we felt and continue to feel that it is a relevant factor to consider when determining the reasonableness of the attorneys’ fees under the particular circumstances of this case. See Roth v. Green, 466 F.3d 1179, 1194 (10th Cir.2006) (“‘[A]ll the courts of appeals which have addressed the issue have concluded that a nonprevailing [party’s] ability to pay is not a proper factor to consider in determining whether to award attorneys’ fees against [the non-prevailing party], but may be considered when determining the amount of the attorneys’ fees to be awarded against that party.’ ” (quoting Wolfe v. Perry, 412 F.3d 707, 723-24 (6th Cir.2005))) (emphasis in original), cert. denied, — U.S. -, 128 S.Ct. 69, 169 L.Ed.2d 18 (2007); Alizadeh v. Safeway Stores, 910 F.2d 234, 238 (5th Cir.1990) (<HOLDING>); Moosa v. Dolan Foster Enters., No. 95-03099,
holding that while the nonprevailing partys financial condition is not appropriate to consider in determining whether to award attorneys fees it is appropriate to consider when determining the amount of the attorneys fees holding that an attorneys fees award is not appealable until the amount of the award is set holding trial court had no authority to award attorneys fees when arbitrator had stated he would not award attorneys fees holding that where a state statute provides for the award of attorneys fees those fees can be considered as part of the amount in controversy for the purpose of determining federal diversity jurisdiction holding that attorneys fees are not recoverable for a nonprevailing party in a declaratory judgment action