FERGUS v. SONGER

Filed 5/3/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

It all started over a quarter of a century ago with a chunk of concrete hurled at Joseph Songer (respondent) by Lawrence Bordan, owner of the Pismo Beach Hotel. As a result of this assault, Songer obtained a money judgment against Bordan. Collection was another matter. If there were a gold medal for "judgment avoidance," it would go to Bordan. He delayed collection for over 20 years. Through the extraordinary efforts of his attorney, Clark Fergus (Fergus), respondent eventually became the owner of the hotel and reaped millions of dollars of profits. However, he refused to pay Fergus and he refused to honor an agreement with Fergus's wife (wife). She had agreed to borrow money against her house to refurbish and run the hotel. Given Bordan's penchant for litigation, this was an extremely risky decision.

Now we are presented with issues relating to attorney fees and breach of a partnership agreement. Unfortunately, we infuse new life into this legal saga. We have no choice unless we are to hold that a non-attorney spouse is bound by the Business and Professions Code and the Rules of Professional Conduct for attorneys. Non-attorney wives and husbands of attorneys retain their individual rights to enter into enforceable contracts after marriage.

Fergus and his wife brought the present action against respondent. They claimed that respondent had refused to pay the amount due under a contingency fee agreement, a modification of that agreement, and a partnership agreement involving wife whereby Fergus and wife would own a 50 per cent interest in the hotel. Respondent filed a cross-complaint alleging that Fergus had committed legal malpractice. In a special verdict, the jury found that Fergus had not committed legal malpractice and that he was entitled, as damages, to a reasonable attorney's fee of $1,200,000. It also found that appellants had loaned respondent $133,494, and that he was required to repay these loans. Judgment was entered on the special verdict.

The trial court granted respondent's motion for a new trial on the issue of damages. It denied respondent's motion for a new trial on the malpractice issue.

Fergus and wife appeal from the trial court's order granting a new trial on the issue of damages. They also appeal from the original judgment on the jury verdict. Respondent has filed a cross-appeal from the judgment.

We reverse the order granting a new trial and reinstate the $1,200,000 judgment. We reject appellants' other contentions with one exception: we conclude that the trial court erroneously granted the motion in limine excluding evidence of the oral partnership agreement involving wife. This ruling was the functional equivalent of the granting of a nonsuit as to wife's causes of action based on the partnership agreement. We reverse the original judgment to the extent that it, in effect, granted a nonsuit as to these causes action. We reject respondent's claims on the cross-appeal.

Factual and Procedural Background

In July 1981 judgment was entered on a personal injury jury verdict awarding respondent damages of $308,000 against Lawrence Bordan, owner of the Pismo Beach Hotel. An abstract of judgment was recorded in San Luis Obispo County. As a result of this recording, a judgment lien attached on the hotel.

Almost immediately after the judgment was entered, Bordan filed for bankruptcy. For almost 20 years, the bankruptcy filing and other Bordan maneuvers obstructed the enforcement of the judgment. In July 1991 respondent renewed the judgment. With interest, the amount of the renewed judgment had increased to $597,959.93.

In late 1995 respondent met with Fergus to discuss the enforcement of the judgment against Bordan. Fergus specialized in commercial collections. Fergus and respondent signed a contingency fee agreement. Fergus agreed to represent respondent in a number of matters, including the enforcement of the judgment against Bordan. Respondent agreed to pay Fergus 45 per cent "of all recoveries made."

The contingency fee agreement did not comply with Business and Professions Code section 6147, subdivision (a)(4), which required the agreement to include "a statement that the fee is not set by law but is negotiable between attorney and client."^[1]

In June 2001 Fergus filed an application to renew the judgment against Bordan. With interest, the amount of the renewed judgment had increased to $1,189,558.01.

Respondent's judgment lien against the Pismo Beach Hotel was junior to a deed of trust in favor of Mary Siler. The deed of trust secured a debt of approximately $550,000. In August 2001 Fergus filed an action seeking the cancellation of the Siler deed of trust.

Respondent planned to acquire the Pismo Beach hotel at a sheriff's sale of the property. But he did not have the funds necessary to refurbish and operate the hotel. His total assets consisted of only $15,000 in the bank. Respondent estimated that the hotel would require improvements costing at least $300,000.

In September 2001 Fergus wrote a letter to respondent setting forth the terms of what he characterized as "a novation to our original [contingency fee] agreement." The contingency fee would be raised from 45 to 50 percent, and Fergus agreed to "advance for a short period of time limited but substantial funds towards getting the hotel operational if the hotel is acquired through sheriff's sale and there is a need." Fergus wrote that he and respondent would "in effect [be] 50%-50% partners."

At the end of the letter, there is a space for respondent's signature indicating his approval of the new contingency fee agreement. This space is blank. Fergus did not have a copy of the letter signed by respondent, and he could not remember whether respondent had signed the letter and returned it to him.

Appellants and respondent met in November 2001 to discuss respondent's acquisition of the Pismo Beach hotel. Wife orally agreed to provide community property funds to respondent for the purpose of refurbishing and operating the hotel until it was sold. The funds would be derived from a home equity loan. Respondent needed the funds because he "was broke." Wife understood that appellants "would be 50-50 partners [with respondent] in a venture" and "would be 50 percent owners of the hotel." Wife "felt that [she] had no alternative to advancing the money because of all the time and energy that Mr. Fergus had put into the lawsuit and the hotel had to be fixed up before it could be sold . . . ." The sale would provide the funds needed to pay Fergus for his legal services. Wife requested that respondent provide documentation of their agreement. Respondent replied, "I will sign anything you want."

On November 29, 2001, after the meeting between appellants and respondent, respondent purchased the hotel for $910,000 at a sheriff's sale. Thereafter, appellants advanced funds to respondent "to be used towards hotel costs." In a letter to respondent dated February 13, 2002, Fergus stated: "As I understand our agreement, we each own 50% of what we get from the Bordan properties. You hold title to any properties in trust one-half for yourself and one-half for me. Any monies that either of us advance towards the properties and on going businesses will be paid back first and then we split the monies thereafter."

In March 2003 judgment was entered canceling the deed of trust in favor of Mary Siler and quieting respondent's title to the Pismo Beach hotel. Respondent later sold the hotel for $4.8 million. Respondent did not share these proceeds with appellants and they filed a complaint against him. As amended, the complaint included 14 causes of action. The causes of action arose from respondent's refusal to abide by the terms of the contingency fee agreement, the modification of that agreement, and the oral partnership agreement involving wife. Appellants sought, inter alia, a 50 percent ownership interest in the hotel. In the alternative, appellants sought to recover the reasonable value of Fergus's legal services.

In December 2004 respondent filed a motion in limine to preclude appellants from introducing "any evidence or information regarding any measure or theory of damages, other than the funds loaned to [respondent] or the reasonable value of the services rendered and costs incurred by Clark Fergus . . . ." Respondent argued that the 45 percent contingency fee agreement was unenforceable because it did not state that the contingency fee was negotiable. He also argued that the September 2001 modification of that agreement, which increased the contingency fee to 50 percent and stated that Fergus and respondent would "in effect [be] 50%-50% partners," was unenforceable for an additional reason: contrary to rule 3-300 of the Rules of Professional Conduct of the State Bar of California (hereafter rule 3-300), respondent had not consented in writing to the modification.^[2]

At the conclusion of the hearing on the in limine motion, the trial court precluded appellants from introducing any evidence that the parties had agreed to a 45 percent or a 50 percent contingency fee. The trial court concluded that the contingency fee agreement and modification thereof are unenforceable because "they are contrary to the Business and Professions Code and/or the Rules of Professional Conduct . . . ." The court rejected appellants' contention that respondent had ratified the agreements. In addition, the court concluded: "To the extent that [the 50 per cent agreement has] any relevancy under any theory of partnership entered into by [wife], . . . there is no way to adequately sever and separate the extent to which [wife] entered into a partnership agreement from the underlying unenforceable fee agreement entered into by her husband." Thus, the court excluded evidence of the oral partnership agreement involving wife.

During trial, the court excluded testimony by appellants' expert that a reasonable attorney's fee "would be 45 per cent or 50 per cent of the recovery made." It ruled that, because Fergus had violated "professional ethical rules," his recovery must be limited "to quantum meruit based upon a reasonable hourly rate for hours actually worked." Any testimony "regarding contingent-fee recoveries" would be inadmissible. The court opined: "I think that this case should generally follow the parameters of the work that Mr. Fergus was expected to do and did perform, and the reasonable value of that work. That is going to include all of the work that he did for [respondent], including work to obtain, preserve and enhance the value of the hotel."

On the other hand, the trial court permitted Fergus to testify that he had a contingent fee arrangement with respondent whereby he would "get paid at the end based upon the . . . results that are obtained," not on the number of hours worked. Fergus further testified that he would get paid only if he "collected money on [respondent's] behalf . . . ." Because of the contingent fee arrangement, Fergus did not accurately keep track of all of his hours. According to Fergus, he had worked "far more" hours than the 1,826.5 hours shown on a computer printout of his time records, but he did not give an estimate of the additional hours worked. Starting in the latter part of 1993, Fergus's hourly rate was $320.

The trial court instructed the jury: "In calculating a reasonable attorney's fee, the following [nine] factors should be considered: []  (1) The amount of the fee in proportion to the value of the services performed. []  (2) The novelty and difficulty of the questions involved and the skill necessary to perform the legal services properly. []  (3) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the attorney. []  (4) The amount involved and the results obtained. []  (5) The time limitations imposed by the client or by the circumstances. []  (6) The nature and length of the professional relationship with the client. []  (7) The experience, reputation, and ability of the attorney performing the services. []  (8) The time and labor required. []  (9) The informed consent of the client to the fee." The trial court further instructed the jury as follows: "After considering the nine factors that I have given you, you shall determine the amount of a reasonable attorney's fee based upon hours you determine were worked by Plaintiff Clark Fergus and the hourly rate that you determine to be reasonable for his work."

During deliberations, the jury sent the court a note inquiring, "Can we base compensation fees to Mr. Fergus on a contingency basis?" The trial court answered, "No."

The jury returned a special verdict. It determined that Fergus was entitled to a "reasonable attorney's fee" of $1,200,000. In addition, it determined that appellants had loaned $133,494 to respondent and were entitled to have this amount repaid to them. As to respondent's cross-complaint, the jury found that Fergus had not committed any malpractice that had harmed respondent. The trial court entered judgment on the special verdict.

Respondent moved for a new trial on the following four grounds: "1. Excessive damages were awarded; []  2. The evidence is insufficient to justify the verdict; [] 3. The verdict is against law; and []  4. Inadequate damages were awarded by the jury on Cross-complainant's malpractice claim."

On April 6, 2005, the trial court denied respondent's motion for a new trial on his malpractice cross-claim. It ordered a new trial on the issue of damages awarded to appellants. A minute order to this effect, dated April 6, 2005, does not state the grounds or reasons for ordering a new trial. A copy of the minute order is attached as Appendix A.

Fifteen days later, on April 21, 2005, the trial court filed an order entitled, "Order Granting Motion for New Trial." The order, signed by the trial judge, sets forth the grounds and reasons for granting a new trial on the issue of damages. The court noted that it had instructed the jury "that no percentage fee recovery would be allowed, and that damages would be limited to an hourly rate multiplied by the number of hours expended by . . . Clark Fergus." "The only evidence submitted at trial regarding the actual number of hours expended by Clark Fergus on behalf of [respondent] . . . was (1) approximately 24 boxes of legal files and documents reviewed or generated by . . . Clark Fergus, (2) a binder of billings in the approximate amount of $500,000 to $600,000 . . . , and (3) [Fergus's] vague assertions that the billed hours did not reflect his actual time which was undoubtedly higher (in some unexplained amount) than his records reflected. No estimates or projected numbers of hours actually spent were ever produced in the evidence." "[T]he verdict," [however], "was in the amount of $1.2 million dollars, which amount is exactly 25% of the amount of recovery which [appellants] argued [respondent] received as a result of . . . Clark Fergus' effort . . . ." The trial court opined that the evidence "would suggest an award in the range of $500,000 to $600,000, rather than $1.2 million." Accordingly, the trial court concluded that, if the jury had followed the instructions, it "should have reached a different verdict as to the amount of damages representing attorney's fees . . . ." The court declared that it "therefore grants [respondent's] Motion for New Trial as to the amount of damages for attorney's fees . . . on the grounds of excessive damages [citation] and the grounds of insufficiency of the evidence to justify the verdict [citation] or that the verdict is against law [citation]."

APPELLANTS' APPEAL FROM ORDER

GRANTING NEW TRIAL AS TO DAMAGES.

Code of Civil Procedure Section 657

Pursuant to Code of Civil Procedure section 657,^[3]an order granting a new trial " 'must state the ground or grounds relied upon by the court' and 'may contain the specification of reasons.' If the initial order does not contain the specification of reasons, then the court must prepare, sign and file such specification within 10 days." (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 902.) Our Supreme Court has held " 'that the prescribed 10-day period is a statute of limitations on the authority of the court to act, and that after the expiration of the period the court has no power to add a specification of reasons by a nunc pro tunc order or otherwise.' [Citations.]" (La Manna v. Stewart (1975) 13 Cal.3d 413, 418.) Thus, a specification of reasons filed 57 days after the initial order granting a new trial "was an act in excess of the [the trial court's] jurisdiction and is therefore a nullity." (Ibid.) "The 10-day limitation is a statute of limitations, and is mandatory and jurisdictional. [Citation.] A specification of reasons filed after the 10-day limit is in excess of jurisdiction and therefore void. [Citation.]" (Hand Electronics, Inc. v. Snowline Joint Unified School District (1994) 21 Cal.App.4th 862, 867-868.)

"[S]ection 657 requires an appellate court to affirm a new trial order if it should have been granted on any ground stated in the motion. However, an appellate court cannot affirm on grounds of insufficiency of the evidence or inadequate or excessive damages unless such ground is stated in the new trial order." (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at p. 905.) Nor can an appellate court affirm on these grounds if the trial court has failed to file its specification of reasons within 10 days after the entry of the new trial order in the permanent minutes. (La Manna v. Stewart, supra, 13 Cal.3d at pp. 418, 425.)

Here the trial court's specification of grounds and reasons for ordering a new trial was filed 15 days after the initial minute order of April 6, 2005, granting respondent's motion for a new trial. After briefing was complete, we requested that counsel file letter briefs on the various following issues which we now resolve.^[4]

Is the Minute Order Defective and the Specification of Reasons a Nullity?

Respondent contends that we need not even consider this issue because appellants have waived their right to appeal from the order granting a new trial. We disagree. The notice of appeal expressly states that appellants are appealing from the "Order granting Defendant and Respondent's motion for a new trial . . . ." In their letter brief, appellants urge us to reverse the order granting a new trial "and reinstate the verdict and judgment."

Respondent next contends that the minute order of April 6, 2005, (see Appendix A) does not constitute a determination of the motion for a new trial within the meaning of section 660. This section provides in relevant part: "A motion for a new trial is not determined within the meaning of this section until an order ruling on the motion (1) is entered in the permanent minutes of the court or (2) is signed by the judge and filed with the clerk." The entry of a new trial order in the permanent minutes of the court ". . . shall constitute a determination of the motion" where, as here, such minute order as entered expressly directs that a written order be prepared, signed and filed." The minute order here expressly directs respondent to "prepare the order and submit [it] to the Court with approval as to form."

Respondent also argues that the minute order is not "an order ruling on the motion." This argument is also without merit. The minute order states: "The motion for new trial is granted as to the issue of the amount of [appellants'] damages only. The motion for new trial is denied as to the issue of malpractice."

Respondent also argues that "there is no evidence that the Clerk's April 6th minutes of the proceedings were ever 'entered in the permanent minutes of the court'." Our Supreme Court has observed that that "there [are] three elements essential to the entry of an order in the permanent minutes -- to wit, preparation of a written order, recordation of its date and substance in a permanent record, and delivery to the custodian of records." (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 671.) These three elements have been satisfied. The minute order is in writing, and it permanently records the date and substance of the trial court's order. Furthermore, since the minute order indicates that it was prepared and filed by a deputy clerk of the superior court, it was permanently delivered to the custodian of records. Pursuant to Government Code section 69844, the custodian of records is the superior court clerk: "The clerk of the superior court shall keep the minutes and other records of the court, entering at length within the time specified by law, or forthwith if no time is specified, any order, judgment, and decree of the court which is required to be entered and showing the date when each entry is made." (Ibid.)  We presume that the deputy clerk, acting as the superior court clerk's agent, fulfilled his or her duty of entering the trial court's order "forthwith." "Evidence Code section 664 provides a presumption that 'official duty has been regularly performed.' This presumption applies to the duties of clerks of court. [Citations.]" (Estate of Crabtree (1992) 4 Cal.App.4th 1119, 1125.) The presumption is supported by the fact that the minute order is dated April 6, 2005.

Respondent argues that the trial court's specification of grounds and reasons for its order, filed on April 21, 2005, should be deemed to have complied with the requirements of section 657 because it was filed within the 60-day jurisdictional period of section 660. "After the court is presented with a motion for a new trial, its power to rule on the motion expires at the end of the 60-day period provided by section 660. The period runs from the mailing of notice of entry of judgment by the clerk or the service of notice of entry of judgment, whichever is earlier, or if no such notice is given, from initial notice of intent to move for new trial. ( 660.)" (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at p. 899.) A similar argument was rejected by the appellate court in Fry v. Young (1968) 267 Cal.App.2d 340. The court expressed concern that, if it permitted the nunc pro tunc addition of reasons and grounds, it would frustrate the legislative intent "to require that full judicial deliberation on motions for new trial be practically concurrent with judicial disposition of such motions. [Citation.] . . . And it would further confuse the proceedings by converting the 10-day limitation on the specification of reasons [citations] into one which was subject to repeated renewal during the 60-day period - if not beyond it - every time the trial court chose to make yet another Nunc pro tunc correction of Grounds." (Fry v. Young, supra, 267 Cal.App.2d at pp. 346-347.)

Sanchez-Corea v. Bank of America, supra, 38 Cal.3d 892, does not assist respondent. In Sanchez-Corea the trial court granted the defendant's motion for new trial on the last day of the 60-day jurisdictional period. ( 660.) No grounds or reasons for granting a new trial were specified in the minute order. Seven days later, the trial court "filed an 'Order Granting New Trial' . . . . This second order explained that the sole ground for granting the motion was insufficiency of the evidence." (Id., at p. 898.) The second order also set forth reasons for granting the motion. The defendant contended that the initial order's failure to state the grounds for the new trial was cured by the second order stating both grounds and reasons because it was filed within the 10-day period allowed by section 657.

Our Supreme Court concluded that the 10-day period of section 657 applies only to the specification of reasons. The statute does not permit the trial court to state grounds within 10 days after the initial order granting a new trial. The court, therefore, held: "To the extent the second order, entitled by the trial court 'Order Granting New Trial,' purports to rule on the motion and state insufficient evidence as the ground therefor, it is defective as in excess of the 60-day jurisdictional period [of section 660]. [Citation.]" (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at p. 903.) The court did not consider whether, as in the instant case, an initial order entered in the permanent minutes that states neither grounds nor reasons for granting a motion for a new trial can be cured by a second order filed more than 10 days later but within the 60-day statutory period of section 660.

Respondent contends "that the 10-day limitation for filing a specification of reasons applies solely to an order granting a motion for a new trial signed by the judge and filed with the clerk. The 10-day limitation set forth by section 657 has no application to minutes." A similar contention was rejected by the appellate court in Swanson v. Western Greyhound Lines, Inc. (1969) 268 Cal.App.2d 758. The Swanson court concluded: "The adoption of this argument 'would frustrate the . . . Legislature's intent to require that full judicial deliberation on motions for new trial be practically concurrent with judicial disposition of such motions.' [Citation.]" (Id., at p. 760.) Accordingly, the appellate court held "that the [trial] court's jurisdiction to specify its reasons expired 10 days after the minute entry was made; the specification filed on July 21 was ineffective." (Ibid; see also Kolar v. County of Los Angeles (1976) 54 Cal.App.3d 873, 876-877 [minute order determining motion for a new trial need not be signed by the judge].) 

Thus, the minute order of April 6, 2005, granting respondent's motion for a new trial, constituted a determination of the motion within the meaning of section 660. The order was defective because it did not state the grounds for granting the motion. Moreover, the specification of reasons for granting the motion, filed on April 21, 2005, was a nullity because it was filed more than 10 days after entry of the order granting a new trial in the permanent minutes.

Verdict Against The Law

"If an order granting a new trial does not effectively state the ground or the reasons, the order has been reversed on appeal where there are no grounds stated in the motion other than insufficient evidence or excessive or inadequate damages. [Citations.] If, however, the motion states any other ground for a new trial, an order granting the motion will be affirmed if any such other ground legally requires a new trial. [Citations.]" (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at p. 905.)

The only other ground stated in the motion for a new trial was that "[t]he verdict is against law." "In contrast to the grounds of insufficient evidence and excessive or inadequate damages, 'the phrase "against law" does not import a situation in which the court weighs the evidence and finds a balance against the verdict, as it does in considering the ground of insufficiency of the evidence.' [Citation.] Because the 'against law' ground is distinct from the ground of insufficiency of the evidence, a new trial order must be affirmed as against law even though that ground is not stated in the order or supported by a specification of reasons. [Citations.]" (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at p. 906.)

"The jury's verdict was 'against law' only if it was 'unsupported by any substantial evidence, i.e., [if] the entire evidence [was] such as would justify a directed verdict against the part[ies] in whose favor the verdict [was] returned.' [Citations.] '[T]he function of the trial court on a motion for a directed verdict is analogous to and practically the same as that of a reviewing court in determining, on appeal, whether there is evidence in the record of sufficient substance to support a verdict.' [Citations.] Accordingly, we examine the record to determine whether the verdict for [appellants] was, as a matter of law, unsupported by substantial evidence. In our examination we apply the well established rule of appellate review by considering the evidence in the light most favorable to the prevailing party, here the [appellants], and indulging in all legitimate and reasonable inferences indulged in to uphold the jury verdict if possible. [Citations.]" (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at pp. 906-907.)

Story Continue as part II ..

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^[1] Because of this omission, the agreement was voidable pursuant to section 6147, subdivision (b): "Failure to comply with any provision of this section renders the agreement voidable at the option of the plaintiff, and the attorney shall thereupon be entitled to collect a reasonable fee." (See also Alderman v. Hamilton (1988) 205 Cal.App.3d 1033, 1038 ["The [contingency fee] agreement . . . did not state that the fee was negotiable. Thus, the [clients] had an absolute right to void the contract before or after services were performed."].)

^[2]Rule 3-300 provides: "A member shall not enter into a business transaction with a client; or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, unless each of the following requirements ha been satisfied: [] (A) The transaction or acquisition and its terms are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which should reasonably have been understood by the client; and [] (B) The client is advised in writing that the client may seek the advice of an independent lawyer of the client's choice and is given a reasonable opportunity to seek that advice; and [] (C) The client thereafter consents in writing to the terms of the transaction or the terms of the acquisition."

^[3]Except as otherwise stated, all statutory references are to the Code of Civil Procedure.

^[4] We framed the issues as follows: (1) "Is the minute order [of April 6, 2005] defective because it did not state any grounds for the new trial order? [Citation]. Is the specification of reasons a nullity because it was not filed within the 10-day period required by . . . section 657 . . .? [Citations.]" (2) "Assuming that the trial court's new trial order is defective for not stating grounds and/or that the specification of reasons is a nullity, are we precluded from affirming the order granting a new trial on the grounds of excessive damages or insufficiency of the evidence? [Citations.]" (3) "Is the verdict against law, i.e., 'considering the evidence in the light most favorable to [appellants], and indulging in all legitimate and reasonable inferences indulged in to uphold the jury verdict if possible,' is there no substantial evidence in the record supporting the jury's determination that Fergus was entitled to a reasonable attorney's fee of $1,200,000? [Citation.]"