concurring in part and dissenting in part.
I respectfully dissent in part from that part of the majority opinion reversing the award of attorney fees to plaintiff. Contrary to the holding of the majority, the rule in Mitten v. Weston, 44 Colo.App. 274, 615 P.2d 60 (1980) is inapposite to the undisputed dispositive facts underlying sellers’ claim here. Nor is SECTION 12-61-808(2)(d)(11) C.R.S. applicable.
In Mitten, the plaintiffs were buyers not sellers. Under the contract in Mitten, the court held that though the brokers were parties with the sellers, the brokers had no contractual obligation to buyers and were not parties to the transfer of the land as described in the contract. I have no problem with the rule of Mitten as applied to the facts therein.
The contract in question here created dual privities, one between sellers and buyers and one between sellers and brokers. The privity under the contract between sellers and buyers is undisputed.
The privity under the contract between sellers and brokers is specifically created by Paragraph 24 which, upon execution by the “party” sellers and the “party” brokers, specifically confirms paragraph 19 of the contract brokers duties of trust, loyalty and confidence to seller only.
Here, it is undisputed that the broker violated his fiduciary duty to the sellers under the contract. And, distinct from the contract in Mitten, the contract here in the portion to be completed by seller and listing company specifically referenced the paragraph setting out the brokers’ duties of trust, loyalty, and confidence to the sellers.
And again, in distinction to Mitten, the contract here contains a provision that: “Anything to the contrary notwithstanding, in the event of any litigation or arbitration arising out of this contract, the court shall award to the prevailing party all reasonable costs and expense, including attorney fees.” It cannot be denied that the litigation here arose out of this contract and that sellers were the prevailing parties.
Section 12-16-808(2)(d)(ll) merely holds that disclosure of seller/broker does not constitute a contract between the broker and the buyer. Again confusion of the issues here by the majority is demonstrated. This is not a suit by the buyers. It is a suit by the sellers against the buyers and the brokers. And thus, in common legal parlance, when litigation arises out of a contract the entities are parties. Hence, anything to the contrary notwithstanding, the court properly awarded attorney fees to the prevailing party in this litigation. See Paragraph 16(c) of the contract.
Although brokers were not parties buying or selling the land in question, they were parties as agents of the sellers and were obligated to them under the contract. Thus, when sellers brought litigation against the brokers for a claim arising out of brokers breach of duty, the provision concerning attorney fees was implicated and sellers were by operation of law the prevailing party in this litigation. Party as used herein is a word or art.
Brokers have not appealed that portion of the judgment concerning the breach of their fiduciary duty to sellers. Rather, they would leave the full burden of the judgment for attorney fees on the buyers, their co-defendants, who proceeded under their guidance.
Hence, under the contract read in its entirety and giving all parts thereof meaning, I would hold that the trial court did not err in assessing attorney fees against the brokers. Therefore, since I concur in the other portions of the majority opinion, I would affirm the judgment in its entirety.