Opinion
No. 53667-2-I
Filed: April 18, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No: 99-2-00650-6. Judgment or order under review. Date filed: 03/22/2004. Judge signing: Hon. Michael E. Rickert.
Counsel for Appellant(s), John R. Guardi, Attorney at Law, PO Box 2570, Blaine, WA 98231-2570.
Counsel for Respondent(s), Deborah Lynn Carstens, Bullivant Houser Bailey PC, 1601 5th Ave Ste 2300, Seattle, WA 98101-1618.
Jerret E. Sale, Bullivant Houser Bailey PC, 1601 5th Ave Ste 2300, Seattle, WA 98101-1618.
Shawn M. Yates, Bullivant Houser Bailey PC, 1601 5th Ave Ste 2300, Seattle, WA 98101-1618.
Hardial Sangha appeals from a judgment on a jury verdict rejecting his legal malpractice claim against David Vis and the law firm of Bentley, Gallery and Vis. Sangha's current challenges to the Court's Instructions No. 25 and 26 were not preserved for review by his trial exception that those instructions presented only portions of the bankruptcy code rather than the whole code. We affirm.
Sangha owned three berry farms in Whatcom County. In the summer of 1996, he contacted Vis, a partner in the law firm of Bentley, Gallery and Vis. Sangha was experiencing financial difficulties, including the prospect of lien-holders foreclosing on his real property and the Internal Revenue Service seizing his farm equipment. Sangha initially did not follow Vis's advice to petition for Chapter 12 farmer's bankruptcy protection, but changed his mind in September shortly before a foreclosure sale of one of his berry farms.
The issues on appeal are identical for Vis and his firm. References to Vis in the balance of the opinion include all defendants.
Although Vis told Sangha it was then too late because the summer's harvest had been poor, Vis filed for Chapter 12 protection for Sangha anyway. Vis failed, however, to file the required reorganization plan within 90 days and the bankruptcy was dismissed without prejudice. Vis advised Sangha to refile for bankruptcy to reinstitute the stay, but Sangha fired Vis and hired new counsel. Sangha eventually refiled for Chapter 12 protection, but ultimately dismissed the second bankruptcy after creditors received relief from the stay of proceedings.
Sangha filed suit against Vis, alleging attorney malpractice for the failure to file the reorganization plan on time. Vis presented alternative defenses to the suit, including that the reorganization plan would not have been approved and that even if it had, Sangha could not have successfully completed the plan.
Vis proposed several instructions regarding Chapter 12 bankruptcies that the court included in its instructions to the jury. Of these, Instruction No. 25 stated:
There are essentially three stages to a Chapter 12 reorganization plan.
First, the preparation and presentation of the plan to the court and creditors;
Second, confirmation of the Plan as prepared and presented evidencing approval by the Court of all of the requirements of confirmation;
And finally, performance by the Debtor in the form of payment of the provisions of the Plan as confirmed.
Instruction No. 26 stated:
In order to confirm a Plan of reorganization, in Chapter 12, the bankruptcy court must find that the plan is feasible, i.e., that the Debtor will be able to make all payments under the plan and comply with the plan.
The jury found, by special verdict, that Vis was negligent for failing to file the reorganization plan but also found that Sangha had failed to prove he was harmed by that lapse and accordingly awarded no damages.
Sangha appeals, contending that instructions 25 and 26 were improper and prejudicial. Vis argues alternatively that Sangha failed to preserve his present objections to the instructions; that the trial court did not abuse its discretion in giving the instructions; and that Sangha cannot show prejudice as a result of the instructions in any event. Because Sangha's exceptions at trial were too general to preserve the arguments he now seeks to raise on appeal, we need not address the other contentions of the parties.
CR 51(f) states in relevant part:
Objections to Instruction.
Counsel shall then be afforded an opportunity in the absence of the jury to make objections to the giving of any instruction and to the refusal to give a requested instruction. The objector shall state distinctly the matter to which he objects and the grounds of his objection, specifying the number, paragraph or particular part of the instruction to be given or refused and to which objection is made.
CR 51(f) supports the objective of allowing the court to correct mistakes in instructions and avoid the unnecessary expense of a new trial. The parties must state "distinctly" the matters to which they object and the grounds for their objections. If a party's exception fails to apprise the judge of the specific points of law or of the alleged defect in the instruction in the context of the litigation, those points and defects will not be considered on appeal. In short, general exceptions are "useless." At trial, Vis's counsel proposed two packets of instructions, one set relating to the malpractice claim generally and one set relating to the bankruptcy code, which included the two instructions at issue. Sangha's counsel reacted to the packet of bankruptcy law instructions by saying: I don't think they are adequate, Your Honor. First of all, I don't think they belong in there, but secondly, I don't think they give anything more than a thumbnail sketch of certain things I want to hone in on.
Trueax v. Ernst Home Center, Inc., 124 Wn.2d 334, 339, 878 P.2d 1208 (1994).
Stewart v. State, 92 Wn.2d 285, 298, 597 P.2d 101 (1979).
Trueax, 124 Wn.2d at 339.
Sangha's counsel took the position that Vis could argue his theories without the instructions. When Vis's counsel argued that the instructions were directly out of the code and would be helpful to the jury, Sangha's counsel responded that "[t]he code is that thick, though, Your Honor." Sangha's only exception specific to instructions 25 and 26 came in response to Vis's counsel's assertion that they were necessary to the defense alternate theory that the lack of the reorganization plan did not harm Sangha: "Once again, [defense counsel] can argue that [to] the jury — but these are snippets of a bankruptcy code. They aren't the whole code." When the court later proposed a packet including the instructions, Sangha's counsel objected to instructions 23 through 30 without stating grounds for the exception.
Sangha's trial objections failed to specifically apprise the trial court of the errors he now claims on appeal. To the extent that trial counsel was arguing the instructions were unnecessary to the defense theory, he did not state why. As for counsel's contention that the instructions were misleading for including only "snippets" of the bankruptcy code, the objection was insufficient because it failed to identify in any fashion the portions of the code that were required to make the instruction complete. And counsel did not remedy the deficiency by proposing his own instruction adding what he believed was the necessary language.
See Trueax, 124 Wn.2d 334 (Failure to cite or in any way direct the trial court to the requirements of a particular section of the municipal code precluded a claim of error for failing to give an instruction based on that code section.); Joyce v. Dep't of Corrections, 116 Wn. App. 569, 599, 75 P.3d 548 (2003), review granted, 150 Wn.2d 1032 (2004) (Exception that an instruction fails to take into account all of the applicable law must "identify the precise constitutional or statutory protections that would invalidate the instruction."); City of Bellevue v. Kravik, 69 Wn. App. 735, 740, 850 P.2d 559 (1993) ("A party objecting to a jury instruction has an affirmative obligation to offer a correct statement of the law on the issue.).
Goodman v. Boeing Company, 75 Wn. App. 60, 75, 877 P.2d 703 (1994) (A litigant dissatisfied with an instruction has the duty to propose an appropriate instruction and, if the court fails to give it, take exception to that failure.); American Oil Co. v. Columbia Oil Co., Inc., 88 Wn.2d 835, 843, 567 P.2d 637 (1977) (Error could not be assigned on grounds that the instruction given by trial court should have been more restrictive in scope where the appellant did not propose an instruction to be given in place of the instruction in question.); State v. O'Connell, 83 Wn.2d 797, 819, 523 P.2d 872 (1974) (Error cannot be predicated on the giving of an instruction that correctly states the applicable law but does not embody a given qualification or exception, if no limiting instruction was requested by the complaining party.).
Moreover, by repeatedly agreeing that the defense could argue to the jury that failing to file the reorganization plan was not prejudicial, Sangha's trial counsel necessarily conceded that the defense theories were at least potentially viable, which is directly contrary to Sangha's present arguments that the instructions improperly allowed "[i]ntolerable [l]ogical [n]ullities." Nor did trial counsel articulate anything resembling Sangha's present claims that the instructions prejudiced his ability to argue his theory of the case or allowed the defense to argue an unconscionable defense.
Sangha points to the trial court's comments in ruling on motions to dismiss and discussing the proposed instructions. He suggests the comments show the court understood his trial counsel's contentions to include the arguments he raises now. But the court's comments on the state of the evidence and the complex nature of the case, and its questions of Vis's counsel about the necessity of the bankruptcy instructions in general did not demonstrate anything more than that the court was attending to the issues and arguments before it.
Sangha did not properly preserve for review his claims of instructional error. We decline to review them.
Affirmed.
COX, ELLINGTON and GROSSE, JJ.