David B. Trujillo v. Deborah K. Burksfield

                                                                            FILED
                                                                          MAY 23, 2023
                                                                 In the Office of the Clerk of Court
                                                                WA State Court of Appeals Division III




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

DAVID B. TRUJILLO, a married                  )
person doing business as The Law              )         No. 38813-1-III
Offices of David B. Trujillo, a sole          )
proprietorship,                               )
                                              )
                     Respondent,              )
                                              )         UNPUBLISHED OPINION
       v.                                     )
                                              )
DEBORAH K. BURKSFIELD, also                   )
known as Deborah K. Boots,                    )
                                              )
                     Appellant.               )

       FEARING, C.J. — Deborah Burksfield appeals from a summary judgment ruling

and a trial ruling that awarded attorney David Trujillo fees charged for services

performed in an underlying lawsuit. We affirm the superior court rulings.

                                          FACTS

       We encounter difficulty recounting the facts underlying the dispute between client

Deborah Burksfield and attorney David Trujillo. When delineating facts in her brief,

Burksfield references trial exhibits, but no trial testimony. She declined to order a
No. 38813-1-III,
Trujillo v. Burksfield


transcript of the trial testimony. Also, although she sent her affidavit opposing David

Trujillo’s summary judgment motion to this court, she does not outline in her brief those

facts to which she averred in her countering affidavit.

       On April 18, 2014, Deborah Burksfield entered into a written fee agreement with

attorney David Trujillo. The agreement listed, as the client, “Deborah Burksfield

personally and as derivative claimant for LSL Properties, LLC.” Clerk’s Papers (CP) at

7. Under the agreement, client Burksfield and LSL Properties agreed to pay $250 per

hour for Trujillo’s legal services. The agreement provided for interest at eighteen percent

per annum to accrue on outstanding balances. The agreement provided that, in the event

of a collection action, Trujillo would be entitled to recover “ALL REASONABLE

COLLECTION AND OR ATTORNEY FEES AND ANY AND ALL REASONABLE

EXPENSES AND COSTS.” CP at 7 (boldface omitted; capitalization in original).

       Pursuant to the fee contract, David Trujillo represented Deborah Burksfield in trial

proceedings and on appeal in Burksfield v. Sali, No. 33037-1-III, (Wash. Ct. App. July 7,

2016) (unpublished), http://www.courts.wa.gov/opinions/pdf/330371.unp.pdf. Trujillo

represented both Burksfield individually and as a derivative claimant of LSL Properties,

LLC against Burksfield’s brothers and corporate entities affiliated with the brothers.

Other counsel had initiated the lawsuit on behalf of Burksfield.

       Attorney David Trujillo secured a $535,674.62 judgment for Deborah Burksfield

and LSL Properties and a $129,945.00 award of attorney fees. The superior court granted




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one defending party $39,000 in costs because Burksfield advanced no evidence to

support a claim against that particular party.

                                       PROCEDURE

       This lawsuit on appeal began when attorney David Trujillo sued Deborah

Burksfield for payment of legal fees incurred in his representation of her in the

underlying litigation. He alleged that, as of August 1, 2019, Burksfield owed $67,758.05

and accrued interest.

       Deborah Burksfield asserted “affirmative defenses and counterclaims” in her

answer to David Trujillo’s complaint. Burksfield wrote:

              1. The damages sustained by [Trujillo], if any, were foreseeable and
       proximately caused or materially contributed to by [Trujillo]’s own actions
       or negligence, and by persons and/or entities over whom Burksfield had no
       control or majority right of control.
              ....
              4.1. Burksfield alleges “LSL” at all times relevant to derivative No.
       11-2-01268-2 case and subsequent Division III appeal No 33037-1 was the
       “client” “customer” and “job” evidenced in The Law Offices of David B.
       Trujillo’s own internal accounting records that Mr. Trujillo provided to
       Burksfield;
              4.2. Burksfield alleges at all times relevant to the RCW 21.20
       [Washington’s securities act] proceedings LSL was the only “person”
       represented and in equity the corporation LSL is obligated to pay all
       derivative case legal fees and interest, because any recovery including
       $535,674 jury award in the derivative action or appeal belonged to “LSL”
       not to Burksfield.
              4.3. Burksfield alleges Mr. Trujillo was fully aware of her financial
       insecurity and he knew she personally could never pay all of the Corporate
       client LSL’s expenses;
              4.4. Burksfield alleges Mr. Trujillo’s own actions or inaction; when
       Court approved opposing counsel’s proposed jury verdict form without a
       separate “damages” line for tort breach of fiduciary duty and subsequent
       proposed distribution ($460,497) to at fault parties without consideration of


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        the LLC agreement, among other legal professionals’ wrong doings;
        materially contributed to Plaintiff’s damages,
                4.5. Burksfield alleges Plaintiff as a legal professional,
        “independent” of any contract, has the public duty to prevent a crime and
        fraud from occurring;
                4.6. Burksfield alleges during derivative case proceedings and
        appeal, Mr. Trujillo was privy to clear cogent and convincing relevant fact
        evidence that opposing counsel had been and were making false or
        misleading statements to public servants;
                4.7. Burksfield alleges Mr. Trujillo was privy to and knew relevant
        fact admissible business documents existed that evidenced the false or
        misleading statements made by opposing counsel, but Plaintiff chose not to
        present evidence of any other legal professionals’ wrong doing; allegedly
        one example is opposing counsel’s misleading statements made in
        obtaining the $39,000 frivolous sanction that was offset and deducted from
        Corporate client LSL’s awarded legal fees and costs;
                4.8. Burksfield alleges Plaintiff’s own acts or inaction contributed to
        the abuses of Washington law and foreseeable consequences of LSL’s
        failure to perform, which could have been reasonably mitigated had he
        complied with his “public duty.”

CP at 9, 12-13. In her answer and affirmative defenses, Burksfield did not contend that

the 18 percent interest imposed by David Trujillo’s fee agreement violated usury laws.

        David Trujillo brought a motion for summary judgment to dismiss Deborah

Burksfield’s affirmative defenses and counterclaims. The court granted the motion

because no admissible evidence supported the defenses and claims.

        Thereafter, David Trujillo’s collection action proceeded to a trial. CP 207.

Following trial, the superior court issued a written memorandum decision, which reads in

part:

                Plaintiff, David B. Trujillo, doing business as The Law Office of
        David B. Trujillo brings this action against Deborah K. Burksfield, also
        known as Deborah K. Boots, defendant, seeking payment of attorney fees
        billed to the defendant for services rendered between April 18, 2014, and
        July 18, 2016, together with interest at 18% on the unpaid balance.

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       Defendant . . . [alleges] she did not have a copy of the attorney fee
       contract…. She also asserted various affirmative defenses, including, but
       not limited to, Plaintiff’s damages were caused by others, the party
       contractually obligated to pay the fees was LSL Properties, LLC, the LLC
       was obligated in equity to pay the attorney fees, and Plaintiff’s failure to
       pursue false and misleading statements of opposing counsel contributed to
       the court’s imposition of sanctions and the failure to order payment of her
       attorney fees incurred prior to Mr. Trujillo’s involvement.
               The evidence establishes Defendant and LSL Properties, LLC sued a
       company owned by her brothers, Columbia Ready-Mix, Inc. for royalties
       owed under a gravel pit lease. She originally hired another law firm that
       filed the lawsuit on 4/12/2011. This law firm later withdrew on
       1/29/14.and filed an attorney lien for services rendered Ms. Burksfield.
       Plaintiff, David Trujillo appeared as counsel for Ms. Burksfield in April
       2014. The matter proceeded to trial in October 2014 and a jury returned
       judgment in favor of Ms. Burksfield and the LLC. The Honorable Judge
       Michael McCarthy awarded reasonable attorney fees to Plaintiffs for
       services rendered by Mr. Trujillo. The court rejected Ms. Burksfield’s
       request for reimbursement of attorney fees from her former attorney and
       awarded sanctions against Ms. Burksfield of $39,000.00 for discovery
       abuses involving a related company, Columbia Asphalt & Gravel. The
       defendants in this [underlying] action appealed the trial court’s award of
       attorney fees and costs to Ms. Burksfield for bringing the derivative action
       on behalf of LSL Properties, LLC. After consulting with Ms. Burksfield,
       Mr. Trujillo appealed the trial court’s denial of prejudgment interest on the
       jury award and the sanctions imposed in favor of Columbia Asphalt &
       Gravel. The appellate court affirmed all trial court rulings. Most of the
       attorney fees and costs sought by Mr. Trujillo relate to services provided to
       Ms. Burksfield after trial and on appeal.
               A copy of the attorney fee agreement signed by defendant, Ms.
       Burksfield, was admitted into evidence. The fee agreement is a binding
       contract obligating the defendant to pay the attorney fees billed by the
       Plaintiff at a rate of $250.00 per hour. It also provides for accrual of
       interest at 18% on any unpaid balance. The fee agreement was signed by
       the Plaintiff and Defendant on April 14, 2014.
               Plaintiff produced copies of monthly invoices from April 2014
       through August 2019. These invoices show the amounts billed, the services
       rendered, amounts credited for payments and the outstanding balance due
       for the month. Pursuant to the fee agreement, interest is applied if the
       invoice balance is not paid in full. These invoices reflect an outstanding
       balance of $ 67,758.05 on August 1, 2019. Plaintiff acknowledges a


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       payment of $100.00 on the account in May 2019 that was not credited.
       This reduces the amount sought in the complaint by $100.00 plus interest.
               At trial, the defendant testified that Plaintiff failed to seek payment
       of the attorney fees she paid for the attorney that represented her prior to
       Plaintiff. Plaintiff responded that he requested payment of these fees and
       they were denied by the trial judge. The file in that action reflects an
       attorney lien filed by her former attorney at the time of his withdrawal. The
       defendant offered no evidence verifying her assertion this issue was not
       presented to Judge McCarthy. She does not dispute Plaintiff’s testimony
       they discussed this issue when they decided to pursue an appeal. This issue
       was not appealed to the Court of Appeals. Instead, they agreed to appeal
       the issue of the sanctions imposed by Judge McCarthy for discovery abuses
       involving the prior attorney.
               The defendant complains Plaintiff did nothing to invalidate the
       leases signed by the LLC which she contends allowed her brothers to profit
       from their misdeeds. She asserts Plaintiff should have pursued a
       declaratory judgment voiding the leases in addition to the derivative action
       on behalf of the LLC. However, these claims relate to affirmative defenses
       raised by defendant that were stricken by Order of Summary Judgment
       entered on February 10, 2021.
               The defendant also complains Judge McCarthy’s imposition of
       sanctions was not properly argued by Plaintiff before Judge McCarthy or
       before the Court of Appeals. She believes it is not fair she should have to
       pay the outstanding balance owed Plaintiff. Unfortunately, Judge
       McCarthy ruled against her on the discovery abuses and imposed sanctions.
       The Court of Appeals agreed with Judge McCarthy. There is no evidence
       to show that Plaintiff failed to zealously defend her on this issue for actions
       of her former attorney.
               Defendant argues the fees should be paid by the LLC rather than her.
       The fee agreement clearly imposes the obligation of payment solely upon
       the defendant, Ms. Burksfield. In closing argument, the defendant
       referenced RPC 1.5 asking the court to determine the reasonableness of the
       fees charged. She offered no evidence the hourly rate was unreasonable in
       the community. She did not challenge the experience, reputation, and
       ability of Mr. Trujillo to properly represent her. She offered no testimony
       that the services provided by Mr. Trujillo fell below the standards of
       expertise. In fact, Mr. Trujillo took over representation of defendant and
       obtained a successful jury verdict in six months! The court finds Mr.
       Trujillo’s fees are reasonable under the standards of RPC 1.5.
               Lastly, defendant asserts Plaintiff failed to communicate with her or
       made false statements to her during his representation in violation of RPC
       7.1. This was raised in her closing argument. She offered no testimony to

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       support this argument. She did not offer any examples of false statements
       allegedly made by Plaintiff to her. The court will disregard arguments
       made by Defendant that are unsupported by the evidence.
              The court awards judgment in favor of Plaintiff in the sum of
       $63,939.091 less $100.00 paid by defendant, together with simple interest
       calculated at 18% per annum, calculated from May 3, 2019. Interest must
       be recalculated because the amount sought in the Complaint does not
       include the $100 payment and interest calculated through August would
       include interest on the $100.00 credit. Further, interest shall accrue on the
       judgment on the contracted rate of 18% per annum until paid in full.

CP at 208-10. Neither party sends to this court any findings of fact signed by the trial

court. We operate as if the memorandum decision incorporated the findings.

       The superior court awarded David Trujillo attorney fees and costs incurred in

prosecuting the suit to collect fees. The court awarded $63,839.09 owed for services

performed, $32,867.51 in prejudgment interest, $25,200.00 for attorney fees incurred in

this collection action, and $949.62 in costs, for a total sum of $122,856.22. CP 284. The

superior court signed a judgment for these amounts on March 11, 2022.

                                 LAW AND ANALYSIS

       On appeal, Deborah Burksfield seeks reversal of the summary judgment order and

the trial court rulings after trial. She argues that David Trujillo’s fee agreement was

unconscionable and that David Trujillo performed ineffectively. She contends that

Trujillo faced a conflict of interest in representing her and LSL Properties, charged

unreasonable attorney fees, and charged a usurious interest rate.

       In his responding appeal brief, David Trujillo forwards arguments not developed

or supported by citation to legal authority. Trujillo writes that Deborah Burksfield’s

notice of appeal failed to identify the March 11, 2022 judgment as the decision that she

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appeals. Trujillo also faults Deborah Burksfield for failing to transcribe a verbatim report

of proceedings of the one-day trial. Trujillo does not express what, if any, remedy he

seeks as a result of these purported defects. We decline to respond to these arguments

because we need not address contentions unsupported by argument or authority to

support them. Smith v. King, 106 Wn.2d 443, 451-52, 722 P.2d 796 (1986).

                                     Personal Liability

       Deborah Burksfield argues that only LSL Properties, LLC and not her personally

should be liable for David Trujillo’s fees. Nevertheless, Burksfield signed the contract

personally and as a derivative claimant of the limited liability company. Trujillo

represented Burksfield personally during the relevant proceedings. Because Burksfield

personally signed the contract, she incurred personal liability. She cites no law to the

contrary.

       Deborah Burksfield does not challenge the trial court’s finding that she signed the

fee agreement to be personally responsible. Findings of fact, to which the appellant

assigns no error, become verities on appeal. State v. Reese, 12 Wn. App. 407, 408, 529

P.2d 1119 (1974).

                                    Unconscionability

       Deborah Burksfield contends that David Trujillo took advantage of her because of

unequal bargaining power and that Trujillo knew she could not afford payment of any

fees such that the fee agreement was unconscionable. We reject this argument for at least

four reasons. First, Burksfield did not expressly raise the defense of unconscionability in


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her answer or affirmative defenses. Unconscionability is a defense to be raised by the

party asserting it. Burnett v. Pagliacci Pizza, Inc., 196 Wn.2d 38, 47, 470 P.3d 486

(2020).

       Second, the trial court entered no finding of fact that addresses any

unconscionability of the fee agreement. The lack of an essential finding is presumed

equivalent to a finding against the party with the burden of proof. In re Welfare of A.B.,

168 Wn.2d 908, 927, 232 P.3d 1104 (2010). We repeat that no party filed with this court

any findings of fact. Nevertheless, we may consider a memorandum decision as the

formal findings. CR 52(a)(4).

       Third, Deborah Burksfield failed to send to this court any trial transcript. Thus,

this court lacks any testimony supporting Burksfield’s assertion of unconscionability.

The party presenting an issue for review has the burden of providing an adequate record

to establish such error. RAP 9.2(b); State v. Sisouvanh, 175 Wn.2d 607, 619, 290 P.3d

942 (2012).

       Fourth, although asserting the defense of unconscionability, Burksfield fails to

analyze in her brief the law of unconscionability. An assignment of error unsupported by

argument or legal authorities is deemed waived. RAP 10.3(a)(4); Valley View Industrial

Park v. City of Redmond, 107 Wn.2d 621, 630, 733 P.2d 182 (1987), abrogated on other

grounds by Yim v. City of Seattle, 194 Wn.2d 682, 451 P.3d 694 (2019).




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                                     Conflict of Interest

       Deborah Burksfield hints, in her appellate brief, that David Trujillo suffered a

conflict of interest when representing both her and LSL Properties, LLC. We reject this

argument for several reasons. Although she cites to rules of professional conduct,

Burksfield provides no developed argument as to why Trujillo violated any rule. More

importantly, she does not identify where in the trial court record she forwarded this

argument before the superior court. Failure to raise an issue before the trial court

generally precludes a party from raising it on appeal. RAP 2.5; State v. Kalebaugh, 183

Wn.2d 578, 583, 355 P.3d 253 (2015). This court is not required to search the record to

locate the portions relevant to a litigant’s arguments. Cowiche Canyon Conservancy v.

Bosley, 118 Wn.2d 801, 819, 828 P.2d 549 (1992).

                                         Negligence

       Deborah Burksfield accuses David Trujillo of professional negligence. She

contends that Trujillo failed to appeal dismissal of her claim against her brothers and their

company for transferring assets, Trujillo failed to seek invalidation of leases, Trujillo

failed to bring a motion to vacate a summary judgment order dismissing her personal

claims against her brothers, Trujillo failed to submit relevant business documents during

the trial against her brothers, Trujillo misrepresented the lack of need to introduce

evidence about Columbia Asphalt & Gravel, Trujillo failed to follow Burksfield’s

instructions to introduce evidence, Trujillo failed to properly analyze documents, Trujillo

improperly deducted sanctions imposed against her from her judgment against her


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brothers, Trujillo forwarded flawed arguments and failed to properly respond to her

opponents’ flawed motions, Trujillo charged for work he did not perform, Trujillo

prepared a flawed judgment in her favor, Trujillo transferred some of his duties to

opposing counsel, Trujillo failed to include names on the jury verdict, and Trujillo failed

to obtain reimbursement for the incurred fees from LSL. Other arguments forwarded by

Burksfield are not understandable.

       We reject all of these factual contentions. Some conflict with the superior court’s

findings of fact, to which Deborah Burksfield failed to assign error. The superior court

dismissed some of the claims on summary judgment, and Burksfield fails to identify any

portion of her affidavit opposing the summary judgment motion where she provided

countering testimony. Burksfield also fails to supply this court the trial transcript that

includes testimony about these claims. Burksfield lists in seriatim format her claims of

professional negligence without developing any argument in support of the contentions.

                                     Unreasonable Fees

       Deborah Burksfield argues that the attorney fees under the contract were

unreasonable under RPC 1.5(a). Nevertheless, Burksfield fails to articulate which of the

RPC 1.5(a) factors would justify a decrease in David Trujillo’s fees. Notably, Trujillo

prevailed on major issues in the underlying litigation and on appeal when representing

Burksfield. RPC 1.5(a)(4).




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       Deborah Burksfield also fails to assign error to the trial court’s finding that

Trujillo’s fees were reasonable. Findings of fact, to which the appellant assigns no error,

become verities on appeal. State v. Reese, 12 Wn. App. 407, 408 (1974).

                                              Usury

       Deborah Burksfield’s appellate brief focuses on a claim of usury. She never

advanced the theory before the trial court.

       We refuse to review the usury argument. RAP 2.5(a) allows the appellate court to

deny review of any claim of error not raised in the trial court. RAP 2.5(a) affords a trial

court an opportunity to rule correctly on a matter before it can be presented on appeal.

State v. Strine, 176 Wn.2d 742, 749, 293 P.3d 1177 (2013). The rule serves the goal of

judicial economy by enabling trial courts to correct mistakes and thereby obviate the

needless expense of appellate review and further trials, facilitates appellate review by

ensuring that a complete record of the issues will be available, and prevents adversarial

unfairness by ensuring that the prevailing party is not deprived of victory by claimed

errors that he had no opportunity to address. State v. Strine, 176 Wn.2d 742, 749-50

(2013); State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988).

                                      Fees on Appeal

       David Trujillo requests reasonable attorney fees incurred on this appeal pursuant

to the party’s contractual provision providing for attorney fees. When a contract provides

that attorney fees and costs shall be awarded to a prevailing party, the contract is




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enforceable under RCW 4.84.330. Therefore, we award Trujillo attorney fees and costs

incurred on this appeal.

                                     CONCLUSION

       We affirm the judgment in favor of David Trujillo. We grant him an award of

reasonable attorney fees and costs incurred on appeal.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.



                                          _________________________________
                                          Fearing, C.J.

WE CONCUR:



______________________________
Siddoway, J.


______________________________
Pennell, J.




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