>Augusta> v. Keehn
& Assocs.

 

 

 

 

 

 

 

 

 

 

 

Filed 8/13/13  Augusta v. Keehn & Assocs. CA4/1

> 

> 

> 

> 

> 

> 

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

> 

 

California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b).  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

 

 

COURT
OF APPEAL, FOURTH APPELLATE DISTRICT

 

DIVISION
ONE

 

STATE
OF CALIFORNIA

 
>

MARK AUGUSTA,               Plaintiff and Appellant,               v.   KEEHN & ASSOCIATES et al.,               Defendants and Respondents.

D062002         (Super. Ct. No. 37-2008-00098339-   CU-PN-CTL)

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Diego
County, Randa Trapp, Judge. 
Reversed and remanded with directions.

 

            Martin N.
Buchanan for Plaintiff and Appellant.

            Pettit Kohn
Ingrassia & Lutz, Douglas A. Pettit, Christina G. Bernstein for Defendants
and Respondents.

Plaintiff and appellant Mark
Augusta appeals from a summary judgment in favor of his former bankruptcy
attorneys, defendants and respondents L. Scott Keehn and Keehn & Associates
on Augusta's first amended
complaint for professional negligence,
breach of fiduciary duty and fraud. 
In that pleading, Augusta
alleged defendants' negligence caused him to lose valuable claims against other
attorneys who had represented him in securities arbitrations, leading to a
settlement that was $3 million less than if those claims had been included in
the settlement.  The trial court granted
summary judgment on grounds Augusta lacked evidence of causation and damages,
and his professional negligence claim
against Keehn and his law firm was time barred by the one-year statute of
limitations of Code of Civil Procedurehref="#_ftn1" name="_ftnref1" title="">[1]
section 340.6.  On appeal, Augusta
contends (1) defendants did not make a prima facie showing of entitlement to
summary judgment on causation; (2) there are triable issues of material fact as
to causation; and (3) there are triable issues of fact as to whether the
one-year statute of limitations was tolled by defendants' continuous
representation.

            We agree
defendants' evidence, including Augusta's response to a special interrogatory
asking him to state all facts concerning his claim that the settlement in the
underlying legal malpractice case was greatly reduced, did not meet its
threshold summary judgment burden to demonstrate Augusta does not possess, and
cannot reasonably obtain, evidence as to causation and damages.  We further conclude Augusta's
evidence raises a triable issue of
material fact as to tolling under section 340.6, subdivision (a)(2), precluding
summary judgment.  Accordingly, we
reverse.

FACTUAL AND
PROCEDURAL BACKGROUND

            We set out
the undisputed facts from the parties' separate statements and evidence
supporting their moving and opposing papers, and view other facts in the light
most favorable to Augusta as the party opposing summary judgment.  (§ 437c, subd. (c); Neilsen v. Beck (2007) 157 Cal.App.4th 1041, 1044, fn. 1; see Guz
v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 335, fn. 7.)  Much of the background is taken from
Augusta's opposing summary judgment declaration, to which defendants objected
on numerous grounds including it was irrelevant to the determination of the
motion and merely reiterated his pleadings. 
The trial court overruled all but two of the objections, and because
Augusta does not challenge the trial court's evidentiary rulings, we do not
rely on those portions of Augusta's declaration, or any other evidence, to
which objections were sustained.  (>Wall Street Network, Ltd. v. New York Times
Co. (2008) 164 Cal.App.4th 1171, 1181.)

Events Giving Rise to
the Underlying Legal Malpractice Action

            In 1986,
Augusta was a licensed securities sales representative for Miller &
Schroeder Financial, Inc. (Miller & Schroeder), an underwriter and full
service brokerage firm.  In 1996, Miller
& Schroeder touted to Augusta and other sales representatives Heritage
Bonds, which were municipal bonds ostensibly for the purpose of financing the
acquisition and conversion of older hospital properties to more specialized
facilities.  Miller & Schroeder
provided Augusta and others certain information and disclosures and represented
the bonds were good investments without any default risk.  With Miller & Schroeder's encouragement,
Augusta in turn sold Heritage Bonds to many of his clients.  Investors eventually discovered that the
Heritage Bonds were in fact fraudulent, that the Heritage Bonds principals
mismanaged projects and commingled bond funds, and that Miller & Schroeder
was aware of the problems but had concealed the true state of affairs.  All of the Heritage Bonds eventually
defaulted, resulting in losses to the investors.

            Investors
filed arbitration claims against Augusta and Miller & Schroeder with the
National Association of Securities Dealers (NASD), and Miller & Schroeder
retained counsel (first Faegre & Benson and then a different firm, Arthur
Chapman) to jointly represent it and Augusta. 
The eventual lead attorney on the matter, Lindsay Arthur of Arthur
Chapman, became aware of Miller & Schroeder's involvement in the Heritage
Bond scheme as well as the fact that Miller & Schroeder was under
investigation by the Securities and Exchange Commission (SEC), but no one
informed Augusta that he had crossclaims against Miller & Schroeder and could
assert various affirmative defenses, or that a potential conflict of interest
existed.  The arbitration proceedings
resulted in two "six-figure" judgments against Miller & Schroeder
and Augusta.  Miller & Schroeder
eventually filed for bankruptcy.  Augusta
could not satisfy the judgments and risked suspension of his brokerage license
if he did not seek relief in bankruptcy. 
As a result of the Heritage "debacle," Augusta suffered
damages in excess of $13 million.

The Augustas Retain
Keehn and File for Bankruptcy

            In May
2002, Augusta met with attorney L. Scott Keehn about a potential bankruptcy
filing on Augusta's and his wife's behalf, and Augusta and his wife signed an
engagement letter stating that L. Scott Keehn and his then law firm, Robbins
& Keehn, was retained "in connection with your [the Augustas']
problems arising out of the current cash flow/demand disparity, created by your
current needs to respond to and prosecute various pending and potential
litigation matters, including preparing you for obtaining formal reorganization
. . . through Chapter 11 of the United States Bankruptcy Code."  Keehn applied to have the bankruptcy court
authorize his employment as the Augustas' general bankruptcy counsel and
submitted a declaration in which he asserted Robbins & Keehn, "as
Debtors' general counsel will be able to provide Debtors with comprehensive
legal services as those services are required."  The verified application states in part that
defendants' "employment is intended to be as broad as legally permissible
but without encroaching upon the areas of engagement for which special legal
counsel have been employed with the courts approval [sic] and will include, without limitation, representation of the
Debtors in all proceedings of every description whether legal, equitable,
administrative, formal, informal, mandatory, permissive, adversary or otherwise
before this Court and any other appropriate Court, forum or agency, in all
adversary proceedings or other litigation, whether presently pending or hereafter
initiated, in this or any other Court, forum or agency . . . ."

            In June
2002, Keehn filed a petition for bankruptcy under Chapter 11 of the United
States Bankruptcy Code (the Bankruptcy Code) on behalf of Augusta and his
wife.  The Chapter 11 plan included as an
asset the prosecution of a legal malpractice action against Lindsay Arthur and
his law firm.  Keehn valued all of the
third party litigation claims at $25,000,000, which was the upper limit for
those claims.  At about the same time,
Keehn assisted the Augustas in retaining an attorney to handle such an action,
and at Keehn's direction, Augusta sought advice from other attorneys concerning
the merits of a potential malpractice
action.  Augusta contacted attorney
John Pickett, who informed Augusta that any legal malpractice complaint should
be filed by August 1, 2002, within one year of the apparent end of the Faegre
firm's representation.  Keehn, however,
advised Augusta that under Bankruptcy Code section 108, the Chapter 11
bankruptcy filing automatically extended by two years the statute of
limitations for any independent action for which the limitations period had not
elapsed.  In July and August 2002, Keehn
communicated with both Pickett and the Augustas concerning the Augustas'
potential malpractice claims against securities href="http://www.mcmillanlaw.com/">arbitration counsel.  The Augustas eventually chose to rely on
Keehn's advice, though Pickett recommended against it.

            In March
2004 the bankruptcy court, on motion of a creditor's committee, converted
Augusta's Chapter 11 matter into a Chapter 7 proceeding.  As a result, the Augustas were no longer
debtors in possession.  In June 2004 the
bankruptcy trustee abandoned the malpractice claims, and they ceased to be the
property of the Augustas' bankruptcy estate.

The Underlying Legal
Malpractice Action Against Securities Arbitration Counsel

            On June 18,
2004, Augusta filed a legal malpractice and breach of fiduciary duty complaint
against various attorneys involved in the underlying securities
arbitration.  Though Augusta filed the
complaint as a self-represented litigant, the pleading had been ghost-written
by members of Keehn's law firm.

            Augusta
eventually retained attorney Dan Stanford to represent him in the underlying
malpractice action, and Stanford filed a first
amended complaint on November 16, 2004. 
Lindsey Arthur and his law firm thereafter moved in the alternative for
summary judgment or summary adjudication on the ground Augusta's claims were
barred by the section 340.6 one-year statute of limitations.  The trial court tentatively granted the
motion on that ground, but permitted the parties to file additional briefing on
the tolling of Bankruptcy Code section 108. 
Stanford asked Keehn to assist them in responding, and Keehn's law firm
prepared a research memorandum on the issue and billed the Augustas for
it.  Keehn submitted a declaration on the
Augustas' behalf in response to the court's tentative ruling.

            In October
2006, the court confirmed its tentative ruling and entered summary adjudication
in favor of Arthur Chapman and Lindsey Arthur on grounds the statute of
limitations had run during the Augustas' bankruptcy as to the Augustas'
negligence and professional liability claims. 
In 2007, Augusta settled for $2 million his sole remaining claims for
intentional torts against Arthur Chapman and Lindsey Arthur.  Keehn conducted legal work for the Augustas
in connection with their bankruptcy until July 2, 2008, and billed them for his
services.

The Present Legal
Malpractice Action

            On December
19, 2008, Augusta filed the present action against Keehn and his law firm, and
his later-filed first amended pleading alleged causes of action for
professional negligence, fraud, and breach of fiduciary duties.  Augusta alleged the one-year limitations
period of section 340.6 was tolled through July 2, 2008, due to Keehn's
continuous legal representation.

            Defendants
moved for summary judgment and alternatively summary adjudication.  Pointing out Augusta did not file his
complaint until more than two years after the securities arbitration defendants
obtained summary judgment in October 2006, it argued Augusta's professional
negligence cause of action was barred by the one-year statute of
limitations.  Defendants further argued
the limitations period was not tolled in part because Keehn did not continue to
represent the Augustas regarding "the specific subject matter in which the
alleged wrongful act or omission occurred."  (§ 340.6, 

subd. (a)(2).) 
According to defendants, Keehn's representation was in connection with
the bankruptcy proceedings only, and not the underlying malpractice action
against securities arbitration counsel, in which the Augustas were represented
by attorney Stanford.

            Defendants
additionally argued Augusta could not establish causation; that Augusta could
not prove he would have received a better outcome in settlement or by
litigating the underlying malpractice action to trial.  Specifically, they argued Augusta was
required to prove that at a settlement, Lindsay Arthur and his law firm would
have agreed to settle, and would have settled for a greater amount than was
actually agreed upon.  According to
defendants, if the case did not settle but proceeded to trial, Augusta would
have to prove he would have prevailed and a jury would have awarded an amount
more than the $2,000,000 he actually received in settlement.  Defendants asserted that Augusta could not
prove the latter scenario in part because Augusta proceeded to trial against
nonsettling securities arbitration counsel and lost.

            In
opposition, Augusta argued the one-year statute of limitations was tolled by
the undisputed fact that Keehn continued to represent the Augustas in
connection with their bankruptcy proceedings through July 2, 2008.  Augusta argued his own knowledge of a
potential malpractice claim did not interrupt the tolling of section 340.6, as
long as Keehn still represented him in the bankruptcy matter, which, Augusta
asserted, was the matter in which the malpractice occurred.  Augusta further argued his retention of
attorney Stanford did not interrupt Keehn's representation so as to end
tolling.

            As for
causation and damages, Augusta argued defendants' motion was procedurally and
substantively defective on the point because their separate statement did not
include any reference to causation and damages. 
Augusta asserted his evidence in any event raised triable issues of fact
on causation and damages via declarations from attorneys Charles Grebing and
Heather Rosing, counsel for Arthur Chapman and Lindsay Arthur in the underlying
legal malpractice action.  Grebing opined
that the value of Augusta's case without the summarily adjudicated negligence
and breach of fiduciary duty claims was significantly less; he stated he had
communicated to Stanford that with those causes of action, Augusta's case had a
potential value of $5 million in excess of any amounts previously paid by prior
settling arbitration attorney defendants. 
Rosing averred that Augusta's damages allegations, if substantiated,
exceeded the available insurance policy limits and that in her opinion,
Augusta's case against Arthur Chapman and Lindsay Arthur "was two to three
times more valuable, as a general matter, with the negligence claims, as
opposed to only fraud claims."

            Ruling on
the parties' numerous evidentiary objections, the trial court tentatively
denied summary adjudication based on the statute of limitations defense, but
granted summary judgment on grounds Augusta could not prove causation and
damages as to all of his causes of action. 
Following argument on the matter, the court granted summary judgment in
defendants' favor.  As to Augusta's
showing that Keehn had continuously represented him until July 2, 2008, the
court ruled the evidence showed Keehn's advice extended to matters related to
the legal malpractice action, but after Augusta hired Stanford in November
2004, Keehn's representation in the bankruptcy matter was not sufficient to establish
continuing conduct in the malpractice matter. 
It held that because Augusta's malpractice claim arose in October 2006
when summary judgment was granted in the underlying malpractice case against
securities arbitration counsel, Augusta's December 2008 complaint was
untimely.  With regard to causation and
damages, the court ruled Augusta's evidence was speculative because it did not
demonstrate that "but for defendants' negligence, his legal malpractice case
would have settled for more or gone to trial and resulted in a larger
recovery."  The court stated:  "There is no evidence defendant in the
underlying case would have settled for more or that a trier of fact would have
awarded more than he obtained at settlement."  It further ruled there was no evidence
showing Augusta was damaged in his bankruptcy case, and thus Augusta's claims
for fraud and breach of fiduciary duty based on the bankruptcy case failed.

            Augusta
timely appealed from the ensuing judgment.

DISCUSSION

I.  Summary
Judgment Standards

            "When
the defendant moves for summary judgment, in those circumstances in which the
plaintiff would have the burden of proof by a preponderance of the evidence,
the defendant must present evidence that would preclude a reasonable trier of
fact from finding that it was more likely than not that the material fact was
true [citation], or the defendant must establish that an element of the claim
cannot be established, by presenting evidence that the plaintiff 'does not
possess and cannot reasonably obtain, needed evidence.' "  (Kahn
v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.)  "The defendant must show that the
plaintiff does not possess needed evidence, because otherwise the
plaintiff might be able to establish the elements of the cause of action; the
defendant must also show that the plaintiff cannot reasonably obtain
needed evidence, because the plaintiff must be allowed a reasonable opportunity
to oppose the

motion . . . ." 
(Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 854
(Aguilar).)  "A defendant can
satisfy its initial burden to show an absence of evidence through 'admissions
by the plaintiff following extensive discovery to the effect that he has
discovered nothing' [citation], or through discovery responses that are
factually devoid."  (>Chavez v. Glock, Inc. (2012) 207
Cal.App.4th 1283, 1302; Cassady v.
Morgan, Lewis & Bockius LLP (2006) 145 Cal.App.4th 220, 240.)name="sp_999_9">

            "Only
after the defendant's initial burden has been met does the burden shift to the
plaintiff to demonstrate, by reference to specific facts, not just allegations
in the pleadings, there is a triable issue of material fact as to the cause of
action."  (Chavez v. Glock, Inc., supra,
207 Cal.App.4th at p. 1302; Weinstein v. St. Mary's Medical Center (1997)
58 Cal.App.4th 1223, 1228 ["The moving party is not entitled to summary
judgment unless and until it meets its procedural burden . . . regardless of
whether the opposing party responds or presents any evidence.  If the
moving defendant fails to meet its initial burden, the burden never shifts to
the opposing party to raise a factual issue"]; see also >Consumer Cause, Inc. v. SmileCare (2001)
91 Cal.App.4th 454, 468-469 [where defendant fails to carry its summary
judgment burden of production of evidence, " 'the plaintiff need not make
any showing at all' "].)

            On appeal,
"[w]e consider 'all the evidence set forth in the moving and opposition
papers except that to which objections have been made and sustained.'  [Citation.] 
[¶]  In doing so, we strictly construe the moving
party's evidence and resolve doubts as to the existence of triable issues in
favor of the party opposing summary judgment. 
[Citations.]  We do not decide the
merits, but only determine if there is evidence requiring the fact-weighing
procedures of a trial."  (>Page v. MiraCosta Community College Dist. (2009)
180 Cal.App.4th 471, 484.)

II.  Causation
and Damageshref="#_ftn2" name="_ftnref2"
title="">[2]

            To
establish a cause of action for legal malpractice arising in a civil
proceeding, Augusta must prove: 
"(1) the duty of the attorney to use such skill, prudence, and
diligence as members of his or her profession commonly possess and exercise;
(2) a breach of that duty; (3) a proximate causal connection between the breach
and the resulting injury; and (4) actual loss or damage resulting from the
attorney's negligence."  (Coscia
v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199; Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 165,
169.)  Causation and damages are also
elements of Augusta's causes of action for breach of fiduciary duty and
fraud.  (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 932 [breach of
fiduciary duty]; OCM Principal
Opportunities Fund v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835,
869-870 [fraud].)

            As
defendants correctly acknowledge, causation is generally a question of fact
that cannot be resolved by summary judgment unless, under undisputed facts,
there is no room for a reasonable difference of opinion.  (Ambriz
v. Kelegian (2007) 146 Cal.App.4th 1519, 1531-1532; Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864.)  Augusta must prove causation "according
to the 'but for' test, meaning that the harm or loss would not have occurred
without the attorney's malpractice[.]" 
(Viner v. Sweet (2003) 30 Cal.4th 1232, 1235, 1241.)  He must show that "but for the alleged negligence of the defendant attorney, [he]
would have obtained a more favorable judgment or settlement in the action in
which the malpractice allegedly occurred." 
(Id. at p. 1241.)  This is done by the trial-within-a-trial
method.  (See id. at p. 1240, fn. 4; Ambriz,
at p. 1531.)

            Where, as
here, an attorney is alleged to have committed legal malpractice resulting in
the loss of another legal malpractice action, the trial-within-a-trial concept
becomes a trial-within-a-trial-within-a-trial. 
(Hecht, Solberg, Robinson,
Goldberg & Bagley v. Superior Court (2006) 137 Cal.App.4th 579, 586 (>Hecht).) 
In such a circumstance, the plaintiff must " 'then show that the
defendant attorney was negligent, that the prior attorney also was negligent,
and finally that a better result should have been obtained in both underlying
actions.' "  (Ibid.)  "In conducting
the 'trial-within-a-trial' of a legal malpractice case, 'the goal is to decide
what the result of the underlying proceeding or matter name="SDU_586">should
have been, an objective
standard.' "  (Hecht, at pp. 585-586, quoting 4 Mallen & Smith, Legal
Malpractice (2006 ed.) § 33.1, pp. 926-927, fns. omitted; >Ambriz v. Kelegian, supra, 146 Cal.App.4th at p. 1531.)href="#_ftn3" name="_ftnref3" title="">[3]  The trial-within-a-trial method " 'is
the most effective safeguard yet devised against speculative and conjectural
claims . . . .  It is a standard of proof
designed to limit damages to those actually caused
by a professional's malfeasance.' " 
(Jalali v. Root (2003) 109
Cal.App.4th 1768, 1773-1774; see also Viner
v. Sweet, supra, 30 Cal.4th at p.
1241.)

            "In
the legal malpractice context, the elements of causation and damage are
particularly closely linked.  . . .  The plaintiff has to show both that the loss
of a valid claim was proximately caused by defendant attorney's negligence, and
that such a loss was measurable in damages."  (Hecht, supra, 137 Cal.App.4th at p. 591.)  " ' "[T]he mere probability
that a certain event would have happened, upon which a claim for damages is
predicated, will not support the claim or furnish the foundation of an action
for such damages." ' "  (Marshak
v. Ballesteros (1999) 72 Cal.App.4th 1514, 1518.)  And, damages must be proven to a legal
certainty, not to a mere probability.  (Slovensky
v. Friedman (2006) 142 Cal.App.4th
1518, 1528.)  " 'Unless a
party suffers damage, i.e., appreciable and actual harm, as a consequence of
his attorney's negligence, he cannot establish a cause of action for
malpractice.  Breach of duty causing only
speculative harm is insufficient to create such a cause of action.  [Citation.] 
"[D]amages may not be based upon sheer speculation or surmise, and
the mere possibility or even probability that damage will result from wrongful
conduct does not render it actionable." ' "  (Shopoff & Cavallo LLP v. Hyon
(2008) 167 Cal.App.4th 1489, 1509; see Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 661-662.)

A.  >Defendants' Threshold Summary Judgment
Burden

            Augusta
contends defendants did not meet their threshold summary judgment burden so as
to shift the burden of proof; that they presented no affirmative evidence
negating causation, and instead "did nothing more than point out through
argument that the plaintiff lacks needed evidence."  Augusta argues defendants' separate statement
did not mention evidence, facts or discovery pertaining to causation, nor did
defendants present evidence as to what should have happened in the underlying
malpractice action if Augusta's claims had not been dismissed.  According to Augusta, the sole evidence
possibly addressing the issue is a special interrogatory response in which he
stated he had lost his professional negligence claims against Arthur Chapman
and Lindsay Arthur because defendants had not timely filed them; those claims
were valuable claims and covered by liability insurance; and had the negligence
claim remained, their settlement value would have been two to three times the
amount paid, or $5 million.  This
discovery response, Augusta maintains, does not establish he lacks needed
evidence on causation, cannot reasonably obtain such evidence, or that he
"will be unable to prove [his] case by any means."

            Defendants
counter that they met their initial summary judgment burden to show Augusta did
not have, and could not obtain, evidence to establish causation.  They identify the following evidence, in part
reflected in their undisputed fact Nos. 23 through 26:

            •  Augusta's admissions contained in his first
amended complaint and original complaint;

            •  Augusta's responses to special interrogatory
No. 50, which asked Augusta to state all facts supporting his claim that the
settlement in the underlying legal malpractice case was greatly reduced because
of the judgment on his negligence claims;

            •  Keehn's declaration stating that in Augusta's
underlying legal malpractice action, the nonsettling securities counselhref="#_ftn4" name="_ftnref4" title="">[4]
obtained a defense verdict;

            •  The trial court's ruling in the underlying
malpractice action that Augusta's claim for malpractice was time barred; and

            •  The fact Augusta settled the intentional
misconduct claims for $2 million, and he claimed this was $3 million less than
the amount that would have been paid out but for defendants' alleged
negligence.

 

            Defendants
maintain the trial court correctly found the evidence shifted the burden of
production to Augusta because their evidence established that "had Augusta
proceeded to trial against all the NASD Arbitration Attorney defendants, his
case would have been defensed and Augusta would have walked away with
nothing."  Defendants further
maintain that we may assess whether they met their threshold burden by looking
at the entirety of the evidence, including that presented in opposition, and
that Augusta's best evidence, the Grebing and Rosing declarations, do not
establish that securities arbitration counsel in the underlying case would have
paid more than $2 million in settlement or that a jury would have awarded
Augusta more than $2 million but for Keehn's alleged malpractice.

B.  >Analysis

            We conclude
that the above-referenced evidence does not prima facie show the nonexistence
of any triable issue of material fact on causation or damages. 
(§ 437c, 

subd. (p)(2).)

            Augusta's
loss at trial against other, different, securities arbitration attorneys does
not bear on the merits, or lack thereof, of Augusta's claims against Lindsay
Arthur and Arthur Chapman.  Defendants do
not point to any evidence in the record demonstrating those defendants' roles
in the underlying securities arbitration, whether they participated in the
joint defense of Augusta and Miller & Schroeder, what liability or defense
theories were pursued at the trial, and whether there is any similarity between
the claims asserted to a defense verdict and those against Lindsay Arthur and
his law firm.  Defendants did not attempt
to establish that the defense verdict and prior ensuing judgment, if any, in
Augusta's action against those other attorney defendants would have had any
binding or res judicata effect as to Lindsay Arthur or his law firm.

            Though in
moving for summary judgment defendants may rely on a complaint's factual
allegations as judicial admissions (Foxborough
v. Van Atta (1994) 26 Cal.App.4th 217, 222, fn. 3 (Foxborough)), Augusta's purported admissions do not establish prima
facie that there are no triable issues of material fact concerning causation.  To the contrary, in his original and first
amended complaint, Augusta alleged that but for the summary judgment on his
negligence claims, the defendants settled for $3 million less than the amount
that would have been paid.  These are not
the sort of admissions that would serve to defeat
the element of causation; rather, they tend to support Augusta's claim.

            Nor can we
say Augusta's response to defendants' special interrogatory No. 50 establishes
that Augusta has no evidence, or cannot reasonably obtain evidence, to support
the elements of causation or damages. 
"A defendant moving for summary judgment may rely on 'factually
devoid discovery responses' to show that the plaintiff's cause of action has no
merit and to shift the burden to the plaintiff to demonstrate that a triable
issue of one or more material facts exists as to that cause of
action."  (Great American Ins. Companies v. Gordon Trucking, Inc. (2008) 165
Cal.App.4th 445, 451, citing Union Bank v. Superior Court (1995) 31
Cal.App.4th 573, 590; Gulf Ins. Co. v.
Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2000) 79
Cal.App.4th 114, 133-134.)  If a
defendant seeks to rely on circumstantial evidence consisting of assertedly
factually devoid discovery, the discovery responses must be such that "
'an absence of evidence can be inferred' " and " 'the burden should
not shift without stringent review of the direct, circumstantial and
inferential evidence.' "  (>Andrews v. Foster Wheeler LLC (2006) 138
Cal.App.4th 96, 103.)  When a defendant's
interrogatory does not ask for information relevant to the issue at hand, or
fails to seek all of the facts related to the challenged element in the
plaintiff's case, a court will not infer that the plaintiff can produce no
other evidence on that issue.  (>Ibid., citing Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64,
81, 83; see Gulf Ins. Co., at p.
134.)  This is because a plaintiff's duty
to answer discovery completely only extends so far as the reasonable ambit of
the questions that are asked.  (>Gulf Ins. Co., at p. 134.).

            In >Scheiding v. Dinwiddie Construction Co.,
for example, the plaintiff sued the defendant for exposure to asbestos at his
jobsite and defendant obtained summary judgment based on plaintiff's failure in
his deposition to identify a jobsite where defendant had worked.  (Scheiding,> supra, 69 Cal.App.4th at p. 67.)  The appellate court reversed the summary
judgment, pointing out there was no indication any party had asked the
plaintiff to identify any jobsite where that defendant had been present, and
thus the court would not infer the plaintiff could not produce any other
evidence to link the defendant to his href="http://www.sandiegohealthdirectory.com/">illness.  (Id.
at pp. 80-81, 83.)  In >Gulf Ins. Co. v. Berger, Kahn, Shafton,
Moss, Figler, Simon & Gladstone, supra,
79 Cal.App.4th 114, the Court of Appeal reversed a summary judgment in a legal
malpractice action that had been based on assertedly factually devoid discovery
responses as to causation, where the interrogatory at issue did not call for
information on the issue of damages sustained by the plaintiff as a result of attorney malpractice, but damages
sustained by the underlying plaintiff who
had sued Gulf's insured in prior litigation.  (Id.
at pp. 135-136.)  And in Cassady
v. Morgan, Lewis & Bockius LLP, supra,
145 Cal.App.4th 220, the Court of Appeal held the trial court improperly
granted summary judgment in favor of a law firm sued for indemnity by its
employee attorney (and affirmed the trial court's grant of a new trial); the
law firm had sought to show the attorney lacked evidence of indemnifiable
expenses, pointing to discovery admissions that his time entries were not
segregated or apportioned.  (>Id. at 

pp. 224, 243.)  The
appellate court held the evidence did not establish the attorney lacked, and
could not obtain, needed evidence; the interrogatory encompassed a theory other
than the one the attorney relied upon, and the discovery did not establish the
attorney could not prove his claim by methods other than billing records.  (Id.
at p. 243.)

            In their
special interrogatory No. 50, defendants asked Augusta to "state all facts
that support your claim that your August 2007 settlement with Arthur Chapman
and Lindsay Arthur was greatly reduced because of the judgment entered on the
negligence claims, as alleged in paragraph 36 of the first amended
complaint."  (Some capitalization
omitted.)  Augusta asserted various
objections and responded that "the negligence (legal malpractice) claims
against Arthur Chapman and Lindsay Arthur were valuable claims and claims which
were covered by liability insurance. 
[¶]  Those claims were thrown out
on summary judgment . . . because the defendants had not timely filed those
claims.  Thereafter, only because of the
efforts of counsel other than the defendants, intentional tort claims
remained.  However, the intentional tort
claims were not covered by insurance and were substantially more difficult to
prove.  The intentional tort, noncovered
claims were settled for the amount of $2 million.  If the negligence (legal malpractice) claims
had remained, the settlement value would have been 'two or three times the
amount paid' and/or the amount of $5 million."

            The
question is whether it is reasonable to infer from the discovery proffered by
defendants that Augusta can produce no evidence of causation or damages as a
result of Keehn's alleged negligent advice. 
(Gulf Ins. Co. v. Berger, Kahn,
Shafton, Moss, Figler, Simon & Gladstone, supra, 79 Cal.App.4th at p. 134.) 
More specifically, we assess whether defendant's special interrogatory
No. 50 is sufficiently comprehensive,
and Augusta's response "so devoid of facts, as to lead to the inference
that [Augusta] could not prove causation [or damages] upon a stringent review
of the direct, circumstantial, and inferential evidence contained" in the
responses.  (Andrews v. Foster Wheeler LLC, supra,
138 Cal.App.4th at p. 107; Scheiding v. Dinwiddie Construction Co., supra, 69 Cal.App.4th at p.
76.)

            We conclude
defendants' special interrogatory No. 50 does not permit the conclusion that
Augusta cannot produce evidence of causation or damages.  Because this is a matter requiring a
"trial-within-a-trial-within-a-trial" approach (Hecht, Solberg, Robinson, Goldberg & Bagley v. Superior Court, >supra, 137 Cal.App.4th at p. 586),
Augusta must eventually meet a burden to show that he should have obtained a
better result not only in the malpractice action against securities arbitration
counsel, but also in the underlying securities arbitration.  However, the proffered interrogatory focuses
only on the reduced value of the 2007 settlement of the underlying malpractice
action.  We cannot characterize Augusta's
response as "devoid" of facts or "incomplete or evasive on that
point."  (E.g., Union Bank v. Superior Court, supra,
31 Cal.App.4th at p. 578 [plaintiff's interrogatory responses admitting he had
no evidence and stating mere beliefs that
a particular set of facts occurred in response to a question requesting all
facts supporting an element of their claims, permitted an inference they
possessed no facts to support that element].) 
Augusta's response set forth reasonably specific facts as to the
settlement's value that he was eventually able to support with the Grebing and
Rosing declarations.  Defendants'
"failure to ask more pointed and specific questions does not establish an
absence of evidence."  (>Cassady v. Morgan, Lewis & Bockius LLP,
supra, 145 Cal.App.4th at p.
244.)  Augusta's interrogatory response,
therefore, does not permit the conclusion that he cannot present sufficient
evidence of causation and damages, and it did not shift the burden to Augusta
to raise a triable issue of fact as to those elements.

            On appeal,
the only argument made by defendants is that Augusta's discovery response
"demonstrates that Augusta does not have any evidence beyond conclusory
allegations that he lost $3 [million] as a result of Keehn's negligence"
and that "Augusta's position that the claims were 'valuable' because they
were potentially covered by liability insurance is insufficient to establish
causation and damages against Keehn." 
The latter assertion is a mischaracterization of Augusta's response,
which states not that the negligence
claims were potentially covered by
liability insurance, but that they were covered
by insurance.  In any event, as we have
concluded, special interrogatory No. 50 is not so comprehensive to make it a
situation in which "the court[] could infer from an incomplete or evasive
reply that the plaintiffs had no other facts to support their case."  (Scheiding v. Dinwiddie Construction Co.,
supra, 69 Cal.App.4th at p. 83; Weber
v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1439-1440.)

            Because
defendants did not meet their initial burden of production, we need not address
whether Augusta's evidence raises a triable issue of material fact.

III.  Tolling
by Continuous Representation

            We turn to
whether summary judgment was properly granted on Augusta's professional
negligence cause of action on grounds it was time barred under section
340.6.  Augusta does not take issue with
defendants' initial burden as to the defense;href="#_ftn5" name="_ftnref5" title="">[5] he
argues only that the evidence raises triable issues of fact as to whether
defendants' representation within the meaning of section 340.6, subdivision (a)(2)
continued by virtue of Keehn's efforts up to July 2, 2008, or whether it ceased
at some point before 

December 19, 2008, the date Augusta filed the present
malpractice lawsuit.

            Pointing to
the undisputed fact that Keehn continued his efforts on the Augustas' behalf
and billed for his time in connection with their bankruptcy matter, Augusta
contends Keehn continuously represented him "regarding the specific
subject matter in which the alleged wrongful act or omission
occurred"—that is, the bankruptcy proceedings—through July 2, 2008, less
than one year before the present malpractice lawsuit was filed.  Augusta argues Keehn's negligence occurred
during his representation as bankruptcy counsel when he misadvised the Augustas
of the effect of the Bankruptcy Code on the statute of limitations for their
legal malpractice claims; that Keehn admitted he represented the bankruptcy
estate in connection with all of its assets, including Augusta's malpractice
claims; Keehn coordinated with outside counsel regarding the interplay between
the bankruptcy and other litigation; and Keehn billed the Augustas for services
that were directly related to the malpractice claims, including ghost writing
the initial complaint.

            Augusta
alternatively argues, citing Neilsen v.
Beck, supra, 157 Cal.App.4th
at 

p. 1054, he raised triable issues of fact as to whether
Keehn continuously represented him up to July 2, 2008, by providing legal
services in matters that were "intertwined and related, having overlapping
objectives and purposes."  Augusta
points to Keehn's deposition admission "that his basic strategy in the
bankruptcy was to hold off Augusta's creditors so that Augusta could pursue his
outside litigation claims and eventually use the litigation proceeds to pay off
creditors."  Finally, Augusta argues
that notwithstanding his retention of attorney Stanford to pursue the
underlying malpractice claim, Keehn's representation in the bankruptcy matter
continued, including to assist Stanford in opposing the summary judgment, and
Keehn never advised him he would no longer provide legal advice in connection
with outside litigation relating to the bankruptcy.  In making the latter argument, Augusta would
have us distinguish Lockton v. O'Rourke (2010)
184 Cal.App.4th 1051 (Lockton) and >Foxborough, supra, 26 Cal.App.4th 217, on which the trial court relied in
granting summary judgment.

 

A.  Legal
Principles

            Section 340.6, subdivision (a) provides:  "An action against an attorney for a
wrongful act or omission, other than for actual fraud, arising in the
performance of professional services shall be commenced within one year after
the plaintiff discovers, or through the use of reasonable diligence should have
discovered, the facts constituting the wrongful act or omission, or four years
from the date of the wrongful act or omission, whichever occurs first.  . . . 
[I]n no event shall the time for commencement of legal action exceed
four years except that the period shall be tolled during the time that any of
the following exist:  [¶]  (1) 
The plaintiff has not sustained actual injury.  [¶] 
(2)  The attorney continues to
represent the plaintiff regarding the specific subject matter in which the
alleged wrongful act or omission occurred."  Under the statute's plain language,
"continuous relationship tolling . . . applies only so long as
representation continues 'regarding the specific subject matter in which the
alleged wrongful act or omission occurred.' "  (Beal
Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 514, fn. 8; >Lockton, supra, 184 Cal.App.4th at p. 1062.)

            "Generally,
continuous representation requires 'an ongoing name="SR;1985">relationship and activities
in furtherance of
the relationship.'  [Citation.] 
. . .  '[S]o
long as there
are unsettled matters
tangential to a
case, and the
attorney assists the
client with these
matters, he is
acting as his
representative.' " 
(Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 571; Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1201.) name="SR;2041">name="citeas((Cite_as:_2012_WL_2190879,_*4_(S."> The standard is objective:  " 'Continuity of representation
ultimately depends, not on the client's subjective beliefs, but rather on
evidence of an ongoing mutual relationship
and of activities in furtherance of the relationship.' "  (Nielsen v. Beck, supra, 157 Cal.App.4th at p.
1049, quoting Worthington v. Rusconi (1994)
29 Cal.App.4th 1488, 1498; Truong v.
Glasser (2009) 181 Cal.App.4th 102, 116.) 
Further, "[t]he limitations period can be tolled even though the
client is aware of the attorney's negligence" and 

" 'consulting another attorney is not tantamount to
ending a prior relationship, [thus] the court will not use that occurrence as a
benchmark which, standing alone, signals the termination of the attorney and
client's relationship.' "  (>Neilsen, at p. 1049.)  However, "[o]nce representation on [the specific
subject matter in which the negligence occurred] ends, a client must bring
timely suit, notwithstanding that the attorney may continue to represent the
client on a range of matters and a direct suit against the attorney may
interfere with the attorney-client relationship in all other such
matters."  (Beal Bank, SSB v. Arter & Hadden, LLP, supra, 42 Cal.4th at p. 514, fn. 8.)  "The continuing representation tolling
provision 'is not applicable when there is a continuing relationship between
the client and the attorney involving only unrelated matters.' "  (Neilsen,
at 

p. 1053, quoting Crouse v. Brobeck, Phleger &
Harrison (1998) 67
Cal.App.4th 1509, 1528.)

            The
legislative purposes underlying section 340.6, subdivision (a)(2)'s continuous
representation exception are to " ' "avoid the disruption of an
attorney-client relationship by a lawsuit while enabling the attorney to
correct or minimize an apparent error, and to prevent an attorney from
defeating a malpractice cause of action by continuing to represent the client
until the statutory period has expired." ' "  (Beal
Bank, SSB v. Arter & Hadden, LLP,
supra, 42 Cal.4th at p. 511.)

B.  >Augusta's Evidence Raises Triable Issues of
Fact as to the Scope of Keehn's

Representation as the
Augustas' Bankruptcy Counsel

            We agree
Augusta's evidence raises triable issues of material fact as to the scope and
nature of defendants' ongoing representation, and in turn application of
section 340.6, subdivision (a)(2) tolling, precluding summary judgment on
statute of limitations grounds.  It is
undisputed that defendants' bankruptcy work was ongoing and continued to July
2, 2008, only five months before Augusta filed the present action; Keehn in his
moving summary judgment declaration and deposition admitted that "[t]he
Keehn Defendants' representation of the Augustas ended on July 2, 2008 when the
last legal service was performed in connection with the Bankruptcy Case."

            Thus, up to
July 2, 2008, Keehn and Augusta had " 'an ongoing relationship' " and
that Keehn performed " 'activities in furtherance of the relationship.'
"  (Jocer Enterprises, Inc. v. Price, supra, 183 Cal.App.4th at p. 571, quoting Nielsen v. Beck, supra,
157 Cal.App.4th at p. 1050.)  The
question is the scope of Keehn's relationship; whether his allegedly deficient
advice concerning Bankruptcy Code section 108's effect on the statute of
limitations of Augusta's underlying malpractice claims was entirely unrelated
to his role as the Augustas' general bankruptcy counsel.  As stated, the limitations period is not
tolled under section 340.6, subdivision (a)(2) by virtue of "a continuing
relationship between the client and attorney involving only unrelated
matters."  (Crouse v. Brobeck, Phleger & Harrison, supra, 67 Cal.App.4th at p. 1528.)

 

            Augusta's evidence permits a trier of fact to conclude
that Keehn's role as general bankruptcy counsel extended to advice concerning
Augusta's pursuit of his legal malpractice claims against securities
arbitration counsel as well as other third party litigation claims.  For example, Keehn discussed with Augusta how
the creditor's committee would handle those claims.  In opposition to the summary judgment motion,
Augusta presented excerpts from Keehn's deposition in which Keehn recounted his
conversations with Augusta:  "We
talked about—about pursuing the malpractice claims while the Chapter 11 was
pending.  And my conclusion and what I
told him was that it would be a—it would not be something the committee would
approve outside of a confirmed plan." 
And Keehn agreed that Augusta's underlying malpractice claims were part
of the bankruptcy res.  Keehn advised
Augusta that as the debtor in possession, he controlled the timing and
prosecution of the claims, which were the property of the estate, and that any
recovery would have to be used in a manner consistent with the Bankruptcy
Code.  In his deposition, Keehn stated
that he had not recommended that the Augustas file a Chapter 7 bankruptcy
"[b]ecause [he] had formed the professional opinion that there would be
more utility to [the Augustas] if they were able to retain their assets, pursue
their litigation claims, and pay their creditors over time."  Augusta followed Keehn's advice to use the
Chapter 11 as a "vehicle for holding off his other creditors while he
litigated his [claims against third parties] . . . ."  Keehn's efforts extended to assisting the
Augustas in retaining counsel for the malpractice claims, and providing
supplemental briefing on Bankruptcy Code section 108 after the superior court
tentatively granted summary judgment in favor of Lindsay Arthur and his law
firm.  Keehn engaged in at least one
lengthy meeting with Pickett and the Augustas, and his billing records indicate
the meeting was "regarding issues relating to evaluation of claims against
[securities arbitration counsel]; [and] development of overview strategy for
enhancing prosecution value of same."

            Keehn's
summary judgment declaration indicates that his allegedly negligent advice
pertained to the legal effect of the Augustas' bankruptcy on the limitations
period for their malpractice action.href="#_ftn6" name="_ftnref6" title="">[6]  Nor is there any dispute that Keehn assisted
Augusta in filing the underlying malpractice action by drafting the initial
complaint for Augusta to file as a pro per. 
Under the circumstances, a reasonable trier of fact could readily
conclude that Keehn's role as bankruptcy counsel was not entirely unrelated but
rather was connected to Augusta's underlying legal malpractice claims against
securities arbitration counsel and that Keehn's assertedly negligent advice as
to the Bankruptcy Code's impact on the statute of limitations on those claims
was given in his capacity as the Augustas' bankruptcy counsel, which
representation did not end until July 2, 2008. 
It is of no moment that Augusta may have learned or suspected that
Keehn's advice was negligent; a client's awareness of the attorney's negligence
and consultation of another attorney will not interrupt the tolling of the
limitations period "so long as the client permits the attorney to continue
representing the client regarding the specific subject matter in which the
alleged negligence occurred."  (>O'Neill v. Tichy (1993) 19 Cal.App.4th
114, 121.)

            Defendants'
counter arguments do not persuade us otherwise. 
They first assert Augusta's opposition has a procedural flaw: that his
separate statement does not contain facts that identify the specific subject
matter of the representation as the general bankruptcy.  We reject that assertion, as Augusta lodged
his engagement letter with defendants, which states that defendants'
representation was as "general bankruptcy counsel during the prosecution
of the Chapter 11 reorganization case." 
A court is not required to grant or deny a motion for summary judgment
simply because a party has not included a particular fact in its separate
statement; we have discretion to consider his evidence, particularly where
Augusta specifically referenced it in his opposing papers.  (Varshock
v. California Dept. of Forestry and Fire Protection (2011) 194 Cal.App.4th
635, 652-653.)  And, whether defendants'
legal representation as general bankruptcy counsel was the "specific
subject matter in which the wrongful act or omission occurred" (§ 340.6,
subd. (a)(2)) is a conclusion, not a "material fact" that must be
included in a separate statement. 
(§ 437c, subd. (b)(3).)

 

            Defendants further argue Augusta did not submit
admissible evidence showing Keehn provided legal services relating to the
underlying legal malpractice action against the securities arbitration counsel
in the one year before he filed the present lawsuit.  According to defendants, their representation
was exclusively as bankruptcy counsel, and the specific matter in which the
alleged legal malpractice occurred "was not [Keehn's] general bankruptcy
services, but his specific advice regarding the statute of limitations on
Augusta's claims against his former NASD Arbitration Attorneys."  However, as we have explained, that argument
fails in view of the overlapping and related nature and scope of defendants'
bankruptcy representation with Augusta's legal malpractice claims against
securities counsel.

            Finally,
citing Beal Bank, SSB v. Arter &
Hadden, LLP, supra, 42 Cal.4th
503, Lockton, supra, 184 Cal.App.4th 1051, Foxborough,
supra, 26 Cal.App.4th 217, and other
cases, defendants argue the section 340.6, subdivision (a)(2) tolling ended in
November 2004 when Augusta retained attorney Stanford to represent him in the
underlying legal malpractice action.  But
the question in Beal Bank was whether
tolling would apply to an attorney's former law firm and partners after the
attorney leaves the firm, taking an aggrieved client with him.  (Beal
Bank, at pp. 505, 512.)  Other than
for its general principles pertaining to continuous representation tolling,
that holding has no application to the facts of this case, as Keehn continued
to represent the Augustas as their bankruptcy counsel to a point within the
one-year limitations period.

 

            Nor does Lockton
persuade us to hold differently.  >Lockton was decided in the context of a
demurrer, and the question was whether the attorney defendants' representation
of the plaintiff in a federal action
also constituted representation of the plaintiff in his claims against other
attorney defendants (the Morrison defendants). 
(Lockton, supra, 184 Cal.App.4th at p. 1065.) 
The plaintiff's pleadings (his earlier verified complaints) indicated
the defendant attorneys had informed the plaintiff they would not name the
Morrison defendants in the federal action, that he should retain new counsel to
pursue those claims, and the action against the Morrison defendants should be
filed in state court.  (>Id. at p. 1066.)  The client followed that advice and hired new
counsel to file the action.  (>Ibid.)  The appellate court held
the attorney defendants' tasks were completed and events inherent in the
representation had occurred when (1) they told the client they would not sue
the Morrison defendants and (2) the client retained new counsel, who filed the
action in state court.  (>Ibid.) 
Importantly, there were no factual allegations that defendants advised
or consulted with the client or his new counsel with respect to the Morrison
action between the new counsel's retention and the trial court's order ending
the Morrison action.  (>Id. at p. 1068.)  Contrary to Lockton, Keehn did interact with Augusta's new attorney, attorney
Stanford, in connection with the underlying legal malpractice action, taking
remedial steps to minimize his apparent error by filing a declaration on
Augusta's behalf in opposition to Arthur Chapman's summary judgment
motion.  Such actions on Keehn's part are
an important consideration, as they further the purposes behind the tolling
provision: permitting attempts to repair the attorney-client relationship or
allow the attorney to correct or minimize an apparent error.  (Laird
v. Blacker (1992) 2 Cal.4th 606, 618.)

And in Foxborough, supra, 26 Cal.App.4th 217,
the court rejected a claim of tolling based on continuous representation
because the undisputed evidence showed the clients had retained different
counsel to prosecute the claims, and "the record conspicuously lack[ed]
any indication of contact between [the attorney and the clients concerning the
subject matter] in the following two years . . . ."  (Id. at p. 229, 

fn. omitted.)  The
sole evidence of any continuing relationship between the attorney and clients
was as an expert witness in the litigation, which did not toll the limitations
period.  (Ibid. [holding "the limitations
period is not tolled when an attorney's subsequent role is only tangentially
related to the legal representation the attorney provided to the
plaintiff"].)  Here, Keehn's
representation did in fact continue after the Augustas hired attorney Stanford,
and a reasonable trier of fact can conclude it was in the same matter—the
bankruptcy—in which Keehn's assertedly negligent advice was given.

            Because the
evidence concerning Keehn's representation raises triable issues of material
fact as to continuous representation tolling of section 340.6, we conclude
summary judgment was improperly granted.

 

 

DISPOSITION

            The judgment is reversed and the matter remanded with
directions that the trial court enter a new order denying defendants' motion
for summary judgment.  Augusta shall
recover his costs on appeal.

 

 

O'ROURKE, J.

 

WE CONCUR:

 

 

McCONNELL, P. J.

 

 

McINTYRE, J.