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Fang v. Showa Entetsu Co.11/20/2003
, 64th General Assembly, first session (March 20, 2003).
II.
Defendants contend the trial court erred when it awarded plaintiff attorney fees under the CWCA because plaintiff's complaint alleged only a claim for breach of contract and he failed to allege a wage claim until after judgment on the merits had been entered. We disagree.
Plaintiff's complaint included a general request for attorney fees. After the trial on the merits, the court reserved ruling on the issue of attorney fees and requested that plaintiff submit a statement of the law he believed entitled him to an award of fees. Plaintiff then filed a memorandum stating that the severance pay award constituted wages under the CWCA and, therefore, he was entitled to fees under that act. Defendants responded that the request for fees was improper and that plaintiff's severance package did not constitute wages under the CWCA. The trial court concluded that, while plaintiff had not alleged that the severance payment constituted wages under the CWCA in his complaint, plaintiff had properly asserted a request for fees under the CWCA. We agree with the trial court.
If an employer terminates an employee, the wages or compensation for labor or services earned and unpaid at the time of discharge is due and payable immediately. Colo. Sess. Laws 1993, ch. 192, § 8-4-104(1) at 869 (now codified with amendments at § 8-4-109(1)(a), C.R.S. 2003). Under the applicable version of the CWCA, if an employee filed a civil action to recover or collect wages and penalties due as provided by certain sections of the CWCA, the judgment must "include a reasonable attorney fee in favor of the winning party, to be taxed as part of the costs of the action." Colo. Sess. Laws 1967, ch. 398, § 80-8-14 at 861 (formerly codified at § 8-4-114; repealed Colo. Sess. Laws 2003, ch. 286, § 2 at 1863).
Thus, under the former § 8-4-114, reasonable attorney fees were awarded to the winning party whenever it was necessary for an employee to bring an action to recover wages. See Hartman v. Freedman, supra. Here, because it was necessary for plaintiff to file this action to recover his severance payment provided in the employment agreement, as the successful party he was entitled to reasonable attorney fees. See Lee v. Great Empire Broad., Inc., 794 P.2d 1032, 1037-38 (Colo. App. 1989).
Defendants' argument to the contrary notwithstanding, we agree with the trial court that plaintiff's failure to specify in his complaint the precise statute on which his claim was based did not prevent him from seeking attorney fees provided under the CWCA. Under C.R.C.P. 8(a), plaintiff was only required to put defendants on notice that he was seeking damages and reasonable attorney fees for defendants' failure to pay severance as provided in the employment agreement. Cf. Hofer v. Polly Little Realtors, Inc., 37 Colo. App. 86, 543 P.2d 114 (1975).
Similarly, pursuant to C.R.C.P. 8(a), a plaintiff should be awarded all the relief to which he is entitled under the facts set forth in the complaint, regardless of the specific claim pleaded and the specific relief sought. See also Tisdel v. Bd. of County Comm'rs, 621 P.2d 1357, 1360 (Colo. 1980)("If the plaintiff is entitled to relief under the allegations of the complaint, the court may grant it regardless of the specific remedy requested.").
Furthermore, a trial court may rule on a request for attorney fees under a theory raised for the first time after judgment. See Jensen v. Runta, ___ P.3d ___, ___ (Colo. App. No. 03CA0611, Sept. 25, 2003)(post-judgment motion for attorney fees pursuant to Colorado Common Interest Ownership Act, § 38-33.3-123(1), C.R.S. 2003, not requ
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