Dillen v. Healthone, L.L.C.

108 P.3d 297, 2004 WL 2002511
CourtColorado Court of Appeals
DecidedFebruary 14, 2005
Docket03CA1189
StatusPublished
Cited by10 cases

This text of 108 P.3d 297 (Dillen v. Healthone, L.L.C.) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dillen v. Healthone, L.L.C., 108 P.3d 297, 2004 WL 2002511 (Colo. Ct. App. 2005).

Opinions

[299]*299Opinion by

Judge TAUBMAN.

Plaintiff, Amanda K. Dillen, appeals the judgment and orders denying her prejudgment interest and costs and granting costs in favor of defendant, HealthOne, L.L.C. We affirm.

Dillen is an osteopathic physician who participated in the osteopathic intern and residency program operated by HealthOne. The contract of employment obligated HealthOne to provide an educational program in accordance with the standards set by the American Osteopathic Association (AOA). Subsequently, the AOA denied accreditation to HealthOne’s programs.

Dillen and two colleagues filed a suit against HealthOne asserting claims for (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, (3) fraud, (4) breach of fiduciary duty, (5) outrageous conduct, (6) violation of the Colorado Consumer Protection Act, (7) unjust enrichment, (8) breach of contract implied in law against a fiduciary, and (9) fraudulent concealment.

In January 2003, HealthOne sent a letter to Dillen’s counsel, pursuant to the offer of judgment statute, § 13-17-202, C.R.S.2003, offering to settle her claims for $95,000. That offer was rejected.

Subsequently, claims two, four, and eight were dismissed for failure to state a claim upon which relief could be granted. Dillen and her colleagues voluntarily dismissed claim seven.

Claims one, three, five, six, and nine were tried to a jury in March 2003. The jury found in favor of Dillen and her colleagues on their breach of contract claim, awarding each of them actual damages of $80,000, and found in favor of HealthOne on the other claims.

In May 2003, the court entered judgment pursuant to the jury award, denying Dillen her costs and awarding HealthOne its costs attributable to Dillen incurred after the January settlement letter (one-third of its costs), pursuant to § 13-17-202(l)(a)(II), C.R.S. 2003. In June 2003, the court denied Dillen’s motion for prejudgment interest and motion to vacate the award of costs. Only Dillen appeals.

I. Prejudgment Interest

Dillen argues that she is entitled to prejudgment interest because the jury awarded her damages for breach of contract. She argues that she contracted with Heal-thOne for an AOA-accredited education, which was wrongfully withheld, and for which the jury assigned a monetary value. We perceive no error.

Section 5-12-102, C.R.S.2003, provides:

(1) Except as provided in section 13 — 21— 101, C.R.S., when there is no agreement as to the rate thereof, creditors shall receive interest as follows:
(a) When money or property has been wrongfully withheld, interest shall be an amount which fully recognizes the gain or benefit realized by the person withholding such money or property from the date of wrongful withholding to the date of payment or to the date judgment is entered, whichever first occurs; or, at the election of the claimant,
(b) Interest shall be at the rate of eight percent per annum compounded annually for all moneys or the value of all property after they are wrongfully withheld or after they become due to the date of payment or to the date judgment is entered, whichever first occurs.

(Emphasis added.)

Section 5-12-102 “is to be given a broad liberal construction in order to effectuate the legislative purpose of compensating parties for the loss of money or property to which they are entitled.” Westfield Dev. Co. v. Rifle Inv. Assocs., 786 P.2d 1112, 1122 (Colo.1990). However, a plaintiff is not entitled to prejudgment interest on all compensatory damages flowing from a wrongful withholding of property. Rather, a proper award of prejudgment interest applies only to that part of the compensatory damages awarded for money or property “wrongfully withheld.” S. Park Aggregates, Inc. v. Northwestern Nat’l Ins. Co., 847 P.2d 218, 227 (Colo.App.1992). Prejudgment interest may not be awarded for future lost earnings because such earnings were not “due” or “withheld” within the meaning of § 5-12-102. [300]*300Shannon v. Colo. Sch. of Mines, 847 P.2d 210 (Colo.App.1992).

Here, neither the verdict nor the jury instruction distinguished between money or property “wrongfully withheld” and those damages attributable to loss of future profits. Regarding damages, the jury was instructed simply: “To the extent that actual damages have been proven by the evidence, you shall award as actual damages that amount of money that will put the plaintiff in the position he or she would have enjoyed had the breach not occurred.” Dillen did not submit a special interrogatory requesting that the jury assign an amount to those damages that were “wrongfully withheld.” Where parties have agreed to the form of the special interrogatories submitted to the jury, they are bound by them on appeal. Romero v. Parker, 619 P.2d 89 (Colo.App.1980).

Further, nothing in the record shows that prejudgment interest is warranted. The amount awarded by the jury is not directly related to any amount due under the contract, and the large majority of the damages testified to by Dillen’s expert was attributable to loss of future income.

A judgment is presumed to be correct until it is affirmatively proved otherwise; thus, the party asserting error on appeal must present a record that discloses the error. Levy-Wegrzyn v. Ediger, 899 P.2d 230, 232 (Colo.App.1994); see also C.A.R. 10.

Therefore, because Dillen failed to request specific findings by the jury regarding past and future damages and failed to demonstrate on appeal that her damages are subject to § 5-12-102, we perceive no error in the trial court's denial of prejudgment interest.

II. Costs

Dillen also argues that the trial court abused its discretion by awarding costs to HealthOne and denying her motion for costs. We disagree.

Section 13-17-202(l)(a), C.R.S.2003, provides in pertinent part:

(II) If the defendant serves an offer of settlement in writing at any time more than fourteen days before the commencement of the trial that is rejected by the plaintiff, and the plaintiff does not recover a final judgment in excess of the amount offered, then the defendant shall be awarded actual costs accruing after the offer of settlement to be paid by the plaintiff.
(Ill) If an offer of settlement is not accepted in writing within fourteen days after service of the offer, the offer shall be deemed rejected, and the party who made the offer is not precluded from making a subsequent offer.

Section 13-17-202, C.R.S.2003, replaced former C.R.C.P. 68 (repealed 1990), which concerned offers of judgment. The statute and rule are “very similar in that the purpose of each is to encourage the settlement of disputed claims.” Morgan v. Genesee Co.,

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Bluebook (online)
108 P.3d 297, 2004 WL 2002511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dillen-v-healthone-llc-coloctapp-2005.