Berra v. Springer
| Decision Date | 19 August 2010 |
| Docket Number | No. 06CV8182,No. 08CA2503,08CA2503,06CV8182 |
| Parties | Cathy Berra, Plaintiff-Appellee, v. Springer and Steinberg, P.C., Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Ventola & Staggs, P.C., Samuel M. Ventola, Denver, Colorado, for PlaintiffAppellee
Springer and Steinberg, P.C., Michael P. Zwiebel, Denver, Colorado, for Defendant-Appellant
City and County of Denver District Court
JUDGMENT AFFIRMED
Opinion by JUDGE DAILEY Roy and Richman, JJ., concur
Opinion Modified and Petition for Rehearing DENIED OPINION is modified as follows:
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In this attorney fees dispute, defendants, Springer and Steinberg, P.C., and Jeffrey A. Springer (collectively S&S), appeal the trial court's judgment refunding to plaintiff, Cathy Berra, a portion of a previously paid contingent fee. We affirm.
I. Background
After being injured in an automobile accident with George Wilkinson, Berra hired an attorney on a contingent fee basis to represent her in a civil action against Wilkinson. In 1998, Berra obtained a judgment against Wilkinson in the principal amount of $500,000, with interest accruing at a rate of twelve percent compounded annually. Berra's attorney duly recorded a judgment lien on Wilkinson's real property in Pitkin County.
The attorney informed Berra that collection on the judgment would be "very challenging" due to Wilkinson's recalcitrant attitude and his "reputation for delay." Following several unsuccessful attempts to enforce the judgment, the attorney withdrew as Berra's counsel but filed an attorney's lien against any recovery Berra might have on the Wilkinson judgment.
In 1999, Berra requested that S&S represent her in collecting the judgment and contesting the attorney's lien. S&S sent Berra a proposed contingent fee agreement. Berra, who had worked as a senior legal assistant in a law office for a number of years, consulted with independent counsel regarding the fee agreement, and, after negotiating the contingency percentage down to thirty percent, accepted the agreement.
S&S's collection efforts were, for a time, also unsuccessful. When, in 2004, Berra's judgment lien was about to expire, S&S attempted, unsuccessfully, to revive it, and had to file a new judgment lien. As a result, Berra lost her earlier lien priority. 1
In 2005, Wilkinson was diagnosed with a fatal illness and began negotiating the sale of his property to Pitkin County. When Wilkinson's attorneys advised the title company not to honor Berra's judgment lien, S&S filed several emergency motions and, after a contested hearing, obtained a court order requiring the title company to honor Berra's lien. The property eventually sold for anamount large enough to satisfy Berra's judgment in full. In late 2005, Berra received a grand total of $1,177, 500.22,
Opinion is modified to read:
In this attorney fees dispute, defendant, Springer and Steinberg, P.C. (S&S), appeals the trial court's judgment refunding to plaintiff, Cathy Berra, a portion of a previously paid contingent fee. We affirm.
I. Background
After being injured in an automobile accident with George Wilkinson, Berra hired an attorney on a contingent fee basis to represent her in a civil action against Wilkinson. In 1998, Berra obtained a judgment against Wilkinson in the principal amount of $500,000, with interest accruing at a rate of twelve percent compounded annually. Berra's attorney duly recorded a judgment lien on Wilkinson's real property in Pitkin County.
The attorney informed Berra that collection on the judgment would be "very challenging" due to Wilkinson's recalcitrant attitude and his "reputation for delay." Following several unsuccessful attempts to enforce the judgment, the attorney withdrew as Berra'scounsel but filed an attorney's lien against any recovery Berra might have on the Wilkinson judgment.
In 1999, Berra requested that S&S represent her in contesting the attorney's lien and collecting the judgment against Wilkinson. S&S sent Berra a proposed contingent fee agreement. Berra, who had worked as a senior legal assistant in a law office for a number of years, consulted with independent counsel regarding the fee agreement, and, after negotiating the contingency percentage down to thirty percent, accepted the agreement.
S & S successfully settled the attorney's lien claim for $60,000 but its collection efforts were, for a time, unsuccessful. When, in 2004, Berra's judgment lien was about to expire, S&S attempted, unsuccessfully, to revive it, and had to file a new judgment lien. As a result, Berra lost her earlier lien priority. 2
In 2005, Wilkinson was diagnosed with a fatal illness andbegan negotiating the sale of his property to Pitkin County. When Wilkinson's attorneys advised the title company not to honor Berra's judgment lien, S&S filed several emergency motions and, after a contested hearing, obtained a court order requiring the title company to honor Berra's lien. The property eventually sold for an amount large enough to satisfy Berra's judgment in full. In late 2005, Berra received a grand total of $1,177, 500.22,
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Each of these findings is supported by the record. At trial, Berra's expert testified that, even in light of Wilkinson's peculiarities, this was "a simple civil procedure matter." The same expert opined that and that Berra's judgment was satisfied "not by virtue of the work that the lawyers did" but "because [Wilkinson] developed cancer and decided he had to sell the property for his own personal reasons."
The evidence and the court's findings support the conclusion that the contingent fee agreement here was unenforceable: despite S&S's arguable failure to preserve the priority of Berra's original judgment lien, the risk to Berra and S&S of non-recovery was notsubstantial given the actual value of Wilkinson's real property; the agreed-upon fee percentage was not within the range commonly charged by other lawyers in similar representations; and the size and, indeed, fact of Berra's recovery ultimately had little to do with S&S's efforts. See, e.g., Jacobsen, 555 F. Supp. 2d at 84. Under these circumstances, the trial court correctly concluded that the fee S&S charged Berra was unreasonable and excessive. See Restatement of Lawyering § 35 cmt. c ("large fees unearned by either effort or a significant period of risk are unreasonable").
Finally, as to the amount of fees found by the trial court to be due S&S, we perceive no abuse of discretion in the court's determination based on its evaluation of Colo. RPC 1.5(a) factors.
Accordingly, the judgment is affirmed.
Opinion is modified to read:
Each of these findings is supported by the record. At trial, Berra's expert testified that, even in light of Wilkinson's peculiarities, this was "a simple civil procedure matter." The same expert opined that and that Berra'sjudgment was satisfied "not by virtue of the work that the lawyers did" but "because [Wilkinson] developed cancer and decided he had to sell the property for his own personal reasons."3
This evidence and the court's findings support the conclusion that the contingent fee agreement here was unenforceable: although S & S had settled the attorney's lien claim, the main issue was the collection of the judgment against Wilkinson; the risk to Berra and S&S of non-recovery against Wilkinson was not substantial given the actual value of Wilkinson's real property; the agreed-upon fee percentage was not within the range commonly charged by other lawyers in similar representations; and the size and, indeed, fact of Berra's recovery ultimately had little to do with S&S's efforts. See, e.g., Jacobsen, 555 F. Supp. 2d at 84. Under these circumstances, the trial court correctly concluded that the fee S&S charged Berra was unreasonable and excessive. See Restatement of Lawyering § 35 cmt. c ("large fees unearned by either effort or a significant period of risk are unreasonable").
Finally, as to the amount of fees found by the trial court to be due S&S, we perceive no abuse of discretion in the court's determination based on its evaluation of Colo. RPC 1.5(a) factors.
Accordingly, the judgment is affirmed.
In this attorney fees dispute, defendant, Springer and Steinberg, P.C. (S&S), appeals the trial court's judgment refunding to plaintiff, Cathy Berra, a portion of a previously paid contingent fee. We affirm.
After being injured in an automobile accident with George Wilkinson, Berra hired an attorney on a contingent fee basis to represent her in a civil action against Wilkinson. In 1998, Berra obtained a judgment against Wilkinson in the principal amount of $500,000, with interest accruing at a rate of twelve percent compounded annually. Berra's attorney duly recorded a judgment lien on Wilkinson's real property in Pitkin County.
The attorney informed Berra that collection on the judgment would be "very challenging" due to Wilkinson's recalcitrant attitude and his "reputation for delay." Following several unsuccessful attempts to enforce the judgment, the attorney withdrew as Berra's counsel but filed an attorney's lien against any recovery Berra might have on the Wilkinson judgment.
In 1999, Berra requested that S&S represent her in contesting the attorney's lien and collecting the judgment against Wilkinson.
S&S sent Berra a proposed contingent fee agreement. Berra, who had worked as a senior legal assistant in a law office for a number of years, consulted with independent counsel regarding the fee agreement, and, after negotiating the contingency percentage down to thirty percent, accepted the agreement.
S & S successfully settled the attorney's lien...
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