24CA1059, 24CA1921 & 25CA1894 Green v US Anesthesia 02-12-2026
COLORADO COURT OF APPEALS
Court of Appeals Nos. 24CA1059, 24CA1921 & 25CA1894 Arapahoe County District Court No. 22CV32181 Honorable Don J. Toussaint, Judge
Richard Brandt Green, M.D.,
Plaintiff-Appellee and Cross-Appellant,
v.
U.S. Anesthesia Partners of Colorado, Inc., f/k/a Greater Colorado Anesthesia, and U.S. Anesthesia Partners, Inc.,
Defendants-Appellants and Cross-Appellees.
APPEAL DISMISSED IN PART, JUDGMENT AND ORDER AFFIRMED, AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE GOMEZ Pawar and Bernard*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 12, 2026
Foley & Lardner LLP, Tamera D. Westerberg, Kelsey C. Boehm, Stephanie Adamo, Denver, Colorado; Gokenbach Law, LLC, Jennifer L. Gokenbach, Denver, Colorado for Plaintiff-Appellee and Cross-Appellant
Davis Graham & Stubbs LLP, Theresa Wardon Benz, Molly Kokesh, Kylie Ngu Putnam, Denver, Colorado, for Defendants-Appellants and Cross-Appellees
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 In this consolidated appeal, defendants, U.S. Anesthesia
Partners of Colorado, Inc. (USAP-Colorado) and U.S. Anesthesia
Partners, Inc. (USAP-National), appeal the trial court’s entry of
judgment in favor of plaintiff, Dr. Richard Brandt Green, after a jury
found that defendants breached the duty of good faith and fair
dealing in their contracts with Dr. Green and awarded Dr. Green
$1.9 million in damages. Defendants also appeal the trial court’s
order awarding attorney fees and costs to Dr. Green. And
Dr. Green cross-appeals the trial court’s denial of his post-trial
motion after sixty-three days by operation of C.R.C.P. 59(j).
¶2 We dismiss Dr. Green’s cross-appeal because we conclude that
there was no final judgment before the trial court ruled on his post-
trial motion and, therefore, the motion was not deemed denied
under Rule 59(j). As to defendants’ appeals, we affirm the judgment
and the order awarding attorney fees and costs. We also remand
the case to the trial court to determine the amount of appellate
attorney fees and costs to be awarded to Dr. Green.
1 I. Background
¶3 Dr. Green is a board-certified anesthesiologist who has been
licensed to practice medicine since 1992. He practiced for several
years with a group that became Greater Colorado Anesthesia (GCA).
¶4 Then, in early 2015, USAP acquired GCA.1 In conjunction
with the acquisition, Dr. Green executed a partner agreement and a
stock agreement.
¶5 Under the partner agreement, which had a five-year term,
Dr. Green agreed to provide anesthesiology services as a full-time
physician-partner and to participate in an on-call rotation for
emergency services. Section 2.4 of the agreement required him to
“successfully apply for and maintain in good standing provisional or
active medical staff privileges at the [f]acility or [f]acilities to which
[he] is assigned by GCA,” and section 6.2.5 allowed GCA (or its
successor or assign) to terminate him based on a “loss or reduction
of medical staff privileges for cause at any of the [f]acilities to which
[he] is assigned.” The agreement didn’t specify which facility or
1 We address the relationship between GCA and the two USAP
entities that are parties to this case (USAP-National and USAP- Colorado) in Part VII below. For purposes of this background, we use the generic “USAP,” as most of the witnesses did at trial.
2 facilities Dr. Green was assigned to, and the parties disputed
whether he was ever assigned to any facilities within the meaning of
section 2.4. He had privileges at several facilities, and the parties
presented conflicting testimony as to which and how many of those
were facilities at which he regularly worked.
¶6 In connection with the merger, Dr. Green was issued more
than 300,000 shares of unvested stock. That stock would vest after
five years under the terms of the stock agreement.
¶7 Years earlier, Dr. Green had self-reported an alcohol problem
to the Colorado Physician Health Program (CPHP) and, at CPHP’s
direction, had completed an inpatient rehabilitation program.
Thereafter, he entered into a series of agreements with CPHP that
required him to abstain from alcohol. In 2015, he tested positive
for alcohol twice, resulting in his medical license being suspended
for four days in November 2015.
¶8 Dr. Green took an approved medical leave of absence from his
practice from November 2015 to March 2016. Shortly after his
return, he was diagnosed with alcohol use disorder and autism.
¶9 Due to the four-day suspension of his license, Dr. Green
automatically lost his practice privileges at most of the facilities
3 where he’d previously worked. By the time he returned to work in
March 2016, he had regained privileges at four facilities. After his
return, he continued to work on regaining privileges at the other
facilities and eventually did so at a few more of them.
¶ 10 Upon Dr. Green’s return to work, he started getting paid at an
hourly rate rather than under the established partner formula.
When he asked why, he was told it was because he was more
limited in the facilities where he could work.
¶ 11 In August 2016, USAP notified Dr. Green by letter that it was
terminating the partner agreement, and thus his status as a
partner, due to his inability to maintain privileges at the facilities
he’d been assigned to. The letter also stated that under the terms
of the stock agreement, “because [his] employment as a Physician-
Partner [was being] terminated based on a termination of
privileges/credentialing, any [c]ommon [s]tock issued to [him] will
be forfeited and will not vest.”
¶ 12 Dr. Green then applied for long-term disability benefits. That
application was denied. He also requested designation of his
termination from the partnership as due to his “disability” under
section 6.2.4 of the partner agreement, which, under the terms of
4 the partner agreement and the stock agreement, would allow him to
retain his unvested stock. That request, too, was denied.
¶ 13 Dr. Green nonetheless continued working as an employee for
USAP for another two years.
¶ 14 In 2018, Dr. Green sued defendants in federal court, alleging
claims for disability discrimination, retaliation, and breach of
contract. Green v. U.S. Anesthesia Partners of Colo., Inc., 624 F.
Supp. 3d 1201, 1208-09 (D. Colo. 2022). The federal district court
granted summary judgment in favor of defendants on the
discrimination and retaliation claims and declined to exercise
supplemental jurisdiction over the breach of contract claim. Id. at
1226. Dr. Green appealed to the Tenth Circuit, which affirmed.
Green v. U.S. Anesthesia Partners of Colo., Inc., No. 22-1319, 2023
WL 7015660, at *1 (10th Cir. Oct. 25, 2023) (unpublished opinion).
¶ 15 A month after Dr. Green filed the federal lawsuit, USAP
terminated his employment. In a letter, USAP stated that he was
terminated based on an accusation of sexual harassment at one of
the facilities where he provided services.
¶ 16 Dr. Green then filed this state court action, asserting claims
for breach of contract and breach of the implied covenant of good
5 faith and fair dealing. Following a trial, a jury rejected the breach of
contract claims but found in favor of Dr. Green and against both
defendants on the good faith and fair dealing claims. The jury
awarded Dr. Green $1.9 million in damages against USAP-National
but left blank the section on damages as to USAP-Colorado.
¶ 17 All the parties filed post-trial motions, with defendants
asserting various reasons why the jury verdict was invalid and
Dr. Green asking the court to modify the judgment to reflect that
USAP-Colorado owed him $1 in nominal damages. In an order
entered 116 days later, the trial court denied defendants’ motion
and granted Dr. Green’s.
¶ 18 Dr. Green and USAP-Colorado both requested awards of
attorney fees and costs. The trial court found that Dr. Green is the
prevailing party and accordingly granted his request, denied USAP-
Colorado’s, and awarded him attorney fees and costs.
¶ 19 Defendants raise the following challenges to the judgment:
(1) issue preclusion bars Dr. Green’s claims in this case based on
the outcome of the earlier federal litigation; (2) the implied covenant
of good faith and fair dealing doesn’t apply to the subject contracts
because they relate to Dr. Green’s employment; (3) Dr. Green can’t
6 prevail on his good faith and fair dealing claims because he didn’t
pursue any theories involving defendants’ exercise of discretionary
authority under the contracts; (4) Dr. Green can’t prevail on these
claims for the additional reason that he didn’t present sufficient
evidence to show that he substantially performed or was excused
from performance of the partner agreement; (5) errors in the jury
instructions and verdict form regarding Dr. Green’s need to prove
substantial performance require a new trial; (6) Dr. Green’s claims
against USAP-National fail because it is not a party to the subject
contracts; and (7) the trial court erred by entering judgment against
USAP-Colorado for $1. Dr. Green’s cross-appeal likewise relates to
the seventh issue. And finally, defendants challenge the trial
court’s order awarding attorney fees and costs to Dr. Green. We
address each of these issues in turn.
II. Issue Preclusion
¶ 20 We first consider defendants’ assertion that, due to the
outcome of the earlier federal litigation, issue preclusion requires
judgment in their favor. We disagree.
7 A. Preservation
¶ 21 The parties dispute whether defendants preserved this issue.
We are satisfied that defendants preserved the issue by obtaining a
definitive ruling on it through the trial court’s denial of their motion
in limine (in addition to the court’s simultaneous ruling in its denial
of summary judgment). See State Farm Mut. Auto. Ins. Co. v.
Goddard, 2021 COA 15, ¶ 73 (“A court’s definitive ruling on a
motion in limine preserves the issue for appeal.”). Dr. Green
contends that this path for review applies only to evidentiary issues
and that defendants had to raise the issue during and after trial
under C.R.C.P. 50 in order to preserve it. But the issue defendants
raised was an evidentiary one: whether Dr. Green was precluded
from offering evidence or argument at trial that contradicted certain
purported findings from the federal litigation. Accordingly, the
issue was appropriately preserved through the motion in limine.
B. Applicable Law and Standard of Review
¶ 22 Issue preclusion bars relitigation of previously decided issues
in certain circumstances. Villas at Highland Park Homeowners
Ass’n v. Villas at Highland Park, LLC, 2017 CO 53, ¶ 28. To justify
application of issue preclusion, a party must show that (1) the issue
8 is identical to an issue that was actually litigated and necessarily
adjudicated in the earlier proceeding; (2) the other party was a party
to or was in privity with a party to the earlier proceeding; (3) there
was a final judgment on the merits in the earlier proceeding; and
(4) the other party had a full and fair opportunity to litigate the
issue in the earlier proceeding. Id. at ¶ 29.
¶ 23 The parties’ dispute relates to the first requirement — that
certain issues raised in this case are identical to issues that were
actually litigated and necessarily adjudicated in the federal case.
An issue can satisfy this requirement even if the claims for relief are
different, so long as either the facts or the legal matter is the same.
Youngs v. Indus. Claim Appeals Off., 2012 COA 85M, ¶ 54.
However, a determination of the issue must have been necessary to
the judgment in the earlier proceeding. Madalena v. Zurich Am. Ins.
Co., 2023 COA 32, ¶ 23. “If issues are determined but the
judgment is not dependent upon the determinations, relitigation of
those issues . . . is not precluded . . . .” Id. (quoting Md. Cas. Co. v.
Messina, 874 P.2d 1058, 1062 (Colo. 1994)).
9 ¶ 24 Whether issue preclusion applies is a question of law that we
review de novo. Bristol Bay Prods., LLC v. Lampack, 2013 CO 60,
¶ 17.
C. Analysis
¶ 25 Defendants assert that issue preclusion applies to two facts
resolved in the federal case: (1) Dr. Green was contractually
obligated but failed to regain privileges at certain facilities; and
(2) Dr. Green was obligated by the partner agreement to take on-call
work but could not meet that obligation.
¶ 26 These issues were not actually litigated and necessarily
adjudicated in the federal case, which centered on Dr. Green’s
claims alleging disparate treatment on the basis of a disability,
failure to accommodate a disability, and retaliation for engaging in
protected conduct. Although the legal claims needn’t be the same
for issue preclusion to apply, see Youngs, ¶ 54, the factual issues
must have been resolved and must have been necessary to the
judgment in the first case, see Madalena, ¶ 23.
¶ 27 But any factual issues concerning Dr. Green’s contract
obligations — even if they were touched upon in the course of the
opinions by the federal district court and the Tenth Circuit — were
10 not necessary to the judgment on his federal claims. Instead, as
relevant here, the federal courts’ resolution of Dr. Green’s disparate
treatment claim regarding his termination from the partnership
hinged on their determination that he hadn’t established a triable
issue as to whether he was capable of performing the essential job
functions of maintaining medical privileges at facilities and staffing
on-call shifts. See Green, 624 F. Supp. 3d at 1210-14; Green, 2023
WL 7015660, at *4-5. While the federal courts may have resolved
that Dr. Green was unable to perform certain essential functions of
his position as a partner, that doesn’t necessarily signify, as a
matter of contract law, that he materially breached the partner
agreement or that any such breach wasn’t caused by defendants’
breach of the duty of good faith and fair dealing.
¶ 28 Indeed, in declining to exercise supplemental jurisdiction over
Dr. Green’s contract claim, the federal district court expressed that
“[a]lthough [it] ha[d] examined the [p]artner [a]greement at some
length for other purposes in this case, the arguments at issue in the
breach of contract claim require a degree of examination of the
language of the contract beyond that which the Court has already
considered that document.” Green, 624 F. Supp. 3d at 1226.
11 ¶ 29 Accordingly, we conclude that the trial court didn’t err in
denying defendants’ request to apply issue preclusion in this case.
¶ 30 We also conclude that even if the trial court had erred, any
error was harmless. See C.R.C.P. 61 (“[N]o error or defect in any
ruling or order . . . is ground for [relief from a judgment], unless
refusal to take such action appears to the court inconsistent with
substantial justice.”); Bly v. Story, 241 P.3d 529, 535 (Colo. 2010)
(“If an error does not affect a party’s substantial right, it must be
deemed harmless and is not grounds for reversal.”). Because the
jury rendered a general verdict, it’s impossible for us to know the
basis for its finding that defendants breached the duty of good faith
and fair dealing. Yet Dr. Green asserted bases for these claims that
were not touched upon in the federal case — specifically, that
defendants breached duties relating to the stock agreement2 as well
as the partner agreement and in conjunction with their decisions
2 Defendants contend that Dr. Green’s good faith and fair dealing
claims were based solely on the partner agreement and not the stock agreement. Not so. Throughout the case — including in the complaint and in closing argument at trial — Dr. Green referenced actions defendants took under both agreements. And the jury instructions and verdict form didn’t limit the claims to just the partner agreement.
12 regarding his disability status as well as regarding his termination
from the partnership. Thus, we cannot say that any error in the
application of issue preclusion to findings about Dr. Green’s duties
under the partner agreement affected a substantial right.
III. Applicability of the Implied Covenant
¶ 31 Next, we consider defendants’ assertion that the implied
covenant of good faith and fair dealing cannot apply to the partner
agreement or the stock agreement because those agreements relate
to Dr. Green’s employment. We disagree.
¶ 32 Colorado courts have “declined to recognize the existence of an
implied covenant of good faith and fair dealing in the context of
otherwise at-will employment contracts.” Decker v. Browning-Ferris
Indus. of Colo., Inc., 931 P.2d 436, 442 (Colo. 1997); see also
Pittman v. Larson Distrib. Co., 724 P.2d 1379, 1385-86 (Colo. App.
1986) (declining to extend the covenant to an oral contract for
employment at-will). However, as our supreme court has
recognized, the implied covenant of good faith and fair dealing
“serves to protect the integrity of all of the promises made by the
parties to [an] agreement setting forth the terms and conditions of
employment.” Decker, 931 P.2d at 443.
13 ¶ 33 Accordingly, while a former employee can’t bring a good faith
and fair dealing claim to challenge an employer’s termination of
their at-will employment, they can bring such a claim to challenge
an employer’s failure to exercise good faith and fair dealing in the
performance of its rights and obligations under a contract between
the parties. See, e.g., Soderlun v. Pub. Serv. Co. of Colo., 944 P.2d
616, 623 (Colo. App. 1997); Oberhamer v. Deep Rock Water Co., No.
CIVA 06-CV-02284-JLK, 2009 WL 1193737, at *10 (D. Colo. Apr.
29, 2009) (unpublished opinion); Beal Corp. Liquidating Tr. v.
Valleylab, Inc., 927 F. Supp. 1350, 1364 (D. Colo. 1996).
¶ 34 Here, Dr. Green hasn’t asserted a good faith and fair dealing
claim relating to at-will employment. If Dr. Green had been an at-
will employee, defendants could’ve terminated his employment at
any time and for any reason (other than an illegal one). See Rocky
Mountain Hosp. & Med. Serv. v. Mariani, 916 P.2d 519, 523 (Colo.
1996). But he wasn’t, and they couldn’t. Instead, the partner
agreement and stock agreement set forth specific grounds on which
termination could be based, as well as several other provisions
regarding the terms and conditions of employment. Accordingly,
Dr. Green’s good faith and fair dealing claims — which are premised
14 on defendants’ performance of their rights and obligations under
the two agreements — are cognizable.
IV. Challenge to the Use of Discretionary Authority
¶ 35 We now consider defendants’ assertion that Dr. Green didn’t
establish that defendants exercised discretionary authority under
the partner agreement or stock agreement. Again, we disagree.
A. Preservation
¶ 36 The parties dispute whether this issue was preserved. We
conclude that defendants sufficiently alluded to the issue in their
directed verdict motion to bring the issue to the trial court’s
attention. They then further developed the issue in their post-trial
motion, which was styled as a motion for judgment notwithstanding
the verdict and was denied. Because this issue “was brought to the
[trial] court’s attention and the court ruled on it, it is preserved for
appellate review.” In re Estate of Owens, 2017 COA 53, ¶ 21.
¶ 37 “Each party to a contract has a justified expectation that the
other will act in a reasonable manner in its performance.” Wells
Fargo Realty Advisors Funding, Inc. v. Uioli, Inc., 872 P.2d 1359,
1363 (Colo. App. 1994). To that end, “[e]very contract . . . contains
15 an implied duty of good faith and fair dealing.” New Design Constr.
Co. v. Hamon Contractors, Inc., 215 P.3d 1172, 1181 (Colo. App.
2008) (quoting Cary v. United of Omaha Life Ins. Co., 68 P.3d 462,
466 (Colo. 2003)). A violation of this duty gives rise to a legal claim.
City of Golden v. Parker, 138 P.3d 285, 292 (Colo. 2006).
¶ 38 The duty of good faith and fair dealing applies “when the
manner of performance under a specific contract term allows for
discretion on the part of either party.” New Design Constr., 215
P.3d at 1181 (quoting Parker, 138 P.3d at 292); see also Wells
Fargo, 872 P.2d at 1363 (“When one party uses discretion conferred
by the contract to act dishonestly or to act outside of accepted
commercial practices to deprive the other party of the benefit of the
contract, the contract is breached.”).
¶ 39 At its core, the duty of good faith and fair dealing “requires
only that the parties perform in good faith the obligations imposed
by their agreement.” Wells Fargo, 872 P.2d at 1363. “Whether a
party acted in good faith is a question of fact to be determined on a
case-by-case basis.” Univ. of Denver v. Doe, 2024 CO 27, ¶ 51.
¶ 40 We review de novo a trial court’s denial of a motion for
judgment notwithstanding the verdict. Parks v. Edward Dale
16 Parrish LLC, 2019 COA 19, ¶ 9. In doing so, “[w]e view the
evidence, and all inferences that may reasonably be drawn
therefrom, in the light most favorable to the nonmoving party.” Id.
at ¶ 10. A court shouldn’t grant such a motion “unless there is no
evidence that could support a verdict against the moving party on
the claim.” Id.
¶ 41 We conclude that Dr. Green presented enough evidence to
support findings that defendants exercised discretionary authority
under both the partner agreement and the stock agreement.
¶ 42 In particular, Dr. Green pointed to section 2.4 of the partner
agreement, which, as we’ve indicated, required him to “successfully
apply for and maintain in good standing provisional or active
medical staff privileges at the [f]acility or [f]acilities to which [he
was] assigned.” Although the agreement broadly defined “facilities,”
it didn’t indicate what facility or facilities Dr. Green was assigned
to, and defendants exercised discretion in determining, after
Dr. Green returned from his medical leave of absence, which and
how many facilities he needed to have privileges at and how quickly
he had to regain those privileges. Defendants resolved to allow
17 Dr. Green only four months after his return for recredentialing, but
he testified that the process usually takes a minimum of three to six
months and often up to a year.
¶ 43 Dr. Green also pointed to the following language in the
compensation plan included in the partner agreement:
Subject to established company guidelines and policies, Physician-Partner [c]ompensation shall be allocated . . . on a period basis through . . . a standard bi-monthly draw for employed Physician-Partners . . . in each case subject to the GCA Clinical Governance Board and USAP . . . .
(Emphasis added.) Dr. Green testified that when he returned from
his medical leave, defendants exercised discretion under this
provision, in combination with the provision regarding assigned
facilities, by opting to switch from paying him under the established
partner formula to paying him an hourly rate due to his limited
facility privileges.
¶ 44 Finally, Dr. Green pointed out that defendants could’ve opted
to terminate him from the partnership based on the occurrence of a
disability under section 6.2.4 of the partner agreement, as he
advocated, rather than based on his limited credentialing. Section
6.2.4 allowed defendants to terminate the agreement upon
18 Dr. Green’s disability provided that, “as determined in the sole
discretion of [the] Clinical Governance Board,” a reasonable
accommodation wasn’t required, no reasonable accommodation
would enable Dr. Green to safely and effectively perform his duties,
or legally protected leave was inapplicable or had been exhausted.
(Emphasis added.) Under this section, as well as the terms of the
stock agreement, a “disability” could occur in any of three
circumstances: (1) Dr. Green was entitled to payments under his
disability policy; (2) he was unable to resume his “normal and
complete duties” within 180 days after a disabling event or after
thirty consecutive work days of being unable to perform his duties;
or (3) he didn’t perform his duties for 180 days during a 360-day
period. Dr. Green presented evidence that defendants exercised
discretion by refusing to consider the second or third definitions of
a “disability,” deeming his conditions not “disabilities,” and
declining to apply the provisions of the partner agreement and stock
agreement that could’ve enabled him to retain his unvested stock
when he left the partnership.
19 ¶ 45 Therefore, we cannot conclude that the trial court erred in
denying defendants’ motion for judgment notwithstanding the
verdict on this basis.
V. Sufficiency of the Evidence
¶ 46 Next, we assess defendants’ challenge to the sufficiency of the
evidence supporting the jury’s verdict for Dr. Green on his good
faith and fair dealing claims. Defendants argue that there wasn’t
enough evidence to support a finding that Dr. Green substantially
performed or was excused from his performance of the partner
agreement. We are not persuaded.
¶ 47 The parties dispute whether defendants adequately preserved
this issue through their motion for a directed verdict, given that
they didn’t raise the issue again in their post-trial motion. As
Dr. Green points out, under the federal civil rules, in order to
preserve a sufficiency of the evidence argument, a party must make
a post-trial motion under Fed. R. Civ. P. 50(b). Unitherm Food Sys.,
Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 400-01 (2006). But, as
defendants point out, C.R.C.P. 50 and 59 are different from their
federal counterparts, and C.R.C.P. 59(b) expressly provides that
20 “[f]iling of a motion for post-trial relief shall not be a condition
precedent to appeal . . . , nor shall filing of such motion limit the
issues that may be raised on appeal.”
¶ 48 We need not decide this issue, however, because regardless,
we conclude that the evidence supports the jury’s verdict.
¶ 49 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 on other grounds,
2018 CO 39. Thus, we won’t disturb a jury’s verdict if there is
21 evidence in the record to support it, even if reasonable people could
reach a different conclusion based on the same evidence. Id.;
People in Interest of S.G.L., 214 P.3d 580, 583 (Colo. App. 2009).
¶ 50 Defendants contend that a plaintiff pursuing a good faith and
fair dealing claim must demonstrate either substantial performance
of their contractual duties or justification for nonperformance. To
support this contention, they rely on an unpublished federal case,
McNees v. Ocwen Loan Servicing, LLC, 853 F. App’x 211, 217 (10th
Cir. 2021). Substantial performance (or excuse for
nonperformance) certainly is required for an express breach of
contract claim. See McDonald v. Zions First Nat’l Bank, N.A., 2015
COA 29, ¶ 50; W. Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058
(Colo. 1992). However, McDonald and Western Distributing Co., the
two Colorado cases the court in McNees relied on, don’t indicate
that the same requirement applies to implied covenant of good faith
and fair dealing claims, and we are aware of no other Colorado case
law supporting that contention.
¶ 51 Nevertheless, assuming, without deciding, that a showing of
substantial performance or excuse from performance is required,
22 we conclude that the evidence presented at trial supports such a
finding in this case.
¶ 52 “A party has substantially performed when the other party has
substantially received the expected benefit of the contract.”
McDonald, ¶ 50 (quoting Stan Clauson Assocs., Inc. v. Coleman Bros.
Constr., LLC, 2013 COA 7, ¶ 9). Conversely, “[d]eviation from
contract duties in trifling particulars that do not materially detract
from the benefits the obligee would have derived from literal
performance does not constitute a material breach.” Stan Clauson,
¶ 9. And “[a] party may establish justification for nonperformance
under a contract if [they] demonstrate[] that the other party to the
contract caused [their] nonperformance.” Hemmann Mgmt. Servs. v.
Mediacell, Inc., 176 P.3d 856, 859 (Colo. App. 2007).
¶ 53 Defendants argue that Dr. Green failed to substantially
perform his obligations under sections 2.1 and 2.4 of the partner
agreement. Pursuant to section 2.1, Dr. Green’s duties included,
among other things, “participation in on-call rotation for afterhours
coverage as developed by GCA, if applicable.” And, again, section
2.4 required Dr. Green to “successfully apply for and maintain in
23 good standing provisional or active medical staff privileges at the
[f]acility or [f]acilities to which [he was] assigned by GCA.”
¶ 54 Defendants cite evidence that could’ve supported jury findings
that Dr. Green breached these provisions by failing to regain
privileges at several facilities. But the provisions are vague and
unspecific, and the parties disputed at trial what facility or facilities
Dr. Green had been assigned to within the meaning of section 2.4,
which or how many facilities he needed to have privileges with to
fulfill his obligation to participate in the on-call rotation, and how
much time he was entitled to take to regain his privileges.
¶ 55 Thus, notwithstanding defendants’ contrary evidence, the jury
could’ve found that Dr. Green either substantially performed his
obligations under the partner agreement or was excused in that
performance based on trial evidence such as the following:
• After Dr. Green returned from his medical leave of
absence, he worked eighty to a hundred hours per week.
• Dr. Green could’ve taken on-call work at those facilities
where he’d regained his privileges, but he wasn’t
scheduled to do so.
24 • Dr. Green regained his privileges at several facilities and
made significant efforts to regain privileges at others but
struggled to do so without assistance from defendants.
• Defendants withheld from Dr. Green communications
from facilities regarding compliance requirements to
regain his practice privileges.
¶ 56 Viewed in the light most favorable to Dr. Green, see Parr, 107
P.3d at 1106, this evidence sufficiently supports the jury verdict.
Accordingly, we will not disturb the verdict on this basis.
¶ 57 Finally, we note that any error was harmless. See C.R.C.P. 61;
Bly, 241 P.3d at 535. Dr. Green argued at trial that defendants
violated their good faith obligations under both the partner
agreement and the stock agreement, and because of the jury’s
general verdict, we don’t know whether the jury found for Dr. Green
based on one or both of those agreements. But if the verdict was
based on the stock agreement, any error relating to the evidence
regarding the partner agreement would’ve had no impact on it.
VI. Jury Instructions and Verdict Form
¶ 58 We next consider — and reject — defendants’ related
argument that a new trial is required because the jury instructions
25 and verdict form failed to require Dr. Green to prove either
substantial performance of his contractual duties or a justification
for nonperformance in order to recover for breach of the duty of
good faith and fair dealing.
¶ 59 The parties again contest preservation. We conclude that
defendants adequately raised their concerns with the trial court so
as to preserve the issue, particularly by proffering a verdict form
that included this element, objecting to Dr. Green’s proposed
verdict form on the basis that it didn’t do so, and suggesting that in
the alternative to their proposed verdict form they could address the
issue through an interrogatory to the jury. See Migoya v. Wheeler,
2024 COA 124, ¶ 39 (“If a party raises an argument to such a
degree that the court has the opportunity to rule on it, that
argument is preserved for appeal.” (quoting Madalena, ¶ 50)).
¶ 60 We review de novo whether jury instructions and verdict
forms, as a whole, accurately inform jurors of the governing law and
their obligations as fact finders. Bullington v. Barela, 2024 COA 56,
¶ 17 (jury instructions); People v. Miller, 2024 COA 66, ¶ 39 (verdict
26 forms). But we review a trial court’s decision to give a particular
instruction or question on a verdict form for an abuse of discretion.
See Bullington, ¶ 17; Williams v. Chrysler Ins. Co., 928 P.2d 1375,
1377-78 (Colo. App. 1996). A court abuses its discretion in this
context if its decision is manifestly arbitrary, unreasonable, or
unfair. Mosley v. Daves, 2025 COA 80, ¶ 12. It isn’t error for a
court to refuse to give a particular instruction or verdict form
question, “even if correct in legal effect, if the other instructions
[and questions] given adequately inform the jury of the applicable
law.” Peterson v. Tadolini, 97 P.3d 359, 360 (Colo. App. 2004).
¶ 61 Defendants assert that the trial court failed to inform the jury,
through its instructions and verdict form, that Dr. Green couldn’t
prevail on any claim for breach of the duty of good faith and fair
dealing if he had already materially breached the relevant contract.
¶ 62 Defendants again support their legal argument based on a
single unpublished federal case. See McNees, 853 F. App’x at 217.
Nonetheless, assuming, without deciding, that Dr. Green couldn’t
prevail on his good faith and fair dealing claims if he had committed
27 a prior material breach, we conclude that the instructions
adequately conveyed that limitation.
¶ 63 The trial court informed the jury, in Instruction 33, that “[a]ll
the instructions must be read and considered together.”
Instruction 17 — which set forth the defense of material breach —
instructed the jury that “[a] party to a contract cannot claim its
benefit where the party is the first to violate its terms” and that “[a]
material breach by one party excuses performance by the other
party to the contract.” And Instruction 25 — which set out the law
on good faith and fair dealing — instructed the jury that “[e]very
contract requires the parties to act in good faith and to deal fairly
with each other in performing or enforcing the express terms of the
contract” and that “[t]he duty of good faith and fair dealing is
breached when a party acts contrary to th[e] agreed common
purpose and the parties’ reasonable expectations.”
¶ 64 Reading Instructions 17 and 25 together, as it was required to
do, the jury would’ve understood that Dr. Green couldn’t claim a
benefit from a contract, including as to his good faith and fair
dealing claims, if he was the first to violate that contract. Likewise,
the jury would’ve understood that if Dr. Green had materially
28 breached a contract, the performance of any other parties to that
contract would’ve been excused and they no longer would’ve had
any obligation to act in good faith with respect to the contract.
¶ 65 We thus conclude that the instructions as a whole adequately
informed the jury of the law. See Tadolini, 97 P.3d at 360.
VII. Non-Party to the Contracts
¶ 66 Next, we consider USAP-National’s argument that it was
entitled to judgment notwithstanding the verdict because it was not
a party to either the partner agreement or the stock agreement and
thus couldn’t be liable for any breach of the duty of good faith and
fair dealing with regard to either agreement. We are not persuaded.
A. Applicable Law and Standard of Review
¶ 67 Where no contract exists between parties, “no claim for breach
of the covenant of good faith and fair dealing may stand.” Lutfi v.
Brighton Cmty. Hosp. Ass’n, 40 P.3d 51, 59 (Colo. App. 2001); see
also Barbara’s Lighting Ctr., Inc. v. Churchill, 540 P.2d 1110, 1111
(Colo. App. 1975) (“Generally, a contract can be enforced only
against a party to that contract.”).
29 ¶ 68 As before, we view the evidence and all inferences that might
reasonably be drawn from it in the light most favorable to
Dr. Green. See Parks, ¶ 9.
B. Analysis
¶ 69 We discern no error in the trial court’s denial of USAP-
National’s motion, as it was unclear at trial exactly who were the
parties to the two agreements at the time in question.
¶ 70 The original parties to the partner agreement were Dr. Green
and GCA, but the agreement provided that it would “inure to the
benefit of and be binding on” the parties as well as their “successors
and assigns.” USAP-National asserts that USAP-Colorado is the
successor to GCA and, therefore, that only the Colorado entity —
and not the national entity — was bound by the agreement.
Similarly, USAP-National asserts that it was not a party to the stock
agreement, which was between Dr. Green and an entirely different
entity: U.S. Anesthesia Partners Holdings, Inc.
¶ 71 As to the partner agreement, USAP-National relies largely on
the joint stipulation, which was provided to the jury, that Dr. Green
entered into that agreement “with USAP-Colorado (then known as
[GCA]).” The joint stipulations also provided that USAP-National “is
30 a national network of anesthesia providers with over 3,500 clinical
representatives located in” various states, including Colorado; that
USAP-National “created USAP-Colorado as a result of mergers and
acquisitions involving” GCA and another group; and that “USAP-
Colorado is an organization that employs physicians in Colorado.”
And, as to the stock agreement, USAP-National argues that it is not
the stock-issuing entity that entered the agreement.
¶ 72 But, as Dr. Green points out, the jury was also instructed that
“[d]efendants notified Dr. Green that [the partner agreement] was
terminated” and that it was defendants’ position that the partner
agreement “allowed the defendants to terminate the contract early.”
(Emphases added.) The instructions also repeatedly referenced the
two defendants collectively as “USAP.”
¶ 73 And the evidence at trial was murky, at best, as to what the
relationship was between GCA, USAP-Colorado, USAP-National, and
U.S. Anesthesia Partners Holdings, Inc. Throughout the trial,
counsel and the witnesses meandered back and forth between
using “USAP-Colorado” and “USAP-National” and simply using the
generic “USAP,” without any explanation. The repeated use of
“USAP” when discussing the agreements and the entities’ actions —
31 particularly combined with the instructions’ referring to defendants
jointly as “USAP” — may have suggested to the jury that both
defendants took on GCA’s obligations under the partner agreement
and were somehow related to or part of U.S. Anesthesia Partners
Holdings, Inc. such that they were parties to the stock agreement.
¶ 74 For instance:
• Dr. Green repeatedly testified that GCA was “acquired by
USAP” and that, as a result of the acquisition, he
“bec[a]me a partner in USAP.” He also testified that he
entered the stock agreement “with USAP.” At one point,
he said that “USAP” is “a national company.”
• A former colleague of Dr. Green’s and former member of
the Clinical Governing Board similarly testified that
“USAP bought out [GCA]” and “USAP . . . acquir[ed] the
practice,” after which she and Dr. Green were both
“employed by USAP.” She also explained that “although
we were a local practice, we were employed by the
national corporation.”
32 • The chair of GCA’s Clinical Governing Board at the time
of the merger — who served as a defense witness — also
testified that “GCA was acquired by USAP.”
• A former colleague of Dr. Green’s who had since become
president of USAP’s clinical operations — and who also
served as a defense witness — at times vaguely referred
to “the acquisition of GCA by USAP” and to the
physicians working at “USAP.”
• Two corporate witnesses who testified for defendants
referred to working for “USAP.” One of them also testified
that physician groups “would sell their practice in
exchange for cash and stock and become part of USAP.”
¶ 75 Also, the partner agreement contains various references to
“USAP,” which the agreement defines as USAP-National.
¶ 76 At no point did any witness — including any of defendants’
corporate witnesses — attempt to clarify the relationship between
the entities. Nor did any witness reference U.S. Anesthesia
Partners Holdings, Inc. as a distinct entity.
¶ 77 Given the murkiness of the evidence concerning the USAP
corporate entities, the evidence could support findings that USAP-
33 National was a party to the two agreements. Accordingly, the trial
court didn’t err in denying USAP-National’s motion for judgment
notwithstanding the verdict on this basis.
VIII. Modification of Damages
¶ 78 We now consider an issue raised both in defendants’ appeal
and Dr. Green’s cross-appeal: the trial court’s entry of judgment for
$1 on Dr. Green’s good faith and fair dealing claim against USAP-
Colorado. We reject USAP-Colorado’s arguments in its appeal and
dismiss Dr. Green’s cross-appeal.
A. Additional Background
¶ 79 Jury Instruction 30 informed the jury:
If you find in favor of the plaintiff, Dr. Richard Green, on his claims of . . . breach of implied covenant of good faith and fair dealing, then you must award him damages.
To award damages, you must find by a preponderance of the evidence that the plaintiff had damages as a result of the breach, and you must determine the amount of those damages.
If you find in favor of the plaintiff, but do not find any damages, you shall award plaintiff nominal damages.
(Emphasis added.)
34 ¶ 80 The verdict form separately asked the jury if it found in favor
of Dr. Green and against each of the two defendants on the good
faith and fair dealing claims. The jury answered both questions
“yes.” The verdict form then instructed that if the jury answered
“yes” to any of the previous questions, it was to “[s]tate below,” in
boxes separated out as to each claim and each defendant, “the
amount of dollars that will compensate [Dr. Green] for his damages
that were the natural and probable consequences of” the breach.
¶ 81 During deliberations, the jury asked, “If awarding damages, do
we place the total damages in each box or do we separate the dollar
amount per question/per defendant?” In response, the court
directed the jury to refer to Instruction 20, which stated,
The plaintiff, Dr. Richard Green, has sued for the same damages on two different claims for relief. The claims for relief on which the plaintiff has sued and on which you have been instructed are: breach of contract, and breach of the implied duty of good faith and fair dealing.
If you find for the plaintiff on more than one claim for relief, you may award him damages only once for the same losses.
35 ¶ 82 As we’ve noted, the jury awarded $1.9 million in damages
against USAP-National for the good faith and fair dealing claim but
left the damages section in the box for USAP-Colorado blank.
¶ 83 Pursuant to the jury verdict, the trial court issued an “entry of
judgment” entering judgment in favor of Dr. Green and against
USAP-Colorado without any reference to damages and entering
judgment in favor of Dr. Green and against USAP-National in the
amount of $1.9 million.
¶ 84 Dr. Green filed a motion, purportedly for judgment
notwithstanding the verdict, regarding the damage award against
USAP-Colorado. He argued that because the jury found in favor of
him and against USAP-Colorado on his good faith and fair dealing
claim, the jury was required to award damages against USAP-
Colorado. Thus, he asked the court to enter judgment in his favor
and against USAP-Colorado for nominal damages of $1. More than
a hundred days later, the court entered an order granting his
request and entering the requested $1 judgment.
¶ 85 We first dispose of the parties’ arguments concerning the date
the trial court entered its order granting Dr. Green’s motion. Part of
36 USAP-Colorado’s argument and the entirety of Dr. Green’s cross-
appeal argument are based on the assumption that the motion was
deemed denied after sixty-three days under Rule 59(j), such that
the trial court no longer had jurisdiction to rule on it. See De Avila
v. Est. of DeHerrera, 75 P.3d 1144, 1146 (Colo. App. 2003).
¶ 86 A motions division of this court has already concluded that
“the final judgment in this matter” wasn’t entered until September
17, 2024, the date the trial court ruled on Dr. Green’s motion
concerning the damage award. We agree.
¶ 87 “To be considered final, a judgment or order must address
both liability and damages, and damages must be reduced to a sum
certain.” Stone Grp. Holdings LLC v. Ellison, 2024 COA 10, ¶ 18
(citation omitted). Because the initial “entry of judgment” in favor of
Dr. Green and against USAP-Colorado didn’t address damages, it
wasn’t a final judgment. Thus, Dr. Green’s motion concerning the
damage award wasn’t in fact a Rule 59 motion and wasn’t deemed
denied by operation of Rule 59(j). Indeed, not only did the trial
court not lose jurisdiction to resolve the motion, it had to resolve
the issue raised in the motion in order to effectuate a final
judgment.
37 ¶ 88 Accordingly, we reject USAP-Colorado’s argument that the trial
court lacked jurisdiction to consider Dr. Green’s motion.
¶ 89 We now turn to USAP-Colorado’s other arguments challenging
the trial court’s entry of judgment for $1. USAP-Colorado argues
that (1) the court fundamentally altered the jury’s decision to only
award damages against USAP-National; (2) Dr. Green needed to
have objected to the verdict before the jury was discharged; and
(3) the order constituted an improper use of additur. We disagree.
¶ 90 First, the court didn’t fundamentally alter the jury’s decision.
Instead, it corrected a technical error in the jury’s verdict. A court
generally may amend a verdict with respect to matters of form —
changes that correct a technical error made by the jury — but not
matters of substance — changes that affect the jury’s underlying
determination. Weeks v. Churchill, 615 P.2d 74, 75 (Colo. App.
1980). And under the law, as well as the court’s instructions, the
jury was required to award nominal damages against USAP-
Colorado after it found that USAP-Colorado breached its duty of
good faith and fair dealing and apparently found that Dr. Green
wasn’t harmed as a result of that breach. See Interbank Invs., LLC
v. Eagle River Water & Sanitation Dist., 77 P.3d 814, 818 (Colo. App.
38 2003) (“When a plaintiff establishes breach, but does not prove
actual damages, the plaintiff is entitled to nominal damages.”).
Because the jury didn’t do so, it was appropriate for the court to
correct the error as it did, in a way that didn’t alter either the jury’s
finding that USAP-Colorado committed a breach or its apparent
finding that Dr. Green didn’t suffer any resulting damages.3
¶ 91 Second, while a party must “object to a general verdict . . .
before the jury is discharged” if they believe there are
inconsistencies in the verdict, In re Estate of Chavez, 2022 COA
89M, ¶ 31, Dr. Green didn’t seek to challenge any inconsistency in
the jury’s verdicts. Instead, he sought to correct a technical error.
Therefore, there was no need to raise the issue before the jury was
3 The jury may have been confused by the verdict form, coupled
with the instructions and the trial court’s response to its question about damages. While the court’s response and the underlying instructions were technically correct, the verdict form required the jury to separately award damages on each claim and as to each defendant. Thus, once the jury had awarded damages against USAP-National, it may have felt that the instruction to “award . . . damages only once for the same losses” prevented it from entering any amount at all against USAP-Colorado. But regardless of what led to the jury’s failure to follow the trial court’s instructions regarding nominal damages, it was proper for the court to fix it.
39 discharged. And, as we’ve indicated, the issue needed to be
resolved before the judgment could be deemed final.
¶ 92 And third, USAP-Colorado didn’t raise its additur argument in
the trial court. USAP-Colorado suggests that it didn’t have an
opportunity to address the issue there. But it filed a response to
Dr. Green’s motion in which it raised its other arguments and
could’ve raised this one as well. Accordingly, we consider the
argument not preserved and decline to consider it. See City &
County of Denver v. Bd. of Cnty. Comm’rs, 2024 CO 5, ¶ 70.
¶ 93 Finally, we dismiss as moot Dr. Green’s appeal, in which he
challenges the trial court’s denial of his motion by operation of Rule
59(j) and asks us to remand the case with instructions to award
him nominal damages of $1. Our conclusion that the trial court
has already properly taken this action moots the relief Dr. Green
seeks on appeal. See Oracle Corp. v. Dep’t of Revenue, 2017 COA
152, ¶ 68 (a party’s cross-appeal was moot because, based on the
division’s disposition of the appeal, the party “would not be entitled
to any additional relief”), aff’d on other grounds, 2019 CO 42.
40 IX. Attorney Fee and Cost Award
¶ 94 We now turn to defendants’ challenge to the trial court’s award
of attorney fees and costs to Dr. Green. Defendants don’t challenge
the amount of the award. Instead, their challenge is limited to the
trial court’s determination that Dr. Green is the prevailing party
and, thus, that he is entitled to an award of attorney fees and costs
under the partner agreement. We reject their challenge.
¶ 95 Colorado courts follow the American rule, which, absent an
exception, requires parties to a lawsuit to pay their own legal
expenses. S. Colo. Orthopaedic Clinic Sports Med. & Arthritis
Surgeons, P.C. v. Weinstein, 2014 COA 171, ¶ 10. Through a fee-
shifting provision, however, the parties to a contract may agree
that, in the event of litigation, the prevailing party will be entitled to
recover their attorney fees and costs. Id.
¶ 96 The determination of which party prevailed is committed to the
trial court’s discretion. Lawry v. Palm, 192 P.3d 550, 569 (Colo.
App. 2008). Thus, we review the court’s prevailing party decision
for an abuse of discretion and “will not disturb such a decision if it
is supported by the record.” Whiting-Turner Contracting Co. v.
41 Guarantee Co. of N. Am. USA, 2019 COA 44, ¶ 56; see also Anderson
v. Pursell, 244 P.3d 1188, 1194 (Colo. 2010) (recognizing that “the
trial court is in the best position to observe the course of the
litigation and to determine which party ultimately prevailed”).
¶ 97 In making a prevailing party determination, a trial court
“should examine the overall context of the case and should consider
where in the case the parties spent the majority of their time and
resources.” Anderson, 244 P.3d at 1194 (citation omitted). “[T]he
number of claims upon which a party prevails and the amount
awarded for such claims are not determinative of who is the
prevailing party . . . .” Grynberg v. Agri Tech, Inc., 985 P.2d 59, 64
(Colo. App. 1999), aff’d, 10 P.3d 1267 (Colo. 2000). Nonetheless,
the prevailing party “must succeed on a significant issue in the
litigation and achieve some of the benefits sought.” Anderson, 244
P.3d at 1194.
B. Additional Background
¶ 98 Dr. Green sought attorney fees pursuant to section 11.3 of the
partner agreement, which provides,
In the event that either party commences an action to enforce or seek a declaration of the parties’ rights under any provision of this
42 Agreement, the prevailing party shall be entitled to recover its legal expenses, including, without limitation, reasonable attorneys’ fees, costs and necessary disbursements, in addition to any other relief to which such party shall be entitled.
¶ 99 Green also requested his costs under this same section, as
well as C.R.C.P. 54(d), which permits the prevailing party in
litigation to recover their reasonable costs.
¶ 100 The trial court determined that section 11.3 of the partner
agreement applies to this case and that Dr. Green is the prevailing
party. The court accordingly awarded him $541,644.36 in attorney
fees. The court also agreed that he is entitled to costs pursuant to
Rule 54(d) and awarded him $49,637.52 in costs.4
¶ 101 Because Dr. Green was successful on his good faith and fair
dealing claims against both defendants and achieved some of the
benefits he sought in this case, including a damage award of $1.9
4 Dr. Green filed a motion for reconsideration of this award, seeking
additional fees. 104 days later, the court entered a void order awarding Green an additional $41,930 in attorney fees. See C.R.C.P. 59(j); De Avila v. Est. of DeHerrera, 75 P.3d 1144, 1146 (Colo. App. 2003). While defendants noted this issue in a notice regarding supplemental briefing, the ruling on Dr. Green’s motion for reconsideration is not a part of this appeal.
43 million, we conclude that the trial court didn’t abuse its discretion
in determining that he is the prevailing party.
¶ 102 We reject defendants’ contrary arguments as follows:
• We are not convinced that the trial court failed to apply
the correct standard for determining the prevailing party.
The court cited the appropriate standard, and there is
nothing in its order suggesting that it failed to apply that
standard in its ruling.
• It was within the trial court’s discretion to find Dr. Green
the prevailing party, notwithstanding that he didn’t
prevail on his contract claims, as he prevailed on his
good faith and fair dealing claims and obtained much of
the benefit he sought from the lawsuit.
• It was within the trial court’s discretion to find Dr. Green
the prevailing party as to USAP-Colorado, even though he
didn’t recover any damages against that entity. See
Regency Realty Invs., LLC v. Cleary Fire Prot., Inc., 260
P.3d 1, 6 (Colo. App. 2009) (a party may be the prevailing
party even if they didn’t recover any damages).
44 • As we’ve noted, there was sufficient evidence at trial to
support a finding that USAP-National was subject to the
partner agreement as an assignee or successor to GCA.
¶ 103 Therefore, we decline to disturb the trial court’s decision.
X. Appellate Attorney Fees and Costs
¶ 104 Lastly, we consider both sides’ requests for appellate attorney
fees and costs under the partner agreement’s prevailing party
provision. Because we affirm the judgment entered in favor of
Dr. Green, we grant Dr. Green’s request and deny defendants’
request. We exercise our discretion to remand the case to the trial
court to determine the amount of reasonable appellate attorney fees
and costs to be awarded to Dr. Green. See C.A.R. 39.1.
XI. Disposition
¶ 105 Dr. Green’s cross-appeal is dismissed. The judgment and the
order awarding attorney fees and costs are both affirmed, and the
case is remanded to the trial court to determine the amount of
appellate attorney fees and costs to be awarded to Dr. Green.
JUDGE PAWAR and JUDGE BERNARD concur.