Ruffing v. Lincicome, 85CA0442
| Decision Date | 12 March 1987 |
| Docket Number | No. 85CA0442,85CA0442 |
| Citation | 737 P.2d 440 |
| Parties | William S. RUFFING and Betty H. Ruffing, Plaintiffs-Appellees, v. Sydney Kent LINCICOME, Defendant-Appellant. . II |
| Court | Colorado Court of Appeals |
Towey & Zak, James J. Zak, Denver, for plaintiffs-appellees.
Schenk, Kerst & deWinter, William J. deWinter, Glenwood Springs, for defendant-appellant.
Defendant, Sydney Lincicome, appeals the order of the trial court awarding him only $5,500 in attorney fees instead of the $11,704.50 he actually incurred in defense of plaintiffs' claims. We affirm.
Plaintiffs' claims against Lincicome were based on negligence, breach of contract, and third-party beneficiary theories. The case proceeded to trial and after the presentation of plaintiffs' evidence, the court directed a verdict in favor of Lincicome who then requested that he be awarded his attorney fees. The court ordered that this issue would be decided on briefs and, sua sponte, requested that counsel address the issue of mitigation of damages as it might pertain to an award of attorney fees under Colo.Sess.Laws 1977, ch. 189, § 13-17-101, et seq., at 796.
The court thereafter found that plaintiffs' claims against Lincicome were both frivolous and groundless, that counsel for Lincicome made facts available to plaintiffs indicating Lincicome's nonliability for damages long before trial, that the fees incurred by Lincicome in the amount of $11,704.50 would have been both necessary and reasonable if he had been, in fact, required to go through trial, but concluded that the full amount of attorney fees should not be allowed since Lincicome could have avoided going to trial by moving for summary judgment. The court then awarded him attorney fees in the amount of $5,500.
Lincicome argues on appeal that the trial court erred in failing to award him the full amount of his attorney fees. We disagree.
We conclude that the determination of whether a litigant is entitled to receive reasonable attorney fees and the amount which, under the evidence, constitutes a reasonable award of attorney fees in acting under this statute is committed to the sound discretion of the trial court. Included among the factors the court must consider in making these determinations are: (1) the extent of any efforts made to determine the truth of a claim before asserting it, or the efforts to support it during pretrial proceedings, or both; (2) the extent to which the party has made available facts to indicate his nonliability for any money damages; (3) the financial conditions of the parties; (4) whether a party has prosecuted or defended the case in bad faith or abused the Rules of Procedure; and (5) whether there were disputed questions of fact concerning a...
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