Summary
stating that the weight to be accorded expert testimony is within the sound discretion of the trier of fact
Summary of this case from People v. KatzOpinion
Jan. 25, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 380
F. Richard Hite, Denver, for plaintiffs-appellants.
Modesitt & Shaw, Richard H. Shaw, Denver, for defendants-appellees.
ENOCH, Judge.
This is the second appeal of an action for attorney's fees brought by Thomas Hudson and Alice Loveland against several defendants; however, only defendant F. H. Brillhart is involved in this appeal. The parties will be referred to by their trial court designations. The first trial was to a jury which returned a verdict in favor of plaintiffs for $7,500. Defendants then appealed to the Supreme Court which held that the contingent fee contract upon which plaintiffs relied was grossly unreasonable and remanded the cause for determination of the amount of attorney's fees, if any, to be awarded, based upon reasonable value of services rendered by plaintiffs. Brillhart v. Hudson, 169 Colo. 329, 455 P.2d 878.
On remand, trial was to the court which found the reasonable attorney's fees to be $1,105. As defendant had paid plaintiffs the amount of the original judgment in lieu of levy and a supersedeas bond, plaintiffs were ordered to remit the $7,500, less the amount of the new judgment, to defendant without interest. Both parties appeal.
The factual background of this case is summarized in the Supreme Court decision of the original appeal. Brillhart v. Hudson, Supra. No substantial variations in the evidence presented at the first trial appear in the record of the second trial except that each side called expert witnesses to testify as to the value of the services rendered by plaintiffs to defendant.
I.
Plaintiffs contend the trial court erred in finding plaintiffs' services were not unusual in nature and that they did not result in the sale of defendant's leasehold interest. We disagree. These are factual questions which are properly determined by the trial court as the trier of the fact and will not be disturbed on review if they are supported by sufficient evidence, as they are in this case. Adler v. Adler, 167 Colo. 145, 445 P.2d 906; Whatley v. Wood, 157 Colo. 552, 404 P.2d 537.
The trial court's findings are also consistent with the holding by the Supreme Court in its determination of the first appeal of this action wherein the Supreme Court stated that 'The 'legal services' which were rendered by Hudson and Loveland were for the most part those which are ordinarily performed by a business chance broker,' and that 'No sale of the leasehold was consummated by Loveland or Hudson.'
Plaintiffs next contend that the trial court erred in ignoring testimony of two experts regarding the reasonable value of their services. Again we disagree. The findings of the trial court demonstrate that this testimony was not ignored, but rather that the trial court found the testimony given by defendants' expert witness more reliable. The weight to be accorded expert testimony is within the sound discretion of the trier of fact and will not be disturbed on review in the absence of an abuse of that discretion. Young v. Burke, 139 Colo. 305, 338 P.2d 284.
Plaintiffs' last assignment of error is that the court erred in failing to consider the benefits derived by the client when it fixed the reasonable value of plaintiffs' services. Again, the trial court's findings demonstrate it considered benefit derived by defendants as well as other facts and circumstances in determining reasonable attorney's fees. See Bryant v. Hand, 158 Colo. 56, 404 P.2d 521.
II.
Defendant cross-assigns as error the trial court's refusal to award interest on the difference between the amount of the original judgment which defendant paid to plaintiffs and the amount of the second judgment. Defendant claims that he should be entitled to interest on the $7,500, which he paid plaintiffs in satisfaction of the first judgment, from the date of payment to the date when plaintiffs were ordered to repay the sum at the conclusion of the second trial, less the amount of the smaller judgment entered at the second trial.
We find no authority for allowing interest under the facts of this case. As was stated by the court in El Paso County v. Flanagan, 21 Colo.App. 467, 122 P. 801, and reaffirmed in Hunter v. Wilson, 147 Colo. 36, 362 P.2d 553, 'Interest in this state is a creature of statute and regulated thereby. It is only recoverable, in the absence of contract, in the cases enumerated in the statute.' It has also been held that the interest statute, C.R.S.1963, 73--1--2, must be strictly construed. Hunter v. Wilson, Supra. In the case at hand, defendant's claim does not fit in any of the categories enumerated in C.R.S.1963, 73--1--2 and therefore, interest was properly disallowed by the trial court.
Judgment affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.