Opinion
Feb. 21, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Dorothy A. Taylor, pro se.
Robert E. Holland, H. A. Nikkel, Denver, for defendants-appellees.
COYTE, Judge.
This case involves a dispute over the amount of attorney fees to which an attorney was entitled for successfully recovering funds which the client had lost in financial dealings. Plaintiff Dorothy A. Taylor retained attorney Holland to represent plaintiffs in pursuing their claims against a bonding company and a bank. He filed suit against the bonding company and, on motion for summary judgment, recovered a judgment for $8,520 plus accrued interest of $1,360. The bonding company paid the judgment with two checks made payable to plaintiffs and their attorney. After these checks were endorsed the attorney deposited them in a bank, retained 25% Of the principal amount collected as his fee, and transmitted the balance to Dorothy A. Taylor by certified mail. In the letter of transmittal, he advised her that he had charged a fee of 25% Of only the principal amount collected.
The suit against the bank proceeded to trial, but, after plaintiffs had presented their evidence, the trial court dismissed the case on failure of proof of damages. Plaintiffs then appealed to the Colorado Supreme Court, which reversed the decision of the trial court. Taylor v. Colorado State Bank, 165 Colo. 576, 440 P.2d 772. On retrial, judgment was entered for plaintiffs in the amount of $4,372.68. The bank deposited the full amount with the clerk of the district court and the judgment was satisfied.
Attorney Holland had secured the services of attorney H. A. Nikkel to assist him with the representation of plaintiffs in the bank case and agreed to pay him one-half of the fee received by him (Holland). The attorneys then filed an attorney's lien in accordance with C.R.S.1963, 12--1--10, against the funds on deposit. They later authorized the clerk to pay $3,016.68 to plaintiffs, leaving a balance of $1,356 subject to the attorney's lien on deposit with the clerk's office.
The question as to the validity of the attorney's lien was set for trial to the court which, after hearing the evidence of the lien claimants, recessed the case until a later date. Upon resumption of the hearing, the trial court advised the parties that it had determined that it had authority to determine only whether the attorneys had filed a valid and enforceable lien. The parties then requested the court to proceed to a determination as to the validity of the lien, and, if valid, to determine the amount due thereunder. This was done, and, at the conclusion of the hearing, the court ordered that $1,025.90 be paid to attorney Holland and the sum of $330.10 be paid to plaintiffs. Plaintiffs on appeal maintain that they had an agreement with attorney Holland to represent them for 20% Of the amount collected if the claim went to trial, but that if Mrs. Taylor's case did not go to trial he was to receive $250 as a total fee. We affirm the judgment of the trial court.
When attorney Holland received the funds from the bonding company, he obtained a certified check and forwarded it to plaintiff by certified mail with a cover letter which stated:
'. . . I advised you that at the time this action was commenced that our charge would only be 25% And you will note that the amount deducted is not 25% Of $9850, but only 25% Of the $8500.'
Mrs. Taylor received the letter and check and endorsed the check. She testified she had agreed to pay attorney Holland $250 on each claim if they were settled without trial or 20% Of the amount collected on any claim that went to trial. Holland testified that he had discussed with Mrs. Taylor a fee of 33 1/3% For all money collected and had subsequently agreed to accept 25%. He further testified that he had charged her only on the principal amount collected from the bonding company and had advised her that he would collect on the interest recovered from the bonding company when the bank suit was settled.
The trial judge found that Mrs. Taylor had read the letter upon its receipt by her, knew its contents, and accepted and endorsed the check without any written protest by her and that she was thereby bound. Likewise, the court found that attorney Holland was bound by his letter and was unable to collect further fees on the interest that he had recovered. The receipt and acceptance of the check by Mrs. Taylor under these circumstances constituted a settlement of the fee obligation in the bonding company case collection.
As to the collection against the bank, the court found that there had not been a meeting of the minds on the amount of fee to be charged and that, considering all of the circumstances of the case, a reasonable fee would be 25% Of the recovery made. The finding of the court that 25% Of the recovery would be a reasonable fee will not be disturbed on review where supported by competent evidence.
The testimony as to the contentions of the parties as to the amount of fees to be charged was directly contradictory, and from such testimony the court could properly conclude that there was not a meeting of the minds of the parties relative to fees. Therefore, in order to resolve the controversy, the court had to make a finding as to a reasonable fee under all of the circumstances. See Bryant v. Hand, 158 Colo. 56, 404 P.2d 521. The determination of this factual issue cannot be disturbed on review unless manifestly erroneous or unsupported by competent evidence. The trial court and not the appellate court is the trier of fact. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453. The evidence supports the finding by the court as to the reasonable fee to be paid for the services rendered to plaintiffs by their attorney on the bank collection case.
Judgment affirmed.
ENOCH and SMITH, JJ., concur.