ORDER ON PLAINTIFF S MOTION FOR ATTORNEY FEES AND BILL OF COSTS. I. Background

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1 DISTRICT COURT CITY & COUNTY OF DENVER, COLORADO 1437 Bannock Street Denver, Colorado DATE FILED: May 3, :23 PM CASE NUMBER: 2014CV33588 Plaintiff: MESSNER & REEVES, LLP, v. Defendants: PATRICK IMESON; 4636 INVESTORS, LLC; ELKHORN GOLDFIELDS, INC.; ELKHORN GOLDFIELDS, LLC; and BLACK DIAMOND FINANCIAL GROUP, LLC. COURT USE ONLY Case Number: 2014CV33588 Courtroom: 414 ORDER ON PLAINTIFF S MOTION FOR ATTORNEY FEES AND BILL OF COSTS After prevailing at trial, Plaintiff Messner & Reeves filed a motion for attorney fees and bill of costs. Defendants oppose Messner & Reeves s request for attorney fees, but not the bill of costs. Based on a review of the parties filings, the Court s file, and applicable law, the Court finds and orders as follows: I. Background Messner & Reeves initiated this action to recover substantial attorney fees owed by Defendants Patrick Imeson, Black Diamond Holdings, LLC, and Elkhorn Goldfields, LLC. Imeson is an executive with Black Diamond. Black Diamond owns a majority interest in Elkhorn Goldfields. Defendants each executed fee agreements with Messner & Reeves during the period 2010 through Only the fee agreement between Elkhorn Goldfields and Messner & Reeves, signed on March 9, 2012, included an attorney fee-shifting provision stating that Messner & Reeves shall be entitled to recover any attorneys fees, costs or expenses incurred in connection with any action to recover amounts that you fail to pay, whether or not a lawsuit is filed. Mot. Ex. 1. It is undisputed in this litigation that Messner & Reeves provided Defendants with legal services as requested and performed the services satisfactorily; however, Defendants failed to pay all amounts billed. During the course of Messner & Reeves s representation, Defendants never contested any amount billed, or claimed that the bills were unreasonable. To the contrary, 1

2 Defendants thanked Messner & Reeves for their work and represented that payment would be forthcoming. In response to Messner & Reeves s complaint, Defendants initially asserted three affirmative defenses. Defendant Black Diamond contended that its agreement with Messner & Reeves had been converted to a contingency fee agreement, and that the contingency, completion of the transaction for which the firm had been hired, never occurred. In their amended answer, Defendants alleged that Messner & Reeves s claims were barred due to a failure to mitigate damages. According to Defendants, Messner & Reeves continued to run up fees on a high-risk transaction knowing there was a likelihood the transaction would not close through no fault of any of the parties. Am. Answer p. 5. Defendants also claimed that Messner & Reeves s claims were barred by doctrines of estoppel and waiver, again, because Messner & Reeves performed work on a high risk transaction for Black Diamond knowing that there was a substantial risk it would not close. Am. Answer p. 5. During discovery, Messner & Reeves submitted interrogatories to Defendants asking them to identify every billing entry on the invoices provided by the firm that Defendants contended were for services that should not have been performed. In response, Defendants failed to identify a single actual entry that they contested. Pl. s Trial Ex. 6. When asked to identify every billing entry that Defendants believed demonstrated that Messner & Reeves had run up fees on a high-risk transaction knowing there was a likelihood the transaction would not close through no fault of any of the parties, Defendants again failed to identify a single time entry. Pl. s Trial Ex. 6. Defendants did raise an objection in response to Messner & Reeves s discovery indicating that Plaintiff s invoices do not disclose the amount of time that was spent on any one service rendered, making it impossible for Defendants to determine whether the amount of time spent on any such service was reasonable. Pl. s Trial Ex. 6 p. 2. Defendants did not, however, identify whether all or only some of Messner & Reeves s invoices were objectionable, or point to specific time entries that they believed were improper. In their trial management order submission, Defendants contended that because Messner & Reeves had failed to endorse an expert witness to opine on the reasonableness of attorney fees, the firm could not prove its damages. Defendants also claimed that Messner & Reeves s alleged practice of aggregate billing made it impossible to discern how much time was actually spent on each task. Proposed Trial Management Order submitted on September 10, Defendants then followed up their trial management order input with a motion in limine seeking to preclude any of Messner & Reeves s attorneys from testifying as to the reasonableness of their bills. See Defendants Mot. in Limine filed September 14, Defendants took the position that because in the CAPP case management order entered in this action the Court noted that the parties anticipated that they may require expert testimony, Messner & Reeves was therefore obligated to endorse an expert witness. Defendants claimed that in reliance on Messner & Reeves s election not to endorse and expert they did not engage an expert or make any expert disclosures of their own, and argued that Messner & Reeves s alleged tactic was improper and prejudicial to Defendants. Defendants Mot. in Limine p. 2. Defendants also argued that the law required Messner & Reeves to endorse an expert witness, and that lay witnesses could not under any circumstance address the reasonableness of the fees 2

3 claimed. Defendants Mot. in Limine pp The Court denied Defendants motion in limine as the law is clear an attorney may opine as to the reasonableness of fees without being endorsed as an expert, and that as long as Messner & Reeves laid the predicate foundation at trial for one of its attorneys to testify as to reasonableness, expert testimony was not required. See Roget v. Grand Pontiac, Inc., 5 P.3d 341, 347 (Colo. App. 1999); see also Husband v. Colorado Mountain Cellars, Inc., 867 P.2d 57 (Colo. App. 1993) (finding that the testimony of a plaintiff who was an attorney was sufficient to support finding of reasonableness of fees). At trial, Defendants conceded that Imeson owed Messner & Reeves $ through the date of trial with interest accruing, but had simply failed to pay his bill. Defendants conceded that they had entered into the fee agreements in question, that they had received all services requested, that the services were performed satisfactorily, and that Messner & Reeves s hourly rates were reasonable. Defendants argued, however, that the hours billed to Elkhorn Goldfields and Black Diamond should be reduced substantially because of Messner & Reeves s alleged billing practices. Relying on an article referenced in Payan v. Nash from the State Bar of California Committee on Mandatory Fee Arbitration, Arbitration Advisory (January 29, 2003) (the Fee Advisory ) and Colorado Rule of Professional Conduct 1.5, Defendants counsel argued that Messner & Reeves s billing practices were facially unreasonable requiring substantial reduction. Defendants raised these arguments in a motion for directed verdict that included exhibits that counsel had prepared highlighting alleged problems with Messner & Reeves s billings based on Rule 1.5 and the Fee Advisory. Defendants never actually offered these exhibits as evidence at trial, nor did the Court accept the exhibits into evidence. While Defendants called Imeson to testify on their behalf, he simply stated that he had never actually reviewed the bills and confirmed that he had received the legal work requested and that it had been satisfactory. Defendants endeavored to further support their position through cross-examination of Levine who performed the work in question but were unable to solicit any testimony supporting counsel s assertion that Messner & Reeves s billing practices were improper. At the conclusion of trial, the Court entered judgment in favor of Messner & Reeves for all of the attorney fees claimed: (1) $ from Imeson; (2) $8, from Elkhorn Goldfields; and (3) $277, from Black Diamond. Messner & Reeves asks that the Court award it all of the attorney fees and costs claimed. Messner & Reeves acknowledges that only its fee agreement with Elkhorn Goldfields contains a fee-shifting provision, but argues that because its claim for fees against this entity are intextricably intertwined with its claim for fees against Imeson and Black Diamond, it is entitled to all reasonable fees incurred in this action. Messner & Reeves also claims that it is entitled to attorney fees under C.R.S as Defendants defended this action in whole or in part without substantial justification. Messner & Reeves specifically argues that while Defendants entire presentation at trial lacked justification, even if the Court were to find that only portions were meritless an award of statutory fees and costs is merited. In response, Defendants raise two arguments. 3

4 First, Defendants claim that because only the Elkhorn Goldfields fee agreement contains a fee-shifting provision, Messner & Reeves is only entitled to those fees associated with seeking recovery of fees against that entity. Defendants contend that the Court should apportion the fees incurred based on the amount of fees owed, and that because Elkhorn Goldfields s damages are only 2.8% of the total fees awarded, the entity is entitled to recover only $ in attorney fees. Second, Defendants argue that while they did not prevail at trial, their defense was not frivolous because it was based on a rational argument that is that Messner & Reeves s bills were not reasonable because the firm had billing entries that included block billing, time entries that were in round numbers (such as 8.0) suggesting padding, alleged duplicate entries, and imprecise descriptions. Additionally, Defendants contend that fees should be reduced because of the lack of positive results obtained for Black Diamond and the lack of experience of lead counsel. II. Applicable Law A. Law Relating to Costs A trial court has wide discretion in determining whether costs should be awarded to a prevailing party and the amount of costs to be awarded. Cherry Creek Sch. Dist. No. 5 v. Voelker, 859 P.2d 805, (Colo. 1993). A prevailing party is entitled to recover only those costs that were reasonably and necessarily incurred in the course of litigation not all costs incurred. Wark v. McClellan, 68 P.3d 574, 582 (Colo. App. 2003). While a court has discretion in awarding costs, any such award must be based on competent evidence. Haystack Ranch, LLC v. Fazzio, 997 P.2d 548, (Colo. 2000). Moreover, a trial court should make specific findings regarding the basis for awarding costs to a party. Brody v. Hellman, 167 P.3d 192, 206 (Colo. App. 2007). When costs are necessarily incurred in preparing for trial, and as a result of litigation, reasonable costs may be awarded to the prevailing party. The trial court may exercise its discretion in awarding such costs under C.R.C.P. 54(d). Bainbridge, Inc. v. Douglas County Bd. of Comm rs, 55 P.3d 271, 274 (Colo. App. 2002). B. Law Relating to Attorney Fees Under Colorado law, in the absence of a statute, court rule, or private contractual provision to the contrary, attorney fees are not recoverable by the prevailing party. Morris v. Belfor USA Group, Inc., 201 P.3d 1253, 1259 (Colo. 2008) (citing In re Estate of Morris v. Klarner, 113 P.3d 150, 157 (Colo. 2005)). Any award of attorney fees or costs is to be governed by principles of reasonableness. See Cherry Creek School Dist. No. 5 v. Voelker, 859 P.2d 805, (Colo. 1993). The reasonableness of attorney fees is determined by the lodestar calculation which represents the number of hours reasonably expended multiplied by a reasonable hourly rate. Durbray v. Intertribal Bison Coop., 192 P.3d 604, 608 (Colo. App. 2008). The lodestar amount may then be adjusted based upon several factors, including the amount in controversy, the length of time required to represent the client effectively, the complexity of the case, the value of the legal services provided to the client, awards in similar cases, and the degree of 4

5 success achieved as well as the factors set forth in C.R.S Id. A reasonable hourly rate is determined by the market rate charged in the community for similar services by lawyers of reasonable comparable skill, experience, and reputation. Anderson v. Pursell, 244 P.3d 1188, 1197 (Colo. 2010). The burden is on the fee applicant to provide satisfactory evidence in addition to the attorney s own affidavit that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonable comparable skill, experience and reputation. Id. III. Analysis A. Bill of Costs Messner & Reeves seeks to recover $ in costs. These costs include $ for docket fees; $ in ICCES court filing fees; and $ in service of process fees associated with serving Defendants. In support of these costs, Messner & Reeves has provided invoices demonstrating that the costs were incurred. The costs requested by Messner & Reeves are recoverable. C.R.S (1)(a) allows recovery of docket and filing fees. C.R.S (1)(e) and (h) allow recovery of service of process fees and witness fees. Defendants have not objected to Messner & Reeves s costs. The docket fees in this case were required by statute to be paid and the ICCES fees are mandatory. Messner & Reeves was required to serve its summons and complaint on Defendants. Consequently, the Court finds that Messner & Reeves s costs are reasonable and were necessarily incurred and awards Messner & Reeves $ in costs as the prevailing party in this action in accordance with C.R.C.P. 54(b). B. Attorney Fees The Court finds that Messner & Reeves is entitled to recover its attorney fees incurred in this action relating to the three fee agreements at issue based on two considerations. First, the Court concludes that the prosecution of all three fee agreements was inextricably intertwined such that any legal work done on the Elkhorn Goldfields fee agreement also, necessarily, had to be done with respect to the other two fees agreements. Second, Defendants primary defense of this case was groundless, meriting an award of attorney fees under C.R.S Apportionment A court need only apportion an attorney fee request among claims on which fees are recoverable and claims on which fees may not be recovered where the different claims are separable and not inextricably intertwined. Padilla v. Ghuman, 183 P.3d 653, 664 (Colo. App. 2007). Where a party entitled to fees would have incurred all fees regardless of the claims asserted, apportionment may be unwarranted. Dubray, 192 P.3d at 607. In considering Messner & Reeves s claims, Defendants defenses, the trial presentation, and the Court s final order and judgment, the Court concludes that apportioning attorney fees among the fee dispute involving Elkhorn Goldfields and the disputes relating to 5

6 Imeson and Black Diamond is not possible because the prosecution and defense of these claims is not separable. Messner & Reeves asserted a single claim for relief in this action against Defendants for breach of contract/liquidated debt relating to all three fee agreements. Defendants, similarly, defended this action as if it involved a single, inseparable claim for relief denying collectively all of Messner & Reeves s allegations and asserting one set of affirmative defenses on behalf of all Defendants. The question of whether Defendants breached their fee agreements with Messner & Reeves rested on similar factual bases, identical witnesses were involved with respect to all three fee agreements, and discovery was performed in a concerted manner. Moreover, Defendants are all significantly intertwined in terms of their relationship. Imeson is an executive with Black Diamond and this entity is a holding company that owns a majority interest in Elkhorn Goldfields. In short, time spent preparing Messner & Reeves s case for trial was necessarily spent on all three Defendants and there is no effective way to separate pretrial time among Defendants. Also, there is no reasonable way to separate time spent in trial based on Defendants. Trial presentation with respect to Defendants was overlapping. Steven Levine, the Messner & Reeves attorney who served as lead counsel for the matters at issue provided the most significant testimony at trial. He discussed the total representation that was provided for Defendants and addressed practices that were applied to all three Defendants collectively. Defendants claimed at trial that while all of Messner & Reeves s hourly rates were reasonable, the total hours billed by the firm was not reasonable because the firm s billing practices were contrary to the Fee Advisory, and additional reductions were warranted based on the factors governing attorney fees in Rule 1.5 of the Colorado Rules of Professional Responsibility. Defendants specifically argued that Messner & Reeves s bills were not reasonable because they included entries reflecting time spent in large lump sums and round hours, the time entry descriptions were inadequate or included standard work descriptions, block billing was used, bills were sent months after the initial work was performed, and the bills included multiple attorneys and brief entries by junior attorneys that Defendants claimed were unqualified. Additionally, Defendants argued that Messner & Reeves duplicated time entries. Defendants raised other concerted defenses as well. Defendants claimed that Messner & Reeves was required to provide expert testimony to establish the reasonableness of its fees. Defendants also claimed that Messner & Reeves had failed to mitigate damages by not requiring a retainer. In entering judgment in favor of Messner & Reeves, the Court s analysis addressed Defendants concerted defense, further demonstrating that apportionment among the three Defendants is not appropriate here. The Court finds Defendants reliance on Southern Colorado Orthopaedic Clinic Sports Medicine and Arthritis Surgeons, P.C. v. Weinstein, 343 P.3d 1044 (Colo. App. 2014) unpersuasive. While it is true that the court found that the trial court did not err in finding claims between different defendants separable, the case does not stand for the proposition that a court is required to apportion fees. 6

7 2. C.R.S In any civil action, a court shall award, by way of judgment or separate order, reasonable attorney fees against any attorney or party who has brought or defended a civil action, either in whole or in part, that the court determines lacked substantial justification. C.R.S (2). Lacking in substantial justification means substantially frivolous, substantially groundless, or substantially vexatious. C.R.S (4). A claim or defense is frivolous if the proponent can present no rational argument based on the evidence or law in support of that claim. W. United Realty, Inc. v. Isaacs, 679 P.2d 1063, 1069 (Colo. 1984). This test does not apply to meritorious actions that prove unsuccessful, legitimate attempts to establish a new theory of law, or good-faith efforts to extend, modify, or reverse existing law. Id. A claim or defense is groundless if sufficient to survive a motion to dismiss for failure to state a claim, but not supported by any credible evidence at trial. Id. Even if a court concludes that a claim or defense is not frivolous, a trial court s award of attorney fees will not be disturbed if the record supports a conclusion that the claim or defense is groundless, meaning that it lacks any credible evidentiary support at trial. Nienke v. Naiman Goup, Ltd., 857 P.2d 446, 449 (Colo. 1992). The Court concludes that Defendants primary defense in this matter was substantially groundless that is that Messner & Reeves s billing practices violated the Fee Advisory and Rule 1.5 of the Colorado Rules of Professional Conduct. 1 1 C.R.S (2) provides that a party who has defended a civil action in whole or in part without substantial justification may be required to pay the attorney fees incurred by the opposing party in the action. Defendants primary defense in this case related to the Fee Advisory and Rule 1.5, C.R.P.C. Defendants also asserted a secondary defense of failure to mitigate, claiming that Messner & Reeves failed to obtain a retainer from them and continued to perform legal services knowing that Defendants could not pay for the services. Messner & Reeves did not specifically address the propriety of the failure to mitigate defense in their motion for attorney fees. Defendants note that this secondary defense has not been addressed and ask to submit further briefing if the Court decides to consider whether the defense was proper sua sponte. The Court need not address the question of whether the failure to mitigate defense lacked substantial justification because under C.R.S (2), the Court need only conclude that Defendants defended this action in part without substantial justification to award attorney fees. Although the Court has not based its award of attorney fees in this case on Defendants failure to mitigate defense, the Court notes, however, that Defendants asserted this defense through argument of counsel only, not actual evidence, and spent very little time on this defense at trial. Defendant Elkhorn Goldfields had provided a retainer to Messner & Reeves; consequently, Defendants failure to mitigate defense was largely unsupported. Defendants provided no evidence that an attorney is required to demand a retainer from a client, or that Messner & Reeves was required to demand a retainer from Black Diamond or Imeson. Defendants provided no evidence of any actions that Messner & Reeves could have taken that would have mitigated their damages or that damages were aggravated by any actions that they took. Although Defendants counsel argued that Messner & Reeves had run up bills knowing that Black Diamond and its affiliates were allegedly thinly-capitalized and made no effort to tailor their billing practices or services rendered in light of that information, this argument was not supported by evidence. 7

8 At trial, Imeson did not contest that he owed $ for the legal work provided on his behalf. Imeson did not dispute that the hours spent by Messner & Reeves to perform work for him personally were reasonable, or provide any other defense to this bill. Although Defendants contended that Messner & Reeves s bills to Elkhorn Goldfields and Black Diamond should be substantially reduced because the total hours were excessive, Defendants did not dispute that they had entered into valid fee agreements with the firm, that they received all of the legal services required under the agreement, and that the firm performed the work satisfactorily. Defendants also conceded that the firm charged reasonable hourly rates for its attorneys, and that the rates were commensurate with market rates for lawyers of similar background and skill in the Denver metropolitan area. Before trial and during trial, Defendants argued that Messner & Reeves could not meet its burden of proof because the firm had failed to endorse an expert witness to testify as to the reasonableness of the attorney fees claimed. Defendants took the position that the only way for a law firm to prove the reasonableness of its attorney fees in a dispute with a client is through expert testimony. This position was incorrect legally. Under well-established Colorado law, the unrebutted testimony of an attorney may be sufficient to support a finding of reasonableness of fees awarded. Roget, 5 P.3d at 347. At trial, Messner & Reeves did, in fact, demonstrate the reasonableness of its fees through the testimony of the attorney responsible for performing Defendants work. Defendants provided no challenge to the foundation laid by Messner & Reeves for this testimony, nor did Defendants show that the witness could not offer the opinions that he offered at trial regarding the reasonableness of the fees. Additionally, Defendants failed to provide any rebuttal to this testimony. Defendants called Imeson in their case in chief to testify about the bills. When he testified, Imeson stated that he had never reviewed Messner & Reeves s bills; consequently, he provided no evidence that Messner & Reeves had either failed to perform under the parties agreements or that the amount of the firm s bills were unreasonable. Regarding Defendants contention that Messner & Reeves s bills violated the Fee Advisory and Rule 1.5 of the Colorado Rules of Professional Conduct, Defendants presented argument of counsel only, not evidence on this defense. Defendants counsel prepared a color-coded exhibit in which he highlighted aspects of Messner & Reeves s bills that purportedly failed to comply with the Fee Advisory. The exhibit identified areas where Messner & Reeves had allegedly block billed, where the bill explanation were purportedly not clear, where duplicate time entries allegedly appeared and where billing entries appeared suspicion because of the amount of time billed and the fact that the billing had been rounded. Although Defendants counsel used this exhibit to argue for a directed verdict, the exhibit never came into evidence, nor did Defendants have any witness who could get the exhibit into evidence. Defendants attempted to use the exhibit to cross-examine Levine and have him acknowledge Defendants position. Levine did not, however, agree with Defendants characterization of Messner & Reeves s bills, and did not provide testimony that presented even some evidence in support of Defendants position. Defendants also tried to argue that Messner & Reeves s bills should be reduced under C.R.P.C. 1.5 because the transaction that the firm worked on for Black Diamond had 8

9 failed, the legal issues were novel, the firm s counsel did not play a significant role, and Levine had no experience working on the transaction done for Black Diamond. Defendants provided nothing beyond this argument, however. Imeson himself testified that he had no expectation that the Black Diamond transaction would, necessarily, close, and that it is not uncommon for the type of transaction not to close. He also testified that the failure of the transaction to close had nothing to do with Messner & Reeves, but, rather, was the result of investor decisions. While Defendants counsel argued that Levine lacked experience, the evidence at trial demonstrated otherwise. Imeson provided no testimony supporting the assertion that Levine lacked experience. To the contrary, the evidence at trial showed that Defendants were confident enough in Levine s abilities that they asked him to continue to represent them after he left Messner & Reeves, and never expressed a concern about the manner in which he handled their legal work. Defendants contended that Messner & Reeves played only a minor role in the transactions and that the deals done were duplicative, suggesting that not all of the work performed was required. This was argument only, and Defendants provided no evidence, documentary or through testimony, establishing that this was true. The evidence at trial established that Defendants never complained about the reasonableness of Messner & Reeves s bills until after the litigation was filed, further supporting the conclusion that Defendants lacked credible evidence for the defenses that they raised. That Defendants defenses were devoid of evidentiary support is further demonstrated by the fact that they were a moving target and changed over time. Defendants raised defenses for the first time in the Trial Management Order, and then abandoned aspects of their defenses at trial. Defendants claimed that the Court lacked jurisdiction over Elkhorn Goldfields because the parties agreed to binding arbitration in their fee agreement. Defendants asserted this defense after participating in the litigation for more than one year without ever having raised this issue. When asked in discovery to identify the specific bills that Defendants claimed were unreasonable, Defendants failed to provide a responsive answer to the question and waited until trial to spring its unadmitted exhibit on Messner & Reeves identifying the various billing entries that it claimed violated the Fee Advisory as well as the C.R.P.C In short, Defendants entire case was argument crafted by counsel without any evidence to support the assertions made. Because the defenses asserted by Defendants lacked any credible evidentiary support, Messner & Reeves is entitled to recover its attorney fees under C.R.S (4). 3. Fees to be Awarded Messner & Reeves seeks to recover $19, in attorney fees incurred in prosecuting this litigation. While Defendants argue in response that the fees should be apportioned, Defendants do not dispute that the attorney fees are unreasonable in any manner. The Court begins its analysis of Messner & Reeves s attorney fees by first applying the lodestar method to determine the reasonableness of the total attorney fees incurred in this matter. Attorney Marc Levy, of the firm Levy Wheeler Waters PC, provided an 9

10 affidavit as to the reasonableness and necessity of the fees (Exhibit 2) along with a statement for legal services provided by the firm throughout their representation of Messner & Reeves (Exhibit B). The total hours billed are 79 with the first work starting in September 2014 and the last work completed on October 29, The work was provided by three members of Levy Wheeler, two attorneys and a paralegal. Levy billed at $ Attorney Matthew Hall billed at $ Paralegal John Kinsler billed at a rate of $ per hour. The Court first finds that the rates are reasonable in light of the individuals and the work that they performed and based on the customary rates reflected in the Denver Metropolitan area for legal staff with comparable background, experience, and skills. Levy specializes in litigation. He has been practicing law since 1981 and served as an intern to a justice on the Oklahoma Supreme Court. He has tried over 100 jury trials and has also served as an expert witness on legal malpractice and insurance bad faith cases. Hall has been practicing law for more than seven years. He served as a judicial law clerk for two trial court judges in Los Angeles Superior Court, a judicial extern to federal appeals judge on the 9 th Circuit Court of Appeals, and has been actively involved in litigating civil matters in Colorado for five years. Paralegal Kinsler has 20 years of experience in litigation. Based on the representation of Levy, the Court s experience reviewing numerous motions for attorney fees, the rates for each of these timekeepers is reasonable and customary. In terms of the hours reasonably expended on this matter, the Court finds that 79.0 hours is reasonable and was necessarily incurred. The Court therefore calculates the presumptive lodestar amount of reasonable fees in this as follows: Name Hours Hourly Rate Total Marc Levy 18.4 $ $6, Matthew Hall 48.3 $ $11, John Kinsler 12.3 $ $1, Totals 79.0 $19, Based on the lodestar analysis, the total reasonable hours multiplied by the reasonable hourly rate is $19, Considering the factors in C.R.S and Rule 1.5 of the Colorado Rules of Professional Conduct, the Court finds that this total should not be further reduced. Reviewing the bills submitted, the Court concludes that the case was litigated in an efficient manner and that the work descriptions reflect work that was reasonably required in this case. The case involved unique issues not typically encountered in a regular fee collection matter. Early in the litigation, Defendants asserted an unusual defense that Messner & Reeves, or one of its employees, had agreed to convert the fee agreements to contingent fee 10

11 agreements, which required the addition of a new party to the case (the employee). Defendants then changed their position and contended that after further investigation, the defense lacked merit. As a result, Messner & Reeves was required to engage in motions practice relating to this issue. At trial, Messner & Reeves sought to recover over $300, in fees owed by Defendants. Messner & Reeves prevailed entirely on their claims and were awarded all damages sought. Thus, the Court finds that Messner & Reeves achieved significant success in this case weighing against reducing the fees incurred. There were no particular time limitations impacting the case that should be considered in assessing the fees. Levy Wheeler has represented Messner & Reeves in several matters over the course of two to three years, although not with volume such that fees should be reduced. The fee agreement between Messner & Reeves and Levy Wheeler is hourly. In sum, based on the lodestar analysis and after weighing the factors in C.R.S and Rule 1.5, Rules of Professional Conduct, the Court awards Messner & Reeves $19, in attorney fees. IV. Order and Judgment follows: Based on the above findings and conclusions, the Court hereby enters judgment as 1. Costs in the amount of $ in favor of Messner & Reeves and against Defendants, jointly and severally. 2. Attorney fees in the amount of $19, in favor of Messner & Reeves and against Defendants, jointly and severally. Messner & Reeves s total recovery of attorney fees and costs is $20, This judgment has been prepared pursuant to C.R.C.P. 58(a) and the Clerk of the Court shall enter it on the register of actions as provided in C.R.C.P. 79(a). IT IS SO ORDERED on this Tuesday, May 03, 2016 BY THE COURT: Judge Karen L. Brody Denver District Judge 11