Legal Malpractice Forum
| Publication year | 1980 |
| Pages | 1172 |
| Citation | Vol. 9 No. 6 Pg. 1172 |
1980, June, Pg. 1172. Legal Malpractice Forum
1172
An unheralded addition to Title 13 of the olorado Statutes by the 51st General Asembly in 1977(fn1) may prove to be a pitfall to le unwary attorney. This act, which was ffective on July 1, 1977, provides for recovery of attorneys fees against the party ringing, maintaining or defending a frivlous or groundless action.
It seems that our courts have always had aherent authority under the American ommon law to award attorneys fees against arties who proceed in bad faith with a civil lawsuit.(fn2) However, the standard under this few statute appears to be much broader and he issue in the first instance will still be one f discretion with the trial court. Under the Lew law, the court is to consider the foliowing factors in determining whether one is entitled to attorneys fees and the amount hereof:
a) The extent made to determine the truth of the claim by the person defending against the claim of attorneys fees;
b) The extent to which a party asserting the claim has made facts available to his adversary to indicate his nonliability;
c) The financial conditions of both parties;
d) Whether there has been an abuse of the procedures or civil rules; or
e) Whether there was a factual dispute as to the determinative issues of the case.(fn3)
As with all new legislation, there is not yet an extensive treatment of this recent statute by our appellate courts, but there are a few cases of interest.
Even though the statute provides that it is applicable only to "suits involving money damages," it has been raised in a criminal matter and our Supreme Court has held that the law does not apply to criminal cases.(fn4) The statute also provides that attorneys fees may be awarded in appellate or further proceedings and, in two opinions by Judge Sternberg, such fees on appeal have been granted in one case (Wood v. Jensen)(fn5) and denied in another (Sports Premium, Inc. v. Kaemmer).(fn6)
In Sports Premium, Inc., the Court of Appeals affirmed a trial court determination of a controversy arising out of an asserted preemptive option to purchase a condominium unit in Vail. The plaintiffs had joined as defendants, inter alia, the title company, its agent and a real estate...
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