North American Company for Life and Health Insurance v. Kinard et al

Filing 131

ORDER denying 130 Emergency Motion for Ex Parte Stay. By Judge Philip A. Brimmer on 4/9/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-01960-PAB-KMT
LU CELIA KINARD,
Plaintiff,
v.
CYNTHIA ROTHROCK KINARD, individually and
as Administratrix of the Estate of Walter A. Kinard,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Emergency Motion for Ex Parte Stay
[Docket No. 130] filed by defendant’s former counsel, Rene’ P. Koller.
The parties filed a Notice of Settlement [Docket No. 118] on March 2, 2012. On
March 28, 2012, Ms. Koller filed a Notice of Claim and Attorney’s Lien (the “Notice”)
[Docket No. 125] pursuant to Colo. Rev. Stat. § 12-5-119. The Notice indicated that
Ms. Koller had an attorney’s fee lien in the amount of $36,322.23 against any proceeds
received by defendant in this case. On March 29, 2012, the parties filed a Stipulation
Regarding Settlement, Dismissal of Action, and Request for Disbursement of Funds in
the Registry of the Court [Docket No. 126]. Pursuant to the parties’ stipulation, the
Court ordered on March 30, 2012 [Docket No. 128], inter alia, that $352,394.72, plus
accrued interest, less the Registry fee assessment as of the date of disbursement, be
disbursed from the Registry of the Court to defendant within ten days and that the case
be immediately closed.

Ms. Koller filed the present motion on April 5, 2012 requesting that the Court
“issue a temporary ex parte Order of Stay to the Court Clerk on a portion of the Funds
to be disbursed to Cynthia Kinard, in the amount of $72,970.00, pending an allowance
of adequate time in which to consult with the attorney for Kinard and to file her
mandatory supporting Affidavit of Attorney Fees and for an opportunity for briefing
and/or hearing[.]” Docket No. 130 at 3.1 Ms. Koller’s motion will be denied for failure to
comply with D.C.COLO.LCivR 7.1A, which provides that the “court will not consider any
motion . . . unless counsel for the moving party . . ., before filing the motion, has
conferred or made reasonable, good-faith efforts to confer with opposing counsel or a
pro se party to resolve the disputed matter.” Ms. Koller represents that, because she
did not learn of the Court’s March 30 order until April 2, 2012, she did not have
sufficient time to confer with defendant. She fails to explain, however, why three days
was insufficient time for her to comply with the conferral requirement.
Moreover, Ms. Koller does not explain why she did not file a motion seeking to
reduce her lien to judgment before the Court’s entry of its order of dismissal. Ms.
Koller’s March 28, 2012 “filing [of] a notice of an attorney’s lien merely place[d] others
on notice that the attorney claim[ed] an interest in the funds subject to the lien and [did]
not constitute the commencement of a ‘proper civil action’ for the purpose of enforcing
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The Court is not entirely clear what Ms. Koller means by “ex parte” in light of the
fact that she filed her motion without restriction. Defendant therefore has received
notice of her request.
The Court further notes that Ms. Koller’s representation of defendant terminated
in May 2011 and the Court ruled in September 2011 that defendant was entitled to the
lion’s share of the amount held in the Registry of the Court, a ruling about which Ms.
Koller was aware. It is therefore unclear why Ms. Koller requires any more time to
compile the billing records necessary to support her request.
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the lien.” Gold v. Duncan Ostrander & Dingess, P.C., 143 P.3d 1192, 1195 (Colo. App.
2006) (quoting Colo. Rev. Stat. § 12-5-119). Rather, Ms. Koller was empowered to
enforce the lien by “bringing an independent action or filing a motion to reduce the lien
to judgment in the civil action that gave rise to the lien claim.” Id. at 1193. By waiting
until after the Court’s order dismissing this action and providing for the disbursement of
funds to file her motion requesting enforcement of her lien upon such disbursement of
funds, Ms. Koller failed to put her request before the Court at a time when it could be
considered when disbursements were being determined. While she is entitled to seek
enforcement of that lien in this Court after disbursement of the funds, see Davis v.
Kutak Rock, LLP, No. 09-cv-02768-REB-MJW, 2012 WL 975836, at *2 (D. Colo. March
22, 2012), she fails to explain how the aforementioned circumstances justify an
“emergency stay” of the Court’s final order.2
For the foregoing reasons, it is
ORDERED that the Emergency Motion for Ex Parte Stay [Docket No. 130] is
DENIED.

2

As noted above, her former client, who has notice of the lien, will receive a
disbursement far exceeding the amount of either lien amount stated in Ms. Koller’s
filings. The Court retains jurisdiction over enforcement of that lien, see Davis, 2012 WL
975836, at *2, and will be able to address Ms. Koller’s motion for attorney’s fees
[Docket No. 130] once she files a certification of compliance with D.C.COLO.LCivR
7.1A and that motion has fully briefed.
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DATED April 9, 2012.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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