Hernando County Housing Authority, Hernando County Housing Authority Board of Commission and Donald Singer: Case Number: cv Filed: October 19, Court: US District Court for the Middle District of Florida: Office: Tampa Office: County: Hernando: Presiding Judge: Susan C Bucklew: Presiding Judge: Mary S. Scriven: Nature of Suit. Donald Singer. Greater St. Louis Area Attorney at Law at Singer Law Firm Law Practice Education University of Missouri-Columbia School of Law — Experience Singer Law Firm - Present Skills Real Estate, Estate Planning, Elder Law, Strategic Planning, Trusts, Business Planning, Wills, Succession Planning, Estate Administration. Singer & Singer, P.C. is a firm serving Wakefield, MA in Business Law, Business Litigation and Real Estate cases. View the law firm's profile for reviews, office locations, and contact information.
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Verified Credentials. Learn More. Legal Articles. Peer Endordements. Additional Info. Want a Premium Customized Photo Badge? Call Toll Free: Contact Lawyer. Image Link 1. Image Link 2. Image Link 3. Image Link 4. Image Link 5. Image Link 6. Image Link 7. Image Link 8. Text Link 1 Lawyer. Text Link 2 Lawyer. While those events were transpiring, the other Sunrise members removed Rowlett as a Sunrise manager in March But, by that time, the real estate market had fallen.
In , plaintiffs filed this malpractice action, alleging that defendants' negligent representation of plaintiffs had caused plaintiffs to settle the Sunrise case for significantly less than they would have received had defendants handled the case properly. As relevant here, defendants moved for summary judgment on plaintiffs' claim for attorney fees.
Plaintiffs contended in response that the attorney-fee clause in the Sunrise operating agreement entitled them to recover the attorney fees that they incurred in prosecuting the malpractice action.
The trial court disagreed with plaintiffs and granted summary judgment to defendants on plaintiffs' claim for those fees. Ultimately, the jury found that defendants were negligent in their representation of plaintiffs, but that that negligence had not caused plaintiffs damage.
With that factual background in mind, we return to the issues on remand. As noted, plaintiffs contend in their fourth and fifth assignments of error that the trial court erred in overruling their objections to testimony by defendants' forensic accountant about calculations that she had made regarding plaintiffs' damages. According to plaintiffs, the trial court erred by permitting defendants' accountant to testify as an expert and by allowing her to base her testimony on an unsubstantiated valuation methodology.
Defendants respond that their forensic accountant was qualified to testify as an expert, and her testimony was appropriately admitted because she had used the methodology employed by plaintiffs' expert to value Sunrise and had merely made arithmetic and accounting calculations.
We agree with defendants. We review for legal error whether an expert is qualified to testify about a particular subject. See, e. Rogers, Or. As part of their evidence on damages, plaintiffs presented testimony by a business-valuation expert, Dr. Shannon Pratt. The basic point of Pratt's testimony was to establish the value of Rowlett's interest in Sunrise on March 13, , and October 7, Pratt explained that there are three approaches used by business-valuation experts to value businesses — the market approach, the income approach, and the asset approach — and that he had used the asset approach to value Sunrise.
Under the asset approach, Pratt identified the real property on Sunnyside Road as the asset that he had used to value Sunrise on the specified dates. Pratt is not a real estate appraiser, so he relied on appraisals prepared by real estate appraisers to establish the market value of the property, except for the value of a portion of the property that had been sold just before one of the valuation dates.
The October 7, , valuation involved three phases of the development of the Sunnyside Road property. The market value of the first phase was based on the amount realized by Sunrise from the sale of the land in that phase. The market value of the land in the second and third phases was based on real property appraisals prepared by appraisal experts. In summary, in valuing Rowlett's interest in Sunrise on the specified dates, Pratt selected 1 the valuation approach to use to do that, viz.
Defendants responded to Pratt's valuation testimony by, among other things, presenting evidence from a forensic accountant, Katharyn Thompson. Thompson testified and prepared exhibits that were admitted at trial that took issue with aspects of Pratt's testimony. There were two substantive differences between the Thompson and Pratt exhibits.
Thompson also included a deduction for a 10 percent interest payment to holders of Class B interests in Sunrise for funds that they had advanced to Sunrise, based on Thompson's understanding of the terms of the Sunrise operating agreement. Thompson's exhibits and related testimony addressed a number of adjustments that Thompson also made to the figures that Pratt had used to value Rowlett's interest in Sunrise as of October 7, Those adjustments included different market values for the second and third phases of the Sunnyside Road property, based, again, on Singer appraisals; additional costs that Thompson attributed to the cost to acquire and develop the property; and differences in the allocation to Rowlett of his interest in the value of Sunrise, based, again, on Thompson's understanding of various aspects of the Sunrise operating agreement.
Plaintiffs objected under OEC to the admission of Thompson's exhibits that contained modifications of Pratt's calculations of the value of Rowlett's interest in Sunrise, and to Thompson's testimony about her alternative calculations of that value, on the ground that they involved business-valuation evidence that Thompson lacked the expertise to present.
The trial court overruled the objection, reasoning that the evidence was accounting evidence that a forensic accountant was qualified to give. Applying an operating agreement to the allocation and distribution of company assets is work typically done by accountants, with, perhaps, advice from lawyers. It is not work that requires or implicates the expertise of a business-valuation expert. Thompson might have exceeded her accounting expertise if she had used something other than or in addition to the Sunrise operating agreement to calculate Rowlett's interest in Sunrise, for example, by applying some sort of discount factor to his interest.
Similarly, she would have exceeded her expertise and engaged in work requiring business-valuation expertise if she had undertaken to value Sunrise using a market or income approach rather than an asset approach; by valuing assets other than the Sunnyside Road property; or by determining the market value of the property in a manner that differed from Pratt's.
However, she did not do any of those things or otherwise present evidence that was beyond her expertise as an accountant. Hence, the trial court did not err in overruling plaintiffs' objections to Thompson's testimony.
We turn to plaintiffs' seventh assignment of error, in which plaintiffs contend that the trial court erred in granting defendants summary judgment on plaintiffs' claim to recover the attorney fees that they incurred in litigating the malpractice action. In their second amended complaint, plaintiffs alleged that, "but for defendants' negligence [in the Sunrise case], plaintiffs would not have incurred attorney's fees and costs in bringing this malpractice action.
Those additional fees and costs were a reasonably foreseeable risk of harm [to plaintiffs] that ultimately occurred. Defendants moved for summary judgment on plaintiffs' claim for attorney fees, arguing that the Sunrise attorney-fee clause did not entitle plaintiffs to recover the attorney fees that plaintiffs incurred in prosecuting their malpractice action and, without some other statutory or contractual basis, plaintiffs' attorney fees were not recoverable in the action.
Plaintiffs disagreed, arguing that,. Defendants conceded in response — and concede on appeal — that plaintiffs could recover as damages in the malpractice action the attorney fees that, but for defendants' negligence, they would have recovered from the defendants in the Sunrise case. However, plaintiffs did not allege nor seek those attorney fees.
The trial court agreed with defendants and ruled that they were not liable for the attorney fees that plaintiffs sought, viz. Plaintiffs assign error to the trial court's grant of summary judgment to defendants on the attorney fees that plaintiff sought. We will affirm a grant of summary judgment "if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. State of Oregon, Or. The question here is purely legal — viz. Plaintiffs assert that defendants are liable for those fees and point to two cases as support for their position: Glamann v.
Vu, Or. However, those cases do not help plaintiffs. Both cases address how to prove or measure the attorney fees that defendants concede are recoverable as damages in a legal malpractice action such as this one but that plaintiffs did not seek, viz.
As did the trial court, we conclude that plaintiffs' entitlement to attorney fees under the Sunrise agreement did not entitle plaintiffs to recover the attorney fees that they incurred in prosecuting the malpractice action. Hence, the trial court did not err in granting summary judgment to defendants on plaintiffs' claim for those fees.
In sum, the trial court did not err by denying plaintiffs' motion in limine to limit the use of evidence of the Sunrise settlement, by allowing defendants' expert to testify, or by granting summary judgment to defendants on the attorney fees that plaintiffs sought in this case. Accordingly, as to plaintiffs' four assignments of error remaining on remand, we affirm the trial court.
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