12-1364. Dwelling actions; contested issues; attorney fees and taxable costs; expert witness fees; definitions

A. In a contested dwelling action, the court or tribunal may award the prevailing party with respect to a contested issue reasonable attorney fees and taxable costs. A purchaser is deemed the prevailing party with respect to a contested issue if the relief obtained by the purchaser for that contested issue, exclusive of any fees and taxable costs, is more favorable than the repairs or replacements and offers made by the seller before the purchaser filed a dwelling action pursuant to section 12-1363. The seller is deemed the prevailing party with respect to a contested issue if the relief obtained by the purchaser for that contested issue, exclusive of any fees and taxable costs, is not more favorable than the repairs or replacements and offers made by the seller before the purchaser filed a dwelling action pursuant to section 12-1363.

B. An award of attorney fees pursuant to this section is limited to the amount of fees actually and reasonably incurred with respect to the contested issue for which the party has been deemed the prevailing party. In determining whether the fees actually incurred with respect to a contested issue are reasonable, the court or tribunal shall consider all of the following:

1. The repairs, replacements or offers made by the seller, if any, before the purchaser filed the dwelling action pursuant to section 12-1363.

2. The purchaser's response to the seller's repairs, replacements or offers made or proposed, if any, before the purchaser filed the dwelling action pursuant to section 12-1363.

3. The relation between the fees incurred over the duration of the dwelling action and the value of the relief obtained with respect to the contested issue.

4. The amount of fees incurred in responding to any unsuccessful motions, claims and defenses during the duration of the dwelling action.

C. This section does not alter, prohibit or restrict present or future contracts that may provide for attorney fees or expert witness fees.

D. Notwithstanding any other law, in a contested dwelling action that involves a single purchaser, the court or tribunal may award the prevailing party with respect to the contested issue reasonable expert witness fees. The determination of the prevailing party and the reasonableness of the expert witness fees shall be made using the same criteria used in determining the award of attorney fees pursuant to subsections A and B of this section. This subsection does not apply to a dwelling action that involves more than one purchaser or an action that is consolidated with any other dwelling action. The expert witness fees prescribed in this subsection are in addition to the taxable costs authorized by section 12-332.

E. For the purposes of this section:

1. " Contested issue" means an issue that relates to an alleged construction defect and that is contested by a purchaser following the conclusion of the repair and replacement procedures prescribed in section 12-1363.

2. " Purchaser" means any person or entity, including the current owner of the dwelling, who files a dwelling action during the time period described in section 12-552.