Leo v. Morgan

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

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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.

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