No. 90CA1085Colorado Court of Appeals.
Decided August 1, 1991.
Appeal from the District Court of Jefferson County Honorable Kenneth E. Barnhill, Judge.
Page 607
Bradley, Campbell, Carney Madsen, P.C., Victor F. Boog, for Plaintiffs-Appellees.
Glen B. Maynard, P.C., Glen B. Maynard, for Defendants-Appellants.
Division V.
Opinion by JUDGE JONES.
[1] Defendants, Midway Development Co. No. 3, Mike A. Leprino, Ridgewood Realty, Inc., and Elbert Wilcox, appeal from the trial court order denying them attorney fees pursuant to § 13-17-101, et seq., C.R.S. (1987 Repl. Vol. 6A), against plaintiffs, Jerry R. and Sharon Bergeson. We affirm. [2] Plaintiffs initiated this action, asserting five claims against defendants. Two of the five claims were dismissed at the close of plaintiffs’ case, and the jury returned a verdict in favor of defendants on the remaining claims. Defendants sought attorney fees pursuant to § 13-17-101, but the trial court denied the motion. I.
[3] Defendants contend that the trial court erred in denying the attorney fees motion as to the two claims dismissed at the close of plaintiffs’ case. They also argue that the motion for attorney fees was improperly decided by a different judge than the one who heard the evidence at trial. We disagree.
sitting in or assigned to the court which the action was tried may perform those duties . . . .” (emphasis added) [9] In Faris v. Rothenberg, 648 P.2d 1089 (Colo. 1982), the Colorado Supreme Court interpreted the word “disability” in C.R.C.P. 63 to include any status that renders a judge incapable of performing his or her legal duties. Thus, in that case, upon one district judge’s retirement from district court, or “disability,” another judge was empowered to perform those duties remaining to be performed by the court. See 11 C. Wright A. Miller, Federal Practice Procedure § 2922 (1973). [10] And, in In re Marriage of Thompson, 653 P.2d 83 (Colo.App. 1982), a division of
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this court held that a spouse’s contention that a sitting judge is without authority to review the permanent orders entered by a retired judge was without merit.
[11] Finally, the resignation of a judge who presided over a trial prior to ruling on a motion for new trial was held not to preclude another judge from ruling on that motion. Davis Brothers, Inc. v. United Bank, 701 P.2d 642 (Colo.App. 1985). [12] Here, a retired judge was appointed by the State Court Administrator to preside over the trial of this case because “there is an accumulation of trials and other judicial business which the judges in the . . . First Judicial District are unable to speedily determine.” The retired judge was specifically appointed to replace the judge to whom the case had originally been assigned for the period “February 5 through 9, 1990.” [13] Thus, the retired judge was empowered to preside over the trial for the period specifically set forth in the State Court Administrator’s written assignment. Although the expiration of the assignment period does not divest the specially assigned judge of authority to preside further over the case, see Robert-Henry v. Richter, 802 P.2d 1159(Colo.App. 1990), we conclude that under certain circumstances it may be impractical for the specially assigned judge to sit beyond the term of the administrator’s assignment. [14] If, as here, the specially assigned judge is unavailable beyond the specific term of his assignment, then any judge in that judicial district may consider post-trial matters as successor judge. Section 13-5-132, C.R.S. (1987 Repl. Vol. 6A); C.R.C.P. 63; K-R Funds, Inc. v. Fox, 640 P.2d 257 (1981); Sunshine v. Robinson, 168 Colo. 409, 451 P.2d 757
(1969). [15] Here, those duties entrusted to such successor judge included ruling on a motion for attorney fees. Hence, the contention that the motion was improperly resolved by the successor judge must fail.
II.
[16] Defendants also contend that they are entitled to an award of attorney fees because plaintiffs claimed exemption from mandatory arbitration on grounds that are not allowed by C.R.C.P. 109.1. We disagree.