CO Code § 13-17-102 (2021)
2021 Colorado Code|Title 13 - Courts and Court Procedure|Article 17 - Attorney Fees|Part 1 - Frivolous, Groundless, or Vexatious Actions|§ 13-17-102. Attorney Fees - Definitions

  Subject to the provisions of this section, in any civil action of any nature commenced or appealed in any court of record in this state, the court may award, except as this article otherwise provides, as part of its judgment and in addition to any costs otherwise assessed, reasonable attorney fees.    Subject to the limitations set forth elsewhere in this article, in any civil action of any nature commenced or appealed in any court of record in this state, the court shall award, by way of judgment or separate order, reasonable attorney fees against any attorney or party who has brought or defended a civil action, either in whole or in part, that the court determines lacked substantial justification. (2.1) Notwithstanding any other provision of this part 1, the filing of a certificate of review pursuant to section 13-20-602 related to any licensed health-care professional shall create a rebuttable presumption that the claim or action is not frivolous or groundless, but it shall not relieve the plaintiff or his attorney from ongoing obligations under rule 11 of Colorado rules of civil procedure.    When a court determines that reasonable attorney fees should be assessed, it shall allocate the payment thereof among the offending attorneys and parties, jointly or severally, as it deems most just, and may charge such amount, or portion thereof, to any offending attorney or party.    The court shall assess attorney fees if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures available under the Colorado rules of civil procedure or a designation by a defending party under section 13-21-111.5 (3) that lacked substantial justification. As used in this article, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious.    No attorney fees shall be assessed if, after filing suit, a voluntary dismissal is filed as to any claim or action within a reasonable time after the attorney or party filing the dismissal knew, or reasonably should have known, that he would not prevail on said claim or action.    No party who is appearing without an attorney shall be assessed attorney fees unless the court finds that the party clearly knew or reasonably should have known that his action or defense, or any part thereof, was substantially frivolous, substantially groundless, or substantially vexatious; except that this subsection (6) shall not apply to situations in which an attorney licensed to practice law in this state is appearing without an attorney, in which case, he shall be held to the standards established for attorneys elsewhere in this article.    No attorney or party shall be assessed attorney fees as to any claim or defense which the court determines was asserted by said attorney or party in a good faith attempt to establish a new theory of law in Colorado.    This section shall not apply to traffic offenses, matters brought under the provisions of the “Colorado Children's Code”, title 19, C.R.S., or related juvenile matters, or matters involving violations of municipal ordinances.     History. Source: L. 77: Entire article added, p. 797, § 2, effective July 1. L. 84: Entire section R&RE, p. 460, § 2, effective July 1. L. 86: (4) amended, p. 681, § 4, effective July 1. L. 90: (2.1) added, p. 862, § 1, effective July 1. L. 2006: (8) amended, p. 237, § 6, effective July 1. L. 2009: (8) amended,(HB 09-1248), ch. 252, p. 1136, § 24, effective May 14.    Cross references:   For award of attorney fees and other costs in actions involving garnishees, see § 13-16-123 .   ANNOTATION   Law reviews. For article, “Malicious Prosecution of Civil Proceedings”, see 11 Colo. Law. 2388 (1982). For article, “Attorneys' Fees Awarded to the Prevailing Party: The Ghost of S.B. 258 Revisited”, see 11 Colo. Law 3003 (1982). For article, “Rule 11, C.R.C.P. as a Litigation Tool”, see 12 Colo. Law. 1242 (1983). For article, “Lawyers' Liability for Attorney's Fees Awarded Against Clients”, see 12 Colo. Law. 1638 (1983). For article “Attorney Fees: The English Rule in Colorado”, see 13 Colo. Law. 1642 (1984). For article, “Civil Rights”, which discusses the attorney fees in Ramos v. Lamm, see 62 Den. U. L. Rev. 71 (1985). For article, “1986 Colorado Tort Reform Legislation”, see 15 Colo. Law. 1363 (1986). For article, “New Role for Nonparties in Tort Actions -- The Empty Chair”, see 15 Colo. Law. 1650 (1986). For article, “A Trial Lawyer's View of Attorney's Fees Awards”, see 17 Colo. Law. 465 (1988). For article, “1988 Update on Colorado Tort Reform Legislation -- Part I”, see 17 Colo. Law. 1790 (1988). For article, “The Final Judgement Rule And Attorney Fees”, see 17 Colo. Law. 2139 (1988). For a discussion of Tenth Circuit decisions dealing with attorney fees, see 66 Den. U. L. Rev. 677 (1989). For a discussion of Tenth Circuit decisions dealing with attorney fees, see 67 Den. U. L. Rev. 625 (1990). For article, “1990 Update on Colorado Tort Reform Legislation”, see 19 Colo. Law. 1529 (1990).   Annotator's note. Annotations appearing below from cases decided through 1985 were decided under former § 13-17-101 relating to frivolous or groundless suits involving money damages claims.   “Frivolous” defined. A claim or defense is frivolous if the proponent can present no rational argument based on the evidence or law in support of that claim or defense. W. United Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo. 1984); Hart & Trinen v. Surplus Elecs. Corp., 712 P.2d 491 (Colo. App. 1985); Merrill Chadwick Co. v. October Oil Co., 725 P.2d 17 (Colo. App. 1986); Fox v. Div. Eng. For Water Div. 5, 810 P.2d 644 (Colo. 1991); SaBell's, Inc. v. City of Golden, 832 P.2d 974 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993); Little v. Fellman, 837 P.2d 197 (Colo. App. 1991); Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 17 P.3d 797 (Colo. 2001); 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); Collins v. Colo. Mtn. Coll., 56 P.3d 1132 (Colo. App. 2002); Wheeler v. T.L. Roofing, Inc., 74 P.3d 499 (Colo. App. 2003); Double Oak Constr., L.L.C. v. Cornerstone Dev. Int'l, L.L.C., 97 P.3d 140 (Colo. App. 2003).   But this test does not apply to meritorious actions that prove unsuccessful, legitimate attempts to establish a new theory of law, or good-faith efforts to extend, modify, or reverse existing law. W. United Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo. 1984); Covert v. Allen Group, Inc., 597 F. Supp. 1268 (D. Colo. 1984 ); Hart & Trinen v. Surplus Elecs. Corp., 712 P.2d 491 (Colo. App. 1985); Buttermore v. Firestone Tire & Rubber Co., 721 P.2d 701 (Colo. App. 1986); Norton v. Sch. Dist. No. 1, 807 P.2d 1160 (Colo. App. 1990); Wheeler v. T.L. Roofing, Inc., 74 P.3d 499 (Colo. App. 2003).   “Groundless” defined. A claim or defense is groundless if the allegations of the complaint, while sufficient to survive a motion to dismiss for failure to state a claim, are not supported by any credible evidence at trial. W. United Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo. 1984); Alt Aerial Applicators, Inc. v. Irvine, 684 P.2d 949 (Colo. App. 1984); Merrill Chadwick Co. v. Oct. Oil Co., 725 P.2d 17 (Colo. App. 1986); In re Marshall, 781 P.2d 177 (Colo. App. 1989), cert. denied, 794 P.2d 1011 (Colo. 1990); Little v. Fellman, 837 P.2d 197 (Colo. App. 1991); Zick v. Krob, 872 P.2d 1290 (Colo. App. 1993); Travers v. Rainey, 888 P.2d 372 (Colo. App. 1994); Engel v. Engel, 902 P.2d 442 (Colo. App. 1995); Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 17 P.3d 797 (Colo. 2001); 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); Collins v. Colo. Mtn. Coll., 56 P.3d 1132 (Colo. App. 2002); Wheeler v. T.L. Roofing, Inc., 74 P.3d 499 (Colo. App. 2003); In re Estate of Shimizu, 2016 COA 163 , 411 P.3d 211.   Test for “groundlessness” assumes that the proponent has a valid legal theory but can offer little or nothing in the way of evidence to support the claim. Bilawsky v. Faseehudin, 916 P.2d 586 (Colo. App. 1995).   “Groundless and frivolous” is applied in Int'l Tech. Instruments, Inc. v. Eng'g Measurements, Inc., 678 P.2d 558 (Colo. App. 1983); Chappele v. Bonds, 677 P.2d 955 (Colo. App. 1983); E.B. Jones Constr. Co. v. City & County of Denver, 717 P.2d 1009 (Colo. App. 1986); Merrill Chadwick Co. v. Oct. Oil Co., 725 P.2d 17 (Colo. App. 1986); Ace Title Co. v. Carson Const. Co. Inc., 755 P.2d 457 (Colo. App. 1988); People in Interest of Lamb v. Large, 761 P.2d 294 (Colo. App. 1988); Foley v. Phase One Dev. of Colo., 775 P.2d 86 (Colo. App. 1989); Haney v. City Court for City of Empire, 779 P.2d 1312 (Colo. 1989); Harrison v. Luse, 760 F. Supp. 1394 (D. Colo. 1991 ); Platte Valley Sav. v. Crall, 821 P.2d 305 (Colo. App. 1991); Nienke v. Naiman Group, Ltd., 857 P.2d 446 (Colo. App. 1992); Sundheim v. Bd. of County Comm'rs of Douglas County, 904 P.2d 1337 (Colo. App. 1995), aff'd, 926 P.2d 545 (Colo. 1996); Lobato v. Taylor, 13 P.3d 821 (Colo. App. 2000), rev'd on other grounds, 71 P.3d 938 (Colo. 2002); 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); Remote Switch Sys., Inc. v. Delangis, 126 P.3d 269 (Colo. App. 2005).   Where there is a rational basis grounded in law and evidence for plaintiff's claim, the trial court's finding that these claims were frivolous is not sustainable. Hart & Trinen v. Surplus Elecs. Corp., 712 P.2d 491 (Colo. App. 1985).   Where plaintiffs admit they have no administrative remedy because they are not taxpayers and only taxpayers have available to them the remedies provided by the tax code, they demonstrate knowledge that the bringing of the action and appeal have no rational basis in fact or law and, thus, are groundless and frivolous. Fair v. Wise, 753 P.2d 780 (Colo. App. 1987).   “Vexatious” claim is one brought or maintained in bad faith to annoy or harass and may include conduct that is arbitrary, abusive, stubbornly litigious or disrespectful of truth. Bockar v. Patterson, 899 P.2d 233 (Colo. App. 1994); Engel v. Engel, 902 P.2d 442 (Colo. App. 1995); O'Neill v. Simpson, 958 P.2d 1121 (Colo. 1998); Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 17 P.3d 797 (Colo. 2001); City of Holyoke v. Schlachter Farms R.L.L.P., 22 P.3d 960 (Colo. App. 2001); 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); Mitchell v. Ryder, 104 P.3d 316 (Colo. App. 2004).   Award of attorney fees upheld despite trial court not explicitly characterizing appellee's actions as “vexatious”. The trial court entered findings relating to all but one of the factors described in § 13-17-103 In light of these findings and under the circumstances, it could not be concluded that the court abused its discretion. In re Estate of Shimizu, 2016 COA 163 , 411 P.3d 211.   An appeal “lacks substantial justification” and is “substantially frivolous” when the appellant's brief fails to set forth, in a manner consistent with C.A.R. 28, a coherent assertion of error supported by legal authority. As a result, it is appropriate to assess attorney fees against the attorney prosecuting the appeal in this case. Castillo v. Koppes-Conway, 148 P.3d 289 (Colo. App. 2006).   Determination that an award of attorney fees based upon bringing and maintaining a frivolous or groundless claim is warranted is discretionary with the trial court, and such decision shall be upheld upon appeal if supported by the evidence. Schoonover v. Hedlund Abstract Co., Inc., 727 P.2d 408 (Colo. App. 1986); Romberg v. Slemon, 778 P.2d 315 (Colo. App. 1989); City of Littleton v. State, 832 P.2d 985 (Colo. App. 1991); Behr v. Burge, 940 P.2d 1084 (Colo. App. 1996); M Life Ins. Co. v. Sapers & Wallack Ins. Agency, Inc., 962 P.2d 335 (Colo. App. 1998); Lockett v. Garrett, 1 P.3d 206 (Colo. App. 1999); Crissey Fowler Lumber v. FCIB, 8 P.3d 531 (Colo. App. 2000); Nielson v. Scott, 53 P.3d 777 (Colo. App. 2002); Wheeler v. T.L. Roofing, Inc., 74 P.3d 499 (Colo. App. 2003).   Losing argument not necessarily groundless. A treble damages action under § 38-12-103 (3)(a) could not be characterized as “frivolous” or “groundless”, as used in subsection (3) of former § 13-17-101 , merely because the landlord prevailed on the merits of his defense. Torres v. Portillos, 638 P.2d 274 (Colo. 1981).   Although attorney fees may be awarded in the discretion of the court, they should not be awarded merely because a party does not prevail. Torres v. Portillos, 638 P.2d 274 (Colo. 1981); State Farm Mut. Auto Ins. Co. v. Sanditen, 701 P.2d 876 (Colo. App. 1985); Romberg v. Slemon, 778 P.2d 315 (Colo. App. 1989).   Mere fact that appeal was taken as a matter of right, or that appellees found it necessary to cite legal authority in their answer brief, did not save an otherwise frivolous and groundless appeal. Flexisystems, Inc. v. Am. Standards Testing Bureau, Inc., 847 P.2d 207 (Colo. App. 1992).   A determination that plaintiffs are not entitled to relief does not make their claims frivolous. Lobato v. Taylor, 13 P.3d 821 (Colo. App. 2000), rev'd on other grounds, 71 P.3d 938 (Colo. 2002); Remote Switch Sys., Inc. v. Delangis, 126 P.3d 269 (Colo. App. 2005).   Losing position is not necessarily groundless. Fed. Land Bank of Wichita v. Jost, 761 P.2d 270 (Colo. App. 1988).   Merely because husband was ultimately unsuccessful does not support the conclusion that his claims were frivolous or otherwise lacking substantial justification and therefore the law does not support the granting of attorney fees to wife. Fritsche v. Thoreson, 2015 COA 163 , 410 P.3d 630.   A claim is not frivolous, groundless, or vexatious simply because it fails to survive summary judgment. The plaintiffs attempted to present evidence in good faith in support of their claims, but simply fell short of what was required to create an issue of material fact. Court did not abuse its discretion by failing to award fees. Munoz v. Measner, 247 P.3d 1031 (Colo. 2011).   Bad faith may include conduct which is arbitrary, vexatious, abusive, or stubbornly litigious and conduct aimed at unwarranted delay or disrespectful of truth and accuracy. W. United Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo. 1984); Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 17 P.3d 797 (Colo. 2001).   Section is a fee-shifting statute that authorizes the recovery of attorney fees from an opposing party when that party has pursued a substantially frivolous claim, defense, or position. E-470 Pub. Hwy. Auth. v. Revenig, 140 P.3d 227 (Colo. App. 2006).   It is well established that a federal court may consider collateral issues after an action is no longer pending, including an award of attorney fees. Although party voluntarily dismissed its case, federal district court still had jurisdiction to consider collateral issues, including an award of counsel fees. Lorillard Tobacco Co. v. Engida, 611 F.3d 1209 (10th Cir. 2010).   Award of attorney fees not mandated. Because the statute, while allowing an award of attorney fees upon a finding of frivolous claims, also grants the trial court discretion in determining whether such fees are to be awarded, the statute cannot be said to mandate an award of attorney fees. Hart & Trinen v. Surplus Elecs. Corp., 712 P.2d 491 (Colo. App. 1985).   Award of attorney fees in criminal cases not provided for. Neither former § 13-17-101 nor § 13-16-121 provides for an award of attorney fees in a criminal case. People v. Freeman, 196 Colo. 238 , 583 P.2d 921 (1978).   Nor in garnishment. Neither former § 13-17-101 nor any other section or rule permits award of attorney fees for the garnishee in a garnishment. Commercial Claims, Ltd. v. First Nat'l Bank, 649 P.2d 736 (Colo. App. 1982).   Attorney fee requests with contingent fee arrangements should not be denied merely because such an arrangement is used. Rather, plaintiff must demonstrate the reasonableness of the fee requested, and the contingent fee arrangement is but one factor to consider in that determination. Bakehouse & Assocs., Inc. v. Wilkins, 689 P.2d 1166 (Colo. App. 1984).   Defendant entitled to attorney fees incurred in appealing denial of attorney fees by trial court where defendant had prevailed in trial court against plaintiff who asserted frivolous and groundless claim. Carnal v. Dan Coleman, Inc., 727 P.2d 412 (Colo. App. 1986).   Failure to appeal denial of fees. Where the appellee, in the trial court, moved for and was denied an award of his attorney fees, but he did not file a notice of cross-appeal, the appellate court has no jurisdiction to consider his application for affirmative relief in excess of that afforded him by the trial court. Rocky Mt. Sales & Serv., Inc. v. Havana RV, Inc., 635 P.2d 935 (Colo. App. 1981).   Timeliness of request for attorney fees. A request is best presented to the trial court before judgment, but the request should not be denied merely because presented after judgment. Bakehouse & Assocs., Inc. v. Wilkins, 689 P.2d 1166 (Colo. App. 1984).   Duty of trial court. When a party places a claim for attorney fees in issue, the trial court has a duty to conduct a hearing upon that claim. Zarlengo v. Farrer, 683 P.2d 1208 (Colo. App. 1984); Alessi v. Hogue, 689 P.2d 649 (Colo. App. 1984).   Defendant in legal malpractice action entitled to hearing on his or her claim for sanctions under this section and C.R.C.P. 11. When a party requests a hearing regarding the award of attorney fees and costs under this section, the trial court must conduct an evidentiary hearing. Because the trial court denied the motion without conducting a hearing on defendant's motion for sanctions, remand is required for a hearing. Brown v. Silvern, 141 P.3d 871 (Colo. App. 2005).   Determination of entitlement to attorney fees cannot be made without adequate findings of fact and conclusions of law on the issue by the trial court. Bd. of County Comm'rs v. Auslaender, 745 P.2d 999 (Colo. 1987); Pedlow v. Stamp, 776 P.2d 382 (Colo. 1989).   But a court need not conduct a hearing sua sponte if a hearing is not timely requested by a party. In re Aldrich, 945 P.2d 1370 (Colo. 1997).   Trial court is not duty-bound to conduct a separate hearing on the issue of attorney fees before it may deny a request therefor. Hunter v. Colo. Mtn. Jr. Coll., 804 P.2d 277 (Colo. App. 1990).   This section does not require redundant hearings. It simply prohibits a trial court from awarding attorney fees in the absence of a hearing, if requested, and detailed findings of fact. Padilla v. Ghuman, 183 P.3d 653 (Colo. App. 2007).   When a trial court is requested to evaluate each claim or defense individually as substantially frivolous or groundless, it is required to do so. It cannot deny the claim “under the totality of the circumstances”. Munoz v. Measner, 214 P.3d 510 (Colo. App. 2009), rev'd on other grounds, 247 P.3d 1031 (Colo. 2011).   Interrelationship of claims or defenses alone will not suffice to deny an award of attorney fees incurred relative to defense of a frivolous or groundless claim. Alessi v. Hogue, 689 P.2d 649 (Colo. App. 1984); Fountain v. Mojo, 687 P.2d 496 (Colo. App. 1984); Carnal v. Dan Coleman, Inc., 727 P.2d 412 (Colo. App. 1986).   For discussion of amount of attorney fee award, see Ramos v. Lamm, 539 F. Supp. 730 (D. Colo. 1982 ).   Trial court was without authority to award attorney fees for plaintiff's initial appeal, absent direction to do so by the appellate court, since subsection (1), consistent with C.A.R. 38(d), indicates that attorney fees incurred in an appeal may be awarded only by the court in which the appeal is brought. Sullivan v. Lutz, 827 P.2d 626 (Colo. App. 1992).   In appeals of groundless-frivolous attorney fee awards under subsection (4), the appropriate standard is to award appellate attorney fees only if that aspect of the appeal itself is frivolous. Front Range Home Enhancements, Inc. v. Stowell, 172 P.3d 973 (Colo. App. 2007); Padilla v. Ghuman, 183 P.3d 653 (Colo. App. 2007).   Under subsection (4), no award of attorney fees may be made based upon the motion of a nonparty. Roberts-Henry v. Richter, 802 P.2d 1159 (Colo. App. 1990).   Subsection (4) provides for an assessment of attorney fees in favor of an improperly subpoenaed nonparty where the court finds that, with respect to the nonparty, the attorney or party had unnecessarily expanded the proceedings by abusing discovery procedures. In re Ensminger, 209 P.3d 1163 (Colo. App. 2008).   Subsection (4) does not require a party to invoke the statute on behalf of a non-party. An improperly subpoenaed nonparty may be awarded attorney fees pursuant to this section. In re Ensminger, 209 P.3d 1163 (Colo. App. 2008) (holding contrary to Roberts-Henry v. Richter annotated above).   Subsection (4) does not grant authority to assess attorney fees in a foreign court that could not be awarded under subsections (1) and (2). Subsections (1) and (2) provide general authority to award attorney fees, while subsection (4) specifies the process and conduct for which a court may assess fees. This section does not authorize a state court to award attorney fees incurred in an action in a foreign court unless work product created for use in that court is also used in the state court. Bruce v. Roberts, 2016 COA 182 , 421 P.3d 1199, aff'd, 2018 CO 58, 420 P.3d 284.   A request for attorney fees as a sanction for assertion of a frivolous claim may be requested by motion following entry of judgment and may even be awarded on the court's own motion. Colo. City Metro. Dist. v. Graber & Son's, Inc., 897 P.2d 874 (Colo. App. 1995).   In light of holding that the trial court erred in dismissing stepfather's petition and to the extent the award of fees was entered as a sanction, it must be set aside. In re K.M.B., 80 P.3d 914 (Colo. App. 2003).   To justify an award of attorney fees under subsection (4), a trial court must make a finding that a claim “lacked substantial justification”, i.e., was substantially frivolous, substantially groundless, or substantially vexatious, and must state its reason for the finding. In re Gomez, 728 P.2d 747 (Colo. App. 1986); In re Estate of Finkelstein, 817 P.2d 617 (Colo. App. 1991); Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 17 P.3d 797 (Colo. 2001); Double Oak Constr., L.L.C. v. Cornerstone Dev. Int'l, L.L.C., 97 P.3d 140 (Colo. App. 2003).   “Substantially frivolous” or “substantially groundless” are no more demanding standards than “groundless” or “frivolous”. In re Application of Talco, Ltd., 769 P.2d 468 (Colo. 1989); Little v. Fellman, 837 P.2d 197 (Colo. App. 1991).   The “no rational argument” test of W. United Realty v. Isaacs (679 P.2d 1063 (Colo. 1984)) will be followed in determining whether the standard has been met. Little v. Fellman, 837 P.2d 197 (Colo. App. 1991).   A vexatious claim is one brought or maintained in bad faith to annoy or harass. A vexatious claim includes conduct that is arbitrary, stubbornly litigious, or disrespectful of truth. Bockar v. Patterson, 899 P.2d 233 (Colo. App. 1994).   Trial court erred in ruling that plaintiff was stubbornly litigious merely because plaintiff disagreed with trial court's earlier rulings as to plaintiff's claims against two of three defendants in the case and where plaintiff refused to voluntarily dismiss similarly premised claims against third defendant. Plaintiff cannot be faulted for attempting to convince court to reconsider its view of the applicable law. Hamon Contractors, Inc. v. Carter & Burgess, Inc., 229 P.3d 282 (Colo. App. 2009).   The exclusion of an expert's testimony due to lack of reliability does not subject a party to attorney fees for a groundless claim if the party reasonably relied on the expert; courts must allow parties to reasonably rely on their experts without fear of punishment for the experts' errors in judgment. In re Water Rights of Park County Sportsmen's Ranch, 105 P.3d 595 (Colo. 2005).   Aquifer storage and augmentation claims based on the natural percolation of irrigation run-off and precipitation are frivolous under § 37-92-103 , because the water has not been placed in the aquifer by other than natural means. In re Water Rights of Park County Sportsmen's Ranch, 105 P.3d 595 (Colo. 2005).   The purpose of awarding attorney fees is to deter egregious conduct, and not to discourage legal theories that, while having no support in case law, nevertheless may be persuasive because of the unique character of the case. Wood Bros. Homes, Inc. v. Howard, 862 P.2d 925 (Colo. 1993); Bd. of County Comm'rs v. Colo., 888 P.2d 352 (Colo. App. 1994).   When a party consistently ignored the court's admonition to not relitigate settled matters, the court was justified in finding that the party's attorney was being stubbornly litigious and the action thus lacked substantial justification. Spring Creek Ranchers Ass'n v. McNichols, 165 P.3d 244 (Colo. 2007).   Trial court may determine action was “brought or defended” in a substantially groundless manner even if dismissed on the morning of trial before the trial actually commences. Engel v. Engel, 902 P.2d 442 (Colo. App. 1995).   Claims involving novel questions of law for which no determinative authority existed at time complaint was filed were not frivolous, groundless, or vexatious. Montoya by Montoya v. Bebensee, 761 P.2d 285 (Colo. App. 1988); Colo. Supply Co., Inc. v. Stewart, 797 P.2d 1303 (Colo. App. 1990); Bd. of County Comm'rs v. Colo., 888 P.2d 352 (Colo. App. 1994); Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 17 P.3d 797 (Colo. 2001).   Trial court erred in awarding attorney fees where municipality's defense to takings claim involved a novel question of law and municipality's conduct presented factual issues upon which reasonable triers of fact might have drawn differing inferences. The fact that the municipality did not prevail in its assertions did not make them frivolous. Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 17 P.3d 797 (Colo. 2001).   Trial court erred in awarding attorney fees where plaintiff's claims were based largely upon federal case law and involved novel questions of law upon which there was no determinative law in this state and where the evidence presented by the plaintiff arguably supported the plaintiff's claims. Kemp v. State Bd. of Agric., 790 P.2d 870 (Colo. App. 1989), cert. denied, 501 U.S. 1205, 111 S. Ct. 2798, 115 L. Ed. 2d 972 (1990); Pedlow v. Stamp, 819 P.2d 1110 (Colo. App. 1991).   Issue of what constitutes receipt of a demand notice under § 7-113-209 (2) was a question of first impression; therefore the plaintiff's action was not “frivolous and without merit”. M Life Ins. Co. v. S & W, 962 P.2d 335 (Colo. App. 1998).   A good faith presentation of a legal theory which is arguably meritorious is sufficient to avoid an award of attorney fees. SaBell's, Inc. v. City of Golden, 832 P.2d 974 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993).   In a condemnation action, good faith negotiations do not necessarily require the condemning authority to increase its offer whenever the landowner makes a counteroffer. Therefore, plaintiff failed to show bad faith and vexatious conduct on the part of the defendant and was not entitled to an award of fees under this section. City of Holyoke v. Schlachter Farms R.L.L.P., 22 P.3d 960 (Colo. App. 2001).   To the extent the provisions of subsection (7) are in conflict with the provisions of § 13-17-201 concerning a good faith tort action that is dismissed under C.R.C.P. 12(b), mandatory attorney fees award provision of § 13-17-201 controls as it is specific to such action and was enacted later in time than this section. Houdek v. Mobil Oil Corp., 879 P.2d 417 (Colo. App. 1994).   A party seeking attorney fees bears the burden of proving, by a preponderance of the evidence, his entitlement to the award. Bd. of County Comm'rs v. Auslaender, 745 P.2d 999 (Colo. 1987); Little v. Fellman, 837 P.2d 197 (Colo. App. 1991); Am. Water Dev., Inc. v. City of Alamosa, 874 P.2d 352 (Colo. 1994); City of Holyoke v. Schlachter Farms R.L.L.P., 22 P.3d 960 (Colo. App. 2001).   Award of attorney fees must be made after trial court determines that all factors prove by a preponderance of the evidence that a defense was frivolous or groundless. Marinez v. Indus. Comm'n, 746 P.2d 552 (Colo. 1987).   In deciding whether to award attorney fees, a court must consider the factors set forth in § 13-17-103 In re Aldrich, 945 P.2d 1370 (Colo. 1997); Remote Switch Sys., Inc. v. Delangis, 126 P.3d 269 (Colo. App. 2005).   When awarding attorney fees, a court must make findings explaining why a party's conduct was unjustified and discussing the means by which the court determined the amount of the award. Conclusory statements that a claim is frivolous, groundless, or vexatious are insufficient. In re Aldrich, 945 P.2d 1370 (Colo. 1997).   Court must hold hearing and make findings on the factors prior to awarding attorney fees if requested by the party against whom fees are sought. The court erred in granting summary judgment on wife's motion for attorney fees without giving husband the opportunity to respond to wife's allegation that his position lacked substantial justification. In re Tognoni, 313 P.3d 655 (Colo. App. 2011).   Award of attorney fees discretionary with trial court, and its decision will not be disturbed on appeal if supported by the evidence. Weber v. Wallace, 789 P.2d 427 (Colo. App. 1989); Lobato v. Taylor, 13 P.3d 821 (Colo. App. 2000), rev'd on other grounds, 71 P.3d 938 (Colo. 2002); Remote Switch Sys., Inc. v. Delangis, 126 P.3d 269 (Colo. App. 2005).   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 such witnesses 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).   Award upheld where there was record support for the trial court's determination that plaintiff's silence or refusal to properly clarify and communicate its position was “without substantial justification” and needlessly caused defendant to incur attorney fees. Front Range Home Enhancements, Inc. v. Stowell, 172 P.3d 973 (Colo. App. 2007).   Whether to award attorneys fees under this section is a matter ultimately committed to the discretion of the trial court. City of Holyoke v. Schlachter Farms R.L.L.P., 22 P.3d 960 (Colo. App. 2001).   Trial court did not abuse its discretion in denying award of attorney fees where claims made by the county did not lack substantial justification in law or in fact and were based on a rational legal argument. Bd. of County Comm'rs v. Colo., 888 P.2d 352 (Colo. App. 1994).   Findings of trial court that the plaintiff bank's claims of fraud were not groundless or frivolous were supported by the record, and the trial court did not abuse its discretion in denying the motion for sanctions. First Interstate Bank v. Berenbaum, 872 P.2d 1297 (Colo. App. 1993); Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 17 P.3d 797 (Colo. 2001).   Findings of trial court that issues had been “fairly and vigorously litigated”, together with record demonstrating at least some evidence to support the challenged defenses, supported trial court's denial of motion for sanctions under this section. Webster v. Boone, 992 P.2d 1183 (Colo. App. 1999).   The plaintiff's unsuccessful claim that it was not time barred from filing a claim relied on language from the statutes as well as prior cases, and the trial court considered and denied the defendant's motion for summary judgment three times before trial. Therefore, the trial court did not abuse its discretion in denying defendant attorney fees. Pat's Constr. Serv., Inc. v. Ins. Co. of the W., 141 P.3d 885 (Colo. App. 2005).   Plaintiff's action was not substantially frivolous, and the record provided support for trial court's implicit determination that the action was not maintained in bad faith, therefore, the trial court's order denying attorney fees was upheld. Berenergy Corp. v. Zab, Inc., 94 P.3d 1232 (Colo. App. 2004), aff'd on other grounds, 136 P.3d 252 (Colo. 2006).   Trial court abused discretion in finding plaintiff's claims frivolous where plaintiff was not successful on claims but claims were based on rational arguments. Hamon Contractors, Inc. v. Carter & Burgess, Inc., 229 P.3d 282 (Colo. App. 2009).   The party requesting attorney fees under this section must prove by a preponderance of the evidence that the claim was without substantial justification. Bd. of Comm'rs, County of Boulder v. Eason, 976 P.2d 271 (Colo. App. 1998); Remote Switch Sys., Inc. v. Delangis, 126 P.3d 269 (Colo. App. 2005).   Decision to award attorney fees on the ground that a claim lacks substantial justification is soundly within the discretion of the trial court. Engel v. Engel, 902 P.2d 442 (Colo. App. 1995); Bd. of Comm'rs, County of Boulder v. Eason, 976 P.2d 271 (Colo. App. 1998); Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 17 P.3d 797 (Colo. 2001).   If a trial court's award of attorney fees is supported by the evidence, it will not be disturbed on review. Lyons v. Teamsters Local Union No. 961, 903 P.2d 1214 (Colo. App. 1995); Bd. of Comm'rs, County of Boulder v. Eason, 976 P.2d 271 (Colo. App. 1998); In re Eggert, 53 P.3d 794 (Colo. App. 2002).   Trial court finding that union pursued its claims “because [union president] agreed to testify”, that there was “animosity” between the parties, and that the union's claims were “vexatious” was sufficient to award attorney fees. Lyons v. Teamsters Local Union No. 961, 903 P.2d 1214 (Colo. App. 1995).   An award of attorney fees is supported by the record when the attorneys reviewed their records and testified, subject to cross examination, that the claimed allocations of time were fair and reasonable. Farmers Reservoir & Irrigation Co. v. City of Golden, 113 P.3d 119 (Colo. 2005).   Trial court's award of attorney fees cannot stand where the court failed to hold an evidentiary hearing after a party made a claim for attorney fees and a hearing was requested, because a determination of entitlement to attorney fees cannot be made without adequate findings of fact and conclusions of law. Rogers v. Westerman Farm Co., 986 P.2d 967 (Colo. App. 1998), rev'd on other grounds, 29 P.3d 887 (Colo. 2001).   The court “shall” assess attorney fees if a claim lacks substantial justification. Montrose Valley Funeral Home v. Crippin, 835 P.2d 596 (Colo. App. 1992).   Limitations on award of attorney fee. A trial court has the discretion to limit its award based on a finding that a party did not take all reasonable measures to extricate himself from a frivolous or groundless lawsuit at the earliest possible time. Ruffing v. Lincicome, 737 P.2d 440 (Colo. App. 1987).   Victim of a frivolous lawsuit has a duty to mitigate attorney fees incurred in defending the lawsuit by taking reasonable measures to extricate himself or herself from the lawsuit at the earliest possible time. Consequently, trial court should not have awarded attorney fees incurred in pursuing defendant's counterclaims after plaintiff dismissed its original complaint against defendants. Boulder County Bd. of County Comm'rs v. Kraft Bldg. Contractors, 122 P.3d 1019 (Colo. App. 2005).   Award of attorney fees and costs held excessive where court found that use of two attorneys was justifiable but that the trial court had awarded fees based on hours in excess of those reported in their affidavits and where court had awarded costs for depositions taken for ordinary discovery purposes rather than perpetuation of testimony. Weber v. Wallace, 789 P.2d 427 (Colo. App. 1989); Schmidt Const. Co. v. Becker-Johnson Corp., 817 P.2d 625 (Colo. App. 1991).   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 § 13-17-103 , 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).   Award of attorney fees to the plaintiff was appropriate where the court found that the defense employed by the defendant lacked substantial merit and was used to delay and harass the plaintiff. Metro Nat. Bank v. Parker, 773 P.2d 633 (Colo. App. 1989).   Plaintiff's argument was not frivolous where she alleged the existence of an agency relationship based on a business relationship between the defendant, who was a private mortgage investor, and certain mortgage brokers. However, the argument was groundless where the only evidence of the agency was a number of similar transactions between the defendant and the brokers. Nienke v. Naiman Group, Ltd., 857 P.2d 446 (Colo. App. 1992).   Plaintiff's argument that her loan was a consumer loan was frivolous where a consumer loan must be incurred for a personal debt and the loan was incurred to pay taxes and expenses on an auto repair garage. Plaintiff's argument that the loan was personal because it was necessary to preserve the business for her son lacked a rational basis. Nienke v. Naiman Group, Ltd., 857 P.2d 446 (Colo. App. 1992).   Award of attorney fees proper where defendant has opportunity to challenge reasonableness of the amount of award. Trial court may not base award on affidavit submitted after trial. Kinsey v. Preeson, 746 P.2d 542 (Colo. 1987).   Probate court order that administrative expenses and attorney fees be paid from petitioner's distributive share upheld. The court so held because of petitioner's “relentless pursuit” of the same issues in three separate trial courts and in three appeals to this court. In re Estate of Leslie, 886 P.2d 284 (Colo. App. 1994).   Award of attorney fees based upon a groundless claim was appropriate where there was a lack of credible evidence presented on the essential issues of damages in negligent misrepresentation claim. Harrison v. Smith, 821 P.2d 832 (Colo. App. 1991).   Award of attorney fees appropriate where trial court properly determined that counterclaim for deficiency under a foreclosure lacked substantial justification because a review of the plain language of the contract would have revealed lack of support for the claim. Bernhardt v. Hemphill, 878 P.2d 107 (Colo. App. 1994).   Attorney fees and costs associated with motion to enforce injunction proper. Where injunction was no longer binding, motion to enforce injunction was substantially frivolous. Anderson v. Pursell, 244 P.3d 1188 (Colo. 2010).   Record supported trial court's award of attorney fees where the court found the defenses were substantially frivolous, groundless, and vexatious, that certain defenses were interposed for the sole purposes of delay, harassment, and to cause plaintiffs to incur legal expenses, and where defendant, even when proceeding without an attorney, clearly knew or should have known that the defenses asserted were substantially frivolous, groundless, or vexatious. Behr v. Burge, 940 P.2d 1084 (Colo. App. 1996).   Colorado Governmental Immunity Act does not shield public entities from an award for attorney fees for the filing of a frivolous claim by such entities. Colo. City Metro. Dist. v. Graber & Son's, Inc., 897 P.2d 874 (Colo. App. 1995).   County attorney is entitled to absolute immunity when filing guardianship petitions. It is illogical that an attorney could be immune from suit if brought separately under 42 U.S.C. § 1983, but not immune when fees are required in the same action under this section. In re Matter of Stepanek, 924 P.2d 1142 (Colo. App. 1996), aff'd, 940 P.2d 364 (Colo. 1997).   The constitution, statutes, and case law clearly establish that the city's claims lacked any legal foundation, therefore, the trial court did not err in finding that the city had not advanced a good faith argument. City of Littleton v. State, 832 P.2d 985 (Colo. App. 1991).   Where city discovered mining waste on property during eminent domain proceeding but failed to disclose the presence of the waste or the potential remediation cost, court did not abuse discretion by finding bad faith and awarding respondent attorney fees incurred after city learned of the mining waste. City of Black Hawk v. Ficke, 215 P.3d 1129 (Colo. App. 2008).   The denial of an award of attorney fees may be grounded upon the evidence admitted at trial upon the merits absent a specific request by one of the parties for the opportunity to present further evidence on the issue. No fees may be awarded, however, without providing the party against whom such an award is sought an opportunity to present such further evidence upon the issue as such party desires. Christian v. Westmoreland, 809 P.2d 1105 (Colo. App. 1991).   Award of attorney fees is not authorized unless the claim or defense was substantially frivolous, substantially groundless, or substantially vexatious. Although this restriction is not explicitly provided for in the statute, the title, purpose, and subsequent provisions of the statute indicate the intent that it apply only to frivolous, groundless, or vexatious actions. Shaw v. Baesemann, 773 P.2d 609 (Colo. App. 1988).   Awarding attorney fees and costs pursuant to a unilateral fee-shifting contract provision in favor of a non-prevailing party that itself was sanctioned under this section for frivolous and vexatious conduct violates public policy. Klein v. Tiburon Dev. LLC, 2017 COA 109 , 405 P.3d 470.   Arbitrary, vexatious, abusive, or stubbornly litigious conduct by a pro se litigant may serve as the basis for awarding attorney fees although the action or defense is not itself frivolous or groundless. Bockar v. Patterson, 899 P.2d 233 (Colo. App. 1994).   Filing of certificate of review does not preclude an attorney fee award for a vexatious claim. Mitchell v. Ryder, 104 P.3d 316 (Colo. App. 2004).   Where trial court awarded attorney fees solely because party prevailed, the award was without a proper basis, and, since the legal issues involved had not been previously determined by binding precedent, the claims were not frivolous. Cohen v. Empire Cas. Co., 771 P.2d 29 (Colo. App. 1989).   The prevailing party for purposes of awarding attorney fees when a claim exists for a violation of a contractual obligation is the party in whose favor the decision or verdict on liability is rendered. Travers v. Rainey, 888 P.2d 372 (Colo. App. 1994).   Trial court erred in awarding fees against surety for assertion of its claim that bonds were void where such contention was a good faith presentation of a legal theory which was arguably meritorious. SaBell's, Inc. v. City of Golden, 832 P.2d 974 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993).   Pro se litigants are entitled to protection of subsection (6) unless trial court makes an express finding that such litigants knew or reasonably should have known that their claims lacked substantial justification. Failure to respond to a motion for fees does not obviate the need for such a finding. Artes-Roy v. Lyman, 833 P.2d 62 (Colo. App. 1992).   A party who successfully seeks summary judgment is not necessarily entitled to attorney fees. Little v. Fellman, 837 P.2d 197 (Colo. App. 1991).   The fact that a claim is dismissed on summary judgment does not preclude a finding that it was substantially groundless. A claim is groundless if there is no credible evidence to support it. Hamon Contractors, Inc. v. Carter & Burgess, Inc., 229 P.3d 282 (Colo. App. 2009).   Where dismissal is reversed on appeal, award of attorney fees under this section is not appropriate. Bear Creek Dev. Corp. v. Dyer, 790 P.2d 897 (Colo. App. 1990).   Trial court determination of attorney fees will not be disturbed on appeal if the ruling is supported by the evidence. Nagy v. Landau, 807 P.2d 1227 (Colo. App. 1990).   The determination whether a claim or defense is groundless under this section is within the discretion of the trial court and its decision will not be disturbed on appeal if supported by the record. Travers v. Rainey, 888 P.2d 372 (Colo. App. 1994).   Trial court must make sufficient findings to permit meaningful appellate review of the attorney fees award. Bilawsky v. Faseehudin, 916 P.2d 586 (Colo. App. 1995).   Award of attorney fees is appropriate after the trial court renders a decision on the merits of the case. Forness v. Blum, 796 P.2d 496 (Colo. App. 1990).   Fees may be awarded even when the case is dismissed shortly before trial. Bilawsky v. Faseehudin, 916 P.2d 586 (Colo. App. 1995).   Fees may be awarded even when the trial court lacks subject matter jurisdiction. Here, the plaintiff not only lacked standing but also persisted in pursuing the claim despite knowing that it lacked admissible evidence to support the claim. Consumer Crusade, Inc. v. Clarion Mortgage Capital, Inc., 197 P.3d 285 (Colo. App. 2008).   Section effective in civil action commenced prior to effective date. Though dissolution of marriage proceeding was filed prior to effective date of this section, a subsequent motion to change custody of a child filed after such date which raised separate and distinct issues will be interpreted as a new civil action for the purposes of implementing the legislative intent of this section, and an award of attorney fees for costs incurred in defending the motion is proper. Weber v. Wallace, 789 P.2d 427 (Colo. App. 1989).   Section effective in any “part” of a civil action, including garnishment proceedings. Anderson Boneless Beef, Inc. v. Sunshine Health Care Ctr., Inc., 878 P.2d 98 (Colo. App. 1994).   Court should allocate sanctions between attorney and client according to their relative degrees of responsibility. Anderson Boneless Beef, Inc. v. Sunshine Health Care Ctr., Inc., 878 P.2d 98 (Colo. App. 1994); Patterson v. James, 2018 COA 173 , 454 P.3d 345.   Where attorney accepted “full responsibility” for decision to proceed with second writ of garnishment, after hearing on first such writ established the absence of a legal basis to do so, award against party jointly with attorney was erroneous. Anderson Boneless Beef, Inc. v. Sunshine Health Care Ctr., Inc., 878 P.2d 98 (Colo. App. 1994).   A principal may be liable for attorney fees based on its agent's litigation of a frivolous claim pursuant to the express terms of a contract. In re Water Rights of Park County Sportsmen's Ranch, 105 P.3d 595 (Colo. 2005).   Award of attorney fees was proper where party's attorney was on notice that garnishee did not hold any property of judgment debtor, although clerical error had made it appear so in a prior attempt to garnish the same account. Anderson Boneless Beef, Inc. v. Sunshine Health Care Ctr., Inc., 878 P.2d 98 (Colo. App. 1994).   Award of attorney fees improper where rational argument in support of the contention that exemplary damages may be awarded for bad faith breach of contract was made. William H. White Co. v. B&A Mfg. Co., 794 P.2d 1099 (Colo. App. 1990).   Where plaintiffs' counsel offered substantial legal arguments in favor of application of “discovery rule” to overcome statutory limitation of claims of sexual abuse of minors and where some of defendant's alleged acts of abuse occurred within the applicable limitation period, award of fees improper. Cassidy v. Smith, 817 P.2d 555 (Colo. App. 1991).   Award of attorney fees improper in abuse of process action where plaintiffs were not represented by an attorney and trial court did not make a finding that the plaintiffs knew or reasonably should have known that filing of the suit lacked substantial justification. Artes-Roy v. Lyman, 833 P.2d 62 (Colo. App. 1992).   Where defendant made rational arguments on the law in support of its position, trial court noted that legal issue was one of first impression in Colorado, and defendant was able to cite legal authority from other jurisdictions in support of its position, award of attorney fees was improper. Eurpac Serv., Inc. v. Republic Acceptance Corp., 37 P.3d 447 (Colo. App. 2000).   Trial court abused its discretion in awarding attorney fees based largely on evidence presented in a hearing to determine whether a governmental agency or employee had immunity. Such a hearing is not a substitute trial on the merits and the claimant is not required to prove the merits of its claim at such a hearing. Hamon Contractors, Inc. v. Carter & Burgess, Inc., 229 P.3d 282 (Colo. App. 2009).   Award of attorney fees incurred in pursuing motions for sanctions improper where the defense to the motions, while ultimately unsuccessful, had a rational basis in fact and law and did not lack substantial justification. Boulder County Bd. of County Comm'rs v. Kraft Bldg. Contractors, 122 P.3d 1019 (Colo. App. 2005).   Award of attorney fees and costs incurred in defending abandoned appeal of motion to enforce injunction improper. Anderson v. Pursell, 244 P.3d 1188 (Colo. 2010).   Award of attorney fees incurred in responding to C.R.C.P. 59 motion not an abuse of discretion. The movants' requested remedies and the motion's reference to “defendants” instead of merely one defendant in the framing of the disputed issues were such that it was not unreasonable for the other defendant to respond to the motion. Klein v. Tiburon Dev. LLC, 2017 COA 109 , 405 P.3d 470.   Award of attorney fees was an abuse of the trial court's discretion where the plaintiff's issue was one of first impression in Colorado, the plaintiff made a legitimate and reasoned attempt to extend the law, and the plaintiff presented some credible evidence to support her argument, even though the trial court found it was not sufficient to establish a prima facie case. Nienke v. Naiman Group, Ltd., 857 P.2d 446 (Colo. App. 1992).   An award of attorney fees under this section cannot be held to be confessed by failure to respond to a motion pursuant to C.R.C.P. 121. Artes-Roy v. Lyman, 833 P.2d 62 (Colo. App. 1992).   Active relitigation of settled issue that was clearly the law of the case is presumed to be frivolous and, thus, plaintiffs were entitled to attorney fees for frivolous second appeal of statute of limitations issue. Howard v. Wood Bros. Homes, Inc., 835 P.2d 556 (Colo. App. 1992).   When fees are awarded, the court is required to make evidentiary findings and must provide the opportunity for a hearing. Pedlow v. Stamp, 776 P.2d 382 (Colo. 1989); Little v. Fellman, 837 P.2d 197 (Colo. App. 1991).   If plaintiff's only reference to attorney fees is in the prayer, he or she has not alleged a claim for such fees under § 13-17-101 . At most, the language provides notice that such fees may be requested. Township Homeowners Ass'n v. Arapahoe Roofing, 844 P.2d 1316 (Colo. App. 1992).   The trial court did not abuse its discretion in finding that residents' claims against a charter city were frivolous and in awarding attorney fees to the city. The trial court properly awarded attorney fees for a frivolous action where residents had no basis for a claim that the charter city's method for appointing municipal judges violated the state constitution and state statutes and no basis for a claim that the charter city violated state statutes in adopting ordinances that were of purely local concern. Artes-Roy v. City of Aspen, 856 P.2d 823 (Colo. 1993).   Trial court did not err in failing to apportion some of the fault to the attorney's clients where motion requested that sanctions be imposed only against the attorney, the attorney raised the defense that his clients should bear some of the responsibility for the plaintiffs' attorney fees, and the court implicitly rejected this argument by concluding that the attorney should be held fully accountable for his decision to ignore his obligations to opposing counsel. Parker v. Davis, 888 P.2d 324 (Colo. App. 1994).   A party is not automatically entitled to recover the expenses incurred in successfully pursuing a motion for sanctions since such fees may be awarded only if the trial court determines that the defense to the motion lacked substantial justification; however, the need for any further proof on that issue was dispensed with by defendant's judicial admissions. Parker v. Davis, 888 P.2d 324 (Colo. App. 1994).   To have standing to appeal an award of attorney fees only against a party's attorney, the attorney must file a separate appeal or be added as an appellant to the party's appeal. Anglum v. USAA Cas. Ins. Co., 166 P.3d 191 (Colo. App. 2007).   The absence of a cash outlay is insufficient cause for denying fees to an attorney simply because there has been self-representation. Reversing such an award would frustrate the intent of the general assembly in enacting this law to address the problem of increasing litigation which burdens the judicial system and interferes with the effective administration of justice and would reward plaintiffs who have filed frivolous or groundless actions. Zick v. Krob, 872 P.2d 1290 (Colo. App. 1993).   It is not appropriate for a court to award a grant of attorney fees to a pro se litigant. While there is an exception for pro se litigants who are attorneys under the appropriate circumstances, a pro se litigant who is not a licensed attorney has no “attorney fees”. Smith v. Furlong, 976 P.2d 889 (Colo. App. 1999).   A pro se attorney litigant is not necessarily precluded from an attorney fee award under either this section or C.R.C.P. 107(d)(2) in a contempt proceeding. Thus, a pro se attorney litigant may be entitled to attorney fees in a contempt proceeding if the trial court determines that an opposing party's conduct meets the requirements of the statutes in this part 1. Wimmershoff v. Finger, 74 P.3d 529 (Colo. App. 2003).   A pro se attorney may recover attorney fees. Giguere v. SJS Family Enters., 155 P.3d 462 (Colo. App. 2006).   The court is required to award attorney fees only if it finds that an attorney or party brought or defended an action that lacked substantial justification. United Guar. Residential Ins. Co. v. Dimmick, 916 P.2d 638 (Colo. App. 1996).   Absent a finding that the defense to a motion for fees lacks substantial justification, fees and costs may not be awarded for challenging that defense. Foxley v. Foxley, 939 P.2d 455 (Colo. App. 1996); Boulder County Bd. of County Comm'rs v. Kraft Bldg. Contractors, 122 P.3d 1019 (Colo. App. 2005); Klein v. Tiburon Dev. LLC, 2017 COA 109 , 405 P.3d 470.   To the extent § 13-17-101 et seq. is inconsistent with the procedural safe-harbor provisions of Fed. R. Civ. P. 11, it is preempted. McCoy v. West, 965 F. Supp. 34 (D. Colo. 1997 ).   This section is preempted by Fed. R. Bankr. P. 9011. This section and Fed. R. Bankr. P. 9011 target the same persons (litigants and attorneys in civil actions) and the same conduct (claims or defenses not grounded in law or evidence), and the two provisions cannot operate side by side without conflict because rule 9011 contains a safe-harbor requirement that this section lacks. In re Johnson, 485 B.R. 642 (Bankr. D. Colo. 2013 ).   This section is preempted in a § 1983 claim brought in state court . A claim brought pursuant to 42 U.S.C. § 1983 in state court is governed by the federal standards contained in 42 U.S.C. § 1988. State v. Golden's Concrete Co., 962 P.2d 919 (Colo. 1998).   Where plaintiff seeks attorney fees under this section and 42 U.S.C. § 1983 in a declaratory judgment action the trial court's findings of due process violations as a matter of fact and as a matter of law are an insufficient basis to trigger a 42 U.S.C. § 1988 award of fees because the 42 U.S.C. § 1983 claim was not properly raised or litigated during the declaratory judgment action. Bd. of Comm'rs, County of Boulder v. Eason, 976 P.2d 271 (Colo. App. 1998).   If a frivolous lawsuit includes both state law claims heard in state court proceedings and federal claims removed for federal court proceedings, a state court may award attorney fees incurred in producing work product for the federal court proceedings only to the extent that the work product was also used in the state court proceedings. Boulder County Bd. of County Comm'rs v. Kraft Bldg. Contractors, 122 P.3d 1019 (Colo. App. 2005).   Lack of an express grant of authority in the Colorado rules for magistrates to award attorney fees on review does not divest or otherwise curtail the district court's already existing authority to make such an award under this section. In re Naekel, 181 P.3d 1177 (Colo. App. 2008).   Applied in Moore v. DeBruine, 631 P.2d 1194 (Colo. App. 1981); Gaddis v. McDonald, 633 P.2d 1102 (Colo. App. 1981); Herman v. Steamboat Springs Super 8 Motel, Inc., 634 P.2d 1005 (Colo. App. 1981); Hargreaves v. Skrbina, 635 P.2d 221 (Colo. App. 1981); Wyatt v. United Airlines, 638 P.2d 812 (Colo. App. 1981); Turley v. Ball Assocs., 641 P.2d 286 (Colo. App. 1981); People in Interest of W.M., 643 P.2d 794 (Colo. App. 1982); Schlosky v. Mobile Premix Concrete, Inc., 656 P.2d 1321 (Colo. App. 1982); Ortega v. Bd. of County Comm'rs, 657 P.2d 989 (Colo. App. 1982); Walters v. Linhof, 559 F. Supp. 1231 (D. Colo. 1983 ); Mission Denver Co. v. Pierson, 674 P.2d 363 (Colo. 1984); Montgomery Ward & Co. v. State, Dept of Rev., 675 P.2d 318 (Colo. App. 1983); Citizens Bank v. Kruse, 691 P.2d 1143 (Colo. App. 1984); Meyer v. Landmark Universal, Inc., 692 P.2d 1129 (Colo. App. 1984); Bill Manning, Inc. v. Denver W. Bank & Trust, 697 P.2d 403 (Colo. App. 1984); Schoonover v. Hedlund Abstract Co., Inc., 727 P.2d 408 (Colo. App. 1986); Seismic Int'l Research Corp. v. South Ranch Oil Co., Inc., 793 F.2d 227 (10th Cir. 1986), cert. denied, 479 U.S. 1089, 107 S. Ct. 1297, 94 L. Ed. 2d 153 (1987); Tripp v. Shelter Research Inc., 729 P.2d 1024 (Colo. App. 1986); Martinez v. Cont'l Enter., 730 P.2d 308 (Colo. 1986); Anderson v. Rosebrook, 737 P.2d 417 (Colo. 1987); Pietrafeso v. D.P.I., Inc., 757 P.2d 1113 (Colo. App. 1988); Swanson v. Precision Sales & Serv., 832 P.2d 1109 (Colo. App. 1992); Rael v. Taylor, 876 P.2d 1210 (Colo. 1994); Langseth v. County of Elbert, 916 P.2d 655 (Colo. App. 1996); Van Steenhouse v. Jacor Broad., 935 P.2d 49 (Colo. App. 1996), aff'd in part and rev'd in part on other grounds, 958 P.2d 464 (Colo. 1998); Giguere v. SJS Family Enters., 155 P.3d 462 (Colo. App. 2006); In re Ward, 183 P.3d 707 (Colo. App. 2008); Anderson v. Pursell, 244 P.3d 1188 (Colo. 2010); Vinton v. Virzi, 2012 CO 10, 269 P.3d 1242; Rose L. Watson Rev. Trust v. BP Am., 2014 COA 11 , 410 P.3d 507; Water Rights v. Cherokee Metro. Dist., 2015 CO 47, 351 P.3d 408; Laleh v. Johnson, 2016 COA 4 , 405 P.3d 286, aff'd, 2017 CO 93, 403 P.3d 207; In re Black, 2020 COA 64 M, __ P.3d __.