19CA2264 Belfor v Riley 12-16-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 19CA2264
Douglas County District Court No. 18CV30209
Honorable Jeffrey K. Holmes, Judge
Belfor USA Group Inc., d/b/a Belfor Property Restoration, a Colorado
corporation,
Plaintiff-Appellee,
v.
Anthony Riley and Tausha Riley,
Defendants-Appellants.
JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE DAVIDSON*
Román and Welling, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 16, 2021
Hellerstein and Shore, P.C., David A. Shore, Greenwood Village, Colorado, for
Plaintiff-Appellee
Signature Law Firm, LLC, Tausha Riley, Denver, Colorado, for Defendants-
Appellants
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2021.
1
¶ 1
This is a breach of contract action that arises from defendants,
Anthony and Tausha Riley, failing to pay an amount claimed for
services rendered on a contract with plaintiff, Belfor USA Group
Inc., a restoration services company. We affirm the judgment and
remand.
I. Background
¶ 2
In early November 2012, a natural gas explosion at a
neighbor’s house damaged the Rileys’ rental home and its contents.
On November 5, 2012, the Rileys and Belfor entered into a “Work
Authorization” (the contract) according to which Belfor was to
provide all services, equipment, labor, and materials to restore the
Rileys’ personal property. Pursuant to the contract, Belfor removed
the Rileys’ belongings and took them to its facility. There, Belfor
identified items that could be salvaged, which then were cleaned,
packed away, and stored.
¶ 3
Belfor returned the Rileys’ property to them by the end of
December 2012 and sent an invoice seeking payment for the
principal amount due, $28,846.65. Apparently, the Rileys had no
insurance coverage. Ultimately, the Rileys did not pay, and on
February 17, 2018, Belfor filed this action.
2
¶ 4
After a bench trial, the court ruled in favor of Belfor on its
breach of contract claim and entered a judgment against the Rileys
for $28,846.65, the amount owed on the final invoice requesting
payment,
plus prejudgment interest at the rate of 1.6% per month,
costs, and attorney fees.
¶ 5
The Rileys filed this appeal. The primary issue is whether the
trial court erred by denying their two motions to dismiss Belfor’s
breach of contract claim as barred by the three-year statute of
limitations.1
II. Motions to Dismiss
¶ 6
Section 13-80-101, C.R.S. 2021, provides that all contract
actions, except as subject to section 13-80-103.5, C.R.S. 2021,
shall be commenced within three years of accrual. In turn, section
13-80-103.5(1)(a) provides for a six-year statute of limitations for
“[a]ll actions to recover a liquidated debt or an unliquidated,
determinable amount of money due to the person bringing the
action.”
1 The complaint also contained a claim for breach of an implied
contract and a claim for unjust enrichment, which was dismissed
by the trial court. Neither claim is at issue in this appeal.
3
¶ 7
Prior to trial, the Rileys moved under C.R.C.P. 12(b)(5) to
dismiss Belfor’s claims as barred under the more general three-year
statute of limitations applicable to contract actions. The motion
was denied by the court in a written order (the June 13, 2018,
order). The Rileys renewed the motion after trial, which was again
denied by the court in a written order (the July 18, 2019, order).
The Rileys challenge both orders on appeal.
A. The June 13, 2018, Order
¶ 8
In its June 13, 2018, order, the trial court determined that,
based on the face of the complaint, the Rileys had failed to show
that Belfor’s claims were brought outside the statute of limitations.
The Rileys contend that this was error. We will not, however,
address this contention.
¶ 9
In other procedural postures, we review the denial of a
defendant’s Rule 12(b)(5) motion to dismiss de novo. However,
when the denial of a Rule 12(b)(5) motion, as here, is followed by a
trial on the merits in which the defendant has not prevailed, a claim
that the denial of a Rule 12(b)(5) motion was error is not reviewable
on appeal. Credit Serv. Co. v. Skivington, 2020 COA 60M, ¶¶ 11-12
(“[T]he purpose of a motion to dismiss for failure to state a claim ‘is
4
to test the formal sufficiency of the complaint’ so as ‘to permit early
dismissal of meritless claims,’ and that purpose is no longer
achievable if the plaintiff prevails after a full trial on the merits.”
(quoting Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 911, 915 (Colo.
1996))).
¶ 10
Thus, because the statute of limitations issue raised in the
Rule 12(b)(5) motion was re-raised and litigated in the subsequent
bench trial, a claim that the earlier ruling was error is not
reviewable on appeal.
B. The July 18, 2019, Order
¶ 11
In closing argument following the bench trial, the Rileys
renewed their motion to dismiss,2 arguing that, based on the
evidence presented at trial, the debt was not liquidated and
therefore the six-year statute of limitations did not apply. We
disagree with the Rileys.
2 The Rileys’ motion to dismiss based on the statute of limitations
raised in closing argument is referred to occasionally by the parties
as an affirmative defense. Although the latter appears more
procedurally accurate, it matters not because the analysis of the
issues raised here are the same under either characterization.
5
1. The Trial Court’s Order and Standard of Review
¶ 12
In the portion of its order pertaining to the applicable statute
of limitations, the court stated:
While the work authorization itself does not
state the amount the Rileys were obligated to
pay, that amount is ascertainable by adding
predetermined rates for the services provided.
Although [an estimate dated April 22, 2013,]
itself was not presented to the Rileys until after
the services were performed, it demonstrates
that such rates were in place. The stipulation
of the parties contained in the trial
management order indicates that the Rileys
had reviewed the estimate of work to be done.
¶ 13
In a review of a bench trial, an appellate court will review a
trial court’s findings of fact for clear error and review the legal
conclusions the trial court drew from those findings de novo.
Carousel Farms Metro. Dist. v. Woodcrest Homes, Inc., 2019 CO 51,
¶ 18.
2. Liquidated Debt
¶ 14
A “liquidated debt” is a debt that “is ascertainable from the
terms of the contract, as where the contract fixes a price per unit of
performance, even though the number of units performed must be
proved and is subject to dispute.” Rotenberg v. Richards, 899 P.2d
365, 368 (Colo. App. 1995) (quoting Restatement (Second) of
6
Contracts § 354 cmt. c (Am. L. Inst. 1981)); see also Portercare
Adventist Health Sys. v. Lego, 2012 CO 58, ¶ 15 (Portercare II). If
the written document sets forth a specific method for determining
the amount due, the fact that reference must be made to a fact
external to that document does not make a claim under that
document unliquidated. Rotenberg, 899 P.2d at 368.
¶ 15
The parties’ contract states, in pertinent part, as follows:
All insurance work performed . . . is subject to
the terms of the insured policy of Insurance
which sets the scope and the price of the work
based upon industry standards . . . . [I]f for
any reason your claim is denied by your
insurance carrier or they refuse to pay the
costs of any and/or all insurance work
performed by the Contract . . . then the
insured/owner(s) . . . will be personally liable
for all costs of services performed.
(Emphasis added.)
¶ 16
The trial court determined that the amount of the debt was
determinable because it could be ascertained by adding
predetermined rates for the services provided. We agree.
¶ 17
Specifically, by its terms, the contract implied that the amount
due was to be calculated according to a formula used in the
insurance industry, which set the scope and price of the work
7
based on industry standards. All that needed to be done to
determine the amount owed — and the Rileys do not dispute this —
was to use a computer program that applied each item serviced by
Belfor to a set price determined by the industry and utilized
nationally.
¶ 18
Nevertheless, relying on Neuromonitoring Associates v. Centura
Health Corp., 2012 COA 136, and this court’s decision in Portercare
Adventist Health System v. Lego, 312 P.3d 201 (Colo. App. 2010)
(Portercare I), the Rileys argued to the trial court (and again in their
opening brief on appeal) that, as a matter of law, the trial court’s
reliance on extrinsic evidence to determine that the debt was
liquidated was improper. However, as the trial court pointed out,
the more restrictive definition of “liquidated” in Portercare I was
reversed on appeal by our supreme court in Portercare II. And,
because Neuromonitoring was decided while Portercare I was
pending before the supreme court, its adoption of the more
restrictive definition of “liquidated” was necessarily overruled.
¶ 19
Indeed, Portercare II left undisturbed the analysis in
Rotenberg, which remains good law. Additionally, the Rotenberg
court clearly explained that if the written document (here, the
8
parties’ contract) sets forth a method for determining the amount
due (here, by applying a pre-existing industry standard price
schedule to the work performed), the fact that reference must be
made to a fact external to that document (here, the industry
standard price schedule and the estimated scope of services) does
not make a claim under that document unliquidated. See
Rotenberg, 899 P.2d at 368; see also Interbank Invs., L.L.C. v. Vail
Valley Consol. Water Dist., 12 P.3d 1224, 1230 (Colo. App. 2000)
(deciding that water district’s obligations under separate
agreements to repay developer for costs of constructing water
distribution systems were “determinable” where one agreement
stated that direct costs could be demonstrated by invoices and
verified by the water district’s engineer, and the other agreement
specified that “actual costs expended” would be reimbursed);
Fishburn v. City of Colorado Springs, 919 P.2d 847, 849-50 (Colo.
App. 1995) (holding that claim under an employment contract was
“determinable” where, despite a dispute over the number of hours
worked by an individual, the amount due was easily calculable);
Hayes v. N. Table Mountain Corp., 43 Colo. App. 467, 470, 608 P.2d
830, 832 (1979) (holding that a claim for a broker’s commission
9
based upon a percentage of the purchase price of realty was a
liquidated claim, notwithstanding the fact that evidence from
outside the agreement was required to establish the amount of the
purchase price); Comfort Homes, Inc. v. Peterson, 37 Colo. App. 516,
519, 549 P.2d 1087, 1090 (1976) (A contract called for payment of a
specific percentage of the estimated cost of the construction of a
structure. Although the parties disagreed as to the amount of the
relevant estimated cost, the claim was held to be one for a
“liquidated determinable amount of money due.”); Uhl v. Fox, 31
Colo. App. 13, 14-15, 498 P.2d 1177, 1178 (1972) (considering a
written agreement for the sale of corporate stock that established
the sales price as the book value of that stock, as reflected in the
quarterly financial statement that was to be issued at some date in
the future; while it was necessary to establish such book value by
extrinsic evidence, a claim for violation of the promise to buy was a
liquidated claim).
¶ 20
Furthermore, under Rotenberg, the fact that the Rileys did not
have insurance coverage was immaterial to whether the debt was
10
determinable.3 This is because the reference to the insurance
industry standards in the contract was not tied to the terms of a
specific insurance policy but merely indicated that the calculations
as to the amount owed were based on a set method used nationally
in the industry. Whether or not the Rileys had insurance did not
change the insurance industry standards, which were fixed and
ascertainable.
3. The Stipulation in the Trial Management Order
¶ 21
As set forth above, having found in its July 18, 2019, ruling
that the debt was liquidated because the amount owed was
determinable, the trial court went on to find that “[t]he stipulation
of the parties contained in the trial management order indicates
that the Rileys had reviewed the estimate of work to be done.”
¶ 22
The Rileys contend that this finding was erroneous and an
abuse of the trial court’s discretion. Specifically, they argue that
3 For purposes of addressing the Rileys’ argument, we accept as fact
their assertion that they had no insurance. We note, however, that
the trial court neither found to the contrary in its July 18, 2019,
order nor relied on their insurance status in its determination that
the debt was liquidated.
11
the debt was not determinable because they never “stipulated” that
they had reviewed the estimate prior to the start of work.4
a. Standard of Review
¶ 23
We review the trial court’s pretrial management decisions for
an abuse of discretion. That means that the court’s decisions will
not be disturbed unless they exceeded its authority or violated the
law. See Makeen v. Hailey, 2015 COA 181, ¶ 38; Maloney v.
Brassfield, 251 P.3d 1097, 1102 (Colo. App. 2010) (“An abuse of
discretion occurs where the trial court’s decision is contrary to law,
arbitrary, or capricious.”).
b. Analysis
¶ 24
Initially, we note that we are not convinced that in order to
resolve the statute of limitations issue it even matters whether the
Rileys had in fact received an estimate prior to the start of the work.
The only relevant question when deciding whether a six-year or
three-year limitations period applies is whether the money damages
4 We will not address the Rileys’ accusations that Belfor’s or its
attorneys’ actions were unethical, unprofessional, or illegal because
(1) they are raised for the first time on appeal and (2) they are
unsupported.
12
sought constitute a debt that is ascertainable from the terms of the
contract or by simple computation using extrinsic evidence if
necessary. See Rotenberg, 899 P.2d at 368. That said, the point in
time when a defendant becomes aware of the specific price of goods
or services may be critical, for example, to prove the contract or its
terms, or perhaps to calculate prejudgment interest, but appears
tangential to the issue of whether the amount owed is determinable
— that is, whether the contract, and any extrinsic evidence, provide
a discernable method to apply, as relevant here, a set price to an
itemization of units.
¶ 25
As the trial court noted in its order:
It is important to recognize that the statute of
limitations merely governs whether an action
is timely. It does not address the merits of the
claim for which relief is being requested.
Although in this instance the nature of the
debt impacts which statute of limitations is
applicable, determining the nature of the debt
— deciding whether it is a liquidated debt —
does not resolve whether the amounts charged
are correct or whether some defense to the
obligation claimed is applicable. “The fact that
the defendant disputes the amount in question
does not affect the liquidated character of the
debt.” (citing Portercare II, 2012 CO 58, ¶ 16)
13
¶ 26
In any event, assuming without deciding that proof that the
Rileys had reviewed the estimate of the work to be done was
necessary to determine whether the debt was liquidated, we
disagree that, in relying on the pretrial stipulation to provide such
proof, the trial court abused its discretion.
¶ 27
Here, the record contains the trial court’s signed and dated
trial management order, which includes the stipulation that
“defendants reviewed and approved the Estimate for work to be
performed with Deon Garcia of Belfor.”5 Nonetheless, the Rileys
argue, there was “no stipulation.” This is so, they assert, because
5 The trial management order included four stipulated facts:
1. Defendants executed the Work
Authorization on or before November 5, 2012.
2. Defendants reviewed and approved the
Estimate for work to be performed with Deon
Garcia of Belfor.
3. Plaintiff provided an Invoice and multiple
demands for payments to the Defendants.
4. Defendants have not paid Belfor for any of
the services, labor or materials used by Belfor
in performing and completing the restoration
work.
14
during the trial management conference, the Rileys’ attorney told
the court that she “probably” objected because “the statement of
facts that are there is what I would disagree with.”6 But she offered
no further explanation or specifics to the court, although she was
given the opportunity to do so. As Belfor points out, she did not
submit anything prior to the conference, and she offered no
alternative or more specific language to the court during the
conference.
¶ 28
Under these circumstances, we agree with Belfor that it was
within the wide parameters of the trial court’s discretion to approve
the proposed pretrial order, including the stipulated fact, and,
consequently, to rely on it in its July 18, 2019, order. See, e.g.,
Awanderlust Travel, Inc. v. Kochevar, 21 P.3d 876, 878 (Colo. App.
2001) (“When no objection is made to a pre-trial order, the matters
determined by the order have the force and effect of a stipulation
among the parties.”).
6 Counsel had not signed the proposed pretrial order, explaining
that “she didn’t have time.”
15
¶ 29
This is particularly so here, not only because the Rileys’
counsel gave the court nothing to work with at the conference, but
also because the Rileys made no subsequent request to the trial
court to relieve them from the stipulated facts, despite the record
reflecting that they had ample opportunity to do so. See Lake
Meredith Reservoir Co. v. Amity Mut. Irrigation Co., 698 P.2d 1340,
1346 (Colo. 1985) (trial court has discretion to relieve a party of a
stipulation upon timely application);
Maloney, 251 P.3d at 1108
(whether to relieve a party of a stipulation is within the discretion of
the trial court); see also Sandoval v. Daniels, 532 P.2d 759, 762
(Colo. App. 1974) (not published pursuant to C.A.R. 35(f)) (“The
record does not contain any objection by plaintiffs’ counsel to the
pre-trial order and, therefore, the pre-trial order has the force and
effect of a stipulation of the parties.”).
¶ 30
Furthermore, this was a bench trial, and the Rileys’ suggestion
to the contrary notwithstanding, the court was free to disregard
testimony that may have conflicted with the stipulated facts set
16
forth in the trial management order.7 See, e.g., Liggett v. People,
135 P.3d 725, 733 (Colo. 2006) (In the context of a bench trial, the
prejudicial effect of improperly admitted evidence is generally
presumed innocuous. “[T]here is a presumption that all
incompetent evidence is disregarded by the court in reaching its
conclusions, and the judgment will not be disturbed unless it is
clear that the court could not have reached the result but for the
incompetent evidence.” (quoting People v. Kriho, 996 P.2d 158, 172
(Colo. App. 1999))); see also Deas v. Cronin, 190 Colo. 177, 179,
544 P.2d 991, 993 (1976) (“The credibility of the witnesses . . . [and]
the inferences and conclusions to be drawn [from the evidence] are
all within the province of the trial court,” and its findings will not be
disturbed on appeal unless they “are manifestly erroneous.”).
¶ 31
Under these circumstances, we conclude that the court’s
reliance on the stipulation was not an abuse of discretion.
7 In its order, referring to the conflicting testimony as to when the
Rileys saw an estimate of the work to be done, the court stated that
it “does not have to resolve this disagreement because the trial
management order, approved by the court, contained as one of the
parties’ stipulated facts that, ‘Defendants reviewed and approved
the estimate for work to be performed with Deon Garcia of Belfor.’”
17
III. The Trial Court Award of Attorney Fees
¶ 32
As relevant here, Belfor did not submit its affidavit in support
of its attorney fees to the Rileys until late in the day before the
scheduled hearing. At the hearing, the Rileys objected, complaining
that they did not have adequate time to review the documents and
asking the court to “not allow” an award of fees. As a remedy, the
court granted a recess to provide additional time for review.
¶ 33
On appeal, the Rileys claim that the attorney fees award to
Belfor was unreasonable and unfair because “opposing counsel
failed to file its affidavit for attorney fees in a timely manner,” and
specifically, that the trial court abused its discretion when it
permitted Belfor to introduce its supporting documentation less
than a full day before the hearing. As a remedy, they do not seek a
new hearing, but instead ask us to vacate the award. We find no
abuse of discretion and decline the Rileys’ request.
A. Standard of Review and Law
¶ 34
We review the reasonableness of a trial court’s award of
attorney fees for an abuse of discretion. Payan v. Nash Finch Co.,
2012 COA 135M, ¶ 16. The determination of reasonableness of
attorney fees is a question of fact for the trial court, and we will not
18
disturb its ruling unless it is patently erroneous and unsupported
by the evidence. Id.
¶ 35
To determine reasonable attorney fees, a trial court first
calculates the “lodestar amount,” which represents “the number of
hours reasonably expended on the case, multiplied by a reasonable
hourly rate.” Id. at ¶ 18. The court may then adjust the lodestar
amount up or down based on several factors. See Dubray v.
Intertribal Bison Coop., 192 P.3d 604, 608 (Colo. App. 2008). In
awarding attorney fees, the trial court may consider, among other
factors, the amount in controversy, the length of time required to
represent the client effectively, the complexity of the case, the value
of the legal services to the client, and the usage in the legal
community concerning fees in similar cases. See In re Estate of
Painter, 39 Colo. App. 506, 508, 567 P.2d 820, 822 (1977); Bryant
v. Hand, 158 Colo. 56, 59-60, 404P.2d 521, 522-23 (1965). A trial
court’s calculation of the lodestar amount enjoys a “strong
presumption of reasonableness.” Payan, ¶ 18.
B. The Court’s Attorney Fees Order
¶ 36
With record support, the trial court found that the total
amount of hours expended on the case was 73.17, of which 59.4
19
was attributable to lead counsel, five hours to associate counsel,
and 8.77 to a paralegal. The court then noted the hourly rates
charged, respectively, $300, $230 and $175. The court made
findings on the reasonableness of the hourly rates and considered,
among other factors, the eight factors set forth in Rule 1.5 of the
Colorado Rules of Professional Conduct.8
¶ 37
The court noted that the case itself was not difficult but
required more time because of “a variety of factors that the history
of the case discloses.” Ultimately, with specific findings, the court
reduced the number of hours expended by 15% for the two
attorneys, and 10% for the paralegal. The court explained that its
award was
8 The factors set forth in Colo. RPC 1.5(a) are: (1) the time and labor
required, the novelty and difficulty of the questions involved, and
the skills requisite to perform the legal service properly; (2) the
likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the
lawyer; (3) the fees customarily charged for similar legal services; (4)
the amount involved and the results obtained; (5) the time
limitations imposed by the client or by the circumstances; (6) the
nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and (8) whether the fee is fixed or
contingent.
20
derived from the total attorneys’ fees and costs
set forth in the affidavit submitted by [Belfor’s]
counsel minus charges the Court has
determined should not be awarded as well as a
reduction in the total number of hours charged
by [Belfor’s] counsel in bringing this action.
The Court has reduced the amount [of]
attorneys’ fees and in making this decision,
analyzed some of the unusual aspects of the
action, the length of the litigation and the lack
of complexity of legal issues in this action.
See Catlin v. Tormey Bewley Corp., 219 P.3d 407, 410-11 (Colo.
App. 2009) (“The district court has considerable discretion in
determining the size of a fee award, as is appropriate given the
district court’s superior understanding of the litigation and the
desirability of avoiding frequent appellate review of what essentially
are factual matters.” (quoting Dalal v. Alliant Techsystems, Inc., 182
F.3d 757, 760 (10th Cir. 1999))).
C. Analysis: No Abuse of Discretion
¶ 38
On appeal, the Rileys raise no specific challenge to the
propriety of the fees award, but argue, instead, that by allowing
Belfor to present its evidence in support of its fees, the court
abused its discretion. Although the Rileys do not cite to any
specific authority, we understand them to argue that the trial court
should have used its discretion to sanction Belfor by refusing to
21
allow it to submit its evidence and, thus, to effectively bar it from an
award of fees. As to that contention, we disagree.
¶ 39
First, providing more time to review the evidence in lieu of
precluding it was a valid choice. It is well within the trial court’s
discretion to determine appropriate remedies and sanctions for
failure to comply with procedural rules, including the admission of
evidence. Genova v. Longs Peak Emergency Physicians, P.C., 72
P.3d 454, 466 (Colo. App. 2003) (When a party violates the
discovery rules, trial courts are permitted “to choose appropriate
sanctions, which may include evidence preclusion. However, that
sanction is not mandatory.”); see also Trattler v. Citron, 182 P.3d
674, 682 (Colo. 2008) (“[I]t is unreasonable to deny a party an
opportunity to present relevant evidence based on a draconian
application of pretrial rules.” (quoting J.P. v. Dist. Ct., 873 P.2d 745,
750 (Colo. 1994))).
¶ 40
Furthermore, the record shows that the recess provided the
Rileys with sufficient opportunity to review the evidence. The Rileys
were able to raise numerous challenges to the proffered
calculations; their counsel proceeded through the affidavit, line by
line, pointing out, with supporting argument, nearly fifty
22
objectionable items in the amount of time billed by Belfor’s
attorneys. Moreover, the trial court’s order shows that it accepted
most of the Rileys’ concerns.9 Cf. Todd v. Bear Valley Vill.
Apartments, 980 P.2d 973, 979 (Colo. 1999) (“In evaluating whether
a failure to disclose evidence is harmless under [C.R.C.P.] 37(c), the
inquiry is not whether the new evidence is potentially harmful to
the opposing side’s case. Instead, the question is whether the
failure to disclose the evidence in a timely fashion will prejudice the
9 In pertinent part the order stated:
The Court finds that it is appropriate to make
deductions from the hours expended,
considering lack of complexity of the issues
involved, and has been noted by Ms. Riley. I
think there are a number of activities which
unduly reflect the amounts of time involved for
them — for the particular ones. It may indeed
be, although it’s mainly Counsel’s
representation, the Court has not been
provided with a fee agreement, that there may
be an understanding with the client of a
minimum amount of time that is to be
charged. But the Court does not necessarily
believe that that is determinative in deciding
what is reasonable and necessary in terms of
the fees to be awarded and the liability to be
assumed by another party.
23
opposing party by denying that party an adequate opportunity to
defend against the evidence.”).
¶ 41
Most important, the Rileys made no showing of further
prejudice after the recess — they did not request a continuance or
more time to obtain an expert of their own, nor did they make an
offer of proof as to what more they could have done or shown had
the evidence been submitted earlier. See, e.g., Ajay Sports, Inc. v.
Casazza, 1 P.3d 267, 275 (Colo. App. 2000) (concluding that any
error in permitting undisclosed expert testimony was harmless
where party claiming surprise by the testimony did not specify how
he was prejudiced or what additional information he could have
elicited on cross-examination); see also Winkler v. Shaffer, 2015
COA 63, ¶ 7; Saturn Sys., Inc. v. Militare, 252 P.3d 516, 525 (Colo.
App. 2011).
¶ 42
Based on this record, we conclude that the trial court’s remedy
for Belfor’s late submission of its affidavit in support of fees was not
an abuse of discretion. Consequently, we decline the Rileys’ related
request that we vacate, in its entirely, the attorney fees award.
24
IV. Appellate Attorney Fees and Costs
¶ 43
Belfor requests an award of appellate attorney fees and costs.
As noted above, Belfor has a contractual right to recover reasonable
attorney fees and costs, and, therefore, it is entitled to its
reasonable attorney fees and costs incurred in defending this
appeal. Because the trial court is better situated to resolve the
factual issues associated with the entitlement to attorney fees, we
exercise our discretion under C.A.R. 39.1 and remand for the trial
court to determine and award Belfor appellate attorney fees. See In
re Marriage of Beatty, 2012 COA 71, ¶ 22.
V. Conclusion
¶ 44
Based on our disposition, we do not address any remaining
arguments raised by the parties.
¶ 45
For the reasons set forth above, the judgment is affirmed. The
case is remanded to the trial court for an award to Belfor of its
reasonable attorney fees and costs incurred in this appeal.
JUDGE ROMÁN and JUDGE WELLING concur.