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Conry v. Estate of Barker

United States District Court, D. Colorado

March 16, 2018

SUZANNE CONRY, Plaintiff,
v.
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 estates 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

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE

         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 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 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 ...


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