Part I, Chapter 3, The Windermere Lawsuit
Case No. Case No. 85563-3
The Supreme Court -- Chapter Outline
What the Court of Appeals Did
What Degginger et. al. Did Not Do
Social Studies 101 -- Courts “Make” Law
The Work of the Supreme Courts
What Are Precedents?
Conflicts in Laws and Precedents
We Want “Costs of the Suit” Argued to Supreme Court
Supreme Court “Has No Discretion”?
“Only the Legislature Can [Change the Law]”
“Purpose To Deceive”
We Remind Degginger of Changes to Law by Judicial Precedent
CPA Is to Be Liberally Construed
We Give Directions re: Supreme Court Petition
February 16, 2011: Phone Call. “Let’s Do the Math”
Degginger Gives Two Spurious Reasons for Refusing Our Directions
We Tell Degginger to Take Action
We Ask Degginger “Will You Withdraw?” -- His Misleading Response
Again, We Direct Degginger to Do His Job
Degginger Needs Decision “Today”
We Instruct: “Do Not File As Written”
We Ask for an Extension
Supreme Court Repudiates Degginger’s Filing Disinformation
We Want “Second Pair of Eyes” on Response
McBride Refuses to Seek Continuance
Degginger Insists on Phone Call
February 28, 2011 -- 11 a.m. Phone Call Recorded
Gun to Head, We Submit
Degginger’s Conversion of Our Law Suit Now a Matter of Record
Willing to Lose All
Billed for Non-Existent Conference Call
“The DeCourseys Were Very Difficult Clients”
Our History of Correcting Errors and Improving Briefs
Appellate Lawyer’s Note of Regret
Unable To Terminate Degginger & Company: Court Events in Motion
Bloors & Ruebels Speak Out
We Denounce Attempt to Weaken Us
“Don’t Work on Remand”
Untruth About Timing of Partial Payout
August 3, 2011: We Terminate Lane Powell
August 3, 2011: Why the Screeching Hurry to File a Lien?
Subsequent Lies About Sequence of Events
Sequence of Events Recapped
Paul Fogarty, Esq. Comments on Attorney Fee Rate at the Appeals Court
Supreme Court: Lane Powell’s Fees Unreasonable
Degginger Added No Apparent Value
Fogarty on Supreme Court Ruling
The Nordstrom Greed Revisited
Part I, Chapter 3, The Windermere Lawsuit:
The Supreme Court
Case No. 85563-3
Note: Some Exhibits have been redacted in accordance with a settlement agreement
the contractor who ruined our house.
McBride & Degginger Lie to Us,
Refuse to Follow Our Directions, and
Fail to Provide Competent Representation
Overview. In this chapter, we will see how Grant Degginger and Ryan McBride violated
Lane Powell's contract with us, violated their fiduciary duty to us, and violated three key Rules of Professional
1.1 A lawyer shall provide competent representation to a client. Competent representation requires the
legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
1.2(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the
objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they
are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out
8.4(c) It is professional misconduct for a lawyer to ... (c) engage in conduct involving dishonesty, fraud,
deceit or misrepresentation.
What the Court of Appeals (“CoA”) Did. As mentioned earlier, the trial court based its awards to us
in part on the Real Estate Purchase and Sales Agreement (“REPSA”). The Court of Appeals made an error
when it struck the REPSA foundation of the award from our judgment.
(Exhibit November 8, 2010, Pg. 39, Ftn. 24.) The CoA did that even
though the REPSA foundation for the award had not been challenged by the Appellants (Windermere, etc.).
In striking the REPSA as a basis for the awards, CoA relied on the Nordstrom
v. Tampourlos precedent (described in Chapter 2), disallowed the awards that exceeded the Nordstrom rule,
and thus trimmed our award by $45,000. (Exhibit November 8,
2010, Pgs. 38, 39.)
Under the same precedent, the CoA also ruled that the fees expended at the CoA must be segregated by
issue, and only the fees expended on the issue of the CPA could awarded. If the REPSA foundation had been left
intact, the Nordstrom precedent would not have applied and this ruling would not have been made. As it
was, we lost us another $50,000 (approximately) in fees that should have been awarded.
(Exhibit November 8, 2010, Pg. 39)
What Degginger et al. Did Not Do. Lane Powell could have filed a motion to modify at
the CoA, and competent representation would have done so. Certainly McBride and Degginger possessed the
competence to write and file such a motion, but by failing to do it, they failed to provide such competent
representation. This failure was a violation
of RPC 1.1
“A lawyer shall provide competent representation to a client.” The deadline came and went, and Land Powell
said not a word. The facts suggest that the Degginger/McBride failure to protect our awards was not the result of
incompetence, but unwillingness to pursue our best interests.
When Windermere petitioned the Supreme Court to hear the case, we urged McBride to cross-appeal the
losses at the Court of Appeals, but he refused. Degginger then backed him up and together they lied about the
laws and the function of courts to us to avoid filing a cross-petition.
The dispute was recorded in a lengthy email exchange through the month of February while the
deadline for the filing the answer to the petition ran down. In that time, Mark's father died and Lane Powell sought a
short extension. In the dispute, both Degginger and McBride stated categorically that:
- The current limitation on the CPA award was set by statute (it was not, of course; it had been set
by the Supreme Court in the Nordstrom v. Tampourlos decision),
- The Supreme Court did not have the “discretion” (power) to override the alleged
Now let’s have closer look.
What is Function of Supreme Courts
Social Studies 101 -- Courts “Make” Law. Even high school students are expected
to know that courts of law can “make” law by establishing legal precedents. See, for example, homework help
FunnelBrain.com (cached copy) or
The Social Studies Help Center (cached copy)
The Work of the Supreme Courts. Supreme Courts are concerned with the effects
of law on society. They also work to resolve real or apparent conflicts in law, overruling statutes and precedents as
new information comes to them. Supreme Courts also restore legislative intent to the application of laws.
What Are Precedents? Through their rulings, Supreme Courts can effectively “make”
law. In the U.S., the
Marbury v. Madison Supreme Court ruling in 1803 most famously established that courts can void or interpret
statutory law. And courts can change their interpretations, and thus change the law: The Supreme Court decision
of 1896 in Plessey v. Ferguson permitted racial segregation. Looking at new social sciences data in 1954,
the Supreme Court in Brown v. Board of Education prohibited racial segregation.
In like fashion, state Supreme Courts also “make” law. In the 1986 Washington case,
Hangman Ridge Training Stables v. Safeco Title Insurance Company, the Supreme Court laid down the five elements
a private plaintiff must prove under Washington's Consumer Protection Act ("CPA"). (See explanation
at Exhibit June 10, 2012.)
PRECEDENT: A case or issue decided by a court that can be used to help answer future legal
questions. See stare decisis.
The point hardly needs arguing. [Note: Administrative courts in regulatory agencies can also
Conflicts in Laws and Precedents. Under CPA, we were awarded the “costs of the
suit,” as provided by RCW 19.86.090 (Consumer Protection Act). How does that comport
with Nordstrom which allows recovery for only a fraction of the costs? On this point, there is an apparent
contradiction in Washington law. RCW 4.84.010
defines “costs” narrowly. On the other hand, the Consumer Protection Act,
(RCW 19.86.090) uses a different definition of
“costs” to indicate the whole of the costs, of which attorney fees are a part. The CPA provides that
“the costs of the suit, including reasonable attorney fees” are to be awarded.
We argue the CPA was intended by the legislature to cover “the costs of the suit.” There
was ONE lawsuit. The costs of answering Windermere’s “shotgun” appeal should not be segregated
into causes of action, a la Nordstrom. In Sign-O-Lite Signs, Inc, v. DeLaurenti Florists, Inc., the
Court of Appeals noted that the policy behind the award of attorney fees in the CPA is “aimed at helping the
victim file the suit and ultimately serves to protect the public from further violations.”
(Exhibit January 21, 1992, “Attorney Fees on Appeal,”
Pg. 7.) The CPA cannot fulfill that purpose if the plaintiff is not fully compensated for “the costs of the
A strategy like Windermere’s would ensure that, practically speaking, a CPA litigant could
never recover the legal fees expended on a successful CPA suit. A defendant could simply appeal on myriad grounds
(grounds not connected with the CPA) and the plaintiff’s actually legal expenses would be driven into the
stratosphere, with no chance of recovery. A strategy like that would effectively vitiate the Consumer Protection
Of course Windermere must have known about the “segregation of costs,” and doubtlessly
that is why its attorneys took the shotgun approach: To the Court of Appeals, Windermere cited fourteen (14)
assignments of error and seven (7) issues on appeal, with six (6) sub-issues. Windermere was ensuring that individual
CPA homeowner plaintiffs, in the long run, could not afford to sue Windermere, despite the existence of the CPA’s
“cost of suit” award.
We believed that the Supreme Court, faced with new information concerning the use
of RCW 4.84.010, the Nordstrom
v. Tampourlos precedent, and Windermere’s strategy, would have arrived at a decision to safeguard the
effectiveness of the CPA and prevent the wrongful use of court process. For prior discussion of this matter, see
Windermere Petitions Supreme Court
We Want “Costs of the Suit” Argued to Supreme Court. Not satisfied with
the Court of Appeals ruling, Windermere petitioned for review by the Supreme Court.
Since the Supreme Court is concerned with social policy, we felt certain the judges would want to
know how the Consumer Protection Act was being thwarted: Our case, and others we had learned about and publicized,
showed that corrupt government regulatory agencies permitted Windermere to violate real estate licensing laws and the
CPA. Unprotected consumers were then forced to seek remedy through the courts, whereupon Windermere used
“scorched earth” litigation tactics. The Windermere victims could not afford the scorched earth
litigation game and were quickly brought to their knees. Typically, they were forced to settle for pennies on the
dollar and sign an onerous secrecy agreement, which Windermere called the “Dark Clause.” Our Lane Powell
attorneys had been fully informed of these facts and given the documentation, so thoroughly provided in our
We directed Lane Powell to cross-petition on the adverse Court of Appeals decisions described in
Part II, and to give the Supreme Court new information on how the CPA was being undermined and voided. We had
written more than three pages of text to include in our Answer to Windermere’s petition, and sent it to McBride
on February 6, 2011, along with the draft we had corrected. On February 7 we sent an addendum. Our text can
be seen on pages 21, 22, 23, 24, and 25.
(Exhibit DeC Email February 6, 2011 at 8:53
PM.) (February 7 addendum attached).
Degginger & McBride Lie About Function of Supreme Court
The lies told to us by McBride and Degginger concerning the Supreme Court can be found in the email
exchanges that are arranged in date order: Lane Powell’ email can be found at Exhibit LP Email. Our email can be found at Exhibit DeC
Supreme Court “Has No Discretion”? McBride refused to follow our direction, telling a lie
not even a high-school student would believe:
The fact remains that we are entitled only to fees on the CPA claim; the Supreme Court, like the
Court of Appeals, has no discretion in the matter. I know we want more, but the law does not allow
more. (Exhibit LP
Email February 7, 2011 at 10:59 AM)
We responded, expressing disbelief:
The Supreme Court is concerned with social policy. Access to justice is a social policy issue.
And so is litigation by attrition.
The law allows what judges say it allows. That’s the nature of court decisions. One year
slavery is OK. The next year slavery is not OK. One year abortions are a no-no. The next year,
abortions are OK. (Exhibit DeC Email February 8, 2011 at
We directed McBride to include the pages we had written for Supreme Court review.
(Exhibit DeC Email February 8, 2011 at 3:19
Lane Powell’s website claims its attorneys “know the territory.” McBride and
Degginger must have known that segregation of costs at the Courts of Appeals level would have deleterious effects on
CPA plaintiffs, and that the “segregation of costs” policy in Washington was established by Lane
Powell’s own Nordstrom precedent, not statute. Messrs. McBride and Degginger surely knew this because
their own firm, Lane Powell, argued in the Nordstrom v. Tampourlos case -- and was chastised for fee padding.
McBride and Degginger knew Windermere’s history of scorched earth litigation, and must have
been able to predict its the consequences in combination with the Nordstrom precedent: We’d be severely
“Only the Legislature Can [Change the Law]”. Grant Degginger entered the
discussion we had been having with Ryan McBride. Degginger echoed McBride’s earlier lie, stating that the CPA
did not permit what we were requesting and that the Supreme Court had no power of decision over the matters we wanted
The only way to change that is to change the law. Only the legislature can do that.
(Exhibit LP Email February 14, 2011 at 1:04
With those comments, Ryan and Degginger were feigning ignorance that Supreme Courts can indeed
change “the law” -- by judicial interpretation.
We responded, stating the obvious once again:
Grant, judges interpret or “change” the law every day of the week. One week slavery is OK,
the next week it is not. One week abortion is not OK, the next week it is. OK, these are federal
examples. How about something more homegrown -- Hangman Ridge, for example? Lawyers with chutzpah make new
arguments every day of the seek, particularly to Supreme Courts, and judges with chutzpah often see the wisdom of the
arguments. (Exhibit DeC Email February 14, 2011 at
Indeed, it is so well known that Supreme Courts effectively “make” law that Barack Obama
earned national derision when commenting on ObamaCare, he said he was “confident the Supreme Court will not take
... an unprecedented, extraordinary step of overturning a law.”
Time laconically commented: “Apparently, the Harvard law grad missed the lecture on Marbury
v. Madison, the landmark 1803 Supreme Court case that helped establish judicial review.” (Exhibit
April 5, 2012.)
Moreover, in our opinion, Degginger and McBride must have been aware of precedent-based law and were
knowingly lying to us, betraying their fiduciary duty, and committing malpractice.
[Note: See “Lawyers as Liars,” Chapter 8 in “The Moral Compass of the American
Lawyer,” by Zitrin & Langford, op. cit. The authors refer to a study conducted by Iowa law professor
Gerald B. Wetlaufe in which he categories the most common justifications lawyers invent for lying, Pg 164.]
It is professional misconduct for a lawyer to:
... (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
Degginger charged $10,186.50 to our case, Ryan McBride charged $115,793.50, for a total of
$125,980. Why should clients pay attorneys who lie to them? Lying to the client is hardly above stealing
from the client.
In addition to charging us for the time they spent lying, their refusal to perform their duties
damaged us by an additional $100,000 in lost awards at the Court of Appeals -- “costs of the suit” claims
that were never presented to the Supreme Court -- costs that Windermere should have paid but were charged to us.
Definition of Fraud in Rules of Professional Conduct
“Purpose To Deceive.” Whether our claims against Messrs. McBride
and Degginger would result in a conviction of fraud by a court of law is surely not a concern in this report:
The McBride/Degginger statements that only the legislature could change the law was fraud under the definition of
the RPC, Rule
 When used in these Rules, the terms "fraud" or "fraudulent" refer to conduct that is characterized as
such under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. This
does not include merely negligent misrepresentation or negligent failure to apprise another of relevant
information. For purposes of these Rules, it is not necessary that anyone has suffered damages or relied on the
misrepresentation or failure to inform.
Contempt of Judicial Process Revealed by Blatant Nature of Lies
The lies concerning the powers of the Supreme Court and pretense that responses to petitions must be
driven down to Olympia were blatant, conspicuous and obvious. Those lies reveal the contempt for truth, contempt
the sanctity of the judicial process, and contempt for us. Of course such lies are a violation
Such blatant, conspicuous, and obvious lying by officers of the court hold the entire Bar and
judicial process up to public disrepute.
Degginger Refuses to Accept Our Directions
We Remind Degginger of Changes to Law by Judicial Precedent. In an email exchange,
we told Degginger that:
... judges interpret or ‘change’ law every day of the week ... One week abortion is
not OK, next week it is ...
We also referred him to Hangman Ridge. We told Degginger:
Lawyers with chutzpah make new arguments every day of the week, particularly to Supreme Courts, and
judges with chutzpah often see the wisdom of the arguments.
(Exhibit DeC Email Feb. 14, 2011 at 3.28
In our opinion, Degginger’s and McBride’s refusal to accept our directions was a
1.2, Scope of Representation and Allocation of Authority Between Client and Lawyer.
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the
objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they
are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the
CPA Is to Be Liberally Construed, We told Degginger:
... our lawsuit was a CPA suit from the very beginning ... There is nothing in the CPA statute that
says, ‘When those who are found in violation of the CPA file an appeal, and bring up all matters under the sun,
moon, and stars in that appeal, the victims are not entitled to attorney fees when they defend themselves
... Obviously, such neutralization was not the legislative intent when the legislature wrote the CPA must be
We told Degginger that Windermere, in its appeal strategy, effectively neutralized the Legislative
intent of the CPA. (Exhibit DeC Email
February 14, 2011 at 3.28 PM.)
We Give Directions re: Supreme Court Petition. We clearly directed Ryan McBride to
draft two issues for cross-appeal.
(Exhibit DeC Email February 15, 2011 at
We explained to Degginger:
The economics of the situation do not leave us much choice ... giving away $150-175K is simply beyond
consideration. You’d feel the same if the money were coming out of your pocket.
(Exhibit DeC Email February 15, 2011 at 8.39
We continued to try to persuade McBride and Degginger to do what we want done.
(Exhibit DeC Email at February 15, 2011 at
February 16, 2011: Phone Call. “Let’s Do the Math.” On February 16, 2011,
Degginger called with Ryan McBride and Andrew Gabel on the line. We challenged Degginger’s statement during
that call that we were awarded “a million and a half” by the courts. We invited Degginger to
“do the math.” We reminded him of his refusal to address other points we raised: (a) the points we raised
in our Nov. 7, 2010 letter, (b) the 9% interest Lane Powell is charging us while having agreed without our permission
that Windermere would pay us 3.49 percent, (c) Lane Powell’s faulty advice we’d owe no taxes on our CPA
awards, and (d) Lane Powell’s refusal to attempt to hold costs down by requesting CR 11 sanctions.
(Exhibit DeC Email February 17, 2011 at 8:59
Degginger Gives Spurious Reasons for Refusing Our Directions. Degginger replied:.
First, we concluded that the arguments were not supported by the statutes and case law.
Second, we do not believe that we could argue that they represented a reasonable extension of existing law.
(Exhibit LP Email February 17, 2011 at 10:49
Degginger also stated a cross petition was “not in our best interests” because our
“substantial” victories might be lost. See below for Lane Powell’s characterization of the
controversy: “The DeCourseys Were Very Difficult Clients.”
We Tell Degginger to Take Action. We asked how a CPA’s plaintiff’s loss of
$150,000-$175,000 could be regarded as “having won” a CPA lawsuit.
When we’ve raised the issue of our loss, you have recommended that we take the matter up with the
legislature. The Legislature could do nothing about our loss. And we’re in court now. The court
*could* do something abut it.
(Exhibit DeC Email February 18, 2011 at 7:57
Degginger’s Deceptive Answer Leads Us to Brink
We Ask Degginger “Will You Withdraw?” -- His Misleading Response. We asked
Degginger if Lane Powell intended to withdraw from our case rather than follow the instructions we had given them.
Is it your intention that Lane Powell withdraw as our counsel if we instruct you to broach the
subject of Windermere's vitiation of the Consumer Protection Act through litigation attrition warfare?
(Exhibit DeC Email February 23, 2011 at 2:58
Degginger told us:
We do not wish to withdraw. (Exhibit LP Email February 24, 2011 at 9:12 AM).
Again, We Direct Degginger to Do His Job. We reminded Degginger:
We warned you about Windermere’s attrition warfare program again and again. But you refused to
write motions for CR 11 sanctions Please tell us about Lane Powell’s policy of not writing CR 11 motions, and how
it serves and protects clients like us who can’t write off the losses.
Snow we can take. A snow job we decline to take ...
You insist what is happening to us is ‘the law’ and recommend we go to the Legislature.
But you cannot provide us with a subsection of RCW
19.86 that provides for our situation nor sanctions it. In fact, what is happening to is contrary to
Legislative intent. Read RCW
19.86.920. ‘Liberally construed’ does not mean vitiated or amputated through litigation attrition
warfare. The CPA fee and costs provision was not intended to trap the litigants, to bleed their damages award
from them.” (Exhibit DeC Email February
25, 2011 at 8.07 AM)
Degginger Needs Decision “Today.” Degginger wrote that the reply brief to
Windermere’s petition was due in at the Temple of Justice in Olympia on Monday had to be driven down there.
(Exhibit LP Email February 25, 2011 at 9.30
AM). Degginger says:
Lane Powell represents you ... Do we have authority to file the brief as written?
(Exhibit LP Email February 25, 2011 at 1:02
We Instruct: “Do Not File As Written.” We pointed out that we still had
until Monday to file, and that the Supreme Court accepted electronic fillings [i.e., there was no need to drive the
filing down to Olympia]. (Exhibit DeC
Email February 25, 2011 at 2.30 PM).
We Ask for an Extension. We had just received a short extension due to the death of
Mark’s father. We asked Degginger to seek another extension.
(Exhibit DeC Email February 25, 2011 at 3:22
We pointed we did not have to drive down to the Temple of Justice in Olympia to file the request --
that the Supreme Court accepts electronic filing.
Degginger’s Tall Stories About Supreme Court Filings
Supreme Court Repudiates Degginger’s Filing Disinformation. Degginger wrote of
the Supreme Court:
... they want responses to petitions for review to be filed manually.
(Exhibit LP Email February 25, 2011 at 3:35
After receiving that email, we called the Clerk of the Supreme Court, Camilla, at
360-357-2077. She told us exactly the opposite ... she was explicit. The Supreme Court does accept
electronic submissions of responses to petitions. We informed Degginger, stopping short of calling him a liar,
We are experiencing a crisis in confidence in you, Grant.
(Exhibit DeC Email February 25, 2011 at 3.59
Degginger Refuses To Have Work Reviewed
We Want “Second Pair of Eyes” on Response. Citing our crisis in confidence
in Degginger and citing at least seven (7) reasons why we suspected he had a conflict of interest, we told him we want
someone else evaluating what he was doing, and directed him to ask for an extension until March 7.
(Exhibit DeC Email February 25, 2011 at 3.59
Degginger & McBride Refuse to Seek Continuance. But Degginger refused to ask for a continuance so a second
pair of eyes could evaluate the case.
We don’t have a good faith basis for seeking another extension from the Supreme Court.
Email February 25, 2011 at 3:35
Without an extension, we had no time to have another law firm evaluate the case to see if the firm
would take it. Lane Powell’s outstanding invoice stood at approx. $350,000.
Like Don Corleone, Degginger Makes Us “An Offer You Can’t Refuse”
-- We Tell Degginger We Are Recording the Call
We accused Lane Powell failing to abide by its contractual obligations.
(Exhibit DeC Email February 28, 2011 at 7.08
Degginger Insists on Phone Call. After receiving our 7:08 am email, Degginger called on
the phone, stating that Messrs. McBride and Gabel were at his side, asking that both Carol & Mark get on the
phone. Carol explained Mark was unavailable, and asked that Degginger put into email what he wanted to say over the
phone. (Exhibit DeC Email February 28,
2011 at 9.51 AM, DeC Email February 28, 2011 at 10:08
AM; February 28, 2011 at 10.34 AM).
Degginger insisted on a phone call.
February 28, 2011 -- 11 a.m. Phone Call Recorded. We wondered why, after such voluminous
email exchanges, Degginger would phone us without warning and demand to speak to us. So we decided to record the
call. At first Degginger balked at being recorded, but we assured him it was perfectly legal and we intended to
do it. He then went on with the conversation signifying his consent. Ryan McBride and Andrew Gabel were
also with Degginger, he said. At the end of the call, Degginger confirmed that the conversation had indeed been
recorded. (Exhibit February 28, 2011 (1),
Transcript. Copies of the recording can be provided to properly constituted authorities.)
Gun to Head, We Submit. In the recorded phone conversation of February 28, Ryan
McBride told us what neither he nor Grant Degginger would tell us in writing: Unless we did what they wanted vis a vis
the Supreme Court, they would withdraw from the case, asking the court for a 30-day extension so we could find another
attorney. In fact, Degginger made us “an offer we could not refuse.”
Degginger’s Conversion of Our Law Suit Now a Matter of Record. As we have pointed out
in “Introduction: Our Support” and Chapter 1, conversion is the wrongful assumption of ownership of another’s
property. Clearly Degginger and his colleagues had converted our claims against Windermere to their own use and
Willing to Lose All. Several additional points must be made:
- Given that Lane Powell’s outstanding invoice was now approximately $350,000 and, given our debt picture, what
other lawyer would take the case?
- Even if the economics were not a problem, we did not have another lawyer lined up, and had no
guarantee we could find one in 30 days.
- Effectively, Lane Powell was telling us we could represent ourselves in front of the Supreme Court.
- Lane Powell was willing to risk losing the entire case (by having us argue pro se) rather than have the CPA
fee issue reviewed by the Supreme Court. That surely is powerful evidence of McBride/Degginger/Lane
Powell’s positional conflict of interest. That is, the evidence shows Grant Degginger was more willing to
withdraw, have us argue pro se in the Supreme Court, and potentially lose the case -- than he was willing to make our
CPA arguments. That is, Degginger/McBride were willing to risk the loss of hundreds of thousands of dollars
rather than show the Supreme Court that the Consumer Protection Act was being thwarted by the coordinated efforts of
Windermere, the Department of Licensing, and the Attorney General’s office.
Billed for Non-Existent Conference Call. On February 28, Degginger billed us two hours
of his time for “multiple” mails and calls to us, at $470 per hour, time spent refusing to follow our
directions. (Exhibit February 28, 2011 (2)).
On March 1, 2011, Degginger billed us another $470 for an hour long conference call.
(Exhibit: March 1, 2011) The March 1 call never happened. Our
last phone conversation with Degginger occurred on February 28, 2011, and was recorded.
Billing for non-existent phone call: $470
Ryan McBride Slanders DeCourseys in Court
Numerous Emails Show His Sworn Statement to Be False
“The DeCourseys Were Very Difficult Clients.” Less than two years later,
under penalty of perjury, Ryan McBride submitted a Declaration to the court, which stated, in part:
The DeCourseys were very difficult clients. A significant portion of Lane Powell's representation was
devoted to managing the DeCourseys' demands for Lane Powell to make outlandish and sometime frivolous arguments on
their behalf, including some that would not have been advantageous to their position. Their persistence in this
regard made the representation far more expensive then it needed to be. For example, in February 2011, Lane
Powell attorneys spent 10.9 hours responding to multiple DeCoursey emails and advising on the risks associated with
taking these positions. Ex. RR at 81-82 (describing G. Degginger's time responding to "multiple" DeCoursey
emails). (Exhibit November 30, 2012 (2), Pg. 3 at
Notably, McBride provides no specifics of the “outlandish” arguments we wanted him to
make. He does however mention the February 2011 emails during which we rejected the outlandish lies he and
Degginger told about the function of the Supreme Court and their refusal to follow our directions to protect the awards
the trail court had given us.
But from the beginning, we had been helpful, rather than “difficult” clients. As
already pointed out in Part I Chapter 1, we brought Lane Powell a well-developed CPA case -- we’d spent hundreds
of hours and tens of thousands of dollars developing it. We
- researched, identified, and developed the legal
theory that would win the case at trial
- prompted government investigations of the contractors and the Windermere
- identified many of the experts and witnesses that would be used at trial
- found a construction attorney
and his wife who had been similarly victimized by the agent and his business partner (proving the public interest
Consumer Protection Act (“CPA”) element)
- attended depositions
- served discovery requests on the
- wrote and filed our Third Amended Answer and Counterclaims -- which Lane Powell did not find necessary
Our History of Correcting Errors and Improving Briefs. Prior to McBride complaining that we were
“difficult clients,” we corrected him numerous times on the facts of the case, and suggested arguments that
he found valuable and used in the briefs; we helped him avoid pitfalls set by the Windermere lawyers, and clarify his
language for a sharper style. These comments in McBride’s emails tell the story:
Mark, thank you for your comments and suggestions. I accepted some, modified a few, and rejected
others ... I feel very strongly that this brief puts our best case forward.
(Exhibit LP Email February 7, 2011 at
[M]y plan is to finish the brief generally, and then use your materials to ensure I haven’t left
out anything important. When it comes to the Statement of the Facts, however, I may simply crib your excellent
narrative. (Exhibit September 9, 2009.)
I also carefully considered the style/grammar and substantive suggestions you sent me in redline.
For the most part, I incorporated your style and wording changes, and added some of the factual
detail/corrections. Regarding some of the additional argument you suggested, I incorporated some but not
all. The point about the [the contractor] settlement/allocation encompassing CPA attorneys fees was great, and I
added and embellished that point. Also on the Judge Erlick/Judge Fox atty's fees issue, I added a point about
Rule 54(b) based on something you suggested, as well as some input I got from Brent along the same lines. Both
aspects of the brief are stronger because of these additions.
(Exhibit October 2, 2009).
... I accepted almost all of your changes, which were well-taken, ...
(Exhibit October 5, 2009.)
Great. Thanks Mark. (Exhibit October 8,
When we corrected McBride’s confusion between two judges in our case, McBride emailed:
By the way, when I wrote it should be Fox, I meant it should be Erlick, per your catch. It[’]s corrected in the
motion. (Exhibit December 1, 2009.)
When we gave McBride a list of moot questions in preparation for oral argument:
Thanks Mark. This looks good. Feel free to provide answers. Answers are always
good. (Exhibit January 26, 2010.)
When McBride argued in a draft that there was no waiver of rights because we had not signed a written
waiver, we corrected his misunderstanding of the law: by statute, those rights cannot be waived.
Sure, I'll take out those words. (Exhibit November
23, 2010 (1).)
Thanks. I will make these changes and file tomorrow. Our offices are closed today. Have
a good thanksgiving. (Exhibit November 23, 2010
When we suggested he borrow argument from the amicus brief:
Okay. I'll try to make the stuff in section II clearer, and I'll add the sentence about the amicus
and another sentence summarizing what the amicus said re Windermere litigation tactics. (Exhibit
May 16, 2011 (1).)
When we suggested he include the amicus brief as an exhibit:
I don't see why I can't attach the amicus brief as an exhibit. I'll do it.
(Exhibit May 16, 2011.)
Mark -- I have revised the response per your input. (Exhibit
July 13, 2011.)
Every lawyer should have clients who are willing and able to contribute to the case like
that. But McBride’s attack declaration of November 30, 2012 is aimed not just at discrediting us, but also
at covering Degginger’s pique: We understood the function of supreme courts and recognized McBride’s
and Degginger’s lies. We also objected to Degginger hijacking the case to avoid damaging his political
supporters (the real estate and development industry) and leaving the CPA case law in a weakened state to protect large
corporations generally -- and Lane Powell’s clients generally. Because we objected to Degginger setting the
goals for the litigation, McBride called us “difficult” clients.
Here we were -- on the eve of having to respond to Windermere’s Supreme Court petition.
With no continuance, the Allied Law Group had no time to evaluate the issues of our cross-petition to the Supreme
Court, and of course could not agree to represent us. And we did not have the skills to represent ourselves
before the Supreme Court. Unless we buckled under to Degginger, we’d face catastrophe. With a gun to
our heads, we submitted.
Appellate Lawyer’s Note of Regret. Michele Earl-Hubbard, of the Allied Law Group, with whom we had been
consulting during February, 2011, wrote:
I am sorry your lawyers would not give you the extension you requested so you, and we had more time to
examine the matter.” (Exhibit March 8, 2011)
Unable To Terminate Degginger & Company: Court Events in Motion. Much as we wanted to rid
ourselves of Degginger and his crew, we could see no way of doing so without causing ourselves mortal injury. From
February to July, the case was too complex and moving too quickly -- not a good transition time. We decided that as
soon as we could, we would terminate Lane Powell and hire other counsel We cashed in our last asset and life insurance
policies to pay the new lawyer. These were the court events that were in flux at the time:
- February 28, 2011: Our Response to Windermere’s petition to Supreme Court was filed without the
- April 27, 2011: The Supreme Court Commissioner filed the Order Terminating Review and inviting our Motion for Fees
under RAP 18.1.
- May 6, 2011: Our Motion for Attorney Fees was filed.
- May 12, 2011: Windermere filed an Objection arguing that the fees should be segregated.
- May 17, 2011: DeCoursey Reply to Windermere’s Response
- May 25, 2011: The Commissioner ruled that the basis for the fee award was RAP 18.1, not the CPA, but Lane
Powell’s fees for answering the petition were not “reasonable;” both the hours and the hourly
rates were excessive.
- June 15, 2011: Windermere filed a Motion to Modify the Commissioner’s ruling.
- July 14, 2011: DeCourseys/Lane Powell filed a Response with a cross-motion to modify, arguing that
both the fees and hours were reasonable.
- July 28, 2011 Windermere filed reply.
- August 8, 2011: A three-judge panel, including the Chief Judge, reviewed the matter and denied both
Windermere’s and Lane Powell’s motions.
In the accounting above, “Court Events in Flux,” we did not mention one significant
event. This event again showed that the Lane Powell attorneys of whom we complain were following their own
agenda, not serving ours. This event was their reaction to the Amicus brief.
McBride Objects to Talmadge/Fitzpatrick Amicus Brief
Bloors & Ruebels Speak Out. Several Windermere victims, Mr. and Mrs. Bloor and
Mr. and Mrs. Ruebel -- filed an amicus curiae brief in our support in the Supreme Court
(Exhibit March 21, 2011). The brief was written by Peter Lohnes
of the Talmadge-Fitzpatrick law firm. The Motion for Leave to File Brief of Amicus Curiae stated:
Both the Ruebels and the Bloors are familiar with the petitioners’ litigation strategies and
arguments, having prevailed in costly and time-consuming lawsuits against Windermere and its agents involving
violations of the Consumer Protection Act (“CPA”) and breach of fiduciary duty. Their prior
experience vividly demonstrates that there are no legal issues involved in this case warranting review by this
Court. (Exhibit March 21, 2011, Motion, Pg. 2.)
The brief went on to state:
The amici have an interest in this case because their disputes with Windermere affect the public
interest where others, like the DeCourseys, have been or will be injured in the same fashion they were.
(Exhibit March 21, 2011, Brief, Pg. 1)
Their experience is that Windermere breaches its duty to its clients and subsequently litigates
against them to the hilt. The DeCourseys’ case closely mirrors those of the Amici and reveals the same
pattern of breach of duty followed by adamant resistance. The Amici, like the DeCourseys, depended on the CPA to
protect them from the depredations of a large multi-state corporation. Windermere, in turn, fruitlessly seeks any
bolt-hole through which it might escape the strictures of the CPA. (Pg. 3.)
As it did with the Amici, Windermere is attempting to attack the Court’s findings of
substantial evidence and to undermine the provisions of the CPA. (Pg. 4.)
Again echoing the Amici cases, Windermere attempts to finagle its way around the CPA. (Pg. 8.)
Nothing in Windermere’s petition warrants review under RAP 13.4(b). The Court should
deny review. (Pg. 10)
Thus it can be readily seen the Amicus brief wholly supported the brief written by Ryan McBride of
Lane Powell -- that the Supreme Court should NOT accept Windermere’s petition to review -- but with ONE
difference. The Amicus brief fully exposed Windermere’s historical abuse of the judicial process as a means of
thwarting the CPA.
When McBride discovered the Amicus brief had been filed, he expressed surprise and disapproval,
criticizing it, essentially, because raised issues of public importance -- that is, CPA issues!
(Exhibit March 22, 2011.) He also criticized the Talmadge firm for
not having coordinated strategy with him and telling him the brief was coming.
Having served on the Supreme Court, Phil Talmadge of Talmadge-Fitzpatrick no doubt knew what was
appropriate and how best to address the issues. But McBride -- with less than 15 years of practice, and never
having served as a judge on the Supreme Court -- complained anyway.
(Exhibit LP Email March 22, 2011, 3.31 PM.) We
found McBride’s complaint unconvincing, and told him why.
(Exhibit March 23, 2011.)
We Denounce Attempt to Weaken Us. We wrote back:
You fault Talmadge & Fitzpatrick for failing to discuss strategy with
you. Clearly your objective would have been to dissuade Mr. Lohnes from serving his clients, who wanted
to perform their civic duty. In contrast, we are grateful to the Bloors and
the Ruebels for performing their civil duty. They acted unselfishly to alert the court to an on-going
problem. Windermere is a commercial menace to the people of the Northwest, the type of menace that the CPA
was designed to address. You acknowledged that fact when you argued that we were injured "in exactly the
same way" as other consumers have been or were likely to be injured.
Think about this: On one hand you say you wanted to posture our case as "factually unique,"
and on the other hand hand say that it is (1) governed by clearly settled law, and (2) governed by public policy
law (and as such not unique). Your position is not logically possible. You cannot deny any public policy
issues inherent in a case that is based on public policy law. You cannot both claim this is a case of no
public importance, yet claim at the same time it should fall under the auspices of the Consumer Protection Act.
Lane Powell has been urging us to be totally selfish in designing our legal strategy.
According to LP, we should do only what is best "only" for us. Unfortunately, if that is the standard by which LP
judges virtue, we must ask if LP is following its own advice -- i.e., is LP doing only what is best "only" for
LP? That is the reasonable corollary. Thus we see the untenability of the "selfish" principle.
We do not consider selfishness is a civic virtue; it is a civil vice. We have reached out
to help others injured by Windermere, and now they are reaching out to help us. That may be one of the
reasons the jury sided with us in the trial, too. That is the way that a real civilization operates.
(Exhibit DeC Email March 23, 2011 at 2:34 PM.)
With all these experiences, we worked quietly to secure other counsel, with a view to terminating
Lane Powell at our earliest practical opportunity.
Our August 2, 2011 Instructions
“Don’t Work on Remand.” By the end of July, we had found and secured
replacement counsel, signed a retainer agreement, (Exhibit July 8, 2011
(redacted)) and brought the case to a transferable state. On August 2, 2011, at 9:50 AM, we sent an email to
Ryan McBride directing him not to do any work on the remand.
(Exhibit DeC Email August 2, 2011 at 9.50
The same day, but more than five (5) hours later, McBride replied. He told us:
Okay, Mark, although from our perspective there won’t be much to do. We should be able
to agree with Windermere on the proper amount of the amended cost bill and get a stipulated amended judgment reflecting
that amount as well as the additional amounts awarded on appeal.” (Emphasis added.)
McBride then went on to state:
Hickman ... indicated Windermere was contemplating making a partial payment on the judgment, to which I said
‘great,’ although I don’t know if or when that would actually happen. ... Since it could
take a couple of months for that to happen ... Anyway, if Windermere actually makes a payment, we’ll let you
know immediately. (Exhibit LP email, August
2, 2011 at 3.01 PM; emphasis added.)
Untruth About Timing of Partial Payout. We learned later that the payment from
Windermere’s insurer was so imminent that, when we changed attorneys, the insurer had to rush to stop the payment
from being sent to Lane Powell. (Exhibit December 19,
2011 (2), Earl-Hubbard Declaration, Pg. 2, Lines 15-23). [Note: See also
Errata, Exhibit December 21, 2011 (2)]. Indeed,
Windermere’s attorneys had already prepared the Partial Satisfaction of Judgment
(Exhibit August 19, 2011), a copy of which we obtained.
The imminence of the payment is confirmed in the Declaration of Ryan McBride. McBride states
he took the call from William Hickman of Reed McClure (attorney for Windermere’s insurer) and declares that
“the judgment debtors were considering making a partial payment of the judgment before the Supreme Court issued
its mandate.” (Exhibit December 20, 2011 (2), Pg. 2
This all makes a lie of McBride’s statements to us that he did not
know “if” Windermere would make the payment and that the payment “could take a couple of
months” to happen. He apparently knew the payment was imminent, i.e. to be made “before the
Supreme Court issued its mandate.” Again, Lane Powell was trying to keep us in the dark. (The Supreme
Court issued the mandate on September 2, 2011.)
August 3, 2011: We Terminate Lane Powell. On August 3, 2011, we had successfully lined
everything up for a transfer of counsel. At approx. 8:30 AM, we delivered our termination letter
(Exhibit August 3, 2011 (1)) to ABC Legal Services, Inc. and
asked them to serve it on Lane Powell.. ABC Legal served the letter at 12:14 PM on August 3.
(Exhibit August 3, 2011 (2))
August 3, 2011: Why the Screeching Hurry to File a Lien?. Even before Lane Powell
notified the court that it was withdrawing as our counsel, Degginger had a lien filed a lien against our award for
$384,881.66. (Exhibit August 3, 2011 (1).) Why
were McBride and Degginger in such a screeching hurry to file the lien? The answer: They had to know the pay-out
of the judgment award was not “months away,” as McBride deceitfully told us the day before
(Exhibit LP email, August 2, 2011 at 3.01
PM.) McBride and Degginger knew the payout was imminent, and apparently fell over themselves to stake a claim
before the check went through to our new counsel.
Subsequent Lies About Sequence of Events. Later, Degginger and others at Lane Powell
attempted to re-write history: They hid the fact that on August 2 we told them to stop work. Degginger et al. claimed
instead that we terminated them because we did not want them to get paid, after we learned about the upcoming
Sequence of Events Recapped
- July 8, 2011. We sign a retainer agreement with Allied Law to handle the remand.
- Thursday, July 28, 2011: Windermere filed reply to its motion to modify.
- August 2, 2011 9:50 AM: Seeing that events were winding down in the Supreme Court and that
Lane Powell’s presence on the case was no longer required, we decide to terminate Lane Powell and make the change
to Allied Law. DeCourseys tell Lane Powell “do no work on the remand.”
- August 3, 2011, 8:30 AM (approximately) DeCourseys officially terminate Lane Powell.
The charge by Degginger et al. that we terminated Lane Powell to prevent them from being paid was
obviously false. It would have been impossible to find and hire another law firm to take over such a complex case
between late afternoon on August 2 (when we received and answered McBride’s news about the partial payment) and
early the next morning, August 3, when we left our termination notice at ABC Legal Services
(Exhibit August 3, 2011 (1) for delivery to Lane Powell
(Exhibit August 3, 2011 (2).
Degginger’s Billing: Educated Commentary from Courts and Atty. Fogarty
During the month of February, 2011, Degginger & McBride spent much of their time justifying
their refusal to abide by their contract obligations and their fiduciary duty -- and charged us for that time.
Our calculations revealed Degginger charged us approximately $6,352.57 trying to convince us Lane Powell should not do
its job. We complained. On May 4, 2011, McBride sent us an email telling us Lane Powell would refund $5,000
to us. (Exhibit LP Email May 4, 2011 at 10.51
AM.) But it took months -- after we had dismissed them and obviously when other attorneys were looking at the case
-- for Lane Powell to actually make the credit.
Paul Fogarty, Esq. Comments on Attorney Fee Rate at the Appeals Court:
$440 per hour is almost double the rate to which the DeCourseys originally agreed when they signed on with
LP in 2007. (Exhibit September 22, 2011, Pg. 14, Fogarty
McBride presented only a fraction of his fees to the Supreme Court, but charged the full amount to
us for defending Lane Powell’s non-performance on its contract. In his Declaration dated 30 November 2012,
... 15.8 hours were spent on tasks that were not reviewed by [the court].
(Exhibit November 30, 2012 (2), Pg. 2, at
Supreme Court: Lane Powell’s Fees Unreasonable. When the Supreme Court
commissioner reviewed the bills for answering Windermere’s petition, the commissioner ruled that Lane
Powell’s rates and times were not "reasonable" and trimmed the fee claimed by about 33% (i.e., to about
$315/hr.). (Exhibit May 25, 2011.) On August 8, 2011, a
special 3-judge panel that included the Chief Judge affirmed the commissioner’s ruling.
(Exhibit August 8, 2011.)
When Challenged, Degginger Backs Down And Quits Billing to Case
Degginger Added No Apparent Value. Degginger’s only visible function in the
appeals case was to try to justify his firm’s non-performance on its contact. Yet for this, Degginger
billed us $10,186.50 in total. Paul Fogarty wrote:
Grant Degginger billed time but did not add corresponding value. On October 20 , the day
before trial, Grant Degginger began billing to the DeCoursey case, though he added no visible value to the case (LP
Invoice 12/5/2008, p 5,6).
[Mr. Good] left the firm suddenly on November 19, 2009. He departed the firm without notice and
without explanation to his clients, DeCourseys, strongly suggesting he was summarily fired without notice or forced
into quitting. [Mr. Good] has told DeCourseys only that he has signed “a non-disparagement agreement.
[Mr. Good]‘s name continued on the invoices until February  as the attorney of record, but
because the case was in the hands of the appeals specialist (Ryan McBride), his absence had no effect on the
case. Beginning in December 2009, Mr. Degginger accompanied each invoice with a line or two of a personally
signed cover letter, as though he were now DeCourseys’ attorney. Mr. Degginger's name has never appeared
on the pleadings as an attorney of record, but he continued sending personal letters with the invoices – and billing
to their account. Presumably, he did not bill for these letters – did he?
When it was in the Court of Appeals, the case was primarily handled by McBride, though he sent
Mr. Degginger copies of all his email with the DeCourseys. McBride also requested that the DeCourseys send
Mr. Degginger and Gabel CCs of all their emails too. Email dated June 16,
2011. The DeCourseys protested that Mr. Degginger’s name never appeared on their pleadings, that he
added no value to the case, and that the combined rates could not be justified (McBride at $440/hr., Degginger at
$470/hr., and Gabel at $275/hr). McBride assured the DeCourseys that Mr. Degginger would stop billing to their
case account. Email dated Mr. Degginger and Gabel CCs of all their emails too. Email dated June 16,
2011. The DeCourseys protested June 16, 2011. This poses a
paradox: if Mr. Degginger’s activities were billable, why would he stop billing for them? Or if
Mr. Degginger’s activities were not billable, why was he ever billing for them? What was
Mr. Degginger’s role in this case?
... When LP submitted its costs bill to the Supreme Court, it emailed the DeCourseys that it could not
bill Windermere for (primarily) Mr. Degginger's time and would re-credit their account for $5,000. Email dated
May 4, 2011. But the refund/credit did not appear on an invoice until
August 17, 2011, when another attorney had been retained in place of Lane Powell.
Amount at issue: about $10,186.50.”
(Exhibit September 22, 2011, Pg. 16. Fogarty Letter.)
Fogarty on Supreme Court Ruling. In his September 22, 2011 letter to Lane Powell, Paul
Fogarty expressed it succinctly:
Supreme Court. By actual invoice (LP invoices dated 2/15/2011 and 3/15/2011), the DeCourseys incurred
fees and costs of $28,195.25 answering Windermere's Petition, billing for costs, and answering Windermere’s
motion. LP decided not to claim for $5,555 and credited that amount back to DeCourseys and the court disallowed
$2,645 in claims. Still, LP claimed only $17,818.46 in Respondents' Affidavit of Fees and Expenses leaving a
shortfall of about $2,176.79. (Exhibit September 22, 2011,
Fogarty Letter, Pg. 14.)
Supreme Court Motion to Modify: LP billed the DeCourseys for $1,687.98 for this action (LP 7/15 Invoice),
but asserted a claim for only $1,540. (Exhibit September 22,
2011, Fogarty Letter, Pg. 14.)
The Nordstrom Greed Revisited. The Nordstrom decision and Lane
Powell’s role in it was not revealed to us. It should have been: the comments of the Nordstrom court
show that a) Lane Powell was entirely too greedy with its billing, intending to shaft the defendant, and b) the Court
caught them at the game. By its own overarching greed, Lane Powell ruined the legitimate interests of the CPA for
everyone, setting up the Nordstrom precedent.
As it did in Nordstrom, so did the Supreme Court find again in DeCoursey. It
found that Lane Powell was padding its bills (“grossly exaggerated”) to reap greater fees than the case
would support. The Supreme Court commissioner, and then the special panel, found that through excess rates and
hours, McBride was over billing by at least 30%.
In total, the court found reasonable $356,482 (Superior) + $47,600.61 (Appeals) + $11,978 (Supreme) of the final bill.
We have already shown some visible elements of Lane Powell's bill padding in the trial court. Reasonably
extrapolating that the institutional abuse was continued in the upper courts, we have confirmation from the Supreme
Court's own judges that the bills were not "reasonable" by a factor of about 32.77%.
And none of the courts saw all of the bills.
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