Edleman v. Russell

WILLIAM M. EDLEMAN and KATHIE A.EDLEMAN, husband and wife, and themarital community comprised thereof, Respondents,

v. BRIAN PAUL RUSSELL and JANE DOE RUSSELL,his wife, and the marital community comprised thereof;and BRIAN P. RUSSELL, attorneyat law, PLLC, a Washingtonprofessional limited liability company,f/k/a/ BRIAN P. RUSSELL, ATTORNEYAT LAW, P.S., a Washingtonprofessional services corporation, Appellants.

NO. 65668-6-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: April 30, 2012

UNPUBLISHED OPINION

Lau, J. — Brian Russell appeals the jury's verdict in favor of William and Kathie Edleman in this attorney malpractice action. Russell challenges several jury instructions and various evidentiary rulings. Because he establishes no reversible error, we affirm the judgment on the jury's verdict. And because the trial court properlyrefused to give an erroneous damages instruction and properly declined to order Russell to disgorge fees, the Edlemans' cross appeal lacks merit.

FACTS

The facts in this attorney malpractice case against Brian Russell are reported in Green v. Normandy Park, 137 Wn. App. 665, 151 P.3d 1038 (2007). We repeat only facts necessary to address the Edlemans' malpractice claims against Russell. In November 2000, the Edlemans purchased a house in the neighborhood known as the Riviera Section of the City of Normandy Park. The Edlemans planned to demolish the existing house and construct a new house. Neighborhood covenants contained setbacks that restricted the new construction and required community club (Club) approval. The Edlemans retained Russell to assist them with this process. The Edlemans initially corresponded with the Club to seek its approval. They later began building their house and garage without Club approval or full compliance with the setback requirements.

Russell filed two lawsuits on the Edlemans' behalf challenging the Club board's composition and the Club's authority to enforce the covenants.¹ The trial court granted the Club's summary judgment motion in favor of its authority to enforce the covenants. The trial court also ruled that the Edlemans abandoned their board composition claim because they neither raised it in opposition to the Club's summary judgment motion nor in support of their own summary judgment motion. Green, 137 Wn. App. at 667. Aftera bench trial, the court announced its oral ruling and entered a judgment in the Club's favor supported by extensive written findings of fact and conclusions of law. It found that the Edlemans violated the covenants because (1) they failed to obtain Club approval prior to construction and (2) the house and garage were constructed outside the covenants' setback areas. The trial court entered a permanent injunction that (1) directed the Edlemans to demolish the home and the detached garage and (2) enjoined the Edlemans from building on their property without first obtaining Club approval.

The Edlemans retained new counsel for their appeal. We reversed the trial court's ruling that the internal setbacks prevented the Edlemans from building across their two lots. Green, 137 Wn. App. at 689-92. We affirmed the remaining rulings that (1) the Edlemans abandoned their board composition claim, (2) the Club acted reasonably and in good faith in disapproving the Edlemans' construction plans, and (3) the Club had authority to enforce the outer setbacks and require the Edlemans to obtain board approval for their plans. Green, 137 Wn. App. at 692-700. We remanded the case to the trial court for proceedings consistent with our opinion to address the appropriate remedy. Green, 137 Wn. App. at 700-01.

The Edlemans then settled their dispute with the Club. The written settlement agreement required the Edlemans to scale back their garage, preserved the house as built, and pay the Club's attorney fees.

The Edlemans sued Russell for legal malpractice. The Edlemans' three expert witnesses testified at trial that Russell breached the standard of care when he failed to(1) adequately advise the Edlemans about the risks of construction or keep them informed, (2) "go through the process" to secure Club approval before filing suit, and (3) properly prepare for and represent the Edlemans at trial. Russell testified and denied these allegations. His expert witness testified that Russell's legal representation met the standard of care and employed a common trial strategy. A jury found Russell negligent and awarded $999,000 in damages, which included attorney fees paid to successor appellate counsel, attorney fees paid to the Club as part of the settlement, and costs related to the new garage. Russell appeals. The Edlemans cross appeal on damages.

ANALYSIS

Jury Instructions

A. Health Care Informed Consent Instruction

Russell argues for the first time on appeal that the court's instruction 13, premised on the health care informed consent law, allowed the jury to impermissibly find Russell liable without finding he breached the standard of care. Instruction 13 states,

A lawyer has a duty to inform a client of all material facts, including risks and alternatives, which a reasonably prudent client would need to make an informed decision on whether to consent to or reject a proposed course of action. A material fact is one to which a reasonably prudent person in a position of a client would attach significant (sic) in deciding whether or not to follow the proposed course of action.

A lawyer's duty to properly advise and counsel the lawyer's client in accordance with the applicable standard of care cannot be delegated to another person or entity.

Russell claims this instruction held him to an erroneous duty to advise the Edlemans ofall "material facts, including risks and alternatives," expected of a "reasonably prudent client," which gave "undue weight to [the] Edlemans' expert testimony that this duty could not be delegated, and was owed irrespective of what Edleman already knew or learned from third parties." Appellant's Br. at 25. Russell also argues that ordinary negligence principles—not health care informed consent principles—govern an attorney's standard of care,

The Edlemans respond that instruction 13 properly states the law by imposing a mandatory duty on the attorney to obtain a client's informed consent under Rule of Professional Conduct 1.4(b). The Edlemans also argue that both parties' experts testified about this mandatory duty.

We consider a claimed error in a jury instruction only if the specific issue was timely raised to the trial court by a specific adequate exception to that instruction. See Van Hout v. Celotex Corp., 121 Wn.2d 697, 702, 853 P.2d 908 (1993). CR 51(f) provides,

Before instructing the jury, the court shall supply counsel with copies of its proposed instructions which shall be numbered. Counsel shall then be afforded an opportunity in the absence of the jury to make objections to the giving of any instruction and to the refusal to give a requested instruction. The objector shall state distinctly the matter to which he objects and the grounds of his objection, specifying the number, paragraph or particular part of the instruction to be given or refused and to which objection is made.

(Emphasis added.) "'The trial court must have been sufficiently apprised of any alleged error to have been afforded an opportunity to correct the matter if that was necessary.'" Van Hout, 121 Wn.2d at 703 (quoting Estate of Ryder v. Kelly Springfield Tire Co., 91 Wn.2d 111, 114, 587 P.2d 160 (1978)). "The purpose of CR 51(f) is to assure that thetrial court is sufficiently apprised of any alleged error in the instructions so that the court is afforded an opportunity to correct any mistakes before they are made and thus avoid the inefficiencies of a new trial." Goehle v. Fred Hutchinson Cancer Research Ctr., 100 Wn. App. 609, 615, 1 P.3d 579 (2000). "'The pertinent inquiry on review is whether the exception was sufficient to apprise the trial judge of the nature and substance of the objection.'" Walker v. State, 121 Wn.2d 214, 217, 848 P.2d 721 (1993) (quoting Crossen v. Skagit County, 100 Wn.2d 355, 358, 669 P.2d 1244 (1983)). Vague or general objections are not sufficient. Moore v. Mayfair Tavern, Inc., 75 Wn.2d 401, 407-08, 451 P.2d 669 (1969).

Russell failed to preserve his objection on the ground he now asserts as required under CR 51(f) and our case authority. Riblet v. Ideal Cement Co., 57 Wn.2d 619, 358 P.2d 975 (1961) (additional reasons advanced on appeal as to why appellants believed instruction was incorrect could not be considered where they were not within scope of exceptions taken in trial court). Russell's objection to instruction 13 stated:

Defendant excepts to the Court's giving instruction No. 13. Instruction No. 13—I will not read it into the record, basically has been the subject of expert testimony. It may be discussed by the experts in regard to their opinions on the standard of care. We believe it is, to some degree, a comment on the evidence and an inappropriate jury instruction . . . .

RP (June 11, 2010) at 164 (emphasis added).

Because Russell failed to object below to instruction 13 premised on claims raised for the first time on appeal, we decline to review his challenge to thisinstruction.² And an exception to a proposed jury instruction that stated, "[I]t's not a correct statement of the law," was not sufficient to comply with the rule providing that exceptions to an instruction shall be sufficiently specific to apprise the court of the points of law or questions of fact in dispute. Lunz v. Neuman, 48 Wn.2d 26, 290 P.2d 697 (1955). Russell's objection on grounds that instruction 13 is "an inappropriate instruction" lacks sufficient specificity to merit review. RP (June 11, 2010) at 164.

Russell also argues instruction 13 improperly commented on the evidence. An impermissible comment is one that conveys to the jury a judge's personal attitudes towards the case's merits. Hamilton v. Dep't of Labor & Indus., ...