FERGUS v. SONGER Part I
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 Court are presented with issues relating to attorney fees and breach of a partnership agreement. Unfortunately, we infuse new life into this legal saga. Court have no choice unless Court 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.
Court reverse the order granting a new trial and reinstate the $1,200,000 judgment. Court 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. Court reverse the original judgment to the extent that it, in effect, granted a nonsuit as to these causes action. Court reject respondent's claims on the cross-appeal.
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