dissenting.
I respectfully dissent from the majority's opinion on two grounds. First, the majority erroncously holds that wrong-of-another damages are available to the festival even though there is no negligence claim (or any other theory of substantive liability) remaining in this case. The trial court dismissed the festival's negligence claim on summary judgment on the ground that the festival had produced no evidence that defendants had caused the festival's alleged damages, and the court of appeals affirmed that ruling. Before us, the festival maintains the untenable position that it was not required to produce any evidence of causation to withstand summary judgment. In my view, the majority's opinion discussing the hypothetical availability of wrong-of-another damages simply cannot resurrect the festival's negligence claim in this case. Because the festival has no substantive claim to which the wrong-of-another damages may attach, its effort to recover such damages must necessarily fail.
Second, even if the festival still possessed a substantive claim, its claim for wrong-of-another damages must be rejected. Under well-established precedent, such damages are available "only if the party seeking such attorney fees was without fault as to the underlying action." Brochner v. W. Ins. Co., 724 P.2d 1293, 1300 (Colo.1986). Because the festival was plainly "[at] fault" in the underlying action-indeed, it was ordered to pay close to $100,000 in water and wastewater fees to the town-it is barred from recovering wrong-of-another damages. By jettisoning the "at fault" limitation, the majority not only ignores our well-established precedent, it broadly expands the cireumstances under which wrong-of-another damages are available in Colorado. Because such expansion is particularly unwarranted in a case in which no substantive claim for liability exists, I respectfully dissent from the majority's opinion.
I.
The Restatement defines the wrong-of-another doctrine as:
One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorney fees and other expenditures thereby suffered or incurred in the earlier action.
Restatement (Second) of Torts, § 914@Q) (1979) (emphasis added). As the majority properly recognizes, the wrong-of-another doctrine is not a free-standing tort claim; rather, it is an element of damages a party may claim once she has successfully established that the "[ Jother" committed a "tort" by thrusting her into litigation. Maj. op. at 1071-72, 1074. Under the majority's own reasoning, the festival cannot recover wrong-of-another damages because no substantive claim remains in the case.
In its complaint against the defendants, the festival raised a number of substantive theories of lability, including negligence. The trial court dismissed all of the festival's claims on summary judgment. In analyzing whether its negligence claim could survive summary judgment, the trial court found that the festival had failed to produce any evidence that the defendants had caused the festival's alleged damages. The trial court reasoned that because the festival did in fact owe money to the town (albeit considerably less than what was originally assessed), there was no evidence that the defendants caused the festival's alleged damages. In other words, the festival would have been in the same position regardless of the defendants' actions.1
*1077The court of appeals expressly affirmed the trial court's summary judgment ruling as to causation. Rocky Mountain Festivals, Inc. v. Parsons Corp., No. 08CA849, slip op. at 16-19 (Colo.App. Mar. 19, 2009) (not selected for official publication). The court concluded that "[the festival provided the trial court with no facts to support its argument that it incurred damages beyond what it would have incurred if the [defendants] had advised the town that the festival owed only $95,700, as opposed to $1,662,470.98." Id. at 17 (emphasis added). In other words, the festival would have expended litigation costs even if defendants had arrived at the $95,700 figure, rather than the $1.6 million figure. The court of appeals reiterated its conclusion, noting that the trial court properly determined "that the festival failed to show that its rights were infringed, and that there was a reasonable basis for the damages [claimed]." Id. at 18. The court of appeals noted that the festival had argued that the simple fact that it was drawn into litigation with the town established damages. The court rejected this line of reasoning, noting that "[algain, this does not answer the question of how the festival suffered greater damages than it would have if the town had sought only $95,700." Id. Finally, the court noted the festival had argued that it was a matter of "common sense" and that "no intelligent person could reasonably dispute" that the expense associated with defending against a $1.6 million claim would be greater than the expense associated with defending a $95,700 claim. The court rejected this argument, noting that "[algain, the festival fails. to allege any facts to support its contentions, relying solely on unfounded assumptions." Id. at 19. The court concluded that summary judgment against the festival on its negligence claim was proper because there was no evidence that the defendants caused the festival's damages. Id.
The festival argues to us that it was not required to produce evidence of causation because it was not on notice that the defendants' summary judgment motion challenged its claim on that ground.2 It contends that it now stands ready to produce such evidence. I would find that the festival's offer of proof regarding causation comes far too late. Before the court of appeals, the festival argued that it was a matter of "common sense" that the defendants' actions caused it to incur damages; it neither pointed to evidence of causation, nor argued that it was precluded from doing so by the trial court. Furthermore, the festival was plainly on notice that causation was at issue on summary judgment; as the festival admits, the defendants argued in their summary judgment motion that "there is no causal connection between [the defendants'] alleged negligence and the [festival's] alleged injury. Stated differently, whether they were negligent or not, [the defendants] did not injure the [festival]." In my view, the court of appeals was correct to find that the festival's negligence claim was properly dismissed by the trial court on the ground that it failed to produce evidence of causation. Because the festival's negligence claim was properly dismissed, it can no longer recover wrong-of-another damages based on that claim.
The majority briefly addresses these issues at the very end of its opinion, finding that the court of appeals "noted that the festival had thus far failed to provide an accounting of its alleged damages or specify precisely what portion of the fees it incurred in the prior case were attributable to [the defendants'] alleged wrongdoing." Id. It concludes that the defendants' summary judgment motion "did not challenge the existence of such attorneys' fees or their ability to be calculated." Id. The majority's analysis, in my view, misses the mark. The trial court dismissed the negligence claim not because the festival failed to set forth its alleged damages with sufficient specificity as the majority assumes, but because it failed to bring forth any evidence that the defendants caused their injury. In sum, the festival failed to satisfy one of the required elements of a negligence elaim-namely, causation. *1078We should affirm the dismissal of the festival's negligence claim and hold that wrong-of-another damages are therefore unavailable.
Under the majority's opinion, the case will be remanded to the trial court, apparently for consideration of the viability of the festival's negligence claim. See, e.g., maj. op. at 1074 ("we pass no judgment on the viability or merits of the festival's negligence claim with regard to the elements of duty, breach of duty, or proximate cause"). The trial court, having dismissed the case on causation before (and having been affirmed by the court of appeals on that ground), will simply do so again. The majority's opinion on wrong-of-another damages will simply have no effect on this case. Nothing in the majority's consideration of wrong-of-another damages can resurrect the festival's negligence claim. Accordingly, I would affirm the court of appeals' decision on the ground that the festival has no negligence claim to which wrong-of-another damages could attach.
IL
While the court of appeals' discussion of wrong-of-another damages has no prece-dential effect, see C.A.R. 35(F),3 the majority's opinion on the issue today does. In my view, the majority wrongly departs from our pree-edent limiting wrong-of-another damages to cases where the plaintiff was not at fault in the underlying litigation.
In Brochner v. Western Insurance Co., we stated that wrong-of-another damages are appropriate "only if the party seeking such attorney fees was without fault as to the underlying action." 724 P.2d 1293, 1300 (Colo.1986) (emphasis added). The festival here was "[at] fault," at least in part, in the underlying litigation because it owed the town $95,700. The festival therefore cannot, under our clear precedent, recover wrong-of-another damages.
The majority attempts to distinguish Bro-chner by stating that there we were concerned about "the cause of the underlying dispute rather than the ultimate holding of liability." Brockner, 724 P.2d at 1300. The majority's observation is undoubtedly correct, but that observation in no way distinguishes Brochner from the case before us. There, a patient sued the hospital and the doctor based on allegedly negligent treatment. The hospital then attempted to recover, from the doctor, the litigation costs it expended in the patient's lawsuit. We held that the hospital could not recover the fees because it "was required to expend sums for attorney fees and costs in defending the [patient's] lawsuit, in part because of the hospital's independently negligent conduct, and not solely because of [the doctor's] negligence." Brochner, 724 P.2d at 1300. In other words, the hospital was involved in litigation in part because of the doctor's conduct, but not solely because of it. That is precisely the case here. The festival was involved in litigation with the town "in part because of [its] independently negligent conduct"-that is, its refusal to pay $95,700 in water and wastewater fees-"and not solely because of [the defendants'] negligence." To use the majority's own words, the costs incurred by the festival were in part due to its "own wrong," not solely because of the wrong of "another." Maj. op. at 1072. And that is precisely the situation in which Brockner stated that wrong-of-another damages are unavailable.
We have consistently limited recovery of wrong-of-another damages to cases where the plaintiff was not responsible for bringing the litigation about. In Brochner we cited Elijah v. Fender, 674 P.2d 946 (Colo.1984), where the plaintiffs sued their real estate broker for concealing his side negotiations with the other party to the real estate transaction. Because of the concealment, the plaintiffs were forced into litigation with a third party to quiet title to the land that was the subject of the transaction. We permitted the plaintiffs to recover their attorney fees from the broker stemming from the quiet title litigation with the third party. We stated that "[wlere it not for [the broker's wrongful] actions ..., the [plaintiffs] would not" have been involved in litigation with the third party. Id. at 951. See also id. (noting that the *1079broker's "actions were the very cause of the [plaintiffs'] defeat in [the action with the third party]"). Similarly, in another case cited by Brochner, International State Bank of Trinidad v. Trinidad Bean & Elevator Co., 79 Colo. 286, 287, 245 P. 489, 489 (1926), the plaintiff was "forced" into litigation with a third party over the ownership of goods that the plaintiff had entrusted to the defendant's care after the defendant had fraudulently stated that the third party had an ownership interest in the goods as well. Again, it was clear that the plaintiff was "forced" into the litigation by the wrongful act of the defendant; stated differently, the plaintiff did nothing to bring the litigation with the third party about.
While these cases do not flesh out the reasoning behind the "without fault" limitation, their rationale is implicit; unless the plaintiff was truly "required" to litigate with the third party to protect its interests put in jeopardy by the tort of another, attorney fees are not recoverable. See Restatement (See-ond) of Torts, § 914(2) (1979) (using the term "required"). Where the plaintiff was responsible for bringing the third-party litigation about herself, she was not "required" to litigate; to put it differently, she could have simply ceased her wrongful conduct. The "without fault" limitation simply recognizes the fact that litigation comes about through a myriad of factors, including the conduct of others and the conduct of the plaintiff herself. Instead of sorting through the multiple causal inputs that bring a particular litigation about, we in Colorado have (up to today) simply held that attorney fees are not recoverable under the wrong-of-another doctrine unless the litigation was caused solely by the defendant's tortious conduct. In my view, the majority wrongly jettisons this common sense and longstanding limitation on liability.
The cases upon which the majority relies do not justify this result. The first, Swartz v. Bianco Family Trust, 874 P.2d 430 (Colo.1994), involved the rather straightforward question of whether a plaintiff may litigate, in the same suit, the legal dispute caused by the other and the claim against the other for wrongfully causing that dispute. As applied to the facts of this case, the question would be whether the festival could, in the same action, litigate the fee dispute with the town and the claim against the defendants for wrongfully causing that dispute. The court of appeals determined that such a consolidated action was permissible. Id. at 484. But the case had nothing to do with whether the legal dispute had to come about through no fault of the plaintiff; in fact, the case reiterated the rule that wrong-of-another damages may be recoverable "if the wrongful acts of a third person required the claimant to engage in separate litigation to protect or preserve the claimant's rights." Id.
The majority goes even farther afield by relying on Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Hensley involved the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, which expressly permits the recovery of attorney fees by a "prevailing party" in a federal civil rights action. In that case, the Supreme Court held that the prevailing party who is only partially successful in civil rights litigation should be permitted to recover fees only on the portion of the case in which it succeeded, not the entire amount expended on the litigation as a whole. 461 U.S. at 486, 440, 108 S.Ct. 1988. The differences between the Hensley case and the case at bar are obvious and dispositive. Hensley involved an express statutory authorization for attorney fees in the civil rights context, in which "fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain." 461 U.S. at 445, 103 S.Ct. 1933 (Brennan, J., concurring in part and dissenting in part) (internal quotation marks and citation omitted). Here, by contrast, there is no such statutory purpose, or even a statute. Instead, we are interpreting a common law doctrine that has, again until today, been carefully limited to cases in which the plaintiff is "without fault." While the majority is correct that the festival's claim for attorney fees in this case could, under Hensley, be "conceptually" divided between the claims for water fees (which it eventually was ordered to pay) and the claims for wastewater fees (which it was not), maj. op. at 1073-74, 1075, there is simply no basis in Colorado law for doing so.
Finally, I note that this is an especially inappropriate case in which to expand the *1080wrong-of-another doctrine in Colorado. In this opinion, the majority is putting the damages "cart" before the liability "horse." And while the majority may understand that it is only discussing the damages portion of the case and leaving the liability portion untouched, see maj. op. at 1074 (noting that it "passfes] no judgment on the viability or merits of the festival's negligence claim"), its judgment will inevitably have an important impact on liability. That is because the generous damages formulation adopted by the majority today will encourage suits against experts and others who provide advice to decisionmakers, who in turn make decisions affecting third parties In my view, if the majority wishes to revisit the scope of the wrong-of-another doctrine in Colorado, it should do so in a case in which the defendant's tort liability has been firmly established, not through the backdoor of damage calculations.
TIL
For these reasons discussed above, I respectfully dissent from the majority's opinion.
I am authorized to say that Chief Justice MULLARKEY and Justice COATS join in this dissent.
. The trial court also found that, while the defendants owed a duty to the festival, they did not breach that duty, on the ground that they were correct in their determination that the festival owed the town money. While the festival appealed the trial court's determination that the defendants did not breach a duty, the defendants did not cross-appeal the determination that they owed the festival a duty in the first instance. The *1077court of appeals did not reach the duty or breach issues in its opinion.
. In addition to granting certiorari on the wrong-of-another issue discussed by the majority, we granted certiorari on the question of [whether Rocky Mountain Festivals was obligated, in responding to a motion for summary judgment, to prove up its damages even though the absence of damages was not one of the issues raised as a basis for the [summary judgment] motion."
. In addition, having determined that the festival's negligence claim was properly dismissed on summary judgment on the issue of causation, the court of appeals' discussion of wrong-of-another damages was unnecessary to its holding. Rocky Mountain Festivals, slip op. at 10-16.