specially concurring:
I concur in the majority opinion. I would also impose sanctions on the appellant pursuant to C.A.R. 38(d), which states: “If the appellate court shall determine that an appeal is frivolous, it may award just damages and single or double costs to the ap-pellee.” 1
In their answer brief, the appellees contend that the appeal is frivolous, groundless, and vexatious, and seek an award of additional costs and attorney fees.
My examination of the appellant’s briefs on appeal leads me to conclude that the appellees’ contentions are well grounded and that appellant's appeal is devoid of merit, lacks substantial justification, and is frivolous and groundless.
In Mission Denver Co. v. Pierson, 674 P.2d 363 (Colo.1984), we held that if an appellee requests a reviewing court to impose C.A.R. 38 sanctions in his opposition *1317brief, the appellant will have notice and an opportunity to respond, thereby providing him with due process. In his reply brief, appellant did not respond to appellees’ request for attorney fees and costs relating to the appeal, but merely reargued the propriety of the trial court’s order awarding attorney fees.
Section 13-17-102(6), 6A C.R.S. (1987), provides in pertinent part:
No party who is appearing without an attorney shall be assessed attorney fees unless the court finds that the party clearly knew or reasonably should have known that his action or defense, or any part thereof, was substantially frivolous, substantially groundless, or substantially vexatious....
Here, the trial court made such a finding and the majority opinion affirms the trial court’s order.
In my opinion, the appellant knew or should have known that his appeal was equally frivolous, groundless, and vexatious. As a result of this unjustified appeal, the appellees have suffered damages. An appropriate measure of that damage is the amount of expenditures for legal fees and expenses which they have incurred in defending their position subsequent to the trial court’s order. See In re Marriage of Trask, 40 Colo.App. 556, 580 P.2d 825 (1978).
Accordingly, I would remand to the district court for a determination of the amount of damages. The trial court should then enter judgment in favor of the appel-lees for such amount.
I am authorized to say that Justice ERICKSON joins me in this special concurrence.
. Section 13-17-102(1), 6A C.R.S. (1987), provides:
Subject to the provisions of this section, in any civil action of any nature commenced or appealed in any court of record in this state, the court may award, except as this article otherwise provides, as part of its judgment and in addition to any costs otherwise assessed, reasonable attorney fees.
(Emphasis added.)