Dennis I. Spencer Contractor, Inc. v. City of Aurora

The Robinson Dilem- ized Procedures”: 141).

ma, Sup.Ct.Rev. majority’s definition of custodial arrest

and the distinction drawn between it and arrest, cornerstone of the

non-custodial

opinion, scrutiny. does not withstand careful arrest,

By categories establishing distinct has created tenuous and bur- distinction, extremely

densome one difficult practical application by police comply Fourth

must Amendment law.

The officers this case did not violate the rights.

defendant’s Fourth Amendment suppress

would cocaine found on the

defendant, therefore, I and concur with the

majority’s only. result say

I am authorized to that Justice VOL- join

LACK Justice MULLARKEY

this concurrence. CONTRACTOR,

DENNIS I. SPENCER

INC., corporation, a Colorado

Petitioner, AURORA, Colorado,

CITY OF Municipal corporation,

Respondent.

No. 93SC529. Colorado,

Supreme Court of

En Banc.

Nov. Benson,

Faegre Cook, & Michael J. Nata- Hanlon-Leh, Denver, petitioner. lie City Atty., Office of the Charles H. Rich- ardson, Aurora, Gulley Gaar, P.C., Dale Gaar, Associates, Englewood, A. York & O’Brien, Littleton, Marcia G. respondent. Opinion Justice VOLLACK delivered the of the Court. Contractor,

Dennis I. (Spenc- Inc. Contractor), petitions er this court to review by appeals requested the of in Den- Contractor additional time decision the court and Spencer City Inc. v. compensation nis Auro- complete to the construction of 1993) ra, (Colo.App. Mar. No. 92CA0176 granted fourteen-day contract. Aurora (not publication), selected for official affirm- extension, compensate time but to refused ing ruling that respon- the trial court’s the Spencer Contractor for additional construc- dent, (Aurora), City the which of Aurora subsequently tion costs. Aurora assessed by to found the trial court have breached a liquidated damages Spencer Contrac- agree- construction contract a settlement and complete project tor when it failed to the on ment, prevailing was the on the settle- time. agreement ment entitled to and August In Spencer Contractor filed a fees. action, civil claiming that Aurora had breach- granted to We certiorari decide the by refusing ed the construction contract determining prevailing par standard for the change by failing issue time and orders ty purposes awarding attorney for of good performing exercise faith in its duties. pursuant fee-shifting provision in a set later, Approximately year Spencer one Con- provides agreement tlement which rea complaint tractor amended its to add a claim sonable fees to the alleging that Aurora had breached a settle- that, any enforcement action. We hold by parties ment executed where claim exists for violation of a lawsuit, connection with a which re- obligation, contractual in whose involving a dispute Emporia solved favor the decision or verdict (the Project Storm Sewer Street rendered is the agreement). of We reverse the According complaint, to the Au- amended appeals’ court of decision remand to the provision rora of breached a the settlement court of directions remand agreement prohibited which Aurora from this matter to the trial court for a determina “treating Spencer any Contractor or bid sub- tion of the fees to reasonable by differently any mitted [than] other con- Spencer prevail Contractor is entitled as the by retaliating tractor” Con- ing party. bidding tractor connection with the performance Parkway of the Alameda Pro- I. ject construction contract.1 Aurora filed a August Spencer Contractor en- alleging counterclaim of the settle- agreement tered into an with Aurora for agreement by Spencer Contractor. underground sanitary construction of an sew- line, part Parkway proceeded er as to trial of the Alameda The case October (the contract). trial, Project jury During Following construction 1991.2 returned construction, Spencer finding special the course of Contrac- verdict that Aurora had of unexpected tor encountered a number both the contract and de- breached construction lays resulting agreement.3 jury from site conditions. the settlement addi- change appropriate granting 1. The settlement remained in effect at orders additional complained by Spenc- compensation materially differing the time of the conduct of time and conditions, failing good er site to exercise Contractor. performance faith in of its duties under the contract, or both? trial, 2. At the of commencement both defendant, Aurora, City 2. Did of stipulated of award fees would Agreement? breach the Settlement post-trial jury be calculated as a matter after the plaintiff, 3. Did the Dennis I. Con- rendered the court its verdict and entered final tractor, Inc. incur as a result of the judgment. defendant, City Aurora's breach of the Parkway contract for the Alameda construc- Special given 3. The Verdict the court to the project? tion questions: contained five plaintiff, Dennis I. Con- Did the defendant, tractor, Aurora, City as a result 1.Did Inc. incur defendant, City Parkway Aurora's breach of the breach the contract for Alameda by failing Agreement? project Settlement construction either to issue tionally and must have achieved some of the bene- concluded $57,000 sought actual as a fits that lawsuit.” had incurred he Over- Development Slopes result of Aurora’s breach of the construction land Co. Marston Development contract. The found that Aurora had (Colo.App.1989). breached the settlement but did any damages Spencer not award to Contrac- Here, arguing Aurora succeeded in that agreement. tor on any agreement breach of the settlement Spencer. did not result to As requests Both then submitted for result, goal avoiding it achieved its of attorney fee-shifting provi- on a fees based payment Spencer. of to Con agreement entitling sion in the settlement trary position by Spencer, to the taken “prevailing party” in enforcement action previously recognized court that such attorney to recover all costs and reasonable by sup result a defendant is sufficient to County Subsequently, Arapahoe port a trial court’s conclusion that de District Court ruled that Aurora was the pur fendant was the for “prevailing party” on the claim for the poses awarding attorney of fees. Oden agreement breach of the settlement y Weld, baugh v. $30,- of attorney Count awarded fees the amount of (Colo.App.1990). 000 to Aurora.4 Contractor, Spencer slip op. at 2-3. Spencer appealed Contractor the trial appeals. court’s court order to the II. appeals part, court of affirmed in reversed in Spencer Contractor that it maintains part, and remanded the case to the trial succeeded on the merits of its for claim appeals court. The court of affirmed the breach of both the construction contract and ruling trial court’s that Aurora was the agreement the settlement and should be vailing party on the settlement purposes deemed the for 2-3, slip op. at but reversed and remanded awarding attorney fees.5 grounds findings on the that the trial court’s appellate were insufficient for the court to question prevailing of who is a that determine the fees awarded were actual- awarding attorney for fees ly incurred and were reasonable. The court pursuant to a settlement which appeals reasoned as follows: provides attorney prevailing to fees In order to party, litigation regarding receive the benefit of a con- a breach of a provision tract which calls for an award of construction contract and a breach of a set attorney contract, prevailing party, fees to the appropriate tlement and the stan applicant upon making must “have succeeded presents dard this determination significant presented by litigation issue impression an issue of first for this court.6 appeals 5. State the total amount of actual dam- Whether the court of erred in con- ages, any, by plaintiff, if incurred cluding respondent petitioner Dennis I. that and not Contractor, Inc., and caused “prevailing party” entitled to a contractual defendant, City conduct of the of Aurora in attorney award of fees when a found that breaching Parkway the Alameda contract, construction respondent had breached its but contract, Agreement, the Settlement or both. petitioner awarded no to for that objected Special to the breach. Verdict, claiming erroneously required that it appeals Whether the court of erred in con- speculate separate about the effects of cluding respondent “prevailing par- that was a each of Aurora's breaches while Con- ty” entitled to a contractual award of case, evidence, theory tractor’s and the juty respondent fees when a found that had essentially showed that the same conduct consti- breached its but awarded no dam- tuted a breach of both contracts. ages petitioner for that breach. interrelated, Because these two issues are we $32,- sought to recover together. now consider them 363.50 in fees from Aurora for breach of agreement. the settlement party prevailed 6. The determination of which is granted following 5. We certiorari consider the committed to the discretion of the trial court and subject issues: to an abuse of discretion standard of claim,7 Development ing party Relying on Co. v. on the breach of contract Overland Slopes Development despite Marston the fact that no actual were appeals (Colo.App.1989), the court of appeals disagreed. awarded. The court of that, pursuant fee-shifting to a determined Relying on the standard enunciated Hens provision in a settlement which Eckerhart, ley v. 461 U.S. 103 S.Ct. provides for reasonable to the fees (1983), 76 L.Ed.2d 40 prevailing party, applicant must “have Rights fees under the Civil Attor significant presented succeeded issue Act, ney’s § Fees Awards 42 U.S.C.A. litigation and must have achieved (West 1981), appeals, the court of in deter sought some the benefits he the mining was entitled to receive Contractor, slip op. lawsuit.” at 2. of an provision benefit standard, Based on this the court of entitles the prevailed concluded that Aurora had on the Supreme two-part embraced the Court’s test: breach of the settlement since the applicant the must upon “have succeeded any in breach did not result to significant presented by litigation issue the appeals Contractor. The court of and must have achieved some of the benefits goal determined that Aurora had achieved its sought that he in the lawsuit.”8 Overland avoiding payment of to Dev., standard, 773 P.2d at 1115. Under this Relying upon Odenbaugh Contractor. v. party prevail upon “significant” must Weld, County (Colo.App. issue, party and a need not on the 1990), appeals the court of concluded that “central” issue. The benefits achieved must Aurora was the (citing be more than de minimis. Texas awarding attorney Indep. State Teachers Ass’n v. Garland Sch. Development, purchaser In Overland Dist., 782, 1486, 489 U.S. 109 S.Ct. 103 brought an action for breach of (1989)).9 judicial L.Ed.2d 866 mere “[T]he fraud, negligent misrepresentation plaintiffs declaration that legal one of the developer contractually the land assertions is correct not does mean he agreed perform landscaping. to certain litigation, has in the unless some claimed, alia, purchaser inter that the land flow, may flow, anticipated benefits be to developer had failed to fulfill its contractual to the from that declaration.” Over obligation landscaping. to install trial Dev., (citing land 773 P.2d at 1115-16 Hewitt agreed court that the defendant had breach- Helms, 2672, v. 482 U.S. 107 S.Ct. 96 obligation ed its contractual to install land- (1987); Stewart, L.Ed.2d 654 Rhodes v. 488 scaping, but the trial court concluded that (1988)). 1 U.S. S.Ct. 102 L.Ed.2d purchaser, in property, the resale of the damages by had not suffered actual standard, Applying ap- this the court of Dev., breach. Overland 773 P.2d at 1115. that, peals although purchaser concluded issue, appeal, purchaser significant legal On contended that it succeeded on its prevail recovery was entitled to fees as the of nominal was de minim- Freeman, appeal. currently being applied large review on Smith v. 921 F.2d ain number of Cir.1990). (10th cases both the federal and state courts. We recognize rights that the federal civil statutes present public policy presented issues of not in purchased property pursuant 7. Plaintiff to typical concerning alleged civil action an agreements provided two written However, breach of contract. both the statuto- "prevailing party” would be "entitled” to an ry provision for the award of fees and award of reasonable fees. Overland provision a contract therefor have the common Dev., 773 P.2d at 1113. Similar to purpose allowing party an innocent to ob- here, agreements at issue neither judicial being subjected tain relief to without "prevailing party” defined the term nor set forth hardship. financial Dev., satisfy the criteria that a must to be Overland 773 P.2d at 1115. prevailing parly. deemed a appeals additionally 9.The court of stated that no adopted any general state court decision has rule standard, employing ap- this the court of determining prevailed. when a Ov- Dev., peals reasoned that this standard erland P.2d at 1115. ruling affirmed this purchaser not the The court was is and therefore appeals determined that part. The court of appeals, party.” The court of “prevailing was entitled to fees for the landlord however, hold that the defendant did not litigating concerning the ten- its counterclaim did not because right option to renew ant’s exercise actual award the lease: Hensley standard do not consider We in an action for declar- An award of fees dispositive in to be relied Overland atory appropriate relief is here because the ap- that the court of this case and conclude [the landlord’s] trial court ruled favor of standard, Hensley peals misapplied the option right a forfeiture of the to declare apply which was intended Thus, fees the land- [which to renew. rights under 42 in civil actions fees pursuing the counterclaim lord] incurred only.10 § To the extent Over- U.S.C.A. “to were the result of successful efforts disap- opinion, we land conflicts with enforce” the lease.... Further, adopted standard prove of it. Id. at 852. P.2d & Nouri Wester lease, the landlord violated the Because jurisdictions in (Colo.App.1992), and other however, appeals upheld the court of the trial determining who is entitled ruling court’s that the landlord should be rights in a non-eivil action lends additional breaching the contract re- rewarded support to our determination the court covering attorney defending in fees incurred Hensley adopting of erred claim. the tenant’s standard. Nouri, litigant not a Under is considered Nouri, awarding for his for In a tenant sued landlord attorney if it contractual fees breached its an restriction in a breach of exclusive-use obligations, notwithstanding the fact that it parties. lease between the The landlord filed required pay damages was not for that seeking a counterclaim a declaration appeals’ breach. The court of conclusion option to renew the lease had been tenant’s that Aurora is entitled to receive assignment terminated the tenant’s damages no were assessed fees because rights. assign- that The trial court ruled against it is inconsistent with Nowri. Auro- extinguished violated the lease and ment Nouri, ra, like the landlord should not additionally option. The trial court renewal receive fees because it breached had breached the found the landlord contract and the settle- both construction however, court, trial not en- lease. The did agreement. though Spencer Even injunction an in favor of the tenant or ter damages Contractor was not awarded award the tenant since tenant award- establish amount of did not ing attorney effectively fees to Aurora would Nouri, the breach. 833 P.2d at 850. The violating party confer a benefit its that “[the trial court therefore ruled land- agreement. own was not entitled to recover lord] [tenant’s] fees incurred defense of action jurisdictions similarly Other have held that party statutory [the because of its determination land- who violates a or contractu- spite violated the lease” in of an obligation, lord] had al but whom no authorizing attorney recovered, provision fees to an award of are is entitled party legal proceed- breaching legal its fees to the successful fees for obli- See, gations.11 e.g., v. ings brought to enforce the lease. Northwest Shurtliff Code, 1988, cials, 1983; conspiracies § § 42 to violate The United States at confers U.S.C. 10. 1985; state, courts, rights, § civil 42 U.S.C. official failure to power on- the federal and hoth violations, 1986; prevent rights § 42 civil U.S.C. part award fees as of "costs” to federally edu- sex discrimination in financed rights remedy in civil actions to (Title IX); programs cation and race discrimina- involving in transactions racial discrimination (Title VI). federally programs financed tion in personal property, 42 contracts or real or U.S.C. 1981, 1982; §§ the violation of federal constitu- jurisdictions judgment" a "net or Some follow statutory rights by state or local offi- tional or breaching judgment” “affirmative rule. A defen

331 Pools, Inc., 263, 461, 120 Idaho 815 P.2d 465 no more than nominal MFD Part- denied, (Idaho reh’g App.1991) 509, (App.1991), Murphy, Haw.App. ners v. 9 850 P.2d (evaluating following criteria in 713, (1992); determin- Three-Seventy 715-16 see also (1) ing prevailing party: the final who is a Leasing Corp. Ampex Corp., v. 528 F.2d 993 judgment or result obtained in the action in (5th Cir.1976); Decor Western and Furnish- (2) sought; to the relief whether relation Indus., ings Inc. v. Bank America Nat’l multiple present- there were claims or issues Ass’n, 293, Cal.App.3d Trust & Sav. 91 154 ed; and to which each of extent (1979); Cal.Rptr. 287 I.A. v. South- Schafer parties prevailed on each of the issues or 285, Ry. ern 266 N.C. 145 S.E.2d 887 Park, 314, claims); Or.App. 96 Johns 773 (1966); Enter., Inc., Miles v. F.E.R.M. (1989) (“As 1328, rule, general P.2d 61, Wash.App. (1981); Atlantic only can there be one an Trusts, Long Co. v. 860 S.W.2d Richfield pro- action. contract Because the does not (“When (Tex.App.1993) prevails differently, ‘prevailing part^ vide here is claim, and establishes a valid can judgment the one in final whose favor attorney’s be entitled to fees without achiev- rendered.”); Center, Mercede, Lucite Inc. v. ing monetary recovery on the claim itself. (Fla.Dist.Ct.1992) quoting 606 So.2d jury’s finding of zero does not Enters., Inc., Hoyt Moritz v. 604 So.2d preclude attorney’s (Fla.1992) (“[EJither or [lessee] [lessor] when the under breached the contract and either [lessee] contract.”); Richards, terms of the Brown v. attorney’s Dessor] is entitled to fees and (Utah (“It App.1992) is the Therefore, upon costs under the contract. culpability, determination of not the amount remand, trial court shall determine which damages, that determines who is the party breached the contract. Once the trial vailing party.”). determination, court makes that the trial court must determine who is the Murphy, Haw.App. MFD Partners v. party attorney’s and then award fees and 509, (1992), brought 850 P.2d 713 a landlord prevailing party. costs to the ‘[T]he fairest against alleged an action a tenant for non- prevailing party test to determine who is the payment summary possession of rent and judge is to allow the trial to determine from premises. The trial court awarded nominal party prevailed the record which in fact has damages to the landlord and determined that significant on the issues tried before the the landlord was the On ”). court.’ appeal, the tenant maintained that the land- losing party lord was the because the trial plaintiff view is that a is the prevailing party only court awarded the landlord and entitled to “nominal costs where plaintiff damages”. Ap- finds for the as to The Intermediate Court of plaintiff peals general but determines that the has suffered reviewed its rule: prevailing party only plaintiff recognize party money dant is the if the that where one seeks also breached the contract and if the defendant party equitable and the other seeks plaintiff. recovers more in than the In prevail, may appropri- relief and both not be 152, Illingworth Bushong, Or.App. 61 656 P.2d ate to make an award. (1982), 675, aff'd, 297 Or. 688 P.2d 379 (citation omitted); Id. at 373-74 see also Harris (1984), plaintiff the court awarded to a fees who Mktg. Market Research v. Marshall and Communi prevailed equitable on an claim for return of a cations, Inc., (10th 948 F.2d Cir. $50,000 money deposit, earnest which was offset Co., 1991); Miller v. Title Ins. 758 F.2d Safeco by the defendant’s successful counterclaim for Cir.1985). Munier, (9th But see &Wolff $6,500 in actual The court concluded Co., Whiting-Turner Contracting Inc. v. 946 F.2d plaintiff judgment” had obtained a "net (2d that, Cir.1991) (finding par when both $43,500 "clearly pre and was therefore ties breach the contract and one obtained dam that, vailing party.” Id. at 374. The court stated fees). ages, party neither entitled rule, general as a where both the and Because the court trial found that Aurora the defendant seek from each other breached both the construction and by way of claim and counterclaim and both the settlement we need not consider upheld, claims are in whose favor judgment greater net judgment rule in detail at this [net] final attorney is rendered entitled qualified only We fees. have that rule time. party prevails disputed against on the “[W]here tractor and the owner but deter ease], though that, main a[in issue even not to party prevailed mined since neither contention, original the extent of his he will lawsuit, neither should be entitled be deemed to be the successful Witt, to costs or In De purpose taxing attorney’s costs and Supreme Court of Alaska reviewed its earlier required fees.” The trial court is to first decision Buza v. Columbia Lumber identify principle by issues [sic] raised (Alaska 1964), where court pleadings proof particular and determining enunciated the standard for who case, determine, balance, and then on prevailing party: is a party prevailed on the issues. by “[I]t been established case law that foregoing Applying the test to the in- to a suit is the one case, stant note that there we were two successfully prosecutes the action or principal pleadings issues raised it, successfully defends (1) proof and at trial: whether Defendant issue, though on the main even not to the perform failed to under the master lease original extent of the contention. He is MFD; agreement with whether the one in whose favor the decision or plaintiffs managing agent’s [the actions] judgment verdict is rendered and the en- performing excused Defendant from his tered.” obligations under the master lease. It is jury’s special clear from the verdict and Witt, Buza, De (quoting 499 P.2d at 601 judgment the trial court’s that Plaintiffs 514). P.2d at prevailed on both issues. Alaska, Supreme applying Court of Partners, MFD (quoting 850 P.2d at 716 standard, held that the contractor was Pantry, Food Ltd. v. Waikiki Business Pla- judg- since it received a za, Inc., 58 Haw. building on owner the claim (1978)). that, Accordingly, the court held payment for final due under the construction determining entitlement to attor- compensation contract and for for extra work ney lease, costs under the the land- though provided. even a small offset was party” lord was the “successful in the suit for at 601. back rent since the landlord had principal issues at trial. The tenant was light approaches taken other therefore entitled to fees and jurisdictions determining who is the costs. vailing party, that, we now hold where a Further, claim exists for a violation of in a contractual Liberty Leasing De v.Witt Co. (Alaska Alaska, obligation, 1972), the in favor 499 P.2d 599 whose the deci- of liability sion or building brought against owner verdict on suit the con is rendered is the prevailing party allegedly tractor for an defective of and incom attorney plete performance Accordingly, Spencer fees.12 a construction contract. Con- The prevailing party contractor counterclaimed for final tractor was the the under this payment due under the contract successfully and for com standard as pensation for supe litigated certain extra work. The jury’s this action and the verdict rior judgment court rendered for the con was entered in its favor.13 appeals' 12. The court of decision in Roa v. (empha- Mil- ed and the result is known.” Id. at 829 ler, (Colo.App.1989), added). highlighted is consistent sis The section of this state- holding. expresses with our The court of consid- that a is entitled to an stage attorney ered at what attorney contingent in a trial fees should award of fees the determination, making be calculated. litiga- the achievement of a successful result in the that, attorney court stated implicitly where “an award suggests tion. The statement also is statute or authorized has achieved a successful result in fees if dependent upon litigation award is prevailing party achievement is the entitled to litigation they attorney result in the in which fees. successful are to be awarded and the are services fees litigation, rendered in connection with that judicial de- Contractor obtained ‘ propriety termination of the of an agreement ap- award of fees determination that the settlement litigation complet- need not plies dealings be made until that is to all of Aurora's breaches, holding supported by breaching party Our is further cannot obtain recovery plain language party.” of the settlement from the innocent United Constr., negotiated by parties, parties’ as States the Use Palmer Inc. v. fees, Elec., Inc., (9th attorney 1260, 1261 stipulation regarding contract Cal State 940 F.2d Cir.1991) principles, jury regard- (reversing and the instructions the trial court’s award of ing liability attorney and The settlement and fees to contractor that, agreement provides breaching party). “[i]n action since he was the From a concerning Agreement, practical standpoint, enforcement of this because the trial court’s attorney inconsistent, award of shall recover all costs fees is just result, order to arrive at a attorneys’ and reasonable fees.”14 we must present prevailed reconcile the contradiction. “enforcing” the set- jury express- tlement because the The found that Aurora breached both ly found that Aurora had breached both the the construction contract and the settlement construction contract and the settlement agreement. Spenc- The concluded that judgment against and entered $57,- er incurred in the amount of Accordingly, Spencer Aurora. Contractor is 000 under the construction contract which entitled to fees. agreement gave breach of the settlement rise to the breach of the construction con- Further, parties’ stipulation regarding tract. We conclude that it would be an un- part: fees stated in just uphold result an award of Spencer’s Second Claim for Relief Contractor, fees to Aurora where Aurora this action is for breach party, required pay innocent at- Agreement. According- of the Settlement torney breaching party. fees to the ly, Spencer requested an award of fees, attorneys’ any damages in addition to An absurd conclusion would otherwise re- awarded, it if is it is the if sult Aurora on on its Second Claim for Relief. any legal since Aurora did not jury specifically issues and the entered a stipulation conditioned verdict Aurora on both of the breach- jury’s regarding Spencer on the verdict Con- required es. The fact that Aurora was not tractor’s claim for breach of the settlement pay damages attributable to its breach does agreement. jury’s encompassed verdict not constitute a verdict favorable or convert a determination that Aurora’s conduct on the Aurora into Therefore Parkway Project Alameda constituted a jury’s regarding liability verdict on the agreement. breach of the settlement This claims, jury’s breach of contract and not the impacted legal relationship determination damages, attribution of controlled the issue effectively between the severed relationship. Finally, trial court’s instructions re- mind, Keeping principles basic contract garding lend further unjustly breaching party enriches the support holding. for our The trial court non-breaching party where the required jury instructed the as follows: pay breaching party. fees of the JURY INSTRUCTION NO. 40 12.8, 12.18, §§ Farnsworth on Contracts vol. (1990 Supp.). Ill & plaintiff, Spencer “As a matter of Dennis I. Contrac- pure tor, Inc., generally contract law it is if true that has sued for some of the same two individuals damages enter into contract and one and losses two different claims Contractor, merely breaching party merely jury and not Aurora's treatment of because the deter- Contractor; by Spencer bids submitted and injury mines that the suffered no would recovery litigation. damages sought of some of the it in this meaningless fee-shifting provision render parties the settlement to which the stipulated, parties and which the intended to purpose 14. The of a fee- contractual encourage parties enforce. Such a result would shifting provision in a settlement is to agreements to breach contractual and would breaching deter from the contractual litigation. cause unwarranted agreement. deny attorney To fees to the non- apportioned between the for relief on which could not be

for The claims relief. agreement and the breach you of the settlement and on which have Spencer has sued the construction contract since the same Alame- are: breach of the been instructed by constituted a breach of conduct Aurora and Parkway construction contract da agreements.15 Spencer ar- both Contractor Agreement. breach of Settlement gued court that to the trial than you Spencer If for on more one find Spencer’s [tjhroughout this case taken relief, you may damages it award claim damages it position incurred only damages or losses. once for the same by ... were caused actions which consti- NO. 41 JURY INSTRUCTION of both the settlement tuted a breach follow- You are instructed to answer the agreement and a breach of the Alameda ing questions which will be on a form contract, Parkway forcing construction Special Verdict: jury separate separate ques- answer —to defendant, City Auro- 1. Did the damages Spencer tions about the incurred ra, contract for the Alameda breach the [FJorcing jury to attribute dam- ...[.] by Parkway project either construction separate may ages to breaches confuse the failing change granting ap- to issue orders jurors jury, may feeling result in the compensa- propriate additional time and they apportion damages need to conditions, materially differing site tion Spencer by believes were caused breaches by failing good to exercise faith agreements of both and cannot be distin- performance of its duties under the con- guished, may severely prejudice tract, or both? forgiven parties Spencer’s right to be the defendant, City 2. Did the of Auro- on its claim for breach of the settle- [sic] ra, Agreement? breach the Settlement agreement. plaintiff, Spencer Did the Dennis I. 3. Contractor, damages Inc. incur as a result object special ... to the verdict [W]e defendant, City of the of Aurora’s object[ form for the same reasons that we ] breach of the contract for the Alameda to Instruction 41.... Parkway project? construction was instructed under Instruction Spencer plaintiff, 4. Did the Dennis I. damages only No. 40 that could award once Contractor, Inc. incur as a result for the same losses. The adhered to defendant, City of Aurora’s prohibited this instruction and therefore Agreement? breach of the Settlement awarding damages No. 41 from Instruction 5. State the total amount of actual on both contracts since Aurora’s conduct in damages, any, plaintiff, if incurred breaching agreement gave the settlement Contractor, Inc., Dennis I. rise to the breach of the construction con- defendant, caused the conduct of the Therefore, special tract.16 verdict for City breaching of Aurora in the Alame- damages in the breach of the construction Parkway da construction the Set- implicitly contract includes attribut- Agreement, tlement or both. agree- to the breach of the settlement able ment. objected special to the Jury verdict form and Instruction No. III. claiming that both were inconsistent with theory. appeals’ Contractor’s reverse the court of decision We Spencer Contractor maintained that and remand to the court of occurred, argument Contractor’s main is that technical harmless breach then it is disparate received treatment prevailing party. Contrary to Aurora's Parkway Project contention, on the Alameda constitut- jury did not rule that the breach agree- ed a violation Aurora of the settlement of the settlement constituted a harm- underlying ment as well as a of the violation Rather, jury less technical breach. found agreement. construction that Aurora breached the settlement damages given and did not award the instruc- that, argues parly 16. Aurora when a seeks mone- provided. tions tary damages only and it is determined that a this matter to the trial I directions to remand reasonable court for a determination A attorney is fees to which Contractor majority adopts We further The a rule that entitled as the defines prevailing party upon finding based of lia trial court to consider whether direct bility explains alone and that this view re attorney bringing should awarded for be majority maj. approach, op. flects the at appeal.17 relying Murphy, on MFD Partners v. 9 Haw. (1992) App. 850 P.2d 713 and the cases cited Chief Justice ROVIRA dissents. Upon therein for this conclusion. close ex prevailing amination of that decisions define ROVIRA, dissenting. Chief Justice majority I am convinced view cannot readily be identified. majority holds that where a claim violation, In MFD party in the court considered a landlord’s exists for a contractual claims that a tenant breached its lease con- whose favor the on decision verdict liabili- explained tract. The court it must determine ty is rendered is the party prevailed “disput- whether either on a attorney Maj. op. at 327. engaged qualitative ed main issue” and in a majority holding In so the court reversed Only review of the landlord’s claims. after appeals ruling Contractor examining principal the two issues raised prevailing party was not a because pleadings did the court decide land- damages failed to award lord because the rendered a parties’ for Aurora’s Here, majority favorable verdict. sum- agreement. marily disputed concluded the main issue was believe, however, I majority’s breach of contract. holding on is based plaintiff when a seeks alone no assumption every that in lawsuit there must important more issue exists than whether prevailing party abe who would be entitled injury occurred and were awarded. pre- I fees. Because believe a vailing party every cannot be identified in Inc., Enterprises Miles F.E.R.M. respectfully lawsuit I dissent. The rule (1981), Wash.App. also cited adopted by majority obligates courts to majority, support position not does its solely award fees based on because Miles a claim of involved racial dis- damages flowing housing prac- without consideration of crimination unfair based explained tices. The Miles court that racial- from the breach. This rule fails to consider ly motivated discrimination established a successfully defendants who defend wrong notwithstanding only the award of damage claims. believe more sensible major- nominal Id. at 568. As the approach require plaintiff would be to seek- ity rejected rights analysis the civil ing damages to establish both breach and be provides determine a Miles awarded actual in order to con- be guidance.2 little sidered a fee purposes. Trusts, Under this view neither Aurora Long Atlantic Co. v. Richfield 1993), prevailed.1 (Tex.App. nor S.W.2d — Texarkana appeal. present agreements 17. Both seek fees on in contractual to shift attor- directly ney applicable fees. While not here the agree 1. I with the decision to reverse Supreme recent Court decision in Farrar v. Hob- the award of fees to Aurora because -U.S.-, by, L.Ed.2d 113 S.Ct. ruling Aurora breached its contract. This is not policy discouraging instructive inconsistent with the conclusion that nonmeritorious In Farrar the Court con- claims. prevailing party, was not nor is it inconsistent though cluded that even who receives propose. with the rule I only nominal can be considered a may insig- vailing party, victory a technical be so maj. op. accompanying 2. See at 330 n. 10 and "prevail- support nificant as to be insufficient to agree text. I rights the award of fees for civil at-, implicates rights policies ing party” cases civil 113 S.Ct. at 574. status. 336 (Utah Richards, App. majority, v. 840 P.2d 143 upon by the involved an Brown

also relied 1992). recovery of attor In the court was called interpretation of the Texas Brown Though the court ex ney’s party prevailed fees statute.3 a when to decide whether finding damages of zero does plained that a full amount dam awarded less than the attorney preclude award of not ages requested. explained party court a is unsettled. A different Texas rule prevails when the court renders an affirma interpreting the same statute has district judgment, “even if the amount is less tive satisfy requirements party must two held originally sought.” (empha at 155. than first, attorney fees: to obtain an award supplied). sis While the court discussed the prevail on the cause of action for must culpability deciding importance of in who recoverable, attorney and sec fees are liability prevails, it did not state is the ond, damages. must recover prevails.5 sole determinant of who Investments, Ltd., Rodgers v. RAB 816 Finally, Three-Seventy Leasing Corp. both 1991); (Tex.App. see also S.W.2d 543 — Dallas (5th Cir.1976) Co., Ampex Corp., F.2d v. Layne Cook v. Texas S.W.2d 1973) Co., (where and Buza v. Columbia Lumber (Tex.Civ.App. no recov — Waco 1964) (Alaska ery plaintiff attorney prevails no was awarded deal with who authorized). Thus, were Atlantic the award of costs under the rules of civil Richfield interpreting in provides little assistance procedure.6 I am not convinced however Texas statute.4 prevailing party for costs under the procedure provide adequate rules of civil majority also relies on I.A v. Schafer guidance prevailing party in decide the Co., Railway 266 N.C. Southern ordinarily fee cases. Costs do not (1966). trespass S.E.2d 887 case the E.g., Marriage include In re damages court that a verdict of nominal held Wright, (Colo.App.1992). 841 P.2d 358 of Further, Costs, carry liability it would for costs. great in trial courts have discretion Further, disputed. fees were to a costs See 6 any authority the court failed to cite for this ¶ Moore, Federal Practice Manual 54.70 J. proposition. (2d 1994). ed. While sometimes are costs,7 litigation support I ordered to bear their own find no for the rule that alone determines under the view a provides you plaintiff, Remedies] 3. Tex. Practice & Code Ann. "2. If find in favor of the [Civil (West 1986) provides pertinent part: § any damages, you 38.001 but do not find actual shall (him) (her) nonetheless award nominal may attorney’s person A recover reasonable law, By in the sum of one dollar.” nominal corporation, fees from an individual or e.g., are one dollar. See Overland Dev. addition to the amount of a valid claim and costs, Co., Slopes Co. v. Marston Dev. 773 P.2d 1112 (8) if the claim is for: ... an oral or (Colo.App.1989). Requiring an award of actual (emphasis supplied). written any amount over one dollar ensures interpreting successfully 4. Nevada courts a similar the defendant did not defend money judge- claim, fee make the award any qualitative statute and avoids examina- prerequisite ament fee award. Nev.Rev. tion of actual awarded. (Michie 1986); e.g., § Stat.Ann. 18.010 National Can., Inc., Whitney Union Fire Ins. Co. v. Pratt & heavily 6. In MFD the court also relies on author- judg- (money 107 Nev. ity addressing prevails for cost fees). prerequisite ament to an award of prevails purposes. decide who fee agree plaintiff seeking damages I that a need at-, Hobby,-U.S. 7. See S.Ct. Farrar sought. not recover the entire amount Under the J., (O'Connor, ("Circum- concurring) at 577-78 propose plaintiff rule must be awarded actual justifying stances denial of costs to the damages of more one dollar. This formula- than judgment where the recovered was [exist] long tion accommodates Colorado law. We have insignificant comparison to the amount actual- held that in a suit for breach of contract a ly sought, [j]ust pyrrhic ... [and] as victor defendant's breach itself entitles the 54(d), would be denied costs under Rule so too nominal Hoehne Ditch Co. v. John 1988.”) (internal (1925). § denied should be fees under Flood Ditch 76 Colo. 233 P. 167 omitted). quotations This rule is reflected in CJI-Civ.2d 30:35 which and citations

337 exists, adopt I would a rule that always recognized.8 be fee fees will language of our cost Additionally, plain requires plaintiff attorney'fees who seeks requires plain- supports a rule that statutes prevailing party to as a establish both a receiving an before tiffs to recover and an award of actual breach 13-16-104, attorney fees. award of Section (1987 Initially, recognize contracting parties Repl.Vol.) provides that 6A C.R.S. any dam- to plaintiff when a “recovers debt or remain free define See action, plaintiff ages in such then the [civil] Magnetic Copy Specialists, Serv. v. Seismic judgment shall have to recover demandant Inc., 1161, (Colo.App.1990) 805 P.2d against to the defendant his costs be taxed.” (“an unambiguous agreement must be en- Conversely, (emphasis supplied). section 13- terms”). according express forced to its Be- provides that when “a verdict 16-105 provided cause no definition is this case plaintiff], passed then the defen- [the policies promoted by shifting provi- fee judgment to recover his dant shall have costs significant. sions are Both Aurora and plaintiff....”9 agree shifting fee Basing prevailing party status on breach provisions encourage compliance with con- recovery support also finds discourage tracts and unfounded lawsuits. Solari, Malagon case law. See Brokers, Ltd., See also Ferrell v. Glenwood 1990) (“It 352, (Fla.App. is well So.2d (Colo.1993) (fee 936, shifting 848 P.2d pre plaintiff that a is considered the settled agreements “discourage serve to non-merito- vailing party if he recovers less than he sued disputes encourage rious contract and to set- ” for, long something ap so as he recovered tlement”); Freedman, Hartman v. 197 Colo. analysis.); plying quasi-civil rights see also (1979) (statuto- Ladd, (Fla.App. Militana v. 605 So.2d 580 ry shifting employment two fee law serves (defendants 1992) negligence in a action were purposes; indemnify employee against to “parties recovering judgment” where the necessity paying attorney’s an fee nothing plaintiffs awarded to the even protect is successful and to when he liability); though defendants admitted to cf. employer against litigation).10 Stingley, nuisance Bachovchin v. 504 N.W.2d 288 (Minn. App.1993) (interpreting Minnesota suggests that a Common sense protection statute that awards at consumer seeking damages does not when no torney injured party, concluding fees to an Indeed, district are awarded. injured one is not unless are appeals applied court and the court of shown). City

rationale in of Aurora B inability pre plaintiffs fees. A to not, however, damage on the issue does vail majority regarding As no clear view automatically into a definition of a convert defendant court, (citing §§ majority correctly points 13- out that there can the discretion of the trial 8. The claim, -109, (1987 any liability Repl.Vol.)). to 6A C.R.S. be but one on 16-108 maj. op. prevailing at but should automatically prevailing majority correctly for at- 10.The addresses one of the translate to underlying shifting agree- torney purposes. argument policies fee While an exists contractual fee could, ments, equity, encourage compliance with a that the trial court reduce the plain- maj. op. recovery fees awarded when the at 333 n. Because amount success, only any I believe re- amount over one dollar would entitle a tiff achieves limited vailing plaintiff requir- quiring clearly I believe trial courts to consider fees when compliance. only litigation ing recovery adequately encourages party prevailed prolongs no majority's Making I remain concerned with the failure further burdens the trial court. policy discouraging requirement plaintiff seeking that a consider the coexistent threshold damages prevail only Under when awarded actual dam- nonmeritorious actions. breach, contracting party ages provides equitable view a could use a more resolution. insignificant, bring an action and however Woolley I do not Co. v. Bear Creek ensure the award of 9. See also W.H. & Manors, (when (Colo.App.1986) contracting parties believe intend for a coerce, parties pre- injury or as a that causes no to be used to several claims are asserted and both litigation. solely in basis for needless vail the award or allocation of costs is out, party. majority points majority’s As the fers the same frailties as the defi- unjust a would be to award fees to nition of The do Maj. op. defendant found liable for breach. not define “enforcement.” law Black’s dictio- 333; nary “putting at v. see also Nouri Wester & defines enforcement as some- effect; (Colo.App.1992). thing carry- P.2d 848 such as law into ... the ing a out of mandate or command.” Black’s When claims a defendant are dis- (6th 1990). Here, Dictionary Law ed. missed, however, the defendant achieves two jury respect issued no command with to respect significant results —one with to liabil- agreement. Spencer the settlement Contrac- Thus, ity respect and one with agree- tor did seek enforcement of the can defendant show he was through declaratory injunctive ment or relief. claim, against an unfounded forced to defend Instead, Spencer sought to en- promoting deterring policy baseless agreement by seeking damages force the Similarly, plaintiff suits. who seeks and breach, its but I received none. am not damages significant receives achieves two re- Spencer convinced that Contractor enforced respect sults —one with and one agreement solely the settlement because the respect damages.11 plaintiff A who jury found the had been breach- alone, proves liability absent an award of ed. damages, prevailed actual has not with re- and, believe, spect to I disagree majority’s the desired outcome I also with the conclu- jury should not be a support sion that instructions purposes.12 fee I Spencer prevailed. would therefore affirm the decision that appeals ruling Maj. court of that op. jury Contrac- at 333-334. The form of in- prevailing party, given tor was not the and consis- structions at trial is within the discre- majority, tent with the reverse the court of tion of trial court. Armentrout v. FMC (Colo.1992). appeals’ ruling prevailing Corp., that Aurora was a To Here, party. party prevailed. no decide requires whether instructional error

reversal, jury instructions must be con- together they sidered to determine whether II adequately jury informed ap- of the law plicable to the case. Contrac- plain language of the settlement argues jury tor that verdict forms parties’ stipulation regarding jury cluded the from damages on principles13 contract and dis- both contracts. As the court of cor- puted jury compel verdict do not forms out, rectly pointed jury verdict form “did different result. contends, suggest not as majority contends that apportion Con- should resulting “enforcing” breach; instead, tractor the settle- from each the verdict form jury expressly merely because the required to determine agree- found that Aurora had breached the Op. whether were incurred.” Maj. Further, op. argument ment. at 332. This at stating suf- 338. the instruction every This rule does not address combination decision not to award fees in this case. plaintiff may bring of claims a when an action Maj. op. at 332 n. 12. While the infers prayer damages. Every involves more than regarding result means success liabili- successful today, combination need not be decided as ty, Roa does not define a successful result. A requested only damages. Although being successful result could be defined as Spencer attempts complaint to recast its as one successfully defending awarded or only declaratory injunctive that in effect seeks damage claim. relief, plead these matters were never and never only suggest decided the trial court. that a agree majority’s 13.I with the conclusion that requests damages who alone does not principals support basic contract when none are received. the denial of Maj. op. fees to Aurora. at 332-333. Miller, appeals holding 12. The court of in Roa v. (Colo.App.1989), is consistent with damages only “you may award once for the Colorado, not make the or losses” does The PEOPLE State

same Plaintiff-Appellee, together when read erroneous.14 instructions dispute jury instruc- Much of the over the stipulation pri- parties’ tions results from Jimmy GREEN, Defendant-Appellant. C. prevails trial that the or to agreement would be the No. 92CA1575. fees. Each now entitled Appeals, Court of Colorado prevailed; Spencer asserts that Div. I. the verdict that Aurora breached becaus^of the agreement, and Aurora because it avoid- May 1994. paying damages. following language ed The Rehearing As Modified on Denial stipulation implies that for June 1994. an award of Denied Nov. 1994. Certiorari appropriate: would be Spencer’s 2. Second Claim Relief

against Aurora in this action is for breach According- Agreement.

of the Settlement

ly, Spencer requested has an award of

attorneys’ in addition to dam- awarded, ages if it it is Relief, (em-

party on its Second Claim

phasis supplied). agree with the court of that the complain cannot now settle- as a was used standard prevailing party. Slip op. at

decide the 3.

Accordingly, I would remand this case to appropriate

district court to award costs as party’s attor-

and to dismiss both motions for

ney fees. Parkway Jury provided construc- as follows: are: breach of the Alameda instruction no. 40 of a Settlement tion contract Contractor, plaintiff, Dennis I. you Agreement. on more If find for Inc., of the same has sued for some relief, you may award it than one claim for on two different claims for relief. and losses damages only losses, once for the same claims for relief on which (emphasis supplied). you and on which have been instructed sued

Case Details

Case Name: Dennis I. Spencer Contractor, Inc. v. City of Aurora

Court Name: Supreme Court of Colorado

Date Published: Nov 7, 1994

Citation: 884 P.2d 326

Docket Number: 93SC529

Court Abbreviation: Colo.