Feiger, Collison & Killmer v. Jones, 95SC150

• Decision Date: 12 November 1996
• Docket Number: No. 95SC150,95SC150
• Citation: 926 P.2d 1244
• Parties: FEIGER, COLLISON & KILLMER, a law partnership, Petitioner/Cross-Respondent, v. George JONES, Respondent/Cross-Petitioner.
• Court: Colorado Supreme Court

Page 1244

926 P.2d 1244

FEIGER, COLLISON & KILLMER, a law partnership Petitioner/Cross-Respondent, v. George JONES, Respondent/Cross-Petitioner.

No. 95SC150.

Supreme Court of Colorado En Banc.

Nov. 12, 1996.

Rehearing Denied Dec. 9, 1996.

Kennedy & Christopher, P.C., Elizabeth A. Starrs, Ronald H. Nemirow, John R. Mann, Denver, for Petitioner/Cross-Respondent.

Graham & James LLP, Rodney R. Patula, San Francisco, CA, Roberts & Zboyan, P.C., Ricardo M. Barrera, John B. Grow, III, Denver, Irvin M. Kent, Aurora, for Respondent/Cross-Petitioner.

Justice MULLARKEY delivered the Opinion of the Court.

We granted certiorari in Jones v. Feiger, Collison & Killmer, 903 P.2d 27 (Colo.App.1994), to review the court of appeals' reversal of the jury verdict in that case. Because we hold that the court of appeals cannot review an order of the trial court denying summary judgment, we reverse and remand the case to the court of appeals for return to the trial court with instructions to reinstate the jury verdict.

I.

George Jones (Jones), the respondent/cross-petitioner, was employed by a large investment company as an executive with the title of Senior Vice President until he was terminated by his employer in July of 1990. In October 1990, Jones retained the law firm of Feiger, Collison & Killmer (Feiger), the petitioner/cross-respondent, to represent him in an action against his former employer for wrongful discharge (the underlying action). Jones believed that the discharge was precipitated by his expressed concerns that certain instructions he was receiving from his superior in New York were illegal. The parties entered into a representation agreement which mixed elements of a contingent fee agreement and straight hourly compensation at a reduced rate.

With respect to settlement, the representation agreement provided in relevant part that:

5. The law firm is not to settle any of the client's claims without the consent of the client. The client agrees to consider seriously any recommendation of settlement that the law firm makes. The client agrees not to refuse unreasonably to settle his claims should such an opportunity arise. The client agrees not to accept any settlement which involves the waiver of the right to receive reasonable attorneys fees unless the firm agrees thereto.

13. The client agrees that the law firm shall have the right to withdraw from the case ... (a) upon the client's non-cooperation; or (b) for any other justifiable reason, including the client's failure to comply with any provisions of this agreement.... At the time of withdrawal ... the client will pay Feiger, Collison & Killmer an amount for fees and costs sufficient to equal 100% of their normal hourly rates as reflected in Exhibit A.

In his complaint in the underlying action, Jones sought damages in the amount of $5,256,952. Trial was set for October 28, 1991. In the summer of 1991, Jones and the employer intensified negotiations to settle their employment dispute. The negotiations were facilitated by a mediator. Initially, Jones and his former employer proposed settlement figures that were very far apart (Jones sought $5.2 million, the employer offered $375,000). Indeed, by the close of mediation, the employer had dropped its offer to $325,000. The course of negotiations continued and Jones counter-offered $1.475 million with the understanding, after consultation with Feiger, that if the difference was split down the middle, he was "bracketing" $900,000 as a negotiating figure. At one point, a Feiger attorney proposed $800,000 to the employer. Although his trial testimony was somewhat confusing on this crucial point, Jones claims that he did not authorize this proposal. When the employer acceded to that amount, Jones appeared to consider it a satisfactory amount in settlement of his claims although testimony at trial was conflicting on this point. However, the day following the offer, Jones rejected the $800,000 settlement amount. Jones claimed that his rejection was premised on the employer's terms and conditions. The Feiger attorneys testified, however, that, while initially elated with the amount, the following day Jones flatly rejected the $800,000 offer as too little regardless of the terms and conditions.

On August 23, 1991, Feiger sent Jones a letter formalizing its strong recommendation that he accept the $800,000 offer and characterizing that offer as a reasonable settlement amount. The letter further reminded Jones that, under the representation agreement, he was not to "refuse unreasonably to settle [his] claims should the opportunity arise" and that his refusal to consider the $800,000 was indeed "unreasonable." See supra p. 1246 (quoting the relevant portions of the settlement agreement). Jones then retained another attorney, without discharging Feiger, to assist him in negotiating the settlement and with his dealings with Feiger. Meanwhile, the employer's $800,000 offer lapsed.

Subsequently, with Feiger's assistance, Jones and the employer settled for $800,000 under an agreement providing for terms and conditions which differed from the previous offer. Nevertheless, Jones refused to pay Feiger as stipulated under the representation agreement. Instead, Jones initiated this action against Feiger, contending that by proposing the $800,000 amount, Feiger effectively capped the settlement amount, forcing Jones to ultimately accept the $800,000 figure. This formed the backbone for Jones's claim that Feiger breached its fiduciary duty to him and also breached the representation agreement.

Feiger counterclaimed for legal fees due to it under the representation agreement. Jones moved for partial summary judgment, arguing that the representation agreement was void for public policy reasons because it limited his control over settlement. The trial court denied the motion, ruling that there were material issues of fact, connected to the public policy issue, which precluded summary judgment. The case went to trial and the jury returned a verdict for Feiger, finding that Feiger did not breach the representation agreement nor breach its fiduciary duty to Jones. The jury awarded Feiger its fees as specified in the representation agreement.

On Jones's appeal after trial, the court of appeals reversed the trial court's denial of summary judgment, holding that because the denial was based on a point of law, it was a reviewable final order. The court of appeals then reached the merits of the public policy issue and found that the representation agreement violated public policy as a matter of law. Although the court of appeals vacated the judgment, it awarded Feiger payment in quantum meruit for services rendered to Jones and remanded to the trial court for a determination of the amount due to Feiger under that legal theory.

Feiger petitioned this court for certiorari review of the court of appeals' reversal, contending that (1) the court of appeals could not reverse a denial of a motion for summary judgment after trial, and (2) the court of appeals erred in holding that the representation agreement violated public policy. Jones cross-petitioned, arguing that the court of appeals could not award Feiger fees in quantum meruit once it had found that the representation agreement violated public policy. ¹

We now hold, as a threshold matter, that the court of appeals cannot entertain an appeal of the trial court's denial of summary judgment regardless of whether the denial was based on a point of law or fact. Because Jones failed to preserve his public policy argument for appeal, the court of appeals erred in addressing that issue. Thus, we do not reach the merits of the public policy issue nor Jones's cross-petition issue.

II.

A.

A motion for summary judgment is appropriate under C.R.C.P. 56(c) "only when the pleadings, affidavits, depositions, or admissions show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Civil Serv. Comm'n v. Pinder, 812 P.2d 645, 649 (Colo.1991); see also Graven v. Vail Assocs., 909 P.2d 514, 516 (Colo.1995) ("Summary judgment is a drastic remedy and is never warranted except on a clear showing that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.") (internal quotation marks and citations omitted). A denial of a motion for summary judgment is not a final determination on the merits and, therefore, is not an appealable interlocutory order. Manuel v. Fort Collins Newspapers, Inc., 631 P.2d 1114, 1116 (Colo.1981); see also Glennon Heights, Inc. v. Central Bank & Trust, 658 P.2d 872, 875 (Colo.1983) ("a denial of a motion for summary judgment is not an appealable order when it does not otherwise put an end to the litigation"). As stated by the United States Supreme Court, a denial of summary judgment "is strictly a pretrial order that decides only one thing--that the case should go to trial." Switzerland Cheese Ass'n v. E. Horne's Market, Inc., 385 U.S. 23, 25, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966) (further noting that precluding interlocutory appeals of such orders prevents piecemeal appeals).

In Manuel, we explained that review of a denial of a summary judgment motion is not available in the majority of jurisdictions even after a trial on the merits. 631 P.2d at 1116 (citing cases); see also R.F. Chase, Annotation, Reviewability of Orders Denying Motion for Summary Judgment, 15 A.L.R.3d 899 (1967 & Supp.1996). In joining the majority of jurisdictions precluding such review, we were persuaded by the reasoning expressed in an Arizona case, Navajo Freight Lines v. Liberty Mutual Insurance Co., 12 Ariz.App. 424, 471 P.2d 309 (1970), because "To hold otherwise could lead to the absurd result that one who has sustained his position after a full trial and a more complete presentation of the evidence might nevertheless be reversed on appeal because he had failed...