25CA0438 Leo v Morgan 03-05-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0438 Jefferson County District Court No. 23CV31698 Honorable Chantel Contiguglia, Judge
Kristen Leo,
Plaintiff-Appellant,
v.
Heather Morgan,
Defendant-Appellee.
JUDGMENT AFFIRMED, ORDER AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE MOULTRIE Tow and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 5, 2026
The Wilhite & Miller Law Firm, David H. Miller, Denver, Colorado, for Plaintiff-Appellant
No Appearance for Defendant-Appellee ¶1 In this action brought under the Colorado Wage Claim Act
(CWCA), sections 8-4-101 to -127, C.R.S. 2025, plaintiff, Kristen
Leo, appeals the trial court’s order denying her request for attorney
fees and costs and the judgment underlying that order. We affirm
the judgment, affirm in part and reverse in part the court’s fees and
costs order, and remand the case for further proceedings.
I. Background
¶2 This case arises from Leo’s resignation from her employment
as a personal care provider in the host home that defendant,
Heather Morgan, operated. Alleging that Morgan owed her unpaid
wages and compensation, Leo asserted claims against Morgan for
violations of the CWCA, as well as common law claims for breach of
contract, promissory estoppel, unjust enrichment, and quantum
meruit.
¶3 Morgan denied the allegations, and the case proceeded to a
two-day court trial in September 2024.
¶4 On November 1, 2024, the court issued findings of fact and
conclusions of law (the judgment). The court concluded that Leo
was Morgan’s employee and was, therefore, entitled to the
1 protections of the CWCA.1 However, the court determined that Leo
failed to prove her pay rate and her average hours worked or that
she was entitled to overtime premiums and rest break wages. The
court thus concluded that Leo was only entitled to unpaid wages at
the statutory minimum wage rate, in the amount of $4,047. The
court also determined that, because Leo failed to make a valid
written demand for her alleged unpaid wages, she wasn’t entitled to
penalties under section 8-4-109(3), C.R.S. 2025. The court
dismissed Leo’s common law claims, finding that Leo failed to
introduce competent evidence to support them.2 Therefore, the
court entered judgment against Morgan in the amount of $4,047
and granted Leo leave to file a motion for pre- and post-judgment
interest and any reasonable costs.
1 The Colorado Wage Claim Act protects only persons who are
determined to be “employees.” See Redmond v. Chains, Inc., 996 P.2d 759, 764-65 (Colo. App. 2000); § 8-4-101(5), C.R.S. 2025 (“‘Employee’ means any person . . . performing labor or services for the benefit of an employer,” but it doesn’t include “an individual primarily free from control and direction in the performance of the service, both under his or her contract for the performance of service and in fact, and who is customarily engaged in an independent trade, occupation, profession, or business related to the service performed.”). 2 Leo doesn’t challenge the court’s dismissal of her common law
claims.
2 ¶5 On November 18, 2024, Leo filed a motion for attorney fees,
costs, and interest (fees motion), along with a bill of costs. Leo’s
fees motion asserted that as the prevailing party, she was
presumptively entitled to $30,262.25 in attorney fees and $2,069.12
in costs under section 8-4-110(1)(b), C.R.S. 2025. Leo also
requested that statutory pre- and post-judgment interest be applied
to the judgment.
¶6 On the same date, Leo filed a C.R.C.P. 59 motion seeking
amendment of the judgment (Rule 59 motion). Leo asked the court
to amend (1) its conclusion that the form of Leo’s written demand
for payment of unpaid wages was insufficient to entitle her to
penalties under the CWCA; (2) its implied finding that Morgan
didn’t willfully violate the CWCA; and (3) the judgment to address
the court’s “omission” of an award of statutory attorney fees. As to
attorney fees, Leo again asserted that she was the prevailing party
and was therefore entitled to an award of reasonable attorney fees
and costs under the CWCA, in the amounts detailed in her fees
motion.
¶7 On January 21, 2025, the trial court issued an order denying
Leo’s Rule 59 motion as untimely (Rule 59 order). Nevertheless, the
3 court thoroughly addressed the substance of the arguments Leo
raised in the Rule 59 motion. In doing so, the court made
additional findings and ultimately concluded that, because Leo’s
demand for payment was made in bad faith for an undeterminable
amount of money at the time it was made, she wasn’t entitled to
penalties under section 8-4-109(3).
¶8 The court contemporaneously issued an order addressing
Leo’s request for attorney fees, costs, and interest (fees order). In
its fees order, the court noted that the substantive arguments
supporting Leo’s request for fees and costs were contained in her
Rule 59 motion. The court thus incorporated into the fees order its
findings and conclusions from the Rule 59 order. The court denied
Leo’s request for attorney fees and costs but granted her request for
interest and reduced the amount of prejudgment interest to which
Leo was entitled to a sum certain.
¶9 Leo now appeals.
II. Appellate Jurisdiction
¶ 10 Before reaching the merits of Leo’s contentions, we must first
determine whether we have jurisdiction over this appeal. See
Harding Glass Co. v. Jones, 640 P.2d 1123, 1126 (Colo. 1982).
4 ¶ 11 Our jurisdiction is limited to reviewing final judgments or
orders. USIC Locating Servs. LLC v. Project Res. Grp. Inc., 2023 COA
33, ¶ 34. Generally, “[a] judgment is final when it disposes of the
entire litigation on the merits.” Hierath-Prout v. Bradley, 982 P.2d
329, 330 (Colo. App. 1999).
¶ 12 “The timely filing of a notice of appeal is a jurisdictional
prerequisite to appellate review.” Estep v. People, 753 P.2d 1241,
1246 (Colo. 1988). C.A.R. 4(a) requires that appellants file their
notice of appeal within forty-nine days after the court enters a final
judgment. C.A.R. 4(a)(1). If a party files a timely motion under Rule
59(a) in the trial court, meaning within fourteen days of the entry of
the judgment, C.R.C.P. 59(a), the time to file the notice of appeal is
tolled until the court either timely rules on the motion or the motion
is deemed denied under Rule 59(j). C.A.R. 4(a)(3); Goodwin v.
Homeland Cent. Ins. Co., 172 P.3d 938, 944 (Colo. App. 2007).
¶ 13 Leo filed her Rule 59 motion on November 18, 2025, more
than fourteen days after the entry of the judgment, and she filed
her notice of appeal on March 10, 2025. We issued a show cause
order directing Leo to address whether this court had jurisdiction
5 over her appeal of the judgment. Leo v. Morgan, (Colo. App. No.
25CA0438, Nov. 20, 2025) (unpublished order).
¶ 14 Leo’s response to the show cause order asserts that her Rule
59 motion was timely filed on November 15, 2024, but rejected due
to a “clerical error,” and then refiled on November 18, 2024. We
conclude that it doesn’t matter when Leo filed the Rule 59 motion
because the appeal is timely regardless.
¶ 15 A final order is one that addresses both liability and damages.
Stone Grp. Holdings LLC v. Ellison, 2024 COA 10, ¶ 18. Because
prejudgment interest is a component of a damages award, an order
isn’t final until prejudgment interest is reduced to a sum certain.
Id. The judgment, therefore, didn’t become final until the court
issued the fees order. Leo’s notice of appeal was filed within
forty-nine days of the court’s issuance of the fees order. See C.A.R.
4(a). Accordingly, we have jurisdiction to consider the merits of her
appeal. See Chavez v. Chavez, 2020 COA 70, ¶¶ 20-21 (timely
notice of appeal and finality of judgment are prerequisites to
appellate jurisdiction).
6 III. Penalties Under Section 8-4-109(3)(b)
¶ 16 Leo contends that the trial court disregarded the CWCA’s plain
language by finding she didn’t make a proper written demand for
unpaid wages and interpreting section 8-4-109(3)(b) to place an
affirmative obligation on Leo, as the employee — rather than
Morgan, as the employer — to establish the amount of unpaid
wages owed to Leo. She argues that the court’s erroneous statutory
interpretation deprived her of the automatic penalties in section
8-4-109(3)(b), including the increase in the penalty amount if the
court determined Morgan’s conduct to be willful.
¶ 17 We discern no reversible error.
A. Additional Facts
¶ 18 The court acknowledged in the judgment that section
8-4-109(3)(b) mandates penalties if an employer refuses to pay an
employee their owed wages within fourteen days after the employee
sends a written demand for such wages to the employer. But the
court found that certain emails Leo sent to Morgan were insufficient
to constitute a written demand that would subject Morgan to
automatic penalties.
7 ¶ 19 In her Rule 59 motion, Leo argued that, even if the emails
weren’t a proper written demand under the CWCA, her complaint
was. In the Rule 59 order, the court noted that Leo was only
entitled to penalties under section 8-4-109(3)(b) if her written
demand met certain requirements and Morgan still failed to pay the
unpaid wages. The court denied Leo’s request for penalties because
it concluded that (1) Leo’s complaint also wasn’t a sufficient written
demand and (2) Leo’s wages weren’t “determinable” when she made
her demand.
¶ 20 In support of its conclusion that Leo’s wages weren’t
“determinable,” the court found that “[Leo’s] inaccurate and bad
faith demands provided no way for [Morgan] to determine the wages
[that] [Leo] was owed.” The court also found that Leo had failed to
establish a determinable amount of wages by presenting evidence
such as “pay stubs, time tickets, or any other documents from
which the amount due could be determined with relative accuracy.”
¶ 21 Because the court found that Morgan wasn’t liable for
statutory penalties, it declined to consider whether Morgan’s
conduct was willful.
8 B. Standard of Review
¶ 22 We review questions of statutory interpretation de novo.
Nieto v. Clark’s Mkt., Inc., 2021 CO 48, ¶ 12. Our aim is to
effectuate the legislature’s intent by giving consistent, harmonious,
and sensible effect to the entirety of a statutory scheme. Id. We
discern the legislature’s statutory intent by first “looking to the text
of the statute and giving words and phrases their plain and
ordinary meaning.” Munoz v. Am. Fam. Mut. Ins. Co., 2018 CO 68,
¶ 9. “[W]here the plain language is unambiguous, we apply the
statute as written.” Nieto, ¶ 12.
C. Applicable Law
¶ 23 Under the CWCA, an employee may file a civil action to recover
unpaid wages from a prior employer. See
§§ 8-4-109(1)(a)-(b), -110(2). “The purpose of the CWCA is to assure
the timely payment of wages and provide adequate judicial relief
when wages are not paid, and it should be liberally construed to
carry out its purpose.” Montemayor v. Jacor Commc’ns, Inc., 64
P.3d 916, 923 (Colo. App. 2002).
¶ 24 The CWCA “does not itself create any substantive right to
compensation for labor and services performed.” Barnes v. Van
9 Schaack Mortg., 787 P.2d 207, 210 (Colo. App. 1990). An
employee’s substantive right to payment is determined by the terms
of their employment agreement. Id. The CWCA simply “establishes
minimal requirements concerning when and how agreed
compensation must be paid and provides remedies and penalties for
an employer’s noncompliance with those requirements.” Id.
¶ 25 When an employee resigns, their wages become “due and
payable upon the next regular payday.” § 8-4-109(1)(b). However,
“[n]o amount is considered to be wages or compensation until such
amount is earned, vested, and determinable.” § 8-4-101(14)(a)(I).
¶ 26 The CWCA authorizes statutory penalties, in addition to the
recovery of wages, if an employer refuses to pay an employee who is
owed wages. Lester v. Career Bldg. Acad., 2014 COA 88, ¶ 15
(citing Carruthers v. Carrier Access Corp., 251 P.3d 1199, 1202
(Colo. App. 2010)). To receive statutory penalties, an employee
must first make a written demand for their unpaid wages.
§ 8-4-109(3)(a). A “written demand” is “any written demand for
wages . . . from or on behalf of an employee, including a notice of
complaint.” § 8-4-101(15).
10 ¶ 27 As relevant here, an employer who fails to pay all
“determinable wages or compensation” within fourteen days of a
written demand is subject to an automatic penalty of “two times the
amount of the unpaid wages.” § 8-4-109(3)(b)(I). The penalty
amount increases to three times the amount of the unpaid wages if
the employee can show that the employer’s refusal to pay was
willful. § 8-4-109(3)(b)(II).
D. Analysis
¶ 28 Leo contends the court erred by (1) concluding that her
complaint didn’t meet the definition of a written demand;
(2) determining she wasn’t entitled to statutory penalties under
section 8-4-109(3)(b) because her wages were undeterminable; and
(3) failing to evaluate Morgan’s conduct for willfulness.
¶ 29 We agree that Leo’s complaint meets the definition of a
“written demand” under the CWCA. See § 8-4-101(15). But we
disagree that Leo’s wages were determinable, such that she is
entitled to automatic penalties.
¶ 30 We haven’t found, and Leo doesn’t identify, a case that
considers the meaning of “determinable” wages under section
8-4-109(3)(b). However, considering the CWCA as a whole, we see
11 no reason to depart from the meaning of “determinable” wages as
the supreme court defined that term in Nieto. See Nieto, ¶ 18
(defining “determinable” wages as those that can be “‘ascertained’
pursuant to the terms of an agreement” or are “capable of being
determined, definitely ascertained, or decided upon” (first quoting
Black’s Law Dictionary 564 (11th ed. 2019); and then quoting
Merriam-Webster Dictionary, https://perma.cc/4YBM-K8VN)).
¶ 31 Leo argues that her wages were “determinable” because
Morgan had the information necessary to calculate Leo’s unpaid
wages upon receipt of Leo’s complaint.3 In support of this
argument, Leo asserts that the CWCA and Nieto are “clear” that the
“burden of keeping accurate records[] and determining [the] amount
3 Leo also argues that section 8-4-109(3)(a.5), C.R.S. 2025, provides
the “prerequisite procedural requirements” to an award of penalties under section 8-4-109(3)(b). Section 8-4-109(3)(a.5) discusses limitations on liability for an employer who “makes a legal tender of the full amount of all wages that the employee . . . in good faith demands.” Contrary to Leo’s interpretation, the trial court interpreted subsections (3)(a.5) and (3)(b) as alternative bases for awarding penalties for unpaid wages. We need not resolve which interpretation is correct because, even assuming subsection (3)(a.5) is a separate basis for — rather than a procedural prerequisite to — an award of statutory penalties, it’s undisputed that Morgan didn’t pay Leo any sum between Leo’s resignation and the entry of the November judgment. Thus, the limitations on liability contained in subsection (3)(a.5) wouldn’t apply under the circumstances here.
12 of wages an employee may be owed at the time their employment
ends rests squarely on the employer.” Leo thus appears to argue
that because employers are obligated by the CWCA to keep records
of employees’ wage-related information, it follows that an employer
has the burden to establish the amount of an employee’s
“determinable” but unpaid wages when an employee makes a wage
demand under section 8-4-109(3)(b). And she contends that the
court improperly “shift[ed] the burden” from Morgan to her to prove
the amount of her unpaid wages.
¶ 32 We acknowledge that the CWCA requires employers to
maintain records related to an employee’s wages. See
§ 8-4-103(4.5), C.R.S. 2025 (requiring employers to retain records,
including those reflecting gross wages earned and dates of pay
periods, for at least three years or be subject to fines). And in Nieto
the supreme court, referencing section 8-4-109, noted that
employers must “pay, upon [an employee’s] separation from
employment, all earned but unpaid compensation.” Nieto, ¶ 14.
But Nieto didn’t address the specific contention that Leo asserts
here: Because the CWCA requires employers to keep wage-related
records, an employer is responsible for identifying an employee’s
13 determinable wages when the employee makes a written demand
under section 8-4-109(3) — even if the amount demanded is later
found to be wildly inaccurate.
¶ 33 Leo’s reliance on Anderson v. Mt. Clemens Pottery Co., 328 U.S.
680 (1946), superseded by statute, Portal–to–Portal Act of 1947,
Pub. L. No. 80-49, 61 Stat. 84, is likewise unavailing. In Clemens,
several employees filed a lawsuit against their employer under the
Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b) (1946), alleging
they were owed unpaid overtime wages. 328 U.S. at 684. The
Supreme Court held that while an employer has a duty under the
FLSA to “keep proper records of wages, hours and other conditions
and practices of employment,” an employee has “the burden of
proving that [they] performed work for which [they] [were] not
properly compensated.” Id. at 687. And in instances where an
employer hasn’t kept proper records, an employee satisfies their
burden if they prove that they have “in fact performed work for
which [they] [were] improperly compensated and if [they] produce[]
sufficient evidence to show the amount and extent of that work as a
matter of just and reasonable inference.” Id.
14 ¶ 34 We also find unpersuasive Leo’s reliance on certain
Interpretive Notice & Formal Opinions (INFOs)4 promulgated by the
Colorado Department of Labor and Employment (CDLE).
Referencing two INFOs — Interpretive Notice & Formal Opinion
(“INFO”) #2B: Orders of Wages, Penalties, Fines, and Consequences
for Non-Compliance (last updated Aug. 1, 2023), and Interpretive
Notice & Formal Opinion (“INFO”) #3A: Timing of Wage Payments, &
Required Record-Keeping (last updated July 11, 2023) — which
each in turn reference section 8-4-109(3)(b), Leo argues that
penalties are mandatory if an employer fails to remit payment of
unpaid wages within fourteen days of a written demand. But
neither of these INFOs clearly states who — employer or
employee — initially bears the burden of establishing an employee’s
determinable wages when an employee makes a wage demand.
¶ 35 And, although not binding on us, INFO #2A says that an
employee demanding unpaid wages has the responsibility to
“provide an explanation that is clear, specific, and shows they are
4 “An INFO is an officially approved notice, opinion, or explanation
on a topic of labor law. It is not binding law.” 303 Beauty Bar LLC v. Div. of Lab. Standards & Stats., 2025 COA 20, ¶ 21 n.4.
15 entitled to wages,” supported by documentation showing “(a) that a
violation of Colorado wage and hour law may have occurred, and
(b) a reasonable estimate of wages due.” Interpretive Notice &
Formal Opinion (“INFO”) # 2A: The Wage Claim Investigation
Process (last updated Aug. 6, 2025), https://perma.cc/L8YL-79BE;
see also Dep’t of Lab. & Emp. Rule 4.2.1, 7 Code Colo. Regs. 1103-7
(An employing bringing a wage complaint must “provide an
explanation of the basis for the complaint that is clear, specific, and
shows the employee is entitled to relief . . . [and] provide sufficient
evidence from which both a violation of Colorado wage and hour
laws and an estimate of wages due may be reasonably inferred.”).
¶ 36 Nevertheless, even assuming that Morgan was responsible for
identifying Leo’s determinable wages upon receiving Leo’s
complaint, it’s undisputed that Morgan didn’t have consistent
records related to Leo’s employment. Thus, the only information
from which Morgan could have calculated Leo’s wages was the
information in Leo’s complaint. And Leo asserts that Morgan could
have and should have done just that. But, as we discuss next,
Leo’s unpaid wages weren’t ascertainable from the information she
provided in her complaint.
16 ¶ 37 Morgan and Leo didn’t have a written employment agreement.
But Leo alleged the following in her complaint:
• Morgan hired her to work from January 2023 to June 2023 to
provide “round-the-clock” care for the host home’s clients.
• Morgan verbally agreed to pay her $17.50 per hour.
• Leo worked “at least” thirteen hours per day.
• Leo left her employment with Morgan in mid-June 2023.
• Leo “estimate[d]” that she had worked 2,041 total hours
during her employment — entitling her to $29,817.50 in
outstanding wages.
But Leo also alleged contradictory facts, as follows:
• From January 2023 to March 2023 she split the full-time
duties of the job with another employee.
• Morgan required her to provide care to clients at “all hours of
the day, seven days a week, except for a 1-hour period
twice a day . . . Monday through Friday.”
• Leo worked “up to” thirteen hours every day during her
employment.
In sum, Leo alleged that between January 2023 and mid-June
2023, she worked anywhere from zero hours per day — based on
17 her statements that she worked “up to” thirteen hours per day and,
for three months, split her full-time duties with another employee in
an unspecified manner — to twenty-four hours per day. Under
these circumstances, we can’t conclude that the information in
Leo’s complaint enabled Morgan to definitively ascertain Leo’s
unpaid wages. See Nieto, ¶ 18.
¶ 38 Still, Leo argues that “[a]s proof of Morgan’s ability to make [a]
determinable wage calculation, the trial court was able to complete
this simple task with just the information presented at trial.”
(Emphasis added.) But this argument contradicts Leo’s assertion
that Morgan had all the “necessary information” to calculate Leo’s
determinable wages upon receiving her complaint and misconstrues
the court’s actions.
¶ 39 While true that the court ultimately calculated Leo’s unpaid
wages, the information supporting the court’s calculations didn’t
come from Leo’s complaint. Indeed, the court found that the
assertions Leo made in her complaint about the number of hours
she worked and her rate of pay were untrue. The court specifically
rejected Leo’s attempt to prove the hours she worked through
treatment-related administrative records from Morgan’s host home.
18 Instead, the court evaluated witness testimony, considered
numerous exhibits, and relied on the then-applicable minimum
wage rate to calculate the wages that Morgan owed Leo. Said
differently, while the court ultimately determined Leo’s wages, we
disagree that her wages were “determinable” as that term is defined
in Nieto at the time she filed her complaint. See id.
¶ 40 And because Leo’s wages weren’t “determinable,” Morgan isn’t
liable for automatic penalties under section 8-4-109(3)(b) for failing
to pay Leo within fourteen days after receiving Leo’s complaint.
Finally, because we have concluded that Morgan wasn’t liable for
automatic penalties, the trial court didn’t err by not evaluating
Morgan’s conduct for willfulness.
IV. Attorney Fees and Costs Under the CWCA
¶ 41 Leo contends that the trial court also erred by denying her
request for attorney fees and costs. We disagree with respect to the
court’s denial of Leo’s attorney fees, but we agree with respect to its
denial of her costs.
A. Standard of Review
¶ 42 Leo contends that we should review her entitlement to
attorney fees and costs de novo. We review de novo whether the
19 trial court applied the correct legal standard in reaching its decision
on attorney fees and costs. See Lester, ¶ 13. However, Leo doesn’t
challenge the legal standards the court relied on in its analysis;
instead, Leo challenges the court’s application of those standards to
this case. Accordingly, we review the court’s fees order for an abuse
of discretion. See id.
¶ 43 A court abuses its discretion when its decision is based on a
misapplication of the law or is manifestly arbitrary, unreasonable,
or unfair. Carruthers, 251 P.3d at 1210.
B. Applicable Law
¶ 44 An employee who prevails on a CWCA claim by “recover[ing] a
sum greater than the amount tendered by the employer” is
presumptively entitled to an award of attorney fees and costs.
§ 8-4-110(1)(b); Lester, ¶ 29 (citing Newman v. Piggie Park Enters.,
Inc., 390 U.S. 400, 402 (1968)); see also Carruthers, 251 P.3d at
1208 (indicating that Newman should serve as an interpretive tool
to guide the determination of attorney fee awards to prevailing
employees under the CWCA).
¶ 45 However, a prevailing employee’s presumptive entitlement to
attorney fees is rebuttable when “special circumstances would
20 render” such an award “unjust.” Lester, ¶ 31 (quoting Newman,
390 U.S. at 402). On rare occasions, special circumstances may
arise when a plaintiff brings a suit in bad faith. Id. at ¶¶ 31-32.
C. Analysis
¶ 46 Leo contends that the trial court erred by denying her attorney
fees and costs because (1) Leo’s presumptive entitlement to attorney
fees could only be rebutted by Morgan and not by the court; (2) it
wrongly determined that Leo’s CWCA demand was made in bad
faith; and (3) it failed to expressly address her request for costs.
1. Rebutting the Presumed Attorney Fee Award
¶ 47 Leo contends that “only the losing party, not the court itself,
may rebut the presumption of awarding attorney fees.” She further
notes that Morgan never attempted to rebut the presumption. In
support of her argument, Leo relies on language in Lester that says
“the losing party” may rebut the attorney fee presumption by
showing that the fee award would be unjust because of special
circumstances. Lester, ¶ 31. Leo asserts this language means that
the presumption can only be rebutted by evidence or argument from
the losing party. We decline to read Lester this narrowly for two
reasons.
21 ¶ 48 First, Lester says that special circumstances “may arise when
a plaintiff brings a suit for purposes of delay, or in bad faith; or
seeks to harass, embarrass, or abuse another party or the court.”
Id. Thus, Lester clearly contemplates a court’s consideration of a
prevailing employee’s litigation-related actions to determine whether
special circumstances rebut the presumption in favor of attorney
fees.
¶ 49 Second, to the extent that the division in Lester intended to
restrict a court’s consideration of whether special circumstances
exist to evidence solely presented by the losing party, we aren’t
bound by that division’s decision. Chavez, ¶ 13 (“[D]ivisions [of the
court of appeals] are not bound by the decisions of other
divisions . . . .”).
¶ 50 We acknowledge that Morgan didn’t respond to Leo’s fees
motion. But, as we discuss next, the court’s determination that Leo
acted in bad faith, thereby rebutting her presumptive entitlement to
attorney fees, was based on the court’s evaluation of the evidence
presented to it during trial.
22 2. Bad Faith
¶ 51 In denying Leo’s request for fees and costs, the court said,
“[B]ad faith is an example of one of the special circumstances that
rebuts the presumption of attorneys’ fees.” The court found that
Leo’s demands were made in bad faith because they were based on
inaccurate and false statements that rendered the amount of her
claimed wages undeterminable; Leo’s own evidence demonstrated
that the numbers of hours she claimed to have worked was “not
plausible”; and there was a significant discrepancy in the amount
she demanded versus what the evidence at trial demonstrated she
was actually owed. We discern no reversible error.
¶ 52 “Bad faith” includes conduct that is “stubbornly litigious” or
“disrespectful of truth and accuracy.” W. United Realty, Inc. v.
Isaacs, 679 P.2d 1063, 1069 (Colo. 1984).
¶ 53 Noting that Morgan might have paid the full amount of Leo’s
unpaid wages had Leo made a good faith demand, the court
concluded that “extensive litigation [was] the direct result of [Leo’s]
bad faith demands,” resulting in unnecessary legal fees. The record
demonstrates that Leo made unsupported demands for unpaid
wages in the amount of $57,000 and $29,817.50; however, the
23 evidence demonstrated she was only owed $4,047. The evidence
presented to the court, including Leo’s own testimony and that of
her mother, contradicted the factual allegations Leo made in her
complaint about her hours worked and pay rate.
¶ 54 The record thus demonstrates that Leo’s own evidence at best
minimally supported, and at worst directly refuted, the allegations
in her complaint. And based on her failure to produce sufficient
evidence to support her claims, Leo ultimately only recovered a
fraction of the amount that she asserted in her complaint she was
owed. Therefore, we can’t conclude that the court abused its
discretion by determining that this case fell into the rare category of
cases in which the presumptive entitlement to attorney fees was
rebutted by special circumstances.
3. Costs
¶ 55 Finally, Leo asserts that the trial court failed to affirmatively
address her request for costs. We agree.
¶ 56 A court’s award of costs must be supported by findings that
enable a reviewing court to determine the basis for the award.
Miller v. Hancock, 2017 COA 141, ¶ 46. Both the fees order and the
findings from the Rule 59 order referenced therein are silent as to
24 Leo’s request for costs. Accordingly, we reverse the fees order solely
with respect to its denial of Leo’s costs and remand this case for the
trial court to address Leo’s request for costs. See In re Marriage of
Goodbinder, 119 P.3d 584, 587 (Colo. App. 2005) (remanding case
where the trial denied party’s bill of costs without explicit findings
and conclusions of law).
V. Appellate Attorney Fees and Costs
¶ 57 Leo requests an award of appellate attorney fees and costs.
Because Leo hasn’t prevailed on her appellate argument regarding
her entitlement to penalties and attorney fees under the CWCA, we
deny her request for appellate attorney fees. Cf. Lester, ¶ 48
(awarding appellate attorney fees where party prevailed on their
CWCA argument on appeal). But because we are partially
reversing, we remand this case to the trial court to determine
whether Leo should be awarded costs related to this appeal. See
C.A.R. 39(a)(4).
VI. Disposition
¶ 58 The judgment is affirmed. The portion of the fees order
denying Leo’s request for attorney fees under section 8-4-110 is
affirmed. The portion of the fees order denying Leo’s request for
25 costs is reversed, and the case is remanded to the trial court for
consideration of Leo’s request for reasonable costs and for
determination of whether Leo should be awarded costs in
connection with this appeal under C.A.R. 39(a)(4).
JUDGE TOW and JUDGE LUM concur.