Response to Applicants' Joint Motion for Costs and Fees

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show that opposing counsel advanced a frivolous claim. See, e: g., Shaw v. Baesemann, 773 P.2d at 610 -11. Moreover, a court determining a claim or defense to be substantially frivolous, groundless, or vexatious is required to make evidentiary findings justifying that conclusion and determining the appropriate amount of attorney fees attributable to the frivolous or vexatious claim or defense. Pedlow v. Stamp, 776 P.2d at 384 -86; In re Marriage of Aldrich, 945 P.2d at 1379. Here, the applicants' allegations are not tied to any specific "frivolous" claim or any specific attorney fees allegedly incurred by the Applicants as a result of defending that claim. Rather, these allegations are offered as proof that the State and Northern generally acted "vexatiously" throughout these proceedings. Such allegations cannot support an evidentiary finding that the State advanced a frivolous claim, nor an evidentiary finding attributing those fees to such claim. The Applicants argue that the State's conduct may entitle the Applicants to attorney fees pursuant to C.R.S. § 13 -17- 103(1) (2001), which sets forth several factors for courts to rely on in an attorney fees determination. These factors include whether or not the action was brought forward in good faith, the extent to which a party prevailed at trial, and the amounts and conditions of any offer of settlement. No court, however, has held that these factors provide an independent basis for an award of attorney fees. The factors rather serve as grounds upon which a court may base its evidentiary determination regarding whether a specific claim or defense is frivolous, groundless, or vexatious, and regarding the appropriate amount of fees attributable to that claim or defense. The Applicants fail to demonstrate that any of the State's or Northern's claims were frivolous, groundless, or vexatious, or that any attorney fees are attributable to such claims. Rather, the Applicants simply provide blanket accusations of misconduct. Such accusations are an inappropriate basis for an award of attorney fees. C. The Applicants' Allegations Misrepresent The Parties' Pre -Trial Conduct The Applicants' general allegations of vexatious conduct are also insufficient to support an award of attorney fees because the allegations are factually inaccurate. The Applicants' allegations misrepresent the content of the State's deposition testimony, mischaracterize the parties' discussions regarding factual stipulations, mischaracterize as "vexatious" the State's and Northem's motions for summary judgment and motions in limine, misrepresent the content and timing of the parties' evidentiary discussions, and mischaracterize the parties' discussions concerning a potential settlement and possible continuance. 1. The State did not refuse to stipulate to uncontested facts. Applicants claim they are entitled to an award of attorney fees for the asserted reason that the State refused to stipulate to facts to which it had previously conceded. 7