Pennington v. Go In Pro

• Court: Colorado Court of Appeals
• Decided: May 29, 2025
• Docket: 22CA0169
• Status: Unpublished

Opinion

22CA0169 Pennington v Go In Pro 05-29-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0169 El Paso County District Court No. 19CV32187 Honorable Gregory R. Werner, Judge

Brian C. Pennington,

Plaintiff-Appellee,

v.

Go In Pro, LLC, a Colorado limited liability company, and Nickolas Dalan Alexander,

Defendants-Appellants.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division II Opinion by JUDGE LUM Fox and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 29, 2025

No Appearance for Plaintiff-Appellee

Go In Pro, LLC, Pro Se

Nickolas Dalan Alexander, Pro Se ¶1 Defendants, Go In Pro, LLC and Nickolas Dalan Alexander,

appeal the district court’s judgment in favor of plaintiff, Brian C.

Pennington. We affirm in part and reverse in part.

I. Background

A. Facts

¶2 Go In Pro is a single-member Colorado limited liability

company (LLC) owned by Alexander. Pennington was employed by

Go In Pro from February 4 to May 2, 2019. Pennington’s

employment agreement stated that Go In Pro would pay him $4,000

bi-weekly (for an annual salary of $96,000), along with a “relocation

package deposit” of $50,000 for the purchase of a property located

in Olney Springs. The agreement was signed by Pennington and by

Alexander on behalf of Go In Pro.

¶3 In January 2019, Pennington relocated from North Carolina to

Colorado to work for Go In Pro. The next month, Go In Pro sent a

check for $48,892.35 to a title company for the purchase of the

Olney Springs property. Alexander (in his individual capacity) and

Pennington were both named on the deed as the property’s owners.

¶4 Over the next few months, Pennington made multiple

complaints to Alexander about nonpayment of his earned wages.

1 Go In Pro then terminated its employment contract with

Pennington, citing poor performance.

B. Procedural History

¶5 Pennington filed claims against Alexander and Go In Pro,

asserting that he was paid only $3,550 between February 4 and

May 2, 2019, and that Go In Pro misrepresented its financial ability

to pay him according to the terms of the employment agreement.

Pennington asserted ten claims against Alexander and Go In Pro:

violation of the Colorado Wage Claim Act (CWCA), sections 8-4-

103(1)(a), 8-4-109(3)(b), and 8-4-109(3)(c), C.R.S. 2024 (unpaid

wage claim); “luring”; fraudulent and negligent misrepresentation as

to employment compensation and the relocation benefit; promissory

estoppel; breach of contract; unjust enrichment; abuse of process;

and outrageous conduct.

¶6 Alexander and Go In Pro jointly denied liability and

counterclaimed for partition, alleging that Alexander and

Pennington each held a one-half interest in the Olney Springs

property.

¶7 The parties then filed cross-motions for summary judgment.

The primary summary judgment issue was whether Pennington was

2 an employee within the meaning of the CWCA — and therefore

entitled to an award of unpaid wages under that statute — or an

independent contractor.

¶8 In its order addressing the summary judgment motions, the

district court (1) concluded that Pennington was an employee of Go

In Pro and not an independent contractor and (2) dismissed

Pennington’s claims for unjust enrichment and outrageous conduct.

Pennington’s remaining claims (unpaid wage claim, luring,

fraudulent and negligent misrepresentation, promissory estoppel,

breach of contract, and abuse of process) and Alexander and Go In

Pro’s partition counterclaim were set for trial.

¶9 After a three-day bench trial, the court (1) ruled in

Pennington’s favor on the unpaid wage claim, finding that Go In Pro

and Alexander were jointly and severally liable for $14,594 in

unpaid wages and $19,383 in statutory penalties for willful

nonpayment; (2) dismissed the rest of Pennington’s claims and the

partition counterclaim; and (3) ordered Alexander to execute a

quitclaim deed conveying the Olney Springs property to Pennington

within fourteen days.

3 ¶ 10 Alexander and Go In Pro assert that the district court erred by

(1) concluding that Pennington was an employee under the CWCA;

(2) determining that Alexander was jointly and severally liable for

the unpaid wages and statutory penalties; (3) concluding that

Pennington properly made a wage demand; and (4) ordering

Alexander to quitclaim the Olney Springs property to Pennington.

We address each contention in turn.

II. Pennington’s Employee Status

¶ 11 Go In Pro1 first contends that the district court erred by failing

to apply the factors listed in subsections (1)(b) and (1)(c) of section

8-70-115, C.R.S. 2024, of the Colorado Employment Security Act

(CESA) and related case law when determining Pennington’s

employment status. See Long View Sys. Corp. USA v. Indus. Claim

Appeals Off., 197 P.3d 295 (Colo. App. 2008); Softrock Geological

Servs., Inc. v. Indus. Claim Appeals Off., 2012 COA 97, aff’d, 2014

CO 30. We perceive no basis for reversal.

1 Because Pennington was Go In Pro’s employee, we refer only to

that entity in this section.

4 A. Standard of Review and Applicable Law

¶ 12 We review de novo a trial court’s order granting or denying a

motion for summary judgment. Martini v. Smith, 42 P.3d 629, 632

(Colo. 2002). Summary judgment is appropriate only if there is no

genuine issue as to any material fact and the moving party is

entitled to a judgment as a matter of law. C.R.C.P. 56(c); Edwards

v. New Century Hospice, Inc., 2023 CO 49, ¶ 16.

¶ 13 The CWCA defines an “employee” as “any person . . .

performing labor or services for the benefit of an employer.” § 8-4-

101(5), C.R.S. 2024. Under the statute, “relevant factors in

determining whether a person is an employee include the degree of

control the employer may or does exercise over the person and the

degree to which the person performs work that is the primary work

of the employer.” Id. A person who is “primarily free from control

and direction in the performance of the service . . . and who is

customarily engaged in an independent trade, occupation,

profession, or business related to the service performed is not an

‘employee.’” Id.

¶ 14 Whether an employment relationship exists is generally a

question of fact. Diamond Circle Corp. v. Blocher, 691 P.2d 769, 770

5 (Colo. App. 1984). A factual issue may be resolved on summary

judgment if none of the underlying relevant facts are disputed and if

reasonable minds could draw only one inference from them. People

in Interest of S.N. v. S.N., 2014 CO 64, ¶ 18.

B. Analysis

¶ 15 Go In Pro sets forth the various CESA factors that it argues

the district court should have applied when determining

Pennington’s status, and it asserts in a conclusory manner that

Pennington is an independent contractor under those factors.

However, Go In Pro doesn’t explain why application of the CESA

factors would lead to a different outcome than what the district

court reached or direct us to any evidence in the record to support

its arguments. And although Go In Pro argues that the district

court should have evaluated Pennington and Go In Pro’s

relationship under the totality of the circumstances, it fails to

articulate which relevant circumstances the court overlooked.

¶ 16 Further, to the extent Go In Pro argues that it was error for

the district court to resolve the question of Pennington’s

employment status at summary judgment, that argument is also

undeveloped because Go In Pro didn’t explain in any detail why

6 there was a material dispute as to Pennington’s status or cite any

facts in the record that would support a conclusion that Pennington

was an independent contractor rather than an employee. C.R.C.P.

56(c).

¶ 17 While we liberally construe filings by self-represented litigants,

we cannot “invent[] arguments not made by the pro se party.”

Minshall v. Johnston, 2018 COA 44, ¶ 21. Because Go In Pro hasn’t

adequately developed its arguments, we won’t consider them

further. See Woodbridge Condo. Ass’n v. Lo Viento Blanco, LLC,

2020 COA 34, ¶ 44 (declining to address undeveloped and

conclusory assertions of error made without supporting argument),

aff’d, 2021 CO 56.

III. Joint and Several Liability

¶ 18 Alexander contends that the district court erred by concluding

that he was “jointly and severally liable” with Go In Pro for

Pennington’s unpaid wages because Pennington was employed

solely by Go In Pro and not by Alexander. Based on the district

court’s factual findings in this case, we agree.

7 A. Standard of Review

¶ 19 We review a district court’s factual findings for clear error, but

we review de novo the court’s application of the governing legal

standard to the facts. Blakeland Drive Invs., LLP IV v. Taghavi,

2023 COA 30M, ¶ 28.

B. Applicable Law

¶ 20 In general, a member or manager of an LLC is not personally

liable for the LLC’s debts, obligations, or liabilities. § 7-80-705,

C.R.S. 2024. However, in “extraordinary circumstances” a court

may pierce the corporate veil to impose personal liability on the

LLC’s members. Million v. Grasse, 2024 COA 22, ¶ 24.

¶ 21 In 2003, the Colorado Supreme Court concluded that the

CWCA doesn’t impose personal liability on officers or agents of a

corporate entity when the corporate entity employer fails to make

wage payments. Leonard v. McMorris, 63 P.3d 323, 333 (Colo.

2003). The supreme court’s reasoning was largely based on the

then-current definition of “employer” when viewed in the context of

related provisions of the CWCA, the CWCA’s overarching purpose,

and the lack of “evidence of specific intent by the General Assembly

8 to disregard well-established principles of corporate and agency

law.” Id.

¶ 22 In 2018, a division of this court concluded that Leonard did

not bar a court from imposing personal liability on a corporate

officer for wage claims against a corporate entity employer if the

claimant successfully pierced the corporate veil. Paradine v. Goei,

2018 COA 55, ¶ 1.

¶ 23 In 2019 — after Leonard and Paradine were announced — the

General Assembly revised the CWCA’s definition of “employer” to be

the same as the definition in the federal Fair Labor Standards Act of

1938: “‘Employer’ includes any person acting directly or indirectly

in the interest of an employer in relation to an employee . . . .” 29

U.S.C. § 203(d); Ch. 182, sec. 2, § 8-4-101(6), 2019 Colo. Sess.

Laws 2058-59. Many cases interpreting this language have

concluded that corporate officers or other individuals acting on

behalf of corporate entities may be “employers” and, therefore, may

be personally liable for unpaid wage claims brought by employees of

the corporate entity. In such cases, an individual’s “employer”

status was based on factual findings that the individual had control

over, or was highly involved in, the operational decisions of the

9 corporate entity or the supervision of the employee. See, e.g.,

Ventura v. Bebo Foods, Inc., 738 F. Supp. 2d 1, 5-6 (D.D.C. 2010)

(majority owner of food and restaurant businesses personally liable

as an employer because he had “operational control” over corporate

defendants); Moon v. Kwon, 248 F. Supp. 2d 201, 237-38 (S.D.N.Y.

2002) (hotel president jointly and severally liable with hotel as

employer because he “played an intimate role in the day-to-day

operations of the hotel” and supervised work responsibilities and

employment conditions); Duncan v. Perdue, 988 F. Supp. 992, 994

(W.D. Va. 1997) (owner and chief executive officer of corporate

employer jointly and severally liable for unpaid wages because he

“dealt exclusively with the plaintiffs in regard to the terms of their

employment”).

C. Analysis

¶ 24 Here, the district court found that Pennington is Go In Pro’s

employee, but it didn’t find that he was Alexander’s employee or

that Alexander was an “employer” within the meaning of the CWCA.

And although Pennington argued briefly at trial that the district

court should pierce the corporate veil, the court apparently declined

10 to do so.2 Because the court didn’t make any of these findings, it

erred by imposing personal liability on Alexander for the unpaid

wage claim.

IV. Wage Demand

¶ 25 Alexander and Go In Pro next argue that the district court

erred by imposing a statutory penalty because Pennington didn’t

make a wage demand before filing his complaint. We disagree.

A. Standard of Review

¶ 26 Under the circumstances of this appeal, whether Pennington

made a wage demand presents a mixed question of fact and law.

We review the district court’s findings of fact for clear error, and we

review de novo the legal conclusions that the court drew from its

factual findings. See E-470 Pub. Highway Auth. v. 455 Co., 3 P.3d

18, 22 (Colo. 2000). To the extent that the district court’s decision

rested on statutory interpretation, we also review that interpretation

de novo. See Mook v. Bd. of Cnty. Comm’rs, 2020 CO 12, ¶ 24.

2 Pennington didn’t file any briefing in this appeal, and we see

nothing in the record indicating that the court ruled on Pennington’s veil piercing argument.

11 B. Analysis

¶ 27 A terminated employee may bring a claim for “wages . . .

earned, vested, determinable, and unpaid at the time of

[termination].” § 8-4-109(1)(a). If an employer does not tender

payment within fourteen days of an employee’s written demand for

unpaid wages, the employer is subject to statutory penalties. § 8-4-

109(3)(b). The penalty amount is higher if a court finds that an

employer’s failure to pay was “willful.” § 8-4-109(3)(b)(II). The

statute defines “written demand” as any request “for wages or

compensation from or on behalf of an employee . . . mailed or

delivered to the employer’s correct address.” § 8-4-101(15).

¶ 28 As best we understand the arguments, Go In Pro contends

that Pennington is not entitled to statutory penalties because his

complaint (1) did not allege a violation of the CWCA and (2) did not

allege “that [Pennington] issued a demand to either [defendant]

prior to instituting a claim in court.” We reject both contentions.

¶ 29 First, Pennington’s complaint clearly alleged that Go In Pro

violated the CWCA. Pennington’s “Fifth Claim of Relief” is expressly

titled, “Violation of the Colorado Wage Act.” It sets forth employers’

12 statutory duty to pay all earned wages and details the amount of

unpaid wages allegedly owed by Go In Pro.

¶ 30 Second, the CWCA does not require employees seeking unpaid

wages to make a written demand before filing a civil action or to

allege in their complaint that they have done so. See § 8-4-

109(3)(a). Pennington’s complaint itself meets the broad statutory

definition of “written demand,” which simply requires a written

request for the payment of unpaid wages and the delivery of such

request to the employer. § 8-4-101(15). Pennington’s complaint

says that “[t]his Complaint serves . . . as a ‘written demand’ that

Defendants immediately tender payment of Mr. Pennington’s earned

but unpaid wages,” and the complaint was delivered to Go In Pro.

Therefore, we conclude that Pennington met all the criteria for

making a written demand and that the district court did not err by

ordering Go In Pro to pay statutory penalties.

V. Olney Springs Property

¶ 31 Finally, Alexander contends that the district court lacked

authority to order him to quitclaim the Olney Springs property to

Pennington. We conclude that additional findings and conclusions

are necessary.

13 A. Standard of Review

¶ 32 To the extent the district court’s order was based on an

interpretation of the relief available under the CWCA, we review de

novo the court’s statutory interpretation and whether it applied the

correct legal standard. See Ferguson v. Spalding Rehab., LLC, 2019

COA 93, ¶ 8 (statutory interpretation); Wal-Mart Stores, Inc. v.

Crossgrove, 2012 CO 31, ¶ 7 (legal standard).

¶ 33 To the extent the district court ordered the quitclaim as

injunctive relief, we review its order for an abuse of discretion. See

Rocky Mountain Animal Def. v. Colo. Div. of Wildlife, 100 P.3d 508,

518 (Colo. App. 2004) (“Entry or denial of injunctive relief is a

discretionary decision of the [district] court that will not be

disturbed on appeal absent an abuse of discretion.”). A district

court abuses its discretion if its decision is “manifestly arbitrary,

unreasonable, or unfair” or if it misapplies the law. Streu v. City of

Colorado Springs, 239 P.3d 1264, 1268 (Colo. 2010); No Laporte

Gravel Corp. v. Bd. of Cnty. Comm’rs, 2022 COA 6M, ¶ 24.

¶ 34 As a remedy for his claims involving the Olney Springs

property — breach of contract, luring, fraudulent and negligent

14 misrepresentation, and abuse of process — Pennington requested

that the district court order Alexander to remove his name from the

property’s deed. However, the district court ultimately dismissed

those claims, along with Alexander’s partition counterclaim. The

only claim on which Pennington prevailed was his CWCA claim.

¶ 35 The district court did not find that the employment

agreement’s $50,000 relocation benefit constituted unpaid wages

under the CWCA. Further, the district court’s order does not cite,

and we cannot find, any provision of the CWCA that grants the

court authority to order relief regarding property ownership. See

§§ 8-4-101 to -127, C.R.S. 2024. And to the extent the district

court relied on some authority outside the CWCA to enter the

quitclaim order, it doesn’t explain what that is. Absent a finding

that the $50,000 benefit was unpaid wages or another explanation

as to why the district court ordered Alexander to quitclaim the

property to Pennington, we are unable to determine the basis for

the court’s decision.

¶ 36 We therefore conclude that the district court erred by ordering

Alexander to quitclaim his ownership interest in the Olney Springs

property without identifying or explaining its rationale for doing so.

15 See In re Marriage of Rozzi, 190 P.3d 815, 822 (Colo. App. 2008) (“A

trial court’s order must contain findings of fact and conclusions of

law sufficiently explicit to give an appellate court a clear

understanding of the basis of its order and to enable the appellate

court to determine the grounds upon which it rendered its

decision.”). We reverse that portion of the district court’s order and

remand the case for the court to reconsider whether to enter relief

related to the Olney Springs property and enter sufficient additional

findings and conclusions to explain the basis for its decision.

VI. Disposition

¶ 37 The portion of the judgment ordering Go In Pro to pay

Pennington unpaid wages and statutory penalties is affirmed.

¶ 38 The portion of the judgment finding Alexander jointly and

severally liable for the unpaid wages and statutory penalties is

reversed.

¶ 39 The portion of the judgment ordering Alexander to quitclaim

his interest in the Olney Springs property to Pennington is reversed

and remanded for proceedings consistent with this opinion.

¶ 40 The portions of the judgment unaffected by this appeal remain

undisturbed.

16 JUDGE FOX and JUDGE GOMEZ concur.