Opinion
No. 75-262
Decided November 28, 1975. Rehearing denied December 18, 1975. Certiorari granted February 23, 1976.
Attorney who represented one of the parties in dissolution of marriage proceedings sought enforcement of an attorney's lien by motion submitted during the course of the same proceedings. From the trial court's denial of his motion, the attorney appealed.
Affirmed
1. ATTORNEY AND CLIENT — Attorney's Lien — Motion For Enforcement — During Dissolution Proceedings — Properly Denied — Enforcement — Only By — Independent Civil Action. Where motion for enforcement of attorney's lien was submitted during the course of dissolution of marriage proceedings, in connection with which compensation for services rendered by the attorney were allegedly due, that motion was properly denied; considerations of public policy and of the pertinent statute indicate that an attorney's lien may be enforced only by an independent civil action.
Appeal from the District Court of the City and County of Denver, Honorable Clifton A. Flowers, Judge.
Robert L. Gee, pro se.
Donald L. Brundage, P.C., Dennis H. Gunther, for respondent-appellee.
Division II.
Appellant, Robert L. Gee, an attorney, represented appellee in this proceeding for dissolution of marriage. At the conclusion of the dissolution litigation, Gee filed a notice of attorney's lien, pursuant to § 12-5-119, C.R.S. 1973, seeking compensation for his legal services from this client, Cecil Crabtree, in the amount of $7,368.75. Subsequently, Gee moved the trial court for an order and judgment for attorney's fees totalling $16,300. The trial judge denied the motion, apparently basing his decision on a perceived lack of jurisdiction to enforce the attorney's lien as part of the dissolution proceedings. Gee asks that we reverse the trial court and enter judgment in favor of him for the asserted amount of his fee. We affirm the trial court.
The sole issue on this appeal is whether Gee may enforce his lien by a motion submitted in the same action in which the services were performed, or whether he may only seek to enforce the lien by an independent civil proceeding.
Crabtree maintains that the only available remedy is an independent civil proceeding. The case authorities cited to us by both parties in their briefs are all consistent with this theory. In each case cited to us there was either the enforcement of the lien in an independent civil action, or a mere declaration of the lien in the original proceeding. See Collins v. Thuringer, 92 Colo. 433, 21 P.2d 709; Dankwardt v. Kermode, 68 Colo. 225, 187 P. 519; and Clark v. O'Donnell, 68 Colo. 279, 187 P. 534.
Under a predecessor of the present attorney's lien statute, and prior to the merger of law and equity, an independent suit in equity was "a proper civil action" for the enforcement of an attorney's lien. Fillmore v. Wells, 10 Colo. 228, 15 P. 343. After the merger of law and equity, the requirement that an independent civil action be brought to enforce an attorney's lien remained. See Gooding v. Lyon, 63 Colo. 328, 166 P. 564; and Lane v. Lyon, 57 Colo. 166, 140 P. 197.
[1] The lien sought to be enforced here is a charging lien and is statutory in nature; no lien exists apart from the statute. See Donaldson, Hoffman Goldstein v. Gaudio, 260 F.2d 333 (10th Cir.). The present statute perpetuated previous procedure. Section 12-5-119, C.R.S. 1973, provides as follows:
"All attorneys and counselors-at-law shall have a lien on any money, property, choses in action, or claims and demands in their hands, on any judgment they may have obtained or assisted in obtaining, in whole or in part, and on any and all claims and demands in suit for any fees or balance of fees due or to become due from any client. In the case of demands in suit and in the case of judgments obtained in whole or in part by any attorney, such attorney may file, with the clerk of the court wherein such cause is pending, notice of his claim as lienor, setting forth specifically the agreement of compensation between such attorney and his client, which notice, duly entered of record, shall be notice to all persons and to all parties, including the judgment creditor, to all persons in the case against whom a demand exists, and to all persons claiming by, through, or under any person having a demand in suit or having obtained a judgment that the attorney whose appearance is thus entered has a first lien on such demand in suit or on such judgment for the amount of his fees. Such notice of lien shall not be presented in any manner to the jury in the case in which the same is filed. Such lien may be enforced by the proper civil action." (emphasis supplied)
It is our view that the emphasized portions of the statute are indicative of the intent of the legislature to make the two actions separate.
While we realize that this requires the attorney to expend some additional expense in collecting his purported fee, the public policy of requiring a separate action is clear. If we were to allow the attorney to foreclose through the same proceeding in which he has represented his client, we would have within the same litigation two entirely separate lawsuits having separate issues and parties. Moreover, under such circumstances, the client would be left at a decided disadvantage in that he still would be technically represented by counsel who would also now be his adversary, and who would still be his attorney of record in the original case. The awkwardness of such a situation shows the wisdom of the statute and case law which prescribe a separate action. The statute goes no further than to give the attorney the right to file a notice of lien, which filing only perfects his right, if any, in the subject matter of the action. The statute negates the attorney's intervention in the original action under C.R.C.P. 24, or otherwise. Any enforcement of the attorney's lien must be by an independent civil action.
We are not unmindful of Seitz v. Seitz, 33 Colo. App. 180, 516 P.2d 654, which does provide some authority for the position maintained by Gee. The dispositional statements made by the court in Seitz were made solely in reliance on Board of County Commissioners v. Quaintance, 116 Colo. 544, 183 P.2d 569. We acknowledge that the statement of facts in Quaintance indicates that a procedure was used in that case similar to that adopted by Gee in the present action. However, the decision in Quiantance was based entirely on the burden and insufficiency of proof; there is no indication that the propriety of the procedure at issue here was ever placed before the Supreme Court for determination. We find the procedure tacitly approved in Seitz to be contrary to the established case law, public policy, and the statute involved here, and therefore we decline to accord precedential authority to the Seitz treatment of this issue.
Judgment affirmed.
JUDGE KELLY concurs.
JUDGE ENOCH dissents.