concurring-in-part-and-dissenting-in-part">Judge TURSI

concurring in part and dissenting in part.

I concur with the majority that a directed verdict was mandated because damages were not proven, but I disagree with that part of the majority opinion holding that plaintiff's claim was groundless in part even though evidence to support it was presented at trial but rejected because of the unartful method in which it was proffered. The majority confuses credibility with admissibility.

Here, the trial court based its award of attorney fees against the appellants because of their “poor judgment in the method pursued to prove damages.” Although the trial court properly found that the proffered testimony was inadmissible hearsay under the Colorado Rules of Evidence, it does not follow that the evidence was not credible. In fact, one of the affidavits referred in part to evidence admitted in a companion case and two other affidavits containing factual averments which, if properly presented, would have supported plaintiff’s claim.

Section 13-17-101, et seq., C.R.S. (1986 Repl.Vol. 6A) reflects the General Assembly’s intent to debar the bringing and pursuing of claims which are substantially frivolous, substantially groundless, or sub*836stantially vexatious. However, nothing in the statute makes an otherwise supportable claim groundless merely because counsel erred in the manner in which he proffered credible evidence of supporting facts.

Further, Western United Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo.1984), relied upon by the majority, explicates what the court meant by “credible evidence at trial.” It states, “This test assumes that the proponent has a valid legal theory but can offer little or nothing in the way of evidence to support the claim or defense.” Additionally, the court stated that attorney fees should be denied when there is “no evidence (1) that a party seeks to harass, embarrass, or abuse another party or (2) that the action is unfounded, meritless, frivolous, or vexatious....”

Therefore, inasmuch as credible evidence was extant and offered, albeit in an improper form, I would reverse and deny the award of attorney fees.

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