L & R Exploration Venture v. CCG, LLC

• Decision Date: 23 April 2015
• Docket Number: Court of Appeals No. 14CA0403
• Citation: 2015 COA 49,351 P.3d 569
• Parties: L & R EXPLORATION VENTURE; Loeb Partners Corporation, as agent for the participants in L & R Exploration Venture; Judith L. Chiara; Peter Dixon, as Executor of the Estate of W. Palmer Dixon; Margaret L. Kempner; Thomas L. Kempner; Jerome A. Manning, as Trustee of the Carl M. Loeb Trust f/b/o Ann L. Bronfman; John A. Levin, as Trustee of the Carl M. Loeb Trust f/b/o Ann L. Bronfman; Jerome A. Manning, as Trustee of the Carl M. Loeb Trust f/b/o Deborah L. Brice; John A. Levin, as Trustee of the Carl M. Loeb Trust f/b/o Judith L. Chiara; Jerome A. Manning, as Trustee of the Carl M. Loeb Trust f/b/o Judith L. Chiara; John A. Levin, as Trustee of the Carl M. Loeb Trust f/b/o Deborah L. Brice; Jerome A. Manning, as Trustee under the will of Frances L. Loeb f/b/o John L. Loeb, Jr., Estate of Henry A. Loeb; John A. Levin, as Trustee under the will of Frances L. Loeb f/b/o John L. Loeb, Jr., Estate of Henry A. Loeb; John L. Loeb, Jr., as Trustee of the Virginia Bloomgarden Trust; TROF, Inc., f/k/a Marshall Petroleum; Larry C. Serr, as Trustee of the Robineau Trusts; John S. Rodgers ; Columbia University Trust Administration, as Executor of the Estate of Daniel Silberberg; John S. Rodgers, as Trustee of the Audrey Holly Trust; Mal L. Barasch, as Trustee of the Audrey Holly Trust; John S. Rodgers, as Trustee of the Virginia Bloomgarden Trust; John L. Loeb, Jr., as Trustee of the Virginia Bloomgarden Trust; M. Wellman, as Trustee of the Mark J. Millard Trust; Frederick Lubcher, as Trustee of the Diana von Mueffling Trust and the William von Mueffling Trust; and Ann B. Lesk, as Trustee of the Diana von Mueffling Trust and the William von Mueffling Trust, Plaintiffs–Appellees, v. CCG, LLC; Gadeco, LLC ; Pricaspian Development Corporation ; and Celeste C. Grynberg, Intervenors–Appellants.
• Court: Colorado Court of Appeals

351 P.3d 569

2015 COA 49

L & R EXPLORATION VENTURE; Loeb Partners Corporation, as agent for the participants in L & R Exploration Venture; Judith L. Chiara; Peter Dixon, as Executor of the Estate of W. Palmer Dixon; Margaret L. Kempner; Thomas L. Kempner; Jerome A. Manning, as Trustee of the Carl M. Loeb Trust f/b/o Ann L. Bronfman; John A. Levin, as Trustee of the Carl M. Loeb Trust f/b/o Ann L. Bronfman; Jerome A. Manning, as Trustee of the Carl M. Loeb Trust f/b/o Deborah L. Brice; John A. Levin, as Trustee of the Carl M. Loeb Trust f/b/o Judith L. Chiara; Jerome A. Manning, as Trustee of the Carl M. Loeb Trust f/b/o Judith L. Chiara; John A. Levin, as Trustee of the Carl M. Loeb Trust f/b/o Deborah L. Brice; Jerome A. Manning, as Trustee under the will of Frances L. Loeb f/b/o John L. Loeb, Jr., Estate of Henry A. Loeb; John A. Levin, as Trustee under the will of Frances L. Loeb f/b/o John L. Loeb, Jr., Estate of Henry A. Loeb; John L. Loeb, Jr., as Trustee of the Virginia Bloomgarden Trust; TROF, Inc., f/k/a Marshall Petroleum; Larry C. Serr, as Trustee of the Robineau Trusts; John S. Rodgers ; Columbia University Trust Administration, as Executor of the Estate of Daniel Silberberg; John S. Rodgers, as Trustee of the Audrey Holly Trust; Mal L. Barasch, as Trustee of the Audrey Holly Trust; John S. Rodgers, as Trustee of the Virginia Bloomgarden Trust; John L. Loeb, Jr., as Trustee of the Virginia Bloomgarden Trust; M. Wellman, as Trustee of the Mark J. Millard Trust; Frederick Lubcher, as Trustee of the Diana von Mueffling Trust and the William von Mueffling Trust; and Ann B. Lesk, as Trustee of the Diana von Mueffling Trust and the William von Mueffling Trust, Plaintiffs–Appellees

v.CCG, LLC; Gadeco, LLC ; Pricaspian Development Corporation ; and Celeste C. Grynberg, Intervenors–Appellants.

Court of Appeals No. 14CA0403

Colorado Court of Appeals, Div. VI.

Announced April 23, 2015

Holland & Hart LLP, Jonathan S. Bender, Christina F. Gomez, Denver, Colorado; Simon Lesser PC, Leonard F. Lesser, New York, New York, for Plaintiffs–Appellees.

Appel, Lucas & Christensen, P.C., Garry R. Appel, Denver, Colorado, for Intervenors–Appellants.

Opinion

Opinion by JUDGE J. JONES

¶ 1 This is the second appeal related to a garnishment proceeding. In the first appeal, Intervenors¹ challenged the district court's order allowing garnishment of their bank accounts to satisfy an underlying judgment in favor of plaintiffs, L & R Exploration Venture (L & R) and its participants (collectively, the L & R plaintiffs). A division of this court affirmed that order, concluding, as now relevant, that (1) the district court did not err in determining that Intervenor CCG is the alter ego of the judgment debtor, Jack J. Grynberg; (2) the district court did not err in concluding that Mr. Grynberg and his alter egos had made voidable fraudulent transfers to Intervenors Gadeco, Pricaspian, and Mrs. Grynberg; and (3) the district court did not err in allowing the L & R plaintiffs to garnish the bank accounts of those Intervenors. L & R Exploration Venture v. CCG, LLC, (Colo. App. No. 13CA0563, 2014 WL 323754, Jan. 30, 2014) (not published pursuant to C.A.R. 35(f) ).

¶ 2 In this appeal, Intervenors CCG, Gadeco, Pricaspian, and Mrs. Grynberg challenge the district court's order awarding the L & R plaintiffs attorney fees and costs under C.R.C.P. 103 § 8(b)(5). That provision states that “[a]t any hearing upon a traverse, the court shall make such orders as to reasonable attorney fees, costs and expense of the parties to such hearing as are just.” We agree with Intervenors that the district court erred in awarding attorney fees and costs not incurred to prepare and file the traverses of the Intervenors' challenges to the garnishments or to subsequently prosecute the traverse proceeding. We hold that an award of attorney fees and costs under C.R.C.P. 103 § 8(b)(5) is limited to, if a traverse is successful, the attorney fees and costs incurred by the garnishor to prepare, file, and prosecute the traverse, or, if the traverse is unsuccessful, the attorney fees and costs incurred by the putative garnishee to defend against the traverse. We therefore vacate the order as to the amount of the attorney fees and costs to be awarded and remand for further proceedings on that issue. We reject Intervenors' other contentions, however, and therefore affirm the order in all other respects.

I. Background

¶ 3 This case has a long and tortured history, but only the following is relevant for present purposes.² Mr. Grynberg and the individual plaintiffs began their business relationships as participants in L & R, a joint venture, in 1960. Decades later, they had a falling out. After much procedural wrangling, the L & R plaintiffs obtained an award against Mr. Grynberg in arbitration. A New York state court subsequently confirmed that award, and ordered Mr. Grynberg to pay the unpaid portion of the award, $1,691,111.11, plus postjudgment interest. (The original award totaled $3,067,783.)

¶ 4 In June 2009, the L & R plaintiffs domesticated the judgment against Mr. Grynberg in Colorado pursuant to the Uniform Enforcement of Foreign Judgments Act, sections 13 –53–101 to –108, C.R.S. 2014. Mr. Grynberg contested the domestication of the judgment, but a district court rejected his arguments and a division of this court affirmed. L & R Exploration Venture v. Grynberg, 271 P.3d 530, 537 (Colo. App. 2011).

¶ 5 While the domestication appeal was pending in this court, the L & R plaintiffs began efforts to collect the unpaid portion of the judgment against Mr. Grynberg. They served a writ of garnishment on a bank with an account in the name of Grynberg Petroleum Company (GPC), but the account yielded only $3371.64.³ So, they conducted discovery to locate Mr. Grynberg's assets. Intervenors unsuccessfully sought to intervene to contest the L & R plaintiffs' discovery efforts.

¶ 6 Based on the fruits of their discovery efforts, the L & R plaintiffs served writs of garnishment on five financial institutions and Mr. Grynberg. Four garnishee banks answered that they held no funds belonging to Mr. Grynberg, and the fifth garnishee bank answered that the money it held for Mr. Grynberg was pledged as collateral. The L & R plaintiffs traversed the answers, alleging that Mr. Grynberg and his alter egos had made fraudulent transfers to Intervenors (the named owners of the bank accounts) to avoid paying the judgment.

¶ 7 Intervenors moved to intervene to claim ownership of the contested funds. The district court granted that motion and subsequently conducted a four-day evidentiary hearing on the traverses. See C.R.C.P. 103 § 8(b)(2). Following the hearing, the court entered the order which Intervenors challenged in the prior garnishment appeal.

¶ 8 The L & R plaintiffs then filed a motion for an award of attorney fees and costs under C.R.C.P. 103 § 8(b)(5), seeking, as relevant here, more than $1,000,000 in attorney fees and $175,000 in costs. Those attorney fees and costs included, in addition to those incurred in connection with the traverses, substantial fees and costs incurred in domesticating the judgment, defending the appeal of the domestication judgment, litigating a related Wyoming case,⁴ investigating Mr. Grynberg's assets, and garnishing the various bank accounts. Intervenors objected on several bases, including that the L & R plaintiffs sought recovery of attorney fees and costs that had not been incurred in connection with the traverses, had not provided information sufficient for the court to determine the reasonableness of the requested fees and costs, and were seeking recovery of some fees and costs that were clearly unreasonable. Intervenors requested a hearing on the motion. See C.R.C.P. 121 § 1–22(2)(c).

¶ 9 The court granted Intervenors' request for a hearing, limited to the reasonableness of the time spent on various tasks and the fees and costs charged for those tasks; the court disallowed any evidence “concerning the subject matter for which fees and costs are requested, as such was sufficiently covered in the briefs.” The court also ordered Intervenors to file a “chart listing separately each and every particular activity or event for which they contend either or both the amount of the fee charged or the time spent was not reasonable; an explanation as to why such is their position; and legal citations and references to attached documents which they[,] or any expert they retain, contend support their position.” Only those matters identified on the chart would be considered at the hearing.

¶ 10 Intervenors submitted a chart, the L & R plaintiffs submitted a responsive chart, and Intervenors submitted a reply chart. The parties then stipulated that the court could decide the issues based on the briefs, charts, and stipulated exhibits (including expert reports and deposition transcripts).

¶ 11 The district court subsequently issued a detailed written order awarding the L & R plaintiffs $824,092.80 in attorney fees and costs. In so ordering, the court disallowed approximately $420,000 in requested attorney fees. Of that amount, approximately $185,000 was billed by the L & R plaintiffs' New York attorney, who had assisted in the cases. The court disallowed $200,000 of fees billed by plaintiffs' Colorado attorneys. The remainder of the disallowed fees were for duplication of work and work billed at unnecessarily high rates. The court disallowed $71,000 in requested costs, primarily because the L & R plaintiffs had not shown that they were necessary or reasonable.

¶ 12 Intervenors filed a motion for reconsideration of the order awarding attorney fees and costs, which the district court summarily denied.

II. Discussion

¶ 13 On appeal, Intervenors contend that the district court erred by: (1) awarding attorney fees and costs not awardable under C.R.C.P. 103 § 8(b)(5); (2) shifting the burden of proof to them to show that the fees and costs sought by the L & R plaintiffs were unreasonable;...