expired ohip the gavel finally please remember no photograph and only the court of the court is permitted to record these proceedings today conflict jury could you move your camera just a little bit you can see what you've got court ruled that the defendants of had no duty to the plaintiff once they withdrew his her attorney on november twenty three to fifty two thousand and fifteen which was moments before she agreed to any marital settlement agreement that provided her with only two hundred and fifty thousand dollars house out of what we contend was a marital state  before the defendants withdrew as bobbie jo's attorney i would submit there were two respects that they breached their duties before they withdrew one is and they admit this in on page give me on page nine their brief that discovery was not completed in the divorce case before nov twenty three and they had filed a motion to extend the deadline for discovery and it had been denied before they withdrew as attorney for joe and they had met in their brief affair that  discovery was not complete so they did not complete discovery they were paid fifty two thousand dollars in attorney's fees and the time for completing discovery had expired and they couldn't get it extended so they that was all of that occurred before they withdrew as the attorney nd lame they failed to appeal the january th two thousand and fifteen order in the rd divorce case which they were representing bobby jo on as well ordering bobby jo to quit claim the marital home worth one hundred thousand dollars to ken a false her her ex husband and they told her that she had to sign the quitclaim dade after the court ruled  against her on that motion and what happened there as these parties as the court well knows have been married and divorced four times and we're talking about the th that wars the rd divorce was completed in two thousand and seven and it required the marital home to go to kenneth faults the husband the th marriage occurred in two thousand and ten and then in two thousand and eleven a deed was issued for the marital home the marital property for the th divorce went back to the court in the rd divorce case which was now some eight years old and filed a motion to enforce the divorce decree in the was st of all their activity and permitting that to occur their recommendation that she signed the quitclaim deed and their failure to appeal that order now it's been established by a previous  between the parties with respect to any matter that had not been completed with respect to that previous divorce decree so when jennifer also attorney went to the to the judge in the rd divorce case to kind of get around the pending th divorce case on a marital property he asked the judge in a rd divorce case to enforce an unenforceable divorce decree it was case which provides that generally issues of proximate cause and the facts establishing whether a duty was involved or not are questions of fact for a jury to decide but where the claim is that the defendant attorney's committed malpractise by failing to appeal a decision that's a decision of law for the court to decide now the trial court in this case in our current case did not address this issue at all the trial court simply said well once they withdrew his her attorney they owed her no duty bets the end of the end of that concert was asked that time if she wanted to proceed she said yes without counsel she dead she dead and but part of that is that she was suffering from anxiety and depression and was addicted to xanax and the defendants knew that and they also knew that kenneth wells was not going to offer a fair settlement agreement and they bailed out at the last minute knowing that discovery was incomplete and they had been paid fifty two thousand dollars we then filed a  dismiss which the trial court never addressed and the trial court simply said you lose you didn't prove that you are entitled to relief under section four to no one so we appealed that decision to this court and on september five two thousand and eight jane this court issuing an order reversing that decision on the one thousand four hundred and one petition and remanding for an evidentiary hearing after that case was remanded seventy eight thousand dollars more than she would have obtained under the original m s a that was entered mediately after the defendants withdrew from from her representation in this case  so and this court recognized that she had stated a viable claim that she had been under the dominion and control of her husband during all of these th marriages in which he left on nov twenty three with her attorneys are the one who initiated they wanted to withdraw although this is not stated in the st minute complain i believe their argument was well we think she's going around or to enter into some kind of si agreement that's not in the written agreement so we want to withdraw we want to miss it they really just bailed out because they couldn't take additional discovery they've been paid fifty two thousand dollars they couldn't get additional discovery because their motion to extend the deadline had expired and they were left with knowing that kenneth was wasn't going to offer a fair settlement so they simply bailed out so the issues are a little different she did agree to it but that was later by this court decided that she had viable grounds to set that aside and while we didn't have a hearing on the one thousand four hundred and one petition we achieved a settlement that was far better than the one that was that existed on november twenty three two thousand if the marital property was worth one hundred thousand dollars and is just a matter of law under the holding of in re marriage of parks that the divorce proceedings were pending that's just as a matter of law so that i went to mit that's a clear violation of the duties of an attorney to their client they should know the law that what kind of did you simply couldn't do it had to be the marital home had to be considered part of the marital property in the for the worse case and that's a nine hundred thousand dollars issue right there in addition as far as the duties of brave that point out an attorney's duty must be tailored to the needs and sophistication of their client which presents a question of fact and this includes a duty to protect the client from self inflicted harm so here the defendants initiated the motion to withdraw knowing that bobby jo would have no option but to accept an unconscionable settlement agreement they were acting out of self interest not out of interest what was what was best for the client with respect to the  extension of a duty after an attorney withdraws both sides cite the case of mitchell versus jane st of all and bernie and i'll just quote from and there may be circumstances where the st attorney could be held to proximately cause it claims of damages where there acts are omissions leave doubt about the subsequent liability of claims of claims after their representation ends and that side of the texas case of the a real versus cooper which would involve a statute of limitations we're not dealing with the statute of limitations here but i submit that the defendants had a duty not to withdraw and leave bobbie jo with no option but to sign an unconscionable settlement agreement realizing that they couldn't take conditionals governing but they needed additional discovery especially under the circumstances where once we got involved and this court made its decision of september five two thousand and eighteen that we were able to obtain a settlement that was like two time or three times what the original settlement was pretty much the  agreed to the terms of the november twenty three two thousand and fifteen m s a that under the doctrine of judicial stop which you can't complain about her lawyers doing anything that caused her not to get a better offer or not to get a better result of the divorce case and i would submit initially that argument flies in the face of the decision by this court on september five two thousand and eighteen because if that  proceeding and receive some benefit from it and it's a discretionary equitable doctrine to be applied i would submit to the court it simply does not apply here st of all there's no inconsistent positions and cited cases to the court that a claim by a party to a divorce case against their spouse or ex balance as distinct from a claim against the attorney for advice the attorney gave that party to the divorce case during the proceedings so it's not the it's not the same issue as to whether or not the defendants in this case were negligen attorneys the issue in the divorce cases simply what is the marital property and what is the fair share of the marital property in this case the argument is the attorneys by their  violations of their duties to the plaintiff in this case prevented her from getting a much better settlement or resolution through the trial on the merits because they did not take discovery discovery cut off was occurred and they couldn't get it extended they admit they didn't have sufficient discovery and in addition they clearly made a mistake by allowing kind of floats to get an order in the rd divorce a case in forcing the rd divorce decree to order by me joe to transfer the marital home back to kenneth falls  when issuing it to bobbie jo and ken a false jointly had been issued after they remarried the deed being in two thousand and eleven they remarried in two thousand and ten and the in ring park's case provides clearly that the court in the rd divorce case did not have the authority in other words the rd divorce decree to the extent it had not already been fulfilled was no longer enforceable because the parties had remarried and they would have to start from scratch with respect to their divorce proceedings in the subs subsequent nourse case in this case the th divorce case so i would say in re parks just as a matter of law establishes that the defendant in this case breached their duty in permitting the can as well to obtain a judgment in the rd divorce case ordering by me dzogchen transfer of the marital home worth one hundred thousand manifest weight of the evidence but the cases they cited were bench trial cases in which there had been findings of fact an evidentiary hearing and there there was no evidentiary hearing in our current case and the findings of fact simply do you know is a standard and then with respect to the section sixteen i'm sorry with respect to section six hundred and fifteen motion to dismiss the defendant state a lot of facts and which are based on their motion to dismiss the original complaint and their st motion to dismiss the st amended complaint as well as their nd motion to dismiss the st of many complaint and they cannot rely on those facts with respect to the six hundred and fifteen dollars motion to dismiss which has to be based simply on the facts that are alleged in the st amended complaint i believe i've pretty well covered my points if there's any questions i'm almost out of time but i that's pretty much the argument  count could you speak up a little bit and maybe get closer to my sure your honor this better yes may please the court counsel  we believe that the trial court decision should be affirmed by this court the plaintiffs simply cannot assert a claim for legal malpractise as a matter of law and there's two really critical facts that support our position your honors st of all but lake lawyers the defendants were not attorneys of record or bobby joe cole when she unilaterally decided to enter into the marital settlement agreement secondly there was no deadline there was no trial setting requiring her or sing her to act at the time that she did when she acted against her prior attorneys advised against the prior advice of mr blake it is lawful she went ahead and entered into this marital settlement agreement when she didn't have to there was no pending here and there was no trial so she did this all on her own it was simply a situation where she when she was represented pro se and her soon to be allege but the facts are actually a little bit different i mean she negotiated the settlement agreement on her own it was a it was against our advice and because she wanted to go through with it and on top of it she tells us that what they're going to represent to the court isn't the complete agreement that she's now negotiated with her soon to be ex husband that he's going to get her money separately from what's going to be on the record and we say we're not going to be a part of that you need to let us do her job and she's like no i want to go through with this particular settlement agreement and then we say well we can no longer be your attorney because we are then in a conflict position with her which is following our ethical responsibility so we withdrew not because we didn't feel like she had a case or that we weren't prepared to go to trial we withdrew because she was bound and determined to accept a settlement that we thought was not in her best interest and ethically going to do something which we didn't think was appropriate in front of the court or as an officer of the four so if it's a law it's a lot different than the case where we were would have been different if she was set for trial and we withdrew the morning of trial and she was left with no other option but to accept what she now claims is an unconscionable settlement that's not what happens here we withdrew she could have had twenty one days under the supreme court rules to get other counsel and to proceed she decides not to do that and then later on that morning enters into the settlement agreement on her own which judge commerce at the time you know put on the record that she had agreed to the withdrawal of the blake defendant as her attorney and then she on her own was going to proceed pro se which she does and then she they go through the agreement but also filed a suit against my clients that in this legal malpractise case under the law of lawyers duty to exercise due care terminates when the attorney client relationship terminates when there are circumstances which there remains a viable cause of action here there was always a viable cause of action after the blake defendants with through she could have gotten another attorney she should have gone to trial counsel says that you know the resolution of this case needed to be done primarily through trial because mr fultz was not going to offer any reasonable settlement to her which she knew that and she could have gone to trial there were all sorts of mechanisms that you can utilize under discovery rules to  material prior to trial there could have been two hundred and thirty seven requests for information from mr fulls made available so that during the course of a trial there could have been a better settlement agreement assuming that again that you know at the time that she entered into this it was unconscionable now i think that that makes you know a big difference if she's got a viable cause of action at the time the attorney withdraws which is exactly what the case was here and then she on her own under no legal compulsion to enter into a settlement agreement at that time it was ahead and enters into a settlement agreement that's essentially on her and in order to show a bank a legal malpractise case you have to show that st of all or is a duty by the attorney there's a question asked whether or not there was a duty here obviously with the blake defendant because they had withdrawn and their duty should end it that or point in time was there breach of the duty was it proximate cause and did it cause damages she can fulfill the proximate cause ation requirement for a legal malpractise case when she voluntarily enters into an agreement which she was not compelled to do so pursuant to the circumstances that were created by the lawyer this case was not set for trial there was not even a scheduled hearing on the morning of november th two thousand and fifteen when this marital settlement agreement was center so and i think there is the case laws clearview if we look at the land versus greenwood or the mitchell case that we've cited in our priest or even this other case nettleton versus og still the courts say you know when there's a viable cause of action in it and in circumstances of litigation which this was this isn't a situation where the lawyers prepared probate documents or contract documents in which whatever the lawyers had done was the way that it was going to end regardless of whether they were representing her at the time this is a situation where she had an opportunity to proceed with her divorce she didn't want to proceed with her divorce she chose of her own accord to accept the terms of this marital settlement agreement and agreed on the record that this marital settlement agreement was acceptable to her and now she says well i was under xanax and i was under the worsening control of her ex husband and i wasn't thinking clearly that's why when an attorney withdraws the supreme court allows twenty one days to get another lawyer so that you know when no one is forced to do anything that she decided on her own to waive all those rights to enter into this marital settlement  again she did this unilaterally and she did it against the advice of the defendant attorneys prior to the time that they withdrew they were telling her don't do this so if they're telling her not to do this which is there you well i've looked all over your honour's for cases and there isn't a single case that says that when the client after the attorney has withdrawn enters into some sort of an agreement when they don't have any legal compulsion to do so is can then go back at their lawyer this isn't a situation where the scores of probably aware of when you're claiming that the attorney gave you wrong advice in terms of entering into a settlement and now you learn that it's insufficient we were her attorneys at this time we were urging her to do that she did this all on her own and therefore she cannot as a matter of law show that she was proper show that the defendant's con doc was we have the argument of judicial of stoppel again this is a situation where she has decided to accept a settlement contrary to  previous lawyers advice but she decides to accept it and then now she's turning around and saying oh oh no i didn't really understand the terms of it or what i was getting under the settlement agreement and therefore it's the agreeing as to exactly what he's getting and then he turns around and he tries to sue the lawyer saying well i didn't understand what i was doing and therefore i'm going to be able to sue you for malpractise because you didn't explain particular terms the terms were clear you know if you understood them just because you're a lay person doesn't mean that you should be able to say oh well i didn't understand those so much these lawyers fall  and there are several cases like that in the divorce situation which is similar to what we have here even though we weren't even representing her we weren't even telling her to accept the terms  as for example in the case of mitchell we're vs we're on and we weren't even a lawyer at that time but on her own she decides to accept these things and now she's saying oh no this was all wrong i didn't understand what i was doing it's the lawyers fault and else what if what about their argument that yeah that look i would have been in that situation if you guys hadn't told me to sign this deed or you had you know  a discovery got off we didn't miss any discovery kota st your honor there was plenty of discovery that had been undertaken in this particular case mr the re wants to refer to the fifty two thousand dollars that's reflective of the work that was done on behalf of mrs bowles during the pendency their representation of her there was discovery that had been done we were concerned that mr mr files was not being completely honest in all of this the discovery was or and again we're getting now into the facts as opposed to  for example you know his computer system miraculously is not recoverable and we're trying to find out what it is it's a killer assets are and how he makes money and things of that nature those things were all going on so there was plenty of material that we had already had that we could utilize at trial in order to achieve the proper result for again she was the one that was she on her own was the one that negotiated this particular settlement that she ultimately agreed to with her husband that was not done with mr blake's  dmission that wasn't done it wasn't what mr blake and his lawyer and the lawyers in his firm expected to achieve here but that was something she decided to do on her own if this business prior divorce and whether that particular piece of property was then property a joint property or property that was subject to distribution in the th divorce all property right or share to the value of that particular property didn't matter really what happened in two thousand and six so that the actual order that was answered was divorce or the th marriage i mean these people had been married for on and off for four times over twenty five years and were mrs pope's the claim that she didn't know what the holdings were of her husband it's a little bit hard to swallow your honor so again we believe that when she goes on the record and says i understand these attorney separates this case from any other case and again our duty and it was at that time that we terminated our relationship with her and it was situation where she was under a legal compulsion to do act that particular day the case wasn't set for trial there wasn't even a scheduled here she did disappear owner court and she shouldn't be able to at that point to then turn around a year later and say oh i had misgivings over what i did and that's it was the previous lawyers fall in fact it's even more interesting that they were able to set aside or move forward with the fourteen no one motion of a kate this marital settlement agreement she goes through discovery and then now has yet entered into another marital settlement  agreement now she's two agreements passed where she was with the blake law firm and yet she still claiming that somehow he was at fault and as a matter of law u nder a proximate cause and duty analysis we shouldn't over her any duty because we withdrew at a time when she had a viable claim she had numerous litigation options available to her to pursue yet she decided not to undertake those options she decided on her own on the record to accept a particular distribution of property under that marital settlement agreement and that should be the end of it she shouldn't then be able to come back you're a lawyer and say oh you put me in this position we didn't put her in that position she chose put herself in that particular position and she wasn't required she be raised at any time and that's exactly what we did under these particular circumstances and i believe that the this is properly in front of the court it is the no vote for this court to make the and they did not recommend settlement the discovery deadline had expired and the defendants filed a motion to extend it what was denied prior to november twenty three two thousand and fifteen so a new lawyer and that a new that certainly there would be an issue of fact as to whether a new lawyer would be expected to come in and persuade the court to allow additional discovery when the court had already denied a motion to extend the deadline with respect to the statement that a j made several times that the november twenty three m s a was against their advice there is nowhere in the st a minute but just in that that's alleged and we're here on the on the six hundred and fifteen dollars motion as to what's alleged in the st amendment petition if we had a summary judgment motion and they made that argument we could respond to it if we had a trial and they presented evidence we could respond to it but we're not here on a summary judgment motion we're not here after a trial so it's not proper to argue that the november twenty rule twenty three dollars order which has no presidential value and as we stated in the reply brief is contrary to the decision in the reported case of wolf versus the  thousand dollars to kind of wells that order was clearly contrary to the law the divorce court in the rd divorce case could not enforce the divorce decree in the divorce once the parties remarry and once they and once they were in their th divorce case that's the inri parks case so it was definitely a breach of an attorney's duty to permit that to happen and then to persuade the client to sign the quitclaim dade and then not to appeal that decision so that means going into the property settlement a trial in the th divorce case the evidence is that b jo false claimed the deed back to canada for a quick claim the marital home back to two kenneth wells it's a clear case of violation of the attorney's dirty to represent the client especially after they had been paid fifty two thousand dollars and they had hadn't even completed discovery which they had met so this is a case where st of all the doctrine of judicial estoppel clearly does not apply it's not the same issue it's not the same claims and the warhorses one case clearly points out that you can sue an attorney for breach of the attorney's duty irrespective of the outcome of the previous property settlement agreement i would submit to the courts that the trial court clearly heard in dismissing the st a minute complaint under section six that jane because it does state a cause of action there are just you did fax what i heard from a j was basically a closing argument after a trial on the merits but we're not here to do that and the trial court also earn an dismissing under section six