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Part I, Chapter 2: The Windermere Lawsuit
Case No. 62912-3-I
The Court of Appeals -- Chapter Outline
Addendum to September 19, 2007 Retainer Agreement
1961: Legislature Passes Consumer Protection Act (CPA)
Plaintiffs to Be Awarded “Costs of Suit, Including ... Attorney Fees.”
1983. Fees and Costs Award of CPA Confirmed
1987: Lane Powell -- and Nordstrom, Inc. v. Tampourlos
Supreme Court Faults Nordstrom’s [Lane Powell’s] Greed
CPA May Not Be Used as a Cash Cow
1992: Fee Award Aimed at Helping Victims
November 8, 2010: Unpublished Opinion
Legislative Proposal
First Adverse Ruling: REPSA Foundation Disallowed
Second Adverse Ruling: Segregation of Appeals Court Fees
Third Adverse Ruling: CPA Costs Disallowed Under Nordstrom
Six Failures
“Never Has”? A Denial of 26 Years of History
What “Many Claims”?
Part I, Chapter 2: The Windermere Lawsuit
Court of Appeals, Division 1
Case No. 62912-3-I
Note: Some Exhibits have been redacted in accordance with a settlement agreement
with 
the contractor who ruined our house.
Lane Powell Violates December 30, 2008 Agreement
And Fails to Defend Our Awards
Addendum to September 19, 2007 Retainer Agreement. On December 30, 2008, Lane Powell made an
agreement with us to:
[A]ssist you in your motion for attorneys’ fees and costs of the suit ... Lane Powell PC will also
assist you regarding possible appeals with regard to the same as necessary to prevail in or retain the awards
discussed. (Exhibit December 30, 2008, pg. 1.)
In this Chapter, we will show how Lane Powell repudiated that agreement. On September 22, 2011,
Attorney Paul Fogarty put it this way:
By refusing to appeal the CoA [Court of Appeals] decision to protect the awards, LP breached that [December 30, 2008]
agreement. LP cannot both breach that Agreement, and demand the DeCourseys be bound by it, especially in matters
of interest, attorney fee rate, or, arguably, being paid any further moneys at all. -- Paul Fogarty, Esq.
(Exhibit September 22, 2011, Page 4, Para. 3)
To gain perspective on Lane Powell’s conduct in the Court of Appeals and its repudiation of
the December 30, 2008 Agreement, it is useful to review the history of the attorney fees and costs award of the
Consumer Protection Act.
Legislative Intent:
“Costs of the Suit, Including Reasonable Attorney Fees”
1961: Legislature Passes Consumer Protection Act (CPA). The legislative intent was clearly
stated:
The legislature hereby declares that the purpose of this act is to complement the body of federal law
governing restraints of trade, unfair competition and unfair, deceptive, and fraudulent acts or practices in order to
protect the public and foster fair and honest competition ... To this end this act shall be liberally construed that
its beneficial purposes may be served.(Exhibit
RCW 19.86.920.)
Plaintiffs to Be Awarded “Costs of Suit, Including ... Attorney Fees.” The CPA
provided that the CPA plaintiff
... may bring a civil action in the district court to recover his or her actual damages ... and the costs of
the suit, including reasonable attorneys
fees. (Exhibit RCW
19.86.090.)
Note well: The Legislature regarded attorney fees as part of the costs of the
suit, did not exclude any costs, and did not segregate for causes of action.
1983: Fees and Costs Award of CPA Confirmed. In 1983, the Supreme Court considered four
issues on appeal in Bowers v. Transamerica Title Ins. (675 P. 2d 193 - Wash: Supreme Court.) When the Supreme
Court awarded fees, the Court did not segregate fees between the CPA and other elements of the suit -- it awarded fees
for the whole suit. That is, in 1983, the Supreme Court interpreted the CPA fee provision as the Legislature wrote it
-- the plaintiff was awarded “the costs of the suit.”
Hangman Ridge: Private Plaintiff Must Prove
Five CPA Elements
In the 1986 Washington case,
Hangman Ridge Training Stables v. Safeco Title Insurance Company (105 Wn.2d 778, 719 P.2d 531(1986)), the
Supreme Court laid down the five elements a private plaintiff must prove under Washington's Consumer Protection Act:
(1) unfair or deceptive act or practice; (2) occurring in trade or commerce; (3) public interest impact; (4) injury to
plaintiff in his or her business or property; (5) causation.
Courts Protect Consumerist Intent of CPA from
Corporate and Law Firm Greed
1987: Lane Powell -- and Nordstrom, Inc. v. Tampourlos. In 1987, Lane Powell
(then, Lane, Powell, Moss & Miller) represented Nordstrom in a CPA law suit against G. James Tampourlos, a
beautician who had operated a beauty salon inside the Nordstrom store. Tampourlos moved his beauty salon to
another location, but continued to use the name “Nordstrom” for that business. Nordstrom sued
Tampourlos and others under the CPA.
During the lawsuit, both sides addressed issues such as breach of lease and damage to equipment and
property. Lane Powell won the lawsuit for Nordstrom and sought attorney fees and costs under the CPA. The
case made its way to the Supreme Court (Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, 733 P.2d 208).
(Exhibit February 26, 1987.)
Supreme Court Faults Nordstrom’s [Lane Powell’s] Greed. The Supreme Court
considered Nordstrom’s [Lane Powell’s] claim for fees and costs. The Court wrote:
The relevant part of RCW 19.86.090
states that a successful plaintiff in a Consumer Protection Act case can "recover the actual damages sustained by him
... together with the costs of the suit, including a reasonable attorney's fee ..." Nordstrom [i.e., Lane Powell] has
submitted an affidavit claiming that this fee exceeds $40,000. We believe this is a grossly exaggerated amount
...
[6] Nordstrom [i.e., Lane Powell] has attempted to collect a substantial amount for costs, including
photocopying and telephone expenses. We believe this is not recoverable as “costs” and can only be
recovered to the extent it would be included in ... RCW
4.84.010 ...
... a determination of what constitutes reasonable attorney fees should not be accomplished solely
by reference to the number of hours which the law firm representing the successful plaintiff can bill. In a case such
as this one ... there is a great hazard that the lawyers involved will spend undue amounts of time and unnecessary
effort to present the case....
Nordstrom is entitled to statutorily defined costs and reasonable attorney fees. These fees should
only represent the reasonable amount of time and effort expended which should have been expended for the actions of
Tampourlos which constituted a Consumer Protection Act violation.
(Exhibit February 26, 1987.)
The court severely pruned Nordstrom’s [Lane Powell’s] claims for fees and costs, ruling
that 1) only the fees expended for the CPA violations were recoverable; fees incurred dealing with non-CPA issues such
as breach of lease and damage to equipment and property were not recoverable; and 2) The costs were limited to those
enumerated in RCW 4.84.010.
CPA May Not Be Used As a Cash Cow. The intent of the Supreme Court’s
1987 Nordstrom ruling is clear: The CPA attorney fee and costs awards are not to be used as a cash cow by
corporate law firms such as Lane, Powell, Moss & Miller. The CPA was a consumer protection act, not a law
firm/attorney fee bonanza act.
Certainly, the 1987 Supreme Court ruling “changed the law.” The legislators who framed
the 1961 Act regarded attorney fees as part of the costs of the suit and did not exclude any costs from CPA
coverage. But in Nordstrom (1987), the Supreme Court held those facets up for review -- to the effect of protecting the
consumerist quality of the CPA against exploitation by greedy lawyers.
1992: Fee Award Aimed at Helping Victims. In Sign-O-Lite Signs, Inc. v. DeLaurenti
Florists, Inc, 64 Wn. App. 553, 825, P.2d 714 (Exhibit January 21,
1992, “Attorney Fees on Appeal,” Pg. 7), the Court of Appeals affirmed that the purpose behind the
award of fees in CPA suits is “helping the victim file the suit and [it] ultimately serves to protect the public
from further violations.” Again, and clearly so, the CPA fees and costs award was not designed to be a cash cow
for law firms.
Devising Ways to Defeat Consumer Protection Act
Corporations and their law firms have a vested interest in subverting the Consumer Protection
Act.
In Chapter 1, we described the refusal of the state regulatory agencies (Department of Licensing and
Attorney General’s Office) to enforce real estate and consumer protection laws on Windermere Real Estate.
We also described how Windermere refused to settle with us peacefully, insisted on a lawsuit, and
then sought to drive us out of the courts by sending our legal bills into the stratosphere. Windermere did this by
filing specious motions and engaging in other puerile, wasteful actions in violation of Civil Rule 11. When we
requested Lane Powell move for CR 11 sanctions against Windermere to protect us from this strategy, Lane Powell
refused. Understandably, the more Windermere engaged in wasteful actions, the more fees Lane Powell racked up for
answering them.
Following its litigation strategy in the trial court, Windermere’s Petition to the Court of
Appeals contained a plethora of bizarre arguments. The brief was 71 pages long, and included 14 (fourteen) assignments
of error, eight (8) issues on appeal, and six (6) sub issues.
Denied Information, Court of Appeals Makes Three Adverse Rulings
November 8, 2010: Unpublished Opinion. In our case in 2010, the Court of
Appeals did not have the information about Windermere’s litigation attrition warfare strategy, nor did the Court
of Appeals know that Lane Powell refused to ask for CR 11 sanctions that would have staunched Windermere’s
attack. Thus the Court of Appeals was denied the information it needed to understand that the consumerist intent
of the CPA was being undermined by abuse of legal process, information we had so carefully documented in our
websites, http://RenovationTrap.com
and http://Windermere-Victims.com.
The Court of Appeals spent 40 pages and 24 detailed footnotes ruling on Windermere’s appeal,
dismissing most of Windermere’s arguments as inappropriate, inapplicable or unconvincing.
Recall that fees and costs had been awarded to us by the trial court on the two bases (a) the Real
Estate Purchase and Sale Agreement (REPSA), and (b) Windermere’s Consumer Protection Act violations.
Legislative Proposal. Litigants should be able to rely upon Appeal Court decisions as
reflective of the court’s reasoned interpretation of the law. Every decisions should be open to citation
as a precedent for future cases, and have the “published” status. When past decisions cannot be
relied upon as statements of case law, wasteful litigation is encouraged.
First Adverse Ruling: REPSA Foundation Disallowed. It is established law in Washington
that, in an action in tort based on contract containing an attorney fee provision, the prevailing party is entitled to
attorney fees. This principle is reiterated in a number of reported opinions, including:
- Edmonds v. John L. Scott Real Estate, Inc., 87 Wash.App. 834, 855, 942 P.2d 1072 (1997)
- Brown v. Johnson, 34 P.3d 1233 (2001), 109 Wash.App. 56
- Stieneke v. Russi, 190 P.3d 60 (Wash. Ct. App. 2008).
The first foundation for the trial court’s awards was the Real Estate Purchase and Sales
Agreement (REPSA). Because Windermere argued that it was a third party beneficiary of the REPSA, the trial court
ruled that a) the REPSA clause awarding the “expenses” of the suit was applicable, and that b)
under Bloor v. Fritz, the term “expenses” was much broader than the “costs” allowed
by RCW 4.48.010.
Windermere did not challenge the REPSA foundation of the fees and costs award on appeal. Even
so, the Court of Appeals, apparently not understanding that the trial court had made the ruling and why, called the
REPSA-based award as “DeCourseys’ argument,” rather than the trial court’s ruling.
(Exhibit November 8, 2010, Unpublished Opinion, Pg. 39, Ftn. 24.)
The Court of Appeals (mistakenly) wrote:
The DeCourseys request an award of attorney fees on appeal pursuant to RAP 18.1 ... The CPA
provides adequate grounds for such an award in the present case. However, the attorney fees awarded to the
DeCourseys must be limited to those portions of the appeal related to the CPA claim. There is no separate
contractual basis to award attorney fees ... The DeCourseys contend that, pursuant to the REPSA, they were entitled to
expenses beyond those authorized in RCW
4.84.010. The REPSA states, “If Buyer or Seller institutes suit against the other concerning this
Agreement, the prevailing party is entitled to reasonable attorneys’ fees and expenses.” CP at
1438. The plain terms of this provision authorize an award of attorney fees and expenses only when the buyer
and seller are engaged in litigation with one another concerning the sale of the house. The DeCourseys have
not sued the seller of the house and, contrary to the DeCourseys’ contention, this provision does not
authorize an award of expenses against Stickney beyond those authorized
in RCW 4.84.010.
(Exhibit November 8, 2010, Unpublished Opinion Pg. 39.
Emphasis added.)
With those words, the Court of Appeals denied the REPSA foundation of our awards. The denial of the
REPSA foundation should have triggered Lane Powell to file a motion to modify. But Lane Powell stayed silent.
Second Adverse Ruling: Segregation of Appeals Court Fees. While the fees and costs
awards rested upon the REPSA, the limitations of Nordstrom were not an issue. Without the REPSA
foundation, Nordstrom’s limitations were an issue.
A mention of history is in order: In his January 9, 2009 Motion in Support of an Award of Attorney
Fees and Costs, Mr. Good argued that, in proving the five (5) elements of our CPA claim as required by Hangman Ridge,
it was not possible to segregate the costs of the suit.
In order to prove that Stickney [Windermere agent] committed an unfair and deceptive act, DeCourseys
were required to prove that Stickney had an undisclosed conflict of interest. The claims were intertwined such
that segregation of fees for one as against another cannot be reasonably made and are impracticable.
(Exhibit January 9, 2009, Pg. 12 at 20-26.)
But as cited above, the Nordstrom ruling held that:
Nordstrom is entitled to statutorily defined costs and reasonable attorney fees. These fees should
only represent the reasonable amount of time and effort expended which should have been expended for the actions of
Tampourlos which constituted a Consumer Protection Act violation.
(Exhibit February 26, 1987, Conclusion. Emphasis
added.)
But in our case the Court of Appeals reinterpreted and then further constrained the fee and costs
award. The error of the Court of Appeals is clearly seen in the issue of proximate cause. Fees expended arguing
proximate cause were certainly integral to “the actions of [defendant] which constituted a Consumer Protection
Act violation” and one of the tests required by Hangman Ridge. But in the November 8, 2010 Unpublished Opinion,
proximate cause was a discrete subject not covered by the CPA attorney fee award.
McBride implemented the Court of Appeals order by counting the pages of his brief according the
November 9, 2010 ruling. The result was that we lost $45,442 in costs and about $52,000 in attorney fees.
We believe that had McBride and Degginger included the vital information concerning
Windermere’s abuse of process and the resultant crippling of the Consumer Protection Act the Court of Appeals may
not have fallen into this error.
Third Adverse Ruling: CPA Costs Disallowed Under Nordstrom. Having ignored the
REPSA foundation of the fee and costs award and the Bloor v. Fritz ruling, the Court of Appeals called the trial
court’s cost award an “error” because the award was not consistent with the Nordstrom CPA
decision (fees and costs were limited to those listed
in RCW 4.48.010.)
The Court of Appeals remanded the $45,442 costs award for recalculation, strongly suggesting that
very little of it was valid. (Exhibit November 8, 2010,
Unpublished Opinion Pg. 39.)
McBride & Degginger Were Obligated to Appeal Adverse Rulings
According to our the December 30, 2008 amendment to the agreement between us and Lane Powell, Lane
Powell promised to:
... assist you regarding possible appeals ... as necessary to prevail or retain awards discussed.
(Exhibit December 30, 2008, Letter of Agreement.)
Six Failures. In violation of explicit contract terms and their fiduciary duties,
McBride/Degginger permitted our awards to slide off the table at a number of points in this process:
- McBride failed to inform Court of Appeals that Windermere refused to negotiate with us peacefully, insisted on a
lawsuit, and then sought to drive us out of the courts by sending our legal bills into the stratosphere, and Lane
Powell’s refusal to seek CR 11 sanctions. That is, Windermere was attempting to undermine the effectiveness
of the CPA by abuses of process.
- In the Brief of the Respondents, McBride requested fees and costs for answering the appeal in accordance with the
award at the trial level, but failed to state the bases for that award. Only in retrospect can this be seen as
the root of the problem.
- When the Unpublished Opinion was filed, McBride should have noticed that the REPSA foundation for fees and
costs had been misunderstood by the Court. The Court of Appeals failed to notice the REPSA foundation was a
ruling by the trial court, and failed to notice that the ruling had not been challenged by Windermere. In the
time allowed, McBride should have asked for a Modification to correct the Court, and saved our $45,442 in costs awarded
at the trial level and disallowed on appeal.
- When the Unpublished Opinion was filed, McBride should have noticed that the standard for award of fees
and costs was not the same as Nordstrom. Nordstrom segregated the fees for the suit on the actions
of the defendant that violated the CPA. Since the appeal did not concern any actions of the defendant outside
the CPA verdict, the fees for the entire appeal should have been shifted to the defendant. In the time allowed,
McBride should have asked for a Modification to correct the Court, shifted the other $53,000 in fees incurred at the
appeal level.
- ALL of the arguments of the appeal could be directly related to one or more of the five points of Hangman Ridge
and/or the provisions of the statute. In the time allowed, McBride should have asked for a modification to
correct the Court, and shifted the other $53,000 in fees incurred at the appeal level.
- McBride and Degginger should have filed a cross-appeal to the Supreme Court to correct the misunderstandings of the
Court of Appeals.
Even after our loss from the misinterpretation of Nordstrom, neither McBride nor Degginger disclosed
Lane Powell’s role in the Nordstrom decision. This was remarkable given that the recoverability of fees and
costs ran throughout our conversations. In May 17, 2011, McBride wrote:
Insofar as the CPA's "costs of the suit," you are reading it too broadly; it does not, and never
has, entitled the prevailing party to swoop up all attorneys fees simply because one of many claims involved was a CPA
claim. (Exhibit LP
Email May 17, 2011 8:13 AM; emphasis added.)
“Never Has”? A Denial of 26 Years of History. The CPA was passed in
1961. In 1983 the Bowers case exemplified the application of the CPA’s costs of suit provision, as intended
by the Legislature. The Nordstrom opinion was written in 1987. Twenty-six years -- from 1961 to 1987
-- passed between the ratification of the Consumer Protection Act and the Nordstrom decision.
We believe that Ryan McBride and Grant Degginger, our legal advisors, were deliberately keeping us
in the dark concerning their institutional loyalties, deceiving us, and betraying their fiduciary duties.
What “Many Claims”? Note that in the May 17, 2011 email (cited above), McBride
makes reference to our (alleged) “many claims.” But these so-called “many claims” consisted of
defending the jury’s verdict on two causes of action, one of which was the foundation for the other and founded
on the same set of facts:
In order to prove that Stickney [Windermere agent] committed an unfair and deceptive act, DeCourseys were
required to prove that Stickney had an undisclosed conflict of interest. The claims were intertwined such that
segregation of fees for one as against another cannot be reasonably made and are impracticable. (Exhibit
January 9, 2009, Pg. 12 at 20-26.)
The jury instructions specified that the damages for the various claims must not overlap, but the
Windermere actions that breached fiduciary duty were the same actions that violated the Consumer Protection
Action. Without the finding of a breach of fiduciary duty and the damages that flowed therefrom, there would not
have been a CPA verdict. Why would McBride characterize our two claims as "many claims," as he did in his May 17
email, cited above?
One might conclude that McBride and Degginger were working for our opponents to increase the
attorney fees and costs that would be ruled non-recoverable for us -- that they were cooperating with, and playing
right into, Windermere’s strategy.
The Nordstrom decision and Lane Powell’s role in it should have been disclosed to us. The
Supreme Court stopped just short of calling Lane Powell’s charges for its work in Nordstrom “billing
fraud” but denounced overcharges anyway. As Lane Powell did in the Nordstrom case, Degginger used our
case as a cash cow.
How Degginger et al. Failed to Serve Our Best Interests
McBride and Degginger did not move for modification of the November 8, 2010 Unpublished
Opinion, and later refused to petition for review by the Supreme Court. They were apparently quite willing to see
our awards get consumed by attorney fees that would not be reimbursed to us, and uttered not a syllable of protest. As
a result, though Lane Powell invoiced us for almost $100,000 for the appeal, we recovered only $47,000 from defendant
Windermere.
Amount at Issue: Approximately $53,000
More Claims Abandoned
As Paul Fogarty, Esq. pointed out in his September 22, 2011 letter to Lane Powell:
Collection costs: In February and March 2009, prior to Windermere filing a supercedeas bond, LP
expended $7,138 in February and $4,046 in March, totaling $11,184 in collection efforts against Stickney and
Windermere. This cost should have been recoverable from Windermere by request to the Court of Appeals, but LP did
not request it, neither in the responding brief dated October 9, 2009 nor in the Respondents’
Application/Affidavit. (Exhibit September 22, 2011,
Pg. 113)
In the November 17, 2010 application for attorneys fees submitted to the Court of Appeals, McBride
told the court:
Finally, the DeCourseys have incurred at least another 9 hours of my time (at my current rate of $400 per
hour) or approximately $3,600.00 in connection with my review of the Court’s decision and my preparation of this
application and affidavit, including review and redaction of the various billing statements attached hereto. This
amount is too recent to be included in any of those billing statements. The DeCourseys reserve the right to add
to this figure if they file a reply brief in support of this fee application.
(Exhibit November 17, 2010, Pg. 12.)
But when McBride submitted his reply, he did not include those figures.
Degginger and McBride were the licensed attorneys -- our attorneys bound to represent our interests
before the law on the basis of our agreement with them and their fiduciary duty to us. They failed, and refused,
to do so.
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