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.

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.
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

¶ 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 nonsolicitation1 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 nocontact 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. 
2

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, 
3

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 
4

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 
5

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 
6

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.
7

¶ 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 
8

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.
9

(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:
10

(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.
11

¶ 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 
12

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 
13

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 
14

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 
15

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
16

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. 
17

¶ 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. RectorPhillips-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.
18

¶ 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 
19

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 
20

“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.
21

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’ 
22

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 
23

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. 
24

¶ 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.
25

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 
26

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 
27

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.