Conry v. Barker

Filing 444

Order Affirming United States Magistrate Judge Kristen L. Mix's Order Denying Mr. Ingold's Amended Motion for Attorney's Fees. Mr. Ingold's Objection (Doc. # 419 ) is OVERRULED and Magistrate Judge Mix's Order (Doc. # 411 ) is AFFIRMED. By Judge Christine M. Arguello on 03/16/2018. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 14-cv-02672-CMA-KLM
SUZANNE CONRY,
v.

Plaintiff,

THE ESTATE OF EUGENE H. BARKER
BERNARD C. MAYNES, an individual,
SHARON M. HAMILTON, an individual,
B&B 2ND MORTGAGE, LLC, a limited liability company,
B&B VENTURES, LLC, a Colorado limited liability company,
HIGH POINTE, LLC, a Colorado limited liability company,
TERRY D. HAMILTON, an individual,
CHEM-AWAY, INC., a Colorado corporation,
CHEM-AWAY, INC., a California corporation,
ALL UNKNOWN PERSON who claim an interest in the subject matter surface and
mineral estate(s) in this action
Defendants.

ORDER AFFIRMING UNITED STATES MAGISTRATE JUDGE KRISTEN L. MIX’S
ORDER DENYING MR. INGOLD’S AMENDED MOTION FOR ATTORNEY’S FEES
This matter is before the Court on Attorney Chris L. Ingold’s Objection (Doc. #
419) to an Order issued by Magistrate Judge Kristen L. Mix on November 21, 2017
(Doc. # 411), wherein Magistrate Judge Mix denied Mr. Ingold’s Amended Motion for
Attorney’s Fees (Doc. # 328). For the following reasons, this Court overrules Mr.
Ingold’s Objection and affirms Magistrate Judge Mix’s Order.

I. BACKGROUND
Magistrate Judge Mix’s Order (Doc. # 411) provides a comprehensive recitation
of the applicable factual and procedural background of this case. The Order is
incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(A); Federal Rule of Civil
Procedure 72(a). Additional factual background will be reiterated only to the extent
necessary to address Mr. Ingold’s objections.
Plaintiff Suzanne Conry commenced this action pro se in 2014. (Doc. # 1.) She
later retained Mr. Ingold as legal counsel. (Doc. 328-1.) On March 30, 2016, Ms. Conry
signed an “Agreement for Legal Services” (Fee Agreement), which included an hourly
fee agreement providing for an hourly rate of $150 per hour for attorney time paid from
a retainer and $300 per hour for attorney time not paid from a retainer. 1 (Id. at 6.) The
Fee Agreement also provided that “authority is given to the attorney to expend time
providing legal services up to a maximum of 60 hours[,] which limitation will not be
exceeded without client’s further written authority.” (Doc. # 328-1.)
In the following months, Mr. Ingold and Ms. Conry’s relationship deteriorated. On
September 12, 2016, this Court granted Mr. Ingold’s Motion to Withdraw from
representing Ms. Conry. (Doc. # 239.) Mr. Ingold thereafter filed a Motion for Attorney’s
Fees claiming entitlement to fees for work performed between August 25 and
September 12, 2016, amounting to $2,907.50. (Doc. # 328 at 5.) Ms. Conry objects to
these fees. She argues that they accrued when Mr. Ingold improperly continued
working on her case after she terminated the relationship and despite a lack of written
1

It is undisputed that Mr. Ingold and Ms. Conry entered into a valid Fee Agreement. (Doc. #
411 at 4–5.)
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authorization to do so. (Doc. # 399 at 2.) Magistrate Judge Mix agreed with Ms. Conry
and denied Mr. Ingold’s Motion for Attorney’s Fees. (Doc. # 411.) As pertinent here,
Magistrate Judge Mix also found that Mr. Ingold provided insufficient evidence and no
argument to support that Ms. Conry impliedly authorized him to continue working. (Id.
at 6–7.)
II. STANDARD OF REVIEW
When a magistrate judge issues an order on a nondispositive pretrial matter,
“[t]he district judge in the case must consider timely objections and modify or set aside
any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P.
72(a). Under the clearly erroneous standard, “the reviewing court [must] affirm unless it
‘on the entire evidence is left with the definite and firm conviction that a mistake has
been committed.’” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir.
1988) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)); Allen v.
Sybase, Inc., 468 F.3d 642, 658 (10th Cir. 2006).
III. ANALYSIS
A. IMPLIED AUTHORIZATION
Mr. Ingold first objects to Magistrate Judge Mix’s conclusion that he did not
provide sufficient evidence of implied authorization to continue working on Ms. Conry’s
case. (Doc. # 419 at 2.) The Court overrules this objection.
In support of his argument that Ms. Conry impliedly authorized him to continue
working on her behalf, Mr. Ingold highlights multiple dates on which he alleges Ms.
Conry demanded additional work. (Id. at 2, 5.) Mr. Ingold also contends that a payment
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made by Ms. Conry on September 6, 2016 further demonstrates her implicit
authorization to continue work on her behalf. (Id. at 2.)
Ms. Conry disagrees with Mr. Ingold’s recitation of their interactions. She instead
asserts that she did not provide authorization for him to continue working, and instead
requested, on September 4 and 5, 2016, that Mr. Ingold cease his services and provide
an immediate accounting. (Id. at 2.) According to her, all time expended by Mr. Ingold
after August 25, 2016, was improper and contractually barred. (Doc. # 411 at 3.)
The Court finds no clear error in Magistrate Judge Mix’s conclusion that Mr.
Ingold failed to demonstrate that Ms. Conry impliedly authorized him to continue
working after August 25, 2016. Mr. Ingold did not present any argument or supporting
legal authority to Magistrate Judge Mix to support that he had Ms. Conry’s implied
authorization to continue working. Nor does the evidence attached to his motion
support such an inference. Mr. Ingold merely cites to his own billing records as
containing “a record of multiple communications with the client” and showing that Ms.
Conry “demanded” additional work—communications and demands that Ms. Conry
vehemently disputes. That Ms. Conry paid Mr. Ingold $1,000 on September 6 does not
conclusively show that she impliedly authorized his continued services—indeed, the
Court finds no error in Magistrate Judge Mix’s finding that the money was paid “to
seemingly compensate him for work done through August 25.” (Doc. # 411 at 6.)
Accordingly, Magistrate Judge Mix’s conclusion that implied authorization had not been
shown, much less proven, was not clearly erroneous or contrary to law.

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Moreover, regardless of whether implied authorization existed, the Fee
Agreement clearly required written authorization for the work at issue here. As
mentioned, it specifically provided that work in excess of 60 hours required the “client’s
further written authority.” (Doc. # 328-1.) Ms. Conry avers that she did not provide
written authorization for the disputed additional work, and Mr. Ingold has not provided
any evidence to dispute that contention. Magistrate Judge Mix’s consequent finding
that Mr. Ingold’s continuation of work on Ms. Conry’s case was “without [Ms. Ingold’s]
written authority thus, in violation of the Fee Agreement” is not clearly erroneous. (Doc.
# 411 at 7.)
B. BREACH OF CONTRACT
Mr. Ingold next maintains that it is Ms. Conry, not he, who is in violation of the
contract because she failed to compensate him for his services rendered. The Court
overrules this objection.
1. Law
Well-established principles of contract law guide the Court’s review. “When the
written contract is complete and free from ambiguity, [the court] will find it to express the
intentions of the parties and enforce it according to its plain language.” Gagne v. Gagne,
338 P.3d 1152, 1163 (Colo. App. 2014). In addition, courts must interpret and enforce
contracts as written and cannot rewrite or restructure them. Janicek v. Obsideo, LLC,
271 P.3d 1133, 1138 (Colo. App. 2011).
A court’s must also interpret a contract “in its entirety with the end in view of
seeking to harmonize and to give effect to all provisions so that none will be rendered
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meaningless.” Pepcol Mfg. Co. v. Denver Union Corp., 687 P.2d 1310, 1313
(Colo.1984). The Court does not view clauses or phrases in isolation. U.S. Fid. & Guar.
Co. v. Budget Rent–A–Car Sys., Inc., 842 P.2d 208, 213 (Colo.1992).
2. Analysis
Mr. Ingold highlights a provision in the Fee Agreement stating that “if a retainer is
requested from the client and not provided, it is likely that the attorney will seek to
withdraw . . . and will terminate th[e] agreement.” (Doc. # 419 at 3.) If that occurs, “the
attorney is entitled to be then compensated for the services rendered to the client up to
the time of . . . withdrawal.” (Id.) Mr. Ingold argues that Ms. Conry’s failure to pay him a
requested retainer resulted in his withdrawal from the case and obligated Ms. Conry to
compensate him for any services rendered before his withdrawal. (Id.)
The Court disagrees that this provision of the Fee Agreement so obligated Ms.
Conry. Although the Fee Agreement expressly provides for compensation for all
services rendered before withdrawal, the Agreement also requires written authorization
for any work completed beyond the 60 hour authorized. Thus, reading the provision
highlighted above in conjunction with the entire Fee Agreement, the Court agrees with
Magistrate Judge Mix’s conclusion that Ms. Conry cannot be held “responsible for Mr.
Ingold’s attorney’s fees incurred after August 25, 2016, because they were billed without
authorization in violation of the express terms of the Fee Agreement.” See Gagne v.
Gagne, 338 P.3d 1152, 1163 (Colo. App. 2014) (“When the written contract is complete
and free from ambiguity, we will conclude that it expresses the intentions of the parties
and enforce it according to its plain language.”).
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C. UNJUST ENRICHMENT
Finally, Mr. Ingold objects to Magistrate Judge Mix’s Order pursuant to the
doctrine of unjust enrichment. Mr. Ingold contends that Magistrate Judge Mix failed to
consider the Restatement (Third) The Law Governing Lawyers § 37, which provides:
If a client-lawyer relationship ends before the lawyer has
completed the services due for a matter and the lawyer's fee
has not been forfeited under § 37:
(1) a lawyer who has been discharged or withdraws may
recover the lesser of the fair value of the lawyer's services
as determined under § 39 and the ratable proportion of
the compensation provided by any otherwise enforceable
contract between lawyer and client for the services
performed; except that
(2) the tribunal may allow such a lawyer to recover the
ratable proportion of the compensation provided by such
a contract if:
(a) the discharge or withdrawal is not attributable to
misconduct of the lawyer;
(b) the lawyer has performed severable services; and
(c) allowing contractual compensation would not
burden the client's choice of counsel or the client's
ability to replace counsel.
The Court disagrees with Mr. Ingold that § 37 applies here. Claims based on
unjust enrichment must yield to the terms of a valid and enforceable contract between
the parties. RESTATEMENT (THIRD) RESTITUTION AND UNJUST ENRICHMENT Intro. Note
(2004). In other words, “[t]he doctrine of unjust enrichment applies to situations where
as a matter of fact there is no legal contract.” Id.; see also Mullen v. Hansel-Handerson,
65 P.3d 992,992 (Colo. 2002) (“Generally attorneys may recover on an unenforceable
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contract on the basis of quantum meriut.”) (emphasis added); Interbank Investments,
LLC v. Eagle River Water and Sanitation Distr. 77 P.3d 814, 816 (Colo. App. 2003) (A
party generally cannot recover for unjust enrichment when an express contract covers
the same subject matter.). It is undisputed that Ms. Conry and Mr. Ingold executed a
valid contract—the Fee Agreement. That contract covers the subject matter at issue,
and the doctrine of unjust enrichment does not, therefore, apply. 2
The Court accordingly finds that Magistrate Judge Mix did not clearly err by not
considering the doctrine of unjust enrichment.
IV. CONCLUSION
For the foregoing reasons, Mr. Ingold’s Objection (Doc. # 419) is OVERRULED
and Magistrate Judge Mix’s Order (Doc. # 411) is AFFIRMED.

DATED: March 16, 2018

BY THE COURT:

CHRISTINE M. ARGUELLO
United States District Judge

2

The Court recognizes that there are two exceptions to this principle, but those exceptions do
not apply in the instant case.
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