Gee v. Crabtree

• Decision Date: 07 March 1977
• Docket Number: No. C--902,C--902
• Citation: 192 Colo. 550,560 P.2d 835
• Parties: Robert L. GEE, Petitioner-Appellant, v. Brigita CRABTREE, Petitioner, v. Cecil I. CRABTREE, Respondent-Appellee.
• Court: Colorado Supreme Court

Page 835

560 P.2d 835

192 Colo. 550

Robert L. GEE, Petitioner-Appellant, v. Brigita CRABTREE, Petitioner, v. Cecil I. CRABTREE, Respondent-Appellee.

No. C--902.

Supreme Court of Colorado, En Banc.

March 7, 1977.

Robert L. Gee in pro per.

Donald L. Brundage, P.C., Dennis H. Gunther, Westminster, for respondent-appellee.

ERICKSON, Justice.

We granted certiorari to review the Colorado statute on attorneys' liens. Section 12--5--119, C.R.S.1973. The court of appeals, by a divided vote, held that the only means by which an attorney can enforce the statutory charging lien is by an independent civil action. In Re Marriage of Crabtree, Colo.App., 546 P.2d 505 (1975). We disagree.

Robert L. Gee, an attorney, represented Cecil I. Crabtree in a proceeding for the dissolution of marriage. At the conclusion of the dissolution proceeding, Gee filed a notice of attorney's lien to obtain compensation for his legal services. Subsequently, Gee filed a motion to obtain an order and judgment for his attorney's fees. The trial judge denied the motion, basing his decision on the court's lack of jurisdiction to enforce an attorney's lien as part of the dissolution proceeding.

Section 12--5--119, C.R.S.1973 provides:

'All attorneys and counselors-at-law shall have a lien on any money, property, choses in action, or claims and demands in their hands, on any judgment they may have obtained or assisted in obtaining, in whole or in part, and on any and all claims and demands in suit for any fees or balance of fees due or to become due from any client. In the case of demands in suit and in the case of judgments obtained in whole or in part by any attorney, such attorney may file, with the clerk of the court wherein such cause is pending, notice of his claim as lienor, setting forth specifically the agreement of compensation between such attorney and his client, which notice, duly entered of record, shall be notice to all persons and to all parties, including the judgment creditor, to all persons in the case against whom a demand exists, and to all persons claiming by, through, or under any person having a demand in suit or having obtained a judgment that the attorney whose appearance is thus entered has a first lien on such demand in suit or on such judgment for the amount of his fees. Such notice of lien shall not be presented in any manner to the jury in the case in which the same is filed. Such lien may be enforced by the proper civil action.'

The statutory lien rights which are granted to an attorney are such that an independent action can be the basis for enforcing the lien, but it is also clear that it is proper to assert the lien in the action in which the attorney performed the services. Collins v. Thuringer, 92 Colo. 433, 21 P.2d 709 (1933); Dankwardt v. Kermode, 68 Colo. 225, 187 P. 519 (1920); Clark v. O'Donnell, 68 Colo. 279, 187 P. 534 (1920).

Some precedent which was created prior to the merger of law and equity...