Holt Group, L.L.C. v. Kellum

260 P.3d 50, 2010 WL 3036499, 2010 Colo. App. LEXIS 1072
Colorado Court of Appeals·Decided August 5, 2010·No. No. 09CA0959·Published·Cited by 4 cases

Opinion

Opinion by

Judge DAILEY.

Pioneer General Insurance Company (Pic-neer) appeals the trial court's order (1) allowing plaintiff, The Holt Group, LL.C. (Holt), to execute against a supersedeas bond for $91,120 and (2) requiring the balance of the bond to remain in effect during a second appeal of a $210,864 attorney fee award entered in favor of Holt. At issue in this appeal is the extent of Pioneer's obligation as surety for defendants, Willis Kellum and Kellum Emterprises, Inc. (collectively Kellum), in the underlying action.

We affirm in part and reverse in part the trial court's order, and remand with directions.

I. Background

In the underlying action, Holt, a law firm, sued Kellum for $244,871 in unpaid attorney fees. A jury, however, determined that Holt was entitled to only $27,849 in unpaid attorney fees. The trial court entered judgment for that amount and, under a prevailing-party provision of the retainer agreement, awarded Holt $210,864 for attorney fees and costs incurred in litigating the case.

Kellum appealed the judgment and fee award and, through Pioneer, posted a $306,000 supersedeas bond to stay execution of judgment on those matters during the appeal.

On appeal, a division of this court affirmed the underlying $27,849 judgment but vacated the attorney fee award and remanded it for reconsideration in light of, and findings with respect to, the factors listed in Colo. RPC 1.5. See Holt Group, L.L.C. v. Kellum, 2008 WL 2379204 (Colo.App. No. 07CA0534, June 12, 2008) (not published pursuant to C.A.R. 35(f))(Holt I ).

Before Holt I was decided, however, Holt obtained a supplemental award of $38,403 in attorney fees and costs incurred in post-judgment, post-initial attorney fee award litigation. Kellum unsuccessfully appealed the supplemental award of attorney fees and costs. Holt Group, L.L.C. v. Kellum, 2008 WL 5179718 (Colo.App. No. 07CA2580, Dec. 11, 2008)(not published pursuant to C.A.R. 35(f)(Holt II) (affirming supplemental award).

On remand of Hol# I, the trial court, after entering findings of fact pursuant to Colo. RPC 1.5, reinstated its award of $210,364 in attorney fees.

[53]*53Subsequently, Holt filed a motion for release of $91,120 in supersedeas bond funds, representing the amount of the judgments affirmed in Holt I and II (ie., the $27,849 jury verdict and the $38,403 supplemental attorney fee award) plus accrued interest. Pioneer objected, arguing that Holt was only entitled to $27,849 plus appropriate interest because the $38,408 award in supplemental fees was outside the scope of the bond and therefore not covered. Pioneer further argued that the remainder of the bond should be discharged because (1) Kellum had sue-cessfully overturned the original $210,364 attorney fee award in Holt I and (2) bond funds should not be made available to satisfy any part of the reinstated $210,864 fee award, which Kellum had again appealed in Holt Group, L.L.C. v. Kellum, (Colo.App. No. 09CA0650, Aug. 5, 2010) (Holt III ).

The trial court ordered the requested $91,120 in bond funds released to Holt and ordered Pioneer to retain the balance of the bond for additional disbursements related to the $210,364 attorney fee award.

On appeal, Pioneer presents two main arguments. First, it contends that the trial court erred when it determined that the $38,403 in supplemental attorney fees was a cost covered by, and therefore recoverable by Holt under, the terms of the supersedeas bond. Second, it contends that the trial court erred in holding the supersedeas bond not discharged, but still in effect, with respect to the $210,864 fee award which had been vacated by the division in Holt I, reinstated on remand, and appealed in Holt IIL.

As set forth more fully below, we agree with Pioneer's first, but not its second, contention. Our analysis takes into consideration that two judges presided over these proceedings in the trial court: Judge Naves presided over all proceedings except for the hearing to determine the amount of the su-persedeas bond, over which Judge Rappaport presided.

II. Pioneer's Responsibility for Payment of the Holt II Supplemental Fee Award

Pioneer contends, and we agree, that the trial court erred in determining that Holt could execute against the bond for the $38,403 award of supplemental attorney fees, plus interest.

In its order, the trial court concluded that the bond "plainly states that the "judgment [sic] of the Court is for $306,000.00" and that "Pioneer is responsible for the amount of the judgment plus 'all costs' awarded against [Kellum]." The trial court then concluded that the $38,403 were "costs" of the case and, thus, covered by the bond.

Supersedeas bonds serve an important role in protecting an appellee's judgment on appeal. See Muck v. Arapahoe County Dist. Court, 814 P.2d 869, 878 (Colo.1991); see also, e.g., Neeley v. Bankers Trust Co., 848 F.2d 658, 660 (5th Cir.1988) ("A supersedeas bond protects the appellee from the inherent risks, such as subsequent insolvency of the appellant, associated with the delay in enforcement of the ... judgment while the appeal proceeds."); Poplar Grove Planting & Ref. Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 (5th Cir.1979) ("A judgment debtor who wishes to appeal may use the bond to avoid the risk of satisfying the judgment only to find that restitution is impossible after reversal on appeal. At the same time, the bond secures the prevailing party against any loss sustained as a result of being forced to forgo execution on a judgment during the course of an ineffectual appeal.").

"The extent of [a surety's] liability under the supersedeas bond must be determined in accordance with the real or presumed intention of the parties." Aviation Credit Corp. v. Conner Air Lines, Inc., 307 F.2d 685, 688 (5th Cir.1962). Consequently, we look to the terms of a supersedeas bond to determine the extent to which a surety is bound. Beatrice Foods Co. v. New England Printing & Lithographing Co., 930 F.2d 1572, 1574 (Fed.Cir.1991); see also Arthur Stearns, The Law of Swretyship § 10.2, at 356 (5th ed. 1951) ("The surety ... cannot be held liable beyond the terms of the bond.").

Because "the obligation of sureties upon bonds is strictissini juris," it is "not to [54]*54be extended by implication or enlarged construction of the terms of the contract entered into." Crane v. Buckley, 203 U.S. 441, 447, 27 S.Ct. 56, 51 L.Ed. 260 (1906).

The interpretation of a bond's terms, like those of any other contract, is a matter of law. Beatrice Foods Co., 930 F.2d at 1574. Thus, with respect to the bond with which we are concerned here, our review is de novo. Savage v. Williams Prod. RMT Co., 140 P.3d 67

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Holt Group, L.L.C. v. Kellum, 260 P.3d 50, 2010 WL 3036499, 2010 Colo. App. LEXIS 1072 (Colo. Ct. App. 2010).

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