Opinion
April 15, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Evidence sustained findings that defendants were obligated for one half of the $3,500 fee requested by plaintiff's assignor for accounting services rendered in connection with sale of business property and that fee, based on number of hours expended, was reasonable.
Page 651
No appearance for plaintiff-appellee.
Ashen & Fogel, Marshall A. Fogel, Denver, for defendants-appellants.
RULAND, Judge.
Defendants, Jack and Fay Finkelstein, appeal from a judgment in the amount of $1,750 for accounting services. We affirm.
The record reflects that in October of 1969 defendants purchased land and a building in which a nursing home was operated and, at the same time, Ykutiel Kawa purchased the nursing home business. Ervin Belyeu was retained as a public accountant to perform bookkeeping services and prepare tax returns relative to the nursing home business as well as a partnership return for defendants. Then in 1971, defendants and Kawa determined to sell the land, building, and nursing home business as a package and to divide the expenses relative thereto and the profits derived therefrom. In this connection, the parties executed a written agreement which recited:
'Jack Finkelstein, Faye (sic) Finkelstein, Ykutiel Kawa, and Sonia Kawa all agree that the total funds received from the sale of the business and property will be equally distributed after all expenses, including taxes, are paid.'
In conjunction with the efforts to sell which consumed a period of 18 months, Belyeu performed various services including 'leg work' to put the sales transaction together. The sale was ultimately closed, and Belyeu testified that he expended time in excess of 270 hours in these endeavors. His regular billing rate was $25 per hour. However, Belyeu agreed with Kawa to charge only $3,500 for these services, thus reducing his hourly rate to approximately $13 per hour.
Kawa paid one-half of the billing but defendants refused to pay any amount thereon on the basis that they had not retained Belyeu to perform the services in question. Belyeu ultimately assigned the account to plaintiff, and plaintiff initiated the present action.
Following presentation of evidence in a trial to the court, the trial court made oral findings of fact and entered judgment for plaintiff.
We are advised in the brief filed on behalf of defendants that, prior to trial, a motion for summary judgment with supporting affidavit was filed and denied by the trial court, and defendants contend that the trial court's denial of that motion was error. However, neither the pleadings, the motion for summary judgment, supporting affidavit, nor the trial court's ruling thereon were included in defendants' designation of the record on appeal or in the record, and no request was made to the trial court to supplement the record. Moreover, while this court has authority to order a supplemental record when parts thereof are omitted from the record on appeal, C.A.R. 10(e), plaintiff has withdrawn its appearance in this court following transmission of the record, and under such circumstances, we decline to order that the record be supplemented. Hence, the pertinent documents not being before us, we will not consider this allegation of error.
Defendants also contend that the evidence adduced at trial was insufficient to establish that they contracted with Belyeu for services performed or that the charges for the services rendered were reasonable. We disagree.
It is not disputed that Belyeu performed and was paid for accounting work done for both defendants and Kawa from the time the land, building, and nursing home business were purchased. While defendants deny that they expressly engaged Belyeu to represent them in the sale, the testimony reflects that defendant Jack Finkelstein and Kawa conferred with Belyeu on various occasions relative to negotiations and consummation of the sale, and Belyeu testified that he performed numerous other services in connection therewith. Under these circumstances and in view of the written agreement to deduct all expenses relative to the sale, the evidence supports the trial court's finding that defendants were obligated for one-half of the fee.
Relative to the reasonableness of the fee charged, an accountant called by defendants questioned the number of hours Belyeu testified that he expended on the basis that he had never expended this number of hours in conjunction with any project he worked on. However, the accountant conceded, in effect, that if Belyeu expended that number of hours, the fee was reasonable. The trial court chose to accept Belyeu's testimony as to the hours expended. Hence, there being evidence to support the trial court's resolution of this issue, we may not disturb same on appeal. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453; Thiele v. State, 30 Colo.App. 491, 495 P.2d 558.
Judgment affirmed.
VAN CISE and STERNBERG, JJ., concur.