Belfor v. Riley

Opinion

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.