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Stoller v. Totton8/22/2005
n the center lane prior to the accident. Stoller also knew the identity and location of that witness, Appellee's App. p. 2, 6, 10, 14, yet he did not depose the witness or attempt to contact him prior to the trial. Stoller had every opportunity to gather evidence to support his theory that Totton was also converging into the center lane at the time of the collision, but he failed to do so. Thus, we agree with the trial court that his affirmative defense was frivolous, unreasonable, and groundless.
We also note that Totton provided sufficient evidence of the costs associated with litigating against Stoller's defense. Appellant's App. p. 44-51. Totton's two attorneys submitted affidavits that their fees and expenses totaled $8,796.85, the precise amount that the trial court awarded to Totton. Thus, the amount of the award was not an abuse of discretion.
Because Stoller admitted to facts contrary to his comparative fault defense theory, but repeatedly refused to settle the issue of liability while continuing to advance a theory that he had no evidence to support until after several witnesses had testified at the trial, we find that the trial court properly assessed costs and fees against Stoller. We stress that this holding is strongly tied to the specific circumstances of this case. We are greatly concerned about the possible chilling effect it would have on settlement negotiations were this holding to be expanded. Where it is clear that liability lies with one party, we encourage settlement of that issue without fear of the imposition of sanctions. It is only in the clearest of cases where an affirmative defense is frivolous, unreasonable, or groundless, yet is maintained until liability is admitted during the trial that costs and attorney's fees will be appropriate sanctions.
The judgment of the trial court is affirmed.
RILEY, J., and MATHIAS, J., concur.
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