Fenner & Shea Const. Co. v. Wadkins, 72--348
| Decision Date | 26 June 1973 |
| Docket Number | No. 72--348,72--348 |
| Court | Colorado Court of Appeals |
| Parties | FENNER & SHEA CONSTRUCTION CO., a Colorado corporation, Plaintiff-Appellee, v. Kenneth H. WADKINS et al., Defendants-Appellants. . I |
Robert W. Caddes, Denver, for plaintiff-appellee.
Ireland, Stapleton, Pryor & Holmes, P.C., William G. Imig, Joseph H. Groberg, Denver, for defendants-appellants.
Fenner & Shea Construction Company, plaintiff, contracted to build a home for defendants the Wadkins. Defendant Empire Savings and Loan Association financed the project, disbursing funds to Fenner & Shea as the construction progressed. About the time that the construction was to be completed, the Wadkins instructed Empire not to disburse any further funds. As a result, when Fenner & Shea presented its final draw request to Empire, it was denied. Thereafter, the Wadkins occupied the house.
Fenner & Shea brought this action seeking damages for breach of contract and for foreclosure of a mechanics' lien. It also sought a declaration that its lien was superior to Empire's. The Wadkins denied that they had breached the contract and filed a counterclaim alleging that Fenner & Shea had breached the contract in that portions of the construction had been done in an unworkmanlike manner.
The matter was tried to the court. In its findings of fact and conclusions of law, the court concluded that the Wadkins had breached the contract by stopping the disbursements. With regard to Fenner & Shea, the court concluded that it had substantially performed its obligations under the contract and that to the extent that it had failed to perform fully, its judgment against the Wadkins would be reduced in an amount equal to that necessary to cure the complained of defects in workmanship. The court, pursuant to a clause in the construction contract, further awarded Fenner & Shea its reasonable attorney's fees and costs in prosecuting this action.
On appeal, the Wadkins do not dispute the court's determination that Fenner & Shea had substantially performed. This was a factual determination and was supported by the evidence. Little-Thompson Water Ass'n v. Strawn, 171 Colo. 295, 466 P.2d 915. The issue in this appeal is the court's award of attorney's fees and costs to Fenner & Shea. The Wadkins' argument is, essentially, that by recognizing certain defects in the workmanship of Fenner & Shea, the court had determined that Fenner & Shea was guilty of a breach of...
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