to resolve disputes of fact
and to determine the weight of the evidence, the inferences to be
drawn from it, and the credibility of the witnesses. Fisher v. State
Farm Mut. Auto. Ins. Co., 2015 COA 57, ¶ 40, aff’d, 2018 CO 39.
Accordingly, we won’t disturb a jury’s verdict if there is competent
3 Although plaintiffs brought some of their claims only against Lin,
they brought this claim against both defendants, and the jury found both defendants liable on this claim.
6 evidence in the record to support it, even if reasonable people could
reach a different conclusion based on the same facts. Id.; People in
Interest of S.G.L., 214 P.3d 580, 583 (Colo. App. 2009).
¶ 16 To prevail on a claim of civil theft, a plaintiff must prove all the
elements of criminal theft by a preponderance of the evidence.
State v. 5 Star Feedlot Inc., 2019 COA 162M, ¶ 14, aff’d on other
grounds sub nom., Dep’t of Nat. Res. v. 5 Star Feedlot, Inc., 2021 CO
27. Those elements include that the defendant “(1) knowingly
obtained, retained, or exercised control over anything of value of
another without authorization; and (2) intentionally or knowingly
deprived the other person permanently of the use or benefit of the
property.” Million v. Grasse, 2024 COA 22, ¶ 44; accord § 18-4-
401(1), C.R.S. 2025.
¶ 17 Shoyu argues that plaintiffs couldn’t have proved the first
element of civil theft because plaintiffs voluntarily gave Lin and
Shoyu (which Lin controlled) the $123,000 investment. But
plaintiffs’ civil theft claim wasn’t limited to the receipt of the initial
investment. It also encompassed the unauthorized retention of the
40% interest in and 40% of profits from the restaurant, which the
parties had agreed plaintiffs would receive in exchange for their
7 investment. And, at trial, plaintiffs presented evidence that the
parties agreed plaintiffs would have a right to the 40% interest and
40% of profits, that defendants paid plaintiffs the 40% profit for the
first few months the restaurant was profitable, and that as of March
2021 defendants stopped paying any profits and denied plaintiffs
had any interest in the restaurant. Thus, the evidence supports the
jury’s finding that Shoyu knowingly retained plaintiffs’ business
interest and share of profits without authorization.
¶ 18 Shoyu also argues that plaintiffs couldn’t have proved the
second element of civil theft because Lin and Shoyu never intended
to permanently deprive plaintiffs of their share of the profits. In
support of this argument, Shoyu cites evidence regarding the
parties’ attempts to resolve their dispute before this lawsuit was
filed, arguing that “Lin . . . had every intention of returning
[plaintiffs’] investment to them.” But the jury heard evidence that
Lin barred plaintiffs from the restaurant and ceased paying their
agreed-upon share of the profits when plaintiffs inquired about the
accounting. Lin also acknowledged that as of that time, “in [his]
mind, one of them or they both were no longer a partner” in the
business. Moreover, the trial court limited the admission of
8 evidence of the parties’ settlement discussions under CRE 408, and
what little evidence there was of those discussions didn’t
necessarily indicate that Lin and Shoyu had always intended to
honor the parties’ agreement. Rather, ample evidence supports the
jury’s conclusion that defendants intended to permanently deprive
plaintiffs of the use or benefit of their interest in and right to profits
from the restaurant. And, at any rate, “[t]he fact that stolen
property was eventually returned is not a defense to a theft charge.”
In re Estate of Chavez, 2022 COA 89M, ¶ 48 (quoting People v.
Pedrie, 727 P.2d 859, 863 (Colo. 1986)).
¶ 19 Finally, Shoyu argues that plaintiffs’ claim fails because the
LLC documentation shows that plaintiffs weren’t members of
Shoyu. Thus, Shoyu argues, plaintiffs could not have been entitled
to any interest in the restaurant business or any share of its profits.
But plaintiffs presented evidence that the parties had agreed they
would be members of the business and that Lin failed to honor their
agreement by filing articles for the LLC that excluded plaintiffs and
failing to add plaintiffs as members despite his promise to do so.
Plaintiffs also presented evidence that Lin had agreed to share with
them 40% of the restaurant’s profits but he failed to do so. Thus,
9 there was ample basis for the jury to conclude that plaintiffs were
entitled to a 40% interest in the restaurant and 40% of its profits.
¶ 20 Accordingly, we will not disturb the jury’s verdict for plaintiffs
on their civil theft claim. See Fisher, ¶ 40; S.G.L., 214 P.3d at 583.
B. Damages Awarded for Civil Theft
¶ 21 We next turn to Shoyu’s challenge to the sufficiency of the
evidence to support the jury’s damage award as it relates to the civil
theft claim.
¶ 22 The jury has discretion to determine the amount of damages
to award. Tisch v. Tisch, 2019 COA 41, ¶ 67. “[A]bsent an award so
excessive or inadequate as to shock the judicial conscience and to
raise an irresistible inference that passion, prejudice, corruption[,]
or other improper cause invaded the trial, the jury’s determination
of the fact is considered inviolate.” Id. (alteration in original)
(quoting Higgs v. Dist. Ct., 713 P.2d 840, 860-61 (Colo. 1985)). We
won’t disturb a damage award unless it is “completely unsupported
by the record.” Id. (quoting Averyt v. Wal-Mart Stores, Inc., 265 P.3d
456, 462 (Colo. 2011)). Still, “a damage award may not be based on
speculation or conjecture.” Id. (quoting Logixx Automation, Inc. v.
Lawrence Michels Fam. Tr., 56 P.3d 1224, 1227 (Colo. App. 2002)).
10 ¶ 23 The jury awarded each plaintiff the same amount of
damages — $593,060.70 — on each of the five claims the jury
decided, including the claim for civil theft. Ample evidence
supports this amount of damages on the civil theft claim.
¶ 24 As noted above, plaintiffs presented evidence at trial of an
agreement whereby they were collectively entitled to 40% of the
restaurant’s profits and a 40% interest in the restaurant itself.
¶ 25 At closing argument, plaintiffs’ counsel argued, based on
plaintiffs’ testimony and defendants’ profit and loss statements,
that the restaurant had made $802,000 in profits after defendants
stopped sharing profits with plaintiffs and that Lin had withdrawn
another $476,526.50 in deductions that were labeled as “cash
salary” and “salary not paid” but were actually additional profits.
Adding those sums together to $1,278,526.50, plaintiffs’ counsel
argued that plaintiffs were collectively entitled to a 40% share — or
$511,410.60 — of the profits. Plaintiffs’ counsel further argued that
the restaurant could be valued by multiplying the total profits from
the prior year ($369,000 labeled as profit and $193,239 labeled as
“salary not paid,” for a total of $562,239) times three, which would
yield a total of $1,686,717. Thus, plaintiffs’ counsel argued, the
11 jury could award plaintiffs collectively 40% of that amount —
$674,710.80 — to represent their collective 40% interest in the
restaurant.4 Therefore, between lost profits and a share of the
restaurant, plaintiffs’ counsel asked the jury to award plaintiffs
$1,186,121.40 collectively.
¶ 26 This is precisely what the jury did. It awarded each of the two
plaintiffs $593,060.70 — which, together, totals $1,186,121.40.
Because this figure is supported by the evidence presented at trial,
and because it is not a gross deviation from an acceptable amount
and is not so excessive as to shock the judicial conscience or
suggest that passion, prejudice, corruption, or other improper
cause invaded the trial, we decline to disturb it. See Tisch, ¶ 67.
¶ 27 Shoyu also challenges the trial court’s trebling of the damages,
for a total award of $1,779,182.10 for each plaintiff, arguing that
the court was mistaken in concluding that it was required by
4 Plaintiffs’ counsel made a math error of $24, as 40% of the total is
actually $674,686.80. But this difference — which Shoyu doesn’t address — is de minimis. See Nguyen v. Reg’l Transp. Dist., 987 P.2d 933, 936 (Colo. App. 1999) (declining to correct an alleged $2.65 math error in a cost award as de minimis); Compos v. People, 2021 CO 19, ¶ 35 (warning that this court shouldn’t address issues the parties don’t raise on appeal).
12 statute to treble the damages and award attorney fees. We
disagree.5
¶ 28 Under Colorado’s civil theft statute, in any civil action for theft,
“the owner may recover two hundred dollars or three times the
amount of the actual damages sustained by [the owner], whichever
is greater, and may also recover costs of the action and reasonable
attorney fees.” § 18-4-405.
¶ 29 Shoyu asserts that the statute doesn’t mandate an award of
treble damages but, rather, that its use of the word “may” confers
on a trial court the discretion to decline to award treble damages or
attorney fees. But divisions of this court have long recognized that
awards of treble damages (so long as the amount of damages, once
trebled, exceeds $200) and attorney fees on a civil theft claim are
mandatory. See Franklin Drilling & Blasting Inc. v. Lawrence Constr.
Co., 2018 COA 59, ¶ 25 n.5 (treble damages); Steward Software Co.
5 Although any challenge to the trial court’s award of attorney fees
is not part of this appeal, as the award wasn’t final at the time the appeal was filed, we consider whether attorney fees were awardable on the civil theft claim because it affects the mootness of Shoyu’s challenges relating to plaintiffs’ other claims. If attorney fees were not properly awarded on the civil theft claim but could have been awarded on one of plaintiffs’ other claims, then Shoyu’s challenge to that other claim would not be moot.
13 v. Kopcho, 275 P.3d 702, 712-13 (Colo. App. 2010) (attorney fees),
rev’d on other grounds, 266 P.3d 1085 (Colo. 2011).
¶ 30 And, contrary to Shoyu’s argument, the mandatory provision
of treble damages and attorney fees does not violate its procedural
or substantive due process rights. See Vista Resorts, Inc. v.
Goodyear Tire & Rubber Co., 117 P.3d 60, 75 (Colo. App. 2004)
(rejecting a defendant’s argument that the automatic trebling of
damages under the Colorado Consumer Protection Act violated its
rights to procedural and substantive due process); see also BMW of
N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996) (“Only when an award
can fairly be categorized as ‘grossly excessive’ in relation to [a
state’s legitimate] interests [in punishment and deterrence] does it
enter the zone of arbitrariness that violates the Due Process Clause
of the Fourteenth Amendment.”); State Farm Mut. Auto. Ins. Co. v.
Campbell, 538 U.S. 408, 425 (2003) (In comparing the ratio between
the harm to a plaintiff and the damage award, “[s]ingle-digit
multipliers are more likely to comport with due process, while still
achieving the State’s goals of deterrence and retribution, than
awards with ratios in [the] range of 500 to 1 . . . or . . . 145 to 1.”).
14 C. Shoyu’s Other Challenges to the Verdicts
¶ 31 Because we affirm the award of $1,779,182.10 plus attorney
fees and costs for each plaintiff on the civil theft claim and because
plaintiffs didn’t recover any additional damages on any of their
other claims, we needn’t address Shoyu’s contentions regarding the
other claims. This includes Shoyu’s arguments challenging the
sufficiency of the evidence to support the liability findings on the
breach of contract, fraudulent concealment, civil conspiracy, and
breach of fiduciary duty claims, as well as the damages findings on
the breach of contract, breach of fiduciary duty, and promissory
estoppel claims.
¶ 32 These challenges are effectively moot because even if Shoyu
were to prevail in challenging liability or damages on any of the
claims other than civil theft, it would have no effect on the
judgment. See Portley-El v. Colo. Dep’t of Corr., 2022 COA 86, ¶ 18
(“A claim is moot when the relief sought, if granted, would have no
practical legal effect on an actual existing controversy.”); see also
Top Rail Ranch Ests., LLC v. Walker, 2014 COA 9, ¶ 45 (the
plaintiffs’ arguments on one claim were moot because the damages
awarded for that claim were duplicative of the damages awarded on
15 another claim); Libertarian Party of Colo. v. Williams, 2016 COA 5,
¶¶ 14-18 (the trial court didn’t err by holding one claim moot where
the plaintiff had already recovered all the relief it was entitled to on
another claim), rev’d on other grounds, 2017 CO 86.
¶ 33 Accordingly, we decline to consider these challenges.
III. Motion for a New Trial
¶ 34 Shoyu also challenges the trial court’s denial of defendants’
motion for a new trial. As we’ve noted, the court didn’t rule on the
motion within sixty-three days, so the motion was deemed denied
by operation of law under C.R.C.P. 59(j). We discern no error.
¶ 35 Under C.R.C.P. 59(a) and (d), a party may request a new trial
due to, among other reasons, an irregularity in the proceedings that
prevented them from receiving a fair trial, a surprise that ordinary
prudence couldn’t have guarded against, excessive damages, or an
error in the law.
¶ 36 A trial court has “considerable discretion” when ruling on a
motion for a new trial, and we won’t disturb that ruling “absent a
clear showing of an abuse of discretion.” Zolman v. Pinnacol
Assurance, 261 P.3d 490, 502 (Colo. App. 2011). A court abuses its
discretion if its ruling is manifestly arbitrary, unreasonable, or
16 unfair or is based on a misapplication or misunderstanding of the
law. Credit Serv. Co. v. Skivington, 2020 COA 60M, ¶ 24.
¶ 37 Shoyu asserts that the trial court should’ve granted a new trial
on the bases of (1) irregularity in the proceedings, (2) surprise,
(3) excessive damages, and (4) an error in the law. Because Shoyu’s
first, second, and fourth arguments substantially overlap, we
address those three arguments together. We then separately
address its third argument.
A. Irregularity, Surprise, and Legal Error in the Proceedings
¶ 38 Shoyu contends that it was improper for plaintiffs’ counsel to
argue in closing, without advance warning, that damages should be
based in part on the market value of a 40% interest in the
restaurant. It also contends that it was improper for plaintiffs’
counsel to suggest in closing how that value might be calculated in
the absence of expert testimony or other evidence supporting the
valuation. Shoyu maintains that the trial court’s admission of
these arguments over defendants’ objection constitutes an
irregularity in the proceedings, a surprise, and a legal error, thus
warranting a new trial. We disagree for two reasons.
17 ¶ 39 First, the record indicates that throughout the proceeding,
plaintiffs clearly and consistently demonstrated that they sought
damages based on a collective 40% interest in the restaurant. For
example, in their complaint, plaintiffs asserted that they were
entitled to a 40% interest in the restaurant and provided an
estimation of that interest. Again, in the trial management order,
plaintiffs indicated that their damages were premised on their
claimed entitlement “to receive a collective forty percent (40%)
membership interest in Shoyu, including 40% of all income.” Thus,
defendants clearly had notice that plaintiffs sought damages based
on the value of the restaurant as well as the unpaid profits. And to
the extent that plaintiffs didn’t provide more precise damage
estimates earlier in the case, that was due to defendants’ own
discovery failures in providing financial documents late or not at
all.6
6 For instance, the trial court found that defendants kept an
accounting ledger (separate from the profit and loss statements they shared with plaintiffs) that would’ve shown plaintiffs’ contributions to and defendants’ cash withdrawals from the business. Defendants denied the ledger’s existence and refused to produce it. The court determined that the ledger had existed and that the appropriate sanction for its spoliation was to give the jury an adverse inference instruction on it.
18 ¶ 40 And second, there was sufficient evidence presented at trial to
support the business valuation plaintiffs’ counsel proposed in
closing argument. Plaintiffs’ counsel relied on the figures in
defendants’ own profit and loss statements, which were introduced
at trial and discussed at length in the parties’ testimony. And while
expert testimony or other evidence certainly could have supported
plaintiffs’ approach to calculating the value of the restaurant, it was
not required. “Expert testimony is needed only where the issue
does not lie within the ambit of common knowledge of ordinary
persons.” Park Rise Homeowners Ass’n v. Res. Constr. Co., 155
P.3d 427, 430 (Colo. App. 2006). As plaintiffs’ counsel argued at
trial, ordinary persons could comprehend that a business might be
worth some multiple of the annual income derived from that
business, and the restaurant’s annual income was readily
discernible from the records presented at trial. And, as the trial
court explained in overruling defense counsel’s objection, if
defendants disagreed with that proposed valuation, they could
rebut it in their own closing.
¶ 41 Accordingly, insofar as plaintiffs’ counsel’s closing argument
sought damages based in part on the value of the restaurant and
19 offered an approach to calculate that value, the argument did not
constitute an irregularity in the proceedings that deprived
defendants of a fair trial. Nor was the argument a surprise that
ordinary prudence could not have guarded against. And the trial
court’s ruling allowing the argument was not an abuse of discretion
and, therefore, was not legal error. See Blood v. Qwest Servs. Corp.,
224 P.3d 301, 322 (Colo. App. 2009) (“A trial court’s decisions
regarding the scope of closing arguments will not be disturbed
absent an abuse of discretion.”), aff’d, 252 P.3d 1071 (Colo. 2011).
We therefore discern no abuse of discretion in the denial of
defendants’ request for a new trial on the basis of irregularity,
surprise, or legal error in the proceedings. See C.R.C.P. 59(d)(1),
(3), (6); Credit Serv. Co., ¶ 24.
B. Excessive Damages
¶ 42 Shoyu also asserts that defendants should have been granted
a new trial on the basis of excessive damages. Again, we disagree.
¶ 43 When a damage award is manifestly excessive in light of the
evidence presented at trial, the trial court may grant a new trial or,
alternatively, deny a new trial conditioned on a plaintiff’s agreement
20 to remittitur of any damages deemed to be excessive. Jagow v.
E-470 Pub. Highway Auth., 49 P.3d 1151, 1157 (Colo. 2002).
¶ 44 Shoyu contends that the damage award is excessive because,
as Shoyu sees it, plaintiffs invested a combined $123,000 in the
opening of a restaurant and received much of that money back in
the initial profit-sharing payments made to them, reducing their net
investment to less than $78,000. Thus, Shoyu argues, it was
manifestly excessive for the jury to award them each $593,060.70,
for a combined total of $1,186,121.40, or more than fifteen times
the amount of their investment.
¶ 45 But the jury didn’t have to believe that plaintiffs’ investment
into the restaurant was merely a loan to be paid back. Rather, as
we’ve explained, there was ample evidence for the jury to conclude
that plaintiffs made that investment in exchange for ownership of
40% of the restaurant and the entitlement to 40% of its profits.
And, as we’ve also explained, the amount of damages awarded to
plaintiffs is supported by evidence in the record.
¶ 46 Accordingly, defendants were not entitled to a new trial or
remittitur based on excessive damages, and there was no abuse of
21 discretion in the denial of that portion of their motion. See C.R.C.P.
59(d)(5); Credit Serv. Co., ¶ 24.
IV. Postjudgment Interest Rate
¶ 47 Finally, Shoyu argues that the trial court provided the wrong
rate of interest when it ordered postjudgment interest. We agree.
¶ 48 In entering the judgment, the trial court ordered that interest
would accrue on any unpaid amount at “the statutory rate of 9%
until paid in full.” We agree with Shoyu that the rate should’ve
been 8% per annum.
¶ 49 Where, as here, there is no agreement to pay interest, the right
to interest is purely statutory and is limited to the interest provided
for by statute. Kennedy v. King Soopers Inc., 148 P.3d 385, 389
(Colo. App. 2006). Accordingly, this issue presents a matter of
statutory interpretation, which we review de novo. See Goodyear
Tire & Rubber Co. v. Holmes, 193 P.3d 821, 825 (Colo. 2008). When
statutory language is unambiguous, we give effect to its plain and
ordinary meaning without resort to rules of construction. Id.
¶ 50 Section 5-12-102, C.R.S. 2025, sets forth the general
provisions regarding the accrual of interest on money or property
that has wrongfully been withheld. Under this statute, when the
22 parties haven’t agreed to a particular rate of interest, the court
applies a rate of 8% per annum. § 5-12-102(1)(b). Section 13-21-
101, C.R.S. 2025, provides an exception to this general rule,
directing that a 9% per annum rate of interest applies to damages
in personal injury actions. § 13-21-101(1); see also § 5-12-102(1)
(the interest rate set forth in that statute applies “[e]xcept as
provided in section 13-21-101”).
¶ 51 Because this is not a personal injury action, we conclude that
section 5-12-102 applies. See Mesa Sand & Gravel Co. v. Landfill,
Inc., 776 P.2d 362, 363 (Colo. 1989); see also Herod v. Colo. Farm
Bureau Mut. Ins. Co., 928 P.2d 834, 838 (Colo. App. 1996) (“An
injury is personal when it impairs the well-being or the mental or
physical health of the victim.”). Thus, the trial court should have
imposed a postjudgment interest rate of 8%, not 9%. We therefore
23 reverse the judgment on this issue and remand the case to the trial
court to apply the correct interest rate of 8% per annum.7
V. Disposition
¶ 52 The judgment is reversed as to the trial court’s imposition of a
9% postjudgment interest rate. The judgment is affirmed in all
other respects. The case is remanded to the trial court to apply an
8% postjudgment interest rate.
JUDGE WELLING and JUDGE SULLIVAN concur.
7 Shoyu also challenges the accrual date the trial court applied in
calculating prejudgment interest on the promissory estoppel and unjust enrichment claims. But because the trial court limited the total judgment to the amount awarded on the civil theft claim, which exceeded the amount plaintiffs would’ve recovered on the promissory estoppel and unjust enrichment claims, that challenge is moot and we decline to consider it.