Baldwin v. Bright Mortg. Co., 87SC54
| Citation | 757 P.2d 1072 |
| Case Date | July 11, 1988 |
| Court | Supreme Court of Colorado |
Page 1072
Leach & Clikeman, P.C., Petitioners,
v.
BRIGHT MORTGAGE COMPANY (f/k/a Southern Trust and Mortgage
Company), a Texas corporation, authorized to do
business in the State of Colorado, Respondent.
En Banc.
Harlan P. Pelz, Charles E. Stuart, Hughes, Pelz, Clikeman & Marcucci, P.C., Denver, for petitioners.
No appearance for respondent.
MULLARKEY, Justice.
The court of appeals dismissed the petitioners' appeal, holding that, because the amount of attorney fees to be awarded pursuant to a trial court order had not yet been determined, there was no final appealable judgment. We reverse and remand with directions to reinstate the appeal.
I.
On April 8, 1983, Garde and Lavon Baldwin were named defendants in an action filed by a real estate company and a construction contractor, who are not parties to this appeal, concerning the construction of a house for the Baldwins. On August 31, 1983, the Baldwins instituted a third-party action against the respondent, Bright Mortgage Company, alleging that the respondent had negligently disbursed construction loan funds to the contractor.
On December 12, 1985, the district court dismissed the third-party action against the respondent. The court held that the Baldwins' claim against the respondent was frivolous and ruled that attorney fees should be assessed against the Baldwins and their attorneys pursuant to section 13-17-101, 6 C.R.S. (1983). 1 The court, however, reserved its determination of the amount of attorney fees until a later hearing. As of June 2, 1987, the date the Baldwins and their attorneys, who are the petitioners in this court, filed their opening brief in this court, no such hearing had been requested by the respondent or set by the district court.
On February 22, 1986, the district court entered final judgment in this case pursuant to C.R.C.P. 54(b). 2 The court expressly
Page 1073
found that the dismissal of the respondent from the lawsuit was a final judgment and that there was no just reason to delay entry of final judgment. The petitioners filed a notice of appeal on April 2, 1986. On November 26, 1986, the court of appeals issued to the petitioners an order to show cause why their appeal should not be dismissed "for lack of a final, appealable judgment." On December 15, 1986, the court of appeals dismissed the appeal on that ground. We granted certiorari to review the decision of the court of appeals.II.
The court of appeals held that, because the trial court had not yet determined the amount of attorney fees to be awarded, there was no final judgment. The court relied on our decision in Kempter v. Hurd, 713 P.2d 1274 (Colo.1986), where we held that, as a general rule, a judgment is final and therefore appealable if it disposes of the entire litigation on its merits, leaving nothing for the court to do but execute the judgment. 713 P.2d at 1277 (citing D.H. v. People, 192 Colo. 542, 561 P.2d 5 (1977), which quoted Stillings v. Davis, 158 Colo. 308, 406 P.2d 337 (1965)); accord Harding Glass Co. v. Jones, 640 P.2d 1123 (Colo.1982). Our prior cases did not involve the question of whether an outstanding attorney fees issue precludes a judgment from being a final disposition of the merits of the litigation and therefore, none is dispositive.
In Budinich v. Becton Dickinson...
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Kelly Inn No. 102, Inc. v. Kapnison, s. 19021
...on the merits is final even though the recoverability or amount of attorney's fees is undetermined. Baldwin v. Bright Mortgage Co., 757 P.2d 1072 (Colo.1988) (en banc); Paranteau v. DeVita, 208 Conn. 515, 544 A.2d 634 (1988); Snodgrass v. State Farm Mut. Auto. Ins. Co., 246 Kan. 371, 789 P.......
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Am. Numismatic Ass'n v. Cipoletti, 09CA2591.
...and indeed is often available to the party defending against the action.” Id. at 200, 108 S.Ct. 1717. In Baldwin v. Bright Mortgage Co., 757 P.2d 1072 (Colo.1988), the court adopted the rule announced in Budinich and applied it to C.R.C.P. 54(b) and section 13–4–102, C.R.S.2010, both of whi......
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DIA Brewing Co. v. MCE-DIA, LLC, Court of Appeals No. 18CA2136
...870 P.2d 1250, 1252 (Colo. 1994) (fees and costs request does not affect finality of a judgment); see also Baldwin v. Bright Mortg. Co. , 757 P.2d 1072, 1074 (Colo. 1988). In asking the court to determine what fees and costs were due, the parties recognized as much.¶ 59 The motions division......
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State v. Cb Serv. Corp.., 08CA2092.
...that we may consider federal cases assessing the finality of sanction orders as persuasive authority. See Baldwin v. Bright Mortgage Co., 757 P.2d 1072, 1074 (Colo.1988). Therefore, we view Cunningham as persuasive, and we apply it here. As a result of that application, we conclude that Cun......
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Summaries of Published Opinions, 0222 COBJ, Vol. 51, No. 2 Pg. 88
...has not yet determined die amount of those fees. The Court reaffirmed die bright-line rule adopted in Baldwin v. Bright Mortgage Co., 757 P.2d 1072 (Colo. 1988), and held that a judgment on the merits is final for purposes of appeal notwithstanding an unresolved issue of attorney fees. In s......