in this attorney male practice case ever stables has asserted three damages theories against the defendant ramberg here in his law firm the ram be cured defendants and if s to any one of those theories there is a genuine issue of material fact this matter should go back to the district court for a jury trial we actually believe there are issues of fact as to all three i'd like to walk through what those are and then spend part of my time on procedural posture of this how this came to be in order directed at the plaintiff for summary judgment on grounds that no one moved on and then a time permits spend a little time in the bad faith claim against  insurance so let me begin with damages the st item is a commission recall the basic factual setting is that everest receives advice that if it goes to this auction and sets a reserve on the horse that are in a it will be within its rights under its contract with crestwood and it won't have any liability to crestwood and that turns out not to be so now there are fact issues as to liability but that's the basis of the liability claim and in fact everest is not within its rights and owes crestwood a two hundred and nineteen thousand dollars commission on a sale that didn't happen for most of us that sounds like i believe a pretty basic damages claim i had to lay out two hundred and nineteen thousand dollars to somebody on a sale that wasn't consummated but the district court's position no wait a minute if that sale had taken place you would have paid two million nine hundred thousand dollars commission that seemed like a good point well i liken it to a homeowner let's say i make a deal with a real estate broker that you'll sell my house in ninety days and i'll pay you a five percent commission and so somebody comes along and offers five hundred thousand dollars for my house and i take it i have four hundred and seventy five thousand dollars of net proceeds but let's say i don't take it in the ninety days goes by the broker says you know i did my part you only twenty five thousand dollars setting aside whether i had bad advice or why all this happened i paid the broker twenty five thousand dollars yes i still have my house but i don't believe there's a homeowner anywhere who would say i'm just as well off paying the broker twenty five thousand dollars for a sale of my house that didn't happen as i am in getting four hundred and seventy five thousand dollars of net proceeds and that proceeded of liability was that the sale should have gone through right that's that's correct and i should have gone through than you'd have to pay commission on the sale but i pay it out of net proceeds the net result is that i have six hundred and fifty five thousand dollars and instead  the net result is i have the same horse i had before but i had to pay two hundred and nineteen thousand dollars i'm not saying that that's a slam dunk with the jury but i am in the posture here where all i have to show is that there are reasonable inferences that a jury can draw on my behalf and i think the average juror would say those are not the same thing having six hundred and fifty five thousand dollars net is not the same as having my horse and losing two hundred and twenty thousand dollars and i think a jury would be entitled to say that's what that's the damages i do so but the attorney's fees ok the attorney's fees again here is why i think that's a jury question the the crestwood versus everest case is premised on the advice that everest got under the contract it's really a referendum on whether that advice was correct i'm overstating a little bit because the crest would case involve some other issues but as to some of those the attorney's fees were discounted to take him to take that into account so there was a piece there case that had nothing to do with the contract and the attorney's fees were discounted twenty percent as to the rest of it that did have to do with the contract a large part of that clearly related to the this filly and this september two thousand and nine auction and it's very much interrelated intermeshed with other issues that i think takes us to the rule where if you can show the fact of damage the jury is entitle to sort out just how much of it is due to the issue at hand that remind fee shifting worked in this case what was the source of fee shifting was it just a kentucky law point or it was a contract is one dollar of the contract so yes the contract that really was at the heart of the suit the  was vindicating the rights under the contract turned out that those rights couldn't be vindicated and there was an automatic fee shifting that's why he was subject to it so the jury the jury can sort out whether that was how much of that was due to the storm kept philly issue and even how much of that was due to everest own decisions versus stranded cures advice it's a compare class a comparative fault issue and your rd one is sale price go go yes really sale price minus research will value in our reply brief on our motion for summary judgment we acknowledge that there is a residual value to the me objection to your plight the fact you address that in your reply brief doesn't that kind of go against your argument that you're prejudiced without having noticed that the judge summary judgment on the issue which is well let me explain i'm glad we got to that question at this point in the argument i think that's very important i know but i didn't start there today well no there's a difference between the kind of notice we've gotten the kind of notice we should have had the brief in opposition to our motion for summary judgment said that one of the reasons summary judgment should not be granted is that there is a damages issue and we said i think correctly there is a mitigation of damages issue so you have a horse you have it for eighty nine years the damages issue is you could have sold it maybe you made money on it but in some respect either you could have mitigated your damages or you did and we say that's a fact issue that's not the ground for  we officially moved for summary judgment based on damages they challenged it saying it raises a whole bunch of fact issues and the question is should we have supplemented your confusing me no i didn't think that here's the problem your honor when you move for summary judgment you don't have to and you don't tactically put in all your evidence that shows all the facts that you could marshal on your behalf if you put it at issue and once you get  point and here's one of the reasons why is a little bit i'd like to add to the record when you when you get to the transcript on the hearing you see the judge talking about our damages theories upset about or damages theories it's pretty clear by the close of that that we're not going to get summary judgment and then there's a pause people go off to the wreck off the record and then there is discussion about two things a potential settlement conference and discovery issues before they have your conversation out on the record is that what you're about to know they go off they're going to go back on the record and the record reflects that there is discussion between counsel and the court about damage discovery issues before the magistrate judge and a settlement conference that could potentially happen and the judge says well if there's going to be a sudden conference there will be discovery after that there won't be sorry there won't be any discovery until after that if there's not going to be a settlement conference go ahead and make your report to the magistrate and whatever discovery he orders he orders and that's what we'll do and so i believe plaintiff's counsel came away from that hearing believing we're not going to do very well on our motion for summary judgment we're probably going to lose but that means we're going to lose we're not going to not proceed with discovery it looks very much like the court's creating the expectation that the case will proceed to discovery and go to trial i mean  the problem that there has to be some evidence to satisfy each element the claim and just go back to sales price and just help me out with that one dollar so on sales price if the you still have the horse the horses and sold so you only have damages if the horse is worth less than what you would have gotten with the sale where's that evidence you have and says the passage of time the evidence is what the horse is worth at the time of that summary judgment hearing not the day after the auction where's that evidence we are you said the evidence is the passage of time that's not evidence of damages tell me when you have to show that at some point this horse was worth a less maybe at that exact moment and therefore your damages are what you would have gotten had the eight hundred and seventy five thousand sale or whatever it was gone through and i are we on the same price page in terms of damage damages but i think there's that evidence and i'm saying a reasonable jury can infer just from the passage of eight years that the horse is worth less than it was in september two thousand and nine i would say the exact opposite that you know inflation there's a lot lots of things that could make prices go  and that would have to go into the equation also the issue though is whether at that stage it was our burden to show that the horse didn't make money or did we put enough evidence in the record to show that there is a reasonable inference again this is all about just so much i want to make sure i've got your theory you'll get rebuttal to your theory is passage of time eight years suffices to show that there was damage from the failure to sell it at eight hundred and seventy five thousand years earlier that's your that's the damages evidence in opposition to a motion for summary judgment yes ok all right so judge ok judge griffin's got a qu company i mean i don't see how you got a claim at all against the insurance company i mean this is the claims the crude policy or claim after june st two thousand twelve all this happened before do you st two thousand and twelve you have no contract you have no relationship with the insurance company for this period of time i mean it to me it almost looks like a frivolous claim and approvals appeal i mean tell me tell me why it's not because the bad faith statute in two places some people have bad faith that there's no relationship there's no duty of the insurance company to to your client for a period before june st two thousand and twelve how do the duty arrive when there's no contract for that period and no no relationship really for that period the statute applies to rd parties claiming that they have coverage i mean they have coverage even though it's a it really is a frivolous claim because you admit in your brief there is no coverage you can read the policy and see there's no coverage but you say because i claim something that is just totally unreasonable and totally frivolous that puts them on a duty to act in a certain way to me just because i made a frivolous claim to them is that that your argument at the time that we made it i don't believe it was how was it not it's clear from the policy that's not that there's no coverage there i don't think it would be your point today forget what was argued in the past what would be your point today to deal with this problem my point would be that insurers have an obligation of the statute to behave a certain way when denying coverage apparently there anybody who files a claim i don't have a policy was iraq but i claim i do and then i can sue them if they don't respond to me within thirty days and i have no relationship they have no duty to me and if that your position if it's properly and within a reasonable time and i think you have some rights because otherwise right otherwise to me i would claim the right to ride the rides i mean were does that what is the duty duty arrives if there is no relationship if we were still clearly not covered i still don't understand why it took two years to tell us oh well they did tell you orally that did they not you say that they also should have given you a letter in the adjuster tell you right away that there is no coverage of this policy and i thought that's what the facts were and later miller and wells were working with the with the  the reference that council made the analogy to a real estate sale i don't think it is very helpful to his cause because if you lose your house for the broker and he gets a full price offer and then you refuse to sell there is no doubt that you all are the commission now on an auction sale that's a little different that's the purpose of a reserve clause to protect you against that and contract you made if i did that is that the two situations are not the same when the smoke clears for the party who would have sold and i think a juror would understand that ok well you get your  may please the court good morning your honor is my name's kevin clarkson i'm here on behalf of three via pelleas in this case and i have agreed it would take ten minutes jared a five minutes of appellate time we are here today so i think i think we understand your point on the sale i think we understand your point of the commission how about the attorney fees it seems a little hard to pin down and all you need is a tribal issue of fact right so that's that's the problem you have you're dealing with so tell us why there's no tribal issue of fact on the attorney's fees a couple reasons they move for summary judgment as well and they've argued in their briefing up here as if they didn't have a duty to prove all those elements of work let's let's them for purposes of my question let's assume the damages was the very st thing everyone briefed it was the very st thing ever were talked about so if you just put the procedural hiccups to the side i'm happy to go back to that but i'm not actually sure how that necessarily helps you for what it's worth but let's just pretend it's totally teed up and just talk about that issue there was a complete absence of proof as the district court showed as to what attorneys fees resulting from the loss of the underlying crestwood case arose because of any action or advice that mr  the i think the response to that is your client's advice was about what you could do in these bids there's a contract to a language about that and he says you can go and do this stocking bid it turns out not to end that part of the litigation between chris wood and everest is about this exact point and the contract has fee shifting and i don't know how we can deny that some of those fees grow directly out of that advice that's what i'm missing well maybe not all of them maybe it's a small part of it but he's right on the other side that that part is a jury question the question is whether there's enough to meet the element of the claim to get past summary judgment and i guess i'm struggling with why there is zero damages well i think the reason there are zero damages on the fees that were awarded your honor was because the malpractise fees that they were arguing for for summary judgment were fees relating to the litigation advice the litigation loss not just mr ramage here's advice that led to the litigation in the st place i realize it wasn't just that that's the whole point of it's a big mess and the jury will have to figure out what part is attributable to his advice about the meaning of the contract i get that but what i don't understand is how you can take that out entirely from the fia war that's the part i'm struggling with i think you can take it out your honor because again when asked if there was any say in a couple of st there needs to be proof when they affirmatively move for that damage of what the fees  were and should there be any shifting there wasn't and if this record was right but there was no guidance no evidence put in the record by everest as to if there was one dollar attributable of those fees that were worded to mr  litigation counsel in relation to being been put on notice that there wasn't any damage as proof in the record that the district court asked to see before ruled on summary judgment evarist had it least two months between hearing and the ruling two as other cases have cited relating to summary judgment supplement the record asked for reconsideration they did none of that instead they continued to litigate the case they filed a motion to  exclude our expert they had the opportunity under their theory that this was a sewer sponte ruling even on the damages that they could have sought additional proof in the record asked for additional discovery done other procedural things to bolster their case they didn't so i would say that's a tell me what i'm missing if i if i think this way if i think that you are allowed to say the damages are that that contract had fee shifting we have litigation there is fee shifting in the fee shifting relates to four dollars topics one of which was the advice about what you could do with the contract in terms of stocking bits at that point that's all this is what i'm asking you now i would have thought that's all you need to do to get past summary judgment i would not have thought you would need to have an evidentiary hearing at that point as to whether it was just a couple one hundred dollars that were attributable the bad advice or several one thousand dollars i wouldn't i would have thought that was something you dealt with later all you had to do was show there was some damage well true and i agree with your honor there has to be a showing that they did they do that they did not your honor i mean they what they said the temperatures are the five thousand and fifty why isn't that saying it to make an argument is not proof and at the summary judgment stage either in response to my clients is there not evidence about the fee were there is not your  honor other then the crestwood case saying there was peace but in order to put that in affirmatively then be awarded damages on something that mr ramage your did or did not do there needs to be proof as to how they had to rebuild that judgment in the attached as an exhibit no what i'm saying your honor is in these are questions that the just a court asked is if the district court is being asked to award a component of damages against mr ramage here the attorney's fees th there has to be something more in the evidentiary record when you're moving for summary or defending against summary as to what that what those damages are and the proof of those damn what's beyond the amount of the judgment that they have to show questions that were asked b district court that would have been appropriate to put in the record would have been the attorney's fees the actual bills from counsel that would have broken down the the part of the case that relied upon here's advice or if there were some yes but that would be relevant in a case such as ours underneath where if you're out you know you're seeking attorneys fees crestwood kris we paid something i assume because that wasn't put in the record either for those fees it must have paid the two hundred and eighty eight dollars out eighty ok so you need in the record the at the judgment against everson fees right that's we're all in agreement that somehow you need evidence of that yes whether it's judicially noticeable or not but then you go beyond that and you say you then have to put in some evidence that explains what part of that field ward is attributable and what if that's basically unknowable without a mini hearing i mean because i would have thought the whole point is you just got to show some damages to get to a jury trial you don't have to decide whether it's one dollar or one hundred thousand dollars and i would have said the judgment plus the reality that one of the theories of malpractise was the bad advice about the well you can do this bid i would thought that was enough and i mean you have a case that says no you really have to spell it out a little more well and i don't i mean maybe i'm confusing the court with what i really mean by spelling which take it back to this we all know that other than saying i'm damaged you have to put affirmative proof in the record so even if it take you back to judge griffin's question other than the public record of crestwo awarding a fee that doesn't mean there was actually payment one dollar thing we would have expected in that you were to respond in the briefs there's no evidence that there actually is a fee judgment a fee shifting judgment that evers has to pay coins and what we argued on the damages component was there was no damages regardless of and at the time when we were briefing this both for our original summary judgment in their summary judgment the bucket  occurred as that progressed so we never argued with mr ramage here filed his original summary judgment motion a year and a half before the ruling as this case progressed that these particular buckets were not proven we just simply argued that there is no cause and effect here because there hasn't been any damage at present that point everest didn't have an expert they didn't have declarations from their their principal that came later on and they were responded that there's still no proof of issues your quote your are your honour's have asked questions about said the sale price and the commission and all those kind of thing but if we could go just a few more minutes we're taking time from cirque but i think we have as many questions for you for what it's worth just a treat me as the trial judge for just for the sake of argument i'm a busy trial judge i got a lot to do and like i just want to know what this is really about you're not here to say just this is just fiction we're just like how do we deal with this problem today you're not here to say that there wasn't a fee attorney's fees judgment against everest you know when you're not going to say where is that document let's put in that is you're not going to say that you know so that clearly was damages to everest one of the theories of damages was malpracti from that advice now do you think it's summary judgment to decide whether this claim moves on we have to decide whether it least one dollar of that couple one hundred thousand dollars judgment was attributable to the advice about the meaning of the contract would you then say yes we need that proof yes judge and i think that's what the district court also indicated in and you can't give you one how can you so you have to go through all the bills at that point otherwise otherwise how would there be proof i think my answer would be you show me how none of it was attributable to this what you're saying is the i would be my affirmative duty to show it wasn't i but my instinct it seems so common sense that some of it must have been attributable to that and it seems so weird to sort it all out that summary judgment when the only question is whether you move on to juries that do get to sort out well in your response your honor you know summary judgment is more than to use your term common sense and again it isn't if it wasn't just us moving for summary everybody had the burden to put in all their proof and so it's not unreasonable when you're claiming multiple buckets of damages whether it's commission which in the argument in front of the tissue court they admitted they didn't they didn't have it damage already in the red light so i'd stay with the questions just god you have any questions you know thank you if i think you had go ahead if you had one more point i was just going to on the attorney's fees i was just going to happen to your honor that if i realize it's a little different bucket than say evaluation of the horse which is the other bucket but they're still in affirmative requirement of proof and the public record that there was an award made isn't doesn't meet a proof standard i couldn't walk in to a trial court as a advocate for my client regardless of the damage they are arguing and just show the jury this was an award from four or five years ago that doesn't need an evidentiary proof of damage at trial and it doesn't need the evidence or proof of the damage to stables through mr lawrence dean its counsel that there was no coverage for this fight that was in an e mail which stated there is no coverage for this matter and of the policy  miller wells emailed mr warren seen on the same day and said that he had talked with the representative of the search and that quote she made it clear to me there rd was slash slash in won't be any coverage i think judge griffin the questions were apt and accurate there's never been any coverage for the cli asserted by ever stables there was never any duty on behalf of to investigate or do anything other anything else with regard to behind that there is no coverage kentucky laws clear that there is no claim for bad faith in the term in terms of when there is no obligation to pay into the policy the other claims asserted were properly dismissed by the honor only address the attorneys fees provision and the fee shifting damages we've actually hit on the point where we agree with the district court judge during the argument the district court said  that he thought and this is on record page two thousand one hundred and sixty two he said it may be that i'll simply let the parties argue the apportionment of that to seventy two and he said it would seem like a really difficult thing for the jury but  neither side is experts i think you all are experts so maybe that's just what will need to do and the notion that it is the same judge ultimately issued a judgment that wasn't very helpful to we can't lie a one hundred percent on him well i can admit when somebody is right even when it's on my feet with a very hard serious all your honor seriously it is long been the law in kentucky and here that if you can show the fact of damages uncertainty of about the amount of damages inside not sufficient to get you know it is a little fun it is a little funny i mean just because one of the theories of underlying that two hundred and seventy two thousand judgment is attributable to this point it doesn't tell you that any of the damage is related to that i mean that is complicated and you know i could imagine a world in which it is your burden to say here's why at least fifty thousand over ten thousand over five thousand of it related well i think the opinion itself that awarded the damages it wasn't just a number there was an opinion that came with it and the opinion makes it clear that it's talking about all the issues but does it that's a fair point so you're saying that underlying opinion actually says some of the damages grew out of this advice does it spell that i i don't recall that it's the storm kept philly but it said st of all it took out judgment i don't know that the judge was that specific about it but the impression you get is that they're all sort of bound together once you take out the passion bill part and clearly the crestwood case was in large part about the storm cap philly no one would really dispute that it even started with crossword versus everest about the right to arnie the storm carefully about whether commissions would be old crust would