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Franchiser Windermere Services Company and its Windermere franchisees have extensive histories of litigation and resulting judgments that YOU are entitled to know about before you do business with them—AND SO SHOULD THE CLIENTS WITH WHOM THEY ARE CURRENTLY DEALING—despite that these current clients are probably right now unaware of Windermere's continual history of unethical misconduct.
Although the Jacobis thoroughly overhype honesty and ethics in the marketplace, when customers encounter ethical misconduct by Windermere franchise owners, brokers and agents, the Jacobis are silent, run away, and force damaged parties to sue or eat their losses.
Amy Berryhill
Amy Radue
Katie Guerricabeitia
Chris Hayward
Sue Helin
Jody Hinton
Caldwell Coordinator
Julie Dowen
Patsy Kline
Josh Beebe
Claudia Brennan
Pamela Cicon
Marilyn Courrier
Mercile Goes
Lisa Larsen
Ronda Nash
Anna Smock
Blaine Stephenson
Debbie Myles
Angela Rupinski
Marv Welter
Mark Yochum
Esther Fillmore
Terry Miller
Brooke Adams-Carey
Melanie Coffman
Dave Dossman & Pam Rainforth
Mimi Eismann
Melissa Garland
Maria Marmon
Pam Rainforth
Windermere Sun Valley - Hailey
Diane Barker
Don Bruemmer
Windermere Sun Valley - Ketchum
Whitney Ellison
Kim Gittins
Nancy Haupt
Penny Leopold
Joan Levis
Matthew Luck
And in another of its dark clauses, Windermere required "...that he will cease all efforts of any kind (c) to publicly state opinions or beliefs about Windermere Real Estate." Read that Dark Clause here.
Click here or scroll down to: WINDERMERE AFFILIATED BUSINESS OLD REPUBLIC HOME PROTECTION SUED IN FEDERAL NATIONWIDE CLASS ACTION COMPLAINT, ALLEGING "This case pertains to defendant's uniform, nationwide practice of charging home warranty premiums in connection with the settlement or closing of home mortgage loans in a manner that violates RESPA, specifically Section 8(a), which prohibits, among other things, the giving or accepting of fees in exchange for the referral of any "service involving a federally related mortgage loan" to "any person."
WINDERMERE AGENTS and BROKERS COMPEL BUYERS and SELLERS TO SIGN A FORM: Windermere SoCal's "Affiliated Business Arrangement" in part states:
"This is to give you notice that Windermere Real Estate SoCal has a business relationship with Old Republic Home Warranty, GeoAssurance, Orange Coast Title Company, The Escrow Source, imortgage.com and Mortgage Capital Partners. Windermere Real Estate SoCal and/or certain owners, employees and/or agents of Windermere Real Estate have a direct or indirect ownership interest in Old Republic Home Warranty, GeoAssurance, Orange Coast Title Company, The Escrow Source, imortgage.com and Mortgage Capital Partners. Because of these relationships, this referral may provide a financial benefit to Windermere Real Estate SoCal, its employees and/or agents.
Set forth below are the estimated charges by GeoAssurance for the following settlement services:
Natural Hazard and Tax Report $80.00
NHD/Tax and Environmental Report $115.00
CLUE Report $10.00
You are not required to use Old Republic Home Warranty, GeoAssurance, Orange Coast Title Company, The Escrow Source, imortgage.com or Mortgage Capital Partners, as a condition for the purchase, sale or refinance of the subject property. There are frequently other settlement service providers available with similar charges. You are free to shop around to determine that you are receiving the best services and the best rate for these services.
l/we have read this disclosure form, and understand that Windermere Real Estate is referring me/us to purchase the above-described settlement services from Old Republic Home Warranty, GeoAssurance, Orange Coast Title Company, The Escrow Source, imortgage.com and/or Mortgage Capital Partners, and may receive a financial or other benefit as the result of this referral... Categories: Listing Forms; Purchase Forms; Transaction Forms"
DOWNLOAD A PDF COPY OF THE WINDERMERE SOCAL "AFFILIATED BUSINESS ARRANGEMENT" HERE
Public "Business Entity Detail" from the California Secretary of State lists the following for GeoAssurance, Inc.: Entity Name: GeoAssurance, Inc.; Entity Number: C2783899; Date Filed: 07/28/2005; Status: Active; Jurisdiction: California; Entity Address: PO Box 94949; Entity City, State, Zip: Long Beach CA 90809; Agent for Service of Process: Ralph Kephart; Agent Address: 4404 E Pacific Coast Hwy; Agent City, State, Zip: Long Beach CA 90804
OLD REPUBLIC HOME PROTECTION COMPANY SUED IN FEDERAL CLASS ACTION COMPLAINT THAT ALLEGES:
"Old Republic markets its warranties through, among other avenues, real estate brokers involved in the sale of homes that are purchased using home mortgage loans. Old Republic has business relationships with real estate brokers throughout the United States. These brokers are encouraged to sell Old Republic warranties to homebuyers and sellers in connection with home purchases. The premium for a 1-year home warranty is collected from the homebuyer or seller in connection with the settlement and closing of the home purchase and related mortgage documents. Old Republic has an understanding with the real estate brokers that it will pay a fee denominated a "marketing fee" or "administrative fee" to real estate brokers who sell Old Republic home warranties. The real estate brokers, pursuant to this understanding, pocket, as their fee, a portion of the home warranty premium that is paid by the homebuyer or seller in connection with the settlement or closing of the home mortgage loan." (Emphasis added.)
DOWNLOAD A PDF COPY OF THE SECOND AMENDED NATIONWIDE CLASS ACTION COMPLAINT HERE
CLICK HERE TO DEFENDANT OLD REPUBLIC HOME PROTECTION COMPANY'S ANSWER TO COMPLAINT
Filed 05/30/12
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JERRY LYNN BARKER, on her own behalf and on behalf of all others similarly situated, Plaintiff,
OLD REPUBLIC HOME PROTECTION COMPANY, INC., Defendant
CIVIL ACTION NO. CV-09-1009-UNAS-IPJ
JURY TRIAL DEMANDED
SECOND AMENDED NATIONWIDE CLASS ACTION COMPLAINT
Plaintiff Jerry Lynn Barker, on behalf of herself and all others similarly situated,, hereby brings this complaint against defendant Old Republic Home Protection Co., Inc. ("defendant" or "Old Republic") as follows:
PARTIES, JURISDICTION, AND VENUE
1. Jerry Lynn Barker ("plaintiff' or "Barker") is an adult resident citizen of Alabama and of this district and division.
2. Defendant Old Republic is a business corporation organized under and existing pursuant to the laws of the state of California, with its principal place of business in California.
3. This is a class action with class members located throughout the United States. - Less than one-third of the class members reside in Alabama. The defendant is not a citizen of Alabama. The amount in controversy exceeds $5,000,000.00 (five million dollars) exclusive of interest and costs. Accordingly, diversity jurisdiction exists pursuant to 28 U.S.C. § 1332(d) (as modified by the Class Action Fairness Act of 2005).
4. This case alleges violations of Section 8 of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2607 ("RESPA"). This case thus arises under the laws of the United States. Accordingly, federal question jurisdiction exists pursuant to 28 U.S.C. § 1331.
5. Old Republic is qualified to do business and conducts business in this district and division. This court accordingly has personal jurisdiction over the defendant, and thus venue is appropriate pursuant to 28 U.S.C. § 1391.
ALLEGATIONS COMMON TO THE CLASS
6. This case pertains to defendant's uniform, nationwide practice of charging home warranty premiums in connection with the settlement or closing of home mortgage loans in a manner that violates RESPA, specifically Section 8(a), which prohibits, among other things, the giving or accepting of fees in exchange for the referral of any "service involving a federally related mortgage loan" to "any person."
7. Old Republic is in the business of selling home warranties under which homeowners pay a premium (or a premium is paid on the homeowner's behalf) in exchange for services Old Republic provides in the event that certain components of a home require repair or replacement.
8. Old Republic markets its warranties through, among other avenues, real estate brokers involved in the sale of homes that are purchased using home mortgage loans. Old Republic has business relationships with real estate brokers throughout the United States. These brokers are encouraged to sell Old Republic warranties to homebuyers and sellers in connection with home purchases. The premium for a 1-year home warranty is collected from the homebuyer or seller in connection with the settlement and closing of the home purchase and related mortgage documents. Old Republic has an understanding with the real estate brokers that it will pay a fee denominated a "marketing fee" or "administrative fee" to real estate brokers who sell Old Republic home warranties. The real estate brokers, pursuant to this understanding, pocket, as their fee, a portion of the home warranty premium that is paid by the homebuyer or seller in connection with the settlement or closing of the home mortgage loan.
9. The U.S. Department of Housing and Urban Development ("HUD"), the federal agency charged with interpreting, enforcing, and promulgating regulations under RESPA, has expressly found that arrangements where a real estate agent receives a fee only when a consumer purchases a home warranty product is uniformly a violation of Section 8 RESPA. See letter from Paul Ceja, attached hereto as Exhibit A. RESPA's Section 8 provides, in pertinent part:
(a) No person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person.
In HUD's February 21, 2008 letter opinion, HUD notes that its RESPA regulations provide that a "settlement service" subject to Section 8(a) includes "services involving homeowner's warranties." Ex. A, citing 24 C.F.R. § 3500.2. HUD further noted that Section 8(c) of RESPA "provides on exception to this prohibition on fees and kickbacks for bona fide compensation for "good or facilities actually furnished for services actually performed." HUD stated that this exception would not apply in a situation where the real estate agent was only compensated if the warranty was actually purchased. "Because the payments are based on the number of successful transactions, they appear to be payments made pursuant to an agreement or understanding to refer business to the home warranty company, and not payments for services actually performed." Exhibit A, p. 2. Furthermore. characterizing "such arrangements as "marketing" or "administrative" agreements does not render the underlying conduct legal." Id. These kinds of payments made by home warranty providers to real estate agents are "only a means to facilitate payments for referrals by persons in a position to refer settlement service business, in violation of RESPA." Id.
10. On June 25, 2010, HUD published in the Federal Register an interpretive rule directed at compensation paid by home warranty companies to real estate brokers or agents essentially adopting its determinations in its February 21, 2008 letter. See 24 C.F.R. § 3500 attached hereto as Exhibit B. The rule states that "[a] homeowner's warranty is covered as a 'settlement service' under HUD's RESPA regulations." Exhibit B, p. 1. Under this rule, real estate agents or brokers may not be compensated for "marketing services." Because the principal services furnished by the real estate brokers are marketing services, they are illegal as a matter of law.
11. Accordingly, as a matter of law, the practice of paying fees to real estate brokers in connection with their placing home warranties with home buyers, where the payment to the real estate agent is conditioned upon a successful transaction selling the warranty product, or where the services rendered are marketing services, is a violation of Section 8(a) of RESPA, 12 U.S.C. § 2607(b). It constitutes the giving of a fee for the referral of services related to a federally related mortgage loan. It does not matter, under HUD's authoritative interpretation, that the home warranty provider claims that the real estate agent performed "some" services in connection with the home warranty. Pursuant to HUD, where "the payments are based on the number of successful transactions," the payment violates Section 8(a) of RESPA as a matter of law. This is so because in such circumstances, the payments are "made pursuant to an agreement or understanding to refer business" to Old Republic, and "not payments for services actually performed."
ALLEGATIONS PERTAINING TO PLAINTIFF BARKER
12. Jerry Lynn Barker sold a home located at 3518 York Street, Birmingham, Alabama 35242. The sale was financed using a federally related mortgage loan from Synovus Mortgage Corp., and closed on May 11, 2009.
13. In connection with the home sale, the buyers, Timothy A. Strickland and April L. Strickland, were represented by a real estate agent from Re/Max Over the Mountain.
14. At the May 11, 2009 closing of the 3518 York Street house sale, one of the items listed among Barker's closing costs was a charge for $550 for a one-year home warranty purchased from Old Republic. Upon information and belief, a portion of that $550 charge that Barker paid at closing went to the real estate agent in exchange for referring Barker's home warranty business to Old Republic. Old Republic paid this charge to the real estate agent for the referral.
CLASS ACTION ALLEGATIONS
15. Plaintiff brings this action on her own behalf and on behalf of others similarly situated as a nationwide class action pursuant to Rule 23 of the Federal Rules of Civil Procedure.
16. The class which plaintiff seeks to represent is composed of and defined as:
All persons in the United States of America who have purchased from the defendant a home warranty in connection with the sale or purchase of a home financed by a federally related mortgage during the applicable statute of limitations period, where any portion of the premium was paid to any real estate agent involved in the transaction, where such payments were conditioned upon the successful completion of the transaction selling the home warranty. Excluded from the class are the defendant, all officers, directors, employees, or agents of the defendant, and any agency or employee of the United States government acting in their official capacity.
17. This action has been brought and may properly be maintained as a class action pursuant to the provisions of the Rule 23(a)(l)-(4) and Rule 23(b) of the Federal Rules of Civil Procedure, and satisfies the numerosity, commonality, typicality, adequacy and superiority requirements thereof because:
(a) The plaintiff class is so numerous that the individual joinder of all members is impracticable under the standard of Fed. R. Civ. P. 23(a)(1).
(b) Common questions of law and fact exist as to all members of the class, as required by Fed. R. Civ. P. 23(a)(2), and predominate over any questions which affect only individual members of the class within the meaning of Fed. R. Civ. P. 23(b)(2). These common questions of law and fact include, without limitation:
(1) Whether defendant has engaged in a violation of law as alleged herein;
(2) Whether defendant by nature of its wrongful conduct is liable for damages and losses resulting from the conduct alleged herein; and
(3) Whether the defendant had a policy and uniform practice of violating RESPA in connection with the sale of home warranties, as alleged herein.
(c) Plaintiff's claims are typical of the claims of the members of the class under Fed. R. Civ. P. 23(a)(3). Plaintiff and all members of the class sustained damages arising out of defendant's common course of conduct in violation of law as complained herein. The losses of each member of the class were caused directly by defendant's wrongful conduct in violation of law as alleged herein.
(d) The individual and representative plaintiff will fairly and adequately protect the interests of the class as required by Fed. R. Civ. P. 23(a)(4). Plaintiff has no interests which are adverse to the interests of the class members. Plaintiff is an adequate representative of the class and any subclass as designated by the court. Plaintiff has retained counsel who have substantial experience and success in the prosecution of class action and consumer litigation.
(e) The scheme affected all class members similarly. Each plaintiff and class member paid a fee in connection with a federally related mortgage closing that violates Section 8 of RESPA.
(f) A class action is superior to other available methods for the fair and efficient adjudication of this controversy under Fed. R. Civ. P. 23(b) since individual joinder of all members of the class is impracticable. Furthermore, as the damages suffered by each individual member of the class may be relatively small, the expense and burden of individual litigation would make it difficult or impossible for individual members of the class to redress the wrongs done to them. The cost to the court system of adjudication of such individualized litigation would be substantial. Individualized litigation would also present the potential for inconsistent or contradictory judgments and would magnify the delay and expense to all parties and the court system in multiple trials of the factual issues of the case. By contrast, the conduct of this action as a class action presents far fewer management difficulties, conserves the resources of the parties and the court system, and protects the rights of each class member.
PRAYER FOR RELIEF
WHEREFORE, the premises considered, plaintiff Jerry Lynn Barker, on her own behalf and on behalf of those similarly situated, prays that the Court will:
A. Take jurisdiction of this action and certify it as a nationwide class action, appointing D. Frank Davis and John E. Norris as class counsel;
B. Award damages to plaintiff and the class in an amount equal to three times the amount of any charge paid for the settlement service of providing a home warranty;
C. Award court costs together with reasonable attorney's fees and expenses;
D. Award prejudgment and post-judgment interest; and
E. Award such further, different, or additional relief as the Court deems appropriate.
Plaintiff demands trial by struck jury.
/s/ John E. Norris
D. Frank Davis
John E. Norris
Wesley W. Barnett
Courtney Lynn Peinhardt
Attorneys for Plaintiff
DAVIS & NORRIS LLP
DEFENDANT OLD REPUBLIC HOME PROTECTION COMPANY'S ANSWER TO COMPLAINT
"...Old Republic often does not know whether the buyer or the seller selected Old Republic. Old Republic denies that such sale of a home warranty is "in connection" with "mortgage documents." Old Republic denies that real estate brokers "pocket" a portion of the fee. Old Republic states that real estate brokers normally provide services in connection with the sale of the home warranty and often provide services in continuing administration or assistance in connection with such home warranties."
DOWNLOAD A PDF COPY OF THE OLD REPUBLIC ANSWER HERE
KARL E. DOVER and JERRY LYNN BARKER, on their own behalf and on behalf of all others similarly situated, Plaintiffs,
DEFENDANT OLD REPUBLIC HOME PROTECTION COMPANY, INC.9S
ANSWER TO COMPLAINT
Defendant Old Republic Home Protection Company, Inc. ("Old Republic") hereby answers the putative class action complaint ("Complaint") brought by Plaintiff Jerry Lynn Barker ("Plaintiff') on his behalf and on behalf of others similarly situated. Without waiving any of the procedural or substantive defects in the Complaint, Old Republic answers as follows:
1. Old Republic admits that former plaintiff Karl E. Dover ("Dover") is an adult resident of Alabama. Old Republic denies that Dover is a current plaintiff in this action and denies that Dover is entitled to any recovery of any kind and reserves all defenses with regard to Dover.
2. Old Republic admits that Jerry Lynn Barker ("Barker" or "plaintiff') is an adult resident citizen of Alabama and of this District and division.
3. Admitted.
4. Old Republic denies that any class should be certified in this case but admits that less than one-third of the alleged class members reside in Alabama. Old Republic further admits that it is not a citizen of Alabama. Old Republic has not yet determined the amount in controversy and therefore denies the same.
5. Old Republic denies that Barker is entitled to any relief and denies that it has violated RESPA. Old Republic admits that the claim in this matter arises under federal law.
7. Old Republic denies that there are any allegations common to the class. Old Republic denies that this action "pertains to defendant's uniform, nationwide practice of charging home warranty premiums." To the extent this paragraph includes allegations of law, RESPA's statutory language speaks for itself and no response is necessary. Old Republic denies that it has violated RESPA. To the extent any further response is required, Old Republic denies.
8. Old Republic admits that it is the business of providing home warranties. Old Republic admits that it provides services. Old Republic admits that its warranty will cover repairs or replacement in certain circumstances. Old Republic admits that in some circumstances the current homeowner pays a fee for such warranties.
9. Old Republic admits that it markets warranties through a number of avenues. Old Republic admits that it works with real estate brokers. Old Republic admits that it encourages real estate brokers to recommend Old Republic warranties. Old Republic admits that the fee for a 1-year home warranty is sometimes collected, in whole or in part, from the buyer or the seller or both at the closing for a home sale. Old Republic often does not know whether the buyer or the seller selected Old Republic. Old Republic denies that such sale of a home warranty is "in connection" with "mortgage documents." Old Republic denies that real estate brokers "pocket" a portion of the fee. Old Republic states that real estate brokers normally provide services in connection with the sale of the home warranty and often provide services in continuing administration or assistance in connection with such home warranties. To the extent any further response is required, Old Republic denies.
10. Denied. The cited HUD letter states that "this response is an unofficial staff interpretation in accordance with 24 CFR § 3500.4(b). As such, the response does not constitute a rule, regulation, or interpretation of the Secretary of HUD for purposes of section 19 of RESPA (12 U.S.C. 2617), and no person may rely on this response to provide protection from liability under RESPA or HUD's implementing regulations." Further, the cited HUD letter does not create any cause of action in favor of the Barker or the putative class. Moreover, the cited HUD letter responds to two hypothetical "scenarios." Such hypothetical scenarios did not involve the providing of any actual services by the real estate broker and did not include a number of key facts that are often present in the sale of home warranties (for instance (and this is only one of many examples), where the real estate agent analyzes coverages and home warranty companies to recommend). To the extent any further response is required, Old Republic denies.
11. Denied.
12. Old Republic admits that Barker sold a home at the indicated address. Old Republic does not have sufficient information to admit or deny the remainder of the paragraph and therefore denies the same. Often, Old Republic will not know if a home warranty was purchased in connection with the purchase or sale of a home. Old Republic will not normally know whether a loan was involved in such a purchase or sale and will often not know if it was a federally related mortgage. Old Republic will also often not know whether the buyer or the seller (or both) paid for the home warranty.
13. Admitted.
15. Old Republic denies that any class is appropriate.
16. Old Republic denies that the alleged class is appropriate and denies that the alleged class is identifiable.
Old Republic denies all portions of the Prayer for Relief and states that no relief is appropriate of any kind to plaintiff. Further, without waiving any of the foregoing, Old Republic denies that any trebling of damages would ever be based upon the entire home warranty fee.
To the extent Old Republic has not expressly admitted any allegations in the Complaint, Old Republic denies each and every such allegation.
Old Republic reserves the right to add additional affirmative defenses or counterclaims if a class is ever certified in this action. Old Republic expressly alleges that no class certification is appropriate. By listing an affirmative defense, Old Republic does not admit that it bears the burden of proof or burden of pleading or burden of persuasion on such defense. Old Republic further reserves the right to add further defenses as discovery occurs.
1. Plaintiffs allegations fail to state a claim upon which relief can be granted.
2. Plaintiffs claim against Old Republic is barred by the doctrines of waiver, estoppel, ratification, acquiescence, in pari delicto, and unclean hands.
3. Plaintiff has not suffered any damages.
4. To the extent that Plaintiff alleges he suffered damages, Plaintiffs failure to mitigate his alleged damages acts as a bar to all or some of the relief sought in his Complaint.
5. Old Republic pleads RESPA Section 8(c).
6. Plaintiff's claims are barred by the rule of lenity.
7. Old Republic pleads that plaintiff's claim would violate the United States Constitution Due Process (substantive and/or procedural Due Process) and Equal Protection Clause, including, but not limited to, any finding of violation in these circumstances, any assessment of treble damages in these circumstances, and any assessment of such damages against the entire home warranty fee in these circumstances. Further, plaintiff's claim for treble damages is essentially a request for punitive damages and therefore would violate Old Republic's right to procedural and substantive due process.
8. Plaintiff is not the real party in interest.
9. Plaintiff's claim is barred, in whole or in part, by the voluntary payment doctrine and because the price was negotiated by the plaintiff.
10. Any payment by Old Republic to a third party in connection with any home warranty was a payment of a bona fide compensation or was payment for services actually performed.
WHEREFORE, having fully answered the Complaint, Old Republic demands and prays that:
1. Judgment be entered in favor of Old Republic on all claims;
2. The Complaint be dismissed with prejudice and that all costs of this action, including reasonable attorneys' fees, be assessed against Plaintiff; and
3. Old Republic be awarded such other and further relief as may be justified by the evidence and the law or as may be deemed appropriate by the Court.
/s/ Gregory C. Cook
One of the Attorneys for
Company, Inc.
Windermere Bainbridge Island (owner Carter Dotson, left) and Agents Diane Sugden and Jan Johnson, Sued for Negligent Misrepresentation, Fraud, and Violation of the Consumer Protection Act, in Arsenic Contaminated Water Well Non-Disclosure Case, Alleging:
(Left) Sonya Eppig and Windermere Real Estate/CIR Owner Marla Heagle, producing for fanchiser Windermere Services Company. "...Eppig did not tell the Ruebels about the addendum Nelson prepared disclosing that the engineering work was not complete and that the building plans did not meet the UBC requirements. Instead, Eppig helped draft a revised addendum that did not so unequivocally set forth the permitting and inspection problems. And when Camano Realty listed the Hovis property for approximately two years, Camano learned about the permitting and inspection problems but did not inform the Ruebels....
WINDERMERE-DEMCO LYING LAWYERS and LEGAL PROCESS CHEATS, PAUL STEPHEN DRAYNA and MATTHEW F. DAVIS:
segregating, like the burden of showing reasonableness overall, rests on the one claiming such fees. Loeffelholz, et. al v. Citizens for Leaders with Ethnic and Accountability Now (C.L.E.A.N), 119 Wn. App. 665, 690, 82 P.3d 1199 (2004); Katanis v. Educ. Employees Credit Union, 122 Wn.2d 483, 501-502, 859 P.2d 26 (1993).
Here in June 2003, the Ruebels sued Hovis for negligent and fraudulent misrepresentation and constructive fraud. In April 2004, the Ruebels added Windermere Real Estate, Camano Realty, Sonja Eppig, Preview Realty, Roger Nelson, Washington Builders and its owner Terry Morgan. In addition to negligent and fraudulent misrepresentation, the amended complaint alleges breach of fiduciary duty against Camano Realty and Eppig, breach of good faith and fair dealing against Preview and Nelson, and negligent and defective construction against Washington Builders and Morgan. Yet the Reubels attorney stated that only approximately $7,200 could be deducted for time spent on the unrelated CPA claims and theories. The trial court agreed but did not enter written findings of fact and conclusions of law in support of the attorney fee award of $311,305.11
Relying on the trial court's oral ruling and a recent supreme court decision, Mayer v. Sto Industries, Inc., 156 Wn. 2d 677, 692, 132 P.3d 114 (2006), the Ruebels argue that the court did not abuse its discretion in deciding segregation was not reasonable. But here, unlike in Mayer, the trial court's oral decision does not provide a clear explanation that the CPA work could not be segregated from the WPLA work,
11 The cases the Ruebels cite to argue that oral findings are sufficient are not persuasive. Neither Goodman v. Darden, Doman & Stafford Assoc., 100 Wn.2d 476, 670 P.2d 648 (1983) nor Malfait v. Malfait, 54 Wn.2d 413, 341 P.2d 154 (1959) address the need for findings to support an award of attorney fees.
Mayer, 156 wn.2d at 693.12
On attorney's fees, there is no challenge to the loadstars being reasonable. The only challenge is to the segregation. I am somewhat concerned about the attorney's fees before Ms. Eppig or Camano Island Realty were included in the -- included in the complaint, however, there was a great deal of work at the time about the damages, about what -- what happened to the house, the house left, and whether or not we were going to have pictures and what that -- would happen. And those were obviously questions and -- and I'm not sure if I'm correct on that. Those -- those things may have come up once the realty defendants were entered into the action. But I can see that it was a record that was being built on this CPA claim. I don't see how these could be segregated myself and I believe that the court cases say that if it's not reasonable to be segregated then it will not be segregated.
Because the trial court failed to enter findings of fact and conclusions of law to support the award of attorney fees, we reverse and remand.13 On remand, the Ruebels have the burden to segregate the time spent on the CPA claim from the time spent on the unrelated legal theories and claims and the court must enter written findings to support an award of attorney fees.
On cross appeal, the Ruebels claim the trial court erred by not including the $13,500 the jury awarded for the negligence claim. Specifically, the Ruebels argue that the stipulation to not award negligence damages was void because it was based on misrepresentation and mutual mistake.
12 See also Brand v. Dep't of Labor & Indus., 139 Wn.2d 659, 674, 989 P.2d 1111 (1999) (while the court concluded that the trial court properly refused to segregate the fees attributable to plaintiff's unsuccessful claim, because the trial court failed to enter written findings or to articulate specific reasons supporting the amount of the attorney fees award, the court remanded for it was unable to judge whether the trial court abused its discretion). And in Pham, 159 Wn.2d 527, the trial court entered thirty-five findings of fact justifying its fee award, including the court's reason for segregating and deducting hours that were unproductive or not sufficiently related to the successful claim. Pham, 159 Wn.2d at 539-40.
13 On remand, the court should also consider whether there was any duplicative or wasted effort and the reasonableness of the fee award.
During deliberations, the jury asked whether it should answer Question 5 "Did the Ruebels prove their claim for negligence or breach of fiduciary duty?", if it answered Question 4 "What is the amount of damages proximately caused to the Ruebels by Ms. Eppig's fraudulent concealment and/or violation of the Consumer Protection Act?" The attorney for Camano Realty and Eppig expressed the concern that the jury could award double damages. In response,the Ruebels' attorney agreed that if the jury awarded damages under the negligence claim that were not greater than the amount under the fraudulent concealment and CPA claims, the damages should not be included in the award.
. . . that I only argued one theory of damages, so maybe the best way of dealing with this is to do this. I really do think this is going to be confusing to the jury if we add this double damages stuff because we haven't talked about it and it's not in the instructions.
I agree that if there are any damages that are awarded under the negligence count and they're not greater than the amount under the fraud and Consumer Protection Act counts, then they will be subsumed within the first one, and that will settle the matter, I would think.
Based on the stipulation of Ruebels' attorney, the court responded to the jury question by answering, "yes".
In the Special Jury Verdict form, the jury found the amount of damages proximately caused by Eppig's violation of the CPA was $126,319.51. The jury also found the amount of damages proximately caused by Eppig?s negligence and breach of fiduciary duty was $33,750. Based on the stipulation, the trial court did not include the damages for the negligence and breach of fiduciary claims in the award.
A valid stipulation is binding unless fraud, mistake, or misunderstanding is established. De Lisle v. Fmc Corp., 41 Wn. App. 596, 597, 705 P.2d 283 (1985) (citing Baird v. Baird, 6 Wn. App. 587, 494 P.2d 1387 (1972).
To support their claim that the stipulation is void, the Ruebels cite to a criminal case, State v. Schaupp, 111 Wn.2d 34, 757 P.2d 970 (1988) concerning entry of a plea agreement based on an alleged misrepresentation. In Schaupp, the court rejected the State's claim that the plea agreement was void because there was no evidence of misrepresentation. Schaupp, 111 Wn.2d at 38-39. Here, as in Schaupp, the record does not support misrepresentation. Based on a concern about awarding double damages, Ruebels' attorney agreed with the concern and suggested a means to avoid it.
To support their claim that the stipulation is void based on mutual mistake, the Ruebels cite several cases for the general proposition that contract principles apply to determine whether a stipulation is enforceable.14 But a party with constructive knowledge of the facts giving rise to an alleged mistake cannot claim mistake as a basis to avoid a stipulation. Denaxas v. Sandstone Court of Bellevue, LLC, 148 Wn.2d 654, 668, 63 P.3d 125 (2003). Because Ruebels' attorney had constructive knowledge of the jury instructions, the claim that the stipulation is void based on mutual mistake also fails.
We affirm the trial court's entry of judgment on the jury verdict but reverse and
14 Wm. Dickson Co. v. Pierce County, 128 Wn. App. 488, 493, 116 P.3d 409 (2005) ("Contract principles govern final judgments entered by stipulation or consent."); Haller v. Wallis, 89 Wn.2d 539, 546, 573 P.2d 1302 (1978) (trial court's decision not to vacate a stipulated order under CR 60(b) affirmed where there was no evidence of fraud or collusion and none of the irregularities charged is attributable to the respondent); and Harford v. Harford, 86 Wn. App. 259, 266, 936 P.2d 48 (1997) (trial court's decision to vacate a stipulated order under CR 60(b) reversed where court found only that a unilateral mistake was made).
remand on the attorney fees award. Because the Ruebels prevailed as to the merits of their CPA claim, upon compliance with RAP 18.1, the Ruebels are entitled to attorney fees on appeal. RCW 19.86.090; Sevendson v. Stock, 143 Wn.2d at 250.
SUPERIOR COURT OF CALIFORNIA, ORANGE COUNTY—No. 30-2013-00663429-CU-FR-CJC:
Former Windermere agent sues Windermere owners James and Andrea Marquez for Fraud, Conversion, and Negligence, seeking unpaid commissions owed of $22,938.75, in Complaint alleging: "Defendants instructed Plaintiff to commit perjury when he testified," and "...alleges that Defendants falsified a document signed by Seller..."
DOWNLOAD A PDF COPY OF THE COMPLAINT HERE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ORANGE - CENTRAL JUSTICE CENTER
DAVID OTT, an individual,
JAMES MARQUEZ, an individual; ANDREA MARQUEZ, an individual; and DOES 1 through 100, inclusive,
Case No. 30·2013·00663429·CU·FR·CJC
VERIFIED COMPLAINT FOR:
1) FRAUD;
2) CONVERSION;
3) NEGLIGENCE
Judge Derek W. Hunt
PARTIES, JURISDICTION AND VENUE
1. At all times mentioned herein, Plaintiff DAVID OTT ("Plaintiff') was and is an individual residing in California.
2. Plaintiff is informed and believes that at all times mentioned herein, defendant JAMES MARQUEZ ("Mr. Marquez") was and is an individual residing in the County of Orange. Plaintiff is further informed and believes that at all times mentioned herein, Mr. Marquez was and is an owner or principal of Windermere Real Estate Socal, Inc. ("Windermere"), as well as an owner or principal of A & L Partners, Inc. ("A & L Partners.")
3. Plaintiff is informed and believes that at all times mentioned herein, defendant ANDREA MARQUEZ ("Mrs. Marquez") was and is an individual residing in the County of Orange. Plaintiff is further informed and believes that at all times mentioned herein, Mrs. Marquez was and is an owner or principal of Windermere, as well as an owner or principal of A & L Partners.
4. Mr. Marquez and Mrs. Marquez shall be collectively referred to herein as "Defendants."
5. The true names and capacities, whether individual, corporate, associate or otherwise, of defendants named herein as DOES 1 through 100, inclusive, are currently unknown to Plaintiff, who therefore sues said defendants by such fictitious names. Plaintiff is informed and believes that each of these fictitiously named defendants is in some manner responsible for the events and damages alleged herein and will seek leave of court to amend this Complaint to show the true names and capacities when the same have been ascertained. Each reference in this complaint to "defendant," "defendants," or a specifically named defendant refers also to all defendants sued under fictitious names.
6. Plaintiff is informed and believes and thereon alleges that at all times mentioned herein, each of the defendants, as well as DOES 1 through 1 00, was the principal, agent, representative, partner, joint venturer, co-conspirator, alter ego or employee of each of the other defendants, as well as DOES 1 through 100, and in doing the things alleged herein was acting within the course and scope of such relationship with the full knowledge, consent, authority and/or ratification of each of the other defendants and DOES 1 through 100.
7. Jurisdiction in the State of California is proper because Plaintiff is informed and believes that Defendants reside there.
8. Venue in Orange County is proper as the conduct giving rise to this action substantially occurred there.
BACKGROUND FACTS
9. Plaintiff is a real estate agent duly licensed under the laws of the State of California. At all times relevant herein up until on or about October 21, 2011, Plaintiff was a successful real estate agent and independent contractor for Windermere.
10. On August 18, 2011, through no fault of Plaintiff, the buyer of one of the properties for which Plaintiff was the listing agent and Windermere was the broker (the "Flower Street Property") filed legal proceedings in Orange County Superior Court, case number 30-2011-00501187-SC-SC-CJC, arising out of that sale and naming, among others, Plaintiff, Defendants, and A & L Partners as defendants (the "Flower Street Property Litigation.")
11. Plaintiff is informed and believes and thereon alleges that Defendants resent Plaintiff for referring the Flower Street Property listing to them and, unfairly and without justification, blame him for causing them to enter into a transaction in which they, separately and independently of Plaintiff, ultimately acted unlawfully.
12. On August 5, 2011, Plaintiff entered into a written exclusive right to sell listing agreement (the "Listing Agreement") for 21436 Chirping Sparrow Road in Diamond Bar, California 91765 (the "Property") with the owner of the Property, Mark Palmer (the "Seller"), at a list price of $499,999. A true and correct copy of the Listing Agreement is attached hereto as Exhibit "A."
13. Pursuant to the terms of the Listing Agreement, Windermere was the broker for the sale of the Property and Plaintiff, as the listing agent, was entitled to a commission of 3.5% of the sale price of the Property (the "Commission.")
14. On September 26, 2011, Plaintiff entered into a written referral agreement (the "Referral Agreement") which entitled Plaintiff to an additional 25% of the Maritza Jimenez's, the selling agent's, commission if Plaintiff procured the ultimate buyer for the Property (the "Referral Fee.") A true and correct copy of the Referral Agreement is attached hereto as Exhibit "B."
15. Plaintiff did in fact procure the buyer for the Property, and as such is entitled to the Referral Fee.
16. The sales transaction for the Property was submitted to escrow on August 30, 2011 at a sales price of $543,000. The sale of the Property was ready to be closed on or about October 15, 2011. However, Plaintiff is informed and believes that Defendants intentionally delayed the close of escrow on the Property until December 28,2011, because they wanted to wait until the Flower Street Litigation was concluded and use that litigation as an excuse to deprive Plaintiff of his Commission and Referral Fee.
17. On or about September 2, 2011, A & L Partners submitted instructions to Seller to pay a commission of $19,005.00 to Plaintiff at Windermere, and a commission of $13,575.00 to Maritza Jimenez, the selling agent for the Property at Windermere.
18. On or about October 21, 2011, Plaintiff was scheduled to testify in the Flower Street Litigation. However, in advance of that testimony, Defendants instructed Plaintiff to commit perjury when he testified. Rather than doing as Defendants requested, Plaintiff refused to testify and on that very same day, Plaintiff resigned from Windermere and became an agent and independent contractor for a new real estate company, Keller Williams Pacific Estates ("Keller Williams.")
19. As part of Plaintiff's resignation, Defendants agreed that the listing for the Property, among other properties, would be transferred to Keller Williams for continued service by Plaintiff, and Plaintiff would still be entitled to the Commission and Referral Fee. Defendants later tried, unsuccessfully, to renegotiate the terms of the Commission to be less favorable to Plaintiff.
20. This transfer was in the best interest of all parties involved, including Defendants, because if the Property remained listed with Windermere, the sale of the Property would be in violation of the arms-length transaction requirement for short sales, since Seller was an agent for Windermere at the time of the listing. Prior to Plaintiff's resignation, Plaintiff vocalized his concerns to Defendants regarding the propriety of the short sale of the Property with Windermere as the broker.
21. Nonetheless, on October 28, 2011, Plaintiff is informed and believes and thereon alleges that Defendants falsified a document signed by Seller in order to revoke Plaintiff's authorization to discuss the sale of the Property with Bank of America, the financial institution associated with the short sale of the Property.
22. Thereafter, Defendants refused to transfer the listing for the Property to Keller Williams or allow Plaintiff to communicate with Bank of America or any other parties related to the sale of the Property.
23. Plaintiff is entitled to a Commission of $19,005 and a Referral Fee of$3,393.75, equal to 25 percent of Maritza Jimenez's commission, but Defendants have refused to pay Plaintiff this Commission and Referral Fee.
FIRST CAUSE OF ACTION
(Against All Defendants)
24. Plaintiff refers to each of the foregoing paragraphs in their entirety, and hereby incorporates them by reference as though fully set forth herein.
25. Plaintiff is informed and believes that as a result of the Flower Street Property Litigation, Defendants sought to injure Plaintiff personally and professionally because they blamed Plaintiff for the ensuing litigation and for refusing to perjure himself in that litigation at the request of Defendants. Plaintiff is further informed and believes Defendants did so because Plaintiff vocalized his concerns regarding the arms-length transaction requirement for the short sale of the Property, and Defendants' imminent violation thereof.
26. On or about October 20, 2011, Defendants represented to Plaintiff that he would receive a "short sale negotiation fee" for the Property, even after his resignation from Windermere. Mr. Marquez confirmed this representation in writing in an email dated October 21, 2011.
27. On or about October 21, 2011, Defendants represented to Plaintiff that the listing for the Property would be transferred to Keller Williams and that he was allowed to continue to service the Property. Christine Haynes, a sales manager for Windermere, confirmed this representation in writing in an email dated October 27,2011.
28. However, Plaintiff is informed and believes that at the time Defendants made these representations, they knew that they were false, and that they would not transfer the listing for the Property to Keller Williams, that they would not allow Plaintiff to continue to service the Property, and that they would not pay Plaintiff his Commission or Referral fee. Plaintiff is informed and believes that Defendants never had any intention of following through on their promises and contractual obligations because they resented Plaintiff for bringing them the Flower Property, a transaction which ultimately resulted in litigation, and for vocalizing his concerns regarding Defendants' unethical and unprofessional conduct.
29. Plaintiff is informed and believes that Defendants made these representations to deceive Plaintiff, because they intended to delay the close of escrow on the Property until after the Flower Street Property Litigation concluded and use that litigation as an excuse to deprive Plaintiff of his Commission and Referral Fee.
30. Plaintiff justifiably relied on these misrepresentations by completing his transition from Windermere to Keller Williams without first waiting for escrow to close on the Property and receiving his Commission and Referral Fee. Defendants' misrepresentations lulled Plaintiff into a false sense of security that he would be able to resign from Windermere, work at Keller Williams, continue to service the Property, and receive his Commission and Referral Fee without any problems.
31. On October 28,2011, Seller signed a form authorizing Maribel Cabrera at the Bank of America HELOC Short Sale Department to discuss his account with his realtor. Plaintiff is informed and believes that, in furtherance of his deceit, Mr. Marquez altered this document after Seller signed the authorization and without Seller's knowledge to include a typewritten "Special Note" that stated "Please be advised that DAVID OTT with Windermere Preferred Living is NO LONGER AUTHORIZED to negotiate this short sale on my behalf. Any further contact with him on my behalf is strictly prohibited. Please contact my new negotiator as listed above."
32. Plaintiff is informed and believes that Mr. Marquez made this alteration in order to cause injury to Plaintiff professionally, again because of his resentment of Plaintiff for the Flower Property Litigation and for Plaintiff's vocalization of his concerns regarding Defendant's unethical and unprofessional conduct. Plaintiff is further informed and believes that Mr. Marquez did so in order to purposely delay the close of escrow on the Property until after the Flower Street Litigation had been concluded so that he could use that litigation as an excuse to deprive Plaintiff of his Commission and Referral Fee.
33. Each of the Defendants engaged in the aforementioned conduct for his or her own personal benefit and advantage, rather than solely on behalf of and at the direction of Windermere. Plaintiff is informed and believes that each of the Defendants attempted to gain personally from defrauding Plaintiff in at least the following ways:
a. Defendants engaged in the aforementioned conduct in order to induce Plaintiff to leave Windermere so they could more easily abscond with his Commission and Referral Fee, and with the hope that Plaintiff would no longer call attention to their personal unprofessional and unethical actions;
b. Defendants engaged in the aforementioned conduct in order to personally receive the Commission and Referral Fee owed to Plaintiff. By not having to pay Plaintiff his Commission, Mr. Marquez was able to receive a higher commission as the broker for the sale of the Property. As such, Defendants put their own personal financial interests ahead of Plaintiff's interests; and
c. Defendants knew that causing Plaintiff to leave Windermere would make it harder for Plaintiff to witness their continued unethical conduct and therefore better protect them personally from liability for that conduct.
34. As a result of Defendants' fraud, Plaintiff has suffered damages including, but not limited to, the amounts of the Commission and the Referral Fee.
35. Plaintiff is informed and believes that the aforementioned conduct of Defendants, and each of them, was carried out as part of a deliberate scheme to fraudulently induce Plaintiff into resigning from Windermere Property with the conscious goal of maximizing Defendants' profitability. Such conduct was oppressive, fraudulent, and malicious, and subjected Plaintiff to cruel and unjust hardship in a willful and conscious disregard of his rights, warranting exemplary and punitive damages pursuant to Civil Code section 3294, for the reasons set forth herein and for at least the following reasons:
a. It was done with the purposeful and intentional design of putting Defendants' own business and pecuniary interests ahead of Plaintiff's rights and interests;
b. It was done with the purpose and intent of deceiving and fraudulently inducing Plaintiff into believing he was going to receive the Commission and Referral Fee to which he was entitled for his diligent work in selling the Property and ultimately saving Seller from foreclosure, while Defendants knowingly concealed and failed to disclose their true intentions of never paying Plaintiff the Commission and Referral Fee; and
c. It was done with the purpose and intent of maximizing Defendants' profit on the sale of the Property, without any regard to their obligations to not intentionally delay the close of escrow of the Property or to honor their contractual obligations to Plaintiff.
SECOND CAUSE OF ACTION
37. Since the close of escrow on the Property on or about December 28, 2011, and pursuant to the written Listing Agreement and written Referral Agreement, Plaintiff was, and still is, entitled to the $19,005 Commission and the $3,393.75 Referral Fee.
38. On or about December 28, 2011, Defendants converted the Commission and the Referral Fee by keeping the monies for themselves and not paying them to Plaintiff.
39. As a result of Defendants' conversion, Plaintiff has suffered damages, including, but not limited to, the amounts of the Commission and Referral Fee, and the interest Plaintiff would have otherwise received thereon from December 28,2011 to present.
40. Each of the Defendants engaged in the aforementioned conversion for his or her own personal benefit and advantage, rather than solely on behalf of and at the direction of Windermere. Plaintiff is informed and believes that each of the Defendants attempted to gain personally from converting the Commission and Referral Fee in at least the following way:
a. Defendants engaged in the aforementioned conduct in order to personally receive the Commission and Referral Fee owed to Plaintiff. By not having to pay Plaintiff his Commission, Mr. Marquez was able to receive a higher commission as the broker for the sale of the Property. As such, Defendants put their own personal financial interests ahead of Plaintiff's interests.
41. Plaintiff is informed and believes that the aforementioned conduct of Defendants, and each of them, was carried out as part of a deliberate scheme to maximize Defendants' profitability. Such conduct was oppressive, fraudulent, and malicious, and subjected Plaintiff to cruel and unjust hardship in a willful and conscious disregard of his rights, warranting exemplary and punitive damages pursuant to Civil Code section 3294, for the reasons set forth herein and for at least the following reasons:
a. It was done with the purposeful and intentional design of putting Defendants' own business and pecuniary interests ahead of Plaintiff's rights and interests; and
b. It was done with the purpose and intent of maximizing Defendants' profit on the sale of the Property, without any regard to their obligations to not intentionally delay the close of escrow of the Property or to honor their contractual obligations to Plaintiff.
THIRD CAUSE OF ACTION
43. Defendants owed Plaintiff a duty to act in compliance with the standards of reasonable care imposed upon them, including, but not limited to, paying Plaintiff the Commission and Referral Fee to which he was entitled within a reasonable time after the close of escrow on the Property and not taking affirmative steps to interfere with Plaintiff's service of the Property.
44. Defendants breached their duty of care by engaging in at least the following conduct:
a. Delaying the close of escrow on the Property to December 28,2011, when the closing was otherwise ready to be completed on October 15,2011; and
b. Refusing to pay Plaintiff the Commission and Referral Fee to which he was entitled, and then using the Flower Property Litigation as an excuse for not doing so.
45. As a result of Defendants' breaches, Plaintiff has suffered damages including, but not limited to, the amounts of the Commission and the Referral Fee.
46. Each of the Defendants engaged in the aforementioned negligent acts for his or her own personal benefit and advantage, rather than solely on behalf of and at the direction of Windermere. Plaintiff is informed and believes that each of the Defendants attempted to gain personally in the following way:
WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as follows:
ON THE FIRST AND SECOND CAUSES OF ACTION:
1. For general, special and consequential damages according to proof; and
2. For exemplary and punitive damages in amounts that are yet to be ascertained;
ON THE THIRD CAUSE OF ACTION:
1. For general, special and consequential damages according to proof;
ON ALL CAUSES OF ACTION:
1. For prejudgment interest as allowed by law and according to proof;
2. For recovery of costs and expenses of suit as allowed by law; and
. For such other and further relief as the Court deems just and proper.
Dated: July 18,2013 WILSON HARVEY BROWNDORF LLP
By: ___________________
&nb

redpajama_set_name: RedPajamaCommonCrawl


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As the first phase of the epidemic reached its peak, I wrote an explanation of how to understand what is meant by a COVID-19 death and why these numbers are sometimes confusing (20 May). Now, as sadly the numbers of deaths are again rising, I return to the subject of mortality but from a different viewpoint, that of the doctor more than of the patient or the epidemiologist.
Many medical students become familiar with two aphorisms, once very popular among those like me who used to teach them, and apparently delivered in the guise of age-old wisdom. The first is:
Thou shalt not kill but needst not strive
officiously to keep alive…
Readers will recognise these lines as a couplet from Arthur Hugh Clough's satirical poem, The Latest Decalogue, a parody of the Ten Commandments, and far from intended as advice to doctors. The second is a parody of the litany, but sometimes known as the doctor's prayer:
From inability to let well alone; from too much zeal for the new and contempt for what is old; from putting knowledge before wisdom, science before art, and cleverness before common sense; from treating patients as cases, and from making the cure of the disease more grievous than the endurance of the same, Good Lord deliver us.
This was indeed advice to medical students from Sir Robert Hutchison, the archetypical teaching hospital consultant physician and sometime President of the Royal College of Physicians of London. He was said in his obituaries to have been beloved by his students despite the sadistic manner he was in the habit of treating them in front of their peers. Hutchison, a brilliant diagnostician and author of a book on clinical examination which long outlived its author's 89 years, was a Scot, born (albeit in a castle) at Kirkliston. He unfortunately became a role model for some less able but equally abusive consultants of the post-war decades, satirised by Richard Gordon (Ostlere) as Sir Lancelot Spratt in Doctor in the House.
There is something profound but also troubling in both these aphorisms in the context of modern medicine. They have an immediate appeal, a call to humanity. But they also raise a serious question; when should we, as patients, doctors or relatives, accept the inevitability of death and turn the switch, from striving to cure to alleviation of suffering? This decision has become progressively more difficult as medical ability to deal with previously fatal conditions has increased.
Simple mouth-to-mouth ventilation and external cardiac massage were introduced to medicine in the early 1960s, followed a decade later by electrical defibrillation. Prior to that, cardiac resuscitation depended on direct squeezing of the heart through an incision in the chest, a procedure that few doctors felt able to perform. Mechanical lung ventilation was introduced using iron lungs on a large scale in medicine in the 1952 poliomyelitis epidemic, and renal dialysis revolutionised the management of kidney failure from the 1960s. Now we have organ transplantation, and many previously fatal conditions have become remediable, though all of these apparent remedies bring with them complications and risks. All have been introduced since I became a medical student and all pose a dilemma; to apply or not to apply?
Television has moved the occasional successful resuscitation to the status of an apparently essential manoeuvre prior to almost any death. If you see someone collapse and find they have no pulse, you do not hesitate. Fast treatment of such episodes has the greatest chance of restoring many years of valued life. On the other hand, someone who is in the late stages of cancer or a chronic disabling disease may well wish to be allowed (or helped) to die peacefully and in such cases we as patients or relatives must consider not only an order not to resuscitate but also appropriate management of the process of dying. Between these clear-cut cases lies a grey area of dilemma, very much an issue with respect to COVID-19.
Now, if our intensive care specialist staff and their ventilators are to cope with the upsurge of patients contracting COVID-19, doctors must make decisions every day on whom not to treat. Often, the medical decision is not very difficult, if the patient is conscious and able to give an informed view and if the doctor is prepared to explain the pros and cons honestly. It must have been more difficult early in the current pandemic when the adverse consequences and inefficacy of intensive treatment in many cases were not fully appreciated.
As I watched COVID-19 coming across from China, I informed my son, an infectious disease consultant, that I did not wish to go into intensive care if I contracted the disease. My reason for this was that I had read of the low level of successful treatment in the elderly and the great difficulties posed by putting patients on ventilators and then stopping the treatment weeks later.
My son told me that these difficult decisions are made carefully and objectively, usually following discussion between a panel of specialists in a multidisciplinary team meeting. These discussions consider the patient's fitness prior to the illness, the response to treatment and medical complications thus far, the likelihood of survival, and finally, the likely impact on quality of life should a patient survive. This is a complex matrix of decision-making and not simply a question of offering or denying a life-saving treatment. Indeed, it is more accurate to understand that intensive care is just that – buying some time through care and support while the infection or inflammation wanes and the body heals, care rather than cure.
Among the over 80s, if we reach the stage of not responding to the current best available treatment, we will be very unlikely to survive weeks on a ventilator and all the accompanying interventions required as lungs, kidneys and heart start to fail. Happily, consultants in palliative care are in the vicinity to ease our passage, applying a different kind of intensive care. The ventilators and expertise are better used on people who have the physical ability to withstand the awful trauma of weeks or months on this treatment and the long rehabilitation required by survivors; inevitably they are younger. The decision not to care for someone 'on a ventilator' is not made on age alone; the presence of other chronic disease or disability (including disabling obesity or frailty) is what determines survival from intensive treatment.
Some who are reading this may catch COVID-19, though I hope you, like me, are all taking every measure you can to avoid it, both for your sake and for that of those who would then catch it from you. If we do get it, our response to it depends critically on our age and the presence of other chronic incapacity. Nevertheless, even among the elderly, most survive with remarkably few symptoms. If we are unfortunate enough to become breathless and our oxygen levels fall, the outlook now is much better than it was in the first phase, as treatment with oxygen, appropriate positioning of the patient and drugs (notably dexamethasone) that are now known to be beneficial are deployed early; the majority now survive without needing the support of invasive ventilation.
Dr Hutchison's advice was given before even mouth-to-mouth ventilation or external cardiac massage had been thought of, and I wonder what he would have thought of today's medicine. This is what I think of his advice. It looks sensible on first sight, but then you start to wonder. Transpose his advice and you will see why. His alternatives are not mutually exclusive. Art and science combine in the best of both vocations. The artist thinks often in terms of colour saturation, perspective, proportions. The scientist uses imagination in exploring hypotheses, and the doctor modifies treatment from understanding of the whole patient and his or her environment.
Medicine is based on old tradition but absorbs the new all the time. The wisdom and art of medicine include constant lessons from knowledge and science; being clever does not exclude the use of common sense (or rather common humanity). But sometimes the attempt to cure is indeed worse than endurance of the disease when expert palliative care is available. So those two lines from Clough with which I began are indeed apt, even when taken out of their original context.
I am certain that we will not meet a doctor in intensive care who strives with officious intent; he or she will certainly agonise over difficult decisions, weighing the pros and cons but always considering what is best for the patient. The word cure originally meant to care for and to me it still does.
Some of you will recall W H Auden, skin wrinkled by his cigarette smoking:
Give me a doctor, partridge-plump,
Short in the legs and broad in the rump
An endomorph with gentle hands
Who'll never make absurd demands
That I abandon all my vices
And pull a long face in a crisis
But with a twinkle in his eye
Will tell me that I have to die.
Well, maybe, but I hope he will take care first not to miss anything remediable.
Anthony Seaton is Emeritus Professor of Environmental and Occupational Medicine at Aberdeen University and Senior Consultant to the Edinburgh Institute of Occupational Medicine. The views expressed are his own


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Home News EU calls for resumption of parliamentary activity in Tunisia
EU calls for resumption of parliamentary activity in Tunisia
The European Union on Tuesday called for the restoration of democratic institutions, including parliamentary activity and the respect of human rights in Tunisia.
Tunisian President Kais Saied on July 25 ousted the government of Prime Minister Hichem Mechichi, froze parliament and assumed the executive authority.
EU foreign policy chief Josep Borrell issued a statement on behalf of the bloc, asserting that the EU is closely monitoring recent developments in Tunisia.
Borrell stressed the importance of "respecting the democratic roots of the country, respect for the rule of law, the Constitution, and the legislative framework," and "listening to the will and aspirations of the Tunisian people."
"We, therefore, call for the restoration of institutional stability as soon as possible, and in particular for the resumption of parliamentary activity, the respect for fundamental rights and the abstention from all forms of violence," he said. "It is a priority to preserve the country's democracy and stability."
Political parties in Tunisia have accused the president of staging a coup, but Saied said he acted in accordance with the Constitution. Many countries, including Turkey, have expressed concern and condemned the move.
Dismissed PM Hichem Mechichi has said he would hand his powers to whoever is appointed by the president. In a statement, he said he will not play an obstructive role in complicating the situation in Tunisia.
Tunisia is seen as the only country that succeeded in carrying out a democratic transition following the popular Arab Spring uprisings. But it failed in achieving economic and political stability, and the recent spike in coronavirus cases fueled further public frustration.
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Incumbent Larry Haskell wins third term as Spokane County prosecutor
Nov. 8, 2022 Updated Tue., Nov. 8, 2022 at 11:14 p.m.
Deb Conklin, a nonpartisan candidate, lost her bid to defeat incumbent Republican Spokane County Prosecutor Larry Haskell in Tuesday's election.
By Emma Epperly emmae@spokesman.com(509) 459-5122
Incumbent Spokane County Prosecutor Larry Haskell won a third term in Tuesday's election.
Haskell led with 55.7% of the vote, with nonpartisan candidate Deb Conklin garnering 43.9%.
"I'm very pleased by it. Thank you to everyone who voted, especially those that voted for me," Haskell said following the results. "I do believe I'm the right person to be in the office."
While disappointed, Conklin said she was glad her candidacy forced discussion on myriad issues.
"We fought a good fight," Conklin said. "We raised the issues. We got the conversation going."
Haskell, 68, an Air Force veteran who was first elected prosecutor in 2014, drew no challengers when he was re-elected in 2018. But several scandals involving racist social media posts by his wife, Lesley Haskell, encouraged three opponents to jump into the race for the 2022 primary.
Conklin, 69, a longtime United Methodist pastor, decided to run as a nonpartisan candidate but touts largely progressive views, including advocation for a variety of criminal justice reforms and using the prosecutor's office as a tool for police accountability. Conklin was a deputy prosecuting attorney in Clallam County for four years in the late 1980s and has not practiced law since, but renewed her bar license to run against Haskell.
She beat out two Republican challengers in the primary to face Haskell in the general election.
"I had hoped that Spokane County was really ready to address the cultural bias that we all are a part of and that is creating disparities in how we're treating people of color," Conklin said after conceding the race Tuesday. "Clearly, we have a lot more work to do. The fight will go on."
In debates, Haskell argued he is far more qualified for the job, with decades of prosecuting experience and years managing the office.
"The question for the voters is, does four years of experience as a deputy prosecutor when Ronald Reagan was the president the answer to the county?" Haskell said at a Spokesman-Review debate last month.
Conklin argued that Haskell's tough-on-crime approach hasn't been working, and that the community is ready for a more holistic approach to justice that allows people to be rehabilitated.
Haskell raised more than $50,000 in the race with endorsements from both the Spokane police and Spokane County Sheriff's Deputies unions, Spokane County Sheriff Ozzie Knezovich, and donations from a slew of deputy prosecuting attorneys and other local attorneys.
Conklin raised more than $34,000, with endorsements from Spokane City Council President Breean Beggs, City Council member Betsy Wilkerson, the Spokane Firefighters Union and the Alliance for Gun Responsibility.
Spokesman Review reporter James Hanlon contributed to this story.
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Q: How do I implement HOVER effect in mobile This is the page http://www.arctic15.com/speakers/
When you hover on a speaker photo, it reveals his/her information. But how do I implement this in mobile?
I want when a speaker comes in focus on mobile screen it should automatically reveals info.

A:     <body ontouchstart="">
       ...
    </body>

Applied just once, as opposed to every button element seemed to fix all buttons on the page. Alternatively you could use this small JS library called 'Fastclick'. It speed up click events on touch devices and takes care of this issue too.
:active pseudo-class doesn't work in mobile safari

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It is from the region's capital, a city that combines urban charm with a rural atmosphere and the sublime natural scenery of the Ria Formosa, that you set off on this route along the legendary roads of the Algarve uplands. As you would expect of a route through the uplands, there are plenty of uphill and downhill sections. Surrounded by the magnificent scenery of the inland Algarve, the ride includes various paved stretches along roads such as the historic EN 2, one of the oldest in Portugal. Crossing the Serra do Caldeirão, you will be able to test your strength and stamina on the hilly sections up to Bordeira, Cruz da Assumada, Barranco do Velho and Feiteira. And you can take the opportunity to (re)discover curious traditions in the hamlets of Ameixial, Cortelha, Cachopo and Martim Longo.
what do you think of Route 39 – Sports Training Routes?


Kyna Herzinger is a special collections and manuscripts librarian for the North Carolina Department of Cultural Resources. As a Yonsei, raised in the Pacific Northwest, Kyna took her interest in Japanese-American history to the South where she received her M.L.I.S. and M.A. in Public History from the University of South Carolina in 2010. Her Master's thesis, "'Life, Liberty, and the Pursuit of Japs'," explores Nikkei identities at Minidoka.


Movement 1 - ... and dakrness was upon the face of the deep. And the Spirit of God moved upon the face of the waters.
Movement 2 - And God said, Let there be light.
Percussion Concerto No.3 'Genesis' was commissioned by the Municipality of the City of Varna, Bulgaria, in 2011, for the prominent Amsterdam-based virtuoso Tatiana Koleva, winner of the Gaudeamus Interpreters Prize and Darmstadt Kranichsteiner Musikpreis and professor in Marimba/Percussion at the Rotterdam and Groningen Conservatoires. Koleva and Georgiev are both Varna-born and graduates of the National High School of Arts 'Dobri Christov' in their native city (on the Bulgarian Black Sea coast), and they both share particular relationship with the Marimba, which was also the main instrument of the composer/conductor, who is a recipient of numerous awards as a percussionist in the past. The world premiere of the concerto was given by Tatiana Koleva and the Varna State Opera Symphony Orchestra, conducted by the composer, alongside works by Mozart and Tchaikovsky, at the Varna State Opera House on 26 October 2011, which accidentally coincided with the 55th birthday of composers' father, to whom the concerto is dedicated. The first recording was produced by the Bulgarian National Radio with Tatiana Koleva and the Bulgarian National Radio Symphony Orchestra conducted by the composer in 2014.
The concerto is composed with Georgiev's signature technique for composition, Morphing Modality, which he developed within his PhD research in Composition at the Royal Academy of Music, University of London (2012). The technique is informed by the image morphing technique from the visual arts, taking into account particular aspects of music psychology, perception and cognition, and involves a particular approach to 'modality' where the monophonic horizontal harmony and modulation from the theory and practice of Bulgarian-Orthodox and Byzantine Chant interacts with particular kinds of morphing texture, inspired by micropolyphony, heterophony, linear polyphony and aleatorics, creating fluid morphing modal harmony. As a whole, the research reflects his quest for a holistic and integral, yet very flexible systematic approach to pitch organization, to enable him to achieve the extreme contrasts in harmony required by his aesthetics generally. In the research the concepts of 'mode' and 'modality' were broadened and refined practically and theoretically, resulting in a technique where semitonal and microtonal; modal, atonal and quasi-tonal aspects are integrated within a single working method with its system of grounding principles, providing particular opportunities for liberation of all elements of texture from vertical, intervallic, chordal and contrapuntal considerations, while keeping a precise and detailed control over the sense and colour of harmony. The concept of morphing is applied also to rhythm and musical form and employed as a general tool for creating musical processes and creating connections between initially disconnected elements in many aspects of the compositional process. The 3rd Percussion Concerto Genesis was one of the latest works created and included in the doctoral research.
The Concerto is contemplation on 3 biblical verses in their complex polysemantic, multidimensional plethora of notions, ideas, atmospheres and memories. Each of the 3 interconnected movements is titled after a biblical verse, the first two from Genesis and the last from the Gospel of St John, as follows: 1. ...and darkness was upon the face of the deep. And the Spirit of God moved upon the face of the waters 2. And God said, Let there be light 3. And the light shineth in darkness; and the darkness comprehended it not. The musical lexis in its complexity of opposing historical and geographical references, integrates intonations from Bulgarian and Byzantine Orthodox Chant holistically throughout the work, and in the second movement a subtle reference to the medieval Bulgarian Chant Blagoobrazny Yosif as preserved in the Russian sources of Bolgarsky Rospev (Bulgarian Chant) (traced back to its Bulgarian roots by contemporary researchers) is featured in a central cadenza-like passage for the solo Marimba, where the singing quality of the right hand roll and its polyphonic interaction with the left hand, spotlight the unusual combination of features that the Marimba offers as an instrument - the refined singing lines, typical of strings, winds and voices on one hand, and the polyphonic capabilities of keyboards on the other. Other central features in the Marimba part are the use of string bows, the 6 mallet sections and a significant variety of mallet types and their nuances.


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Stephanie Adrian
Scribe, Singer & Scholar
Review from the December 2020 Issue of Opera News Online: Pagliacci & Der Kaiser von Atlantis
December 14, 2020 by stephanieadrian1 Comment on Review from the December 2020 Issue of Opera News Online: Pagliacci & Der Kaiser von Atlantis
MOST THEATERS IN ATLANTA remain dark due to the coronavirus pandemic, but the Atlanta Opera has reimagined its 2020-21 season as an outdoor event presented underneath a gigantic circus tent. Executive and artistic director Tomer Zvulun pivoted toward small-scale operas and concerts, short in duration and well-suited to the circus-style venue. On October 22, AO opened [...]
Review: Violinist Blake Pouliot wows audience with ASO debut playing Sibelius
December 14, 2020 by stephanieadrianLeave a Comment on Review: Violinist Blake Pouliot wows audience with ASO debut playing Sibelius
Guest violinist Blake Pouliot and guest conductor Thomas Søndergård inspired the Thursday night audience at Symphony Hall to applaud between movements. (Photo by Jeff Roffman) Review: Violinist Blake Pouliot wows audience with ASO debut playing Sibelius STEPHANIE ADRIANFEBRUARY 21, 2020 If Finnish composer Jean Sibelius were alive today you might find him perusing the self-help [...]
In the July Issue of Opera News Online: Review of Atlanta Opera's Porgy and Bess
June 25, 2020 by stephanieadrianLeave a Comment on In the July Issue of Opera News Online: Review of Atlanta Opera's Porgy and Bess
ON MARCH 7, Atlanta Opera offered the local premiere of Francesca Zambello's staging of the Gershwins' Porgy and Bess, first seen at The Glimmerglass Festival in 2017. The set, a corroded, two-tiered tenement house on Catfish Row was a stark contrast to the most recent Atlanta production, staged by Larry Marshall in 2011, which utilized a multitude [...]
In the April Issue of Opera News: Review of Salome
May 21, 2020 by stephanieadrianLeave a Comment on In the April Issue of Opera News: Review of Salome
TOMER ZVULUN'S NEW ATLANTA OPERA production of Salome, which opened at the Cobb Energy Performing Arts Centre on January 25, was a gamble for the company to be sure—it represented a sizable financial investment in the creative powers of scenic designer Erhard Rom, costume designer Mattie Ulrich, and choreographer Amir Levy. Based on the opening night performance [...]
Review: Yoel Levi makes exhilarating return to the Atlanta Symphony Orchestra
March 16, 2020 by stephanieadrianLeave a Comment on Review: Yoel Levi makes exhilarating return to the Atlanta Symphony Orchestra
Yoel Levi returned to Atlanta Wednesday night to guest conduct the orchestra he once led. (Photos by Jeff Roffman) MARCH 13, 2020 Concert seasons are planned far in advance and when the Atlanta Symphony Orchestra announced that violin virtuoso Itzhak Perlman would be playing Max Bruch's most famous violin concerto at Symphony Hall on March 11, 2020, [...]
ArtsATL Review: The Atlanta Opera hits the right notes with charming "Porgy and Bess"
March 10, 2020 by stephanieadrianLeave a Comment on ArtsATL Review: The Atlanta Opera hits the right notes with charming "Porgy and Bess"
Jermaine Smith as Sportin' Life and Talise Trevigne as Bess are part of a standout cast in The Atlanta Opera's "Porgy and Bess." (Photos by Rafterman Photography) MARCH 10, 2020 Travel on SC Highway 171 south from Charleston for about eight miles and you'll arrive at Folly Beach, a simple seaside town with a lighthouse [...]
ArtsATL Review: Under the baton of Søndergård, ASO charts new and provocative waters
March 9, 2020 by stephanieadrianLeave a Comment on ArtsATL Review: Under the baton of Søndergård, ASO charts new and provocative waters
Guest conductor Thomas Søndergård returned for the second straight week to lead the Atlanta Symphony Orchestra. (Photos by Jeff Roffman) FEBRUARY 28, 2020 When solar winds convey charged particles from the sun, they collide with gasses in the Earth's atmosphere and create a natural wonder, the Aurora Borealis. These dancing lights in the sky, milky-white [...]
Review: ASO guest conductor Karina Canellakis delivers delicious surprise twist
January 31, 2020 February 3, 2020 by stephanieadrianLeave a Comment on Review: ASO guest conductor Karina Canellakis delivers delicious surprise twist
Guest conductor Karina Canellakis led the Atlanta Symphony Orchestra with grace and skill Thursday night, receiving at least three curtain calls. (Photos by Jeff Roffman) JANUARY 31, 2020 Robert Spano announced exactly two years ago that he'll soon step down as the Atlanta Symphony Orchestra's music director.The New York Times calls him the man who made the ASO "a force [...]
Review: The Atlanta Opera's "Salome" haunts with its grotesque beauty
January 28, 2020 by stephanieadrianLeave a Comment on Review: The Atlanta Opera's "Salome" haunts with its grotesque beauty
Snellville native Jennifer Holloway (right) brings dimension to the controversial character of Salome. (Photos by Rafterman Photography) JANUARY 28, 2020 "Two souls with but one nasty thought; two pens that drool as one" wrote New York critic W.J. Henderson in 1907, finding Oscar Wilde and Richard Strauss well matched when it came to the play [...]
In the January 2020 Issue of Opera News Online: Review of Frida
January 20, 2020 by stephanieadrianLeave a Comment on In the January 2020 Issue of Opera News Online: Review of Frida
IN CELEBRATION OF ITS FORTIETH anniversary season, Atlanta Opera kicked off its Discoveries series with Robert Xavier Rodriguez's Frida at the newly-minted Sandy Springs Performing Arts Center (seen Oct. 5). Frida had its premiere at Philadelphia's Atlanta Music Festival in 1991 and was named by TheNew York Times as "Best Opera/Musical of 1991," but subsequent performances in the U.S. were few and [...]


Basketball is hardly the only attraction at an NBA game—though frankly, it remains the most entertaining option. Gotta Dance tracks the first senior citizens hip-hop dance team of the New Jersey Nets, from an open audition to rehearsals, dinners, shopping, television appearances and halftime performances. (Consider yourself warned: It gets shrill.) The 12 members of the NETSational Seniors—all women but one and all over 60—aren't boring, yet this dull, repetitive documentary is content to recycle clichés about aging and dancing in lieu of saying anything specific. What's worse than seeing geriatrics perform lame hip-hop routines? Watching younger Nets dancers boss them around.


Junior: AMCC All-Conference Second Team...AMCC Player of the Week...Ranked 2nd in the AMCC with 125 FT…Ranked 3rd in the AMCC with 52 blocks…Ranked 5th in the AMCC with 15.9 ppg…Ranked 5th in the AMCC with 150 FG…Ranked 6th in the AMCC with a 50 FG%...Ranked 7th in the AMCC with 208 rebounds…Scored her 1000th career point in a 71-63 victory over Penn State Behrend on January 23, 2016.
Sophomore: AMCC All-Conference Third Team…Ranked 3rd in the AMCC with 51 blocks…Ranked 4th in the AMCC with a 47.5 FG%...Ranked 7th in the AMCC with 144 FG…Ranked 7th in the AMCC with 71 offensive rebounds…Ranked 7th in the AMCC with 102 FT…Ranked 10th in the AMCC with 13.9 ppg…Ranked 10th in the AMCC with 190 rebounds.
Freshmen: AMCC All-Conference Third Team…Ranked 2nd in the AMCC with a 51.4 FG%...Ranked 6th in the AMCC with 88 FT…Ranked 6th in the AMCC with 75 offensive rebounds…Ranked 7th in the AMCC with 23 blocks…Ranked 8th in the AMCC with 126 FG…Ranked 10th in the AMCC with 12.1 ppg.


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<title>Using a Variable, Part II</title>
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JavaScript & jQuery

Using a Variable, Part II

JavaScript & jQuery

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Last time, I cautioned you against clicking the "Delete" button. Well, some things are just too important to delete—like users. That's why the option to delete users in SCORM Cloud is not available. It just can't be done.
If I can't delete them, what can I do?
You do have the option to archive users. When users are archived, they no longer show up in your "People" tab.
But archived users still show up in my general reports!
Not to worry, we have a nifty feature in SCORM Cloud called tagging. If you tag your users, say something like "active" and "inactive", you can include or exclude specific tags when pulling reports. If you'd like to exclude users from a report, simply change their tag from "active" to "inactive." When you filter to the "active" criteria when pulling a report, only the filtered users will be represented on that report.
So in summary: You can't delete users, but you can exclude them via archiving and tagging.
Next time we will share a tagging "how-to." We'll walk through tagging and filtering users to pull customized report. Stay tuned!