JUSTICE RICE delivered the Opinion of the Court. We issued a writ of certiorari to review the court of appeals' judgment in Town of Alma v. AZCO Constr., Inc., 985 P.2d 56 (Colo.App. 1999). The Town of Alma, joined by several individual town residents, filed suit against AZCO Construction, Inc. ("AZCO"), asserting claims for breach of contract, breach of the implied warranty of sound workmanship, and negligence. The trial court dismissed Petitioners' negligence and breach of implied warranty of sound workmanship claims and a jury returned a verdict for AZCO on the breach of contract claim.
Since Jardel, Colorado courts and courts applying Colorado law have noted this distinction and applied the economic rule accordingly. See Town of Alma v. Azco Constr., Inc., 985 P.2d 56 (Colo.App. 1999) Terrones v. Tapia, 967 P.2d 216, 220 (Colo.App. 1998); Commercial Union Ins. Co. v. Roxborough Village Joint Venture, 944 F. Supp. 827, 832 (D.Colo. 1996); Cook v. Rockwell Int'l Corp., 778 F. Supp. 512, 516 (D.Colo. 1991). The Colorado Court of Appeals implicitly reinforced this interpretation of the economic loss rule in Grynberg v. Agri Tech, Inc., 985 P.2d 59 (Colo.App. 1999), where it prohibited plaintiffs from maintaining a negligence claim based on an alleged breach of a duty that arose only from the parties' contract.
Informed by the historical jurisprudential developments regarding negligence causes of action, in Town of Alma , the Colorado Supreme Court stated:SeeTown of Alma v. Azco Construction, Inc., 985 P.2d 56 (Colo. App. 1999) ; Grynberg v. Agri Tech, Inc., 985 P.2d 59, 63 (Colo. App. 1999) (holding that economic loss rule barred negligence claim for failure to receive particular return on cattle investment program); Terrones v. Tapia, 967 P.2d 216, 220 (Colo. App.1998) (holding that economic loss rule bars negligence claim for lost profits as result of restaurant owner's inability to use drive-through window); Chellsen v. Pena, 857 P.2d 472, 477 (Colo. App. 1992) (citing economic loss rule to bar action for negligent termination of employment); Scott Co. of Cal. v. MK–Ferguson Co., 832 P.2d 1000, 1005 (Colo. App.1991) (holding that rule bars subcontractor's negligence claim because no independent duty was breached); Centennial Square, Ltd. v. Resolution Tr. Co., 815 P.2d 1002, 1004 (Colo. App. 1991) (upholding dismissal of borrowers' negligence claim against lender because no independent duty was breached).
The BSA is therefore void. See Town of Alma v. AZCO Constr., Inc. , 985 P.2d 56, 58 (Colo. App. 1999) (" Section 29–1–110(1), C.R.S. [2017], prohibits municipalities from spending any funds in excess of amounts appropriated in the adopted budget, and renders any contract entered in violation of this section void."), aff'd , 10 P.3d 1256 (Colo. 2000).
Because no argument was asserted concerning the timing of the submission or the entity to whom the submission must be made, AZCO Construction is inapposite here. Nor does the opinion of a division of this court in that same case, 985 P.2d 56 (Colo.App.1999), dictate a different outcome. There, the division specifically noted that “[a] claim for attorney fees by a prevailing party, based on the parties' contractual provision, arises after the trial, when the prevailing party can be identified.”
Consequently, defendant's request for fees should have been addressed after the trial on the merits. See Town of Alma v. Azco Constr., Inc., 985 P.2d 56 (Colo.App. 1999) (claim for attorney fees by prevailing party, based on contractual provision, arises after trial, when prevailing party can be identified), aff'd, 10 P.3d 1256 (Colo. 2000). Based on our review of the record, we are satisfied that defendant adequately preserved its right to seek attorney fees pursuant to the provision in the sales contract.
In the latter case, it is within the sound discretion of the trial court to defer consideration of the claim for fees, and the amount of such fees, until after the merits of the case are decided. Ferrell v. Glenwood Brokers, Ltd., 848 P.2d 936 (Colo. 1993); see also Town of Alma v. Azco Construction, Inc., 985 P.2d 56 (Colo.App. 1999) (claim for attorney fees by prevailing party, based on contractual provision, arises after trial, when prevailing party can be identified), aff'd, 10 P.3d 1256 (Colo. 2000). Here, defendants concede that "plaintiff's entitlement to attorneys fees, if any, did depend on a contractual agreement to shift fees to a prevailing party."
To permit both claims to stand would allow the distinctions between tort law and contract law to become so blurred as to render ineffective the parties' attempts, through contract, to determine for themselves their respective duties and obligations in a relationship. See Terrones v. Tapia, 967 P.2d 216 (Colo.App. 1998) (because parties entering into a contract are able to shape its terms and restrict the available remedies as they please, the duty owed is contractual); Centennial Square, Ltd. v. Resolution Trust Co., 815 P.2d 1002 (Colo.App. 1991) (dismissal of tort claims proper where duties alleged to be tortiously breached were created by contractual relationship); Jardel Enterprises, Inc. v. Triconsultants, Inc., 770 P.2d 1301 (Colo.App. 1988) (as a general rule, no cause of action lies in tort for the negligent breach of a contractual duty); cf. Town of Alma v. Azco Construction, Inc., 985 P.2d 56 (Colo.App. Nos. 97CA1620 97CA2019, February 18, 1999) (under economic loss rule, the nonbreaching party to a contract does not have a negligence cause of action if the only damages asserted for the breach of contract are for economic loss); Graphic Technologies, Inc. v. Pitney Bowes Inc., 998 F. Supp. 1174 (D. Kan. 1998) (although party may not base tort claim on contractually created duty, tort claim is recognized if independent duty exists). Lembke Plumbing Heating v. Hayutin, 148 Colo. 334, 366 P.2d 673 (1961); Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313 (Colo.