Templeton v. Fehn et al

Filing 173

ORDER AWARDING ATTORNEY FEES AND COSTS FOR APPEAL Forest Templeton shall pay to Dale K. Hall $11,494 for attorney's fees and $48.37 in costs, by Judge Richard P. Matsch on 11/24/15. (ktera)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-00859-RPM
FORREST DARYL TEMPLETON,
Plaintiff,
v.
CATLIN SPECIALTY INSURANCE COMPANY and
DALE K. HALL,
Defendants.
____________________________________________________________________________
ORDER AWARDING ATTORNEY FEES AND COSTS FOR APPEAL
____________________________________________________________________________
Pursuant to the mandate from the United States Court of Appeals for the Tenth Circuit,
remanding this civil action for further proceedings on the duty to defend claim against Catlin
Specialty Insurance Company and for resolution of Mr. Hall’s request for costs and attorney fees
for defending the appeal, counsel for defendant Dale K. Hall filed a Motion for Award of Attorney
Fees and Costs on October 19, 2015. (Doc. 168). The plaintiff filed a motion to strike that
motion for failure to comply with the duty to confer imposed by D.C.Colo.LCivR 7.1(a) (Doc.
169), and a response in opposition to the motion. (Doc. 170).
Rule 7.1(a) is not applicable because the motion for fees is an extension of the Rule
12(b)(6) motion and is in compliance with the mandate.
The plaintiff argues in his response that the appellate court did not determine that Hall is
entitled to fees. That argument is negated by the reference to C.R.S. § 13-16-113 and 13-17201 in footnote 10 of the Order and Judgment. This court previously awarded Hall $3,301.10 for
costs and fees for obtaining dismissal, applying C.R.S. § 13-17-201. That statutory directive is
applicable to the appeal. The plaintiff’s argument of unconstitutionality is not supported by any
cited authority and is rejected.
The plaintiff has challenged the reasonableness of the fees requested. He asserts that

the times spent on the tasks identified are excessive considering the issue on appeal was the
sufficiency of the factual allegations concerning Mr. Hall in the amended complaint.
This court is compelled by controlling precedents to use the “lodestar” analysis in
determining the reasonableness of the charges made to Hall by his attorneys as set forth in the
Declaration of Attorney Jennifer Lynn Peters (Doc. 168-1) and the attached billing records of her
law firm.
The plaintiff contends that the drafting of the Hall brief should have required no more
than 25 hours rather than the 43.5 hours claimed and the rate should be $275/hr.
The only issue on appeal was whether Templeton’s amended complaint adequately
alleged the tort of negligent misrepresentation and the Court of Appeals held that the allegations
were insufficient to allege a business transaction, a required element of that tort under Colorado
law.
The Hall motion to dismiss included argument that the plaintiff failed to allege anything
more than that Hall was relaying information given to him by the attorneys representing the
company that employed Hall and the plaintiff. The motion was filed by Tamara A. Hoffbruhr
Seelman of Gordon & Rees, LLP. This court’s order of dismissal (Doc. 22) did not specify what
elements of the tort of negligent misrepresentation were missing. The Court of Appeals did
affirm on the ground that Hall’s statements were not for the guidance of Templeton in a
business transaction.
Hall’s trial counsel moved for her fees, asking for $3,296.00, reporting 2.50 hours to draft
the motion at a $300 per hour rate with very few hours on the other services, including the
motion for fees.
Hall retained different counsel to defend the appeal by Hall. In the reply in support of
their motion for fees and costs (Doc. 171) appellate counsel argue that the challenges to the
reasonableness of the services provided should not be considered because the plaintiff has not
produced any evidence to support his challenge. The plaintiff is not obligated to produce such

evidence. This court has an independent obligation to determine a reasonable fee considering
the factors in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974). In Hensley v.
Eckerhart, 461 U.S. 424 (1983) the Supreme Court recognized that the lodestar calculation of
reasonable hours times a reasonable rate does not end the inquiry and that the fee may be
adjusted upward or downward.
The question on appeal as to Hall was simple. The case was complicated by the
consolidation of that appeal with the summary judgments granted to the other defendants,
resulting in a 60-page appellate opinion. The Court of Appeals affirmed the Hall dismissal in
three pages.
An award of $22,987.26 in fees for this appeal would be so disproportionate to the fees
asked for and received by trial counsel addressing the same issue is unreasonable. While the
practices and procedures of the appellate court require time to present briefing and argument in
a very different manner than in this court, the staffing of this case with three experienced
lawyers and a young associate is excessive. It is appropriate to reduce this fee application by
fifty percent. Accordingly, it is
ORDERED, that Forest Templeton shall pay to Dale K. Hall $11,494 for attorney’s fees
and $48.37 in costs.
DATED: November 24th, 2015
BY THE COURT:

s/Richard P. Matsch
________________________________
Richard P. Matsch, Senior District Judge