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Barrett v. Freise11/24/2003
signed a pretrial order in limine that prohibited the parties from providing additional evidence and argument on issues that had been decided previously on summary judgment. The Barretts assign error to the trial court's order, contending that because the court's previous summary judgment rulings had decided that the fee contract was a valid contingent fee agreement, and had decided that Freise had fully performed under the contract with regard to the UIM settlement and that he had substantially performed under the contract with regard to the American States commitment to settle for policy limits, and because the trial court had dismissed all of the petitioners' damages claims, the order in limine essentially made the subsequent trial on the fee reasonableness petition pointless.
We see no abuse of discretion by the trial court here. As the trial court correctly noted, if the petitioners disagreed with the court's summary judgment decisions they should have filed a motion asking the court to revisit its rulings, or argued that there was newly discovered evidence that could not reasonably have been obtained at the time of summary judgment. See CR 59(a)(4) (reconsideration is warranted if there is new and material evidence that could not have been discovered and produced at trial through reasonable diligence). Not having done so, the petitioners were not entitled to relitigate the facts and issues decided on summary judgment, and the trial court properly ruled as such in its in limine order.
Moreover, the trial was not 'pointless.' The court's task at the trial was to determine the reasonableness of the one-third contingency fee with respect to the American States policy proceeds, in light of the factors contained in RCW 4.24.005. After hearing 5 days of testimony, including the testimony of expert witnesses for each side, the trial court applied the statutory factors, and determined that in all the circumstances, a one-third contingency fee was reasonable with respect to the American States proceeds. Certainly one of the circumstances that the trial court considered was that, as previously concluded at the time of summary judgment, Freise had substantially performed his obligations under the contract with regard to those fees. But the court also considered the time and labor required, the novelty and difficulty of the questions involved, the skill requisite to perform the services properly, the fee customarily charged for such services, Mr. Freise's experience, reputation and ability, and the fact that the fee contract was in writing. The court assessed the benefits that Freise was able to obtain for Jeffrey Barrett, including talking his health insurance carrier into both waiving its subrogation lien against any and all of Jeffrey's monetary recoveries and paying for his treatment at Mediplex for a substantial period of time. Although he charged no additional fee for these particular services, they substantially increased the value of Jeffrey's total recovery.
The court also considered the fact that, although Freise would recover no contingency fee against any potential recovery against the tavern i.e., assuming a reversal by the Supreme Court of this court's affirmance of the judgment in favor of the defendant in that case, and also assuming a new trial and eventual plaintiffs' verdict or a favorable settlement he had largely completed the discovery necessary to either settle or litigate that claim before he was discharged. The court expressly took this into account in determining the reasonableness of the contingency fee with respect to the American States recovery.
The court also found that Freise had the experience and skill necessary to the representation, and that
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