Forbes v. AMERICAN BLDG. MAINTENANCE WEST

240 P.3d 790
CourtWashington Supreme Court
DecidedOctober 7, 2010
Docket82950-1
StatusPublished
Cited by15 cases

This text of 240 P.3d 790 (Forbes v. AMERICAN BLDG. MAINTENANCE WEST) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Forbes v. AMERICAN BLDG. MAINTENANCE WEST, 240 P.3d 790 (Wash. 2010).

Opinion

240 P.3d 790 (2010)

Cheryl FORBES, Petitioner, and
Colleen Myers, Plaintiff,
AMERICAN BUILDING MAINTENANCE COMPANY WEST; ABM Janitorial Services; ABM Industries Inc., Defendants, and
Mary Schultz, Respondent.

No. 82950-1.

Supreme Court of Washington, En Banc.

Argued June 29, 2010.
Decided October 7, 2010.

Bryce James Wilcox, Michael D. Franklin, Attorneys at Law, Spokane, WA, Kenneth Scott Kagan, Carney Badley Spellman, Seattle, WA, for Petitioner.

Mary Elizabeth Schultz, Mary Schultz Law, P.S., Spokane, WA, for Respondent.

*791 C. JOHNSON, J.

¶ 1 This case asks us to make two determinations regarding this lengthy attorney fee dispute. We must decide whether the trial court properly awarded prejudgment interest and whether the attorney's contingency fee should have been based on the satisfaction of judgment amount rather than the settlement amount. The trial court awarded prejudgment interest and calculated the contingency fee from the settlement amount, and the Court of Appeals affirmed the award of prejudgment interest but modified the amount used to calculate the contingency fee, basing it instead on the satisfied judgment amount. We reverse the Court of Appeals on the modification, affirm the award of prejudgment interest, and reinstate the trial court's order in all other respects.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 This attorney fee dispute arose between petitioner Cheryl Forbes and her former attorney, respondent Mary Schultz. In the underlying case, Forbes brought an employment discrimination action against American Building Maintenance Company West and ABM Industries Inc. (collectively "ABM"). Unsatisfied with her original attorney's performance, Forbes asked Schultz to represent her in the action.[1]

¶ 3 On February 19, 2001, Schultz agreed to take the case, and shortly thereafter she and Forbes executed a hybrid contingency fee agreement under which Schultz would receive a contingency fee plus an hourly rate, plus prevailing party fees and any outstanding costs. The contingency fee was to be 33½ percent of any settlement amount and 40 percent of any post trial judgment. Forbes was to pay costs as they were incurred.

¶ 4 As the case proceeded, Forbes became delinquent on costs and fees. As a result, in May 2002, Forbes and Schultz orally agreed to a new fee arrangement under which Schultz would advance funds to pay for costs, and Forbes would use her best efforts to pay for costs as they accrued. Schultz also waived past defaults on the hourly fees owed. In exchange, Schultz increased her contingency fee percentages. The parties committed this new contract to writing on November 4, 2002. Under this agreement, Schultz would receive 40 percent of any settlement amount and 44 percent of any post trial or post appeal judgment.

¶ 5 After a lengthy trial, Schultz achieved a favorable jury verdict for Forbes in the amount of $4 million. This judgment, plus interest, taxable consequences, and assorted fees and costs, totaled $5,655,176.77. Clerk's Papers (CP) at 382-83.[2] Schultz then successfully defended against ABM's post trial motions and argued the case on appeal, where Forbes' judgment was affirmed.

¶ 6 After its unsuccessful appeal, ABM petitioned this court for review. While its petition was pending, ABM extended an offer to Forbes to settle for $5 million. By that time, the total value of the judgment had grown to approximately $7 million. In its offer letter, dated July 26, 2005, ABM gave no deadline but stated that, "if possible," they hoped to present a proposed settlement for board approval on August 2, 2005.

¶ 7 By the time of ABM's settlement offer, Forbes had been in contact with another law firm, Lukins & Annis, regarding her dispute of Schultz's fees. After Schultz received ABM's offer and she communicated it to Forbes, she and Forbes could not agree on a settlement strategy. They disagreed about how to proceed with the settlement negotiations, about the correct interpretation of their fee agreement, and about how the settlement money would be allocated if settlement was reached.[3] On July 29, 2005, *792 Forbes sent an e-mail to Schultz, directing her to send a counteroffer to ABM of $5.8 million. Schultz responded, suggesting that she would not submit a counteroffer until she and Forbes reached a written agreement on settlement distribution. Forbes did not respond to Schultz's further attempts to discuss the settlement offer.

¶ 8 Forbes terminated Schultz as her attorney and retained Lukins & Annis on August 1, 2005. On the same day and without further negotiation, Forbes accepted ABM's $5 million settlement offer. Schultz also received a letter from Lukins & Annis, informing her of the new representation and advising her not to contact Forbes.

¶ 9 On August 2, 2005, Schultz filed a notice of lien with the trial court, claiming an attorney's lien in the amount of $2,895,617.29. This amount included a 44 percent contingency fee based on the judgment amount, various fees and costs, and interest. She amended the lien shortly thereafter, claiming $3,572,754.33 plus 12 percent interest from and as of August 2, 2005.

¶ 10 After reaching the settlement with ABM, on September 16, 2005, Forbes filed a satisfaction of judgment with the trial court in the amount reflected in the judgment, $5,655,176.70. Pursuant to the notice of lien, ABM deposited $3,572,754.33—the amount of Schultz's amended lien—into the superior court registry. ABM directed the court clerk to hold the deposited funds during the resolution of the fee dispute between Forbes and Schultz, and pursuant to RCW 36.48.090, to invest the funds in an interest-bearing trust account. Forbes later sent a letter directing the clerk to deposit the funds in an investment account at a bank of her choice.

¶ 11 In response to motions by both parties, including Forbes' motion for a determination of the reasonableness of Schultz's fees, the trial court held a nine-day hearing to determine the appropriate fees and costs to award to Schultz.[4] Observing that the judgment was neither executed nor enforceable, the trial court reasoned that Schultz's contingency fee should be based on the settlement, not the judgment amount. And noting that the fee agreement is ambiguous as to what fee should apply in this situation—where the settlement amount is less than the judgment amount, the court concluded that 40 percent of the settlement amount of $5 million, plus fees and costs, was a fair and reasonable attorney fee. The court thus ordered the same and also ordered Forbes to pay prejudgment interest of 12 percent of the contingency fee amount.

¶ 12 Forbes and Schultz both appealed, and the Court of Appeals affirmed the judgment but modified the trial court's order. Forbes v. Am. Bldg. Maint. Co. W., 148 Wash.App. 273, 289-90, 198 P.3d 1042 (2009). The court modified the settlement amount to reflect the amount listed in the satisfaction of judgment, reasoning that Forbes did not provide any evidence that the settlement amount was anything other than the $5,655,176.70 listed in the satisfaction of judgment. The Court of Appeals thus awarded Schultz 40 percent of the satisfaction of judgment amount. The court also affirmed the trial court's award of prejudgment interest.

¶ 13 Forbes and Schultz both petitioned for review by this court.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Mal Icious, Llc, V Random Erik Vaughn
Court of Appeals of Washington, 2025
Windermere Real Estate/east, Inc., V. Sandra Forman
Court of Appeals of Washington, 2024
Dalton M, LLC v. North Cascade Trustee Services, Inc.
Court of Appeals of Washington, 2022
Walter Bishop v. Shirley Baubits
Court of Appeals of Washington, 2021
Steven Allen Mccracken v. John Henry Browne
Court of Appeals of Washington, 2020
Microsoft Corporation v. Motorola Mobility
795 F.3d 1024 (Ninth Circuit, 2015)
Surinderjit Brar v. Thrifty Payless Inc
461 F. App'x 536 (Ninth Circuit, 2011)
Arete Partners, LP v. Gunnerman
643 F.3d 410 (Fifth Circuit, 2011)
Lee v. ITT Corp.
275 F.R.D. 318 (W.D. Washington, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
240 P.3d 790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forbes-v-american-bldg-maintenance-west-wash-2010.