concurring in part and dissenting in part:
I concur with the majority that the How-ards’ claim is not time-barred. I also agree that because Wood Bros, failed to submit any evidence that the Howards’ predecessors in interest had knowledge of the structural defect, we need not address whether, as a matter of law, the “prior owners’ knowledge” must be imputed to the How-ards.
I do not join part III of the majority opinion, however, because I believe that Wood Bros.’ second appeal of the statute of *937limitations issue was frivolous.1 The majority holds that the court of appeals erred in awarding attorney fees and costs because, inter alia, the “tacking” argument presented by Wood Bros, in Howard II was neither a “relitigation” of a settled issue nor “wholly lacking in precedential support.” Maj. op. at 936. The majority also finds that the second appeal was not “unreasonable” because the court of appeals in Howard 1 and the trial court upon remand found that the action was commenced on different dates, thereby creating an ambiguity in the law of the case. Id. at 936. In my view, Wood Bros.’ “tacking” argument is not supported by any evidence in the record, and the discrepancy in commencement dates is legally insignificant. Hence, I would affirm the court of appeals determination that Wood Bros.’ second appeal was frivolous.
The imposition of attorney fees and costs is justified where an appeal is found to be wholly lacking in credible evidentiary support, Western United Realty, Inc. v. Isaacs, 679 P.2d 1063, 1069 (Colo.1984); Lego v. Schmidt, 805 P.2d 1119, 1125 (Colo.App.1990), cert. denied, No. 90SC557 (Mar. 11, 1991), even if the legal theory upon which it rests has “some superficial merit.” Southeastern Colo. Water Conserv. District v. Cache Creek Mining Trust, 854 P.2d 167, 177 (Colo.1993); Western United Realty, 679 P.2d at 1069. To be successful, the “tacking” argument raised on appeal by Wood Bros, in Howard II would require a finding by the trial court that the Howards’ predecessor in interest knew of the defect in question, which knowledge could then be imputed to the Howards under that theory.
The trial court ruled on remand that “the evidence presented in this case and all inferences from that evidence most favorable to Wood Bros.” failed to support the allegation by Wood Bros, that the prior owners had knowledge of the defect in the property. “After a close review of the record,” the majority agrees that “no evidence [exists] to support Wood Bros.’ argument” as to the prior owners’ knowledge. Maj. op. at 932 n. 14. Such a finding negates the possibility that this “tacking” claim could have been meritorious on appeal and leads to the inevitable conclusion that Wood Bros.’ claim is “not supported by any credible evidence at trial.” Western United Realty, 679 P.2d at 1069.
The fact that a form of “tacking” argument has some “precedential support” in other jurisdictions does not immunize it from attack as a frivolous appeal. Maj. op. at 936. The bare assertion of a legal theory as the basis for an appeal does not justify relitigation of a settled question where no credible evidence to support the application of such a theory was ever presented at trial. To hold otherwise substantially undercuts the frivolous appeal rule in C.A.R. 38(d), because it permits parties to avoid sanctions by merely citing on appeal an improbable legal theory unsupported by the facts adduced at trial.
The majority also argues in a series of footnotes that because a discrepancy exists in the record as to the date upon which the Howards commenced their action, Wood Bros.’ second appeal of the statute of limitations issue could not be frivolous. Maj. op. at 928 n. 6, 929 n.. 8, 936 n. 19. It concedes, however, that the exact date of commencement “does not alter the result in the resolution of the matters before us_” Id. at 928 n. 6. The majority inexplicably concludes nevertheless that this date discrepancy “invalidat[ed] the very basis for the Howard I court’s determination as to which limitations statute should apply_” Id. at 929 n. 8.
*938As the majority correctly points out, the question of when the action against Wood Bros, was commenced is not an issue upon which we granted certiorari. Id. at 927 n. 5. Moreover, at no point has Wood Bros, raised the argument set forth in the majority opinion that the alleged discrepancy in the date of commencement created an ambiguity in the law of the case, thereby affording Wood Bros, an opportunity to relitigate the settled question of which statute of limitations applied. In fact, Wood Bros, has repeatedly asserted that the date of commencement was July 29, 1986, without providing any analysis as to the relevance of that date in deciding which statute of limitations governed the case. Its argument that the later statute of limitations (section 13-80-104) applied to the Howards’ claim was based on its contention that the claim arose after both the original and amended complaints were filed. Specifically, Wood Bros, argued that the Howards’ claim arose in 1988 when the Howards’ expert submitted a report to them documenting the underlying defects.2
Even if I were to follow the majority and ignore the fact that Wood Bros, never raised the alleged ambiguity in the commencement date as the basis for'its appeal, I believe that the majority misinterprets Howard I. The confusion of dates for commencement of this action arises because the Howards filed an original complaint on June 16, 1986, and an amended complaint on July 29, 1986, in their attempt to name the proper defendant. As the majority explains, there was some confusion as to the correct name of the defendant because of various changes in its corporate structure. Maj. op. at 927. In Howard I, after setting forth the relevant facts, the court of appeals found that the filing date of the How-ards’ action was June 16, 1986. It then stated that section 13-80-104 only applied to claims arising on or after July 1, 1986, “[hjence, it was inapplicable here.” Slip op. at 1. The trial court on remand found that while “the original action in this case was filed in June of 1986,” the date on which the amended complaint naming Wood Bros. Homes Inc. as defendant was filed on July 29, 1986.
Although the court of appeals in Howard I did not fully explain its reasoning, its reference to the June 16, 1986 date is nothing more than a common-sense observation that where an action is filed prior to the relevant date, the underlying claim also must logically have arisen prior to that date. There is no indication in the record, and it is highly implausible to assert, that the trial court intended, by its later finding that the action actually commenced on July 29, 1986, to reopen the settled issue of which statute of limitations applied. Such a technical conflict between the court of appeals’ opinion and the trial court’s order cannot amount to a source of “confusion” to counsel for Wood Bros, as to which statute of limitations applied. Maj. op. at 928 n. 6.
Finding that the case commenced either before or after July 1, 1986 has no legal significance to the question of which statute of limitations applies. The language of section 13-80-127 is unambiguous: “[a]ll actions ... shall be brought within two years after the claim for relief arises, and not thereafter_” § 13-80-127(l)(a) (emphasis added). As the majority correctly demonstrates, an action may be commenced years after the underlying claim arose. Maj. op. at 932-34. In this case, whether the Howards filed their action against Wood Bros, on June 16 or July 29, 1986 is only important for purposes of determining whether the applicable statute of limitations, once established, has expired.3 It cannot therefore be argued that the trial court’s finding as to the filing date undermined the settled law of the case, set forth in Howard I, as to which statute of limitations applied.
*939The majority attempts to bolster its argument by citing the reference in Howard II to “July 29, 1986” as the date when the action commenced. Maj.' op. at 929 n. 8. I first note, however, that earlier in the same opinion the court of appeals describes the action as commencing in June 1986. The use of both dates only reflects that an original complaint and an amended complaint were filed. More importantly, the content of the Howard II opinion is irrelevant to the question whether Wood Bros.’ second appeal was frivolous. The issue of whether an appeal is frivolous or groundless must be analyzed as of the time the appeal was made. Therefore, any statements by the court of appeals in Howard II as to the commencement date cannot, and should not, affect our decision as to whether Wood Bros, was justified in raising a previously-settled issue.
The record simply does not support the majority’s view that “it was the reincarnation of July 29, 1986 as the date the action was commenced which contributed to some confusion regarding the applicable statute of limitations in Howard II.” Maj. op. at 928 n. 6. Indeed, it is difficult to fathom how Wood Bros, could have been misled by the trial court into believing that section 13-80-104(l)(a) governed this case. This is especially true in light of Wood Bros.’ argument in Howard II that, under a “tacking” theory, the Howards’ claim in fact arose as far back as when the prior owners became aware of the defect.
For the foregoing reasons, I respectfully dissent from part III of the majority opinion.
. It should be noted at the outset that the court of appeals in Howard II imposed sanctions on Wood Bros, for relitigating the issue of whether section 13-80-104, and not section 13-80-127 as stated in Howard I, should govern the case. Wood Bros, argued in its opening brief to the court of appeals in Howard II that depending upon when the Howards’ cause of action was deemed to have accrued, section 13-80-104(a)(1) was the applicable statute. In its reply brief to the court of appeals, Wood Bros, went further to assert that "Section 13-80-104, C.R.S. (1987 Repl.Vol. 6A) is the controlling statute of limitations.” This clearly constitutes an appeal of the prior determination in Howard I.
. Wood Bros, argued, alternatively, that the Howards’ claim arose several years earlier, when the prior owners first became aware of possible defects.
. The trial court discussed the fact that the action commenced on July 29, 1986 only within the context of deciding whether the two-year limitation period under section 13-80-127, the applicable statute, barred the Howards’ claim.