Dennis I. Spencer Contractor, Inc. v. City of Aurora

884 P.2d 326, 1994 Colo. LEXIS 820, 1994 WL 608472

• Court: Supreme Court of Colorado
• Decided: November 7, 1994
• Docket: 93SC529
• Status: Published

Opinions

Justice VOLLACK

delivered the Opinion of the Court.

Dennis I. Spencer Contractor, Inc. (Spencer Contractor), petitions this court to review the decision by the court of appeals in Dennis Spencer Contractor Inc. v. City of Aurora, No. 92CA0176 (Colo.App. Mar. 25, 1993) (not selected for official publication), affirming the trial court’s ruling that the respondent, the City of Aurora (Aurora), which was found by the trial court to have breached a construction contract and a settlement agreement, was the prevailing party on the settlement agreement and entitled to attorney fees.

We granted certiorari to decide the standard for determining the prevailing party for purposes of awarding attorney fees pursuant to a fee-shifting provision in a settlement agreement which provides for reasonable attorney fees to the prevailing party in any enforcement action. We hold that, where a claim exists for a violation of a contractual obligation, the party in whose favor the decision or verdict on liability is rendered is the prevailing party for purposes of awarding attorney fees. We reverse the court of appeals’ decision and remand to the court of appeals with directions to remand this matter to the trial court for a determination of the reasonable attorney fees to which Spencer Contractor is entitled as the prevailing party.

I.

In August 1988, Spencer Contractor entered into an agreement with Aurora for construction of an underground sanitary sewer line, as part of the Alameda Parkway Project (the construction contract). During the course of construction, Spencer Contractor encountered a number of unexpected delays resulting from site conditions. Spencer Contractor requested additional time and compensation to complete the construction contract. Aurora granted a fourteen-day time extension, but refused to compensate Spencer Contractor for additional construction costs. Aurora subsequently assessed liquidated damages against Spencer Contractor when it failed to complete the project on time.

In August 1989, Spencer Contractor filed a civil action, claiming that Aurora had breached the construction contract by refusing to issue time change orders and by failing to exercise good faith in performing its duties. Approximately one year later, Spencer Contractor amended its complaint to add a claim alleging that Aurora had breached a settlement agreement, executed by the parties in connection with a 1985 lawsuit, which resolved a dispute involving the Emporia Street Storm Sewer Project (the settlement agreement).

According to the amended complaint, Aurora breached a provision of the settlement agreement which prohibited Aurora from “treating Spencer Contractor or any bid submitted by it differently [than] any other contractor” by retaliating against Spencer Contractor in connection with the bidding and performance of the Alameda Parkway Project construction contract.¹ Aurora filed a counterclaim alleging breach of the settlement agreement by Spencer Contractor.

The case proceeded to trial in October 1991.² Following the trial, the jury returned a special verdict finding that Aurora had breached both the construction contract and the settlement agreement.³ The jury additionally concluded that Spencer Contractor had incurred actual damages of $57,000 as a result of Aurora’s breach of the construction contract. The jury found that Aurora had breached the settlement agreement but did not award any damages to Spencer Contractor on the settlement agreement.

Both parties then submitted requests for attorney fees based on a fee-shifting provision in the settlement agreement entitling a “prevailing party” in any enforcement action to recover all costs and reasonable attorney fees. Subsequently, the Arapahoe County District Court ruled that Aurora was the “prevailing party” on the claim for the breach of the settlement agreement and awarded attorney fees in the amount of $30,-000 to Aurora.⁴

Spencer Contractor appealed the trial court’s order to the court of appeals. The court of appeals affirmed in part, reversed in part, and remanded the case to the trial court. The court of appeals affirmed the trial court’s ruling that Aurora was the prevailing party on the settlement agreement, slip op. at 2-3, but reversed and remanded on the grounds that the trial court’s findings were insufficient for the appellate court to determine that the fees awarded were actually incurred and were reasonable. The court of appeals reasoned as follows:

In order to receive the benefit of a contract provision which calls for an award of attorney fees to the prevailing party, the applicant must “have succeeded upon a significant issue presented by the litigation and must have achieved some of the benefits that he sought in the lawsuit.” Overland Development Co. v. Marston Slopes Development Co., 773 P.2d 1112, 1115 (Colo.App.1989).

Here, Aurora succeeded in arguing that any breach of the settlement agreement did not result in damages to Spencer. As a result, it achieved its goal of avoiding payment of damages to Spencer. Contrary to the position taken by Spencer, this court has previously recognized that such a result by a defendant is sufficient to support a trial court’s conclusion that the defendant was the prevailing party for purposes of awarding attorney fees. Odenbaugh v. County of Weld, 809 P.2d 1059 (Colo.App.1990).

Spencer Contractor, slip op. at 2-3.

II.

Spencer Contractor maintains that it succeeded on the merits of its claim for breach of both the construction contract and the settlement agreement and should be deemed the prevailing party for purposes of awarding attorney fees.⁵

The question of who is a prevailing party for purposes of awarding attorney fees pursuant to a settlement agreement which provides for attorney fees to the prevailing party, in litigation regarding a breach of a construction contract and a breach of a settlement contract, and the appropriate standard for making this determination presents an issue of first impression for this court.⁶

Relying on Overland Development Co. v. Marston Slopes Development Co., 773 P.2d 1112 (Colo.App.1989), the court of appeals determined that, pursuant to a fee-shifting provision in a settlement agreement which provides for reasonable attorney fees to the prevailing party, the applicant must “have succeeded upon a significant issue presented by the litigation and must have achieved some of the benefits that he sought in the lawsuit.” Spencer Contractor, slip op. at 2. Based on this standard, the court of appeals concluded that Aurora had prevailed on the breach of the settlement agreement since the breach did not result in any damages to Spencer Contractor. The court of appeals determined that Aurora had achieved its goal of avoiding payment of damages to Spencer Contractor. Relying upon Odenbaugh v. County of Weld, 809 P.2d 1059 (Colo.App.1990), the court of appeals concluded that Aurora was the prevailing party for purposes of awarding attorney fees.

In Overland Development, a purchaser brought an action for breach of contract, fraud, and negligent misrepresentation against the land developer who contractually agreed to perform certain landscaping. The purchaser claimed, inter alia, that the land developer had failed to fulfill its contractual obligation to install landscaping. The trial court agreed that the defendant had breached its contractual obligation to install landscaping, but the trial court concluded that the purchaser, in the resale of the property, had not suffered any actual damages by the breach. Overland Dev., 773 P.2d at 1115.

On appeal, the purchaser contended that it was entitled to attorney fees as the prevailing party on the breach of contract claim,⁷ despite the fact that no actual damages were awarded. The court of appeals disagreed. Relying on the standard enunciated in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), for awarding attorney fees under the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C.A. § 1988 (West 1981), the court of appeals, in determining which party was entitled to receive the benefit of an attorney fees provision that entitles the prevailing party to attorney fees, embraced the Supreme Court’s two-part test: the applicant must “have succeeded upon a significant issue presented by the litigation and must have achieved some of the benefits that he sought in the lawsuit.”⁸ Overland Dev., 773 P.2d at 1115. Under this standard, a party must prevail upon a “significant” issue, and a party need not prevail on the “central” issue. The benefits achieved must be more than de minimis. Id. (citing Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)).⁹ “[T]he mere judicial declaration that one of the plaintiffs legal assertions is correct does not mean that he has prevailed in the litigation, unless some benefits flow, or may be anticipated to flow, to the plaintiff from that declaration.” Overland Dev., 773 P.2d at 1115-16 (citing Hewitt v. Helms, 482 U.S. 755, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987); Rhodes v. Stewart, 488 U.S. 1, 109 S.Ct. 202, 102 L.Ed.2d 1 (1988)).

Applying this standard, the court of appeals concluded that, although the purchaser succeeded on a significant legal issue, its recovery of nominal damages was de minim-is and therefore the purchaser was not the “prevailing party.” The court of appeals, however, did not hold that the defendant was the prevailing party because the jury did not award actual damages.

We do not consider the Hensley standard relied upon in Overland to be dispositive in this case and conclude that the court of appeals misapplied the Hensley standard, which was intended to apply to awarding attorney fees in civil rights actions under 42 U.S.C.A. § 1988 only.¹⁰ To the extent Overland conflicts with this opinion, we disapprove of it. Further, the standard adopted in Nouri v. Wester & Co., 833 P.2d 848 (Colo.App.1992), and other jurisdictions in determining who is entitled to attorney fees in a non-eivil rights action lends additional support to our determination that the court of appeals erred in adopting the Hensley standard.

In Nouri, a tenant sued his landlord for breach of an exclusive-use restriction in a lease between the parties. The landlord filed a counterclaim seeking a declaration that the tenant’s option to renew the lease had been terminated by the tenant’s assignment of rights. The trial court ruled that the assignment violated the lease and extinguished the renewal option. The trial court additionally found that the landlord had breached the lease. The trial court, however, did not enter an injunction in favor of the tenant or award the tenant damages since the tenant did not establish any amount of damages for the breach. Nouri, 833 P.2d at 850. The trial court therefore ruled that “[the landlord] was not entitled to recover attorney fees incurred in defense of [tenant’s] action because of its determination that [the landlord] had violated the lease” in spite of an attorney fees provision authorizing attorney fees to the successful party in legal proceedings brought to enforce the lease. Id.

The court of appeals affirmed this ruling in part. The court of appeals determined that the landlord was entitled to attorney fees for litigating its counterclaim concerning the tenant’s right to exercise the option to renew the lease:

An award of fees in an action for declaratory relief is appropriate here because the trial court ruled in favor of [the landlord’s] right to declare a forfeiture of the option to renew. Thus, the fees [which the landlord] incurred in pursuing the counterclaim were the result of successful efforts “to enforce” the lease....

Id. at 852.

Because the landlord violated the lease, however, the court of appeals upheld the trial court’s ruling that the landlord should not be rewarded for breaching the contract by recovering attorney fees incurred in defending against the tenant’s claim.

Under Nouri, a litigant is not considered a prevailing party for purposes of awarding attorney fees if it breached its contractual obligations, notwithstanding the fact that it was not required to pay damages for that breach. The court of appeals’ conclusion that Aurora is entitled to receive attorney fees because no damages were assessed against it is inconsistent with Nowri. Aurora, like the landlord in Nouri, should not receive attorney fees because it breached both the construction contract and the settlement agreement. Even though Spencer Contractor was not awarded damages for breach of the settlement agreement, awarding attorney fees to Aurora would effectively confer a benefit upon a party for violating its own agreement.

Other jurisdictions have similarly held that a party who violates a statutory or contractual obligation, but against whom no damages are recovered, is not entitled to an award of attorney fees for breaching its legal obligations.¹¹ See, e.g., Shurtliff v. Northwest Pools, Inc., 120 Idaho 263, 815 P.2d 461, 465 (App.1991), reh’g denied, (Idaho App.1991) (evaluating the following criteria in determining who is a prevailing party: (1) the final judgment or result obtained in the action in relation to the relief sought; (2) whether there were multiple claims or issues presented; and (3) the extent to which each of the parties prevailed on each of the issues or claims); Johns v. Park, 96 Or.App. 314, 773 P.2d 1328, 1332 (1989) (“As a general rule, there can be only one prevailing party in an action. Because the contract does not provide differently, the ‘prevailing part^ here is the one in whose favor final judgment is rendered.”); Lucite Center, Inc. v. Mercede, 606 So.2d 492, 493 (Fla.Dist.Ct.1992) quoting Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla.1992) (“[EJither [lessee] or [lessor] breached the contract and either [lessee] or Dessor] is entitled to attorney’s fees and costs under the contract. Therefore, upon remand, the trial court shall determine which party breached the contract. Once the trial court makes that determination, the trial court must determine who is the prevailing party and then award attorney’s fees and costs to the prevailing party. ‘[T]he fairest test to determine who is the prevailing party is to allow the trial judge to determine from the record which party has in fact prevailed on the significant issues tried before the court.’ ”).

The majority view is that a plaintiff is the prevailing party and entitled to costs where the jury finds for the plaintiff as to liability but determines that the plaintiff has suffered no more than nominal damages. MFD Partners v. Murphy, 9 Haw.App. 509, 850 P.2d 713, 715-16 (1992); see also Three-Seventy Leasing Corp. v. Ampex Corp., 528 F.2d 993 (5th Cir.1976); Western Decor and Furnishings Indus., Inc. v. Bank of America Nat’l Trust & Sav. Ass’n, 91 Cal.App.3d 293, 154 Cal.Rptr. 287 (1979); I.A. Schafer v. Southern Ry. Co., 266 N.C. 285, 145 S.E.2d 887 (1966); Miles v. F.E.R.M. Enter., Inc., 29 Wash.App. 61, 627 P.2d 564 (1981); Atlantic Richfield Co. v. Long Trusts, 860 S.W.2d 439, 450 (Tex.App.1993) (“When a party prevails and establishes a valid claim, the party can be entitled to attorney’s fees without achieving a monetary recovery on the claim itself. The jury’s finding of zero damages does not preclude the awarding of attorney’s fees when the party has prevailed under the terms of the contract.”); Brown v. Richards, 840 P.2d 143, 155 (Utah App.1992) (“It is the determination of culpability, not the amount of damages, that determines who is the prevailing party.”).

In MFD Partners v. Murphy, 9 Haw.App. 509, 850 P.2d 713 (1992), a landlord brought an action against a tenant for alleged nonpayment of rent and summary possession of premises. The trial court awarded nominal damages to the landlord and determined that the landlord was the prevailing party. On appeal, the tenant maintained that the landlord was the losing party because the trial court awarded the landlord only “nominal damages”. The Intermediate Court of Appeals reviewed its general rule:

“[W]here a party prevails on the disputed main issue [in a ease], even though not to the extent of his original contention, he will be deemed to be the successful party for the purpose of taxing costs and attorney’s fees.” The trial court is required to first identify the principle [sic] issues raised by the pleadings and proof in a particular case, and then determine, on balance, which party prevailed on the issues.

Applying the foregoing test to the instant case, we note that there were two principal issues raised by the pleadings and proof at trial: (1) whether Defendant failed to perform under the master lease agreement with MFD; and (2) whether [the plaintiffs managing agent’s actions] excused Defendant from performing his obligations under the master lease. It is clear from the jury’s special verdict and the trial court’s judgment that Plaintiffs prevailed on both issues.

MFD Partners, 850 P.2d at 716 (quoting Food Pantry, Ltd. v. Waikiki Business Plaza, Inc., 58 Haw. 606, 575 P.2d 869, 879 (1978)). Accordingly, the court held that, for purposes of determining entitlement to attorney fees and costs under the lease, the landlord was the “successful party” in the suit for back rent since the landlord had prevailed on the principal issues at trial. The tenant was therefore not entitled to attorney fees and costs.

Further, in De Witt v. Liberty Leasing Co. of Alaska, 499 P.2d 599 (Alaska 1972), a building owner brought suit against the contractor for an allegedly defective and incomplete performance of a construction contract. The contractor counterclaimed for the final payment due under the contract and for compensation for certain extra work. The superior court rendered judgment for the contractor and against the owner but determined that, since neither party prevailed in the lawsuit, neither party should be entitled to costs or attorney fees. In De Witt, the Supreme Court of Alaska reviewed its earlier decision in Buza v. Columbia Lumber Co., 395 P.2d 511 (Alaska 1964), where the court enunciated the standard for determining who is a prevailing party:

“[I]t has been established by case law that the prevailing party to a suit is the one who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not to the extent of the original contention. He is the one in whose favor the decision or verdict is rendered and the judgment entered.”

De Witt, 499 P.2d at 601 (quoting Buza, 395 P.2d at 514).

The Supreme Court of Alaska, in applying this standard, held that the contractor was the prevailing party since it received a judgment against the building owner on the claim for final payment due under the construction contract and for compensation for extra work even though a small offset was provided. Id. at 601.

In light of the approaches taken by other jurisdictions in determining who is the prevailing party, we now hold that, where a claim exists for a violation of a contractual obligation, the party in whose favor the decision or verdict on liability is rendered is the prevailing party for purposes of awarding attorney fees.¹² Accordingly, Spencer Contractor was the prevailing party under this standard as Spencer Contractor successfully litigated this action and the jury’s verdict was entered in its favor.¹³

Our holding is further supported by the plain language of the settlement agreement as negotiated by the parties, the parties’ stipulation regarding attorney fees, contract principles, and the jury instructions regarding liability and damages. The settlement agreement provides that, “[i]n any action concerning enforcement of this Agreement, the prevailing party shall recover all costs and reasonable attorneys’ fees.”¹⁴ Spencer Contractor prevailed in “enforcing” the settlement agreement because the jury expressly found that Aurora had breached both the construction contract and the settlement agreement, and entered judgment against Aurora. Accordingly, Spencer Contractor is entitled to attorney fees.

Further, the parties’ stipulation regarding attorney fees stated in part:

Spencer’s Second Claim for Relief against Aurora in this action is for breach of the Settlement Agreement. Accordingly, Spencer has requested an award of attorneys’ fees, in addition to any damages it is awarded, if it is the prevailing party on its Second Claim for Relief.

The stipulation conditioned attorney fees on the jury’s verdict regarding Spencer Contractor’s claim for breach of the settlement agreement. The jury’s verdict encompassed a determination that Aurora’s conduct on the Alameda Parkway Project constituted a breach of the settlement agreement. This determination impacted the legal relationship between the parties and effectively severed that relationship.

Keeping basic contract principles in mind, it unjustly enriches the breaching party where the non-breaching party is required to pay the attorney fees of the breaching party. Farnsworth on Contracts §§ 12.8, 12.18, vol. Ill (1990 & 1994 Supp.). “As a matter of pure contract law it is generally true that if two individuals enter into a contract and one breaches, the breaching party cannot obtain a recovery from the innocent party.” United States for the Use of Palmer Constr., Inc. v. Cal State Elec., Inc., 940 F.2d 1260, 1261 (9th Cir.1991) (reversing the trial court’s award of damages and attorney fees to contractor since he was the breaching party). From a practical standpoint, because the trial court’s award of attorney fees is inconsistent, in order to arrive at a just result, we must reconcile the present contradiction.

The jury found that Aurora breached both the construction contract and the settlement agreement. The jury concluded that Spencer incurred damages in the amount of $57,-000 under the construction contract in which the breach of the settlement agreement gave rise to the breach of the construction contract. We conclude that it would be an unjust result to uphold an award of attorney fees to Aurora where Spencer Contractor, the innocent party, was required to pay attorney fees to the breaching party.

An absurd conclusion would otherwise result if Aurora prevailed on attorney fees, since Aurora did not prevail on any legal issues and the jury specifically entered a verdict against Aurora on both of the breaches. The fact that Aurora was not required to pay damages attributable to its breach does not constitute a favorable verdict or convert Aurora into a prevailing party. Therefore the jury’s verdict regarding liability on the breach of contract claims, and not the jury’s attribution of damages, controlled the issue of attorney fees.

Finally, the trial court’s instructions regarding liability and damages lend further support for our holding. The trial court instructed the jury as follows:

JURY INSTRUCTION NO. 40

The plaintiff, Dennis I. Spencer Contractor, Inc., has sued for some of the same damages and losses on two different claims for relief. The claims for relief on which Spencer has sued and on which you have been instructed are: breach of the Alame-da Parkway construction contract and breach of a Settlement Agreement.

If you find for Spencer on more than one claim for relief, you may award it damages only once for the same damages or losses.

JURY INSTRUCTION NO. 41

You are instructed to answer the following questions which will be on a form for Special Verdict:

1. Did the defendant, the City of Aurora, breach the contract for the Alameda Parkway construction project either by failing to issue change orders granting appropriate additional time and compensation for materially differing site conditions, or by failing to exercise good faith in the performance of its duties under the contract, or both?

2. Did the defendant, the City of Aurora, breach the Settlement Agreement?

3. Did the plaintiff, Dennis I. Spencer Contractor, Inc. incur damages as a result of the defendant, the City of Aurora’s breach of the contract for the Alameda Parkway construction project?

4. Did the plaintiff, Dennis I. Spencer Contractor, Inc. incur damages as a result of the defendant, the City of Aurora’s breach of the Settlement Agreement?

5. State the total amount of actual damages, if any, incurred by the plaintiff, Dennis I. Spencer Contractor, Inc., and caused by the conduct of the defendant, the City of Aurora in breaching the Alame-da Parkway construction contract, the Settlement Agreement, or both.

Spencer Contractor objected to the special verdict form and Jury Instruction No. 41, claiming that both were inconsistent with Spencer Contractor’s damages theory. Spencer Contractor maintained that damages could not be apportioned between the breach of the settlement agreement and the breach of the construction contract since the same conduct by Aurora constituted a breach of both agreements.¹⁵ Spencer Contractor argued to the trial court that

[tjhroughout this case Spencer’s taken the position that the damages it incurred were caused by actions which ... constituted a breach of both the settlement agreement and a breach of the Alameda Parkway construction contract, forcing the jury to separate — to answer separate questions about the damages Spencer incurred ...[.] [FJorcing the jury to attribute damages to separate breaches may confuse the jury, may result in the jurors feeling that they need to apportion the damages which Spencer believes were caused by breaches of both agreements and cannot be distinguished, and may severely prejudice Spencer’s right to be the forgiven parties [sic] on its claim for breach of the settlement agreement.

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... [W]e object to the special verdict form for the same reasons that we object[ ] to Instruction 41....

The jury was instructed under Instruction No. 40 that it could award damages only once for the same losses. The jury adhered to this instruction and was therefore prohibited in Instruction No. 41 from awarding damages on both contracts since Aurora’s conduct in breaching the settlement agreement gave rise to the breach of the construction contract.¹⁶ Therefore, the special verdict for damages in the breach of the construction contract implicitly includes damages attributable to the breach of the settlement agreement.

III.

We reverse the court of appeals’ decision and remand to the court of appeals with directions to remand this matter to the trial court for a determination of the reasonable attorney fees to which Spencer Contractor is entitled as the prevailing party. We further direct the trial court to consider whether attorney fees should be awarded for bringing this appeal.¹⁷

Chief Justice ROVIRA dissents.

1 . The settlement agreement remained in effect at the time of the conduct complained of by Spencer Contractor.

2 . At the commencement of trial, both parties stipulated that any award of attorney fees would be calculated as a post-trial matter after the jury rendered its verdict and the court entered final judgment.

3 . The Special Verdict given by the court to the jury contained five questions:

1.Did the defendant, the City of Aurora, breach the contract for the Alameda Parkway construction project either by failing to issue change orders granting appropriate additional time and compensation for materially differing site conditions, or by failing to exercise good faith in the performance of its duties under the contract, or both?

2. Did the defendant, the City of Aurora, breach the Settlement Agreement?

3. Did the plaintiff, Dennis I. Spencer Contractor, Inc. incur damages as a result of the defendant, the City of Aurora's breach of the contract for the Alameda Parkway construction project?

4. Did the plaintiff, Dennis I. Spencer Contractor, Inc. incur damages as a result of the defendant, the City of Aurora's breach of the Settlement Agreement?

5. State the total amount of actual damages, if any, incurred by the plaintiff, Dennis I. Spencer Contractor, Inc., and caused by the conduct of the defendant, the City of Aurora in breaching the Alameda Parkway construction contract, the Settlement Agreement, or both. Spencer Contractor objected to the Special

Verdict, claiming that it erroneously required the jury to speculate about the separate effects of each of Aurora's breaches while Spencer Contractor’s theory of the case, and the evidence, showed that essentially the same conduct constituted a breach of both contracts.

4 . Spencer Contractor sought to recover $32,-363.50 in attorney fees from Aurora for breach of the settlement agreement.

5 . We granted certiorari to consider the following issues:

Whether the court of appeals erred in concluding that respondent and not petitioner was a “prevailing party” entitled to a contractual award of attorney fees when a jury found that respondent had breached its contract, but awarded no damages to petitioner for that breach.

Whether the court of appeals erred in concluding that respondent was a “prevailing party” entitled to a contractual award of attorney fees when a juty found that respondent had breached its contract, but awarded no damages to petitioner for that breach.

Because these two issues are interrelated, we now consider them together.

6 . The determination of which party prevailed is committed to the discretion of the trial court and is subject to an abuse of discretion standard of review on appeal. Smith v. Freeman, 921 F.2d 1120, 1122 (10th Cir.1990).

7 . Plaintiff purchased the property pursuant to two written agreements which provided that the "prevailing party” would be "entitled” to an award of reasonable attorney fees. Overland Dev., 773 P.2d at 1113. Similar to the settlement agreement at issue here, the agreements neither defined the term "prevailing party” nor set forth the criteria that a party must satisfy to be deemed a prevailing parly.

8 . In employing this standard, the court of appeals reasoned that this standard

is currently being applied in a large number of cases by both the federal and state courts. We recognize that the federal civil rights statutes present issues of public policy not presented in the typical civil action concerning an alleged breach of contract. However, both the statutory provision for the award of attorney fees and a contract provision therefor have the common purpose of allowing an innocent party to obtain judicial relief without being subjected to financial hardship.

Overland Dev., 773 P.2d at 1115.

9 .The court of appeals additionally stated that no state court decision has adopted any general rule for determining when a party has prevailed. Overland Dev., 773 P.2d at 1115.

10 . The United States Code, at § 1988, confers power on- the courts, hoth federal and state, to award attorney fees as part of "costs” to parties who prevail in civil rights actions to remedy racial discrimination in transactions involving contracts or real or personal property, 42 U.S.C. §§ 1981, 1982; the violation of federal constitutional or statutory rights by state or local officials, 42 U.S.C. § 1983; conspiracies to violate civil rights, 42 U.S.C. § 1985; official failure to prevent civil rights violations, 42 U.S.C. § 1986; sex discrimination in federally financed education programs (Title IX); and race discrimination in federally financed programs (Title VI).

11 . Some jurisdictions follow a "net judgment" or “affirmative judgment” rule. A breaching defendant is the prevailing party only if the plaintiff also breached the contract and if the defendant recovers more in damages than the plaintiff. In Illingworth v. Bushong, 61 Or.App. 152, 656 P.2d 370 (1982), aff'd, 297 Or. 675, 688 P.2d 379 (1984), the court awarded fees to a plaintiff who prevailed on an equitable claim for return of a $50,000 earnest money deposit, which was offset by the defendant’s successful counterclaim for $6,500 in actual damages. The court concluded that the plaintiff had obtained a "net judgment” of $43,500 and was therefore "clearly the prevailing party.” Id. at 374. The court stated that,

as a general rule, where both the plaintiff and the defendant seek damages from each other by way of claim and counterclaim and both claims are upheld, the party in whose favor final [net] judgment is rendered is entitled to attorney fees. We have qualified that rule only to recognize that where one party seeks money damages and the other party seeks equitable relief and both prevail, it may not be appropriate to make an award.

Id. at 373-74 (citation omitted); see also Harris Market Research v. Marshall Mktg. and Communications, Inc., 948 F.2d 1518, 1527 (10th Cir.1991); Miller v. Safeco Title Ins. Co., 758 F.2d 364, 369 (9th Cir.1985). But see Wolff & Munier, Inc. v. Whiting-Turner Contracting Co., 946 F.2d 1003 (2d Cir.1991) (finding that, when both parties breach the contract and one obtained damages, neither party was entitled to attorney fees).

Because the trial court found that Aurora breached both the construction agreement and the settlement agreement, we need not consider the net judgment rule in greater detail at this time.

12 . The court of appeals' decision in Roa v. Miller, 784 P.2d 826 (Colo.App.1989), is consistent with our holding. The court of appeals considered at what stage in a trial attorney fees should be calculated. In making this determination, the court stated that, where “an award of attorney fees is authorized by statute or by contract, if the award is dependent upon the achievement of a successful result in the litigation in which they are to be awarded and the fees are for services rendered in connection with that litigation, a determination of the propriety of an award of fees ‘ need not be made until that litigation is completed and the result is known.” Id. at 829 (emphasis added). The highlighted section of this statement expresses that a party is entitled to an award of attorney fees contingent upon the achievement of a successful result in the litigation. The statement also implicitly suggests that the party who has achieved a successful result in the litigation is the prevailing party entitled to attorney fees.

13 . Spencer Contractor obtained (1) a judicial determination that the settlement agreement applies to all of Aurora's dealings with Spencer Contractor, and not merely Aurora's treatment of bids submitted by Spencer Contractor; and (2) a recovery of some of the damages it sought in this litigation.

14 . The purpose of a contractual attorney fee-shifting provision in a settlement agreement is to deter parties from breaching the contractual agreement. To deny attorney fees to the non-breaching party merely because the jury determines that the party suffered no injury would render meaningless the fee-shifting provision in the settlement agreement to which the parties stipulated, and which the parties intended to enforce. Such a result would encourage parties to breach contractual agreements and would cause unwarranted litigation.

15 . Spencer Contractor’s main argument is that Spencer Contractor received disparate treatment on the Alameda Parkway Project which constituted a violation by Aurora of the settlement agreement as well as a violation of the underlying construction agreement.

16 . Aurora argues that, when a parly seeks monetary damages and it is determined that only a technical harmless breach occurred, then it is not the prevailing party. Contrary to Aurora's contention, the jury did not rule that the breach of the settlement agreement constituted a harmless technical breach. Rather, the jury found that Aurora breached the settlement agreement, and did not award damages given the instructions provided.

17 . Both parties seek attorney fees on appeal.