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Lohse v. Faulkner12/29/1992
t apply. We conclude that the statute permits a fee award, and we remand to permit the trial court to determine, in its statutory discretion, whether to award fees for services in that court.
We further conclude, however, in the exercise of our statutory discretion, that fees should not be awarded on appeal. Though plaintiffs invoked contract provisions in their pleadings, these related to fire prevention and suppression, and served essentially to define a negligence standard of reasonable care -- a standard that defendants' conduct fell below. Defendants won the decisive battles in this lawsuit wholly on tort ground, first on the issue of res ipsa loquitur and now on the issue of causation. The trial court, though wrong in concluding that fees could not be awarded, correctly defined this as essentially a tort case. For that reason, we decline to award fees on appeal.
Conclusion
The judgment of the trial court is affirmed on the merits, but we remand the issue of attorneys' fees.
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