Petition for Writ of Certiorari — Budinich v. Becton Dickinson & Co.

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i | Supreme Court, U.S.

87-2 83 FILED

Case No. JUL 14 1987

Supreme Court of the United Shree F. SPANIOL, JR

OCTOBER TERM 1987

JOSEPH G. BUDINICH,

Petitioner,

vs.

BECTON DICKINSON AND COMPANY,

a foreign corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI FROM THE UNITED STATES

COURT OF APPEALS, TENTH CIRCUIT.

Case No. 84-2192

FRANK & FINGER, P.C.

By: Thomas E. Frank

Attorney for Petitioner

P.O. Box 1477

Evergreen, CO 80439

(303) 674-6955

_ _— x Sahl Sry a

PETITION

Joseph G. Budinich, by and through his undersigned attorney,

pursuant to 28 U.S.C. §1254, hereby petitions the United States Supreme

Court to review by Writ of Certiorari the decision of the United States Court

of Appeals, Tenth Circuit, Case No. 84-2192 entitled Budinich vs. Becton

Dickinson and Company, a foreign corporation. Pursuant to Rule 21 of the

United States Supreme Court, the Petitioner would show the Court as follows:

A. QUESTION PRESENTED FOR REVIEW

The question presented to the Supreme Court is whether the

Court’s holding in White v. New Hampshire, 455 U.S. 445 (1982), that an

award of attorney's fees under a federal statute is an ancillary part of the pro-

ceeding, applies to diversity action cases where state law, like Colorado’s,

provides that attorney's fees are a substantive part of the relief; or whether

State substantive law is controlling because of the principles announced in

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).

If State substantive law controls, then the Court of Appeals’ deter-

mination that it lacked jurisdiction to hear the appeal on the merits is er-

roneous. On the other hand, if White v. New Hampshire is controlling, the

Petitioner argues that the decision is new law relating to diversity cases and

that it should only be given prospective application.

B. PARTIES INVOLVED

The parties involved in the proceeding below are:

1. Joseph Budinich, Appellant

II. Becton Dickinson and Company, Appellee

C. TABLE OF CONTENTS Fort v. Roadway Express, Inc.

eee

1. | an rere Page |

Hanna v. Plumber

A. QUESTION PRESENTED FOR REVIEW ......... Page | 380 U.S. 460 (1965) ....................... Page 9

Mo, fk eee Page | Hofer v. Polly Little Realtors. Inc.

C. TABLE OF CONTENTS AND 534 P.2d 114 (Colo. App.. 1975) TV CEECLE TLE TTe pe eeeen Page 6

TABLE OF AUTHORITIES................ Page 2,3,4 |

Marietta v. Busto

D. REFERENCE TO OFFICIAL REPORTS.......... Page 4 691 P.2d 345, 347 (Colo. App., 1984)

cert. denied ___ U.S. ____., 105 §.Ct. 2024 (1985) ....... Page 8

els eres ee Page 4

Ortega v. Board of County Commissioners

F. CONSTITUTIONAL PROVISIONS INVOLVED ... Page 5 657 P.2d 989 (Colo. App., 1982)............ 4 ee Page 8

G. STATEMENT OF THE CASE .................. Page 6 Rodriguez v. Handy

H. REASONS FOR ALLOWANCE OF THE WRIT ... Page 10 a Page 8

ye. eee Page 11 White v. New Hampshire |

Neen en Te ccccer Page 1,8,10

G8. ABPUIBEL .... 2. cccccdsveseeossctnbuceceneneuee Page 12

TABLE OF AUTHORITIES

CASES CONSTITUTIONAL PROVISIONS

Ball Corporation v. Loran Article IV, Section | — Full Faith and Credit............. Page 5, 10

42 Colo. App. 401, 496 P.2d 412 (Colo. App., 1979)....... Page 8

Brogan v. Bill Eager Motors, Inc. Article VI, Clause 2 — Supreme Law...................... Page 6

$61 P.28 377 Cole. Agp., 1977) .. 22.0 cccccncccvesess Page 6

Amendment X of the United States Constitution. ........... Page 5,10

Erie Railroad Co. v. Tompkins

; Fis EY, eee Page |

2 3

FEDERAL STATUTES

et A ceo cavacdbeusssncdadccssheaseus Page |

Pere ae ese Leterme pce}. Page 6

RIDER OPS LAP ene CAR Fer ape Page 4

STATE STATUTES

Title 8, Article 4 of the Colorado Revised Statutes ........... Page 8

RULES OF THE SUPREME COURT

By FRO ons cccccccnantctevectschecussecwuwewens Page 5, 10

SN PCED a ancccccccvecsaneeesvodbutoeaseteseucses Page 5, 10

PMc Sc ceo cvedtencdedeuuescueqdesentyeeneneceneans Page 4

SNEED 6 Sou ces cuecvoceuciedscncncsaeesteeeeeeSeabaeuns Page |

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D. REFERENCE TO OFFICIAL REPORTS

The decision of the Tenth Circuit is published at 807 F.2d 155

(10th Cir., 1986).

E. JURISDICTION

Jurisdiction of this Court is invoked pursuant to 28 U.S.C.

§1254(1). The time requirements of 28 U.S.C. §2101 have been met, pur-

suant to the extension of time permitted by Rule 20 and the order of the

Honorable Justice Byron White dated June 25, 1987.

1. The date of judgment or decision that is sought to be reviewed

was December 12, 1986.

2. Denial of Petitioner's Motion For Reconsideration occurred on

March 26, 1987.

Petitioner's Application For Extension of Time to file Petition for

Writ of Certiorari was granted on June 24, 1987 permitting an extension by

and through July 14, 1987.

3. No cross petition for Writ of Certiorari was filed.

4. Jurisdiction is supported under Rule 17. 1(a) and 17.1(c) in that

the instant decision involves an important question of federal law which

should be settled by this Court; and the decision of the 10th Circuit is in con-

flict with other Circuit decisions which are detailed in Section G of this

Petition.

F. CONSTITUTIONAL PROVISIONS INVOLVED

AMENDMENT 10. POWERS RESERVED TO THE STATES

OR PEOPLE.

‘The powers not delegated to the United States by the Constitu-

tion, nor prohibited by it to the States, are reserved to the States

respectively or to the people.”’

ARTICLE IV, SECTION |. FULL FAITH AND CREDIT.

**Full faith and credit shall be given in each State to the public acts,

records, and judicial proceedings of every other State. And the

Congress may by general laws prescribe the manner in which such

acts, records and proceedings shall be proved and the effect

thereof.”’

ARTICLE VI. CLAUSE 2 — SUPREME LAW.

‘*The Constitution and the laws of the United States which shall

be made in pursuance thereof; and all treaties made, or which shall

be made, under the authority of the United States, shall be the

supreme Law of the Land; and the Judges in every State shal! be

bound, thereby, any thing in the Constitution or laws of any State

to the Contrary notwithstanding.”

G. STATEMENT OF THE CASE

This matter centers on a dispute between the parties relating to

commissions on the sale of certain vapor sensing equipment sold to the United

States Air Force. The action was originally filed in the District Court in and

for the City and County of Denver, State of Colorado. The Defendant, Becton

Dickinson removed the action based on diversity jurisdiction pursuant to 28

U.S.C. § 1332.

After the close of discovery, the Defendant, Becton Dickinson

moved for summary judgment arguing that a company could change its com-

missions schedule at any time and the change was binding on its employees.

Plaintiff argued that the law of the State of Colorado required the

company to honor the commission terms for all orders received or orders in

process and that the change was only valid prospectively. Plaintiff's argu-

ment was rejected by the United States District Court in regard to certain

claims despite being supported by Colorado case law.' Certain claims were

not dismissed, including a claim of fraud and second commission claim. The

1. Colorado case law supporting Plaintiff's position on commissions due include Hofer v. Polly

Little Realtors, Inc., 534 P.2d 114 (Colo. App., 1975) and Brogan v. Bill Eager Motors, Inc..

$61 P.2d 377 (Colo. App., 1977).

remaining claims were tried to a jury. The jury was unable to render a ver-

dict and a mistrial was declared. Plaintiff moved for reinstatement of the

claims summarily adjudged and this motion was denied. A second trial was

held which resulted in a Plaintiff's verdict for the second commission claim

and a defense verdict for the fraud claim.

are claims for wages and Colorado mandates that attorney fees be included

as part of the remedy. Additionally, Plaintiff moved for new trial or amend-

ment of judgment alleging multiple errors both at trial and in deciding pretrial

motions, including the Motion for Summary Judgment.

The Court in a single order granted an award of attorney fees fin-

ding that such fees are not discretionary and must under Colorado law be in-

cluded in the judgment as part of the relief, but left open the issue of the

amount due, and denied the Motion for new trial or amendment of judgment.

Plaintiff was ordered to submit detailed records and explanations to justify

the attorney fee request while the motion was held in abeyance. This was ac-

complished in a supplemental filing.

The Court thereafter entered a supplemental order awarding at-

torney fees.

Plaintiff filed an appeal in what he believed to be a timely fashion

because the amount of the fees related back to what the trial court had found

to be part of the mandatory relief under Colorado law. This finding was made

in the trial court's order dated May 14, 1984 and appearing in the Appen-

dix as item II-C.

Immediately after the appeal was filed the Defendant moved for

summary disposition of the case on jurisdictional grounds relying on White,

supra.

The Court of Appeals required the respective parties to brief the

jurisdictional issues before submitting briefs on the merits.

On December 12, 1986 the Tenth Circuit Court of Appeals rul-

ed that it lacked jurisdiction to hear the appeal on the mevits. The Court of

Appeals’ decision that it lacked jurisdiction was based on the application of

White, supra. The Circuit Court found a need for a uniform and unqualified

rule. In so ruling, the Tenth Circuit found that Colorado substantive law as

determined by Colorado Appellate Courts was irrelevant to its determination.

Colorado's substantive law is that an attorney fee award, par-

ticularly under its wage claim statute, is not ancillary to the underlying pro-

ceeding, but is an inherent part of the claim. Ortega v. Board of County

Commissioners, 657 ?.2d 989 (Colo. App. 1982) cert denied; Ball Corpora-

tion v. Loran, 42 Colo. App. 401, 496 P.2d 412 (Colo. App. 1979); Marietta

v. Busto, 691 P.2d 345, 347 (Colo. App. 1984), cert. denied 105 S.Ct. 2024

(1985).

The Tenth Circuit's interpretation of White, supra, to Plainiff's

knowledge, is the broadest application of that decision yet made. The deci-

sion appears to conflict with two other Circuits’ approach. The Fifth Circuit

and Eleventh Circuit have both expressed the need to make a threshold deter-

mination whether attorneys fees are recognized as an inherent part of the

relief. See Fort v. Roadway Express, Inc., 746 F.2d 744 (11th Cir., 1984)

and Rodriguez v. Handy, 802 F.2d 817 (Sth Cir., 1986). Once this deter-

mination is reached, the courts will determine if White, supra is applicable.

While Plaintiff agrees that a uniform rule is needed relating to at-

torney fee application, Plaintiff believes that the rule established by the Tenth

Circuit is erroneous and is contrary to the Constitutional reservation of powers

to the State.

The power of States to govern their internal affairs and to enact

their own substantive laws is firmly and unquestionably guaranteed by the

Tenth Amendment to the United States Constitution. The laws of Colorado,

albeit legislatively enacted or judicially determined, are entitled to Full Faith

and Credit pursuant to Article IV, Section |, not only by other States but also

by the federal system, including Federal Courts.

Colorado's substantive law cannot be as easily dismissed as has

been done by the Tenth Circuit. The determination of whether attorney's fees

are an inherent part of the claim is a ‘‘substantive determination.’’ Once

made, procedural ramifications come to bear. See, Hanna v. Plumber, 380

U.S. 460 (1965).

A difference of substantive determination by this Court as to at-

torney fees granted under federal statute and by the Colorado Courts relating

to attorney fees under Colorado statute is not offensive to the federal system

of government. Each decision is entitled to full faith and credit in its own

right. Neither decision is right or wrong, nor is there an actual conflict. There

is only a perceived conflict because the two systems have reached different

conclusions. But under our Constitutional system, each entity is entitled to

establish their own substantive laws and have those laws applied.

Reconciliation of the perceived conflict is, however, possible. The

uniform rule that the Tenth Circuit searches for is one that holds where the

underlying claim is based on Federal Statute, the application for attorney fees

is ancillary. Whereas, if the underlying claim is based on State law, the

substantive law of the State forum controls. Adopting this rule preserves both

the integrity of White, supra and the Constitutional mandate of the Tenth

Amendment and the Full Faith and Credit Clause the the United States

Constitution.

H. REASONS FOR ALLOWANCE OF THE WRIT

Granting the petition in this matter will allow the Court to

elaborate on its holding in White v. New Hampshire, supra. The Court will

clarify whether White, supra applies to diversity jurisdiction cases where State

substantive law is or may be that attorney fees are part of the statutory

remedy. An examination of this question is essential based on the Tenth

Amendment and the Full Faith and Credit clause of the United States Con-

stitution. Rule 17.1(c) is applicable.

Additionaily, there is conflict in the Circuits as to how White,

supra. should be applied in other than Section 1988 attorney fee claims. This

makes applicable the provision of 17.1(a).

Lastly, litigants in the Federal Court are entitled to have a clear,

concise and comprehensive rule to follow. No such rule will exist until this

Court announces the substantive law. The Circuit Courts will continue mak-

ing ad hoc decisions which may or may not be in conformity with the

Constitution.

1. APPENDIX

The Appendix containing the required information is attached.

Respectfully submitted,

FRANK & FINGER, P.C.

BY: Mernas lk Frauke

Thomas E. Frank, #3374

Attorneys for Petitioner

29025D Lakepoint Center

P.O. Box 1477

Evergreen, CO 80439

(303) 674-6955

II.

IIl.

Ill

APPENDIX

ORDERS SOUGHT TO BE REVIEWED

A. Per curiam opinion entered December 12, 1986 in the

United States Court of Appeals for the Tenth Circuit... .. Page 13

B. Denial of Motion For Reconsideration reviewed as a

motion for recall entered March 26, 1987 in the United

States Court of Appeals for the Tenth Circuit............ Page 21

ORDERS RELATING TO THE OPINION SOUGHT

TO BE REVIEWED

A. Order of May 31, 1983 granting in part and denying in

part Defendant’s Motion For Summary Judgment and

Order denying Plaintiff's Motion For Partial Summary

Judgment entered in the United States District Court for

Es Sekt evedees vex vicsscnwu es oe Page 23

B. Judgment of March 26, 1984 entered in the United

States District Court for the District of Colorado ........ Page 30

C. Order of May 14, 1984 entered in the United States

District Court for the District of Colorado.............. Page 32

D. Order of July 3, 1984 entered in the United States

District Court for the District of Colorado.............. Page 46

E. Order of August 1, 1984 entered in the United States

District Court for the District of Colorado.............. Page 52

ADDITIONAL APPENDED MATERIALS

A. Petition for rehearing filed in the United States Court

of Appeals for the Tenth Circuit.............. 0.00004. Page 55

APPENDIX L.A

PER CURIAM OPINION ENTERED DECEMBER 12, 1986

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOSEPH G. BUDINICH,

Plaintiff-Appellant,

Vv.

BECTON DICKINSON AND COMPANY,

a foreign corporation,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. NO. 82-F-462)

Submitted on the briefs pursuant to Tenth Circuit Rule 9:

William S. Finger of Nicholls, Kusic, Frank & Finger, Evergreen, Colorado,

for Plaintiff-Appellant.

Terre Lee Rushton of Kelly, Haglund, Garnsey & Kahn, Denver, Colorado,

for Defendant-Appellee.

Before McKAY, SETH, and TACHA, Circuit Judges.

PER CURIAM.

In accordance with 10th Cir. R. 9(e) and Fed. R. App. P. 34(a),

this appeal came on for consideration on the briefs and record on appeal.

This action arises out of an employment contract under which

plaintiff served as defendant's western regional manager for a salary plus

commission on sales. Prior to plaintiff's completion of a major sale to the

United States Air Force, defendant's commission structure was modified,

resulting in a substantial reduction in the commission ultimately paid to plain-

tiff. Although he protested, plaintiff continued his employment with defen-

dant. Sometime later, and shortly before an order for spare parts and a sup-

plemental purchase order were placed by the Air Force, defendant terminated

plaintiff's employment.

Plaintiff initially brought this diversity action asserting claims for

breach of contract, quantum meruit, misrepresentation, and outrageous con-

duct. Following a lengthy procedural course, during which plaintiff's claims

were revised somewhat as a result of the district court’s grant of partial sum-

mary judgment for defendant, the case was tried to a jury, which found for

defendant on plaintiff's misrepresentation and implied contract (for commis-

sion on the spare parts order) claims but awarded plaintiff $5,000 on an im-

plied contract theory regarding the supplemental purchase order.

The district court entered judgment on the verdict on March 26,

1984. Plaintiff timely filed an original and an amended new trial motion

challenging various substantive rulings by the district court, as well as a

motion for attorney's fees. On May 16, 1984, the new trial motions were

disposed of, but the district court reserved determination of the amount of

attorney's fees to be awarded to plaintiff. The district court ultimately issued

its final order regarding the fees issue on August 2, 1984, and plaintiff filed

his sole notice of appeal from the court’s post-trial orders on August 29, 1984.

Defendant has moved for summary dismissal of this appeal as un-

timely, relying on the principle we first announced in Cox v. Flood, 683 F.2d

330 (10th Cir. 1982). In Cox and several later cases, this court held that

judgments finally disposing of the merits are appealable even though

questions relating to attorney's fees have been left undecided. Id. at 331; see,

e.g., Art Janpol Volkswagen v. Fiat Motors, 767 F.2d 690 (10th Cir. 1985);

cf. Dataq, Inc. v. Tokheim Corp., 736 F.2d 601 (10th Cir. 1984). Accord-

ingly, an appeal on the merits must be filed within the requisite time period

following entry of final judgment thereon, notwithstanding that a motion for

attorney's fees may be pending. See West v. Keve, 721 F.2d 91 (3d Cir.

1983); Smillie v. Park Chemical Co., 710 F.2d 271 (6th Cir. 1983). Since

plaintiff did not file a notice of appeal from the district court's May 16, 1984,

order disposing of his new trial motions until August 29, 1984, when he ap-

pealed the district court’s award of $1,000 in attorney's fees, defendant con-

tends that the former appeal must be dismissed as untimely.

Plaintiff seeks to avoid the effect of the authorities cited by arguing

that, unlike our previous decisions, the present case involves a situation where

attorney's fees are an inherent part of the relief sought and, consequently.

must be determined before the judgment on the merits can be considered final.

While there is some authority for the type of suitational approach advocated

by plaintiff, see F.H. Krear & Co. v. Nineteen Named Trustees, 776 F.2d

1563 (2d Cir. 1985); McQurter v. Atlanta, 724 F.2d 881 (11th Cir. 1984);

Holmes v. J. Ray McDermott & Co., 682 F.2d 1143 (Sth Cir. 1982), cert.

denied, 459 U.S. 1107 (1983), we believe the better course is followed in

those circuits which treat all attorney's fees motions as procedural equivalents

and uniformly require separate notices of appeal when such motions are

resolved after judgment has been rendered on the merits. See Exchange

National Bank v. Daniels, 763 F.2d 286 (7th Cir. 1985): Morgan v. Union

Metal Manufacturing, 757 F.2d 792 (6th Cir. 1985); International Association

of Bridge, etc., Local Union 75 v. Madison Industries, Inc., 733 F.2d 656

(9th Cir. 1984); West v. Keve, supra.

A uniform, unqualified rule is especially appropriate in the pre-

sent context for several reasons. First, the de facto, case-by-case analysis re-

quired by the situational approach, and the consequent uncertainty it would

promote until an inclusive and coherent set of principles could be worked out.

is particularly unsuited to a jurisdictional rule that requires forfeiture of an

appeal for noncompliance. See Daniels, supra at 293; 15 C. Wright, A.

Miller & E. Cooper, Federal Practice and Procedure § 3915 at 398-40]

(Supp. 1985); see also Alcorn County v. U.S. Interstate Supplies, Inc., 731

F.2d 1160, 1165 n.4 (Sth Cir. 1984) (Fifth Circuit acknowledging the dif-

ficulties its situational approach may cause litigants). Second, to be consis-

tent, those courts holding that under particular cirumstances fees are an in-

tegral part of the judgment, which is therefore not final until the matter of

fees is resolved, must also hold that motions relating to such fees are, in ef-

fect, motions to alter or amend judgment and thus subject to the time con-

straints of Fed. R. Civ. P. 59%e). This result, however, cannot be endorsed

in light of the Supreme Court's analysis and decision in White v. New Hamp-

shire, 455 U.S. 445 (1982) (holding Rule 59e) inapplicable to requests for

fees under 42 U.S.C. § 1988). Of course, the White holding specifically

applies only to § 1988 requests, but nothing in the opinion indicates that

motions seeking fees pursuant to other authority should be treated any dif-

ferently. See id. at 450-55. Third, divining the degree of relationship between

attorney's fees and the compensation sought in any particular case is a pro-

cedure of uncertain desien and questionable validity. The Third Circuit has

expressed this concern in more specific terms:

We reject as altogether too metaphysical the distinction bet-

ween fees that are ‘‘compensation for injury’’ and those that are

not. All awards of fees make the prevailing party better off.

Whether this benefit is ‘‘really’’ a way to compensate for the

underlying hurt or instead a way to reduce the cost of litigation,

thus making redress of the underlying hurt more likely and leav-

ing the prevailing party with a greater net award, is a question of

semantics rather than substance. Resolution of this question would

depend on the legislative (or bargaining) history of a given statute

or contract — if indeed such a question ever has a sensible answer.

Daniels, supra at 294. Finally, we note that the adoption of a per se rather

than situational approach is certainly consistent with, if not compelled by, this

court's unqualified holdings in prior decisions. See, e.g., Cox, supra at 331

(‘‘judgments finally disposing of the merits are appealable even though ques-

tions relating to attorney's fees have been left undecided’’); Clulow v.

Oklahoma, 700 F.2d 1291, 1293 n.1 (10th Cir. 1983) (‘outstanding motions

for fee awards are no longer to be considered as affecting the finality and ap-

pealability of decisions on the merits*’).

Plaintiff also argues that, since this is a diversity action, the rule

of Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), precludes the applica-

tion of the principles developed by this court in Cox and subsequent cases.

In plaintiff's view, the law of Colorado, the forum state, which apparently

would permit joint appeal of the merits and attorney's fees determinations

under the present circumstances, see Marietta v. Busto, 691 P.2d 345, 347

(Colo. App. 1984), cert. denied, 105 S. Ct. 2024 (1985), must be applied.

We disagree. State law governs only those issues that are properly

characterized as substantive; matters of procedure are controlled by federal

law. Hanna v. Plumer, 380 U.S. 460 (1965); Hardin v. Manitowoc-Forsythe

Corp., 691 F.2d 449 (10th Cir. 1982). The specification of the time for fil-

ing a notice of appeal from the judgment of a federal district court is clear-

ly a question e* .ederal procedure and as such is governed by federal law.

See generally Art Janpol Volkswagen, supra, and Daniels, supra (both cases

applying federal law to the issue presently under consideration, without

acknowledgment of any Erie problem). Diversity cases decided by courts

following the situational approach, such as Certain British Underwriters v.

Jet Charter Service, Inc., 739 F.2d 534, 535-36 (11th Cir. 1984) and Ox-

ford Production Credit Association v. Duckworth, 689 F.2d 587, 588-89 (Sth

Cir. 1982), which hold the underlying determination of the relationship of

fees to the merits to be a matter of state law, are not necessarily inconsistent

with the result reached here. Indeed, these decisions do apply federal law —

i.e., the situational approach developed by the particular circuit — to the

ulumate issue of appellate jurisdiction.

For the reasons discussed above, we hold that the principle first

enunciated in Cox applies in diversity as well as federal question cases

regardless of the perceived relationship between the fee award and the deter-

mination of the underlying controversy. Furthermore, we find plaintiff's plea

for nonretroactive application of our decision to be entirely out of place.

While this court has not yet expressly ruled on the issues raised by plaintiff's

proposed exception to Cox, not one of our post-Cox decisions even suggests

that the situational approach advocated by plaintiff might be adopted or that

diversity cases would somehow warrant special treatment. We are neither

overruling clear past precedent nor deciding an issue of first impression whose

resolution was not clearly foreshadowed. See EEOC v. Gaddis, 733 F.2d

1373, 1376 (10th Cir. 1984). If nonretroactivity were required under these

circumstances, \ irtually every appellant with enough intellectual ingenuity

to state his position in terms of an as yet unconsidered exception to an ex-

isting rule would be able to side-step the ‘new principle of law’’ hurdle

imposed in Gaddis.

Accordingly, plaintiff's attempted appeal from the district court's

judgment on the merits must be dismissed. The notice of appeal, filed more

than thirty days after the denial of plaintiff's motions for new trial, was un-

timely and ineffective. Fed. R. App. P. 4(a) (1) and (4).

Defendant has also moved to dismiss this appeal as it relates to the

district court's order of August 2, 1984, which finally resolved the issue of

attorney's fees. Defendant contends that plaintiff's notice of appeal, filed after

said order but before the fees were taxed as costs in accordance with the

court's direction, was premature. This argument is without merit. The tax-

ation of costs is a ministerial function, and, as such, its completion is not a

prerequisite to the finality of the district court's underlying order regarding

fees. See United States v. 2, 186.63 Acres of Land, 464 F.2d 676, 678 (10th

Cir. 1972).

Without a single reference to any supporting authority, plaintiff

asserts that the district court’s award of fees is contrary to existing standards

and inadequately vague. We cannot agree. Indeed, in light of the thorough

analysis evident in the district court's orders addressing the matter, and the

unsupported, perfunctory objections raised by plaintiff on appeal, very lit-

tle need be said about the fee award. The determination of a reasona>'s fee

under Colo. Rev. Stat. § 8-4-114 is a question of fact for the trial court and

should not be disturbed on review unless patently erroneous and unsupported

by the evidence. Hartman v. Freedman, 591 P.2d 1318, 1322 (Colo. 1979).

Plaintiff has failed to demonstrate such error here.

The motion for summary disposition is GRANTED and the ap-

peal DISMISSED as to all issues except the award of attorney's fees. The

judgment of the United States District Court for the District of Colorado

awarding attorney's fees to plaintiff in the amount of $1,000 is AFFIRMED.

Plaintiff's request for additional briefing is inappropriate and, in light of the

disposition of this appeal, moot. The mandate shall issue forthwith.

APPENDIX I.B

DENIAL OF MOTION FOR RECONSIDERATION REVIEWED

AS A MOTION FOR RECALL ENTERED MARCH 26, 1987

IN THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

JANUARY TERM — March 26, 1987

Before Honorable Monroe G. McKay, Honorable Oliver Seth, and Honorable

Deanell Reece Tacha, Circuit Judges, United States Court of Appeals

JOSEPH G. BUDINICH,

)

Plaintiff-Appellant, )

)

si : No. 84-2192

BECTON DICKINSON AND COMPANY, )

a foreign corporation, )

‘ Seen ao

P I '

Defendant- Appellee ) nen

ORDER OF MAY 31, 1983 GRANTING IN PART AND

This matter comes on for consideration of plaintiff's petition for DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY

ee - a 2 he enate JUDGMENT AND ORDER DENYING PLAINTIFF'S MOTION

ee ee eee eee Ee FOR PARTIAL SUMMARY JUDGMENT ENTRED IN THE

Upon consideration thereof, the motion is denied. UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLORADO

/ signed /

ROBERT L. HOECKER, Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT Or COLORADO

Civil Action No. 82-F-462

JOSEPH G. BUDINICH,

Plaintiff,

VS.

BECTON DICKINSON AND COMPANY,

Defendant.

ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL

SUMMARY JUDGMENT

Chief Judge Sherman G. Finesilver:

THIS MATTER is before the Court on Plaintiff's Motion for Par-

tial Summary Judgment and on Defendant’s Motion for Summary Judgment.

Plaintiff seeks summary judgment only as to his First Claim for Relief while

Defendant seeks summary judgment on all claims in Plainuff's Complaint.

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1332, diver-

sity of citizenship.

The parties have been given the opportunity to thoroughly brief

all issues presented by the two motions. Upon careful consideration of those

briefs, the evidence presented, and the applicable law, we are of the view that

Plaintiff's Motion for Partial summary Judgment should be DENIED and that

Defendant's Motion for Summary Judgment should be GRANTED IN PART

and DENIED IN PART. Because of the imminence of the trial in this case,

and therefore the necessity for a speedy resolution of these motions, the Court

will not set forth a detailed review of either the facts or the law which

support this Order. The Court reserves the right to do so at a later date.

The disputes in this case arise out of the parties’ employment rela-

tionship. Plaintiff was employed by Defendant in either late 1978 or early

1979 as the Western Regional Sales Manager for Defendant. He was

employed in that capacity until his termination on November 30, 1981. Part

of Plaintiff's compensation as a regional sales manager was a commission on

sales of Defendant’s products within his region. Prior to October 1979,

Defendant utilized a commission schedule which paid 2% on total net sales

from base to quota and 4% on total net sales exceeding annual quota. Defen-

dant modified its commission schedule at its quarterly national sales meeting

in October, 1979. The revised commission schedule provided for a $10,000

ceiling on a commission earned on any one sale.

The immediate controversy arose with the completion of a large

contract with the United States Air Force for the purchase of 157 portable

vapor dectors (*‘PVD’s’*) manufactured by Defendant. With the signing of

the definitive award/contract on August 6, 1981, Plaintiff was paid a com-

mission on the sale of $10,000. On November 3, 1981, Plaintiff wrote a letter

to Defendant demanding payment of a commission pursuant to the original

commission schedule in effect prior to October, 1979. Plaintiff was ter-

minated on November 30, 1981. Subsequent to his t¢. mination, Defendant

entered into a separate contract with the Air Force for the purchase of an

additional 77 PVD’s and modified the original contract to include spare parts

and accessories. Plaintiff brought this suit for breach of his employment con-

tract, quantum meruit, false representation, wrongful discharge, and

outrageous conduct. Plaintiff seeks additional compensation on the August

6, 1981 contract pursuant to the original commission schedule and the pay-

ment of a commission on both the subsequent contract with the Air Force and

the modification of the first contract.

Summary judgment is appropriate only where the pleadings, af-

fidavits, depositions, admissions, or other evidence submitted demonstrate

that there are no genuine issues of materia! fact and that the moving party is

entitled to judgment as a matter of law. See eg. Caycev. Carter Oil Company,

618 F.2d 669 (10th Cir. 1980); Webbe v. McGhie Land Title Company, 549

F.2d 1358 (10th Cir. 1977); Rule 56, Federal Rules of Civil Procedure.

Where different inferences can be drawn from the same evidence, or where

questions of credibility are present, summary judgment is not appropriate.

Norton v. Liddel, 620 F.2d 1375 (10th Cir. 1980); Eagle v. Louisiana

Southern Life Insurance Company, 464 F.2d 607 (10th Cir. 1972).

In his First Claim for Relief, Plaintiff alleges that Defendant

willfully and intentionally breached the provisions of the employment con-

tract with Plaintiff by unilaterally modifying the commission schedule.

Both parties have moved for summary judgment on this claim. The law in

Colorado' is that in the absence of ‘‘special consideration or an express

stipulation as to the duration of employment, an indefinite general hiring is

terminable at will by either party.’” Lampe v. Presbyterian Medical Center,

590 P.2d 513, 514 (Colo. App. 1978). The parties are in agreement that the

terms and conditions of Plaintiff's employment are set out in several let-

ters exchanged by Plaintiff and Defendant in October, 1978. There is nothing

in either letter that could reasonably be interpreted to construe Plaintiff's

employment as being other than one terminable at will.

An employment contract that is terminable at will is also

modifiable at will; a modification having the effect of terminating the existing

contract and substituting in its place a new contract with the modified terms.

Gebhard v. Royce Aluminum Corporation, 296 F.2d 17 (ist Cir. 1961);

Bartinikas v. Clarklift of Chicago North, Inc., 508 F. Supp. 959 (N.D. Iil.

1981). Thus, Defendant's modification of its commission schedule in

October, 1979, was not a breach of Plaintiff's employment contract. Addi-

tionally, it is undisputed that Plaintiff continued to work for Defendant as its

|. Because Plaintiff's employment with Defendant was centered in the State of Colorado, and

because Colorado has an overriding interest in protecting its citizens in their employment, we

find that the law of Colorado rather than that of either New York or New Jersey applies in

this case.

Western Regional Sales Manager more than twenty-five months after the

commission schedule was modified. During that period he accepted his full

salary and commission based on the modified schedule. While Plaintiff voiced

his disapproval of the modified schedule prior to its adoption, there is no

evidence whatsoever to indicate that he ever objected to the schedule once

adopted or refused to accept commissions earned under the new schedule.

Such conduct constitutes acceptance of the modified contract as a matter of

law. See Gebhard v. Royce Aluminum Corporation, supra., at 19. Thus,

Plaintiff's Motion for Partial Summary Judgment is DENIED and Defen-

dant’s Motion for Summary Judgment, as to Plaintiff's First Claim for Relief,

is GRANTED.

Having found the existence of an express employment contract

during the entire term of Plaintiff's employment with Defendant, summary

judgment must also be granted with respect to Plaintiff's Second Claim for

Relief, but only to the extent that Plaintiff claims additional commission from

the August 6, 1981 contract. While breach of contract and quantum meruit

may be plead as alternative theroies of recovery, once an express contract pro-

viding for a fixed commission is established, Plaintiff is not entitled to recover

on a quantum meruit. See eg. Jensen v. Neai, 124 P. 471 (Colo. 1912);

Reitler v. Olson, 187 P. 313 (Colo. 1919); cf. Palmer v. Gleason, 389 P.2d

90 (Colo. 1964).

The Court does not, however grant summary judgment on Plain-

tiffs Second Claim for Relief as it relates to any commission which may or

may not be due Plaintiff on the two contracts completed subsequent to his ter-

mination. The Colorado courts have made it clear that there is a distinction

between the time when a commission is earned and when it is due and

payable. Weick v. Rickenbaugh Cadillac Company, 303 P.2d 685, 687

(Colo. 1956). In the instant case, it is not clear from any of the letters eviden-

cing Plaintiff's employment when a commission is earned. The affidavits sub-

mitted, and the other evidence, demonstrate a genuine issue of material fact

on this point. Arguably, if Plaintiff can establish that a commission is earned

some time prior to the actual execution of the contract documents in the two

subsequent sales to the Air Force, then he would be entitled to recover the

reasonable value of his services on those two sales. Thus, summary judgment

is inappropriate on this issue.

In his Third Claim for Relief, Plaintiff asserts fraudulent mis-

representation and/or concealment regarding Defendant’s commission

schedules and the ability of defendant to modify said schedules without his

consent. We find that Plaintiff has demonstrated sufficient material issues of

fact in dispute with respect to Defendant’s representations and intent to with-

stand summary judgment on these claims. Defendant’s Motion for Summary

Judgn . on Plaintiff's Third Claim for Relief is DENIED.

Finally, Plaintiff alleges that he was terminated in order to deprive

him of further commissions on subsequent sales of PVD’s to the Air Force.

He asserts that such conduct constitutes a wrongful discharge in violation of

Colorado law. He also alleges that such conduct is outrageous as that tort has

developed in Colorado. Taking the facts, as we must, in the light most

favorable to Plaintiff, we nonetheless conclude that summary judgment is ap-

propriate on Plaintiff's Fourth Claim for Relief. We do not agree with Plain-

tiff that Colorado has adopted or even evinced an intent to adopt a *‘public

policy’’ exception to the terminable at will doctrine. Even if such were the

case, Plaintiff can point to no specific legislatively recognized policy which

would protect him in this case. See Lampe v. Presbyterian Medical Center,

supra. [where the Court of Appeals refused to hold for the plaintiff in spite

of the existence of a ‘‘broad general statement of policy contained in a

statute.’*}] The fact remains that Plaintiff's employment was terminable at will,

without cause. Plaintiff has not stated a cause of action for wrongful

termination.

While the question whether Defendant has engaged in extreme and

Outrageous conduct is often a question of fact for the jury, the Court must

make the threshold determination of whether reasonable persons could dif-

fer on the question. See Rawson v. Sears Roebuck & Company, 530 F. Supp.

776, 780 (D. Colo. 1982); Vigoda v. Denver Urban Renewal Authority, 624

P.2d 895, 898 (Colo. App. 1980). Taking the facts in the light most favorable

to Plaintiff, we conclude that Defendant's conduct did not approach that level

of conduct properly characterized as ‘‘outrageous.’’ Compare with Rugg v.

McCarty, 476 P.2d 753 (Colo. 1970); Meiter v. Cavanaugh, 580 P.2d 399

(Colo. App. 1978). Defendant is entitled to summary judgment on Plaintiff's

Fourth Claim for Relief.

ORDER

IT IS HEREBY ORDERED that Plaintiff's Motion for Partial

Summary Judgment is DENIED.

IT IS HEREBY FURTHER ORDERED that Defendant’s Motion

for Summary Judgment is GRANTED IN PART and DENIED IN PART.

Plaintiff's First and Fourth Claims for Relief are dismissed in toto. Plaintiff's

Second Claim for Relief is dismissed only as it relates to a claim for addi-

tional commission on the August 6, 1981 sale. In all other respects, the

Motien is denied. |

DATED at Denver, Colorado this 31st day of May, 1983.

BY THE COURT:

/ signed /

SHERMAN G. FINESILVER, Chief Judge

United States District Court

APPENDIX II.B

JUDGMENT OF MARCH 26, 1984 ENTERED IN THE

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLORADO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 82-F-462

JOSEPH G. BUDINICH,

Piaintiff,

VS.

BECTON DICKINSON AND COMPANY,

Defendant.

JUDGMENT

THIS CAUSE having come on regularly for trial before the Court,

The Honorable Sherman G. Finesilver, District Judge presiding, and a jury

having been duly impannelled and sworn to try the issues herein and the trial

having proceeded to conclusion and having been duly submitted to the jury

and the jury having subsequently rendered its verdict. It is

ORDERED that judgment is entered in favor of the plaintiff and

against the defendant on plaintiff's claim for implied contract as to the con-

tract for the sale of 79 additional PVD units, in the amount of $5,000.00,

together with interest at the rate of 10.60% from the date of entry of this

judgment. It is

FURTHER ORDERED that judgment is entered in favor of the

defendant and against the plaintiff on plaintiffs claims of fraudulent conceal-

ment, misrepresentation and claim for implied contract as to the contract for

the sale of spare parts and accessories and those claims are hereby dismissed.

DATED at Denver, Colorado this _ 26th day of March, 1984.

FOR THE COURT:

/ signed /

JAMES R. MANSPEAKER. Clerk _

United States District Court

APPENDIX II.C

ORDER OF MAY 14, 1984 ENTERED IN THE UNITED

STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 82-F-462

JOSEPH G. BUDINICH,

Plaintiff,

VS.

BECTON DICKINSON AND COMPANY,

Defendant.

— ORDER —

Sherman G. Finesilver, Chief Judge

IN THIS ACTION, Plaintiff originally sought recovery of com-

pensatory and punitive damages, as well as costs and interest, on the follow-

ing theories of recovery: breach of contract, quantum meruit, misrepresen-

tation and/or fraudulent concealment, and wrongful termination. On May 31,

1983, the Court granted in part and denied in part Defendant’s motion for

summary judgment. The Court dismissed Plaintiff's claims for breach of con-

tract and wrongful termination, and dismissed, in part, Plaintiff's claim for

quantum meruit, to the extent that said claim soughtadditiona! commissions

ona sale which took place on August 6, 1983. A trial on this matter was held

commencing June 6, 1983. Said trial resulted in mistrial. Tne matter proceed-

ed to a retrial on March 19, 1984. A jury verdict was returned on March 23,

1984, in favor of the Defendant on Plaintiff's claims of fraudulent conceal-

ment and/or misrepresentation, and quantum meruit as to the sale of spare

parts and accessories. The jury found in favor of the Plaintiff on his claim

for quantum meruit as to the sale of 79 additional PVD units, and awarded

the Plaintiff damages in the amount of $5,000.00.

This matter is before the Court on the following motions: (1) Mo-

tion For New Trial, Amendment Of Judgment, Relief From Judgment Or

Order, filed by Plaintiff on April 2, 1984; (2) Amended Motion For a New

Trial, Amendment Of Judgment, Relief From Judgement Or Order, filed by

Plaintiff on April 6, 1984; (3) Motion For Attorney's Fees, filed by Plain-

tiff on April 2, 1984; (4) Motion To Review Taxation Of Costs, filed by

Plaintiff on April 13, 1984; and (5) Motion To Review Taxation Of Costs,

filed by Defendant on April 16, 1984.

The Court has thoroughly reviewed the briefs, statements and af-

fidavits submitted by the parties in support of their respective positions on

said motions. Upon a careful consideration of these matters, the Court finds

as follows: (1) The Motion For New Trial, Amendment Of Judgment, Relief

From Judgment Or Order, filed by Plaintiff on April 2, 1984, should be

DENIED; (2) The Amended Motion For A New Trial, Amendment Of Judg-

ment, Relief From Judgment Or Order, filed by Plaintiff on April 6, 1984,

should be DENIED IN PART AND GRANTED IN PART; (3) The Motion

For Attorney's Fees, filed by Plaintiff on April 2, 1984, will bb GRANTED

to the extent that the Court finds that Plaintiff is entitled to an award of

reasonable attorney's fees; and (4) The Motion To Review Taxation Of Costs,

filed by Plaintiff on April 13, 1984, and the Motion To Review Taxation Of

Costs filed by Defendant on April 16, 1984, will be HELD IN ABEYANCE

pending a determination of the amount of attorney's fees to be awarded in

this case.

Plaintiff's Motion For New Trial, Amendment Of Judgment, And

Relief From Judgment Or Order lists numerous grouds upon which Plaintiff

maintains that he is entitled to a new trial or an altered or amended judgment.

Each of these ground were considered and rejected by the Court prior to the

trial or during the course of the trial on this matter. Plaintiff's motion does

not provide the Court with any additional information or basis upon which

we should alter our earlier rulings. Although tire Court has again thoroughly

reviewed the grounds asserted by the Plaintiff, the Court again finds that such

grounds are individually and collectively without merit. Accordingly, the

Court finds that Plaintiff's motion should be DENIED.

Plaintiff's Amended Motion For New Trial, Amendment Of Judg-

ment, And Relief From Judgment Or Order (‘Plaintiff's Amended Motion’’)

raises, for the first time, a claim for prejudgment interest on the $5,000.00

Judgment entered in his proceeding. Plaintiff asserts that he is entitled to pre-

judgment interest pursuant to C.R.S. §5-12-102, from February, 1982, the

time at which Defendant booked the order for 79 PVD units which formed

the basis fo the $5,000.00 Judgment in this case. Although Defendant main-

tains that Plaintiff is not entitled to prejudgment interest in this case, Defen-

dant does not contest that the prejudgment interest, if awarded, should be

calculated from February, 1982 until the date Judgment entered in this case.

C.R.S. §5-12-102(1) provides a statutory basis for prejudgment

interest when money or property has been wrongfully withheld:

Except as provided in section 13-21-101, C.R.S., when there

is no agreement as to the rate thereof, creditors shall receive

interest as follows: (a) When money or property has been

wrongfully withheld, interest shall be an amount which fully

recognizes the gain or benefit realized by the person withholding

such money or property from the date of wrongful withholding to

the date of payment or to the date judgment is entered, whichever

first occurs; or, at the election of the claimant... .

(b) Interest shall be at the rate of eight percent per annum com-

pounded annually for all moneys ... after they are wrongfully

withheld or after they become due to the date of payment or to the

date judgment is entered, whichever first occurs. (Emphasis

added).

The mandatory language of C.R.S §5-12-102(1) clearly indicates that pre-

judgment interest is recoverable under this statute as a matter of right where

a Plaintiff falls within the requirements of the statute. See e.g., Hayes v.

North Table Mountain Corp. , 608 P.2d 830 (Colo. Ct. App. 1980). Further-

more, C.R.S. §5-12-102(3) provides that ‘‘Interest shall be allowed as

provided in [C.R.S. §5-12-102(1)] even if the amount is unliquidated at the

time of wrongful withholding or at the time when due.’’ See also Jasken v.

Sheehy Constr. Co., 642 P.2d 58 (Colo. Ct. App. 1982).

Defendant maintains, in part, that Plaintiff is not entitled to an

award of prejudgment interest because Plaintiff's Amended Motion was not

filed in a timely manner. Plaintiff responds that the Amended Motion was

filed in a timely manner pursuant to Rule 6(e) of the Federal Rules of Civil

Procedure. The Court is of the view that Plaintiff's request for prejudgment

interest is untimely if considered as a motion pursuant to Rule 59(b) and 59(e)

of the Federal Rules of Civil Procedure. The Court finds, however, that

Plaintiff's request is timely and appropriate when considered as a motion for

the correction of a clerical error under Rule 60(a) of the Federal Rules of Civil

Procedure.

Rule 59 of the Federal Rules of Civil Procedure provides that a

motion for a new trial and a motion for amendment of judgment must be serv-

ed not later than 10 days after entry of judgment. In addition, Rule 6(b) of

the Federal Rules of Civil Procedure expressly states that this time period may

not be enlarged by the Court. See 6A Moore's Federal Practice 459.09{1 |

(and the cases cited therein).

In the instant case, as noted above, Judgment entered on March

26, 1984. Plaintiff filed and served 1... 4mended Motion on April 6, 1984,

eleven days after entry of Judgment. Tt. fore, Plaintiff's motion was not

filed in a timely manner as required by Rule 59 of the Federal Rules of Civil

Procedure.

We are not persuaded by Plaintiff's argument that the ten day

period was extended by three days pursuant to Rule 6(e) of the Federal Rules

of Civil Procedure. Rule 6(e) provides for an extension of time for actions

which must be taken within a prescribed period after the service of a nctice

or other paper when such service is effected by mail. Rule 6(e), F.R.Civ.P.

The time for filing a motion pursuant to Rule 59 of the Federal Rules of Civil

Procedure is not enlarged by Rule 6(e) because the ten day period in which

they must be filed runs from entry of judgment rather than from receipt of

notice. See Flint v. Howard, 464 F.2d 1084 (ist Cir. 1972); Wright & Miller,

Federal Practice and Procedure § 1171; 2 Moore’s Federal Practice 46.12.

See aiso Reynolds v. Hunt Oil Co. , 643 F.2d 1042 (Sth Cir. 1981); Merrill

Lynch, Pierce, Fenner & Smith, Inc. v. Kurtenback, 525 F.2d 1179 (8th Cir.

1975). We find particularly persuasive on this point the reasoning articulated

by the First Circuit Court of Appeals in Flint v. Howard, supra:

A second alleged ground for rehearing is a plea to add the

three-day grace period described in Rule 6(e), Fed.R.Civ.P., to

the time allowed for filing a Rule 52 or 59 motion. The problem

with this argument is that Rules 52 and 59 both provide that the

10 days within which a motion for reconsideration must be filed

begins to run from ‘‘entry of judgment’’ rather than from receipt

of notice and Rule 6(b), Fed.R.Civ.P., prohibits enlargement of

such time. Petitioner’s ingenious and undocumented effort to justify

an additional three-day mailing period does not persuade us.

Flint v. Howard, 464 F.2d at 1086. Accordingly we find that Plaintiff's

Amended Motion should be DENIED to tive extent that it seeks to assert a

claim under Rule 59 of the Federal Rules of Civil Procedure.

Although the issue was not raised, as such, by the Plaintiff, the

Court is of the view that Plaintiff's request for prejudgment interest should

be considered as a timely request under Rule 60(a) of the Federal Rules of

Civi: Procedure.

Rule 60(a) provides, in pertinent part:

Clerical mistakes in judgments, orders or other parts of the record

and errors therein arising from oversight or omission may be cor-

rected by the court at any time of its own initiative or on the

motion of any party and after such notice, if any, as the court

orders.

Rule 60(a), Fed.R.Civ.P. Motions filed under Rule 60(a) are clearly not

restricted by the ten day rule established by Rule 59 of the Federal Rules of

Civil Procedure.

Where a prevailing party has an unconditional statutory right to

prejudgment interest on an award, the failure to include the interest in the

judgment is a *‘clerical mistake’’ that can be corrected under Rule 60(a). See

Hayden v. Scott Aviation, Inc., 684 F.2d 270 (3rd Cir. 1982); Glick v. White

Motor Co., 458 F.2d 1287, 1293-94 (3rd Cir. 1972); Gilroy v. Erie-

Lachawann R.R., 44 F.R.D. 3, 4(S.D.N.Y.); In re Merry Queen Transfer

Corp., 266 F. Supp. 605, 607 (E.D.N.Y. 1967) modified in other respects

sub nom., O'Rourke v. Queen Transfer Corp., 370 F.2d 781 (2nd Cir.

1967); Wright & Miller, Federai Practice and Procedure §2854. Cf.

Goodman v. Heublein, 682 F.2d 44 (2nd Cir. 1982) (Court acknowledged

that where state substantive law provided right io prejudgment interest, failure

to provide such interest could be characterized as clerical error under Rule

60(a); however, rule was inapplicable where award of prejudgment interest

under ADEA was governed by federal, not state, law). But see Chicago &

N.W.Ry.Co. v. Union Packing Co., 527 F.2d 592 (8th Cir. 1976). On the

other hand, if granting prejudgment interest is within the discretion of the

court, the judgment must be amended pursuant to Rule 59 of the Federal

Rules of Civil Procedure. See Stern v. Shouldice, 706 F.2d 742 (6th Cir.

1983), cert. denied 164 S.Ct. 487 (1984); Scola v. Boat Frances, R., Inc.,

618 F.2d 147 (Ist Cir. 1980).

In the instant case, as noted above, the Court is of the view that

prejudgment interest is available to the Plaintiff as a matter of right pursuant

to C.R.S. §5-12-102(1). Accordingly, the Court finds that Plaintiff's request

for prejudgment interest can be considered a timely request pursuant to Rule

60(a) of the Federal Rules of Civil Procedure.

Defendant maintains that Plaintiff's request for prejudgment

interest, even if timely, should be denied because Plaintiff did not raise or

address this issue at or before the trial in this case. The Court finds this argu-

ment to be without merit. The Court initially notes that Plaintiff's Complaint

contained a request for an award of interest. Furthermore, courts have

consistently held that a plaintiff's failure to pursue his request for prejudg-

ment interest during the trial, or even to demand such interest in his com-

plaint, does not amount to a waiver of his right to interest. See Mallis v.

Bankers Trust Co., 717 F.2d 683 (2nd Cir. 1983) (and cases cited therein).

Accordingly, the Court finds that Plaintiff has not waived his claim for pre-

judgment interest in the instant case.

Defendant’s final objection to Plaintiff's claim for prejudgment

interest is that C.R.S. §8-4-101 does not authorize prejudgment interest in

the instant case. The Court acknowledges that C.R.S. §8-4-101 does not

authorize an award of prejudgment interest in this case; however, the basis

for such an award, as noted above, is C.R.S. §5-12-102. C.R.S. §8-4-101,

et seq., is relevent to this discussion, if at all, as a means for determining the

time from which the interest in question should be calculated. As noied above,

in Hayes v. North Table Mt. Corp., supra, the Colorado Court of Appeals

held that interest on a brokerage commission, awarded pursuant to C.R.S.

§5-12-102, was due on the commission from the date that the commission was

due and payable. C R.S. §8-4-104 lends additional support to this conclusion.

The Colorado Court of Appeals, in interpreting C.R.S. §8-4- 104(2), has con-

cluded that commissions not fully earned at the time of termination need not

be paid under this provision at the time of termination; however, such wages

become immediately due at the time they were fully earned. See Hofer v.

Polly Little Realtors, Inc., 37 Colo. App. 86, 543 P.2d 114 (1975). Accord-

ingly, the Court finds that Plaintiff is entitled to an award of prejudgment

interest on the $5,000.00 commission which formed the basis of the jury ver-

dict in this case from the date that the commission was due and payable.

Plaintiff maintains that this right to prejudgment interest commenc-

ed in February, 1982, at the time the Defendant booked the 79 PVD order

for $600,013.00. Defendant does not contest Plaintiff's assertion that pre-

judgment interest, if it is to be awarded in this case, should be calculated from

February, 1982. Furthermore, the Court ntoes that the pretrial order in this

case lists, as an “‘uncontroverted fact,’ that *‘a formal written contract was

executed in January, 1982 regarding the $600,013.00 purchase of additional

PVD units.’’ Therefore, the Court finds that Plaintiff is entitled to an award

of prejudgment intrest on the $5,000.00 judgment in this case, said interest

to be calculated from February, 1982 until judgment entered in this case, at

a rate of eight percent per annum compounded annually.

In his motion for attorney’s fees, Plaintiff maintains that he is

entitled to an award of reasonable attorney’s fees pursuant to C.R.S.§8-4-114.

C.R.S. §8-4-114 provides:

Whenever it is necessary for an employee to commence a civil

action for the recovery or collection of wages and penalties due

as provided by sections 8-4-104 and 8-4-105, the judgment in such

action shall include a reasonable attorney fee in favor of the win-

ning party, to be taxed as part of the costs of the action.

The Colorado Court of Appeals has explained that recovery of attorney’s fees

under C.R.S. §8-4-114 is a matter of right. and only the amount of such a

recovery is within the discre‘:on of the trial court:

Section 114, in providing that the judgment ‘‘shall include a

reasonable attorney fee in favor of the winning party,”’ leaves

nothing to the discretion of the trial court except to determine what

is a ‘‘reasonable fee.”’

Keeton v. Rike, 559 P.2d 262, 263 (Colo. Ct. App. 1977). See also Hofer

v. Polly Little Realtors, supra.

The Court is of the view that the $5,000.00 judgment in this case

is based on a claim for wages within the meaning of C.R.S.§8-4-104,

8-4-105. Commissions are clearly within the definition of *‘wages’’ for pur-

poses of these provisions. See C.R.S. §8-4-101(9); Hofer v. Polly Little

Realtors, Inc., supra. Therefore, the Court finds that Plaintiff is entitled to

an award of reasonable attorneys fees with respect to the recovery of said

wages pursuant to C.R.S. §8-4-114.

The Court rejects Defendant’s argument that attorney’s fees are

not recoverable under C.R.S. §8-4-114 for a claim based on quantum meruit.

C.R.S. §8-4-114, in defining *‘wages or compensation’’ for purposes of these

provisions, specifies that the terms include amounts owed ‘*. . . whether the

labor or service is performed under contract, subcontract, partnership, sub-

partnership, station plan, or other agreement for the performance of labor or

service if the labor or service to be paid for is performed personally by the

person demanding payment.’’ Furthermore, C.R.S.§8-4-104 provides, in per-

tinent part, that wages or compensation become due and payable **. . . when

an employee not having a written contract for a definite period quits or resigns

his employment.’ These provisions clearly suggest that C.R.S. §§ 8-4-104,

8-4-05 and 8-4-114 are not limited to cases involving wages or compensa-

tion due pursuant to a written contract. Therefore, the Court finds that at-

torneys fees are recoverable under C.R.S. §8-4-114 regardless of whether

a plaintiff's claim is based on breach of contract or quantum meruit.

The Court also rejects Defendant’s argument that C.R.S. §8-4-104

conditions recovery of attorney's fees upon a determination of the employer’ s

lack of a good-faith legal justification for the refusal to pay wages in a timely

fashion. The provis‘n to which the Defendant apparently refers, C.R.S.

§8-4-104(3) provide: for a penalty to be added to the compensation legally

proven to be due, in an amount equal to fifty percent thereof, if an employer

refuses to pay wages or compensation without a good-faith legal justification

for such refusal. However, an award of attorney’s fees under C.R.S.

§8-4-114 is not dependent on an imposition of a penalty under C.R.S.

§8-4-104. See Keeton v. Rike, supra, Hofer v. Polly Little Realtors, Inc.,

supra. Accordingly, the lack of a finding in this case regarding Defendant’s

good-faith legal justification in refusing to pay the wages in question does not

affect Plaintiff's claim for attorney’s fees under C.R.S. §8-4-114.

Defendant’s final objection to Plaintiff's motion for attorney's fees

is that Plaintiff has failed to file adequate records in support of his request

as required by Rule 104 of our Local Rules of Practice. The Court is of the

view, however, that this goes to the reasonableness of the attorney’s fees in

question, as opposed to Plaintiff's right to such an award.

Accordingly, the Court finds that Plaintiff is entitled to an award

of reasonable attorney’s fees pursuant to C.R.S. §8-4-114, with respect to

the $5,000.00 judgment in the instant case.

As noted above, the reasonableness of an award of attorney’s fees

under C.R.S §8-4-114 is within the discretion of the trial court. In the

instant case, we are of the view that the amount requested by Plaintiff,

$52,198.00, would not be a reasonable award of attorney’s fees pursuant to

C.R.S. §8-4-114.

Although Plaintiff was technically the ‘‘winning party”’ in this

action, in that the jury awarded the Plaintiff $5,000.00 in damages, it is

necessary to keep in mind that the Plaintiff recovered on only one of several

claims that he originally filed in this case. As noted above, a portion of Piain-

tiffs claims were dismissed on summary judgment, while others were

rejected by the jury. The Court is of the opinion that the ‘*proportionate

recovery rule,’’ traditionally applied in cases involving claims for attorney's

fees under 28 U.S.C. §1988, must also be appiied to claims for attorney's -

fees under C.R.S. §8-4-114. In Scheriff v. Beck, 452 F.Supp 1254 (D.Colo.

1978), the Court explained:

[W]e recognize the rule in the Tenth Circuit that ‘‘when a party

has prevailed in a court action . . . he may be entitled to attorney's

fees proportionate to the extent of his recoyery.’’ Pearson v.

Western Electric Co., 542 F.2d 1150, 1153 (10th Cir. 1976).

(citations omitted)... Applying the proportionate recovery rule

plaintiff's fee request must again be reduced. Plaintiff was permit-

ted to present three separate civil rights claims to the jury and

recovered only on one. Any recovery granted should take into ac-

cont this disparity.

Id. at 1259. See also Keyes v. School Dist. No. 1, 439 F.Supp. 393 (D.Colo.

1977); Perkins v. New Orleans Athletic Club, 429 F.Supp. 661 (E.D.La.

1976). Accordingly, we are of the view that Plaintiff is not entitled to

recovery of all of the attorney's fees incurred.

The Court also notes that any attorney’s fees awarded under

C.R.S. §8-4-114 are to be ‘‘taxed as part of the costs of the action.’’ See

C.R.S. §8-4-114. In this case, as will be discussed below, the award of costs

may be affected by the offer of judgment submitted by Defendant under Rule

68 of the Federal Rules of Civil Procedure. Accordingly, any award of at-

torney’s fees may be significantly reduced as a result of Defendant's offer

of judgment.

In light of these factors, as well as the factors outlines in Mau v.

E.P.H. Corp., 638 P.2d 777 (Colo. 1981) and Battle v. Anderson, 614 F.2d

251 (10th Cir. 1980), the Court is of the opinion that the amount requested

by the Plaintiff does not represent a ‘‘reasonable’’ amount of attorney's fees

under C.R.S. §8-4-114. As will be described below, Plaintiff will be permit-

ted to submit the necessary documentation in order to support his claim for

a reasonable award of attorney's fees in this case.

Both parties have moved this Court to review the taxation of costs

by the Cierk of the Court. The amount of costs to be taxed in this case

depends to a great extent, however, on the final resolution of Plaintiff's re-

quest for attorney’s fees under C.R.S. §8-4-114. Any attorneys fees awarded

must be included in the costs taxed in this action. Furthermore, just as the

offer of judgment in this case could reduce any award of attorney's fees, an

award of attorney's fees could conceivably alter the role that the offer of judg-

ment would normally play in the taxation of costs. Accordingly, the parties’

motions to review taxation of casts will be HELD IN ABEYANCE pending

a determination of a reasonable award of attorney’s fees in this case.

The Court is of the view that the parties should be able to reach

an agreement which would resolve the issues in this case which remain viable

at this time. The Court is of the opinion that the interests of both parties would

be weil served if the parties could reach an agreement, in light of the factors

cited above, as to a reasonable award of attorney's fees in this action. The

added time, effort and expense which will be required to have this matter

resolved by the Court, will most likely eliminate any benefit that either party

could hope to receive from an award of costs or attorney's fees in this action.

Accordingly, the parties are DIRECTED to make every effort to resolve this

matter. The Court is to be advised, in writing, by 5:00 p.m. on May 30,

1984, regarding the results of the parties’ efforts.

| In the event that the parties are unable to resolve these matters,

Plaintiff is DIRECTED to file with the Court, by 5:00 p.m. on June 6, 1984,

a Statement, together with all documents requried by Rule 104 of our Local

Rules of Practice, in support of his claim for reasonable attorney's fees. Plain-

tiffs statement should include, to the greatest extent possible, a discussion

of the amount of fees, reasonably necessary to the recovery of the $5,000.00

judgment in this case, which were incurred before and after the filing of

Defendant's offer of judgment. Defendant is DIRECTED to file a response

to Plaintiff's statement by 5:00 p.m. on June 15, 1984. Unless otherwise

ordered, the Court will rule on this matter without oral argument.

— ORDER —

For the reasons stated above, the Motion For New Trial, Amend-

ment of Judgment, Relief From Judgment Or Order, filed by Plaintiff on

April 2, 1984, is DENIED.

The Amended Motion For A New Trial, Amendment of Judg-

ment, Relief From Judgment Or Order, filed by Plaintiff on April 6, 1984,

is GRANTED to the extent that Plaintiff is awarded prejudgment interest on

the $5,000.00 judgment in this case, said interest to be calculated from

February, 1982 until judgment entered in this case, at a rate of eight percent

per annum compounded annually. Plaintiff's Amended Motion, in all other

respects is DENIED.

The Motion For Attorney’s Fees, filed by Plaintiff on April 2,

1984, is GRANTED to the extent that Plaintiff is entitled to reasonable

attorney's fees in this case. A determination of the amount of attorney's fees

to be awarded will be HELD IN ABEYANCE pending completion of the

briefing schedule outlined in this order.

The Motion To Review Taxation Of Costs filed by Plaintiff on

April 13, 1984, and the Motion To Review Taxation Of Costs filed by Deten-

dant on April 16, 1984, will be HELD IN ABEYANCE pending a determina-

tion of the amount of attorney’s fees to be awarded in this case.

DATED at Denver, Colorado this 17th day of May, 1984.

BY THE COURT:

/ signed /

Sherman G. Finesilver, Chief Judge

United States District Court

APPENDIX II.D

ORDER OF JULY 3, 1984 ENTERED IN THE UNITED

STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 82-F-462

JOSEPH G. BUDINICH,

Plaintiff,

VS.

BECTON DICKINSON & COMPANY,

Defendant.

— ORDER —

Sherman G. Finesilver, Chief Judge

PLAINTIFF originally brought this action seeking recovery of

compensatory and punitive damages on the following theories of recovery:

breach of contract, quantum meruit, misrepresentation and/or fraudulent con-

cealment, and wrongful termination. On May 31, 1983, the Court granted

in part and denied in part Defendant’s motion for summary judgment, and

dismissed Plaintiff's claims for breach of contract, wrongful termination,

outrageous conduct, and quantum meruit on the original contract entered into

by the parties. A trial on this matter was held commencing June 6, 1983. Said

trial resulted in a mistrial. The matter proceeded to a retrial on March 19,

1984. A jury verdict was returned on March 23, 1984, in favor of the Defen-

dant on Plaintiff's claims of fraudulent concealment and/or misrepresenta-

tion, and quantum meruit as to the sale of spare parts and accessories. The

jury found in favor of the Plaintiff on his claim for quantum meruit as to the

sale of 79 additional PVD units, and awarded the Plaintiff damages in the

amount of $5,000.00. On May 14, 1984, the Court entered an order deny-

ing Plaintiff's motion for a new trial, amendment of judgment, and relief from

judgment or order. The Court granted in part and denied in part Plaintiff's

amended motion for a new trial, amendment of judgment and relief from

judgment or order, and awarded the Plaintiff prejudgment interest on the

$5,000.00 judgment previously entered in this case. Plaintiff's motion for at-

torney’s fees was granted to the extent that the Court found that Plaintiff is

entitled to an award of reasonable attorney’s fees; however, the Court held

in abeyance a determination of the amount of attorney’s fees to be awarded

to the Plaintiff.

This matter is before the court on the following motions: (1) a

motion for attorney’s fees, filed by Plaintiff on April 2, 1984; (2) a motior

to review taxation of costs, filed by Plaintiff on April 13, 1984; and (3) a mo-

tion to review taxation of costs, filed by Defendant on April 16, 1984. The

Court has thoroughly reviewed these motions, as well as the briefs, affidavits

and exhibits submitted by the parties in support of their respective positions

on said motions. Upon a careful consideration of these matters, the Court

finds that Plaintiff is entitled to an award of attorney’s fees in the amount of

$1,000.00, to be taxed as costs in the instant case. The Court further finds

that Plaintiff is entitled to an award of costs in this case; however, said award

will be limited by the offer of judgment filed by Defendant pursuant to Rule

68 of the Federal Rules of Civil Procedure. The Court expressly approves

and upholds the method of taxation of costs and the amount of costs award-

ed to the Defendant by the Clerk of the Court on April 10, 1984.

Plaintiff originally requested an award of $52,198.00 in attorney’s

fees with respect to the $5,000.00 judgment entered in this case. This amount

was apnarently based on the attorney’s fees incurred by the Plaintiff with

respect to all of the claims for relief asserted by the Plaintiff in the instant

case. In our May 14, 1984 order, the Court explained that in calculating the

attorney's fees to be awarded in the instant case it is necessary to consider

that the Plaintiff recovered on only one of several claims that he originally

asserted against the Defendant. A portion of Plaintiff's claims were dismissed

on summary judgment, while others were rejected by the jury. Plaintiff's

claim for attorney's fees obviously must be reduced to take into account these

factors. See e.g. Pearson v. Western Electric Co., 542 F.2d 1150 (10th Cir.

1976); Scheriff v. Beck, 452 F.Supp. 1254 (D.Colo. 1978).

Plaintiff, in response to the Court’s May 14, 1984 order, submitted

a claim for attorney’s fees in the amount of $17,132.74, based on Plaintiff's

estimate of the fees to be awarded under the ‘‘proportionate recovery”

analysis described by the Court. In addition, Plaintiff submitted an alternative

claim for $18,855.00 in attorney’s fees based on a ‘‘hypothetical case basis’’

as the prevailing party on the claim for which judgment was entered in the

amount of $5,000.00. The Court is of the view that Plaintiff's requests are

unreasonable, and that Plaintiff should be awarded a total of $1,000.00 for

reasonable attorney’s fees in the instant case.

Initially, the Court notes that even if Plaintiff's request was con-

sidered reasonable, the request must be substantially reduced as a result of

the offer of judgment filed by Defendant pursuant to Rule 68 of the Federal

Rules of Civil Procedure. As the Court explained in our May 14, 1984 order,

any award of attorney’s fees in this case must be taxed as costs, and come

within the limitations of a valid offer of judgment pursuant to Rule 68 of the

Federal Rules of Civil Procedure. Defendants submitted an offer of judgment

on February 15, 1984, in the amount of $27,000. Said offer was rejected by

the Defendant, and the offer clearly exceeds the amount of judgment entered

in this case together with the amount of costs (including the amount of at-

torney’s fees sought by the Plaintiff) prior to the date the offer was made. Fur-

thermore, the Court finds Plaintiffs arguments regarding the validity of the

Defendant's offer of judgment to be without merit. The Court has thoroughly

reviewed Defendant’s offer of judgment, and finds that it is sufficient to meet

the requirements of Rule 68 of the Federal Rules of Civil Procedure.

Therefore, the Court finds that Plaintiff is not entitled to an award of any costs

which might have been incurred after February 15, 1984. Accordingly, Plain-

tiff is not entitled to an award for any, attorney’s fees incurred after February

15, 1984.

Plaintiff's request must be further reduced to accurately reflect the

limited recovery achieved by the Plaintiff. As we have repeatedly noted,

Plaintiff was the ‘‘prevailing party’’ in this case with respect to only one of

several claims that he originally brought against the Defendant. In terms of

the legal issues involved in Plaintiff's various claims, the discovery

reasonably required for presentation of the claims, and the relief requested

with respect to the Plaintiff's claims, the single claim upon which the Plaintiff

ultimately prevailed was clearly the most limited in scope of all the Plaintiff's

claims. Where a plaintiff has enjoyed only a limited success, a reasonable fee

must be determined in relationship to the results obtained, and a reduced

award is justified where the relief is limited in comparison to the scope of the

litigation as a whole. See Hensley v. Eckerhart, 103 S.Ct. 1933 (1983).

Upon a review of the records submitted by the Plaintiff, the Court

finds that the Plaintiff's request for attorney’s fees contains claims for time,

travel and discovery which were not necessary or related to the $5,000.00

judgment entered for the Plaintiff. The Court is not willing to require the

Defendant to bear the burden of financing Plaintiff's largeiy unsuccessful

lawsuit, particularly in light of the offer of judgment that was filed by Defen-

dant pursuant to Rule 68 of the Federal Rules of Civil Procedure. Further-

more, the Court is of the view that equitable considerations support an

extremely limited award of attorney’s fees in the instant case. The Defendant

clearly prevailed on several claims in this case, and Defendant is arguably

a ‘‘prevailing party’’ entitled to an award of attorney’s fees under C.R.S.

§8-4-114. See e.g. Hartman v. Freedman, 591 P.2d 1318 (1979). Although

the Defendant did not file a motion for an award of attorney’s fees in this case,

and the Court makes no finding as to whether the Defendant would have been

entitled to such an award, a realistic examination of which party actually

‘*prevailed’’ in this case clearly suggests that the Plaintiff should receive at

most an extremely limited award of attorney’s fees.

In addition to the factors specifically discussed in this order, the

Court, in determining the amount of attorney’s fees to be awarded in this case,

has considered the factors articulated in Hensley v. Eckerhart, supra; Mau

v. E.P.H. Corp., 638 P.2d 777 (Colo. 1981); and Battle v. Anderson, 614

F.2d 251 (10th Cir. 1980). Upon a consideration of the relevant factors, the

Court finds that Plaintiff is eniitled to an award of reasonable attorney’s fees

in the amount of $1,000.00, to be taxed as costs in the instant case.

— ORDER —

For the reasons stated above, Plaintiff's motion for attorney's fees

is GRANTED to the extent that Plaintiff is awarded the amount of $1,000.00

in attorney's fees, to be taxed as costs in the instant case.

Defendant’s motion to review taxation of costs is DENIED. The

Court expressly approves and upholds the method of taxation of costs and the

amount of costs awarded to the Defendant by the Clerk of the Court on April

10, 1984.

Plaintiff's motion to review taxation of costs is GRANTED to the

extent that this matter is REMANDED to the Clerk o/ the Court for taxation

of costs in accordance with this order.

DATED at Denver, Colorado this 3rd__ day of July, 1984.

BY THE COURT:

/ signed /

Sherman G. Finesilver, Chief Judge

United States District Court

APPENDIX II.E

ORDER OF AUGUST 1, 1984 ENTERED IN THE UNITED

STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

CIVIL ACTION NO. 82-F-462

JOSEPH G. BUDINICH,

Plaintiff,

VS.

BECTON DICKINSON & COMPANY

Defendant.

— ORDER —

SHERMAN G. FINESILVER, CHIEF JUDGE

THIS MATTER IS BEFORE THE COURT on the plaintiff's mo-

tion for amendment of order, or relief from judgment and order. Plaintiff

seeks an increase in the amount of attor-ey’s fees awarded to him by this

Court’s Order dated July 3, 1984. The gist of the motion is the Court’s award

of fees is unjust, arbitrary, without factual and legal basis, and in the nature

of a penalty. The Court has considered the plaintiff's motion. In addition, the

Court has carefully reconsidered its Order of July 3, 1984. The award of fees

was based on substantial evidence before the Court.

The July 3, 1984 Order takes into account the factors demanded

under the applicable case law to be considered in an award of attorney's fees.

Mau v. E.P.H. Corp., 638 P.2d 777 (1981): Battle v. Anderson, 614

F.2d 2*1 (10th Cir. 1890); Hensley v. Eckerhart, 103 S. Ct. 1933 (1983).

Budini«h rrevailed on one of six claims brought, winning a $5,000 ver-

dict ou: of $650,000 in damages originally sought. The plaintiff is entitled

to a reasonable attorney's fee. In the Order, the Court noted the claim

upon which Budinich did prevail was the most limited in scope of all

the claims. The claim was in no sense complex, either legally or factually.

The Court further noted the plaintiff's very limited success, and found, in

light of the scope of the litigation as a whole, a reduced award was indeed

justified. Hensley v. Eckerhart, 103 S.Ct. 1933 (1983).

In addition to the above findings, the Court also found the request

for fees contained time, travel and discovery which were neither necessary

nor related to the judgment entered for Budinich. The Court found a valid

offer of judgment had been made on February 15, 1984, by the defendant.

The amount of the offer was $27,000. Although the Court awarded no fees

to the Defendant, the Court did find the defendant was arguably a ‘‘prevailing

party’’, noting a realistic examination of which party actually ‘‘prevailed”’

suggested the plaintiff should receive at most an extremely limited award of

fees.

The Court is not insensitive to the purposes behind C.R.S.

§8-4-114. However, as states in the July 3 Order, the Court is unwilling to

require the defendant to finance a largely unsuccessful lawsuit against itself.

Accordingly, the plaintiff's motion for amendment of order, or relief from

judgment and order is DENIED.

Dated at Denver, Colorado, this _Ist__ day of August, 1984.

BY THE COURT:

/ signed /

SHERMAN G. FINESILVER, CHIEF JUDGE

UNITED STATES DISTRICT COURT

APPENDIX IIL.A

PETITION FOR REHEARING FILED IN THE UNITED

STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 84-2192

JOSEPH G. BUDINICH,

Plaintiff-Appellant,

Vs.

BECTON DICKINSON AND COMPANY,

Defendant-Appellee.

PETITION FOR REHEARING

Appellant, Joseph G. Budinich, through the undersigned legal

counsel, Frank & Finger, P.C., hereby petitions pursuant to Rule 40 of the

Federal Rules of Appellate Procedure for rehearing of this Court's Judgment

entered December 12, 1986.

Appellant requests that the Court reconsider and determine the

issues of timeliness of this appeal, non-retroactivity, and the award of attorney

fees tor the reasons set forth herein.

Additionally, Appellant would note that an error appears in the

recitation of facts in that the opinion erroneously states that the pleading were

amended after Summary Judgment entered. This is not accurate. Amendment

occurred prior to Summary Judgment.

I. THE COURT'S HOLDING ON TIMELINESS OF

THE APPEAL SHOULD BE MODIFIED

The Court's holding that a uniform, unqualified rule that attorney

fee awards are collateral to the relief obtained is appropriate in cases where

federal law controls, but is inappropriate in pure diversity cases, where

substantive state law controls and is contrary to the federal law.

The Constitution of the United States established a rigid balance between the

rights granted to the federal government and those rights retained by the

states. In that regard, the Tenth Amendment to the United States Constitu-

tion specifically reserved unto the states all power not delegated to the United

States by the Constitution.

The right of the states to enact their own substantive standards has

been repeatedly upheld. Only where such law directly interferes or trans-

gresses on the Commerce Clause or areas expressly preempted have such

laws been held to be superseded by Congressional mandate. United States v.

Darby, 312 U.S. 100, 85 L.Ed. 609, 61 S. Ct. 451 (1941).

Colorado, in providing for labor relations in its state enacted a

statute requiring payment of wages on discharge and specifically provided

for an award of mandatory attorney fees for violation of that proscription.

By case law of the State of Colorado this provision has been determined to

be an inherent part of the relief where the statute is violated. Ortega v. Board

County Commissioners, 657 P.2d 989 (Colo. App. 1982 cert. denied);

Ball Corporation v. Loran, 42 Colo. App. 401, 496 P.2d 412 (Colo. App.,

1979); Marieta v. Busto, 91 P.2d 345 (Colo. App., 1984) vert. denied.

The federal judiciary has no power to modify, change or reverse

this substantive determination, unless the holding is unconstitutional or

preempted. No such argument of unconstitutionality or preemption is made

here.

Clearly, the provision providing for United States District Court’s

original jurisdiction over diversity actions, 28 U.S.C. §1332, which in and

of itself does not emanate from the United States Constitution, cannot preempt

Colorado substantive law. Kline v. Burke Construction Co., 260 U.S. 226,

67 L.Ed. 226, 43 S. Ct. 79 (1922).

Yet, that is exactly what this Court has done in its December 12,

1986 order. It has substantively changed the law of the State of Colorado.

That procedure is violative of fundamental Constitutional principles and a4

marked departure from the teachings of Erie Railroad Co. v. Tompkins, 304

U.S. 64 (1938) and even Hanna v. Plumer, 380 U.S. 460 (1965). The deter-

mination is most certainly ‘‘outcome determinative’’ and clearly a new pro-

nouncement of law.

Il. THE DECISION SHOULD BE GIVEN ONLY

PROSPECTIVE APPLICATION

The December 12, 1986 decision of the Court is a new determina-

tion of the law. For the first time in this Circuit or any other circuit to

Appellant's knowledge has a court grappled with the concept of whether state

substantive law on attorney fees controls in diversity cases, and its import to

the teachings of White v. New Hampshire, 455 U.S. 445 (1982).

Non-retroactivity is clearly inappropriate in this matter for the

reasons previously set forth in Appellant’s prior brief.

Ill. THE ATTORNEY FEE AWARD REQUIRES

FURTHER EXAMINATION

In disposing of the attorney fee award question, as it did, this

Court failed to perceive that briefs on the merits have not been filed or

authorized. The only issues briefed and submitted to the Court were briefs

on the merits of the question of summary disposition based on jurisdictional

arguments.

The District Court’s decision on attorney fees is clearly erroneous.

Facts and critical determinations, such as number of hours worked on the

claim, hourly rate, defendant engaging in extensive discovery and the like,

have never been presented because of the posture of the case. The Court, in

its holding that the attorney fee question is properly before it, now should

examine the merits.

Appellant asks only for fundamental fairness in presenting the

issues to the Court. The $1,000.00 attorney fee award is far less compensation

than is justified by any objective standard relating to time expense in prov-

ing the wage claim for the supplemental order.

An examination of the record with brief will easily clarify the er-

roneous attorney fee holding.

IV. CONCLUSION

For the foregoing reasons, Plaintiff-Appellant requests rehearing

and modification of this Court’s order of December 12, 1986, and specifically

asks this Court to consider the appeal in its entirety on the merits.

Respectfully submitted,

FRANK & FINGER, P.C.

By: / signed /

William S. Finger, #7224

Attorneys for Plaintiff-Appellant

29025D Lakepoint Center

P.O. Box 1477

Evergreen, CO 80429

Certificate of Mailing

I hereby certify that on the 13 day of August 1987,

I placed three true and correct copies of the foregoing application for Peti-

tion for Writ of certiorari in the United States Mail, first class, postage ful-

ly prepaid and properly addressed to:

Terre Lee Rushton, Esq.

Kelly, Haglund, Garnsey

and Kahn

1441 18th Street

Suite 300

Denver, Colorado 80202

Thomas E. Frank

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.