CLARK PLLC v. Jones Gledhill Fuhrman Gourley, P.A., an Idaho Professional Association; William Fuhrman, individually, and as an agent of Jones Gledhill Fuhrman Gourley, P.A.; and Christopher Graham, individually, and as an agent of Jones Gledhill Fuhrman Gourley, P.A., Defendants-Respondents. (2018)

ARGUMENT

As always it is an honor and a privilege to appear before the Idaho Supreme Court. Respectfully, however, occasionally the Court errs. Frazee is simply bad law and the error is glaringly evident and brought into the cold light of day by the Court's “precedent and cogently catalogued [ ] affirmative steps.” The reality, if a lien must be reduced to judgment, which the Court requires to “foreclose” an attorney lien; there is no need for additional litigation to “enforce” the lien because it is the judgment, not the lien that is enforced. Armed with a judgment, the attorney may simply proceed with statutory post-judgment authority to collect his judgment by execution and attachment of real or personal property, including settlement funds. If the lien does not attach automatically by statute and apply to protect the res pending adjudication, then the lien is meaningless and provides no protection whatsoever, because the lien ceases to have any legal effect upon entry of judgment. In Frazee, the attorney was not taking “affirmative steps to adjudicate” a lien, because no statutory lien arose or existed under the circumstances. Effectively, Frazee was a breach of contract and collection case, convoluted by an attorney's attempt to enforce a claim under the guise of an attorney lien, when no lien existed and before the claim, not the lien that ironically did not exist, was reduced to judgment. Now, the “concrete foreclosure guidance” does not provide a procedure for a lien to attach prior to judgment; but is simply a procedure to pursue entry of a judgment, which if an attorney has a valid claim for fees would be required regardless of any lien.

Moreover, the “concrete foreclosure guidance” raises a right to jury trial concerns, as effectively, the result is not a lien but a judgment. Has the Court ruled that in every case where an attorney pursues a claim against a client for attorney fees, the client is denied a right to a jury trial? It may be an equitable question as to whether an attorney lien attaches pre-judgment, but a litigant would certainly have a right to a jury trial when litigating the validity of the attorney's claim for fees before the claim is reduced to judgment. Resultantly, the Court's “precedent and cogently catalogued [ ] affirmative steps” that require the adjudication of whether the lien exists along with adjudication of the claim for attorney fees in one action before a Judge, not a jury, violates a litigant's right to a jury trial.

Appellants respectfully request rehearing for the following reasons:

1. A lien that only arises upon entry of judgment is no lien, it is a judgment. A ruling that in a res situation an attorney must sue first and obtain a judgment before the lien attaches ignores the language of the statute; the general purpose of a lien in the first place, and finally, it ignores the legal effect of the judgment itself. Once judgment is entered an attorney can immediately obtain a writ of execution and levy and attach any real or personal property including settlement funds, whether in the client's hands or in any other person's possession. In other words, upon entry of judgment, which the Court requires to “foreclose” the lien, the lien no longer has any legal effect or necessity. A party who obtains a judgment then executes and attaches property pursuant to the judgment, not the lien. To establish “concrete foreclosure guidance” procedures to “perfect” a lien, that require entry of judgment for the lien to “attach” or “perfect,” render the lien meaningless. If the lien is to provide any protection it must attach prior to adjudication to protect the res up to and until the judgment can be entered. That is the only reasonable interpretation of the attorney lien statue. If the lien statute is interpreted to offer no protection until judgment is entered, then the attorney lien statute is pointless. That has been Clark's very reasoned argument all along. Respectfully, the Court has erred by continuing to cram the square peg Frazee decision into the round hole attorney lien statute.

2. Frazee is not “well established law.” As the law was admittedly confusing and unsettled, Clark's arguments were not frivolous or without foundation. Clark contended as Judge Myers observed in In re Goldberg, 235 B.R. 476, (1999), the confusion exists because Frazee is inconsistent with Idaho Code § 3-205. “Frankly, Frazee appears to this Court to be inconsistent with Skelton and with the history, nature and function of attorneys' charging liens as there described. Frazee certainly appears inconsistent with the plain language of the statute.” In re Goldberg, 235 B.R. 476, 484 (1999). (Emphasis Added.) Respectfully, if a distinguished Federal Bankruptcy Judge found Frazee was inconsistent with the plain language of the attorney lien statute; how is the same argument Clark presented to Judge Hoagland below or on appeal to this Court frivolous or without foundation? Accordingly, it was unjust to award attorney fees against Clark under the circumstances either below or on appeal.

3. A claim for breach of contract and damages in not equitable in nature. While the right to a charging lien may be equitable in nature, the entitlement to judgment on a claim of attorney fees arising from a breach of contract to pay those fees is not. By attempting to combine adjudication of the right to a lien with an adjudication on the actual claim for attorney fees, the Court is violating a litigant's constitutional right to a jury trial. The decision as published therefore must be withdrawn and this issue considered further.

4. The reasonable interpretation of the lien statute, including all wording, provides for third-party liability for disregarding the lien. Clark did cite to authority and presented good faith argument that liability attached to third parties for violating or disregarding the lien statute when the res was created, and therefore his arguments were not frivolous or without foundation. Clark cited to the purpose and intent of the lien statute and to the specific language; “[the lien]... attaches to a verdict, report, decision or judgment in his client's favor and the proceeds thereof in whosoever hands they may come;․” to support his argument that liability must attach and apply to third parties or the statute is meaningless. “It is well established that we [The Justices of the Idaho Supreme Court] are required to give effect to every word, clause and sentence of a statute, University of Utah Hosp. & Medical Center v. Bethke, 101 Idaho 245, 611 P.2d 1030 (1980), and the construction of a statute should be adopted which does not deprive provisions of the statute of their meaning. Belt v. Belt 106 Idaho 426, 679 P.2d 1144 (Ct.App.1984).” George W. Watkins Family v. Messenger, 118 Idaho 537, 540, 797 P.2d 1385, 1388 (1990) (Emphasis added). In its opinion, however, the Court ignores the “in whosoever hands they may come” language of the statute entirely. If the legislature did not intend the lien, once attached, to impose liability for those with knowledge of the lien and who failed to protect the lienholder's claim, then the wording after “thereof” is superfluous and pointless. Moreover, whether Idaho Code § 3-205 creates third-party tort liability has never been addressed or decided in Idaho. As an issue of first impression, the Court should not have awarded attorney fees against Clark on appeal or affirmed the award below.

5. The Court's “in rem” vs. “in personam” discussion is not absolute. At least one lien statute, which ironically addresses compensation for professional services just like the attorney lien statute, provides for an action against the person. (See I.C. § 45-704)

6. Clark did address Judge Hoagland's denial of Clark's Motion to Amend in Clark's opening brief and therefor satisfied the ruling in Rowley v. Fuhrman, 133 Idaho 105, 108, 982 P.2d 940, 943 (1999). It was error to refuse to consider this issue on appeal.

Clark will file a memorandum in support of this Petition within 14 days.

Clark respectfully requests the Court revisit its opinion and reverse both the award of attorney fees below and the award of attorney fees on appeal as neither this case nor this appeal was brought or pursued frivolously and without foundation. The Court's decision also renders the attorney lien statute effectively meaningless, contrary to the Court's duty when construing the meaning and legal effect of statutes. Rehearing is therefore necessary and appropriate under the circumstances.

RESPECTFULLY SUBMITTED this 16th day of January, 2018.

CLARK & ASSOCIATES, ATTORNEYS

Eric R. Clark, For the Appellants

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 16th day of January 2018, I served the foregoing Motion on Respondents' counsel identified below via facsimile or e-mail transmission.

Steven B. Andersen

Amanda K. Brailsford

ANDERSEN SCHWARTZMAN

WOODARD BRAILSFORD, PLLC

101 South Capitol Boulevard, Suite 1600

Boise, ID 83702

Eric R. Clark