No. 85CA0989Colorado Court of Appeals.
Decided April 14, 1988.
Appeal from the District Court of Jefferson County Honorable Winston W. Wolvington, Judge
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Ireland, Stapleton, Pryor Pascoe, P. C., Constance C. Talmage, Jerel L. Ellington, Mark W. Williams, for Plaintiff-Appellee.
Bradley, Campbell Carney, P. C., Victor F. Boog, for Casson Construction Company, Inc. and Victor F. Boog.
Division II.
Opinion by JUDGE TURSI.
[1] Casson Construction Company, Inc., (contractor) appeals the trial court’s judgment in favor of Ace Tile Company, Inc. (subcontractor), and dismissal of its cross-claim against Union Square Development Company, Sam W. Miller, and August E. Waegemann (owners). It also appeals the judgment of attorney fees in favor of Ace Tile and against Casson and its counsel, jointly and severally. We affirm in part and reverse in part. [2] Contractor was the general contractor on two office buildings owned by Union Square Development Company. Sam W. Miller and August E. Waegemann were the general partners of Union Square. The cost-plus, owner-contractor agreements provided that the contractor’s fee was to be five percent of the cost of the work under the contract documents and eight percent for approved change order work. Subcontractor entered an agreement with contractor to do the tile work on the buildings.Page 459
[3] The subcontract provided that contractor would make partial payments to subcontractor of 90 percent of the value of its work as it was accomplished. It further provided that: [4] “Final payment will be made within thirty (30) days after the work called for hereunder has been completed by the Subcontractor to the satisfaction of the Owner and the Contractor, and the Contractor has received from the Owner written acceptance thereof together with payment in full for this portion of the work.” [5] Pursuant to the subcontract and three change orders for additional work, subcontractor completed work chargeable at $63,564 on one of the buildings. It also completed additional work chargeable at $304 on the second building. It was stipulated that subcontractor fully completed this work to the satisfaction of contractor and owners. [6] Contractor paid subcontractor only 90 percent of the value of the work and subcontractor brought this action to recover the unpaid 10 percent retainage. [7] Contractor answered, asserting that the subcontract provided that it was not required to pay subcontractor until owners paid contractor for subcontractor’s work. It further asserted it had not been paid for the work for which it had not paid subcontractor. Also, it cross-claimed against owners for the amount of any judgment entered against it. [8] Owners answered that, pursuant to their contract with contractor, contractor was fully responsible to pay all obligations to subcontractors. They further maintained that they had paid contractor all amounts due and owing pursuant to their contract. They also cross-claimed against contractor for the amount of any judgment entered against them. [9] Trial was held to the court. It determined, as a matter of fact, that owners had made payment to contractor for the work that was completed by subcontractor. It also determined, as a matter of law, that the above quoted subcontract term was not a condition precedent to contractor’s liability to pay; rather, it was a covenant to postpone payment for a reasonable time. Therefore, it entered judgment against contractor for $6,660.40, plus interest. It also entered judgment in favor of owners and against contractor on the cross-claims. [10] The trial court further determined that contractor’s defense in this action was substantially frivolous and groundless. It awarded attorney fees in favor of subcontractor and against contractor and contractor’s counsel, jointly and severally. I
[11] Contractor asserts that the trial court erred in determining it was obligated to pay subcontractor in full since its receipt of payment from owners was a condition precedent to its obligation and it had not been paid in full for subcontractor’s work.
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costs. Accordingly, it contends that the money owners still owe on the project is not allocable in its entirety to its fee.
[16] However, our examination of the draw request figures do not support contractor’s position. It argued that draw request number 15 reflected payment to subcontractor under the contract and without the change orders. But subcontractor’s line item shows payment by owners of $60,157 which is more than the subcontract amount ($50,887) or the subcontract amount plus contractor’s five percent ($55,431.35). [17] On the other hand, the draw request figures do not support owners’ contention that it was payment for the subcontract and change orders. The $60,157 payment is less than the $63,564 total due to subcontractor. [18] Consequently, determination of the allocation of the payment already made by owners was a question of credibility for the trial court to determine. In a trial to the court, it is within the province of the trial court to determine the credibility of witnesses, weight of the evidence, and the inferences to be drawn therefrom. People in Interest of M.S.H., 656 P.2d 1294 (Colo. 1983); Ault Aerial Applicators, Inc. v. Irvine, supra.Since the evidence on this issue is conflicting, we will not disturb the trial court’s findings on review.
II
[19] Contractor argues that the trial court erred by entering judgment against it on its cross-claim against owners. We disagree.
III
[24] Finally, contractor argues that the trial court erred by determining its defense to subcontractor’s claim was substantially groundless and frivolous and, therefore, erred in assessing attorney fees against contractor and its counsel pursuant to § 13-17-102, C.R.S. (1987 Repl. Vol. 6A). We agree.
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addressed by the trial court, was whether the subcontract term should be interpreted as a condition precedent or a covenant for payment in a reasonable time. A claim for attorney fees on a matter in which there is conflicting authority and which is concededly an issue of first impression here, is itself, suspect as frivolous.
[28] Therefore, the trial court erred by assessing attorney fees, and we reverse the award of those fees. [29] We also deny subcontractor’s request for attorney fees on this appeal. Contractor presented a rational, factual argument and sought to come within the exception to the general rule that a trial court’s factual findings are not to be disturbed on appeal unless clearly erroneous and not supported by the record. See Mission Denver Co. v. Pierson, 674 P.2d 363 (Colo. 1984). [30] Accordingly, the judgment in favor of subcontractor and owners is affirmed, but the award of attorney fees is reversed. [31] JUDGE BABCOCK and JUDGE PLANK concur.