The law is full of lessons that we all should have learned decades ago but that keep having to be taught because not everyone does. Today’s lesson: even contingent-fee lawyers should keep their time. But make sure to keep enough of it.

The Gellers sued for breach of contract and won summary judgment. They requested fees under 12-341.01 and the contract. Their attorney was on a 25% contingency, which would be about $175,000. They asked for that or, in the alternative, $300 per hour; their attorney hadn’t kept time records but thought he spent over 100 hours on the case.  The court awarded the contingent fee. Lesk appealed.

A contingent fee is enforced only to the extent that it is reasonable. The Gellers argued that the contract – which controls over the statute – provided for payment of all fees. The court says that that limits the court’s discretion but that the award is still for “reasonable” fees. The prevailing party need make only a prima facie showing of reasonableness but if the losing party can show that the requested fee is unreasonable then the court can reduce it.

The court concludes that the Gellers did not make a prima facie showing. “The prevailing way to show reasonableness” is with contemporaneous time records.  Apparently an after-the-fact affidavit might suffice but that from the Geller’s lawyer hurt: if $300/hr. is reasonable then $1700/hr. (the contingent fee divided by the 100 hours) isn’t.

The Gellers argued that they wouldn’t be whole if the court awarded less than the contingent fee they owe their lawyer. The court replies that they don’t owe it: “That argument ignores that even when an attorney and client have agreed to a contingency fee, the attorney has a duty to review the fee at the conclusion of the representation to ensure that it would still be reasonable.” We’re absolutely sure that their lawyer would have done that even without this prompting. Yes. Absolutely.

The Gellers did themselves no good by praying in their Complaint (as the court can’t resist pointing out in a footnote) for “reasonable attorneys fees” – almost undoubtedly boilerplate language that nobody thought about at the time. When you put boilerplate in your pleadings without thinking about it – or, as many lawyers do, without really knowing what it means or why its there – you shouldn’t complain about the result.

Six footnotes here (none of them necessary but at least most aren’t very long) and fifteen pages, which a good blue pencil would have reduced by half with marked increase in clarity.

(link to opinion)

We’ve noted before that the Court of Appeals has people that look at its jurisdiction. Sometimes they seem to miss things. But other times – as in this case – they look very closely.

This was a quiet-title case. Defendant won summary judgment and submitted an order and a motion for fees. The order did not contain Rule 54(b) language. The court signed it. The plaintiff appealed from it. Then the court granted defendant’s fees. Later it dismissed the appeal because Plaintiff hadn’t filed a supersedeas bond and also repeated its fee award. Plaintiff then appealed the original rulings, the order dismissing his appeal, and the repeat fee award.

The Defendant did not challenge appeal jurisdiction until the Court of Appeals asked the parties to brief it. The court dismisses the appeal.

The original appeal was premature since the judgment wasn’t final – no Rule 54(b) language and the fee motion was still pending. (If there is 54(b) language then you can appeal and the fee issue is treated as separate, though the court shouldn’t normally enter judgment until fees are decided.) A premature notice is a nullity when, as here, the trial court has more to rule on. The opinion says that since Craig our courts no longer recognize a premature notice simply because a truly final judgment was entered later.

The original judgment became appealable when the trial court ruled on the fee motion. That order “completed the resolution of all issues in the litigation.” Plaintiff filed his second appeal more than thirty days after the fee ruling, so he couldn’t appeal from the original judgment at all.

But what about the repeat fee award? The court holds that it was not an amended judgment. Citing cases from other jurisdictions, the court holds that when a subsequent judgment is “neither a material change of the earlier judgment nor a new exercise in discretion” the appeal time runs from the first judgment.

As a last resort the plaintiff argued equity but that is not an answer to jurisdiction.

A footnote points out that the trial court has no authority to strike a Notice of Appeal; this issue is moot since the appeal was no good anyway.

This is an interesting situation. The trial court should have held the substantive order until it ruled on fees. Not doing so created problems for everyone. Should Defendant have included 54(b) language in the original order? Not really, given the pendency of the fee issue, but she could have – though in retrospect here that would have preserved the appeal, not limited it. Plaintiff should have known that he needn’t appeal the original order (and of course he should have filed his bond) but filing the notice of appeal after the fee ruling, and not needing to file it after the repeat order, are things that even experienced counsel couldn’t be sure of before this opinion. Now you know why, in this sort of situation, some people file a notice every time the court acts on anything

(link to opinion)

This is a modified opinion on motion for rehearing. We blogged the original here. Amended opinions usually have changes or additions that seem fairly subtle – except to those who fought for or against the rehearing – and this one is no exception. The bottom line is the same but the court has come up with what somebody thinks is a better idea to support it.

There are, to no apparent purpose, a few small changes in wording here and there.

The major change is to the analysis of the collusion argument. Our original blog said this of it:

Employers also argued that the Damron was collusive because Colorado Casualty agreed to defend DBA when Employers refused to and that the agreement was therefore intended not to protect DBA from liability but merely to shift liability for the settlement from Colorado Casualty to Employers. The court ruled that an insurer can’t escape the consequences of denying its contractual obligation simply because another steps in, and that the agreement shifted the liability for settlement to where it should have been in the first place.

Now the court begins by saying that DBA assigned to Roman only its indemnity claim against the sub’s carrier – which  the A Tumbling-T Ranches case had held could be the subject of a Damron – not a claim for breach of an insured/insured duty. This primarily gives the court another reason to distinguish the Leaflet case, the handling of which was apparently thought a weakness in the original decision.

The court then inserts a new paragraph to affirm that a Damron does not create coverage that an insured did not purchase.

The rest of the opinion is essentially unchanged, though the new indemnity theory alters slightly the discussion of the matters to be considered on remand.

(link to opinion)