Lee v. Great Empire Broadcasting, Inc.

754 P.2d 783, 12 Brief Times Rptr. 348, 1988 Colo. App. LEXIS 44, 1988 WL 46585

Opinion

KELLY, Chief Judge.

Relying upon Ortega v. Board of County Commissioners, 657 P.2d 989 (Colo.App.1982), plaintiff has moved to dismiss this appeal on the grounds that the issue of attorney fees is still pending before the trial court and that, consequently, there is no final judgment subject to review.

Defendant responds that as this action was brought pursuant to the Colorado wage claim statutes, §§ 8-4-101, et seq., C.R.S. (1986 Repl.Vol. 3B), attorney fees are “to be taxed as part of the costs of the action.” Section 8-4-114, C.R.S. (1986 RepLVol. 3B) (emphasis supplied). Defendant concludes that since an outstanding claim for costs does not impair the finality of the judgment under C.R.C.P. 58(a), the appeal is proper and should be retained.

We note that § 8-4-114 directs “the judgment in such action shall include a reasonable attorney fee in favor of the winning party....” (emphasis supplied) Since the plain terms of the statute require the trial court to award attorney fees integral to the judgment, there is no discretion not to do so, and the absence of the award here renders the appeal premature. See Keeton v. Rike, 38 Colo.App. 505, 559 P.2d 262 (1977).

Accordingly, the appeal is dismissed without prejudice.

TURSI and METZGER, JJ., concur.