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Sweeney v. United Artists Theater Circuit3/10/2005
laintiff's economic and non-economic damages arose from the injuries he sustained on defendant's property as a licensee. Because plaintiff did not allege a claim under § 13-21-115, and because plaintiff could prove no set of facts that would entitle him to relief under a contract theory, the trial court properly concluded that plaintiff failed to state a claim upon which relief could be granted.
II.
Plaintiff next contends that the trial court erred when it awarded defendant attorney fees under § 13-17-201, C.R.S. 2004. We agree.
Section 13-17-201 requires attorney fees to be awarded whenever an entire tort action is dismissed prior to trial pursuant to a motion under C.R.C.P. 12(b), unless the motion is treated as one for summary judgment. Krystkowiak v. W.O. Brisben Cos., 90 P.3d 859 (Colo. 2004).
Plaintiff argues that his claim did not sound in tort, but was expressly founded upon an alleged breach of contract. We agree.
Here, we have concluded that plaintiff failed to state a proper claim under a contract theory. Nevertheless, plaintiff explicitly labeled his claim as a contract claim and alleged that the duties the contract allegedly imposed on defendant were identical to the duties imposed under the exclusive premises liability statutory tort theory. We have concluded that plaintiff's action should properly have been founded in tort under § 13-21-115. Plaintiff's claim was, nevertheless, framed as a contract claim, and it was the purported contract claim that was dismissed. Hence, § 13-17-201, which authorizes attorney fee awards when a tort claim is dismissed prior to trial is inapplicable.
Because we have concluded that § 13-17-201 is inapplicable to contract actions that are dismissed prior to trial, the attorney fees award must be reversed.
III.
Plaintiff also seeks reversal of the trial court's award of costs to defendant following the dismissal of his complaint. We conclude that while the trial court mistakenly referred to § 13-16-104, C.R.S. 2004, in awarding costs to defendant, the award was proper pursuant to either § 13-16-105 or § 13-16-107, C.R.S. 2004.
The award of attorney fees is reversed, and the judgment is affirmed in all other respects.
JUDGE LOEB and JUSTICE KIRSHBAUM concur.
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