                                UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 12-2010


ZEE COMPANY, INC.; R.      C.    CONRAD;   ROBERT   DODD;   BENJAMIN
LUKOWSKI; BARRY OWINGS,

                 Plaintiffs - Appellants,

           v.

WILLIAMS, MULLEN, CLARK & DOBBINS, P.C.,

                 Defendant – Appellee,

           and

GE BETZ, INC.,

                 Defendant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Anthony J. Trenga,
District Judge. (1:11-cv-00458-AJT-IDD)


Argued:   September 18, 2013               Decided:   October 18, 2013


Before NIEMEYER, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Mark Andrew Dombroff, MCKENNA LONG & ALDRIDGE, LLP,
McLean, Virginia, for Appellants.      William Delaney Bayliss,
WILLIAMS MULLEN, Richmond, Virginia, for Appellee.     ON BRIEF:
Thomas Barton Almy, Donald Weinberg, DOMBROFF, GILMORE, JAQUES &
FRENCH, McLean, Virginia, for Appellants.    Brendan D. O'Toole,
Joseph E. Blackburn, III, WILLIAMS MULLEN, Richmond, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      Williams, Mullen, Clark, & Dobbins, P.C. (“Williams Mullen”

or “the firm”) represented Zee Company, Inc. (“Zee Company”) in

a North Carolina state court action.           After that representation

ended, Zee Company 1 filed a complaint against Williams Mullen

alleging   claims   of   legal   malpractice    and   constructive   fraud

arising from Williams Mullen’s failure to communicate to Zee

Company a pre-discovery settlement offer purportedly made by the

opposing party in the state court action.          Williams Mullen filed

a counter-claim for breach of contract in light of Zee Company’s

failure to pay all of the attorney’s fees and expenses for work

the firm performed during the state court action.             Zee Company

now appeals from the district court’s grant of summary judgment

to   Williams   Mullen   on   Zee   Company’s    claims,   and   from   the

judgment entered on a jury verdict in favor of Williams Mullen

for the full amount of its counter-claim.             For the reasons set

forth below, we affirm the judgment of the district court.




      1
       The plaintiffs-appellants in this case are Zee Company and
four individual plaintiffs affiliated with Zee Company: R.C.
Conrad, Robert Dodd, Benjamin Lukowski, and Barry Owings.     The
four individual plaintiffs were each named party defendants in
the North Carolina state court action and are the former GE
Betz, Inc. employees described in section I of this opinion.
For simplicity, the opinion refers to all the plaintiffs-
appellants collectively as “Zee Company.”


                                     3
                                             I.

     Williams      Mullen       defended      Zee    Company          in    a   state      court

action   brought      by    a   business     competitor,             GE    Betz,    Inc.    (“GE

Betz”), alleging that Zee Company and former GE Betz employees

violated certain terms of their employment agreements through

their    subsequent        employment        with        Zee    Company.             As     this

litigation    extended          into   its       third     year,          rumors    began    to

circulate that early in the proceedings, GE Betz had made a

“walk-away settlement offer” through its attorney that Williams

Mullen   failed     to     communicate        to    Zee        Company.            This    rumor

contributed   to      a    break   down    in      the    relationship          between      Zee

Company and Williams Mullen, and eventually led Zee Company to

terminate Williams Mullen’s representation. 2

     Thereafter, Zee Company filed a complaint, later amended,

in the United States District Court for the Eastern District of

Virginia asserting that Williams Mullen’s failure to communicate

GE Betz’s “walk-away settlement offer” constituted both legal

malpractice     and       constructive       fraud.            The    amended        complaint

alleged that if such an offer had been timely communicated to

Zee Company, it would have accepted the offer and consequently

     2
        Zee Company obtained new counsel in the state court
action.    That litigation resulted in a judgment against Zee
Company for both damages and significant attorney’s fees.   An
appeal from that judgment is pending with the North Carolina
Court of Appeals. Its disposition does not affect the analysis
of this case.


                                             4
would    not   have   incurred     damages     in    the    form    of    lengthy

litigation resulting in unnecessary litigation-related expenses,

costs, and attorney’s fees. 3

     Williams Mullen denied the allegations and filed a counter-

claim alleging that Zee Company breached the parties’ contract

for legal representation by failing to pay for some of the work

that Williams Mullen performed in the state court action.

     After     extensive    discovery,       Williams      Mullen    moved      for

summary judgment on Zee Company’s claims.             For reasons discussed

below,   the   district    court   granted    that   motion.        Zee   Co.    v.

Williams, Mullen, Clark & Dobbins, P.C., 871 F. Supp. 2d 498

(E.D. Va. 2012).

     3
        The amended complaint also pled, in the alternative,
separate claims against GE Betz for fraud and intentional
interference with contractual relations.       Those claims were
based on the polar opposite theory from the cause of action pled
against Williams Mullen: that a settlement offer was never
actually made, but had been later falsely represented by GE Betz
to   Zee   Company  in  order   to  poison   the   attorney-client
relationship between Zee Company and Williams Mullen.        Those
claims were later dismissed and are not at issue in this appeal.
     To the extent Williams Mullen contends on appeal that Zee
Company is bound by allegations made as part of its alternative
pleading against GE Betz, we do not agree.        Zee Company was
permitted to set out conflicting alternative theories in its
complaint without one constituting an admission against the
other. See Fed. R. Civ. P. 8(d)(2) (“A party may set out two or
more   statements   of  a   claim   .   .  .    alternatively   or
hypothetically[.]”); Molsbergen v. United States, 757 F.2d 1016,
1019 (9th Cir. 1985) (“[A] policy which permits one claim to be
invoked as an admission against an alternative or inconsistent
claim would significantly restrict, if not eliminate, the
freedom to plead inconsistent claims provided by” Rule 8(d)(2).)
(citing prior version of rule).


                                      5
     The district court also granted partial summary judgment on

Williams Mullen’s counter-claim, finding that Zee Company was

liable for breach of contract but concluding that, under North

Carolina law, questions of fact existed as to the reasonableness

of Williams Mullen’s attorney’s fees.       The matter proceeded to

trial, and the jury awarded Williams Mullen the entire amount

sought as attorney’s fees, $1,078,413.39. 4

     The district court then entered final judgment in favor of

Williams Mullen.   Zee Company noted a timely appeal, and we have

jurisdiction pursuant to 28 U.S.C. § 1291.



                                 II.

     Zee Company raises three issues on appeal: (1) whether the

district   court   erred   in   granting   Williams   Mullen   summary

judgment on the malpractice and constructive fraud claims; and,

(2) in the reasonable attorney’s fees trial, (a) whether the

district court abused its discretion in excluding Zee Company’s

expert witnesses, and (b) whether the district court abused its

discretion in giving and denying several jury instructions.




     4
       Zee Company conceded that it owed $119,905.79 in costs,
and that portion of the judgment is not at issue in this appeal.


                                  6
                                        A.

       Zee   Company   first   contends      the   district   court   erred    in

granting     Williams    Mullen    summary         judgment   on    the    legal

malpractice and constructive fraud claims.                We review an award

of summary judgment de novo.             Adams v. Trs. of the Univ. of

N.C.-Wilmington, 640 F.3d 550, 556 (4th Cir. 2011).                       Summary

judgment is appropriate if “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a

matter of law.”         Fed. R. Civ. P. 56(a).            In considering the

matter, we construe the evidence in the light most favorable to

the non-moving party, being Zee Company in this case, and draw

all reasonable inferences in its favor.                See Adams, 640 F.3d at

556.

       Applying that standard, the relevant facts are as follows.

The day after “the state court entered a temporary restraining

order enjoining Zee Company from certain conduct with respect to

GE Betz’s customers,” GE Betz’s lead counsel Victoria Cundiff

spoke    with    Williams      Mullen       attorney    William    Barrett     by

telephone.      Zee Co., 871 F. Supp. 2d at 501.                  The attorneys

discussed the anticipated lengthy discovery process to come, and

at one point Cundiff told Barrett that they

       could continue the discussions that [Barrett] and [GE
       Betz’s local counsel] have started.   If [Zee Company]
       were prepared to cease switching of accounts, [were]
       prepared to withdraw the DAK proposal, [were] prepared
       to agree on the customers subject to the agreements,

                                        7
        and [were] prepared to agree to a restart of the time
        period of the restrictive covenant, [they] might be
        able to wrap things up.

Id.     The parties do not dispute that Barrett did not relay this

statement (the “Cundiff Statement”) to Zee Company.

        Zee      Company       contends        that      summary        judgment        was

inappropriate because there is a disputed question of material

fact as to whether Williams Mullen’s failure to communicate the

Cundiff Statement proximately caused Zee Company injury.                                 It

contends      the    district    court    usurped        the    role    of     factfinder

because whether a statement is an “offer” is a question of fact

under    North      Carolina    law.      And    Zee     Company       asserts    that    a

question of fact exists as to “[w]hether GE Betz intended [the

Cundiff Statement] to be an offer or preliminary negotiations.”

(Reply Br. 11.)         Zee Company further contends that the district

court    ignored     evidence     that    it    would    have    settled       the   state

court     action     had     Williams     Mullen       communicated       the     Cundiff

Statement in a timely manner.

        In North Carolina, legal malpractice and constructive fraud

claims follow traditional tort principles, requiring proof of

causation between the alleged wrongful act and the plaintiff’s

injury.       See Royster v. McNamara, 723 S.E.2d 122, 126 (N.C. Ct.

App.     2012)      (legal     malpractice);          Governor’s       Club,     Inc.    v.

Governors Club Ltd. P’ship, 567 S.E.2d 781, 788 (N.C. Ct. App.

2002) (constructive fraud).               Applied here, Zee Company had to

                                           8
show that it suffered some loss that would not have occurred

“but for” Williams Mullen’s failure to communicate the Cundiff

Statement to it in a timely manner.

      We   have    reviewed    the    record    in     light    of   Zee    Company’s

assertions    challenging      the    district        court’s   consideration      of

that issue and conclude that the district court did not err in

concluding no injury was shown as a matter of law.                         This is so

for two reasons: GE Betz made no cognizable offer under North

Carolina and Zee Company failed to adduce sufficient evidence of

any other injury.

      Contrary to Zee Company’s contention, no reasonable jury

could conclude that the Cundiff Statement was an “offer” under

North Carolina law.        While Zee Company is correct that whether

an offer has been made is a question of fact, nothing in North

Carolina law precludes the grant of summary judgment where no

question of fact exists.             See Jackson v. Stancil, 116 S.E.2d

817, 824 (N.C. 1960) (“Where the facts are in conflict, it is a

question for the jury.          But where the facts are uncontradicted,

. . . whether the evidence is sufficient to [decide the case] is

a question of law for the court.” (citation omitted)).                          Here,

the    district    court      was    capable     of     reviewing     the     Cundiff

Statement to determine whether a jury could find for Zee Company

in    light   of   Williams     Mullen’s       failure    to    communicate      that

statement to Zee Company.

                                         9
     North Carolina law requires that an offer that is relied

upon to create a binding agreement “be one that is intended to

create a legal relationship upon acceptance.                                It cannot be an

offer    to    open    negotiations         that       eventually          may   result    in    a

contract.”       Braun v. Glade Valley Sch., Inc., 334 S.E.2d 404,

408 (N.C. Ct. App. 1985).               And while a contract will “not fail

because minor details are left for future determination,” Pee

Dee Oil Co. v. Quality Oil Co., 341 S.E.2d 113, 115-16 (N.C. Ct.

App. 1986), “an offer to enter into a contract in the future

must specify all the essential terms and leave nothing to be

agreed    upon    as    a    result    of    future       negotiations,”          Braun,     334

S.E.2d at 408.

     The      Cundiff       Statement       is    not,    as     a    matter     of   law,      an

“offer”       under    these        principles         such    that        the    failure       to

communicate      it    to     Zee    Company          deprived       Zee    Company   of     the

opportunity to “accept.”              Read as a whole, the Cundiff Statement

suggests that the parties could “continue the discussions” about

a settlement in lieu of litigation, and that if Zee Company

agreed to four things (none of which were detailed), the parties

“might be able to wrap things up.”                      Zee Co., 871 F. Supp. 2d at

501 (emphasis added).           On its plain terms, the Cundiff Statement

does not constitute an offer capable of being accepted by Zee




                                                 10
Company. 5    The district court’s determination on this point was

not erroneous.

     Nor did the district court err in holding that Zee Company

failed   to   adduce     sufficient       evidence      of    injury    arising    from

Williams Mullen’s failure to communicate the Cundiff Statement

as an opportunity to engage in further settlement negotiations

at that stage in the state court action.                        Our review of the

record   shows    that    the    district       court    properly      observed    that

communicating the Cundiff Statement to Zee Company “would merely

have given Zee [Company] information it already had.”                       Zee Co.,

871 F. Supp. 2d at 511.               The Cundiff Statement provided no new

information      regarding      the    nature    of     the   dispute    between   the


     5
       Indeed, Cundiff stated in her deposition testimony that
she did not consider her statement to be an offer of settlement.
While Zee Company contends that other witnesses could have
impeached Cundiff’s own interpretation of her statement, the
district court excluded that testimony as “exactly the sort of
rumor-mill evidence that the hearsay rule is intended to
exclude,” and Zee Company does not challenge that ruling.     Zee
Co., 871 F. Supp. 2d at 507. Even assuming, arguendo, that such
evidence would be admissible impeachment, a review of the
testimony shows that these other witnesses simply state—in
relevant harmony—that years later they heard second- or third-
hand that a settlement offer had been made shortly after the
issuance of the temporary restraining order.      Their testimony
does not contain first-hand knowledge of what Cundiff stated,
they do not question the actual content of the Cundiff
Statement, nor do they (or Zee Company) point to any other
statement as constituting the purported walk-away settlement
offer.   Simply put, the fact that these witnesses subsequently
“learned” that GE Betz had made a settlement offer does not make
it so, nor does it create a question of fact as to whether the
Cundiff Statement was an offer under North Carolina law.


                                          11
parties or what issues would need to be resolved to settle the

litigation.         As     the    district       court        noted,     this       fact     “casts

substantial     doubt        on    Zee[]        [Company’s]         contention            that    the

Cundiff [S]tatement was necessary for Zee [Company] to make an

informed decision with respect to settlement.”                            Id.

       Moreover,      even        assuming       that     learning           of     the     Cundiff

Statement     “would       have    informed          Zee[]     [Company’s]          judgment       on

settlement,      the       record       contains        insufficient              evidence       that

settlement      would       have     actually          resulted.”             Id.          Such    a

conclusion     would       require        the    jury     to       speculate        as     to    each

party’s subsequent conduct both in reaching a settlement at that

time    and    as     to     material       terms        of    any       such       hypothetical

settlement agreement.             This is not a sufficient basis for a jury

to find in favor of Zee Company.                        See Cox v. Cnty. of Prince

William,      249     F.3d       295,     300     (4th       Cir.     2001)        (stating       an

“[a]ppellant        cannot       create    a     genuine       issue     of       material       fact

through mere speculation or the building of one inference upon

another” (internal quotation marks omitted)).

       For    these      reasons,        Zee     Company        cannot        prove       that    it

suffered any injury resulting from Williams Mullen’s failure to

communicate     the      Cundiff        Statement       to    it    in   a    timely       manner.

Accordingly, the district court did not err in awarding Williams




                                                12
Mullen summary judgment on Zee Company’s legal malpractice and

constructive fraud claims. 6



                                              B.

       Zee Company next challenges the district court’s exclusion

of     two     expert      witnesses     during        the     jury     trial    on    the

reasonableness of Williams Mullen’s claim for attorney’s fees.

The district court has considerable discretion with respect to

such evidentiary rulings, and we will reverse only if the court

applies      erroneous      legal   principles         or    bases    its   decision     on

clearly erroneous factual findings.                     In sum, we will reverse

only if we are left with “a definite and firm conviction that

the    court    below     committed      a    clear    error    of    judgment   in     the

conclusion it reached upon a weighing of the relevant factors.”

Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 161 (4th Cir.

2012) (internal quotation marks omitted).

       As    noted,       the   district       court    granted       partial    summary

judgment       on   the    issue    of       liability,      but     concluded   that    a

question of material fact existed as to the amount of attorney’s

fees Zee Company owed Williams Mullen.                         Under North Carolina

law,

       6
       In light of our holding, it is not necessary to consider
Zee Company’s additional arguments challenging the district
court’s remaining reasons for granting Williams Mullen summary
judgment.


                                              13
       [w]hen an attorney enters into a contract for a fixed
       fee [(either a set hourly rate or a set total fee)]
       after the attorney’s representation of the client has
       commenced, the attorney bears the burden of proving,
       in an action to recover fees under the contract, that
       the fees were “fair and reasonable.”       This is so
       because there is a presumption of undue influence when
       an attorney enters into a fee contract with a client
       during representation.

Tew    v.   Brown,    522      S.E.2d    127,     128-29     (N.C.       Ct.    App.   1999)

(internal quotation marks, footnotes, citations omitted).

       Zee Company sought to introduce the expert testimony of

Bernard A. Burk, who opined that Williams Mullen’s work in the

state    court      action     fell     below    the    standards        of    professional

conduct.       In forming that opinion, Burke relied on the factual

assumption       that        Williams     Mullen       failed       to    communicate     a

“walkaway settlement offer” to Zee Company in the state court

proceedings.          Zee     Company     contends       that   the      district      court

abused its discretion in excluding Burk’s testimony because the

“reasonable value” of legal services depends, in part, on the

quality of the legal services.                  It asserts that Burk’s testimony

was     essential       to    showing      how     deficient        Williams      Mullen’s

representation had been so that the jury could understand why it

should decrease the value of the work Williams Mullen performed.

       We   find     no      reversible     error       in    the    district       court’s

exclusion of Burk’s testimony.                  As the district court noted, the

court had “previously dismissed the malpractice claim” because

it    found,   in    relevant     part,     that       the   Cundiff      Statement     “was

                                            14
neither    a    ‘walk-away        offer’       nor    a   binding   offer    to    settle

capable of being accepted.”                   (J.A. 3477.)         Burk’s opinion was

thus based on what the district court had already concluded was

a faulty factual premise.                 In addition, Burk’s witness report

contained no opinion as to the reasonableness of the fees in

dispute.        See   Fed.    R.    Civ.       P.    26(a)(2)(B)    (stating      that    an

expert witness’s written report must contain, inter alia, “a

complete statement of all opinions the witness will express and

the basis and reasons for them” as well as “the facts or data

considered by the witness in forming them.”).                         Therefore, Burk

did not tie his opinion about the quality of Williams Mullens’

representation to the issue before the jury: whether the fees

the firm sought were “fair and reasonable.”

       In light of these considerations, the district court did

not abuse its discretion in concluding that Burk’s testimony

presented a substantial risk of confusing the issues, misleading

the jury, and causing Williams Mullen unfair prejudice.                                  See

Fed. R. Evid. 403 (providing that a district court “may exclude

relevant       evidence      if    its     probative       value    is    substantially

outweighed by a danger of one or more of the following: unfair

prejudice,      confusing         the    issues,      misleading    the    jury,    undue

delay,     wasting      time,       or        needlessly     presenting     cumulative

evidence”); see also United States v. Love, 134 F.3d 595, 603

(4th   Cir.     1998)     (“Rule        403    judgments     are    preeminently         the

                                               15
province of the trial courts. . . . We will not upset such a

decision except under the most extraordinary of circumstances,

where    a    trial    court’s       discretion       has    been    plainly    abused.”

(internal quotation marks and alterations omitted)).

      Zee Company also sought to introduce testimony from David

Paige criticizing Williams Mullen’s billing methods, which Paige

opined were not in a format that permitted fair assessment of

“whether the legal bills reflected [the] true value” of Williams

Mullen’s legal services.                 (J.A. 3232.)       Paige opined that as a

result of what he considered to be deficient billing practices,

Williams Mullen should receive only 25% of the amount it sought

in attorney’s fees.                Zee Company contends the district court

abused   its     discretion         in    excluding     Paige’s     testimony    because

Paige    would       have       assisted    the    jury     in    determining    whether

Williams Mullen satisfied its burden of showing the value of its

services.

      We disagree.          As the district court noted, Paige’s analysis

centered on his belief that Williams Mullen was obligated to

submit       bills    in    a    particular       manner,     a    position    that    was

ultimately       “irrelevant         to    the    point      of     whether    the    fees

themselves [that] were charged were reasonable.”                          (J.A. 4114.)

See Tew, 522 S.E.2d at 129 n.2 (reiterating the opinion of the

Supreme Court of North Carolina that it is not a prerequisite to

a   reasonableness          finding       “that   the     attorney     introduce      into

                                             16
evidence a detailed, itemized statement of the time spent by him

in rendering the service” (internal quotation marks omitted)).

Moreover,         Paige   admitted      that    in    forming          his    opinion        that   a

reasonable fee would be 25% of what Williams Mullen sought, he

made    a    “judgment        call    based    upon       the     way    that       .    .   .   [he]

believe[d] that a court would rule if they were going through

[Williams Mullen’s] bills” using the billing principles that he

believed were proper.                 (J.A. 3223-24.)              In sum, the district

court       did    not    abuse       its     discretion          in     excluding           Paige’s

testimony because it focused on matters that were not relevant

to   the     question      before      the    jury        and    provided       a       speculative

opinion as to the ultimate issue before them.



                                               C.

       Lastly, Zee Company contends the district court erred in

failing to give two instructions it proffered regarding factors

the jury should consider in assessing the “reasonableness” of

attorney’s         fees   and    in    giving        an    instruction          regarding        the

outcome       of    Zee       Company’s       legal       malpractice          claim         against

Williams Mullen.           We review a district court’s decision to give

or   not     to    give   a    jury    instruction          for    abuse       of       discretion.

United States v. Mouzone, 687 F.3d 207, 217 (4th Cir. 2012).

Reversal      is     appropriate       “only        when    we     can       conclude        that   a

particular         jury   instruction         must    necessarily            have       caused    the

                                               17
jury to act in complete ignorance of, or to have misapplied,

fundamentally        controlling         legal      principles     to    the      inevitable

prejudice of an aggrieved party.”                        Spell v. McDaniel, 824 F.2d

1380, 1399 (4th Cir. 1987).                   Furthermore, we review particular

instructions “in light of the whole record,” and will reverse a

decision      “only      if    the       error      is    determined     to       have     been

prejudicial,        based     on    a    review     of    the   record       as    a   whole.”

Abraham v. Cnty. of Greenville, S.C., 237 F.3d 386, 393 (4th

Cir. 2001) (internal quotation marks omitted).

       The district court instructed the jury that Williams Mullen

was entitled to a “reasonable fee” for its services; that the

jury   was     to   review     all      the   evidence      before      it   to    determine

whether      the    amount     Williams       Mullen      sought   in    its       claim      was

“reasonable”; that the jury should decide whether that amount or

some other amount was reasonable; and that North Carolina law

set forth eight non-exhaustive factors that were appropriate to

consider in making this determination.                          The court then listed

those exemplars.

       Zee     Company’s           proffered        “reasonableness”              instruction

included statements that the value of legal services diminished

to the extent the services provided were “less than competent,

prompt       and    diligent,”          and   that       certain   specified           billing

techniques         did   not       allow      for    proper      determination           of    a

“reasonable” fee.             (J.A. 3566.)          Zee Company contends that its

                                               18
instruction would have highlighted that the delineated factors

are not exhaustive and would have provided the jury with the

specific contested factors in this case.

     Zee    Company’s     argument         is    unpersuasive            in        light    of   the

applicable     standard         of        review.               The     district            court’s

instructions    accurately       stated         the    governing         legal        principles

for the issue before the jury.                  The court’s refusal to give the

proffered instruction did not “seriously impair[]” Zee Company’s

ability to make its case.                 See United States v. Lewis, 53 F.3d

29, 32 (4th Cir. 1995).              Zee Company was able to refer to the

instruction’s        general     principles            in        making        its         specific

arguments    for     a   reduced      attorney’s           fee        award    to     the       jury.

Moreover, the “instructions construed as a whole, and in light

of   the    whole    record,     adequately            informed         the        jury    of    the

controlling legal principles without misleading or confusing the

jury to the prejudice of the objecting party.”                                Spell, 824 F.2d

at 1395; see also Smith v. Univ. of N.C., 632 F.2d 316, 332 (4th

Cir. 1980) (“[A]n appellate court, when assessing the adequacy

of   jury    instructions,           is     guided         by     the     rule           that    the

instructions    should     be    viewed         as     a   whole.             If    the    judge’s

instructions        properly    present          the       issues       and        the     law    as

applicable, it is no ground for complaint that certain portions,

taken by themselves and isolated, may appear to be ambiguous,



                                            19
incomplete,       or    otherwise       subject        to    criticism.”      (internal

quotation marks omitted)).

     Similarly unpersuasive is Zee Company’s assertion that the

district    court      committed       reversible      error    by    instructing     the

jury as to the outcome of the legal malpractice claim.                          Contrary

to   Zee    Company’s         contention,       the    district       court     did   not

contradict itself by refusing to give a preliminary instruction

on   this   point       and     then    giving        the    instruction      prior    to

deliberations.          The    district     court’s         initial    ruling    plainly

contemplated reassessing the appropriateness of this instruction

after   evaluating       the    evidence       presented       at    trial.     It    then

determined that the instruction was appropriate in light of Zee

Company’s argument at trial putting at issue whether Williams

Mullen provided competent legal services that were worth the

value billed.          The record supports the basis for the court’s

decision, and we conclude the district court did not abuse its

discretion in giving this instruction.



                                          III.

     For    the    reasons      set    forth     above,      the    judgments    of   the

district court in favor of Williams Mullen are

                                                                              AFFIRMED.




                                           20
