dissenting.
I respectfully dissent.
The majority concludes that this court does not have jurisdiction to determine Pe-trino’s appeal regarding the assessment of attorney fees against her. It apparently determines that the May 12, 1988, order by the trial court was not a final order from which an appeal could be taken. The majority opinion is based upon the fact that that order did not identify against whom attorney fees could be assessed: the defendant or Petrino, or both. Presumably, the majority would have reached a different conclusion if the May 12, 1988, order had identified against whom fees were to be assessed and had left the amount of fees as the only remaining issue.
I disagree with the reasoning and conclusion of the majority and would hold that this court does have jurisdiction to review the assessment of attorney fees against Petrino.
I consider the timing and related circumstances of the events at issue here to be of significance. Here, the trial court’s ruling occurred only a few months after the decision in Baldwin v. Bright Mortgage Co., 757 P.2d 1072 (Colo.1988) that overruled prior decisions of this court which held that an appeal on the merits of the case cannot be initiated until the attorney fees issue is first resolved. See Martin Marietta v. Busto, 691 P.2d 345 (Colo.App.1984); Torrez v. Day, 725 P.2d 1184 (Colo.App.1986). Also, the “untimely” notice was not detected by this court’s internal screening process, and, in fact, as noted in the majority opinion, a judge of this court ruled in favor of Petrino on this issue.
Furthermore, plaintiff’s counsel waited approximately nine months before raising the issue. If plaintiff’s counsel had raised this issue within the first five months after notice of appeal was filed, Petrino could have remedied the problem because 45 days would not have lapsed from the date of the trial court’s decision on attorney fees.
Because courts exist primarily to afford a forum to settle disputes between parties on the merits, Pistora v. Rendon, 765 P.2d 1089 (Colo.App.1988), this court should apply a liberal approach in determining whether a litigant has met the requirements for filing an appeal. Most federal appellate courts have taken such an approach. For example, in Richerson v. Jones, 551 F.2d 918 (3d Cir.1977), the court held that a premature appeal taken from an order which is not final but which is followed by an order that is final may be regarded as an appeal from the final order in the absence of a showing of prejudice to the other party.
This approach has been particularly favored by the federal courts when attorney fees are involved. See Alcorn County v. U.S. Interstate Supplies, Inc., 731 F.2d 1160 (5th Cir.1984); Mesa Petroleum Co. v. Coniglio, 629 F.2d 1022 (5th Cir.1980). And, it does not appear that the United States Supreme Court opinion in Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988) has altered the approach of the federal courts as to this subject. See Federal Savings & Loan Insurance Corp. v. Quality Inns, Inc., 876 F.2d 353 (4th Cir.1989); Dowling v. City of Philadelphia, 855 F.2d 136 (3d Cir.1988).
Here, there was no showing of prejudice to the other party by the premature filing of the notice of appeal. Indeed, the other party was on notice of an appeal. See Widener v. District Court, 200 Colo. 398, 615 P.2d 33 (1980).
Thus, allowing the appeal would be consistent with Colorado’s public policy favoring resolution of disputes in courts of law, see Pistora v. Rendon, supra, and with the liberal approach taken in many federal appellate courts.
Furthermore, I view the majority opinion as not following prior Colorado court decisions that have accepted premature notices of appeal. See In re Marriage of Ross, 670 P.2d 26 (Colo.App.1983); Widener v. District Court, 200 Colo. 398, 615 P.2d 33 (1980).
*259Accordingly, I would hold that the premature filing of the notice of appeal was not fatal to the appeal, and hence, that this court has jurisdiction to consider the merits of Petrino’s appeal. See Ayala v. Colorado Department of Revenue, 43 Colo.App. 357, 603 P.2d 979 (Colo.App.1979).
I am concerned that the majority opinion will cause confusion and result in the dismissal of meritorious claims. Attorney fees awarded pursuant to § 13-17-102, C.R.S. (1987 RepLVol. 6A) are not awarded as part of the underlying case and therefore, typically, are not taxed as costs under C.R.C.P. 54(d) and C.R.C.P. 121 § 1-22. In Roa v. Miller, 784 P.2d 826 (Colo.App.1989), this court held that attorney fees which arise from a breach of contract action and are provided for in the contract itself are treated as costs under C.R.C.P. 54(d) and C.R.C.P. 121 § 1-22.
We are apparently developing different rules for different types of attorney fees cases. There are several state statutes providing attorney fees to prevailing parties in certain types of cases, i.e., landlord and tenant disputes, wage claims, etc. Given the confusion and complexity of the rules in this area, I am concerned that a hard line approach to determining when a “timely” notice of appeal is filed will unnecessarily deprive litigants of their day in court.
Furthermore, if this court were to consider the merits of Petrino’s appeal, I would hold that the assessment of attorney fees against her was in error. First, Petrino attempted to withdraw from the case, rather than to proceed with the counterclaim. Second, the court improperly determined that the counterclaim was frivolous and groundless without first providing a hearing.