                                                                         FILED
                                                                    SEPTEMBER 18, 2018
                                                                  In the Office of the Clerk of Court
                                                                 WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STEVE MILLER and LETICIA MILLER,               )
husband and wife,                              )         No. 35163-7-111
                                               )
                     Respondents,              )
                                               )
       v.                                      )
                                               )         UNPUBLISHED OPINION
DREW DALTON, individually, as a                )
representative of the marital community,       )
and as Partner/Member of Ford Law              )
Offices, FORD LAW OFFICES, PS, a               )
Washington Corporation,                        )
                                               )
                     Appellants,               )
                                               )
STEPHEN FORD, individually, as a               )
representative of the marital community        )
and as Partner/Member of Ford Law              )
Offices,                                       )
                                               )
                     Defendants.               )

       FEARING, J. - Attorney Drew Dalton appeals from an adverse jury verdict in a

malpractice suit brought by his clients, Steve and Leticia Miller. Among other

assignments of error, Dalton claims the trial court erred in failing to grant a new trial or a

remittitur because of an excess verdict and the trial court erred in refusing to instruct the

jury on comparative fault and failure to mitigate damages. Steve and Leticia Miller cross
No. 35163-7-III
Miller v. Dalton


appeal the trial court's grant of summary judgment dismissing their Consumer Protection

Act claim against Miller and grant of judgment as a matter of law precluding an award

for emotional distress.

       We grant each party partial relief and remand for a new trial on the issue of

damages. We hold that the jury's verdict did not conform with the evidence and that the

jury should have been permitted to award emotional distress damages. A majority of the

court affirms dismissal of the Millers' Consumer Protection Act claim. Judge

Siddoway's concurring opinion represents the majority opinion for the Millers'

Consumer Protection Act cause of action.

                                         FACTS

       We borrow the facts from trial testimony and, because of the numerous issues on

appeal, quote extensive excerpts from the testimony. Although this suit sounds in

professional negligence, the background illustrates the dire financial conditions many

Americans faced during the Great Recession.

       In 2006, Steve and Leticia Miller hired a contractor to build their dream home, at a

price of $275,000, on forty acres in Rockford, a farming community twenty-four miles

southeast of the city of Spokane and five miles west of the Idaho border. Steve and

Leticia Miller have three young daughters. The Millers purchased the property in 1989

and lived in a mobile home on the land for two decades.




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Miller v. Dalton
                                                                                             I
       The Millers experienced a nightmare that many couples face when building a

home. The final cost of the 3,400 to 3,600 square foot house more than doubled to

approximately $550,000 to $640,000. The uncertainty in the actual costs results from the

Millers not necessarily accounting for all construction work and materials they personally

added to the home. The Millers fired the contractor because of unscrupulous practices

that led to cost overruns. The Millers completed portions of the home on their own,

although the home remains unfinished. According to one witness, 900 square feet of the

home remains incomplete. In 2008, the Millers finished enough construction to procure a

temporary occupancy permit.

       In 2006, Steve and Leticia Miller procured a construction loan from the Bank of

Whitman. With bank funds exhausted in 2008, the Millers charged some homebuilding

expenses to credit cards.

       In November 2008, Bank of Whitman issued a thirty-year home loan to Steve and

Leticia Miller in the sum of $417,000 at 5 .625 percent interest, payable at $2,400 per

month. The monthly loan payment did not include insurance and tax payments. The

home loan retired the construction loan and some credit card debt. Bank of Whitman

secured the loan with a mortgage on the home and surrounding twenty acres. As was

common practice, Bank of Whitman immediately sold the Millers' loan to SunTrust

Mortgage.




                                             3
No. 35163-7-III
Miller v. Dalton


          One trial expert noted that Steve and Leticia Miller's monthly mortgage payment

exceeded their ability to carry debt based on their income. Based on the income and debt,

the Millers could only afford a mortgage no higher than $250,000. Steve Miller earned

between $78,000 and $82,000 during this time. He was the only wage earner in the

family.

          Steve Miller used a small portion of the Bank of Whitman loan to purchase some

corporate stock. We do not know the amount of the purchase or what, if any, gain or loss

the Millers reaped or suffered from the stock. During trial, the following colloquy

occurred between Steve Miller and Drew Dalton's counsel:

                 Q. Now, you mentioned this stock that you purchased. Did it
          fluctuate quite a bit?
                 A. It did.
                 Q. And what were the fluctuations?
                 A. Uh, it-it went up to 200 and-a little over $200,000. And
          it's-it's now-it's now in the-probably 10 to $15,000 is the value now.
                 Q. Did you ever consider selling that to pay off your debt?
                 A. Absolutely, I considered selling it.
                 Q. And why didn't you sell it?
                 A. I should have. I wish I would have. I wish I would have. !t-
          it-fluctuated-it dropped precipitously, or-
                 Q. Okay.
                 A. -if I'd have known that, I would have sold it.

Report of Proceedings (RP) at 736-37.

          Steve and Leticia Miller soon realized they could not afford their monthly

payment and contacted SunTrust to negotiate a lower rate. At the same time, the value of




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                                                                                            I
No. 35163-7-III
Miller v. Dalton


the unfinished Rockford home decreased below its cost as a result of the recession and a

decrease in real estate values throughout the United States.

        Steve and Leticia Miller sought assistance under the Home Affordable Mortgage

Program (HAMP), a government program introduced as part of the emergency economic

stabilization act of 2008 to respond to the subprime mortgage crisis. HAMP sought to

abet financially struggling homeowners to avoid foreclosure by modifying loans to an

affordable and sustainable level by reducing principal, changing an adjustable interest

rate to a fixed rate, lowering the interest rate, and extending the length of payments.

Steve Miller wrote to SunTrust Mortgage pleading for aid. By then the Millers had

increased credit card debt of $25,000 and Steve Miller had taken a $50,000 loan from his

retirement account. Steve's retirement account removed a sum from his monthly

paycheck to retire the loan debt, so the couple's cash flow decreased with the account

loan.

        The Millers' loan qualified for the HAMP program. Drew Dalton's purported

negligence arises from his representation of the Millers in effectuating a loan

modification with SunTrust.

        Under HAMP, the lender engages in the first step of a loan modification by

issuing a "trial period plan payment" (TPP). Clerk's Papers (CP) at 35. If the borrower

accepts the TPP and timely tenders three payments, the lender will offer an extended loan

modification to the borrower if the borrower meets other criteria. The monthly payment

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No. 35163-7-111
Miller v. Dalton


under the TPP may or may not be the final loan modification payment amount.

       In July 2009, SunTrust offered Steve and Leticia Miller a TPP in the monthly

payment amount of $2,113.13, which sum included payment into an escrow for taxes and

insurance. The Millers remitted their first monthly payment but complained that the

amount remained high and requested that SunTrust lower the amount further. SunTrust

sent a second TPP in August 2009 with a monthly payment of $1,311.87, which amount

did not include a sum to pay taxes and insurance. The Millers accepted SunTrust's

second TPP offer and forwarded two monthly payments of $1,311.87.

       In October 2009, SunTrust offered a permanent loan modification with different

terms: monthly payments of $2,084.85 over thirty years at a lower interest rate of 3 .625

percent. SunTrust demanded that Steve and Leticia Miller accept the modification offer

by signing and returning the modification agreement by October 27, 2009. The Millers

did not return the proposed agreement. By October 2009, the Millers had reduced the

principal on the debt to $412,000.

       Steve and Leticia Miller asked SunTrust why the offered permanent loan

modification did not reflect $1,311.87 in monthly payments. SunTrust responded that it

mistakenly calculated the $1,311.87 second TPP amount and that the Millers only

qualified for a permanent modification with a $2,084.85 monthly payment. The

dissatisfied Millers proceeded to attempt enforcement of a $1,311.87 monthly payment.

      Over a window of two years, Steve and Leticia Miller contacted government

                                            6
No. 35163-7-111
Miller v. Dalton


agencies and officeholders in an attempt to secure a $1,311.87 monthly payment to

SunTrust. The Millers also hired attorney Brett Sullivan to assist. Sullivan wrote

SunTrust Mortgage and insisted that the lender honor the $1,311.87 TPP sum, and

SunTrust kindly responded by threatening foreclosure on the mortgaged property. In the

meantime, Steve and Leticia Miller paid SunTrust the amount of $1,311.87 each month.

In August 2010, SunTrust wrote to the Millers indicating the lender would no longer

accept the lower payments. The Millers periodically sent the payment anyway.

Sometimes SunTrust accepted the payment and sometimes the lender rejected the

payment.

      By April 2012, Steve and Leticia Miller had still not resolved their disagreement

with SunTrust Mortgage. SunTrust Mortgage again threatened to foreclose on the

property. Steve Miller's father had previous employed Stephen Ford to prepare a will.

Steve called Ford and Ford recommended that Miller speak with Ford's new trial

associate attorney, Drew Dalton, who had experience in this subject area. The Millers

then hired attorney Drew Dalton.

      Steve Miller testified that Drew Dalton wanted the Millers to agree to a contingent

fee arrangement:

            Q. Did [Dalton] talk to you about the fee arrangement in that
      conversation, then, at his office?
            A. I-that's-I believe that's where we-
            Q. All right.



                                            7
No. 35163-7-III
Miller v. Dalton


             A. -that he said the 30-the-he would do it-the-take the case
      on a 30 percent contingency-a 70/30 contingency.
             Q. All right. And did he-when he said that he would take the case
      on a 70/30 percent contingent fee, did he explain to you that you had any
      obligation to pay any money to him in addition to the 30 percent?
             A. No. All he-no. No. All he said was his seven - -he'll-he'll
      do the-he'll take the case on a 70/30 contingent fee and just to bring in a
      $500 retainer.
             Q. Uh-huh.
             A. And he said-he said there may be some filing fees; it-it might
      amount to a couple hundred dollars and that I might share those, but he
      wasn't sure at that point.
             Q. Okay.
             A. That's all he said.
             Q. So did he tell you in the 30 percent contingent fee that he was
      only going to take your case through trial or through appeal, or did he put
      any limitation on the amount of work he was going to do for his 30
      percent?
             A. No. We didn't discuss any of those details.

RP at 593-94.

       Steve Miller assumed his oral agreement with Drew Dalton meant Dalton would

receive thirty percent of any final judgment against SunTrust. Dalton testified that Steve

Miller signed a contingent agreement. The confusing testimony may, however, be that

Miller signed one of two attorney retainer agreements.

             Q. Had you ever given him a written [contingent] fee agreement?
             A. I had
             Q. And did you ever see him sign one?
             A. I thought he did sign one, yes.
             Q. How many times did you give him a written fee agreement?
             A. There's at least two times I recall discussing the written fee
       agreement with him,
             Q. But he never signed it?
             A. He never signed it.

                                            8
No. 35163-7-111
Miller v. Dalton



RP at 834. In addition to a contingent fee arrangement, Steve and Leticia Miller paid a

$500 retainer at the request of Dalton.

       On April 16, 2012, Drew Dalton, on behalf of Steve and Leticia Miller, sent a

letter to SunTrust Mortgage, which correspondence demanded that SunTrust honor the

second TPP offer of a monthly payment of $1,311.87 for the remainder of the thirty-year

mortgage. Dalton threatened to file suit on behalf of the Millers if SunTrust failed to

respond by April 30.

       On May 14 and 16, 2012, SunTrust Mortgage attorney Leigh Peplinski spoke by

telephone to Drew Dalton regarding a forthcoming settlement offer to Steve and Leticia

Miller. During the May 16 conversation, Peplinski identified the terms of the offer that

would arrive in a forthcoming letter. Dalton testified at trial that he called Steve Miller

and informed him of the potential settlement offer, recommended acceptance of the offer,

and stated Miller should expect a letter shortly.

       During trial, Steve Miller testified that Drew Dalton notified him that SunTrust

Mortgage expressed a willingness to permit a monthly payment of $1,311.87. Steve told

his wife Leticia about his conversation with Dalton. After three years of struggling, the

Millers were "ecstatic" at the prospect of SunTrust agreeing to a monthly payment of

$1,311.87 at two percent interest.




                                              9
No. 35163-7-III
Miller v. Dalton


       Drew Dalton received a written settlement offer from SunTrust Mortgage on May

21, 2012. The offer remained open for fifteen days and expired without the Millers

signing it. Steve and Leticia Miller claim Drew Dalton never forwarded a copy of the

SunTrust letter to them.

      Drew Dalton testified:

              Q. And what did you do when you got that [the SunTrust settlement
      offer letter]?
              A. The first thing I did is I called Mr. Miller.
              Q. All right. Tell the jury about what you told Mr. Miller when you
      got this letter, what did you do?
              A. Well, I said, "Steve, we have an offer to settle. I have it here in
      writing in front of me. Do you want me to send you a copy via email or do
      you want to come down and discuss it with me? Or do you want me to read
      it to you over the phone?" He said, "Read it to me over the phone," he
      wanted to know what the terms were.
              So I went and I read him the terms, the important terms being that
      there would be a permanent modification and it will be a fixed rate,
      nonescrowed loan. Nonescrowed meaning they were not going to pay the
      taxes and insurance. And-
              Q .-Who wasn't going to pay the taxes and insurance?
              A. SunTrust was not going to pay the taxes and insurance.
              Q. Okay.
              A. And that the Millers would be responsible for making timely
      payment of the taxes and insurance. That the principal and interest
      payment would be $1,311.87 a month. The interest rate of 2 percent, 448
      months, first payment due August 1, 2012. And the new unpaid principal
      balance would be $413,837.71.
              It went on to say that SunTrust had held some payments they had
      received from Mr. Miller and that they would apply that balance of
      $9,183.09 towards the negative escrow balance, reducing the unpaid
      principal balance. And that if the Millers accepted we needed to respond
      within 15 days in writing and that they would send the documents back that
      we needed to make this work.
              Q. All right. So you went over that with him on the phone?

                                           10
No. 35163-7-III
Miller v. Dalton


               A. I did.
               Q. And did you tell him about the deadline?
               A. I told him about the deadline. I told him, "We have 15 days to
       respond. That's approximately June 5, 2012. And we need to decide ifwe
       want to do this."
               Q. Okay. And what, did you recommend it to him?
               A. I did recommend it. I said, "This is a good offer. You should
       seriously consider taking it.
               Q. Okay. And why did you recommend it?
               A. Because it got his principal and interest at $1,311.87. It reduced
       his interest rate and it got him at a more affordable rate into his house.
               Q. Okay. And did you explain to him what his options were then?
               A. I explained some of his options at the time. We had talked a lot
       about his options. But we briefly went over some of the options, yes.
               Q. Okay. And did you talk with him about the taxes and insurance
       being separate, being something the Millers would have to pay?
               A. I did. And he was, he understood. I said, "Steve, the taxes and
       insurance aren't included like you want." He was, like, "I know." And I
       said, "Can you afford to do that?" And he said it would be difficult.
               Q. Okay. Did he tell you to accept the offer?
               A. He did not.

RP at 824-26.

       According to Drew Dalton, Steve Miller wanted clarification before responding to

SunTrust Mortgage's May offer, regarding whether the $1,311.87 monthly payment

would include therein an amount to pay insurance and taxes. Dalton unsuccessfully

attempted to clarify this subject with SunTrust. Nevertheless, according to Dalton, he

also told Steve and Leticia Miller that SunTrust's offer could be revoked if the Millers

attempted to negotiate more favorable terms. Dalton testified at trial that, in early June

2012 before SunTrust's offer expired, he called Steve Miller and warned:




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Miller v. Dalton


               A. I said, "Steve, they haven't called us. They haven't given any
       clarification at this point. I have no answers for you on the points you
       want. It's been 15 days. We can still write and accept this offer, or we can
       continue to try and clarify."

RP at 829. Dalton did not bill for any phone call to the Millers in early June, nor did he

memorialize by writing any conversation with Steve or Leticia Miller. Steve Miller

denies that either telephone conversation with Drew Dalton occurred.

       According to Drew Dalton, Steve and Leticia Miller never authorized him to

accept SunTrust Mortgage's May 2012 settlement offer. Dalton continued to represent

the Millers and assured the married couple he resumed efforts to secure a favorable

outcome from SunTrust.

       In September 2012, SunTrust filed suit to foreclose on Steve and Leticia Miller's

Rockford property. Drew Dalton prepared and filed a counterclaim against the lender.

The counterclaim did not claim that the parties reached a settlement agreement in May

2012. Steve Miller testified that Dalton immediately discussed possible counterclaims in

and favorable outcomes of the foreclosure action.

       On April 5, 2013, Drew Dalton sent by mail a new fee agreement to Steve and

Leticia Miller, which proposed agreement differed from the terms of the original oral, or

perhaps written, contingent fee agreement. With an accompanying letter, Dalton wrote:

             Here's an updated fee agreement we need to discuss. Not all
      applies, but it does help. I also need to get a $10,000 retainer to get your
      file moving. I think we have a good case, but at this point I need funds to
      push the case. Thank you, Drew.

                                            12
No. 35163-7-111
Miller v. Dalton



RP at 623-24. The proposed agreement also stated that Drew Dalton would charge $350

per hour, the Millers would receive a monthly bill, and any amount owed was payable on

receipt of the bill. The agreement and letter did not explain the need for a $10,000

retainer or for hourly charges when Dalton had earlier consented to a contingent fee

arrangement. When the parties earlier agreed to a contingent fee method of payment,

Dalton had only mentioned the need to pay several hundreds of dollars for costs. On

April 5, Dalton did not advise the Millers that they had the right to refuse his offer to

change their fee arrangement, and he did not recommend that the Millers seek

independent counsel to review his proposed new agreement. Steve Miller did not know

then that Drew Dalton was not "moving" his file. RP at 640.

       Steve Miller informed Drew Dalton that the Millers lacked $10,000 to pay Dalton.

Miller also complained that payment of $10,000 conflicted with the earlier contingent fee

agreement.

       Around April 5, 2013, Drew Dalton notified Steve Miller that he hired two expert

witnesses, Alan Hurd, a mortgage broker, and Frank Malone, an attorney. Dalton

claimed the Millers needed the assistance of the experts to win against SunTrust

Mortgage. Dalton added that the experts had already commenced work and needed

payment. Contrary to the representation, Dalton hired Malone as co-counsel, not as an

expert witness. Steve Miller assumed that Malone would perform as co-counsel, but


                                             13
No. 35163-7-III
Miller v. Dalton


Dalton never disclosed to Miller any fee arrangement with Malone.

       In response to this notification, Steve Miller telephoned Frank Malone and asked

him to work on a contingent fee basis. Miller's call to Malone prompted an April 9, 2013

e-mail from Drew Dalton to Miller, in which Dalton asked Miller to meet with Dalton,

Frank Malone, and Alan Hurd. Dalton added in the message that he could not ask

Malone or Hurd to work on a contingent fee basis. Dalton wrote:

            "It's coming off to us that you want no risk in this litigation.
      Unfortunately, that's just not the case. Despite my original percentage
      agreement with you, I cannot continue to operate without spending money."

RP at 645. Dalton instructed Miller not to contact Malone directly. Miller then felt

strong-arm pressure from Drew Dalton.

      On April 10, 2013, Alan Hurd, Frank Malone, Drew Dalton, and Steve Miller met

in Hurd's downtown Spokane office. Miller's eighty-four-year-old father accompanied

him. Dalton insisted on payment of $55,000, not just $10,000, but spoke about Hurd,

Malone and him affording Miller a $55,000 loan to be secured with the twenty acres of

unencumbered land owned by Steve and Leticia Miller adjacent to their Rockford home

acreage. Miller did not then know that Frank Malone had already billed Drew Dalton for

services performed.

      During the April 10 meeting, Drew Dalton mentioned that the lawsuit against

SunTrust Mortgage was worth $300,000 to $500,000. Steve Miller suggested that Dalton

and the experts work on a fifty percent contingent fee basis. Drew Dalton appeared

                                            14
No. 35163-7-III
Miller v. Dalton


willing to accept Miller's proposal, but Frank Malone rejected the proposal. Dalton and

Alan Hurd then mentioned that they could await payment of the loan amount until after

the completion of the lawsuit and the recovery in the suit would suffice to repay the loan.

The parties reached no agreement on April 10.

        On April 11, 2013, Steve Miller sent an e-mail message to Drew Dalton. Miller

informed Dalton that he needed Dalton to conform to the initial thirty percent contingent

fee agreement because Miller would owe tens of thousands of dollars of income tax with

any loan reduction. Dalton responded with an e-mail on April 11. The e-mail message

read:

              "We 're moving forward with the litigation. I will prepare a detailed
        agreement."

                  "We are taking a cash payment. And the 50/50 at this time is off the
        table."

               "Please be aware, if this goes to litigation, there may be an
        escalation clause to 40 percent 60 days before trial. That is standard in all
        contingent agreements."

RP at 655-57. Dalton had never before mentioned an escalation of the contingent fee.

Steve and Leticia Miller still did not know that SunTrust Mortgage had sent a settlement

proposal to the Millers, through Dalton, on May 15, 2012. During trial in the pending

suit, the Millers' expert on the attorney's standard of care testified that Dalton's demands

constituted an egregious breach of Dalton's fiduciary duties.

        Within days, Steve Miller received a call to come to Drew Dalton's office to sign

                                               15
No. 35163-7-III
Miller v. Dalton


papers. Steve and Leticia Miller went to Dalton's office and met with Stephen Ford,

Dalton's law partner. Under the paperwork, Pacific Mortgage, Alan Hurd's business,

loaned $30,000 to the Millers at thirteen percent interest with payment of $300 per month

beginning immediately. The twenty acres would secure the loan. Steve Miller had never

discussed these terms before with Drew Dalton, Frank Malone, or Alan Hurd. Leticia

Miller asked Ford some questions, to which Ford lacked answers. Leticia walked out of

the office. Steve stayed to speak with Ford and told Ford that the thirteen percent interest

was outrageous. Ford had no response, so Steve also left the office.

       On May 9, 2013, Steve Miller sent Drew Dalton another e-mail message. Miller

objected to the strong arm tactics of Dalton and Dalton attempting to shame Miller into

changing the original contingent fee agreement. Miller lamented Dalton's threats to

Miller that Miller will not receive any money unless he pays Dalton and the experts.

Miller complained that immediate $300 per month payments and thirteen percent interest

was outrageous and never discussed at the April 10 meeting.

      Drew Dalton responded with an e-mail message on May 9. Dalton professed no

knowledge of the terms of the proposed loan. Dalton directed Steve Miller to contact

Alan Hurd about the loan terms. Dalton additionally wrote:

              "I have not changed the contingency. Our agreement was a third and
      40 percent if trial."
               .... "I do not pay any costs without some commitment from the
      client."


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No. 35163-7-III
Miller v. Dalton


              "With the money now available, we can make a demand that gets
       you the best possible leverage. I want to work this out, but I feel like you
       want me to take all the financial risk."

             "That can't work. I'm over 15,000 into this file. I have not charged
       a dime until settlement."

RP at 668-71. Nevertheless, the initial agreement established a thirty percent, not 33 1/3

percent contingent fee, and never mentioned an escalator if trial proceeded. The

agreement did not require any commitment from Steve and Leticia Miller to pay costs.

Steve Miller felt betrayed by Drew Dalton.

       Steve Miller deemed himself pressured to pay some money to Drew Dalton.

Miller received $5,000 from his father that he paid Dalton. Dalton has never accounted

for the receipt or use of the $5,000.

       SunTrust Mortgage's lawsuit to foreclose on its mortgage proceeded. In

September 2014, the Spokane County Superior Court entered a judgment in favor of

SunTrust Mortgage and against Steve and Leticia Miller for the amount of $513,626.91.

Interest accrued annually at 5.625 percent, which accrued daily on the judgment at the

rate of $62.09. By January 1, 2017, the judgment debt had increased to $566,086.00.

But if the Millers had monthly paid the $1,311.87 figure on the judgment through January

1, 2017, the judgment amount would have decreased to $496,557.00. The court also

entered an order foreclosing on the Rockford property. The trial court also ruled that, if

the foreclosure sale price deceeded the judgment amount, SunTrust could not obtain a


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No. 35163-7-III
Miller v. Dalton


deficiency judgment. The Superior Court dismissed the Millers' counterclaims. This

court affirmed the Spokane County Superior Court rulings.

       During the pendency of the SunTrust Mortgage litigation, Steve and Leticia

Miller, at Drew Dalton's request, paid Dalton another $8,500 in fees. Dalton then applied

the payment to an hourly rate of fees. The Miller's expert on attorney ethics testified that

Dalton breached his fiduciary duty by retaining hourly rate fees in a contingent fee case.

       In November 2015, Steve and Leticia Miller filed for Chapter 13 bankruptcy

protection. In addition to the mortgage debt to SunTrust, the Millers held $90,000 in

other debt, $40,000 in credit card debt, and $50,000 due to Steve Miller's retirement

account. The credit card debt carried sixteen to seventeen percent interest. The Millers

filed bankruptcy to stay the foreclosure sale on their home. In the bankruptcy asset list,

the Millers valued their home at $490,000.

                                      PROCEDURE

       Steve and Leticia Miller filed suit against Drew Dalton and his law firm and

alleged negligence, breach of fiduciary duty, and Consumer Protection Act violations.

The trial court granted Dalton's summary judgment dismissing the Millers' claim for

emotional distress damages, but denied the motion to dismiss the Millers' Consumer

Protection Act claim. The trial court also denied Dalton's motion to preclude testimony

from the Millers' two daughters regarding the Millers' living conditions while they

awaited completion of their Rockford residence.

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No. 35163-7-111
Miller v. Dalton


      During trial, daughter Alisa Miller testified:

              Q .... All right. So how do you like living out in the country?
              A. I love it. It's awesome. It's at-it's at the end of a dirt road, and
      our driveway, we always joke no one is ever going to steal anything from
      our house because no one would dare come up our driveway. There's
      potholes and loose gravel. But I love it. We-I grew up around animals.
      We raised cattle and sheep and horses, and it was-it was a lot of work and
      a lot of responsibility, but it was a lot of fun.

              Q. And how was it living in the single wide mobile home during that
      time?
              A. It was diffi--1 mean, it's the first house I've lived in, so, I mean,
      we didn't complain, but it was-it was difficult. It was five people and one
      bathroom and two bedrooms.
              Q. Okay
              A. So I had to share a bedroom with my two sisters. So, I mean, it
      was difficult.
              Q. All right. And when you-was there a point of time at which you
      learned that your mom and dad were going to be able to build a regular
      house to make a home for you?
             A. Yeah. It was-
              Q. Tell us about how you found out about that.
             A. It was the year before that. My parents brought us into the living
      room slash kitchen slash bedroom, and they told me and my sisters that we
      were going to get a new house. And-and we were all ecstatic, of course. I
      immediately thought, I'm going to get my own room finally.
             Q. And then tell us about the time that the house was being built.
      What do you remember about that time?
             A. I remember the foundation was laid, and my parents-my parents
      brought me and my sisters, and they took us over the foundation and they
      told us where everything was going to be. They planned it all out. They
      had planned thoroughly everything, every little detail. They said, "your
      room is going to be here, and the kitchen is going to be here, and we're
      going to have room to breath." And that's my main-
             Q. How did you feel about the anticipation of having a new home?
             A. Oh, we were all thrilled. I was thrilled. I was ecstatic.
             Q. Now, eventually the home got finished to the point that you could
      move m. Tell us what you remember about moving in.

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                                                                                          f
No. 35163-7-111
Miller v. Dalton


              A. Well, it was-it was still unfinished, but I loved it. I loved every
      part of the house. I mean, I-I was there when-every step of the way
      when it-when it was being built. And I watched my parents put in the
      hardwood floors by hand. I watched them put in the decks by hand. They
      put a lot of work into this house, and unfortunately we couldn't finish it,
      but, you know, I didn't care. My sisters and I didn.'t care.

             Q. Okay. And was there a point that you became aware that there
      was some issues around the-how the house was going to be paid for or
      financed?
             A. I think my parents tried to shield us from everything that was
      going on, most of it, but, yeah, I mean, we heard the arguments, and they
      seemed very panicked about the whole situation.
             Q. And did you in talking to your parents get the sense of how hard
      they were working to keep this home for your-for you and your family?
             A. Yes.
             Q. Tell us about that.
             A. They-yeah, they sacrificed a lot to make-to try and-save the
      house. My dad-both of my parents, they were-they were waiting for-
      they were always trying to talk to different people trying to figure this out,
      you know, trying to do anything they could to-to save the house.

RP at 385-90.

      Alisa Miller was fifteen years old during the moments described and nineteen

years old during her testimony. Alisa's younger sister, Briana Miller, provided similar

testimony. Leticia Miller testified regarding the emotional impact of the dispute with

SunTrust Mortgage and Drew Dalton's actions.

       Steve and Leticia Miller proffered economist Eric Knowles as a damages expert.

He specializes in forensic economic consulting and provides opinions as to damages in

tort cases; Knowles reviewed the SunTrust Mortgage documents, the May 2012 letter,

SunTrust's judgment against Steve and Leticia Miller, the decree of foreclosure on the

                                            20
No. 35163-7-III
Miller v. Dalton


Rockford home, and the order of sale. He assumed that the Millers would have accepted

the May 15, 2012 offer from SunTrust and stayed in their home.

       Eric Knowles first suggested that the jury award the judgment amount of

$513,626.91 to Steve and Leticia Miller, plus interest on the judgment amount. With

interest, the amount owed was $566,000.00 as of trial. Knowles noted that, if the

bankruptcy stay was lifted, Steve and Leticia Miller would need to pay the sum or

$566,000.00 to save the home from foreclosure. Such a payment would pay for the

mortgage in full with no additional future payments. They could not prevent foreclosure

by paying a monthly amount. He added that the Millers lack the financial strength to

obtain a loan for the judgment amount.

       Eric Knowles observed that the amount of payments not made by Steve and

Leticia Miller between August 1, 2012, to the date of trial was $69,000. Knowles did not

know the amount of equity the Millers held in the property as of trial or the amount of

equity the Millers would have had if they had accepted the May 2012 offer from

SunTrust.

      Paul Murray, a real estate broker, also testified for Steve and Leticia Miller. He

often appraises real estate. He viewed the Millers' residence in an unfinished state. He

valued the home between $620,000 and $650,000, but only if completed as planned. In

an earlier deposition, Murray testified to a value between $595,900 and $620,000. In its

unfinished state at the time of trial, according to Murray, the home's value ranged from

                                            21
No. 35163-7-III
Miller v. Dalton


$555,000 to $575,000. Murray does not know the cost to complete the unfinished portion

of the home. According to the Millers' economist, Eric Knowles, the value of the

property lacked relevance to Steve and Leticia Miller's damages.

       Drew Dalton employed Neil Beaton as an expert economist. Beaton holds

licenses or certifications as a certified public accountant, business evaluator, property

appraiser, and financial forensics expert. Dalton requested that Beaton assess Steve and

Leticia Miller's financial condition, to determine the Millers' ability to pay the mortgage

loan, and to measure the Millers' damages. Beaton reviewed the Millers' tax returns,

asset and liability bankruptcy disclosures, and loan documents.

       According to Neal Beaton, most lenders want the borrower to maintain a debt to

income ratio of forty-three percent. Steve Miller's income in 2008 was $3,710.00 and the

payment on the mortgage was $2,400.49, not including taxes and insurance. Beaton

calculated the debt to income ratio as being 59.8 percent, which must include adding

some taxes and insurance or other debt to the mortgage debt. With the mortgage payment

modification to $1,311.87 in 2009, the Millers' debt to income ratio decreased to 42

percent. In 2011, the ratio decreased further to 39.9 percent. Thereafter, their 2015 taxes

increased, and the Millers bordered on the cusp of an acceptable or affordable debt to

income ration of around 42 percent assuming a monthly mortgage payment of $1,311.87.

       Neal Beaton faulted Steve and Leticia Miller for failing to segregate into an

account the $1,311.87 payments rejected by SunTrust Mortgage and accruing interest on

                                             22
No. 35163-7-III
Miller v. Dalton


the saved money. After all, assuming the Millers reached an agreement with SunTrust,

the Millers would have still needed to pay on the mortgage beginning in May 2012. Neal

Beaton also faulted the Millers for failing to pay some of the real estate property taxes.

Some other party, presumably SunTrust, paid the taxes, in the aggregate sum of $17,000,

from 2011 to 2015.

       According to Neal Beaton, any failure of Drew Dalton in consummating a

settlement with SunTrust Mortgage damaged Steve and Leticia Miller $140,000 or

$268,000 depending on the facts the jury found. Beaton arrived at the $140,000 figure by

accepting the Millers' bankruptcy valuation of the home of $490,000 in November 2015.

Beaton assumed the value of the home increased 6.1 percent through 2016, for a value of

$520,000. If the Millers had accepted SunTrust Mortgage's offer of $1,311.87 payments

in May 2012, the couple would have retired the principal debt by the end of 2016 to

$380,000. The lost equity in the home was therefore $140,000. According to Beaton,

$140,000 would be the sum needed to make the Millers whole from any professional

negligence by Drew Dalton.

      Neal Beaton arrived at the $268,000 damage sum by first observing that, if Steve

and Leticia Miller had paid the monthly sum of $1,311.87 on the September 2014

judgment debt of$519,626.91, the Millers would have owed $496,557 on the judgment

as of January 1, 2017. Beaton then determined that a $1,311.87 monthly payment would




                                             23
No. 35163-7-III
Miller v. Dalton


service a mortgage debt in the initial sum of $227,891, not including the need to pay

taxes and insurance. Deducting $227,891 from $496,557 leaves $268,666.

       According to Neal Beaton, an award of $369,000, as suggested by Steve and

Leticia Miller's expert Eric Knowles, would give the Millers a windfall. The sum would

in essence result in the Millers paying no mortgage.

       During trial, Drew Dalton examined Neal Beaton about other loan modifications

proposed by SunTrust Mortgage.

              Q. (By Ms. McIntosh) [Drew Dalton counsel] So your assumptions
       you used the, actually the 1,311 figure for your analysis to get to your
       $260,000?

             THE WITNESS: That's correct.
             Q. (By Ms. McIntosh) And if the Millers had accepted some other
       modification it would change what their damages would have been?

               THE WITNESS: Again, to me again economically there's a duty to
       mitigate. And so if there were other offers that could have been taken that
       may not have been the 1,311.87, but lower than the 2,400, which was the
       original, that, of course, would reduce the overall as we're sitting here now
       of 513 or 566,000. So clearly it would have had an offsetting impact on the
       total damages that we're sitting here today.

RP at 1055-56.

       After the completion of testimony, the trial court granted Drew Dalton dismissal

of Steve and Leticia Miller's Consumer Protection Act claim. Drew Dalton requested the

trial court to instruct the jury to assess comparative fault against Steve and Leticia Miller

and to reduce any damage award based on the Millers' failure to mitigate damages. In so


                                             24
No. 35163-7-III
Miller v. Dalton


arguing, Dalton highlighted testimony from his expert Neal Beaton that the Millers

agreed to assume loan payments they could not afford. Also, in 2006, before

constructing the home, Steve Miller purchased a truck for $50,000, in part because of the

need for a vehicle with four-wheel drive because of the snow that accumulated at the

Rockford location. Finally, according to Dalton, Steve Miller made imprudent stock

decisions, including failing to sell assets valued at $200,000, which would have

prevented a foreclosure on the Rockford home. Eventually, the trial court denied

instructing the jury on comparative fault and failure to mitigate on the basis that the

evidence did not support either affirmative defense.

       Injury instruction 9, the trial court instructed the jury as to damages to award

Steve and Leticia Miller. The instruction read in part:

              If your verdict is for Steve and Leticia Miller on the legal
       malpractice claim, then you must determine the amount of money that will
       reasonably and fairly compensate Steve and Leticia Miller for such
       damages, if any, as you find were proximately caused by the negligence of
       Drew Dalton.
              If you find for Steve and Leticia Miller on the legal malpractice
       claim, you should consider the amount of economic loss actually sustained
       and the award necessary to restore Steve and Leticia Miler to the position
       they would have been in if Drew Dalton had met the standard of care.

Clerk's Papers (CP) at 815. Drew Dalton did not object to this instruction.

       The jury awarded Steve and Leticia Miller $503,557 in economic damages. The

verdict included $7,000 in damages on the breach of fiduciary duty claim and $496,000

on the negligence claim.

                                             25
No. 35163-7-111
Miller v. Dalton


       Drew Dalton surmised that the award of damages for negligence reflected the

amount of the judgment in favor of SunTrust plus interest, an amount of $566,086, minus

the mortgage payments that Steve and Leticia Miller would have paid from the date of

the purported acceptance of the loan modification until trial, an amount of $69,529.

Dalton fretted that the verdict ignored the need for the Millers to pay decades of monthly

payments had they accepted the SunTrust Mortgage modification offer. Stated

differently, the Millers could never have saved the home from foreclosure without paying

on a reduced mortgage sum.

       Drew Dalton moved for a new trial, or in the alternative, a remittitur equal to the

maximum amount of damages that Steve and Leticia Miller could have received if the

jury had not failed to recognize that the Millers needed to pay on the mortgage if Dalton

had effectuated the settlement proposal from SunTrust Mortgage. The trial court denied

the motion for a new trial and remittitur.

                                  LAW AND ANALYSIS

       Both parties appeal rulings of the trial court. Drew Dalton contends the trial court

erred when it failed to grant a new trial or remittitur because the jury award included

damages not available under the law. Dalton also contends the trial court erred in

refusing to instruct the jury on the contributory negligence of Steve and Leticia Miller

and the Millers' failure to mitigate damages. Finally, Dalton maintains that the trial court

erred in allowing the Millers' daughters to testify to their emotional distress.

                                             26
No. 35163-7-III
Miller v. Dalton


       Steve and Leticia Miller contend, on appeal, that the trial court erred in granting

Drew Dalton summary judgment dismissal of the Millers' request for an award of

emotional distress damages resulting from the negligence of Dalton. The Millers also

argue that the trial court erred when dismissing their Consumer Protection Act claim at

the conclusion of trial. We first address questions that involve liability, or the extent of

liability, and then issues that entail the nature and amount of damages available. We

crisscross assignments of error presented by the Millers and presented by Drew Dalton.

                              Consumer Protection Act Claim

       Steve and Leticia Miller assign error to the trial court's grant of judgment as a

matter of law to Drew Dalton on their Consumer Protection Act claim at the close of trial

testimony. The majority of the court affirms this dismissal. The author of this lead

opinion dissents from the majority's ruling on this claim. The opinion written by Judge

Siddoway should be considered the controlling opinion for purposes of the Millers'

Consumer Protection Act cause of action, and this opinion should be considered a dissent

on this cause of action.

       We review judgments as a matter oflaw de novo. Faust v. Albertson, 167 Wn.2d

531, 537, 222 P.3d 1208 (2009). Judgment as a matter of law is appropriate only when

no competent and substantial evidence exists to support a verdict. Guijosa v. Wal-Mart

Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250 (2001). We construe all facts and




                                             27
No. 35163-7-III
Miller v. Dalton


reasonable inferences in favor of the nonmoving party. Yakima Fruit & Cold Storage Co.

v. Central Heating & Plumbing Co., 81 Wn.2d 528, 530, 503 P.2d 108 (1972).

       Steve and Leticia Miller contend that evidence supported Drew Dalton engaging

in the following unfair and deceptive acts and practices:

       1. Dalton misrepresented his experience in the area of HAMP cases;

       2. Dalton entered an oral contingent fee agreement with Steve and Leticia Miller

in violation of the attorney code of ethics;

       3. Dalton failed to convey to the Millers a favorable offer of settlement that they

would have accepted and which would have avoided extensive litigation;

       4. Dalton failed to accept the May 15, 2012 offer from SunTrust Mortgage

because he would not make any money on the settlement offer and he believed he would

gain a larger fee on a counterclaim that he pursued on behalf of the Millers;

       5. After failing to accept the SunTrust Mortgage offer and thereby committing

malpractice, Dalton held a conflict of interest that he did not disclose to the Millers

because he hoped in obtaining a larger fee in the litigation;

       6. Dalton agreed to represent the Millers on a 70/30 contingent fee agreement, but

then engaged in a bait and switch tactic when insisting that the Millers sign a contingent

fee agreement for a higher amount;

       7. Dalton agreed to represent the Millers on a contingent fee agreement, but he

collected money from the couple for which he provided no accounting or that he applied

                                               28
No. 35163-7-111
Miller v. Dalton


to hourly fees;

       8. Dalton attempted to change the fee agreement without advising the Millers that

they held no obligation to modify the fee agreement;

       9. Dalton misrepresented to the Millers that he could unilaterally increase the

contingent fee amount;

       10. Dalton misrepresented to the Millers that their payments covered expert costs

but he applied the money to his hourly fees;

       11. Dalton insisted that the Millers sign a promissory note at 13 percent interest

secured by other real estate in order to raise money for experts, despite Dalton hiring no

expert; and

       12. Dalton continually misrepresented to the Millers the need to continue the

litigation with SunTrust Mortgage when he knew that SunTrust Mortgage had presented

the Millers an acceptable offer to settle.

       RCW 19.86.020, an opening section of Washington's Consumer Protection Act,

declares unlawful "unfair methods of competition and unfair or deceptive acts or

practices in the conduct of any trade or commerce." The five elements of a private

Consumer Protection Act action include: ( 1) an unfair or deceptive act or practice, (2) in

the conduct of trade or commerce, (3) which impacts the public interest, (4) injury to the

plaintiffs in their business or property, and (5) a causal link between the unfair or

deceptive act and the injury suffered. Mason v. Mortgage America, Inc., 114 Wn.2d 842,

                                               29
No. 35163-7-III
Miller v. Dalton


852, 792 P.2d 142 (1990). Persons who are injured by such prohibited practices may

bring a private action to recover damages and the costs of the suit, including attorney

fees. Bowers v. Transamerica Title Insurance Co., 100 Wn.2d 581, 591, 675 P.2d 193

(1983). We must decide if Steve and Leticia Miller forwarded evidence to support each

of the five elements.

       Issue 1: Did the Millers present evidence sufficient to create a question offact as

to Drew Dalton committing an unfair or deceptive act and practice?

       Answer 1: Yes.

       A defendant commits a per se unfair or deceptive act under the Consumer

Protection Act if the plaintiff shows that the conduct violates a statute declaring the

conduct to be an unfair or deceptive act or practice in trade or commerce. Hangman

Ridge Training Stables, Inc. v. Safeco Title Insurance Co., 105 Wn.2d 778, 786, 719 P.2d

531 (1986). If a defendant's act or practice does not violate a statute, the plaintiff must

show the conduct is "unfair" or "deceptive" under a case-specific analysis of those terms.

Klem v. Washington Mutual Bank, 176 Wn.2d 771, 785-87, 295 P.3d 1179 (2013).

Because the act does not define "unfair" or "deceptive," Washington courts have allowed

the definitions to evolve through a gradual process of judicial inclusion and exclusion.

Saunders v. Lloyd's of London, 113 Wn.2d 330,344, 779 P.2d 249 (1989).

       Washington case law has established guiding criteria regarding the nature of an

"unfair" act or practice. For example, in Magney v. Lincoln Mutual Savings Bank, 34

                                             30
No. 35163-7-III
Miller v. Dalton


Wn. App. 45, 659 P.2d 537 (1983), the court reviewed three criteria, which the Federal

Trade Commission utilizes to determine whether a practice or act is "unfair":

               (1) whether the practice, without necessarily having been previously
       considered unlawful, offends public policy as it has been established by
       statutes, the common law or otherwise-whether, in other words, it is
       within at least the penumbra of some common-law, statutory, or other
       established concept of unfairness; (2) whether it is immoral, unethical,
       oppressive, or unscrupulous; (3) whether it causes substantial injury to
       consumers (or competitors or other businessmen).

Magney v. Lincoln Mutual Savings Bank, 34 Wn. App. at 57 (quoting Federal Trade

Commission v. Sperry & Hutchinson Co., 405 U.S. 233, 244 n.5, 92 S. Ct. 898, 31 L. Ed.

2d 170 (1972). Current federal law suggests that a "practice is unfair [if it] ... causes or

is likely to cause substantial injury to consumers which is not reasonably avoidable by

consumers themselves and not outweighed by countervailing benefits." Federal Trade

Commission Act of 1914, 15 U.S.C. § 45(n).

       The Consumer Protection Act also does not define the term "deceptive," but our

Supreme Court has declared that "[d]eception exists 'if there is a representation, omission

or practice that is likely to mislead' a reasonable consumer." Panag v. Farmers

Insurance Co., 166 Wn.2d 27, 50, 204 P.3d 885 (2009) (quoting Southwest Sunsites, Inc.

v. Federal Trade Commission, 785 F.2d 1431, 1435 (9th Cir. 1986). To prove that a

practice is deceptive, neither intent to deceive nor actual deception is required. Panag v.

Farmers Insurance Co., 166 Wn.2d at 47. The question is whether the conduct has the

capacity to deceive a substantial portion of the public. Panag v. Farmers Insurance Co.,

                                             31
No. 35163-7-111
Miller v. Dalton


166 Wn.2d at 47. An act or practice can be unfair without being deceptive. Rush v.

Blackburn, 190 Wn. App. 945,963,361 P.3d 217 (2015).

       A "bait and switch" tactic, by which the seller offers to sell one product only to

draw the customer to another more profitable product, can violate the Consumer

Protection Act. Walker v. Wenatchee Valley Truck & Auto Outlet, Inc., 155 Wn. App.

199, 214-15, 229 P.3d 871 (2010). Deceptive billing practices can constitute an unfair or

deceptive act or practice under consumer protection law. Logan v. LaSalle Bank

National Association, 80 A.3d 1014, 1027 (D.C. 2013). Intentional nondisclosure of

material facts may also be an unfair or deceptive act or practice. Grossman v. Waltham

Chemical Co., 14 Mass. App. Ct. 932,436 N.E.2d 1243, 1245 (1982).

       The Millers claim that Drew Dalton committed a per se unfair or deceptive act or

practice because he violated Washington's usury statute, RCW 19.52.020, by insisting on

thirteen percent interest on a proposed loan. I note, however, that the Millers never

signed a promissory note with thirteen percent interest. RCW 19.52.030, one of the usury

statutes, only applies if the parties enter a loan agreement. For the usury laws to apply,

there must be a loan or forbearance of money. 44B AM. JUR. 2D Interest and Usury§ 64

(2018). Therefore, the Millers sustain no claim for a per se unfair or deceptive act or

practice.

       I conclude, however, that a trier of fact could find, based on trial testimony, that

Drew Dalton engaged in one or more other unfair or deceptive acts or practices as listed

                                             32
No. 35163-7-III
Miller v. Dalton


by the Millers. I would not preclude a trier of fact from determining that pressure to enter

a usurious loan agreement otherwise constitutes an unfair or deceptive act and practice.

       Issue 2: Did the Millers present evidence sufficient to create a question offact as

to whether Drew Dalton's alleged misconduct occurred in trade or commerce?

       Answer 2: Yes.

       RCW 19.86.010(2) defines "[t]rade" and "commerce" as including "the sale of

assets or services, and any commerce directly or indirectly affecting the people of the

State of Washington." Certain entrepreneurial aspects of the practice oflaw fall within

the "trade or commerce" definition of the Consumer Protection Act. Short v. Demopolis,

103 Wn.2d 52, 61, 691 P .2d 163 ( 1984). Entrepreneurial aspects include "how the price

of legal services is determined, billed, and collected and the way a law firm obtains,

retains, and dismisses clients." Short v. Demopolis, 103 Wn.2d at 61. Conduct in

obtaining clients or increasing profits, including conflicts of interest, fall within the

purview of the Consumer Protection Act. Eriks v. Denver, 118 Wn.2d 451, 464-65, 824

P.2d 1207 (1992). Nevertheless, claims oflegal negligence or malpractice remain

exempt from the Consumer Protection Act since these claims relate to the competence of

and the strategy employed by lawyers. Eriks v. Denver, 118 Wn.2d at 464. Whether

legal counsel acted for entrepreneurial purposes is a question of fact. Eriks v. Denver,

118 Wn.2d at 465.
                                                                                               I
       I deem the failure to forward an offer of settlement as generally entailing legal

                                              33
No. 35163-7-III
Miller v. Dalton


malpractice, but we conclude that, when the client forwards evidence that the attorney

failed to forward the settlement to increase fees, the attorney's neglect entails the

entrepreneurial aspect of the practice. Many of the other acts, about which Steve and

Leticia Miller complain and support with evidence, also involved entrepreneurial aspects

of the practice of law.

       Issue 3: Did the Millers present evidence sufficient to create a question offact as

to whether Drew Dalton's alleged unfair or deceptive acts and practices impacted the

public interest?

       Answer 3: Yes.

       The purpose section of the Consumer Protection Act, buried in RCW 19.86.920,

states, in relevant part:

              It is ... the intent of the legislature that this act shall not be
       construed to prohibit acts or practices which ... are not injurious to the
       public interest.

This language forms the basis for the third element of a private Consumer Protection Act

claim. Hangman Ridge Training Stables, Inc. v. Safeco Title Insurance Co., 105 Wn.2d

at 788 (1986). The trial court dismissed Steve and Leticia Miller's Consumer Protection

Act claim based on a failure to show Drew Dalton's conduct impacted the public interest.

       Since the inception of the private cause of action, the Consumer Protection Act has

spawned significant litigation over what conduct impacts the public interest, with

Washington courts construing this element narrowly. Under earlier Washington case

                                             34
No. 35163-7-111
Miller v. Dalton


law, a breach of a private contract affecting no one but the parties to the contract did not

affect the public interest. Lightfoot v. MacDonald, 86 Wn.2d 331, 334, 544 P .2d 88

(1976). Nevertheless, the likelihood that additional plaintiffs have been or will be injured

in exactly the same fashion can change a factual pattern from a private dispute to one that

affects the public interest. McRae v. Bolstad, IOI Wn.2d 161, 166,676 P.2d 496 (1984).

An act or practice impacted the public interest when ( 1) it was part of a pattern or

generalized course of conduct, and (2) there was a real and substantial potential for

repetition of the defendant's conduct after the act involving plaintiff. Eifler v. Shurgard

Capital Management Corp., 71 Wn. App. 684, 697, 861 P.2d 1071 (1993).

       In 2009, the Washington Legislature adopted RCW 19.86.093 to delineate

methods by which a Consumer Protection Act claimant may demonstrate the defendant's

conduct impacted the public interest. The statute declares:

              In a private action in which an unfair or deceptive act or practice is
       alleged under RCW 19.86.020, a claimant may establish that the act or
       practice is injurious to the public interest because it:
              ( 1) Violates a statute that incorporates this chapter;
              (2) Violates a statute that contains a specific legislative declaration
       of public interest impact; or
              (3)(a) Injured other persons; (b) had the capacity to injure other
       persons; or (c) has the capacity to injure other persons.

RCW 19.86.093 (emphasis added). Presumably the word "may" denotes an intent to

render the list of methods to prove the public interest element nonexhaustive. Since the
                                                                                               I
                                                                                               l
                                                                                               i

2009 enactment, most litigation has proceeded as if the statute did not exist.                 i

                                             35
                                                                                               I•
                                                                                               '·



                                                                                               l
                                                                                               I
No. 35163-7-III
Miller v. Dalton


       Steve and Leticia Miller contend that Drew Dalton's insistence on the Millers'

procuring a loan carrying thirteen percent interest establishes a per se public interest

impact because the conduct violated the usury statute. Nevertheless, as already indicated,

the Millers never agreed to a loan with thirteen percent interest, so Dalton did not breach

the statute.

       Steve and Leticia Miller presented no evidence that Drew Dalton repeated his

conduct with other clients such that his acts or practices actually injured others. So I

focus on whether Dalton's alleged unfair and deceptive acts and practices had or has the

capacity to injure others. RCW 19.86.093 aids none in resolving this question. The

parties do not assist either because neither party cites the statute.

       I observe some conflicting principles of statutory construction in the context of

RCW 19.86.093. On the one hand, I do not assume that the legislature intended to

significantly change the law by implication. Sherman v. Kissinger, 146 Wn. App. 855,

869, 195 P.3d 539 (2008). On the other hand, in construing a statute which reenacts a

statute with certain changes in the wording, a change in legislative purpose must be

presumed. Graffell v. Honeysuckle, 30 Wn.2d 390,399, 191 P.2d 858 (1948). A

presumption carries in all changes in statute law that the legislature recognized a mischief

and a remedy. Graffell v. Honeysuckle, 30 Wn.2d at 400. In such instances, the

legislature must have intended some significant change in the law. Graffell v.

Honeysuckle, 30 Wn.2d at 400.

                                              36
No. 35163-7-III
Miller v. Dalton


       I discern a significant change in the law by the adoption of RCW 19.86.093. The

claimant now need only show the defendant's conduct carried the capacity to injure

others. The claimant need no longer demonstrate any injury to another customer or

client. The claimant need no longer prove a pattern or generalized course of conduct.

The plaintiff need no longer establish a real and substantial potential for or likelihood of

repetition.

       RCW 19.86.093 still contains an ambiguity. We notice two possible varying

interpretations of the statute. The language" ... an unfair or deceptive act or practice ...

had the capacity to injure other persons" could mean, on the one hand, a broad

interpretation that the nature of the acts were such that the defendant could repeat those

acts to the injury of others or, on the other hand, a narrow interpretation that the specific

acts directed toward the plaintiff could have injured others.

       In this appeal, the ambiguity in RCW 19.86.093 poses two distinct and disparate

factual questions for the trier of fact. First, under the broad construction, whether Drew

Dalton could also misrepresent his experience, could engage in strong-arm billing

practices, could mislead as to the role of co-counsel or an expert, could attempt to change

his compensation package, could fail to forward a settlement offer, and could hold a

conflict of interest in continued representation of a client to the detriment of another

client? Second, under the narrow reading, whether Drew Dalton's misrepresentation of

his experience to Steve and Leticia Miller, his engagement of strong-arm billing practices

                                             37
                                                                                               I
No. 35163-7-III
Miller v. Dalton
                                                                                               I
                                                                                               1i




with the Millers, his failure to forward SunTrust Mortgage's settlement offer to the

Millers, his concealment from the Millers of a potential conflict in order to increase legal

fees, assuming any such acts occurred, injured people other than the Millers. No

evidence supports a finding that Dalton's conduct directed at Steve and Leticia Miller

damaged any third parties. Nevertheless, I choose the former, broader interpretation

because the latter, narrower interpretation would not significantly change earlier

Washington case law.

       I hesitate in adopting the wider interpretation ofRCW 19.86.093 because in some

sense all conduct of someone in business has the capacity to be repeated with regard to

another client or customer and thereby injure that other client or customer. I construe

RCW 19.86.093, however, to exclude from coverage conduct so unique that the chance

of repetition toward someone else remains minimal.

       I conclude that Steve and Leticia Miller presented evidence that allowed a trier of

fact to resolve whether unfair and deceptive acts or practices of Drew Dalton had the

capacity to injure others. The type of misconduct shown by the testimony could readily

be repeated with other clients.

       Issue 4: Whether the Millers presented evidence to support a question offact as to

whether the conduct of Drew Dalton caused them injury in their business or property?

       Answer 4: Yes.

       I conclude that Steve and Leticia Miller presented evidence that, assuming the

                                             38
No. 35163-7-111
Miller v. Dalton


evidence to be true, demonstrated an injury to their interest in their home, property and

financial affairs. A person's financial injury constitutes damage to business or property

under the Consumer Protection Act. Cuevas v. Montoya, 48 Wn. App. 871, 878-79, 740

P.2d 858 (1987). Drew Dalton does not argue to the contrary.

                                     Comparative Fault

       Issue5: Whether sufficient evidence supported a jury instruction that would direct

the jury to assess comparative fault, if any, of Steve and Leticia Miller?

       Answer 5: No.

       This lead opinion returns to being the majority opinion. Drew Dalton assigns error

to the trial court's refusal to permit the jury to assess comparative fault against Steve and

Leticia Miller. Contributory negligence or comparative fault can be a defense in an

attorney malpractice suit. Stiley v. Block, 130 Wn.2d 486, 503-04, 925 P .2d 194 ( 1996);

Hansen v. Wightman, 14 Wn. App. 78, 86, 538 P.2d 1238 (1975). The attorney holds the

burden to show comparative fault. Hansen v. Wightman, 14 Wn. App. at 86. The

fiduciary or unique relationship between an attorney and a client may limit the duties of a

client to act reasonably and thereby impact the scope of comparative fault by the client.

Hansen v. Wightman, 14 Wn. App. at 86.

       Washington's contributory fault statute applies only to actions for "injury or death

to person or harm to property." RCW 4.22.005. An attorney malpractice suit does not

entail physical injury or damage to person or property. Thus, any contributory

                                             39
No. 35163-7-III
Miller v. Dalton


negligence of the client might function as an absolute bar to recovery in a legal

malpractice suit. Gorski v. Smith, 2002 Pa. Super 334, 812 A.2d 683 (2002). We need

not address this question.

       This court reviews a trial court's refusal to give a proposed jury instruction for an

abuse of discretion. State v. Picard, 90 Wn. App. 890, 902, 954 P.2d 336 (1998). A

court must instruct the jury on a party's position if substantial evidence supports the

position. Langan v. Valicopters, Inc., 88 Wn.2d 855, 866, 567 P.2d 218 (1977). We

conclude substantial evidence did not support any instruction on comparative fault.

       In his brief, Drew Dalton impliedly contends that Steve Miller's purchase of a

truck that cost $50-60,000 and Miller's investing of some of the proceeds from the Bank

of Whitman loan into the stock market constituted comparative fault. Nevertheless,

Dalton provides no analysis as to the purported unreasonableness of Miller's two acts.

Dalton claims that Steve Miller purchased the truck after he knew he may encounter

financial woes, but the only evidence shows that Miller purchased the truck in 2006, two

years before the loan. No witness opined that investing money in the stock market is

unreasonable.

       RAP 10.3(a)(6) directs each party to supply, in his brief, "argument in support of

the issues presented for review, together with citations to legal authority and references to

relevant parts of the record." We do not consider conclusory arguments that are

unsupported by citation to authority. Joy v. Department ofLabor & Industries, 170 Wn.

                                             40
No. 35163-7-111
Miller v. Dalton


App. 614,629,285 P.3d 187 (2012). Passing treatment of an issue or lack of reasoned

argument is insufficient to merit judicial consideration. West v. Thurston County, 168

Wn. App. 162, 187,275 P.3d 1200 (2012); Holland v. City of Tacoma, 90 Wn. App. 533,

538, 954 P.2d 290 (1998).

       All of the alleged negligent conduct of Steve Miller occurred years before Steve

and Leticia Miller hired Drew Dalton for assistance. We also conclude that conduct that

led to a client's financial problems cannot be considered comparative fault in a claim by

the client against an attorney hired to assist in relieving the client from the predicament.

       The client's alleged negligence must relate to the injury alleged to have been

caused by the attorney's negligence and must relate to the attorney's representation.

McLister v. Epstein & Lawrence, PC, 934 P.2d 844, 846 (Colo. App. 1996). For

example, a comparative negligence instruction may be based on evidence that the client:

(1) failed to supervise, review, or inquire as to the representation, (2) refused to follow

advice or instructions, (3) failed to provide the attorney with essential information, (4)

failed to mitigate damages caused by the lawyer's negligence, or (5) interfered with the

attorney's representation. McLister v. Epstein & Lawrence, PC, 934 P.2d at 846. The

attorney may not rely on the negligence of the client preceding the attorney's

engagement. McLister v. Epstein & Lawrence, PC, 934 P.2d at 846. Drew Dalton's

theory of comparative fault against the Millers would permit a physician to employ

comparative fault against a patient for the patient's negligence in causing an automobile

                                             41
No. 35163-7-111
Miller v. Dalton


accident when the patient sues the physician for failing to properly set a broken bone

resulting from the accident.

       In McLister v. Epstein & Lawrence, PC, 934 P.2d 844 (Colo. App. 1996), the

reviewing court reversed the trial court's delivery of a jury instruction allowing the jury

to assess comparative fault on the client in an attorney malpractice case. The client sued

the attorneys for negligent representation during a worker compensation proceeding. The

attorneys sought reduction of any award on the basis of comparative fault because the

client failed to purchase worker compensation insurance. The attorneys knew the client

lacked insurance when the attorneys agreed to represent him.

                                 Economic Damages A ward

       Issue 6: Was the jury award of $496,000 outside the realm of the evidence?

       Answer 6: Yes.

       We now address challenges that impact the jury award. Drew Dalton assigns error

to the trial court's denial of a motion for a new trial or for a remittitur because the jury's

award of damages for negligence exceeded the difference between Steve and Leticia

Miller's present economic condition and the condition, in which they would have been,

absent Dalton's negligence. We agree with Dalton that the award for damages exceeded

a permissible maximum even when viewing the evidence in a light most favorable to the

Millers.

       A jury damage award should be overturned only if ( 1) the award lies outside the

                                              42
No. 35163-7-III
Miller v. Dalton


range of the evidence, (2) the jury was obviously motivated by passion or prejudice, or

(3) the verdict amount is shocking to the court's conscience. Hill v. GTE Directories

Sales Corp., 71 Wn. App. 132, 138, 856 P.2d 746 (1993). Although Drew Dalton also

argues that passion influenced the jury award, we focus on Dalton's argument that the

award lay outside the evidence.

       When the proponent of a new trial argues that the evidence does not sustain the

verdict, appellate courts review the record to determine whether sufficient evidence

supports the verdict. McUne v. Fuqua, 45 Wn.2d 650, 652, 277 P.2d 324 (1954). In

doing so, we also determine whether the verdict conflicts with law. CR 59(a)(7). The

trial court abuses its discretion when denying a motion for a new trial when the verdict

diverges from the evidence. Palmer v. Jensen, 132 Wn.2d 193, 198, 937 P.2d 597

(1997).

      This appeal demands review of an award for economic damages. The law

probably defers more to a jury in assessing noneconomic damages than economic

damages. Washburn v. Beatt Equipment Co., 120 Wn.2d 246, 269, 840 P.2d 860 (1992).

This preference results from pain and suffering not being susceptible to precise

measurement and being unable to be fixed with mathematical certainty by the proof.

Wagner v. Monteith, 43 Wn. App. 908, 912, 720 P.2d 847 (1986).

      A prevailing claimant in a legal malpractice suit may recover the amount of loss

actually sustained as a proximate cause of the attorney's conduct. Schmidt v. Coogan,

                                            43
No. 35163-7-111
Miller v. Dalton


181 Wn.2d 661,670,335 P.3d 424 (2014). Stated differently, a plaintiff is entitled to the

sum of money that will place her in as good of a position as she would have been but for

the attorney's breach of the standard of care. Shoemake v. Ferrer, 168 Wn.2d 193, 198,

225 P.3d 990 (2010). A plaintiff should be made whole without conferring a windfall.

Shoemake v. Ferrer, 168 Wn.2d at 198. This measure of damages parallels the standard

tort measure of damages. Puget Sound Power & Light Co. v. Strong, 117 Wn.2d 400,

403,816 P.2d 716 (1991).

      The trial court permitted no recovery for emotional distress damages. Therefore,

all damages constituted economic loss. We accept Drew Dalton's surmise that the jury

reached the $496,000 award on the negligence claim by starting with the amount of the

judgment in favor of SunTrust Mortgage against Steve and Leticia Miller plus interest

through trial, an amount of $566,086, and subtracting the mortgage payments that Steve

and Leticia Miller would have paid from the date they would have accepted the loan

modification until trial, an amount of $69,529. We note that the subtraction homework

equals $496,557, not $496,000, but we call the result close enough. Regardless, the

evidence does not support a loss of $496,000. Under the law, the Millers were not

entitled to recovery of the judgment against them in favor of SunTrust minus the

mortgage payments saved through the date of trial.

      If Drew Dalton had forwarded the settlement offer to Steve and Leticia Miller and

the Millers had accepted the offer, the Millers would have been absent a judgment against

                                           44
No. 35163-7-III
Miller v. Dalton


them, would have continued to own a home, but would have continued to owe a

mortgage on the home. Therefore, the measure of damages should be the difference

between the value of the home and the amount of the mortgage. In other words, the jury

should have limited the award to the lost equity in the Rockford residence. The jury

awarded the Millers the financing costs to build the home without recognizing an

encumbrance owed on the home.

       Drew Dalton's violation of the standard of care resulted in Steve and Leticia

Miller losing refinancing. Stated differently, the Millers lost the issuance of a loan on

new terms. We analogize to cases, in which the claimant seeks recovery for a breach of a

promise to loan money. Although the cases sound in contract, they seek damages

resulting from lost financing or refinancing. One such case also mentions the equivalent

measure applies when the failure to issue the loan resulted from negligence. F.B. Collins

Investment Co. v. Sallas, 260 S.W. 261, 265 (Tex. Civ. App. 1924).

       In cases involving violation of a promise to lend, the courts allow recovery based

on actu.al loss. F.B. Collins Investment Co. v. Sallas, 260 S.W. at 265. In tum, the

general measure of damages for a breach of an agreement to lend money at a particular

time is the amount of the difference between interest on the loan at the contract rate and

at the rate which the borrower would have to pay for the money in the market. United

California Bank v. Prudential Insurance Company ofAmerica, i 40 Ariz. 23 8, 681 P .2d

390,448 (Ct. App. 1983); F.B. Collins Investment Co. v. Sallas, 260 S.W. at 264; Hedden

                                             45
                                                                                                f
                                                                                                I
No. 35163-7-III
Miller v. Dalton


v. Schneblin, 126 Mo. App. 478, 104 S.W. 887, 890 (1907). Ordinarily the measure of

damage resulting from a lost loan is the excess interest paid on a substitute loan and

perhaps the expense attending to negotiation of another loan. Farm Credit Services of

Michigan's Heartland, PCA. v. Weldon, 232 Mich. App. 662, 591 N.W.2d 438,447

(1998); Hixson v. First National Bank of New Sharon, 198 Iowa 942,200 N.W. 710, 711

(1924).

       A different rule prevails if the potential borrower loses title to the property as a

result of the breach of promise to lend. When the prospective borrower loses title to the

property at a foreclosure sale as a result of the failure to lend money particularly when the

purpose of the loan was to pay off prior encumbrances, the measure of damages is the

difference between the fair market value of the property and the amount of the liens on

the property. Farm Credit Services of Michigan's Heartland, PCA v. Weldon, 591

N.W.2d at 447; United California Bank v. Prudential Insurance Company ofAmerica,

681 P.2d at 448; St. Paul at Chase Corp. v. Manufacturers Life Insurance Co., 262 Md.

192, 241-42, 278 A.2d 12 (1971); F.B. Collins Investment Co. v. Sallas, 260 S.W. at 264-

65 (Tex. Civ. App. 1924); Hedden v. Schneblin, 104 S.W. at 888-89 (1907); Doushkess v.

Burger Brewing Co., 20 A.D. 375, 47 N.Y.S. 312, 314-15 (1897). In other words, the

damages constitute the lost equity in the property. Hopewell Building Co. v. Callan, 200

A.D. 588, 193 N.Y.S. 504,508 (1922). The injured party may not recover the full value

of the land independent of the encumbrance on the land. F.B. Collins Investment Co. v.

                                             46
No. 35163-7-III
Miller v. Dalton


Sallas, 260 S.W. at 265. After all, regardless of the breach, the landowner must pay the

lien indebtedness. F.B. Collins Investment Co. v. Sallas, 260 S.W. at 265. Legally the

property owner only loses the value of the land. United California Bank v. Prudential

Insurance Company ofAmerica, 681 P.2d at 448 (1983). In a similar vein, in

Washington, when a financing company refused to lend to a property owner, the owner

was entitled to recover the fair market value of a completed building on the property

minus the expense of purchasing the land and constructing the building. Linear

Contractors, Ltd. v. Hyskell, 39 Wn. App. 317, 323, 692 P.2d 903 (1984).

       Steve and Leticia Miller argue that the jury awarded them sufficient funds to save

their home from foreclosure. But the funds awarded by the jury would allow the Millers

to pay the house in full without any mortgage. Nevertheless, had Drew Dalton complied

with the standard of care, the Millers would have still owed a mortgage debt. The Millers

further observe that they must pay the entire judgment to save the home from foreclosure

and so they characterize their damage as the inability to pay the entire mortgage

immediately. But even if SunTrust Mortgage takes title by a foreclosure sale, the Millers

did not lose the entire value of the home. They are then excused from paying the large

mortgage debt. The acceleration of the entire amount owed under the mortgage by the

creditor does not change the measure of damages. In cases we cite above, the failure to

lend led to a foreclosure sale whereat the borrower would have needed to pay the entire

amount of a debt in order to save the property from foreclosure.

                                            47
No. 35163-7-111
Miller v. Dalton


       We note that Steve and Leticia Miller filed bankruptcy and thereby prevented

foreclosure on the deed of trust by SunTrust Mortgage. For all we know, the Millers may

eventually be able to gamer a satisfactory payment schedule through the bankruptcy court

in order to keep the Rockford residence. Under the rules above, the Millers should then

only recover the additional interest that they might pay as a result of not entering a

settlement with SunTrust Mortgage in May 2012.

       Two cases declare that the jury measures the damages at the time of the loss of

title. United California Bank v. Prudential Insurance Company ofAmerica, 681 P .2d

390 (1983); F.B. Collins Investment Co. v. Sallas, 260 S.W. 261 (Tex. Civ. App. 1924).

This rule may echo the Washington rule that the correct measure of damages in cases

involving stolen or destroyed property is the property's highest fair market value within a

reasonable amount of time from the date of conversion or injury. Glaspey v. Prelusky, 36

Wn.2d 592,595,219 P.2d 585 (1950); Brougham v. Swarva, 34 Wn. App. 68, 75-76, 661

P.2d 138 (1983).

       We encounter difficulty in accurately computing economic damages suffered by

Steve and Leticia Miller for several reasons. First, the prevailing, if not universal rule, is

that damages are measured at the time of the foreclosure or loss of title under the

situation when the borrower fails to gain substitute financing. Yet, because of the

Millers' bankruptcy, SunTrust Mortgage has not yet wrested title from Steve and Leticia

Miller. Conceivably, Steve and Leticia Miller will save their home from foreclosure

                                              48
No. 35163-7-III
Miller v. Dalton


through bankruptcy protection that may procure refinancing. If so, the measure of

damages is the expense of refinancing and the additional, if any, interest paid by the

Millers over the life of the new loan above the interest they would have paid under the

May 2012 offer from SunTrust Mortgage. We do not know these figures.

       If Steve and Leticia Miller lose title, their damages would consist of the equity in

the home at the time of lost title. Paul Murray valued the Rockford home between

$620,000 and $650,000, but only if completed as planned. In its unfinished state at the

time of trial, according to Murray, the home's value ranged from $555,000 to $575,000.

Linear Contractors, Ltd. v. Hyskell, 39 Wn. App. 317 ( 1984 ), allows recovery based on

the value of the building in its completed state, but the trier of fact must deduct the cost

of completion from the value. No one testified to the cost to complete the Millers'

residence. Also, Murray probably testified to the value at the time of trial, not the value

at any prospective time of foreclosure. We later address the ramifications of these

obstacles of assessing damages when discussing the remedy to grant Drew Dalton.

       Issue 7: Whether Drew Dalton waived a challenge on appeal to the amount of the

jury award because he failed to object to jury instruction 9?

       Answer 7: No.

       Steve and Leticia Miller ask that we refuse to address Drew Dalton's assignment

of error to the jury award. The Millers contend that Dalton waived any challenge to the

award because Dalton registered no objection to the jury charge that directed the jury

                                             49
                                                                                               II
No. 35163-7-111
Miller v. Dalton


how to measure damages. The subject instruction, instruction 9, in part bade the jury to

"consider the amount of economic loss actually sustained and the award necessary to

restore Steve and Leticia Miller to the position they would have been in if Drew Dalton

had met the standard of care." CP at 815.

       We disagree that Drew Dalton needed to object to this instruction. The instruction

correctly advised the jury as to the measure of damages, so any objection would lack

merit. Dalton, on appeal, does not object to the jury instruction, but complains that the

evidence, in light of the legal instruction, failed to substantiate the high award. Dalton

contends that the jury verdict exceeded the need to restore Steve and Leticia Miller to the

position they would have enjoyed if Dalton had complied with the standard of care. The

Millers cite no authority to support waiver of an assignment of error under these

circumstances.

       Issue 8: What relief should we award Drew Dalton as a result of the jury verdict

exceeding the evidence?

       Answer 8: Because of the difficulty in assessing a remittitur and because we grant

a new trial on other issues, we grant Drew Dalton a new trial as to damages but not for

his legal malpractice.

       Before the trial court, Drew Dalton requested a new trial or, in the alternative, a

remittitur reducing the jury award to either $140,000 or $268,000. The trial court refused

both requests for relief. Since we have held that the evidence does not support the jury

                                             50
No. 35163-7-III
Miller v. Dalton


verdict, we must decide whether to award a new trial or a remittitur. We grant a new trial

without a remittitur.

       Black's Law Dictionary defines remittitur as:

              An order awarding a new trial, or a damages amount lower than that
       awarded by the jury, and requiring the plaintiff to choose between those
       alternatives.

BLACK'S LAW DICTIONARY       1486 (10th ed. 2014). A remittitur's antonym is an additur,

whereby the court awards a higher sum of money than the verdict.

       RCW 4.76.030 controls remittiturs in Washington State. The statute declares:

              If the trial court shall, upon a motion for new trial, find the damages
       awarded by a jury to be so excessive or inadequate as unmistakably to
       indicate that the amount thereof must have been the result of passion or
       prejudice, the trial court may order a new trial or may enter an order
       providing for a new trial unless the party adversely affected shall consent to
       a reduction or increase of such verdict ....

Although the statute only references verdicts based on passion or prejudice, courts apply

the statute in instances when the jury award lies outside the range of evidence. Green v.

McAllister, 103 Wn. App. 452,462, 14 P.3d 795 (2000). An appellate court holds

authority to reduce a jury's damages award under the doctrine of remittitur and under

RCW 4.76.030 if the award is outside the range of substantial evidence in the record.

Bunch v. King County Department of Youth Services, 155 Wn.2d 165, 171-72, 116 P.3d

381 (2005).

       CR 59 addresses a motion for new trial. The court rule announces:
                                                                                             If
                                                                                             i
                                                                                             I
                                            51
No. 35163-7-111
Miller v. Dalton


              (a) Grounds for New Trial or Reconsideration. On the motion of
       the party aggrieved, a verdict may be vacated and a new trial granted to all
       or any of the parties, and on all issues, or on some of the issues when such
       issues are clearly and fairly separable and distinct, or any other decision or
       order may be vacated and reconsideration granted. Such motion may be
       granted for any one of the following causes materially affecting the
       substantial rights of such parties:
              (1) Irregularity in the proceedings of the court, jury or adverse party,
       or any order of the court, or abuse of discretion, by which such party was
       prevented from having a fair trial;

               (5) Damages so excessive or inadequate as unmistakably to indicate
       that the verdict must have been the result of passion or prejudice;

             (7) That there is no evidence or reasonable inference from the
       evidence to justify the verdict or the decision, or that it is contrary to law.

(Emphasis added.)

       We recognize that the law encourages the trial court, if not a reviewing court, to

increase or reduce a verdict as an alternative to a new trial. Usher v. Leach, 3 Wn. App.

344,346,474 P.2d 932 (1970). A remittitur or additur avoids multiple trials. Benjamin

v. Randell, 2 Wn. App. 50, 53-54, 467 P.2d 196 (1970). Nevertheless, we choose a new

trial because we are unable to compute a reasonable amount for a remittitur.

       In Mutual of Enumclaw Insurance Co. v. Gregg Roofing, Inc., 178 Wn. App. 702,

726-27, 315 P .3d 1143 (2013 ), this court declined to grant a remittitur because both the

trial court and it encountered difficulty based on the record in calculating permissible

damages. Because the evidence did not justify the damage, however, the court granted a

new trial on damages.


                                              52
No. 35163-7-III
Miller v. Dalton


       The court can leave the jury's liability verdict intact and order a new trial on the

issue of damages only. CR 59(a); Mutual ofEnumclaw Insurance Co. v. Gregg Roofing,

Inc., 178 Wn. App. at 727; Green v. McAllister, 103 Wn. App. at 462 (2000). We do not

grant Drew Dalton a new trial on the issue of his liability for legal malpractice. The

award for breach of fiduciary duty also stands.

                               Emotional Distress Damages

      Issue 9: Whether Steve and Leticia Miller presented sufficient evidence, in

response to a summary judgment motion, to proceed with a claim for emotional distress

damages on their legal malpractice suit?

      Answer 9: Yes.

       Steve and Leticia Miller contend the trial court erred in dismissing their claim for

emotional distress damages on summary judgment. Courts review an order for summary

judgment de novo. Keckv. Collins, 184 Wn.2d 358,370,357 P.3d 1080 (2015).

      Four years ago the Washington Supreme Court addressed emotional distress

damages in the context of attorney malpractice in Schmidt v. Coogan, 181 Wn.2d 661

(2014). The majority held:

              [w ]e hold that the plaintiff in a legal malpractice case may recover
      emotional distress damages when significant emotional distress is
      foreseeable from the sensitive or personal nature of representation or when
      the attorney's conduct is particularly egregious.




                                             53
No. 35163-7-111
Miller v. Dalton


Schmidt v. Coogan, 181 Wn.2d at 671. The court later added intentional conduct as

qualifying for emotional distress damages.

       Schmidt v. Coogan entailed ordinary negligence of an attorney. The attorney filed

a tort complaint on behalf of Teresa Schmidt days before the statute oflimitations ran.

The attorney named the wrong defendant and the court dismissed the case as barred by

the statute of limitations. Schmidt complained that her attorney harassed, belittled, and

intimidated her when she questioned him about the statute of limitations before the

limitation period expired. The court concluded that the subject matter of the lawsuit did

not qualify as sensitive and the misconduct of the attorney did not suffice as egregious.

       The Schmidt court understandably gave no guidelines for determining whether an

attorney's negligence impacts a personal or sensitive subject or constitutes egregious

behavior. The dissent, in Schmidt, quoted Black's Law Dictionary 629 (10th ed. 2014) as

defining "'egregious'" as "' extremely or remarkably bad.'" Schmidt v. Coogan, 181

Wn.2d at 687 (2014) (Stephens, J. dissenting). The dissent considered the attorney's

ridicule of Teresa Schmidt for failing to trust him about fulfilling the statute of limitations

as "' remarkably bad.'" Schmidt v. Coogan, 181 Wn.2d at 687.

       Drew Dalton argues no Washington court has affirmed emotional distress damages

in this appeal's context and he highlights a Vermont Supreme Court decision, Vincent v.

De Vries, 2013 Vt. 34, 193 Vt. 574, 72 A.3d 886. The Schmidt court relied on Vincent

when declaring Teresa Schmidt's attorney's behavior as not egregious. In Vincent, an
                                                                                                  II
                                              54
No. 35163-7-111
Miller v. Dalton


elderly man, Leland Vincent, almost lost his home because of his attorney's negligence.

Vincent sought to avoid the enforcement of an agreement to sell his home. When the

buyer sued to enforce the sale agreement, Vincent hired Douglas De Vries to defend the

suit. DeVries stipulated that the dispute could be resolved by summary judgment, but

DeVries never forwarded a declaration of Vincent of the circumstances preceding the

signing of the sale agreement, which circumstances could support a defense of fraud or

misrepresentation. After the trial court granted the buyer summary judgment to enforce

the sale, De Vries sought to vacate the judgment with a declaration from Vincent. The

court refused to entertain the vacation because of the earlier stipulation. Vincent then

paid the buyers a significant sum to cancel the sale, and Vincent sued DeVries for

malpractice.

       In reversing the trial court's decision to award emotional damages on a

malpractice claim, the Vermont court, in Vincent v. De Vries, noted:

              [P]laintiff here did not lose his home but, rather, faced a threatened
      loss of his home which he ultimately avoided by settling the case. We do
      not mean to suggest that the anxiety associated with the threatened loss of
      one's home cannot be profound. But in contrast to the loss of liberty or
      one's child-very significant losses for which there may be no adequate
      measure of pecuniary damages, and in connection with which serious
      emotional distress can be readily expected-what plaintiff ultimately lost in
      this case was money.

Vincent v. De Vries, 193 Vt. at 589. In so ruling, the court focused only on whether the

subject of the lawsuit involved a matter personal or emotional in nature. The Vermont


                                            55
No. 35163-7-III
Miller v. Dalton


court did not focus on the egregious or trifling nature of the misconduct of the attorney.

       We note additional anxiety producing behavior of attorney Drew Dalton than the

ordinary negligence of the Vermont attorney in Vincent v. De Vries. But more

importantly we recognize the pronounced and blatant acts of Drew Dalton as presented in

the testimony of Steve Miller. The type of conduct described by Steve Miller, if

believed, gives lawyers a bad name. Dalton entered a contingent fee agreement with his

clients but could never produce a copy. Dalton failed to complete steps necessary to

resolve a dispute and then benefited from his negligence or intentional misconduct. He

hid critical facts from his clients. He tried to coerce a change in his compensation to his

profit. He hired assistants without approval of his clients and without informing them of

the true relationship with the assistants. He billed for his hours worked on a contingent

fee case.

       The trial court dismissed Steve and Leticia Miller's claim for emotional distress

damages on summary judgment rather than as a matter of law at the conclusion of trial.

Therefore, we must base our review on declarations and deposition testimony presented

to the trial court in response to the summary judgment motion. We have reviewed those

declarations and deposition excerpts and note their consistency with the trial testimony.

The trier of fact should determine if Drew Dalton's behavior was egregious such as to

support a claim for emotional distress damages.




                                             56
No. 35163-7-III
Miller v. Dalton


                        Daughters' Testimony of Emotional Distress

       Issue 10: Whether the trial court abused its discretion when allowing the Miller

daughters to testify to their emotional distress?

       Answer 10: No.

       Drew Dalton assigns error to the trial court's admission of testimony from the two

Miller daughters about the emotional toll of the delay and failure to garner refinancing

from SunTrust Mortgage. Dalton claims the testimony lacked relevance to the issues at

trial and that, assuming any relevance, the prejudice resulting from the testimony

outweighed any relevance under ER 403. This court reviews a trial court's decision as to

the admissibility of evidence under the abuse of discretion standard. State v. Powell, 126

Wn.2d 244,258,893 P.2d 615 (1995).

       AH relevant evidence is admissible unless limited by statute or constitutional
requirements. ER 402. Relevant evidence may be excluded "if its probative value is

substantially outweighed by the danger of unfair prejudice." ER 403. When evidence is

likely to stimulate an emotional response rather than a rational decision, a danger of

unfair prejudice exists. State v. Powell, 126 Wn.2d at 264.

       Steve and Leticia Miller argued during trial, and on appeal, that their daughters'

testimony was relevant because it demonstrated that Steve Miller would not have risked

losing his home to complain to SunTrust Mortgage over $9,000 in escrow fees and back

taxes. Thus, the evidence rebutted Drew Dalton's insinuation that Steve Miller did not

                                             57
No. 35163-7-III
Miller v. Dalton


want to accept the SunTrust offer for a modified home loan because he did not want to

pay additional costs beyond the $1,311.87 monthly mortgage payment. We agree that the

daughters' testimony bore some tangential relationship to the parties' dispute.

         Whether the daughters' testimony should be excluded under ER 403 is a separate

question. On remand, we direct the trial court to address possible exclusion of the

testimony under ER 403. We note that Dalton cites to no case that precludes "innately"

emotional testimony from a minor. We further observe that, at the time of the trial

court's permission of the testimony of the daughters, the trial court had previously ruled

that Steve and Leticia Miller may not recover emotional distress damages. We have

reversed this ruling. The emotional distress suffered by the daughters may have impacted

the mental wellbeing of the parents such that the daughters' testimony is relevant for this

additional purpose. Finally, Drew Dalton complains that allowing the daughters'

testimony impacted the jury award. Since we vacate the award of economic damages and

limit the amount of the award on remand, we allay the danger of an award based on an

emotional response by the jury to the testimony. The trial court should consider these

factors when weighing whether any prejudice from the testimony outweighs its probative

value.

                                    Mitigation of Damages

         Issue 11: Did the trial court err when refusing to instruct the jury on a failure to

mitigate damages?

                                               58
No. 35163-7-III
Miller v. Dalton


       Answer 11: We do not address this question because Drew Dalton does not

properly assign error to the failure to instruct the jury and Dalton presented the trial

court no jury instruction on mitigation of damages.

       Drew Dalton assigns error to the trial court's failure to render a jury instruction

that permitted the jury to lower any damage award based on Steve and Leticia Miller's

failure to mitigate damages. Nevertheless, in the assignment of error Dalton fails to

reference his proposed instruction number that the trial court purportedly rejected. The
                                                                                              I
first sentence of RAP 10.3(g) declares:

              Special Provision for Assignments of Error. A separate
                                                                                              I
                                                                                              I
       assignment of error for each instruction which a party contends was
       improperly given or refused must be included with reference to each
       instruction or proposed instruction by number.

       Drew Dalton may have omitted, in his assignment of error, a reference to a

proposed jury instruction on the defense of failure to mitigate damages because he never

proposed one at trial. He proposed an instruction for contributory negligence, but the

instruction fails to reference failure to mitigate. Also, Dalton's proposed verdict form

allows the jury to assess comparative fault but does not include language for reduction of

damages due to a failure to mitigate. To challenge the trial court's failure to give a jury

instruction, an appellant must have proposed the instruction in the trial court. McGarvey

v. City ofSeattle, 62 Wn.2d 524, 533, 384 P.2d 127 (1963); Gorman v. Pierce County,

176 Wn. App. 63, 86, 307 P.3d 795 (2013). We decline review of Drew Dalton's last


                                             59
No. 35163-7-III
Miller v. Dalton


assignment of error.

                                     CONCLUSION

       We vacate the jury's award for damages for Drew Dalton's negligence, but affirm

the finding of liability and the jury award for breach of fiduciary duty. We affirm

dismissal of the claims under the Consumer Protection Act, but reverse dismissal of the

claim for emotional distress damages. We remand for a new trial consistent with this

opm10n.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                             Fearing, J.

I CONCUR (Except as to Consumer Protection Act analysis):




                                            60
                                        No. 35163-7-III

       SIDDOWAY, J. (concurring) - I concur in the lead opinion on all issues other than

the Millers' assignment of error to the trial court's dismissal of Steve and Letitia Millers'

Consumer Protection Act (CPA) 1 claim following the close of the Millers' case. On that

issue, I write here for the majority.

       A plaintiff alleging injury under the CPA must establish all of its elements.

Michael v. Mosquera-Lacy, 165 Wn.2d 595, 602, 200 P.3d 695 (2009). As explained by

the lead opinion, they are (1) an unfair or deceptive act or practice (2) in the conduct of

trade or commerce (3) which impacts the public interest (4) injury to the plaintiffs in their

business or property and (5) a causal link between the unfair or deceptive act and the

injury suffered. Lead opinion at 29 (citing Mason v. Mortg. Am., Inc., 114 Wn.2d 842,

852, 792 P.2d 142 (1990)). As the lead opinion points out, the required element that the

complained-of act or practice impacts the public interest is based on the legislature's

declared purpose in adopting the CPA. While providing that the act "shall be liberally

construed that its beneficial purposes may be served," the legislature added

              It is, however, the intent of the legislature that this act shall not be
       construed to prohibit acts or practices which are reasonable in relation to
       the development and preservation of business or which are not injurious to
       the public interest, nor be construed to authorize those acts or practices
       which unreasonably restrain trade or are unreasonable per se.



       1
           Ch. 19.86 RCW.
No. 35163-7-III
Miller v. Dalton (concurrence)


RCW 19.86.920 (emphasis added).

       In this action by the Millers against Drew Dalton and his law firm, the trial court

always questioned the sufficiency of the Millers' evidence in support of the public

interest element of their CPA claim. Although it denied Mr. Dalton's motion for

summary judgment dismissal of the claim several weeks before trial, it explained that its

decision was based on case law recognizing that the issue is generally one of fact. In

orally denying the summary judgment motion, the court told the parties it was skeptical

of the CPA claim, "And frankly, as a fact finder, I would remain so, but [that's] not my

role today." Report of Proceedings (RP) at 51. Repeating that its initial inclination was

to dismiss the claim, it added, "I still may after the plaintiffs' case-in-chief." Id. at 51-52.

       At the outset of trial, Mr. Dalton sought through a motion in limine to exclude the

Millers' proposed damages evidence in support of their CPA claim, pointing out that the

Millers never provided information on their CPA damages in response to an interrogatory

requesting the information. The court agreed that the information had not been disclosed

in response to discovery but denied the motion, finding that the $8,500 in fees that the

Millers claimed as damages proximately caused by violations of the CPA were not a

surprise. The fees had been identified by the Millers' expert on malpractice issues. In

denying the motion in limine, the court stated that any confusion about which damages

were proximately caused by CPA violations could be dealt with through interrogatories to

the jury "and that is even if the Consumer Protection Act claim makes it past a motion to

dismiss. And I'll be listening carefully to that." RP at 204.

                                               2
No. 35163-7-111
Miller v. Dalton (concurrence)


       Despite the trial court's warnings about the apparent weakness in the Millers'

evidence of a public interest impact, the Millers offered no evidence in their case that

bore on the probability that Mr. Dalton's complained-of deceptive acts had the capacity

to injure the public. Evidence bearing on the probability of a consequential fact is the

definition of "relevant evidence." See ER 401. 2 None of the Millers' witnesses testified

to anything relevant to that issue-e.g., evidence about Mr. Dalton's prior practice of law

or that of his firm, or even about his or his firm's later practice or plans. Only two of the

Millers' witnesses-their expert on malpractice issues and Steve Miller-knew anything

at all about Mr. Dalton's legal practice. And neither of them knew about anything other

than his dealings with Mr. Miller. The Millers did not even call Mr. Dalton adversely to

question him about his history, his future plans, or even whether he believed that his

conduct in representing the Millers was proper conduct that he would engage in again.

       At the conclusion of the plaintiffs' case, Mr. Dalton argued that of the five

elements required to prove a CPA claim, the Millers had failed to present evidence of

two: public interest impact and damages. The gist of the Millers' response on the public

interest element was:

       [G]iven that, apparently, Mr. Dalton wasn't aware of those rules [relating
       to charging and collecting attorney fees] or didn't apply those rules in this
       case, that it is very likely that it-it could be repeated. And that's a
       question for the jury to decide.



       2
       The rule provides: "' Relevant evidence' means evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence."
                                              3
No. 35163-7-III
Miller v. Dalton (concurrence)


RP at 776 (emphasis added). The trial court reserved ruling on the motion, but

commented:

       [I]t seems to me that there's got to be at least some quantum of evidence
       that bears directly on that issue of the capacity-well, that it-there's a
       capacity to affect the public interest rather than speculating that, well, an
       inexperienced attorney might do this again.

RP at 777. On the morning before instructing the jury, the court announced that it would

grant Mr. Dalton's motion and dismiss the CPA claim.

       We review a trial court's decision on a CR 50(a) motion for judgment as a matter

of law using the same standard as the trial court. Schmidt v. Coogan, 162 Wn.2d 488,

491, 173 P Jd 273 (2007). A motion for judgment as a matter of law admits the truth of

the opponent's evidence and all reasonable inferences that can be drawn from it. Queen

City Farms, Inc. v. Cent. Nat'! Ins. Co., 126 Wn.2d 50, 98, 882 P.2d 703 (1994).

"Granting a motion for judgment as a matter of law is appropriate when, viewing the

evidence most favorable to the nonmoving party, the court can say, as a matter oflaw,

there is no substantial evidence or reasonable inference to sustain a verdict for the

nonmoving party." Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816 (1997).

       In Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778,

787, 719 P .2d 531 ( 1986), our Supreme Court recognized that by requiring a private

plaintiff to make a public interest showing, Washington was in the minority among

jurisdictions with consumer protection acts, and that the inclusion of such an element had

been criticized. Nonetheless, the court stated, "[W]e continue to adhere to our position,"



                                              4
No. 35163-7-III
Miller v. Dalton (concurrence)


stating that adherence was "mandated by two considerations." Id. at 788. The first was

the purpose section of the CPA, set forth above, whose language "expresses a clear intent

to protect the general public by means of the CPA as a whole." Id. The second was that

in the 10 years since the Court had first construed the CPA to require a public interest

showing, the legislature had taken no action to eliminate the requirement. Id. at 789.

       In 2009, the legislature did take action, by adopting RCW 19.86.093. Rather than

eliminate the requirement to show public interest, however, the legislature endorsed the

burden of a plaintiff in a private CPA action to show "that the act or practice is injurious

to the public interest" by providing examples of how that element can be established. Id.

RCW 19.86.920's statement of legislative purpose remains unchanged.

       We agree with our brother's observation in the lead opinion that we presume every

amendment of a statute is made to effect some purpose, and effect must be given to the

amended law. Graffell v. Honeysuckle, 30 Wn.2d 390, 400, 191 P.2d 858 (1948) (citing

50 AM. JUR. Statutes§ 275 (1944)). We agree that in enacting RCW 19.86.093, the

legislature must have had some objection to the manner in which Washington courts had

required a plaintiff to establish injury to the public interest. Review of the legislative

history of Substitute Senate Bill 5531, 61st Legislature, Regular Session (Wash. 2009),

which effected the change, affirms that legislators found existing case law objectionable,

but it does not shed light on how, specifically, they expected to modify a CPA plaintiffs

required proof. Testimony at the first committee hearing was to the effect that the

consumer plaintiffs' bar hoped the change would lighten the burden of a public interest

                                              5
No. 35163-7-III
Miller v. Dalton (concurrence)


test that was difficult to meet, and the defense bar was worried about the legislation's

breadth. See Hr'g on S.B. 5531 Before the S. Labor, Commerce & Consumer Protection

Comm., 61st Leg., Reg. Sess. (Wash. Feb. 5, 2009), at 52 min., 0 sec. through 1 hour, 14

min., 34 sec., video recording by TVW, Washington State's Public Affairs Network,

https://www.tvw.org/watch/?eventID=200902 l 390.

       We do not agree, as our brother says, that Grajfell requires a court reviewing a

legislative amendment to presume "some significant change" in the law. See lead

opinion at 36 (emphasis added). We agree with our brother's observation that in the nine

years since the enactment ofRCW 19.86.093, the statute has been largely ignored. Most

importantly, we disagree with our brother that the statute empowers a jury to find liability

absent evidence, as long as it can speculate that a defendant's act or practice is capable of

repetition.

       We are spared in this case the task of divining the precise change intended by the

2009 legislation. That is because the Millers presented literally no relevant evidence. No

evidence was presented as to whether those of Mr. Dalton's complained-of acts that

constituted an "entrepreneurial aspect" of practicing law were capable of repetition. 3 One

could speculate that the complained-of acts might be repeated. But one could also



       3
        The Millers also presented no evidence prior to the CR 50(a) motion that Mr.
Dalton or someone at his law firm misrepresented his experience with loan modifications
under the Home Affordable Mortgage Program (HAMP). At most, they presented
evidence that when Mr. Miller contacted Mr. Dalton's partner, Stephen Ford, about
representation, Mr. Ford stated that "we just hired a trial attorney, and he's-that knows
these matters and he's-has experience in these matters." RP at 584.
                                             6
No. 35163-7-III
Miller v. Dalton (concurrence)


speculate from the evidence presented by the close of the Millers' case that Mr. Dalton

might have quit practicing law. One could speculate from the Millers' evidence that Mr.

Dalton might have sworn off entering into contingent or flat fee agreements. One could

speculate that his law firm might have adopted a policy forbidding them. One could

speculate about any number of facts that might make it more or less likely that the

complained-of acts would be repeated.

       We hold with confidence based on RCW 19.86.093's plain language that it

continues to be an essential element of a CPA claim that a complained-of act or practice

"is injurious to the public interest." We hold with confidence based on the statute's plain

language that the element is something that the plaintiff must "establish"-in other

words, prove-which means, in a CPA plaintiffs case, presenting relevant evidence

amounting to a preponderance. Because the statute requires a CPA plaintiff to present

relevant evidence and the Millers presented none, the trial court properly granted

judgment as a matter of law.

       The dismissal of the CPA claim is affirmed.



                                                 d?dhta0 ,~·
                                                 doway,J.
I CONCUR:




                                 C,. ~.
Lawrence-B~rrey, C.J.   4o




                                             7
