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" 000 " . . . . . 000 . . . ,,, .,, ,;. fE . . . . 000 . . . .. .. ..................O000O........................ ...... ... . .................................. , . .. .. ................O000O................. https://rain-kys.xyz/ ‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾ 15k lines rees ‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾ ███████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████ ███████████████████ █████ ███████████████████ ███████████████████ Rain █████ BY: rees ███████████████████ ███████████████████ ▄███████▄ ███████████████████ ███████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████ ██████████████████ █████████████████ ████████████████ ███████████████ ██████████████ █████████████ ████████████ ███████████ ██████████ Reasoning ████████ ‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾ Ella Nelson is a mentally unstable attention seeking whore that jumped from community to community for attention. She used to identify herself as a member of LGBT and listened to tranny rappers, then started larping as a nazi (keep in mind that she is not a nazi and people like her cannot be nazis) but got rejected hard by the community, which led her to join a cutting child porn cult called 764 (see proof below). After getting confronted, she said that national socialists were rude to her and that her image has gotten ruined in the community. Ella Nelson has openly asked for child pornography, distributed it and admitted to liking it. It is also funny how she larped as a nazi tradwife whilst allowing gore and porn into her server, and wearing the typical e-whore alt-girl tiktok girl Kittens speaking here Welcome to Sebastian Engel aka Flesh's Dox ! :) I was previously friends with the retard but then he decided to secretly snake me to an E-Girl on discord, how fucking pathetic, I've known Killself/Flesh for about 5-6 years, we used to play Minecraft together when we were younger, a bit sad, he went over snaking his friend for a little girl on discord.com. Credits to kittens for the basic information on flesh.. ░▒▓█████▓▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄ ▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄██████ ▒▓███████████████████████████████████████████████████████████████████▄ ▄██████████████████████████████████████████████████████████████████ ▓██████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████ ▓██████▀ ▀███████ ▓███░ ░███▓ ██▓█ ██▓█ ▓▓▓▓ MMP""MM""YMM db `7MM"""Yp, `7MMF' `7MM"""YMM .g8""8q. `7MM"""YMM ▓▓▓▓ ▓▓▓▓ P' MM `7 ;MM: MM Yb MM MM `7 .dP' `YM. MM `7 ▓▓▓▓ ▓▓▓▓ MM ,V^MM. MM dP MM MM d dM' `MM MM d ▓▓▓▓ ▓▓▓▓ MM ,M `MM MM"""bg. MM MMmmMM MM MM MM""MM ▓▓▓▓ ▓▓▓▓ MM AbmmmqMA MM `Y MM , MM Y , MM. ,MP MM Y ▓▓▓▓ ▓▓▓▓ MM A' VML MM ,9 MM ,M MM ,M `Mb. ,dP' MM ▓▓▓▓ ▓▓▓▓ .JMML..AMA. .AMMA..JMMmmmd9 .JMMmmmmMMM .JMMmmmmMMM `"bmmd"' .JMML. ▓▓▓▓ ▓▓▓▓ ▓▓▓▓ ▓▓▓▓ ▓▓▓▓ ▓▓▓▓ .g8"""bgd .g8""8q. `7MN. `7MF'MMP""MM""YMM `7MM"""YMM `7MN. `7MF'MMP""MM""YMM .M"""bgd ▓▓▓▓ ▓▓▓▓ .dP' `M .dP' `YM. MMN. M P' MM `7 MM `7 MMN. M P' MM `7 ,MI "Y ▓▓▓▓ ▓▓▓▓ dM' ` dM' `MM M YMb M MM MM d M YMb M MM `MMb. ▓▓▓▓ ▓▓▓▓ MM MM MM M `MN. M MM MMmmMM M `MN. M MM `YMMNq. ▓▓▓▓ ▓▓▓▓ MM. MM. ,MP M `MM.M MM MM Y , M `MM.M MM . `MM ▓▓▓▓ ▓▓▓▓ `Mb. ,' `Mb. ,dP' M YMM MM MM ,M M YMM MM Mb dM ▓▓▓▓ ▓▓▓▓ `"bmmmd' `"bmmd"' .JML. YM .JMML. .JMMmmmmMMM .JML. YM .JMML. P"Ybmmd" ▓▓▓▓ ▓███ ██▓█ ▓███░ ░███▓ ██████▄ ▄███████ █████████████████████████████████▓▒░▒▓██████████████████▓▒▓██████████████████████████████████████████████████████████████▓████████████████████████▓ ▓████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████▓▒ ▓█▓▒░▀ ▀▓█▓▒ ▓███░ ▒▓█▓▒ ▓███ ░███▓ ▓███ ███▓ ▓███ ███▓ ▓███ 0x01 Personal Information........ ░███▓ ▓███░ 0x02 Previous Addresses.......... ███▓ ▓███░ 0x03 Previous Numbers.......... ███▓ ▓███ 0x04 Databreaches Information.......... ███▓ ▓███ 0x05 Family Members Information.. ███▓ ▓███░ 0x06 House Information........... ░███▓ ▓███ 0x07 IP Information.............. ███▓ ▓███░ 0x08 Social Media Accounts....... ░███▓ ▓███ 0x09 Criminal Records............ ███▓ ▓███ 0x12 Extras...................... ███▓ ▓███ 0x13 Credits..................... ███▓ ▓███░ ░███▓ █████████████████████████████████▓▒░▒▓██████████████████▓▒▓██████████████████████████████████████████████████████████████▓████████████████████████▓ ▓██████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████ ▓██████▀ ▀███████ ▓███░ 0x01 ░███▓ ██▓█ ██▓█ ▓▓▓▓ ███▓ ▓███░ `7MM"""Mq.`7MM"""YMM `7MM"""Mq. .M"""bgd .g8""8q. `7MN. `7MF' db `7MMF' ███▓ ▓███ MM `MM. MM `7 MM `MM. ,MI "Y .dP' `YM. MMN. M ;MM: MM ░███▓ ▓███ MM ,M9 MM d MM ,M9 `MMb. dM' `MM M YMb M ,V^MM. MM ███▓ ▓███ MMmmdM9 MMmmMM MMmmdM9 `YMMNq. MM MM M `MN. M ,M `MM MM ███▓ ▓███░ MM MM Y , MM YM. . `MM MM. ,MP M `MM.M AbmmmqMA MM , ███▓ ▓███ MM MM ,M MM `Mb. Mb dM `Mb. ,dP' M YMM A' VML MM ,M ░███▓ ▓███ .JMML. .JMMmmmmMMM .JMML. .JMM.P"Ybmmd" `"bmmd"' .JML. YM .AMA. .AMMA..JMMmmmmMMM ███▓ ▓███░ ███▓ ▓███ ███▓ ▓███ `7MMF'`7MN. `7MF'`7MM"""YMM .g8""8q. `7MM"""Mq. `7MMM. ,MMF' db MMP""MM""YMM `7MMF' .g8""8q. `7MN. `7MF' ░███▓ ▓███ MM MMN. M MM `7 .dP' `YM. MM `MM. MMMb dPMM ;MM: P' MM `7 MM .dP' `YM. MMN. M ███▓ ▓███░ MM M YMb M MM d dM' `MM MM ,M9 M YM ,M MM ,V^MM. MM MM dM' `MM M YMb M ███▓ ▓███ MM M `MN. M MM""MM MM MM MMmmdM9 M Mb M' MM ,M `MM MM MM MM MM M `MN. M ░███▓ ▓███ MM M `MM.M MM Y MM. ,MP MM YM. M YM.P' MM AbmmmqMA MM MM MM. ,MP M `MM.M ███▓ ▓███ MM M YMM MM `Mb. ,dP' MM `Mb. M `YM' MM A' VML MM MM `Mb. ,dP' M YMM ███▓ ▓███ .JMML..JML. YM .JMML. `"bmmd"' .JMML. .JMM..JML. `' .JMML..AMA. .AMMA..JMML. .JMML. `"bmmd"' .JML. YM ░███▓ ▓███░ ███▓ ▓███ ██▓█ ▓███░ ░███▓ ██████▄ ▄███████ █████████████████████████████████▓▒░▒▓██████████████████▓▒▓██████████████████████████████████████████████████████████████████▓████████████████████▓ ▓████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████▓▒ FLESH: Full Name: Sebastian Engel Sex: Male Age: 15 Eye Color: Green Height: 5`11 Weight: 138 lb Aliases: Killself, Flesh, Kilself, and Bling, 0cp Home Address: 827 Briarpoint Pl San Diego, CA 92154 IP Address : 216.19.202.132 Picture(s): https://z.zz.fo/8Ne7p.png - - https://z.zz.fo/zfooj.png ( We doxxed him off his mothers google voice ) - https://z.zz.fo/aIzCz.png ( His mother with friends :> ) - https://z.zz.fo/aHcAX.png ( Hi so like I'm really drunk ) - https://z.zz.fo/MgZPB.png ( IP ) - https://z.zz.fo/WJuSw.png ( :D ) LOST: Full Name: Ella Nelson Age: 15 - Feb, 24th, 2006 Usernames: ellavator, ellavator666, purearyan, xanr.io, xanrio, torbrowserlol, halfthecrimes, halfdacrimes Addresses: 6453 Bay Vista Ct, Indianapolis, IN 46250, USA, 910 Noble Run Apt G, Noblesville, IN 46060-5227 Compilation: https://i.imgur.com/TTfdHkL.png Cutting Picture 1: https://i.imgur.com/HxIIy8H.png Cutting Picture 2: https://i.imgur.com/LW37m8s.png Gypsy Fangirl: https://i.imgur.com/81GJYeW.png Retard In A Wig 1: https://i.imgur.com/gRlq5zM.png Retard In A Wig 2: https://i.imgur.com/qma4jBN.png Retard In A Wig 3: https://i.imgur.com/fa7E8j2.png Black Lives Matter!: https://i.imgur.com/kLpiqxr.png Chat: https://i.imgur.com/tPOVo1x.png Sad Telegram: https://i.imgur.com/I8Kjvyv.png Meet and Greet: https://i.imgur.com/x0ub2sX.png Wishlist: https://i.imgur.com/SWGEaPh.png Twitter 1: https://i.imgur.com/dURRnyp.png Twitter 2: https://i.imgur.com/6yPfSSp.png Pedo Hunterz: https://i.imgur.com/NIAOQrd.png Trolled: https://i.imgur.com/A2jKRkd.jpg Inbred Proof: https://i.imgur.com/Q7Ytl8T.png 764: https://i.imgur.com/apAz6LA.png "copious amount of cp": https://i.imgur.com/6iyfVMp.png Dad dead: https://i.imgur.com/w5ZiMzD.png Young Ella 1: https://i.imgur.com/b3JZYQa.png Young Ella 2: https://i.imgur.com/Bs7LjMC.png Young Ella with Cooper: https://i.imgur.com/uA9M05J.png ░▒▓█████▓▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄ ▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄▄██████ ▒▓███████████████████████████████████████████████████████████████████▄ ▄██████████████████████████████████████████████████████████████████ ▓██████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████ ▓██████▀ ▀███████ ▓███░ 0x02 ░███▓ ██▓█ ██▓█ ▓▓▓▓ ███▓ ▓███ `7MM"""Mq.`7MM"""Mq. `7MM"""YMM `7MMF' `7MF'`7MMF' .g8""8q. `7MMF' `7MF'.M"""bgd ░███▓ ▓███░ MM `MM. MM `MM. MM `7 `MA ,V MM .dP' `YM. MM M ,MI "Y ███▓ ▓███ MM ,M9 MM ,M9 MM d VM: ,V MM dM' `MM MM M `MMb. ███▓ ▓███ MMmmdM9 MMmmdM9 MMmmMM MM. M' MM MM MM MM M `YMMNq. ███▓ ▓███░ MM MM YM. MM Y , `MM A' MM MM. ,MP MM M . `MM ░███▓ ▓███ MM MM `Mb. MM ,M :MM; MM `Mb. ,dP' YM. ,M Mb dM ███▓ ▓███ .JMML. .JMML. .JMM..JMMmmmmMMM VF .JMML. `"bmmd"' `bmmmmd"' P"Ybmmd" ███▓ ▓███░ ░███▓ ▓███ ███▓ ▓███ db `7MM"""Yb. `7MM"""Yb. `7MM"""Mq. `7MM"""YMM .M"""bgd .M"""bgd `7MM"""YMM .M"""bgd ███▓ ▓███ ;MM: MM `Yb. MM `Yb. MM `MM. MM `7 ,MI "Y ,MI "Y MM `7 ,MI "Y ░███▓ ▓███░ ,V^MM. MM `Mb MM `Mb MM ,M9 MM d `MMb. `MMb. MM d `MMb. ███▓ ▓███ ,M `MM MM MM MM MM MMmmdM9 MMmmMM `YMMNq. `YMMNq. MMmmMM `YMMNq. ███▓ ▓███ AbmmmqMA MM ,MP MM ,MP MM YM. MM Y , . `MM . `MM MM Y , . `MM ███▓ ▓███ A' VML MM ,dP' MM ,dP' MM `Mb. MM ,M Mb dM Mb dM MM ,M Mb dM ░███▓ ▓███░ .AMA. .AMMA..JMMmmmdP' .JMMmmmdP' .JMML. .JMM..JMMmmmmMMM P"Ybmmd" P"Ybmmd" .JMMmmmmMMM P"Ybmmd" ███▓ ▓███ ███▓ ▓███ ██▓█ ▓███░ ░███▓ ██████▄ ▄███████ █████████████████████████████████▓▒░▒▓██████████████████▓▒▓███████████████████████████████████████████████████████████████████▓███████████████████▓ Flesh's Families Previous Addresses Previous Addresses : 643 Hampton Ridge Dr, Akron OH 44313, Summit County, Recorded May 2011, Home Phone: (330) 864-0684 333 Kimberly Rd, Akron OH 44313, Summit County, Recorded October 2007, Home Phone: (330) 864-0684 260 E Chestnut St, Chicago IL 60611, Cook County, Recorded November 2007 1700 W Market St, Akron OH 44313, Summit County, Recorded July 2007 30 E Huron St, Chicago IL 60611, Cook County, Recorded January 2001 900 N Dewitt Pl, Unit 1002, Chicago IL 60611, Cook County, Recorded October 1996 900 N Dewitt Pl, Unit 1004, Chicago IL 60611, Cook County, Recorded July 1995 57 W 82nd St, New York NY 10024, New York County, Recorded February 1988 50 W 85th St, Unit 10, New York NY 10024, New York County, Recorded June 1988 20 W 84th St, New York NY 10024, New York County, Recorded March 1988 22100 Burbank Blvd, Unit 308, Woodland Hills CA 91367, Los Angeles County, Recorded July 1988 643 Hampton Ridge Dr, Akron OH 44313, Summit County, Recorded April 2008, Home Phone: (312) 654-0689 1700 W Market St, Akron OH 44313, Summit County, Recorded July 2007 272 W 77th St, Unit 1A, New York NY 10024, New York County, Recorded July 1990 900 N Dewitt Pl, Unit 1002, Chicago IL 60611, Cook County, Recorded April 2008 50 W 85th St, Unit 10, New York NY 10024, New York County, Recorded June 1988 22100 Burbank Blvd, Unit 308, Woodland Hills CA 91367, Los Angeles County, Recorded July 1988 827 Briarpoint Pl, San Diego CA 92154, San Diego County, Recorded June 2020 ▓██████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████ ▓██████▀ ▀███████ ▓███░ 0x03 ░███▓ ██▓█ ██▓█ ▄███████▄ ▄█ █▄ ▄██████▄ ███▄▄▄▄ ▄████████ ███ ███ ███ ███ ███ ███ ███▀▀▀██▄ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ █▀ ███ ███ ▄███▄▄▄▄███▄▄ ███ ███ ███ ███ ▄███▄▄▄ ▀█████████▀ ▀▀███▀▀▀▀███▀ ███ ███ ███ ███ ▀▀███▀▀▀ ███ ███ ███ ███ ███ ███ ███ ███ █▄ ███ ███ ███ ███ ███ ███ ███ ███ ███ ▄████▀ ███ █▀ ▀██████▀ ▀█ █▀ ██████████ ███▄▄▄▄ ███ █▄ ▄▄▄▄███▄▄▄▄ ▀█████████▄ ▄████████ ▄████████ ▄████████ ███▀▀▀██▄ ███ ███ ▄██▀▀▀███▀▀▀██▄ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ █▀ ███ ███ ███ █▀ ███ ███ ███ ███ ███ ███ ███ ▄███▄▄▄██▀ ▄███▄▄▄ ▄███▄▄▄▄██▀ ███ ███ ███ ███ ███ ███ ███ ███ ▀▀███▀▀▀██▄ ▀▀███▀▀▀ ▀▀███▀▀▀▀▀ ▀███████████ ███ ███ ███ ███ ███ ███ ███ ███ ██▄ ███ █▄ ▀███████████ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ▄█ ███ ▀█ █▀ ████████▀ ▀█ ███ █▀ ▄█████████▀ ██████████ ███ ███ ▄████████▀ ███ ███ ▓███ ███▓ ▓███ ██▓█ ▓███░ ░███▓ ██████▄ ▄███████ █████████████████████████████████▓▒░▒▓██████████████████▓▒▓███████████████████████████████████████████████████████████████████▓███████████████████▓ Phone Numbers for Paul Ehrlich in San Diego, CA (330) 864-0684 (Primary Phone) Landline Ameritech Ohio First reported October 2007 (312) 654-0689 Landline Ameritech Illinois First reported April 2021 (586) 484-6627 Wireless Cellco Partnership dba Verizon Wireless - MI First reported April 2021 (601) 927-1230 Wireless New Cingular Wireless PCS LLC - GA First reported April 2021 (623) 261-5322 Wireless Sprint Spectrum LP First reported April 2021 (773) 893-4614 Landline Access One Inc - IL First reported April 2011 (312) 893-4614 Landline Broadwing Communications LLC - IL First reported March 1988 (212) 769-9240 Landline Verizon New York Inc First reported March 2016 (312) 587-7958 Landline Ameritech Illinois First reported March 2016 (818) 594-8500 Landline Pacific Bell Telephone Company First reported March 2016 (917) 587-7958 Wireless New Cingular Wireless PCS LLC - DC First reported March 2016 ▓██████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████ ▓██████▀ ▀███████ ▓███░ 0x04 ░███▓ ██▓█ ██▓█ ████████▄ ▄████████ ███ ▄████████ ███ ▀███ ███ ███ ▀█████████▄ ███ ███ ███ ███ ███ ███ ▀███▀▀██ ███ ███ ███ ███ ███ ███ ███ ▀ ███ ███ ███ ███ ▀███████████ ███ ▀███████████ ███ ███ ███ ███ ███ ███ ███ ███ ▄███ ███ ███ ███ ███ ███ ████████▀ ███ █▀ ▄████▀ ███ █▀ ▀█████████▄ ▄████████ ▄████████ ▄████████ ▄████████ ▄█ █▄ ▄████████ ▄████████ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ █▀ ███ ███ ███ █▀ ███ ███ ███ █▀ ███ █▀ ▄███▄▄▄██▀ ▄███▄▄▄▄██▀ ▄███▄▄▄ ███ ███ ███ ▄███▄▄▄▄███▄▄ ▄███▄▄▄ ███ ▀▀███▀▀▀██▄ ▀▀███▀▀▀▀▀ ▀▀███▀▀▀ ▀███████████ ███ ▀▀███▀▀▀▀███▀ ▀▀███▀▀▀ ▀███████████ ███ ██▄ ▀███████████ ███ █▄ ███ ███ ███ █▄ ███ ███ ███ █▄ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ███ ▄█ ███ 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Country: UNITED STATES ▓██████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████ ▓██████▀ ▀███████ ▓███░ 0x05 ░███▓ ██▓█ ██▓█ ▓▓▓▓ ███▓ ▓███ `7MM"""YMM db `7MMM. ,MMF'`7MMF'`7MMF' `YMM' `MM' ░███▓ ▓███░ MM `7 ;MM: MMMb dPMM MM MM VMA ,V ███▓ ▓███ MM d ,V^MM. M YM ,M MM MM MM VMA ,V ███▓ ▓███ MM""MM ,M `MM M Mb M' MM MM MM VMMP ███▓ ▓███ MM Y AbmmmqMA M YM.P' MM MM MM , MM ░███▓ ▓███░ MM A' VML M `YM' MM MM MM ,M MM ███▓ ▓███ .JMML..AMA. .AMMA..JML. `' .JMML..JMML..JMMmmmmMMM .JMML. ███▓ ▓███ ███▓ ▓███░ ░███▓ ▓███ `7MMM. ,MMF'`7MM"""YMM `7MMM. ,MMF'`7MM"""Yp, `7MM"""YMM `7MM"""Mq. .M"""bgd ███▓ ▓███ MMMb dPMM MM `7 MMMb dPMM MM Yb MM `7 MM `MM. ,MI "Y ███▓ ▓███ M YM ,M MM MM d M YM ,M MM MM dP MM d MM ,M9 `MMb. ███▓ ▓███░ M Mb M' MM MMmmMM M Mb M' MM MM"""bg. MMmmMM MMmmdM9 `YMMNq. ░███▓ ▓███ M YM.P' MM MM Y , M YM.P' MM MM `Y MM Y , MM YM. . `MM ███▓ ▓███ M `YM' MM MM ,M M `YM' MM MM ,9 MM ,M MM `Mb. Mb dM ███▓ ▓███░ .JML. `' .JMML..JMMmmmmMMM .JML. `' .JMML..JMMmmmd9 .JMMmmmmMMM .JMML. .JMM.P"Ybmmd" ███▓ ▓███ ░███▓ ▓███ ██▓█ ▓███░ ░███▓ ██████▄ ▄███████ █████████████████████████████████▓▒░▒▓██████████████████▓▒▓███████████████████████████████████████████████████████████████████▓███████████████████▓ Flesh's Mom Paul Ehrlich in San Diego, CA Age: 60 Current Address: 827 Briarpoint Pl, San Diego CA 92154, San Diego County, Since June 2020 Full Name: Paul M Ehrlich Email: paulmehrlich1962@gmail.com Also Known As : Paul Ehrlich Paul Erlich Paul Beckham Paul Ehrlich Macgregor Paul T Ehrlich Paul M Ehrilch Numbers: (330) 864-0684 (Primary Phone) Landline Ameritech Ohio First reported October 2007 (312) 654-0689 Landline Ameritech Illinois First reported April 2021 (586) 484-6627 Wireless Cellco Partnership dba Verizon Wireless - MI First reported April 2021 (601) 927-1230 Wireless New Cingular Wireless PCS LLC - GA First reported April 2021 (623) 261-5322 Wireless Sprint Spectrum LP First reported April 2021 (773) 893-4614 Landline Access One Inc - IL First reported April 2011 (312) 893-4614 Landline Broadwing Communications LLC - IL First reported March 1988 (212) 769-9240 Landline Verizon New York Inc First reported March 2016 (312) 587-7958 Landline Ameritech Illinois First reported March 2016 (818) 594-8500 Landline Pacific Bell Telephone Company First reported March 2016 (917) 587-7958 Wireless New Cingular Wireless PCS LLC - DC First reported March 2016 Flesh's Mom's Relatives John Beckham (Husband) Paul Ehrlich Scott Ehrlich Blair Ehrlich Carolyn Ehrlich Dylan Ehrlich Linda Leslie Paige Ehrlich Venus Boykin Venus Jackson Alexis Ehler Ann Brown Anthony Perry Ayana Hayes Brown Saban Carol Brown Earldean Boykin Earldean Jackson Earldean Jackson Earldean Jackson Hattie Lewis Jack Lypka Jimmie Brown Kimberly Jackson Larry Aldridge Mary Dwan Patricia Smith Robert Behic Saban Brown Sharon Jackson Summer Brown Teamer Beal Venus Boykin Venus Jackson Flesh's Mom's Associates Ashley Witmer Elizabeth Flanagan George Rudenauer Kari Uno Megan Ginkel Michael Cofield Michael Mcmonagle Billy Newton Flesh's Mom's Neighbors Imelda Marquez, (619) 274-1444, 824 Briarpoint Pl, San Diego CA 92154 A JR, 820 Briarpoint Pl, San Diego CA 92154 Amalia Quintero, 817 Briarpoint Pl, San Diego CA 92154 C JR, (619) 671-9927, 816 Briarpoint Pl, San Diego CA 92154 B Alwaque, 812 Briarpoint Pl, San Diego CA 92154 Paul Ehrlich is likely married to John Wallace Beckham. Paul and John have lived together in at least 11 separate locations. Paul M Ehrlich is 60 years old. Currently Paul lives at the address 827 Briarpoint Pl, San Diego CA 92154. Paul has lived at this San Diego, CA address for about 1 year, after moving in around June of 2020. Paul previously lived at 643 Hampton Ridge Dr, Akron OH 44313, starting in May of 2011. Going further back, starting in October of 2007, Paul lived at 333 Kimberly Rd, Akron OH 44313. It is likely that Paul Ehrlich is married to John Wallace Beckham, and they have lived together in at least 11 different locations. The following people are relatives or close associates of Paul: Paul Ehrlich, Scott Ehrlich, Blair Ehrlich, Carolyn Ehrlich, Dylan Ehrlich, Linda Leslie, Paige Ehrlich, Venus Boykin, Venus Jackson and Alexis Ehler. Paul's current phone number is (330) 864-0684. This Landline number was issued by 'Ameritech Ohio', first reported in public records on October of 2007. Past phone numbers for Paul include (312) 654-0689, (586) 484-6627 and (601) 927-1230. The primary email address for Paul is paulmehrlich1962@gmail.com. Flesh's Dad John Beckham, in Akron, OH Full Name: John Wallace Beckham Email: jbeckhamlat@gmail.com Age: 65 Ip: 74.219.98.234 Also Known As: John W Beckham, John Beckham, J Beckham, John H Beckham, John Beckaman, B John Address: 333 Kimberly Rd, Akron OH 44313, Summit County, Since September 2007 Phone Numbers: (330) 864-0684 (Primary Phone), Landline, Ameritech Ohio, First reported September 2007 (312) 654-0689, Landline, Ameritech Illinois, First reported November 2002 (330) 983-4667, Landline, Time Warner Cable Information Services (Ohio) LLC - OH, First reported May 2011 (773) 893-4614, Landline, Access One Inc - IL, First reported April 2011 (330) 801-3733, Wireless, Cellco Partnership dba Verizon Wireless - OH, First reported September 2014 (330) 864-0685, Landline, Ameritech Ohio, First reported June 2011 (330) 962-2931, Wireless, Sprint Spectrum LP, First reported August 2016 (212) 769-9240, Landline, Verizon New York Inc, First reported March 2016 (310) 456-3796, Wireless, Frontier California Inc, First reported March 2016 (312) 339-4854, Wireless, Cellco Partnership dba Verizon Wireless - IL, First reported March 2016 (312) 587-7958, Landline, Ameritech Illinois, First reported March 2016 (312) 664-2483, Landline, Ameritech Illinois, First reported March 2016 (312) 893-4614, Landline, Broadwing Communications LLC - IL, First reported March 2016 Flesh's Dad's Relatives Paul Ehrlich (Wife) Linda Leslie Venus Boykin Venus Jackson Andrew Smith Ann Williams Anthony Perry Brown Saban Clara Spraggins Earldean Boykin Earldean Jackson Earldean Jackson Frank Leslie Gregory Spraggins Iris Williams John Dwan Joseph Holloway Kittrick Smith Larry Aldridge Leroy Jackson Luella Williams Flesh's Dad's Associates Albert Haverstock Barry Moss Betty Smith Burton Weitzman Carol Stacey Creedence Gonzalez Eileen Geary Jan Marinello Jennifer Burke John Janecek Joyce Sigmon Judith Kaufman Lawrence Glass Mara Schieber Martin Kessler Max Gendel Meryl Hauser Michael Bernardo Michael Jaron Paul Ehrlich Renee Yang Robert Bailey Susan Crabtree Wendy Kase Wu Hung Martha Slaughter Thomas Cirone Barbara Meyers Barbara Siepker Barry Nannini Bryan Bilczewski Carla Inwood Carol Ginsburg Carole Clark Carole Shapero David Holmes Donald Mclaughlin Doris Sternberg Frank Siepker Gary Strauss Geoffrey Anderson George Knight Harry Shlensky Howard Mcfarland Ira Halper Jack Weiner Janet Stopka Jerome Ginsburg Joan Young Katherine Gilbert Lawrence Gottlieb Michael Winter Paul Yakin Sandra Mcnaughton Susan Cord Susan Hill Susan Joynt Thomas Little Venancio Bustos Virginia Ertle Flesh's Dad's Neighbors Tyler Houska, (330) 666-3435, 318 Kimberly Rd, Akron OH 44313 A JR, (330) 864-5069, 317 Kimberly Rd, Akron OH 44313 William Murty, 356 Kimberly Rd, Akron OH 44313 Nicholas Rosso, (330) 867-9648, 369 Kimberly Rd, Akron OH 44313 Nina Gerhardt, 370 Kimberly Rd, Akron OH 44313 John Beckham is likely married to Paul M Ehrlich. John and Paul have lived together in at least 11 separate locations. John Wallace Beckham is 65 years old. Currently John lives at the address 333 Kimberly Rd, Akron OH 44313. John has lived at this Akron, OH address for about 14 years, after moving in around September of 2007. John previously lived at 643 Hampton Ridge Dr, Akron OH 44313, starting in April of 2008. Going further back, starting in July of 2007, John lived at 1700 W Market St, Akron OH 44313. It is likely that John Beckham is married to Paul M Ehrlich, and they have lived together in at least 11 different locations. The following people are relatives or close associates of John: Linda Leslie, Venus Boykin, Venus Jackson, Andrew Smith, Ann Williams, Anthony Perry, Brown Saban, Clara Spraggins, Earldean Boykin and Earldean Jackson. John's current phone number is (330) 864-0684. This Landline number was issued by 'Ameritech Ohio', first reported in public records on September of 2007. Past phone numbers for John include (312) 654-0689, (330) 983-4667 and (773) 893-4614. The primary email address for John is jbeckhamlat@gmail.com. Lost's Dad : Name: Jeffrey Nathanael Nelso Age: 40 Birthday: Jul 13, 1981 Aliases: Jeff Nielson, Jeffrey Nielson, Jeffery Nielson Contact Information Phone Numbers: (435) 881-2427 VIEW PHONE DETAILS Line Type Mobile Carrier Location Salt Lake City-Brigham City, UT 84304 Phone Number (317) 844-8852 Line Type Carrier Location Carmel, IN 46032 Phone Number (435) 750-8960 Line Type Landline Carrier Location Logan, UT 84304 Phone Number (801) 750-8960 Line Type Mobile Carrier Location Salt Lake City, UT 84009 Phone Number (435) 750-4960 Line Type Landline Carrier Location gan, UT 84304 Phone Number (317) 802-0173 Line Type Landline Carrier Location Indianapolis-Trinity, IN 46107 TALK AMERICA INC - MI (CAVALIER) Phone Number (313) 362-9885 Line Type Landline Carrier Location Southfield, MI 48141 Prepaid Phone Number (317) 566-0542 Line Type Landline Carrier Location Carmel, IN 46032 Phone Number (317) 705-0907 Line Type Landline Carrier Location Carmel, IN 46032 ▓██████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████ ▓██████▀ ▀███████ ▓███░ 0x06 ░███▓ ██▓█ ██▓█ ▓▓▓▓ ███▓ ▓███░ `7MMF' `7MMF' .g8""8q. `7MMF' `7MF'.M"""bgd `7MM"""YMM ░███▓ ▓███ MM MM .dP' `YM. 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YM ███▓ ▓███░ ░███▓ ▓███ ██▓█ ▓███░ ░███▓ ██████▄ ▄███████ █████████████████████████████████▓▒░▒▓██████████████████▓▒▓███████████████████████████████████████████████████████████████████▓███████████████████▓ Picture of house : https://www.google.com/maps/place/827+Briarpoint+Pl,+San+Diego,+CA+92154/@32.5805274,-117.0286359,3a,75y,123.69h,90t/data=!3m6!1e1!3m4!1sZPmugh2Wx8C-YFH2PpzD7Q!2e0!7i16384!8i8192!4m5!3m4!1s0x80d94f2b0ec57265:0x6bf5f9fb533d40fe!8m2!3d32.5804185!4d-117.0284452 Listed by Patti McKelvey •DRE #00956130 • Coldwell Banker West 619-271-8300 (agent) Patti@McKelveyRealty.com (agent) Last updated May 14, 2009 Source:CRMLS #90019104 Status: Property Type: Single Family Residence HOA Dues: $38/month Year Built: 2005 Community: 92154 - Otay Mesa Lot Size: 4,950 Sq. Ft. MLS#: 90019104 Price Insights: $999,053 Price/Sq.Ft.: $393 3.5% Property Details for 827 Briarpoint Pl: Interior Features Laundry Information Has Laundry Individual Room, Gas Dryer Hookup Kitchen Information Appliances: Dishwasher, Garbage Disposal Has Appliances Bathroom Information # of Baths (Full): 3 Heating Information Forced Air, Natural Gas Has Heating Interior Features Levels: Two Parking / Garage, Homeowners Association, School / Neighborhood, Taxes / Assessments Parking / Garage Information Attached Garage # of Garage Spaces: 3 Carport Attached Has Parking # of Parking Spaces: 3 Homeowners Association Is Part of Association Association Name: ON FILE Association Fee: $38 Association Fee Frequency: Monthly School Information High School District: Other Assesments Information Assessments: Mello-Roos Exterior Features Exterior Information Roof: Tile Fencing: Partial Has Fence Construction Materials: Stucco Exterior Features Pool Features: None Property / Lot Details Lot Information Lot Size Source: Assessor's Data Lot Features: Lot-Level/Flat Lot Dimensions Source: Assessor Property Information Living Area Source: Assessor's Data Parcel Number: 6453703800 Total # of Stories: 2 Location Details, Listing Information Location Information Other Subdivision Name: SAN DIEGO Directions: [Cross Street(s)]: Golden Sands Pl Zoning: R1 Listing Information Buyer Agency Compensation: 3.500 Buyer Agency Compensation Type: % Agent & Office Information Listing Agent Information List Agent First Name: Patti List Agent Last Name: McKelvey Listing Office Information List Office Name: Coldwell Banker West Selling Agent Information Buyer Agent First Name: Pat Buyer Agent Last Name: Torres Selling Office Information Buyer Office Name: Coldwell Banker West Sale & Tax History for 827 Briarpoint Pl : Year Property Tax Land + Additions = Assessed Value 2021 $9,599 (+1.5%) $237,933 $237,933 $475,866 2020 $9,452 (+3.3%) $237,933 $237,933 $475,866 2019 $9,153 (+33.1%) $235,494 $235,494 $470,988 2018 $6,878 (+1.6%) $230,877 $230,877 $461,754 2017 $6,769 (+3.2%) $221,912 $221,912 $443,824 2016 $6,559 (+0.9%) $221,912 $221,912 $443,824 2015 $6,500 (+1.4%) $217,561 $217,561 $435,122 2014 $6,412 (+0.7%) $210,097 $210,097 $420,194 2013 $6,369 (+2.6%) $210,097 $210,097 $420,194 2012 $6,205 (+2.7%) $209,148 $209,148 $418,296 2011 $6,042 (+2.1%) $205,048 $205,048 $410,096 2010 $5,916 (−2.7%) $201,028 $201,028 $402,056 2009 $6,080 (−13.0%) $199,526 $199,526 $399,052 2008 $6,992 $200,000 $200,000 $400,000 Dates: May 8, 2009 Sold (MLS) CRMLS #90019104 $400,000 Mar 30, 2009 Listed CRMLS #90019104 $389,900 Beds5 Baths3 Sq. Ft.2,541 Stories— Lot Size4,951 Sq. Ft. StyleSingle Family Residential Year Built2005 Year Renovated2005 CountySan Diego County APN6453703800 Home facts updated by county records on Apr 7, 2022. Sale Proceeds Home Sale Price $999,053 Outstanding Mortgage $225,000 Selling with Traditional AgentSelling with Redfin Agent +$9,991 $717,185$727,175 2.5% ($24,976)1.5% ($14,986) Get $9,991 More Selling Your Home with a Redfin Agent Schedule Selling Consultation Rental Estimate for 827 Briarpoint Pl Edit Home Facts to improve accuracy. $3,645 - $4,442 / mo Market trends for San Diego Single family home, 4+ beds $4,450 / mo Median rent +7.23% Since Jan 2021 Rental estimate based on recent rentals. Activity for 827 Briarpoint Pl 0 0 0 0 Schools 7 /10 Ocean View Hills School Public, K-6 • Serves this home 985 Students 0.6mi Distance 23 reviews 7 /10 Vista Del Mar Public, 7-8 • Serves this home 413 Students 0.7mi Distance 0 reviews 3 /10 San Ysidro Middle School Public, 7-8 • Serves this home 656 Students 1.5mi Distance 2 reviews 4 /10 San Ysidro High School Public, 9-12 • Serves this home 2426 Students 1.3mi Distance 19 reviews School data is provided by GreatSchools, a nonprofit organization. Redfin recommends buyers and renters use GreatSchools information and ratings as a first step, and conduct their own investigation to determine their desired schools or school districts, including by contacting and visiting the schools themselves. Redfin does not endorse or guarantee this information. School service boundaries are intended to be used as a reference only; they may change and are not guaranteed to be accurate. To verify school enrollment eligibility, contact the school district directly. Around This Home Transportation in Ocean Crest 37 / 100 Car-Dependent Walk Score® 31 / 100 Some Transit Transit Score® 11 / 100 Somewhat Bikeable Bike Score® Places Nearby 10 groceries, 43 restaurants, 10 parks Climate Risk About Climate Risk Most homes have some risk of natural disasters, and may be impacted by climate change due to rising temperatures and sea levels. Flood Risk Provided by Flood Factor Minimal - This property is unlikely to flood over the next 30 years. Environmental Risks Provided by Storm Risk Relatively Low - 13 storms expected in 2050 Drought Risk Extreme - Water stress expected to be 96% in 2050 Heat Risk Relatively Low - 22 hot days expected in 2050 Fire Risk Moderate - 0.9% of land expected to burn in 2050 Climate risk data is provided for informational purposes only by Flood Factor™ and ClimateCheck®. Questions or feedback about this data? Get help at Flood Factor® and climatecheck.com Market Insights for 827 Briarpoint Pl Based on homes from MLS and/or public records Redfin California San Diego Ocean Crest Single-Family Home Sales (Last 30 days) Otay MesaNeighborhood $875K Median List Price 16 Median Days on Mkt. 2 # Listed Homes $426 Median $ / Sq. Ft. 103.3% Median Sale-to-List 8 # Sold Homes image Ocean CrestNeighborhood $875K Median List Price 16 Median Days on Mkt. 2 # Listed Homes $434 Median $ / Sq. Ft. 103.2% Median Sale-to-List 7 # Sold Homes Placeholder 92154ZIP $720K Median List Price 13 Median Days on Mkt. 20 # Listed Homes $476 Median $ / Sq. Ft. 102.3% Median Sale-to-List 30 # Sold Homes Placeholder San DiegoCity $1.2M Median List Price 10 Median Days on Mkt. 493 # Listed Homes $750 Median $ / Sq. Ft. 106.1% Median Sale-to-List 685 # Sold Homes Placeholder San Diego CountyCounty $985K Median List Price 11 Median Days on Mkt. 1526 # Listed Homes $582 Median $ / Sq. Ft. 105.8% Median Sale-to-List 1979 # Sold Homes Placeholder Single-Family Home Trends in Otay Mesa Median Sale Price $900,000 +28.0% year-over-year # of Homes Sold 22 +10.0% year-over-year Median Days on Market 8 +2 year-over-year 1 year3 years5 years ShareEmbed Location Data Apr 2022 Growth % YoY Otay Mesa $900,000 +28.0% See more market trends in Otay Mesa Market Competition in Otay Mesa Calculated over the last 3 months 88 Very Competitive Redfin Compete Score™ 0 100 Many homes get multiple offers, some with waived contingencies. The average homes sell for about 4% above list price and go pending in around 7 days. can sell for about 7% above list price and go pending in around 5 days. What It Takes to Win an Offer near Otay Mesa ~$700K Offer 9 Weeks Ago 4 Beds, 3.5 Baths, ~1,750 Sq. Ft. Condo Offer Not Accepted— Sold for $700K Over List Price 0% Days on Market 4 Competing Offers 2 Down Payment ~10% David Zarraonandia Redfin Agent ▓██████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████ ▓██████▀ ▀███████ ▓███░ 0x07 ░███▓ ██▓█ ██▓█ ▓▓▓▓ ███▓ ▓███ `7MMF' `7MM"""Mq. ░███▓ ▓███░ MM MM `MM. ███▓ ▓███ MM MM ,M9 ███▓ ▓███ MM MMmmdM9 ███▓ ▓███ MM MM ░███▓ ▓███░ MM MM ███▓ ▓███ .JMML. .JMML. ███▓ ▓███ ░███▓ ▓███░ ███▓ ▓███ `7MMF'`7MN. `7MF'`7MM"""YMM .g8""8q. `7MM"""Mq. `7MMM. ,MMF' db MMP""MM""YMM `7MMF' .g8""8q. `7MN. `7MF' ███▓ ▓███ MM MMN. M MM `7 .dP' `YM. MM `MM. MMMb dPMM ;MM: P' MM `7 MM .dP' `YM. MMN. M ███▓ ▓███░ MM M YMb M MM d dM' `MM MM ,M9 M YM ,M MM ,V^MM. MM MM dM' `MM M YMb M ███▓ ▓███ MM M `MN. M MM""MM MM MM MMmmdM9 M Mb M' MM ,M `MM MM MM MM MM M `MN. M ░███▓ ▓███ MM M `MM.M MM Y MM. ,MP MM YM. 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YM ███▓ ▓███░ ░███▓ ▓███ ██▓█ ▓███░ ░███▓ ██████▄ ▄███████ █████████████████████████████████▓▒░▒▓██████████████████▓▒▓███████████████████████████████████████████████████████████████████▓███████████████████▓ 110.33.122.75 : City: Queanbeyan Region: New South Wales (NSW) Postal code: 2620 Country: Australia (AU) Continent: Oceania (OC) Coordinates: -35.3522 (lat) / 149.2297 (long) Time: 2022-05-14 06:09:39 (Australia/Sydney) NETWORK IP address: 110.33.122.75 Hostname: n110-33-122-75.hum2.act.optusnet.com.au Provider: Microplex PTY LTD ASN: 4804 IP: 110.33.122.75 COUNTRY: Australia COUNTRY ISO: AU STATE: New South Wales CITY: Macquarie Park POSTAL CODE: 2113 LATITUDE: -33.7810 LONGITUDE: 151.1275 ORGANIZATION: SingTel Optus Pty Ltd ISP: SingTel Optus Pty Ltd IP Location via DB-IP(PRODUCT: API, REAL-TIME) IP: 110.33.122.75 COUNTRY: Australia COUNTRY ISO: AU STATE: New South Wales CITY: Ryde POSTAL CODE: 2112 LATITUDE: -33.8135 LONGITUDE: 151.104 ASN: 4804 AS-Name: MPX-AS IS PROXY: No IS CRAWLER: No THREAT LEVEL: low ORGANIZATION: SingTel Optus Pty Ltd ISP: SingTel Optus Pty Ltd IP Location via IpInfo(PRODUCT: API, REAL-TIME) IP: 110.33.122.75 COUNTRY: Australia COUNTRY ISO: AU STATE: New South Wales CITY: Sydney POSTAL CODE: 1715 LATITUDE: -33.7378 LONGITUDE: 151.0722 ASN: AS4804 ORGANIZATION: Microplex PTY LTD IP Geo Location via IPGeoLocation.io(PRODUCT: API, REAL-TIME) IP: 110.33.122.75 COUNTRY: N/A COUNTRY ISO: N/A STATE: N/A CITY: N/A POSTAL CODE: N/A LATITUDE: N/A LONGITUDE: N/A ASN: N/A IS BOT: N/A IS PROXY: N/A PROXY TYPE: N/A IS SPAM: N/A IS TOR: N/A ORGANIZATION: N/A ISP: N/A 216.19.202.132 : IP: 216.19.202.132 COUNTRY: United States of America COUNTRY ISO: US STATE: California CITY: Los Angeles POSTAL CODE: 90001 LATITUDE: 34.0522 LONGITUDE: -118.2436 ORGANIZATION: Jeneral Technologies ISP: Jeneral Technologies IP Location via DB-IP(PRODUCT: API, REAL-TIME) IP: 216.19.202.132 COUNTRY: United States COUNTRY ISO: US STATE: California CITY: Los Angeles POSTAL CODE: 90009 LATITUDE: 34.0522 LONGITUDE: -118.244 ASN: 203999 AS-Name: GeekyWorks IS PROXY: No IS CRAWLER: No THREAT LEVEL: low ORGANIZATION: GetNet Inc ISP: GetNet Inc IP Location via IpInfo(PRODUCT: API, REAL-TIME) IP: 216.19.202.132 COUNTRY: United States COUNTRY ISO: US STATE: California CITY: Los Angeles POSTAL CODE: 90076 LATITUDE: 34.0522 LONGITUDE: -118.2437 ASN: AS203999 ORGANIZATION: Geekyworks IT Solutions Pvt Ltd IP Geo Location via IPGeoLocation.io(PRODUCT: API, REAL-TIME) IP: 216.19.202.132 COUNTRY: N/A COUNTRY ISO: N/A STATE: N/A CITY: N/A POSTAL CODE: N/A LATITUDE: N/A LONGITUDE: N/A ASN: N/A IS BOT: N/A IS PROXY: N/A PROXY TYPE: N/A IS SPAM: N/A IS TOR: N/A ORGANIZATION: N/A ISP: N/A IP: 24.123.253.181 COUNTRY: United States of America COUNTRY ISO: US STATE: Texas CITY: Dallas POSTAL CODE: 75201 LATITUDE: 32.7830 LONGITUDE: -96.8066 ORGANIZATION: Charter Communications Inc ISP: Charter Communications Inc IP Location via DB-IP(PRODUCT: API, REAL-TIME) IP: 24.123.253.181 COUNTRY: United States COUNTRY ISO: US STATE: Virginia CITY: Vienna POSTAL CODE: 22180 LATITUDE: 38.9012 LONGITUDE: -77.2653 ASN: 10796 AS-Name: TWC-10796-MIDWEST IS PROXY: No IS CRAWLER: No THREAT LEVEL: low ORGANIZATION: Charter Communications Inc ISP: Charter Communications Inc IP Location via IpInfo(PRODUCT: API, REAL-TIME) IP: 24.123.253.181 COUNTRY: United States COUNTRY ISO: US STATE: Ohio CITY: Kenton POSTAL CODE: 43326 LATITUDE: 40.6470 LONGITUDE: -83.6097 ASN: AS10796 ORGANIZATION: Charter Communications Inc IP Geo Location via IPGeoLocation.io(PRODUCT: API, REAL-TIME) IP: 24.123.253.181 COUNTRY: N/A COUNTRY ISO: N/A STATE: N/A CITY: N/A POSTAL CODE: N/A LATITUDE: N/A LONGITUDE: N/A ASN: N/A IS BOT: N/A IS PROXY: N/A PROXY TYPE: N/A IS SPAM: N/A IS TOR: N/A ORGANIZATION: N/A ISP: N/A IP: 74.219.98.234 COUNTRY: United States of America COUNTRY ISO: US STATE: Ohio CITY: Dayton POSTAL CODE: 45390 LATITUDE: 39.7589 LONGITUDE: -84.1916 ORGANIZATION: Charter Communications Inc ISP: Charter Communications Inc IP Location via DB-IP(PRODUCT: API, REAL-TIME) IP: 74.219.98.234 COUNTRY: United States COUNTRY ISO: US STATE: Ohio CITY: Columbus POSTAL CODE: 43215 LATITUDE: 39.9612 LONGITUDE: -82.9988 ASN: 10796 AS-Name: TWC-10796-MIDWEST IS PROXY: No IS CRAWLER: No THREAT LEVEL: low ORGANIZATION: Charter Communications Inc ISP: Charter Communications Inc IP Location via IpInfo(PRODUCT: API, REAL-TIME) IP: 74.219.98.234 COUNTRY: United States COUNTRY ISO: US STATE: Indiana CITY: North Madison POSTAL CODE: 47250 LATITUDE: 38.7678 LONGITUDE: -85.3966 ASN: AS10796 ORGANIZATION: Charter Communications Inc IP Geo Location via IPGeoLocation.io(PRODUCT: API, REAL-TIME) IP: 74.219.98.234 COUNTRY: N/A COUNTRY ISO: N/A STATE: N/A CITY: N/A POSTAL CODE: N/A LATITUDE: N/A LONGITUDE: N/A ASN: N/A IS BOT: N/A IS PROXY: N/A PROXY TYPE: N/A IS SPAM: N/A IS TOR: N/A ORGANIZATION: N/A ISP: N/A 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MM ;MM: ███▓ ▓███ M YM ,M MM MM d MM `Mb MM ,V^MM. ███▓ ▓███░ M Mb M' MM MMmmMM MM MM MM ,M `MM ░███▓ ▓███ M YM.P' MM MM Y , MM ,MP MM AbmmmqMA ███▓ ▓███ M `YM' MM MM ,M MM ,dP' MM A' VML ███▓ ▓███░ .JML. `' .JMML..JMMmmmmMMM .JMMmmmdP' .JMML..AMA. .AMMA. ███▓ ▓███ ░███▓ ▓███ ██▓█ ▓███░ ░███▓ ██████▄ ▄███████ █████████████████████████████████▓▒░▒▓██████████████████▓▒▓███████████████████████████████████████████████████████████████████▓███████████████████▓ http://link.sandiego.edu/resource/zS7mPOE3lKA/ https://sandiego.bibliocommons.com/item/show/561217161 https://en.wikipedia.org/wiki/Paul_R._Ehrlich https://oac.cdlib.org/findaid/ark:/13030/kt3r29r8pf/entire_text/ https://www.researchgate.net/publication/332910383_Arthur_M_Silverstein_Paul_Ehrlich's_receptor_immunology_the_magnificent_obsession_San_Diego_and_London_Academic_Press_2002_pp_xix_202_illus_US7500_hardback_0-12-643765-3 https://www.proquest.com/scholarly-journals/paul-ehrlichs-receptor-immunology-magnificent/docview/236663879/se-2 https://muse.jhu.edu/article/43567/summary https://library.ucsd.edu/dc/object/bb5564457t https://calisphere.org/item/ark:/20775/bb5564457t/ https://calisphere.org/item/ark:/20775/bb7953560b/ https://www.legacy.com/us/obituaries/ohio/name/john-beckham-obituary?id=11708948 https://www.linkedin.com/in/johnbeckham https://www.facebook.com/John.W.Beckham https://www.ohioresidentdatabase.com/person/OH0020283304/beckham-john https://www.usphonebook.com/john-beckham/UxATMwgzM2MzM5IzN3ITOykDN40yR https://www.tributearchive.com/obituaries/14825656/John-W-Beckham https://blog.zenprospect.com/people/John/Beckham/54a630387468692abf4598c9 https://clustrmaps.com/person/Beckham-7h37nb https://foursquare.com/jbeckhamlat https://www.goodreads.com/user/show/6031803-john-beckham ▓██████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████ ▓██████▀ ▀███████ ▓███░ 0x09 ░███▓ ██▓█ ██▓█ ▓▓▓▓ ███▓ ▓███░ .g8"""bgd `7MM"""Mq. `7MMF'`7MMM. ,MMF'`7MMF'`7MN. `7MF' db `7MMF' ███▓ ▓███ .dP' `M MM `MM. 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MM ,dP' Mb dM ░███▓ ▓███ .JMML. .JMM..JMMmmmmMMM `"bmmmd' `"bmmd"' .JMML. .JMM..JMMmmmdP' P"Ybmmd" ███▓ ▓███ ███▓ ▓███ ██▓█ ▓███░ ░███▓ ██████▄ ▄███████ █████████████████████████████████▓▒░▒▓██████████████████▓▒▓███████████████████████████████████████████████████████████████████▓███████████████████▓ Court of Appeals Division I Oral Argument Calendar Date: Tuesday, June 9, 2015 Location: Seattle , Washington Panel: Linda Lau, James Verellen, Mary Kay Becker 9:30 AM 71034-6 Island County Superior Court 12-1-00127-9 State of Washington, Respondent v. Robert A. Baker, Appellant Duration: 10 minutes for each side Litigants: Attorneys of Record: Robert Allan Baker (Appellant) Washington Appellate Project Nancy P Collins State of Washington (Respondent) Island Co Prosecuting Atty Eric Michael Ohme 71930-1 Snohomish County Superior Court 90-2-07555-7 In re the Detention of Bradley B. Ward, Respondent v. State of Washington, Petitioner Duration: 10 minutes for each side Litigants: Attorneys of Record: State of Washington (Petitioner) Malcolm Ross Bradley B Ward (Respondent) Washington Appellate Project Susan F Wilk 72131-3 Skagit County Superior Court 12-2-02138-7 Ford Services, LLC, Appellant v. The City of Sedro-Wooley, Respondent Duration: 10 minutes for each side Litigants: Attorneys of Record: Ford Services, LLC (Appellant) Cale Lee Ehrlich Deutsch Bank National Trust (Respondent) John Eugene Glowney City of Sedro Woolley (Respondent) Craig David Sjostrom 72027-9 Island County Superior Court 12-2-00469-7 Mark F. and Linda Bressler, Appellants v. Kevin and Linda Sullivan et al, Respondents Duration: 10 minutes for each side Litigants: Attorneys of Record: Linda H Bressler (Appellant) Carolyn Cliff Mark F Bressler (Appellant) Carolyn Cliff Linda Sullivan (Respondent) G. Geoffrey Gibbs Kevin F Sullivan (Respondent) G. Geoffrey Gibbs 71869-0 King County Superior Court 11-2-06228-7 Harold H. Wright, Jr., et ux., Appellants v. Pierce County, et al., Respondents Duration: 10 minutes for each side Litigants: Attorneys of Record: Sydni Wright (Appellant) Dan'l Wayne Bridges Harold H. WrightJr. (Appellant) Dan'l Wayne Bridges Mary Robnette (Respondent) Stewart Andrew Estes Mary Ann Mcconaughy Ken Board (Respondent) Stewart Andrew Estes Mary Ann Mcconaughy James Harai (Respondent) Stewart Andrew Estes Mary Ann Mcconaughy Mark Parfitt (Respondent) Stewart Andrew Estes Mary Ann Mcconaughy Lori Kooiman (Respondent) Stewart Andrew Estes Mary Ann Mcconaughy Mary Robnet (Respondent) Stewart Andrew Estes Mary Ann Mcconaughy Paul Pastor (Respondent) Stewart Andrew Estes Mary Ann Mcconaughy Mark Lindquist (Respondent) Stewart Andrew Estes Mary Ann Mcconaughy Gerald Horne (Respondent) Stewart Andrew Estes Mary Ann Mcconaughy Pierce County (Respondent) Stewart Andrew Estes Mary Ann Mcconaughy 72065-1 King County Superior Court 13-2-02307-5 William Leahy, et ux, Appellants v. Quality Loan Service Corp, et ano., Respondents Duration: 10 minutes for each side Litigants: Attorneys of Record: Shalawn Leahy (Appellant) Charles M. Greenberg William Leahy (Appellant) Charles M. Greenberg Na Bank of America (Respondent) Quality Loan Service Corporation (Respondent) Thomas James Moore 1:30 PM No Oral Argument 71415-5 Snohomish County Superior Court 13-1-00236-6 State of Washington, Res/Cross-App. v. Jason Allan Williams, App/Cross-Res. Litigants: Attorneys of Record: Jason Allan Williams (Appellant/Cross-Respondent) Nielsen Broman Koch PLLC Eric Broman State of Washington (Respondent/Cross-Appellant) Seth Aaron Fine No Oral Argument 71631-0 King County Superior Court 09-1-01751-1 State of Washington, Respondent v. Thomas Matthew Gauthier, Appellant Litigants: Attorneys of Record: Thomas Mathew Gauthier (Appellant) Nielsen Broman Koch PLLC State of Washington (Respondent) Prosecuting Atty King County Dennis John Mccurdy No Oral Argument 71020-6 Island County Superior Court 09-2-00492-1 Walter Page, Appellant v. Raymond A. and Jacqueline K. Hovick, Respondents Litigants: Attorneys of Record: Walter S Page (Appellant) Pro SE Jaqueline K Hovick (Respondent) Mark S Leen Raymond a Hovick (Respondent) Mark S Leen Gregory Louis Ursich Anneliese Elizabeth Johnson No Oral Argument 71156-3 Skagit County Superior Court 12-2-00807-1 Paul N. Hagman, Respondent v. HMC Capital Investments, Appellants Litigants: Attorneys of Record: Designated Broker of John L. Sco (Appellant) Russell James JensenJr. Christopher Gough (Appellant) Russell James JensenJr. Barbara A. Shelton (Appellant) Russell James JensenJr. Hmc Capital Investments, Inc. (Appellant) Russell James JensenJr. John or Jane Doe (Defendant) John L. Scott, Inc. (Defendant) Warren C. Williams (Defendant) Ryan P. Hagman (Respondent) Peter Cornelius Ojala Deborah R. Hagman (Respondent) Paul N. Hagman (Respondent) Peter Cornelius Ojala No. 94525-0 IN THE SUPREME COURT OF THE STATE OF WASHINGTON BRANDON APELA AFOA, Respondent, v. PORT OF SEATTLE, Petitioner. AMICUS BRIEF OF WASHINGTON STATE LABOR COUNCIL SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT, LLP Dmitri Iglitzin, WSBA 17673 18 W. Mercer St., Suite 400 Seattle, WA 98119 (206) 257-6003 Attorneys for Amicus Washington State Labor Council i TABLE OF CONTENTS I. IDENTITY AND INTEREST OF AMICUS CURIAE 1 II. INTRODUCTION AND STATEMENT OF THE CASE 2 III. ISSUE PRESENTED 5 IV. ARGUMENT 6 A. Traditional Respondeat Superior Vicarious Liability Survives Tort Reform 6 B. The “Buck” For Safety Has To Stop With The Party Best Able To Protect Worker Safety At The Multiemployer Job Site 7 C. Injured Workers Should Be Spared The Burden Of Suing Everybody 10 D. The Port’s Arguments Fit Within A Discredited Historical Pattern Of Employers Seeking To Pass Off Responsibility For Industrial Accidents To Others 11 V. CONCLUSION 13 ii TABLE OF AUTHORITIES Page(s) Cases Afoa v. Port of Seattle, 176 Wn.2d 460, 296 P.3d 800 (2013) .............................................. 4, 7 Farwell v. Boston & Worcester Rail Road, 45 Mass 49 (1842) ............................................................................. 11 George Sollitt Corp. v. Howard Chapman Plumbing & Heating, Inc., 67 Wn. App. 468, 836 P.2d 851 (1992) ............................................... 9 Gilbert H. Moen Co. v. Island Steel Erectors, Inc., 128 Wn.2d 745, 912 P.2d 472 (1996) ................................................ 10 Goucher v. JR Simplot Co., 104 Wn.2d 662, 709 P.2d 774 (1985) .............................................. 3, 4 Stute v. PBMC, 114 Wn.2d 454, 788 P.2d 545 (1990) .............................................. 3, 4 Weinert v. Bronco Nat’l Co., 58 Wn. App. 692, 795 P.2d 1167 (1990) ............................................. 9 Statutes RCW 4.22.030 ........................................................................................... 6 RCW 4.22.070 ........................................................................................... 6 RCW 4.22.070(1) ............................................................................. 5, 6, 12 RCW 4.22.070(1)(a) .............................................................................. 6, 7 RCW 49.17.020(4) ..................................................................................... 3 RCW 49.17.060(2) ................................................................................. 3, 5 1 I. IDENTITY AND INTEREST OF AMICUS CURIAE The Washington State Labor Council (“WSLC” or “Labor Council”) is the largest and most prominent advocate for the interests of working people in Washington State. It represents approximately 600 local and state-wide unions associated with the AFL-CIO, as well as the 450,000 individuals who belong to those unions. Member unions operating at Seattle-Tacoma International Airport (“Sea-Tac Airport”) include the Air Line Pilots Association, the American Federation of Government Employees, Professional Aviation Safety Specialists, AFSCME, International Brotherhood of Electric Workers, International Association of Fire Fighters, the Association of Flight Attendants-CWA, United Food & Commercial Workers, International Association of Machinists and Aerospace Workers, and the International Brotherhood of Teamsters. The Labor Council’s goals include providing assistance to organizing campaigns, communications and media relations, and legislative advocacy on behalf of its affiliates. The Labor Council pursues these goals in a variety of ways, including legislative lobbying, educational programs, financial and strategic support to local unions, initiative campaigns, and legal action, including the filing of amicus briefs. 2 II. INTRODUCTION AND STATEMENT OF THE CASE It is a matter of public record that ground safety problems persist at Sea-Tac Airport. In March 2016, the Washington State Department of Labor and Industries (“DLI”) fined Menzies Aviation, the largest ground service provider at Sea-Tac Airport, $62,000 for 16 violations of WISHA rules pertaining to poor maintenance of ground service equipment, including malfunctioning or deficient engines, brakes, gears, steering, electrical systems and tires, and other safety violations. See, e.g., Steve Wihelm, “Alaska Airlines, baggage-handler Menzies fined by labor regulators,” PUGET SOUND BUSINESS JOURNAL (March 8, 2016) (https://www.bizjournals.com/seattle/news/2016/03/08/alaska-airlinesbaggage-handler-menzies-fined-by.html); Sydney Brownstone, “State Fines Alaska Airlines for Failing to Keep Baggage Handlers Safe,” THE STRANGER (March 8, 2016) (https://www.thestranger.com/slog/2016/03/08/23680676/state-finesalaska-airlines-for-failing-to-keep-baggage-handlers-safe); “Alaska Airlines Cited For Unsafe Working Conditions,” KIRO 7 NEWS (March 7, 2016) (http://www.kiro7.com/news/li-cites-alaska-airlines-for-unsafeworking-conditions/149315730A). DLI found that these ground service employees working at the airport have four times the likelihood of injury as compared to other workers in their risk class. Id. In the record from 3 this trial, Mark Coates, the senior Port manager in charge of safety at the airport, admitted that the airport is an “inherently dangerous environment.” Ex. 112 p.1. The hard-working men and women we represent deserve protection by this Court from the Port’s efforts to avoid its obligation to provide the safest possible working environment. Unfortunately, the record in this case shows that the Port has long been acting as a “law unto itself” in defiance of clear holdings of this Court as to the meaning of the WISHA Specific Duty Clause, RCW 49.17.060(2). Since 1985 and 1990, this Court has made it clear that statutory WISHA employers owe a nondelegable duty to comply with WISHA regulations under RCW 49.17.060(2) that runs to any employee of any employer on the jobsite. Stute v. PBMC, 114 Wn.2d 454, 460, 788 P.2d 545 (1990); Goucher v. JR Simplot Co., 104 Wn.2d 662, 671, 709 P.2d 774 (1985). A sophisticated party such as the Port should have clearly understood that it falls within the definition of “employer” under WISHA. RCW 49.17.020(4) (“any person … which engages in any business, industry, profession, or activity in this state and employs one or more employees or who contracts with one or more persons, the essence of which is the personal labor of such person or persons and includes the state, counties, cities, and all municipal corporations, public corporations, 4 political subdivisions of the state …”). Nonetheless, during the appeal that led to this Courts decision in Afoa v. Port of Seattle, 176 Wn.2d 460, 470, 296 P.3d 800 (2013) (“Afoa I”), the Port claimed this did not apply to it. That position was totally and clearly rejected by Afoa I, which held that “[w]e reject the Port’s argument, which is inconsistent with our holdings in Goucher and Stute,” and “[w]e reaffirm Goucher and Stute and hold that WISHA’s specific duty does not require a direct employment relationship.” 176 Wn.2d at 473. Yet despite all this, at the 2015 trial the Port testified that it was still only staffing and directing its Sea-Tac Airport WISHA compliance office to ensure that WISHA is followed for its own direct employees, RP 1086/3-6, RP 3071/11-13, and it admitted this in its Appellate Briefing below. See, Brief of Appellant Port at 22 (“the Port department responsible for WISHA compliance and health and safety had a three-member staff whose job was to ensure the Port and its employees, not other employers and their employees, were in compliance”) (emphasis in original); accord, id. at 25-26. This is a serious concern to WSLC and its members. There are 16-18,000 workers at Sea-Tac Airport who are not employed directly by the Port, but who are supposed to be protected by the Port’s WISHA Specific Duty, yet the Port has only allocated three employees to do this crucial job. Of course, by its contracts the Port retains complete authority 5 to monitor safety at the airport, and it does staff a ramp control tower, the Port Ramp Patrol, the Port Police, and the Port Fire Department, all of whom combine to in fact control all aspects of job performance by everybody on the ramp portion of the airfield. But at the same time, the Port is blatantly shirking its legal duty to ensure that all employees at Sea-Tac Airport have a WISHA-compliant safe workplace. The Port refuses to face the fact (now found by the jury) that it is the party best able to ensure worker safety at the airport, and that therefore the law requires it to do so across the board, for all airport workers, direct and indirect. WSLC urges this Court to make it absolutely clear that the Port cannot evade its responsibility any longer. Allowing the Port to pass off to another party even one dollar of the verdict in this case sends the message that a nondelegable duty is delegable and that the WISHA Specific Duty doesn’t mean what this Court has repeatedly held that it does mean. III. ISSUE PRESENTED Was the nondelegable WISHA specific duty under RCW 49.17.060(2), and the nondelegable common-law duty of a control party to provide a safe workplace, abrogated by RCW 4.22.070(1)? 6 IV. ARGUMENT A. Traditional Respondeat Superior Vicarious Liability Survives Tort Reform The Port argues that the plain language of RCW 4.22.070(1) means that the trial court had to allocate fault to all entities that may have caused plaintiff’s damages. But in making this argument, the Port glosses over the very important exception written directly into RCW 4.22.070(1) by the Legislature for the protection of the working men and women of Washington: “The liability of each defendant shall be several only and shall not be joint except: (a) A party shall be responsible for the fault of another person or for payment of the proportionate share of another party … where a person was acting as an agent or servant of the party.” RCW 4.22.070(1)(a). This language clearly recognizes that the longstanding rule of respondeat superior applicable to a “master” for the conduct of its “servants” was not intended to be abrogated by Tort Reform. The vicarious liability of the master was expressly maintained as an exception to the usual rule of several liability, and therefore as an instance of joint and several liability that survived Tort Reform. RCW 4.22.030 (“Except as otherwise provided in RCW 4.22.070, if more than one person is liable to a claimant on an indivisible claim for the same injury, death or harm, the liability of such persons shall be joint and several.”). 7 Applied to the context of WISHA, the Port is the statutory employer. Afoa I, 176 Wn.2d at 473. Applied to the context of both common-law and WISHA control liability, the Port is in the position of the “master” because it is the party best able to control safety at the multiemployer job site. Id. at 473, 477, 478, 479, 481. The fact that it works both through direct employee agents and other kinds of agents – airlines, ground service contractors, and their employees – does not change the reality of the relationship. Id. at 477-78. Under the nondelegable duty doctrine, the Port has vicarious liability for the actions of its agents and servants that is identical to the vicarious liability that the Legislature expressly excluded from the general rule of several liability in RCW 4.22.070(1)(a). B. The “Buck” For Safety Has To Stop With The Party Best Able To Protect Worker Safety At The Multiemployer Job Site A recent study by Dr. Emile Tompa, published in June 2016 in the American Journal of Industrial Medicine, concludes that “specific deterrence from inspections with penalties” results in a decrease in subsequent workplace injuries, whereas general deterrence (i.e., the impact on actors from knowing that others have been penalized for workplace violations) is not effective. Emile Tomba, et. al., A Systematic Literature Review of the Effectiveness of Occupational Health and Safety 8 Regulatory Enforcement, American Journal of Industrial Medicine (Oct. 28, 2015), pp.10-11, 12 (appended to this brief for the Court’s convenience. This means that safety will not improve at Sea-Tac Airport unless and until the Port of Seattle is made to understand that the “buck” for safety at Sea-Tac Airport stops with it. The evidence in this case clearly shows that the Port is the “superauthoritative” body with power over all other actors at the airport, and this accords with the experience of our members, who analogized the Port in this case to “the Eye of Sauron” from The Lord of the Rings. RP 526/3- 21. With respect to the nonparty airline empty chair defendants, they all operate under signed agreements in which the Port granted them a nonexclusive right to use the airfield area “subject at all times to the exclusive control and management by the Port.” Ex. 675 at Port 277 (China); Ex. 676 at Port 3465 (British), Ex. 677 at Port 3648 (Eva); Ex. 678 at Port 190 (Hawaiian), RP 1510/8-19. At the trial in this case, Michael Ehl, the Port’s Director of Aviation Operations, admitted that the Port was the one entity best able to keep Sea-Tac Airport safe. RP 3021/1-7. Menzies itself has asserted that many of the citations it was issued by DLI, discussed earlier, related to matters with the control of the 9 Port, not it alone.1 The Tompa study referenced above means that SeaTac Airport will become more dangerous if the Port is allowed to pass off its responsibility for ensuring a safe workplace at the airport to others. Likewise, other airports and the many multiemployer jobsites (virtually every construction site) across the state will become more dangerous as responsibility for safety becomes more diffuse. As this case demonstrates, that would have a real human cost to WSLC members and their families. This is not to say that, in the appropriate case, an injured Sea-Tac Airport worker could not seek and recover third-party liability from an airline or other employer operating at the airport. It is clearly the law that more than one controlling party can be responsible for workplace injuries at a multiemployer job site. E.g., Weinert v. Bronco Nat’l Co., 58 Wn. App. 692, 795 P.2d 1167 (1990); George Sollitt Corp. v. Howard Chapman Plumbing & Heating, Inc., 67 Wn. App. 468, 836 P.2d 851 (1992). But concurrent liability is not inconsistent with nondelegable liability. All it means is that, for the initial liability to the injured worker, each controlling party is fully charged with a nondelegable duty to 1 On March 7, 2016, after receiving notice of the citations referenced above, Menzies Aviation sent a statement that said, in part, “Many of the citations relate to airport infrastructure issues. Fully mitigating these issues would require a massive reconfiguration of the airport itself, and changes to baggage systems and ground 10 provide a safe workplace. Then, if appropriate under the contracts between those controlling parties, they can sue to allocate fault among themselves. See, Gilbert H. Moen Co. v. Island Steel Erectors, Inc., 128 Wn.2d 745, 758, 912 P.2d 472 (1996). C. Injured Workers Should Be Spared The Burden Of Suing Everybody The injured worker should not be forced to sue everyone at the multiemployer job site in order to ensure that he or she receives proper compensation. That would be a terrible waste of judicial resources, and tends to overwhelm the practical ability of the injured worker to assert his or her third-party claim for full and fair compensation. The nondelegable duty to provide a safe workplace means that an injured worker can pick one or two prominent defendants at a multiemployer job site such as the airport, and be assured of recovering full and fair compensation. The evidence in this case is that there are some 200 independent contractors operating at Sea-Tac Airport, including about 34 air carriers. Brief of Appellant Port at 5. A seriously injured employee should not be saddled with the burden and high cost of investigating exactly which of these many entities might arguably have had some control over the manner of work involved in his or her injury. The folly of the Port’s handling equipment used not just at Sea-Tac, but throughout the U.S. aviation industry.” “Alaska Airlines Cited For Unsafe Working Conditions,” KIRO 7 NEWS, supra. 11 position is demonstrated in this case, in which the airlines and Port witnesses steadfastly denied in sworn statements that the airlines had any involvement, and the airlines were so convincing that they persuaded Judge Coughenour to grant them summary judgment in Federal Court. How then can injured workers ever determine who to sue, if they do not simply sue every single entity out of an abundance of caution? If the Port’s position succeeds, WSLC and its union affiliates will be forced to advise any employee injured at the airport to sue every airline and every other employer operating on the airfield. The costs, both to injured workers and to the judicial system itself, would be catastrophic. D. The Port’s Arguments Fit Within A Discredited Historical Pattern Of Employers Seeking To Pass Off Responsibility For Industrial Accidents To Others WSLC also wishes to remind the Court that the current dispute fits within a historical context in which employers have, since the 19th century, attempted to place blame for industrial accidents onto others. Long ago, in Farwell v. Boston & Worcester Rail Road, 45 Mass. 49 (1842), Chief Justice Lemuel Shaw of the Massachusetts Supreme Court laid down the seminal American case for the notorious “fellow-servant” rule, which shielded employers from liability for workplace injury “caused” by the carelessness of other employees, and was thus an 12 exception to the usual rule of respondeat superior. This rule led to untold suffering and the creation of workers compensation statutes. The long line of Washington cases from 1896 to 2013 cited by Mr. Afoa in favor of a “nondelegable duty” to provide a safe workplace, see, Supplemental Brief of Afoa, pp.4-5, fns. 10-12, constitute this Court’s renunciation of this outdated rule. These cases show this Court’s consistent view: (1) that sound public policy requires that the party best able to control safety at the workplace should bear full liability for failure to do so, and (2) that it will read all statutes consistent with the Washington Constitutional mandate that the legislature “‘pass necessary laws for the protection of persons working in mines, factories and other employments dangerous to life or deleterious to health.’” WA Const. Art. II §35 (quoted in Afoa I, 176 Wn.2d at 470). The Port’s argument that RCW 4.22.070(1) allows it to pass liability for injury to Sea-Tac Airport workers onto other entities who have only partial or limited control over worker safety is no different from the old arguments in favor of passing liability to fellow servants. We have come too far to go back now to the Gilded Age when workers were just disposable cogs in the machinery of industry. // // 13 V. CONCLUSION On behalf of hundreds of thousands of working men and women in Washington State, the WSLC urges this Court to affirm the decision of the Court of Appeals in this case, and to find that Tort Reform does not abrogate the Port’s nondelegable duty and vicarious liability for ensuring a safe workplace for all employees at Sea-Tac Airport. Respectfully submitted this 4th day of December, 2017. Dmitri Iglitzin, WSBA No. 17673 General Counsel Washington State Labor Council Schwerin Campbell Barnard Iglitzin & Lavitt, LLP 18 W Mercer St, Suite 400 Seattle, WA 98119 (206) 257-6003 Iglitzin@workerlaw.com 14 DECLARATION OF SERVICE I, Jennifer Woodward, declare under penalty of perjury under the laws of the state of Washington, that on December 4, 2017, I caused the foregoing Amicus Brief of Washington State Labor Council to be filed electronically with the court using the appellate court portal, and a true and correct copy of the same to be sent via email service to: Pamela A. Okano pokano@rmlaw.com Reed McClure 1215 Fourth Avenue, Suite 1700 Seattle, WA 98161 Mark S. Northcraft mark_northcraft@northcraft.com Andrew T. Biggs andrew_biggs@northcraft.com Northcraft, Bigby & Biggs, PC 819 Virginia St., Suite C-2 Seattle, WA 98101 Charles A. Bird Charles.bird@dentons.com Dentons US LLP 4655 Executive Drive, Suite 700 San Diego, CA 92121 Raymond E.S. Bishop ray@bishoplegal.com Derek K. Moore derek@bishoplegal.com Bishop Legal 19743 First Avenue South Normandy Park, WA 98148 Mark A. Dombroff mark.dombroff@dentons.com Dentons US LLP 1676 International Drive Penthouse McLean, VA 22101 Dated this 4th day of December, 2017, at Seattle, Washington. Jennifer Woodward, Paralegal Appendix A Systematic Literature Review of the Effectiveness of Occupational Health and Safety Regulatory Enforcement Emile Tompa, PhD, 1,2,3 Christina Kalcevich, MA, 1 Michael Foley, MA, 4 Chris McLeod, PhD, 1,5 Sheilah Hogg-Johnson, PhD, 1,3 Kim Cullen, PhD, 1 Ellen MacEachen, PhD, 3,6 Quenby Mahood, MA, 1 and Emma Irvin, BA1 Background We aimed to determine the strength of evidence on the effectiveness of legislative and regulatory policy levers in creating incentives for organizations to improve occupational health and safety processes and outcomes. Methods A systematic review was undertaken to assess the strength of evidence on the effectiveness of specific policy levers using a “best-evidence” synthesis approach. Results A structured literature search identified 11,947 citations from 13 peer-reviewed literature databases. Forty-three studies were retained for synthesis. Strong evidence was identified for three out of nine clusters. Conclusions There is strong evidence that several OHS policy levers are effective in terms of reducing injuries and/or increasing compliance with legislation. This study adds to the evidence on OHS regulatory effectiveness from an earlier review. In addition to new evidence supporting previous study findings, it included new categories of evidence– compliance as an outcome, nature of enforcement, awareness campaigns, and smoke-free workplace legislation. Am. J. Ind. Med.  2016 Wiley Periodicals, Inc. KEY WORDS: regulation; legislation; occupational health and safety; OHS; regulatory effectiveness INTRODUCTION Occupational health and safety (OHS) regulation takes different forms across jurisdictions and over time. Responding to involved stakeholders, government authorities strive to devise ways to protect the health and safety of workers that will be effective in the context of competitive business environments, contemporary labor market structures, available resources, labor-management power issues, perspectives of health and safety professionals, and political will. OHS policy levers (i.e., the specific means used to promote compliance)1 used by regulatory authorities include a variety of approaches such as administrative monetary penalties, prosecutions, orders to comply, injunctions, inspections and audits, and consultations. For regulations to be effective, it is critical that they address key health and safety risks that are amendable by workplace parties, are clearly communicated to organizations, are enforceable by regulators, and create 1 Institute for Work and Health, Toronto, Ontario, Canada 2 Department of Economics, McMaster University, Hamilton, Ontario, Canada 3 Dalla Lana School of Public Health, University of Toronto, Toronto, Ontario, Canada 4 Safety and Health Assessment and Research Prevention Program, Washington State Department of Labor and Industries, Tumwater, Washington 5 School of Population and Public Health, Faculty of Medicine, University of British Columbia, Vancouver, British Columbia, Canada 6 School of Public Health and Health Systems, University of Waterloo, Waterloo, Ontario, Canada Correspondence to: EmileTompa, PhD, Institute for Work and Health, 481University Avenue, Suite 800, Toronto, Ontario, Canada M5G 2E9. E-mail: etompa@iwh.on.ca Accepted 23 April 2016 DOI 10.1002/ajim.22605. Published online in Wiley Online Library (wileyonlinelibrary.com). 1 We use the term “policy lever” to refer to the specific means by which a regulator attempts to encourage action in a particular direction, as opposed the broader notion of “policy” as the operationalization of legislation. AMERICAN JOURNAL OF INDUSTRIAL MEDICINE  2016 Wiley Periodicals,Inc. incentives for compliance [Mendeloff, 1979; Scholz and Gray, 1997; Shapiro and Rabinowitz, 1997; Baggs et al., 2003; Wright and Genna, 2005; Bluff, 2011; Safe Work Australia, 2013]. The literature on OHS regulatory policy levers is large and diverse, uses different statistical methods and levels of data aggregation, and considers experiences from various time periods and jurisdictions. As a result, it is difficult to compare and contrast findings from different studies, discern the quality of evidence, and identify the overarching strength of evidence on particular levers. Nonetheless, collating and synthesizing the evidence on the effectiveness of OHS regulatory policy levers is critical, given the substantial resources invested by the public sectors in regulatory enforcement and by organizations seeking to be compliant. While earlier studies reviewed parts of this diverse literature [e.g., Kralj, 2001; Mendeloff, 2001], Tompa et al. [2007] was the first to use a structured approach to identifying, evaluating, and synthesizing the evidence base. More recent reviews have complemented these evidence syntheses by considering the literature on the socio-psychological factors of stakeholders that bear on their ability to address OHS issues [Bluff, 2011], and others have focused on why some regulatory efforts are successful while others are not [Safe Work Australia, 2013]. The Tompa et al. [2007] review found strong evidence that the first hand experience of citations and penalties (known as specific deterrence) reduces injuries. In contrast, the first hand experience of inspections had only limited to mixed evidence. Similarly, there was limited to mixed evidence that the probability of inspections, citations, and penalties (known as general deterrence) reduces injuries. The review considered evidence up until 2004, but the literature has grown substantially since then, with investigations of new legislation and more detailed inquiries into existing practices. The current systematic review follows from the earlier review, expanding the scope to include studies that consider intermediate outcomes, specifically compliance, as well as other OHS policy levers such as consultations and awareness campaigns. Also included is the introduction of smoke-free workplace legislation. The overarching question guiding this review is “what is the strength of evidence on the effectiveness of OHS policy levers in creating incentives for organizations to improve occupational health and safety processes and outcomes.” We follow with a detailed description of the systematic search strategy, study inclusion criteria, quality assessment, and evidence synthesis approach. The results provide evidence synthesis profiles across nine clusters of studies that were retained in the final review. Our discussion section elaborates on the policy implications of our findings, expounds on the importance of context, details the strength and limitations of our review, and provides suggestions for the way forward for research. We end with a brief summary of findings and implications in our conclusion. In addition to the research question noted above, the review had the following objectives: To identify peer-reviewed literature on the effectiveness of OHS policy levers; To evaluate the quality of identified studies and synthesize the evidence; To engage a stakeholder committee throughout the process to assist with identifying the research questions, scope of the study as well as interpretation of findings; and To disseminate the review findings locally, nationally, and internationally. METHODS Stakeholder Engagement Consistent with stakeholder engagement recommendations [Keown et al., 2008], an advisory committee was formed to provide feedback on the key question guiding the review, the scope of the literature search, the interpretation of the findings, and the formulation of policy implications. The committee consisted of three senior policy makers with extensive regulatory enforcement experience from the Ontario Ministry of Labour (Canada), three senior academics with a specialty in OHS issues (from the United States, United Kingdom, and Australia), two senior industry OHS service providers and an injured workers’ advocate (all three from Canada). The first advisory committee meeting was held in the early stages of the study after some preliminary groundwork on searches had been completed. A second one was held near the end of the study after preliminary synthesis profiles had been formulated. Systematic Literature Search This review, which focused on quantitative studies, was undertaken in conjunction with a qualitative review on the same topic. The quantitative review considered evidence on effectiveness, while the qualitative review considered planning and implementation of regulations. The two reviews had a common search process, but once full studies were identified as meeting preliminary inclusion criteria, the two reviews were completed independently. The review was based on a systematic search of several peer-reviewed journal databases, specifically MEDLINE, EMBASE, PsychINFO, ABI Inform, Health and Safety Science Abstracts, ASSIA, EconLit, Sociological Abstracts, Wilson Social Science Abstracts, and Index to Legal 2 Tompa et al. Periodicals. Databases were chosen to capture all disciplinary areas that might have studies meeting the inclusion criteria. The search methodology followed a modified PICO (population, intervention, comparison, and outcome) format, in which studies had to contain at least one term in each of four categories (regulatory focus, setting, policy lever, and context) in order to be retrieved. The search strategy combined sets of keywords using an “AND” term between categories, and an “OR” term within categories so that citations would have to include at least one term from each of the categories in order to be pulled from the database. Wildcard characters were used extensively to ensure different spelling and forms of words were captured. Table SI in the supplemental materials provides details on the final keywords used. A hand search was also done on the journal “Policy and Practice in Health and Safety” and on the website SafeWork Australia/RegNet because of their focus on research related to OHS regulatory mechanisms. As well, the research team compiled a list of 19 content experts from seven countries and solicited their suggestions of studies for consideration that were already published in peer-reviewed journals, in press, or accepted for review. Searching for additional studies was an iterative process. For example, all references of studies selected for inclusion in the review were scanned to identify incremental relevant studies. Other literature review studies on the topic of OHS regulation were also scanned. This latter category included a review by Bluff [2011] and a Cochrane collaboration review by Mischke et al. [2013]. Selection of Studies for Inclusion To be eligible for inclusion in the review, studies had to be in English, published between January 1990 and June 2013 in a peer-reviewed journal, and be longer than two pages. The latter was to filter out short discussion pieces. At the title and abstract screening stage there were two criteria for study inclusion. First, studies had to consider directives related to OHS legislation and/or regulation made by a government authority. Second, studies had to evaluate OHS legislation and/or regulations using quantitative and/or qualitative methods. Studies that met the two criteria were then classified as quantitative, qualitative, or mixed methods. The title and abstract screening stage began with a pilot test in which the entire research team reviewed the same set of 120 studies based on the above noted criteria. After all reviewers tested the criteria, the team met to discuss discrepancies and fine tune the technical guidelines document accordingly. A second meeting was held with the research team after alternating pairs of two reviewers assessed another 1,500 titles and abstracts to further discuss any outstanding issues. Following this piloting, each reviewer was assigned a separate batch of titles and abstracts. A second reviewer audited 20% of citations across the entire frame of studies pulled by the electronic searches to ensure accuracy of the selection process. Agreement for passing citations onto the next stage was 99.5%. In cases where only a title was available for review, the entire paper was retrieved and reviewed before deciding on its eligibility for inclusion. The full study screening stage used the same criteria for inclusion as the title and abstract stage. The difference here was that the full article was reviewed to ensure it met the criteria. At this stage, studies were assigned to a single reviewer. Again, 20% of the full article screenings were subjected to a second review. Agreement was 96% at this stage for inclusion. All studies selected for inclusion were again screened by both the project coordinator and the principle investigator as part of a quality check. Studies included in the quantitative and mixed methods categories were reviewed by multiple quantitative team members to identify those that met the following incremental inclusion criteria: (i) the study had a temporal element (i.e., study must either use data from multiple points in time, or ask respondents about past experiences); (ii) the study design was rigorous (i.e., study could not be just descriptive, it had to use multiple regression modeling methods or had to have a quasi-experimental design, including before/after or a concurrent control group); and (iii) the study considered final outcomes, such as injuries and illnesses, or intermediate outcomes, such as compliance or reduced exposures (studies examining only monetary outcomes were not included).2 Compliance and reduced exposures are seen as intermediate outcomes since the ultimate goal of OHS regulatory enforcement is to reduce work injuries and illnesses. Essentially, compliance and reduced exposures are simply a means to that goal. Relevant regulatory policy levers included regulation enacted and enforced at any level of government: country, state/province, sector, workplace, and/or individual level; and regulatory levers that focused on enforcement (e.g., stop work orders, injunctions, prosecutions, monetary penalties, warnings, orders, tickets, inspections), voluntary activities (e.g., voluntary guidelines, consultations, certifications, health, and safety group membership) and/or mandated activities (e.g. right to refuse unsafe work, requirement for a joint health, and safety committee). Table I provides an overview of the policy levers and outcomes considered in the review. 2 Monetary outcomes are used in studies focusing on insurance costs. We excluded these, as we were interested in studies focusing on occupational health and safety performance rather than insurance costs. We note that there were only a few such studies. Review of OHS Regulatory Enforcement Version: October 28, 2015 3 Quality Assessment and Data Extraction Quality assessment and data extraction were performed concurrently by two reviewers. The two reviewers independently scored each assigned study and then met to discuss it. A consensus rating was not required. Rather, the discussion was meant to ensure that both reviewers considered the full range of issues relevant to each study. Studies were evaluated based on a quality appraisal protocol developed by Tompa et al. [2007] that consisted of 10 items in two parts (study quality and policy lever relevance). Each item was ranked on a Likert scale from one to five. See Table II for details of the 10 items. Ratings from the two reviewers were averaged for part one and part two separately. The lower of the two scores was used for the overall quality rating score. The final quality rating for a study was grouped into one of three categories: high (70% or greater), medium (50–70%), or low (50% or less). Only high and medium quality studies were retained for evidence synthesis. Evidence Synthesis The evidence-ranking algorithm used to synthesize evidence across studies was based on a qualitative methods approach known as “best evidence synthesis” developed by Slavin [1986, 1995] and used in other published reviews [e.g., Tompa et al., 2007; Rivilis et al., 2008; Tullar et al., 2010]. Best-evidence synthesis identifies the strength of a relationship based on the quantity, quality, and consistency of the evidence available to support a relationship between variables. Part and parcel to the approach is the notion of precedence. If a certain quality standard was required in the past, then current requirements should be the same or higher. Thus, as the literature grows and advances, the bar for each quality level may be set higher. The best evidence synthesis approach is well suited for the subject matter and literature of this review because of the broad range of study designs and analytic approaches. Quantitative methods such as metaanalysis cannot be employed when statistical methods used by different studies are too varied. Best evidence synthesis aims to provide the same methodological rigor to evidence synthesis as meta analysis by clearly and concisely articulating the synthesis criteria. For each policy lever and outcome category, we ranked the evidence supporting the hypothesized relationship on a five-level scale consisting of strong evidence, moderate evidence, limited evidence, no evidence, and mixed evidence.3 Evidence on a policy lever was tested against the criteria for the highest level (strong evidence), and, if it was not met, the criteria for the next highest level (moderate evidence) was considered. If it was not met, the subsequent level (limited evidence) was considered. If the evidence did not meet the criteria for any of these three levels, it defaulted to one of the two categories, no evidence or mixed evidence. The former arose if there were no studies or only low-quality studies. The latter arose if there was more than one high- or medium-quality study and the studies provided conflicting evidence. Table III below provides details on the evidence synthesis algorithm. RESULTS Literature Search Results The literature search, which included electronic databases, hand searches, and references from content experts, identified 11,947 unique titles and abstracts across 13 sources. Table IV below provides details by source. The cell counts are prior to the removal of duplicates from across the different sources. Of the 11,947 titles and abstracts, 2,360 passed to full study review. Of these studies, 282 were retained in the quantitative or mixed method categories. At this stage the incremental quantitative rigor criteria were invoked to screen the 282 studies, 61 of which passed the screening and moved onto the quality assessment stage. Three additional articles were identified in the reference lists of these studies, increasing the count to 64 that were assessed for quality. Of these studies, 43 were rated high or medium quality and were retained for evidence synthesis. Figure 1 below provides a flow chart of the number of studies retained at each stage. TABLE I. SummaryTable of Policy Levers and Outcomes Policy levers Outcomes Introduction of OHS legislation Compliance Introduction of smoke-free workplace legislation Exposures Inspection sequence Awareness (of compaign) Inspection activity: general deterrence of inspections and penalties Health (respiratory and sensory symptoms) Inspection activity: specific deterrence of inspections and penalties Health behaviours (cigarette smoking) Nature of enforcement: consultative activities Injuries and fatalities Nature of enforcement: autonomy supportive inspector style Truck crashes Nature of enforcement: state- versus federallevel enforcement Awareness campaigns 3 A significance level of 5% was used as the cutoff for evidence of a relationship between a policy lever and an outcome. Though some studies included considered 10% as significant, we treated these as not significant. 4 Tompa et al. The Tompa et al. [2007] review had identified 24 studies on the effectiveness of regulatory policy levers published from 1970 to 2004. Sixteen of those studies were published from 1990 onward, though four were not from peer reviewed journal publications and one study was not in English. The remaining 11 studies from that review were identified in our search and had passed through the same quality appraisal protocol as the newly identified studies. Of the 11 studies, seven dropped in quality ranking from high to medium or from medium to low quality, due to a higher standard imposed by the team in response to a noted higher level of quality identified in the overall literature. This is consistent with the best-evidence synthesis approach, which takes into consideration precedence and the state of the literature. Ultimately, seven of the original studies received a ranking of medium or high quality and were included in this review. Included studies were grouped into nine thematic clusters, defined by the policy lever being evaluated. The clusters were: (i) introduction of OHS legislation; (ii) introduction of smoke-free workplace legislation; (iii) inspection sequence (defined below); (iv) inspection activity: general deterrence of inspections and penalties, (v) inspection activity: specific deterrence of inspections with/without penalties; (vi) nature of enforcement: consultative activity; (vii) nature of enforcement: autonomy supportive inspection style, (viii) nature of enforcement: state- versus federal-level enforcement; and (ix) awareness campaigns. See Table SII in the supplemental material for details. Table V provides a high level summary of the studies by cluster and the synthesis statements related to each. Evidence Synthesis Results Introduction of OHS legislation There are nine studies in this cluster (one of high quality and eight of medium quality). Studies considered the introduction of a mix of different legislation, some enabling legislation to promote good practices and empower workplace parties, and others regulations as mechanisms for creating compliance obligations. Specifically, the legislation includes a hearing conservation program, chemical exposure mitigation, universal precautions for blood borne pathogens, ergonomics regulation, lockout/tagout requirements, internal responsibility systems, and training requirements. Some studies in this cluster considered final outcomes of injury, illness, and fatality rates, while others considered intermediate outcomes of exposure and compliance rates. For the former, there is “moderate evidence” that the introduction of OHS legislation has an effect on final outcomes (based on one high quality study and five medium quality studies). For the latter, there is “limited evidence” that the introduction of legislation improves intermediate outcomes, that is, reduces exposure rates and/or increases compliance rates (based on three medium quality studies). Four of the studies in this cluster were in manufacturing, two in health care, one in forestry, and one in multiple sectors. Six of the studies were undertaken in the United States, two in Canada, and one in Spain. Introduction of smoke-free workplace legislation There are six studies in this cluster (five of high quality and one of medium quality). Studies all considered the introduction of different forms of smoke-free workplace legislation in North America and Europe. Here too some studies considered final outcomes, specifically respiratory and sensory symptoms. Others considered intermediate outcomes, specifically reductions in smoke exposure, and reductions in cigarette consumption. For final outcomes, there is “moderate evidence” that smoke-free workplace legislation reduces respiratory and/or sensory symptoms (based on two high quality and two medium quality studies). TABLE II. QualityAssessmentTool Overall study quality 1. Does the study specify a theoretically correct relationship between the policy feature (explanatory variable), and the outcome variable (dependent variable)? 2. Are the characteristics of the study population properly well-defined, measured and described? 3.Was the statistical methodology appropriate for the research question and study design? 4. Does the study establish an empirically correct relationship between the outcome and independent variables? 5.Was there adjustment made for important covariates? 6. Are the results interpreted correctly? Policy lever relevance 7. How strongly would you rate the measurement validity of this study? 8. How strongly would you rate the statistical validity of this study? 9. How strongly would you rate the internal validity of this study? 10. How strongly would you rate the external validity of this study? Review of OHS Regulatory Enforcement Version: October 28, 2015 5 Four studies considered respiratory symptoms as an outcome and three sensory symptoms. For intermediate outcomes, there is “strong evidence” that smoke-free workplace legislation reduces smoke exposure and/or cigarette consumption (based on four high quality and one medium quality studies). Four of the included studies on smoke-free workplace legislation examined the impact of national laws in Europe. Ayres et al. [2009] examined the health changes before and after smoke-free workplace legislation was passed in Scotland in 2006. Allwright et al. [2005] examined the health changes in bar workers resulting from smoke-free workplace legislation in the Republic of Ireland in 2004 and compared them to changes in workers in Northern Ireland (which at the time did not have smoke-free workplace legislation). Larsson et al. [2008] examined the health effects of a smoke-free workplace legislation, enacted in 2005, on bar, restaurant and gaming workers in Sweden. The fourth European study examined the impact of a Spanish federal smoke-free workplace legislation that exempted hospitality venues from following the ban. Firms were given the choice to choose a smoke-free policy, a partial smoking restriction, or have no restrictions at all. The authors compared exposure and health effects following the ban with those in hospitality workers in Portugal and Andorra, which had no smoke-free workplace legislation. Three of the studies in this cluster were undertaken in North America. One study, that of Bondy et al. [2009], examined the impact on bar workers of a municipal smokefree workplace bylaw in Toronto, Canada in 2004. The authors compared secondhand smoke exposure of bar workers in Toronto to the exposure of workers in Windsor, Canada, a nearby city without smoke-free workplace TABLE III. Evidence Synthesis Algorithm Strong evidence Minimum study quality: high. Minimum number of studies: three. Consistency criteria: if there are only three high-quality studies, all of them must report consistent findings. If there are four or more high-quality findings, all of them mustreport consistentresults unlessthere is a specific methodological reasonthat could explain a divergentresult.Themajority (>50%) ofmedium-quality studies must concur with the findings from the high-quality studies. If the above criteria are not met, then the criteria for establishing moderate evidence are applied. Moderate evidence Minimum study quality: medium or less than three high-quality studies. Minimum number of studies: three; they can be a mixture of medium- or high-quality studies. Consistency criteria: at least three studies must report consistent findings, and the majority (>2/3) of all the studies must report consistent findings. If the above criteria are not met, then the criteria for establishing limited evidence are applied. Limited evidence Minimum study quality: medium. Minimum number of studies: one. Consistency criteria: fewer than three studies report consistent findings, with the majority (>50%) of the studies reporting consistent findings. If the above criteria are not met, then there is no evidence or mixed evidence. No evidence No high- or medium-quality studies are available from which to draw conclusions. Mixed evidence The findings from medium- and high-quality studies are contradictory. TABLE IV. Titles and Abstracts Identified by Source Source N Source N Medline 3,450 Sociological Abstracts 195 EMBASE 4,190 Wilson Social Science Abstracts 184 PsycINFO 733 Index to Legal Periodicals 149 ABI Inform 4,000 Hand-search: Policy and Practice in Health and Safety 19 Health and Safety Science Abstracts 1,181 Hand-search: SafeWork Australia/ RegNet 35 ASSIA 85 Content experts 19 EconLit 279 6 Tompa et al. legislation. The final smoke-free workplace legislation study, that of Moskowitz et al. [2000], considered legislative changes in California. It differs from the other studies in that it looked at the impact of local ordinances on smoking cessation rates and workplace smoking policies. Inspection sequence There were four studies in this cluster, all of which were undertaken in US jurisdictions. The studies considered how inspection sequence influences compliance rates based on changes in compliance violations cited. For this cluster, there is “moderate evidence” that the first inspection has the largest impact on compliance rates for all violations, with subsequent inspections having a declining impact (based on two high quality and two medium quality studies). All four studies had similar findings for all and for serious compliance violations. Ko et al. [2010] also considered four different time periods within 1972–2006 range and found similar results across the periods. As all studies used micro level data on the plant/site, this relationship would be considered specific deterrence. Inspection activity: General deterrence of inspections and penalties This cluster considers the impact of the probability of inspections through aggregate/industry levels inspection activity. There are three studies in this cluster, all of medium quality. Studies considered the final outcomes of lost-time injury rate, lost workdays, and the fatality rate. Based on this cluster, there is “limited evidence” of no general deterrence effect on lost-time injuries at the aggregate level (based on three studies—two studies found no effect and one study found an effect). There is “limited evidence” of a general deterrence on fatalities and lost workdays (based on one study for each outcome). The three studies were from North American jurisdictions; two from the US [Scholz and Gray, 1990; Ruser and Smith, 1991], and one from Alberta, Canada [Auld et al., 2001]. One study used aggregated data [Auld et al., 2001], and two used micro data at the firm level [Scholz and Gray, 1990; Ruser and Smith, 1991]. Inspection activity: Specific deterrence of inspections with/without penalties This cluster has the largest number of studies, with 13 studies. Most considered specific deterrence in the form of inspections with/without penalties, while some also considered other types of specific enforcement activities such as consultations or details of the inspection activity such as programmed versus complaint inspections and the value of fines imposed. One study focused on early versus late inspections [Ruser and Smith, 1991], and another focused on compliance reviews in the transportation sector [Chen, 2008]. All considered the effects of the policy lever on final outcomes. This cluster provides “strong evidence” that specific deterrence from inspections with penalties reduces final outcomes (based on nine studies, six of which were high quality, and three of medium quality). Outcomes considered in the studies include all injuries, health care only injuries, lost-time injuries, workdays lost, musculoskeletal disorders (MSD) and non-MSD injuries, and restricted activity days. All studies found a deterrence effect on most final outcomes. The cluster provides “moderate to limited evidence” of no effect from specific deterrence of inspections without penalties on final outcomes (based on nine studies, six of which were high quality, and three of medium quality). A range of outcomes was considered in these studies, including all injuries, health care only injuries, lost-time injuries, workdays lost, MSD and non-MSD injuries, and restricted activity days. Some studies found deterrence effects [Foley et al., 2012; Levine et al., 2012], while others found effects only under specific conditions such as in fixed-site industries FIGURE1. Flow chart of studies retained at each stage. Review of OHS Regulatory Enforcement Version: October 28, 2015 7 TABLE V. Summary of Studies by Cluster With Synthesis Statements Cluster No. of studies by outcome Study, jurisdiction, sector Evidence synthesis Introduction of OHS legislation Final outcomes (six studies): injuries and fatality Davies et al. [2008]: British Columbia, Canada; forestry Arocena and Nunez [2009]: Spain; manufacturing Bulzacchelli et al. [2007]: United States; manufacturing Finger and Gamper-Rabindran [2013]: United States; chemical manufacturing Lewchuk et al. [1996]: Ontario,Canada, manufacturing Monforton and Windsor [2010]: United States; mining Moderate evidencethat the introduction of OHS legislation has an effect on final outcomes Intermediate outcomes (three studies): exposure and compliance Foley et al. [2009]: Washington State, United States; multiple sectors LaMontagne et al. [2004]: United States; health care Ramsey and Glenn [1996]: Tennessee; United States, health care Limited evidencethat the introduction of legislation improves intermediate outcomes Introduction of smokefree workplace legislation Final outcomes (one study): respiratory and sensory symptoms Ayres et al. [2009]: Scotland; bar/restaurant Allwright et al. [2005]: Republic of Ireland; bar/restaurant Fernandez et al. [2009]: Spain; hospitality Larsson et al. [2008]: Sweden; bar/restaurant Moderate evidencethat smoke-free workplace legislation improves final outcomes Intermediate outcomes (two studies): smoke exposure, cigarette consumption Allwright et al. [2005]: Republic of Ireland; bar/restaurant Bondy et al. [2009]: Ontario,Canada; bar/restaurant Fernandez et al. [2009]: Spain; hospitality Larsson et al. [2008]: Sweden; bar/restaurant Moskowitz et al. [2000]: California, United States; multiple Strong evidence that smoke-free workplace legislation improves intermediate outcomes Inspection sequence Intermediate outcomes (four studies): compliance Gray and Jones [1991b]: United States; manufacturing Weil [2001]: United States; manufacturing Gray and Jones [1991b]: United States; manufacturing Ko et al. [2010]: United States, manufacturing Moderate evidencethat the first inspection results in the largest improvement in compliance Inspection activity: general deterrence of inspections and penalties Final outcomes (three studies): lost-time injuries Auld et al. [2001]: Alberta,Canada, construction Ruser and Smith [1991]: United States, manufacturing Scholz and Gray [1990]: United States, manufacturing Limited evidence (three studies) of no general deterrence effect on lost-time injuries Limited evidence of a general deterrence effect on fatalities (one study) and lost workdays (one study) (Continued ) 8 Tompa et al. TABLE V. (Continued ) Cluster No. of studies by outcome Study, jurisdiction, sector Evidence synthesis Inspection activity: specific deterrence of inspections with/ without penalties Final outcomes (13 studies): injuries and truck crashes Foley et al. [2012]: Washington State, United States; multiple sectors Gray and Scholz [1991]: United States; manufacturing Gray and Scholz [1993]: United States; manufacturing Gray and Mendeloff [2005]: United States; manufacturing Haviland et al. [2010]:Pennsylvania, United States; manufacturing Haviland et al. [2012]:Pennsylvania, United States; manufacturing Levine et al. [2012]: California, United States; high risk industries Mendeloff and Wayne [2005]: United States, manufacturing Nelson et al. [1997]: Washington State, United States; construction Ruser and Smith [1991]: United States; manufacturing Scholz and Gray [1990]: United States; manufacturing Scholz and Gray [1997]: United States; manufacturing Chen [2008]: United States; trucking Strong evidence (nine studies) that specific deterrence from inspections with penalties reduces final outcomes Moderateto limited evidence(nine studies) of no effect from specific deterrence of inspections without penalties on final outcomes Limited evidence (one study) that specific deterrence in a compliancereview ofmotor safety performancereduces truck crashes Nature of enforcement: Consultative activities Final outcomes (three studies): injuries Baggs et al. [2003]: Washington State, United States; multiple sectors Foley et al. [2012]: Washington State, United States; multiple sectors Hogg-Johnson et al. [2012]: Ontario, Canada; manufacturing Strong evidence/limited evidence that consultative activity has no effect on final outcomes Nature of enforcement: Autonomy supportive inspection style Intermediate outcomes (one study): compliance Burstyn et al. [2010]: Alberta, Canada; multiple sectors Limited evidence that an autonomysupportive inspector stylereduces visits to achieve compliance Nature of enforcement: State- versus federal-level enforcement Final outcomes (two studies): injuries and fatalities Bradbury [2006]: United States, multiple sectors Morantz [2009]: United States, construction Limited evidence that state (versus federal) enforcement results in lower fatalities and higher injuries Awareness campaigns Final outcomes (one study): injuries Mancini et al. [2005]: Italy, metal workers Gadomski et al. [2006]: NewYork State, United States; agriculture (children) Limited evidence that awareness campaigns improve final outcomes Intermediate outcomes (two studies): awareness and compliance Gadomski et al. [2006]: NewYork State, United States; agriculture (children) Bjorkdahl et al. [2008]: Sweden; multiple sectors Stokols et al. [2001]: California, United States, multiple sectors Moderate evidence that awareness campaigns improve intermediate outcomes Review of OHS Regulatory Enforcement Version: October 28, 2015 9 [Scholz and Gray, 1990], inspections initiated by a worker [Scholz and Gray, 1997], and inspections that were not superficial record checks [Gray and Scholz, 1991], or found a smaller effect than with citations [Nelson et al., 1997]. This inconsistency is the reason for the dual level of evidence. Some studies in this cluster considered inspections without identifying whether there were citations or penalties [Ruser and Smith, 1991; Nelson et al., 1997; Levine et al., 2012]. One study is treated separately in that it focused on truck crashes as an outcome in the transportation sector. This study alone provides “limited evidence” of specific deterrence from a compliance review of motor safety performance with regard to reduced truck crashes. Nature of enforcement: Consultative activity Three studies are in this cluster, all of which are rated high quality. The three considered final outcomes. For this cluster there is either “strong evidence or limited evidence” that consultative activity has no effect on injury rates (based on three high quality studies). The reason for the two-sided synthesis profile is that one study in this group, that of Foley et al. [2012], found mixed results in which one outcome was significant and negative for fixed site locations (lost workday for non-MSD claims) and several other outcomes were significant and negative for non-fixed site locations. The three high quality studies in this cluster included two based on data from Washington State [Baggs et al., 2003; Foley et al., 2012], and one Canadian study from Ontario [HoggJohnson et al., 2012]. Nature of enforcement: Autonomy supportive inspection style The one study in this cluster considered the intermediate outcome of compliance. For this cluster there is “limited evidence” that an autonomy-supportive style (e.g., one in which an inspector provides a rationale and choices versus deadlines and pressure) reduces the number of visits to achieve compliance (based on one high quality study). The one study in this cluster is based on data from Alberta [Burstyn et al., 2010]. Nature of enforcement: State- versus federal-level enforcement Two US studies examined whether state enforcement was more or less effective than federal level enforcement. The premise of these studies was that different styles of enforcement may be provided by different levels of government. The two studies in this cluster are both of medium quality and both considered final outcomes. For this cluster there is “limited evidence” that state enforcement results in lower fatality rates compared to federal enforcement (based on two medium quality studies). One of the studies also considered injury rates and found a positive and significant result, suggesting that state enforcement is associated with higher injury rates compared to federal enforcement. Awareness campaigns The studies included in this cluster are in different sectors and focused on different OHS risks. There are four studies in this cluster, two of which considered final outcome and three which considered intermediate outcomes. For the former group, there is “limited evidence” that awareness campaigns reduce injuries (based on two medium quality studies). For the latter group, there is “moderate evidence” that awareness campaigns improve compliance (based on three medium quality studies). Among the four studies, one evaluated an eye injury campaign for metal workers in Italy [Mancini et al., 2005], a second evaluated a noise awareness campaign in Sweden [Bjorkdahl et al., 2008], a third evaluated a child labor in agriculture campaign in New York [Gadomski et al., 2006], and a fourth evaluated a train-thetrainer program in California [Stokols et al., 2001]. DISCUSSION Our findings have important implications for both policy and research. On the policy side, the finding that several legislative and regulatory policy levers are effective in reducing injuries and/or increasing compliance provides evidence for supporting such activities. Specifically, among nine clusters (some with sub-categories) we found strong evidence in three clusters and moderate evidence in five. In terms of generalizability, the introduction of OHS legislation cluster spanned several sectors in the United States, Canada and Spain, and so may be broadly applicable to other developed countries in North America, Europe, and Australasia. The introduction of smoke-free workplace legislation cluster also spanned several countries, and therefore may be broadly applicable to developed countries, particularly in the hospitality sector. Two clusters have studies exclusively from the United States, and largely in manufacturing— that of inspection sequence and specific deterrence of inspections—and thus may be less generalizable to other sectors and countries. The consultative activity cluster and the awareness campaign one have two countries in each and with studies undertaken in multiple sectors, suggesting they may be generalizable to other developed countries. The strong evidence of an effect from actual inspections with penalties and moderate to limited evidence of no effect 10 Tompa et al. from inspections without penalties reinforces the importance of regulators being out in the field identifying and citing/ penalizing non-compliance. The limited evidence for a general deterrence effect found in our review is consistent with this interpretation. The literature review by Tompa et al. [2007] had similar findings with regards to general and specific deterrence and their impact on injury outcomes. Our update with more recent studies [e.g., Gray and Mendeloff, 2005; Mendeloff and Wayne, 2005; Haviland et al., 2010; Foley et al., 2012] adds to this evidence, and the addition of studies with compliance as an outcome [Gray and Jones 1991a,b; Weil, 2001; Ko et al., 2010] provides incremental support for this finding. Essentially, firms may not have the capacity to digest information about inspection activities in the field; they may only react when the adverse experience of an inspection with citations/penalties is first hand. Bluff [2011] refers to competing theory of firm behavior to explain why general deterrence may not be effective. For it to be effective, firms would need to be rational, long-run optimizers, and knowledgeable about the probability and the financial implications of being inspected, whereas in reality, firms may have bounded rationality and have limited capacity to process information. If this is the case, regulators may need to heighten awareness in the field by actively communicating the consequences of non-compliance, and possibly make information about non-compliers easily available to the general public. Focused awareness campaigns and inspection blitzes might also be a way to provide acute awareness on a particular hazard. Studies that considered compliance as an outcome offer important insights. The moderate evidence that the first inspection has the largest impact on compliance is corroborated across all four studies included in the review [Gray and Jones, 1991a,b; Weil, 2001; Ko et al., 2010] and has important implications for the efficient use of inspectorate resources. If subsequent inspections to a site have substantially lesser impacts, as the literature suggests, then an intensive regime of multiple inspections to a site may not be the best use of resources. Some jurisdictions have attempted such intensive enforcement strategies. In another cluster in this review, moderate evidence was found that awareness campaigns increase compliance, reinforcing the importance of communicating regulatory obligations to stakeholders. What is not clear is the relationship between compliance and final outcomes. The limited evidence that awareness campaigns reduce injures would suggest that the relationship is not definitive. That finding is based on only two medium quality studies. Clearly, more research is needed on the relationship between intermediate and final outcomes. In fact, Bluff [2011] emphasizes the importance of better understanding of motivations, attitude, perceptions, and skills in order to determine how particular strategies, mechanisms, and approaches can best be used to achieve compliance and ultimately better final outcomes. A recent review by Safe Work Australia [2013] also attempts to address issue of how and why interventions work. The findings for consultative activity (strong or limited evidence depending on context) provide some preliminary insights relevant to the move towards voluntary guidelines in some jurisdictions. Of three studies considering final outcomes, all of which were high quality, only one study by Foley et al. [2012] found significant effects in some contexts. The study by Hogg-Johnson et al. [2012] did not find an effect, but noted that not all firms received consultative services as was originally planned in the program, and many only received a “light touch.” The findings in this cluster are quite consistent with the findings that specific deterrence is much more effective than general deterrence, and suggest that consultation in the absence of specific deterrence might be interpreted by organizations as that there are no consequence for non-compliance. Clearly, more research is needed in this area to better understand whether consultations, if implemented in a comprehensive and extensive fashion, have an impact on outcomes. Even more pressing is the need for studies on the effectiveness of voluntary guidelines, since no studies were identified on this topic. Another avenue of research could investigate the mix of policy levers that are most effective when used together. The moderate evidence of an effect on final outcome from the introduction of OHS legislation suggests, at face value, that legislation may not always be the best approach to addressing new and emerging health and safety issues. The limited evidence for an impact on intermediate outcomes further reinforces this interpretation. But the studies in this cluster were quite heterogeneous in the type of legislation being introduced, and this may be the reason for the limited impact. They were also incremental to an existing broad legislative framework and related regulatory enforcement, and were designed to increase protection related to a specific hazard. This is different from the introduction of broad OHS legislative frameworks in the 1970s and 1980s in many developed countries that were the subject of effectiveness studies thereafter. Another issue is that such studies need to consider a longer measurement time period following the introduction of legislation in order to capture the long-run impact. Essentially awareness, compliance and ultimately injury outcomes may take more time to improve than might have been expected by researchers and regulators. Clearly, given the right context, the introduction of legislation can be effective, as was the case with smoke-free workplace legislation. Looking at this particular example, some lessons might be learned that can be generalized to other areas. Possibly timing, public sentiment, and a broad awareness of the serious health implications may be some of the important ingredients. Also noteworthy were the Review of OHS Regulatory Enforcement Version: October 28, 2015 11 concerns on the part of the restaurant and entertainment industries with regards to the implication of such legislation on business, concerns which were not vindicated. Also important was the “across the board” nature of the legislation in most jurisdictions. In fact, in the one study in Spain where a choice was available between total, partial, or no restriction [Fernandez et al., 2009], exposure reductions to second hand smoke varied from substantial for total ban establishments, modest for partial ban establishments, to inconsequential for no ban ones. The number of studies on the effectiveness of OHS regulation has increased notably since the review by Tompa et al. [2007] as has the quality. More studies are using microlevel data and robust statistical methods to address industryand organizational-level behavioral responses to regulation and its enforcement. Earlier, less structured reviews that drew on an older evidence base noted quality concerns and concluded that, overall, the evidence suggests OSHA has resulted in only a modest improvement in workplace health and safety in the United States [Kralj, 2001; Mendeloff, 2001; Thomason, 2001]. In our review, the criteria of publication since 1990 onward eliminated some of the weaker (and older) studies. Our expansion of the inclusion criteria to intermediate outcomes has allowed us to explore a broader and richer literature, such as the nature of enforcement and policy levers such as awareness campaigns. The inclusion of studies evaluating smoke-free workplace legislation provided an example of successful introduction that might provide lessons for regulation in other OHS areas. Regarding the way forward for research, we would encourage policymakers and researchers to work together to build in policy evaluation, particularly with the introduction of new legislation, changes in enforcement strategies, and the roll out of awareness campaigns. This would lend itself to better planned study designs, in some cases the possibility of randomization or staggered introduction. Also, longer measurement time periods may be needed with new legislation in order to ensure there is time for stakeholders to become aware of changes and respond accordingly. The effectiveness of voluntary guidelines is a relatively uncharted area that urgently needs exploration. More exploration is also needed of the context and conditions for successful legislation and policy. Related to this latter issue, the construct of how OHS policy levers create incentives for organizations to improve OHS processes and outcomes has direct implications for how programs to address OHS within organizations are arranged and implemented. It is noteworthy that such programs themselves have been the subject of systematic reviews [e.g., Robson et al., 2007]. Consideration of the effectiveness of such programs and how they are affected by policy levers and other environmental factors is an area warranting investigation. CONCLUSIONS There is a substantial body of evidence on the effectiveness of legislative and regulatory policy levers at improving intermediate and final outcomes. We identified strong evidence of the following: (i) specific deterrence from inspections with penalties results in a decrease in injuries; (ii) consultative activity has no effect on injury outcomes with some exceptions; and (iii) the introduction of smokefree workplace legislation reduces exposure to second hand smoke. We identified moderate evidence of the following: (i) a first inspection has the largest impact on compliance rates; (ii) specific deterrence from inspections without penalties has no effect on injuries except in particular contexts; (iii) awareness campaigns improve compliance; (iv) the introduction of OHS legislation as no effect on injury outcomes; and (v) the introduction of smoke-free workplace legislation reduces respiratory and/or sensory symptoms. This study adds substantially to the evidence base identified in an earlier review. In addition to new evidence supporting previous study findings, it included new categories of evidence–compliance as an outcome, nature of enforcement, awareness campaigns, and workplace smoking legislation. The evidence is of value for informing policy decision making in the OHS field, and provides insights into areas warranting further exploration in future research. AUTHORS’ CONTRIBUTIONS Emile Tompa, Principal Investigator: Provided oversight of the review, participated in the design of the study and all phases of the systematic review process, and was the lead pen of the manuscript. Christina Kalcevich, Project Co-ordinator: Coordinated all aspects of the review, participated in the design of the study and all phases of the systematic review process, prepared materials for meetings and presentations, drafted the methods section of the manuscript, and reviewed drafts of the manuscript. Michael Foley, Co-investigator: Participated in the design of the study and all phases of the systematic review process, and reviewed drafts of the manuscript. Chris McLeod, Co-investigator: Participated in the design of the study and all phases of the systematic review process, and reviewed drafts of the manuscript. Sheilah Hogg-Johnson, Co-investigator: Participated in the design of the study and all phases of the systematic review process, and reviewed drafts of the manuscript. Kim Cullen, Co-investigator: Participated in the design of the study and all phases of the systematic review process, and reviewed drafts of the manuscript. Ellen MacEachen, Co-investigator: Participated in the design of the study, the title and abstract and article inclusion selection process, and reviewed drafts of the manuscript. Quenby Mahood, Co-investigator: Participated in the design of the study, provided library search and 12 Tompa et al. systematic review guidance, and reviewed drafts of the manuscript. Emma Irvin, Co-investigator: Participated in the design of the study and all phases of the systematic review process, provided library search and systematic review guidance, and reviewed drafts of the manuscript. ACKNOWLEDGMENTS We thank our advisory committee members—Wayne De L’Orme, Anne Duffy, Anne-Marie Feyer, Steve Mantis, Carol Sackville-Duyvelshoff, Barbara Silverstein, Carmine Tiano, David Walters, and Michael Zacks—for their valuable guidance at key junctures during the process of completing this review. FUNDING Funding for this review was provided by the Institute for Work and Health, which is an independent, not-for-profit research institute. The Institute receives funding from the Prevention Office of the Ministry of Labour in Ontario, Canada. 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Occupational safety and health interventions to reduce musculoskeletal symptoms in the health care sector. J Occup Rehabil 20:199–219. Weil D. 2001. Valuing the economic consequences of work injury and illness: A comparison of methods and findings. Am J Ind Med 40:418–437. Wright M, Antonelli A, Doyle JN, Bendig M, Genna R. 2005. An evidence based evaluation of how best to secure compliance with health and safety law. Research Report 334, 1-A112. Reading, Berkshire, UK, Greenstreet Berman Ltd for Health and Safety Executive 2005. SUPPORTING INFORMATION Additional supporting information may be found in the online version of this article at the publisher’s web-site. Review of OHS Regulatory Enforcement Version: October 28, 2015 15 SCHWERIN CAMPBELL BARNARD IGLITZIN & LAVITT December 04, 2017 - 1:33 PM Transmittal Information Filed with Court: Supreme Court Appellate Court Case Number: 94525-0 Appellate Court Case Title: Brandon Apela Afoa v. Port of Seattle Superior Court Case Number: 09-2-06657-4 The following documents have been uploaded: 945250_Briefs_20171204132915SC824617_8411.pdf This File Contains: Briefs - Amicus Curiae The Original File Name was 2017 12 04_Amicus Brief_WSLC_Final_.pdf 945250_Motion_20171204132915SC824617_9830.pdf This File Contains: Motion 1 - Amicus Curiae Brief The Original File Name was 2017 12 04_MOT_Leave to File AC Brief_WSLC_Final.pdf A copy of the uploaded files will be sent to: Charles.bird@dentons.com Mark.Dombroff@leclairryan.com andrew_biggs@northcraft.com cesar@bishoplegal.com derek@bishoplegal.com iglitzin@workerlaw.com jpitre-williams@rmlaw.com mark.mckinnon@leclairryan.com mark_northcraft@northcraft.com merickson@rmlaw.com mschein@sullivanlawfirm.org pokano@rmlaw.com ray@bishoplegal.com woodward@workerlaw.com Comments: Sender Name: Rebecca Huvard - Email: huvard@workerlaw.com Filing on Behalf of: Dmitri L. Iglitzin - Email: iglitzin@workerlaw.com (Alternate Email: ) Address: 18 W. Mercer St., Ste. 400 Seattle, WA, 98119 Phone: (206) 257-6015 Note: The Filing Id is 20171204132915SC824617 Supreme Court No. 92251-9 IN THE SUPREME COURT OF THE STATE OF WASHINGTON COMMON SENSE ALLIANCE, P.J. TAGGARES COMPANY, and FRIENDS OF THE SAN JUANS, Appellants, v. GROWfH MANAGEMENT HEARINGS BOARD, WESTERN WASHINGTON REGION, and SAN JUAN COUNTY, Respondents, CROSS-ANSWER TO CROSS-PETITION FOR REVIEW fiLED AS \I I!,(> \iJ,ENT TO EMA\L Kyle A. Loring, WSBA #34603 Attorney for Appellant Friends of the San Juans P.O. Box 1344 Friday Harbor, W A 98250 360-378-2319 kyle@sanjuans.org ~ ORIG\N~L I. TABLE OF CONTENTS I. TABLE OF CONTENTS ................................................................. i II. TABLE OF AUTHORITIES .......................................................... ii III. INTRODUCTION .......................................................................... 1 IV. COUNTERSTATEMENT OF THE CASE .................................... 2 V. ARGUMENT .................................................................................. 6 A. The Cross-Petition Does Not Raise a Valid Constitutional Question Because the CAO Does Not Exact Property ....... 6 B. The Cross-Petition Does Not Identify a Valid Decisional Conflict. ............................................................................ 14 VI. CONCLUSION ............................................................................. 18 II. TABLE OF AUTHORITIES Cases Citizens' Alliance for Property Rights v. Sims, 145 Wn. App. 649, 187 P.3d 786 (2008) ...................................................................................... 11 City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 119 S. Ct. 1624,143 L. Ed. 2d 882 (1999) ...................................... 15, 16 City of Olympia v. Drebick, 156 Wn.2d 289, 126 P.3d 802 (2006) ......... 16 Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309 (1994); ....... passim Guimont v. Clarke, 121 Wn.2d 586, 854 P.2d 1 (1993) ........................... 13 Honesty in Environmental Analysis & Legislation v. Central Puget Sound Growth Management Hearings Board, 96 Wn. App. 522,979 P.2d 864 (1999) ............................................................................................... 12, 13 In reMarriage of Rideout 150 Wash.2d 337,77 P.3d 1174 (2003) ........ 12 Kaiser Aetn!:!, 444 U.S., at 176 .................................................................... 8 Kitsap Alliance of Prop. Owners v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 160 Wn. App. 250, 255 P.3d 696, pet. rev. denied 171 Wn.2d 1030,257 P.3d 662 (2011) ................................................... 12, 13 Koontz v. St. Johns River Water Mgmt. Dist., _U.S._, 133 S. Ct. 2586 (2013) ................................................................................................. 7, 15 Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005) ..................................................................................... 7, 15 Margola Assocs. v. Seattle, 121 Wn.2d 625, 854 P.2d 23 (1993) ...... 14, 17 Nollan v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141 (1987) .............................................................................................. passim Orion Com. v. State, 109 Wn.621, 747 P.2d 1062 (1987) .................. 14, 17 Peste v. Mason County, 133 Wn. App. 456, 136 P.3d 140 (2006) ............. 8 Sintra, Inc. v. City of Seattle, 131 Wn.2d 640,935 P.2d 555 (1997) ....... 16 Smith et al. v. Town of Mendon, 789 N.Y.S.2d 696,4 N.Y.3d 1 (2004) 11, 12 11 Statutes RCW 64.04.010 ........................................................................................ 10 RCW 64.04.130 ........................................................................................ 10 RCW 82.02.020 ........................................................................................ 10 Other Authorities Black's Law Dictionary 185 (3rd pocketed. 2006) .................................... 9 Rules RAP 13.4 ..................................................................................................... 6 lll III. INTRODUCTION Cross-Appellant Friends of the San Juans ("Friends") respectfully submits this Cross-Answer to Appellants Common Sense Alliance's and P.J. Taggares Company's (collectively "CSA") Cross-Petition for Review. CSA asserts that this Court should accept review of that Cross-Petition on the grounds that the Court of Appeals erred in denying CSA's unconstitutional conditions argument. CSA had argued that San Juan County's Critical Areas Ordinance ("CAO") conditions new development near critical areas on the dedication of property without a nexus and rough proportionality to a development's likely water pollution impacts. The Court of Appeals' opinion ("Opinion") rejected that argument because: (1) the CAO's buffers do not constitute exactions because they do not transfer private property to public use; and (2) the unconstitutional conditions doctrine does not apply to legislation. CSA' s argument rests on an untenable foundation -the assumption that buffers constitute exactions. CSA invites this Court to expansively revise federal Takings Clause jurisprudence to apply the unconstitutional conditions doctrine to legislation that does not transfer private property for public use. Federal courts have limited the application ofthat doctrine to "the special context" of land-use exactions, where the government 1 conditions the approval of a development permit on the landowner's dedication of an easement or a piece of real property to public use. The CAO does no such thing -- instead, it places some development limits on narrow bands of land directly adjacent to critical areas like juvenile salmon habitat. Furthermore, it resulted from a lengthy legislative process and thus does not invoke the concern that spawned the unconstitutional conditions doctrine -that government may take advantage of its power and discretion in land-use permitting to demand a transfer of property. The CAO's undersized, site-specific buffers do not constitute exactions and do not give rise to a significant question of constitutional law or, with the exception of the amount of development that can occur within them, conflict with a decision of this Court. IV. COUNTERSTATEMENT OF THE CASE On December 4, 2012, San Juan County ("County") adopted a CAO that designated shoreline critical areas based on their ecological sensitivity and priority and adopted a site-specific buffer sizing procedure based on the type of critical area, the amount of development, and its proximity to the critical area. On September 6, 2013, the Growth Management Hearings Board ("Board").upheld those designations but struck most of the buffer sizes as too small to protect water quality and habitat based on the Best Available Science ("BAS"). On August 10, 2 2015, the Court of Appeals issued an Opinion that upheld the Board's decision, in part rejecting CSA's argument that shoreline buffers constitute exactions for which Constitutional Takings jurisprudence requires a nexus and proportionality to the harm. The remainder of this section addresses several factual misstatements offered by the Cross-Petition. Cross-Petition, at 3-7. CSA misidentifies: (1) the ownership ofthe shoreline buffers and amount of development that can occur in the buffers; (2) the size of the buffers; and (3) considerations in the buffer calculation. Id. First, the CAO's shoreline water quality buffer provisions do not require property owners to dedicate a buffer to anyone as a condition for approval of a land use permit. Administrative Record ("AR") 4241 (buffer definition without reference to transfer of property), 4360-61 (ordinance language identifying at Step 3 the procedure for determining buffers without requiring transfer of property). Although the CAO restricts some development in water quality buffers, it allows a substantial amount of activity there, including but not limited to: the repair and replacement of nonconforming structures and uses (AR 4269); new utility installation (AR 4269); development of up to 4,000 square feet of orchards and gardens (AR 4365); well drilling in the outer 25% (AR 4365); annual removal of20% of tree and shrub foliage (AR 4365); and on-site sewage 3 disposal system components (AR 4366). Second, the CAO's water quality buffers for Fish and Wildlife Habitat Conservation Areas ("FWHCAs") extend to a maximum of just 1 25 feet from the Ordinary High Water Mark, not the 205 feet claimed, and even then only if the development will cover nearly 100% of a parcel. Compare Cross-Petition, at 4 with AR 4361 (directing landowners to establish shoreline water quality buffer for 60% pollutant removal using the process for wetland buffers at AR 4324-29). Third, while the buffer sizing procedure did not establish buffers large enough to protect critical areas, its flow path calculation expressly incorporated the contribution of pollutants associated with the amount of development proposed and the rate at which they would travel toward the critical area during rains. AR 4326-27 (Tables 3.3, 3.4, 3.5). The CAO dedicates seven pages of its wetlands ordinance to the site-specific process for locating and sizing water quality buffers. AR 4323-29, 4360-61. While the Board agreed that those buffers were not large enough to protect the water quality of either wetlands or FWHCAs, they incorporate the size of a proposed development and landscape characteristics into their sizing calculation. AR 6284-293, 6303-305. 1 For shorelines, a landowner 1 Since the Board's decision, the County has adopted a new buffer sizing method. That method takes two primary factors into consideration for buffer sizing, the type of critical area and land use intensity of the proposed development. 4 conducts the multi-step process for sizing the water quality buffer, including: (1) determining whether the development will occur within 205 feet of the FWHCA; (2) determining whether the development area will drain to the FWHCA; (3) determining the water quality-sensitivity rating; and (4) determining the stormwater discharge factor by: (a) identifying the flow path, (b) determining the different types of land cover along that flow path, including the development, (c) calculating the length of each different land cover along the flow path, (d) identifying the base storm water discharge factor for each type of land cover, (e) determining the slope for each segment of the flow path, (f) determining the drainageway along each segment of the flow path, (g) calculating the composite storm water discharge factor for the full extent of the drainage area, and (h) using that discharge factor to identify the buffer width. AR 4361 (Step 3, referencing the process at AR 4323-29). The BAS in the record identifies buffers as an effective method for protecting FWHCAs. AR 3708-723, 3535-552, 4069-4205, 4654-55, 4675-684 (recommending buffers from 150 to 250 feet in width). Buffers provide separation zones between water bodies and development activities intended to limit impacts from those activities on the natural functioning of streams, lakes, and marine waters. AR 3708, 4076. Buffers typically are relatively undisturbed areas that host mature vegetation consistent with the 5 natural potential of the site. AR 4076.2 The Aquatic Habitat Guidelines Program, a collaboration of several state agencies, notes that an average water quality buffer size of358 feet would have an 80% likelihood of effectively removing pollutants. AR 4655. V. ARGUMENT The Cross-Petition does not satisfy either of the constitutional issue or decisional conflict grounds necessary for the Court's review. RAP 13.4. CSA argues that: (1) the Court of Appeals summarily rejected its argument that a buffer is an exaction, giving rise to a question of constitutional law; and (2) the decision below conflicts with this Court's decisions by creating an exception to Nollan v. California Coastal Commission and Dolan v. City ofTigard. Cross-Petition, at 10-17. The first argument fails because the CAO legislation does not require the dedication of private property to public use. The second argument fails because state and federal courts have limited their application of the unconstitutional conditions doctrine to site-specific application of a regulation and to only the exaction context. A. The Cross-Petition Does Not Raise a Valid Constitutional Question Because the CAO Does Not Exact Property. The Cross-Petition urges the Court to break from settled 2 For example, the BAS Synthesis recommends protection for juvenile salmon in the form ofriparian buffers consistent with the salmon recovery plan. AR 3680-81. 6 constitutional jurisprudence and now determine that buffers that limit some development constitute dedications of private property. CrossPetition, at 10. However, the heightened scrutiny ofthe unconstitutional conditions doctrine enunciated by Nollan, and Dolan does not apply to the CAO's buffer system because the legislatively-adopted CAO does not transfer a property right in exchange for a land use permit. See, e.g., Koontz v. St. Johns River Water Mgmt. Dist., _U.S._, 133 S. Ct. 2586, 2603 (2013) (applying to government demand for money); Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 546-47, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005); Dolan, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 2309 (1994); Nollan, 483 U.S. 825, 841, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987) (noting heightened risk "where the actual conveyance of property is made a condition to the lifting of a land use restriction."). None of the decisions cited by CSA hold otherwise. Neither ofNollan or Dolan suggest that buffers effect a dedication of private property to public use. See Dolan, 512 U.S. at 393; Nollan, 483 U.S. at 827. In each of those cases, a government agency requested the dedication of property to public use in exchange for approval of a development permit. In Dolan, the City of Tigard required Dolan to dedicate to it ownership of property for a stream buffer. 512 U.S. at 379- 80. In discussing the character of this request, the U.S. Supreme Court 7 expressly distinguished between a private floodplain and a public greenway, noting that "[t]he city has never said why a public greenway, as opposed to a private one, was required in the interest of flood control." ld. at 393. The court concluded that "[t]he difference to petitioner, of course, is the loss of her ability to exclude others," and the Court noted that ''the loss of her ability to exclude others is 'one of the most essential sticks in the bundle of rights that are commonly characterized as property."' ld. (quoting Kaiser Aetna, 444 U.S., at 176). In Nollan, the California Coastal Commission sought a public easement across appellants' beaches in exchange for a permit to construct a larger house. 483 U.S. at 827. In stark contrast, the CAO's legislatively-adopted buffers do not transfer ownership of any property right. Instead, they limit some of the development that might otherwise occur there. AR 4358-368. Washington jurisprudence confirms that the CAO does not alter a property's ownership--the landowner retains the same fundamental attributes of property ownership that she had before the regulations, the rights: to possess, exclude others, dispose of, and make some economically viable use of the property. See Peste v. Mason County, 133 Wn. App. 456, 471, 136 P.3d 140 (2006). Contrary to CSA's argument, marking a buffer on a site plan does not accidentally dedicate a property interest to the public. See Richardson, 108 Wn. App. at 890-91. A 8 common law dedication occurs when an owner designates land, or an easement on such land, for use by the public, and that designation is accepted on behalf of the public. Id.; see also Black's Law Dictionary 185 (3rd pocketed. 2006) (defining dedication as "[t]he donation of land or creation of an easement for public use."). A dedication may occur expressly, such as through a deed or oral or written declaration, or impliedly, as evidenced by some course of conduct by the property owner. Id. A statutory dedication must be made in conformity with the laws regulating the property. I d. A landowner reserves no rights that would be incompatible or interfere with full public use of the dedicated property. Id. at 891. A party asserting the existence of a dedication has the burden of establishing that it meets all of the necessary elements, including the owner's intent to dedicate the property. ld. The CAO does meet the criteria for dedicating property. First, marking a buffer on a document does not demonstrate the requisite landowner intent to give the land to the County. Second, the CAO does not authorize members of the public to use the land. Third, the CAO authorizes a substantial amount of activity that would interfere with public use of the property. AR 4362-68. Consequently, neither the adoption of the CAO nor any of its provisions effects a dedication. Moreover, CSA's citation to the state law that requires a particular 9 form for instruments of conveyance confirms that the CAO does not meet the legal criteria required to convey property to the County. CrossPetition, at 11-12; RCW 64.04.130. RCW 64.04.130 establishes the authority for certain public or nonprofit entities to hold and convey property interests and directs them to comply with legal requirements for instruments that convey interests in real property. RCW 64.04.130. That statute clarifies that such conveyances of real estate may occur only by deed. RCW 64.04.010. The CAO does not require private landowners to submit deeds to the County. In addition, CSA mistakes a conservation overlay for a dedication to public use. CSA asserts that the Court in Isla Verde International Holdings. Inc. v. City of Camas deemed "a code provision requiring 'reservation of open space' as a condition of permit approval. .. the equivalent of a dedication." Cross-Petition, at 10 n.4. However, the Court in Isla Verde declined to decide whether the open space set aside constituted a dedication. Isla Verde, 146 Wn.2d 740, 759, 49 P.3d 867 (2002). Instead, it reviewed a permit condition requiring a 30% open space set aside and concluded that, "the open space set aside condition is an in kind, indirect 'tax, fee, or charge' on new development," and that it thus required consistency with RCW 82.02.020. ld. Likewise, in reviewing clearing limits adopted by King County, the court in Citizens' Alliance for 10 . Property Rights v. Sims did not analyze whether the clearing limits constituted a dedication, instead merely evaluating them as "an in kind indirect 'tax, fee, or charge' on development under RCW 82.02.020." 145 Wn. App. 649,664, 187 P.3d 786 (2008). Thus, neither of these decisions supports the allegation that a buffer constitutes a dedication of private land for public use. Although not precedential, a 2004 opinion from New York's Court of Appeal thoughtfully explains why the unconstitutional conditions doctrine does not apply to conservation policies. Smith et al. v. Town of Mendon, 789 N.Y.S.2d 696, 4 N.Y.3d 1 (2004).3 The issue there was whether a municipality commits an unconstitutional taking when it conditions site plan approval on the landowner's acceptance of a development restriction consistent with the municipality's preexisting conservation policy. Id. at 4 N.Y.3d 6. The court declined to analyze the restriction as an exaction, noting that "[e]xactions are defined as 'land-use decisions conditioning approval of development on the dedication of property to public use." Id. at 10 (emphasis in original) (citing City of Monterey, 626 U.S. at 702). The court held that the restriction merely placed conditions on development and declined to extend the concept of 3 Attached hereto as Appendix A. 11 exaction to it because there was no dedication of property. Id. at 12. The CAO buffers likewise merely limit some development on some properties, and do not transfer private property to public use. Further, to the extent that Honesty in Environmental Analysis & Legislation v. Central Puget Sound Growth Management Hearings Board ("HEAL") and Kitsap Alliance of Property Owners v. Central Puget Sound Growth Management Hearings Board ("KAPO") reference a nexus and proportionality standard, they are inapposite here. The HEAL court asserted sua sponte in dictum that policies and regulations adopted under the GMA must observe nexus and proportionality. 96 Wn. App. 522, 533- 34, 979 P.2d 864 (1999). After recognizing that "[t]he briefs of the parties omit any discussion" of nexus and proportionality, the court briefly discussed that topic. Id. at 533. However, this discussion constituted dictum because it was not necessary to resolve whether the GMA requires BAS to be included substantively in the adoption of a CAO. ld at 525-26 (setting forth issues); see In reMarriage of Rideout, 150 Wash.2d 337, 354, 77 P.3d 1174 (2003) (where language has no bearing on decision, that language is dictum). Further, the court did not cite legal support for its proposal to substantially expand the reach of the unconstitutional conditions doctrine, did not conduct a Gunwall analysis, and did not inquire into the limited application of the doctrine to exactions. See 12 HEAL, 96 Wn. App. at 533-35; Guimont v. Clarke, 121 Wn.2d 586,604, 854 P.2d 1 (1993) (where party does not brief relevant Gunwall factors necessary to determine whether independent analysis of state constitution is proper, court will analyze only federal constitution). As discussed at Section V.B. below, no federal court has applied Nollan and Dolan beyond the exaction context. In addition, to the extent that Division 2 of the Court of Appeals referenced the nexus and proportionality test in KAPO, it likewise did not provide any legal basis for unsettling decades of Washington and federal jurisprudence. KAPO, 160 Wn. App. 250,272,255 P.3d 696, pet. rev. denied 171 Wn.2d 1030, 257 P.3d 662 (2011). Instead, that court relied without explanation on the dictum from HEAL to reference nexus and proportionality criteria in the context of a due process argument. Id. at 272-73. The court summarily announced those criteria without analyzing whether Nollan and Dolan should be extended well beyond the context of exactions. Id. Friends agrees with CSA that the nexus and proportionality tests constitute a special application of the unconstitutional conditions doctrine, and with the direction in Koontz that that doctrine applies in only the context of exactions. 13 B. The Cross-Petition Does Not Identify a Valid Decisional Conflict. The Cross-Petition incorrectly argues that the Opinion conflicts with state and federal decisions by creating an exception to federal exaction jurisprudence. Cross-Petition, at 12-17. However, like the Opinion, U.S. Supreme Court decisions limit the application of the unconstitutional conditions doctrine to local permit decisions that require the dedication of private property to public use in exchange for a development permit. The cited Washington decisions likewise either do not address the nexus and proportionality criteria that apply to exactions or do not apply them in that setting. See Margola Assocs. v. Seattle, 121 Wn.2d 625, 647, 854 P.2d 23 (1993), Orion Com. v. State, 109 Wn.621, 653,747 P.2d 1062 (1987)). Consequently, the Opinion does not conflict with either federal or state takings jurisprudence that applies uniquely to exactions. Contrary to CSA's claims, the Opinion accords with U.S. Supreme Court jurisprudence limiting the unconstitutional conditions doctrine to exactions during the permitting process. In City of Monterey v. Del Monte Dunes at Monterey, Ltd., the court declared that it had not extended Dolan's rough proportionality test "beyond the special context of exactions-land-use decisions conditioning approval of development on 14 the dedication of property to public use." 526 U.S. 687, 702-03, 119 S. Ct. 1624, 143 L. Ed. 2d 882 (1999). The following year, the U.S. Supreme Court stated in Lingle that "[b]oth Nollan and Dolan involved Fifth Amendment takings challenges to adjudicative land-use exactionsspecifically, government demands that a landowner dedicate an easement allowing public access to her property as a condition of obtaining a development permit." 544 U.S. at 546 (emphasis added). In Koontz v. St. Johns River Water Management District, the U.S. Supreme Court indicated that application of the unconstitutional conditions doctrine is limited to the context ofland-use exactions to protect an applicant's constitutional right to just compensation for "property the government takes when owners apply for land-use permits." Koontz, 133 S. Ct. at 2594-95 (emphasis added) (citing Lingle, 544 U.S. at 547). The doctrine grew out of a concern that a governmental entity might apply its power and discretion in land-use permitting to appropriate excessive private property for public use as a condition of a permit. Koont~ 133 S. Ct. at 2594-95. In her dissent, Justice Kagan noted that the Nollan and Dolan decisions "provide an independent layer of protection in 'the special context of land-use exactions.'"_ U.S._, 133 S. Ct. 2586,2604 (2013) (J. Kagan dissenting) (citing Lingle, 544 U.S. at 538 and referencing Nollan and Dolan). 15 Because the legislatively-adopted CAO is not a permit decision and does not require landowners to dedicate private land for public use, it does not warrant that extra layer of protection and thus is not subject to the exactions analysis conducted in Nollan and Dolan. See id.; Richardson v. Cox, 108 Wn. App. 881, 890-91,26 P.3d 970 (2001). In the context of development fees, the Washington Supreme Court has distinguished between legislatively prescribed development fees and direct mitigation fees in holding that the Nollan and Dolan standards do not apply to the former. See City of Olympia v. Drebick, 156 Wn.2d 289, 301-02, 126 P.3d 802 (2006). And in his concurrence in Sintra, Inc. v. City of Seattle, Justice Durham noted that ''Nollan and Dolan do not inform the doctrine of regulatory takings, which is concerned with overly burdensome restrictions on the use of private property." 131 Wn.2d 640, 671,935 P.2d 555 (1997). In citing two Washington decisions for the proposition that the unconstitutional conditions doctrine applies to legislation, CSA conflates the enhanced federal constitutional protections for exactions with constitutional takings jurisprudence generally. At the tail end of its argument, CSA references two Washington cases for the proposition that "this Court has applied the nexus and proportionality standards to legislatively imposed conditions on development. Cross-Petition, at 17 16 (citing Margola Assocs., 121 Wn.2d at 647, Orion Corp., 109 Wn.at 653). Yet, neither of those decisions demonstrates that legislation warrants review for a nexus or proportionality. In Margo1a Assocs., the Court's constitutional analysis did not delve into nexus and proportionality, instead holding that the City of Seattle's fee did not result in a regulatory taking because it did not deny all economically viable use of the property or result in a physical taking. 121 Wn.2d at 646-48. In Orion Corp., the Court deemed the challenge ripe "despite the lack of a final decision by the local regulatory decisionmaker concerning uses allowed on Orion's property" due to the unusual circumstances in that case. 109 Wn.2d at 658. Those unusual circumstances included the creation of a sanctuary that would have rendered any application for a permit by Respondent Orion Corporation futile. Id. at 632-33. Further, although the Court referenced Nollan and the nexus concept, it applied that concept largely to the creation of a sanctuary surrounding the land in question, not the local shoreline master program. Id. at 663-64. Indeed, the Court noted that "prior to the Sanctuary the regulations allowed for some economic uses consistent with the preservation goal." Id. at 663. Consequently, to the extent that the Court applied a nexus standard, it did so in the context of the sanctuary's land purchasing process rather than the broad adoption of a local ordinance. Id. at 663-64. 17 VI. CONCLUSION CSA has not demonstrated that its Cross-Petition warrants review. The Court of Appeals applied federal and state exaction jurisprudence when it rejected CSA's request to apply the unconstitutional conditions doctrine to a site-specific buffer program. Consequently, the Opinion did not give rise to an important constitutional question or a decisional conflict on that issue, and the Court should deny the Cross-Petition. 18 Appendix A Page 696 789 N.Y.S.2d 696 4 N.Y.3d 1 In the Matter of Paul Smith et al., Appellants v. Town of Mendon et al., Respondents New York Court of Appeal December 21, 2004 Argued November 17, 2004 [4 N.Y.3d 2] COUNSEL [4 N.Y.3d 3] Galvin and Morgan, Delmar (James Morgan and Madeline Sheila Galvinof counsel), for appellants. [4 N.Y.3d 4] Chamberlain D'Amanda Oppenheimer & Greenfield, LLP, Rochester (George D. Marron and Sheldon W. Boyceof counsel), for respondents. [4 N.Y.3d 5] Eliot Spitzer, Attorney General, Albany (Caitlin J. Halligan, Daniel Smirlock, Peter H. Lehner, John J. Sipos and Susan L. Taylorof counsel), for State of New York, amicus curiae. Community Rights Counsel, Washington, D.C. (Jason C. Rylander of counsel), for Association of Towns of the State ofNew York and others, amicicuriae. [4 N.Y.3d 6] Rosenblatt, J. This appeal calls on us to determine whether a municipality commits an unconstitutional taking when it conditions site plan approval on the landowner's acceptance of a development restriction consistent with the municipality's preexisting conservation policy. We hold that it does not. I. Paul and Janet Smith own a 9.7 acre lot in the Town of Mendon. Situated along Honeyoe Creek, a protected waterway, the lot includes several environmentally sensitive parcels, falls within the creek's I 00-year floodplain boundary and is located within 500 feet of a protected agricultural district. It also contains a woodlot and steep sloping areas susceptible to erosion. Several portions of the property sit within areas classified as environmental protection overlay districts (EPODs), pursuant to section 200-23 of the Mendon Town Code. Four separate EPODs limit the Smiths' use of their property. The first, a "Steep Slope" EPOD, bars the construction of new buildings or structures, the clearing of any land area, the installation of sewage disposal systems, the discharge of storm water and the placement of stormwater runoff systems, and filling, cutting or excavation operations within the designated district. Property owners may acquire development permits for projects within a Steep Slope EPOD if they can show that their proposed activities will not destabilize the soil, cause erosion or unnecessarily destroy ground cover. They must further demonstrate that there is no reasonable alternative for the proposed activity. [4 N.Y.3d 7] The other three EPODs apply to sensitive lands bordering a major creek, an established wooded area and a floodplain. All contain comprehensive use restrictions similar to the Steep Slope EPOD. As a prerequisite for issuance of a development permit, all require specific showings that the proposed activity will not result in injuries to the covered, environmentally sensitive districts. In December 200 I, the Smiths applied to the Town Planning Board for site plan approval to construct a single-family home on the non-EPOD portion of their property. Following various proceedings, the Planning Board issued a final site plan approval in July 2002. The Board concluded that the Smiths' proposal was not likely to result in any adverse environmental impacts as long as no development occurred within the EPOD portions of the site. It conditioned final site plan approval on the Smiths' filing a conservation restriction on any development within the mapped EPODs and amending the final site plan map accordingly. Such action, the Planning Board stated, would "put subsequent buyers on notice that the property contains constraints which may limit development within these environmentally sensitive areas." The Board also determined that the restriction would provide the most meaningful and responsible means of protecting the EPODs. The conservation restriction sought by the Town closely tracked the limitations set by the EPOD regulations. Under the restriction, which would run with the land and bind subsequent owners, the Smiths would be prohibited in the EPODs from "[c]onstruction, including, but not limited to structures, roads, bridges, drainage facilities, barns, sheds for animals and livestock and fences," the "[c]lear-cutting of trees or removal of vegetation or other ground cover," changing the "natural flow of a stream" or disturbing the stream bed, installing septic or other sewage treatment systems, and using motorized vehicles. The restriction also required the Smiths to maintain the "Restricted Area" in accordance with the terms of their grant and permitted the Town, upon 30 days' written notice, to enter the property to safeguard the environmentally sensitive parcels. The Smiths, their successors and their assigns, however, retained their rights to "full use and quiet enjoyment" of the EPODs. Critically, they retained the right to exclude others from the entirety of their 10-acre parcel. The terms of the proposed "Grant of Conservation Restriction" mirrored the preexisting EPOD regulations, differing in only [4 N.Y.3d 8] a few respects. First, the conservation restriction encumbered the servient property in perpetuity, whereas the Town could amend its EPOD ordinance. Under both the EPOD system and the conservation restriction, however, the Smiths could seek permission from the Town to conduct a proscribed activity in the environmentally sensitive parcels. Second, the conservation restriction afforded the Town greater enforcement power. Under the EPOD regime, the Town could only issue citations for violations, whereas with the conservation restriction, it could seek injunctive relief. Rejecting the proposed conservation restriction, the Smiths commenced this hybrid declaratory judgment/CPLR article 78 proceeding, asserting that the restriction worked an unconstitutional taking. [ 1] The Town moved for an order dismissing or granting summary judgment against the Smiths' claims. Applying Dolan v City of Tigard (512 U.S. 374 [1994]), Supreme Court concluded that, although the conservation restriction was an "exaction," it did not effect an unconstitutional taking. The Smiths appealed. The Appellate Division determined that Supreme Court erred in characterizing the conservation restriction as an exaction. It affirmed, however, holding that, because the proposed conservation restriction bore a reasonable relationship to the Town's objective of preserving the environmentally sensitive EPODs, there was no taking entitling the Smiths to compensation (see 4 A.D.3d 859 [4th Dept 2004]). The Smiths appeal as of right from the Appellate Division order, and we now affirm. II. The Fifth Amendment to the United States Constitution provides "nor shall private property be taken for public use, without [4 N.Y.3d 9] just compensation." [2] Historically, takings jurisprudence involved instances in which the government encroached upon or occupied real property for public use. [3] Beginning with Pennsylvania Coal Co. v Mahon (260 U.S. 393 [1922]), the Supreme Court recognized that, even if the government does not seize or occupy a property, a governmental regulation can work a taking if it "goes too far" (id. at 415). In the years following Mahon, the Supreme Court offered "some, but not too specific, guidance to courts confronted with deciding whether a particular government action goes too far and effects a regulatory taking" (Palazzolo, 533 U.S. at 617). The first and perhaps most critical factor in the Court's takings analyses became whether the regulation deprived landowners of "all economically viable use" of their property. [4] If the contested regulation falls short of eliminating all economically viable uses of the encumbered property, the Court looks to several factors to determine whether a taking occurred, including "the regulation's economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action." [5] In a different formulation of this third factor, the Supreme Court held in Agins v City of Tiburon (447 U.S. 255, 260 [1980]) that the "application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests" (see also Bonnie Briar Syndicate v Town of Mamaroneck, 94 NY2d 96 [1999]). [6] [4 N.Y.3d 10] Styling the conservation restriction an exaction, the Smiths argue that we should not review the Town's action under the Penn Central !Agins standard. We disagree. Exactions are defined as "land-use decisions conditioning approval of development on the dedication of property to public use" (City of Monterey v Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 702 [ 1999] [emphasis added]). In a narrow, readily distinguishable class of cases, the Court has held such conditions unconstitutional. In Nollan v California Coastal Commn. (483 U.S. 825 [ 1987]), the Court considered whether conditioning a development permit on the property owners' transfer to the public of an easement across their beachfront violated the Takings Clause. The Court deemed the condition unconstitutional because it lacked an "essential nexus" (id. at 837) with the stated purpose of the underlying land-use restriction--"protecting the public's ability to see the beach, assisting the public in overcoming the 'psychological barrier' to using the beach created by a developed shorefront, and preventing congestion on the public beaches" (id. at 835). Nevertheless, the Court noted that the government could have conditioned the grant of a development permit on restrictions that promoted the public's ability to see and psychologically access the beach, such as height limitations, width restrictions, and the like (id. at 836). In Dolan v City of Tigard (512 U.S. 374 [1994]), the Supreme Court added a second layer to the "essential nexus" test--"rough proportionality." In Dolan, the municipality conditioned approval of a building permit on the landowner's dedication of, first, a portion of her property lying within a 1 00-year floodplain for improvements to a storm drainage system and, second, a strip of land adjacent to the floodplain for use as a pedestrian and bicycle path. The Court concluded that an essential nexus existed between these development conditions and a legitimate governmental purpose, but nevertheless determined that the municipality's proposed exactions were impermissible under a "rough proportionality" standard (id. at 391 ). A showing of rough proportionality, the Court ruled, requires a municipality to "make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development" (id.). A "precise mathematical calculation" is not required (id.). The exactions [4 N.Y.3d 11] at issue were not roughly proportional, the Dolan court reasoned, because the municipality had failed to meet its burden of showing the impact of the proposed construction on its flood and traffic abatement efforts. The Court stressed, however, that the municipality could, for instance, have conditioned the grant of a development permit on the transfer of a pedestrian/bicycle pathway easement if it had made "some effort to quantify its findings" that the construction would generate more traffic (id. at 395). In other words, a municipality could place otherwise unconstitutional conditions on the issuance of a regulatory permit if the condition furthered the purpose of the underlying development restriction and there was a rough proportionality between the condition and the impact of the proposed development. With City of Monterey v Del Monte Dunes at Monterey, Ltd. (526 U.S. 687, 702 [1999]), the Court placed a key limitation on Dolan, indicating that the "rough proportionality" test did not apply beyond the special context of exactions. The Court added that the test was not "designed to address, and is not readily applicable to" a case in which the landowner's challenge is based on denial of development, as opposed to excessive exactions (id. at 703). III. The Attorney General has submitted an amicus brief arguing for affirmance, cogently pointing out that the present case involves efforts by the Town of Mendon to protect environmentally sensitive lands by means of a "do-no-harm" restriction that involves no property dedication of the type encountered in Nollan and Dolan. We agree. Under the Supreme Court's doctrinal framework, the Appellate Division correctly determined that the Town's conservation restriction was not an "exaction" subject to the closer scrutiny of the Dolan test. [7] In City of Monterey (526 U.S. at 702), the Court observed that an exaction involves the conditioning of a land-use decision on the "dedication of property to public use" (emphasis added). There is no such dedication of "property" here. In practice, the Court has identified exactions in only two real property cases, Nollan and Dolan, both of which involved the transfer of the [4 N.Y.3d 12) most important "stick" in the proverbial bundle of property rights, the right to exclude others. (8] In Twin Lakes Dev. Corp. v Town of Monroe (I N.Y.3d 98 (2003]), we also characterized a fee imposed in lieu of the physical dedication of property to public use as an exaction. Outside of these two narrow contexts, neither the Supreme Court nor this Court has classified more modest conditions on development permits as exactions. Thus, we decline the Smiths' invitation to extend the concept of exaction where there is no dedication of property to public use and the restriction merely places conditions on development. The Smiths argue that by its conservation restriction the Town is requiring them to surrender the right to seek a variance under the particular procedures of the EPOD regime. On the record before us, we are not persuaded that this can properly be characterized as the relinquishment of a property right. If it is a property right, however, it is trifling compared to the rights to exclude or alienate. [9] Under the "Grant of Conservation Restriction," the Smiths could still apply to the Town for permission to conduct prohibited activities within the "Restricted Area." Under the circumstances of this case, the difference between the Smiths' rights under the EPOD ordinance and the conservation restriction is subtle: section 200-23 of the Mendon Town Code affords the Planning Board wide discretion in granting development [4 N.Y.3d 13] permits within EPODs; by contrast, under the proposed conservation restriction, the Board would have essentially unfettered discretion to grant or deny such permits. The right to seek a variance from a planning board that enjoys broad, as opposed to unmitigated, discretion may be among the more modest and fragile twigs in the bundle of property rights, if it is a property right at all. To be sure, conditioning a development permit on its surrender should not trigger the same constitutional scrutiny as the regulatory extortion of sticks far more integral to the bundle, such as the right to exclude third persons (a right the Smiths fully retain). [ 1 0] IV. Because the Town's development condition is not an exaction, we review it according to the standard enunciated by the Court in A gins v City of Tiburon ( 44 7 U.S. 255 [1980]; see also Penn Cent. Transp. Co. v City of New York, 438 U.S. 104 (1978]), as opposed to Dolan's rough proportionality test. Examined in this light, the conservation restriction does not effect an unconstitutional taking. First, the restriction would not appreciably diminish the value of the Smiths' property, let alone deny them economically viable use of it--as demanded by Agins (447 U.S. at 260). [11] In exchange for their acceptance of the restriction, the Smiths would gamer a permit to construct a single-family home on their property. [12] A single dwelling on a protected, 1 0-acre parcel is a valuable, marketable [4 N.Y.3d 14] asset. Indeed, it is not clear that the conservation restriction would have any effect whatsoever on the market value of the Smiths' property. Given the development bar created by the preexisting EPOD ordinance, the legitimacy of which the Smiths do not challenge, the encumbered parts of the property had almost no developmental value before the Town announced the conservation restriction. Second, the conservation restriction substantially advances a legitimate government purpose--environmental preservation. As we indicated in Bonnie Briar Syndicate, Inc. v Town of Mamaroneck (94 NY2d 96, 108 [ 1999]), a regulatory action need only be reasonably related to a legitimate governmental purpose to satisfy the "substantially advance" standard. [13] Such a relationship undeniably exists here. The conservation restriction will advance the Town's aim ofpreserving environmentally sensitive areas in perpetuity, place future buyers on notice of the development limitations on the Smiths' property and furnish the Town with a more effective means of ensuring compliance with its regulatory objectives. In all, and in keeping with preexisting conservation policies, the restriction merely gives the Town the power to interdict harmful activities within the EPODs on the Smiths' parcel. In dissent, Judge Graffeo argues that the conservation restriction effects a taking under Agins because, in her view, it advances the Town's interests only marginally, if at all. We disagree. Ensuring perpetual protection for open spaces--along with the resources and habitats they shelter--from the vicissitudes of workaday land-use battles is hardly an inconsequential governmental interest. At the very least, the permanent character of the conservation restriction will spare the Town the administrative cost of continually being forced to maintain its conservation policies. More importantly, as the Attorney General [4 N.Y.3d 15] observes, the conservation restriction imposed by the Town, as a species of negative easement (see Huggins v Castle Estates, Inc., 36 NY2d 427, 430 [1975]), is a "well established land use tool" that is "consistent with the State's longstanding commitment to protecting ... critical natural resources" (Attorney General's brief at 2). Further, even assuming that the marginal benefit to the Town from the conservation restriction were, as Judge Graffeo suggests, modest, it would nonetheless be legitimate. Under the holdings of Agins, Penn Central and their progeny, a modest environmental advancement at a negligible cost to the landowner does not amount to a regulatory taking. The Smiths' other claims are without merit. Accordingly, the order of the Appellate Division should be affirmed, with costs. Read, J. (dissenting). Today the maJonty decides that the Fifth Amendment takings analysis of Nollan v California Coastal Commn. (483 U.S. 825 [1987]) and Dolan v City of Tigard (512 U.S. 374 [1994]) does not apply to a permit condition compelling dedication of a conservation easement. Because these decisions do not admit of this result, I respectfully dissent. I. The eminent domain provision of the United States Constitution, the Takings Clause of the Fifth Amendment, provides that "private property [shall not] be taken for public use, without just compensation." The Fourteenth Amendment makes this constitutional guarantee applicable to the states (see Penn Cent. Transp. Co. v City of New York, 438 U.S. 104, 122 [1978], citing Chicago, B. & Q.R. Co. v City of Chicago, 166 U.S. 226, 239 [ 1897]). In Pennsylvania Coal Co. v Mahon (260 U.S. 393 [ 1922]), Justice Holmes acknowledged the difficulty of distinguishing a proper exercise of police power from a compensable taking: "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law" (id. at 413); and "[t]he general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking" (id. at 415). Thus was born the concept at the heart of this appeal--the regulatory takings doctrine--which recognizes that government's exercise of the police power to regulate private property, when it goes "too far," so impairs property [4 N.Y.3d 16] interests that the Fifth Amendment mandates just compensation notwithstanding the absence of outright appropriation. When revisiting regulatory takings some 50 years later in Penn Central, Justice Brennan remarked that deciding whether a regulation had gone "too far" eluded ready systemization: "[T]his Court, quite simply, has been unable to develop any 'set formula' for determining when justice and fairness' require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons. Indeed, we have frequently observed that whether a particular restriction will be rendered invalid by the government's failure to pay for any losses proximately caused by it depends largely 'upon the particular circumstances [in that] case'" (Penn Cent., 438 U.S. at 124 [citations omitted]). He listed three factors bearing with "particular significance" on "these essentially ad hoc, factual inquiries": the regulation's economic impact on the claimant; the extent to which the regulation interferes with the claimant's "distinct, investment-backed expectations"; and the character of the governmental action (id. ). In short, the Court devised a balancing test. Two years later when considering a facial challenge to a municipal zoning ordinance, however, the Court in A£Tins v Citv of Tiburon (447 U.S. 255 f19801) condensed and reformulated the Penn Central factors into something akin to a test: "[t]he application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests [i.e., the character of the governmental action], or denies an owner economically viable use of his land [i.e., the regulation's economic impact on the claimant and the extent of interference with distinct, investment-backed expectations]" (id. at 260 [citation omitted]). After devising this general rule for determining when a taking has occurred, the Court marched down another path, handing down several landmark cases that carved out from the ambit of Penn Central/Agins specific rules for analyzing three different kinds of regulatory takings. In Loretto v Teleprompter Manhattan CATV Corp. (458 U.S. 419 [1982]), the landlord purchased an apartment building in which the prior owner had allowed a cable company to install a cable [4 N.Y.3d 17] on the building and to furnish cable television services to the building's tenants, as mandated by state law. The landlord filed a class action alleging that the installation--which, at most, occupied only 1112 cubic feet of the landlord's property--was a trespass and a taking without just compensation. The Court held that even this minuscule physical invasion required compensation regardless of an adequate public purpose (see also Kaiser Aetna v United States, 444 U.S. 164 [1979] [government's imposition of navigational servitude upon a private marina is a physical invasion for which just compensation must be paid]). Thus, a regulation effecting an actual permanent physical occupation of or intrusion on an owner's land or building constitutes a per se regulatory taking. In Lucas v South Carolina Coastal Council (505 U.S. 1003 [1992]), the Court considered the effect of a coastal protection statute that barred a landowner from building any permanent habitable structures on two beach parcels for which he had paid $1 million, intending to build one home for himself and one for sale. The Court determined that this was the "rare" case where a regulation denies a landowner all economically beneficial use of his property, and therefore was a per se total regulatory taking unless the state could prove that the regulation, as applied, would prevent a nuisance or was part of the state's background principles of property law. In addition to the per se rules for physical takings and total takings, the Court also devised a non-per se rule for analyzing whether a taking has occurred in those situations where the government seeks to require a concession or "exaction" as a condition for approval of a land-use permit. This is the so-called Nollan/Dolan rule, which, in my view, so plainly calls for reversal in this case. The landowners in Nollan planned to demolish a dilapidated bungalow on their beachfront property and replace it with a three-bedroom house. They sought the required discretionary permit from the California Coastal Commission, which granted it subject to the Nollans' dedication of an easement running across their property laterally to the shore. This easement would provide a beachfront passageway connecting the two public beaches flanking the Nollans' property. The Commission justified the easement on the grounds that the Nollans' larger house would obstruct the public's visual access to the beach, increase private use of the beach and burden the public's ability to traverse to and along the shorefront. [4 N.Y.3d 18] Justice Scalia observed at the outset that "[h]ad California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach, rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking" (483 U.S. at 831 ). The Court held that while a permit condition that substantially advances a legitimate state interest is constitutionally permissible, [I] this particular condition violated the Takings Clause because there was no "essential nexus" between the easement and the harm created by the proposed development (id. at 837). This point is well-illustrated by Justice Scalia's description of the kind of easement that would have been sufficiently closely linked to the loss of visual access caused by the house's construction to pass muster under the "essential nexus" test: "Moreover (and here we come closer to the facts of the present [Nollan] case), the condition would be constitutional even if it consisted of the requirement that the Nollans provide a viewing spot on [the Nollans'] property for passersby with whose sighting of the ocean their new house would interfere. Although such a requirement, constituting a permanent grant of continuous access to the property, would have to be considered a taking if it were not attached to a development permit, the Commission's assumed power to forbid construction of the house in order to protect the public's view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end. If a prohibition designed to accomplish that purpose would be a legitimate exercise of the police power rather than a taking, it would be strange to conclude that providing the owner an alternative to that prohibition which accomplishes the same purpose is not" (id. at 836-837). In Dolan, the Court addressed how much of an exaction the government could require without running afoul of the Takings Clause, [4 N.Y.3d 19] an issue it did not reach in Nollan because there the "essential nexus" was lacking. The property owner in Dolan sought to raze and rebuild her plumbing and electrical supply store. When she applied for site development review, the city required her as a condition of approval to dedicate a portion of her property to the city for a greenway and expanded storm drain channel and for a pedestrian/bicycle pathway to be built at her expense. The Court first determined that flood prevention along the creek and the reduction of traffic in the business district "qualify as the type of legitimate public purposes [the Court has] upheld" (512 U.S. at 387 [citing Agins]). Then the Court determined that there was an "essential nexus" between the exactions and the harm created by the development; namely, the flood plain dedication was related to mitigating the extra stormwater runoff anticipated from the additional building and paving projects associated with the expansion, and the pathway was related to the increased traffic that might be expected from customers patronizing the larger store. These exactions were nonetheless constitutionally impermissible without just compensation because they lacked the "rough proportionality" required "both in nature and extent to the impact of the proposed development" (512 U.S. at 391). Specifically, the city was unable to say "why a public greenway, as opposed to a private one, was required in the interest of flood control" (id. at 393). With respect to the pedestrian/bicycle pathway, the city failed to meet "its burden of demonstrating that the additional number of vehicle and bicycle trips generated by [the] development reasonably relate to the city's requirement for a dedication ofthe pedestrian/bicycle pathway easement"; the city had simply made a conclusory finding that "the creation of the pathway 'could offset some of the traffic demand ... and lessen the increase in traffic congestion' " (id. at 395). II. The "development restriction" (majority op at 6) at issue in this case is a conservation easement within the meaning of the Environmental Conservation Law (see ECL 49-0301--49-0311). Both the Town of Mendon and amicus State of New York concede as much. A conservation easement is a nonpossessory "interest in real property" (ECL 49-0303 [I]), which imposes use restrictions on the landowner for purposes generally of "conserving, preserving and protecting" the State's "environmental [4 N.Y.3d 20] assets and natural and man-made resources" for the benefit of the public (ECL 49-0301 ). The majority is therefore simply wrong when it asserts that the Town is not requiring a dedication of property to public use by mandating that the Smiths grant it a conservation easement, which is perpetual m duration, runs with the land and is recorded. Nor is it relevant (or even certain) that this particular conservation easement may be worth little. The Town is compelling the Smiths to convey an interest in real property that the Town would otherwise have to pay for, or which the Smiths might choose to donate for whatever tax advantages they would enjoy as a result. [2] and of course, the arguably trivial value of this particular conservation easement is of no comfort to the next landowner who seeks a development permit from the government only to be met with a demand for what might be a very valuable conservation easement as a condition of approval. As we must always be aware, we are establishing the rule that will govern not just this case, but future cases. The majority takes the view that a permit condition is not an "exaction" unless it infringes on the property owner's right to exclude others and/or mandates public access. [3] Black's Law Dictionary defines an "exaction" as"!. The act of demanding moremoney [4 N.Y.3d 21] than is due; extortion. 2. A fee, reward, or other compensation arbitrarily or wrongfully demanded" (Black's Law Dictionary 600 [8th ed 2004]). More colloquially, an exaction is "something exacted"; that which is "call[ed] for forcibly or urgently and obtain[ed]" (Merriam-Webster's Collegiate Dictionary 403 [lOth ed 1996]). Indeed, the majority seems to derive the notion that public access is the sine qua non for an exaction not from any commonly accepted definition, but from a gloss on dictum in the Supreme Court's decision in City of Monterey v Del Monte Dunes at Monterey, Ltd. (526 U.S. 687 [ 1999]). Monterey concerned a developer seeking to build an oceanfront multi-unit residential complex in an area zoned for this use. The developer repeatedly scaled back and revised its plans over the course of several years at the instance of local authorities. When the city planning commission and the city council ultimately rejected the site plan, the developer brought a 42 USC § 1983 action in federal District Court, alleging, among other things, that the permit denial was an unconstitutional taking. A jury delivered a general verdict for the developer on its takings claim and awarded damages of $1.45 million. The Ninth Circuit determined that the developer's inverse condemnation claim was triable to a jury and upheld the verdict. The city's petition for certiorari presented multiple questions to the Supreme Court, including whether the Ninth Circuit erred in assuming that the rough-proportionality standard of Nollan/Dolan applied. On this question, all the Justices agreed that heightened scrutiny under Nollan!Dolan applies only to exactions and does not extend to decisions to deny applications for discretionary approvals. Specifically, Justice Kennedy commented that "we have not extended the rough-proportionality test of Dolan beyond the special context of exactions--land-use decisions conditioning approval of development on the dedication of property to public use" (526 U.S. at 702). The majority here, in relying on this language, underscores the words "dedication of property to public use," but the key word is "conditioning." The Court distinguished Dolan and Nollan from [4 N.Y.3d 22]Monterey because in the former cases, a development permit was conditioned on a land use restriction, while in the latter there was no conditioning--the permit was denied. In this case, site plan approval was conditioned upon the granting of a conservation easement. That is an exaction. Nonetheless, the majority views the quoted language from Monterey as having limited the Nollan/Dolan rule to those land dedications that entail public access or otherwise restrict the landowner's right to exclude. [4] First, of course, the phrase "public use" does not unambiguously equate with public access. Indeed, in takings jurisprudence "public use" has come to mean something more akin to a public purpose or public benefit. [5] As already discussed, this conservation easement is, in fact, a dedication of property to public use. Its whole justification and purpose [4 N.Y.3d 23] is to confer an environmental benefit on the public at large. Further, while the Smiths retain the right to exclude the general public from the easement area, the Town may enter this area upon 30 days' notice to enforce the easement, and may enter without any notice at all in the event of a self-proclaimed emergency threatening the public health, safety and general welfare. Second, the language in Monterey on which the majority so heavily relies is more properly read as merely an acknowledgment of the nature of the exactions at issue in Nollan and Dolan rather than a limitation of the Court's Nollan/Dolan analysis to exactions that are land dedications. Certainly there was no discussion in either Nollan or Dolan to indicate that the Court viewed its exaction analysis as so limited. If the Court had only intended for Nollan/Dolan to create an exception from the per se Loretto rule for those physical takings that are permit conditions, it could have and surely would have said this directly. Further, before today we have never read Nollan/Dolan so narrowly (see e.g. Manocherian v Lenox Hill Hasp., 84 NY2d 385 [1994] [pre-Monterey case applying Nol/an/Dolan to assess the validity of a statute imposing occupancy restrictions on apartment building owners]), or viewed it as subsequently limited by Monterey to infringement of a property owner's right to exclude. The majority explains our decision just last year in Twin Lakes Dev. Corp. v Town of Monroe (I N.Y.3d 98 [2003]) as consistent with its decision today on the ground that the per-lot recreation fees at issue there were paid in lieu of dedication of property to public use. In Twin Lakes, the parties agreed that Nollan/Dolan applied to the exaction, but there is no indication that any concession on this point or our acquiescence to it hinged on the fact that the fees were exacted in lieu of a land dedication. Impact fees such as the per-lot recreation fee in Twin Lakes--charges in consideration of a development's anticipated impacts on a community's infrastructure and amenities, with the fees used to mitigate these impacts--are often imposed as a condition for development approvals. Does the majority mean to suggest that such a fee is not an exaction for purposes of takings analysis unless it is paid specifically in lieu of a land dedication? I would guess that such a tum of events might greatly surprise localities and developers throughout the state, but it seems to be the clear implication of today's decision. [4 N.Y.3d 24] III. As I understand the Supreme Court's takings jurisprudence--through which I took a Cook's tour at the beginning of this dissent--we are called upon first to decide whether a claimed regulatory taking falls within either of the categorical or per se rules (the Loretto rule for physical takings and the Lucas rule for total takings) or is a permit condition (Nollan/Dolan). For those claimed takings outside the scope of these three rules, Penn Central/Agins provides a default approach. [6] Here, the Smiths sought site plan approval to build a single-family house, and the Town conditioned its approval on the Smiths' grant of a conservation easement to the Town covering those portions of their 9.7-acre parcel within the Town's EPODs. As a result, this case falls squarely within Nollan!Dolan. The reason proffered by the Town to justify the easement is the "desire [ ] that certain portions of the [Smiths'] property remain in their natural state in order to preserve such environmentally significant areas." In my view, this is a legitimate town interest that the conservation easement would promote. As was the case in Nollan, however, there is no "essential nexus" between this exaction and the harm created by the proposed development. The "proposed development" here was merely the construction of a single-family house on land not within an EPOD, and there is no suggestion in the record that it would create any significant environmental harm. On this appeal, the Town argues merely that there is a "clear essential nexus between requiring a conservation restriction and the legitimate town interest of protecting environmentally sens1t1ve areas m Mendon." But for purposes of Nollan/Dolan analysis, this is (as I already indicated) merely a necessary but not a sufficient predicate for the Town to establish that it may require the conservation easement without making just compensation. The Smiths' house does not encroach on the EPODs; it simply happens to be located on the same parcel of property. There has been no showing of any relationship whatsoever between the construction or occupancy of the Smiths' house and any environmental harm to the EPODs that the conservation easement would mitigate. As Justice Scalia has remarked, "[t]he object of the Court's holding in Nollan and Dolan was to protect against [4 N.Y.3d 25] the State's cloaking within the permit process an out-and-out plan of extortion" (Lambert, 529 U.S. at 1048, quoting Nollan, 483 U.S. at 837 [internal quotation marks and citation omitted]). That the extortion may be somewhat gratuitous in this case--the Town's EPOD regulations are currently at least as restrictive as the terms of the conservation easement--renders the extortion no less out of bounds. Quoting the Attorney General, the majority correctly points out that conservation easements have proven to be a very popular and flexible tool for preserving land and protecting our state's environment. [7] I have found nothing to suggest, however, that the State has heretofore ever been the beneficiary of a conservation easement which was neither purchased [8] nor donated. As a result of today's decision, the State and localities may compel conveyance of conservation easements as a condition for issuance of all sorts of routine permits, and, for purposes of determining whether just compensation is due, these conditions will not be subject to the heightened scrutiny of Nollan/Dolan. This will no doubt come as unexpected and unwelcome news to many New York property owners. Graffeo, J. (dissenting). We do not need to decide whether heightened scrutiny under Dolan v City of Tigard (512 U.S. 374 [1994]) applies to the facts of this case because I believe the Town of Mendon's action effected a taking even under the standard articulated in Agins v City ofTiburon (447 U.S. 255 [1980]). Additionally, because the condition imposed by the Town was not necessary to mitigate any demonstrable effects of the site plan proposal, I conclude the Town's determination was arbitrary and capricious. I therefore respectfully dissent. Paul and Janet Smith are the owners of9.7 acres of undeveloped land that was part of a larger parcel owned by Paul's family for over 50 years. Portions of their land lie within four of the Town of Mendon's environmental protection overlay districts (EPODs) under Mendon Town Code § 200-23. The Town Code's EPOD [4 N.Y.3d 26] regulations place severe restrictions on activities that may occur in EPODs, and development in EPODs is prohibited unless the landowner first applies for and obtains a special development permit from the Town. The Smiths sought approval to build a single-family home on their parcel. Although construction of the Smiths' proposed home would not encroach on any of these EPODs, the Town granted approval of the site plan only on condition that the Smiths agree to file a conservation restriction affecting the EPODs. The restriction in large part mirrors the regulations already imposed under the EPOD ordinance but provides that it will exist in perpetuity. The Town reasoned that such a restriction "will provide the most meaningful and responsible means of protecting the environmental resources" located in the EPOD portions of the Smiths' lot. The issue before us 1s whether the Town's imposition of the development restriction as a condition to granting site plan approval effects a regulatory taking under the Fifth and Fourteenth Amendments to the United States Constitution. Under Agins, a regulatory action may effect a taking where it "does not substantially advance legitimate state interests" (Agins, 447 U.S. at 260). Put another way, "a use restriction on real property may constitute a 'taking' if not reasonably necessary to the effectuation of a substantial public purpose" (Penn Cent. Transp. Co. v City of New York, 438 U.S. 104, 127 [ 1978]). Although it has been intimated that the regulatory action need only bear a reasonable relationship to a legitimate governmental purpose (see City of Monterey v Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 701, 721 [1999]), the United States Supreme Court has rejected the notion that the "substantially advance" standard simply means that "the State could rationally have decided that the measure adopted might achieve the State's objective" (Nollan v California Coastal Commn., 483 U.S. 825, 834 n 3 [ 1987] [citations and internal quotation marks omitted]). Furthermore, it has long been established that the issue of whether a taking has occurred "depends largely 'upon the particular circumstances [in that] case' " (Penn Cent., 438 U.S. at 124, quoting United States v Central Eureka Min. Co., 357 u.s. 155, 168 [1958]). The Town proffers three reasons why the restriction substantially promotes its valid goal of preserving the environment. I cannot conclude that the reasons offered by the Town substantially or even reasonably further legitimate governmental interests not already protected by the existing EPOD regulations. [4 N.Y.3d 27] First, the Town claims that the conservation restriction, which is to be filed similar to a deed, "is intended to put subsequent buyers on notice that the property contains constraints which may limit development within these environmentally sensitive areas of the site." Pursuant to the Town's EPOD regulations, however, the locations of all EPOD sites within the Town are delineated on an official set of maps on file with the Town. Subsequent purchasers are therefore already on constructive notice that the Smiths' property contains EPODs and is subject to the limitations currently in place pursuant to the Town Code, which the proposed conservation restriction largely follows. Hence, the restriction does not in any meaningful way advance a necessary public notice purpose. Second, the Town asserts that the conservation restnctwn strengthens the available enforcement mechanisms, particularly the ability of the Town to seek injunctive relief. Even without the restriction, it is well settled that the Town could seek to enjoin any activity on the property which is violative of land-use regulations (see Town Law § 268 [2]; Town ofThroop v Leema Gravel Beds, 249 A.D.2d 970, 971-972 [1998]; see also City of New York v Village ofTannersville, 263 A.D.2d 877, 879 [1999]). Therefore, in my opinion, the restriction does not promote additional environmental interests not already addressed by the existing EPOD designations. Finally, the Town contends that the restriction will inhibit activity on the EPODs in perpetuity, whereas the EPOD ordinance could change at any time. This is true, but it does not provide a legitimate basis for imposition of the restriction. If the Town decides to repeal its EPOD ordinance with respect to one or more of the EPODs situated on the Smiths' land, presumably it would do so because it no longer considers the designation of environmental restrictions on that type of property to be necessary or in the public interest. If restrictions were no longer in the public interest, the Town would have no valid basis for continuing them in perpetuity. Yet, under this scenario, portions of the Smiths' property would still be encumbered by the conservation restriction while other EPOD-burdened parcels would be released from the restrictions on development--a result that would be neither reasonable nor fair. In the end, it is the Town's generally applicable EPOD ordinance itself--whose proviSIOns the development restriction tracks--that substantially promotes the Town's valid interest in protecting [4 N.Y.3d 28] the environment. If this case involved a claim that the Town Code's EPOD regulations effected a taking of property, clearly such a challenge would fail under Agins because the restrictions contained in those rules substantially promote environmental interests. But the added layer of regulation sought to be imposed by the Town through the ad hoc imposition of a conservation restriction as a condition to site plan approval does not further additional legitimate environmental concerns in a meaningful way and is simply overkill. To hold otherwise effectively permits municipalities to single out particular EPOD-affected landowners for double regulation. In sum, I conclude that the Town's imposition of the conservation restriction without just compensation amounted to an unconstitutional taking. Even if the conservation restriction does not effect a taking as the majority holds, I would still rule in favor of the Smiths because the Town's determination to demand such a condition in exchange for site plan approval was, contrary to the conclusion of the courts below, arbitrary and capricious. Although a municipality may place conditions on the approval of site plans, such authority is not limitless. Under Town Law § 274-a (4), conditions and restrictions must be "reasonable" and "directly related to and incidental to a proposed site plan." We have held that conditions are proper when they constitute "corrective measures designed to protect neighboring properties against the possible adverse effects of [a proposed] use" (Matter of St. Onge v Donovan, 71 NY2d 507, 516 [ 1988]). In contrast, conditions are invalid when "they do not seek to ameliorate the effects of the land use at issue" (id. at 517). Accordingly, courts have repeatedly held that a municipality's imposition of a condition which is "not reasonably designed to mitigate any demonstrable defects" is arbitrary and capricious (Matter of Clinton v Summers, 144 A.D.2d 145, 147 [1988]; see also Matter of Castle Props. Co. v Ackerson, 163 A.D.2d 785, 786-787 [1990]; Matter of Black v Summers, 151 A.D.2d 863, 865 [ 1989]). Where a court determines that the imposition of a condition is arbitrary and capricious, the appropriate relief is to excise the condition (see Matter of St. Onge, 71 NY2d at 519). Here, pursuant to the State Environmental Quality Review Act, the Town issued a negative declaration, finding that the Smiths' proposed site project would not result in any significant adverse environmental impacts so long as the development did not occur in any of the EPODs. The Town does not dispute that the [4 N.Y.3d 29] Smiths' proposed single-family dwelling would not have an effect on any of the EPODs, and the Smiths have maintained that they intend to comply with the requirements of the Town's EPOD ordinance. The Town's stated basis for imposing the conservation restriction was "to mitigate any potentially significant adverse environmental impact upon the site or upon adjacent sites." Yet, under the Town's own findings, the proposed site plan would not cause any environmental detriments that needed to be mitigated. As such, it is evident that the restriction should have been invalidated because it was not necessary "to mitigate any demonstrable defects" and was therefore arbitrary and capricious (see Matter of Clinton, 144 A.D.2d at 147). For the reasons stated, I would reverse the order of the Appellate Division and grant the petition with respect to the Smiths' second and third causes of action. Chief Judge Kaye and Judges G.B. Smith and Ciparick concur with Judge Rosenblatt; Judge Read dissents and votes to reverse in a separate opinion in which Judge R.S. Smith concurs; Judge Graffeo dissents and votes to reverse in another opinion. Order affirmed, with costs. Notes: [I] In addition, the Smiths also sought a judgment declaring that the conservation restriction was, as a matter of law, a conservation easement under ECL 49-0303 (!). They also alleged that the Board's decision to condition final site plan approval on their acceptance of the conservation restriction was arbitrary and capricious, and sought attorneys' fees pursuant to Town Law § 282. That section permits a court to award costs to a person or persons aggrieved by a planning board decision if it "shall appear to the court" that the board "acted with gross negligence or in bad faith or with malice in making the decision appealed from." [2] The Takings Clause of the Fifth Amendment is applicable to the states through the Fourteenth Amendment (see Chicago, B. & Q.R. Co. v City of Chicago, 166 U.S. 226 [1897]). [3] (See Palazzolo v Rhode Island, 533 U.S. 606, 617 [2001] [discussing the evolution of takings jurisprudence]; see also Loretto v Teleprompter Manhattan CATV Corp., 458 U.S. 419 [1982].) [ 4] (City of Monterey v Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 720 [1999]; see also Palazzolo, 533 U.S. at 617; Lucas v South Carolina Coastal Council, 505 U.S. 1003, 1019 [1992] ["when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking"].) [5] (Palazzolo, 533 U.S. at 617; see also Penn Cent. Transp. Co. v City of New York, 438 U.S. 104 [1978].) [6] In spite of their differing language, the Supreme Court has employed the Agins test and Penn Central standard, which the Court invoked in Palazzolo, interchangeably (see e.g. Lucas v South Carolina Coastal Council, 505 US 1003, 1024 [1992]; Keystone Bituminous Coal Assn. v DeBenedictis, 480 U.S. 470, 485 [1987]). [7] Because the Town's conservation restriction cannot be classified as an exaction, we need not address the question whether it was roughly proportional to the impact of the development proposed by the Smiths. [8] Judge Read suggests that the conservation restriction here somehow encumbers the right to exclude because it permits town inspectors to enter the property on 30 days' written notice or in the event of an emergency threatening the public's health, safety or welfare (see Read, J., dissenting op at 23). On the facts of this case, we fail to see how the Town's right to enter the Smiths' land under a sharply circumscribed set of circumstances to enforce a set of valid regulations impairs the right to exclude or represents a departure from the Town's ordinary exercise of its police powers. [9] Although the conservation restriction may, as Judge Read suggests, require the dedication of a possessory interest (see Read, J., dissenting op at 19-20), "property" is constituted by many possessory interests, some of which (e.g., the rights to exclude and alienate) are more central to commonly held understandings of property than others. The Supreme Court's exactions jurisprudence tracks this conception of property. In Nollan and Dolan, the Supreme Court applied the idea of "exaction" only to the required dedications of a core possessory interest, the right to exclude. As the Attorney General observes, "[b]oth cases hinged on the owners' loss of perhaps the most important 'stick' from the ownership bundle: the ability to restrict access" (Attorney General's brief at 12-13). Notably, the Supreme Court has never extended its exactions analysis to the dedication of less substantial possessory interests, like those at issue here. Thus, the Appellate Division correctly determined that the conservation restriction is not an exaction within Nollan and Dolan, and we are unwilling to expand the holdings of those decisions to the case before us. [I 0] Judge Read mistakenly argues that there is something extraordinary or improper about the Town's exercise of its police powers here. We disagree. The case before us today concerns only a marginal use restriction superimposed over a wholly legitimate, preexisting EPOD ordinance. There is nothing here that implicates the Fifth Amendment's concern with "forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole" (Armstrong v United States, 364 U.S. 40, 49 [1960]). [II] (See also Lucas v South Carolina Coastal Council, 505 U.S. 1003 [1992] [holding that a deprivation of "all" economically viable uses of a property works a taking].) [12] We note that the Supreme Court has been reluctant to engage in spatial "conceptual severance" in determining whether a regulation or government action deprives a property owner of all economically viable uses of the property (District 1ntown Props. Ltd. Partnership v District of Columbia, 198 F3d 874, 887 [DC Cir 1999]). Hence, we look to the effect of the government action on the value of the property as a whole , rather than to its effect on discrete segments of the property (see Penn Cent. Transp. Co. v City of New York, 438 U.S. 104, 130-131 [ 1978] [" 'Taking' jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole"]; see also Keystone Bituminous Coal Assn. v DeBenedictis, 480 U.S. 470, 497 [1987]). Here, the conservation restriction, while reinforcing the preexisting devaluation of a portion of the Smiths' property, does not begin to deny them all economically viable uses of the entire parcel. [13] (See also City of Monterey v Del Monte Dunes at Monterey, Ltd., 526 U.S. 687,701,721 [1999] [observing that the trial court correctly instructed the jury that "substantially advances" was equivalent to "reasonable relationship"]; Hotel & Motel Assn. of Oakland v City of Oakland, 344 F3d 959, 968 [9th Cir 2003] ["A reasonable relationship exists between this regulatory action and the public purpose it is meant to serve. Thus, the ordinance substantially advances a legitimate government interest."].) [I] The Court "assume[ d) without deciding" that the purposes proffered by the Commission to justify the exaction--"protecting the public's ability to see the beach, assisting the public in overcoming the 'psychological barrier' to using the beach created by a developed shorefront, and preventing congestion on the public beaches"--were legitimate state interests (483 U.S. at 835). [2] Section 170 (h) of the Internal Revenue Code (26 USC) provides for a charitable deduction for a qualifying conservation easement. The easement must be contributed to a public body or qualified nonprofit organization exclusively for conservation purposes to be protected in perpetuity (26 CFR 1.170A-14 [a], [b] [2]; [ c ]). Depending upon the nature of the easement's conservation purposes, public access may be mandated, or it may be partially or wholly restricted (see e.g. 26 CFR 1.170A-14 [d] [2] [ii] [public access required for conservation easement for recreation and education]; [d] [3] [iii] [restrictions on public access to protected environmental systems]; [d] [4] [ii] [B] [visual rather than physical access sufficient to satisfy requirement of scenic enjoyment of open space by general public]). Section 2031 (c) of the Internal Revenue Code grants substantial estate tax benefits to a qualifying conservation easement. In addition, the restrictions placed on property by a conservation easement may reduce market value so as, in tum, to reduce assessed value and therefore real property taxes. As one commentator has noted, however, "local assessors are often reluctant to reduce assessments" on account of conservation easements and "[i]n many instances the cost of pursuing legal remedies may exceed the potential benefits of the possible tax reduction" (Ginsberg and Weinberg, Environmental Law and Regulation in New York§ 12:6, at 1081, 1082 [9 West's NY Prac Series 200 I]). [3] In essence, the majority has adopted the positions advocated by amicus State ofNew York and the Town. The State argues that an exaction is limited to a physical taking or a physical invasion. Likewise, the Town argues that an easement is not an exaction unless it provides for the general public's or the Town's physical use or occupation of the property. In a related vein, both the State and the Town emphasize that the conservation easement here is a negative easement that prohibits the landowner from doing something otherwise lawful on his estate. of course, to the extent that the easement mirrors the Town's environmental protection overlay district (EPOD) regulations, the easement only prohibits the Smiths from doing that which the law now already bans. The Town takes the position that a negative easement may never be an exaction while an affirmative easement, which grants the easement holder the right to use the servient estate, may be. [4] The language's author, Justice Kennedy, does not appear to agree with this interpretation of what he wrote. In Lambert v City & County of San Francisco (529 U.S. 1045 [2000]), he and Justice Thomas joined Justice Scalia's dissent from a denial of certiorari to consider whether Nollan/Dolan applies to the denial of a permit because an exaction is not met. In this case, the exaction was a replacement fee for conversion of apartments. Justice Scalia summarized the holdings in Nollan/Dolan as follows, making no reference whatsoever to public access: These decisions "held that a burden imposed as a condition of permit approval must be related to the public harm that would justify denying the permit, and must be roughly proportional to what is needed to eliminate that harm" (529 U.S. at I 046). Further, in Ehrlich v City of Culver City (512 U.S. 1231 [1994]), handed down three days after Dolan, the Court by a 5-4 margin vacated the judgment and remanded for further consideration in light of Dolan. In Ehrlich, the owner of a sports complex required the City's approval to construct a condominium on the site to replace the sports complex. The City conditioned approval upon the property owner/developer's payment of a recreational fee and a fee in lieu of participating in the City's "Art in Public Places Program." Upon remand, the California Supreme Court specifically "reject[ ed] the city's contention that the heightened takings clause standard formulated by the court in Noll an and Dolan applies only to cases in which the local land use authority requires the developer to dedicate real property to public use as a condition of permit approval" (12 Cal 4th 854, 859, 911 P.2d 429, 433 [ 1996], cert denied 519 U.S. 929 [ 1996]). [5] As the eminent constitutional scholar Cass Sunstein has succinctly explained: "For a long period, the public use requirement [of the Takings Clause] was understood to mean that if property was to be taken, it was necessary that it be used by the public. That the new use was in some sense beneficial to the public was insufficient. Eventually, however, it became clear that this test was unduly mechanical, for a wide range of uses by government served the public at large, even if the public did not actually have access to the property. The Mill Acts, which permitted riparian owners to erect and maintain mills on neighboring property, provided an example. After the courts upheld those acts, exceptions were built into the general rule until the general rule itself was abandoned" (Sunstein, Naked Preferences and the Constitution, 84 Colum L Rev 1689, 1724 [1984]). [ 6] In this respect, I undertake the analysis in a reverse order than does Judge Graffeo except, of course, to the extent that the first question under Nollan/Dolan is whether the permit seeks to promote a legitimate state purpose, which derives from Agins. [7] There are, however, those who view the merits of conservation easements more skeptically (see e.g. Mahoney, Perpetual Restrictions on Land and the Problem of the Future, 88 VaL Rev 739 [2002]). [8] Moneys have been expended from the 1986 bond act, the New York State Open Space Plan and the environmental protection fund to purchase conservation easements (see Bathrick, Symposium: 25th Anniversary of the New York State Department of Environmental Conservation: Past and Future Challenges and Directions, Resource Management: Lands & Forests, 7 Alb LJ Sci & Tech 159, 167 [1996]). OFFICE RECEPTIONIST, CLERK To: Jana Marks Cc: amyv@sanjuanco.com; dionnep@atg.wa.gov; bth@pacificlegal.org; elizabethh@sanjuanco.com Subject: RE: E-filing in Case NO. 92251-9 by FRIENDS of the San Juans Received 11-2-15 Supreme Court Clerk's Office Please note that any pleading filed as an attachment to e-mail will be treated as the original. Therefore, if a filing is byemail attachment, it is not necessary to mail to the court the original of the document. From: Jana Marks [mailto:jana@sanjuans.org] Sent: Monday, November 02, 2015 3:43 PM To: OFFICE RECEPTIONIST, CLERK Cc: amyv@sanjuanco.com; dionnep@atg.wa.gov; bth@pacificlegal.org; elizabethh@sanjuanco.com Subject: E-filing in Case NO. 92251-9 by FRIENDS of the San Juans Dear Supreme Court Clerk, Please accept for electronic filing the attached CROSS-ANSWER TO CROSS-PETITION FOR REVIEW with Appendix A and Certificate of Service in Common Sense Alliance, at al. v. GMHB, Case No. 92251-9. The person filing these documents is: Jana Marks 360-378-2319 jana@sanjuans.org Sincerely, Jana Marks Jana \larks Program Assistant FR!l:'\DS of the San .Juans P.O. Box 1344 I Friday Harbor, W A 98250 Office: 360.378.73191 Fax:360.378-2324 'VVW\V.sanjuans.org l donate I facebool< I <>news Protecting and restoring the San Juan I c;)aml.-.; and the Salish Sea tor pc(1plc and nature. The information contained in this email message may be privileged, confidential, and protected from disclosure and is intended for the use of the addressee(s} only. If you are not an intended addressee, please be advised that any dissemination, distribution or copying of this e-mail is prohibited. If you receive this communication in error, please notify the sender by reply email and delete the message and any attachments. No. 68339-0-I IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION I STACEY DEFOOR, Appellant, V. RAFEL LAW GROUP PLLC Respondent. Appeal From The Superior Court For King County Hon. Mary Yu REPLY BRIEF OF APPELLANT STACEY DEFOOR DWT 2058029lv5 0089090-000003 DAVIS WRIGHT TREMAINE LLP Roger Leishman, WSBA No. 19971 Zak Tomlinson, WSBA No. 35940 1201 Third Avenue, Suite 2200 Seattle, Washington 98101-3045 Telephone: (206) 622-3150 Facsimile: (206) 757-7700 E-mail: rogerleishman@dwt.com Attorneys for Appellant Stacey Defoor TABLE OF CONTENTS I. INTRODUCTION .......................................................................... 1 II. ARGUMENT .................................................................................. 2 A. Because Rafel Violated RPC 1.8, The Settlement & Re-Engagement Agreement Is Void As A Matter of Law ..................................................................................... 2 1. The Settlement and Note Provisions Regarding RLG's Matter 1 Fee Demand Violated RPC 1.8(a) ............................................................... 2 a. Converting a doubtful quantum meruit claim into a $775,000 promissory note in return for providing future legal services is a "business transaction" covered by RPC 1.8( a) ................................................... 2 b. Rafel did not comply with RPC 1.8(a) ........ 5 2. RLG Does Not Dispute That Rafel Violated RPC 1.8(a) By Acquiring A Security Interest In "Any Assets Of Defoor." ......................................... 8 3. Because Rafel Violated RPC 1.8, RLG May Not Enforce The Agreement Against Defoor ......... 9 4. RLG's Unfounded Fraud Accusations Do Not Excuse Rafel' s Professional Misconduct.. ............ 1 0 B. Disputed Factual Issues Preclude Summary Judgment On Defoor's Malpractice Claim ....................... 11 1. Rafel Breached His Duty of Care by Failing to Track the Proceeds From Community Transactions .......................................................... 12 2. Rafel's Breach of Duty Was the Proximate Cause of Damage to Defoor .................................. 17 C. Disputed Factual Issues Preclude Summary Judgment On Defoor's Breach Of Fiduciary Duty Claim ................................................................................. 21 -1- DWT 20580291 v5 0089090-000003 D. Disputed Factual Issues Preclude Summary Judgment As To The Fairness And Reasonableness OfRLG's $1,747,567 Fee Claim ...................................... 22 III. CONCLUSION ............................................................................. 25 -11- DWT 2058029lv5 0089090-000003 TABLE OF AUTHORITIES Page(s) CASES Aloy v. Mash, 696 P .2d 656 (Cal. 1985) .............................................................. .12, 18 Ausler v. Ramsey, 73 Wn. App. 231,868 P.2d 877 (1994) ................................................. 2 Baca v. Chiropractic v. Cobb, 317 S.W.3d 674 (Mo. App. 2010) ................................................ .23, 25 Ball v. Posey, 176 Cal. App. 3d (1986) ...................................................................... 23 Ballesteros v. Jones, 985 S.W.2d 485 (Tex. App. 1999) ....................................................... 12 Behr v. Foreman, 824 So.2d 222 (Fla. App. 2002) ........................................................... 20 Berger v. Sonneland, 144 Wn.2d 91,26 P.3d 257 (2001) ...................................................... 21 Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581,675 P.2d 193 (1983) ............................................ 23, 24 Brown v. State Farm Fire & Cas. Co., 66 Wn. App. 273, 831 P.2d 1122 (1992) ............................................ .23 Brygider v. Atkinson, 385 S.E.2d 95 (1989) ........................................................................... 24 Callahan v. Clark, 901 S.W.2d 842 (Ark. 1995) ................................................................ 18 City of Birmingham v. Horn, 810 So.2d 667 (Ala. 2001) .................................................................. .23 Cooper v. Baer, 59 Wn.2d 763,380 P.2d 871 (1962) .................................................... 11 -lllDWT 20580291 v5 0089090-000003 Corp. Dissolution of Ocean Shores Park, Inc. v. Rawson-Sweet, 132 Wn. App. 903, 134 P.3d 1188 (2006) .......................................... .11 Cotton v. Kronenberg, 111 Wn. App. 258, 44 P.3d 878 (2002) ..................................... 3, 4, 5, 6 Dailey v. Testone, 72 Wn.2d 662,435 P.2d 24 (1967) ...................................................... 24 Daugert v. Pappas, 104 Wn.2d 254, 704 P .2d 600 (1985) .................................................. 18 Ehlinger v. Ruberti, Girvin & Ferlazzo, 758 N.Y.S.2d 195 (A.D. 2003) ............................................................ 20 Eriks v. Denver, 118 Wn.2d 451, 824 P .2d 1207 (1992) ............................................... .24 Feng v. Kelley & Ferraro, 2009 WL 790345 (Ohio App. Mar. 26, 2009) ............................... 12, 18 Geer v. Tonnon, 137 Wn. App. 838,155 P.3d 163 (2007) ............................................. 23 Grayson v. Woftey, Rosen, Kweskin & Kuriansky, 646 A.2d 195 (Conn. 1994) ........................................................... 12, 18 Guenard v. Burke, 443 N.E.2d 892 (Mass. 1982) ........................................................ 12, 18 Guity v. C.C.l Enter., 54 S.W.3d 526 (Tex. App. 2001) .................................................. .23, 24 Hart v. Carro, Spanbock, Kaster & Cuiffo, 620 N.Y.S.2d 847 (A.D. 1995) ........................................................... .20 Head v. Hargrave, 105 u.s. 45 (1881) ............................................................................... 23 Helmbrecht v. St. Paul Ins. Co., 362 N.W.2d 118 (Wis. 1985) ......................................................... 12, 18 -IVDWT 2058029lv5 0089090-000003 Hinkle, et al. v. Cadle Co., 848 P .2d 1 079 (N .M. 1993) ................................................................. 24 Holmes v. Loveless, 122 Wn. App. 470, 94 P.3d 338 (2004) ................................................. 3 Home Realty Lynwood, Inc. v. Walsh, 146 Wn. App. 231, 189 P.3d 253 (2008) ............................................... 8 In re Disciplinary Proceeding Against Haley, 157 Wn.2d 398, 138 P.3d 1044 (2006) .................................................. 5 In re Disciplinary Proceeding Against McKean, 148 Wn.2d 849, 64 P.3d 1226 (2003) .................................................... 7 In re Marriage of McCausland, 129 Wn. App. 390, 118 P.3d 944 (2005) ............................................. 10 Ishmael v. Millington, 241 Cal. App. 2d 520 (1966) ........................................................ .12, 18 Jacob's Meadow Owners Ass 'n v. Plateau, 44 IL LLC, 139 Wn. App. 743, 162 P.3d 1153 (2007) ........................................... 22 Jacqeline 's Washington, Inc. v. Merchantile Stores Co., 80 Wn.2d 784,498 P.2d 870 (1972) ................................................... .20 Kloepfel v. Bokor, 149 Wn.2d 192,66 P.3d 630 (2003) ................................................... .21 Kluczka v. Lecci, 880 N.Y.S.2d 698 (A.D. 2009) ........................................................... .24 Landau v. Bailey, 629 N .E.2d 264 (Ind. App. 1994) ........................................................ 12 Lavigne v. Chase, Haskell, Hayes & Kalamon, 112 Wn. App. 677,50 P.3d 306 (2002) ................................... 17, 18, 19 Lewis v. Superior Court, 77 Cal. App. 3d 844 ( 1978) ................................................................. 18 -vDWT 20580291 vS 0089090-000003 LK Operating, LLC v. Collection Grp, LLC, 168 Wn. App. 862, 279 P.3d 448 (2012) ......................................... 9, 10 London v. Weitzman, 884 S.W.2d 674 (Mo. App. 1994) ................................................. 12, 18 Lundgren v. Whitney's Inc., 94 Wn.2d 91,614 P.2d 1272 (1980) .................................................... 20 MacNaughton v. NBF Cable Sys., Inc., 1996 WL 33703873 (D. N.J. June 18, 1996) ...................................... .22 Mahler v. Szucs, 135 Wn.2d 398, 957 P.2d 632 (1998) ............................................ 22, 24 Margolin v. Kleban & Samar, P. C., 882 A.2d 653 (Conn. 2005) ................................................................ .20 Martin v. Northwest Wa. Legal Servs., 43 Wn. App. 405,717 P.2d 779 (1986) ......................................... 12, 18 McClung v. Smith, 870 F.Supp. 1384 (E.D. Va. 1994) ..................................................... .12 McDonald v. Paine, 810 P.2d 259 (Idaho 1991) ................................................................... 12 McWhirt v. Heavey, 550 N.W.2d 327 (Neb. 1996) ......................................................... 12, 18 Meyer v. Wagner, 784 N.E.2d 34 (Mass. App. 2003) ................................................. 18, 20 Millsaps v. Kaufold, 653 S.E.2d 344 (Ga. App. 2007) .................................................... 18, 20 Morris v. Morris, 2003 WL 21509023 (Ohio App. July 2, 2003) .................................... 19 Nembach v. Giaimo & Vreeburg, 618 N.Y.S.2d 307 (A.D. 1994) ..................................................... .12, 18 -VlDWT 2058029Iv5 0089090-000003 0 'Conner v. Blodnick, Abramowitz & Blodnick, 744 N.Y.S.2d 205 (A.D. 2002) ............................................................ 23 Oakes & Kanatz v. Schmidt, 391 N.W.2d 51 (Minn. App. 1986) ...................................................... 12 Park v. Park, 612 P.2d 882 (Cal. 1980) ..................................................................... 12 Peterson v. Simasko, Simasko & Simasko, 579 N.W.2d 469 (Mich. App. 1998) .................................................... 20 Pickett, Houlon & Berman v. Haislip, 533 A.2d 287 (Md. App. 1987) ............................................................ 12 Reed v. Mitchell & Timbanard, 903 P .2d 621 (Ariz. App. 1995) ........................................................... 20 Rhine v. Haley, 378 S.W.2d 655 (Ark. 1964) ................................................................ 20 Rino v. Mead, 55 P.3d 13 (Wyo. 2002) ....................................................................... 12 Ross v. Scannell, 97 Wn.2d 598,647 P.2d 1004 (1982) ................................................ 2, 8 Saffer v. Willoughby, 670 A.2d 527 (1996) ............................................................................ 24 Schneider v. Richardson, 411 A.2d 656 (Me. 1979) .................................................................... .12 Scott Fetzer Co. v. Weeks, 122 Wn.2d 141,859 P.2d 1210 (1993) ............................................... .22 Shoemake v. Ferrer, 143 Wn. App. 819, 182 P.3d 992 (2008) ............................................. 24 Simburg, eta/., v. Olshan, 97 Wn. App. 901, 988 P. 2d 467 (1999) ................................................ 7 - VllDWT 20580291 v5 0089090-000003 Sobilo v. Manassa, Riffner, Barber, Rowden & Scott, 479 F. Supp. 2d 805 (N.D. Ill. 2007) .................................................. .20 Stanley v. Richmond, 35 Cal. App. 4th 1070 (1995) ........................................................ 13, 18 Stephen v. Sallaz & Gatewood, 248 P.3d 1256 (Idaho 2011) ................................................................. 12 Tarleton v. Arnstein & Lehr, 719 So.2d 325 (Fla. App. 1998) ............................................... 12, 18, 19 Tennen v. Lane, 716 P.2d 1031 (Ariz. App. 1986) ......................................................... 18 Teodorescu v. Bushnell, Gage, Reizen & Byington, 506 N.W.2d 275 (Mich. App. 1993) ............................................. .12, 18 Valley/50th Ave., LLC v. Stewart, 159 Wn.2d 736, 153 P.2d 186 (2007) .................................................... 3 Versuslaw, Inc. v. Stoel Rives, LLP, 127 Wn. App. 309, Ill P.3d 866 (2005) ............................................ .18 Verve, LLC v. Hypercom Corp., 2006 WL 3385797 (D. Ariz. Oct. 19, 2006) ....................................... .23 Wolfe v. Morgan, 11 Wn. App. 738, 524 P.2d 927 (1974) .............................................. .22 Wood v. McGrath, North, Mullin & Kratz, 589N.W.2d 103 (Neb. 1999) ............................................................... 12 Ziegelheim v. Apollo, 607 A.2d 1298 (N.J. 1992) ................................................................... 12 STATUTES AND RULES CR 30(b)(6) ................................................................................................ 10 RCW 64.04.010 ........................................................................................... 8 - VlllDWT 20580291 v5 0089090-000003 RPC 1.5 ........................................................................................................ 1 RPC 1.5(a)(4) ............................................................................................. 24 RPC 1.8 .............................................................................................. passim RPC 1.8(a) .......................................................................................... passim RPC 1.8(a)(1) ........................................................................................... 5, 6 RPC 1.8(a)(2) ............................................................................................... 6 RPC 1.8(t) .................................................................................................... 4 RPC 1.8(i) ................................................................................................ 4, 8 RPC 1.8 cmt 1 .......................................................................................... 1, 4 RPC 1.8 cmt 4 .............................................................................................. 6 RPC 1.8 cmt 16 ............................................................................................ 8 OTHER AUTHORITIES Andrews et al., LAW OF LAWYERING IN WASHINGTON ........................... .4, 9 Hazard, et al., THE LAW OF LAWYERING .................................................... .4 RESTATEMENT OF LAWYERING ................................................................... 25 WSBA Ethics Adv. Op. 2178 (2008) ...................................................... .4, 9 -IXDWT 20580291 v5 0089090-000003 I. INTRODUCTION The Rules of Professional Conduct protect clients and the public from overreaching attorneys. In this case, the Settlement & Re-Engagement Agreement between Stacey Defoor and Rafel Law Group did not merely create an "ordinary fee arrangement[] between client and lawyer" that would be governed by Rule 1.5, but instead included both a "business transaction" and a "security" interest. RPC 1.8 & cmt 1. Rafel therefore had a duty to make the disclosures required by RPC 1.8(a) at the outset of the representation. He did not. As a result ofRafel's violation ofRPC 1.8, the Agreement is void as a matter of law. This Court should reverse the trial court's orders granting RLG's motion for summary judgment of validity and denying Defoor's cross-motion, and should remand for entry of a judgment invalidating the Agreement and awarding attorney's fees to Defoor. Because the Agreement is void, it is unnecessary to reach the trial court's ruling that RLG is entitled to a total of $2,027,316 for services, costs, fees, and interest. In any event, disputed factual issues preclude summary adjudication of both the fairness and reasonableness ofthis amount. Disputed issues of fact also bar summary judgment on Defoor's two counterclaims. This Court should reverse and remand for trial of Defoor's counterclaims, together with RLG's claim for the quantum meruit value of RLG's services in each matter calculated in light ofRafel's misconduct. DWT 20580291 vS 0089090-000003 II. ARGUMENT A. Because Rafel Violated RPC 1.8, The Settlement & Re-Engagement Agreement Is Void As A Matter of Law. 1. The Settlement and Note Provisions Regarding RLG's Matter 1 Fee Demand Violated RPC 1.8(a). a. Converting a doubtful quantum meruit claim into a $775,000 promissory note in return for providing future legal services· is a "business transaction" covered by RPC 1.8( a). RLG begrudgingly acknowledges that before Defoor signed the Settlement & Re-Engagement Agreement on Feb. 14, 2008, its claim for compensation in Matter 1 was limited to the unliquidated quantum meruit value of the contribution provided by its legal services. Resp.Br. 25. 1 RLG offered to represent Defoor at trial in exchange for her acknowledging an "obligation" that did not previously exist, and for agreeing to convert RLG's existing quantum meruit Matter 1 claim into a secured, interestbearing $775,000 note, including $505,000 for fees, due in full even before the Defoor Litigation concluded. The parties agree that RPC 1.8 would obviously apply to such nonmonetary terms if the attorney had already been engaged. See, e.g., Resp.Br. 21 (citing Valley/50th Ave., LLC v. 1 Nevertheless, RLG's brief neglects to address the controlling authority of Ausler v. Ramsey, 73 Wn. App. 231, 868 P.2d 877 (1994) and Ross v. Scannell, 97 Wn.2d 598,647 P.2d 1004 (1982)---which Rafellikewise ignored in his dealings with Defoor when he contended he was contractually entitled to the full amount of his claimed fees. See, e.g., CP 1688, 1723, 1795. As late as RLG's 30(b)(6) deposition in July 2011, Rafel took the position that the Ausler I Ross rule did not apply to him. CP 1692-98. 2 DWT 20580291 v5 0089090-000003 Stewart, 159 Wn.2d 736, 745, 153 P.2d 186 (2007)). Like the trial court, CP 2851, RLG assumes that RPC 1.8(a) does not apply to Rafel' s conduct because Defoor was representing herself when she signed the Agreement. Resp.Br. 19. According to RLG, there is "no applicable case law or other authority applying RPC 1.8(a) to prospective representations in Washington." !d. at 2. RLG is wrong. First, RLG mischaracterizes Holmes v. Loveless, 122 Wn. App. 470, 94 P.3d 338 (2004), as a case that "involved an attorney who was already representing the client at the time the alleged business transaction occurred." Resp.Br. 21. To the contrary, the client in Holmes was a joint venture called "Loveless/Tollefson Properties." 122 Wn. App. at 473.2 The attorney had previously provided legal services to C.E. Loveless, id., but there is no suggestion that he represented either the joint venture itself, co-venturer Tollefson, or any other joint venture between them. The engagement agreement with Loveless/Tollefson Properties provided for some of the lawyers' compensation to come from a percentage of the profits of the client's development venture. !d. The Court held that such an agreement "falls within the scope of the business transaction rule." !d. at 475. Second, although this Court's decision in Cotton v. Kronenberg, 2 In evaluating an attorney's compliance with RPC 1.8, courts must consider the identity of the actual client, not affiliates. Valley/50th Ave., 159 Wn.2d at 747. 3 DWT 20580291 v5 0089090-000003 111 Wn. App. 258, 44 P.3d 878 (2002), did not focus on the precise timing among documents executed at the outset of the engagement, the Court explicitly cited the leading treatise for the proposition that Rule 1.8(a) applies to nonmonetary business transaction terms that are agreed to concurrently with the engagement agreement. !d. at 271 n.33 (quoting Geoffrey C. Hazard, Jr., eta/., THE LAW OF LAWYERING§ 12.5). Third, other treatises and commentators likewise recognize that RPC 1.8(a) applies when there is an "[o]verlap between fee agreements and business transactions." Andrews et al., LAW OF LAWYERING IN WASHINGTON (WSBA 2012) at 7-43; see also WSBA Ethics Adv. Op. 2178 (2008) (attorney may not acquire a "promissory note for a sum certain from a prospective client prior to work being performed or fees being earned"); CP 2021 (Mark Fucile testified that Rule 1.8 applies to promissory note obtained "at the formation stage" of engagement). Finally, multiple provisions of RPC 1.8 itself demonstrate that the reference in its heading to "Current Clients" includes the terms of an initial engagement agreement. See, e.g., RPC 1.8(f) (third-party payment); RPC 1.8(i) (interest in litigation). As the first comment to Rule 1.8 states, the requirements ofRPC 1.8(a) "must be met when the lawyer accepts an interest in the client's business or other nonmonetary property as payment of all or part of a fee." The trial court erred in holding otherwise. 4 DWT 2058029Jv5 0089090-000003 b. Rafel did not comply with RPC 1.8(a). Defoor sought summary judgment of invalidity based on the provision ofRPC 1.8(a)(1) requiring full disclosure, in writing, separate from the terms of the contract itself, identifying the specific disadvantages ofthe business transaction.3 As a matter of law, RLG failed to make the required conflicts disclosures regarding the Settlement and Note. RLG first argues that the "terms of the agreement were clearly transmitted to Defoor." Resp.Br. 23; see also id. at 26 (Rafel informed Defoor that "she was 'completely free' to decline his proposed terms" regarding interest). But RPC 1.8(a) requires more than drafting and sending a written contract. See, e.g., In re Disciplinary Proceeding Against Haley, 157 Wn.2d 398,407, 138 P.3d 1044 (2006). Second, RLG contends that Rafel may rely in hindsight on a letter sent to Defoor by her former counsel, Ginger Edwards, on February 16, 2008-two days after Defoor had already signed the Settlement & ReEngagement Agreement. Resp.Br. 24 (citing CP 4278-83); CP 1848 (2114/08 signature). According to RLG, Rafel's discovery of another attorney's subsequent letter excuses his own repeated mischaracterization 3 A lawyer must satisfy each of the requirements set forth in RPC 1.8(a). Cotton, 111 Wn. App. at 272 (voiding contract because agreement was not fair and reasonable under RPC 1.8(a)(l)). As discussed below in Section D, the fairness and reasonableness ofRLG's fee demand for Matter 1 present disputed factual issues, which independently require reversal ofthe trial court's grant of summary judgment in favor ofRLG. 5 DWT 20580291 v5 0089090-000003 to Defoor, see n.l, supra, of her post-withdrawal rights and obligations. But RPC 1.8(a) requires a complete written conflicts disclosure. It is true that when "the client is independently represented in the transaction" between attorney and client, the prior written disclosure may come either from the attorney or from "the client's independent counsel." RPC 1.8 cmt 4 (emphasis added). In this case, however, Defoor was not represented in her transaction with RLG. CP 652. Even if she had been, RLG is unwilling to represent to this Court that Edwards' belated letter-which raises serious questions regarding the fairness and reasonableness of the transaction-actually constituted the operative written disclosure to Defoor. Resp.Br. 25 n.5. Instead, RLG relies on the letter solely to "show that Defoor was advised by independent counsel," id., thus satisfying RPC 1.8(a)(2)-which is separate from the additional requirements under RPC 1.8(a)(l) that the transaction terms be fair and reasonable, and that all conflicts be fully disclosed in writing. Cotton, 111 Wn. App. at 272. Finally, RLG contends that before transmuting its existing quantum meruit claim for services in Matter 1 into a secured note obligating Defoor to pay $505,000 plus costs as "a condition for Rafel agreeing to represent" her, Rafel had no duty to disclose anything about its Matter 1 rates and services beyond the astonishing total amount claimed because "there is no evidence that Defoor ever asked for such records." Resp.Br. 26-27. RLG 6 DWT 20580291 v5 0089090-000003 has it backwards. It was Rafel's obligation to make full disclosure and obtain informed consent prior to the transaction with Defoor. Defoor could not consent to a Note obligating her to pay $505,000 in attorneys' fees for Matter 1 if she had no clue about the premium "contingent" rates Rafel proposed to charge, and no opportunity to review any description whatsoever of the services purportedly provided. See In re Disciplinary Proceeding Against McKean, 148 Wn.2d 849, 871, 64 P.3d 1226 (2003) (disclosure must be sufficient to allow independent evaluation). Rafel's attempt to distinguish the facts in Simburg, eta/., v. Olshan, 97 Wn. App. 901, 988 P. 2d 467 (1999), merely underscores his own utter lack of candor. In Simburg, the attorneys failed to satisfy the "full disclosure" element of accord and satisfaction because despite providing billing records, the firm had neglected to disclose one lawyer's change in billing rate. In contrast with that partial omission, Rafel repeatedly insisted to Defoor-falsely-that she had a contractual duty to pay $505,000 for fees without providing any information whatsoever about his calculation-including the fact that it was based on premium "contingent fee rates" that Rafel has never charged any other client, and included numerous charges that he now acknowledges were improper. CP 1 000. Even drawing all reasonable inferences in favor ofRLG, Rafel failed as a matter of law to make the required RPC 1.8 disclosures. 7 DWT 20580291 v5 0089090-000003 2. RLG Does Not Dispute That Rafel Violated RPC 1.8(a) By Acquiring A Security Interest In "Any Assets Of Defoor." As RLG observes, Defoor challenged a second aspect of the Settlement & Re-Engagement Agreement: Rafel's knowing acquisition of a "lien against any non-litigation assets held by Defoor." Resp.Br. 30. Unlike the business transaction converting its Matter 1 quantum meruit claim into a $775,000 note, RLG does not argue that this security interest is beyond the scope ofRPC 1.8(a), or that Rafel made the required disclosures, or that Defoor was advised by other attorneys regarding the provision. See id. at 20-28. Instead, RLG merely contends that the lien it demanded from Defoor "has never been asserted" against any of Defoor's assets other than "property awarded to her in the litigation." Resp.Br. 31 (emphasis in original). 4 However, the plain language ofRPC 1.8(a) bars the acquisition of security interests adverse to client, not just the enforcement of such interests. A security interest is a valuable property right, with great "potential for economic coercion by attorneys." Ross, 97 Wn.2d at 606. 4 In fact, RLG has not limited its claims to property recovered from Terry. See, e.g., CP 2238 (Rafel recognized that Defoor's jewelry was separate property and not subject to division in litigation). RPC 1.8(i) separately governs the creation of liens in property that is "recovered through the lawyer's efforts in the litigation." RPC 1.8 cmt 16. Other substantive law, not at issue in this appeal, governs the priority and potential effect of contractual lien provisions on particular real or personal property. See, e.g., RCW 64.04.010 (encumbrances on real estate effective by deed); Home Realty Lynwood, Inc. v. Walsh, 146 Wn. App. 231, 237, 189 P.3d 253 (2008) (requiring property description). 8 DWT 20580291 v5 0089090-000003 See also LK Operating, LLC v. Collection Grp, LLC, 168 Wn. App. 862, 880, 279 P.3d 448 (2012) (RPC 1.8 does not require "that an actual benefit be conferred" on lawyer); WASHINGTON LAW OF LAWYERING at 7-44 (agreement "interjecting a creditor-debtor relationship between the lawyer and client before the lawyer-client relationship has even commenced" is "not fair and reasonable to the client") (citing WSBA Ethics Op. 2178). 3. Because Rafel Violated RPC 1.8, RLG May Not Enforce The Agreement Against Defoor. As Division III of this Court recently reaffirmed, as a matter of fundamental public policy, courts will refuse an attorney's efforts to enforce client agreements when the lawyer has violated RPC 1.8. LK Operating, 168 Wn. App. at 874-75 (collecting cases). RLG offers no contrary authority regarding the consequence ofviolating RPC 1.8. Instead, RLG argues that the Court may sever the offending Matter 1 fee transaction and overbroad contractual lien provision "and enforce the rest" of the Settlement & Re-Engagement Agreement. Resp.Br. 30. Even under general contract principles, RLG's argument fails because the terms of the Note and the Settlement & Re-Engagement Agreement are interdependent and cannot be severed from one another. A "contract is 'entire,' rather than severable, when 'the parties assented to all the promises as a single whole, so that there would have been no bargain 9 DWT 20580291v5 0089090-000003 whatever, if any promise or set of promises were struck out."' In re Marriage of McCausland, 129 Wn. App. 390,403, 118 P.3d 944 (2005). As Rafel testified as RLG's CR 30(b)(6) designee, the contract with Defoor was "an entire agreement" and "it's all part of a whole." CP 1714. In any event, the Settlement & Re-Engagement Agreement is no ordinary contract, but rather an agreement between attorney and client, which must satisfy the strict requirements of RPC 1.8. LK Operating, 168 Wn. App. at 876. Rafel's conduct renders the Agreement "void as against public policy." !d. at 881. 4. RLG's Unfounded Fraud Accusations Do Not Excuse Rafel's Professional Misconduct. After Defoor asserted malpractice counterclaims, RLG amended its original collection claims to add multiple new legal theories, including accusations of fraud. CP 276-78. Defoor vigorously disputes RLG's accusations. RLG later abandoned its fraud contentions, which were never adjudicated. CP 4391, 4402. Nevertheless, RLG now argues that this Court should revive the Agreement on the grounds that Defoor "fraudulently induced Rafel to enter" it. Resp.Br. 29. Rafel's excessive lien claim for Matter 1 left Defoor with no alternative to signing the Agreement (other than wiping out Rafel's improper lien with the drastic step of declaring bankruptcy, her former attorneys' 10 DWT 2058029Iv5 0089090-000003 actual counsel to her). CP 1656. RLG twists Defoor's words at her deposition to transform her well-founded objection to the amounts ofRafel's Matter 1 fees and cost demands, CP 164 7, into a novel fraud defense. Rafel required her to sign the false statement that she had an "obligation" to pay $505,000 for Matter 1 fees. CP 1847. RLG's circular logic-that any victim of duress who swears under oath that her signature was obtained without coercion has no recourse against the perpetrator-is sheer chutzpah. In any event, Rafel' s proffered defense cannot resuscitate a void attorney engagement agreement. See, e.g., Corp. Dissolution of Ocean Shores Park, Inc. v. Rawson-Sweet, 132 Wn. App. 903, 913, 134 P.3d 1188 (2006) (attorney's engagement agreement was "void as a matter of public policy" where attorney "behaved unethically" under RPC 1.8); Cooper v. Baer, 59 Wn.2d 763, 380 P.2d 871 (1962) (estoppel unavailable when contract against public policy). B. Disputed Factual Issues Preclude Summary Judgment On Defoor's Malpractice Claim. For Rafel's summary judgment on Defoor's malpractice claim to be upheld, when the facts are viewed in the light most favorable to Defoor, there must be no genuine issue of fact regarding whether Rafel breached his duty of care to Defoor and whether his breach was the proximate cause of Defoor's damage. Opening Br. 25. Genuine issues exist regarding both. 11 DWT 20580291 v5 0089090-000003 1. Rafel Breached His Duty of Care by Failing to Track the Proceeds From Community Transactions. The duty of care imposed on an attorney in a dissolution includes a duty to track the disposition of community assets. First, malpractice actions arising from dissolutions have routinely recognized that attorneys breach the duty of care if they fail to discover, value, or track assets when resolving divisions of property. These cases also recognize that the question whether an attorney breached the duty by not taking adequate steps to discover, value, or track assets is for the jury; it is not an appropriate subject for summary judgment or a directed verdict. 5 Whether to track assets is not a judgment call or an optional strategy; it is a basic component of the duty of care. 5 See, e.g., Martin v. Northwest Wa. Legal Servs., 43 Wn. App. 405,409,717 P.2d 779 (1986); A loy v. Mash, 696 P.2d 656, 660 (Cal. 1985); Ishmael v. Millington, 241 Cal. App. 2d 520, 527 (1966); Grayson v. Woftey, Rosen, Kweskin & Kuriansky, 646 A.2d 195, 202- 03 & n.9 (Conn. 1994); Tarleton v. Arnstein & Lehr, 719 So.2d 325, 327 (Fla. App. 1998); Stephen v. Sallaz & Gatewood, 248 P.3d 1256, 1260-62 (Idaho 2011); McDonaldv. Paine, 810 P.2d 259,262 (Idaho 1991); Landau v. Bailey, 629 N.E.2d 264,266-67 (Ind. App. 1994); Schneider v. Richardson, 411 A.2d 656, 658 (Me. 1979); Pickett, Houlon & Berman v. Haislip, 533 A.2d 287,290-95 (Md. App. 1987); Guenardv. Burke, 443 N.E.2d 892, 897 (Mass. 1982); Teodorescu v. Bushnell, Gage, Reizen & Byington, 506 N.W.2d 275,276-78 (Mich. App. 1993); Oakes & Kanatz v. Schmidt, 391 N.W.2d 51, 54 (Minn. App. 1986); London v. Weitzman, 884 S.W.2d 674,676 (Mo. App. 1994); Woodv. McGrath, North, Mullin & Kratz, 589 N.W.2d 103, 108 (Neb. 1999); McWhirt v. Heavey, 550 N.W.2d 327,335-36 (Neb. 1996); Ziegelheim v. Apollo, 607 A.2d 1298, 1305-06 (N.J. 1992); Feng v. Kelley & Ferraro, 2009 WL 790345 at *3-4 (Ohio App. Mar. 26, 2009); Ballesteros v. Jones, 985 S. W.2d 485, 495 (Tex. App. 1999); McClung v. Smith, 870 F.Supp. 1384, 1405 (E.D. Va. 1994), aff'd in relevant part, 89 F.3d 829 (4th Cir. 1996); Helmbrecht v. St. Paul Ins. Co., 362 N.W.2d 118, 128-31 (Wis. 1985); Rino v. Mead, 55 P.3d 13, 20 (Wyo. 2002); cf Park v. Park, 612 P.2d 882, 889 (Cal. 1980) (vacating dissolution when "the division of the community property was made without the aid of an up-to-date financial declaration."); Nembach v. Giaimo & Vreeburg, 618 N.Y.S.2d 307 (A.D. 1994) (failure to replace husband as beneficiary on insurance policy). 12 DWT 20580291 v5 0089090-000003 Second, Defoor's expert Ted Billbe testified that Rafel "did not do a proper job of tracking the assets," which "resulted in him not being able to put on a proper case." CP 2065. Mr. Billbe opined that "a reasonably competent attorney would have tracked all of the quasi-community assets" and that "Mr. Rafel failed to meet a standard of care that a reasonably competent attorney would have met." CP 2066-67. Third, Rafel' s own words confirm the duty to track assets. Shortly after he was retained, he sought an extension because his predecessor had not hired "accountants to analyze the complex transactions" of the Defoors "and Mr. Defoor's disposition of millions of dollars in community assets following the parties' separation." Rafel opined that "Such experts are absolutely essential, to assure that Ms. Defoor's interests are properly protected." CP 1928 (emphasis added). See also CP 1928-29 (~~ 4(a), (b)); CP 1923-24. Rafel's own recognition ofthe need to track assets is, by itself, sufficient to raise a question of fact regarding his breach. See Stanley v. Richmond, 35 Cal. App. 4th 1070, 1092-95 (1995). Rafel does not dispute that, with limited exceptions, he did not seek to track what happened to the proceeds from the disposition of the community assets. He contends, instead, that he did not breach his duty because he "brought to the court's attention" the assets as they existed at the time of separation or subsequent acquisition. This argument ignores 13 DWT 20580291v5 0089090-000003 the extent ofRafel's duty. It is not sufficient to tell the court where the community assets have been. It is also "absolutely essential," CP 1928, to track where the proceeds from the disposition of those assets went. Proceedings in the Defoor Litigation demonstrate this fact. When the proceeds from community assets were tracked, Judge Inveen awarded Defoor half of those proceeds. See, e.g., CP 1917, 1920. But when Rafel was unable to track the proceeds, the court did not allocate any portion to Defoor. See, e.g., CP 1916-19,2303-04. Following are five examples where Judge Inveen identified assets as community assets, but did not assign half the proceeds to Defoor because Rafel did not track the proceeds. 1. Sale of Tobin Property and Purchase of Kirkland Home. In January 2007, Terry sold the Tobin property, community property in Renton, to the Washington Department of Transportation for approximately $2.4 million. CP 1641, 1909 (~53), 2295,2303,2647. Immediately thereafter, he purchased a home in Kirkland for approximately the same amount, using $699,732 ofthe cash from the Tobin sale and borrowing the rest. CP 1990-01 (~ 31), 1909 (~53), 1988. The court found that Terry had used community assets to purchase the Kirkland home. CP 1900-01 (~ 31), 1909 (~53). Because $699,732 of the Tobin proceeds could be traced to the Kirkland residence, Judge Inveen included it in the distribution of community assets. CP 1920. But because 14 DWT 20580291 v5 0089090-000003 Rafel had not sought to track what happened to the remaining $1.7 million, Judge Inveen gave no credit to Defoor for that amount, notwithstanding that it came from a community asset. CP 2303-04. 2. October 2007 Camwest Federal Way Payment. In October 2007, GWC received a payment of$1,050,000 from its development partner Camwest with respect to a community asset in Federal Way. CP 1640-41 (~ 6), 1652-53 (~ 30), 1904, 2082, 3708-09 (~ 7), 3755-67. The court found the payment was a community asset. CP 1903-05 (~ 42). The next day, Terry transferred most of this payment ($950,000) to UBS Account BK-02483-35. CP 1652-53 (~ 30), 2090, 2100, 2118. Rafel represented to the court below that Terry did not produce bank statements for Account 2483 or reflecting the $950,000 deposit. CP 3709 (~ 9). In fact, documents produced by Rafel in this action show that Terry did produce the bank statement reflecting the deposit and that Rafel provided the statement to his expert Mr. Sutphen. CP 2110-19. Also contrary to Rafel' s representation, the evidence is that Rafel did not "bring to the court's attention" the fact that the $950,000 was sitting in Account 2483. Rafel argued that Defoor should receive half of the Camwest payment, since it was derived from a community asset. CP 2286, 2637-38,2645,2651, 3710 (~ 12), 3857. But because Rafel did not track the funds and did not tell Judge Inveen that those funds were in 15 DWT 20580291 v5 0089090-000003 Account 2483, Judge Inveen did not give Defoor any credit for the $950,000. CP 1916-19,2304. Defoor's expert Mr. Billbe specifically described the failure by Rafel to track the $950,000 as an example of Rafel's breach of his duty of care. CP 2066, 4095. 3. US Bank Account. As of Defoor and Terry's September 2006 separation, their joint US Bank account, in the name of GWC, had over $3,000,000. CP 2003. Judge lnveen found that Terry transferred this money to an account at UBS (Account BK-02642-35). CP 1911 (~ 61). As of October 2007, the balance in that account had declined to $2 million, not counting $700,000 attributable to the sale of the Costa Rica condominium. Judge Inveen found that the funds in the account "were those of GWC or the parties jointly," CP 1911 (~ 61) and awarded Defoor half of the remaining $2 million. CP 1917. Rafel had argued that Defoor should receive $4.3 million, which would have taken into account the $1.2 million difference between the original $3.2 million and the remaining $2 million, as well as other community funds that he had not tracked. CP 2286-97, 2637-38,2641,2645,2651, 3710 (~ 12), 3857-58. Judge Inveen rejected this argument. She found that, though it appeared Terry had taken cash that had belonged to the community, "the evidence just isn't sufficient" to track what had happened to the money or to be sure that it wasn't already accounted for in other assets being divided. CP 2303-04. As a result, 16 DWT 20580291 vS 0089090-000003 Defoor received no credit for $1.2 million from the couple's community account because Rafel did not track where the money went. 4. March 2007 Camwest Fairwood Payment. In March 2007 Camwest made a payment of $225,000 to GWC with respect to a project known as Fairwood. CP 2286, 3709 (~ 8), 3769, 3773. Judge Inveen found that the payment was a community asset. CP 1905 (~ 43). Rafel argued that Defoor should receive a payment that reflected half of this amount. CP 2286. But because Rafel had not done anything to track where the $225,000 went, Judge Inveen denied this request. CP 2303-04. 5. High Hook Boat. Judge Inveen found that Terry had sold a community luxury fishing yacht and retained control of the $157,257 proceeds himself. CP 1910 (~ 58). Once again, Rafel argued that Defoor should receive a payment that reflected half of this amount. CP 2286. And, once again, because Rafel had not done anything to track where the $157,257 went, Judge Inveen denied this request. CP 2303-04. 2. Rafel's Breach of Duty Was the Proximate Cause of Damage to Defoor. "In the legal malpractice context, proximate cause boils down to whether the client would have fared better but for the attorney's negligence." Lavigne v. Chase, Haskell, Hayes & Kalamon, 112 Wn. App. 677, 683, 50 P.3d 306 (2002). "Unless the question involves a pure matter 17 DWT 20580291 vS 0089090-000003 of law, such as whether the client would have prevailed on a statute of limitations issue, the trier of fact determines the existence of proximate cause." !d.; accord Versuslaw, Inc. v. Stoel Rives, LLP, 127 Wn. App. 309, 328-29, 111 P.3d 866 (2005); Daugert v. Pappas, 104 Wn.2d 254, 257-58, 704 P.2d 600 (1985). Whether an attorney's failure to discover, value, or track community assets was the proximate cause of loss is a matter for resolution at trial, not by summary judgment or directed verdict.6 Rafel suggests that even if he was negligent, Defoor should not recover because she "has not provided any expert testimony to prove causation, damages or collectability." Resp.Br. 41. There are multiple flaws with this argument. First, Defoor's expert Mr. Billbe did testify as to causation. He explained that various community assets did not make it into the judgment because the court had not been provided with information about what happened to the cash proceeds from the assets, which left the court confused and caused it to "thr[o]w its hands up." CP 4096-97. Second, as Rafel acknowledges, expert testimony is not required as 6 See, e.g., Martin, 43 Wn. App. at 407, 409-11; Tennen v. Lane, 716 P.2d 1031, 1034 (Ariz. App. 1986); Callahan v. Clark, 901 S.W.2d 842, 847-48 (Ark. 1995); Aloy, 696 P.2d at 660; Stanley, 35 Cal. App. 4th at 1092-97; Lewis v. Superior Court, 77 Cal. App. 3d 844, 852-53 ( 1978); Ishmael, 241 Cal. App. 2d at 529-30; Grayson, 646 A.2d at 203; Tarleton, 719 So.2d at 327-330; Millsaps v. Kaufold, 653 S.E.2d 344,345-47 (Ga. App. 2007); Meyer v. Wagner, 784 N.E.2d 34, 39 (Mass. App. 2003); Guenard, 443 N.E.2d at 898; Teodorescu, 506 N.W.2d at 278; London, 884 S.W.2d at 677-78; McWhirt, 550 N.W.2d at 336-38; Nembach, 618 N.Y.S.2d at 307; Feng, 2009 WL 790345 at *3-4; Helmbrecht, 362 N.W.2d at 131-32. 18 DWT 2058029lv5 0089090-000003 to matters within the common knowledge of lay persons. Resp.Br. 40.7 Here, it is evident that Rafel' s negligence was the proximate cause of Defoor's harm. Whenever Judge Inveen could track what had happened to the proceeds from community assets, she awarded halfto Defoor, as in the case of the $699,732 from the Tobin sale that were tracked to the Kirkland home and the $2 million from the US Bank account that were traceable to UBS Account 2642. CP 1917, 1920. When, however, Rafel failed to track what had happened to the community funds, Judge Inveen found that "the evidence just isn't sufficient" to determine what had happened to the funds and did not award anything to Defoor. CP 2304. A jury does not require an expert to point out this fact. Third, none of the cases cited by Rafel held that expert testimony was required as to collectability. And several ofthem (Lavigne, Matson, Tilly) held the plaintiff showed collectability, or created a genuine issue of fact, notwithstanding that the evidence did not include expert testimony. Finally, Rafel's argument regarding collectability ignores the fact that Rafel was responsible for the inability to collect. Had he tracked what happened to the community assets, he could have taken additional steps to protect Defoor, e.g., through freezing the funds in UBS Account 2642 and 7 Accord Tarleton, 719 So.2d at 330; Morris v. Morris, 2003 WL 21509023 at *5-6 (Ohio App. July 2, 2003). 19 DWT 20580291 v5 0089090-000003 other accounts, lis pendens, temporary restraining orders, etc. Indeed, the day after Rafel was hired, his "things to do" memo discussed the need to take steps to protect Defoor through security. CP 1922-24. Accordingly, he began researching the filing of lis pendens and began preparing a motion "to protect and control assets." CP 2916,2918, 2920. But he did not file any lis pendens or motion until almost three months later. CP 1642. Nor did he ever take steps to freeze the bank accounts. The failure to provide adequate security is, itself, malpractice, and the question whether an attorney's work was deficient in this regard is for the jury.8 "If a plaintiff has produced the best evidence available, and if the evidence affords a reasonable basis for estimating a loss, courts will not permit a wrongdoer to benefit from the difficulty of determining the dollar amount of loss," Lundgren v. Whitney's Inc., 94 Wn.2d 91, 98,614 P.2d 1272 (1980), particularly when the wrongdoer's acts have created the difficulty in determining damages with precision. "[T]he wrongdoer shall bear the risk of the uncertainty which his own wrong has created." Jacqeline 's Washington, Inc. v. Merchantile Stores Co., 80 Wn.2d 784, 789-90, 498 8 See, e.g., Reed v. Mitchell & Timbanard, 903 P.2d 621, 625-26 (Ariz. App. 1995); Rhine v. Haley, 378 S.W.2d 655,656-58 (Ark. 1964); Margolin v. Kleban & Samar, P.C., 882 A.2d 653, 663-65 (Conn. 2005); Behr v. Foreman, 824 So.2d 222, 223-24 (Fla. App. 2002); Millsaps, 653 S.E.2d at 345-47; Sobilo v. Manassa, Riffner, Barber, Rowden & Scott, 479 F. Supp. 2d 805, 812-22 (N.D. Ill. 2007); Meyer, 784 N.E.2d at 35-36; Peterson v. Simasko, Simasko & Simasko, 579 N.W.2d 469,470 (Mich. App. 1998); Ehlinger v. Ruberti, Girvin & Ferlazzo, 758 N.Y.S.2d 195 (A.D. 2003); Hart v. Carro, Spanbock, Kaster & Cuiffo, 620 N.Y.S.2d 847, 849 (A.D. 1995). 20 DWT 2058029lv5 0089090-000003 P.2d 870 (1972). C. Disputed Factual Issues Preclude Summary Judgment On Defoor's Breach Of Fiduciary Duty Claim. Rafel's denial that his filing ofliens was improper and excessive, see Resp.Br. 42-45, merely demonstrates the existence of genuine issues of fact. See Opening Br. at 42-43; see also CP 1858, 2170 (after reengagement RLG filed liens that included additional back-dated Matter 1 charges). As to Rafel's contention that there is no evidence "that Defoor sought to retain other counsel other than possibly James Clark," Resp.Br. 43, the evidence is that Defoor did attempt to rehire Mr. Clark and was unsuccessful because ofthe liens. CP 1630, 1647. As to Rafel's argument that there is no evidence another lawyer would have achieved a better result, competent counsel would have tracked community assets and obtained adequate security. See discussion supra at 12-13. Rafel also contends that to recover for emotional distress, Defoor must show the distress is susceptible to medical diagnosis or accompanied by objective symptoms. Resp.Br. 45-46. These requirements would apply if Defoor were seeking emotional distress damages on her negligence claim; they do not apply to intentional torts such as breach of fiduciary duty. Kloepfel v. Bokor, 149 Wn.2d 192, 201, 66 P.3d 630 (2003); Berger v. Sonneland, 144 Wn.2d 91, 112-13 & n.113, 26 P.3d 257 (2001). 21 DWT 20580291 v5 0089090-000003 D. Disputed Factual Issues Preclude Summary Judgment As To The Fairness And Reasonableness OfRLG's $1,747,567 Fee Claim. The reasonableness and fairness of an attorney's fee is a question of fact, to be resolved by the jury and not on summary judgment. Jacob's Meadow Owners Ass'n v. Plateau, 44 II, LLC, 139 Wn. App. 743,760-61, 162 P.3d 1153 (2007); Wolfe v. Morgan, 11 Wn. App. 738, 744, 524 P.2d 927 (1974). Reasonableness is generally based on a lodestar approach, "arrived at by multiplying a reasonable hourly rate by the number of hours reasonably expended on the matter." Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 150-51, 859 P.2d 1210 (1993) (emphasis in original). "Necessarily, this decision requires the court to exclude from the requested hours any wasteful or duplicative hours and any hours pertaining to unsuccessful theories or claims." Mahler v. Szucs, 135 Wn.2d 398, 434, 957 P.2d 632 (1998). Defoor has raised genuine factual issues concerning the reasonableness ofRafel's fees. Opening Br. 44-48. Rafel's primary response is to claim that the defects which Defoor has pointed to should be ignored absent supporting expert testimony. Resp.Br. 47. While expert testimony regarding the reasonable value of an attorney's services is permitted, it "is neither central nor conclusive, and the court or jury may be disregard it entirely." MacNaughton v. NBF Cable Sys., Inc., 1996 22 DWT 20580291 v5 0089090-000003 WL 33703873 (D. N.J. June 18, 1996).9 A jury may determine that an attorney's request for fees is or is not reasonable based on factors such as (1) the requesting attorney's own testimony and records, see, e.g., O'Conner v. Blodnick, Abramowitz & Blodnick, 744 N.Y.S.2d 205,206 (A.D. 2002), (2) the testimony of opposing counsel, see, e.g., Guity v. CCI Enter., 54 S.W.3d 526,527-28 (Tex. App. 2001), and (3) the jury's own assessment of the circumstances. See, e.g., Head, 105 U.S. at 49-50. Genuine issues exist as to each of the following factors. 1. Hourly Rate. Discovery from Rafel indicates that his regular hourly rate on non-contingent matters was $350 per hour and that in only one case-Defoor's-has he charged a non-contingent-fee client his hypothetical contingent fee rate of$450. CP 1646 (,-r 13), 2985 (40: 8-16), 2991, 2996, 3000-01. This discrepancy creates a genuine issue concerning what the reasonable hourly rate should be. 10 9 Accord Brown v. State Farm Fire & Cas. Co., 66 Wn. App. 273, 283, 831 P.2d 1122 (1992) ("We agree with S. Speiser, Attorney's Fees§ 18.14, at 478 1973: 'Generally the testimony of expert witnesses [on the issue of the value of services of an attorney] is not essential."') (brackets in Brown); Headv. Hargrave, 105 U.S. 45,49-50 (1881); Verve, LLC v. Hyper com Corp., 2006 WL 3385797 (D. Ariz. Oct. 19, 2006); Ball v. Posey, 176 Cal. App. 3d, 1209, 1215 (1986). Geerv. Tonnon, 137 Wn. App. 838,850, 155 P.3d 163 (2007), cited by Rafel, held that expert testimony may be required as to breach of the duty of care, but did not so hold as to the reasonableness of the attorney's fee. See id. at 850-51. 10 See, e.g., City of Birmingham v. Horn, 810 So.2d 667, 683-84 (Ala. 2001) (attempt to charge higher rate than rate attorney typically charged); O'Conner, 744 N.Y.S.2d at 206 (attorney's testimony that rate exceeded his usual rate established prima facie case that fees were excessive); cf Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 597, 675 P.2d 193 ( 1983) ("Where the attorneys in question have an established rate for billing clients, that rate will likely be a reasonable rate."); Baca v. Chiropractic v. Cobb, 317 S.W.3d 674,679-80 (Mo. App. 2010) (contradiction between rates charged and promised). 23 DWT 20580291 vS 0089090-000003 2. Number of Hours. The determination of whether the requested hours are reasonable includes consideration of whether those hours are wasteful or duplicative. Mahler, 135 Wn.2d at 434. Here, counsel for Defoor has reviewed Rafel' s entries and identified 65 entries, representing 220.5 hours and $63,191, that appear to be improper. CP 2907-08 (~~ 3, 8), 2913-2979, 3002-71. Such a declaration is sufficient to demonstrate the existence of a genuine issue of fact. 11 3. Quality of Work. The determination of a reasonable fee must take into account the quality ofthe work performed. 12 An attorney whose work has been negligent or who has violated RPC 1.8 should not recover fees for performing that work. 13 4. Costs. When Defoor hired Rafel, he told her "the maximum total costs for experts" would be $100,000. CP 1640 (~ 5). Instead, he has sought costs of$383,184.29. CP 2860. This discrepancy, by itself, raises a 11 See, e.g., Brygider v. Atkinson, 385 S.E.2d 95, 96-97 (1989); Hinkle, eta/. v. Cadle Co., 848 P.2d 1079, 1083-84 (N.M. 1993); Guity, 54 S. W.3d at 527-28. 12 See, e.g., Mahler, 135 Wn.2d at 434 ("unsuccessful theories or claims"); Bowers, 100 Wn.2d at 594, 597 ("quality of legal representation"; "unsuccessful claims"); RPC 1.5(a)(4) ("results obtained"). 13 See, e.g., Shoemake v. Ferrer, 143 Wn. App. 819, 825-829, 182 P.3d 992 (2008) (negligent attorney may not offset fee against malpractice award); Eriks v. Denver, 118 Wn.2d 451, 462, 824 P.2d 1207 (1992) ("The general principle that a breach of ethical duties may result in denial or disgorgement of fees is well recognized."); Bowers, 100 Wn.2d at 594-597; Dailey v. Testone, 72 Wn.2d 662, 664, 435 P.2d 24 (1967); Saffer v. Willoughby, 670 A.2d 527, 534 (1996) ("Ordinarily, an attorney may not collect attorney fees for services negligently performed."); Kluczka v. Lecci, 880 N.Y.S.2d 698, 700 (A.D. 2009) ("An attorney may not recover fees for legal services performed in a negligent manner even where that negligence is not a proximate cause of the client's injury."). 24 DWT 20580291 v5 0089090-000003 genuine issue as to reasonableness of costs. Baca, 317 S.W.3d at 679-80. Rafel' s communication with his expert appraiser also confirms the existence of a genuine issue regarding the reasonableness of the costs. Rafel complained to the appraiser that his hourly rate exceeded the agreedto rate by $1 00 per hour and that the appraiser's work had been "dangerously" deficient. CP 3075. Similarly, much of the costs paid represent the work of Rafel' s accountant expert Mr. Sutphen. See CP 1 00, 1814. As demonstrated above, this work was deficient as well. 5. Result. RLG erroneously insists that it is entitled to the full amount of its $1,747,567 fee claim, despite subsequent events that have deprived Defoor herself of much of the value of her judgment against Terry. See, e.g., RESTATEMENT OF LAWYERING§ 34 cmt. c & reporter's note ("events not known or contemplated when the contract was made can render the contract unreasonably favorable to the lawyer"). III. CONCLUSION Even experienced attorneys make mistakes. The real test of a person and a lawyer is what you do afterwards. Unfortunately, rather than take responsibility for his failures, Rafel's strategy was to cover things up and to attack his former client with an overreaching zeal that he never approached when he represented her. This Court should reverse the judgment below, and grant the relief set forth above at p. 1. 25 DWT 20580291 v5 0089090-000003 Respectfully submitted this 1st day ofNovember, 2012. DWT 20580291 v5 0089090-000003 DAVIS WRIGHT TREMAINE LLP Roger Let an, WSBA No. 19971 Zak Tomlinson, WSBA No. 35940 Attorneys for Appellant Stacey Defoor 26 , CERTIFICATE OF SERVICE The undersigned certifies under the penalty of perjury under the laws ofthe State of Washington that I am now and at all times herein mentioned, a citizen of the United States, a resident of the state of Washington, over the age of eighteen years, not a party to or interested in the above-entitled action, and competent to be a witness herein. On November 1, 2012 I caused to be served by messenger a copy of the foregoing document on the following: Michael R. Caryl Law Offices of Michael R. Caryl, P.S. 200 First Avenue West, Suite 402 Seattle, W A 98119 Kelly P. Corr Paul R. Raskin Corr Cronin Michelson Baumgardner & Preece LLP 1001 Fourth Avenue, Suite 3900 Seattle, WA 98154-1051 DATED this 1st day ofNovember, 2012. 27 DWT 2058029Jv5 0089090-000003 No. 68339-0-I IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION I STACEY DEFOOR, Appellant v. RAFEL LAW GROUP PLLC Respondent Appeal From The Superior Court For King County Hon. Mary Yu APPENDIX OF NON-WASHINGTON AUTHORITIES SUPPORTING REPLY BRIEF OF APPELLANT STACEY DEFOOR '·-' DAVIS WRIGHT TREMAINE LLP Roger Leishman, WSBA No. 19971 Zak Tomlinson, WSBA No. 35940 1201 Third Avenue, Suite 2200 Seattle, Washington 98101-3045 Telephone: (206) 622-3150 Facsimile: (206) 757-7700 E-mail: rogerleishman@dwt.com Attorneys for Appellant Stacey Defoor DWT 20586284v I 0089090-000003 Appellant Stacey Defoor hereby submits copies of the following non-Washington State Cases in support of its Reply Brief: 1. A loy v. Mash, 696 P .2d 656 (Cal. 1985); 2. Baca v. Cobb, 317 S.W.3d at 679-80; 3. Ball v. Posey, 176 Cal. App. 3d (1986); 4. Ballesteros v. Jones, 985 S.W.2d 485 (Tex. App. 1999); 5. Behr v. Foreman, 824 So. 2d 222 (Fla. App. 2002); 6. Brygider v. Atkinson, 385 S.E.2d at 96-97; 7. Callahan v. Clark, 901 S.W.2d 842 (Ark. 1995); 8. City of Birmingham v. Horn, 810 So.2d 667 (Ala. 2001); 9. Ehlinger v. Ruberti, Girvin & Ferlazzo, 758 N.Y.S.2d 195 (A.D. 2003); 10. Feng v. Kelley & Ferraro, 2009 WL 790345 (Ohio App. 2009); 11. Grayson v. Woftey, Rosen, Kweskin & Kuriansky, 646 A.2d 195 (Conn. 1994); 12. Guenardv. Burke, 443 N.E.2d 892 (Mass. 1982); 13. Guity v. CCI Enterprise, 54 S.W.3d at 527-28; 14. Hart v. Carro, Spambock, Kaster & Cuiffo, 620 N.Y.S.2d 847 (A.D. 1995); 15. Headv. Hargrave, 105 U.S. 45 (1881); 16. Helmbrecht v. St. Paul Ins. Co., 362 N.W.2d 118 (Wis. 1985); 17. Hinkle, Cox, Eaton, Coffield & Hensley v. Cadle Co., 848 P.2d 1079 (N.M. 1993); 1 DWT 20586284vl 0089090-000003 18. Ishmael v. Millington, 241 Cal. App. 2d 520 ( 1966); 19. Kluczka v. Lecci, 880 N.Y.S.2d 698 (A.D. 2009); 20. Landau v. Bailey, 629 N.E.2d 264 (Ind. App. 1994); 21. Lewis v. Superior Court, 77 Cal. App. 3d 844 (1978); 22. London v. Weitzman, 884 S.W.2d 674 (Mo. App. 1994); 23. MacNaughton v. NBF Cable Systems, Inc., 1996 WL 33703873 (D. N.J. 1996); 24. Margolin v. Kleban & Samar, P.C., 882 A.2d 653 (Conn. 2005); 25. McClung v. Smith, 870 F. Supp. 1384 (E.D. Va. 1994), aff'd in relevant part, 89 F .3d 829 (4th Cir. 1996); 26. McDonald v. Paine, 810 P.2d 259 (Idaho 1991); 27. McWhirt v. Heavey, 550 N.W.2d 327 (Neb. 1996); 28. Meyer v. Wagner, 784 N.E.2d 34 (Mass. App. 2003); 29. Millsaps v. Kaufold, 653 S.E.2d 344 (Ga. App. 2007); 30. Morris v. Morris, 2003 WL 21509023 (Ohio App. 2003); 31. Nembach v. Giaimo & Vreeburg, 618 N.Y.S.2d 307 (A.D. 1994); 32. O'Conner v. Blodnick, Abramowitz & Blodnick, 744 N.Y.S.2d 205 (A.D. 2002); 33. Oakes & Kanatz v. Schmidt, 391 N.W.2d 51 (Minn. App. 1986); 34. Park v. Park, 612 P .2d 882 (Cal. 1980); 35. Peterson v. Simasko, Simasko & Simasko, 579 N.W.2d 469 (Mich. App. 1998); 36. Pickett, Houlon & Berman v. Haislip, 533 A.2d 287 (Md. App. 1987); 3 7. Reed v. Mitchell & Timbanard, 903 P .2d 621 (Ariz. App. 1995); 2 DWT 20586284vl 0089090-000003 38. Rhine v. Haley, 378 S.W.2d 655 (Ark. 1964); 39. Rino v. Mead, 55 P.3d 13 (Wyo. 2002); 40. Saffer v. Willoughby, 670 A.2d 527; 41. Schneider v. Richardson, 411 A.2d 656 (Me. 1979); 42. Sobilo v. Manassa, Riffner, Barber, Rowden & Scott, 479 F. Supp. 2d 805 (N.D. Ill. 2007); 43. Stanley v. Richmond, 35 Cal. App. 4th 1070 (1995); 44. Stephen v. Sallaz & Gatewood, 248 P.3d 1256 (Idaho 2011); 45. Tarleton v. Arnstein & Lehr, 719 So.2d 325 (Fla. App. 1998); 46. Tennen v. Lane, 716 P.2d 1031 (Ariz. App. 1986); 47. Teodorescu v. Bushnell, Gage, Reizen & Byington, 506 N.W.2d 275 (Mich. App. 1993); 48. Verve, LLC v. Hypercom Corp., 2006 WL 3385797 (D. Ariz. 2006); 49. Wood v. McGrath, North, Mullin & Kratz, 589 N.W.2d 103 (Neb. 1999); 50. Ziegelheim v. Apollo, 607 A.2d 1298 (N.J. 1992). 3 DWT 20586284vl 0089090-000003 CERTIFICATE OF SERVICE The undersigned certifies under the penalty of perjury under the laws ofthe State of Washington that I am now and at all times herein mentioned, a citizen of the United States, a resident of the state of Washington, over the age of eighteen years, not a party to or interested in the above-entitled action, and competent to be a witness herein. On November 1, 2012 I caused to be served by messenger a copy of the foregoing document on the following: Michael R. Caryl Law Offices ofMichael R. Caryl, P.S. 200 First Avenue West, Suite 402 Seattle, W A 98119 Kelly P. Corr Paul R. Raskin Corr Cronin Michelson Baumgardner & Preece LLP 1001 Fourth Avenue, Suite 3900 Seattle, W A 98154-1051 DATED this 1st day ofNovember, 2012. 4 DWT 20586284vl 0089090-000003 Page I LexisNexis® MARCELLA G. ALOY, Plaintiff and Appellant, v. EUGENE A. MASH, Defendant and Respondent S.F. No. 24639 Supreme Court of California 38 CaL 3d 413; 696 P.2d 656; 212 CaL Rptr. 162; 1985 CaL LEXIS 268; 6 Employee Benefits Cas. (BNA) 1436 March 28, 1985 PRIOR HISTORY: Superior Court of Merced County, No. 64654, Donald R. Fretz, Judge. DISPOSITION: The judgment is reversed. SUMMARY: CALIFORNIA OFFICIAL REPORTS SUMMARY In a malpractice action against an attorney who represented plaintiff in dissolution of marriage proceedings in 1971, for failure to assert a community property interest in the vested military pension of her husband, who was then on active duty although eligible to retire, defendant moved for summary judgment on the ground that in 1971 the law regarding the character of federal military retirement pensions was unsettled, and that he had exercised informed judgment and was therefore immune from a claim of professional negligence. The trial court granted the motion and entered summary judgment for defendant. (Superior Court of Merced County, No. 64654, Donald R. Fretz, Judge.) The Supreme Court reversed, holding a triable issue of negligence was presented, in view of the showing that defendant had failed to claim the pension was community property based on an incomplete reading of a single case, without appreciating the vital difference between a member of the armed forces who has not yet served long enough to be eligible to retire and one who has, but chooses to stay in the service. The court rejected defendant's contention that a 1981 United States Supreme Court decision that the application of community property principles impermissibly conflicted with the federal military retirement scheme immunized him from liability. It held all the evidence is negative that in the early 1970's the United States Supreme Court would have granted certiorari on the issue whether states could hold military pensions to be community property. Moreover, noting the extremely limited retroactive effect given to that decision, it held that it would be ironic if its chief legacy were immunization of legal malpractice by an attorney who never even pondered the issues which fathered the decision's brief life. (Opinion by Kaus, J., with Mosk, Grodin, JJ., and Ramsey, J., • concurring. Separate dissenting opinion by Reynoso, J., with Bird, C. J., and Taber, J., ·concurring.) * Assigned by the Chairperson of the Judicial Council. HEAD NOTES CALIFORNIA OFFICIAL REPORTS HEADNOTES Classified to California Digest of Official Reports, 3d Series (1) Attorneys at Law § 22--Attorney-client Relationship--Liability of Attorneys--Acts Constituting Malpractice--Dissolution Action--Failure to Assert Military Pension Claim--Insufficient Research. --In a malpractice action against an attorney who represented plaintiff in her dissolution of marriage proceedings in 1971, for failure to assert a community property interest in the vested military pension of her husband, who remained on active duty although eligible to retire, a triable issue of negligence existed precluding summary judgment for defendant, where it appeared defendant failed to claim pension rights based on an incomplete reading of a Page 2 38 Cal. 3d 413, *; 696 P.2d 656, **; 212 Cal. Rptr. 162, ***; 1985 Cal. LEXIS 268 single case, without appreciating the vital difference between a member of the armed forces who has not yet served long enough to be eligible to retire and one who has, but chooses to stay in the service, and who did not even consider the issue of federal preemption of community property interests in military pensions. (2) Attorneys at Law § 24--Attorney-client Relationship--Liability of Attorneys-Defenses to Malpractice Actions--Lack of Damage. --In a malpractice action against an attorney who ·represented plaintiff in dissolution of marriage proceedings in 1971, it was not a defense to defendant's negligence in failing to assert a claim to the husband's vested military pension, then an unsettled issue, that the United States Supreme Court decided in 1981 that application of state community property principles to military pensions impermissibly conflicted with the federal military retirement scheme. All the available evidence is negative that in the early 1970's the United States Supreme Court would have granted certiorari on the issue whether states could hold military pensions to be community property. Moreover, the United States Supreme Court decision was given extremely limited retroactive (or prospective) effect, so that it would be ironic if its chief legacy were the immunization of legal malpractice by an attorney who never even pondered the issues which fathered the decision's brief life. COUNSEL: Miles, Sears & Eanni, Richard C. Watters and William J. Seiler for Plaintiff and Appellant. James L. Stevens, Jr., as Amicus Curiae on behalf of Plaintiff and Appellant. R. Gaylord Smith, Conrad R. Aragon, M. Patricia Marrison and Lewis, D'Amato, Brisbois & Bisgaard for Defendant and Respondent. Ronald E. Mallen and Long & Levit as Amici Curiae on behalf of Defendant and Respondent. JUDGES: Opinion by Kaus, J., with Mosk, Grodin, JJ., and Ramsey, J., • concurring. Separate dissenting opinion by Reynoso, J., with Bird, C. J., and Taber, J., • concurring. * Assigned by the Chairperson of the Judicial Council. OPINION BY: KAUS OPINION [*415] [**657] [***162] I Marcella G. Aloy, plaintiff in a legal malpractice action, appeals from a summary judgment for defendant Eugene A. Mash, her former attorney in a 1971 dissolution action against her husband Richard. Marcella's claim of legal malpractice is based on defendant's failure to assert a community [***163] property interest in Richard's vested military retirement pension. 1 The pension was vested because Richard had been in the service for over 20 years and thus had an unconditional right to it upon retirement. It is unclear whether the pension could also be termed "matured." There is some inconsistency in the defmition of a "matured" pension. Most cases defme it as one in which all conditions precedent to the payment of the benefits have taken place or are within the control of the employee. (In reMarriage of Gillmore (1981) 29 Ca/.3d 418, 422, fn. 2 [174 Cal.Rptr. 493, 629 P.2d 1); In re Marriage of Fithian (1974) 10 Cal. 3d 592, 596, fn. 2 [1 11 Cal.Rptr. 369, 517 P.2d 449]; Smith v. Lewis (1975) 13 Ca/.3d 349, 355, fn. 4 [1 18 Cal.Rptr. 621, 530 P.2d 589, 78 A.L.R.3d 231].) Under this defmition the pension was also matured. In re Marriage of Brown (1976) 15 Ca/.3d 838, 842 [126 Cal.Rptr. 633, 544 P.2d 561, 94 A.L.R.3d 164], however, defmed a "matured" benefit as one where there is an "unconditional right to immediate payment" -- i.e., where the employee "reaches retirement age and elects to retire." Under the latter defmition, Richard's pension had not matured since he was still on active duty. Marcella employed defendant Mash in January 1971 to represent her in the dissolution action. Richard was then on active military service and was therefore not receiving a pension although he had been in the service for over 20 years and was eligible to retire. (1 0 US. C. § 891 1.) Defendant failed to claim any community property interest in Richard's pension and it was not put in issue in the dissolution action. The fmal decree of dissolution was entered in December 1971. Richard retired sometime between 1971 and 1980. [*416] In 1971, the California view regarding the characterization of vested federal military retirement pensions as community or separate property was unsettled. In 1974, however, we held that federal preemption did not bar treating such federal military pensions as community property. ( In re Marriage of Fithian, supra, 10 Ca/.3d 592.) In 1980, Marcella filed a complaint against defendant alleging that he negligently failed to assert her community property interest in Richard's military retirement Page 3 38 Cal. 3d 413, *; 696 P.2d 656, **; 212 Cal. Rptr. 162, ***; 1985 Cal. LEXIS 268 pension, which failure prevented her from receiving any share of his gross military retirement pension benefits "from either the date of separation and/or the date of [his] retirement." Defendant moved for summary judgment on the ground that in 1971 the law regarding the character of federal military retirement pensions was unsettled, and that he had exercised informed judgment and was therefore immune from a claim of professional negligence. He submitted a declaration stating, among other things: "2. In 1971, it was my practice to read advance sheets, particularly in the dissolution area, an area in which I have regularly practiced. I would therefore have had knowledge of specific decisions at the time they were rendered or shortly thereafter. [para. ] 3. In 1971, I relied on the case of French v. French, 17 Ca/.2d 775 (1941) as authority that a nonmatured military pension, that is, one owned by a person on active military duty, was not subject to division upon dissolution. I was also aware that in 1971 this case had not yet been overruled. I read the decision In re Marriage [**658) of Fithian, 10 Ca/.3d 592 (1974) shortly after it was issued in 1974. [para. ] 4. I drafted the terms of the interlocutory decree based on my research, knowledge, and understanding of the law in 1971." Marcella opposed the motion, asserting that it was a triable issue whether defendant had made an informed decision. She submitted excerpts from her deposition testimony in which she stated that the one time she asked defendant whether she was entitled to a portion of Richard's military retirement pension, he told her she had no such right because Richard was still on active duty. Marcella also submitted excerpts from defendant's deposition testimony where he discussed his knowledge and research as follows: "Mr. Watters: Q. Are you a regular reader of the advance sheets, say from 1971 up until now? [para. ] A. I read them. I get them in the office but I can't recall when I started getting them, frankly. Whether I got them in 1971, I don't know. I used to read the advance [***164] sheets all the time but I don't know when I got them. I still skim them, review them, when I can. [para. ] Q. You review the cases in your particular area of practice? [para. ] A. Yes, I do. [para. ] Q. That would include the domestic area, up until you stopped doing domestic work, or slowed down? [para.] A. Right. [para.] Q. As of 1971, what was your case authority for your position that when someone in the [*417] military service was on active duty that their pension was not community property, what was your authority? [para. ] A. I don't know what I checked with at that time. Probably the French case would be the authority. [para. ] Q. A 1941 case? [para. ] A. Whatever the date is. [para. ] Q. Sir, any other authority that you can cite me other than the French case for that belief that you had? [para. ] ... [para. ] A. I can't recall what else, what I might have looked up at that point. Might have been something else but I don't . . . [para. ] A. Well, this is again going back to my thinking, what I might have thought back then, and I'd have to say probably the same thing, that if a person has been in the military, active military duty, was not drawing his pension, that it was not an item to be divided at that time. [para. ] Q. This would be true when the person was in the service over twenty years, over twenty or under twenty years? [para. ] Mrs. Marrison: Q. Do you understand the question? [para. ] A. I presume he is asking what was in my mind at that time and I'm not sure in this case at that time what was in my mind. I'm not sure what I would have stated at that time. If you ask me the question in 1971, is that what you're asking?" Marcella further submitted a declaration by James J. Simonelli, which stated that he was an attorney with an extensive practice in family law since 1970, and that in 1971 attorneys in the family law field in the San Joaquin Valley uniformly claimed a community property interest in vested military retirement pensions. Simonelli further stated that had he been representing Marcella in November 1971, he would have advised her that she had some community property interest in Richard's vested military retirement pension and that the only issue as to that interest was whether federal law preempted state enforcement of such an interest. II The criteria on appeals from summary judgments are too familiar to need restatement. In brief, if the record discloses triable issues with respect to negligence, causation and damages, the judgment must be reversed. In Smith v. Lewis (1975) 13 Ca/.3d 349 [118 Cai.Rptr. 621, 530 P.2d 589, 78 A.L.R.3d 231} --a legal malpractice case based on an attorney's 1967 failure to claim a community property interest in the husband's vested retirement benefits -- we affirmed a judgment for plaintiff and rejected the defendant attorney's contention that he should not be liable for mistaken advice when well-informed lawyers in the community had entertained reasonable doubt at the time as to the proper resolution of the legal issue. We found the situation in no way analogous to that in Lucas v. Hamm (1961) 56 Ca/.2d 583 [**659] [15 Cal.Rptr. 821, 364 P.2d 685}, involving the esoteric subject of the rule against perpetuities. We conceded that in 1967 the law [*418] regarding the community character of the husband's federal pension was unsettled. We said, however: "If the law on a particular subject is doubtful or debatable, an attorney will not be held responsible for failing to anticipate the manner in which the uncertainty will be resolved. [Citation.] But even with respect to an unsettled area of the Page 4 38 Cal. 3d 413, *; 696 P.2d 656, **; 212 Cal. Rptr. 162, ***; 1985 Cal. LEXIS 268 law, we believe an attorney assumes an obligation to his client to undertake reasonable research in an effort to ascertain relevant legal principles and to make an informed decision as to a course of conduct based upon an intelligent assessment of the problem." (Id at pp. 358-359.) Smith v. Lewis, supra, I 3 Cal. 3d 349, is obviously of little help to defendant. His motion for summary judgment was, in fact, primarily based on Davis v. Damrell (1981) 119 Ca/.App.3d 883 [174 Cal.Rptr. 257] --a similar [***165) case in which Damrell, the wife's attorney, in 1970 failed to assert a community property interest in the husband's vested federal military retirement pension. The husband retired in 1973, and the wife filed suit against Damrell sometime thereafter. The Court of Appeal affirmed the summary judgment for Damrell on the ground that he had demonstrated compliance with the Smith v. Lewis standards by showing a thorough, contemporaneous research effort on an issue of unsettled law. He had submitted a declaration describing his detailed knowledge of legal developments and debate in the field. He traced his familiarity with the line of cases following the earlier French rule ( French v. French (1941) 17 Ca/.2d 775 [112 P.2d 235, 134 A.L.R. 366] [nonvested military pension was mere expectancy not subject to division as community property]), overruled in In reMarriage of Brown (1976) 15 Ca/.3d 838 [126 Cal.Rptr. 633, 544 P.2d 561, 94 A.L.R.3d 164}, and recounted his special interest in the Wissner case ( Wissner v. Wissner (1950) 338 US. 655 [94 L.Ed 424, 70 S.Ct. 398} [establishing the supremacy of a federal statute governing disposition of the proceeds of a military service life insurance policy]), which had motivated him to follow its progress from its inception. Defendant's reliance on Davis v. Damrell, supra, 119 Cal.App.3d 883, is ill-advised, since the differences between his professional conduct and that of the defendant in that case inexorably point to potential liability on defendant's part. In brief, in Davis the defendant attorney was thoroughly familiar with all the pertinent authorities, state and federal, and had reached the conclusion, based primarily on Wissner v. Wissner, supra, 338 US. 655, that vested military pension benefits were not subject to California community property rules. His decision not to claim a community property interest in the husband's military pension was not actionable, as it represented "a reasoned exercise of an informed judgment grounded on a professional evaluation of applicable legal principles." ( Id ., [**660] 119 Cal.App.3d at [*419] p. 888.) 2 Defendant, by contrast, relied on a single case -- French v. French (1941) 17 Ca/.2d 775 [112 P.2d 235, 134 A.L.R. 366} for the proposition that a nonmatured military pension was not subject to division on dissolution. At his deposition he never did answer the question whether he was aware that a military pension vests after 20 years of service, whether the serviceman retires or not. This would have been a vital point in his research, for in French v. French itself a dictum indicates that after retirement pay vests it becomes community property. ( Id at p. 778.) 3 He thus never even gave himself a chance to consider whether his client was entitled to a community share in monthly payments which, but for the husband's election not to retire, would have been vested pension payments. (See In re Marriage of Gillmore, supra, 29 Ca/.3d 418, 423; Waite v. Waite (1972) 6 Ca/.3d 461, 472 [99 Cal.Rptr. 325, 492 P.2d 13}.) 2 Amicus, appearing on behalf of defendant, argues that, were the rule otherwise, "[self-defensive] instincts would encourage lawyers to provide their clients with the most popular perception of the law rather than their own views. Candor and creativity would be replaced by consensus. Such a rule would be neither in the interest of clients nor lawyers." Brave words, but one suspects that a client whose interests coincide with the popular conception . of the law would expect his attorney to advance them, particularly if the consensus is shared by the judiciary. 3 Presumably the same dictum was belatedly discovered by the defendant in Smith v. Lewis. (See Smith v. Lewis, supra, 13 Ca/.3d at p. 358, fn. 7.) (1) In sum, this is not a case where the defendant attorney, basing his judgment on all available data, made a rational professional judgment not to claim an interest in the husband's pension. Rather, he acted -- more precisely, failed to act -- on an incomplete reading of a single case, without appreciating the vital difference between a member of the armed forces who has not yet served long enough to be eligible to retire and one who has but chooses to stay in the service. As far as the issue of federal preemption is concerned, the record does not show that he ever considered it. [***166] In sum, the record on which the motion for summary judgment was argued presented a triable issue of negligence. III The question whether the defendant's negligence caused damage in some amount need not detain us long. Footnote 9 to Smith v. Lewis, supra, 13 Cal. 3d at pages 360-361, makes this an a fortiori case. (See also Martin v. Hall (1971) 20 Cai.App.3d 414, at pp. 423-424 [97 Cal.Rptr. 730, 53 A.L.R.3d 719].) Nor-- the arguments based on McCarty v. McCarty (1981) 453 US. 210 [69 Page 5 38 Cal. 3d 413, *; 696 P.2d 656, **; 212 Cal. Rptr. 162, ***; 1985 Cal. LEXIS 268 L.Ed2d 589, IOI S.Ct. 2728}, aside-- do we understand defendant to claim otherwise. [*420) IV McCarty v. McCarty, supra, decided on June 26, 1981, held that the application of community property principles impermissibly conflicts with the federal military retirement scheme. This, of course, happened a decade after defendant had represented plaintiff. Nor, unlike the defendant attorney in Davis v. Damrell, supra, 119 Cal.App.3d 883, had defendant anticipated this development. (2) Nevertheless he seeks to take advantage of McCarty in two ways: first, he argues that had he asserted a community property interest in Richard's pension, the United States Supreme Court case which invalidated any favorable ruling by a California court might have been Aloy v. Aloy, rather than McCarty v. McCarty; second, he argues that it simply cannot be actionable malpractice not to assert a claim which is eventually found to be invalid. A Defendant's first argument assumes, of course, that McCarty v. McCarty once and for all settled the question of Colonel McCarty's pension in his favor. Solely because we happen to know judicially that the McCarty controversy is far from over and do not wish to make any unnecessary statement which might affect its outcome, we shall assume defendant's hypothesis to be true. • 4 We know nothing about the details of the continuing McCarty litigation. It seems a fair guess, however, that it is somehow affected by the passage of the Federal Uniformed Services Former Spouses' Protection Act of 1982. (Pub.L. No. 97-252, tit. X.) It is, of course, 100 percent speculation whether the mythical Aloy v. Aloy (197 ) U.S. , would have triggered similar federal legislation. Assuming further that it is a legitimate subject of inquiry whether, at the critical time, the early '70's, the United States Supreme Court would have granted certiorari on the issue whether states could hold military pensions to be community property, all the available evidence is negative. After we first decided in favor of the nonmember spouse in Fithian, certiorari was denied ( Fithian v. Fithian (1974) 4I9 US. 825 [42 [**661] L.Ed.2d 48, 95 S.Ct. 4I}), as was a petition for rehearing. (Fithian v. Fithian, supra, at p. 1060 [42 L.Ed.2d 657,95 S.Ct. 644].) Shortly thereafter we reaffirmed Fithian in In re Marriage of Mi/han (1974) 13 Ca/.3d I29 [II7 Cal.Rptr. 809, 528 P.2d I145]. Again certiorari was denied. ( Milhan v. Milhan (1975) 42I US. 976.) Nothing in the Aloy v. Aloy litigation suggests to us that it was [*421] more likely than Fithian or Milhan to persuade the high court that the military pension issue was one whose time had come. 5 5 It is the repeated denial of certiorari which distinguishes this case from Martin v. Hall, supra, 20 Cal.App.3d 414, 423-424. There an attorney retained to represent a client accused of crime, failed to assert the, under the circumstances, plausible bar of the multiple prosecution aspect of Penal Code section 654. His omission took place after we had hinted in Neal v. State of California (1960) 55 Ca/.2d II, 2I [9 Cal.Rptr. 607, 357 P.2d 839}, that section 654 might preclude multiple prosecutions even in situations in which multiple punishment would be permissible. Kellett v. Superior Court (1966) 63 Ca/.2d 822 [48 Cal.Rptr. 366, 409 P.2d 206}, however, which eventually so held, was still some years down the road. On the issue of causation, the Court of Appeal held that it had "no reason to suppose that the result in a hypothetical Martin v. Superior Court would have been different." Here there is every reason to suppose that Aloy v. Aloy would not have escaped the confmes of California. [***167] B Finally we tum to the argument that the summary judgment was correct because the claim which defendant negligently failed to assert in 1971 luckily turned out to be worthless in 1981 -- the serendipity defense. This argument is not based on any theory that in point of fact Marcella would not have benefited fmancially had a community property claim to Richard's pension rights been asserted in 1971. (See pt. III, ante.) Rather, defendant simply asserts that he was under no "duty to secure for plaintiff benefits to which she was not legally entitled." 6 6 Amicus for defendant makes the same point more subtly by distinguishing between "fault" -- conceded-- and "error"-- disputed. It is evident from the way defendant makes his point -- "benefits to which she was not legally entitled" -- that he assumes as a premise of his argument that McCarty has been retroactively applied and that, therefore, in a real sense McCarty "was" the law 10 years before it was decided, when defendant acted for Marcella. Whatever may be said in favor of defendant's theory were this premise correct, the fact is that no case within our memory has received less retroactive application than McCarty. Starting with the last paragraph of the McCarty opinion itself, the judicial and legislative branches, state and federal, cooperated in a massive and Page 6 38 Cal. 3d 413, *; 696 P.2d 656, **; 212 Cal. Rptr. 162, ***; 1985 Cal. LEXIS 268 largely successful drive to make McCarty disappear -- prospectively, presently and retroactively. Some highlights of that effort are noted below. 7 The result is that, for most [**662] [***168] purposes, McCarty [*422] not only is not the law but never really was. As one Court of Appeal put it: "[There] is no longer any McCarty rule to be retroactively applied." ( In re Marriage of Frederick (1983) 141 Cal.App.3d 876, 880 [190 Cal.Rptr. 588].) It would be ironic if the chief legacy of McCarty were the immunization of legal malpractice by an attorney who never even pondered the issues which fathered McCarty's brief life. 7 I. The United States Supreme Court itself did not think too highly of the result it felt compelled to reach: "We recognize that the plight of an ex-spouse of a retired service member is often a serious one . . . . That plight may be mitigated to some extent by the ex-spouse's right to claim Social Security benefits, cf. Hisquierdo, 439 U.S., at 590, and to garnish military retired pay for the purposes of support. Nonetheless, Congress may well decide, as it has in the Civil Service and Foreign Service contexts, that more protection should be afforded a former spouse of a retired service member. This decision, however, is for Congress alone." ( McCarty v. McCarty, supra, 453 U.S. at pp. 235-236 [69 L.Ed2d at p. 608].) 2. Congress, as part of the fiscal 1983 defense bill passed title X of Public Law No. 97-252, the Federal Uniformed Services Former Spouses' Protection Act (FUSFSP A) which, in effect, nullified McCarty prospectively and, in part, retroactively. (See 10 U.S. C. § 1408 et seq.; § I 006 of the act allows enforcement of pre-McCarty judgments.) 3. Even without the benefit of or reliance on FUSFSPA, our cases uniformly held that pre-McCarty judgments treating military pensions as community property were not affected by McCarty. (In reMarriage of Camp (1983) 142 Cal.App.3d 217, 219-221 [191 Cal.Rptr. 45]; In reMarriage of Parks (1982) 138 Cal.App.3d 346, 348-349 [188 Cal.Rptr. 26}; In re Marriage of McGhee (1982) 131 Cal.App.3d 408, 411 [182 Cal.Rptr. 456]; In reMarriage of Fellers (1981) 125 Cal.App.3d 254, 256-258 [178 Cal.Rptr. 35}; In reMarriage ofSheldon (1981) 124 Cal.App.3d 371, 377-380 [177 Cal.Rptr. 380].) This was declared to be the law even if the case was still pending on appeal at the time of the McCarty decision ( In re Marriage of Sheldon, supra, 124 Cal.App.3d at pp. 380-384), unless the member had preserved the preemption issue. ( In re Marriage of Jacanin (1981) 124 Cal.App.3d 67, 70-71 [177 Cal.Rptr. 86].) Federal courts agreed. ( Wilson v. Wilson (5th Cir. 1982) 667 F.2d 497 [cert. den. 458 U.S. 1107 (73 L.Ed2d 1368, 102 S.Ct. 3485)]; Erspan v. Badgett (5th Cir. 1981) 659 F.2d 26, 28 [cert. den. 455 U.S. 945 (71 L.Ed.2d 658, 102 S.Ct. 1443)]; Marriage of Smith (W.D.Tex. 1982) 549 F.Supp. 761, 767.) 4. Courts of Appeal with rare unanimity, seized on FUSFSPA to obliterate all traces of McCarty. (In reMarriage of Sarles (1983) 143 Cal.App.3d 24, 26-30 [191 Cal.Rptr. 514]; In re Marriage of Ankenman (1983) 142 Cal.App.3d 833, 836-838 [191 Cal.Rptr. 292}; In re Marriage of Fransen (1983) 142 Cal.App.3d 419, 427 [190 Cal.Rptr. 885}; In re Marriage of Hopkins (1983) 142 Cal.App.3d 350, 353-361 [191 Cal.Rptr. 70}; In reMarriage of Frederick (1983) 141 Cal.App.3d 876, 879-880 [190 Cal.Rptr. 588}; In re Marriage of Buikema (1983) 139 Cal.App.3d 689, 691 [188 Cal.Rptr. 856}.) 5. This pretty much reduced the impact of McCarty to judgments which became fmal between June 25, 1981, the date of that decision, and February I, 1983, the effective date of FUSFSP A. The few unfortunate nonmember spouses whose judgments did became fmal between those dates, were given special permission by the California Legislature to ask that the judgments be modified "to include a division of military retirement benefits payable on or after February I, 1983, ... " (Civ. Code,§ 5124, added by Stats. 1983, ch. 775, § I, p. 2853.) It is noted that this court has yet to speak on the matters covered in this footnote. Our purpose in referring to the various authorities is not to present them as immutably correct, but as indicative of general dissatisfaction with McCarty. The judgment is reversed. DISSENT BY: REYNOSO DISSENT REYNOSO, J. I respectfully dissent. With the exception of the majority opinion, I know of no case which suggests that an attorney whose advice is correct may be held liable for malpractice. [*423] Relying on the standard developed in Smith v. Lewis (1975) 13 Cal.3d 349 [118 Cal.Rptr. 621, 530 P.2d 589, 78 A.L.R.3d 231] and its progeny, 1 the majority concludes that an attorney may face malpractice liability despite the fact that the law is ultimately re- Page 7 38 Cal. 3d 413, *; 696 P.2d 656, **; 212 Cal. Rptr. 162, ***; 1985 Cal. LEXIS 268 solved in accordance with the advice given. Although this application of the Smith standard follows logically from its emphasis on the duty of care owed a client, it nonetheless raises a troubling anomaly: where the law is unsettled, the attorney who gives advice later determined to be correct may well have committed malpractice, while the attorney whose advice turns out to be erroneous may avoid liability entirely. Prior to Smith attorneys in California were not liable "for lack of knowledge as to the true state of the law where a doubtful or debatable point [was] involved." ( Sprague v. Morgan (1960) 185 Cal.App.2d 519, 523 [8 Ca/.Rptr. 347}.) Smith modified that rule so that even with regard to an unsettled area of the law an attorney is obligated to "undertake reasonable research in an effort to ascertain relevant legal principles and to make an informed decision .... " ( Smith, supra, 13 Cal. 3d at p. 359.) The law cannot tolerate such incongruous results. As Justice Holmes so aptly observed long ago, "[the] life of the law has not been logic: it has been experience." (Holmes, Common Law (1881) p. 1.) Experience now tells us that the Smith standard, however rational and well-suited to its original purpose, no longer makes sense. We must therefore formulate a new standard that draws a fair and reasonable distinction between culpable and nonculpable practitioners. The defect inherent in the Smith standard, made ever clearer by today's majority opinion, is that the concept of legal error is confused with that of fault, converting a [**663] question of law into one of fact. Malpractice consists of four elements: duty arising out of the attorney-client relationship, breach of that duty, causation and damages. The second element breaks down further into two components: legal error and failure to use "such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake." (Lucas v. Hamm (1961) 56 Ca/.2d 583, 591 [15 Ca/.Rptr. 821, 364 P.2d 685}.) The first is a question of law, the second a question of fact. The question of whether an attorney erred necessarily must be resolved before any issue of negligence arises. An attorney who renders erroneous advice may not be negligent in doing so. (See Davis v. Damre/1 (1981) 119 Cal.App.3d 883 [174 Cal.Rptr. 257}.) A second attorney may fail to perform adequate research but somehow give his client accurate advice. Neither of these attorneys has committed malpractice. (See Mallen & Levit, Legal Malpractice (2d ed. 1981) § 250, p. 317.) [*424] Where the law is settled, it is relatively easy to determine whether the attorney's advice was erroneous. Problems arise only with respect to issues of law that are unresolved or in a state of flux at the time the advice is given. In either instance, however, the question of whether the advice was wrong is a question oflaw. [***169] Ironically, Smith itself reflects this basic approach. At the outset of the analysis the court stressed: "the crucial inquiry is whether his advice was so legally deficient when it was given that he may be found to have failed to use 'such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake.' [Citation.] We must, therefore, examine the indicia of the law which were readily available to defendant at the time he performed the legal services in question." (Jd, at p. 356.) (Italics added.) Thus, Smith initially proposed a two-step test for determining whether an attorney has been negligent. As noted, the threshold inquiry is a legal one, whether adequate legal authority existed at the time to support the advice given. Only when this question is answered in the negative is it necessary to move to the second part of the test, the factual inquiry as to whether the attorney breached the standard of care in rendering the erroneous advice. Applying this test to the case at bar reveals that Attorney Mash did not err in advising his client in 1971 that her husband's federal military pension was not community property. As the majority notes, "[in] 1971, the California view regarding the characterization of vested federal military retirement pensions as community or separate property was unsettled." (Ante, p. 416.) In fact, Mash relied on an opinion of this court, French v. French (1941) 17 Ca/.2d 775 [112 P.2d 235, 134 A.L.R. 366}, in concluding that the pension was not divisible. As French remained good law, this reliance was neither unreasonable nor erroneous. Because Mash committed no error, the malpractice claim must fail. It is imperative that a lawyer remain free to choose one of a number of reasonable and legally supportable solutions to an otherwise unsettled legal question and advise the client accordingly without facing a malpractice suit. Westlaw, 317 S.W.3d674 (Cite as: 317 S.W.3d 674) c Missouri Court of Appeals, Southern District, Division Two. BACA CHIROPRACTIC, P.C., Plaintiff-Respondent, v. Jerry COBB and Christie Cobb, Defendants-Appellants. No. SD 30271. Aug. 16, 2010. Background: Chiropractor brought collection action against husband and wife patients. The Circuit Court, Christian County, JohnS. Waters, J., granted summary judgment in favor of chiropractor in the amount of $6,533.17, and patients appealed. Holdings: The Court of Appeals, Gary W. Lynch, P.J., held that: (1) patients' counteraffidavits were properly before the Circuit Court, as required to challenge allegations fees were reasonable; (2) patients were qualified to assert chiropractor's fees were unreasonable; and (3) genuine issue of material fact as to reasonableness of chiropractor's fees precluded summary judgment. Reversed and remanded. West Headnotes [1] Account, Action On 10 €= 2 I 0 Account, Action On lOki Open Accounts in General 1 Ok2 k. Nature and grounds of action. Most Cited Cases An action on account is an action based in contract. [2] Account, Action On 10 €= 3 Page 1 10 Account, Action On lOki Open Accounts in General 1 Ok3 k. Requisites of account. Most Cited Cases There are three elements that must be proven in a suit on open account: ( 1) the defendant requested the plaintiff to furnish goods or services, (2) the plaintiff accepted the defendant's offer by furnishing the goods or services, and (3) the charges were reasonable. [3] Judgment 228 €= 185.1(1) 228 Judgment 228V On Motion or Summary Proceeding 228kl82 Motion or Other Application 228kl85.1 Affidavits, Form, Requisites and Execution of 228k185.1(1} k. In general. Most Cited Cases Trial court considered patients' summary judgment counteraffidavits as having been timely filed, and thus, counteraffidavits were properly before the trial court, by leave of court, as required to challenge chiropractor's allegations that the amount charged for his chiropractic treatments was reasonable or that the treatments were necessary, where the court articulated in its judgment that it had considered the patients' response, and the documents attached, which included patients' counteraffidavits. V.A.M.S. § 490.525(5)(2). [4] Judgment 228 €= 185.1(2) 228 Judgment 228V On Motion or Summary Proceeding 228kl82 Motion or Other Application 228kl85.1 Affidavits, Form, Requisites and Execution of 228kl85.1(2) k. Persons who may make affidavit. Most Cited Cases Judgment 228 €= 185.3(3) 228 Judgment © 2012 Thomson Reuters. No Claim to Orig~ US Gov. Works. 317 S.W.3d674 (Cite as: 317 S.W.3d 674) 228V On Motion or Summary Proceeding 228k182 Motion or Other Application 228k185.3 Evidence and Affidavits in Particular Cases 228k185.3(3) k. Accounting and accounts. Most Cited Cases Patients were qualified to assert in their summary judgment affidavits that chiropractor's charges for his services to patients was unreasonable, by reason of patients' personal knowledge of and personal experience with chiropractor's prior rates, and his promise to adhere to those prior rates during patients' post-accident treatment. V.A.M.S. § 490.525(6). [5] Judgment 228 C=> 181(15.1) 228 Judgment 228V On Motion or Summary Proceeding 228k181 Grounds for Summary Judgment 228k181(15) Particular Cases 228k 181 ( 15.1) k. In general. Most Cited Cases Genuine issue of material fact as to the reasonableness of fees charged by chiropractor precluded summary judgment in chiropractor's collection action. *675 James E. Corbett, David T. Tunnell, Matthew W. Corbett, and Daniel P. Molloy, Corbett Law Firm, Springfield, MO, for Appellant. Raymond Lampert, Springfield, MO, for Respondent. GARY W. LYNCH, Presiding Judge. Jerry Cobb and Christie Cobb (individually, "Jerry" and "Christie," and collectively, "the Cobbs") appeal the trial court's judgment granting Baca Chiropractic, P.C.'s motion for summary judgment and awarding it $6,533.17 in unpaid fees. The Cobbs argue that the trial court erred in granting summary judgment because there was a genuine dispute as to whether the fees charged by Baca Chiropractic were reasonable, and therefore it was Page2 not entitled to judgment as a matter of law. We agree, reverse the trial court's judgment, and remand for further proceedings. Factual and Procedural Background The Cobbs were in an automobile accident on May 29, 2004. Before that accident, from May 4, 2001, to December 20, 2002, both had received chiropractic treatment from Steven Baca, a chiropractor and the owner of Baca Chiropractic. Following the accident, the Cobbs again received treatment from Dr. Baca, this time from August 3, 2004, to March 3, 2005. Dr. Baca sent the Cobbs a letter requesting payment on their outstanding account balances for treatment following the accident, which amounted to $3,485.00 on Christie's account, and $1,415.00 on Jerry's account, for a total of $4,900.00. In that letter, Dr. Baca gave the Cobbs until January 2, 2008, to contact his office regarding payment of the accounts or he would tum the accounts over to his collections attorney. On January 10, 2008, Creditors Financial Services, L.L.C., sent the Cobbs a letter demanding payment in the amount of $6,533.17; that letter did not contain an itemization of the charges. *676 The following month, Baca Chiropractic filed a two-count petition against the Cobbs. Count I alleged that the Cobbs owed Baca Chiropractic $6,533.17, which included "reasonable collection fees," and that both individuals should be held liable for the entire amount. Count II alleged that the Cobbs were unjustly enriched by accepting Dr. Baca's treatment without submitting payment. Attached to the petition was the sworn affidavit of Dr. Baca averring that he had provided the requested services, that his fees were reasonable, and that the Cobbs refused to pay; an "itemized and true copy of the account[s]"; a "Doctor's Lien" relating to Christie and a "Clinic Lien" relating to Jerry; health history questionnaires for both Cobbs; a request for Jerry's medical records; and the two collection letters described supra. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 317 S.W.3d674 (Cite as: 317 S.W.3d 674) In their answer, the Cobbs contended that the fees sought were unreasonable as the fees were the product of "price gouging," that they were charged different rates before and after their accident, that Baca Chiropractic charged the higher rate after the accident because it "thought it could engage in price gouging," that they were not made aware of the price difference until after their treatment, and that they would not have continued with treatment from Dr. Baca had they known about the increased prices. Baca Chiropractic then filed a motion for summary judgment, arguing that [t]he [Cobbs] have admitted in their pleadings and in discovery that Baca offered and they accepted the services and they promised to pay the bill. They have not contradicted the reasonable charges affidavit. There is therefore no genuine issue of material fact and the Court should enter judgment in favor of [Baca Chiropractic] for the full amount due plus attorney fees. Baca Chiropractic went on to argue that, even though "[i]n their answer, the [Cobbs] denied that [the] charges are reasonable[, n]evertheless they have not provided the affidavit required under § 490.525.2 to rebut the established presumption of reasonableness. FNl Because [Baca Chiropractic] has filed the required affidavit there is sufficient evidence to support that the charges were reasonable." Accompanying Baca Chiropractic's motion for summary judgment was "Plaintiff's Statement of Facts," which alleged three facts: "1. [The Cobbs] requested that [Baca Chiropractic] provide them chiropractic services, and [Baca Chiropractic] provided said services to [the Cobbs]"; "2. [Baca Chiropractic's] charges for said services were reasonable[;]" and "3. Said charges were not paid." These facts were supported by citation to the pleadings, Dr. Baca's affidavit, and deposition testimony of both Jerry and Christie, portions of which were also attached to the motion for summary judgment. FN1. All statutory references are to RSMo Page3 Cum.Supp.2004, unless otherwise indicated. The Cobbs filed their response to the motion for summary judgment again asserting the unreasonableness of Dr. Baca's charges. Attached to this motion were Jerry's affidavit, Christie's affidavit, and itemized billing statements from Baca Chiropractic from both before and after the automobile accident. Along with their response to the motion for summary judgment, the Cobbs also filed a "Motion for Leave of Court to File Counteraffidavits Pursuant to RSMo. § 490.525.5 Out of Time." The counteraffidavits referred to in and attached to this motion were the same affidavits of Jerry and Christie that were referenced in and *677 attached to their response to the motion for summary judgment. Jerry's and Christie's affidavits aver that Dr. Baca charged them different rates after the accident than he had charged before the accident, that Dr. Baca had represented to the Cobbs that he would charge them the same rates as he had charged before the accident, that the ultimate fees sought were unreasonable, that neither Christie nor Jerry would have treated with Dr. Baca had they known what the charges would be, and that they believed Dr. Baca charged higher rates because he knew an insurance company would be paying the bill. The trial court granted Baca Chiropractic's motion for summary judgment and entered judgment accordingly on December 3, 2009. In its judgment, the trial court awarded Baca Chiropractic $6,533.17, the amount requested in its petition, against the Cobbs. This appeal timely followed. Standard of Review In reviewing a trial court's grant of a motion for summary judgment, "we employ a de novo standard of review." Neisler v. Keirsbilck, 307 S.W.3d 193, 194 (Mo.App.2010) (citing City of Springfield v. Gee, 149 S.W.3d 609, 612 (Mo.App.2004)). As such, we will not defer to the trial court's decision, © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 317 S.W.3d674 (Cite as: 317 S.W.3d 674) Murphy v. Jackson Nat'/ Life Ins., Co., 83 S.W.3d 663, 665 (Mo.App.2002), but rather, we will use the same standards the trial court should have used in reaching its decision to grant the motion for summary judgment. Stormer v. Richfield Hospitality Servs., Inc., 60 S.W.3d 10, 12 (Mo.App.2001). "We view the record in the light most favorable to the party against whom judgment was entered, and we accord that party the benefit of all inferences which may reasonably be drawn from the record." Neisler, 307 S.W.3d at 194-95 (citing ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. bane 1993)). "The propriety of summary judgment is purely an issue of law." ITT Commercial Fin. Corp., 854 S.W.2d at 376. Discussion In their sole point relied on, the Cobbs contend that the trial court erred in granting Baca Chiropractic's motion for summary judgment because there was a genuine issue of material fact as to whether its charges were reasonable. We agree. To be entitled to summary judgment under Rule 74.04 as a claimant, the movant must establish that (1) it is entitled to judgment as a matter of law and (2) there is no genuine dispute as to the material facts upon which it would have the burden of persuasion at trial.... Once the movant has made this prima facie showing as required by Rule 74.04, the non-movant must demonstrate that one or more of the material facts asserted by the movant as not in dispute is, in fact, genuinely disputed.... The non-moving party may not rely on mere allegations and denials of the pleadings, but must use affidavits, depositions, answers to interrogatories, or admissions on file to demonstrate the existence of a genuine issue for trial. Midwestern Health Mgmt., Inc. v. Walker, 208 S.W.3d 295, 297 (Mo.App.2006) (internal citations omitted). Here, in order to make a prima facie case for summary judgment on its open account action, Baca Chiropractic was required to plead in its sumPage4 mary judgment motion all of the facts necessary to establish each and every element of its claim, referencing any pertinent pleadings, discovery, or affidavits. ITT Commercial Fin. Corp., 854 S.W.2d at 380. *678 [1][2] "An action on account is an action based in contract." Midwestern Health Mgmt., Inc., 208 S.W.3d at 297 (citing Heritage Roofing, L.L.C. v. Fischer, 164 S.W.3d 128, 133 (Mo.App.2005); St. Luke's Episcopal-Presbyterian Hosp. v. Underwood, 957 S.W.2d 496,498 (Mo.App.1997)). There are three elements that must be proven in a suit on open account: "(1) the defendant requested the plaintiff to furnish goods or services, (2) the plaintiff accepted the defendant's offer by furnishing the goods or services, and (3) the charges were reasonable." Id. In its motion for summary judgment, Baca Chiropractic alleged all three of these elements with references to the applicable documents, including Dr. Baca's affidavit, which stated that the fees Baca Chiropractic charged the Cobbs for chiropractic services "were reasonable[.]" Dr. Baca's affidavit was the only evidence offered by Baca Chiropractic in support of its contention that the fees it charged the Cobbs were reasonable. In their response, the Cobbs admitted both that they had requested treatment from Dr. Baca and that treatment was provided; the only element of Baca Chiropractic's claim that they disputed was that the charges were reasonable. Section 490.525 provides that, [ u ]nless a controverting affidavit is filed as provided by this section, an affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a fmding of fact by judge or jury that the amount charged was reasonable or that the service was necessary. Section 490.525.2. Thus, as expressly provided © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 317 S.W.3d674 (Cite as: 317 S.W.3d 674) in this statute, absent a "controverting affidavit," Baca Chiropractic's use of Dr. Baca's affidavit as to the reasonableness of the charges provided sufficient evidence to support its motion for summary judgment. The Cobbs, however, filed a controverting affidavit. Section 490.525 states: 5. A party intending to controvert a claim reflected by the affidavit shall file a counteraffidavit with the clerk of the court and serve a copy of the counteraffidavit on each other party or the party's attorney of record: (1) Not later than: (a) Thirty days after the day he receives a copy of the affidavit; and (b) At least fourteen days before the day on which evidence is first presented at the trial of the case; or (2) With leave of the court, at any time before the commencement of evidence at trial. Section 490.525.5. [3] Baca Chiropractic first argues that the Cobbs filed their counteraffidavits out of time. The Cobbs admit that they did not file their counteraffidavits within the time required by section 490.525.5(1). The Cobbs contend, however, and we agree, that the trial court treated their counteraffidavits as having been timely filed, and thus the counteraffidavits were properly before the trial court by leave of court, in accordance with section 490.525.5(2). While there was no express ruling by the trial court on the Cobbs' motion for leave to file the counteraffidavits out of time, the trial court articulated in the judgment that it had "considered said Motion [for summary judgment] and [the Cobbs'] Response, the documents attached thereto, and the arguments of counsel." (Emphasis added). Because the documents attached to the Cobbs' response included the counteraffidavits, the trial Page5 court's consideration of them implicitly granted the Cobbs' motion for leave to file them out of time in *679 accordance with section 490.525.5(2). Cf Premier Golf Missouri, LLC v. Staley Land Co., L.L.C., 282 S.W.3d 866, 871 (Mo.App.2009) (grant of motion for summary judgment on petition implicitly denied motions for summary judgment on counterclaims involving the same issues and evidence); State v. Tidwell, 888 S.W.2d 736, 743 (Mo.App.l994) (grant of motion for continuance for the purpose of obtaining defendant's blood sample implicitly granted pending motion for order requiring defendant to submit blood sample); Midwest Materials Co. v. Viii. Dev. Co., 806 S.W.2d 477, 501 (Mo.App.l991) (finding of lack of bias and prejudice was implicit in the trial court's overruling of the motion for new trial). [ 4] Baca Chiropractic next argues that, even if the affidavits were considered timely, the Cobbs were not qualified to make such affidavits as they are not "experts" within the meaning of the statute. The statute, in pertinent part, provides: 6. The counteraffidavit shall give reasonable notice of the basis on which the party filing it intends at trial to controvert the claim reflected by the initial affidavit and must be taken before a person authorized to administer oaths. The counteraffidavit shall be made by a person who is qualified, by knowledge, skill, experience, training, education or other expertise, to testify in contravention of all or part of any of the matters contained in the initial affidavit. Section 490.525.6. Baca Chiropractic contends that "a non-expert is not competent to testify that a professional's charge for his services is unreasonable." The statute, however, is void of any reference to an "expert"; rather, the statute requires that a counteraffidavit "be made by a person who is qualified, by knowledge, skill, experience, training, education or other expertise, to testify in contravention of all or part of any of the matters contained in the initial af- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 317 S.W.3d674 (Cite as: 317 S.W.3d 674) fidavit." Section 490.525.6. Under the unique facts in this case, we find that the Cobbs were qualified to make such an affidavit by reason of their personal knowledge of and personal experience with Baca Chiropractic's prior rates and Dr. Baca's promise to adhere to those prior rates during the Cobbs' postaccident treatment. The facts in the counteraffidavits support that Jerry and Christie were treated by Dr. Baca for a lengthy period of time before their accident, during which they were charged a certain amount for particular services; after their accident, Dr. Baca told the Cobbs that he would charge the same amount for the same services; and Dr. Baca instead charged the Cobbs a higher amount than he had previously charged them for the same services. Under this set of facts, the Cobbs were uniquely qualified to specifically contest the reasonableness of Baca Chiropractic's fees based upon their knowledge and experience. [5] As the counteraffidavits were properly before the trial court, all that remains to be determined is whether the contents of the Cobbs' counteraffidavits raise a genuine issue of material fact as to the reasonableness of Baca Chiropractic's fees. "A 'genuine issue' exists where the record contains competent evidence of 'two plausible, but contradictory, accounts of the essential facts.' " Robinson v. Mo. State Highway & Transp. Comm'n, 24 S.W.3d 67, 75-76 (Mo.App.2000) (quoting /IT Commercial Fin. Corp., 854 S.W.2d at 382). "A 'genuine issue' is a dispute that is real, not merely argumentative, imaginary or frivolous." /d. Here, both Jerry and Christie aver that Dr. Baca told them "he would charge the same rates postaccident as he did pre-*680 accident[,]" but that Dr. Baca "charged higher rates for the treatment provided after the automobile accident compared with the rates he charged prior to the automobile accident." Belief of these facts would support an inference that Baca Chiropractic's fees in excess of those agreed to be charged are unreasonable. Therefore, these facts contradict the conclusory inference in Dr. Baca's affidavit that the fees were Page6 "reasonable." This contradiction raises a genuine issue of material fact as to the reasonableness of the fees and, accordingly, summary judgment was inappropriate. The Cobbs' point is granted. Decision The trial court's judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. SCOTT, C.J., and RAHMEYER, J., concur. Mo.App. S.D.,2010. Baca Chiropractic, P.C. v. Cobb 317 S.W.3d 674 END OF DOCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page I LexisNexis® DONNA BALL, as Administratrix With the Will Annexed, etc., Plaintiff and Respondent, v. DAN T. POSEY, Defendant and Appellant No. A026068 Court of Appeal of California, First Appellate District, Division Four 176 Cal. App. 3d 1209; 222 CaL Rptr. 746; 1986 Cal. App. LEXIS 2516 January 29, 1986 PRIOR HISTORY: [***1] Superior Court of the City and County of San Francisco, No. 780206, Morton R. Colvin, Judge. DISPOSITION: The judgments are affirmed. SUMMARY: CALIFORNIA OFFICIAL REPORTS SUMMARY An award of compensatory and punitive damages was entered against an attorney on causes of action for conversion, breach of fiduciary duty, and fraudulent disposition of a client's property. (Superior Court of the City and County of San Francisco, No. 780206, Morton R. Colvin, Judge.) The Court of Appeal affirmed, holding that, because defendant was a fiduciary as to his client, the jury was properly instructed that a presumption of undue influence arose from that relationship. The court also held that the jury was qualified to determine the value of legal services defendant had rendered the client, that the evidence that defendant had misappropriated an inheritance check was sufficient, and that the award of punitive damages bore a reasonable relationship to the compensatory damages in light of defendant's behavior. (Opinion by Channell, J., with Anderson, P. J., and Sabraw, J., concurring.) HEAD NOTES CALIFORNIA OFFICIAL REPORTS HEADNOTES Classified to California Digest of Official Reports, 3d Series (1) Appellate Review § 133 -- Review -- Standing to Allege Errors -- Estoppel and Waiver. --In an action against an attorney for conversion, breach of fiduciary duty and fraudulent disposition of a client's property, in which action the trial court entered a judgment based on the jury's verdict and subsequently entered a second judgment awarding prejudgment interest, defendant waived the interest award issue on appeal pursuant to Code Civ. Proc., § 906 (specifying what matters are reviewable), notwithstanding that he purported to appeal from both judgments, where he did not raise the interest award issue. (2a) (2b) (2c) Attorneys at Law§ 12 --Attorney-client Relationship-- Dealings With Clients -- Presumption of Undue Influence. --In an action against an attorney for conversion, breach of fiduciary duty and fraudulent disposition of a client's property, the jury was properly instructed that a presumption of undue influence applies to all dealings between an attorney and a client for the attorney's benefit, where defendant was hired to settle the estate of an elderly woman's deceased husband, where in all transactions forming the basis of the action defendant had himself appointed the woman's agent by reason of a signed power of attorney, and where at trial defendant admitted he never advised the client to obtain separate counsel when his name appeared as joint tenant on her bank accounts shortly before her death. [Undue influence in gift to testator's attorney, note, 19 A.L.R.3d 575.] (3) Attorneys at Law § 10 -- Attorney-client Relationship -- Fiduciary Nature. --The attorney-client relationship is a fiduciary relationship of the highest character. Page 2 176 Cal. App. 3d 1209, *; 222 Cal. Rptr. 746, **; 1986 Cal. App. LEXIS 2516, *** (4) Trusts § 9 - Transactions Between Persons in Trust Relationship - Presumption of Undue Influence. --When a fiduciary gains an advantage, a presumption of undue influence arises. (5) Trusts § 9 -- Transactions Between Persons in Trust Relationship - Presumption of Undue Influence. --To declare that an advantage obtained by a fiduciary must be shown to be unfair, unjust, or inequitable before the presumptions of Civ. Code, § 2235 (providing that transactions in which a trustee obtains an advantage over his beneficiary are presumed to be entered into without sufficient consideration and under undue influence), arise would result in the imposition of a condition that is not required by§ 2235. (6) Trusts § 9 - Transactions Between Persons in Trust Relationship - Disclosure. --The duty of a fiduciary embraces the obligation to render a full and fair disclosure to the beneficiary of all facts that materially affect his rights and interests. (7) Attorneys at Law § 12 -- Attorney-client Relationship - Dealings With Client - Duty to Inform. --An attorney must demonstrate that his client was fully informed in all matters related to any transactions between them. (Sa) (8b) Attorneys at Law § 32 -- Attorney-client Relationship -- Compensation of Attorneys - Determination of Amount of Reasonable Fee -- Expert Testimony. --Expert testimony as to the reasonable value of an attorney's legal services is unnecessary, and the trial court's fmdings of fact on this matter carmot be disturbed absent a clear abuse of discretion. Thus, in an action against an attorney for conversion, breach of fiduciary duty and fraudulent disposition of a client's property, an award to plaintiff based on the unjustified size of fees defendant collected from his elderly client to settle an estate, was not an abuse of discretion, notwithstanding that no expert testimony on this question was presented, where defendant claimed he gave his since-deceased client a bill in a specified amount but produced no evidence of this at trial, and where he never explained why the client paid substantially more than the bill. (9) Evidence § 81 - Opinion Evidence -- Expert Witnesses - Where Question Is Resolvable by Common Knowledge. --Expert testimony is not required where a question is resolvable by common knowledge. (10) Conversion § 6 -- Pleading and Proof - Sufficiency of Evidence - Misappropriation of Client's Money by Attorney. --In an action against an attorney for conversion, breach of fiduciary duty and fraudulent disposition of a client's property, there was sufficient evidence to support the jury's award based on defendant's misappropriation of an inheritance check, where defendant never deposited the proceeds of the check to the bank accounts of his client, an elderly woman in a convalescent hospital, and failed to produce evidence to prove his claim that he delivered the proceeds to her in cash. (11) Conversion § 7 -- Damages -- Allowing Defendant Credit for Tax Paid. --In an action against an attorney for conversion, breach of fiduciary duty and fraudulent disposition of a client's property, in which action plaintiff was awarded compensatory and punitive damages, it was not error to have refused to allow defendant credit for taxes paid on the money of his client which he held in joint tenancy with her, where he presented no evidence beyond his own testimony that he made any tax payment. (12) Damages § 24 -- Exemplary or Punitive Damages -- Relation to and Requirement of Actual Damages. --In an action against an attorney for conversion, breach of fiduciary duty and fraudulent disposition of a client's property, the award of$ 40,000 in punitive damages bore a reasonable relationship to the compensatory damages award of$ 43,746.73, in light of defendant's behavior, which consisted of overbilling and misappropriating the money of an elderly client. COUNSEL: Dan T. Posey, in pro. per., and Robert N. Beechinor for Defendant and Appellant. Bernadine Bushman Guidotti for Plaintiff and Respondent. JUDGES: Opinion by Charmell, J., with Anderson, P. J., and Sabraw, J., concurring. OPINION BY: CHANNELL OPINION [*1212) [**747] (1) (See fn. 1.) Dan T. Posey, a California attorney, appeals from judgments 1 against him for conversion, breach of fiduciary duty and fraudulent disposition of a client's property. He contends that: (I) the jury was improperly instructed on the presumption of undue influence; and (2) the plaintiff [**748] failed to sustain her burden of proof as to damages. Neither claim is meritorious, and consequently we affirm the judgments. The trial court entered a judgment based on the jury's verdict, and subsequently entered a second judgment awarding prejudgment interest. Though appellant purports to appeal from both Page 3 176 Cal. App. 3d 1209, *; 222 Cal. Rptr. 746, **; 1986 Cal. App. LEXIS 2516, *** judgments, he does not raise the interest award issue, and he therefore waives it. ( Code Civ. Proc., § 906.) [***2] I. Facts Respondent, Donna Ball, 2 is the administratrix with the will annexed of the estate of Jeannette Watkins Ball (hereafter Mrs. Ball). 2 Donna Ball is the daughter-in-law of decedent, Mrs. Ball. She is also the widow of Donald Ball, who was the son of Mrs. Ball and her husband, Arthur Cameron Ball. Mrs. Ball was an elderly woman in poor health. She suffered from a number of ailments for which she had been hospitalized at least 11 times in the last five years of her life. She took pain medication several times daily, occasionally combining it with alcohol. In 1975 and again in 1978, Arthur and Jeannette Ball had Posey prepare their reciprocal wills. Shortly after Arthur died in 1979, Mrs. Ball hired Posey to settle Arthur's estate. That estate consisted solely of community property, principally cash and securities, all held in joint tenancy with Mrs. Ball. Posey performed a number of routine tasks to terminate the joint tenancies. 3 Mrs. Ball paid $ 6,620 for these services, though Posey claims [***3] he gave her a bill for only $ 2,500. A jury found these services worth no more [*1213] than $ 1,135. (See fu. 4, post.) This was but one in a series of transactions, the most egregious of which are described below, that amounted to undue influence on Mr. Posey's part. 3 Posey also prepared a United States Estate Tax Return (Form 706) for Mrs. Ball's signature. However, this was unnecessary because Arthur's total gross estate was below the minimum to require such a return. I. In January 1980, Mrs. Ball signed a power of attorney, prepared by Posey, appointing him as her attorney in fact. 2. On March 4, 1980, Posey had Mrs. Ball send a letter, addressed to the manager of the apartment building, advising that he, Posey, should have access to her apartment in the event of her incapacity. She countersigned the letter. (Six months later Posey was careful to draw up, and have Mrs. Ball sign, a similar letter to the manager of the hotel that was then her residence.) 3. On the same day Posey presented [***4] her with the first letter to her landlord, he provided Mrs. Ball with a new will that named himself as executor. This, too, she signed. 4. Still the same day, March 4, 1980, documents were deposited with Mrs. Ball's bank naming Posey as the joint tenant on both her checking and savings accounts. They were signed by both Posey and Mrs. Ball. 5. In November, Mrs. Ball inherited$ 1,125. She endorsed the check she received and gave it to Mr. Posey to cash for her. Instead of giving her the proceeds, Posey bought a cashier's check payable to a third party. 6. On December 26, 1980, the day Mrs. Ball died, Posey improperly obtained from the county treasurer's office in San Francisco a consent to transfer all the money in Mrs. Ball's accounts to himself. On January 5, 1981, Posey withdrew all the money, over $ 37,000, from those accounts. Between the day Mrs. Ball died and the day Posey emptied all her accounts Posey had the apartment sealed, and refused access to Donna Ball and her children. This was despite Donna Ball's warning that maintaining the apartment would result in another month's rent being charged. At trial, the jury awarded $ 43,746.73 • compensatory damages on three [***5] causes of action: (1) for recovery ofthe $37,136.73 in Mrs. Ball's bank accounts; (2) for the proceeds of the$ 1,125 inheritance check; and (3) for the return of excessive fees charged [**749] in the amount of$ 5,620. The jury also awarded $ 40,000 punitive damages. 4 Full recovery on these three causes of action would have been$ 135 more than the verdict. It may be that out of the $ 6,620 paid for fees, the jury was requiring Posey to return slightly less than the $ 5,620 sought in the complaint. The record on this matter is not clear. [*1214] II. Presumptions ofUndue Influence (2a) Posey contends that the jury was improperly instructed that there was a presumption of undue influence. He argues that since he never entered into a contract, joint venture, or agreement with Mrs. Ball, any such presumption was incorrectly applied to his relationship with her. The cases, including those Posey cites, do not support this view. (3) First of all, Posey was Mrs. Ball's attorney. [***6] This alone creates a fiduciary relationship that should be of the highest character. ( Nee/ v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Ca/.3d 176, 188-189 {98 Cal.Rptr. 837, 491 P.2d 421}.) (2b) Further, at the time of all the transactions that form the basis of this case, Posey was Mrs. Ball's agent by reason of the signed power of attorney, as well as the fact that he was the named executor of her will. Page 4 176 Cal. App. 3d 1209, *; 222 Cal. Rptr. 746, **; 1986 Cal. App. LEXIS 2516, *** ( 4) When a fiduciary gains an advantage, a presumption of undue influence arises. ( Bradner v. Vasquez (1954) 43 Ca/.2d 147, 151 [272 P.2d 11}.) (5) "To declare that the advantage obtained must be shown to be unfair, unjust, or inequitable before the presumptions arise would result in the imposition of a condition which is not required by [Civil Code} section 2235." s ( Id, at p. 152.) 5 Civil Code section 2235 reads in pertinent part: "All transactions between a trustee and his beneficiary during the existence of the trust, or while the influence acquired by the trustee remains, by which he obtains any advantage from his beneficiary, are presumed to be entered into by the latter without sufficient consideration, and under undue influence." [***7] (2c) Posey cites Gold v. Greenwald (1966) 247 Cal.App.2d 296 [55 Cal.Rptr. 660], in support of his argument. However, that case stands for the proposition that a presumption of undue influence applies to all dealings between an attorney and a client for the attorney's benefit. At trial, Posey admitted that he had never advised Mrs. Ball to obtain separate counsel when his name appeared as the joint tenant on her bank accounts. (6) However, "[the] duty of a fiduciary embraces the obligation to render a full and fair disclosure to the beneficiary of all facts which materially affect his rights and interests." (Nee/ v. Magana, Olney, Levy, Cathcart & Gelfand, supra, 6 Ca/.3d at pp. 188-189.) Even the lack of full disclosure will amount to fraud, because the fiduciary's obligation is affirmative. (7) The attorney must demonstrate that the client was fully informed on all matters related to any transactions between them. ( Id, at p. 189; see also Gold v. Greenwald, supra, 247 Cal.App.2d at p. 306.) Posey has failed to do this. [*1215] Ill. Compensatory Damages (8a) Posey next [***8] contends that the jurors were not qualified to determine the value of the legal services he performed for Mrs. Ball. Posey claimed that he gave Mrs. Ball a bill for $ 2,500, but he produced no evidence of this at trial. Posey never explained why Mrs. Ball paid$ 4,120 more than the amount of his bill. Furthermore, Posey's calculation of his fee was based on the entire estate, not just that of Mrs. Ball's deceased husband. Posey even prepared and had Mrs. Ball sign unnecessary documents. (See fu. 3, ante.) Expert testimony was not needed to determine the value of the few proper services Mr. Posey performed. All the facts were before the jury, and it generously allowed him to keep over$ 1,000. (See fu. 4, ante.) "The correct rule on the necessity of expert testimony has been summarized by Bob Dylan: 'You don't need a weatherman to know which way the wind blows.' 6 (9) The California courts, although in harmony, express the rule somewhat [**750) less colorfully and hold expert testimony is not required where a question is 'resolvable by common knowledge'. [Citations omitted.]" (Jorgensen v. Beach 'N' Bay Realty, Inc. (1981) 125 Cal.App.3d 155, 163 [177 Cal.Rptr. 882}.) [***9) 6 In a footnote at this point, the court cites: "Bob Dylan, 'Subterranean Homesick Blues' from Bringing it All Back Home." More specifically, in Bunn v. Lucas, Pino & Lucas (1959) 172 Cal.App.2d 450 {342 P.2d 508], the court held that "[expert] testimony as to the reasonable value of attorney's legal services is unnecessary. [Citations.]" ( Id, at p. 468.) The trial court's fmdings of fact on this matter cannot be disturbed absent a clear abuse of discretion. (8b) This award constituted no such abuse of discretion. (10) Posey also contends that the jury had insufficient evidence that he misappropriated the inheritance check. We are not convinced. The proceeds of the check were never deposited in either of Mrs. Ball's bank accounts. Posey failed to produce evidence, such as a receipt, to prove his claim that he returned the proceeds to Mrs. Ball in cash. Like the jury, we fail to see why he would have delivered over $ 1,000 in cash to an [***10) elderly client who was then in a convalescent hospital, with or without a receipt. In fact, on the same day Posey cashed the check, he purchased another one, of a slightly higher denomination, payable to an unrelated third party. We think there was more than sufficient evidence to support the jury's award. [*1216] (11) Posey even argues that he should have been allowed credit for taxes paid on the money held in "joint tenancy." Other than his testimony, he had no evidence he made any tax payment, he cites no authority for this claim, and we fmd it wholly without merit. IV. Punitive Damages (12) Finally, Posey contends that the $ 40,000 award of punitive damages is excessive. He cites Rosener v. Sears, Roebuck & Co. (1980) 110 Cal.App.3d 740 [168 Cal.Rptr. 237], for the principle that an award of punitive damages must bear some reasonable relationship to actual damages. In Rosener, the jury awarded$ 158,000 compensatory damages and$ 10 million in punitive damages. The court held that this amount reflected passion and prejudice and that $ 2.5 million Page 5 176 Cal. App. 3d 1209, *; 222 Cal. Rptr. 746, **; 1986 Cal. App. LEXIS 2516, *** was more appropriate. ( Id, at pp. 746, 749-750.) We think (***11) that, in light of Posey's behavior, the award both bore a reasonable relationship to the compensatory damages award, and reflected the jury's conservatism and restraint. v. This court is outraged by the conduct of a member of the California State Bar, and astonished that he should have the temerity to appeal the judgments in this case. We have determined that the State Bar is appropriately investigating Posey for his conduct that necessitated this litigation. If this were not the case we would make such a recommendation. The judgments are affirmed. Westlaw, 985 S.W.2d485 (Cite as: 985 S.W.2d485) H Court of Appeals of Texas, San Antonio. Sandra BALLESTEROS, Appellant, v. James K. JONES and The Law Offices of Mann & Jones, Appellees. No. 04-91-00568-CV. Nov. 18, 1998. Rehearing Overruled Jan. 26, 1999. Client filed action against attorney asserting legal malpractice and liability under Deceptive Trade Practices-Consumer Protection Act (DTP A) concerning his representation in her prior action for common law marriage and divorce. After jury returned verdict in favor of client, the 111 th Judicial District Court, Webb County, Joe Kelly, J., granted attorney's motion for judgment notwithstanding the verdict (JNOV). Client appealed. On motion for rehearing en bane, the Court of Appeals, Angelini, J., held that: (1) evidence supported fmding on existence of common law marriage; (2) evidence supported finding that attorney was negligent in his representation of client; (3) contingent attorney fee contract in underlying action was valid and enforceable; (4) no evidence indicated that conduct of attorney amounted to anything more than negligence, which thus precluded finding of unconscionability on part of attorney for purposes of DTPA claim; and (5) amount of damages sustained by client presented fact issue for jury. Affirmed in part and reversed and remanded in part. West Headnotes [1] Appeal and Error 30 E:=> 863 30 Appeal and Error 30XVI Review 30XVI(A) Scope, Standards, and Extent, in Page 1 General 30k862 Extent of Review Dependent on Nature of Decision Appealed from 30k863 k. In general. Most Cited Cases To sustain the trial court's action in entering a judgment notwithstanding the verdict (JNOV), the reviewing court must determine that there is no evidence to support the jury's fmdings. [2] Appeal and Error 30 E:=> 934(1) 30 Appeal and Error 30XVI Review 30XVI(G) Presumptions 30k934 Judgment 30k934(1) k. In general. Most Cited Cases In reviewing a judgment notwithstanding the verdict (JNOV), the reviewing court views the evidence in the light most favorable to the jury's findings, considering only the evidence and inferences which support them, and rejecting the evidence and inferences contrary to those findings. [3] Judgment 228 E:=> 199(3.7) 228 Judgment 228VI On Trial of Issues 228VI(A) Rendition, Form, and Requisites in General 228k199 Notwithstanding Verdict 228k199(3.7) k. Where there is some substantial evidence to support verdict. Most Cited Cases It is error to grant a judgment notwithstanding the verdict (JNOV) when there is more than a scintilla of evidence to support the jury's finding. [4] Attorney and Client 45 E:=> 112 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45k112 k. Conduct of litigation. Most Cited Cases © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 985 S.W.2d485 (Cite as: 985 S.W.2d 485) In order to prevail on a legal malpractice claim which arises from prior litigation, the plaintiff has the burden to satisfy "suit within a suit" requirement by showing that but for the attorney's negligence, he or she would be entitled to judgment, and show what amount would have been collectible had he or she recovered the judgment. [5] Antitrust and Trade Regulation 29T E:= 256 29T Antitrust and Trade Regulation 29TIII Statutory Unfair Trade Practices and Consumer Protection 29TIII{D) Particular Relationships 29Tk254 Professionals 29Tk256 k. Legal professionals; attorney and client. Most Cited Cases (Formerly 92Hk6 Consumer Protection) Plaintiffs need not prove the "suit within a suit" element of legal malpractice claim when suing an attorney under the Deceptive Trade Practices-Consumer Protection Act (DTPA). V.T.C.A., Bus. & C.§ 17.41 et seq. [6] Marriage 253 E:= 50(4) 253 Marriage 253k50 Weight and Sufficiency of Evidence 253k50(4) k. Admissions and declarations. Most Cited Cases Evidence was legally sufficient to support jury's finding of agreement to be married which thus supported jury's finding on existence of common law marriage; although relationship began while both were married to others, couple lived together as husband and wife and represented themselves to others as being married after purported wife obtained divorce and after purported husband's wife died, and purported wife testified that they entered into agreement to be married after his first wife died. V.T.C.A., Family Code § 1.91(a)(2) (Repealed). [7] Marriage 253 E:= 22 253 Marriage Page2 253k22 k. Marriage by cohabitation and reputation. Most Cited Cases Valid common law marriage consists of three elements which must exist at the same time: (1) an agreement presently to be husband and wife; (2) living together in Texas as husband and wife; and (3) representing to others in Texas that they are married. V.T.C.A., Family Code § 1.91(a)(2) (Repealed). [8] Marriage 253 E:= 11 253 Marriage 253k4 Persons Who May Marry 253kll k. Prior existing marriage. Most Cited Cases If an impediment to the creation of a lawful marriage between the parties exists, as when one party is married to someone else, there can be no common law marriage, even if all three statutory elements are proven, but an ongoing agreement to be married may be shown by the circumstantial evidence of the parties continuing to live together as husband and wife and holding themselves out to others as being married after the removal of the impediment. V.T.C.A., Family Code § 2.22 (Repealed). [9] Marriage 253 E:= 50(5) 253 Marriage 253k50 Weight and Sufficiency of Evidence 253k50(5) k. Cohabitation and reputation. Most Cited Cases Evidence was factually sufficient to support jury's findings that parties held themselves out as married in state, that parties cohabited, and that parties' had agreement to be married, which thus supported jury's finding on existence of common law marriage; purported husband signed parties in at hotels in state as husband and wife, gave purported wife wedding ring which she wore, introduced her as his wife to customers, co-signed promissory note with her, and stayed at her house frequently, and purported wife testified that they entered agreement to be married after his first wife died. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 985 S.W.2d485 (Cite as: 985 S. W .2d 485) V.T.C.A., Family Code § 1.91(a)(2) (Repealed). [10] Marriage 253 €=> 22 253 Marriage 253k22 k. Marriage by cohabitation and reputation. Most Cited Cases Common law marriage requirement of holding out as married in state can be established by word or conduct. V.T.C.A., Family Code § 1.91(a)(2) (Repealed). [11] Appeal and Error 30 €=> 971(2) 30 Appeal and Error 30XVI Review 30XVI(H) Discretion of Lower Court 30k971 Examination ofWitnesses 30k971(2) k. Competency ofwitness. Most Cited Cases Evidence 157 €=> 546 157 Evidence 157XII Opinion Evidence 157XII(C) Competency of Experts 157k546 k. Determination of question of competency. Most Cited Cases Whether a witness qualifies as an expert is left to the discretion of the trial court, and its decision will not be overturned absent a clear abuse of discretion. [12] Evidence 157 €=> 538 157 Evidence 157XII Opinion Evidence 157XII(C) Competency of Experts 157k538 k. Due care and proper conduct in general. Most Cited Cases Lawyers who practiced in another city in state were qualified to give expert opinions in legal malpractice case on standard of care applicable to attorneys in county in which client's underlying action was tried, based on their testimony to having experience that allowed them to become familiar with standard of care by which a practitioner in county Page3 should be judged. [13] Attorney and Client 45 €=> 107 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45k1 07 k. Skill and care required. Most Cited Cases Attorney in a legal malpractice action is held to the standard of care that would be exercised by a reasonably prudent attorney. [14] Attorney and Client 45 €=> 129(3) 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45k129 Actions for Negligence or Wrongful Acts 45k129(3) k. Trial and judgment. Most Cited Cases Negligence instruction given in legal malpractice standard sufficiently defmed "negligence" and "ordinary care" in terms of degree of care and actions that attorney of ordinary prudence would have taken under similar circumstances in county. [15] Evidence 157 €=> 571(3) 157 Evidence 157XII Opinion Evidence 157XII(F) Effect of Opinion Evidence 157k569 Testimony ofExperts 157k571 Nature of Subject 157k571(3) k. Due care and proper conduct. Most Cited Cases Evidence was legally and factually sufficient to support fmding that attorney was negligent in his representation of client in her action for common law marriage and divorce concerning his advice that client accept proposed settlement; expert testimony indicated that attorney was negligent in advising client to accept settlement offer without investigating full extent of assets owned by couple, in failing to require purported husband to file sworn inventory, and in failing to get equitable portion of marital estate for client. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 985 S.W.2d485 (Cite as: 985 S.W.2d 485) [16] Antitrust and Trade Regulation 29T €= 256 29T Antitrust and Trade Regulation 29TIII Statutory Unfair Trade Practices and Consumer Protection 29TIII(D) Particular Relationships 29Tk254 Professionals 29Tk256 k. Legal professionals; attorney and client. Most Cited Cases (Formerly 92Hk6 Consumer Protection) Lawyer's unconscionable conduct is actionable under the Deceptive Trade Practices-Consumer Protection Act {DTPA). V.T.C.A., Bus. & C. § 17.45(5) (1994). [17] Antitrust and Trade Regulation 29T €= 136 29T Antitrust and Trade Regulation 29TIII Statutory Unfair Trade Practices and Consumer Protection 29TIII{A) In General 29Tkl33 Nature and Elements 29Tk136 k. Fraud; deceit; knowledge and intent. Most Cited Cases (Formerly 92Hk34 Consumer Protection) Showing under the Deceptive Trade PracticesConsumer Protection Act {DTP A), that the defendant took advantage of a consumer's lack of knowledge to a grossly unfair degree, does not depend on the defendant's intent but rather requires a showing that the resulting unfairness was glaringly noticeable, flagrant, complete, and unmitigated. V.T.C.A., Bus. & C. § 17.45(5) (1994). [18] Attorney and Client 45 €= 147 45 Attorney and Client 45IV Compensation 45k146 Contingent Fees 45k147 k. Requisites and validity of contract. Most Cited Cases Contingent attorney fee contract in action for establishment of common law marriage and divorce was valid and enforceable. [19] Attorney and Client 45 €= 147 45 Attorney and Client 45IV Compensation 45k146 Contingent Fees Page4 45k147 k. Requisites and validity of contract. Most Cited Cases Contingent attorney fees contract for one-third of recovery is not excessive. [20] Antitrust and Trade Regulation 29T €= 256 29T Antitrust and Trade Regulation 29TIII Statutory Unfair Trade Practices and Consumer Protection 29TIII{D) Particular Relationships 29Tk254 Professionals 29Tk256 k. Legal professionals; attorney and client. Most Cited Cases (Formerly 92Hk6 Consumer Protection) Payment of $90,000 under contingent attorney fee contract for one-third of recovery in action for establishment of common law marriage and divorce did not result in glaring and flagrant disparity between fee paid by client and the value of services received and did not support liability under Deceptive Trade Practices-Consumer Protection Act {DTPA) on unconscionable fee theory. V.T.C.A., Bus. & C. § 17.45(5)(B) (1994). [21] Antitrust and Trade Regulation 29T €= 365 29T Antitrust and Trade Regulation 29TIII Statutory Unfair Trade Practices and Consumer Protection 29TIII(E) Enforcement and Remedies 29TIII(E)5 Actions 29Tk365 k. Verdict, findings, and judgment. Most Cited Cases (Formerly 92Hk39 Consumer Protection) No evidence indicated that conduct of attorney amounted to anything more than negligence, which thus precluded jury's finding of unconscionability on part of attorney and warranted grant of judgment © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 985 S.W.2d485 (Cite as: 985 S.W.2d485) notwithstanding the verdict (JNOV) on client's claim under Deceptive Trade Practices-Consumer Protection Act (DTPA). V.T.C.A., Bus. & C. § 17.45(5)(A) (1994). [22] Appeal and Error 30 ~ 901 30 Appeal and Error 30XVI Review 30XVI(G) Presumptions 30k90 1 k. Burden of showing error. Most Cited Cases Appeal and Error 30 ~ 1079 30 Appeal and Error 30XVI Review 30XVI(K) Error Waived in Appellate Court 30kl079 k. Insufficient discussion of objections. Most Cited Cases Trial court's judgment granting motion for judgment notwithstanding the verdict (JNOV) did not specify on which of several asserted grounds it was granted, which thus obligated appellant to establish on appeal that judgment could not be supported on any of the grounds set out in motion or waive any ground not challenged. [23] Judgment 228 ~ 199(5) 228 Judgment 228VI On Trial of Issues 228VI(A) Rendition, Form, and Requisites in General 228kl99 Notwithstanding Verdict 228kl99(5) k. Motion for judgment in general. Most Cited Cases Objection to a jury charge based on legal insufficiency of the evidence is not a prerequisite for a postverdict motion for judgment notwithstanding the verdict (JNOV). Vernon's Ann.Texas Rules Civ.Proc., Rule 279. [24] Judgment 228 ~ 199(5) 228 Judgment 228VI On Trial of Issues PageS 228VI(A) Rendition, Form, and Requisites in General 228kl99 Notwithstanding Verdict 228kl99(5) k. Motion for judgment in general. Most Cited Cases Fact that attorney did not object to jury charge in legal malpractice action on ground that it called for immaterial jury finding on question of law did not result in waiver of his right to assert motion for judgment notwithstanding the verdict (JNOV) on that ground. [25] Antitrust and Trade Regulation 29T ~ 363 29T Antitrust and Trade Regulation 29TIII Statutory Unfair Trade Practices and Consumer Protection 29TIII(E) Enforcement and Remedies 29TIII(E)5 Actions 29Tk361 Proceedings; Trial 29Tk363 k. Questions of law or fact. Most Cited Cases (Formerly 92Hk40 Consumer Protection) Attorney and Client 45 ~ 129(3) 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45kl29 Actions for Negligence or Wrongful Acts 45kl29(3) k. Trial and judgment. Most Cited Cases Amount of damages sustained by client presented fact issue for jury in legal malpractice and Deceptive Trade Practices-Consumer Protection Act (DTPA) action against attorney. V.T.C.A., Bus. & C.§ 17.41 etseq. [26] Appeal and Error 30 ~ 215(1) 30 Appeal and Error 30V Presentation and Reservation in Lower Court of Grounds of Review 30V(B) Objections and Motions, and Rulings Thereon © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 985 S.W.2d485 (Cite as: 985 S.W.2d 485) 30k214 Instructions 30k215 Objections in General 30k215(1) k. Necessity of objection in general. Most Cited Cases Intermingling of matters for the jury with matters for the court alone in a jury charge is an error that is waived by failure to object to the charge. Vernon's Ann.Texas Rules Civ.Proc., Rule 274. [27] Attorney and Client 45 C=> 112 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45kll2 k. Conduct of litigation. Most Cited Cases Attorney and Client 45 C=> 129(3) 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45kl29 Actions for Negligence or Wrongful Acts 45kl29(3) k. Trial and judgment. Most Cited Cases In a legal malpractice suit based on negligence, the plaintiff is required to establish that any judgment that would have been obtained in the underlying action, but for the attorney's breach of duty, would have been collectible, and thus question of collectibility must either be included in damages question itself or it must be included in a separate jury instruction. [28] Attorney and Client 45 C=> 129(3) 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45kl29 Actions for Negligence or Wrongful Acts 45kl29(3) k. Trial and judgment. Most Cited Cases Client had burden of requesting jury question on the proper measure of damages in legal malpractice action. [29] Appeal and Error 30 C=> 1177(5) Page6 30 Appeal and Error 30XVII Determination and Disposition of Cause 30XVII(D) Reversal 30kll77 Necessity ofNew Trial 30kll77(5) k. Errors in rulings and instructions at trial. Most Cited Cases Damages 115 C=> 221(5.1) 115 Damages 115X Proceedings for Assessment 115k219 Verdict and Findings 115k221 Special Interrogatories and Findings by Jury 115k221(5) Preparation and Form of Interrogatories or Findings 115k221(5.1) k. In general. Most Cited Cases Question that fails to guide the jury on any proper legal measure of damages is fatally defective and requires remand for a new trial. [30] Appeal and Error 30 C=> 1064.1(7) 30 Appeal and Error 30XVI Review 30XVI(J) Harmless Error 30XVI( J) 18 Instructions 30kl064 Prejudicial Effect 30kl064.1 In General 30kl064.1(2) Particular Cases 30kl064.1(7) k. Damages and amount of recovery. Most Cited Cases Submission of erroneous jury question on damages in legal malpractice action, which failed to limit jury's consideration to amount client could have collected in settlement of underlying action, required remand for new trial on negligence claim under circumstances that damages were unliquidated and liability issues were contested. Rules App.Proc., Rule 44.l(b). *488 Marvin B. Zimmerman, Zimmerman & Zimmerman, P.C., San Antonio, Oscar C. Ganzales, Oscar C. Gonzales, Inc., San Antonio, John M. Pinckney, III, Wells, Pinckney & McHugh, P.C., © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 985 S.W.2d485 (Cite as: 985 S.W.2d 485) San Antonio, Judith R. Blakeway, Strasburber & Price, L.L.P., San Antonio, for Appellant. Timothy Patton, Pozza & Patton, San Antonio, Harlin C.Womble, Jr., Jordan & Shaw, P.C., Corpus Christi, for Appellees. Before PHIL HARDBERGER, Chief Justice, TOM RICKHOFF, Justice, ALMA L. LOPEZ, Justice, CATHERINE STONE, Justice, PAUL W. GREEN, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice, en bane. OPINION ON APPELLEE'S MOTION FOR REHEARING EN BANC KAREN ANGELINI, Justice. Appellee's motion for rehearing en bane is granted and the motion to resubmit is denied. Our opinion of September 29, 1993 and judgment of July 28, 1993 are withdrawn, and the following opinion and judgment are substituted. Nature of the case This is an appeal of a judgment notwithstanding the verdict in a legal malpractice and deceptive trade practices suit. Appellant, *489 Sandra Ballesteros, filed suit against appellees, James K. Jones and the Law Offices of Mann and Jones (collectively referred to as "Jones"), asserting that the settlement Jones had obtained on her behalf in a suit to establish a common law marriage and for divorce against Andres Monetou was inadequate and that Jones had charged her an excessive fee. The jury found that a common law marriage had existed between Ballesteros and Monetou, and found that Jones was negligent and had acted unconscionably. The trial court granted Jones's motion for judgment notwithstanding the verdict. Ballesteros filed this appeal. [1][2][3] To sustain the trial court's action in entering a judgment notwithstanding the verdict, the reviewing court must determine that there is no evidence to support the jury's findings. Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.l990); Page7 Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex.1986). "In making this determination, we view the evidence in the light most favorable to the jury's findings, considering only the evidence and inferences which support them, and rejecting the evidence and inferences contrary to those fmdings." Navarette, 706 S.W.2d at 309. It is error to grant a judgment notwithstanding the verdict when there is more than a scintilla of evidence to support the jury's finding. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 228 (Tex.1990). [ 4] In order to prevail on a legal malpractice claim which arises from prior litigation, the plaintiff has the burden to show that "but for" the attorney's negligence, he or she would be entitled to judgment, and show what amount would have been collectible had he or she recovered the judgment. Cosgrove v. Grimes, 774 S.W.2d 662, 666 (Tex.1989); Hall v. Rutheiford, 911 S.W.2d 422, 424 (Tex.App.-San Antonio 1995, writ denied); Jackson v. Urban, Coolidge, Pennington & Scott, 516 S.W.2d 948, 949 (Tex.Civ.App.-Houston [1st Dist.] 1974, writ ref'd n.r.e.). This is commonly referred to as the "suit within a suit" requirement. [5] Because the plaintiff must establish that the underlying suit would have been won "but for" the attorney's breach of duty, this "suit within a suit" requirement is necessarily a component of the plaintiff's burden on cause in fact. However, the plaintiff only has the burden to prove a "suit within a suit" in a negligence claim. Plaintiffs need not prove the "suit within a suit" element when suing an attorney under the DTP A. Latham v. Castillo, 972 S.W.2d 66, 69 (Tex.1998). Because Ballesteros alleged that Jones was negligent, the trial court correctly applied the "suit within a suit" concept when the first jury question asked if a common law marriage existed between Ballesteros and Monetou. Common Law Marriage [6] In her first point of error, Ballesteros argues that the trial court erred in granting Jones's motion © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 985 S.W.2d485 (Cite as: 985 S.W.2d 485) for judgment notwithstanding the verdict because the evidence was legally sufficient to support the jury's finding of a common law marriage. We agree. [7] A valid common law marriage consists of three elements: (1) an agreement presently to be husband and wife; (2) living together in Texas as husband and wife; and (3) representing to others in Texas that they are married. Russell v. Russell, 865 S.W.2d 929, 932 (Tex.1993); TEXBftAM.CODE ANN. § 1.9l(a)(2) (Vernon 1993). All three elements must exist at the same time. Bolash v. Heid, 733 S.W.2d 698, 699 (Tex.App.-San Antonio 1987, no writ). FNI. Act of June 2, 1969, 6lst Leg., RS., ch. 888, § 1.91, 1969 Tex. Gen. Laws 2707, 2717 (repealed 1997) (current version at TEX. FAM.CODE ANN. § 2.401 (a)(2) (Vernon Pamph.l998)). Section 1.19 was repealed and reenacted as section 2.401(a)(2) without substantive change. Viewing the evidence as we are required to do under the applicable standard of review, the facts pertaining to the alleged common law marriage are as follows. Monetou and Ballesteros began living together in 1970. Both were married to other persons at the time. Their relationship lasted 17 years. Shortly after the relationship began, Ballesteros and her husband divorced. In 1975, Ballesteros gave birth to a son fathered by Monetou. They named their son Andres, Jr. *490 Monetou's wife died in 1980. In 1983, Monetou legitimized his son by a decree of paternity. The decree recited that Monetou and Ballesteros were living together at the same address in Laredo. During their relationship, Ballesteros and Monetou traveled together and would sign hotel and airline documents "Mr. and Mrs. Monetou." Monetou supported Ballesteros, Andres, Jr., and Ballesteros's two other sons fmancially. Ballesteros testified that her older son considered Monetou a hero and that her second son called him "daddy." Page 8 According to Ballesteros, she and Monetou cohabited three or four times a week in Laredo, although Monetou also spent some time at his Nuevo Laredo residence with his other children. Monetou kept clothes at the house in Laredo; he would bathe, shave, and eat there; and he invited his other children over for visits and meals. Monetou paid for improvements to the house in Laredo. At times, Monetou and Ballesteros traveled together, accompanied by Monetou's other children. Monetou gave Ballesteros a diamond ring and a wedding band which she continued to wear after Monetou's wife died. Monetou introduced Ballesteros to others as his wife. They held themselves out as husband and wife in Laredo and while traveling. Monetou cosigned promissory notes for Ballesteros, including one that allowed her to pay off the mortgage on the house in Laredo that she and Andres, Jr. had shared with Monetou. Ballesteros testified that after Monetou's wife died, she and Monetou began spending more time together and that he moved his clothes into the house in Laredo and would stay there. During this time, according to Ballesteros, they also held themselves out to others as being married to one another. She testified that at this time they entered into an agreement to be married. We consider this as some evidence of the existence of an agreement to be married. Col/ora v. Navarro, 574 S.W.2d 65, 70 (Tex.l978); Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex.App.-Houston [1st Dist.] 1991, writ denied); Bolash, 733 S.W.2d at 699. Furthermore, the agreement to be married may be shown by circumstantial evidence or conduct of the parties. Russell, 865 S.W.2d at 933. Proof of cohabitation and representing to others that they were married may constitute circumstantial evidence from which a jury could fmd an agreement to be married. See id. [8] Jones argues that Monetou and Ballesteros could not be engaged in a common law marriage because the relationship was illicit in its origin. If an impediment to the creation of a lawful marriage between the parties exists, as when one is married © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 985 S.W.2d485 (Cite as: 985 S.W.2d 485) to another, there can be no common law marriage, even if all three elements are proven. Howard v. Howard, 459 S.W.2d 901, 904 (Tex.Civ.App.-Houston [1st Dist.] 1970, no writ). However, an ongoing agreement to be married may be shown by the circumstantial evidence of the parties continuing to live together as husband and wife and holding themselves out to others as being married after the removal of the impediment. TEX. FAM.CODE ANN. § 2.22 (Vernon 1993) FN2 ; Garduno v. Garduno, 760 S.W.2d 735, 741 (Tex.App.-Corpus Christi 1988, no writ). There is evidence that the parties lived together as husband and wife and represented themselves to others as being married after Monetou's wife died. As we have indicated, Ballesteros testified that at the time of the death of Monetou's wife they entered into an agreement to be married. This is some evidence of the required agreement. FN2. Act of June 2, 1969, 61st Leg., R.S., ch. 888, § 2.22, 1969 Tex. Gen. Laws 2707, 2719 (repealed 1997) (current version at TEX. FAM.CODE ANN. § 6.202 (Vernon Pamph.1998)). Section 2.22 was repealed and reenacted as section 6.202 without substantive change. Looking at the evidence in the light most favorable to the jury's findings, we find some evidence to support the jury's finding that Ballesteros and Monetou were engaged in a common law marriage. Thus, the evidence is legally sufficient and the motion for judgment notwithstanding the verdict was improper on this issue. We sustain the first point of error. Jones argues in his first two cross-points that the evidence is factually insufficient to support the jury's common law marriage finding. In considering a factual insufficiency challenge, we must consider and weigh all the evidence and reverse for a new trial only *491 if the challenged finding is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We may not substiPage9 tute our opinion for that of the jury merely because we would have reached a different result. Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex.1986). [9][10] Jones first contends that the evidence is factually insufficient on the requirement of holding out. The common law marriage requirement of holding out can be established by word or conduct. Estate of Giesse/, 734 S.W.2d 27, 31 (Tex.App.-Houston [1st Dist.] 1987, writ refd n.r.e.). Proof of holding out requires that it be done in Texas. TEXpJJAM.CODE ANN. § 1.91(a)(2) (Vernon 1993). Jones argues that the vast majority of the trips where Monetou and Ballesteros registered at hotels and with airlines as a married couple were in other states and in Mexico. Monetou denied that he represented to anyone else that he and Ballesteros were husband and wife. He testified that most of the reservations were in the name of "Mr. and Mrs. Monetou" because Ballesteros made them. The promissory notes that Monetou cosigned were signed after the relationship ended and were in Ballesteros's name. The couple never filed income tax returns as husband and wife. FN3. Act of June 2, 1969, 61st Leg., R.S., ch. 888, § 1.91, 1969 Tex. Gen. Laws 2707, 2717 (repealed 1997) (current version at TEX. FAM.CODE ANN. § 2.401 (a)(2) (Vernon Pamph.1998)). Section 1.19 was repealed and reenacted as section 2.401(a)(2) without substantive change. Monetou did acknowledge, however, that numerous trips he and Ballesteros took were within the State of Texas and many of these trips occurred after the death of his wife. Monetou testified he had signed in at hotels as "Mr. and Mrs. Monetou." He also admitted giving Ballesteros a diamond ring and a wedding band, which she wore after his wife's death. Bruce Adams, a business associate of Monetou, testified that after Monetou's wife died, Monetou introduced Ballesteros as his wife not only to him but also to customers in Adams's warehouse in Laredo. Adams testified that on business trips he took with Monetou and Ballesteros, Monetou would © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 985 S.W.2d485 (Cite as: 985 S.W.2d 485) introduce Ballesteros as his wife. Monetou testified that he co-signed one of the promissory notes to allow Ballesteros to pay off the mortgage on her house in Laredo so she and his son could keep the house. Jones next contends that the proof of cohabitation is factually insufficient. The evidence showed that Monetou is a Mexican national whose permanent residence is in Nuevo Laredo. Although he visited Ballesteros frequently at her Laredo home and spent as much as a week at a time with her there, he testified that he never intended to live with Ballesteros permanently in Laredo. He also testified that he saw other women during the time of his relationship with Ballesteros and thought she knew about this. We find the evidence ofMonetou's and Ballesteros's living and family arrangements in Laredo sufficient to establish the cohabitation element of a common law marriage. Monetou's business associate, Adams, testified that he went to their house in Laredo on numerous occasions in the evenings and saw Monetou there. He further testified that Monetou gave him the phone number of the Laredo house so that he could call Monetou there at night. In fact, Adams reached Monetou there by phone in the evenings. The evidence shows that Monetou stayed at the house in Laredo on a regular basis. Although he did frequently return to his house in Nuevo Laredo where the children of his first marriage lived, this in itself is not sufficient to destroy the pattern of living together. See Bolash, 733 S.W.2d at 699 (fmding evidence that the man, employed in Nigeria, stayed at the woman's residence during his periodic visits to Texas was sufficient to support the finding that they lived together as husband and wife "to the extent possible under the circumstances"). The decree legitimizing Andres, Jr. lists both parties as living at the same address in Laredo. Considering all the evidence as a whole, there is evidence of more than merely isolated instances of living together. Thus, we view the evidence as sufficient to establish holding out and coPage 10 habitation. Finally, Jones challenges the sufficiency of the evidence to support the agreement element*492 of a common law marriage. He refers to testimony by Monetou that he never intended to marry Ballesteros, that he told her he would not marry her, and that he made a conscious decision not to marry her when he acknowledged paternity of his child. Jones also points out that Monetou was to be ceremonially married to another woman on the day that he was served with Ballesteros's suit. Jones contends that this evidence indicated that Monetou never considered himself to be married to Ballesteros. Finally, there was testimony that Monetou hired prostitutes, sometimes flying them in from as far away as Mexico City, to engage in lesbian sex with Ballesteros while he watched. Although Ballesteros testified that she was not a willing participant in these activities, she also testified that the relationship ended when she would no longer satisfy Monetou's desires. Jones argues that this conduct is inconsistent with a man intending to transform an "illicit affair" into a marriage. We have already detailed Ballesteros's evidence regarding the agreement element of a common law marriage. The jury believed Ballesteros. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 28 (Tex.1993). It may resolve conflicts or inconsistencies in the testimony. Barrajas v. VIA Metro. Transit Auth., 945 S.W.2d 207, 209 (Tex.App.-San Antonio 1997, no writ). We cannot say the jury's finding of a common law marriage is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. We find that the evidence was factually sufficient. Therefore, we overrule Jones's first and second cross-points. Legal Malpractice and DTP A In the remainder of her points, Ballesteros argues that the evidence was legally sufficient to support the jury verdict in her favor on legal malpractice, violation of the DTPA, and damages. Jones © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 985 S.W.2d485 (Cite as: 985 S.W.2d48S) brings a number of cross-points, contending that if we reverse the judgment notwithstanding the verdict, we should remand for a new trial because the charge was defective and because the evidence was factually insufficient to support the jury's legal malpractice and DTP A fmdings. A review of the evidence in the light most favorable to the jury's findings shows that in the summer of 1988, Ballesteros consulted with attorney Shirley Hale because she wanted to file for divorce. Ms. Hale advised Ballesteros to request a monthly allowance until divorce papers were filed. At that point, Monetou and Ballesteros agreed she would not file for divorce and he would provide her with $1500 a month allowance. Shortly thereafter, Ballesteros became aware that Monetou was getting married. She then contacted Jones about getting a divorce. She had, on a previous occasion, talked to Jones about her common law marriage, and he told her if she ever decided to leave Monetou, she could get a divorce. Jones requested a $10,000 retainer, but Ballesteros told him she did not have the money. Instead, Ballesteros gave Jones $3,000 and she signed an agreement with Jones that stated: "for and in consideration of the services which the firm shall provide, it shall receive one-third ( 1/3 ) of any money or property awarded to me." Ballesteros spoke with Jones for about six hours about the case on January 12, 1989. Before the hearing, Ballesteros told Jones about having sex with other women in order to please Monetou. According to Ballesteros, Jones said that they could use the information about Monetou's sexual appetites to "hang him." He told Ballesteros he had handled another divorce case in Laredo that was probably worse than hers. After discussions in the judge's chambers before the hearing, Jones related to Ballesteros that Monetou had offered to settle for $100,000. Jones said that the offer was not good enough and recommended that she settle for $300,000. At that time, Ballesteros had no idea of Monetou's net worth. Within a few days the parties reached a settlePage 11 ment. According to Ballesteros, Jones told her it was a wonderful agreement and that she was rich woman. He told her it would be better for her to settle because a jury would fmd against a common law marriage based on the sexual encounters with other women. Jones testified that he believed *493 a jury would not believe that a man would treat his wife that way. Based on these representations by Jones, Ballesteros approved the settlement agreement, relinquishing her claims to a marriage with Monetou and, therefore, her claims to any community property. The settlement agreement, dated March 8, 1989, provided that Ballesteros would receive $90,000 in cash; Monetou would pay three promissory notes dated June and August 1988 in the principal amounts of $10,000, $65,000, and $69,573.55. The three notes represented debts on Ballesteros's house and business. Additionally, he would relinquish all interest in International Van Storage, the business operated by Ballesteros, and two lots in Laredo. Monetou would pay Ballesteros $1400 per month for life, secured by a lien on a warehouse in Laredo. In return, Ballesteros agreed to dismiss the divorce suit with prejudice. A certified public accountant valued the settlement at $384,839. When Ballesteros originally told Jones about the sexual encounters, she was willing and unafraid to go to court. According to Ballesteros, she would not have signed the settlement agreement had she known the extent of Monetou's assets. At the time the parties signed the settlement agreement, there was no discussion about Jones's fee. Later, when the checks came in, Jones told her he would take his fee out of the cash, which she understood would be one-third of the $90,000. Jones gave her a check for the first $1400 monthly payment and asked her to endorse the $90,000 check over to him. Jones said he would give her the balance as soon as expenses were cleared. When she left Jones's office, Ballesteros was under the belief she would receive $60,000 from Jones. Approximately one week later, Jones's recep- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 985 S.W.2d485 (Cite as: 985 S.W.2d 485) tionist contacted Ballesteros and told her they had a check for her. When Ballesteros went to Jones's office, she was given a check for $88.45 and an invoice. The invoice reflected that the amount was the balance from the $3,000 deposit she had given Jones. Ballesteros stated she was in shock after realizing she received $88.45 out of a $90,000 cash settlement. She wrote Jones asking him to reconsider his fee because of her desperate financial situation and indicated that time was of the essence. Ballesteros was then arrested for writing hot checks. After Ballesteros was released, she went to see Jones and he told her that the $90,000 was actually a reduced fee. He explained that under the contract, he was entitled to take one-third of the money and property she had received, which would be much more than $90,000. He told her they could go back to the original agreement but it would end up costing her more. At the time she signed the settlement agreement, Ballesteros was unaware of what property she might be entitled to. Although the temporary injunction provided for an inventory, Jones never obtained one. Jones also never took Monetou's deposition nor did he hire an investigator to do an asset search. Jones also never made a settlement demand. Jones did check the county tax assessor's office and determined that Monetou had no property in his name in Webb County. Jones said he did not think the first offer of settlement was worth taking, not because of any knowledge of Monetou's assets, but because he generally does not feel the first offer is worth taking in any litigation. In fact, Monetou did have extensive real property and business holdings in Texas and Mexico. At the time of the settlement, he had a $900,000 certificate of deposit and $15,000 to $20,000 in his checking account in a Laredo bank. Monetou estimated his net worth at that time was approximately $2,000,000. Ballesteros sued Jones under the DTPA alleging that his conduct in coercing her to settle her cause of action without determining the size of the estate acquired by the parties during their common Page 12 law marriage resulted in a gross disparity between the value received and what she should have received. She sued him for negligence and gross negligence in failing to investigate properly and determine the full extent of the assets owned by the community; failing to require Monetou to file an inventory; failing to perform routine discovery; failing to discover marital assets prior to settlement; failing to obtain a settlement which would award her an equitable portion of the community property; failing to protect her rights by *494 dismissing her case and by agreeing to entry of an order that declared no marriage existed; and charging her an unconscionable attorney's fee. In addition to finding that a common law marriage existed, the jury found that Jones knowingly engaged in unconscionable conduct that was a producing cause of Ballesteros's damages, that he was negligent and that his negligence was a proximate cause of her damages, and that he was grossly negligent. The jury awarded Ballesteros $560,000 in actual damages. She was awarded $60,000 for mental anguish, $100,000 in additional damages under the DTPA, and $200,000 as exemplary damages. She was also awarded attorney's fees of $100,000 through trial, $15,000 for appeals, $10,000 for making or responding to a writ of error to the supreme court, and $5,000 if the writ were granted. Negligence In her fourth point of error, Ballesteros alleges that the court erred in granting a judgment notwithstanding the verdict because the evidence was legally sufficient to support the jury's finding of legal malpractice. In Jones's fourth cross-point, he contends that the evidence was factually insufficient to support the jury's fmdings of liability. A legal malpractice action is based on negligence. Cosgrove, 774 S.W.2d at 664. To prove that Jones breached the standard of care and thus was negligent, Ballesteros called two family law practitioners, Christine Tharp and Frank Pennypacker, as expert witnesses. Because both Tharp and Pennypacker are San Antonio lawyers, Jones in his © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 985 S.W.2d485 (Cite as: 985 S.W.2d 485) fourth reply point, objects to their qualifications to express opinions concerning the standard of care applicable to an attorney practicing in Webb County. In Cook v. Irion, 409 S.W.2d 475, 478 (Tex.Civ.App.-San Antonio 1966, no writ), this court noted that an attorney practicing in a vastly different locality would not be qualified to second guess the judgment of an experienced attorney as to who should be joined as additional party defendants. In that malpractice action against an El Paso attorney, an attorney from Alpine was called as an expert witness. The opinion noted that Alpine was 220 miles from El Paso and that the population of Brewster County was 6,434, as compared to 314,070 in El Paso County. /d. The Alpine attorney had never tried a case in El Paso County. /d. at 477. Therefore, rather than testifying as to the care, skill, and diligence customarily exercised by El Paso County attorneys, he testified, over objection, concerning the requisite standard of care of the average general practitioner in Texas. /d. Jones points out that neither Tharp nor Pennypacker had ever tried a case, picked a jury, appeared before a judge, or participated in a contested evidentiary matter in Webb County. The attorneys testified that they were familiar with the standard of care required of a Webb County practitioner because they had worked on cases out of Webb County, they had consulted with Webb County attorneys and San Antonio attorneys who practice extensively in Webb County, they had consulted Webb County court personnel about local customs, and they had practiced before judges who try cases in Webb County. Tharp testified that she had tried cases before the trial judge in this case. [II] A party offering expert testimony has the burden to show that the witness is qualified, that is, that the witness possesses a higher degree of knowledge or skill than an ordinary person and that the knowledge or skill will assist the trier of fact. TEX.R. CIV. EVID. 702. Whether a witness qualifies as an expert is left to the discretion of the trial court, and its decision will not be overturned absent a clear abuse of discretion. Broders v. Heise, 924 S.W.2d 148, 151 (Tex.1996). Page 13 [12] The charge in this case limited its defmitions of negligence, ordinary care, and proximate cause to Webb County. Thus, the question is whether Ballesteros's experts were competent to address the standard of care existing in the Webb County legal community. Despite the fact that neither Tharp nor Pennypacker were Webb County practitioners, the trial court acted well within its discretion in allowing these two attorneys to testify as experts. They testified to having experience that allowed them to become familiar with the standard of care by which a Webb County practitioner should be judged. *495 Thus, Ballesteros met the threshold burden of showing that her experts possessed greater knowledge, skill, experience, and training than the jury, and that they were familiar with the standard of care that should exist in the Webb County legal community. At that point, the weight and credibility of the testimony was for the jury to determine. ITT Commercial Fin. Corp. v. Riehn, 796 S.W.2d 248, 250 (Tex.App.-Dallas 1990, no writ). [13][14] An attorney in Texas is held to the standard of care that would be exercised by a reasonably prudent attorney. Cosgrove, 774 S.W.2d at 664. The standard is an objective exercise of professional judgment. /d. at 665. Jones complains in his third cross-point that the negligence instruction was fundamentally defective because it failed to set out the Cosgrove standard of liability. He requested the following instruction: If an attorney makes a decision which a reasonably prudent attorney could make in the same or similar circumstances, it is not an act of negligence even if the result is undesirable. An attorney who makes a reasonable decision in the handling of a case is not negligent simply because the decision later proves to be imperfect. This language tracks language from Cosgrove. See id. The terms "negligence" and "ordinary care" were defined in the charge as follows: "Negligence," when used with respect to the conduct of James K. Jones, Jr., d/b/a/ Law Offices of Mann & Jones, means failure to use ordinary © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 985 S.W.2d485 (Cite as: 985 S.W.2d485) care, that is, failing to do that which an attorney of ordinary prudence would have done under the same or similar circumstances in Webb County, or doing that which an attorney of ordinary prudence would not have done under the same or similar circumstances in Webb County. "Ordinary care," when used with respect to the conduct of James K. Jones, Jr., d/b/a Law Offices of Mann & Jones, means the degree of care that an attorney of ordinary prudence could use under the same or similar circumstances in Webb County. In Cosgrove, the Supreme Court said that the instruction "should clearly set out the standard for negligence in terms which encompass the attorney's reasonableness in choosing one course of action over another." /d. The instructions in this case set out the proper standard of liability. In fact, the instruction sets out the standard in greater detail than the instruction reviewed in Cosgrove. See id. Crosspoint three is overruled. [15] In addressing Ballesteros's fourth point of error and Jones's fourth cross-point, we find that there was expert testimony that Jones was negligent in failing to investigate properly the full extent of the assets owned by Monetou and Ballesteros at the time of the settlement, in failing to require Monetou to file a sworn inventory, and in failing to get an equitable portion of the marital estate for Ballesteros. Jones argues that he had no duty to conduct discovery because he counseled Ballesteros concerning whether to forego legally available objectives or methods. Ballesteros testified, however, that Jones never told her about an inventory or any other discovery device. According to Ballesteros's experts, Jones could not have competently advised her to forego what she was foregoing since he had no idea of the extent of Monetou's assets. Ballesteros's experts testified it would have been a simple matter under Texas discovery rules to obtain information; he could have obtained an inventory, he could have taken depositions, he could have hired an investigator. A reasonably prudent attorney could not have Page 14 advised his client to accept a settlement under these circumstances. Having reviewed the evidence in the light most favorable to the jury finding, we fmd some evidence from which a jury could conclude that Jones was negligent in his representation of Ballesteros. Thus, we find the evidence legally sufficient and sustain Ballesteros's fourth point of error. Looking at all the evidence, we also fmd that the jury's finding of negligence is not so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Thus, the evidence is factually sufficient to support the jury's finding of negligence. Unconscionability In her second point of error, Ballesteros argues that the court erred in granting a *496 judgment notwithstanding the verdict because there was legally sufficient evidence to support the jury's fmding that Jones acted unconscionably, and did so knowingly. In Jones's fourth cross-point, he contends that the evidence was factually insufficient to support the jury's findings of liability. [ 16][ 1 7] The jury found that Jones engaged in an unconscionable action or course of action that was a producing cause of damages to Ballesteros. Unconscionable action or course of action means an act or practice which, to a person's detriment: (A) takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree; or (B) results in a gross disparity between the value received and consideration paid, in a transaction involving transfer of consideration. TEX. BUS. & COM.CODE ANN. § 17.45(5) (Vernon 1987).FN4 A lawyer's unconscionable conduct is actionable under the DTP A. See Latham, 972 S.W.2d at 68, DeBakey v. Staggs, 612 S.W.2d 924, 925 (Tex.1981). A showing under subparagraph A of section 17.45(5), that the defendant took advantage of a consumer's lack of knowledge to a grossly unfair degree, does not depend on the de- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 985 S.W.2d485 (Cite as: 985 S.W.2d 485) fendant's intent. It requires a showing that the resulting unfairness was "glaringly noticeable, flagrant, complete, and unmitigated." Chastain v. Koonce, 700 S.W.2d 579, 584 (Tex.l985). FN4. See Act of May 10, 1977, 65th Leg., R.S., ch. 216, § 1, 1977 Tex. Gen. Laws 600 (amended 1995) (current version at TEX. BUS. & COM.CODE ANN. § 17.45 (5) (Vernon Supp.l998)). In the recent case of Latham v. Castillo, the Texas Supreme Court discussed unconscionable conduct under the DTP A in a legal malpractice case. In Latham, the plaintiffs retained an attorney to file a medical malpractice claim against a hospital for causing the death of their young daughter. Latham, 972 S.W.2d at 67. The plaintiffs sued the attorney for negligence because he failed to file the lawsuit within the statute of limitations. Id. The plaintiffs also alleged unconscionable action under the DTP A because the attorney affirmatively represented to them that he had filed the lawsuit. Additionally, the plaintiffs alleged fraudulent misrepresentation and breach of contract. After the plaintiffs presented their case, the judge granted a directed verdict that the plaintiffs take nothing from the attorney. Id. Presumably, the judge granted the directed verdict because the plaintiffs offered no evidence that "but for" the attorney's negligence the medical malpractice suit would have been successful and damages would have been recoverable and collectible. The court of appeals affirmed the directed verdict on negligence and the plaintiffs did not appeal that issue. The court of appeals remanded the remaining issues. The supreme court found that the plaintiffs had offered some evidence on all elements of their DTP A cause of action. !d. at 70. As in our case, the plaintiffs in Latham argued that the lawyer's conduct was an "unconscionable action or course of action." The supreme court stated that the legislature enacted the DTP A to protect consumers against false, misleading, and deceptive business practices and unconscionable actions. "Attorneys can be found to have engaged in Page 15 unconscionable conduct by the way they represent their clients." Id. at 68. In Latham, the plaintiffs depended on the attorney to file their suit and the record reveals that the attorney told the plaintiffs he had filed the claim when actually he had not. The court stated that the attorney took advantage of the trust his clients placed in him as an attorney and found some evidence that the clients were taken advantage of to a grossly unfair degree. Id. at 69. The attorney argued that the plaintiffs' DTP A claim was essentially a dressed-up legal malpractice claim and the plaintiffs should have proven that they would have won the medical malpractice case in order to recover. !d. The court disagreed and stated that recasting the plaintiffs' claims as merely a legal malpractice claim would subvert the legislature's clear purpose of deterring deceptive practices. Id. The court stated that if the plaintiffs had only alleged that the attorney negligently failed to file their claim, the claim would only be one for legal malpractice. "It is the difference between negligent conduct and deceptive conduct. To recast this claim as one for legal malpractice is to ignore this *497 distinction." !d. The court concluded that the DTP A does not require the "suit within a suit" element when suing an attorney under the DTP A. !d. Both of Ballesteros's experts testified that $90,000 for the amount of work performed on the case was clearly excessive and unconscionable. Tharp testified that in her opinion Jones had done only about $3,500 worth of work. Jones's own records show he spent 52 hours on the case, in addition to 65 hours of associate's time. This averages out to a fee of $769.23 per hour. Tharp, a board certified family law specialist, testified that her hourly rate is $125. Both experts testified that contingent fee contracts in divorce actions, while not illegal, are not recommended and lead to an automatic conflict of interest between the attorney and client. [18][19][20] We cannot approve of contingent fee contracts in traditional divorce actions for the reasons mentioned by Ballesteros's experts. Further, while not in effect when the present agreement was © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 985 S.W.2d485 (Cite as: 985 S.W.ld 485) signed, our code of Professional Conduct is also instructive regarding the policy reasons that disfavor such fee arrangements in certain kinds of family law litigation. Contingent and percentage fees in family law matters may tend to promote divorce and may be inconsistent with a lawyer's obligation to encourage reconciliation. Such fee arrangements also may tend to create a conflict of interest between lawyer and client regarding the appraisal of assets obtained for client. See also Rule 1.08(h). In certain family law matters, such as child custody and adoption, no res is created to fund a fee. Because of the human relationships involved and the unique character of the proceedings, contingent fee arrangements in domestic relations cases are rarely justified. TEX. DISCIPLINARY R. PROF'L CONDUCT 1.04 cmt. 9, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon Supp.l998) (TEX. STATE BAR R. art. X, § 9). This case, however, was not a traditional divorce action since a recovery by the plaintiff depended on the establishment first of a common law marriage. While rarely justified in divorce actions, contingent fee contracts may be appropriate in a situation such as this. If the marriage is not established, the plaintiff may recover nothing, a situation differing sharply from a divorce suit involving a ceremonial marriage in which each party will obtain a recovery of some sort. The contingency fee contract between Jones and Ballesteros is valid and enforceable. Further, a one-third contingent fee contract is not excessive. See Kuhn, Collins & Rash v. Reynolds, 614 S.W.2d 854, 857 (Tex.Civ.App.-Texarkana 1981, writ refd n.r.e.). We therefore cannot say that there is a glaring and flagrant disparity between the fee paid by Ballesteros and the value of the services received. [21] We hold that the evidence is legally and factually insufficient to support a fmding for Ballesteros under section 17.45(5)(B). Because we find that the fee was not unconscionable, we must Page 16 find evidence, other than the fee agreement, to support the jury's finding under 17.45(5)(A). Therefore, we must find evidence that Jones took advantage of the lack ofknowledge, ability, experience, or capacity of Ballesteros to a grossly unfair degree. In her amended petition, Ballesteros alleges that the unconscionable conduct was the excessive fee Jones received in relation to the work he performed and the results he obtained. Ballesteros's experts testified that the fee was excessive and unconscionable. The record shows that the focus of Ballesteros's unconscionability claim was the fee agreement. In her brief, Ballesteros's unconscionability argument concerns the excessive attorney's fee issue. There was testimony from Ballesteros's experts, however, that Jones (1) failed to obtain a divorce for Ballesteros; (2) failed to obtain an inventory; and (3) urged a settlement without discovery of assets. They opined that this conduct constituted negligence and gross negligence. Thus, apart from the fee issue, evidence of Jones's negligence would also have. to support the jury finding on unconscionability. The Supreme Court in Latham drew a clear distinction between negligent conduct, which gives rise to recovery for the "suit within a suit" type of legal malpractice, and deceptive conduct which gives rise to recovery*498 under the DTP A for unconscionability and does not require the "suit within a suit" element. As the court stated in Latham, if the plaintiffs had only alleged that Latham negligently failed to timely file their claim, their claim would properly be one for legal malpractice. In this case Ballesteros alleged and offered proof that Jones was negligent in his representation of her and charged an unconscionable fee. There is no evidence that any of Jones's conduct amounts to anything more than negligence, which the supreme court in Latham said would require the "suit within a suit" proof. There is no evidence that this negligent conduct was deceptive conduct as contemplated by the supreme court in Latham. To find unconscionable conduct in this case would require re- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 985 S.W.2d485 (Cite as: 985 S.W.2d 485) casting the negligence claim as a DTPA claim. FN5 FN5. Although not applicable to this case, the DTP A was amended as of September I, 1995. The DTPA no longer applies to a "claim for damages based on the rendering of professional service, the essence of which is the providing of advice, judgment, opinion, or similar professional skill." TEX. BUS. & COM.CODE ANN.§ 17.49(c) (Vernon Supp.1998). However, an attorney may still be liable for an unconscionable action or course of action that cannot be characterized as advice, judgment, or opinion. Id. § 17.49(c)(3). The amendment supports the idea that unconscionable action is more than negligent conduct. Thus, we find the evidence legally and factually insufficient to support a fmding for Ballesteros under section 17.45(5)(A). We fmd that the judgment notwithstanding the verdict was proper because there is no evidence to support the jury's fmding on unconscionability. We overrule Ballesteros's second point of error and sustain Jones's fourth cross-point with regards to the jury's finding on unconscionability. Having found insufficient evidence of unconscionability, we need not address Ballesteros's remaining points of error concerning the sufficiency of the evidence to support a "knowing" violation of the DTP A, the award of mental anguish damages, and additional damages because they are dependent upon a fmding of unconscionability. We affrnn the judgment notwithstanding the verdict, that Ballesteros take nothing by way of her DTPA claim. Damages In her sixth point of error, Ballesteros alleges that the evidence was legally sufficient to support the jury's award of actual damages. Jones argues in his fifth reply point that Ballesteros has waived her right to challenge the judgment notwithstanding the verdict as it relates to the damages question. Page 17 In its answer to question six, the jury awarded Ballesteros $560,000 in actual damages, representing (1) the difference in the value of the settlement she received and the value of the settlement she should have received if her suit had been properly . prosecuted, and (2) the difference between the value of services rendered by her attorney and the amount of attorney's fees she paid. FN6 FN6. Question 6 reads: What sum of money, if any, if paid in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Sandra Ballesteros for her damages, if any resulting from the conduct of James K. Jones, Jr., d/b/a Law Office of Mann & Jones? Consider the following elements of damages and none other. Do not include interest on any amount of damages you fmd. a. The difference in value of the settlement received by Sandra Ballesteros in her cause of action against Andres Monetou because of the conduct of James K. Jones, Jr., d/b/a Law Offices of Mann & Jones and the value of the settlement that she should have received had her suit been properly prosecuted. The difference in value, if any, shall be determined at the time and place the settlement was made. b. The difference, if any between the attorney's fees charged Sandra Ballesteros by James K. Jones, Jr., for services performed in connection with the settlement of Sandra Ballesteros' claims against Andres Monetou and the value of those services. The difference in value, if any, shall be determined at the time and place the settlement was made. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 985 S.W.2d485 (Cite as: 985 S.W.2d485) Answer in dollars and cents for damages, if any. Answer: $560,000.00 [22] Jones's motion for judgment notwithstanding the verdict rested on several independent grounds. Because the trial court's judgment did not specify which grounds it was granted on, Ballesteros had the burden to establish that the judgment could not be supported on any of the grounds *499 set out in Jones's motion. Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991); Monk v. Dallas Brake & Clutch Serv. Co., Inc., 697 S.W.2d 780, 783-84 (Tex.App.-Dallas 1985, writ refd n.r.e.). Otherwise, Ballesteros has waived her right to question any ground not challenged. Monk, 697 S.W.2d at 784. Jones contends that Ballesteros has failed to challenge the grounds asserted in paragraph three of his motion. [23] Ballesteros, on the other hand, argues that Jones has waived his complaint because he failed to object to the charge on the ground urged in his motion for judgment notwithstanding the verdict. An objection to the charge based on legal insufficiency of the evidence is not a prerequisite for a postverdict motion for judgment notwithstanding the verdict. City of San Antonio v. Theis, 554 S.W.2d 278, 281 (Tex.Civ.App.-Tyler 1977, writ refd n.r.e.), cert. denied, 439 U.S. 807, 99 S.Ct. 64, 58 L.Ed.2d 100 (1978); TEX.R. CIV. P. 279. [24] Jones's complaints, however, are not related to the sufficiency of the evidence. He raises two complaints in paragraph three of his motion. Jones's initial complaint is that the answer to question 6(a) is immaterial because it asks the jury to decide a question of law-the value of the settlement Ballesteros would have received in a successful divorce action. Jones was not required to object to the charge to complain subsequently that a finding is immaterial. See Carey v. American Gen. Fire & Cas. Co., 827 S.W.2d 631, 632 (Tex.App.-Beaumont 1992, writ denied). A quesPage 18 tion erroneously calling on the jury to answer a question of law is classified as immaterial. See Cortimeglia v. Davis, 116 Tex. 412, 292 S.W. 875, 876 (1927); Portwood v. Buckalew, 521 S.W.2d 904, 912 (Tex.Civ.App.-Tyler 1975, writ refd n.r.e.). Jones has not waived this argument. [25] But we also hold that Ballesteros has not waived hers. She argued in her brief that the evidence is legally sufficient to support the jury's finding of damages and that the judgment should be entered on the jury's verdict. This must necessarily be viewed as an argument that it is the jury's function to determine the amount of those damages, and not a question of law for the court. Such an argument, of course, correctly states the law. See Westinghouse Elec. Corp. v. Pierce, 153 Tex. 527, 271 S.W.2d 422, 425 (1954) (amount of damages in a negligence case is a jury question); Country Roads, Inc. v. Witt, 737 S.W.2d 362, 365 (Tex.App.-Houston [14th Dist.] 1987, no writ) (amount of unliquidated damages rests primarily within the discretion of the jury). The case before us is not a divorce case in which a trial court must divide the marital estate. See TEX. F AM. CODE ANN. FN7 th thi . § 3.63 (Vernon 1993). Ra er, s ts a legal malpractice and DTP A case in which the amount of damages sustained by the plaintiff is a fact issue. See Cosgrove, 774 S.W.2d at 666 Gudgment rendered that plaintiff recover actual damages in accordance with jury verdict); Schlosser v. Tropoli, 609 S.W.2d 255, 259 (Tex.Civ.App.-Houston [14th Dist.] 1980, writ refd n.r.e.) Gury question properly submitted actual damages issue in legal malpractice case). FN7. Act of June 2, 1969, 61st Leg., R.S., ch. 888, § 3.63, 1969 Tex. Gen. Laws 2707, 2725 (repealed 1997) (current version at TEX. FAM.CODE ANN. § 7.001 (Vernon Pamph.l998)). Section 3.63 was repealed and reenacted as section 7.001 without substantive change. [26] Jones's second complaint in paragraph three of his motion is that disparate elements of the © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 985 S.W.2d485 (Cite as: 985 S.W.2d485) damages issue are improperly intermingled in a single answer. He argues that matters properly for the jury's determination (the difference between the attorney's fees charged and the value of the attorney services provided) are improperly intermingled with matters only the court could decide (the amount Ballesteros should have recovered in her divorce action). Intermingling is an error that is waived by failure to object to the charge. See Matthews v. Candlewood Builders, Inc., 685 S.W.2d 649, 650 (Tex.l985); Ked-Wick Corp. v. Levinton, 681 S.W.2d 851, 855 (Tex.App.-Houston [14th Dist.] 1984, no writ); TEX.R. CIV. P. 274. It is not necessary to challenge an argument waived by one's opponent. Even if this argument were not waived, Ballesteros's legal sufficiency argument must again be viewed as a challenge to Jones's assertion *500 that the actual damages are for the court alone to, decide. Reply point five is overruled. [27] In his fifth cross-point, Jones argues that question six improperly submitted the damage element because it failed to set forth the element of "collectibility." In a legal malpractice suit based on negligence, the plaintiff is required to establish that any judgment that would have been obtained in the underlying action, but for the attorney's breach of duty, would have been collectible. See Cosgrove, 774 S.W.2d at 666. Jones objected to the omission of the collectibility element. Although, a separate question on collectibility is not required, that element must either be included in the damages question itself or it must be included in an instruction. See Scholsser, 609 S.W.2d at 258-59. The measure of damages submitted by the trial court was clearly erroneous because it failed to limit the jury's consideration to the amount Ballesteros could have collected from Monetou in a settlement. [28][29] Ballesteros had the burden of requesting a jury question on the proper measure of damages. W.O. Bankston Nissan, Inc. v. Walters, 754 S.W.2d 127, 128 {Tex.1988). A question that fails to guide the jury on any proper legal measure of damages is fatally defective. Jackson v. Fontaine's Page 19 Clinics, Inc., 499 S.W.2d 87, 90 {Tex.1973). Remand for a new trial is required. See Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 166 (Tex.1982); !d. [30] A separate trial on unliquidated damages alone, however, may not be ordered if liability is contested. TEX.R.APP. P. 44.l{b); Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 662 (Tex.App.-El Paso 1989, writ denied). Because in this case the damages are unliquidated and the liability issues are contested, remand of the negligence claim is required. !d. We sustain Jones's fifth crosspoint. We need not address Ballesteros's remaining points concerning the sufficiency of the evidence to support the finding of gross negligence and the exemplary damages award because they are conditioned upon a finding of negligence. We affirm the judgment in part, that Ballesteros take nothing from Jones on her claim of unconscionability under the DTP A. We reverse and remand the judgment in part for a new trial on negligence. Tex.App.-San Antonio,1998. Ballesteros v. Jones 985 S.W.2d 485 END OF DOCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Westlaw, 824 So.2d 222, 27 Fla. L. Weekly D 1638 (Cite as: 824 So.2d 222) H District Court of Appeal of Florida, Second District. Toni T. BEHR, Appellant, v. Edward D. FOREMAN, individually, and Edward D. Foreman, P.A., a professional association, Appellees. No. 2D01-1897. July 19, 2002. Rehearing Denied Aug. 21, 2002. Former divorce client filed action against her former attorney for legal malpractice and breach of fiduciary duty for his alleged failure to protect a marital asset worth $4,000,000. The Circuit Court, Pinellas County, Frank Quesada, J., entered summary judgment in favor of the attorney. Client appealed. The District Court of Appeal, Whatley, J., held that genuine issue of material fact existed as to whether a broker's actions in losing entirety of money in an investment account was reasonably foreseeable by the attorney. Reversed and remanded. West Headnotes [1] Judgment 228 €= 181(16) 228 Judgment 228V On Motion or Summary Proceeding 228k181 Grounds for Summary Judgment 228k181(15) Particular Cases 228k181(16) k. Attorneys, Cases Involving. Most Cited Cases Genuine issue of material fact existed as to whether broker's actions in losing entirety of money in investment account, a marital asset valued in excess of $4,000,000, was reasonably foreseeable by former client's attorney, while representing the client in connection with possible dissolution of marriage, thus precluding summary judgment in action Page 1 for legal malpractice and breach of fiduciary duty. [2] Judgment 228 €= 181(15.1) 228 Judgment 228V On Motion or Summary Proceeding 228k181 Grounds for Summary Judgment 228k181(15) Particular Cases 228k 181 (15 .1) k. In General. Most Cited Cases The issues of proximate cause, and foreseeability as it relates to proximate cause, are generally not appropriate for determination by summary judgment, but are factual issues which must be resolved by the trier of fact. [3] Appeal and Error 30 €= 854(1) 30 Appeal and Error 30XVI Review 30XVI(A) Scope, Standards, and Extent, in General 30k851 Theory and Grounds of Decision of Lower Court Cited Cases 30k854 Reasons for Decision 30k854(1) k. In General. Most Trial courts may be right in entering summary judgment for the wrong reasons. *223 Michael C. Addison of Addison & Delano, P.A., Tampa, for Appellant. Jack Helinger of Louderback and Helinger, St. Petersburg, for Appellees. WHATLEY, Judge. Toni T. Behr appeals the fmal summary judgment entered in her action against Edward D. Foreman, individually, and Edward D. Foreman, P.A., for legal malpractice and breach of fiduciary duty. We agree with Behr that genuine issues of material fact remain and precluded the finding that Foreman's actions were not the proximate cause of © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 824 So.2d 222, 27 Fla. L. Weekly Dl638 (Cite as: 824 So.2d 222) Behr's loss. Behr engaged the services of attorney Foreman in connection with the possible dissolution of her marriage to Charles Behr. At the time Foreman was retained, the Behrs' principal marital asset was an investment account at a brokerage house valued in excess of $4,000,000. Even though this account was a marital asset, Charles Behr maintained exclusive control over it by establishing it in the form of a trust with him as the sole trustee. [1] In her complaint, Behr contended, inter alia, that during the more than fifteen months after he was retained to represent her, Foreman breached the standard of care for attorneys by not protecting her interest in this marital asset. As a result, Behr alleged, she lost her interest in the asset when Charles Behr lost the entirety of the money in the brokerage account, in addition to a margin debt of over $2,000,000. In entering fmal summary judgment, the trial court ruled that Behr herself had asserted in a complaint she filed against Foreman with The Florida Bar that the losses were due to the actions of a rogue broker. Because this broker had prudently managed the account in the past, the court stated, his actions were not reasonably foreseeable but were a superseding, intervening cause of the losses in the account. Consequently, the court concluded, Foreman's actions or inactions did not as a matter of law proximately cause the losses suffered by Be hr. *224 In this appeal, Behr asserts that her statement in the Bar complaint was merely a relaying of information that her husband had provided in explaining the losses to the account; it was not an assertion that she herself believed a rogue broker's actions caused the losses she suffered. Thus, this is a genuine issue of material fact that must be determined by the trier of fact. [2] "The issues of proximate cause, and foreseeability as it relates to proximate cause, are genPage2 erally not appropriate for determination by summary judgment. These are factual issues which must be resolved by the trier of fact." CSX Transp., Inc. v. Pasco County, 660 So.2d 757, 759 (Fla. 2d DCA 1995). This is particularly true under the circumstances of this case because Foreman filed his motion for summary judgment before he filed an answer. Although this procedure is acceptable, Fla. R. Civ. P. 1.510, it makes the movant's burden "an especially heavy one" because the pleadings are not closed. Lakes of the Meadow Vill. Homes Condo. Nos. One, Two, Three, Four, Five, Six, Seven, Eight, & Nine Maint. Ass'ns, Inc. v. Arvida/JMB Partners, L.P., 714 So.2d 1120, 1122 (Fla. 3d DCA 1998). [3] We note that Foreman raised as another ground of his motion for summary judgment that Behr's action is barred by the statute of limitations. The trial court made no ruling or comment on this ground in the fmal summary judgment. Trial courts may be right for the wrong reasons. See Combs v. State, 436 So.2d 93, 96 (Fla.l983). The resolution of the issue of whether the statute of limitations has run in this case turns, however, on a determination of whether this case involves an allegation of litigation-related or transactional malpractice. See Silvestrone v. Edell, 721 So.2d 1173 (Fla.l998); Peat, Marwick, Mitchell & Co. v. Lane, 565 So.2d 1323 (Fla.1990). Accordingly, we reverse the fmal summary judgment and remand for proceedings consistent with this opinion. PARKER and DAVIS, JJ., concur. Fla.App. 2 Dist.,2002. Behr v. Foreman 824 So.2d 222, 27 Fla. L. Weekly D1638 END OF DOCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. West law, 385 S.E.2d 95 192 Ga.App. 424, 385 S.E.2d 95 (Cite as: 192 Ga.App. 424, 385 S.E.2d 95) H Court of Appeals of Georgia. BRYGIDER v. ATKINSON. No. A89A0047. July 3, 1989. Rehearing Denied July 25, 1989. Certiorari Denied Sept. 7, 1989. Attorney brought an action to recover unpaid attorney fees against a former client. The Fulton State Court, Baxter, J., granted attorney's motion for summary judgment on claim of breach of an oral contract. Client appealed. The Court of Appeals, Beasley, J., held that material issues of fact as to terms of agreement and reasonableness of fee charged precluded grant of summary judgment in favor of attorney. Reversed. Carley, C.J., concurred specially and issued an opinion. West Headnotes [1] Judgment 228 E:= 181(16) 228 Judgment 228V On Motion or Summary Proceeding 228kl81 Grounds for Summary Judgment 228kl81(15) Particular Cases 228kl81(16) k. Attorneys, Cases Involving. Most Cited Cases Material issue of fact as to terms of oral employment agreement between attorney and client and reasonableness of fee charged by attorney precluded grant of summary judgment in favor of attorney in suit for attorney fees. [2] Judgment 228 €= 185.3(4) Page 1 228 Judgment 228V On Motion or Summary Proceeding 228kl82 Motion or Other Application 228kl85.3 Evidence and Affidavits in Particular Cases 228kl85.3(4) k. Attorneys. Most Cited Cases In a suit brought by attorney to collect alleged unpaid fees against client, client's affidavit in opposition to motion for summary judgment, which stated that based on his experiences as a businessman and his previous dealings with attorneys, he was of the opinion that the hours and charges attorney was claiming were unpaid were excessive, was sufficient to raise a material issue of fact as to reasonableness of fee. **95 *427 King, Morriss, Talansky & Witcher, Joseph H. King, Jr., Atlanta, for appellant. Tyros B. Atkinson, Jr., pro se. *424 BEASLEY, Judge. Brygider, a former client of attorney Atkinson, appeals the grant of summary judgment to Atkinson in this suit over unpaid attorney fees. Recovery was sought under three theories, but the motion for summary judgment is based only on Count One, breach of an oral contract. The controversy for which Atkinson was hired involved a product, a "guardfather" produced by Bingham, Ltd., of which Brygider**96 was president. The Federal Bureau of Investigation contended that the device was an illegal switchblade knife. It looked like a ballpoint pen but had a button which ' when pushed, caused an icepick-like shaft to emerge and lock into place. Brygider does not dispute that there was a contract of employment, but rather that Atkinson was retained by him as an individual as opposed to a corporate officer. He also disputes the reasonableness of the fees. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 385 S.E.2d 95 192 Ga.App. 424, 385 S.E.2d 95 (Cite as: 192 Ga.App. 424, 385 S.E.2d 95) *425 The government was granted summary judgment in the federal suit on the ground there was no justiciable case or controversy. This was reversed on appeal to the Eleventh Circuit in 1985. A second motion for summary judgment was made and granted to the government on the merits, resulting in a second appeal. Brygider paid the bill resulting from the first appeal through May 1986, but when he was billed after the second brief was filed, he took exception to the $5,000 charge for the second appeal and contended that the first brief was merely "reworked" for the second. Also, approximately $3,000 in past due billings from the first appeal appeared on that bill. The briefs themselves are in the record and do reflect some overlap. Brygider contends that, while he did authorize the filing of the second appeal, there was a $2,000 fee cap for it. [I] Atkinson moved for summary judgment. His supporting affidavit included: "I state that the sum of $5,000.00 to brief an appeal in the United States Court of Appeals is a reasonable attorney fee for a case of the nature of the one performed by me for the benefit of Mr. Brygider. In my opinion a fee of $10,000 for such an appeal would not be unreasonable .... All services rendered by me were reasonable and necessary to adequately represent Mr. Brygider." Also included was a statement of Atkinson's experience as an attorney, as a basis for his opinions as to the fee's reasonableness. In his opposing affidavit, Brygider stated he had substantial expertise, as president of Bingham, Ltd., in the reasonableness of attorney fees. "This expertise has been acquired in the course of 15 years of business practice. I have supervised and reviewed the billing of numerous attorneys, including [Atkinson], and have become familiar with the practices in Georgia regarding such fees, and the standards of reasonableness applied in determining such fees. I have reviewed the fees ... in this case, and I have the opinion that they are unreasonable." Six bases were set out for the conclusion, including the overlap in the two briefs, charges made for such Page2 items as "familiarization with rules which should already have been familiar," and that the time spent and fee charged were beyond his specific authorization. Although Atkinson states in his brief that he objected to Brygider's affidavit, no hearing transcript or other evidence of such objection is in the record. "A brief cannot be used in lieu of the record or transcript for adding evidence to the record. [Cits.] We must take our evidence from the record and not from the brief of either party." Blue v. R.L. Glosson Contracting, 173 Ga.App. 622, 623( I), 327 S.E.2d 582 (1985); In re Holly, 188 Ga.App. 202, 203, 372 S.E.2d 479 (1988); see Chapman v. McClelland, 248 Ga. 725, 726(2), 286 S.E.2d 290 (1982). Nevertheless, whether he objected or not, the legal efficacy of the affidavit would still have to be determined on appeal on addressing the summary judgment issue. *426 The trial court was bound to construe the evidence in favor of Brygider, the party opposing the motion. Eiberger v. West, 247 Ga. 767, 769(1), 281 S.E.2d 148 (1981); Mitchell v. Rainey, 187 Ga.App. 510, 512, 370 S.E.2d 673 (1988). Summary judgment was appropriate only if there was no genuine issue as to any material fact and the law demanded judgment for Atkinson. OCGA § 9-ll-56(c). It would have been demanded only if there was no dispute that Atkinson and Brygider had agreed that Atkinson was to spend as much time as reasonable to produce the second brief; that there was no cap on the fee; and that $5,000 was reasonable. There is clearly a dispute as to the first two items, with Brygider stating he **97 did place a cap and Atkinson stating he did not. This matter of credibility is peculiarly for the jury. OCGA § 24-9-80. Also, the fact that two opinions have been given as to the reasonableness of the fee itself, defeats summary judgment. "[W]hen the evidence on a dispositive issue consists of opinion evidence, such evidence alone © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 385 S.E.2d 95 192 Ga.App. 424, 385 S.E.2d 95 (Cite as: 192 Ga.App. 424, 385 S.E.2d 95) can never sustain an award of summary judgment. [Cits.] Introduction of opinion evidence by the nonmoving party, however, ... can be sufficient to preclude an award of summary judgment. [Cits.]" Scott v. Owens-Illinois, 173 Ga.App. 19, 22(2), 325 S.E.2d 402 (1984); Bryan v. Bryan, 248 Ga. 312, 282 S.E.2d 892 (1981); Dickson v. Dickson, 238 Ga. 672, 674(2), 235 S.E.2d 479 (1977); Hepner v. Southern R. Co., 182 Ga.App. 346, 349(1), 356 S.E.2d 30 (1987). [2] This case is similar to Spears v. Allied Engineering Assoc., 186 Ga.App. 878, 368 S.E.2d 818 (1988). Spears, a developer and builder, hired Allied to perform engineering services. Although the hourly rate for the services had been agreed upon, there was a "factual dispute over the number of hours it actually took or should have taken for the work to be performed. Therefore, summary judgment was inappropriate as to the amount Spears owed Allied. [Cit.]" Spears' affidavit based on his experience as a builder and developer, expressed his opinion that the hours expended and the charges made for engineering services were excessive. Brygider, based on his experience as a businessman and his previous dealings with attorneys, expressed his opinion that the hours and charges were excessive. This sufficed to defeat summary judgment. Judgment reversed. McMURRAY, P.J., concurs. CARLEY, C.J., concurs specially. CARLEY, Chief Judge, concurring specially. I agree with the majority that summary judgment was improper because there were genuine issues of material fact as to the terms and conditions of the contract between the client and the attorney. I do not agree with the majority that Spears v. Allied Engineering Assoc., 186 Ga.App. 878, 368 S.E.2d 818 (1988) is applicable to this case in such a manner as to require a finding that the affidavit of the client is sufficient to raise an issue as to the "reasonableness" of the fee. However, there being a genuine issue as to the terms of the contract between the parties, summary judgment was improper. Ga.App.,l989. Brygider v. Atkinson 192 Ga.App. 424, 385 S.E.2d 95 END OF DOCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page3 Westlaw, 901 S.W.2d 842 321 Ark. 376,901 S.W.2d 842 (Cite as: 321 Ark. 376,901 S.W.2d842) c Supreme Court of Arkansas. George M. CALLAHAN et al., Appellants, v. Mary Ellen CLARK, Appellee. No. 94-1361. July 17, 1995. Client sued her attorney for legal malpractice, alleging that attorney negligently advised client to sign property settlement agreement in underlying divorce action, resulting in substantial loss to client when she was unable to renew note on her and former husband's business premises. The Circuit Court, Garland County, Walter G. Wright, J., entered judgment on jury verdict for client. Attorney appealed. The Supreme Court, Holt, C.J., held that: (1) jury's award was based on substantial evidence, and (2) attorney was not entitled to introduce evidence that client eventually lost custody of her children. Affirmed. West Headnotes [1] Appeal and Error 30 E:= 930(1) 30 Appeal and Error 30XVI Review Cases 30XVI(G) Presumptions 30k930 Verdict 30k930(1) k. In general. Most Cited Appeal and Error 30 E:= 1001(1) 30 Appeal and Error 30XVI Review 30XVI(I) Questions of Fact, Verdicts, and Findings 30XVI(I)2 Verdicts 30k1001 Sufficiency of Evidence in Page 1 Support 30kl001(1) k. In general. Most Cited Cases Supreme Court's standard in reviewing sufficiency of evidence is as follows: (1) evidence is viewed in light most favorable to nonmoving party; (2) jury's fmding will be upheld if there is any substantial evidence to support it; and (3) substantial evidence is that of sufficient force and character to induce mind of factfinder past speculation and conjecture. [2] Negligence 272 E:= 372 272 Negligence 272XIII Proximate Cause 272k372 k. Necessity of legal or proximate causation. Most Cited Cases (Formerly 272k56(1.3)) To prove negligence in Arkansas, plaintiff must show that he or she suffered damages proximately caused by defendant's negligence. [3] Attorney and Client 45 E:= 112 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45kll2 k. Conduct of litigation. Most Cited Cases To show damages and proximate cause in legal malpractice action, plaintiff must show that but for alleged negligence, result would have been different in underlying action. [4] Attorney and Client 45 E:= 107 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45kl07 k. Skill and care required. Most Cited Cases In Arkansas, attorney is negligent if he fails to exercise reasonable diligence and skill on behalf of his client. [5] Attorney and Client 45 E:= 129(2) © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 901 S.W.2d842 321 Ark. 376, 901 S.W.2d 842 (Cite as: 321 Ark. 376,901 S.W.2d 842) 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45k129 Actions for Negligence or Wrongful Acts 45k129(2) k. Pleading and evidence. Most Cited Cases Evidence in legal malpractice action was sufficient to support jury's finding that attorney was negligent in advising client in underlying divorce action to sign property settlement agreement, and that client sustained damages in amount of $248,000; evidence indicated that client's inability to renew note on business premises resulted in loss of $150,000 in lease payments and $98,000 in equity she had in marital home, that default provision in parties' agreement permitted such result, that attorney should have included provision in agreement that husband either personally guarantee lease agreement or that he agree in writing to help client renew note, and that attorney should have been aware that client was not going to be able to renew note. [6) Appeal and Error 30 €= 230 30 Appeal and Error 30V Presentation and Reservation in Lower Court of Grounds of Review 30V(B) Objections and Motions, and Rulings Thereon 30k230 k. Necessity of timely objection. Most Cited Cases Contemporaneous objection is necessary in order to preserve issue for appellate review. [7) Appeal and Error 30 €= 1051.1(1) 30 Appeal and Error 30XV1 Review 30XVl(J) Harmless Error 30XV1(J)10 Admission ofEvidence 30k1051.1 Same or Similar Evidence Otherwise Admitted 30k1051.1(1) k. In general. Most Cited Cases There is no prejudicial error where evidence erPage2 roneously admitted was merely cumulative. [8) Attorney and Client 45 €= 129(2) 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45k129 Actions for Negligence or Wrongful Acts 45kl29(2) k. Pleading and evidence. Most Cited Cases Evidence that wife eventually lost custody of her children to husband, threat of which strongly bore on her inclination to sign property settlement agreement in underlying divorce action, was irrelevant in her legal malpractice action alleging that her attorney negligently advised her to sign that agreement, resulting in substantial loss when she was unable to renew note on parties' business premises; husband obtained custody after alleged acts of malpractice took place. [9) Appeal and Error 30 €= 970(2) 30 Appeal and Error 30XV1 Review 30XV1(H) Discretion of Lower Court 30k970 Reception of Evidence 30k970(2) k. Rulings on admissibility of evidence in general. Most Cited Cases Trial 388 €= 43 388 Trial 388IV Reception of Evidence 388IV(A) Introduction, Offer, and Admission of Evidence in General 388k43 k. Admission of evidence in general. Most Cited Cases It is within trial court's discretion whether to admit testimony, and its decision will not be reversed absent manifest abuse of discretion. **843 *378 James M. Moody, Troy A. Price, Little Rock, for appellant. Kent J. Rubens, Timothy 0. Dudley, West Memphis, for appellee. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 901 S.W.2d 842 321 Ark. 376, 901 S.W.2d 842 (Cite as: 321 Ark. 376, 901 S. W.2d 842) HOLT, Chief Justice. This is a legal malpractice case arising out of appellant George Callahan's representation of appellee Mary Ellen Clark in a divorce action. The case was submitted on interrogatories, whereby the jury concluded that Mr. Callahan was negligent in failing to determine the value of the marital business, setting damages at $120,000.00, and in advising Ms. Clark to sign the property settlement agreement awarding damages of $248,000.00 in this regard. The trial court entered judgment against Mr. Callahan and his law firm accordingly. Mr. Callahan and his law firm appeal, asserting four specific points of error: (1) that the jury's award of $248,000 for negligence was based on conjecture and speculation, rather than on the required substantial evidence of damages flowing from specific breaches; (2) that the jury's award of $120,000 for negligent failure to value marital assets could only have been based on conjecture and speculation since the jury did not and could *379 not have found that the court would have awarded such an amount; (3) that the trial court erred in allowing Ms. Clark's trial counsel to taint the proceedings below with unfairly prejudicial evidence of a supposed ethical violation by Mr. Callahan; and (4) that the trial court erred in refusing to allow Mr. Callahan to introduce evidence that Ms. Clark eventually lost custody of her children, the threat of which strongly bore on her inclination to sign the property settlement agreement. None of these arguments has merit. We affirm. Facts In March of 1989, appellee Mary Ellen Clark hired appellant George Callahan, an attorney with the firm of Callahan, Crow, Bachelor, and Newell of Hot Springs, to obtain what she thought would be an uncontested divorce from her husband, Harvey Clark, to whom she had been married for over eight years. When Ms. Clark first met with Mr. Callahan, she outlined her objectives in the divorce as follows: (1) that she receive custody of the couple's four children; (2) that she retain some role in operaPage3 tioli of their business, Clark Industries, Inc., which produced replacement parts for classic cars, and which was operated out of a "shop" building on a small piece of land adjacent to the marital residence; and (3) that she obtain a steady income for herself and her children. Shortly after Ms. Clark's initial meeting with Mr. Callahan, the divorce proceedings became bitterly contested. Mr. Clark sought custody of the children, and the business became the subject of much disagreement. Particularly, the Clarks accused each other of draining business assets and improperly using business funds, and the Internal Revenue Service ultimately imposed a tax lien on the business, with the Clarks facing personal liability for failure to withhold payroll taxes. Thereafter, the chancellor appointed Robert Ridgeway, an attorney who had previously represented the Clarks, as a special master to oversee Clark Industries. Following the exchange of several drafts, the Clarks executed a settlement agreement in January of 1990 relating to both custody and division of their marital property. Ms. Clark was awarded custody of the children, and Mr. Clark agreed to pay $1200 per month in child support. Although Ms. Clark was no *380 longer living there, she became the owner of the marital residence and the land on which the shop was located. Mr. Clark was permitted to continue to operate the business, but was required to pay Ms. Clark $3000 per month in rent for a period of five years for use of the property. In tum, Ms. Clark agreed to transfer all of her stock in the business to Mr. Clark, who, upon execution of the agreement, paid Ms. Clark $10,000 cash, $3000 in vacation pay, and $2766.33 in reimbursement for sums Ms. Clark had advanced to the business. Additionally, Mr. Clark paid $10,000 toward Mr. Callahan's attorney's fees, and agreed to assume full responsibility for the outstanding taxes reflected in the tax lien. The property settlement agreement contained provisions that imposed responsibilities **844 and risks on both parties, which included the condition © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 901 S.W.2d 842 321 Ark. 376, 901 S.W.2d 842 (Cite as: 321 Ark. 376,901 S.W.2d 842) that if Ms. Clark defaulted on the mortgage payments for either the marital residence or the shop, Mr. Clark could reclaim and obtain ownership of both pieces of property by paying the overdue payments and attorneys fees or costs. Conversely, if Mr. Clark defaulted on any of his required payments, Ms. Clark was given the right to reenter the premises of the business and to attach and sell all corporate assets. In May of 1990, some four months after executing the settlement agreement, the bank note on the shop property became due and Mr. Clark refused to sign an extension of the note; thus, Ms. Clark was unable to refinance her loan. The bank initiated foreclosure proceedings, and Mr. Clark exercised his right under the agreement to reclaim the house and shop, and terminated the $3000 per month lease payments to Ms. Clark. Thereafter, Ms. Clark filed an action for malpractice against Mr. Callahan and his law firm, alleging, among other things, that he was negligent both in failing to have Clark Industries valued, and in advising her to sign the property settlement agreement. She amended her complaint to include Robert Ridgeway, the special master, as a separate defendant, but the trial court later dismissed Mr. Ridgeway upon Ms. Clark's motion. The case proceeded to trial. Ms. Clark's first witness was the appellant, Mr. Callahan, who stated that he had been practicing law for 26 years. In order to value Clark Industries, he examined four to five years of tax returns, fmancials that Ms. Clark and Elaine Simpson, Ms. Clark's sister and parttime bookkeeper *381 for Clark Industries, had provided to him, and the master's full reports containing accounts receivable and accounts payable information. In addition to reviewing these documents, Mr. Callahan walked through the business and looked at the equipment, and telephoned Ron Reagan, the owner of Chemfab, a similar business which manufactured aircraft parts, who advised him that liquidation of Clark Industries would not be in Ms. Clark's best interests. Page4 As it was his understanding that custody was Ms. Clark's top priority, Mr. Callahan stated that he knew she would have to make some concessions with regard to the business, recognizing that the Clarks could not jointly operate the business, and that its real value was the genius of Mr. Clark, who had the contacts and identified the market. According to Mr. Callahan, he was able to give Mr. Clark much of the marital debt in the agreement, and obtained for Ms. Clark substantial hard assets-the real estate, home, building, and other personal property. Mr. Callahan testified that he explained to Ms. Clark that pursuant to the agreement, both parties ran substantial risks; however, he stated that he did not know that the bank would not let the $24,000 note on the shop be refinanced unless both parties signed it, and that he did not check with the bank as to whether Mr. Clark's signature would be required. He explained that there was never any presumption that Mr. Clark would be responsible for the note, as Ms. Clark had told him that she would not go back to One Bank, who had the note, as she did not like their rate of interest. According to Mr. Callahan, Ms. Clark "constantly reassured" him that she would be able to refmance the note and deal with the risk. Patty Ann Lueken, a licensed attorney since 1989, testified as an expert witness on behalf of Ms. Clark, stating that 50 percent of her practice was devoted to domestic relations cases. She reviewed the files in the case, and offered her opinion that, a deposition or set of interrogatories would have been very helpful in order to value Clark Industries. Particularly, she stated that she would have taken Mr. Clark's deposition in order to determine what he thought the value of the company was, and would have used his deposition as a negotiating tool. It was Ms. Lueken's opinion that it was necessary to get an expert as to the value of the business in the case, and that Mr. Callahan failed to meet the applicable standard of care in his representation of Ms. Clark. *382 According to Ms. Lueken, paragraph 19, © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 901 S.W.2d 842 321 Ark. 376, 901 S.W.2d 842 (Cite as: 321 Ark. 376, 901 S.W.2d 842) the default prov1s1on of the property settlement agreement, put Ms. Clark in a terrible position in that if she could not renew the note on the shop in May of 1990, she ended up with nothing, with the exception of a **845 party barge, a Bronco, and some other personal items. This provision reads as follows: In the event that the Wife defaults on the mortgage payment for either the home or the shop building note or notes, the Husband has the right to buy back the home, the land the home is situated on, the shop building and the land that the shop building is situated on by paying only the back payments owed at that time plus attorney's fees or other costs in order to bring the note or notes current. The default by the Wife on these payments is agreed by the parties to be defined as late payments sufficient to necessitate legal action by the filing of a Complaint for Foreclosure in order to collect these past due amounts by an attorney. It was Ms. Lueken's opinion that Mr. Callahan, in advising Ms. Clark to sign this agreement containing this provision, should have been aware of what liabilities Ms. Clark had, as his file clearly showed that she was not going to be able to renew the note, as it reflected that some of her credit cards had been cut off, the Bronco payment was behind, and that there were IRS liens for which she was partially responsible. According to Ms. Lueken, this provision provided that, in the event that Ms. Clark defaulted, Mr. Clark would get whatever was left over after foreclosure, without having to pay any of the equity in the shop or the remaining portion of the $180,000 lease payment to Ms. Clark. Moreover, the lease payment, Ms. Lueken stated, would actually be paid by Clark Industries, which was owned by Mr. Clark. After costs, Ms. Lueken estimated that Mr. Clark would receive an additional $70,000 to $80,000 as a result of this provision. Philip Dixon, a licensed attorney since 1960 with 60 to 70 percent of his practice devoted to domestic relations, testified out of tum as an expert PageS witness on behalf of Mr. Callahan. It was his opinion, after reviewing the files in the case, that Mr. Callahan met the applicable standard of care and performed the due diligence that was required of him in the representation of Ms. *383 Clark. It was Mr. Dixon's opinion that Mr. Callahan had more discovery and more information available to him overall than many attorneys get throughout a lawsuit, specifically referring to the reports of the master. He testified that he had reviewed the deposition of Dr. Ralph Scott, Ms. Clark's economist, and that he disagreed with his assumptions made in arriving at his figures. Particularly, he stated that Dr. Scott assumed that both parties could walk away from the business and still continue to have an income stream of$100,000. Regarding paragraph 19 of the agreement, Mr. Dixon stated that he was aware that Ms. Lueken had criticized Mr. Callahan for not having Mr. Clark personally guarantee the lease agreement, or in not having him agree in writing to help Ms. Clark renew the note. It was Mr. Dixon's opinion that, as Mr. Callahan had stated that he had counseled Ms. Clark regarding her debts and that she assured him that she had the means to take care of the situation, Mr. Callahan's conduct in advising Ms. Clark to sign the property settlement agreement, which included the provision in paragraph 19, was reasonable under the circumstances. On cross-examination, however, Mr. Dixon stated that he had never seen a default provision like the one in paragraph 19 of the agreement. Elaine Simpson testified on her sister's behalf, as she had done some bookkeeping at Clark Industries. She stated that she was present at a few meetings between Ms. Clark and Mr. Callahan, and that she had given Mr. Callahan a note reading, "If we do not have someone do a current inventory of assets currently at this plant, Mary will lose thousands of dollars as this list doesn't include the hundreds of dies nor a large portion of tools in the tool and die shop. These are high dollar values." Ms. Simpson further stated that she did not receive a re- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 901 S.W.2d 842 321 Ark. 376, 901 S.W.2d 842 (Cite as: 321 Ark. 376, 901 S.W.2d 842) sponse to her note; rather, Mr. Callahan repeatedly requested her sister to make lists. At one meeting for settlement negotiations, Ms. Simpson claimed that there was a discussion as to whether Mr. Clark would be required to sign the renewal note for the shop when it came up at One Bank in May of 1990. According to Ms. Simpson, Mr. Clark, who was present at the meeting with his attorney, agreed to keep his name on the note for five years. **846 Mary Clark testified as to her involvement in Clark Industries, stating that she talked to Mr. Callahan numerous times *384 about obtaining an inventory of the business. It was her testimony that she did not want to sign the agreement with the default provisions in paragraph 19, but that Mr. Callahan insisted that it had to be there without explaining why. She further testified that Mr. Callahan knew that Mr. Clark's name had to remain on the note for the shop, and that Mr. Callahan assured her that paragraph 30 of the agreement obligated Mr. Clark to sign the extension in May of 1990. Paragraph 30 states as follows: That each of the parties agree to cooperate with the other in executing such instruments as shall be necessary to perform the agreements herein contained, and each of the parties do hereby bind themselves and their respective personal representatives, heirs and assigns to perform and keep the agreements herein contained. In May of 1990, when Mr. Clark refused to sign the extension agreement, Ms. Clark stated that she tried to extend it on her own with another bank, but her credit was too bad. Over Mr. Callahan's objection, Dr. Ralph Scott, an economist, testified that he valued the business based on the year 1988, stating that it grew steadily up until that time. He calculated owner compensation at $113,000 and subtracted corporate loss of $20,735 for a total of $92,266 as a measure of the Clark's compensation. From that figure, Dr. Scott subtracted $30,000, based on a Department of Labor publication, for what it would have cost the Page6 Clarks to hire a bookkeeper, thus leaving $62,266. He used this figure to make a projection for the next 15 years, or Ms. Clark's work life expectancy, arriving at a figure of $692,297, one-half of which is $346,148. From listening to the testimony, Dr. Scott opined that one-half of the outstanding tax liability should be subtracted from this amount. He further stated that he would have arrived at a much higher figure had he factored in growth of the company and fringe benefits. He compared the business to a physician's practice, stating that it should be viewed as an asset that is going to generate income like a stock or bond. At the close of Ms. Clark's case, Mr. Callahan made specific motions for directed verdict based on lack of competent evidence that any act or omission on his part proximately caused damages, and on lack of competent evidence from which the jury *385 could reach a verdict without speculation as to how a chancellor could effect a remedy which would have entitled Ms. Clark to one half of the business. The trial court denied both motions, and Mr. Callahan presented the testimony of Stephany Slagle, the attorney for Mr. Clark during the divorce proceeding, who testified as to the complexity of the case. She stated that if no agreement had been reached and the company had to be liquidated according to the usual practice in Garland County, it would have destroyed both Mr. Clark and Ms. Clark fmancially. She stated that there was never a meeting at which she, Ms. Simpson, Mr. Clark, and Ms. Clark were present where Mr. Clark made a promise that he would renew the note in May of 1990. She stated that she would have remembered such a promise had one been made, as she would not have believed it. Ms. Slagle further opined that in August 1989, the business could not be valued without knowing what Ms. Clark had done, as she was paying for her race horses, personal vehicle, babysitters, and other things which were completely out of Mr. Clark's control. In December of 1989, according to Ms. Slagle, the business was "worth very little, if not in the hole." Like Mr. Callahan, Ms. Slagle did not hire an appraiser or anyone to © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 901 S.W.2d 842 321 Ark. 376, 901 S.W.2d 842 (Cite as: 321 Ark. 376,901 S.W.2d 842) make a valuation of the business. Harvey Clark testified that by the fall of 1989, he did not think the business would break even with the debt he and Ms. Clark had. He stated that he told his wife that he would sign the note until the time the divorce was fmal. According to Mr. Clark, when she raised the question about his signing the note during one of the final negotiation sessions, she retracted her question, stating that she was going to refinance the note, and that she thought she might sell it. Mr. Clark testified that, had his signature on the note been proposed as a condition to the agreement, he **847 did not think that he would sign it, stating that he would not want to secure something for his landlord. Mr. Callahan renewed all motions and objections at the conclusion of all of the evidence, which the trial court denied. The trial court submitted separate interrogatories to the jury, from which the jury found Mr. Callahan negligent in advising Ms. Clark to sign the settlement agreement, and that she sustained damages in the amount of $248,000. Mr. Callahan appeals. *386 I. Jury award for negligence For his first allegation of error, Mr. Callahan asserts that the jury's award of $248,000 for negligence in advising Ms. Clark to sign the property settlement agreement was based on conjecture and speculation, rather than on the required substantial evidence of damages flowing from specified breaches. This amount was obviously predicated on the $3000 per month lease payments Ms. Clark lost, calculated as 60 required payments or $180,000, less ten payments made or $30,000, for a subtotal of $150,000, together with $98,000 in equity she had in the marital home, for a total of $248,000-the exact amount of the verdict. [1][2][3][4] As Mr. Callahan appeals from the trial court's denial of his motion for directed verdict as to proof of negligence and resulting damages, he is challenging the sufficiency of the evidence. Our standard in reviewing the sufficiency of the evidPage7 ence is well settled: ( 1) The evidence is viewed in a light most favorable to the non-moving party; (2) the jury's fmding will be upheld if there is any substantial evidence to support it; and (3) substantial evidence is that of sufficient force and character to induce the mind of the factfmder past speculation and conjecture. Quinney v. Pittman, 320 Ark. 177, 895 S.W.2d 538 (1995). Moreover, to prove negligence in Arkansas, the plaintiff must show that he or she suffered damages proximately caused by the defendant's negligence. Vandeiford v. Penix, 39 F.3d 209 (8th Cir.l994), citing Arkansas Kraft v. Cottrell, 313 Ark. 465, 855 S.W.2d 333 (1993). To show damages and proximate cause in a legal malpractice action, the plaintiff must show that but for the alleged negligence, the result would have been different in the underlying action. Vandeiford v. Penix, supra. In Arkansas, an attorney is negligent if he fails to exercise reasonable diligence and skill on behalf of his client. /d., citing Arkansas Kraft v. Cottrell, supra, Welder v. Mercer, 247 Ark. 999, 448 S.W.2d 952 (1970). [ 5] In support of his argument that Ms. Clark failed to prove that Mr. Clark would have agreed to a more favorable settlement, or that litigation to judgment would have yielded a better result, Mr. Callahan relies in part on the following passage from Roger E. Mallen's and Jeffrey M. Smith's recent treatise on attorney malpractice, in which they state as follows: Assuming a cause of action [for negligent settlement] *387 can be stated, the client must not only establish that concluding such a settlement fell outside the standard of care, but also what would have been a reasonable settlement and that such sum would have been agreed to and collectible. In evaluating and recommending a settlement, the attorney has broad discretion and is not liable for a mere error in judgment. Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 24.36 at 521 (1989). However, Mal- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 901 S.W.2d 842 321 Ark. 376, 901 S.W.2d 842 (Cite as: 321 Ark. 376, 901 S.W.2d 842) len and Smith also speak on speculative damages as follows: The general rule is that an attorney is not liable for any damages which are remote or speculative. The test of whether damages are remote or speculative has nothing to do with the difficulty in calculating the amount, but rather the more basic question of whether there are identifiable damages . . . No one can precisely say what the plaintiff lost or should have lost in such situations, but difficulty or imprecision in calculating damages does not exculpate the attorney. Even though damages cannot be calculated precisely, they can be estimated. Otherwise, attorneys could avoid liability merely because damages are difficult to measure. Mallen & Smith, § 16.3 at 894-895 (1989). (Emphasis added.) **848 In reviewing the evidence before us, we ascertain that sufficient facts existed by which the jury could find evidence of negligence, and from which the jury could identify and assess damages which were not remote or speculative. As such, a final resolve of this case hinged on which witnesses the jury chose to believe. We have long stated that it is the province of the jury to weigh the credibility of the witnesses. Quinney v. Pittman, supra. As such, the jury was free to believe the testimony of Ms. Clark and her sister, Ms. Simpson, over that of the other witnesses, that Mr. Callahan assured Ms. Clark that the agreement required Mr. Clark to extend the note in May of 1990 and beyond, and that Mr. Clark had verbally agreed to sign the extension. In light of Ms. Lueken's testimony that Mr. Callahan should have included a provision in paragraph 19 that Mr. Clark either personally guarantee the lease agreement, or that he agree in writing*388 to help Ms. Clark renew the note, the jury could have reasonably concluded that either a guarantee or an agreement to help renew the note should have been made a part of the contract. There was also testimony from Ms. Lueken that Mr. Callahan should have PageS been aware of what liabilities Ms. Clark had, as his file clearly showed that, due to her numerous expenses, she was not going to be able to renew the note. Even Mr. Dixon, Mr. Callahan's own expert, testified that in his 35 years of practice, he had never seen a default provision like the one in paragraph 19 of the settlement agreement, which operated in Mr. Clark's favor when Ms. Clark defaulted on the shop note. As Ms. Clark correctly states in her brief, her damages were indeed identifiable, for her default was a result of Mr. Clark not being required to sign the renewal on the shop note. As mentioned previously, Ms. Clark lost $150,000 in lease payments and $98,000 in equity she had in the marital home totally $248,000, the amount of the jury verdict. Under these circumstances, we cannot say that the trial court erred in failing to direct a verdict in Mr. Callahan's favor, as there was substantial evidence to support both the jury's fmding on interrogatories that Mr. Callahan was negligent in advising Ms. Clark to sign the property settlement agreement, and that Ms. Clark sustained damages in the amount of $248,000. II. Failure to value business For his second argument on appeal, Mr. Callahan asserts that the jury's award for $120,000 for negligent failure to value marital assets could have only been based on conjecture and speculation, since the jury did not and could not state that the court would have awarded that amount. In his reply brief, Mr. Callahan concedes that this issue is only relevant if we hold in his favor on the first issue. As stated above, we find no merit to Mr. Callahan's first point on appeal; thus, we need not address his second argument. III. Ethical inquiry [6][7] Mr. Callahan further argues that the trial court erred in allowing Ms. Clark's counsel to taint the proceedings below with unfairly prejudicial evidence of a supposed ethical violation. Ms. Clark called Mr. Callahan as her first witness, and he *389 was questioned about a letter that he had writ- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 901 S.W.2d 842 321 Ark. 376, 901 S.W.2d 842 (Cite as: 321 Ark. 376, 901 S.W.2d 842) ten to her in April of 1989, in which he set a minimum fee of $2500, and stated that her divorce would not be fmalized until her account with his firm was paid in full. When counsel for Ms. Clark inquired as to whether this was a proper fee arrangement, Mr. Callahan replied that "There's some disagreement about that," stating that, "There is an ethical opinion that says that if your client cannot pay you, that you must continue to represent her and to see that her rights are protected regardless of whether you are paid or not." After Mr. Callahan offered further testimony regarding his fees, counsel for Mr. Callahan made a relevancy objection, which the trial court overruled. Thereafter, the trial court admitted into evidence, over Mr. Callahan's relevancy objection, legal bills that Mr. Callahan had sent Ms. Clark, finding that the bills could be used to attack Mr. Callahan's credibility. During cross-examination of Mr. Callahan's expert, Phillip Dixon, Ms. Clark was allowed to question him, over Mr. Callahan's objection, regarding his opinion as to whether Mr. Callahan's fee **849 arrangement was ethical. Finally, during closing argument, counsel for Ms. Clark stated as follows: Mr. Dixon ... told you that the first thing [Mr. Callahan] did was unethical. He wrote a fee agreement that said, "We are not going to enter a divorce decree until you have paid all of our fee." Under our rules of ethics, as Mr. Dixon told you that is an unethical thing for a lawyer to do. The very first thing he did in this case, writing the fee agreement, was unethical and had to do with money. We need not explore this issue further, as Mr. Callahan did not make a contemporaneous objection to the admission of this testimony; instead, he allowed counsel for Ms. Clark to ask some 17 additional questions before registering an objection with the trial court. A contemporaneous objection is necessary in order to preserve an issue for appellate review. Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992). As Mr. Callahan had offered similar testimony, Mr. Dixon's testimony on this issue was Page9 merely cumulative. We will not find prejudicial error where the evidence erroneously admitted was merely cumulative. Williams v. Southwestern Bell, 319 Ark. 626, 893 S.W.2d 770 (1995). Thus, the *390 admission of Mr. Dixon's testimony was harmless error. As to comments made by Ms. Clark's counsel during closing argument, we find no objection made by Mr. Callahan in the abstract or in the record. Under these circumstances, Mr. Callahan's argument is without merit. IV. Evidence regarding custody [8] Finally, Mr. Callahan asserts that the trial court erred in refusing to allow him to introduce evidence that Ms. Clark eventually lost custody of her children, the threat of which strongly bore on her inclination to sign the property settlement agreement. He contends that if the jury had been made aware of Mr. Clark's strong desire to obtain custody, "it might well have evaluated Callahan's advice in a different light." [9] The trial court sustained Ms. Clark's relevancy objection to this evidence, stating that it was "after the fact" evidence, and that it might lead to more rebuttal testimony. We have often stated that the trial court determines the relevancy, competency, and probative value of testimony; it is within the trial court's discretion whether to admit testimony, and its decision will not be reversed absent a manifest abuse of discretion. Orsini v. Larry Moyer Trucking, Inc., 310 Ark. 179, 833 S.W.2d 366 (1992). As Mr. Clark obtained custody after the alleged acts of malpractice took place, we cannot conclude that the trial court abused its discretion in refusing to allow this testimony on relevancy grounds. Thus, Mr. Callahan's argument is without merit. Affirmed. Ark.,l995. Callahan v. Clark 321 Ark. 376, 901 S.W.2d 842 END OF DOCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Westlaw, 810 So.2d 667 (Cite as: 810 So.2d 667) Supreme Court of Alabama. CITY OF BIRMINGHAM v. William Fred HORN et al. William Fred Hom et al. v. City of Birmingham et al. 1991455 and 1991558. Aug. 17, 2001. City residents sought attorney fees in connection with their action against city, which resulted in new ordinance regulating solid-waste facilities. The Court of Civil Appeals, 648 So.2d 607 ,remanded and later, 718 So.2d 691, affirmed denial of fees. On grant of writ of certiorari, the Supreme Court, 718 So.2d 694, reversed and remanded. Following denial of mandamus relief respecting award of interim attorney fees, 757 So.2d 389, the Circuit Court, Jefferson County, No. CV-93-5013, William A. Jackson, J., awarded residents attorney fees totaling $1,785,939. City appealed, and residents cross-appealed. The Supreme Court, Brown, J., held that: (1) law-of-the-case doctrine did not preclude trial court on remand from utilizing lodestar method, rather than common fund method, for its calculation of attorney fees; (2) hours that one attorney spent trying to convince another to assist him with representation of residents would be deducted from lodestar calculation; (3) hourly rate of award would be reduced from $175 to $150; (4) lodestar multiplier of 2 was improper; and (5) statutes limiting city's liability for torts to no more than $300,000 did not apply to attorney fee award. 1991455-Reversed and judgment rendered. 1991558-Affirmed. See, J., issued specially concurring opinion. Johnstone, J., issued opinion concurring in Page 1 part, concurring in result in part, and dissenting in part. Houston, J., issued opinion concurring in part and dissenting in part. West Headnotes [1] Appeal and Error 30 €= 1195(1) 30 Appeal and Error 30XVII Determination and Disposition of Cause 30XVII(F) Mandate and Proceedings in Lower Court 30kll93 Effect in Lower Court of Decision of Appellate Court Cited Cases 30kll95 As Law of the Case 30k1195(1) k. In General. Most Law-of-the-case doctrine did not, on remand from Supreme Court, preclude trial court from utilizing lodestar method, rather than common fund method, for its calculation of attorney fees awarded to city residents whose action against city resulted in new ordinance regulating solid-waste facilities; although Supreme Court held on prior appeal that residents were entitled to award of attorney fees under special-equity exception to American rule, Court was silent on question of method by which fees were to calculated, and common-fund approach would be difficult to apply because case was undertaken solely to effect societal change. [2] Appeal and Error 30 €= 1195(1) 30 Appeal and Error 30XVII Determination and Disposition of Cause 30XVII(F) Mandate and Proceedings in Lower Court 30kll93 Effect in Lower Court of Decision of Appellate Court Cited Cases 30k1195 As Law of the Case 30kll95(1) k. In General. Most On remand, the issues decided by an appellate © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) court become the "law of the case," and the trial court's duty is to comply with the appellate court's mandate according to its true intent and meaning, as determined by the directions given by the reviewing court. [3] Costs 102 E? 194.16 102 Costs 102VIII Attorney Fees 102k194.16 k. American Rule; Necessity of Contractual or Statutory Authorization or Grounds in Equity. Most Cited Cases Under the American rule, parties to a lawsuit generally bear the responsibility of paying their own attorney fees, subject to certain exceptions created by statute, contract, or "special equity." [4] Costs 102 E? 194.16 102 Costs 102VIII Attorney Fees 102k194.16 k. American Rule; Necessity of Contractual or Statutory Authorization or Grounds in Equity. Most Cited Cases The special-equity exception to the American rule invokes principles common to an action seeking a recovery under the theory of quantum meruit, in that it involves one party's seeking attorney fees for engaging in efforts that benefited another party. [5] Attorney and Client 45 E? 155 45 Attorney and Client 45IV Compensation 45k155 k. Allowance and Payment from Funds in Court. Most Cited Cases Costs 102 E? 194.42 102 Costs 102VIII Attorney Fees 102kl94.42 k. Public Interest and Substantial Benefit Doctrine; Private Attorney General. Most Cited Cases Attorney fees may be awarded where the plaintiffs efforts are successful in creating a fund Page2 out of which the fees may be paid, or when the efforts of the plaintiff's attorneys render a public service or result in a benefit to the general public in addition to serving the interests of the plaintiff. [6] Attorney and Client 45 E? 155 45 Attorney and Client 45IV Compensation 45k155 k. Allowance and Payment from Funds in Court. Most Cited Cases Costs 102 E? 194.26 102 Costs 102VIII Attorney Fees 102k194.24 Particular Actions or Proceedings 102k194.26 k. Class Actions. Most Cited Cases There are currently two methods available for the determination of fee awards for attorneys who have litigated successfully on behalf of a class: (1) the common-fund approach and (2) the lodestar approach. [7] Costs 102 E? 194.26 102 Costs 102VIII Attorney Fees 102kl94.24 Particular Actions or Proceedings 102kl94.26 k. Class Actions. Most Cited Cases Under the lodestar approach for determining attorney fee awards for attorneys who have litigated successfully on behalf of a class, the trial court must determine the number of hours reasonably expended by counsel on the matter, and then multiply those hours by an hourly rate of compensation set by the court; the court may then adjust that figure by using a multiplier determined by considering a variety of factors, including the complexity of the case and counsel's experience. [8] Attorney and Client 45 E? 155 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) 45 Attorney and Client 45IV Compensation 45kl55 k. Allowance and Payment from Funds in Court. Most Cited Cases Under the common-fund approach for determining attorney fee awards in favor of attorneys who have litigated successfully on behalf of a class, the trial court decides upon a percentage and then applies that figure to the fund obtained as a recovery. [9] Attorney and Client 45 €= 155 45 Attorney and Client 45IV Compensation 45kl55 k. Allowance and Payment from Funds in Court. Most Cited Cases Although the existence of a separate fund is unnecessary to application of the common-fund approach when determining attorney fee awards for attorneys who have litigated successfully on behalf of a class, the common-fund approach has been employed only when there has been a defined monetary recovery. [10] Costs 102 €= 194.18 102 Costs 102Vlll Attorney Fees 102kl94.18 k. Items and Amount; Hours; Rate. Most Cited Cases The method used to calculate an attorney-fee award in a particular case is not necessarily determined by which of the exceptions to the American rule (i.e., statutory, contractual, or special equity) justified that award. [11] Costs 102 €= 194.42 102 Costs 102Vlll Attorney Fees· 102kl94.42 k. Public Interest and Substantial Benefit Doctrine; Private Attorney General. Most Cited Cases Attorney fees awarded pursuant to the "special-equity" common-benefit doctrine may, at times, be computed using the lodestar method Page3 where circumstances warrant. [12] Appeal and Error 30 €= 1195(3) 30 Appeal and Error 30XVII Determination and Disposition of Cause 30XVII(F) Mandate and Proceedings in Lower Court 30kll93 Effect in Lower Court of Decision of Appellate Court 30kll95 As Law of the Case 30kll95(3) k. To What Extent Applicable in General. Most Cited Cases Supreme Court's statement in another case, describing its holding on prior appeal in instant case as calling for attorney fee award under common fund exception to American rule, did not, under law-of-case doctrine, preclude trial court upon remand from utilizing lodestar method, rather than common fund method, for its calculation of attorney fees; statement in question was not holding, but mere description of holding in another case, and, thus, it was not binding. [13] Appeal and Error 30 €= 984(5) 30 Appeal and Error 30XVI Review 30XVI(H) Discretion of Lower Court 30k984 Costs and Allowances 30k984(5) k. Attorney Fees. Most Cited Cases Costs 102 €= 194.18 102 Costs 1 02Vlll Attorney Fees 102kl94.18 k. Items and Amount; Hours; Rate. Most Cited Cases The determination of whether an attorney fee is reasonable is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. [14] Appeal and Error 30 €= 984(5) 30 Appeal and Error © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) 30XVI Review 30XVI(H) Discretion of Lower Court 30k984 Costs and Allowances 30k984(5) k. Attorney Fees. Most Cited Cases Supreme Court's deference to the trial court in attorney-fee cases is based upon the Court's recognition that the trial court, which has presided over the entire litigation, has a superior understanding of the factual questions that must be resolved in fee determinations. [15] Costs 102 €= 208 102 Costs 102IX Taxation 102k208 k. Duties and Proceedings of Taxing Officer. Most Cited Cases The trial court's order regarding an attorney fee must allow for meaningful review by articulating the decisions made, the reasons supporting those decisions, and the performance of the attorney-fee calculation. [16] Costs 102 €= 194.18 102 Costs 102VIII Attorney Fees 102kl94.18 k. Items and Amount; Hours; Rate. Most Cited Cases The attorney-fee calculation under the lodestar method involves several steps: first, the trial court must determine the number of hours reasonably expended by counsel and a reasonable hourly rate of compensation for counsel's representation; the number of reasonable hours is then multiplied by that reasonable rate, yielding an initial estimate called the "lodestar amount"; the lodestar amount is then adjusted upward or downward depending on certain factors attendant to, among other things, the nature and difficulty of counsel's representation. [17] Costs 102 €= 207 102 Costs 102IX Taxation Page4 1 02k207 k. Evidence as to Items. Most Cited Cases Applicants for an attorney fee bear the burden of proving their entitlement to an award and documenting their appropriately expended hours. [18] Costs 102 €= 207 102 Costs 102IX Taxation 1 02k207 k. Evidence as to Items. Most Cited Cases Applicants for an attorney fee should exercise "billing judgment" with respect to hours worked, and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims. [19] Appeal and Error 30 €= 1024.1 30 Appeal and Error 30XVI Review 30XVI(I) Questions of Fact, Verdicts, and Findings 30XVI(I)6 Questions of Fact on Motions or Other Interlocutory or Special Proceedings 30kl 024.1 k. In General. Most Cited Cases Costs 102 €= 208 102 Costs 102IX Taxation 102k208 k. Duties and Proceedings of Taxing Officer. Most Cited Cases With respect to an attorney fee award under the lodestar approach, a trial court's general statement that the number of hours spent was reasonable or unreasonable is not very helpful and, accordingly, should not be given much weight on appeal. [20] Municipal Corporations 268 €= 1040 268 Municipal Corporations 268XVI Actions 268kl040 k. Costs. Most Cited Cases Evidence on appeal from attorney fee award to © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) citizens' group in environmental litigation against city supported finding that there was no redundant billing with respect to work jointly performed by plaintiffs' counsel in preparing briefs, court memoranda, and various responses to city's submissions; while record disclosed billing statements that nebulously described general tasks but did not provide sufficient detail, testimony presented during evidentiary hearing provided adequate elucidation supporting trial court's conclusion of reasonableness. [21] Costs 102 E:= 194.18 102 Costs 102VIII Attorney Fees 102k194.18 k. Items and Amount; Hours; Rate. Most Cited Cases Attorney fees for hours expended for fee litigation are compensable. [22] Municipal Corporations 268 E:= 1040 268 Municipal Corporations 268XVI Actions 268kl 040 k. Costs. Most Cited Cases Twenty-seven hours that first attorney spent trying to convince second attorney to assist him with representation of city residents in environmental litigation against city, which resulted in new city ordinance regulating solid-waste facilities, were not essential to that representation, and, thus, those hours would be deducted from lodestar calculation when determining reasonableness of attorney fee award to city residents. [23] Municipal Corporations 268 E:= 1040 268 Municipal Corporations 268XVI Actions 268k1040 k. Costs. Most Cited Cases Evidence did not support attorney fee award to city residents at hourly rate of $175 in class action that resulted in new city ordinance regulating solidwaste facilities, and, thus, award would be reduced to $150 per hour; while trial court stated that it was "familiar with the hourly market rate in the area," PageS there was no evidence in record regarding area's market rate, counsel typically charged clients somewhere between $80 and $150 per hour, and even though complexity of case generally supported higher rate, record was replete with testimony indicating that counsel were unfamiliar with applicable law. [24] Municipal Corporations 268 E:= 1040 268 Municipal Corporations 268XVI Actions 268kl040 k. Costs. Most Cited Cases Lodestar multiplier of 2 was improper when calculating attorney fees awarded to city residents whose action against city resulted in new ordinance regulating solid-waste facilities, and, thus, attorney fee award of $1,785,939 was excessive; because substantial portion of counsel's hours were expended pursuing fee litigation rather than litigation that provided substantive benefits of original case, multiplier of 1.5 would be applied to those hours expended by plaintiffs' counsel in winning enactment of ordinance, and no multiplier would be applied to work on matters not essential to that purpose, resulting in fee award of$1,020,290.50. [25] Municipal Corporations 268 E:= 1040 268 Municipal Corporations 268XVI Actions 268k1040 k. Costs. Most Cited Cases Statutes limiting city's liability for torts to no more than $300,000 did not apply to attorney fee award exceeding that amount. Code 1975, §§ 11-47-190, 11-93-2. *670 Joe R. Whatley, Jr., and Peter H. Burke of Whatley Drake, L.L.C., Birmingham; Kenneth L. Thomas and Valerie L. Acoff of Thomas, Means & Gillis, Birmingham; and Tamara Harris Johnson and Michael Melton, city attys., for appellant/cross appellee City of Birmingham. W.L. Williams, Jr., Birmingham; and David A. Sullivan, Birmingham, for appellees/cross appellants © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) William Fred Hom et al. Kenneth Smith, director of legal services, and Erin Smith, assoc. gen. counsel, Alabama League of Municipalities for amicus curiae Alabama League of Municipalities. BROWN, Justice. The question presented in these appeals, collectively stated, is whether the Jefferson Circuit Court erred by holding that a group of citizens (sometimes referred to herein as "the plaintiffs") who sued the City of Birmingham ("the City") are entitled to an award of attorney fees totaling $1,785,939, an amount computed by the so-called "lodestar method." The court awarded these fees to the plaintiffs for their role in litigation involving the placement of a waste transfer station and recycling center in a Birmingham neighborhood by Browning Ferris Industries of Alabama, Inc. ("BFI"). See generally Horn v. City of Birmingham, 648 So.2d 607 (Ala.Civ.App.l994) ( "Horn I "); Horn v. City of Birmingham, 718 So.2d 691 {Ala.Civ.App.l997) ("Horn II"); and Battle v. City of Birmingham, 656 So.2d 344 (Ala.l995). The City appeals, contending that the trial court, in awarding attorney *671 fees, incorrectly applied the method it used to compute the fees; the plaintiffs cross-appeal from the order awarding attorney fees, contending that the trial court used an inappropriate method to compute the fees. As to the City's appeal, we reverse the judgment of the trial court and render a judgment; as to the plaintiffs' cross-appeal, we affirm. I. Facts and Procedural History To facilitate an understanding of this complex case and the stakes involved, we set out its factual background, in pertinent part, as it was previously presented by this Court in Ex parte Horn, 718 So.2d 694 {Ala.l998): "Browning Ferris Industries of Alabama, Inc. ('BFI'), operates landfills for sanitary waste (hereinafter sometimes referred to as 'garbage') Page6 in Blount and Walker Counties that are permitted to accept such waste from certain other Alabama counties, including Jefferson County. In 1991, BFI sought to construct a sanitary waste transfer station and recycling center in the City of Birmingham ('the City'). The sanitary waste transfer station was to be a facility where the many BFI trucks collecting garbage from areas of the City would come and dump their loads of garbage inside a large building; the garbage would then be processed by separating recyclable waste from nonrecyclable waste. The nonrecyclable waste would later be transferred to much larger trucks for transport to distant landfills, and the recyclable waste would be stored on-site for eventual sale. "In January 1991, an attorney representing BFI wrote a letter to Tom Magee, chief planner in the City's Department of Urban Planning, inquiring whether BFI's proposed sanitary waste transfer station and recycling center would require a 'special use' zoning permit. The BFI letter stated, in relevant part: " 'It is BFI's intention to purchase property near the University of Alabama [at] Birmingham. The facility that they wish to locate there is called a Transfer and Recycling Facility. The purpose of the operation is this: " 'BFI trucks will deliver garbage and recyclable materials to the facility. A machine will then separate the garbage from the recyclable materials. All the recyclable materials will be placed in the facility and sold to the market as BFI chooses, and all the garbage will be compressed by a machine and then placed on 70 ton trucks. After this process is completed the 70 ton trucks will deliver the compressed garbage to landfill sites in Blount and Walker Counties. " 'As you know, the zoning ordinance under the special exception criteria, authorize[ s] a landfill in an M2 ["heavy industrial"] district with a special use permit. My question to you © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) is whether a facility, such as the one described above, is deemed to be a landfill by the City of Birmingham.' "The City's use regulations for a district zoned M-2, heavy industrial, state: " 'A building or premises shall be used only for the following purposes: " '1. Any use permitted in the M-1 Light Industrial District; except, that no dwelling other than that for a resident watchman, custodian or caretaker employed on the premises shall be permitted. " '2. Any other use not in conflict with the ordinances of the City of Birmingham regulating nuisances; provided further that no building or occupancy permit shall be issued for any of the following uses until and unless the location of such use shall *672 have been approved by the City Council after report by the Planning Commission in accordance with the procedure set forth in Article V, Section 3: " 'a. Abattoir. " 'b. Acid manufacture. " 'c. Atomic power plant or reactor. " 'd. Explosives manufacture or storage. " 'e. Fat, grease, lard or tallow rendering or refining. "'f. Glue or size manufacture. " 'g. Garbage, offal or dead animal reduction or dumping. " 'h. Petroleum refining. " 'i. Stockyard or slaughter of animals. " 'j. Junkyards, salvage yards. Page7 " 'k. Hazardous waste or toxic disposal. " '1. Medical and infectious materials disposed.' "[Emphasis added in Ex parte Hom omitted here.] The City's M-1 use regulation allows, among other things, 'Manufacturing, fabricating, processing, or assembling uses which do not create an objectionable noise, vibration, smoke, dust, odor, heat or glare.' (Emphasis added [in Ex parte Hom].) "Later that same month, Magee wrote a response to BFI, stating that it was his opinion that BFI did not need to obtain a special use permit to construct a sanitary waste transfer and recycling facility in an M-2 district: " 'This letter is in response to your recent correspondence regarding Browning Ferris Industries' (BFI) intent to purchase property on the Southside of Birmingham for the purpose of constructing a Transfer and Recycling Facility. As per your letter, BFI trucks will deliver garbage and recyclable materials to this proposed facility, where the garbage and recyclable materials will be separated. All garbage will then be compressed and placed in 22[ sic] ton trucks which will haul the garbage to landfills in Blount and Walker Counties. It is my understanding that the garbage will be processed daily and will not remain on the premises overnight. Your letter also indicated that the recyclable materials will be stored in a separate area and will be sold to the market as needed. It is also my understanding that this entire process of transferring, processing, and recycling of garbage will be completely enclosed within a building, and no hazardous wastes or toxic materials will be processed or stored on the premises. Based on this understanding, this use would not be interpreted to be a sanitary landfill. In addition, the property you have indicated as being utilized for this proposed facility is located north of 6th A ven- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) ue, South near the Golden Flake Company and is zoned M-2 (Heavy Industrial District). This Zoning district would allow this facility as a permitted use. Please be advised, however, that no noxious odors, fumes, or noise can be associated with this facility.' "[Emphasis added in Ex parte Hom omitted here.] At the time Magee wrote this letter, the only knowledge or information he had regarding sanitary waste transfer stations was that presented in BFI's letter to him and in a videotape he had also received from BFI. Magee failed to conduct any further inquiry before providing BFI with his response approving construction of the facility in that M-2 district. *673 "Thereafter, BFI obtained an option from the Golden Flake Company to purchase 10 acres of a 30-acre tract owned by Golden Flake, and BFI submitted for Golden Flake an application with the City to subdivide the property. In March 1992, BFI gave property owners immediately adjacent to the Golden Flake property notice of the intended subdivision of the property for development by BFI as a sanitary waste transfer and recycling station and the City approved subdivision of the property. BFI purchased the subdivided property from Golden Flake in March 1993 and in April BFI announced in a press release that it had obtained all the permits and approvals required by the City for it to construct a garbage transfer station in the Titusville area of Birmingham. "The residents of the primarily AfricanAmerican Titusville neighborhood first learned of the BFI sanitary waste transfer station through the press release. They objected to the facility's being built adjacent to their neighborhood, and several residents obtained the assistance of attorneys W.L. Williams, Jr., and David A. Sullivan [plaintiffs' counsel in the present appeal]. These Titusville residents and their legal counsel attended the May 11, 1993, meeting of the Birmingham City Council and voiced to the council memPage 8 hers their objections to the proposed BFI facility. Council members responded by saying that they had not previously been aware of the pending BFI facility and that they did not believe they could do anything to prevent the completion of its construction. A larger group of Titusville residents, along with residents of Walker County, attended the May 25, 1993, meeting of the city council. During that meeting, the Titusville residents and their counsel voiced continued opposition to the BFI sanitary waste transfer station. Attorney Williams stated that he believed that under the City's M-2 zoning classification a facility such as the one BFI planned to construct required approval by the city. council, and he requested that the Department of Urban Planning review the zoning ordinance again. Michael Dobbins, who was director of the Department of Urban Planning and was Magee's supervisor, stated that he believed council approval was not necessary, because he believed the BFI sanitary waste transfer station conformed with the M-2 heavy industrial zoning classification. Dobbins admitted that he had not visited a BFI sanitary waste transfer facility, but stated that if the proposed BFI facility involved the creation of noxious odors, fumes, and/or noise then it would violate the City's nuisance ordinances. Mayor Richard Arrington made a report to the council and informed it that he believed he had no legal basis to deny any further permits to BFI. However, the city council passed a resolution asking the mayor to have the City do whatever was legally possible to prevent BFI from operating a sanitary waste transfer station at the site in question. The following day the City's attorney issued a memorandum to the city council stating that he believed the City could face a multi-million dollar lawsuit if it prevented BFI from completing construction of the sanitary waste transfer station. "Thereafter, Dobbins wrote a letter to Williams, one of the attorneys for the Titusville residents. Dobbins stated that it was his position that BFI's proposed facility was not a garbage dump © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) and that BFI was not required to receive any further zoning approvals before construction of the facility. It is apparent from Dobbins's letter that he was taking as fact BFI's contention that *674 the garbage transfer station would not create any noise, noxious odors, or fumes that would prevent it from conforming with the M-2 use regulations and thus would not require city council approval. Dobbins stated in his letter to Williams that garbage transfer stations were a new method for handling household wastes and that the nearest one was being operated by BFI in Marietta, Georgia, where it was adjacent to a residential neighborhood. However, there is no indication in the record that Dobbins or any of his staff had visited the Marietta garbage transfer station, or any other operated by BFI, in order to ascertain whether such facilities created noise, noxious odors, or fumes, or in any other way would constitute a nuisance. Also in May 1993, Mayor Arrington wrote to the city council, stating that after consulting with the City's Law Department and the Department of Urban Planning, he was of the opinion that construction permits could not be legally withheld from BFI. "In early June 1993, the Titusville residents appealed Dobbins's decision-that the proposed BFI garbage transfer station did not require approval by the city council in order to be constructed in an area zoned M-2-to the City's Board of Zoning Adjustment ('the Board'). The construction of the BFI facility adjacent to a residential neighborhood, and the protest of the Titusville residents, had begun to attract substantial attention from the local news media, and at the June 8, 1993, meeting of the city council, one of the council members responded by sponsoring a proposed ordinance that would regulate sanitary waste transfer facilities and would require public notice and public hearings, as well as city council approval, before construction. The ordinance was adopted by the council at the same meeting and was approved by the mayor the following day; however, public notice requirements for approval of the orPage9 dinance had not been met and it had to be passed again at a later date, as mentioned below. "The Titusville residents and their counsel, along with numerous supporters, appeared before the Board of Zoning Adjustment on June 10, 1993, to support their appeal; however, the Board upheld Dobbins's decision. Thereafter, on June 24, William Fred Hom and other citizens filed in the Jefferson Circuit Court a 'Notice of Appeal of the Decision of the Zoning Board of Adjustment of the City of Birmingham and Complaint for Declaratory Judgment, Petition for Writ of Mandamus and Permanent Injunctive Relief against the Board, the City, and the mayor ('the Hom lawsuit'). The Hom filing alleged that Dobbins, as the director of the Department of Urban Planning, was the only person lawfully authorized to administer the City's zoning ordinances and, therefore, that a lesser employee such as Magee was without lawful authority to render an interpretation of the M-2 zoning ordinance when he did so in his January 1991 letter to BFI. The filing further alleged that the construction permits the City had issued to BFI, based on Magee's decision and without city council approval, were unlawful. It requested that the court order the City not to issue any further permits to BFI regarding the facility under construction until its use was approved by the city council. In July 1993, 63 persons from different cities and counties in Alabama moved to intervene as plaintiffs in the Hom lawsuit. BFI also moved to intervene in the action as a defendant. "In response to extensive and continuing public pressure and media coverage *675 brought by the plaintiffs' litigation against the City, the city council, on August 3, 1993, passed a resolution authorizing the mayor to enter into negotiations with BFI to either purchase the subject property from BFI or to exchange it for other property owned by the City. The mayor and a council member met with representatives of BFI to discuss a purchase of the property by the City, but © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) no agreement was reached and BFI continued construction of the facility. "On August 27, the plaintiffs filed a motion seeking to compel the City and the mayor to be realigned from defendants to plaintiffs. Negotiations between the City and BFI continued, but failed when the City could not meet BFI's requested price for the facility, $17 million. On September 3, the mayor filed a motion with the circuit court requesting that he be realigned from a party defendant to a party plaintiff, which was granted by the circuit court. That motion stated: " 'Now comes Mayor Richard Arrington, Jr. in his official capacity as Mayor of the City of Birmingham, Alabama, and moves this Honorable Court to realign this defendant as a plaintiff as further described herein. This defendant asserts that new information has been developed during the course of this action. This new information is as follows: " '1. Contrary to earlier representations, a portion of the garbage collected by Browning-Ferris Industries of Alabama, Inc., will remain on the site more than a few hours. This consists of items salvaged for recycling and of liquid and semi-solid contaminants leaking from the garbage. " '2. Contrary to earlier representations, this facility, if operated as other similar facilities, cannot be sanitized. Reports from Marietta, Georgia suggested that, with 24 hour operation, full, daily cleaning is either not possible or not effective in eliminating odor. " '3. It has been reported to me that it is not possible to eliminate possible contaminated liquid drainage on streets and into storm sewers, leading to the facility. This is a special concern since the primary path to the BFI facility is adjacent to a city park and swimming pool. Page 10 " '4. Together with the additional information now available, as described herein, in my opinion, this garbage transfer facility does constitute a necessary incident to a garbage dump thereby incurring the requirement that the location of such use be approved by the City Council. " '5. As a further necessary precondition to the operation of this facility, it is my opinion that the Alabama Department of Environmental Management must review and approve this facility as a necessary incident to a garbage dump. Any such review or approval is unknown to me. " 'Based upon these facts, I as Mayor, request to be realigned as a plaintiff for the limited purpose of asserting that, based on new information not previously furnished to, or incorrectly furnished to, Mr. Thomas Magee, Mr. Mike Dobbins, and the Zoning Board of Adjustment, this matter must, in accordance with Article III, Section 3.2 of the Zoning Code of the City of Birmingham, be referred to the Birmingham *676 Planning Commission and City Council, and further, that this proposed use, for reasons cited above, will, in my opinion, necessarily constitute a nuisance in violation of Section 11-8-1 of the General Code of the City of Birmingham, 1980, in that this use is likely to be prejudicial to the comfort of and offensive to the senses of the ordinary citizens of the City of Birmingham.' "[Emphasis added in Ex parte Hom omitted here.] "On September 7, the city council adopted a resolution authorizing the mayor to obtain an appraisal of the BFI property for the purpose of condemning the property. The council also authorized the creation of a committee to investigate the BFI project. BFI responded by suing the City, Mayor Arrington, the city council, and its © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) members, for declaratory and injunctive relief, and for $17 million in damages ('the BFI lawsuit'). In its complaint, BFI alleged that City officials, unfairly exercising political expediency, had illegally conspired to formulate a plan to 'kill' its previously approved project. "On September 10, the City made an offer of judgment, per Rule 68, Ala. R. Civ. P., consenting to the entry of a judgment against it and in favor of the plaintiffs in the Horn lawsuit that would require that the matter of BFI's construction permits be returned to the city council for further consideration, requiring council approval before the facility could begin operating. The plaintiffs accepted the offer of judgment. On September 13, 1993, Judge William A. Jackson, of the Jefferson Circuit Court, entered a fmal order in the Horn lawsuit, pursuant to the offer of judgment, requiring that the City refuse to issue construction permits to BFI until the sanitary waste transfer facility obtained the approval of the city council, after public notice and a public hearing. The court ordered that each party bear its own costs. Two days later, the plaintiffs filed a Rule 59, Ala. R. Civ. P., motion with the circuit court, asking the court to alter or ame~d the judgment so as to award them an attorney fee from the City. The trial court denied the motion and the plaintiffs appealed to the Court of Civil Appeals; that court eventually affirmed the trial court's ruling .... "On September 14, the city council adopted an amended version of the solid waste facilities ordinance it had previously adopted in June. That extensive ordinance, governing the permitting and licensing of all commercial solid waste facilities in the City, now appears as § 4-3-31 et seq., General Code of the City of Birmingham .... "On September 17, the City's attorney wrote BFI a letter in which he invited BFI to petition the City for a special use zoning permit from the Board of Zoning Adjustment, as required by the trial court's judgment in the Horn lawsuit. Page II However, BFI never did so. Instead, BFI attempted to use its own lawsuit against the City to gain approval to operate its garbage transfer station. The City responded to BFI's complaint against it by asserting the Horn lawsuit consent judgment in support of a collateral estoppel and res judicata defense. "On January 13, 1994, Whitlynn Battle, one of the Titusville plaintiffs, moved to intervene in the BFI lawsuit against the City, as a party defendant. Battle sought to protect the judgment she and the other plaintiffs had obtained in the Horn lawsuit. The City, BFI, and Battle entered into mediation, and the BFI lawsuit was eventually settled, with a consent judgment entered in February *677 1994; by that settlement BFI was to sell, and the City was to purchase, BFI's property for $6,750,000. Battle, seeking to prevent the City from having to purchase the property from BFI, challenged the judgment by way of a Rule 59, Ala. R. Civ. P., motion and also sought an award of attorney fees in relation to the BFI lawsuit. The trial court denied the motions, and its ruling was eventually upheld on appeal. Battle, supra. "The success of the Horn plaintiffs in preventing the operation of BFI's sanitary waste transfer station, and the City's purchase of the BFI property, [were] brought to statewide and even international attention. According to the plaintiffs, a Birmingham daily newspaper, the Birmingham News, published more than 90 articles concerning the plaintiffs' fight against the proposed BFI garbage transfer facility, and one Birmingham television station aired approximately 100 stories on that topic. The case was the focus of discussion on the Alabama Public Television Network's news program 'For the Record' on November 28, 1995, and the international organization Greenpeace produced a video on the struggle of the Horn plaintiffs entitled, 'Not in Anyone's Backyard-the Grassroots Victory over Browning-Ferris Industries.' On the episode of 'For the [Record],' Rick Losa, a BFI representative, stated © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) that because of the Horn litigation involving its attempt to operate a garbage transfer station in Titusville, BFI had changed its procedures for locating and constructing such a facility so that in the future public concerns about a proposed location would be considered from the start. The Horn lawsuit was also the topic of one of the 11 chapters in the 1995 academic text 'Faces of Environmental Racism' by Dr. Laura Westra and Dr. Peter W enz, in which those authors concluded that BFI's attempt to locate its garbage transfer facility in the primarily African-American Titusville neighborhood was a clear case of environmental racism." Ex parte Horn, 718 So.2d at 695-701 (footnotes omitted). The Horn plaintiffs appealed the trial court's order denying their motion for an award of attorney fees to the Court of Civil Appeals. That court, in Horn v. City of Birmingham, 648 So.2d 607 (Ala.Civ.App.l994), stated that it appeared the trial court's ruling had been based on "an apparent belief that a common fund had to exist in order for it to award attorney fees." Horn I, 648 So.2d at 609. The court then held that "the mere fact that the plaintiffs' action did not create a fund from which a fee could be paid should not bar the trial court from awarding attorney fees," and it remanded the case for the trial court to determine "whether the efforts of the plaintiffs' attorneys produced a common benefit [to the general public] and to consider the award of attorney fees." !d. at 610. The trial court, on remand, determined that there was no common benefit to the general public and again denied the plaintiffs' motion for attorney fees. On return from remand, the Court of Civil Appeals affirmed. Horn v. City of Birmingham, 718 So.2d 691, 694 (Ala.Civ.App.l997). This Court then granted certiorari review to consider "whether the Court of Civil Appeals erred in affirming the trial court's ruling that the plaintiffs are not due an award of attorney fees under the 'common benefit' exception to the 'American Rule.' "Ex parte Horn, Page 12 718 So.2d 694, 695 (Ala.l998) (sometimes referred to herein as "Horn III "). We reversed the judgment of the Court of Civil Appeals, holding that the plaintiffs were entitled to attorney fees *678 because they had conferred a substantial benefit upon the residents of Birmingham, including those residents living outside the plaintiffs' own neighborhood. Horn IlL 718 So.2d at 706. In so holding, we reasoned that the benefit conferred included "a new [city] ordinance specifically regulating and licensing solid waste facilities, such as the garbage transfer station at issue ... [and] an increased level of due process protection to all residents of Birmingham." !d. Consequently, the case eventually returned to the Jefferson Circuit Court for further proceedings. In those proceedings, both parties initiated discovery relating to the question of attorney fees. While discovery continued, the plaintiffs filed a motion with the trial court seeking, among other things, interim attorney fees. The trial court granted the motion and eventually awarded the plaintiffs a $250,000 interim fee, prompting the City to petition this Court for a writ of mandamus. See Ex parte City of Birmingham, 757 So.2d 389 (Ala.l999). In that petition, the City requested that this Court (1) direct the trial court to vacate its order awarding the plaintiffs the $250,000 interim attorney fee and (2) overrule Horn IlL supra. We denied the petition and held that the trial court did not abuse its discretion in awarding the interim attorney fee. Ex parte City of Birmingham, 757 So.2d at 392. We also refused to overrule our prior decision holding that attorney fees should be awarded in the case; we stated: "The City requests further that we overturn our decision in Ex parte Horn, .. . in which we held that the residents are entitled to an attorney fee under the 'common-fund' exception. However, we decline to do so." /d. In December 1998, the trial court conducted a bench trial on the issue of determining an award of © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) attorney fees. The court heard from numerous witnesses, including the support staff for the plaintiffs' counsel; expert witnesses; the Honorable Richard Arrington, Jr. (who was mayor of Birmingham during the time in question); and plaintiff and defense counsel. The court received into evidence billing records; time sheets; invoices; expense reports; examples of work product; newspaper articles concerning the case; correspondence; and documents concerning the qualifications and professional achievements of plaintiffs' counsel. After considering this evidence, the trial court issued an order on March 2, 2000, stating its findings and conclusions. In that order, the court deducted 84 hours from plaintiffs' counsel's billable-hour submission, fmding those hours redundant or unnecessary; this yielded a total of 5,326 compensable hours. The court then considered and added hours claimed in the plaintiffs' counsel's supplemental submission, which raised the total compensable hours to 5,816.95. The court also determined a market rate of $175 per hour of work done, a figure it based on its considering evidence of rates charged in the area for similar work by attorneys with similar experience. Further, the court determined that the plaintiffs were entitled to a multiplier of 2, which, the court said, reflected the difficulty of the case and the fact that the plaintiffs had prevailed under arduous circumstances. The final attorney-fee award was $1,785,939, which reflected a deduction of $250,000 for the previously awarded interim attorney fees. Neither side was content with this award. The plaintiffs moved the trial court to alter, amend, or vacate its judgment, contending that the court had erred by using the lodestar method in calculating *679 the fees. After the trial court denied the plaintiffs' motion, both sides appealed. Resolution of the general issue in this case, as we stated it above, requires us to answer three questions: ( 1) Was the trial court correct in using the lodestar method for its calculation of attorney fees? (2) Did the trial court correctly determine that the Page 13 plaintiffs were entitled to attorney fees totaling $1,785,939 and that those fees were necessary and reasonable? and (3) Does § 11-93-2, Ala.Code 1975 , limit the City's obligation to pay attorney fees exceeding $300,000? II. [ 1] The first question we consider is whether the trial court used the correct method for its calculation of attorney fees. The plaintiffs contend that under the law-of-the-case doctrine, the trial court should have used the "percentage method," which, the plaintiffs argue, would have been in accordance with our holding in Horn Ill. [2] In Gray v. Reynolds, 553 So.2d 79 (Ala.l989), we summarized the law-of-the-case doctrine: "It is well established that on remand the issues decided by an appellate court become the 'law of the case,' and that the trial court must comply with the appellate court's mandate. Walker v. Carolina Mills Lumber Co., 441 So.2d 980 (Ala.Civ.App.l983). See also Erbe v. Eady, 447 So.2d 778 (Ala.Civ.App.l984). The trial court's duty is to comply with the mandate 'according to its true intent and meaning,' as determined by the directions given by the reviewing court. Ex parte Alabama Power Co., 431 So.2d 151 (Ala.l983)." 553 So.2d at 81. The application of this doctrine here rests upon a construction of our holding in Horn IlL for only those statements of law directly pertaining to the issues decided in Horn III can bind subsequent proceedings in this case. See Gray, 553 So.2d at 81. [3] The plaintiffs contend that Horn III is dispositive of the question regarding the appropriate method to be employed in calculating the award of attorney fees in this case. In Horn IlL the issue before us was whether the plaintiffs were entitled to attorney fees. 718 So.2d at 695. We observed that, under the American rule, parties to a lawsuit generally bear the responsibility of paying their own at- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) torney fees, subject to certain exceptions created by statute, contract, or "special equity." Id. at 702. We then held that the special-equity exception applied to this case. Id. [4][5] The special-equity exception invokes principles common to an action seeking a recovery under the theory of quantum meruit, in that it involves one party's seeking compensation for engaging in efforts that benefited another party. Silberman v. Bogle, 683 F.2d 62, 64 (3d Cir.l982) (quoting Lindy Bros. Builders v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 165 (3d Cir.l973)). We acknowledged those principles in Horn IlL where we stated: " [A ]ttorney fees may be awarded where the plaintiffs efforts are successful in creating a fund out of which the fees may be paid, or when the efforts of the plaintiffs attorneys render a public service or result in a benefit to the general public in addition to serving the interests of the plaintiff." 718 So.2d at 702; see also City of Ozark v. Trawick, 604 So.2d 360, 364 (Ala.l992); Brown v. State, 565 So.2d 585, 591 (Ala.l990); and Bell v. Birmingham News Co., 576 So.2d 669, 670 (Ala.Civ.App.l991). In Horn IlL we found that the plaintiffs' efforts had principally resulted in a new City ordinance regulating solid-waste facilities; this fact, we said, resulted in an *680 increase in dueprocess protection for all residents of Birmingham. Horn IlL 718 So.2d at 706. We then held that the plaintiffs were entitled to an award of attorney fees under the special-equity exception. !d. The plaintiffs, noting that this exception is premised upon the common-benefit doctrine, argue in their brief that our holding in Horn III issued an implied mandate to the trial court to employ the so-called "common-fund" approach in calculating the award of attorney fees in this case. We disagree. [6][7][8][9] Under Alabama law, there are currently two methods available for the determination of fee awards for attorneys who have litigated suePage 14 cessfully on behalf of a class: (1) the common-fund approach and (2) the lodestar approach. See Union Fid. Life Ins. Co. v. McCurdy, 781 So.2d 186, 189-90 (Ala.2000) (discussing the discretion of the trial court in determining which approach is appropriate in any given case). Under the lodestar approach, the trial court must determine the number of hours reasonably expended by counsel on the matter, and then multiply those hours by an hourly rate of compensation set by the court. Union Fid., 781 So.2d at 191-92. The court may then adjust that figure by using a multiplier determined by considering a variety of factors, including the complexity of the case and counsel's experience. Id. Under the common-fund approach, the trial court decides upon a percentage and then applies that figure to the fund obtained as a recovery. Although we have held that the existence of a separate fund is minecessary, Union Fid., 781 So.2d at 190, we have employed the common-fund approach only when there has been a defmed monetary recovery. See Edelman & Combs v. Law, 663 So.2d 957, 961 (Ala.l995); Ex parte Brown, 562 So.2d 485, 496 (Ala.l990); Reynolds v. First Alabama Bank of Montgomery, NA, 471 So.2d 1238, 1245 (Ala.l985); and Eagerton v. Williams, 433 So.2d 436, 450-51 (Ala.l983); cf Union Fid., 781 So.2d at 189-90 (stating that recovery under the common-fund approach is possible when the defendant has admitted to being liable for a sum certain in damages even though no separate fund, such as an escrow account, has been created). The common-fund approach becomes unworkable when the recovery does not involve a quantifiable monetary settlement or damages award. This is often the case where, as here, the litigation has been undertaken solely to effect a societal change. Generally, such a case involves the declaration or enforcement of rights where a statute authorizing the lawsuit has likewise authorized the award of attorney fees. See Court Awarded Attorney Fees, Report of the Third Circuit Task Force, 108 F.R.D. 237, 255 (1985). Because of the intangible nature of the relief granted, courts have steadfastly employed the © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) lodestar method to calculate attorney fees in such cases. The United States Court of Appeals for the Third Circuit, in In re General Motors Corp. PickUp Truck Fuel Tank Products Liability Litigation, 55 F.3d 768 (3d Cir.l995), explained the judicial loyalty to the lodestar method in this kind of case: "The lodestar and the percentage of recovery methods each have distinct attributes suiting them to particular types of cases. Ordinarily, a court making or approving a fee award should determine what sort of action the court is adjudicating and then primarily rely on the corresponding method of awarding fees (though there is, as we have noted, an advantage to using the alternative method to double check the fee). "Courts generally regard the lodestar method, which uses the number of hours reasonably expended as its starting point, as the appropriate method in statutory*681 fee shifting cases. Because the lodestar award is de-coupled from the class recovery, the lodestar assures counsel undertaking socially beneficial litigation (as legislatively identified by the statutory fee shifting provision) an adequate fee irrespective of the monetary value of the final relief achieved for the class. "This de-coupling has the added benefit of avoiding subjective evaluations of the monetary worth of the intangible rights often litigated in civil rights actions. Outside the pure statutory fee case, the lodestar rationale has appeal where as here, the nature of the settlement evades the precise evaluation needed for the percentage of recovery method." 55 F.3d at 821 (citation omitted). With regard to cases (like the present one) where the right to an attorney fee is nonstatutory and the relief involves intangible remedies, the Court of Appeals in General Motors opined: "Certainly, the court may select the lodestar method in some non-statutory fee cases where it can calculate the relevant parameters (hours exPage 15 pended and hourly rate) more easily than it can determine a suitable percentage to award." !d. [10][11][12] The Third Circuit's reasoning in General Motors illustrates the principle that the method used to calculate an attorney-fee award in a particular case is not necessarily determined by which of the exceptions (i.e., statutory, contractual, or special equity) justified that award. Consequently, attorney fees awarded pursuant to the "special-equity" common-benefit doctrine may, at times, be computed using the lodestar method where circumstances warrant. See Charles v. Goodyear Tire & Rubber Co., 976 F.Supp. 321, 325 (D.N.J.l997) (applying the lodestar method after noting the difficulty in valuing a settlement that included equitable relief); and Cooperstock v. Pennwalt Corp., 820 F.Supp. 921, 926 (E.D.Pa.l993) (applying the lodestar method after finding that the benefit conferred upon the class plaintiffs was "unquantifiable"). In Horn III, this Court determined that the plaintiffs were entitled to attorney fees, but, by its silence on the question of method, left open the method by which those fees were to be calculated. Therefore, we hold that the trial court did not violate the law of the case established m Horn III by employing the lodestar method. FNl FNl. In Ex parte City of Birmingham, supra, where the City petitioned for a writ of mandamus, we characterized the City's argument in the following manner: "The City requests further that we overtum our decision in Ex parte Horn, supra, in which we held that the residents are entitled to an attorney fee under the 'common-fund' exception." Ex parte City of Birmingham, 757 So.2d at 392 (emphasis added). The plaintiffs contend-in addition to their arguments stated above-that this restatement of our holding in Horn III was, itself, a hold- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) ing. That restatement, however, merely described a holding in Horn III, which was another case, and did not directly pertain to our resolution of the issues presented in City of Birmingham. Therefore, we are not bound by that statement in the present case, under the lawof-the-case doctrine. See Gray v. Reynolds, 553 So.2d 79, 81 (Ala.l989) (stating that the Court was not bound by dicta appearing in an opinion in a prior appeal). III. [ 13 ][ 14 ][ 15] We now turn to the question regarding the amount of attorney fees awarded. "The determination of whether an attorney fee is reasonable is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion." Ex parte Edwards, 601 So.2d 82, 85 {Ala.1992). Our *682 deference to the trial court in attorney-fee cases is based upon our recognition that the trial court, which has presided over the entire litigation, has a superior understanding of the factual questions that must be resolved in fee determinations. See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Nevertheless, the trial court's order regarding an attorney fee must allow for meaningful review by articulating the decisions made, the reasons supporting those decisions, and the performance of the attorney-fee calculation. American Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir.1999); see also Hensley, 461 U.S. at 437, 103 S.Ct. 1933. [16] The attorney-fee calculation under the lodestar method involves several steps. First, the trial court must determine the number of hours reasonably expended by counsel and a reasonable hourly rate of compensation for counsel's representation. The number of reasonable hours is then multiplied by that reasonable rate, yielding an initial estimate called the "lodestar amount." Edwards, 601 So.2d at 85. The lodestar amount is then adjusted Page 16 upward or downward depending on certain factors attendant to, among other things, the nature and difficulty of counsel's representation. See id. (quoting Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986)); see also Brown v. State, 565 So.2d 585, 592 (Ala.l990) (listing 13 factors for the trial court to consider when determining a reasonable attorney fee). The City has challenged the trial court's decision as to each facet of this calculation, contending (1) that many of the hours claimed by plaintiffs' counsel were excessive or redundant; (2) that the hourly rate determined by the court did not reflect the true value of services rendered, as judged by local standards; and (3) that the trial court's application of a multiplier of 2 was unreasonable. A. Hours Reasonably Expended [ 17][ 18] Applicants for an attorney fee bear the burden of proving their entitlement to an award and documenting their appropriately expended hours. Edwards, 601 So.2d at 85; see also Hensley, 461 U.S. at 437, 103 S.Ct. 1933 (citing the importance of documenting in fee applications the hours expended). "The applicant should exercise 'billing judgment' with respect to hours worked, and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims." Hensley, 461 U.S. at 437, 103 S.Ct. 1933 (citation omitted). As the United States Court of Appeals for the Eleventh Circuit stated in American Civil Liberties Union of Ga. v. Barnes, supra: "If fee applicants do not exercise billing judgment, courts are obligated to do it for them, to cut the amount of hours for which payment is sought, pruning out those that are 'excessive, redundant, or otherwise unnecessary.' Courts are not authorized to be generous with the money of others, and it is as much the duty of courts to see that excessive fees and expenses are not awarded as it is to see that an adequate amount is awarded." 168 F.3d at 428. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) [19] In opposition to the hours claimed by plaintiffs' counsel, the City enumerated several instances where it contended that the hours claimed by opposing counsel were duplicative. Our review of the record indicates that the trial court made no detailed fmdings with respect to these claims. In fact, it appears that the trial court reviewed the time sheet submitted by plaintiffs' counsel only for multiple entries for the same work rather than for instances where attorneys Sullivan and *683 Williams might have duplicated one another's work. As to the latter question, the trial court simply added to its order a general statement declaring those hours to be reasonable and necessary. Therefore, our deference with respect to the trial court's order as to these questions is limited. As we said in Ex parte Edwards, supra, "[a] general statement that the number of hours spent was reasonable or unreasonable is not very helpful and, accordingly, should not be given much weight." 601 So.2d at 86. [20] The City contends that the trial court overlooked what the City calls redundant billing by plaintiffs' counsel with respect to work preparing briefs, court memoranda, and various responses to the City's submissions. Because of the trial court's silence with respect to these contentions, we are left to examine the record in order to fulfill our duty of meaningful review. Our review of the record discloses billing statements that nebulously describe general tasks but, unfortunately, do not provide sufficient detail. While this situation, by itself, is problematic, see American Civil Liberties Union of Ga., 168 F.3d at 429, testimony presented during the evidentiary hearing provides adequate elucidation supportin~the trial court's conclusion of reasonableness. 2 Therefore, we conclude that the trial court did not abuse its discretion by finding that there was no redundant billing with respect to work jointly performed. FN2. Williams testified that he and Sullivan worked together on briefs by performing different tasks. He explained that, at times, he researched a particular area of Page 17 the law while Sullivan wrote, using research already done. He also testified that they often discussed arguments and strategy as to the preparation of court documents and matters raised by the City. [21] We now turn to the City's allegations that some of the hours ~ended by plaintiffs' counsel were unreasonable. 3 Our review of the record indicates that there was conflicting and credible testimony by both sides as to ne~ all of the specific claims of unreasonableness. 4 Because this testimony was oral, we defer to the trial court's resolution of the pertinent factual disputes in favor of the plaintiffs. After considering the trial court's observation, made in its order, regarding the complexity of this case, we conclude that the court did not abuse its discretion with respect to its findings on these matters. FN3. The City's argument includes an assertion that the plaintiffs should not be allowed to recover attorney fees for hours expended for fee litigation. It is hornbook law, however, that such time is compensable. See Alba Conte, Attorney Fee Awards § 4.21 (2d ed.l993), and the footnotes contained therein. FN4. At the evidentiary hearing, Williams testified that he and Sullivan often collaborated on their filing of, or responses to, briefs and court memoranda. They also testified as to the complexity of the case. The City countered with expert testimony by John Falkenberry, an attorney, who concluded that the hours expended by Williams and Sullivan were excessive. [22] One matter, however, concerns us. Therecord reveals that plaintiffs' counsel included in their fee application 27 hours spent by Sullivan trying to convince Williams to assist him with the case. We believe that these hours were not essential to the plaintiffs' representation; therefore, we reduce by 27 the number of hours the trial court accepted as © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) reasonable-this reduction yields a total of 5,789.95 hours reasonably expended. B. The Trial Court's Determination of the Hourly Rate [23] The City contends that the trial court also abused its discretion with respect*684 to the adjudged hourly rate of compensation. We agree. The trial court's order is silent as to any justifications for the determined rate of $175 per hour, except for a general statement declaring that the trial court had conducted "numerous fee-award cases over the years" and, therefore, was "familiar with the hourly market rate in the area." We acknowledge that the trial court may indeed have its fmger on the pulse of the Birmingham legal community, but, without evidence in the record regarding the area's market rate, we are unable to defer to its conclusions. The record reflects that Sullivan typically charged clients somewhere between $80 and $150 per hour for his representation. The record contains no other evidence as to rates of compensation. While the complexity of this case generally supports a higher rate, we note that the record is replete with testimony indicating that Sullivan and Williams were unfamiliar with the law applicable in this case and, therefore, had to expend numerous hours acquainting themselves with that law. This degree of unfamiliarity often reflects a lack of experience, which leads us to conclude that Sullivan and Williams had little experience in the area of law involved in this case. Therefore, based on the typical rate usually charged by plaintiffs' counsel, their level of experience in this area of the law, and the complexity of this case, we conclude that $150 per hour is a reasonable rate of compensation. C. The Trial Court's Determination of the Multiplier [24] The City argues next that the multiplier established by the trial court was excessive. Such a determination is, once again, a matter we generally leave to the trial court's discretion, see, e.g., Ex Page 18 parte Edwards, 601 So.2d 82, 85 (Ala.l992), especially where, as here, the trial court has fully explained its reasoning in its order. In our review of the trial court's order, we are mindful of the 12 factors set forth in previous cases in which we have been confronted with the question of attorney fees. See Union Fid., 781 So.2d at 192 (quoting Edelman & Combs, 663 So.2d at 960 (summarizing 12 factors first enunciated by this Court in Peebles v. Miley, 439 So.2d 137, 140-41 (Ala.l983))). The factor that concerns us most is the benefit to the client received from the hours expended. The City contends that the multiplier of 2 should be reduced because, it says, a substantial portion of counsel's hours were expended pursuing fee litigation rather than the litigation that provided the substantive benefits of the original case. The history of this case indicates that the attorney-fee litigation began immediately after the Jefferson Circuit Court approved a settlement between the parties regarding the placement of the solid-waste facility. While the law clearly allows for a fee award with respect to those hours, see note 3, supra, we do not consider this time to be vital to the true purpose of the litigation, which was to enhance the due-process rights of Birmingham residents and to prevent the placement of a solid-waste transportation facility in a particular location. Many of the factors set forth in previous decisions by this Court with respect to attorney-fee awards are intended primarily to be applied to the circumstances attendant to the nature of the representation, not attorneyfee litigation. We recognize, however, that some of the factors, such as those pertaining to questions of local compensatory customs, are proper for a court to consider in fee-litigation cases. Nevertheless, the number of hours in this case expended only on fee litigation is so great that we believe the *685 trial court abused its discretion by determining a multiplier of 2. Considering the benefits conferred on the plaintiffs, the time expended on the entire litigation (including the attorney-fee litigation), and the trial © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) court's finding regarding the complexity of this case and counsel's performance, we conclude that a multiplier of 1.5 is warranted. We apply this figure, however, only to those hours expended by plaintiffs' counsel in succeeding in the primary purpose of the litigation, which was to win the enaction of a new city ordinance and to increase dueprocess protection for Birmingham residents. As best we can discern, the hours expended in those efforts total 2,024. In calculating this portion of counsel's fee, using a 1.5 multiplier, we conclude that plaintiffs' counsel are entitled to a fee of $455,400 for this part of their services. FN5 As for their work on matters not essential to the result obtained as a part of their representation, we find that plaintiffs' counsel expended 3,765.95 hours. Because these hours did not directly pertain to the benefit obtained in the Horn litigation, we believe that as to those hours the application of a multiplier is unwarranted. Therefore, in calculating the fee as to these hours, we conclude that, for this portion of their work, plaintiffs' counsel are entitled to a fee of $564,892-this figure is arrived at by multiplying the number of hours devoted to this aspect of the case (3,765.95) by the $150 hourly rate. Thus, the total unadjusted fee to which plaintiffs' counsel are entitled equals $1,020,290.50, the sum of the two separately determined fee awards. When we subtract the $250,000 interim attorney fee awarded in this case, we determine that plaintiffs' counsel are fairly and reasonably entitled to a fee award of $770,292.50. FN5. We arrive at this amount by multiplying 2024 (the number of hours reasonably expended on litigation essential to the result obtained) by the hourly compensation rate of $150 and then multiplying that amount by a 1.5 multiplier. IV. [25] The final issue presented is whether §§ 11-93-2 and 11-47-190, Ala.Code 1975, limit the City's obligation to pay an attorney fee exceeding $300,000. After carefully reviewing these statutes, Page 19 we conclude that they do not. We are unable to read either statute as pertaining to attorney-fee awards. The legislative history of§ 11-93-2 soundly suggests that this statute and related enactments apply only to tort liability. The title to Act No. 673, Ala. Acts 1977, part of which is codified at§ 11-93-2, Ala.Code 1975, reads: "AN ACT "To prescribe and establish monetary limits payable on claims and judgments based on tort liability and filed or obtained against governmental entities .... " See St. Paul Fire & Marine Ins. Co. v. Nowlin, 542 So.2d 1190, 1192-93 (Ala.1988). Section 11-47-190 also applies only to torts, see Rich v. City of Mobile, 410 So.2d 385, 387 (Ala.1982), albeit torts founded upon negligence. Compare § 11-47-190 with§ 11-93-2, Ala.Code 1975. An award of attorney fees is merely an award of costs; thus, we conclude that § 11-93-2 and § 11-47-190 do not apply to attorney-fee awards. 1991455-REVERSED AND JUDGMENT RENDERED. 1991558-AFFIRMED. MOORE, C.J., and LYONS, HARWOOD, WOODALL, and STUART, JJ., concur. SEE, J., concurs specially. *686 JOHNSTONE, J., concurs in part, concurs in the result in part, and dissents in part. HOUSTON, J., concurs in part and dissents in part. SEE, Justice (concurring specially). In Alabama, a party may recover attorney fees only when an award is authorized by statute, is provided for by contract, or is justified by a "special equity." Horn v. City of Birmingham, 718 So.2d 691,692 (Ala.Civ.App.1997), rev'd, Ex parte Horn, 718 So.2d 694 (Ala.1998); see also Blankenship v. City of Hoover, 590 So.2d 245 (Ala.1991). A court may award an attorney fee on the basis that it is justified by a special equity "where the © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) plaintiffs efforts are successful in creating a fund out of which the fees may be paid, or when the efforts of the plaintiffs attorneys render a public service or result in a benefit to the general public in addition to serving the interest of the plaintiff." Ex parte Horn, 718 So.2d 694, 702 (Ala.l998). These circumstances have been termed the "common-fund" and "common-benefit" exceptions. !d. This Court discussed the common-fund and common-benefit exceptions in Brown v. State, 565 So.2d 585, 592 (Ala.l990), where a class of plaintiffs, each of whom had been convicted of a traffic offense based upon an improperly verified Uniform Traffic Ticket and Complaint ("UTTC"), FN6 sued the State of Alabama, the City of Montgomery, and others, seeking to have all convictions based upon improperly verified UTTCs expunged from their records and to have all fmes and costs paid as a result of the convictions refunded. 565 So.2d at 586. Although this Court affirmed the judgment of the trial court, which denied the relief sought by the plaintiffs, this Court nevertheless held that the plaintiffs were entitled to an award of attorney fees: FN6. This Court wrote in Brown: "The defect in the procedure that we are dealing with in this case is not the stamping of the clerk's name by one authorized to do so. The defect is in putting a citizen to trial on a criminal charge, albeit a misdemeanor, when no one has sworn on oath ... that the citizen has committed an offense." 565 So.2d at 589. "The plaintiffs have, however, made a significant contribution to the integrity of our system of jurisprudence in calling attention to a serious flaw in its administration. They have done more in that regard to advance the cause of justice than vacating the judgments of the class members would Page 20 achieve. We are informed by counsel on both sides of this case that because of this and similar litigation, the practice has been discontinued and ... now the officers issuing the UTTC's appear before a judge or magistrate and swear on oath to the charges made therein .... II "This litigation clearly resulted in a benefit to the general public. It is unquestionable that plaintiffs' attorneys rendered a public service by bringing an end to an improper practice. The public nature of the services rendered by these lawyers justifies an award of attorney fees." 565 So.2d at 591-92 (citation omitted). Similarly, in Bell v. Birmingham News Co., 576 So.2d 669 (Ala.Civ.App.l991), the Birmingham News Company sought to enjoin the Birmingham City Council from conducting closed sessions to elect the council's president and president pro tempore. The circuit court issued the injunction and awarded attorney fees, reasoning that the citizens of Birmingham "derive a common benefit 'by an action which enforces *687 the requirements of the statute that the business of the City Council be conducted in open and public meetings and, specifically, that the election of Council officers be conducted openly and not in secret.' " 576 So.2d at 670. The Court of Civil Appeals, relying on our decision in Brown, supra, determined that the record contained ample evidence supporting the circuit court's conclusion that the plaintiffs' actions "resulted in a benefit to the general public." Id. Therefore, it held, the circuit court's award of fees pursuant to the common-benefit exception was proper. In this case, the plaintiffs' efforts to prevent the construction of a waste facility in their neighborhood did not produce "a benefit to the general public" like that produced in Brown and Bell. The plaintiffs in Brown and Bell conferred benefits that were state-wide and city-wide, respectively; the © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) plaintiffs' efforts here to have the waste station located in another area have not conferred a similar benefit. Instead, it appears that the plaintiffs' efforts benefited only those in the plaintiffs' immediate neighborhood, to the apparent detriment of those who would use the facility and those who are close to its ultimate location. This is the third time these parties have come before this Court. In Ex parte Horn, 718 So.2d 694 (Ala.l998), a majority of this Court determined that the common-benefit exception to the American rule applied in this case and that the plaintiffs were therefore entitled to an award of attorney fees paid by the City of Birmingham. I dissented, because I read Brown and Bell to require a benefit to society broader than that provided to a particular neighborhood or group. The parties came before this Court again in Ex parte City of Birmingham, 757 So.2d 389 (Ala.1999). Following this Court's decision in Ex parte Horn, the trial court had ordered the City to pay an interim attorney-fee award of $250,000, and the City sought mandamus relief in the form of a writ from this Court directing the trial court to vacate its order awarding an interim attorney fee. The City asked this Court to revisit its decision in Ex parte Horn holding the common-benefit exception applicable. This Court denied the City's petition for mandamus relief, and, in doing so, declined to reconsider its holding that the common-benefit exception applied, noting that its prior decision in Ex parte Horn established the law of the case. "Under the 'law of the case' doctrine, the 'findings of fact and conclusions of law by an appellate court are generally binding in all subsequent proceedings in the same case in the trial court or on a later appeal.' " Heathcoat v. Potts, 905 F.2d 367, 370 (11th Cir.l990) (quoting Westbrook v. Zant, 743 F.2d 764, 768 (11th Cir.1984)). Thus, the Court's conclusion that the common-benefit exception applies in this case was binding in the mandamus proceeding. I dissented in Ex parte Horn because I did not Page 21 believe our prior decisions supported the conclusion that the common-benefit exception applies in this case. While I adhere to that view, the majority's decision in Ex parte Horn established the law of the case. For that reason alone, I concurred in City of Birmingham, and for that reason alone I concur today. JOHNSTONE, Justice (concurring in part, concurring in the result in part, and dissenting in part). I concur in Part I (the facts and the procedural history), in Part II (the rationale and holding approving the lodestar method for calculating the attorney's fees in this case), and the introductory explanation preceding Part I. I concur in the result of the introductory portion of Part III about the method of calculating an *688 attorney's fee under the lodestar method. While the explanation of the method itself is clear and helpful, I question the threat to the ore tenus rule posed by the statement in the main opinion that, "[n]evertheless, the trial court's order regarding an attorney fee must allow for meaningful review by articulating the decisions made, the reasons supporting those decisions, and the performance of the attorney-fee calculation." 810 So.2d at 682. I respectfully dissent from Part liLA. insofar as it infringes the ore tenus rule and tweaks the computation of the compensable hours. The main opinion says, "Because of the trial court's silence with respect to these contentions, we are left to examine the record in order to fulfill our duty ofmeaningful review." 810 So.2d at 683. This statement, too, seems to be an incursion on the ore tenus rule. Our general rule of appellate review is that a trial court is deemed to have found all of the facts necessary to its decision, unless such fact findings would be clearly erroneous. Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996) ("It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous"); Lemon v. Golf Terrace Owners Ass'n, 611 So.2d 263, 265 (Ala.1992) ("[W]here a trial © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) court does not make specific fmdings of fact concerning an issue, this Court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous"). I respectfully dissent from Part III.B. insofar as it tweaks the finding of the trial court on the reasonable hourly rate. The trial judge is entitled to apply common knowledge in the legal community where he presides. I respectfully dissent from Part III.C. insofar as it reduces the multiplier from 2 to 1.5. The main opinion bases the reduction on a negative analysis of one of the 13 factors. We do not know that the trial judge has not already considered this same negative analysis as to this particular factor but has found the multiplier of 2 appropriate on the basis of one or more of the other 12 factors. The plaintiffs sought a multiplier of 4.5. Mashburn v. National Healthcare, Inc., 684 F.Supp. 679 (M.D.Ala.1988), applied a multiplier greater than 3. The trial judge's order explains his decision to apply the multiplier of 2: "This Court believes that an enhancement multiplier is appropriate in this case because this case was extremely difficult, protracted, complex, novel, and because the Plaintiffs' attorneys during various periods of time had to devote essentially all of their time to this case. They suffered fmancial hardship due to their involvement in the case and used their personal and financial resources for the benefit of the citizens of Birmingham. "Moreover, an enhancement multiplier is justified because Plaintiffs' only hope of obtaining fees in this case was premised on a special equity exception to the American Rule. In this case Plaintiffs' attorneys did not have a contract and they did not have the benefit of some fee shifting statute which would have guaranteed them a fee in the event that they were prevailing parties. Plaintiffs not only had to prevail, but they had to Page 22 prove that they provided a common benefit to all of the citizens of Birmingham. They succeeded only when the highest court in the state, the Alabama Supreme Court, made the fmding that Plaintiffs' attorneys were entitled to an award under the common benefit or common fund *689 doctrine. The Plaintiffs' chances of prevailing in this case were slim indeed. In fact, this Court publicly opined in the past that Plaintiffs had about as much chance of succeeding in this litigation as a hunchbacked grandmother had of straightening up. The risk that Plaintiffs took and the tremendous efforts Plaintiffs exerted deserve a multiplier as was in Mashburn, 684 F.Supp. 679 (M.D.Ala.1988). In Mashburn, supra, the Plaintiffs were credited with a multiplier of 3.122. The Plaintiffs allege this case was much more complex and difficult than the Mashburn case and seek an enhancement multiplier of 4.5 which would result in claimed fees in excess of 6 112 millions." Our tweaking this multiplier is another violation of the ore tenus rule. I concur in Part IV of the main opinion. I agree with the rationale and holding "that § 11-93-2 and § 11-47-190[, Ala.Code 1975,] do not apply to attorney-fee awards." 810 So.2d at 685. In summary, I would affirm the judgment of the trial court in case number 1991455, City of Birmingham v. William Fred Horn. I do concur in the main opinion insofar as it affirms the judgment of the trial court in case number 1991558, William Fred Horn et a/. v. City of Birmingham et a/. HOUSTON, Justice (concurring in part and dissenting in part). I concur to reverse and render a judgment in case number 1991455; however, I dissent as to the amount of the attorney fees awarded. I concur to affirm in case number 1991558. Reviewing the briefs and the record, and purposefully not being specific, I am convinced that a © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 810 So.2d 667 (Cite as: 810 So.2d 667) lack of billing judgment permeates the attorneys' fee petition. I cannot sanction an award of $150 per hour for most of the hours billed, and I cannot sanction applying a multiplier of 1.5 to an already excessive lodestar award. I am the only Justice remaining on the Court who voted with the majority in Ex parte Hom, 718 So.2d 694 (Ala.l998), torequire the City to pay a legal fee to Hom's attorneys. In my opinion, it is an abuse of discretion to award a fee in excess of $581,695 (which includes the $250,000 previously paid) to Hom's attorneys. Ala.,2001. City of Birmingham v. Hom 810 So.2d 667 END OF DOCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 23 Westlaw, 304 A.D.2d 925, 758 N.Y.S.2d 195, 2003 N.Y. Slip Op. 12926 (Cite as: 304 A.D.2d 925, 758 N.Y.S.2d 195) c Page 1 [2] Attorney and Client 45 e= 112 Supreme Court, Appellate Division, Third Department, New York. 45 Attorney and Client Robert C. EHLINGER, Appellant, v. RUBERT!, GIRVIN & FERLAZZO, P.C., et al., Respondents. April 10, 2003. Client brought legal malpractice action against law firm and attorney that represented him in divorce action against his wife, alleging that defendants' negligence caused him to lose distributive award in divorce action. The Supreme Court, Albany County, Teresi, J., granted summary judgment in favor of defendants, and plaintiff appealed. The Supreme Court, Appellate Division, Rose, J., held that: (1) attorney's decision not to pursue pendente lite relief to preserve client's distributive award in divorce action did not depart from applicable standard of care, but (2) genuine issue of material facts existed with regard to attorney's failure to file notice of pendency before client's wife encumbered property from which he was supposed to obtain distributive award, precluding summary judgment. Affirmed as modified. West Headnotes [1] Attorney and Client 45 e= 105.5 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45kl 05.5 k. Elements of malpractice or negligence action in general. Most Cited Cases (Formerly 45k105) To recover damages for legal malpractice, a plaintiff must demonstrate that the attorney was negligent, that the negligence was a proximate cause of the loss sustained, and that plaintiff suffered actual and ascertainable damages. 45III Duties and Liabilities of Attorney to Client 45k112 k. Conduct of litigation. Most Cited Cases Attorney's decision not to pursue pendente lite relief to preserve client's distributive award in divorce action did not depart from applicable standard of care, as would support client's legal malpractice claim, where attorney's affidavit set forth reasonable legal strategy and accurately opined that a pendente lite restraint could not have been obtained in absence of a threat by client's former wife to dissipate or encumber property at issue. [3] Judgment 228 e= 181(16) 228 Judgment 228V On Motion or Summary Proceeding 228k181 Grounds for Summary Judgment 228k181(15) Particular Cases 228k181(16) k. Attorneys, cases involving. Most Cited Cases Genuine issue of material fact existed as to whether notice of pendency was unavailable to protect client's interest in wife's property, whether attorney's failure to file such a notice was a departure from applicable standard of care, and whether such failure proximately caused client's damages, precluding summary judgment on legal malpractice claim against law firm and attorney who represented client in divorce action. McKinney's CPLR 6501. **195 Kriss, Kriss, Brignola & Persing, Albany (Daniel P. O'Leary of counsel), for appellant. Smith, Sovik, Kendrick & Sugnet, Syracuse (Kevin E. Hulslander of counsel), for respondents. Before: MERCURE, J.P., CREW III, PETERS, ROSE and LAHTINEN, JJ. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 304 A.D.2d 925, 758 N.Y.S.2d 195, 2003 N.Y. Slip Op. 12926 (Cite as: 304 A.D.2d 925, 758 N.Y.S.2d 195) *925 ROSE, J. Appeal from an order of the Supreme Court (Teresi, J.), entered September 11, 2001 in Albany County, which granted defendants' motion for summary judgment dismissing the complaint. In October 1994, plaintiff retained defendants to represent him in a divorce action against his wife. One of the disputed issues in the action was ownership of certain real property titled solely in the name of plaintiff's wife and known as the Ridgefield **196 Drive property. Plaintiff claimed an equitable interest in this property based upon his having paid off its mortgage in reliance on his wife's promise to name him a co-owner on the deed. Well after commencement of the divorce action, and unknown to plaintiff, his wife remortgaged the Ridgefield Drive property. In September 1997, Supreme Court (Maney, J.) granted plaintiff a divorce and distributed the parties' property ( Ehlinger v. Ehlinger, 174 Misc.2d 344, 664 N.Y.S.2d 401). Based on its finding that plaintiff was entitled to a constructive trust upon the Ridgefield Drive property, the court ordered his wife to either repay him $161,595.06, the net amount he invested in the property, or convey her interest in the property to him. However, his wife's actions in mortgaging the property before the divorce, filing for bankruptcy immediately afterward and precipitating a foreclosure precluded plaintiff from recovering the distributive award. In September 1999, plaintiff commenced this legal malpractice action alleging that the failure of his counsel, defendant Elaine M. Pers, to seek pendente lite relief in the divorce action or file a notice of pendency as to the Ridgefield Drive property constituted negligence and caused him to lose the 1997 distributive award. Defendants then moved for summary judgment dismissing the complaint based on the affidavits of their counsel and Pers describing her representation of plaintiff as competent and opining that neither pendente lite relief nor a notice of pendency based upon a claim of a constructive trust would have been a legally viable Page2 remedy before the divorce judgment was issued. Finding that the lack of a demonstrable threat to encumber the property would have precluded a pendente lite restraint against plaintiff's wife and that it was "unlikely" that plaintiff would have been entitled to the imposition of a constructive trust, Supreme Court granted defendants' motion and dismissed the complaint, prompting this appeal by plaintiff. [1] *926 "To recover damages for legal malpractice, a plaintiff must demonstrate that the attorney was negligent, that the negligence was a proximate cause of the loss sustained and that plaintiff suffered actual and ascertainable damages" (Busino v. Meachem, 270 A.D.2d 606, 609, 704 N.Y.S.2d 690 [citations omitted]; see Amav Indus. Inc. Retirement Trust v. Brown, Raysman, Millstein, Felder & Steiner, 96 N.Y.2d 300, 303-304, 727 N.Y.S.2d 688, 751 N.E.2d 936). For defendants to succeed on their motion for summary judgment here, they were required to present evidence in admissible form establishing that plaintiff is unable to prove at least one of these elements (see Suydam v. O'Neill, 276 A.D.2d 549, 714 N.Y.S.2d 686; Shopsin v. Siben & Siben, 268 A.D.2d 578, 702 N.Y.S.2d 610). [2] Upon our review of the record, we agree that defendants' submissions were sufficient to show that Pers's decision not to pursue pendente lite relief did not depart from the applicable standard of care (see Beltrone v. General Schuyler & Co., 223 A.D.2d 938, 939, 636 N.Y.S.2d 917). In this regard, Pers's affidavit is not conclusory ( cf Estate of Neve/son v. Carro, Spanbock, Kaster & Cuiffo, 259 A.D.2d 282, 284, 686 N.Y.S.2d 404), but rather sets forth a reasonable legal strategy and accurately opines that a pendente lite restraint could not have been obtained in the absence of a threat by plaintiff's wife to dissipate or encumber the property (see Strong v. Strong, 142 A.D.2d 810, 812, 530 N.Y.S.2d 693; cf Maillard v. Maillard, 211 A.D.2d 963, 964, 621 N.Y.S.2d 715). Plaintiff's responding papers fail to raise a question of fact as to © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page3 304 A.D.2d 925,758 N.Y.S.2d 195,2003 N.Y. Slip Op. 12926 (Cite as: 304 A.D.2d 925, 758 N.Y.S.2d 195) pendente lite relief because he submits no expert affidavit describing the applicable standard of care or **197 opining that a pendente lite restraint could have been obtained (see e.g. Zeller v. Copps, 294 A.D.2d 683, 684, 741 N.Y.S.2d 343). [3] We reach a different conclusion, however, with regard to Pers's failure to file a notice of pendency before plaintiffs wife encumbered the Ridgefield Drive property. Defendants' moving papers are insufficient to show that this failure was not malpractice or the proximate cause of plaintiff's damages. Pers's affidavit simply does not address the absence of a notice of pendency. While defendants' counsel avers that "[i]t is * * * well settled that plaintiff had no right to obtain a lis pendens when he clearly had no legal interest in the property," this opinion is conclusory and patently inaccurate because there is no dispute that plaintiff claimed an equitable interest in the Ridgefield Drive property and sought the imposition of a constructive trust. Since actions seeking to impose a constructive trust on real property "obviously affect[ ] title to real property" (Grossfeld v. Beck, 42 A.D.2d 844, 844, 346 N.Y.S.2d 650; see Peterson v. Kelly, 173 A.D.2d 688, 689, 570 N.Y.S.2d 592), the filing of a notice of *927 pendency would have been an available and appropriate prejudgment safeguard in the divorce action (see CPLR 6501; 5303 Realty Corp. v. 0 & Y Equity Corp., 64 N.Y.2d 313, 318, 486 N.Y.S.2d 877, 476 N.E.2d 276; Letizia v. Flaherty, 207 A.D.2d 567, 569, 615 N.Y.S.2d 487, appeal dismissed 84 N.Y.2d 922, 621 N.Y.S.2d 520, 645 N.E.2d 1220). Moreover, since the court in the divorce action found that the guideline factors for a constructive trust had been established (Ehlinger v. Ehlinger, supra at 349, 664 N.Y.S.2d 401; see e.g. Gaglio v. Molnar-Gaglio, 300 A.D.2d 934, 938, 753 N.Y.S.2d 185), Supreme Court's view that such a finding was "unlikely" is plainly contradicted by the record and controlling precedent (see Lester v. Zimmer, 147 A.D.2d 340, 342, 542 N.Y.S.2d 855 [constructive trust is not confined to reconveyance situations] ). Thus, defendants' moving papers are inadequate to establish that a notice of pendency was unavailable to protect plaintiffs interest, that the failure to file such a notice did not constitute a departure from the applicable standard of care or that such failure did not proximately cause plaintiff's damages. As a result, the burden to prove that this failure departed from the standard of care or proximately caused plaintiffs damages was not shifted to plaintiff. ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as granted defendants' motion for summary judgment dismissing the claim based on defendants' failure to file a notice of pendency; motion denied to that extent; and, as so modified, affirmed. MERCURE, J.P., CREW III, PETERS and LAHTINEN, JJ., concur. N.Y.A.D. 3 Dept.,2003. Ehlinger v. Ruberti, Girvin & Ferlazzo, P.C. 304 A.D.2d 925, 758 N.Y.S.2d 195, 2003 N.Y. Slip Op. 12926 END OF DOCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Westlaw. Page 1 Slip Copy, 2009 WL 790345 (Ohio App. 8 Dist.), 2009 -Ohio- 1368 (Cite as: 2009 WL 790345 (Ohio App. 8 Dist.)) H CHECK OIDO SUPREME COURT RULES FOR REPORTING OF OPINIONS AND WEIGHT OF LEGAL AUTHORITY. Court of Appeals of Ohio, Eighth District, Cuyahoga County. Lu-Jean FENG, Plaintiff-Appellee v. KELLEY & FERRARO, et al., Defendants-Appellants. No. 91738. Decided March 26, 2009. Background: Fonner client brought legal malpractice action against attorneys who had represented her in underlying divorce action. After a jury trial, the Court of Common Pleas, Cuyahoga County, No. CV-580568, denied attorneys' motion for a directed verdict and entered judgment in favor of client. Attorneys appealed. Holding: The Court of Appeals, Mary Eileen Kilbane, P.J., held that attorneys' negligence was the proximate cause of client's settling divorce action on unfavorable terms. Affirmed. West Headnotes [1] Attorney and Client 45 €= 112 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45k112 k. Conduct of Litigation. Most Cited Cases Attorneys' negligent representation, pressuring client to settle her divorce case by representing to client that opposing counsel had threatened to use an allegedly misleading loan document that client had signed to obtain a criminal indictment against client, but without informing client that such threats were illegal, was the proximate cause, as an element of client's legal malpractice claim against attorneys, of client's settling divorce action on unfavorable terms; if client had not settled, she would have been virtually guaranteed a more favorable outcome under "equal unless equal is not equitable" standard governing property distributions in divorces. R.C. § 3105.171. [2] Estoppel 156 €= 91(3) 156 Estoppel 156III Equitable Estoppel 156III(B) Grounds of Estoppel 156k89 Acquiescence 156k91 Assent to or Participation in Judicial Proceedings 156k91(3) k. Compromises. Most Cited Cases Client could not be equitably estopped from bringing claim of legal malpractice against attorneys who had negligently pressured her into settling her divorce action, on the basis of client's affirmations under oath that she had agreed to her divorce settlement, since client was acting on attorneys' advice in agreeing to settlement; client's affirmations did not show that attorneys' advice met the standard of care. [3] Evidence 157 €= 34 157 Evidence 1571 Judicial Notice 157k34 k. Laws ofUnited States. Most Cited Cases Trial court could take judicial notice of the existence of a mens rea requirement found in federal fraud statute, in legal malpractice action in which an issue was client's knowledge of alleged misstatements made in loan documents; accuracy of the mens rea requirement was readily discernable from the text of the statute itself. 18 U.S.C.A. § 1001; Rules ofEvid., Rule 201(B). © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page2 Slip Copy, 2009 WL 790345 (Ohio App. 8 Dist.), 2009 -Ohio- 1368 (Cite as: 2009 WL 790345 (Ohio App. 8 Dist.)) Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-580568.James O'Connor, Christopher R. Kakish, Nicholas D. Satullo, Reminger & Reminger, Cleveland, OH, for appellants. Michael J. Maillis, Paul G. Perantinides, Perantinides & Nolan Co ., L.P.A., Akron, OH, for appellee. Before: KILBANE, P.J., McMONAGLE, J., and JONES, J. MARY EILEEN KILBANE, P.J. *1 N.B. This entry is an announcement of the court's decision. See App.R. 22(B) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(C) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. II, Section 2(A)(l). {, 1} Kelley & Ferraro (K & F) appeals from a jury verdict in favor of appellee, Lu-Jean Feng, M.D. (Feng), who sued the firm for legal malpractice. For the following reasons, we affirm. {, 2} On December 29, 2005, Feng sued K & F in common pleas court alleging that it breached the standard of care by failing to properly handle her divorce case. She alleged that K & F did not prepare adequately for the trial. She further alleged that K & F's attorneys exerted undue influence over her to settle the divorce when they advised her that she was subject to criminal and medical licensure penalties related to signing her name on a loan application that allegedly overvalued her clinic. Feng claimed that if K & F had not coerced her into a settlement based upon specious threats of criminal indictments and licensure problems, she would have achieved a better resolution of her divorce at trial. {, 3} On May 28, 2008, the malpractice case proceeded to trial. At the close of plaintiff's case, K & F moved for directed verdict, which was denied. Prior to the conclusion of trial, K & F sought a jury instruction on equitable estoppel based upon Feng's prior testimony that she understood and agreed to the terms of the divorce settlement. Because of this testimony, K & F argued that Feng was estopped from claiming that K & F committed malpractice against her. The trial court refused to instruct the jury on this issue. {, 4} On June 3, 2008, the jury returned a verdict in favor of Feng, awarding $832,929.50 in damages. {, 5} On June 17, 2008, K & F filed a motion for new trial and a motion for judgment notwithstanding the verdict, both of which were denied. This appeal followed. {, 6} ASSIGNMENT OF ERROR ONE "The Trial Court erred in denying DefendantAppellant's motions for directed verdict and for judgment notwithstanding the verdict because Plaintiff-Appellee failed to present evidence that the alleged legal malpractice proximately caused her damages." {, 7} Motions for directed verdict and motions for judgment notwithstanding the verdict (JNOV) are subject to de novo review. Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124, 522 N.E.2d 511. In reviewing such motions, we are required to test whether the evidence, when construed most strongly in favor of appellees, is legally sufficient to sustain the verdict. Environmental Network Corp. v. Goodman Weiss Miller, L.L.P., 119 Ohio St.3d 209, 893 N.E.2d 173, 2008-0hio-3833. Where, as here, a plaintiff claims that she would have been better off if the underlying matter had been tried rather than settled, the standard for prov- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page3 Slip Copy, 2009 WL 790345 (Ohio App. 8 Dist.), 2009 -Ohio- 1368 (Cite as: 2009 WL 790345 (Ohio App. 8 Dist)) ing causation requires more than just some evidence of the merits of the underlying lawsuit. Jd. at 213, 893 N.E.2d 173. Thus, in the case sub judice, Feng had the burden of proving that but for K & F's conduct, she would have received a more favorable outcome in the underlying matter. Id. *2 [ 1] {~ 8} In both the directed verdict and JNOV motions, and indeed in its brief, appellant argues that Feng has failed to submit sufficient evidence of proximate cause to either allow the jury to decide the case and/or to support its verdict. When viewing the evidence most strongly in favor of Feng, as the law requires, we disagree. {~ 9} The crux of Feng's malpractice claim stemmed from advice she received from K & F on the second day of her divorce trial that an allegedly false loan document that she signed subjected her to federal prosecution and/or forfeiture of her medical license. Specifically, Feng claimed that K & F's attorneys pressured her into settling the case on the second day of trial, rather than testify about the specifics of the loan document. As a result of K & F's malpractice, Feng claimed she received an inequitable distribution of assets. A jury agreed with her claims. {~ 10} While there is considerable debate about the level of Feng's knowledge surrounding the loan document, what is undisputed is that K & F, through its attorneys, FNl represented to Feng that her opposing counsel threatened to use the loan document to get her indicted. No one from K & F told Feng that such threats are illegal and unethicalthat is, that no attorney may use the threat of criminal prosecution to effect a result in a civil case. FN2 See Cuyahoga Cty. Bar Assn. v. Wise, 108 Ohio St.3d 164, 842 N.E.2d 35, 2006-0hio-550. This specious threat was the fulcrum that K & F used to settle Feng's divorce case. FNl. One of whom represented to Feng that he was a white-collar criminal defense lawyer. FN2. Ohio Professional Conduct Rule 1.2(e). {~ 11} The quantum of evidence necessary to prove causation in a legal malpractice case is relatively straightforward. Feng was required to prove what amounts to the "case within a case," whereby all issues that would have been litigated in the previous action are litigated between the plaintiff and the plaintiffs former lawyer, with the latter taking the place and bearing the burdens the plaintiff would have borne in the original trial. Environmental Network, supra. Taking on these roles, Feng's burden at trial was to prove that the outcome of her divorce would have been different if she had tried the case. Id. In order to prove causation and damages, Feng was required to prove that the K & F's actions resulted in settling the case for less than she would have received at trial. Id. at syllabus. {~ 12} K & F argues that this case is factually similar to Environmental Network and should be decided identically. However, this case is factually distinguishable from Environmental Network for two reasons. First, the settlement in this case was decidedly unfavorable to Feng, whereas the settlement in Environmental Network was favorable. Id. at 214-216, 893 N.E.2d 173. Second, the appellees in Environmental Network, in adhering to the standard set forth in Vahila v. Hall, 77 Ohio St.3d 421, 674 N.E.2d 1164, 1997-0hio259, failed to show on appeal that the outcome would have been different if they had tried the case. Such is not the case here. *3 {~ 13} At trial, Feng's counsel elicited evidence that K & F failed to meet the standard in several ways. These include firing the court-appointed asset appraiser and failing to hire a new appraiser to value the business assets of Feng's husband. This firing resulted not only in the failure to properly evaluate the marital assets, but also in the former appraiser obtaining a judgment against Feng. {~ 14} According to Feng, one of K & F's attorneys said they would "take care of' representing her in that matter. The record does not reflect that © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page4 Slip Copy, 2009 WL 790345 (Ohio App. 8 Dist.), 2009 -Ohio- 1368 (Cite as: 2009 WL 790345 (Ohio App. 8 Dist.)) they ever did so. {~ 15} According to the record, K & F's failure to hire an expert to value the business of Feng's husband resulted in its considerable worth being left out of the evaluation of marital assets. What is more, the marital assets that were valued by K & F in the case were valued as of 2001, not 2004, because there were three years' worth of valuations missing from the assets in K & F's files. Also, the final settlement was inconsistent with R.C. 3105.171-0hio's "equal unless equal is not equitable" standard. FN3 FN3. R.C. 3105.17l(C){l) states: "Except as provided in this division or division (E) of this section, the division of marital property shall be equal. If an equal division of marital property would be inequitable, the court shall not divide the marital property equally but instead shall divide it between the spouses in the manner the court determines equitable." {~ 16} At trial, Feng's counsel proved that there was a discrepancy of approximately $815,000 between what Feng received through settlement and what she would have received at trial, based upon the total accounting of all marital assets and R.C. 3105.171. The evidence in the record, relied upon by the jury in reaching its verdict, is that Feng would have received a better outcome had she tried her divorce case. The jury awarded her $832,929.50. {~ 17} In its appeal, K & F argues that because she failed to disclose the existence of the loan document to them, Feng is unable to prove that "but for" K & F's negligent conduct, she would have received a better result in her divorce. They argue that she never disclosed the documents, even when they asked her to. They further argue that they were surprised on the second day of the divorce trial when opposing counsel produced the loan application with Feng's signature from Charter One Bank. {~ 18} But K & F's argument assumes that it should not have known of the documents before trial, and that the advice it dispensed to Feng with respect to the loan document, as well as the nature in which they dispensed that advice, met the standard of care. We hold it did not. K & F received notice that Feng's Charter One accounts were being subpoenaed one month before trial. Feng's attorneys elicited expert testimony that the failure to investigate the Charter One subpoena breached the standard of care. K & F did not rebut this at trial. {~ 19} Although K & F argues that Feng was unwilling to try the case because of this document, it fails to acknowledge that the source of Feng's unwillingness emanated from their own advice. In addition to ignoring its other failures in trial preparation and its failure to accurately value the marital estate, K & F's argument also ignores its failure to (a) discern the loan document's existence until day two of the trial, when, in fact, K & F had over one month to fmd this document, and {b) advise Feng candidly about the actual consequences she faced in light of the document, which were much more minimal thanK & Fled her to believe.FN4 FN4. In fact, Feng's loan (the repayment of which was never an issue in either the divorce or malpractice case) is a matter between her and the bank. She has never been subjected to any negative civil or criminal penalties for negotiating it; much less prosecution and/or loss of her medical license because of it. *4 {~ 20} Feng testified that she told her lawyers she never knowingly attempted to defraud the bank by signing the loan papers. Their response, according to Feng, was to state that all opposing counsel (or anyone) had to do was "walk across the street" and get her indicted. Further, K & F represented that opposing counsel in her divorce action possessed just the type of unsavory character to do so. {~ 21} True or not, this ignores the fact that © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. PageS Slip Copy, 2009 WL 790345 (Ohio App. 8 Dist.), 2009 -Ohio- 1368 (Cite as: 2009 WL 790345 (Ohio App. 8 Dist)) such a threat is illegal in the ftrst instance, and cannot be used tMain advantage in a civil case, much less settle it. 5 Giving legal advice based upon such specious threats and using them to cajole a client into settling a divorce case upon harshly inequitable terms violates the standard of care for a reasonably prudent and competent attorney in the same or similar circumstances. FNS. Ohio Prof. Cond. Rule 1.2(e). {~ 22} K & F's failure to prepare for trial and consequent use of a document it should have known about before the second day of trial so as to pressure Feng into settling the case constituted malpractice. But forK & F's advising Feng to settle the divorce case on the basis of the loan document, she would have received a more favorable outcome. Ohio's "equal unless not equitable" law virtually guarantees she would have received a better outcome if she had tried the case. {~ 23} Based upon the above evidence elicited at trial, the trial court did not err in denying K & F's motions for directed verdict and judgment notwithstanding the verdict. When viewed in a light most favorable to Feng, these facts prove that a jury could reasonably have found that K & F committed malpractice in representing Feng in her divorce. {~ 24} Appellant's fust assignment of error is overruled. {~ 25} ASSIGNMENT OF ERROR TWO " The Trial Court committed prejudicial and reversible error when it failed to instruct the jury on equitable estoppel and later, when it denied Ketley & Ferraro's Motion for New Trial." {~ 26} It is well established that trial courts will not instruct the jury where there is no evidence to support an issue. Riley v. Cincinnati (1976), 46 Ohio St.2d 287, 348 N.E.2d 135. Further, "[i]n reviewing a record to ascertain the presence of sufficient evidence to support the giving of an instruction, an appellate court should determine whether the record contains evidence from which reasonable minds might reach the conclusion sought by the instruction." Feterle v. Huettner (1971), 28 Ohio St.2d 54, 57, 275 N.E.2d 340. {~ 27} The record before this court is devoid of evidence upon which reasonable minds might reach the conclusion sought by appellant's equitable estoppel instruction request. [2] {~ 28} In its second assignment of error, K & F argues in essence that Feng's subsequent sworn representations that she assented to the settlement somehow show that the trial judge erred in failing to instruct the jury on equitable estoppel and denying its motion for new trial. K & F argues that because Feng was unwilling to accept any degree of risk of criminal and licensure penalties as a result of the loan document she is estopped from claiming that K & F committed malpractice. K & F cites to examples in the record below where Feng affirmed that she agreed to her divorce settlement under oath. *5 {~ 29} As stated above, this argument assumes that Feng acted in a vacuum; it ignores the provenance of the advice K & F gave to her in the fust place. Feng's assent to the terms of her divorce decree only underscores the fact that she followed her attorneys' advice. It does not mean that advice met the standard of care. {~ 30} Based upon the foregoing facts, the trial court committed no error in refusing to instruct the jury on equitable estoppel. {~ 31} With respect to the denial of K & F's motion for new trial, aside from its mention in the assignment of error, K & F fails to argue this point anywhere in its brief. We therefore decline to address it. See App.R 12(A){2). "The court may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page6 Slip Copy, 2009 WL 790345 (Ohio App. 8 Dist.), 2009 -Ohio- 1368 (Cite as: 2009 WL 790345 (Ohio App. 8 Dist.)) brief, as required under App.R. 16(A)." !d. ASSIGNMENT OF ERROR THREE "The trial court committed prejudicial and reversible error wheh it took judicial notice of the mens rea required under 18 USCA § 1001, et seq." [3] {,-r 32} A court may take judicial notice of a fact not subject to reasonable dispute that is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Evid.R. 201(B). The court may do so at any time during the proceeding. Evid.R. 201(F). Pursuant to Evid.R. 201(C), it is clearly within the trial court's discretion to take judicial notice. Moreland Hills v. Gazdak (1988), 49 Ohio App.3d 22,550 N.E.2d 203. {,-r 33} In this case, the trial court, during the cross-examination of one of K & F's witnesses, took judicial notice that there is a mens rea aspect to any crime. According to K & F, the trial court's taking judicial notice of this fact wrongly implied to the jury that Feng was required to act with specific intent to defraud her bank in order to be subject to criminal penalties when she signed her loan documents. Such an argument is without merit. {,-r 34} K & F argues that it was prejudiced by the court's judicial notice that mens rea is an aspect of any crime, because the court denied their motion for directed verdict. K & F argues that in denying its motion, the court specifically relied on the mens rea requirement found in 18 USCA § 1001, et seq. Nowhere is this found in the record. {,-r 35} The trial court, outside of the presence of the jury, denied the motion for directed verdict, and in doing so indicated during its colloquy with counsel that one of K & F's witnesses, Mr. Wilson, testified there was a negligence aspect to the statute. The court merely stated that it disagreed with that reading. Since no jurors were present at this time, the court could not have implied anything about the intent aspect of the statute to the jury. What is more, the judicial notice K & F complains of took place during the cross-examination of Mr. Frost, where the court simply stated "[t]hat there is a requirement * * * called mens rea, and there's an intent aspect to any crime in the State of Ohio, and that's applicable to both statewide and federal." Nothing in this statement implies any requirement at all-other than its existence-to the jury. *6 {,-r 36} Further, the court cured any potential prejudice by properly instructing the jury that it was not to infer anything from the court's conduct of the trial, or its rulings, stating: "[i]f I said or did anything during the course of this trial that gives you any indication of my thought process, please disregard it. Don't let that factor into your decision of this case." {,-r 37} Because the mens rea requirement of any crime is a fact that is readily discemable by resort to sources whose accuracy cannot reasonably be questioned (in this case the U.S.Code), the court did not abuse its discretion in taking judicial notice of the mens rea requirement of 18 USCA § 1001, et seq. The accuracy of the mens rea requirement is readily discemable from the text of the statute itself, and taking such notice is strictly in accord with Evid.R. 201(B). Because of this, the trial court did not abuse its discretion in taking such notice. {,-r 38} Appellant's third assignment of error is overruled. Judgment affirmed. It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Slip Copy, 2009 WL 790345 (Ohio App. 8 Dist.), 2009 -Ohio- 1368 (Cite as: 2009 WL 790345 (Ohio App. 8 Dist.)) CHRISTINE T. McMONAGLE and LARRY A. JONES, JJ., concur. Ohio App. 8 Dist.,2009. Feng v. Kelley & Ferraro Slip Copy, 2009 WL 790345 (Ohio App. 8 Dist.), 2009 -Ohio- 1368 END OF DOCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page7 Westlaw, 646A.2d 195 231 Conn. 168,646 A.2d 195,63 USLW 2198 (Cite as: 231 Conn. 168,646 A.2d 195) Supreme Court of Connecticut. Elyn K. GRAYSON v. WOFSEY, ROSEN, KWESKIN AND KURlANSKY et al. No. 14889. Argued May 5, 1994. Decided Aug. 23, 1994. Client filed malpractice action against attorneys that represented her in marriage dissolution proceeding for alleged negligence of attorneys in advising settlement based on inadequate financial information regarding husband's estate. The Superior Court, Judicial District of Fairfield, Ballen, J., entered award of $1,500,000 in favor of client. Attorneys appealed. The Supreme Court, Palmer, J., held that: (1) client who agreed to settlement dissolution action in reasonable reliance on advice of her attorneys was entitled to bring malpractice claim against attorneys; (2) finding that attorneys were negligent in representation of client was supported by sufficient evidence; (3) finding that attorneys' negligence was pro~imate cause of client's economic damage was supported by sufficient evidence; (4) verdict of $1,500,000 was not excessive; (5) testimony of client that attorneys failed to seek order of alimony pendente lite despite client's request that they do so was relevant to claim of negligence; (6) trial court properly required attorney to testify on cross-examination as to whether he believed that judge presiding over marital dissolution proceeding held view that proper role of a client was in home; (7) testimony of expert as to attorneys' failure to bring to attention of marital dissolution court certain financial information concerning husband's business interests prior to settlement was relevant; and (8) trial court's admission of prior judicial opinions in marital dissolution proceeding was not abuse of discretion. Page I Affirmed. West Headnotes [1) Attorney and Client 45 e= 112 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45kll2 k. Conduct of Litigation. Most Cited Cases Client, who agreed to settlement of marriage dissolution action in reasonable reliance on advice of her attorneys, was entitled to bring malpractice claim against attorneys for negligence; fact that settlement had been approved by trial court did not insulate attorneys from malpractice action. [2) Attorney and Client 45 e= 112 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45k112 k. Conduct of Litigation. Most Cited Cases When it has been established that attorney, in advising client concerning settlement of action, has failed to exercise degree of skill and learning commonly applied under all circumstances in community by average, prudent, reputable member of legal profession and that conduct has resulted in injury, loss, or damage to client, client is entitled to recovery against attorney. [3) Appeal and Error 30 e= 863 30 Appeal and Error 30XVI Review 30XVI(A) Scope, Standards, and Extent, in General 30k862 Extent of Review Dependent on Nature of Decision Appealed from 30k863 k. In General. Most Cited Cases Supreme Court undertakes only limited appellate review of trial court's denial of motion for judgment notwithstanding the verdict; greatest de- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 646A.2d 195 231 Conn. 168,646 A.2d 195,63 USLW 2198 (Cite as: 231 Conn. 168, 646 A.2d 195) ference is accorded trial court's superior opportunity to view trial in its entirety. [4] Attorney and Client 45 C=> 129(2) 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45k129 Actions for Negligence or Wrongful Acts 45k129(2) k. Pleading and Evidence. Most Cited Cases Finding that attorneys were negligent in representation of client during dissolution proceedings was supported by evidence that attorneys failed to discover value of husband's business interests and related assets, which resulted in attorneys' advice that client accept inadequate settlement offer. [5] Evidence 157 C=> 571(9) 157 Evidence 157XII Opinion Evidence 157XII(F) Effect of Opinion Evidence 157k569 Testimony ofExperts 157k571 Nature of Subject 157k571(9) k. Cause and Effect. Most Cited Cases Finding that attorneys' negligent representation of client during dissolution proceedings was proximate cause of client's economic damage was supported by expert testimony that competent counsel would not have advised client to enter into settlement agreement and that client would have received significantly greater distribution of marital estate had she been properly represented. [6] Attorney and Client 45 C=> 129(4) 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45k129 Actions for Negligence or Wrongful Acts 45k129(4) k. Damages and Costs. Most Cited Cases Verdict of$1,500,000 awarded to client in malpractice action brought against attorneys who repPage2 resented client in marital dissolution proceeding was not excessive; value of marital estate was approximately $2,400,000, while settlement entered into upon advice of attorneys was approximately $450,000. [7] Attorney and Client 45 C=> 129(2) 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45k129 Actions for Negligence or Wrongful Acts 45k129(2) k. Pleading and Evidence. Most Cited Cases In attorney malpractice action, testimony of client that attorneys failed to seek order of alimony pendente lite in dissolution proceeding despite client's request that they do so was relevant to claim of negligence in failing to discover value of marital assets; testimony bore relevance to relationship between client and attorneys, in particular to manner in which attorneys had responded to client's requests. [8] Attorney and Client 45 C=> 129(2) 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45k129 Actions for Negligence or Wrongful Acts 45k129(2) k. Pleading and Evidence. Most Cited Cases In attorney malpractice action, trial court properly required attorney to testify on cross-examination as to whether he believed that judge presiding over marital dissolution proceeding in which attorney represented client held view that proper role of a client was in home; attorney's beliefs concerning judge's views toward women were relevant to issue of how attorneys intended to address any perceived bias of judge. [9] Evidence 157 C=> 512 157 Evidence 157XII Opinion Evidence © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 646 A.2d 195 231 Conn. 168,646 A.2d 195,63 USLW 2198 (Cite as: 231 Conn. 168, 646 A.2d 195) 157XII(B) Subjects of Expert Testimony 157k512 k. Due Care and Proper Conduct in General. Most Cited Cases In attorney malpractice action, testimony of expert as to wife's attorneys' failure to bring to attention of marital dissolution court certain financial information concerning husband's business interests prior to settlement was relevant to issue of alleged negligence of attorneys in advising settlement based on insufficient information regarding value of marital estate. [10] Evidence 157 €= 571(3) 157 Evidence 157XII Opinion Evidence 157XII(F) Effect of Opinion Evidence 157k569 Testimony ofExperts 157k571 Nature ofSubject 157k571(3) k. Due Care and Proper Conduct. Most Cited Cases In malpractice cases, expert's testimony must be evaluated in terms of its helpfulness to trier of fact on specific issues of standard of care and alleged breach of that standard; once threshold question of usefulness to jury has been satisfied, any other questions regarding expert's qualifications properly go to weight, and not to admissibility, of testimony. [11] Evidence 157 €= 332(1) 157 Evidence 157X Documentary Evidence 157X(A) Public or Official Acts, Proceedings, Records, and Certificates 157k332 Judicial Acts and Records 157k332(1) k. In General. Most Cited Cases In attorney malpractice action brought by client for alleged negligence of attorneys in advising settlement of marital dissolution proceeding, trial court's admission of prior judicial opinions from marital dissolution proceeding was not abuse of discretion, where attorney's counsel referred to opinions in opening statement, using opinions to Page3 strongly suggest that each decision constituted ratification of settlement agreement. [12] Evidence 157 €= 146 157 Evidence 157IV Admissibility in General 157IV(D) Materiality 157kl46 k. Tendency to Mislead or Confuse. Most Cited Cases Although relevant, evidence may be excluded by trial court if court determines that prejudicial effect of evidence outweighs its probative value. [13] Appeal and Error 30 €= 216(1) 30 Appeal and Error 30V Presentation and Reservation in Lower Court of Grounds of Review 30V(B) Objections and Motions, and Rulings Thereon 30k214 Instructions 30k216 Requests and Failure to Give Instructions 30k216(1) k. In General. Most Cited Cases Appeal and Error 30 €= 263(1) 30 Appeal and Error 30V Presentation and Reservation in Lower Court of Grounds of Review 30V(C) Exceptions 30k258 Review of Proceedings at Trial 30k263 Instructions, and Failure or Refusal to Give Instructions 30k263(1) k. In General. Most Cited Cases Supreme Court would not consider challenge to trial court's instructions to jury, absent request that trial court refer to any specific facts in jury charge and failure to except to trial court's instruction on that ground. Practice Book 1978, § 315. (14] Appeal and Error 30 €= 215(1) 30 Appeal and Error © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 646 A.2d 195 231 Conn. 168, 646 A.2d 195, 63 USL W 2198 (Cite as: 231 Conn. 168, 646 A.2d 195) 30V Presentation and Reservation in Lower Court of Grounds of Review 30V(B) Objections and Motions, and Rulings Thereon 30k214 Instructions 30k215 Objections in General 30k215(1) k. Necessity of Objection in General. Most Cited Cases Supreme Court would decline to review unpreserved jury instruction claim for plain error; review under plain error doctrine was reserved for truly extraordinary situations. Practice Book 1978, § 4185. **197 *169 William F. Gallagher, with whom, on the brief, were Elizabeth A. Gallagher, New Haven, and Robert W. Lotty, Fairfield, for appellants (defendants). Sue L. Wise, New Haven, with whom was Edward N. Lerner, Fairfield, for appellee (plaintiff). Before *168 PETERS, C.J., and CALLAHAN, BORDEN, PALMER and O'CONNELL, JJ. PALMER, Associate Justice. The principal issue raised by this appeal is whether a client who has agreed to the settlement of a marital dissolution action on the advice of his or her attorney may then recover against the attorney for the negligent handling of her case. The plaintiff, Elyn K. Grayson, brought this action against the defendants, Edward M. Kweskin, Emanuel Margolis, and their law firm, Wofsey, Rosen, Kweskin and Kuriansky, alleging that they had committed legal ~alprac_tice in ~e PMf 1 aration and settlement of her dissolution action. *170 After trial, a jury returned a verdict in the amount of $1,500,000 against the defendants. The trial court, Ballen, J, rendered judgment for the plaintiff in accordance with the jury verdict, and this appeal followed. FN2 The defendants claim that: (1) the plaintiff failed to establish, as a matter of law, that she was entitled to a recovery against them; (2) the evidence was insufficient to support the jury's verdict; (3) the trial Page4 court's rulings on certain evidentiary issues constituted an abuse of discretion; and (4) the trial court's instructions to the jury were improper. We affirm the judgment of the trial court. FNl. The plaintiff also brought suit against Robert Gervasoni, an accountant who assisted the defendants in the preparation of the marital dissolution action, and Gervasoni's accounting firm, Edward Isaacs Co. (Isaacs). The jury returned a verdict in favor of Gervasoni and Isaacs. Because the plaintiff has not appealed from the judgment rendered for Gervasoni and Isaacs, they are not parties to this appeal. FN2. The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199( c). The relevant facts and procedural history are as follows. In 1981, Arthur I. Grayson (husband) brought an action against the plaintiff for the dissolution of their marriage. On May 28, 1981, the third day of the dissolution trial before Hon. William L. Tierney, Jr., state trial referee, the plaintiff, on the advice of the defendants, agreed to a settlement of the case that had been negotiated by the defendants and counsel for her husband. The agreement provided, inter alia, that the plaintiff would receive lump sum alimony of $150,000 and periodic alimony of $12,000 per year. Judge Tierney found that the agreement was fair and reasonable and, accordingly, rendered a judment of dissolution incorporating the agreement. 3 FN3. "The stipulated judgment ordered the [husband] to pay to the [plaintiff] lump sum alimony of $150,000, payable in installments of $50,000 by June 28, 1981, $50,000 by August 28, 1981 . .. and $50,000 by February 28, 1982 ... together with nonmodifiable periodic alimony of $12,000 per year. The [husband] was also © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 646A.2d 195 231 Conn. 168,646 A.2d 195,63 USLW 2198 (Cite as: 231 Conn. 168, 646 A.2d 195) ordered to pay $15,000 as part of the [plaintiff's] attorney's fees and to maintain a $50,000 life insurance policy on his life owned by the [plaintiff] and payable to her. The [plaintiff] was ordered to transfer her one half interest in a business building at 636 Kings Highway, Fairfield, to the [husband], the equity in which he claimed was $50,000. The [plaintiff] was required to relinquish her claim in the amount of $27,000 to a certificate of deposit managed by the [husband]. The [plaintiff] was awarded full ownership of Daniel Oil [Company], which the [husband's] affidavit claimed produced an income of $18,000 per year. Works of art valued by the [husband] at $64,700 were ordered divided between the parties. Otherwise, each was to retain substantial other assets shown on their affidavits. The principal asset shown by the [husband's] affidavit [was] the valuation, after taxes due on liquidation, of his pension plan in Grayson Associates, Inc., at $340,152 and the principal asset shown by the [plaintiff's] affidavit [was] the former family residence at 15 Berkeley Road, Westport, in which the claimed equity was $167,000." Grayson v. Grayson, 4 Conn.App. 275, 277-78, 494 A.2d 576 (1985). **198 *171 On September 23, 1981, the plaintiff moved to open the judgment on the ground that the settlement agreement had been based on a fraudulent affidavit submitted to the court and to the plaintiff ~her husband. FN4 The trial court, Jacobson, J., 5 denied the plaintiff's motion to open the judgment and the plaintiff appealed to the Appellate Court, which affirmed the judgment. Grayson v. Grayson, 4 Conn.App. 275, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 221, 520 A.2d 225 (1987). FN4. The pertinent portions of that affidavit, and other facts relevant to the maritPageS al dissolution action, are set forth in Grayson v. Grayson, supra, 4 Conn.App. 275, 494 A.2d 576. FNS. The plaintiff's motion to open the marital dissolution judgment was heard and decided by Judge Jacobson. Unless otherwise indicated, references in this opinion to the trial court are to Judge Ballen. The plaintiff also brought this legal malpractice action against the defendants. Her complaint alleged that she had agreed to the settlement of the dissolution action on the advice of the defendants who, she claimed, had failed properly to prepare her case. The plaintiff further alleged that as a result of the defendants' negligence, she had agreed to a settlement that "was not reflective of her legal entitlement" and that she had "thereby sustained an actual economic loss." At trial, the plaintiff introduced evidence concerning her thirty year marriage, its breakdown due to her husband's affair with another woman, and the couple's *172 fmancial circumstances. After a detailed recounting of the history of the divorce litigation, the plaintiff presented the testimony of two expert witnesses, Thomas Hupp, a certified public accountant, and Donald Cantor, an attorney who specialized in the practice of family law. Hupp testified that the defendants had failed properly to value the marital estate and, in particular, the husband's various business interests. Cantor gave his opinion that the defendants' representation of the plaintiff fell below the standard of care required of attorneys in marital dissolution cases. Specifically, Cantor testified that: (1) the defendants had not conducted an adequate investigation and evaluation of the husband's business interests and assets; (2) they had not properly prepared for trial; (3) as a result of the defendants' negligence, the plaintiff had agreed to a distribution of the marital estate and an alimony award that were not fair and equitable under the law; see General Statutes © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 646 A.2d 195 231 Conn. 168,646 A.2d 195,63 USLW 2198 (Cite as: 231 Conn. 168, 646 A.2d 195) §§ 46b-81(c) FN6 and 46b-82; FN? and (4) the **199 plaintiff *173 would have received a greater distribution of the marital estate and additional alimony had she been competently represented. The trial court, Ballen, J., denied the defendants' motion for a directed verdict at the close of the plaintiffs case. FN6. General Statutes § 46b-81(c) provides in relevant part: "In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party ... shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates." FN7. General Statutes § 46b-82 provides in relevant part: "In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party ... shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 , and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment." In their case in defense, the defendants testified concerning their handling of the plaintiffs case, and Page6 they also presented the expert testimony of two attorneys, James Stapleton and James Greenfield. These experts expressed the opinion that the defendants' representation of the plaintiff comported with the standard of care required of attorneys conducting dissolution litigation. The jury returned a verdict for the plaintiff in the amount of $1,500,000. The defendants thereafter filed motions to set aside the verdict and for judgment notwithstanding the verdict. The trial court denied those motions and rendered judgment in accordance with the verdict. Additional facts are set forth as relevant. I [1] The defendants first claim that the trial court improperly denied their motions for a directed verdict and for judgment notwithstanding the verdict on the ground that the plaintiff was barred from recovering against them, as a matter of law, due to her agreement to settle the marital dissolution action. We conclude that the plaintiff was not so barred. The defendants urge us to adopt a common law rule whereby an attorney may not be held liable for negligently advising a client to enter into a settlement agreement. See Muhammad v. Strassburger, McKenna, Messer, Shi/obod & Gutnick, 526 Pa. 541, 587 A.2d 1346 (1991). They argue that, as a matter of public policy, an attorney should not be held accountable for improperly advising a client to settle a case unless that advice *174 is the product of fraudulent or egregious misconduct by the attorney. See id. The defendants contend that the adoption of such a rule is necessary in order to promote settlements, to protect the integrity of stipulated judgments, and to avoid the inevitable flood of litigation that they claim will otherwise result. They claim that such a rule is particularly appropriate if, as here, the court has reviewed and approved the settlement agreement. We have long recognized that the pretrial settlement of claims is to be encouraged because, in © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 646 A.2d 195 231 Conn. 168,646 A.2d 195,63 USLW 2198 (Cite as: 231 Conn. 168,646 A.2d 195) the vast number of cases, an amicable resolution of the dispute is in the best interests of all concerned. "The efficient administration of the courts is subserved by the ending of disputes without the delay and expense of a trial, and the philosophy or ideal of justice is served in the amicable solution of controversies." Krattenstein v. G. Fox & Co., 155 Conn. 609, 614, 236 A.2d 466 (1967). We have also acknowledged that, with appropriate judicial supervision, the "private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine." Hayes v. Beresford, 184 Conn. 558, 568, 440 A.2d 224 (1981); Baker v. Baker, 187 Conn. 315, 321-22, 445 A.2d 912 (1982). At a time when our courts confront an unprecedented volume of litigation, we reaffirm our strong support for the implementation of policies and procedures that encourage fair and amicable pretrial settlements. [2] We reject the invitation of the defendants, however, to adopt a rule that promotes the finality of settlements and judgments at the expense of a client who, in reasonable reliance on the advice of his or her attorney, agrees to a settlement only to discover that the attorney had failed to exercise the degree of skill and learning required of attorneys in the circumstances. "Although we encourage settlements, we recognize that litigants *175 rely heavily on the professional advice of counsel when they decide whether to accept or reject offers of settlement, and we insist that the lawyers of our state advise clients with respect to settlements with the same skill, knowledge, and diligence with which they pursue all other legal tasks." Ziegelheim v. Apollo, 128 N.J. 250, 263, 607 A.2d 1298 (1992). Therefore, when it has been established that an attorney, in advising a client concerning the settlement of an action, has failed to "exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average**200 prudent reputable member of the [legal] profession ... [and that conduct has] result[ed in] injury, loss, or damage to the [client]"; (internal quotation marks omitted) Davis v. Margolis, 215 Conn. 408, Page7 415, 576 A.2d 489 (1990); the client is entitled to a recovery against the attorney. Accordingly, like the majority of courts that have addressed this issue, we decline to adopt a rule that insulates attorneys from exposure to malpractice claims arising from their negligence in settled cases if the attorney's conduct has damaged the client. See Edmondson v. Dressman, 469 So.2d 571 (Ala.l985); Bill Branch Chevrolet, Inc. v. Burnett, 555 So.2d 455 (Fla.App.1990); McCarthy v. Pedersen & Houpt, 250 Ill.App.3d 166, 190 Ill.Dec. 228, 621 N.E.2d 97 (1993); Braud v. New England Ins. Co., 534 So.2d 13 (La.App.l988); Fishman v. Brooks, 396 Mass. 643, 487 N.E.2d 1377 (1986); Lowman v. Karp, 190 Mich.App. 448, 476 N.W.2d 428 (1991); Ziegelheim v. Apollo, supra, 128 N.J. 250, 607 A.2d 1298; Cohen v. Lipsig, 92 A.D.2d 536, 459 N.Y.S.2d 98 (1983); but see Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, supra, 526 Pa. 541, 587 A.2d 1346. Furthermore, we do not believe that a different result is required because a judge had approved the settlement of the plaintiff's marital dissolution action. Although in dissolution cases "[t]he presiding judge has *176 the obligation to conduct a searching inquiry to make sure that the settlement agreement is substantively fair and has been knowingly negotiated"; Hayes v. Beresford, supra, 184 Conn. at 568, 440 A.2d 224; Baker v. Baker, supra, 187 Conn. at 321, 445 A.2d 912; see General Statutes § 46b-66; the court's inquiry does not serve as a substitute for the diligent investigation and preparation for which counsel is responsible. See Monroe v. Monroe, 177 Conn. 173, 183, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979) ("lawyers who represent clients in matrimonial dissolutions have a special responsibility for full and fair disclosure, for a searching dialogue, about all of the facts that materially affect the client's rights and interests"). Indeed, the dissolution court may be unable to elicit the information necessary to make a fully informed evaluation of the settlement agreement if counsel for either of the parties has failed properly to discover and analyze © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 646 A.2d 195 231 Conn. 168,646 A.2d 195,63 USLW 2198 (Cite as: 231 Conn. 168, 646 A.2d 195) the facts that are relevant to a fair and equitable settlement. Finally, we do not share the concern expressed by the defendants about the impact that our resolution of this issue will have on settlements, stipulated judgments, and the volume of litigation. Indeed, the defendants do not suggest that attorneys have heretofore bee~ unwilling to recommend settlements out of concern over possible malpractice suits, for attorneys in this state have never been insulated from negligence claims by the protectional rule urged by the defendants. Because settlements will often be in their clients' best interests, we harbor no doubt that attorneys will continue to give advice concerning the resolution of cases in a manner consistent with their professional and ethical responsibilities. We similarly reject the defendants' prediction of a dramatic increase in legal malpractice claims by parties to marital dissolution actions who, after judgment, have become disenchanted with the settlement agreementsnegotiated *177 by their attorneys. Again, we have no reason to believe that our resolution of the defendants' claim will prompt an increase in malpractice suits against attorneys because, in declining to narrow the existing common law remedy for attorney malpractice, we create no new claim or theory of recovery. Moreover, as the New Jersey Supreme Court has recently stated in response to the same concern expressed by the defendants here, "plaintiffs must allege particular facts in support of their claims of attorney incompetence and may not litigate complaints containing mere generalized assertions of malpractice. We are mindful that attorneys cannot be held liable simply because they are not successful in persuading an opposing party to accept certain terms. Similarly, we acknowledge that attorneys who pursue reasonable strategies in handling their cases and who render reasonable advice to their clients cannot be held liable for the failure of their strategies or for any unprofitable outcomes that result because their clients took their advice. The **201 law demands Page 8 that attorneys handle their cases with knowledge, skill, and diligence, but it does not demand that they be perfect or infallible, and it does not demand that they always secure optimum outcomes for their clients." Ziegelheim v. Apollo, supra, 128 N.J. at 267, 607 A.2d 1298. We believe, therefore, that the rule proposed by the defendants is neither necessary nor advisable. Accordingly, we conclude that a client who has agreed to the settlement of an action is not barred from recovering against his or her attorney for malpractice if the client can establish that the settlement agreement was the product of the attorney's negligence. II The defendants next claim that the evidence was insufficient to support the jury's verdict with respect to both liability and damages and, therefore, that the *178 trial court improperly denied their motions to set aside the verdict and for judgment notwithstanding the verdict. We disagree. [3] It is well established that "[w]e undertake only limited appellate review of a trial court's denial of a motion for judgment notwithstanding the verdict and of a motion to set aside the verdict. In each case, we accord great deference to the trial court's superior opportunity to view the trial in its entirety. In reviewing the decision of the trial court, we consider the evidence in the light most favorable to the sustaining of the verdict.... Our function is to determine whether the trial court abused its discretion in denying [either] motion.... The trial court's [denial of each motion] is entitled to great weight and every reasonable presumption should be indulged in favor of its correctness .... " (Citations omitted; internal quotation marks omitted.) Blanchette v. Barrett, 229 Conn. 256, 264, 640 A.2d 74 (1994). With these principles in mind, we address the defendants' claims of evidentiary insufficiency. A [ 4] The defendants contend that the evidence © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 646 A.2d 195 231 Conn. 168,646 A.2d 195,63 USLW 2198 (Cite as: 231 Coon. 168, 646 A.2d 195) does not support a determination that they were deficient in their representation of the plaintiff. They also claim that the plaintiffs evidence was so speculative that a jury reasonably could not have concluded that the defendants' conduct was the proximate cause of any economic harm to the plaintiff. We disagree. The following evidence, which the jury could have credited, is relevant to these claims. At the time of the trial of the marital dissolution action, the plaintiff and her husband had been married for thirty years. The plaintiff, fifty-three years old, was a graduate of Simmons College, and for eight years had owned and operated her own real estate business. Prior to opening her *179 real estate office, the plaintiff had remained at home to raise the couple's three daughters. Her husband, a fifty-six year old graduate of the Wharton School of Finance and Columbia Law School, was a successful entrepreneur. Among her husband's business interests were several bowling alleys. He held a 20 percent general partnership interest in Nutmeg Bowl, Colonial Lanes and Laurel Lanes, and was in charge of their management. In addition, he owned 100 percent of the stock in three lounges that served food and beverages to patrons of the bowling alleys. The husband also had a beneficial interest in the Grayson Associates Pension and Profit Sharing Plan, which in turn was a limited partner in the three bowling alleys. Grayson Associates, Inc., a management company in which the husband was the sole shareholder, received management fees from the three bowling alleys. Although Grayson Associates had a fair market value of $487,000, the husband's financial affidavit listed only its book value of $14,951. The husband's fmancial affidavit also listed a $46,080 limited partnership interest in Georgetown at Enfield Associates (Georgetown partnership), and a future general partnership interest in that partnership of $959.76. The husband's affidavit failed to disclose, however, that he intended to take a Page9 $185,000 partnership distribution from the Georgetown partnership and that he was entitled to $45,000 in management**202 fees from that partnership. FN8 To the contrary, the affidavit affumatively represented that the husband would receive no future income from the Georgetown partnership. Finally, the husband's affidavit indicated an annual income of approximately $62,000. FN8. The husband's partner in the Georgetown partnership, Leslie Barth, testified that, at the time of the dissolution trial, the husband planned to take a partnership distribution of$185,000 from the Georgetown partnership, and that the partnership also owed the husband $45,000 in management fees. *180 The plaintiffs fmancial affidavit, which was prepared by the defendants in consultation with the plaintiff, indicated that she had no income. The plaintiff had testified at her deposition prior to the dissolution trial, however, that she earned approximately $25,000 annually from her real estate business, and that she expected to receive commissions in excess of$34,000 in 1981. The plaintiff's expert witness Cantor expressed his opinion that the defendants had been negligent in failing properly to discover and evaluate certain assets of the marital estate.FN9 Specifically, Cantor testified that the defendants had improperly failed to: (1) ascertain the full value of the Georgetown partnership; (2) discover the $165,000 anticipated distribution to the husband by that partnership; and (3) discover the $45,000 management fee owed to the husband by the partnership. Cantor also testified that because the defendants had failed to obtain appraisals for several of the assets, including 636 Kings Highway and Grayson Associates, Inc., the defendants were unable to challenge various inconsistencies in the husband's fmancial affidavit. Cantor further testified that the defendants had failed properly to establish the husband's "residual interest in the bowling alleys ... as a general partner," an asset not expressly valued in the husband's affi- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 646A.2d 195 231 Conn. 168,646 A.2d 195,63 USLW 2198 (Cite as: 231 Conn. 168, 646 A.2d 195) davit. FN9. Cantor testified that "[t]he value of the assets is the prime information that ... [a lawyer] need[s] to have in order to sit down and intelligently discuss how the assets will be divided. If you don't have that information, you are crippled when you sit down to attempt to negotiate." Cantor also explained that, in his opinion, the defendants had failed to exercise due care in the preparation of the plaintiffs financial affidavit. In Cantor's judgment, the plaintiffs credibility had been seriously and unnecessarily compromised because her financial affidavit did not include the income from her real estate business. Cantor also noted that the plaintiffs credibility may have been further undermined by virtue of *181 the defendants' submission of three separate documents containing three different valuations of another marital asset, the Daniel Oil Company. Cantor expressed his opinion that at the end of the two days of trial, there was not enough financial information available to the lawyers to permit them to responsibly recommend settlement to the plaintiff. He further concluded that the defendants' failure to satisfy the standard of skill and care required of attorneys in such cases was the cause of economic damage to the plaintiff because, in his view, she would have received a larger distribution of the marital estate had the defendants represented her competently. Finally, Cantor testified to his opinion that the plaintiff reasonably could have anticipated receiving 40 to 60 percent of the total marital estate, l'l"iilO whic . h d' th I . ·= 'tn , accor mg to e p amhu s WI esses, had a value of approximately $2,400,000. Cantor also opined that the plaintiff reasonably could have anticipated receiving periodic modifiable alimony of approximately 35 to 50 percent of the parties' b. d. FN11 com me mcomes. FNlO. In support of his opinion, Cantor Page 10 noted that: ( 1) the plaintiff and her husband had been married for thirty years; (2) the plaintiff was fifty-three years old; (3) the evidence indicated that the husband had committed adultery; and (4) the plaintiff had contributed significantly to the marital estate. In Cantor's view, these were all significant factors to be considered by a court in determining how the assets of the parties should be divided and whether alimony should be awarded. FNll. Cantor testified that if the plaintiff had received a distribution of the marital estate that was at the high end of the 40 to 60 percent range, then she could have expected to receive an alimony award that was at the low end of the 35 to 50 percent range. **203 We conclude that the evidence adduced at trial was sufficient to support the jury's determination that the defendants were negligent in their representation of the plaintiff. The jury reasonably could have determined, on the basis of the testimony of the plaintiffs expert, that the defendants had negligently failed to *182 discover and value the husband's business interests and related assets, and that the terms of the settlement agreement did not represent a fair and equitable distribution of the true marital estate. Moreover, the jury was entitled to credit Cantor's testimony that the defendants' advice to accept the settlement agreement was the product of their inadequate investigation and preparation. [5] We further conclude that the evidence supported the jury's determination that the defendants' negligence was the proximate cause of economic damage to the plaintiff. "[T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiffs injuries.... The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection." (Citations omitted; internal © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 646 A.2d 195 231 Conn. 168,646 A.2d 195,63 USLW 2198 (Cite as: 231 Conn. 168,646 A2d 195) quotation marks omitted.) Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987). Cantor testified that competent counsel would not have advised the plaintiff to enter into the settlement agreement, and that she would have received a significantly greater distribution of the marital estate had she been properly represented. Although the defendants vigorously contested this testimony, the jury was entitled to credit it. In view of that testimony, we cannot say that the jury necessarily resorted to conjecture, surmise or speculation in reaching its verdict. ld.; Pisel v. Stamford Hospital, 180 Conn. 314, 340, 430 A.2d 1 (1980); Slepski v. Williams Ford, Inc., 170 Conn. 18, 22, 364 A.2d 175 (1975). The jury reasonably could have concluded, therefore, that the defendants' negligence was the proximate cause of economic harm to the plaintiff. B [6] The defendants further claim that the jury's verdict was excessive as a matter of law. We do not agree. *183 The jury could have credited the testimony of the plaintiff's witnesses that the value of the marital estate, at the time of the divorce, was approximately $2,400,000, and that the value of the plaintiff's distribution, under the terms of the stipulated judgment, was approximately $450,000. Because the jury could have concluded, as Cantor testified, that the plaintiff reasonably could have expected to receive up to 60 percent of the value of the marital estate, namely, $1,400,000, the jury also could have determined that the plaintiff, had she been competently represented, would have received approximately $1,000,000 more of the estate's assets than she had been awarded pursuant to the stipulated judgment. In addition, on the basis of Cantor's testimony that the plaintiff could have expected to receive alimony of between 35 and 50 percent of the parties' combined annual income, the jury reasonably could have concluded that the plaintiff would have received alimony of up to $35,000 more per year than she had agreed to in settlement of the marital dissolution action. FNl2 Page 11 Furthermore, the jury was free to have calculated the economic damage to the plaintiff in lost alimony from the date of the marital dissolution action in 1981 indefinitely in to the plaintiff's future. Viewed in the light most favorable to the plaintiff, therefore, the evidence supported the jury's verdict of$1,500,000. FN12. Although the husband's fmancial affidavit listed annual income of approximately $62,000, the jury could have concluded, based on the testimony of the plaintiff's witnesses, that the husband's annual income was as much as twice that amount. "Litigants have a constitutional right to have factual issues resolved by the jury .... This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded.... The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the *184 jury .... The size of the verdict alone does not determine whether it is excessive. The only practical test to apply to this verdict is whether **204 the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption." (Citations omitted; internal quotation marks omitted.) Mather v. Griffin Hospital, 207 Conn. 125, 138-39, 540 A.2d 666 (1988); see also Bartholomew v. Schweizer, 217 Conn. 671, 687, 587 A.2d 1014 (1991). Because the jury reasonably could have concluded that the defendants' negligence caused economic damage to the plaintiff in the amount of $1,500,000, the verdict was not excessive as a matter of law. Therefore, the defendants' claim that the trial court improperly denied their motions to set aside the verdict and for judgment notwithstanding the verdict must fail. III The defendants also claim that the trial court's © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 646A.2d 195 231 Conn. 168,646 A.2d 195,63 USLW 2198 (Cite as: 231 Conn. 168, 646 A.2d 195) rulings on several evidentiary issues require reversal of the judgment against them. Specifically, the defendants contend that the trial court improperly permitted the plaintiff to introduce: (1) testimony concerning the defendants' failure to seek an order of alimony pendente lite; (2) testimony concerning the attitude toward women held by the dissolution court; (3) expert testimony concerning the defendants' failure to discover certain of the husband's undisclosed assets; and (4) certain decisions issued by the trial court'l Jacobson, J., the Appellate Court and this court. FN 3 FN13. The defendants also claim that the trial court improperly permitted the plaintiff's expert to testify that the defendants had negligently failed to bring to the attention of the dissolution court evidence of the husband's adultery. We do not address this claim because the defendants failed to object to the testimony in the trial court. See Practice Book§ 4185. Our role in reviewing evidentiary rulings of the trial court is settled. "This court has consistently held that *185 trial courts are vested with broad discretion in rulings on relevancy and every reasonable presumption must be given in favor of the court's ruling .... Evidence is relevant if it tends to establish a fact in issue or corroborates other direct evidence.... Rulings on such matters will be disturbed on appeal only upon a showing of a clear abuse of discretion." (Citations omitted; internal quotation marks omitted.) Holy Trinity Church of God in Christ v. Aetna Casualty & Surety Co., 214 Conn. 216, 222, 571 A.2d 107 (1990). We conclude that the trial court acted within its discretion in permitting the introduction of the challenged evidence. A [7] The defendants first claim that the trial court improperly permitted the plaintiff to testify that the defendants had failed to seek an order of alimony pendente lite notwithstanding her request that they do so. The defendants contend that the testimony was not relevant to any of the plaintiff's Page 12 claims because Cantor did not testify that the defendants' failure to seek temporary alimony constituted a breach of their duty of care to the plaintiff. We do not agree. The trial court could reasonably have concluded that the plaintiff's testimony bore sufficient relevance to the relationship between the plaintiff and the defendants, and, in particular, the manner in which the defendants had responded to her requests, to allow its admission. In that regard, we have noted that "the fiduciary responsibility of a lawyer to his client, particularly in matrimonial settlements, requires reasonable inquiry into the wishes as well as the objective best interests of the client." (Emphasis added.) Monroe v. Monroe, supra, 177 Conn. at 183, 413 A.2d 819. In addition, a motion for temporary alimony that had been filed, but not pressed, by the defendants, was admitted into evidence without objection. Finally, the defendants have failed to *186 demonstrate that the plaintiff's testimony was likely to have been unduly prejudicial, particularly in view of the fact that I . "ft' 1 d"d k 1 . . FNl4 p amtl s counse 1 not see to exp ott It. Therefore, we conclude that the trial court did not abuse its discretion in allowing the plaintiff's testimony concerning the defendants' failure to pursue her request for alimony pendente lite. FN14. For example, plaintiff's counsel made no mention of the testimony in her closing argument to the jury. **205 B [8] The defendants also claim that the trial court should not have required the defendant K weskin to testify on cross-examination as to whether he believed that Judge Tierney held the view that the proper role of a wife was in the home. In view of other related defense testimony, we disagree. The defendants' expert Greenfield testified that in his opinion, Judge Tierney believed that women should be "modestly taken care of." Greenfield further testified that he considered it to be the responsibility of a matrimonial lawyer to be aware of any © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 646A.2d 195 231 Conn.l68,646A.2d 195,63 USLW2198 (Cite as: 231 Conn. 168, 646 A.2d 195) bias, to the extent possible, of the dissolution court that might have a bearing on the court's handling of the marital dissolution action. Moreover, the defendant Margolis had testified that he believed that Judge Tierney was more likely to believe the husband's testimony than the plaintiffs. In light of this testimony, Kweskin's beliefs concerning Judge Tierney's views toward women generally, and working women in particular, were relevant to the issue of how the defendants intended to address any mceived bias he may have held toward women. 15 Under the circumstances presented, therefore, we conclude*187 that the trial court did not abuse its discretion in overruling the defendants' objection to the plaintiffs inquiry. FN15. After the trial court overruled the defendants' objection to the plaintiffs question, Kweskin responded that he did not know whether Judge Tierney held any bias toward women, but that if the judge did have such a bias, he would not have allowed it to affect the exercise of his judgment in the case. c [9] The defendants next claim that the trial court improperly allowed the plaintiffs expert to testify concerning the defendants' failure to bring to the attention of the dissolution court certain financial information concerning the Georgetown partnership. The defendants argue that the expert testimony should have been excluded in view of the fact that (1) testimony about those assets might have been elicited by the defendants had the marital dissolution trial proceeded to conclusion, but that, in any event, (2) the defendants' failure to bring the husband's expectancy interest in the Georgetown partnership to the attention of the dissolution court did not, as a matter of law, constitute a breach of the standard of care owed by the defendants to the plaintiff. We disagree. We briefly reiterate the facts relevant to this claim. On the first day of the marital dissolution trial, the husband filed an affidavit with the court purPage 13 porting to identify his assets. The affidavit stated that the plaintiff expected no future income from the Georgetown partnership. In fact, at the time of the trial, the husband planned to take a distribution of approximately $185,000 from the Georgetown partnership, and the partnership owed him $45,000 in management fees. The husband's affidavit did not contain this information. The plaintiffs expert, Cantor, testified that the defendants would have uncovered these interests had they engaged in proper discovery and conducted a reasonably diligent pretrial investigation. Cantor further testified that the revelation of the husband's interest in these payments was critically important to the dissolution *188 court's evaluation of the husband's credibility and to the court's determination of the fair and equitable distribution of the marital estate. The defendants claim that these payments, as mere "expectancies," were irrelevant as a matter of law to any issue in the marital dissolution action. On the basis of this premise, the defendants argue that the dissolution court could not have considered these anticipated payments for any reason and, therefore, that the testimony of the plaintiffs expert on the subject was improper. First, we do not agree with the defendants that the expert testimony was improperly admitted because there might have been testimony about the payments if the trial of the marital dissolution action had continued. The trial did not proceed, and Judge Tierney was not otherwise made aware of the expected payments when he approved the parties' settlement agreement. The jury in this case reasonably could have concluded that the dissolution court would not have approved the agreement had it been fully and properly **206 apprised of the husband's true financial circumstances. Furthermore, we do not believe that the dissolution court was necessarily precluded from consideration of the Georgetown partnership distribution and management fees. In view of the clear and unequivocal testimony that the husband would receive the partnership distribution and management fees, © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 646A.2d 195 231 Conn. 168,646 A.2d 195,63 USLW 2198 (Cite as: 231 Conn. 168,646 A.2d 195) we cannot conclude that his receipt of the payments was so speculative or contingent that the trial judge could not have considered them. See Eslami v. Eslami, 218 Conn. 801, 806-808, 591 A.2d 411 (1991). Moreover, the issue of the relevance and significance of those anticipated payments was properly the subject of expert testimony, and the jury was free to credit the testimony of Cantor on the issue. "The requirement of expert testimony in malpractice cases serves to assist lay people, such as members *189 of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant's actions in light of that standard. Fitzmaurice v. Flynn, 167 Conn. 609, 617, 356 A.2d 887 (1975); Decho v. Shutkin, 144 Conn. 102, 106, 127 A.2d 618 (1956); Bent v. Green, [39 Conn.Supp. 416, 420, 466 A.2d 322 (1983) ]." Davis v. Margolis, supra, 215 Conn. at 416, 576 A.2d 489. [10] "The general standard for admissibility of expert testimony in Connecticut is simply that the expert must demonstrate a 'special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue.' Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973); see State v. George, 194 Conn. 361, 373, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S.Ct. 963, 83 L.Ed.2d 968 (1985). In malpractice cases, the expert's testimony must be evaluated in terms of its helpfulness to the trier of fact on the specific issues of the standard of care and the alleged breach of that standard. Fitzmaurice v. Flynn, supra at 616-18, 356 A.2d 887 .... Once the threshold question of usefulness to the jury has been satisfied, any other questions regarding the expert's qualifications properly go to the weight, and not to the admissibility, of his testimony. Sanderson v. Bob's Coaster Corporation, 133 Conn. 677, 682, 54 A.2d 270 (1947)." (Citations omitted.) Davis v. Margolis, supra, 215 Conn. at 416, 576 A.2d 489. Because the trial court reasonably concluded that the expert Page 14 testimony would assist the jury to understand the nature of the defendants' duty to the plaintiff in the circumstances, the defendants' contention that the trial court improperly permitted the challenged . . .th . FN16 testunony 1s W1 out ment. FN16. The defendants make the same claim in arguing that the trial court improperly failed to direct the jury, in its instructions at the conclusion of the evidence, to disregard Cantor's testimony about the Georgetown partnership distribution and management fees. We reject that claim for the reasons stated above. *190D [11] The defendants further claim that the trial court improperly allowed the plaintiff to introduce certain written opinions of the trial court, Jacobson, J., the Appellate Court and this court concerning the plaintiffs motion to open the marital dissolution judgment. Under the circumstances of their introduction, we are not persuaded that the admission of these opinions constituted an abuse of discretion. The judicial opinions introduced by the plaintiff consisted of the memorandum of decision of the trial court, Jacobson, J., dated September 19, 1983, denying the plaintiffs motion to open the marital dissolution decree; the opinion of the Appellate Court affirming the judgment of the trial rt FN17 dth . . fthi d .. cou ; an e opm10n o s court 1sm1ssing, as improvidently granted, the plaintiffs petition for certification to a~~eal from the judgment of the Appellate Court. FN The plaintiff sought the admission of these opinions in response to the openiWtltatement to the jury of counsel for Gervasoni, 19 the accountant**207 who had assisted the defendants in preparing the marital dissolution I h. · ta FN20 G ., case. n 1s openmg s tement, ervasom s counsel attacked the plaintiff for *191 seeking to open **208 the marital dissolution decree and for appealing the denial of her motion to the Appellate *192 Court and to this court. The statement, which included counsel's characterization of the reasons why the courts had rejected the plaintiffs claim, © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 646A.2d 195 231 Conn. 168,646 A.2d 195,63 USLW 2198 (Cite as: 231 Conn. 168, 646 A.2d 195) strongly suggested that each of the decisions constituted a ratification of the settlement agreement and a rejection of the plaintiffs claim that she had been ill-advised to enter into it. The trial court did not abuse its discretion in concluding that the judicial opinions in question were admissible as a relevant response to Gervasoni's opening statement to the . FN21 JUry. FN17. Grayson v. Grayson, supra, 4 Conn.App. 275, 494 A.2d 576. FN18. Grayson v. Grayson, supra, 202 Conn. 221, 520 A.2d 225. FN19. See footnote 1. FN20. The relevant portions of the opening statement of counsel for Gervasoni are as follows: " [After reaching a settlement, the parties] said this is what we have decided, they read [the agreement] into the record and [the trial judge,] Judge Tierney, said, I approve it, because he too knew that it was a favorable settlement for Mrs. Grayson. "And the evidence will show that the court put its stamp of approval on it, and the evidence will show that that dissolution action then became a matter of record. And the settlement became final. "Now, that didn't satisfy Mrs. Grayson. She wasn't really even at this point satisfied with what she had managed to get in the settlement. She decided at this point that she didn't get enough, that she should have had more, and the evidence will show that she then went back into this court, not now yet against her attorneys or her accountants, but she went back into the court seeking to overthrow the settlement, seeking to set it aside, and the evidence will show that that's a Page 15 very rare occurrence, and that's where Judge Burton Jacobson comes in .... "Judge Jacobson, again, a respected judge . . . had this case brought before him when he was sitting in this very courthouse as a judge, and the claim there by Mrs. Grayson was that this case should be, that this settlement should be overturned because she didn't know, she didn't get enough, she was unhappy with it, her husband was too wealthy, he got too good a deal, it should be started all over again. "Judge Jacobson heard the case, as he was obligated to do. Whether he thought it was a bad case or a good case, everybody has a right to bring a suit in court and have it decided, and another trial took place, this time without a jury before Judge Jacobson, in this very building. The evidence will show that he listened to that trial and refused to reopen the case or do anything about it. Because he felt that, as he decided finally, that the settlement was a fair settlement and that there was no reason to disturb this settlement, throw it out, start all over, do anything about it. "So, again, this hearing again from the Superior Court at Stamford, again before Judge-Superior Court Judge Jacobson who says, no, it stands. And the evidence will then show that now we have two judges, Judge Tierney, Judge Jacobson putting their stamp of approval on the settlement. But Mrs. Grayson still wasn't happy. It went on yet. She appealed Judge Jacobson's decision. Didn't like it. And the appeal then went up to Hartford to the court known as the Appellate Court, which the evidence will show is the immediate appeal court over the Superior Court-we are now in the Superior © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 646A.2d 195 231 Conn. 168, 646 A.2d 195, 63 USL W 2198 (Cite as: 231 Conn. 168,646 A.2d 195) Court-the court known as the Appellate Court, and the Appellate Court is the next level. "So she doesn't like what Judge Jacobson does, up she goes to the Appellate Court. The Appellate Court held another hearing, the attorneys had to go up, the attorneys had to write briefs and file briefs, then they had to go up to the Appellate Court, and the evidence will show that that's exactly what happened, they wrote the briefs on both sides, they rehashed what happened before Judge Tierney, they rehashed what happened before Judge Jacobson, they made their claims back and forth again and they went up to the [Appellate] Court, which consists of three judges who sit on the bench in a trio really to decide the case, and these are judges who have appellate experience, who are selected really to exercise appeal jurisdiction over the Superior Court. And these three judges, three of them, looked at the case and heard it, heard the arguments, and the court ruled, there is only one decision, and one majority decision there, and the court ruled in that majority decision that, again, there was no fraud, there was no hiding, there was nothing unfair, there was no overreaching. So, in effect the Appellate Court sanctioned and affirmed and approved of what Judge Tierney had done and what Judge Jacobson had done. "Still Mrs. Grayson wasn't satisfied. Mrs. Grayson then asked for permission to appeal the Appellate Court ruling, to go further to the Connecticut Supreme Court. In this type of case the Connecticut Supreme Court has to grant permission to argue, to take an appeal. The appeal is not automatic as it is for the Appellate Court. She wasn't going to let it Page 16 go then. She wanted it to go to the Supreme Court of the State of Connecticut. "The Supreme Court of the State of Connecticut, the evidence will show, after the filing of some papers and the request to hear it and the asking for arguments, refused to hear it on a factual basis. They, in effect, said we are not going to hear it; the Appellate Court decision stands. All right. "So now we have the trial before Judge Tierney, the trial before Judge Jacobson, the Appellate Court, the Supreme Court, nobody will touch this divorce agreement. Mrs. Grayson still isn't happy, she is still looking for more money. So then she turns on her attorneys and her accountants-not going to get anymore money through the divorce action, not going to get anything more from her husband, the court systems says, okay, okay, okay. "So her next bet, the next level is, now I think I'll sue the attorneys and I think I'll sue the accountants, I may get some money that way. And that's what this case is about, and that's why we are here in court and I think that when you listen to the case, bear in mind the evidence that is going to be coming out of the case. The evidence will demonstrate that her case about being misled or not told or somehow defrauded is as weak and insignificant now as it was before Judge Tierney and Judge Jacobson and the Appellate Court. The fact of the matter is that the attorneys and the accountants acted well, they acted faithfully, they acted loyally and they went the last mile for her. They do not deserve this fate, ladies and gentlemen, and I would urge that you listen to the evidence carefully, keep an open mind until both sides are heard © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 646 A.2d 195 231 Conn. 168,646 A.2d 195,63 USLW 2198 (Cite as: 231 Conn. 168, 646 A.2d 195) and I think that you will see this case and you'll find favorably in favor of the defendants." FN21. We note that the defendants made no objection to the opening statement of counsel for Gervasoni. *193 [12] Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. Berry v. Loiseau, 223 Conn. 786, 804, 614 A.2d 414 (1992); Russell v. Dean Witter Reynolds Inc., 200 Conn. 172, 191-92, 510 A.2d 972 (1986). We have identified at least four circumstances where the prejudicial effect of otherwise admissible evidence may outweigh its probative value: "(1) where the facts offered may unduly arouse the jury's emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the [party against whom the evi~ence has been offered], having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it." State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982); State v. Greene, 209 Conn. 458, 478-79, 551 A.2d 1231 (1988). The defendants claim that the judicial opinions should have been excluded because they tended to create a side issue that was likely to have distracted the jury. They have articulated no reason, however, why the admission of the opinions was likely to have caused such a distraction. Moreover, the defendants have provided no explanation of which specific statements or references in the opinions were likely to have caused them prejudice, or why. We will not speculate concerning the prejudicial effect of otherwise relevant evidence when the party challenging the admission of the evidence on the ground of undue prejudice has failed to identify, with reasonable particularity, the source of the alleged prejudice and the reason why the evidence was likely to have Page 17 been prejudicial. See Pet v. Dept. of Health Services, 228 Conn. 651, 675-76, 638 A.2d 6 (1994). Accordingly, the defendants' claim must fail. *194 IV [13] The defendants also challenge the trial court's instructions to the jury, claiming that they were fundamentally inadequate because the court improperly failed to relate the facts of the case to the applicable law. The defendants, however, did not request that the trial court refer to any specific c. . . . h FN22 d th . 'I I ~acts m 1ts Jury c arge, an ey s1m1 ar y failed to except to the court's instruction on that ground. We therefore do not reach the merits of the defendants' claim. See Practice Book§ 315.FN23 FN22. The defendants initially excepted to the trial court's failure to instruct the jury on the Georgetown partnership with greater factual specificity. During the colloquy following the court's instructions, however, the defendants expressly withdrew their exception. FN23. Practice Book § 315 provides in relevant part: "The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection .... " [14] We also decline the defendants' invitation to afford plain error review to this claim. "Review under the plain error doctrine .. . is reserved for truly extraordinary situations where the existence of the error is **209 so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." (Citations omitted; internal quotation marks omitted.) State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); Williamson v. Commissioner of Transportation, 209 Conn. 310, 317, 551 A.2d 704 (1988); see Practice Book § © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 646A.2d 195 231 Conn. 168,646 A.2d 195,63 USLW 2198 (Cite as: 231 Conn. 168, 646 A.2d 195) 4185. On the basis of our careful review of the trial , th gh . . . FN24 court s orou Jury mstructwns, we conclude that *195 the defendants' claim of error does not merit consideration under the plain error doctrine. FN24. Although we do not reach the merits of the defendants' unpreserved jury instruction claim, we note that the trial court, in its jury charge, thoroughly reviewed the allegations of the plaintiff's complaint, identified facts that were not in dispute, explained the roles of the parties' expert witnesses with reference to their testimony, and otherwise adapted its instructions on the applicable law to the facts and issues of the case. The judgment is affirmed. In this opinion the other Justices concurred. Conn.,l994. Grayson v. Wofsey, Rosen, Kweskin and Kuriansky 231 Conn. 168, 646 A.2d 195, 63 USLW 2198 END OF DOCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 18 Westlaw, 443 N.E.2d 892 387 Mass. 802, 443 N.E.2d 892 (Cite as: 387 Mass. 802, 443 N.E.2d 892) Supreme Judicial Court of Massachusetts, Bristol. Eleanor L. GUENARD v. George G. BURKE. Argued Sept. 16, 1982. Decided Dec. 30, 1982. Action was brought in the Superior Court, Bristol County, concerning attorney fee dispute and alleging legal malpractice. Attorney's motion to strike former client's claim for jury trial as to two counts of complaint was heard by Silva, J., and counts one and two were tried before Taveira, J., and motion for summary judgment on count three was heared by Ponte, J. The Supreme Judicial Court granted request for direct appellate review and Wilkins, J., held that: (1) attorney was entitled to receive fair and reasonable value of his services, even though he purported to enter into unlawful contingent fee agreement with his former client; (2) determination of amount of fee was jury question; and (3) genuine issue of material fact existed with respect to attorney's negligence in his representation of former client, precluding summary judgment. Reversed and remanded. West Headnotes [1] Attorney and Client 45 e= 148(1) 45 Attorney and Client 45IV Compensation 45k146 Contingent Fees 45k148 Construction and Operation of Contract 45k148(1) k. In General. Most Cited Cases Attorney was entitled to receive fair and reasonable value of his services, even though he purPage 1 ported to enter into unlawful contingent fee agreement with his client in connection with modification of separation agreement which she had entered into with her husband, since purpose of rule forbidding contingent fee agreement in respect of procuring of divorce to eliminate any inducement to counsel to proceed with divorce rather than to seek reconciliation was not thwarted as decree nisi had already been entered when client retained attorney. S.J.C.Rules 3:14, 3:14(3, 4) (1980). [2] Attorney and Client 45 e= 147 45 Attorney and Client 45IV Compensation 45k146 Contingent Fees 45k147 k. Requisites and Validity of Contract. Most Cited Cases Contingent fee agreement entered into prior to entry of divorce decree, or judgment, absolute is an agreement in respect of procuring a divorce and is forbidden. S.J.C.Rules 3:14, 3:14(3, 4) (1980). [3] Attorney and Client 45 e= 167(2) 45 Attorney and Client 45IV Compensation 45k157 Actions for Compensation 45kl67 Trial 45k167(2) k. Questions for Jury. Most Cited Cases Amount of fee attorney was entitled to receive for reasonable value of his services was a jury question in dispute between attorney and former client. [4] Trial 388 e= 136(1) 388 Trial 388VI Taking Case or Question from Jury 388VI(A) Questions of Law or of Fact in General _, 388kl36 Questions of Law or Fact in General 388k136(1) k. In General. Most Cited © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 443 N.E.2d 892 387 Mass. 802, 443 N.E.2d 892 (Cite as: 387 Mass. 802,443 N.E.2d 892) Cases When jury claim is seasonably made factual issue should be submitted to jury. [5) Attorney and Client 45 E? 148(1) 45 Attorney and Client 45IV Compensation 45k146 Contingent Fees 45kl48 Construction and Operation of Contract 45k148(1) k. In General. Most Cited Cases (Formerly 45k32) Attorney and Client 45 E? 148(3) 45 Attorney and Client 45IV Compensation 45k146 Contingent Fees 45k148 Construction and Operation of Contract 45k148(3) k. Amount of Fee. Most Cited Cases Because purported contingent fee agreement entered into in connection with modification of separation agreement, which former client had entered into with her husband, was unenforceable due to fact that attorney did not sign agreement, his reliance on that agreement to justify amount of his fee was improper and his reliance on agreement made in violation of court rules was an unfair or deceptive act or practice; however, matter of relief had to await since the Supreme Judicial Court could not tell whether former client sustained loss of money or property as a result of attorney's reliance on contingent fee agreement. M.G.L.A. c. 93A, §§ 2, 2(a), 9(1); S.J.C.Rule 3:14 (1980). [6) Interest 219 E? 19(3) 219 Interest 2191 Rights and Liabilities in General 219k19 Demands Not Liquidated 219k19(3) k. Principal in Dispute. Most Cited Cases Page2 Attorney who acted in good faith where there was honest controversy between parties as to attorney fees would not be liable for interest penalty. M.G.L.A. c. 221, § 51. [7) Attorney and Client 45 E? 167(2) 45 Attorney and Client 45IV Compensation 45k157 Actions for Compensation 45k167 Trial 45k167(2) k. Questions for Jury. Most Cited Cases Interest 219 E? 68 219 Interest 219IV Recovery 219k68 k. Questions for Jury. Most Cited Cases In dispute over attorney fees, claim of former client's right to interest and multiple damages for loss of use of her money due to alleged unlawful contingent fee agreement was jury question. M.G.L.A. c. 93A, § 9(3, 4); c. 221, §51; S.J.C.Rule 3:14 (1980). [8) Judgment 228 E? 181(16) 228 Judgment 228V On Motion or Summary Proceeding 228k181 Grounds for Summary Judgment 228k181(15) Particular Cases 228k181(16) k. Attorneys, Cases Involving. Most Cited Cases In legal malpractice action, genuine issue of material fact existed concerning attorney's alleged negligence in his representation of former client, precluding summary judgment. [9) Judgment 228 E? 186 228 Judgment 228V On Motion or Summary Proceeding 228k182 Motion or Other Application 228k186 k. Hearing and Determination. Most Cited Cases © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 443 N.E.2d 892 387 Mass. 802, 443 N.E.2d 892 (Cite as: 387 Mass. 802, 443 N.E.2d 892) Deposition and contrary affidavit must both be considered in passing on motion for summary judgment. (10) Judgment 228 €= 185.3(4) 228 Judgment 228V On Motion or Summary Proceeding 228kl82 Motion or Other Application 228kl85.3 Evidence and Affidavits in Particular Cases 228kl85.3(4) k. Attorneys. Most Cited Cases Admission in former client's deposition taken in connection with legal malpractice action was not binding on her in light of contrary affidavit filed with court. **893 *803 Edward T. Troy, Mansfield, for plaintiff. John P. Ryan, Plymouth, and Jeffrey C. LaPointe, Quincy, for defendant. Before *802 WILKINS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ. WILKINS, Justice. We are presented with a contest between an attorney and his former client. One aspect of the dispute concerns whether the attorney is entitled to any fee as a result of his representation of his client in connection with the modification of a separation agreement which she had entered into with her husband. We conclude that, in the circumstances, the attorney is entitled to receive the fair and reasonable value of his services, even though he purported to enter into an unlawful contingent fee agreement with his client, and that the determination of the amount of his fee is a question that should have been submitted to a jury. Only after a determination of the amount of the attorney's reasonable fee will it be possible to determine whether the former client is entitled to multiple damages for the attorney's failure to pay over funds he received from his eliPage3 ent's former husband. A further aspect of the dispute involves the former client's claim of malpractice against the attorney in which she asserts that the attorney was negligent in his representation of her in connection with the modification of the separation agreement. This issue was decided against the client on the attorney's motion for summary judgment. We reverse the judgments. The issues for our decision arise in the following circumstances. On June 24, 1974, a decree nisi (now called a judgment nisi) was entered in favor of Raymond 0. Guenard in his divorce action against the plaintiff. The plaintiff was then represented by counsel other than the defendant. On the same day, the parties executed a separation agreement, *804 which was not incorporated in the decree. The husband agreed to pay the plaintiff $195 a week until her death, her remarriage, or his death. The husband also agreed to pay the plaintiff the greater of $30,000 or one half of the net equity on the sale of certain real estate. In October or November, 1974, the plaintiff, dissatisfied with the settlement, consulted the defendant attorney. On December 6, 1974, shortly before the decree of divorce would have become absolute, the defendant filed a petition on the wife's behalf in the Probate Court for the county of Norfolk challenging the decree nisi on the ground that it was obtained by fraud, unilateral mistake, and coercion. Counsel for her husband took the plaintiffs deposition in which she stated that she had signed the original agreement voluntarily and that she had not been coerced or threatened into accepting the settlement. In May, 1975, the plaintiff paid a retainer of $1,075 to the defendant. On June 12, 1975, the plaintiff executed a purported contingent fee agreement in which she agreed to pay the defendant "one-third of any recovery received on my behalf relative to the divorce action commenced" against her or received by her relative to her objections to the divorce. The defendant did not sign the purported agreement. After negotiations, in August, 1975, the hus- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 443 N.E.2d 892 387 Mass. 802, 443 N.E.2d 892 (Cite as: 387 Mass. 802, 443 N.E.2d 892) band and wife executed an amendment to the separation agreement. It provided for the immediate payment of an additional $30,000 to the plaintiff and for the continuance of the husband's weekly alimony obligations **894 after his death. The plaintiff withdrew her objections and a decree absolute of divorce was entered. In September, 1975, the defendant sent the plaintiff a check in the amount of $20,000, "representing the net amount due you after the deduction of my one-third legal fee." The defendant did not attempt to base his fee also on the value to the plaintiff of her right to receive alimony if she should survive her husband and remain unmarried. The plaintiff, once again dissatisfied, consulted her present counsel concerning her rights. In April, 1978, the plaintiff*805 made a demand under G.L. c. 93A for the payment of the $10,000 received by the defendant and for an "[i]temization of fee charged" against the retainer. In the present action, commenced in June, 1978, the plaintiff challenges the defendant's right to receive any fee for his services on the ground that the contingent fee agreement violated that portion of S.J.C. Rule 3:14(3), 351 Mass. 795 (1967), which prohibited a contingent fee amement "in respect of the procuring of a ·divorce." 1 The plaintiff also alleged that the contingent fee agreement was unlawful under G.L. c. 93A, § 2, and that she was entitled to relief under G.L. c. 93A, § 9. The plaintiff asserted, under counts one and two, a claim for multiple interest on the withheld funds, relying on G.L. c. 221, § 51. The defendant counterclaimed for an additional $4,000 in legal fees. Subsequently, the plaintiff amended her complaint to add a third count alleging that the defendant negligently represented her in connection with the modification of the separation agreement. FNl. This rule now appears as S.J.C. Rule 3:05, as amended, Mass. (1981). The defendant moved to strike the plaintiffs claim of a jury trial on the first and second counts of her complaint. A judge allowed that motion. Page4 These two counts went to trial before a different judge without a jury and resulted in a judgment for the defendant on both counts. FN2 The judge concluded that the purported contingent fee agreement violated S.J.C. Rule 3:14, that the defendant was entitled to a fee based on the fair value of his services even if he had violated S.J.C. Rule 3:14, and that the amount ($11,075) the defendant had already received was reasonable to compensate him for his services and expenses. He concluded that the plaintiff was not entitled to recover under G.L. c. 93A. The plaintiff appeals from the judgment for the defendant on counts one and two of the complaint.FN3 We *806 granted the plaintiffs application for direct appellate review. FN2. The defendant stipulated that he would not press his counterclaim if he were successful on the first two counts of the complaint. FN3. We leave to later a presentation of the circumstances relating to the propriety of the entry of summary judgment for the defendant on count three, the malpractice claim. [ 1] 1. The trial judge correctly concluded that the defendant's violation of S.J.C. Rule 3:14 did not bar him from receiving any fee for his services. FN4 He was also correct in concluding that the defendant was entitled to a fee based on the fair value of his services. FN4. This rule (see now S.J.C. Rule 3:05, as amended, Mass. [1981] ), authorized written contingent fee agreements as to the attorney's fees in certain instances. Each copy of the agreement "shall be signed both by the attorney and by each client." S.J.C. Rule 3:14(4), 351 Mass. 795 (1967). "No contingent fee agreement shall be made ... (b) in respect of the procuring of a divorce, annulment of marriage or legal separation." S.J.C. Rule 3:14(3). © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 443 N.E.2d 892 387 Mass. 802, 443 N.E.2d 892 (Cite as: 387 Mass. 802,443 N.E.2d 892) The defendant does not now rely on the contingent fee agreement to support his claim for a fee but rather argues that he was entitled to a fair and reasonable fee. We have held that an attorney is not barred from recovering the fair value of his services simply because a client failed to sign a purported contingent fee agreement. Young v. Southgate Dev. Corp., 379 Mass. 523, 525-526, 399 N.E.2d 27 (1980). Where the client has signed such an agreement, but the attorney has not, there is even less reason to deny the attorney the right to receive a reasonable fee. Rule 3:14 was adopted to protect the interests of clients and the public, not as a trap to deny an **895 attorney a reasonable fee whenever a purported contingent fee agreement is unenforceable. A more substantial question arises from the plaintiffs claim that the contingent fee agreement violated the prohibition against contingent fee agreements "in respect of the procuring of a divorce." Such a prohibition is the majority rule in this country. See Mcinerney v. Massasoit Greyhound Ass'n, 359 Mass. 339, 350, 269 N.E.2d 211 (1971); Annot., 93 A.L.R.3d 523, 526 (1979). The prohibition is designed primarily to encourage reconciliation by removing any incentive to the attorney to press forward with the divorce and, secondarily, to assure that the court will be able to make a fully informed equitable property settlement. Mcinerney v. Massasoit Greyhound Ass'n, supra at 350-351, 269 N.E.2d 211. *807 [2] We agree with the trial judge that a contingent fee agreement entered into prior to the entry of a decree, or judgment, absolute is an agreement "in respect of the procuring of a divorce" and is forbidden by S.J.C. Rule 3:14(3) (now S.J.C. Rule 3:05[3] ). The rule applies to both parties to a divorce action, not only to the party seeking the divorce. The rule does not depend on the client's financial ability to obtain representation without such an agreement. The better course is to apply the rule literally and not to open up consideration of the facts of a particular case to see whether the purPageS poses of the rule have or have not been thwarted by a literal violation of the rule. If the rule sweeps too broadly in its application, the appropriate solution is to amend the rule, not to modify it by judicial interpretation. Because the defendant did not sign a copy of the purported contingent fee agreement, it was not, in any event, a valid agreement, even if the agreement had not been "in respect of the procuring of a divorce." When, however, we come to the issue whether the defendant is entitled to a fair and reasonable fee despite the violation of rule 3:14(3), the nature of the violation and its degree of seriousness are relevant. Here, a decree nisi had already been entered when the plaintiff retained the defendant. The dispute was over a property settlement, not the divorce as such. There is nothing in the record to show that either party to the divorce action had the slightest interest in reconciliation. Thus, on the facts, the purpose of rule 3:14 to eliminate any inducement to counsel to proceed with the divorce rather than to seek reconciliation was not thwarted. On the other hand, the further purpose of the rule to have an informed judicial approval of any property settlement may have been thwarted. The record does not show whether the Probate Court judge who approved the amended agreement knew of the fee arrangement between the plaintiff and the defendant. We see no reasonable basis for denying the defendant a fair and reasonable fee in these circumstances. We are not dealing here with a violation of a prohibition against representation *808 of a client. See Misci v. Revere Hous. Auth., 359 Mass. 743, 744, 269 N.E.2d 210 (1971); Collins v. Godfrey, 324 Mass. 574, 581, 87 N.E.2d 838 (1949). Therecovery of the fair value of the defendant's services is warranted under the principles announced in Town Planning & Eng'g Assocs. v. Amesbury Specialty Co., 369 Mass. 737, 745, 342 N.E.2d 706 (1976). For opinions generally allowing, but some denying, recovery in quantum meruit in similar situations, see Annot., 100 A.L.R.2d 1378, 1390-1391 (1965). To allow recovery of the fair © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 443 N.E.2d 892 387 Mass. 802, 443 N.E.2d 892 (Cite as: 387 Mass. 802,443 N.E.2d 892) value of the defendant's legal services would not defeat the pwposes of the prohibition in rule 3:14. Denying enforcement of the contingent fee agreement achieves that object. Representation of the client was not illegal; only the contingent fee agreement was. The loss to the defendant of a reasonable fee and the windfall to the plaintiff in being relieved of the obligation to pay any attorney's fee for the defendant's proper services indicate that denial of a fair fee would be unreasonable in the circumstances. Town Planning & Eng'g Assocs. v. Amesbury Specialty Co., supra at 746, 342 N.E.2d 706. [3][4] 2. Although we reject the plaintiff's argument that, because of the violation **896 of rule 3:14, she was entitled to recover amounts the defendant received for representing her, we do agree with the plaintiff that the amount of the defendant's fee was a jury question. The motion judge erred in allowing the defendant's motion to strike the plaintiffs claim for a jury trial as to count one. The question of what was fair and reasonable compensation for the services rendered is a question of fact (see Cummings v. National Shawmut Bank, 284 Mass. 563, 568, 188 N.E. 489 [1933] ), and, when a jury claim is seasonably made, as it was here, the factual issue should be submitted to a jury. In support of the denial of a jury trial on the issue of the reasonable fee to which he was entitled, the defendant relies on that portion ofS.J.C. Rule 3:14(6), 351 Mass. 795 (1967), which stated that "[t]he reasonableness of a contingent fee agreement shall be subject to review by a court of competent jurisdiction." The word "court," however, includes a court consisting of a judge and jury, where appropriate. *809 Cameron v. Sullivan, 372 Mass. 128, 132 n. 3, 260 N.E.2d 890 (1977). Rule 3:14 did not pwport to deny the plaintiff a jury trial, and rightly so, because a court rule cannot deny a person his or her .gh . . l FN5 n t to a Jury tna. FN5. The defendant is not aided by the fact that rule 3: 14( 6) stated that " [ t ]he reasonableness of a contingent fee agreement shall be subject to review by a court of Page6 competent jurisdiction prior to the expiration of one year following the making of the agreement or one year following the date of last rendition of services" (emphasis supplied). Here, the agreement is invalid and a nullity. Its reasonableness is not in dispute. Rule 3:14 says nothing about actions seeking a fair and reasonable fee. We need not decide whether, if a contingent fee agreement is properly executed in circumstances authorized by the rule, a client may challenge the reasonableness of the fee after the time limits of the rule have expired. 3. We come then to the plaintiffs claim under G.L. c. 93A. She argues that the use of a pwported contingent fee agreement was an unlawful act or practice because, in the words of G.L. c. 93A, § 2(a), inserted by St.1967, c. 813, § 1, the defendant engaged in "unfair or deceptive acts or practices in the conduct of any trade or commerce." Even if we assume that the defendant's conduct in attempting to obtain a contingent fee agreement was "unfair or deceptive," the plaintiff sustained no "loss of money or property" as a result of the agreement itself. See G.L. c. 93A, § 9(1), as amended through St.l971, c. 24l.FN6 The agreement is unenforceable, and the plaintiff sustained no injury solely from its existence. FN6. See now G.L. c. 93A, § 9(1), as appearing in St.1979, c. 406, § 1 (eliminating the reference to damages on the basis of a loss of "money or property" and substituting the words "who has been injured"). [5] The plaintiff argues further that the defendant's reliance on the unenforceable agreement toretain one third of the $30,000 additional payment that he negotiated is itself unlawful under G.L. c. 93A, § 2. We conclude that because the pwported contingent fee agreement was unenforceable, his reliance on that agreement to justify the amount of his fee was improper. The defendant's reliance on an agreement made in violation of S.J.C. Rule 3:14 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 443 N.E.2d892 387 Mass. 802, 443 N.E.2d 892 (Cite as: 387 Mass. 802, 443 N.E.2d 892) in these circumstances was, as a matter of law, an unfair or deceptive act or practice. *810 We cannot tell at this time, however, whether the plaintiff sustained a loss of money or property as a result of the defendant's reliance on the contingent fee agreement. If the jury should find the defendant's reasonable fee (and expenses) equalled or exceeded the $11,075 that he has retained, the plaintiff will have sustained no loss of money or property because of the G.L. c. 93A violation. If, on the other hand, the reasonable fee awarded to the defendant is less than $11,075, the plaintiff will have been denied the use of the difference between $11,075 and the fee awarded to the defendant. Although, in such a situation, the plaintiff would be entitled, quite apart from G.L. c. 93A, to interest on the amount of any excess retained by the defendant, there will be a question for the court to decide concerning a doubling or trebling of the damages (G.L. c. 93A, § 9[3] ) and the award of reasonable att~~·s fees and **897 costs (G.L. c. 93A, § 9[4] ). Thus the matter of relief under G.L. c. 93A must await the verdict under count one. FN7. We construe the plaintiff's written demand for relief (G.L. c. 93A, § 9[3] ) as sufficient to challenge the defendant's retention of the fee in reliance on S.J.C. Rule 3:14. The defendant made no written tender of settlement. Thus, under G.L. c. 93A, § 9(3), the plaintiff would be entitled to between double and triple damages if the court should find that the unlawful act "was a willful or knowing violation [of § 2] ... or that the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained ofviolated [§ 2]." [6][7] 4. The matter of the plaintiff's right to interest (and to multiple damages under G.L. c. 93A for the loss of use of her money) is complicated by her claim, under both counts one and two, for interest pursuant to G.L. c. 221, § 51. Section 51 Page7 provides that an attorney "who unreasonably neglects to pay over money collected by him for and in behalf of a client, when demanded by the client, shall forfeit to such client five times the lawful interest of the money from the time of the demand." This claim is one for a jury and not for a judge alone, assuming that there is evidence *811 that the FN8 attorney acted unreasonably. An attorney who acted in good faith where there was an honest controversy between the parties would not be liable for an interest penalty under § 51. Zuckernik v. Jordan Marsh Co., 290 Mass. 151, 156, 194 N.E. 892 (1935). FN8. The motion judge's allowance of the defendant's motion to strike the plaintiff's jury claim was wrong as applied to the plaintiff's claim under G.L. c. 221, § 51. The plaintiff makes no cognizable argument in her brief that she was entitled to a jury trial on her G.L. c. 93A claim. If the jury determines that the defendant's reasonable fee was less than the $11,075 he retained, the jury must then determine whether the attorney unreasonably neglected to pay the plaintiff the amount in excess of his reasonable fee. This factual question can be submitted to the jury in the form of a special question. Mass.R.Civ.P. 49(a), 365 Mass. 812 (1974). If the jury should decide that the defendant did act unreasonably, he will be liable under § 51 for interest at five times the lawful rate. This amount will exceed any damages possibly recoverable under G.L. c. 93A, § 9, for the same period of time, except, of course, for an allowance of reasonable attorney's fees and costs. If any violation ofG.L. c. 93A and G.L. c. 221, §51, is for the same wrong (the wrongful withholding), cumulative damages should not be awarded. If there is an overlapping of damages, the damages allowed should reflect the greater statutory award provided in§ 51. See McGrath v. Mishara, 386 Mass. 74, 85, 434 N.E.2d 1215 (1982).FN9 FN9. Damages, assuming there are any, will not be overlapping in all respects. In © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 443 N.E.2d 892 387 Mass. 802, 443 N.E.2d 892 (Cite as: 387 Mass. 802, 443 N.E.2d 892) retaining $10,000 of the $30,000 additionally paid by the plaintiffs former husband, the defendant initially relied on the unenforceable contingent fee agreement. As we have said, that reliance was unlawful under G.L. c. 93A, § 2, as a matter of law. Thus, any damages under G.L. c. 93A run from the date the defendant retained the $10,000. As of the date of the plaintiffs demand for the return of the $10,000, assuming there is a G.L. c. 221, § 51, violation, damages payable under § 51 and G.L. c. 93A would be cumulative and§ 51 damages would supersede any G.L. c. 93A damages. 5. We come finally to the plaintiffs appeal from the allowance of summary judgment for the defendant on count three, the malpractice claim. The summary judgment *812 judge, appropriately at the time, relied on findings made by the trial judge in the earlier trial of counts one and two. Those findings, however, have no continuing validity because, as we have just held, the plaintiff was entitled to a jury trial on count one and on her claim for multiple interest on any funds allegedly withheld unreasonably. [8] We must assess the propriety of summary judgment for the defendant on the basis of other material appropriately before the summary judgment judge. Based on affidavits of the parties and portions of a deposition of the plaintiff that were submitted to the judge, there is a genuine issue of material fact concerning the defendant's alleged negligence in his representation of the plaintiff. **898 [9)[10] The defendant, however, argues that there is no genuine issue of material fact with regard to the plaintiffs chances of overturning the original separation agreement on the basis of fraud or coercion. In other words, without conceding his negligence, the defendant argues that the plaintiff sustained no loss because there was no basis for achieving a favorable result in the attempt to set aside the separation agreement. He points to testiPageS mony of the plaintiff on deposition in which she admitted that there was no duress or coercion by her husband. However, by affidavit, the plaintiff denies that she admitted at any time that there was no fraud or duress in the execution of the original separation agreement. A deposition and a contrary affidavit must both be considered in passing on a motion for summary judgment. See Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893-894 (5th Cir.1980); Camer/in v. New York Cent. R. Co., 199 F.2d 698, 701 (1st Cir.1952); 6 Moore's Federal Practice par. 56.22[1], at 1325-1326 (2d ed. 1982); 10 C.A. Wright & A.R. Miller, Federal Practice and Procedure § 2738 at 686 (1973). The admission in the plaintiffs deposition is, therefore, not binding on her. See McMahon v. M & D Builders, Inc., 360 Mass. 54, 61, 271 N.E.2d 649 (1971); Junkins v. Slender Woman, Inc., 7 Mass.App. 878, 386 N.E.2d 789 (1979). Although we recognize that there may be instances in which an affidavit denying deposition testimony may not *813 fairly raise a genuine issue of material fact (see Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 [2d Cir.1969] ), we are reluctant to hold the plaintiff to conclusions of law stated in her deposition. We know that, despite the defendant's claim that the plaintiffs cause was hopeless, the plaintiff did receive additional financial benefits from the renegotiation of the separation agreement. Assuming, without deciding, that the defendant was negligent in his investigation of the husband's assets, we cannot say, on the facts presented on the motion for summary judgment, that his negligence did not result in a less satisfactory result for the plaintiff than she would have obtained if there had been no negligence. Although, from what has been shown to us, we are skeptical of the merits of the plaintiffs claim, particularly in light of the admissions in her deposition and the now nugatory findings made by the trial judge, there was a genuine issue of material fact to be tried under count three. 6. The judgments for the defendant are re- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 443 N.E.2d 892 387 Mass. 802, 443 N.E.2d 892 (Cite as: 387 Mass. 802, 443 N.E.2d 892) versed. The order denying the plaintiff a jury trial on count one and on her claim for multiple interest on funds allegedly withheld unreasonably is vacated to that extent. The action is remanded for a jury trial on those issues and on count three. The plaintiffs rights under G.L. c. 93A depend on the results of the jury trial. So ordered. Mass., 1982. Guenard v. Burke 387 Mass. 802, 443 N.E.2d 892 END OF DOCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page9 Westlaw, Page 1 54 S.W.3d 526, 144 Lab. Cas. P 34,362, 7 Wage & Hour Cas.2d (BNA) 446 (Cite as: 54 S.W.3d 526) c Court of Appeals of Texas, Houston (1st Dist.). Angel GUITY, Appellant, v. C.C.I. ENTERPRISE, COMPANY, Appellee. No. 01-00-01038-CV. Aug. 23, 2001. Employee brought action against employer to recover unpaid overtime wages under the Fair Labor Standards Act (FLSA). The 165th Judicial District Court, Harris County, Elizabeth Ray, J., granted summary judgment for employee but did not award requested amount of attorney fees. Employee appealed. The Court of Appeals, Nuchia, J., held that genuine issue of material fact on reasonability of attorney fees precluded summary judgment on that issue. Affirmed in part, reversed in part, and remanded. West Headnotes [1] Judgment 228 €:::::> 181(21) 228 Judgment 228V On Motion or Summary Proceeding 228kl8l Grounds for Summary Judgment 228kl81(15) Particular Cases 228kl81(21) k. Employees, Cases Involving. Most Cited Cases Genuine issue of material fact as to the reasonableness of attorney fees claimed by employee precluded summary judgment on this issue, in employee's action against employer for unpaid overtime wages, brought under the Fair Labor Standards Act (FLSA). Fair Labor Standards Act of 1938, §§ 2(a), 9(b), 29 U.S.C.A. §§ 207(a), 216(b). [2] Judgment 228 €:::::> 185.3(1) 228 Judgment 228V On Motion or Summary Proceeding 228k182 Motion or Other Application 228k185.3 Evidence and Affidavits in Particular Cases 228k185.3(1) k. In General. Most Cited Cases The award of attorney fees in a summary judgment is improper unless the evidence of the reasonableness of those fees is uncontroverted. [3] Judgment 228 €:::::> 186 228 Judgment 228V On Motion or Summary Proceeding 228k182 Motion or Other Application 228kl86 k. Hearing and Determination. Most Cited Cases When the amount of attorney fees is not conclusively established, the attorney fees question may be severed on summary judgment and remanded for trial. [4] Costs 102 €:::::> 194.18 102 Costs 102Vlll Attorney Fees 102k194.18 k. Items and Amount; Hours; Rate. Most Cited Cases In determining the reasonableness of attorney's fees, the fact fmder must be guided by a specific standard; this standard is substantially similar under both federal law and state law. State Bar Rules, V.T.C.A., Government Code Title 2, Subtitle G App., Art. 10, § 9, Rules of Prof.Conduct, Rule 1.04. [5) Labor and Employment 231H €:::::> 2405 231H Labor and Employment 231 HXIII Wages and Hours 231HXIII(B) Minimum Wages and Overtime Pay 231 HXIII(B)6 Actions 231Hk2401 Costs and Attorney Fees © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page2 54 S.W.3d 526, 144 Lab. Cas. P 34,362, 7 Wage & Hour Cas.2d (BNA) 446 (Cite as: 54 S.W.3d526) 231 Hk2405 k. Amount. Most Cited Cases (Formerly 232Akl571 Labor Relations) Because federal law provides a very specific framework for analyzing the reasonableness of attorney fees under statutes like the Fair Labor Standards Act (FLSA), the federal framework must be followed in determining and reviewing the reasonableness of attorney fees under the FLSA. Fair Labor Standards Act of 1938, § 9(b), 29 U.S.C.A. § 216(b). [6] Costs 102 €= 194.18 102 Costs 102VIII Attorney Fees 102kl94.18 k. Items and Amount; Hours; Rate. Most Cited Cases To calculate reasonable attorney fees, a fact finder should multiply the number of hours worked by the attorney's hourly rate; both the number of hours and the hourly rate must be reasonable. [7] Costs 102 €= 194.18 102 Costs 102VIII Attorney Fees 102kl94.18 k. Items and Amount; Hours; Rate. Most Cited Cases The amount resulting from multiplying the hours an attorney worked by the attorney's hourly fee is commonly referred to as the "lodestar figure" for attorney fees. [8] Costs 102 €= 194.18 102 Costs 102VIII Attorney Fees 102kl94.18 k. Items and Amount; Hours; Rate. Most Cited Cases The factors to be considered in adjusting attorney fees up or down from the "lodestar" amount include: (1) the time and labor required, (2) the novelty and difficulty of the questions, (3) the level of skill required, (4) the effect on other employment by the attorney, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorney, ( 1 0) the "undesirability" of the case, ( 11) the nature and length of the attorney's relationship with the client, and (12) awards in similar cases; if some of these factors are accounted for in the "lodestar" amount, they should not be considered when making adjustments. *527 Peter Costea, Houston, for Appellant. Charles L. Henke, Jr., Scott Christopher Gillett, Henke & Associates, Houston, for Appellee. Panel consists of Justices HEDGES, NUCillA, and BRISTER. FN* FN* The Honorable Scott Brister, who became Chief Justice of the Fourteenth Court of Appeals on July 16, 2001, continues to participate by assignment for the disposition of this case, which was submitted on May 14, 2001. OPINION NUCillA, Justice. Appellant-plaintiff Angel Guity appeals from a summary judgment granted in his favor in a suit against appellee-defendant C.C.I. Enterprises, Company ("C.C.I."), for unpaid overtime wages under the Fair Labor Standards Act ("FLSA"). FNl See 29 U.S.C. A. § 207(a) (West 1998). In a single point of error, Guity contends the trial court erred in denying his full recovery of attorney's fees. We affirm in part and reverse in part. FNl. Section 216(b) of the Fair Labor Standards Act gives state courts jurisdiction to hear cases involving suits for overtime pay. 29 U.S.C.A. § 216(b) (West 1998) ("An action to recover ... may be maintained against any employer © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page3 54 S.W.3d 526, 144 Lab.Cas. P 34,362,7 Wage & Hour Cas.2d (BNA) 446 (Cite as: 54 S.W.3d526) (including a public agency) in any Federal or State court of competent jurisdiction .... "). BACKGROUND On appeal neither party complains about the trial court's granting of summary judgment on the underlying claim. The only issue before us is the trial court's award of attorney's fees. Attached to Guity's summary judgment motion was the affidavit of Peter Costea, Guity's attorney. In it, Costea claims $8,325.00 in attorney's fees for prosecuting the suit, and he also sets out why that amount is reasonable. C.C.I.'s response motion to Guity's motion for summary judgment included the affidavit of its attorney, *528 Charles L. Henke, Jr. After also setting out his qualifications and professional experience, Henke's affidavit lists a set of factors courts follow in determining the reasonableness of attorney's fees. The affidavit concludes by stating that a "reasonable fee for the necessary services performed to date in connection with the prosecution of this case is $500.00." In its final order, the trial court awarded Guity $500.00 in attorney's fees. Guity appeals that amount. DISCUSSION The relevant portion of the FLSA states, "The court in such action, shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." 29 U.S.C.A. § 216(b) (West 1998). The language of the statute is mandatory; that is, a prevailing plaintiff must be awarded reasonable attorney's fees and costs in actions brought under the FLSA. See Purcell v. Seguin State Bank and Trust Co., 999 F.2d 950, 961 (5th Cir.1993). [1][2][3] In this case, the award of attorney's fees was made as a matter of summary judgment. The award of attorney's fees in a summary judgment is improper unless the evidence of the reasonableness of those fees is uncontroverted. That is not the case here, given that conflicting affidavits from opposing attorneys were presented. FN2 General Elec. Supply Co. v. Gulf Electroquip, Inc., 857 S.W.2d 591, 601 (Tex.App.-Houston [1st Dist.] 1993, writ denied). When the amount of attorney's fees is not conclusively established, the attorney's fees question may be severed and remanded for trial. /d. at 602. FN2. In addition to the affidavit disputing the reasonableness of attorney's fees sought by Guity, C.C.I's motion opposing Guity's motion for summary judgment asserted that "there is a genuine issue of material fact whether these [attorney's] fees are reasonable .... " [ 4] In determining the reasonableness of attorney's fees, the fact finder must be guided by a specific standard. This standard is substantially similar under both federal law and state law. See Purcell, 999 F.2d at 961 (setting out the federal standard); Arthur Andersen v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.1997) (setting out the state standard and citing to TEX. DISCIPLINARY R. PROF'L CONDUCT 1.04, reprinted in TEX. GOVT CODE ANN., tit. 2, subtit. G app. A (Vernon 1998) (TEX. STATE BARR., art. X,§ 9)); Gorges Foodservice, Inc. v. Huerta, 964 S. W .2d 656, 673 (Tex.App.-Corpus Christi 1997, no pet.). [5] However, because federal law provides a very specific framework for analyzing the reasonableness of attorney's fees under statutes like the FLSA, the federal framework must be followed in determining and reviewing the reasonableness of attorneys's fees under section 216. See Hensley v. Eckerhart, 461 U.S. 424, 430-33, 103 S.Ct. 1933, 1937-39, 76 L.Ed.2d 40 (1983). In Hensley, the Court noted that the standards set forth in that opinion "are generally applicable in all cases in which Congress has authorized an award of fees to a 'prevailing party.' " /d. 461 U.S. at 433, 103 S.Ct. at 1939 n. 7. Congress has mandated the award of attorney's fees to a prevailing party in FLSA claims. See 29 U.S.C.A. § 216(b) (West 1998). © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 54 S.W.3d 526, 144 Lab. Cas. P 34,362,7 Wage & Hour Cas.2d (BNA) 446 (Cite as: 54 S.W.3d 526) [6][7](8] To calculate reasonable attorney's fees, the fact finder should multiply the number of hours worked by the attorney's hourly rate. Purcell, 999 F.2d at 961. Both the number of hours and the hourly rate must be reasonable. !d. The resulting amount is commonly referred to as the "lodestar" figure. After calculating *529 the lodestar amount, "the district court can adjust the amount upward or downward to account for the well-established Johnson factors." !d. (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974)). The Johnson factors include: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required; (4) the effect on other employment by the attorney; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the "undesirability" of the case; ( 11) the nature and length of the attorney's relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-19. If some of these factors are accounted for in the lodestar amount, they should not be considered when making adjustments. Shipes v. Trinity Indus., 987 F.2d 311, 320 (5th Cir.1993). The cause, therefore, is remanded for a determination and award of reasonable attorney's fees. Appellant's point of error is sustained. We affirm the portion of the judgment awarding overtime wages and liquidated damages, and reverse the portion of the judgment awarding attorney's fees, ~d remand the cause for further proceedings. Tex.App.-Houston [1 Dist.],2001. Guity v. C.C.I. Enterprise, Co. 54 S.W.3d 526, 144 Lab.Cas. P 34,362, 7 Wage & Hour Cas.2d (BNA) 446 END OF DOCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page4 Westlaw, 211 A.D.2d 617, 620 N.Y.S.2d 847 (Cite as: 211 A.D.2d 617, 620 N.Y.S.2d 847) H Supreme Court, Appellate Division, Second Department, New York. Ronald HART, et al., etc., Plaintiffs-Respondents, v. CARRO, SPANBOCK, KASTER & CUIFFO, etc., Defendant Third-Party Plaintiff-Appellant, et al., Defendant, Hayt, Hayt & Landau, Third-Party Defendant-Respondent. Jan. 9, 1995. Former client brought legal malpractice action against law flrm based on firm's representation of client in stock purchase transaction in which interest of client in collateral located in foreign country was not secured, and law flrm brought thirdparty claim against second law flrm which had assumed representation of client. Client moved for partial summary judgment and second law flrm moved to dismiss complaint, and the Supreme Court, Nassau County, Levitt, J., granted motions. Law flrm appealed, and the Supreme Court, Appellate Division, held that: (1) conduct of law flrm in failing to properly structure stock transaction and investigate and evaluate enforceability of pledge of foreign collateral constituted legal malpractice, and (2) law flrm was not entitled to contribution from second law flrm which did not assume representation until after injury-causing acts had taken place. Affirmed. West Headnotes [1] Attorney and Client 45 €= 109 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45kl09 k. Acts and Omissions of Attorney in General. Most Cited Cases Attorney and Client 45 €= 112.50 Page 1 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45k112.50 k. Research and Knowledge of Law. Most Cited Cases Attorney was negligent in failing to properly structure stock purchase agreement and to properly investigate, evaluate, and advise client as to enforceability of pledge agreement used to secure collaterallocated in foreign country in connection with stock purchase agreement where failure to secure foreign collateral caused client to be without assets against which to satisfy judgment obtained in action arising out of stock purchase, even though attorney repeatedly suggested that client obtain foreign counsel. (2] Attorney and Client 45 €= 109 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45kl09 k. Acts and Omissions of Attorney in General. Most Cited Cases Attorney and Client 45 €= 112.50 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45kll2.50 k. Research and Knowledge of Law. Most Cited Cases When counsel is retained in matter involving foreign law, it is counsel's responsibility to conduct matter properly and know, or learn, law of foreign jurisdiction; counsel may not shift to client legal responsibility it was specifically hired to undertake because of its superior knowledge. [3] Contribution 96 €= 5(6.1) 96 Contribution 96k2 Common Interest or Liability 96k5 Joint Wrongdoers 96k5( 6) Particular Torts or Wrongdoers 96k5( 6.1) k. In General. Most Cited Cases Law flrm against which legal malpractice ac- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 211 A.D.2d 617, 620 N.Y.S.2d 847 (Cite as: 211 A.D.2d 617, 620 N.Y.S.2d 847) tion was brought by client as result of firm's handling of stock purchase agreement was not entitled to seek contribution from second law firm which had assumed representation of client where injuryproducing conduct of improperly structuring transaction and advising client, which resulted in failing to obtain interest in collateral, occurred before second law firm assumed any responsibility in matter. [4] Attorney and Client 45 €= 112 45 Attorney and Client 45III Duties and Liabilities of Attorney to Client 45kll2 k. Conduct of Litigation. Most Cited Cases Law firm's decision to pursue legal malpractice claim against client's prior law firm in connection with prior firm's handling of stock purchase agreement in attempt to mitigate client's damages, rather than pursue any evanescent interest client retained in collateral which was part of stock purchase agreement, was reasonable course of action and did not constitute legal malpractice. **847 Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (Thomas W. Hyland, Mark W. Anesh, and Edward A. Magro, of counsel), for defendant third-party plaintiff-appellant. Hayt, Hayt & Landau, Great Neck (Clifford J. Chu and Ralph Pernick, of counsel), for plaintiffs-respondents. Sedgwick, Detert, Moran & Arnold, New York City (James Clair and Douglas Poetzsch, of counsel), for third-party defendant-respondent. Before ROSENBLATT, J.P., and LAWRENCE, JOY and KRAUSMAN, JJ. **848 *617 MEMORANDUM BY THE COURT. In an action to recover damages, inter alia, for legal malpractice, the defendant third-party plaintiff appeals from an order of Supreme Court, Nassau Page2 County (Levitt, J.), dated January 31, 1992, which (I) denied its motion to disqualify Hayt, Hayt & Landau as counsel of record for the plaintiffs, and (2) granted those branches of the joint cross motion of the plaintiffs and Hayt, Hayt & Landau which were (a) to grant partial summary judgment to the plaintiffs on their cause of action for legal malpractice in connection with the sale of certain real estate located in the Bahamas, and (b) to dismiss the third-party complaint insofar as asserted against Hayt, Hayt & Landau. ORDERED that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs. This action for legal malpractice arises out of the plaintiffs' sale of stock in American Plan Corporation (hereinafter APC), to APN Holdings Corp. (hereinafter APN), an entity controlled by Abe J. Lieber (hereinafter Lieber). The APC stock was the major asset of a testamentary trust established under the will of Mark M. Hart. In essence, the plaintiffs claim that their financial losses were caused by the improper structuring of a Stock Purchase Agreement by the law firm of Carro, Spanbock,*618 Kaster & Cuiffo (hereinafter Carro), and Carro's deficient legal advice rendered in conjunction with the stock sale. As a result of the problems which arose in connection with the stock sale Carro was discharged and ultimately replaced by Hayt, Hayt & Landau (hereinafter Hayt). The plaintiffs, then represented by Hayt, commenced this action against Carro, inter alia, for legal malpractice. Thereafter, Carro commenced the third-party action against Hayt, alleging that if Carro was negligent and caused the plaintiffs' losses, Hayt was similarly negligent and therefore liable for its proportionate share of any judgment against Carro. Carro then moved to disqualify Hayt as plaintiffs' counsel, on the grounds of conflict of interest and violation of the attorneywitness rule, as Carro intended to call Hayt as a witness in its third-party action. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 211 A.D.2d 617, 620 N.Y.S.2d 847 (Cite as: 211 A.D.2d 617, 620 N.Y.S.2d 847) APC and the Hart family were long-standing clients ofthe Carro firm. In 1976 Carro drafted the will providing for the testamentary trust, and in 1982 Carro drafted the Stock Purchase Agreement for the sale of the APC stock to APN. The Stock Purchase Agreement was executed by the contracting parties on June 25, 1982. It provided for a total purchase price of $5,206,910 for the stock, $1,750,000 of which was to be paid in two installments ($520,000 and $1,230,000) on or prior to the closing, with the deferred balance of $3,456,910 to be paid after closing pursuant to a promissory note. The Stock Purchase Agreement was structured so that the collateral used to secure the deferred balance had three components: (1) a second mortgage on commercial real property in Plano, Texas (hereinafter the Texas collateral); (2) a personal guaranty signed by Lieber, his wife, and five Ueber-controlled Bahamian corporations; and (3) the Bahamian collateral, which consisted of a pledge agreement whereby APN pledged shares of stock it owned in three Ueber-controlled corporations, which in tum owned separate parcels of real estate in the Bahamas, to wit, the Whitfield Parcel, owned by Whitfield Corp., the Sunward Villas Parcel, owned by Sunward Villas, Ltd., and the ABT Parcel, owned by ABT Investments, Ltd. {Only the ABT Parcel, which was sold on October 19, 1982, two weeks after the closing on the SPA, is at issue here.) The closing took place on October 5, 1982. The buyers also executed the personal guaranty and the pledge agreement at that time. After the closing, Lieber/ APN failed to transfer the stock certificates relating to the Bahamian collateral and also refused to make payment on the promissory note. To avoid its obligations on the promissory note, in June *619 1983 APN commenced an action against the plaintiffs {hereinafter the APN action) in Federal District Court, contending that it was fraudulently induced to purchase the APC stock at an inflated price. (Carro represented the plaintiffs in the APN action until January 1984, when the plaintiffs engaged Hayt to replace Carro as the plaintiffs' **849 counsel of record). In September Page3 1985, the Federal District Court rendered a $4.5 million judgment in favor of the plaintiffs and against APN and the guarantors on the note (see, A.P.N. Holdings Corp. v. Hart, 615 F.Supp. 1465). In October 1985, Lieber and the other guarantors filed for bankruptcy, or were otherwise determined to be judgment-proof. In addition, the Texas collateral had previously proved to be worthless. This state of affairs left the Bahamian collateral as the only possible asset remaining to satisfy the APN judgment. Therefore, in December 1985 the plaintiffs, then represented by Hayt, contacted an attorney in the Bahamas who advised them that, under Bahamian law, th~ pledged stock did not secure any interest in the Bahamian corporations or in the Bahamian real estate. Moreover, since further investigation revealed that APN and Lieber had no other assets in the Bahamas, Bahamian counsel concluded that nothing further could be done to satisfy the judgment. [1][2] In these circumstances, the court properly granted the plaintiffs' cross motion for partial summary judgment as to the ABT Parcel. The record establishes that in improperly structuring the Stock Purchase Agreement and in failing to properly investigate, evaluate, and advise the plaintiffs as to the enforceability of the pledge agreement used to secure the Bahamian collateral, Carro did not exercise that degree of skill commonly exercised by an ordinary member of the legal community (see, Marshall v. Nacht, 172 A.D.2d 727, 727-728, 569 N.Y.S.2d 113). Carro thus breached its duty to the plaintiffs and proximately caused their damages (see, Marshall v. Nacht, supra; Murphy v. Stein, 156 A.D.2d 546, 548, 549 N.Y.S.2d 53). Carro's attempt to avoid liability by emphasizing that it repeatedly urged plaintiff Ronald Hart to employ Bahamian counsel is to no avail. When, as here, counsel is retained in a matter involving foreign law, it is counsel's responsibility to conduct the matter properly and to know, or learn, the law of the foreign jurisdiction (see, Matter of New York County Lawyers Assn. [Roe/], 3 N.Y.2d © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 211 A.D.2d 617, 620 N.Y.S.2d 847 (Cite as: 211 A.D.2d 617, 620 N.Y.S.2d 847) 224, 232, 165 N.Y.S.2d 31, 144 N.E.2d 24; Degen v. Steinbrink, 202 App.Div. 477, 481, 195 N.Y.S. 81 0). Counsel may not shift to the client the legal responsibility it was specifically hired to undertake because of its superior knowledge (see, Cicorelli v. Capobianco, 90 A.D.2d 524, 525, 453 N.Y.S.2d 21 ). In any event, we *620 note that Ronald Hart, as only one of the trustees, was not authorized to bind the trust. Accordingly, Carro was not in a position to properly rely on Ronald Hart's alleged decision not to retain counsel in the Bahamas. [3][4] The Supreme Court also properly dismissed the third-party complaint for contribution insofar as it is asserted against Hayt. Hayt did not begin representing the plaintiffs in the matter until January 1984. The injury-producing conduct, the improper structuring of the Stock Purchase Agreement and the related advice Carro provided to the plaintiffs, which led to the sale of the ABT Parcel on October 19, 1982, and the plaintiffs' subsequent fmancial loss, occurred before Hayt assumed any responsibility in the matter. Moreover, Hayt's choice to pursue a legal malpractice claim to mitigate the plaintiffs' damages, rather than pursue any evanescent interest the plaintiffs may have retained in the Bahamian collateral, was a reasonable course of action and did not constitute legal malpractice ( see, Rosner v. Paley, 65 N.Y.2d 736, 738, 492 N.Y.S.2d 13, 481 N.E.2d 553; Johnson v. Berger, 193 A.D.2d 784, 786, 598 N.Y.S.2d 270; Ferlisi v. Jackrel, Kopelman & Raskin, 167 A.D.2d 502, 503, 562 N.Y.S.2d 173). Finally, with the dismissal of the third-party action insofar as it is asserted against Hayt, Carro's motion for disqualification of Hayt is academic. N.Y.A.D. 2 Dept.,l995. Hart v. Carro, Spanbock, Kaster & Cuiffo 211 A.D.2d 617,620 N.Y.S.2d 847 END OF DOCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page4 Westlaw, Page 1 105 U.S. 45, 15 Otto 45, 1881 WL 19787 (U.S.Ariz.), 26 L.Ed. 1028 (Cite as: 105 U.S. 45, 1881 WL 19787 (U.S.Ariz.)) Supreme Court of the United States HEAD v. HARGRAVE. October Term, 1881 West Headnotes Appeal and Error 30 €= 553(1) 30 Appeal and Error 30X Record 30X(C) Necessity of Bill of Exceptions, Case, or Statement ofFacts 30k553 Substitutes 30k553(1) k. In General. Most Cited Cases A statement of facts, setting forth alleged errors of law, is available on appeal in place of a bill of exceptions, if embodied in the record for that purpose, though it may have been used on a motion for a new trial. Attorney and Client 45 €= 140 45 Attorney and Client 45IV Compensation 45k139 Value of Services 45kl40 k. In General. Most Cited Cases In an action for legal services, the opinions of attorneys as to their value are not to preclude the jury from exercising their judgment; and it is in their province to weigh the opinions by reference to the nature of the services rendered, the time occupied in their performance, and other attendant circumstances. Evidence 157 €= 571(7) 157 Evidence 157XII Opinion Evidence 157XII(F) Effect of Opinion Evidence Cases 157k569 Testimony of Experts 157k571 Nature of Subject 157k571(7) k. Value. Most Cited Opinion evidence as to the value of professional services is not, as a matter of law, conclusive on the jury. Evidence 157 €= 571(7) 157 Evidence 157XII Opinion Evidence Cases 157XII(F) Effect of Opinion Evidence 157k569 Testimony ofExperts 157k571 Nature ofSubject 157k571(7) k. Value. Most Cited Great weight should be given to the opinions of professional men with respect to the value of professional services but the opinions are not to be blindly received and are to be intelligently examined by the jury in the light of their own general knowledge. **1 ERROR to the Supreme Court of the Territory of Arizona. This was an action brought in a district court of Arizona to recover the sum of $2,000 alleged to be owing by the defendants to the plaintiffs for professional services as attorneys and counsellors-at-law in that Territory in 1877 and 1878. The complaint alleges that the services were performed in several suits and proceedings, upon a retainer by the defendants; and that they were reasonably worth that sum. The answer is a general denial. On the trial, one of the plaintiffs testified to the rendition of the services by them in several suits, stating generally the nature of each suit, the service performed, and its value. Five attorneys-at-law also testified to the value of the services; three of whom were called by the plaintiffs and two by the defendants. They differed widely in their opinions, the © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page2 105 U.S. 45, 15 Otto 45, 1881 WL 19787 (U.S.Ariz.), 26 L.Ed. 1028 (Cite as: 105 U.S. 45, 1881 WL 19787 (U.S.Ariz.)) highest estimateplacing the value of the services at $5,440, the lowest at $1,000. The court instructed the jury, that, in determining the value of the plaintiffs' services, they might consider their nature, the length of time they necessarily occupied, and the benefit derived from them by the defendants; that the plaintiffs were entitled to reasonable compensation for the services rendered; and that the reasonableness of the compensation was a fact to be determined from the evidence as any other controverted fact in the case; and then proceeded as follows:-- 'The services rendered were skilled and professional, and for the purpose of proving to you the value of that class of services rendered, professional gentlemen, attorneys-at-law, claiming to be familiar with the value of such services, have testified before you. If you accredit these witnesses with truthfulness, their testimony should have weight with you; and the fact as to what is a reasonable compensation should be determined from the evidence offered, and not from your own knowledge or ideas of the value of that class of services. In other words, you must determine the value of the services rendered from the evidence which has been offered before you, and not from your own knowledge or ideas of the value of such services.' The defendants thereupon asked the court to instruct the jury as follows:-- 'In determining the value of the plaintiffs' services the jury are not bound by the testimony of the expert witnesses; that testimony may be considered by the jury; but if, in their judgment, the value fixed by those witnesses is not reasonable, they may disregard it, and find the amount which, m their judgment, would be reasonable. 'In determining the value of the plaintiffs' services the jury are not bound by the opinions of the witnesses, unless the jury shall find from all the evidence taken together, including the nature of the services, the time occupied in the performance of them, and the result of them, and the benefit derived by the defendants from the rendition of said services, that said opinions are correct.' **2 The court refused to give these instructions, and an exception was taken. The jury thereupon gave a verdict for the plaintiffs for $1,800; upon which judgment was entered. A statement of the proceedings at the trial was then prepared, which, among other things, set forth the alleged errors of law excepted to by the defendants. This statement was used on a motion for a new trial, which was denied; and by stipulation it was embodied in the papers for the appeal to the Supreme Court of the Territory from the judgment, as well as from the order denying the new trial. The order and justment were both affirmed; and, to review the judgment, the case is brought to this court. Mr. Thomas Fitch and Mr. C. J. Hillyer for the plaintiffs in error. Mr. Philip Phillips and Mr. W Hallett Phillips for the defendants in error. MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court. The defendants in error object to the use of the statement, which sets forth the exceptions taken, as not constituting a part of the record before us. The ground of the objection is, that the statement was prepared for and used on the motion for a new trial, with the disposition of which this court cannot interfere. The objection would be tenable but for the stipulation of the parties that the statement might be used on appeal from the judgment. A statement of the case, according to the law regulating civil proceedings in the Territory, takes the place of a bill of exceptions, when the alleged errors of law are set forth with sufficient matter to show the relevancy of the points taken. It is not the less available on appeal from the judgment when, by stipulation, it is embodied in the record for that purpose, though used on the motion for a new trial. We have had occasion to refer to this subject in Kerr v. Clampitt, © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page3 105 U.S. 45, 15 Otto 45, 1881 WL 19787 (U.S.Ariz.),26 L.Ed. 1028 (Cite as: 105 U.S. 45, 1881 WL 19787 (U.S.Ariz.)) which arose in Utah, where a similar system of procedure in civil cases obtains; and it is unnecessary to repeat what is there said. 95 U.S. 188. The only question presented for our consideration is whether the opinions of the attorneys, as to the value of the professional services rendered, were to control the judgment of the jury so *48 as to preclude them from exercising their 'own knowledge or ideas' upon the value of such services. That the court intended to instruct the jury to that effect is, we think, clear. After informing them that, in determining the value of the services, they might consider their nature, the time they occupied, and the benefit derived from them; also, that the plaintiffs were entitled to reasonable compensation for the services, and that the reasonableness of the compensation was a fact to be determined from the evidence,-it proceeded to call special attention to the testimony of the attorneys, and told the jury that if they accredited these witnesses with truthfulness their testimony should have weight, and the fact as to what is reasonable compensation should be 'determined from the evidence offered,' and not from their own knowledge or ideas of the value of that class of services, and emphasized the instruction by repetition, as follows: 'You must determine the value of the services rendered from the evidence that has been offered before you, and not from your own knowledge or ideas as to the value of such services.' This language qualifies the meaning of the previous part of the instruction. It is apparent from the context that by the words 'evidence offered' and 'evidence that has been offered before you' reference was made to the expert testimony, and to that alone. Taken together, the charge amounts to this: that while the jury might consider the nature of the services and the time expended in their performance, their value-that is, what was reasonable compensation for them-was to be determined exclusively from the testimony of the professional witnesses. They were to be at liberty to compare and balance the conflicting estimates of the attorneys on that point, but not to exercise any judgment thereon by application of their own knowledge and experience to the proof made as to the character and extent of the services; that the opinions of the attorneys as to what was reasonable compensation was alone to be considered. That the defendants so understood the charge is evident from the qualifications of it which they desired to obtain; and the jury may, in like manner, have so understood it. And as we so construe it, we think the court erred, and that it should have been qualified by the instructions requested. Those instructions correctly presented the law of *49 the case. It is true that no exception was taken to the charge; but its modification was immediately sought by the instructions requested, and to the refusal to give them an exception was taken. Objection to the charge was thus expressed as affirmatively and pointedly as if it had been directed in terms to the language used by the court. **3 It was the province of the jury to weigh the testimony of the attorneys as to the value of the services, by reference to their nature, the time occupied in their performance, and other attending circumstances, and by applying to it their own experience and knowledge of the character of such services. To direct them to find the value of the services from the testimony of the experts alone, was to say to them that the issue should be determined by the opinions of the attorneys, and not by the exercise of their own judgment of the facts on which those opinions were given. The evidence of experts as to the value of professional services does not differ, in principle, from such evidence as to the value of labor in other departments of business, or as to the value of property. So far from laying aside their own general knowledge and ideas, the jury should have applied that knowledge and those ideas to the matters of fact in evidence in determining the weight to be given to the opinions expressed; and it was only in that way that they could arrive at a just conclusion. While they cannot act in any case upon particular facts material to its disposition resting in their private knowledge, but should be governed by the evidence adduced, they may, and to act intelligently they must, judge of the weight and force of © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page4 105 U.S. 45, 15 Otto 45, 1881 WL 19787 (U.S.Ariz.),26 L.Ed.1028 (Cite as: 105 U.S. 45, 1881 WL 19787 (U.S.Ariz.)) that evidence by their own general knowledge of the subject of inquiry. If, for example, the question were as to the damages sustained by a plaintiff from a fracture of his leg by the carelessness of a defendant, the jury would ill perform their duty and probably come to a wrong conclusion, if, controlled by the testimony of the surgeons, not merely as to the injury inflicted, but as to the damages sustained, they should ignore their own knowledge and experience of the value of a sound limb. Other persons besides professional men have knowledge of the value of professional services; and, while great weight should always be given to the opinions of those familiar with the subject, they are not to *50 be blindly received, but are to be intelligently examined by the jury in the light of their own general knowledge; they should control only as they are found to be reasonable. As justly remarked by counsel, the present case is an excellent illustration of the error of confining the jury to a consideration merely of the opinions of the experts. Of the five attorneys who were witnesses, no two agreed; and their estimates varied between the extremes of$1,000 and $5,440. Directing the jurors to determine the value of the professional services solely upon these varying opinions was to place them in a state of perplexing uncertainty. They should not have been instructed to accept the conclusions of the professional witnesses, in place of their own, however much that testimony may have been entitled to consideration. The judgment of witnesses, as a matter of law, is in no case to be substituted for that of the jurors. The instructions tended to mislead as to the weight to be given to the opinions of the attorneys, especially after qualifications of them designed to correct any misconception on this head were refused. **4 In Anthony v. Stinson, a question similar to the one here presented came before the Supreme Court of Kansas, and a like decision was reached. The instruction given at the trial that the testimony of certain lawyers as to the value of professional services should be the guide of the jury, and that they should be governed by it in fmding the value of the services rendered, was held to be erroneous; the court observing that the jury were not to be instructed as to what part of the testimony before them should control their verdict; that, in order to control it, the testimony of experts should be of such a character as to outweigh by its intrinsic force and probability all conflicting testimony; and that they could not be required to accept, as a matter of law, the conclusions of the witnesses instead of their own. 4 Kan. 211. In Patterson v. Boston, which arose in Massachusetts, the question was as to the damages to be awarded to the plaintiff for his property, taken to widen a street in Boston. The trial court instructed the jury that, in estimating the amount of the damages, if any of them knew, of his own knowledge, any material fact which bore upon the issue, he ought to disclose it *51 and be sworn, and communicate it to his fellows in open court in the presence of the parties; but that, in making up their verdict, they might rightfully be influenced by their general knowledge on such subjects, as well as by the testimony and opinions of witnesses. The case being taken to the Supreme Court of the State, it was held that these directions were not open to exception. Said Chief Justice Shaw, speaking for the court: 'Juries would be very little fit for the high and responsible office to which they are called, especially to make an appraisement, which depends on knowledge and experience, if they might not avail themselves of those powers of their minds when they are most necessary to the performance of their duties.' 20 Pick. (Mass.) 159, 166. In Murdock v. Sumner, the same court, speaking through the same distinguished judge, said that 'the jury very properly exercise their own judgment and apply their own knowledge and experience in regard to the general subject of inquiry.' In that case a witness had testified as to the quality, condition, and cost of certain goods, and given his opinion as to their worth, and the court said that 'the jury were not bound by the opinion of the witness; © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 105 U.S. 45, 15 Otto 45, 1881 WL 19787 (U.S.Ariz.), 26 L.Ed. 1028 (Cite as: 105 U.S. 45, 1881 WL 19787 (U.S.Ariz.)) they might have taken the facts testified by him as to the cost, quality, and condition of the goods, and come to a different opinion as to their value.' 22 id. 156. In like manner, in this case, the jurors might have taken the facts testified to by the attorneys as to the character, extent, and value of the professional services rendered, and then come to a different conclusion. The instructions given, whilst stating that the nature of the services rendered, the time occupied in their performance, and the benefit derived from them·might be considered by the jury, directed them that they should be governed by the opinions of the experts as to the value of the services, and, in effect, forbade them to exercise their own knowledge and ideas on that kind of sercices. This error would have been avoided if the instructions requested by the defendants had been given. **5 Judgment reversed and a new trial ordered U.S.,l881 Head v. Hargrave 105 U.S. 45, 15 Otto 45, 1881 WL 19787 (U.S.Ariz.), 26 L.Ed. 1028 END OF DOCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. PageS Westlaw, 362 N.W.2d 118 122 Wis.2d 94,362 N.W.2d 118 (Cite as: 122 Wis.2d 94, 362 N.W.2d 118) Supreme Court of Wisconsin. Jeanette HELMBRECHf, Plaintiff-Appellant -Cross-Petitioner, plaintiffs case and then renewed their motion following the return of the jury's verdict. FN4 **127 The motion was granted because the *109 trial 870 F.Supp. 1384 (Cite as: 870 F.Supp.1384) (11] Husband and Wife 205 e=> 21 205 Husband and Wife 205I Mutual Rights, Duties, and Liabilities 205k20 Agency of Wife for Husband 205k21 k. In general. Most Cited Cases Husband and Wife 205 e=> 25(1) 205 Husband and Wife 205I Mutual Rights, Duties, and Liabilities 205k25 Agency of Husband for Wife 205k25(1) k. In general. Most Cited Cases Under Virginia law, relationship of husband and wife does not per force establish agency, but spouse can be authorized to act as agent of other spouse. Restatement (Second) of Agency § 22. (12] Principal and Agent 308 e=> 69(1) 308 Principal and Agent 30811 Mutual Rights, Duties, and Liabilities 30811(A) Execution of Agency 308k69 Individual Interest of Agent 308k69(1) k. In general. Most Cited Cases Principal and Agent 308 e=> 70 308 Principal and Agent 30811 Mutual Rights, Duties, and Liabilities 30811(A) Execution of Agency 308k70 k. Acting for parties adversely interested. Most Cited Cases Under Virginia law, absent express agreement to contrary, agent is subject to duty to his principal to act solely for benefit of principal in all matters connected with his agency. Restatement (Second) of Agency § 387 (13] Principal and Agent 308 e=> 78(1) 308 Principal and Agent 30811 Mutual Rights, Duties, and Liabilities 30811(A) Execution of Agency 308k78 Actions for Accounting 308k78(1) k. Rights of action, defenses, and conditions precedent. Most Cited Cases Page3 Principal and Agent 308 e=> 79(1) 308 Principal and Agent 30811 Mutual Rights, Duties, and Liabilities 30811(A) Execution of Agency 308k79 Actions for Negligence or Wrongful Acts of Agent 308k79(1) k. Rights of action and defenses. Most Cited Cases Under Virginia law, wide range of remedies are available ·for principal aggrieved by agent's breach of contract or breach of fiduciary duty; principal may maintain action for breach of contract, action for tort, action for restitution either at law or in equity, or action for accounting. Restatement (Second) of Agency §§ 399 (a, b, d, e). (14] Principal and Agent 308 e=> 48 308 Principal and Agent 30811 Mutual Rights, Duties, and Liabilities 30811(A) Execution of Agency 308k48 k. Nature of agent's obligation. Most Cited Cases Under Virginia law, agency relation, like partnership, is of fiduciary character, and principles which oblige partners to exercise good faith and integrity in their dealing with one another apply equally to principal and agent. (15] Account 9 e=> 1 9 Account 9I Right of Action and Defenses 9kl k. Nature and grounds of right to an account. Most Cited Cases Under ·Virginia law, "accounting" is form of equitable relief which is available upon order of court in equity providing for accounting of funds among those with partnership or other fiduciary relation inter se, and may be sought along with purely restitutionary remedies. (16] Principal and Agent 308 e=> 79(1) 308 Principal and Agent 30811 Mutual Rights, Duties, and Liabilities © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. - on its accuracy. In other words, the accuracy of the © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 55 P.3d 13, 2002 WY 144 (Cite as: 55 P.Jd 13) information was not a material fact as it relates to the summary judgment motion. [~ 34] The district court was correct in granting Sorensen's motion for summary judgment. There are no genuine issues of material fact and Sorensen is entitled to judgment as a matter of law. Sorensen's expert established the professional standard of care and gave an opinion based on the undisputed facts that Sorensen did not breach that standard. Rino did not counter those opinions with a contrary expert opinion. CONCLUSION [~ 35] Summary judgment should not have been granted to attorney Mead because there remain genuine issues of material fact as to Mead's conduct. Because those issues of material fact remain, the burden did not shift to Rino to produce expert testimony to counter Mead's expert. Summary judgment was, however, properly granted to accountant Sorensen because no genuine issues of material fact remain, Sorensen established through expert opinion testimony that he did not breach the professional standard of care, and Rino presented no expert evidence to the contrary. [~ 36] The summary judgment in favor of Mead is reversed, the summary judgment in favor of Sorensen is affirmed, and the case is remanded to the district court. Such remand does not include those issues determined by the district court to be barred by the doctrine of collateral estoppel. WE CONCUR: ~jj 14 APPENDIX 2 CHAPTER 6 DDD POLICY MANUAL i of ii ISSUED 7/11 DIVISION OF DEVELOPMENTAL DISABILITIES Olympia, Washington TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 Table of Contents Page AUTHORITY.................................................................................................................................1 PURPOSE.......................................................................................................................................1 SCOPE ............................................................................................................................................1 DEFINITIONS ...............................................................................................................................1 POLICY..........................................................................................................................................5 PROCEDURES..............................................................................................................................5 I. REPORTING .....................................................................................................................5 A. Cost Reports.............................................................................................................5 B. Due Date of Report ..................................................................................................6 C. Completing Reports and Maintaining Records........................................................6 D. Report Certification .................................................................................................7 E. Improperly Completed or Late Reports...................................................................8 II. REIMBURSABLE COSTS...............................................................................................8 A. Reimbursable Costs Definition................................................................................8 B. Depreciable Assets...................................................................................................8 C. Equipment and Building Expenses..........................................................................9 D. Reporting Depreciable Assets..................................................................................9 E. Interest....................................................................................................................10 F. Donations and Contributions .................................................................................11 G. Related Organization/Party Costs..........................................................................11 H. Joint Program Costs...............................................................................................12 TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 CHAPTER 6 DDD POLICY MANUAL ii of ii ISSUED 7/11 I. Transportation Costs..............................................................................................12 J. Instruction and Support Services...........................................................................13 K. Fringe Benefits.......................................................................................................13 III. SETTLEMENT................................................................................................................13 A. Settlement Definition.............................................................................................13 B. Settlement Determination ......................................................................................14 C. Administrative Staff Hours Counted as ISS for Settlement Purposes...................15 D. Programs Combined for Settlement.......................................................................16 E. Settlement Process.................................................................................................16 F. Optional Two-Year Settlement Process.................................................................17 EXCEPTIONS..............................................................................................................................17 SUPERSESSION..........................................................................................................................17 CHAPTER 6 DDD POLICY MANUAL 1 of 17 ISSUED 7/11 DIVISION OF DEVELOPMENTAL DISABILITIES Olympia, Washington TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 Authority: Chapter 71A RCW Developmental Disabilities Chapter 388-101 WAC Certified Community Residential Services and Support PURPOSE This policy establishes procedures and criteria for cost reporting and the settlement process for Division of Developmental Disabilities (DDD) contracted residential programs. SCOPE This policy applies to DDD contracted and certified residential programs, which means Supported Living (SL) programs, Group Homes (GH), and Group Training Homes (GTH). DEFINITIONS Administrative Staff means owners, officers or employees of the contractor, including executive directors, administrators, accountants, bookkeepers, clerical support and/or secretaries whose primary job functions require a majority of time for administrative, management and/or operational support. Administrative staff may also include corporate staff whose time is allocated to the contractor. Arm’s-Length Transaction means a transaction resulting from good faith bargaining between a buyer and seller who hold adverse positions in the market place. Arm‟s-length transactions are presumed to be objective transactions between disinterested parties (meaning neither the buyer nor the seller has a financial incentive to buy or sell at a price more or less than market value). Client means a person who has a developmental disability and is: 1. Eligible under RCW 71A.10.020; and TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 CHAPTER 6 DDD POLICY MANUAL 2 of 17 ISSUED 7/11 2. Authorized by DDD to receive residential services described in Chapter 388-101 WAC. Client-Specific Staff Add-On means a staffing increase above and beyond the individual instruction and support hours required and allowed in the standard rate provision of a contract, enabling a contractor to increase the individual instruction and support hours provided to a specific client. Contract means a contract between the department and a contractor for certified community residential services to clients as described in Chapter 388-101 WAC. Contractor means an entity contracting with the department to provide certified community residential services to clients as described in Chapter 388-101 WAC. Cost-of-Care Adjustment means a reimbursement adjustment intended to cover the necessary costs of non-variable staff support and administration to provide services to residents during a time when their residence is temporarily not at full capacity. Department means the Department of Social and Health Services (DSHS) and its employees. Division means the DSHS Division of Developmental Disabilities and its employees. Fringe benefits means benefits provided at the employer's expense to all employees who qualify. These may include sick leave, health insurance, paid vacation, holiday pay, retirement plan, and other benefits. Full Time Equivalent (FTE) means a total of 2,080 hours (52 weeks x 40 hours) worked by one or more employees during a twelve-month period. Group Home (GH) Program is included within the meaning of residential services described in Chapter 388-101 WAC and contract provisions. For purposes of this policy, “Group Training Home” is synonymous with “Group Home.” Group Training Home (GTH) means a certified non-profit residential program as per RCW 71A22.020. Housing Costs for Overnight Coverage means the costs of providing an apartment unit or other dwelling used by staff when working 24-hour or longer duty shifts. The costs incurred by the program for these housing costs are client support costs, and not to be reported as Instruction and Support Services compensation. Indirect Client Support Costs (ICS) include Maintenance/Repair expenses for client housing, Client Transportation Expenses, and non-Instruction and Support Services Housing Costs for Overnight Coverage. TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 CHAPTER 6 DDD POLICY MANUAL 3 of 17 ISSUED 7/11 Instruction and Support Services (ISS) means client services required by Chapter 388-101 WAC and contract provisions. ISS are provided by staff designated as ISS staff (see definition below). ISS may also be provided by the administrator as described in this policy and by other administrative personnel (such as bookkeepers, accountants or maintenance workers) if the provision of ISS is included in their job description. Instruction and Support Services (ISS) Staff means employees (including counselors, instructors and/or trainers) of the contractor whose primary job function is the provision of instruction and support services to clients. ISS staff shall include employees (e.g., program managers and supervisors) of the contractor whose primary job function is the supervision of ISS staff. ISS Hours include: On the job hours worked by staff designated as ISS staff, including related training time; For staff who perform both administrative functions and ISS, the agency may include that portion of the employee‟s hours that are dedicated to ISS function; The administrator‟s hours worked as ISS as allowed under Section VII.C of this policy; Sleep hours may be counted as ISS for staff who are required to sleep over and are on duty in close proximity and are available to respond immediately in person at all times; and Call back hours for ISS employees who are required to carry pagers or otherwise are on call outside of their normal work hours. The maximum number of hours that may be counted as ISS are the accumulation of hours per shift for those occurrences from the time a call was received until the employee has been able to return to his/her previous activities, rounded up to the nearest hour. The division may request verification of hours (e.g., time sheets, etc.) for all staff for which ISS hours are claimed. ISS Staff Compensation for reporting purposes on the annual cost report includes: ISS staff salaries, wages, stipends and other compensation for staff that are designated as ISS, and prorated for those staff whose time is split between ISS and administrative functions; Employer paid payroll taxes relating the actual allowable ISS hours worked. For proprietary contractors, the portion of the Business and Occupation (B & O) tax applicable to the revenue received for ISS reimbursement may be included as payroll tax; • • • • • • • TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 CHAPTER 6 DDD POLICY MANUAL 4 of 17 ISSUED 7/11 Fringe benefits paid by the employer for ISS staff (prorated for those staff whose time is split between ISS and administrative functions); Staff lodging paid by the contractor and as defined in this section; and As provided for in section VII.C.2. of this policy, compensation for the administrator time used performing ISS duties. For settlement purposes, compensation is allowed at the benchmark compensation rate for contractors providing Supported Living (SL) services. MA (Non-MSA) and MSA Counties: MSA means Metropolitan Statistical Area - A large population nucleus, together with adjacent communities that have a high degree of economic and social integration with that nucleus. MSA: Metropolitan Statistical Area: Relatively freestanding MA that is not closely associated with other MAs. These areas typically are surrounded by non-metropolitan counties. A MSA must include at least: One city with 50,000 or more inhabitants; or A Census Bureau-defined urbanized area (of at least 50,000 inhabitants) and a total metropolitan population of at least 100,000. For purposes of determining reimbursement rates as stated in this policy, Counties recognized as MSA counties in Washington are Asotin, Benton, Chelan, Clark, Cowlitz, Douglas, Franklin, Island, King, Kitsap, Mason, Pierce, Skagit, Snohomish, Spokane, Thurston, Whatcom and Yakima. Note: King County is recognized as having unique characteristics relative to other MSA counties for purposes of determining reimbursement rates as stated in this policy. Professional Services are services provided by staff (either as employees or contracted personnel) including nurses, therapists and other licensed or specialized skills personnel and are reimbursed at a non-standard rate as specified in Exhibit B of the contract. Related Organization is either an entity, which is under common ownership, and/or control with, has control of, or is controlled by, the contractor. An entity is deemed to "control" another entity if one entity has a five (5) percent or greater ownership interest in the other; or if an entity has the capacity (whether or not exercised) derived from a financial or other relationship to influence directly or indirectly the activities of the other. Related Party is a spouse; natural parent, child or sibling; adopted child or adoptive parent; stepparent, stepchild, stepbrother, stepsister; father-in-law, mother-in-law, son-in-law, daughterin-law; grandparent or grandchild; uncle, aunt, nephew, niece or cousin of the contractor. • • • • • TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 CHAPTER 6 DDD POLICY MANUAL 5 of 17 ISSUED 7/11 Residential Services Program means a contractor's Group Home and Group Training Home or Supported Living (SL) residential program providing services in accordance with Chapter 388-101 WAC and contract provisions. Staff Lodging means SL programs that provide the primary residence for a staff person as a part of their compensation package and may include the cost of the residence as ISS cost for cost reporting purposes. Staff lodging does not include the cost of maintaining a residential unit for the use of overnight staff when it is not their primary residence. The reporting of staff lodging cost for this purpose must be consistent with Internal Revenue Service (IRS) rules for reporting housing to employees as income. Supported Living (SL) is included within the meaning of residential services as described in Chapter 388-101 WAC and contract provisions. POLICY A. Contractors shall report costs of operations for purposes of providing data to the division and to determine any settlements due. B. The division shall: 1. Set standard rates for each cost center for programs covered within this policy; 2. Describe allowable costs and specify the reporting requirements; 3. Describe the rate setting methodology and principles that apply to programs; 4. Describe the settlement process as it applies to residential programs; 5. Describe the summer program requirements and payment procedures; and 6. Provide information on billing and payment requirements and procedures. PROCEDURES I. REPORTING A. Cost Reports 1. In order for a contractor to receive payments under the residential reimbursement system, the contractor must submit an annual DDD cost report covering the completed calendar year. 2. If a contractor terminates from the residential program, the former contractor shall submit a final annual report covering the period the TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 CHAPTER 6 DDD POLICY MANUAL 6 of 17 ISSUED 7/11 contract was in effect during the calendar year. The final annual report shall be used for determining a settlement for the final period. B. Due Date of Report 1. The cost report shall be submitted on or before March 31 of the year following the calendar year covered in the report. 2. Cost Report Extension Provisions a. A thirty (30) day extension beyond the date specified above will be granted to contractors upon written notification to the Office of Rates Management (ORM) that the additional time is required to complete the report. The notification shall include a brief explanation of the circumstances that require the extension. An approval from the department will not be required for this thirty (30) day extension. b. The department, upon a written request setting forth reasons for the necessity of an extension beyond the thirty (30) day extension specified above, may grant an additional thirty (30) day extension for submitting the cost report. The request must be written and received by the ORM prior to the due date as specified in „1‟ and „2.a.‟ above. The ORM will respond to this request within ten (10) working days from the date of receipt. C. Completing Reports and Maintaining Records 1. Reports shall be completed in accordance with instructions provided by the department. If no specific instruction covers a situation, generally accepted accounting principles shall be followed. 2. The department may analyze the submitted cost report and financial statement of each contractor to determine if the information is correct, complete, and reported in conformance with generally accepted accounting principles and the requirements of this contract and those policies, rules and regulations referenced therein. If the analysis finds that the cost report or financial statements are incorrect or incomplete, the division may make adjustments to the reported information. 3. A schedule of adjustments shall be provided to contractors in writing and shall include an explanation for the adjustments and dollar amounts of the adjustments. TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 CHAPTER 6 DDD POLICY MANUAL 7 of 17 ISSUED 7/11 a. If a contractor disagrees with an adjustment made under this section, the contractor shall, in writing, identify specifically the grounds for his/her contention that the adjustment is erroneous and include any documentation that supports the contractor's position. b. If the contractor wishes to challenge the division's determination of the contractor's contention from subsection „a‟ above, the contractor may request an administrative review pursuant to Chapter 388-101 WAC and/or the dispute clause as described in the general terms and conditions of the contract. 4. Contractors shall submit a single cost report that includes all business activities related to the cost of providing contracted services. 5. Facilities with joint residential program costs shall allocate and report shared costs to each residential program in accordance with allocation policies prescribed or approved by the department. 6. If a contractor fails to maintain records adequate for audit purposes or fails to allow inspection of such records by authorized personnel, the department may suspend all or part of subsequent payments due under the contract until compliance is forthcoming. Upon compliance, the department shall resume contract payments and shall release suspended payments pursuant to the contractor's contract. 7. Contractors shall maintain cost reports and records adequate for audit purposes. If, at the end of the contract retention period as specified in the work order, there are unresolved audit questions, the report will be retained until such questions are resolved. D. Report Certification 1. Each required report shall be accompanied by a certification signed on behalf of the contractor responsible to the department during the report period. If the contractor files a federal income tax return, the certification shall be executed by the person normally signing this return. If the report is prepared by someone other than an employee of the contractor, that person‟s name and contact information shall be included with the certification. 2. If a contractor knowingly files a report containing false information, such action constitutes cause for termination of the contractor's contract with the department. Contractors filing false reports may be referred for prosecution under applicable statutes. TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 CHAPTER 6 DDD POLICY MANUAL 8 of 17 ISSUED 7/11 E. Improperly Completed or Late Reports 1. An annual cost report must be completed in accordance with applicable department regulations and instructions. An annual cost report deficient in any of these respects may be returned in whole or in part to the contractor for proper completion. 2. If a report is not properly completed or is not received by the division on or before the due date of the report, including any approved extensions, all or a part of any payments due under the contract may be held by the department until the improperly completed or delinquent report is properly completed and received by the division. II. REIMBURSABLE COSTS A. Reimbursable Costs Definition Reimbursable costs are documented costs that are necessary, ordinary and related to the provision of client support, training and activities as prescribed in Chapter 388-101 WAC and contract. B. Depreciable Assets The following costs shall be reported as depreciable assets: 1. Expenditures for equipment, furnishings or vehicles with historical acquisition cost in excess of $5,000 per unit and a useful life of more than one (1) year from the date of purchase; 2. Expenditures for equipment or furnishings with historical acquisition value of less than $300 per unit if the item was acquired in a group purchase where the total acquisition cost exceeded $5,000 and has a useful life of more than one (1) year from the date of purchase; 3. Expenditures for building, land and/or leasehold improvements which are in excess of $5,000 and which extend the useful life of the asset; and 4. Expenditures for assets as described above with historical acquisition value less than $5,000 may be reported as depreciable assets, or expensed in the year they were purchased. TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 CHAPTER 6 DDD POLICY MANUAL 9 of 17 ISSUED 7/11 C. Equipment and Building Expenses The following costs shall be reported as expenses: 1. Those expenditures for equipment, furnishings, or building, land, or leasehold improvements not subject to classification as a depreciable asset; and 2. Repairs (damages) or maintenance (upkeep) costs that do not extend the useful life or increase the value of the building, equipment, furnishings or vehicles. D. Reporting Depreciable Assets 1. Depreciable assets may include the following: a. Building - The basic structure or shell and additions. b. Fixed Equipment - Attachments to the building such as wiring, plumbing, and heating system. c. Movable Equipment - Such items as furnishings, beds, stoves, refrigerators, silverware, and dishes. d. Vehicles - Such items as automobiles or vans used to transport residents to activities, training, or work. e. Land Improvements - Such items as paving, on-site sewer and water lines, parking areas, shrubbery, fences, government assets, etc., where replacement is the responsibility of the Group Home and Group Training Home. f. Leasehold Improvement - Improvements and additions made by the lessee (contractor) to the leased property, which become the property of the lessor after the expiration of the lease. 2. Land is not a depreciable asset. Land includes the cost of such items as off-site sewer and water lines, the cost of permanent roadways, curbs and sidewalks, and utility hookups. 3. Depreciable assets shall be reported as follows: TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 CHAPTER 6 DDD POLICY MANUAL 10 of 17 ISSUED 7/11 a. The base used to calculate depreciation shall be: (i) The historical cost to the contractor in acquiring the asset or capitalized expense from an unrelated organization less the estimated salvage value, if any; or (ii) The fair market value of the donated or inherited asset or asset purchased with restricted donation at the time of donation or death less goodwill and salvage value, if any; or (iii) Assets or capitalized expenses acquired from a related organization, which shall not exceed the lower of cost to the related organization or the cost of comparable assets purchased elsewhere. b. The lives used to calculate depreciation expenses shall be: (i) Building - Not less than thirty (30) years. (ii) Building Improvements - The remaining useful life of the building as modified by the improvement. (iii) Other Assets - Lives no shorter than guideline lives published by the IRS or by the American Hospital Association. (iv) Lives shall be measured from the date of the most recent arm's-length acquisition of the asset. c. The depreciation expense methodology used shall be acceptable by generally accepted accounting principles and the IRS methodology for the asset class being depreciated. d. Changes in depreciation methodology during the life of the asset must be disclosed on the annual cost report. E. Interest 1. Interest is defined as necessary and ordinary interest for working capital and capital indebtedness, which must be incurred for a financial need related to resident care, training, and activities. TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 CHAPTER 6 DDD POLICY MANUAL 11 of 17 ISSUED 7/11 2. Interest cost shall be at a rate not in excess of what a prudent borrower would have to pay at the time of the loan in an arm's-length transaction in the financial market. 3. Interest paid to a related organization shall not be reported in excess of the cost to the related organization of obtaining the use of the funds. F. Donations and Contributions 1. Donations or contributions are classified as: a. Restricted: Grants, gifts, and income from endowments in the form of purchasing power which must be used only for specific purposes designated by the donor. Items whose nature restricts its use, such as food, supplies, equipment, vehicles or building space. b. Unrestricted: Grants, gifts, and income from endowments in the form of cash or purchasing power given to the facility without restriction by the donor. c. Volunteer time and donated consultant time. 2. Donations or contributions are reported as follows: a. The value of a restricted donation/contribution shall not be reported as an expense on the cost report; b. The value of an unrestricted donation/contribution shall be reported in the expense account for which it was used through the contractor's normal recording of transactions; and c. The value of the volunteer/donated time shall not be reported as an expense on the cost report. G. Related Organization/Party Costs 1. Costs of services, facilities, and supplies furnished by related organizations to the contractor shall be reported at the lower of the costs to the related organization or the price of comparable services, facilities or supplies purchased elsewhere. 2. The cost of a related party lease shall be reported based on the lower of actual ownership cost (i.e., interest, depreciation, taxes, and insurance) to the related party or the arm's-length lease to the related party. TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 CHAPTER 6 DDD POLICY MANUAL 12 of 17 ISSUED 7/11 H. Joint Program Costs 1. Joint program costs are defined as expenses benefiting more than one program, or one program and any other entity. 2. Costs shall be allocated in accordance with cost reporting instructions. I. Transportation Costs 1. Transportation costs are defined as: a. Ordinary and necessary transportation of clients for training and activities. b. Ordinary and necessary transportation of employees for program administration and operation. c. Ordinary and necessary travel of employees for in-service training and education. 2. The following costs shall be reported: a. The costs of operating vehicles limited to automobiles, vans, pickup trucks or buses that are used for the purposes defined in this section, including maintenance, repairs and operation. A mileage log shall be maintained detailing the usage of each vehicle not used 100 percent for the purposes defined in this section. b. The costs of public transportation for clients, volunteers and staff, which are for the purposes defined in this section. c. The costs of mileage reimbursement of employees and volunteers using their personal vehicle for actual mileage for the purposes defined in this section. d. Commuting between an employee's residence and their primary place of employment shall not be included as transportation. If a vehicle is used by any staff for travel that is not defined above, these shall be fringe benefit costs for that employee. 3. The contractor shall not seek or accept additional compensation from or on behalf of a client for any or all contracted residential services except: a. The contractor shall notify DDD in writing when the client contributes toward his/her costs for transportation. TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 CHAPTER 6 DDD POLICY MANUAL 13 of 17 ISSUED 7/11 b. Costs incurred by the contractor associated with this provision are unallowable costs and shall not be reported on the annual cost report. J. Instruction and Support Services 1. ISS compensation for performance of ISS duties by an individual shall be reported as ordinary compensation for necessary services actually performed. 2. Compensation is ordinary when it is within a reasonable amount usually paid to an individual with necessary qualifications for similar services within the same or comparable programs. 3. A service is necessary if it would have had to be performed by another person if the individual in question had not performed it. 4. The reported ISS compensation for an individual staff must not exceed the reasonable amount criteria per item 2 above. 5. The division may request job descriptions for employees to verify the primary duties of the positions. Paid hours worked and payroll costs charged to ISS for cost reporting purposes must be verifiable in the agency‟s records. The number of ISS paid hours reported for any individual employee or owner of an agency must not exceed 3,120 hours per year (designated live-in staff are exempt from this limitation). ISS staff shall also include contracted personnel whose job function is the provision of instruction and support services. K. Fringe Benefits Fringe benefits provided at the employer's expense may include sick leave, health insurance, paid vacation, holiday pay, retirement plan, as well as other benefits, to all employees who qualify. III. SETTLEMENT A. Settlement Definition 1. The settlement shall be for under utilization of contracted and paid service hours and dollars in the instruction and support service cost center. 2. Settlements shall be based on department payment system(s) reports, the contractor's financial reports, and/or other department-specified reports or documents. TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 CHAPTER 6 DDD POLICY MANUAL 14 of 17 ISSUED 7/11 3. The provisions of this section will apply to the settlement calculation for the entire calendar year in which the contract is effective. 4. A settlement as described in this section is considered an overpayment as defined in DSHS Administrative Policy No. 10.02, Overpayments and Debts for Providers and Vendors: “Overpayments and debts: is any department payment or benefit to a vendor or provider in excess of the amount the provider or vendor was entitled to by law, rule, or contract.” B. Settlement Determination The contractor shall refund the greater of: 1. All amounts of ISS cost center rate reimbursement in excess of the allowable instruction and support service costs as defined in this policy, and as reported in the contractor‟s annual cost report and/or departmentspecified documents. 2. Reimbursement amounts received from DDD for professional services and professional services compensation paid by the contractor shall be included in the settlement calculation. For purposes of the settlement calculation, professional services reimbursement and compensation rates exclude administration amounts that may be included in the hourly professional service rate. 3. The total annual reimbursed hours for ISS and professional/licensed staff minus actual total annual paid hours worked as reported in the contractor‟s annual cost report and/or department-specified documents, multiplied by the weighted average reimbursement benchmark rate for ISS staff in effect during the settlement period. 4. Staff add-on reimbursements will be subject to the settlement provisions of this policy. 5. Nurse Delegation Core Training Staff Class Hours and dollars that are paid to an agency as reimbursement for agency staff time spent in attending training will be subject to the settlement provisions of this policy. 6. Reimbursement for agency staff time to attend training mandated through legislation or initiative will be subject to the settlement provisions of this policy. TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 CHAPTER 6 DDD POLICY MANUAL 15 of 17 ISSUED 7/11 7. Contractors not using all of their contracted ISS hours must provide information as to why the hours were not used and document the attempts to provide those hours. A plan to prevent future occurrences must be submitted. 8. When submitting a cost report that includes a settlement, a contractor that has had extraordinary ISS costs during the year may request to apply those extraordinary costs toward the settlement. The agency making the request may submit narrative justification and a breakdown of associated costs to enable the division to analyze the request. 9. Contractors that have Administrative/ICS or Non-ISS rates above the administrative rate standard for the reporting year will be required to return the administrative dollars associated with unused contracted ISS hours as determined by DDD. A worksheet showing the calculations to determine the settlement is available on the DDD Internet website in the Rates Management section of the Residential Provider Resources page at this address: http://www.dshs.wa.gov/ddd/res_provider_resources.shtml. The contractor may elect to have a two-year option for the administrative rate settlement following the same criteria and procedures as described in section F below. C. Administrative Staff Hours Counted as ISS for Settlement Purposes 1. GH and GTH program administrators may provide ISS hours. 2. SL and combined programs (GH, GTH and SL): a. For residential services programs that have twenty (20) or fewer FTE employees that support clients during the settlement period, settlements may include the program administrator's hours worked in an ISS staff capacity. The cost that may be applied in the settlement computation is the total hours worked as ISS staff multiplied by the benchmark compensation rate in effect during the period that the hours were worked. b. For residential services programs that have more than twenty (20) FTE employees that support clients during the settlement period, settlements may not include administrator's hours worked in an ISS staff capacity in their settlement computation. c. The hourly rate allowed for the administrator‟s cost shall not exceed the contractor‟s instruction and support staff compensation rate as specified in the contractor‟s contract and rate notification. TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 CHAPTER 6 DDD POLICY MANUAL 16 of 17 ISSUED 7/11 d. An exception to item “b” above may be requested by any contractor. A copy of the approved exception to policy (ETP) must accompany the annual cost report if the administrative hours are reported as ISS for settlement purposes. D. Programs Combined for Settlement 1. Contractors that have contracts with the division for the operation of multiple residential programs within a single region may collapse those contracts into a single contract for any combination of GH and GTH and SL programs. The single contract will identify the type(s) of residential program(s) and all applicable rates. 2. Programs combined under a single contract will be treated as a single entity for purposes of the settlement provisions of this policy. The contractor may combine the total reimbursement for ISS hours and compensation amounts subject to settlement per the contract, and the combined total of paid ISS hours and compensation into a single settlement calculation. E. Settlement Process The division will determine a settlement amount for each calendar year. 1. The contractor shall pay a settlement overpayment amount, or shall commence repayment in accordance with a schedule determined by the department, within thirty (30) days after receiving departmental notification of the overpayment amount. If a settlement determination is contested, the contractor shall pay or commence repayment within thirty (30) days after such proceedings are concluded. 2. The department will pay any amount due the contractor as a result of errors in billing or payment disclosed on the settlement within thirty (30) days after issuance of departmental notification of the amount due the contractor. 3. If the contractor does not refund the overpayment or any installment when due, or after the final decision from any administrative or judicial remedy sought by the contractor regarding the amount due, the department may withhold payments from current billings until the overpayment is refunded. 4. A proposed settlement may be revised by the department on the basis of audit findings or DDD certification evaluation findings. TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 CHAPTER 6 DDD POLICY MANUAL 17 of 17 ISSUED 7/11 F. Optional Two-Year Settlement Process 1. The contractor may request to have an optional two (2) year settlement. These settlements shall allow a collaborative process in order to minimize settlements due. 2. Contractors will indicate on their first year cost report whether or not they wish to participate in the optional two (2) year settlement process. Contractors may initiate the planning process with the region during the first year if preliminary data indicates that a settlement will materialize. 3. The request for a two-year optional settlement and plan must be sent in writing to the Regional Administrator for review and consideration no later than May 31 of the second settlement year. Example: For settlement 2011-2012, the request would be due by May 31, 2012. 4. A joint plan will be produced by June 15th of the second settlement year. If no plan is agreed upon by this date, the first year settlement amount is due according to the provisions of the previous settlement section. 5. Information derived from the first year's cost report will be used to develop a joint plan for use of the unspent ISS dollars to be followed during the second year of the settlement period. These funds will be used to increase service capacity or extend services to additional people. Funds retained through this process would be expended on direct supports rather than agency administration costs. EXCEPTIONS Exceptions to this policy may be approved by the Division Director or her designee based upon information submitted on DSHS 05-010, Rule Exception Request. SUPERSESSION DDD Policy 6.04 July 1, 2009 Approved: /s/ Linda Rolfe Date: July 1, 2011 Director, Division of Developmental Disabilities CHAPTER 6 DDA POLICY MANUAL i of ii ISSUED 7/13 DEVELOPMENTAL DISABILITIES ADMINISTRATION Olympia, Washington TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 Table of Contents Page AUTHORITY .................................................................................................................................1 PURPOSE .......................................................................................................................................1 SCOPE ............................................................................................................................................1 DEFINITIONS ...............................................................................................................................1 POLICY ..........................................................................................................................................5 PROCEDURES ..............................................................................................................................5 I. REPORTING .....................................................................................................................5 A. Cost Reports .............................................................................................................5 B. Due Date of Report ..................................................................................................6 C. Completing Reports and Maintaining Records ........................................................6 D. Report Certification .................................................................................................7 E. Improperly Completed or Late Reports ...................................................................8 II. REIMBURSABLE COSTS ...............................................................................................8 A. Reimbursable Costs Definition ................................................................................8 B. Depreciable Assets ...................................................................................................8 C. Equipment and Building Expenses ..........................................................................9 D. Reporting Depreciable Assets ..................................................................................9 E. Interest....................................................................................................................10 F. Related Organization/Party Costs ..........................................................................11 G. Joint Program Costs ...............................................................................................11 H. Transportation Costs ..............................................................................................11 I. Instruction and Support Services ...........................................................................12 11HK Washington State 7 Department of Social & Health Services TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 CHAPTER 6 DDA POLICY MANUAL ii of ii ISSUED 7/13 J. Fringe Benefits.......................................................................................................13 III. SETTLEMENT................................................................................................................13 A. Settlement Definition.............................................................................................13 B. Settlement Determination ......................................................................................14 C. Administrative Staff Hours Counted as ISS for Settlement Purposes...................15 D. Programs Combined for Settlement.......................................................................15 E. Settlement Process.................................................................................................16 F. Optional Two-Year Settlement Process.................................................................16 EXCEPTIONS..............................................................................................................................17 SUPERSESSION..........................................................................................................................17 CHAPTER 6 DDA POLICY MANUAL PAGE 1 OF 17 ISSUED 7/13 DEVELOPMENTAL DISABILITIES ADMINISTRATION Olympia, Washington TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 Authority: Chapter 71A RCW Developmental Disabilities Chapter 388-825 WAC Developmental Disabilities Services Chapter 388-101 WAC Certified Community Residential Services and Support PURPOSE This policy establishes procedures and criteria for cost reporting and the settlement process for the Developmental Disabilities Administration (DDA) contracted residential programs. SCOPE This policy applies to DDA contracted and certified residential programs, which means Supported Living (SL), Group Home (GH), and Group Training Home (GTH) services. DEFINITIONS Administration means the DSHS Developmental Disabilities Administration (DDA) and its employees. Administrative Staff means owners, officers or employees of the contractor, including executive directors, administrators, accountants, bookkeepers, clerical support and/or secretaries whose primary job functions require a majority of time for administrative, management and/or operational support. Administrative staff may also include corporate staff whose time is allocated to the contractor. Arm’s-Length Transaction means a transaction resulting from good faith bargaining between a buyer and seller who hold adverse positions in the market place. Arm’s-length transactions are presumed to be objective transactions between disinterested parties (meaning neither the buyer nor the seller has a financial incentive to buy or sell at a price more or less than market value). Client means a person who has a developmental disability and is: 11HK Washington State 7 Department of Social & Health Services TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 CHAPTER 6 DDA POLICY MANUAL PAGE 2 OF 17 ISSUED 7/13 1. Eligible under RCW 71A.10.020; and 2. Authorized by DDA to receive residential services described in Chapter 388-101 WAC. Client-Specific Staff Add-On means a staffing increase above and beyond the individual instruction and support hours required and allowed in the standard rate provision of a contract, enabling a contractor to increase the individual instruction and support hours provided to a specific client. Contract means a contract between the Department and a contractor for certified community residential services to clients as described in Chapter 388-101 WAC. Contractor means an entity contracting with the Department to provide certified community residential services to clients as described in Chapter 388-101 WAC. Cost-of-Care Adjustment means a reimbursement adjustment intended to cover the necessary costs of non-variable staff support and administration to provide services to residents during a time when their residence is temporarily not at full capacity. Department means the Department of Social and Health Services (DSHS) and its employees. Fringe benefits means benefits provided at the employer's expense to all employees who qualify. These may include sick leave, health insurance, paid vacation, holiday pay, retirement plan, and other benefits. Full Time Equivalent (FTE) means a total of 2,080 hours (52 weeks x 40 hours) worked by one or more employees during a twelve-month period. Group Home (GH) Program is included within the meaning of residential services described in Chapter 388-101 WAC and contract provisions. For purposes of this policy, “Group Training Home” is synonymous with “Group Home.” Group Training Home (GTH) means a certified non-profit residential program as per RCW 71A.22.020. Housing Costs for Overnight Coverage means the costs of providing an apartment unit or other dwelling used by staff when working 24-hour or longer duty shifts. The costs incurred by the program for these housing costs are client support costs, and not to be reported as Instruction and Support Services compensation. Indirect Client Support Costs (ICS) include Maintenance/Repair expenses for client housing, Client Transportation Expenses, and non-Instruction and Support Services Housing Costs for Overnight Coverage. TITLE: RESIDENTIAL PROGRAMS COST REPORTING POLICY 6.04 CHAPTER 6 DDA POLICY MANUAL PAGE 3 OF 17 ISSUED 7/13 Instruction and Support Services (ISS) means client services required by Chapter 388-101 WAC and contract provisions. ISS are provided by staff designated as ISS staff (see definition below). ISS may also be provided by the administrator as described in this policy and by other administrative personnel (such as bookkeepers, accountants or maintenance workers) if the provision of ISS is included in their job description. Instruction and Support Services (ISS) Staff means employees (including counselors, instructors and/or trainers) of the contractor whose primary job function is the provision of instruction and support services to clients. ISS staff shall include employees (e.g., program managers and supervisors) of the contractor whose primary job function is the supervision of ISS staff. McAndrew v. Lockheed Martin Corp., 206 F.3d 1031 (2000) 16 IER Cases 25, 13 Fla. L. Weekly Fed. C 507 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 6 (11th Cir.2000), a panel of this Court followed Chambliss and held that the intracorporate conspiracy doctrine barred plaintiff's § 1985(3) claim alleging a conspiracy among employees of the same public entity to deprive him of his civil rights. See id. Chambliss and Dickerson remain the law in this Circuit. We have no occasion to revisit them today because neither case addressed the precise question presented here: whether the intracorporate conspiracy doctrine applies to and bars claims alleging a criminal conspiracy among corporate officers and the corporation itself arising under 42 U.S.C. § 1985(2). Neither case involved a claim brought under § 1985(2) and, more importantly, neither involved allegations of a criminal conspiracy to deter by force, intimidation, or threat an individual from testifying before a federal grand jury. SIDERIUS, LONERGAN & MARTIN, LLP December 02, 2020 - 11:42 AM Transmittal Information Filed with Court: Court of Appeals Division I Appellate Court Case Number: 79959-2 Appellate Court Case Title: State of Washington, Respondent v. Jason Lowery et al, Appellants The following documents have been uploaded: 799592_Petition_for_Review_20201202114002D1946419_2806.pdf This File Contains: Petition for Review The Original File Name was review.petition.filing.pdf A copy of the uploaded files will be sent to: Matthew.Kuehn@atg.wa.gov ddd@d3law.com franks@sidlon.com katrina.king@atg.wa.gov mwalters@rpwlawfirm.com Comments: Sender Name: Valerie Loxtercamp - Email: valeriel@sidlon.com Filing on Behalf of: Michael Francis Sherman - Email: msherman@sidlon.com (Alternate Email: ) Address: 500 Union Street, Suite 847 Seattle, WA, 98101 Phone: (206) 624-2800 Note: The Filing Id is 20201202114002D194641