Heidi Oster, individually and as a member of Horizon Women's Care Professional, LLC; and Horizon Women's Care Professional, LLC, a Colorado limited liability company, Plaintiffs-Appellees,
Judy Baack, Defendant-Appellant
Douglas County District Court No. 07CV1443. Honorable Richard B. Caschette, Judge.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS.
Allen & Vellone, P.C., Patrick D. Vellone, Jordan Factor, Tatiana G. Popacondria, Denver, Colorado; Lowe, Fell & Skogg, LLC, Kenneth K. Skogg, Dana B. Baggs, Denver, Colorado, for Plaintiffs-Appellees.
Hershey Decker, Kari M. Hershey, Carmen N. Decker, Lone Tree, Colorado, for Defendant-Appellant.
Opinion by JUDGE DAILEY. Webb and Richman, JJ., concur.
[¶1] Defendant, Judy Baack, appeals from the trial court's order denying her C.R.C.P. 60 motion to vacate an award of attorney fees and costs that had previously been entered in favor of plaintiffs, Heidi Oster and Horizon Women's Care Professional, LLC (Horizon).
[¶2] Baack raises here an issue of first impression, that is, whether a party who has not directly appealed from an order awarding attorney fees and costs may still challenge that award under C.R.C.P. 60. Because, under the particular circumstances of this case, we agree that Baack was entitled to do so, we reverse the trial court's fees and costs award and remand with directions.
[¶3] Doctors Oster and Baack owned and practiced medicine at Horizon. Oster and Horizon severed Baack's employment following the loss of her medical license and brought a declaratory judgment action seeking, as pertinent here, a declaration that Baack's employment had been terminated " for cause." Under the parties' Employment Agreement, termination " for cause" entitled Baack to only 25% of the value of her ownership interest in Horizon.
[¶4] Baack counterclaimed, asserting that Oster and Horizon breached the Employment Agreement by purporting to terminate her employment " for cause" instead of for " disability." Termination for disability would have entitled Baack to 100% of the value of her ownership interest in Horizon.
[¶5] Following a bench trial, the court found for Oster and Horizon on this claim. It also found that Baack had " breached the Employment Agreement and [a second agreement,] the Buy-Sell Agreement[,] by failing to sell her membership interests in Horizon." Five months after entering judgment, the court, over Baack's objection, awarded Oster and
Horizon attorney fees ($199,667.50) and costs ($52,011) under a prevailing party provision in the Employment Agreement.
[¶6] Baack appealed the trial court's judgment on the Employment Agreement claim. She did not, however, separately appeal the award of attorney fees and costs, nor did she amend her original notice of appeal to encompass the award.
[¶7] On appeal, a division of this court (1) reversed the part of the judgment concluding that Baack's employment could be considered terminated " for cause" ; (2) determined, as a matter of law, that Baack had to be considered terminated for " disability" rather than " for cause" ; and (3) remanded the case for entry of an order requiring Oster and Horizon to pay Baack the full value of her interest in Horizon. See Oster v. Baack, (Colo. App. No. 11CA0368, May 10, 2012) (not published pursuant to C.A.R. 35(f)) ( Baack I ).
[¶8] After the case had been remanded, Baack filed a C.R.C.P. 60 motion to vacate the attorney fees and costs award, arguing that the award was a " nullity" because Baack I had reversed the very ground on which the court had awarded fees and costs under the Employment Agreement (that is, that Oster and Horizon were the prevailing parties on the Employment Agreement claim). The trial court denied Baack's motion, finding that
the court['s] jurisdiction is limited to the issues included in the remand order[; ] [Baack] has waived [her] right to contest the court's . . . award of costs and attorney fees by failing to raise the issue on appeal[; ] and [Oster] was the prevailing party on the Buy-Sell Agreement which also contains a provision for the award of costs and fees to the prevailing party.
II. Issues on Appeal
[¶9] On appeal, Baack contends that the trial court erred in denying her C.R.C.P. 60(b) motion because (1) it had jurisdiction to consider the motion; (2) she was not required to separately appeal the attorney fee and costs award because the Baack I division's reversal of the judgment on the Employment Agreement claim nullified the very basis for the award; and (3) the court could not retroactively rely on ...