Marriage of Crabtree, In re

• Decision Date: 28 November 1975
• Docket Number: No. 75--262,75--262
• Citation: 37 Colo.App. 149,546 P.2d 505
• Parties: In re the MARRIAGE OF Brigita CRABTREE, Petitioner, and Cecil I. Crabtree, Respondent-Appellee, Robert L. Gee, Appellant. . II
• Court: Colorado Court of Appeals

Page 505

546 P.2d 505

37 Colo.App. 149

In re the MARRIAGE OF Brigita CRABTREE, Petitioner,

and

Cecil I. Crabtree, Respondent-Appellee,

Robert L. Gee, Appellant.

No. 75--262.

Colorado Court of Appeals, Div. II.

Nov. 28, 1975.

Rehearing Denied Dec. 18, 1975.

Certiorari Granted Feb. 23, 1976.

Robert L. Gee, pro se.

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

PIERCE, Judge.

Appellant, Robert L. Gee, an attorney, represented appellee in this proceeding for dissolution of marriage. At the conclusion of the dissolution litigation, Gee filed a notice of attorney's lien, pursuant to § 12--5--119, C.R.S.1973, seeking compensation for his legal services from his client, Cecil Crabtree, in the amount of $7,368.75. Subsequently, Gee moved the trial court for an order and judgment for attorney's fees totalling $16,300. The trial judge denied the motion, apparently basing his decision on a perceived lack of jurisdiction to enforce the attorney's lien as part of the dissolution proceedings. Gee asks that we reverse the trial court and enter judgment in favor of him for the asserted amount of his fee. We affirm the trial court.

The sole issue on this appeal is whether Gee may enforce his lien by a motion submitted in the same action in which the services were performed, or whether he may only seek to enforce the lien by an independent civil proceeding.

Crabtree maintains that the only available remedy is an independent civil proceeding. The case authorities cited to us by both parties in their briefs are all consistent with this theory. In each case cited to us there was either the enforcement of the lien in an independent civil action, or a mere Declaration of the lien in the original proceeding. See Collins v. Thuringer, 92 Colo. 433, 21 P.2d 709; Dankwardt v. Kermode, 68 Colo. 225, 187 P. 519; and Clark v. O'Donnell, 68 Colo. 279, 187 P. 534.

Under a predecessor of the present attorney's lien statute, and prior to the merger of law and equity, and independent suit in equity was 'a proper civil action' for the enforcement of an attorney's lien. Fillmore v. Wells, 10 Colo. 228, 15 P. 343. After the merger of law and equity, the requirement that an independent civil action be brought to enforce an attorney's lien remained. See Gooding v. Lyon, 63 Colo. 328, 166 P. 564; and Lane v. Lyon, 57 Colo. 166, 140 P. 197.

The lien sought to be enforced here is a charging lien and is statutory in nature; no lien exists apart from the statute. See Donaldson, Hoffman & Goldstein v. Gaudio, 260 F.2d 333 (10th Cir.). The present statute perpetuated previous procedure. Section 12--5--119, C.R.S.1973, provides as follows:

'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 proper civil action.' (Emphasis supplied)

It is our view that the emphasized portions of the statute are indicative of the intent of the legislature to make the two actions separate.

While we realize that this requires the attorney to expend some additional expense in collecting his purported fee, the public policy of requiring a separate action is clear. If we were to allow the attorney to foreclose through the same proceeding in which he has represented his client, we would have within the same litigation two entirely...