Colorado § 13-17-103 - Procedure for determining reasonable fee - judicial discretion.

§ 13-17-103. Procedure for determining reasonable fee - judicial discretion.

(1) In determining the amount of an attorney fee or licensed legal paraprofessional fee award, the court shall exercise sound discretion. When granting an award of attorney fees or licensed legal paraprofessional fees, the court shall specifically set forth the reasons for the award and must consider the following factors, among others, in determining whether to assess attorney fees or licensed legal paraprofessional fees and the amount of fees to be assessed against any offending attorney, licensed legal paraprofessional, or party:

(a) The extent of any effort made to determine the validity of any action or claim before said action or claim was asserted;

(b) The extent of any effort made after the commencement of an action to reduce the number of claims or defenses being asserted or to dismiss claims or defenses found not to be valid within an action;

(c) The availability of facts to assist a party in determining the validity of a claim or defense;

(d) The relative financial positions of the parties involved;

(e) Whether or not the action was prosecuted or defended, in whole or in part, in bad faith;

(f) Whether or not issues of fact determinative of the validity of a party's claim or defense were reasonably in conflict;

(g) The extent to which the party prevailed with respect to the amount of and number of claims in controversy;

(h) The amount and conditions of any offer of judgment or settlement as related to the amount and conditions of the ultimate relief granted by the court.

Source: L. 77: Entire article added, p. 797, § 2, effective July 1. L. 84: Entire section R&RE, p. 461, § 3, effective July 1. L. 2024: IP(1) amended, (HB 24-1291), ch. 131, p. 467, § 6, effective August 7.

ANNOTATION

Law reviews. For article, "Civil Rights", which discusses the attorney fees in Ramos v. Lamm, see 62 Den. U. L. Rev. 71 (1985).

For discussion of amount of attorney fee award, see Ramos v. Lamm, 539 F. Supp. 730 (D. Colo. 1982) (decided under similar provisions of former § 13-17-102).

Trial court properly concluded that claim lacked substantial justification where court's detailed findings established that it considered the factors set forth in this section and § 13-17-102, and where court found the constitution, statutes, and case law clearly established the claims lacked "any legal foundation", that a good faith argument had not been advanced, and that the same arguments had been advanced and rejected in prior case. City of Littleton v. State, 832 P.2d 985 (Colo. App. 1991).

Attorney fees awarded from assertion of affirmative defense. Attorney fees cannot be assessed against attorney from the beginning of action solely because attorney filed the action after the expiration of the statute of limitations because statute of limitations is an affirmative defense which attorney is not required to anticipate. MacMillian v. Bruce, 900 P.2d 131 (Colo. 1995).

The requirement of this section that the court consider specified factors in determining whether to award attorney fees necessarily requires that a hearing be provided for the parties to address such factors and for the court to make an informed decision. Irwin v. Elam Const., Inc., 793 P.2d 609 (Colo. 1990).

The court is not required to make specific findings as to the factors to be determined in an order denying, rather than awarding, attorney fees. E-470 Pub. Hwy. Auth. v. Jagow, 30 P.3d 798 (Colo. App. 2001), aff'd on other grounds, 49 P.3d 1151 (Colo. 2002).

Findings not necessary when request for fees is denied. Webster v. Boone, 992 P.2d 1183 (Colo. App. 1999).

Although this section does not require a court to make a finding of fact when attorney fees are denied under § 13-17-102, C.R.C.P. 121 § 1-22 does. Stearns Mgmt. Co. v. Mo. River Servs., Inc., 70 P.3d 629 (Colo. App. 2003).

Specific factual findings on enumerated factors required only when granting an award of fees, not when denying an award. Munoz v. Measner, 247 P.3d 1031 (Colo. 2011).

Reference in subsection (7) to "a good faith attempt to establish a new theory of law" presumes that, in addition to filing a novel claim, the party will attempt to advance a plausible theory and argument for the adoption of the new legal principle; however, if a party fails to present plausible arguments in support of a novel claim, sanctions may be imposed under the statute, irrespective of the subjective state of mind of the party or the attorney at the time the claim was asserted. Sullivan v. Lutz, 827 P.2d 626 (Colo. App. 1992).

Trial court did not err in imposing sanctions under this section for fees incurred in defending plaintiff's claim where there was no legal or equitable principle that would rationally support plaintiff's claim that the law of constructive trusts should be extended to incorporate his claim. Sullivan v. Lutz, 827 P.2d 626 (Colo. App. 1992).

Award of attorney fees without a hearing is not proper if the reasonableness of the attorney fee award is placed in issue. City of Littleton v. State, 832 P.2d 985 (Colo. App. 1991).

Award of attorney fees under § 13-17-102 is discretionary with trial court, and its decision will not be disturbed on appeal if supported by the evidence. Award upheld where evidence presented to trial court with respect to father's defense against motion to change custody included findings that the mother had misled expert witnesses, that they had failed to investigate the child's circumstances with the father, that the mother had not properly assisted the child to recover from the impact of the dissolution, and that she had a scheme for obtaining custody of the child which involved actions not in the best interest of the child. Weber v. Wallace, 789 P.2d 427 (Colo. App. 1989).

Where credible evidence existed to support plaintiff's claims but was not presented due to counsel's failure to obtain and designate witnesses upon issue of damages, court erred in including in attorney fee award those amounts attributable to the time when evidence could have been presented through proper designation of witnesses because during this interval plaintiff's claims were not groundless. Harrison v. Smith, 821 P.2d 832 (Colo. App. 1991).

Trial court's findings were adequate where order indicated it properly considered evidence as to the pertinent factors under this section and findings were sufficiently explicit to permit review of its determination. Sullivan v. Lutz, 827 P.2d 626 (Colo. App. 1992).

Court's statement that injunction was no longer valid was sufficient for a finding that motion to enforce it was without merit and to meet requirements of this section. Anderson v. Pursell, 244 P.3d 1188 (Colo. 2010).

Attorney fee award reversed when the requisite findings required by the statute were not made. In addition, a hearing was not conducted despite the objections of the plaintiffs to the fee award. Maul v. Shaw, 843 P.2d 139 (Colo. App. 1992).

Award of reasonable attorney fees under "no fault" law. Since § 10-4-708 (1) does not provide a specific definition of "reasonable", such compensation should be determined in light of all circumstances for the time and effort reasonably expended by the prevailing party's attorney. If trial court does not make initial determination as to reasonableness of hours expended by plaintiff's counsel, the record will be insufficient for reviewing court to resolve issue of reasonableness of fees on appeal. Spensieri v. Farmers Alliance Mut. Ins., 804 P.2d 268 (Colo. App. 1990).

In determining whether a claim or defense is substantially frivolous or groundless, a trial court must consider the factors set forth in subsection (1) and it must specify the reasons for the award. Pedlow v. Stamp, 776 P.2d 382 (Colo. 1989); Haney v. City Court, 779 P.2d 1312 (Colo. 1989); Sullivan v. Lutz, 827 P.2d 626 (Colo. App. 1992).

Order imposing sanctions was not deficient for failure to address the factors set forth in subsection (1) and to specify the reasons for the award since none of the factors listed were placed in issue during the sanctions hearing and, consequently, the trial court was under no obligation to issue specific findings and since the order was sufficiently explicit to permit appellate review of the justification for the award. Parker v. Davis, 888 P.2d 324 (Colo. App. 1994).

Doctrine of res ipsa loquitur cannot be used to avoid the requirements of this section, at least when there is no evidence or inference that the defendant had any control over the instrumentality causing the injury. Bilawsky v. Faseehudin, 916 P.2d 586 (Colo. App. 1995).

Effectively abandoning a claim by not pursuing it through trial is insufficient to constitute an effort to reduce the number of claims being asserted under subsection (1)(b). Ranta Constr., Inc. v. Anderson, 190 P.3d 835 (Colo. App. 2008).

Plaintiffs did not have standing to challenge an award of attorney fees entered pursuant to this section against plaintiffs' counsel. Appeal properly dismissed where counsel had not filed a separate notice of appeal or added his name as an appellant to the appeal. Henderson v. Bear, 968 P.2d 144 (Colo. App. 1998).

Applied in Application of Talco, Ltd., 769 P.2d 468 (Colo. 1989); In re Ward, 183 P.3d 707 (Colo. App. 2008).