         The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                July 25, 2019

                               2019COA113

No. 18CA0950, 23 LTD v. Herman — Labor and Industry —
Employment Contracts — Noncompetition Agreements —
Nonsolicitation Agreements

     In this case concerning the alleged breach of an employment

agreement’s noncompete and nonsolicitation provisions, the

division holds that parties to an employment, noncompete, or

nonsolicitation agreement cannot contractually obligate a court to

blue pencil noncompete or nonsolicitation provisions to render any

unenforceable terms enforceable. Thus, the district court did not

err or abuse its discretion when it declined to blue pencil a

nonsolicitation provision that is unenforceable under Colorado law.
COLORADO COURT OF APPEALS                                     2019COA113


Court of Appeals No. 18CA0950
City and County of Denver District Court No. 14CV34518
Honorable J. Eric Elliff, Judge


23 LTD, d/b/a Bradsby Group, a Colorado corporation,

Plaintiff-Appellant and Cross-Appellee,

v.

Tracy Herman,

Defendant-Appellee and Cross-Appellant.


                JUDGMENT AFFIRMED, ORDER REVERSED,
                 AND CASE REMANDED WITH DIRECTIONS

                                 Division VII
                         Opinion by JUDGE BERGER
                        Dunn and Navarro, JJ., concur

                           Announced July 25, 2019


Sherman & Howard, L.L.C., Tamir I. Goldstein, William R. Reed, Denver,
Colorado, for Plaintiff-Appellant and Cross-Appellee

McElroy, Deutsch, Mulvaney & Carpenter, LLP, Kristi L. Blumhardt, Lily
Ramirez, Englewood, Colorado, for Defendant-Appellee and Cross-Appellant
¶1    This case presents an employment law issue of first

 impression in Colorado –– when, if ever, is a court required to blue

 pencil a noncompete or nonsolicitation 1 agreement to conform it to

 Colorado law?2

¶2    23 LTD, d/b/a Bradsby Group (Bradsby), sued former

 employee Tracy Herman for breach of noncompete and

 nonsolicitation provisions in her employment agreement. A jury

 determined that Herman had not breached the noncompete

 provision. The jury returned a verdict (and awarded nominal

 damages of one dollar) in favor of Bradsby on the nonsolicitation

 claim, but the district court set aside that verdict and entered

 judgment in favor of Herman because the nonsolicitation provision

 violates Colorado law and because the court declined to narrow the



 1 This provision is also sometimes referred to as a noncontact or no-
 contact agreement.
 2 While some courts use the term “blue penciling” to refer only to

 the removal of words from a noncompete or nonsolicitation
 provision without modifying or adding any other terms, Ferrofluidics
 Corp. v. Advanced Vacuum Components, Inc., 968 F.2d 1463, 1469
 (1st Cir. 1992), others use the term to refer more generally to any
 court modifications of such provisions, ADP, LLC v. Rafferty, 923
 F.3d 113, 120 n.7 (3d Cir. 2019). We use the term “blue pencil” to
 refer to any modification of a noncompete or nonsolicitation
 provision by a court.

                                   1
 provision to render it enforceable. Despite entering judgment in

 favor of Herman on both claims, the court denied her request for

 attorney fees under the agreement’s fee-shifting provision. Bradsby

 appeals the merits judgment, and Herman cross-appeals the denial

 of attorney fees.

¶3    We conclude that the record supports the jury’s verdict on the

 noncompete claim and that the court did not err or abuse its

 discretion in declining to blue pencil the nonsolicitation provision.

 Thus, we affirm the court’s merits judgment. We also conclude that

 Herman is entitled to attorney fees because she prevailed on both

 breach of contract claims, and we therefore reverse the court’s order

 denying attorney fees and remand with directions.

              I.     Relevant Facts and Procedural History

¶4    Bradsby hired Herman in 2009 as a legal recruiter. When she

 was hired, she signed an Account Executive Employment

 Agreement that included noncompete and nonsolicitation provisions

 (agreement). The noncompete provision states, in relevant part:

            Upon termination of his/her employment with
            Bradsby, Account Executive . . . shall not . . .
            within the Restricted Area from a period of
            twelve (12) months from the date of
            termination of employment become an owner,


                                    2
           partner, investor, or shareholder in any entity
           that competes with Bradsby without prior
           written consent of Bradsby . . . .

¶5    The agreement defines the “Restricted Area” as any place

 “within 30 miles of Bradsby’s principal place of business,” which is

 in downtown Denver.

¶6    The nonsolicitation provision states, in pertinent part:

           Upon termination of his/her employment with
           Bradsby, Account Executive . . . shall not
           within the Restricted Area, for a period of
           twelve (12) months from the date of
           termination of employment, contact or solicit
           the business of any person, entity, applicant,
           client, employer or prospective employer who
           Bradsby has contacted or solicited during the
           twelve (12) months prior to the Account
           Executive’s termination . . . .

¶7    The agreement also includes provisions prohibiting Herman

 from disclosing Bradsby’s confidential information or using it for

 her own benefit (the confidentiality provisions) without the prior

 written consent of Bradsby.

¶8    While employed by Bradsby, Herman worked with one of

 Bradsby’s clients, the law firm Vranesh and Raisch, LLP, to fill

 various hiring needs. She also worked with a lawyer applicant to

 help him find a job. Her efforts included setting up an interview



                                   3
  with Vranesh. Vranesh offered the applicant a job in 2012, but the

  applicant declined the offer.

¶9     For reasons not relevant to our analysis, Bradsby terminated

  Herman’s employment in 2014. At termination, Bradsby reminded

  Herman of her noncompete and nonsolicitation obligations.

  Herman sought clarification as to the scope of those obligations and

  requested that the Restricted Area be reduced from a thirty-mile

  radius to a twenty-eight mile radius (Herman’s home at the time

  was twenty-eight miles from Bradsby’s main office). Bradsby

  refused to modify the terms of the agreement.

¶ 10   Not long after, Herman formed Touchstone Legal Resources,

  LLC. She obtained a mailbox at a UPS store in Monument,

  Colorado –– outside the Restricted Area –– and listed this as the

  new company’s address in its organizational documents (though

  she later testified that she did non-recruiting work for Touchstone

  from her home). At trial, she described Touchstone’s business as

  “10 percent” recruiting and “90 percent” everything else, including

  law firm succession planning.

¶ 11   After starting her new business, she reached out to the prior

  applicant to see if anyone in his network would be interested in an


                                    4
  open position with the City of Fort Collins (the applicant had

  significantly more experience than the position required).

¶ 12   The applicant then inquired whether Vranesh still had a

  position open. As a result of this inquiry, Vranesh ultimately hired

  the applicant and paid Herman (or Touchstone) $12,000 for her role

  in the hiring.

¶ 13   When Bradsby learned that Herman had played a role in

  Vranesh’s hiring of the applicant, Bradsby sued her for breach of

  the noncompete and nonsolicitation provisions, arguing that

  enforcement of those provisions was necessary to protect its trade

  secrets.

¶ 14   Both parties moved for summary judgment. The district court

  granted Herman’s motion for summary judgment, concluding that

  the nonsolicitation provision “effectively prevents [Herman] from

  competing at all for a one year period unless she effectively removes

  herself from the Denver metropolitan area” because it “prohibits

  [Herman] from contacting any person or entity in any of the

  industries to which [Bradsby] provides recruiting services if that

  person or entity had contact with any Bradsby employee.” The

  court further concluded that the nonsolicitation provision is so


                                    5
  broad that it renders the noncompete provision superfluous and

  concluded, as a result, that both provisions are “void and in

  violation of Colorado law.” The court “decline[d] to ‘blue pencil’ the

  Agreement in order to bring it into compliance,” stating that the

  agreement’s confidentiality provisions adequately protect Bradsby’s

  trade secrets.

¶ 15   Bradsby appealed to this court. A different division held that

  the enforceability of the noncompete provision turned on the

  existence of Bradsby’s alleged trade secrets and remanded the case

  for a determination of, among other things, whether Bradsby held

  trade secrets. 23 LTD v. Herman, (Colo. App. No. 16CA1095, Aug.

  3, 2017) (not published pursuant to C.A.R. 35(e)) (Bradsby I). The

  division also held that the nonsolicitation provision is “fatally

  overbroad” and directed the district court on remand to “revisit its

  decision not to blue pencil [the nonsolicitation provision] based on

  the trade secret findings.” Bradsby I, slip op. at ¶¶ 23, 28. Finally,

  the division rejected the district court’s analysis that the

  nonsolicitation and confidentiality provisions are coterminous with

  respect to trade secret protection.




                                        6
¶ 16   On remand, the jury determined that Bradsby possessed trade

  secrets, but that Herman had not violated the noncompete

  provisions. The jury also found that Herman had violated the

  nonsolicitation provision and awarded Bradsby damages of one

  dollar. On post-trial proceedings, the district court declined to blue

  pencil the overly broad nonsolicitation provision (recall the district

  court concluded and Bradsby I held that, without modification, the

  nonsolicitation provision violates Colorado law) and entered

  judgment in favor of Herman on all claims.

¶ 17   The court denied Herman’s request for attorney fees because it

  concluded that Herman had violated the confidentiality provisions

  of her employment agreement –– a violation that was not pleaded or

  at issue in the case.

                              II.   Analysis

¶ 18   Bradsby argues that the district court erred in declining to

  blue pencil the “fatally overbroad” nonsolicitation provision because

  the agreement required the court to do so. Bradsby I, slip op. at ¶

  23. To the extent the agreement did not actually require the court

  to blue pencil the agreement, Bradsby contends the court abused

  its discretion in declining to do so. Finally, Bradsby argues that the


                                     7
  record does not support the jury’s verdict that Herman did not

  violate the noncompete provision. We reject all these contentions. 3

¶ 19    On cross-appeal, Herman argues that the court abused its

  discretion in declining to award her attorney fees under the

  agreement’s fee-shifting provision. We conclude that the court’s

  reasoning was improper and that, under these facts, Herman is the

  prevailing party entitled to attorney fees under the fee-shifting

  provision.

       A.    The District Court Did Not Err or Abuse Its Discretion in
            Declining to Blue Pencil the Unenforceable Nonsolicitation
                                     Provision

                          1.   General Principles

¶ 20    As a general matter, “[a]greements not to compete, with some

  narrow exceptions, are contrary to the public policy of Colorado.”

  Saturn Sys., Inc. v. Militare, 252 P.3d 516, 526 (Colo. App. 2011).

  “The core policy underlying the unenforceability of noncompetition

  provisions is a prohibition on the restraint of trade or . . . the right

  to make a living.” Phoenix Capital, Inc. v. Dowell, 176 P.3d 835, 844




  3 Bradsby also asks that if it prevails on this appeal, we remand to
  the district court for an award of liquidated damages. Because we
  affirm the district court’s merits judgment, that question is moot.

                                      8
  (Colo. App. 2007). A nonsolicitation agreement is a form of

  noncompete agreement. Saturn Sys., 252 P.3d at 526.

¶ 21   There are exceptions to the general rule. One such exception

  is set forth in section 8-2-113(2)(b), C.R.S. 2018, which provides

  that “[a]ny covenant not to compete which restricts the right of any

  person to receive compensation for performance of skilled or

  unskilled labor for any employer shall be void, but this [prohibition]

  shall not apply to: . . . [a]ny contract for the protection of trade

  secrets.” While section 8-2-113(2)(b) provides a trade secret

  exception to the statutory prohibition on noncompete agreements,

  any such limitations must be reasonable and narrowly drafted.

  Saturn Sys., 252 P.3d at 526.

¶ 22   As explained in detail below, Colorado law provides little

  guidance as to when, and to what extent, trial courts may blue

  pencil unreasonable noncompete provisions, so we look to decisions

  of courts in other jurisdictions.

¶ 23   In states that permit the enforcement of reasonable

  noncompete agreements, courts have taken three different general

  approaches to unenforceable noncompete provisions, described by

  the First Circuit as follows:


                                      9
             (1) the “all or nothing” approach, which would
             void the restrictive covenant entirely if any part
             is unenforceable, (2) the “blue pencil”
             approach, which enables the court to enforce
             the reasonable terms provided the covenant
             remains grammatically coherent once its
             unreasonable provisions are excised, and
             (3) the “partial enforcement” approach, which
             reforms [(blue pencils)] and enforces the
             restrictive covenant to the extent it is
             reasonable, unless the “circumstances indicate
             bad faith or deliberate overreaching” on the
             part of the employer.

  Ferrofluidics Corp. v. Advanced Vacuum Components, Inc., 968 F.2d

  1463, 1469 (1st Cir. 1992) (quoting Durapin, Inc. v. Am. Prods., Inc.,

  559 A.2d 1051, 1058 (R.I. 1989)); see also 6 Williston on Contracts

  § 13:24, Westlaw (4th ed. database updated May 2019) (same).

¶ 24   Though Colorado appellate courts have not explicitly endorsed

  any of these three approaches, they have made clear that trial

  courts have the discretion to blue pencil unenforceable noncompete

  provisions, at least to some extent. 4




  4 Though Bradsby asks this court to blue pencil the agreement,
  Bradsby has not cited, and we are unaware of, any case in which a
  Colorado appellate court has blue penciled the provisions of a
  noncompete, or any authority that would permit us to do so. We
  thus reject this request.

                                     10
¶ 25   In National Graphics Co. v. Dilley, 681 P.2d 546, 547 (Colo.

  App. 1984), the court recognized that a “trial court has the

  discretion to reform an unreasonable territorial restriction set forth

  in a covenant not to compete in order to make the scope of the

  geographic area reasonable” but concluded that the trial court did

  not abuse its discretion in “refusing to rewrite the parties’

  agreement by supplying the limitations of both duration and

  geographic scope.”

¶ 26   In Gulick v. A. Robert Strawn & Associates, Inc., 477 P.2d 489,

  493 (Colo. App. 1970) (not published pursuant to C.A.R. 35(f)), on

  the other hand, the trial court narrowed the geographic scope of an

  overly broad noncompete provision, and the appellate court upheld

  that judgment.

¶ 27   And in Management Recruiters of Boulder, Inc. v. Miller, 762

  P.2d 763, 764 (Colo. App. 1988), the court considered a

  nonsolicitation provision that prohibited the defendant from

  contacting any “candidate or employer-client with whom the

  [defendant] had contact with or access to.” The division upheld the

  trial court’s decision to “narrowly construe[]” the provision to only




                                    11
  bar contact with candidates or employer-clients with whom the

  defendant had “actual contact.” Id. at 766.

¶ 28   In this case, the district court declined to blue pencil the

  overly broad nonsolicitation provision. Therefore, we do not need to

  broadly decide when and to what extent a Colorado trial court may

  blue pencil an overly broad noncompete or nonsolicitation

  provision. We address only the questions of (1) whether the

  agreement or the law of the case required the district court to blue

  pencil the nonsolicitation provision; and (2) assuming the court had

  no such obligation, whether the district court abused its discretion

  in declining to do so.

  2.   The District Court Was Under No Obligation to Blue Pencil the
                   Overly Broad Nonsolicitation Provision

¶ 29   In its opening brief, Bradsby contends that the severability

  section of the agreement obligated the district court to blue pencil

  the agreement to conform it to Colorado law. We disagree.

¶ 30   It is not the function of a court to write or rewrite contracts for

  parties to enable enforcement of a contract that, as written, violates

  the public policy of the state. Bayly, Martin & Fay, Inc. v. Pickard,

  780 P.2d 1168, 1175 (Okla. 1989). While, under certain



                                    12
  circumstances, a court may exercise its discretion to blue pencil an

  otherwise offensive restrictive covenant, the trial court has broad

  discretion whether and when to exercise that authority. Nat’l

  Graphics, 681 P.2d at 547.

¶ 31   We squarely reject the proposition that contracting parties, by

  inclusion of language in a contract, may compel a court to blue

  pencil an agreement that violates the public policy of this state.

  Though Colorado law provides little guidance in this area, Bayly,

  Martin & Fay, 780 P.2d 1168, decided in a jurisdiction that permits

  trial courts to modify overly broad noncompete provisions, is

  instructive. In that case, the Oklahoma Supreme Court declined to

  modify (or require its trial courts to modify) overly broad

  noncompete provisions, even though the contracts at issue granted

  that authority, because doing so would require the court to rewrite

  an unlawful contract. Id. at 1175.

¶ 32   Several other courts have rejected the proposition that parties

  may delegate to the courts the responsibility to contract for them.

  In Rector-Phillips-Morse, Inc. v. Vroman, 489 S.W.2d 1, 4 (Ark. 1973),

  for example, the court considered a provision similar to the one in

  this case and stated: “We are firmly convinced that parties are not


                                    13
  entitled to make an agreement, as these litigants have tried to do,

  that they will be bound by whatever contract the courts may make

  for them at some time in the future.”

¶ 33   Simply put, the court is not a party to the agreement, and the

  parties have no power or authority to enlist the court as their agent.

  Thus, parties to an employment or noncompete agreement cannot

  contractually obligate a court to blue pencil noncompete provisions

  that it determines are unreasonable.

¶ 34   Moreover, even if private parties could enlist a court to correct

  their contracts, the contract in this case does not do so. Bradsby

  argues in its opening brief that the severability provision in the

  agreement states that “if any portion of the Agreement is held

  invalid or unenforceable because of unreasonable overbreadth,” the

  agreement will still be enforceable to the extent determined by the

  court. (Emphasis added.) But as Herman correctly points out in

  her answer brief, that is not what the agreement says. The

  agreement states:

             In the event that any portion of this Agreement
             shall be held unenforceable, it is agreed that
             the same shall not affect any other portions of
             this Agreement, and the remaining covenants
             and restrictions or portions thereof shall


                                    14
             remain in full force and effect; further, if the
             invalidity or unenforceability is due to the
             unreasonableness of the time or geographical
             area covered by a covenant and restriction, the
             covenants and restrictions shall nevertheless
             be effective for the period of time and for such
             area as may be determined to be reasonable by
             a court of competent jurisdiction.

¶ 35   As noted by the district court, any conceivable mandatory duty

  (which we reject) to blue pencil this contract is limited to correcting

  overbreadth in the agreement’s geographic and temporal

  restrictions. Those restrictions are not at issue.

¶ 36   Apparently recognizing that its opening brief argument cannot

  be sustained based on the plain language of the agreement,

  Bradsby reframes its argument in its reply brief. There, it contends

  that notwithstanding the specific language of the severability

  provision quoted above, the provision, “read as a whole,”

  demonstrates a “clear intent to cure any unreasonable overbreadth

  of the restrictive covenants and enforce them to the extent allowed.”

  That is a weaker argument than Bradsby presented in its opening

  brief. Considering the provision as a whole, the fact that the

  severability provision specifically authorizes a court to modify the

  geographic and temporal restrictions suggests, if anything, that only



                                    15
  those two restrictions were intended to be subject to modification by

  a court. Beeghly v. Mack, 20 P.3d 610, 613 (Colo. 2001) (“[T]he

  inclusion of certain items implies the exclusion of others.”).

¶ 37   Finally, like the district court, we do not interpret Bradsby I’s

  mandate to require the district court to blue pencil the agreement

  on remand; rather, we read Bradsby I to afford the district court

  discretion to determine whether to blue pencil the agreement,

  consistent with the discretion provided by our case law. Nat’l

  Graphics, 681 P.2d at 547.

¶ 38   In sum, contrary to Bradsby’s argument, the district court

  violated neither the law of the case nor the mandate of Bradsby I.

  See Thompson v. Catlin Ins. Co. (UK), 2018 CO 95, ¶¶ 21-22

  (mandate rule); Jones v. Samora, 2016 COA 191, ¶ 47 (law of the

  case doctrine).

  3.   The District Court Did Not Abuse Its Discretion in Declining to
           Blue Pencil the Overly Broad Nonsolicitation Provision

¶ 39   We also reject Bradsby’s argument that even if the court was

  not compelled to blue pencil the agreement, it abused its broad

  discretion in declining to do so.




                                      16
¶ 40      We review a court’s decision not to blue pencil a noncompete

  agreement to conform it to the requirements of the law for an abuse

  of discretion. Nat’l Graphics, 681 P.2d at 547. A court abuses its

  discretion when its decision is manifestly arbitrary, unfair, or

  unreasonable, or contrary to law. People v. Jackson, 2018 COA 79,

  ¶ 37.

¶ 41      Fundamentally, it is the obligation of a party who has, and

  wishes to protect, trade secrets to craft contractual provisions that

  do so without violating the important public policies of this state. 5

  That responsibility does not fall on the shoulders of judges. Rector-

  Phillips-Morse, 489 S.W.2d at 4; Bayly, Martin & Fay, 780 P.2d at

  1175.




  5 We note that protection for trade secrets is self-effectuating under
  the Colorado Uniform Trade Secrets Act, section 7-74-103, C.R.S.
  2018. This statute protects (under the circumstances stated) trade
  secrets irrespective of whether the holder of the trade secrets also
  requires noncompete or nonsolicitation agreements. For this
  reason, and because the confidentiality and noncompete provisions
  remained effective throughout their terms, any contention that our
  conclusion here would permit Herman to engage in rampant abuse
  of Bradsby’s trade secrets is unfounded.

                                     17
¶ 42   Here, the district court gave substantial reasons why it

  declined to exercise its discretion to blue pencil the agreement. The

  district court

          • cited the general Colorado public policy against

             noncompete provisions;

          • based on the absence of relevant Colorado case law,

             reviewed authority in other jurisdictions counseling

             restraint in blue penciling parties’ agreements,

             particularly where the overbreadth of the initial

             restriction renders it unfair;

          • pointed out the significant overbreadth of the

             nonsolicitation provision; and

          • concluded that “significant modification would be

             necessary to make it comport with the law.”

¶ 43   Bradsby proposes three separate ways in which a court could

  blue pencil the nonsolicitation provision, which as written prohibits

  Herman from soliciting any person or entity previously contacted by

  Bradsby: (1) barring Herman only from soliciting individuals whom

  she had contacted while in Bradsby’s employ; (2) barring Herman

  only from soliciting Bradsby clients; or (3) barring Herman only

                                     18
  from soliciting Bradsby clients whom she had contacted. The

  multiple blue pencil options supplied by Bradsby support the

  district court’s observation that blue penciling would require

  “significant modification.” The court would have to determine not

  only which provisions to delete, but also which provisions to add,

  essentially rewriting the nonsolicitation clause.

¶ 44        While we agree with Bradsby that Bradsby I concluded that

  the confidentiality provisions are not coterminous with the

  nonsolicitation provision, and therefore cannot render the

  nonsolicitation provision superfluous, the district court’s other

  reasons for declining to blue pencil the agreement constitute sound

  reasons for the exercise of the court’s discretion.

¶ 45        Accordingly, we reject Bradsby’s argument that the district

  court abused its discretion.

       B.     The Jury Verdict That Herman Did Not Form a Competing
                        Company Has Support in the Record

¶ 46        Bradsby next argues that the jury’s verdict that Herman did

  not form a competing company in violation of the noncompete

  provision is not supported by the evidence and asks that we




                                       19
  “reverse the jury’s verdict.” Because there is record support for the

  jury’s verdict, we reject this argument.

¶ 47   “Appellate courts are bound by a jury’s findings and can only

  disturb a jury verdict if clearly erroneous.” Murphy v. Glenn, 964

  P.2d 581, 584 (Colo. App. 1998) (citation omitted). “It is within the

  jury’s province alone to determine the weight of the evidence and

  the credibility of witnesses, and to draw all reasonable inferences of

  fact therefrom.” Id. Therefore, “a jury’s verdict will not be disturbed

  if there is any support for it in the record.” Id.

¶ 48   The parties presented conflicting evidence to the jury as to

  whether Herman formed a competing company in violation of the

  noncompete provision. At bottom, Bradsby asks us to reweigh this

  conflicting evidence. We do not have the authority to do so. Id.

¶ 49   Herman testified that Touchstone was not primarily a

  recruiting company, that any recruiting work was undertaken

  outside the Restricted Area, and that Touchstone maintained a

  business address outside the Restricted Area. It was the jury’s sole

  responsibility to determine whether this testimony was true.




                                     20
   C.    As the Prevailing Party, Herman Is Entitled to Attorney Fees

¶ 50    Herman argues that she is the prevailing party because the

  court entered judgment in her favor as to both the noncompete and

  nonsolicitation claims. We agree.

¶ 51    We review determinations of which party is the prevailing

  party under a fee-shifting provision for an abuse of discretion.

  Anderson v. Pursell, 244 P.3d 1188, 1193-94 (Colo. 2010).

¶ 52    Applying this standard, we first conclude that the district

  court’s rationale cannot support its conclusion that Herman is not

  the prevailing party. Second, we conclude that Herman is the

  prevailing party because she prevailed on both breach of contract

  claims litigated. Klun v. Klun, 2019 CO 46, ¶ 31.

  1.    The District Court’s Determination That Herman Breached the
          Unlitigated Confidentiality Provision Cannot Support the
             Conclusion that Herman Is Not the Prevailing Party

¶ 53    The district court concluded that Herman was not the

  prevailing party because,

             while [Herman] may not legally have breached
             those relevant provisions of her contract
             litigated in this case, she nevertheless
             breached her obligations not to use [Bradsby’s]
             information for her own benefit. Thus, she
             cannot be considered the ‘prevailing party’



                                    21
             under Spencer’s reasoning and is not entitled
             to her attorney fees.

¶ 54   For several reasons, we cannot sustain the district court’s

  attorney fee order on this basis. First, Bradsby did not allege in its

  complaint that Herman had violated the confidentiality provision.

  Second, one or both of the parties demanded a jury trial on all

  issues pleaded. Third, and most importantly, the question of

  whether the confidentiality provision was violated was never tried

  before the jury or litigated in any sense (at least until the court

  made its own finding). Finally, Herman had no opportunity to

  defend herself against this allegation.

¶ 55   The district court did not cite, and we have not found, any

  authority authorizing a court to deny recovery under a prevailing

  party attorney fee clause when the court finds contractual

  violations not alleged or tried in the case. Thus, despite the

  significant discretion afforded the district court in determining

  which party is the prevailing party, Whiting-Turner Contracting Co. v.

  Guarantee Co. of N. Am. USA, 2019 COA 44, ¶ 56, the district

  court’s finding that Herman violated the unlitigated confidentiality




                                     22
  provision cannot sustain its conclusion that Herman was not the

  prevailing party.

                   2.   Herman is the Prevailing Party

¶ 56   “[W]here a claim exists for a violation of a contractual

  obligation, the party in whose favor the decision or verdict on

  liability is rendered is the prevailing party for purposes of awarding

  attorney fees.” Dennis I. Spencer Contractor, Inc. v. City of Aurora,

  884 P.2d 326, 327 (Colo. 1994).

¶ 57   Bradsby alleged that Herman breached two provisions of the

  agreement: the noncompete provision and the nonsolicitation

  provision. Herman indisputably prevailed on each of these claims,

  as evidenced by the judgment entered in her favor (and which we

  affirm). Thus, she is the prevailing party.

¶ 58   Relying on Archer v. Farmer Bros. Co., 90 P.3d 228, 230-31

  (Colo. 2004), Bradsby argues Herman is not the prevailing party

  because Bradsby prevailed on the “significant issue” of whether

  Bradsby held trade secrets and obtained “some of the benefits

  sought by the litigation.” Archer, however, is inapposite for multiple

  reasons.




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¶ 59   First, as two divisions of this court have opined, “Spencer

  articulated the test for a ‘prevailing party’ under a contract, whereas

  Archer was a tort case and involved a cost award to a prevailing

  party under C.R.C.P. 54(d).” Extreme Constr. Co. v. RCG Glenwood,

  LLC, 2012 COA 220, ¶ 55 (citing Pastrana v. Hudock, 140 P.3d 188,

  190-91 (Colo. App. 2006)). Second, in Archer, “either party could

  arguably [have been] considered the ‘prevailing party’” because each

  party prevailed on one or more of the claims at issue. 90 P.3d at

  231. That is not the case here because Bradsby did not prevail on

  either breach of contract claim. 6

¶ 60   Even if we were to apply the Archer test, Bradsby did not

  obtain “some of the benefits sought by the litigation.” Id. at 230.

  Bradsby did not sue Herman to obtain a ruling that it held trade




  6 Anderson v. Pursell, 244 P.3d 1188 (Colo. 2010), does not require
  a different result. Although the court in that case applied the
  “significant issue” test articulated in Archer to determine which
  party was the prevailing party under a fee-shifting agreement, that
  case involved an application for adjudication of water rights, rather
  than a breach of contract claim. Id. at 1193-95. Further, the
  applicant in Anderson received some of the water rights requested,
  but the water court denied other portions of the application, so
  there was no clear-cut prevailing party. Id. at 1192.

                                       24
  secrets. It brought the litigation to enforce the noncompete and

  nonsolicitation provisions and did not obtain the relief sought.

¶ 61   In addition, and contrary to Bradsby’s position, the fact that

  the jury entered a verdict in Bradsby’s favor as to the

  nonsolicitation claim is meaningless when that claim ultimately

  failed, and judgment on that claim was rendered in Herman’s favor.

¶ 62   Bradsby’s final contention is that Herman is judicially

  estopped from relying on the fee-shifting provision because Bradsby

  argued at various points that the entire agreement was void. To

  support this contention, Bradsby relies on New Hampshire v. Maine,

  which states that when “a party assumes a certain position in a

  legal proceeding, and succeeds in maintaining that position, he may

  not thereafter, simply because his interests have changed, assume

  a contrary position.” 532 U.S. 742, 749 (2001) (citation omitted).

¶ 63   Bradsby’s argument fails because Herman did not “succeed[]

  in maintaining that position.” Id. The court only ruled that the

  nonsolicitation provision was unenforceable, not that any other

  portions of the agreement were unenforceable. Bradsby does not

  contend, and we do not conclude, that the unenforceability of the




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  nonsolicitation provision alone renders the fee-shifting provision

  unenforceable.

¶ 64   Ordinarily, given the discretion afforded the trial court in

  determining which party is the prevailing party, we would remand

  to the district court for a prevailing party determination. Spencer,

  884 P.2d at 328 n.6. But here, applying Spencer and considering

  that Herman indisputably prevailed on both claims, the only

  determination on remand that an appellate court could affirm is a

  determination that Herman is the prevailing party. Given this, it

  would be a waste of judicial resources to remand to the district

  court for a prevailing party determination.

¶ 65   Because we affirm the district court’s merits judgment and

  conclude that Herman was the prevailing party, we grant Herman’s

  request for appellate attorney fees and costs under the fee-shifting

  agreement and C.A.R. 39.

                             III.   Conclusion

¶ 66   The merits judgment in favor of Herman is affirmed. The

  district court’s order denying attorney fees to Herman is reversed.

  On remand the district court is directed to enter an order awarding

  Herman reasonable attorney fees in the amount previously


                                     26
requested (because Bradsby did not contest the reasonableness of

that amount) plus reasonable appellate attorney fees and costs, as

determined by the district court.

     JUDGE DUNN and JUDGE NAVARRO concur.




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