Law Offices of J.E. Losavio v. Law Firm of Michael W. McDivitt, P.C. , 17 Brief Times Rptr. 1859 ( 1993 )

Chief Judge STERNBERG,

dissenting.

The trial court concluded that McDivitt’s efforts were substantially responsible for obtaining the settlement and, conversely, that Losavio’s contribution was minimal. There is ample evidentiary support for these conclusions. They support the fee division; thus, in my view, we err in not affirming the judgment.

My review of the record persuades me that Losavio’s services were quite generously compensated for by the $18,000 he was awarded. I find it difficult to ignore the fact that the amount for which the case eventually settled was identical to that negotiated by McDivitt before Losavio had any involvement. Indeed, as time went by, because of his deteriorating mental state, the plaintiff was becoming a less and less attractive litigant; thus, he was fortunate that the $300,-000 offer remained on the table.

Arguably, as the majority notes, in arriving at his conclusion, the magistrate placed too much emphasis on the sums advanced by each attorney for costs in dividing the fees. Nevertheless, the conclusion as to who did the most significant work in reaching the settlement finds ample support in the record. City of Littleton v. Employers Fire Insurance Co., 169 Colo. 104, 453 P.2d 810 (1969). (A judgment is presumed to be correct, and the findings of the trial court are conclusive if supported by the evidence.)

Indeed, in my view, the record would support an award of the $100,000 attorney fee to McDivitt, leaving Losavio to pursue his action against the client for recovery based upon his hourly contract. However, no cross-appeal having been filed in this case, I would simply affirm the judgment.