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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Zamarello v. Reges (3/28/2014) sp-6884

Zamarello v. Reges (3/28/2014) sp-6884

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                     

         corrections@appellate.courts.state.ak.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



PETER ZAMARELLO,                                          )  

                                                          )    Supreme Court No. S-14724  

                           Appellant,                     )  

                                                          )    Superior Court No. 3AN-08-07950 CI  

         v.                                               )  

                                                          )    O P I N I O N  

ROBERT REGES; RUDDY, BRADLEY, )  

KOLKHORST & REGES, PC; REGES & )                               No. 6884 - March 28, 2014  

& BOONE, LLC, and THE REGES                               )  

LAW FIRM, LLC,                                            )  

                           Appellees.                     )  

                                                          )  



                  Appeal from the Superior Court of the State of Alaska, Third  

                              

                  Judicial District, Anchorage, Frank A. Pfiffner, Judge.  



                  Appearances: Richard W. Maki and David H. Shoup, Tindall  

                                                  

                  Bennett       &    Shoup,       P.C.,    Anchorage,         for    Appellant.  

                  Anthony M. Sholty and Lael A. Harrison, Faulkner Banfield,  

                  PC, Juneau, for Appellees.  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                       

                  Bolger, Justices.  



                  WINFREE, Justice.  



I.       INTRODUCTION  



                  A client sued his lawyer for breach of contract, breach of fiduciary duty,  

                                      



misrepresentation, and professional negligence in a fee agreement dispute.  After a jury  

                                                                                           



found in favor of the lawyer and judgment was entered the client appealed, arguing that  

                                                                                                      



the  superior  court  erred  by  issuing  certain  jury   instructions  regarding  contract  

                                                                         


----------------------- Page 2-----------------------

interpretation  and  by  denying  the  client's  motion  for  a  new  trial  or  judgment  



notwithstanding the verdict.  We conclude that any error in the superior court's jury  



                                                                                                  

instructions was not prejudicial, and we affirm the superior court's decision to deny the  



                                                                   

client's post-trial motions because there was sufficient evidence for the jury to find for  



the lawyer on each of the claims.  



II.       FACTS AND PROCEEDINGS  



          A.       Facts  



                    1.       Initial contingency fee agreement  



                   Peter  Zamarello  owned  a  mobile  home  park  in  Anchorage  through  a  



                                                                                      

company called Alaskan Village, Inc.  In December 1999 real estate developer Gerald  



                                                                                            

Neeser obtained an option to purchase a portion of the mobile home park.  The Alaska  



                                                                               

Department of Environmental Conservation (ADEC) subsequently required Zamarello  

to address contamination on the property.  Zamarello met with attorney Robert Reges,1  



who recommended litigation against Zamarello's insurers to obtain remediation funds.  



Reges  prepared  a  two-page  fee  agreement  dated  July  11,  2000.    This  proposed  fee  



agreement described a contingent hourly fee arrangement, and noted that an adverse  



                                                                                                          

party could receive awards of costs and attorney's fees in the event that Zamarello lost  



                                                                                                        

a lawsuit.  The litigation plan was dropped in favor of a remediation agreement with  



ADEC, and Zamarello never signed Reges's proposed fee agreement.  



                                                                        

                    In  September  2000  a  system  of  underground  pipes  and  tanks  was  



                                                                                                                      

discovered on the property.  With potential remediation costs raised significantly by this  



                                                                               

discovery, Zamarello reverted to a litigation strategy. Reges again presented the July 11  



       

fee agreement; Zamarello asked that it be reduced to a single page due to his limited  



          1  

                                                                                                   

                   During the course of his relationship with Zamarello, Reges changed law  

firms several times but kept Zamarello as a client.  We use "Reges" to conveniently  

denote Reges and his various law firms.  



                                                             -2-                                                          6884  


----------------------- Page 3-----------------------

ability   to   read   English.    The  parties   dispute  whether   Reges's   or  Zamarello's  staff  



redrafted the agreement, but Zamarello signed it on October 3, 2000.  The shortened  



                                                                             

agreement provided for a contingent hourly fee, but did not include language regarding  



the potential liability for opposing parties' costs and fees.  According to Reges, at an  



              

October 4 meeting with Zamarello's in-house attorney present, Reges and Zamarello  



                                                                                                    

discussed the July 11 agreement and the potential that Zamarello  would be liable to  



                                                     

opposing parties if he lost a lawsuit.  Reges claims the language in the July 11 agreement  



was "part of the deal."  



                                                                                

                    In February 2001 Zamarello and Neeser amended their option agreement.  



                                                                          

Zamarello reduced the purchase price in exchange for Neeser's agreement to pay for the  



environmental  remediation.    The  parties  agreed  to  jointly  pursue  claims  against  



potentially responsible parties, with Zamarello receiving the first $3 million recovered  



plus reimbursement of costs and attorney's fees expended to obtain the recovery.  In  



2002 Reges filed two lawsuits on Zamarello's behalf - one against Denali Fuel, the  



company that installed the underground pipes and tanks, and one against 11 insurers  



alleged to have provided insurance coverage for the environmental contamination.  



                   Although the fee agreement provided for Reges to deduct attorney's fees  



                                                                                           

and costs from recoveries, in practice Zamarello paid Reges's monthly invoices for fees  



and costs, and Zamarello received the full settlements.  



                    2.       Modification of the purchase option  



                                                                                                      

                    In July 2004 Denali Fuel settled with Zamarello for $1.5 million.  Because  



                                          

Neeser was a co-owner of the claims, Denali Fuel insisted that he be a party to the  



                                              

settlement.  On July 16 Reges, Zamarello, Zamarello's business manager Paul Gardner,  



Neeser, Neeser's attorney Donald McClintock, and representatives from Denali Fuel met  



                                                                    

to obtain Neeser's signature on the settlement. Neeser and Zamarello also discussed how  



                                                                                                     

to proceed against the insurers who had not yet settled.  Because  Zamarello was to  



                                                             -3-                                                       6884
  


----------------------- Page 4-----------------------

                                            

receive the first $3 million of recoveries under the option addendum, and because the  



total  recoveries  appeared  unlikely  to  exceed  that  amount,  the  parties  negotiated  an  



incentive for Neeser to continue with the litigation.  After negotiations primarily between  



                 

Zamarello and Neeser, McClintock wrote an agreement with Reges looking over his  



shoulder.    The  resulting  agreement  modified  the  February  2001  addendum  to  the  



purchase option so that future recoveries would be shared equally between Zamarello  



                                                                   

and Neeser's assignee, Muldoon Community Improvement, LLC.  The agreement also  



stated in part:  



                   Out-of-pocket expenses and court costs should be paid by  

                   Muldoon Community Improvement, LLC.  Attorney's fees  

                   shall be paid for on an hourly contingent fee basis with the  

                                                  

                   law firm of Reges & Boone, LLC who shall be entitled to be  

                   paid accrued fees on recoveries as they are received . . . .  

                   Prepaid       costs     will    be    paid     to    Muldoon         Community  

                   Improvement, LLC from any recovery.  (Emphasis added.)  



                                                            

                   The  parties  later  claimed  different  subjective  understandings  of  the  



                                                                                             

agreement.  Reges understood the modification to provide that from future recoveries  



Neeser first would be reimbursed for his prepaid costs, followed by payment of Reges's  



unpaid contingency fees, with the balance of the recoveries divided equally between  



                                                                                                     

Neeser and Zamarello.  This understanding was echoed by Neeser and McClintock.  On  



                                                                                         

the other hand, Zamarello understood the agreement to mean that Neeser would pay all  



                                                                         

costs and contingency fees out of his share of the recoveries, giving Zamarello half of  



all gross settlements.  Gardner echoed this understanding.  



                   3.        The final agreement  



                                                                                    

                   In August 2004 a dispute arose when Reges presented Zamarello with an  



                                                                                                           

environmental consulting company's $9,000 bill that Zamarello did not want to pay.  



                                                                                              

After some discussion, Zamarello agreed to pay the bill as well as a $150,000 bonus that  



     

he earlier had offered Reges for getting the Denali Fuel settlement above $1 million.  



                                                            -4-                                                      6884
  


----------------------- Page 5-----------------------

                                                                  

Reges arranged for two checks from Denali Fuel, one to Zamarello for $1.2 million and  



                                                        

one to Reges for $309,000 (including the $150,000 bonus and the consulting company's  



                                                                      

bill).  Reges then made a series of telephone calls to Gardner and McClintock about  



                                                2  

"shifting the billing" to Neeser.   On August 12 Reges drafted a "Final Agreement"  



                                                                                                             

which stated in part:  "After those payments . . . Zamarello . . . will owe nothing more  



to [Reges] or his law firms, past or present.  Any future work done on the insurance case  



will be charged to Jerry Neeser."  



                    Again, the parties later claimed to come away with different subjective  



understandings  of  this  agreement.    Zamarello  claimed  he  understood  the  Final  



                                                    

Agreement to mean that, moving forward, he would receive half of any future gross  



                                                                                                   

recovery and Neeser would pay all costs and contingency fees for Neeser's half of any  



                          

gross recovery.  Zamarello claimed he understood his previous payments to Reges to be  



                                                                                        

in exchange for a "full release" from future costs and fees. Reges admitted the language  



                                                                                             

was poorly drafted, but claimed he understood the agreement to merely implement the  



                                              

July 16, 2004 purchase option modification by shifting the administration of fee and cost  



                                                                                           

payments to Neeser. Reges believed that costs and attorney's fees would still come from  



any gross recovery.   Reges contended that having future work "charged to" Neeser  



simply meant that bills would be sent to him.  



                    4.        The Kemper judgment  



                    Reges continued to prosecute claims against insurers.  In 2006 one of the  



defendants,  Kemper  Insurance,  obtained  summary  judgment  dismissing  the  claims  



          2         In  March  2005  Reges  and  Neeser  entered  into  a  fee  agreement  for  the  



remaining litigation, allowing contingency fees to be "deducted by the firm from the first  

                                                                                              

dollar of any recovery."  The agreement provided that "[t]he remainder of any recovery  

                                      

will be divided between . . . [Neeser] and . . . Zamarello as agreed in a separate document  

                                                                                     

dated July 16, 2004."  



                                                              -5-                                                        6884
  


----------------------- Page 6-----------------------

                                                                                   

against it.  The court awarded fees and costs to Kemper, resulting in a judgment against  



                                                                           

Zamarello that Reges negotiated down to $73,000. Zamarello urged Reges to ask Neeser  



                                                                                               

to pay half of the judgment.  Reges believed that position had no basis, but nevertheless  



sent Neeser a letter asking him to contribute to paying the judgment.  Neeser did not  



respond and neither Reges nor Zamarello pursued the matter further.  Reges made no  



deduction from his contingency fees to reflect the Kemper loss.  



                    5.       End of the insurance litigation  



                                                                                                     

                   Reges prosecuted and settled the remaining claims in the insurance lawsuit.  



      

As settlements came in, Reges repeatedly alerted Zamarello that the money was being  



                                                                       

used to pay Reges's attorney's fees and Neeser's prepaid costs.  Reges continued sending  



                                                                                       

Zamarello billing copies until Zamarello asked him to stop.  Zamarello did not raise any  



                                                                                

objection to this use of the settlement funds.  The final balance of the post-July 16, 2004  



                                        

settlements was $565,000; of that amount, Reges took about $495,000 in attorney's fees  



and costs and Zamarello and Neeser each received about $35,000.  



          B.       Proceedings  



                                                                                                       

                   In 2008 Zamarello filed suit against Reges for breach of contract, breach  



of fiduciary duty, misrepresentation, and professional negligence.  Zamarello sought  



recovery of:  (1) one-half share of the gross recoveries received after July 16, 2004;  



(2) the $150,000 bonus given in connection with the Final Agreement, which he claimed  



                                                                                                   

was breached; (3) the amount paid to satisfy the Kemper judgment; and (4) the payment  



of contingent hourly fees for litigating against Kemper.  



                                                     

                    The case was tried to a jury in superior court.  At the conclusion of Reges's  



                                                                       

defense, Zamarello moved for directed verdict.  Zamarello argued that the August 2004  



Final Agreement unambiguously provided he would owe nothing further and Reges  



breached  the  agreement  by  taking  fees  and  costs  and  a  bonus  to  which  he  was  not  



entitled.  The court denied the motion.  The jury found that Reges did not breach a  



                                                             -6-                                                       6884
  


----------------------- Page 7-----------------------

                                                                                                                    

contract, did not breach fiduciary duties, and did not make a misrepresentation.  The jury  



found that Reges was negligent, but that the negligence caused Zamarello no damage.  



                                                                     

                    Zamarello timely filed a motion for judgment notwithstanding the verdict  



(JNOV) or a new trial, reasserting the position raised in his motion for directed verdict.  



                                              

The superior court denied the motion without elaboration.  On February 13, 2012 the  



court  entered  final  judgment  in  Reges's  favor  and  awarded  fees  and  costs  totaling  



$ 107,004.26.  Zamarello appeals.  



III.      STANDARD OF REVIEW  



                    "In reviewing the superior court's rulings on jury instructions, we apply our  



                    

                                   

independent judgment to determine whether the challenged or refused instruction states  



                           3  

                                                                                   

the law correctly."   "Errors in jury instructions are not grounds for reversal unless the  



                                  4  

errors are prejudicial."   "We evaluate whether any error was prejudicial by putting  



                     

ourselves  in  the  position  of  the  jurors  and  determining  whether  the  error  probably  



                                    5                                                                                          6  

                                                                                      

affected their judgment."   "The appellant bears the burden of proving prejudicial error." 



                                                        

                    This court "will affirm a trial court's decision to deny a new trial if there  



is an evidentiary basis for the jury's decision," and will reverse only if "the evidence  



                                                                                       

supporting the verdict was so completely lacking or slight and unconvincing as to make  



          3         Henrichs  v.  Chugach  Alaska  Corp. ,  250  P.3d  531,   535  (Alaska  2011)  



(quoting City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska 2004)).  



          4         Id. (quoting State v. Carpenter, 171 P.3d 41, 54 (Alaska 2007)).  



          5         Id. (quoting  City of Kodiak, 83 P.3d at 1082) (internal quotation marks  



omitted).  



          6         Id. (quoting City of Kodiak, 83 P.3d at 1082).  



                                                              -7-                                                        6884
  


----------------------- Page 8-----------------------

                                                              7  

                                                                                                 

the verdict plainly unreasonable or unjust."                     "In reviewing orders granting and denying  



                                                                                                            

JNOV motions, we must 'determine whether the evidence, when viewed in the light most  



                                                                                                                   

favorable to the non-moving party, is such that reasonable persons could not differ in  



                                            8  

their judgment of the facts.' "   "To the extent that a ruling on a motion for [JNOV]  

involves questions of law, those questions will be reviewed de novo."9  



IV.	      DISCUSSION  



          A.	      Any Possible Error In The Superior Court's Jury Instructions Was  

                   Not Prejudicial.  



                   At  trial  Zamarello  proposed  instructing  the  jury  that  "[a]mbiguities  in  



attorney-client contracts are construed against the attorney and liberally in favor of the  

                                                                          



client."    The  trial  court  declined  to  give  this  instruction,  reasoning  that  ambiguities  



                                                 

should be construed against the attorney only when the attorney drafted the contract.  



                                   

Because it was unclear who had drafted the October 2000 contingency fee agreement,  



the court instead instructed the jury to interpret ambiguous contract terms "against the  



                                                                                                            

person who you find drafted the term or provision. . . .  If you find that neither party  



                                                                              

drafted the provision or you are unable to determine which party drafted the provision,  



                                                                                                   

then you should disregard this instruction."  Zamarello argues that this instruction was  



erroneous as a matter of law and the error was prejudicial.  



          7        Hogg v. Raven Contractors, Inc. , 134 P.3d 349, 352 (Alaska 2006) (quoting  



Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001); Grant v. Stoyer, 10 P.3d 594, 596  

                                                                                                                  

(Alaska 2000)).  



          8        Alaska Interstate Constr., LLC v. Pac. Diversified Invs., Inc. , 279 P.3d  



1156, 1162 (Alaska 2012) (quoting Richey v. Oen , 824 P.2d 1371, 1374 (Alaska 1992)).  



          9        Sisters of Providence in Wash. v. A.A. Pain Clinic, Inc., 81 P.3d 989, 999  



n.10 (Alaska 2003).  



                                                             -8-	                                                      6884
  


----------------------- Page 9-----------------------

                     We first note that ambiguous contracts are construed against a party only  



"in  the  absence  of  other  means  of  ascertaining  the  reasonable  expectations  of  the  



             10  

parties."        The failure to appropriately limit the challenged instruction in this manner  



actually  may  have  benefitted  Zamarello.    Given  this  and  the  evidence  at  trial,  we  



                                                                                                    

conclude that the failure to give Zamarello's proposed instruction, if error, was harmless.  



                                                              

                     Zamarello first argues that the failure to give his instruction influenced the  



jury's interpretation of whether the October 2000 contingency fee agreement allowed  



                                                                                                               

Reges to collect contingency fees for prosecuting the lost claim against Kemper.  The  



                                  

agreement states that "[p]ayment of fees is contingent upon recovery.  No recovery, no  



                                                                                                    

fee."  But the evidence was clear that throughout the course of the single case against the  



                                                         

 11 insurers the parties treated all of the claims as one matter and used proceeds from  



                                                                              

settlements with one insurer towards fees and costs of litigation with other insurers.  The  



jury probably did not rely on the challenged instruction in the face of this extrinsic  



evidence.  



                                                                                 

                     Zamarello next argues that the July 16, 2004 modification of the purchase  



option  between  Zamarello  and  Neeser  was  ambiguous  as  to  whose  share  of  the  



                                   

recoveries Reges was allowed to collect fees from and the ambiguity should have been  



resolved in Zamarello's favor.  But Zamarello's proposed jury instruction stated only that  



"[a]mbiguities in attorney-client contracts are construed against the attorney." (Emphasis  



added.)    Although  the  modification  agreement  clarified  the  relationship  between  



Zamarello and Reges and Reges helped draft it, it was not an agreement between an  



           10        Cook v. Cook, 249 P.3d 1070, 1078 (Alaska 2011) (quoting                                    Monzingo v.  



Alaska Air Grp., Inc ., 112 P.3d 655, 661 n.29 (Alaska 2005));                                 see also DeCristofaro v.  

Sec. Nat'l Bank, 664 P.2d 167, 169 (Alaska 1983) ("[I]n the absence of other means of                                  

ascertaining the reasonable expectations of the parties, we have held that ambiguities in         

contractual language are to be construed against the drafter.").  



                                                                -9-                                                         6884
  


----------------------- Page 10-----------------------

                       

attorney and a client, but rather an agreement between Zamarello and Neeser.  Reges did  



                                                                              

not  negotiate  the  modification  agreement  nor  did  he  sign  it.    The  failure  to  give  



Zamarello's proposed instruction therefore was irrelevant to this issue.  



                                                                                                                   

                    Finally, because Reges was both the drafter and the attorney, the choice of  



                                                                                          

instruction unlikely had any prejudicial effect on the jury's interpretation of the Final  



Agreement.  



                    Based on the foregoing, we conclude that any possible error in the jury  



instructions was not prejudicial.  We therefore do not reach the question whether the  



court correctly stated the law in the jury instruction.  



                                          

          B.	       The Superior Court Did Not Err By Denying The Motion For JNOV  

                                                                                            

                    Or New Trial Respecting Zamarello's Claim For Half Of The Post- 

                    July 2004 Settlements.  



                                                                                                    

                    Zamarello argues the August 2004 Final Agreement's plain language that  



                                                                   

he "will owe nothing more to [Reges] or his law firms [and] [a]ny future work . . . will  



                                                                               

be charged to . . . Neeser" unambiguously ended the contingency fee arrangement and  



                                                                                                

the court should have interpreted it as a matter of law.  He argues that extrinsic evidence  



is irrelevant because the contract is not reasonably susceptible to Reges's interpretation  



                                                               

that the language merely shifts the billing to Neeser.  He also argues that any potential  



                                                                                       

ambiguities should be interpreted against the attorney and in favor of the client.  Reges  



counters  that  extrinsic  evidence  may  always  be  considered  to  determine  whether  a  



contract is ambiguous and that the extrinsic evidence gave the jury an evidentiary basis  



to find the Final Agreement did not end the contingency fee agreement.  



                    "The  goal  of  contract  interpretation  is  to  give  effect  to  the  parties'  



reasonable  expectations  .  .  .  [which]  must  be  gleaned  not  only  from  the  contract  



                                                                                              

language, but also from extrinsic evidence, including evidence of the parties' conduct,  



                                                                           

goals sought to be accomplished, and surrounding circumstances when the contract was  



                                                             -10-	                                                      6884
  


----------------------- Page 11-----------------------

                   11  

                                                                           

negotiated."           "Typically, in resolving disputes concerning . . . an agreement, we begin  



                                                              

by viewing the contract as a whole and the extrinsic evidence surrounding the disputed  



                                                     

terms,  in  order  to  determine  if  those  terms  are  ambiguous  -  that  is,  if  they  are  



reasonably subject to differing interpretation, and if those differing interpretations are  



                           12  

                                                          

both reasonable."              "[I]nterpretation becomes a task for the trier of fact when the parties  



present extrinsic evidence to clarify a contract's meaning, when this evidence points  



towards  conflicting  interpretations  of  the  contract,  and  when  the  contract  itself  is  



                                                                 13  

                                                                               

reasonably susceptible of either meaning."                           Here, although the language of the contract  



                                 

could  lend  itself  to  Zamarello's  interpretation,  it  also  could  lend  itself  to  Reges's  



interpretation, allowing the jury to decide for Reges.  



                                                        

                     First,  the  July  2004  modification  agreement  of  the  purchase  option,  



                                                

executed by Zamarello only a month prior to the Final Agreement, provided for Reges  



                                                                             

to collect his contingency fees from recoveries as received and stated that the remaining  



                                                                                                             

recoveries were to be shared equally between Neeser and Zamarello.  The modification  



agreement specifies other fees and costs for which each party was responsible, but lacks  



                                                                                                                           

any explicit statement that attorney's fees were to be paid only out of Neeser's share of  



                          

the  recovery.            Both  Neeser  and  McClintock  testified  that  they  understood  the  



          11        Miller  v.  Handle  Constr.  Co. ,  255  P.3d  984,  988-89  (Alaska  2011)  



(citations and internal quotation marks omitted).  



          12         Weiner v. Burr, Pease & Kurtz, P.C.                   , 221 P.3d 1, 9 (Alaska 2009) (citations,  



alterations, and internal quotation marks omitted).  



          13         Norville v. Carr-Gottstein Foods Co. , 84 P.3d 996, 1004 (Alaska 2004)  



(quoting Little Susitna Constr. Co. v. Soil Processing, Inc ., 944 P.2d 20, 23 (Alaska  

                                                         

1997))  (internal quotation marks omitted).  See AAA Valley Gravel, Inc. v. Totaro, 219  

                                                                                   

P.3d  153,  161  (Alaska  2009)  ("Contract  interpretation  involves  fact-finding  when  

                                                                                                          

facially  ambiguous  contract  language  read  in  the  context  of  all  relevant  extrinsic  

                                                                                                          

evidence remains ambiguous . . . .").  



                                                                -11-                                                          6884
  


----------------------- Page 12-----------------------

modification  agreement  to  mean  that  Reges  would  take  his  fees  off  the  top  of  all  



recoveries.    The  only  person  to  echo  Zamarello's  interpretation  of  the  modification  



agreement was his business manager, who did not take part in the negotiation.  



                    Second, the parties' course of conduct could be seen to support Reges's  



                                                                             

interpretation.  Although the initial October 2000 contingency fee agreement provided  



that  fees  would  be  collected  "from  the  'first  dollar'  of  any  recovery,"  in  practice  



                                                                                                         

Zamarello was paying monthly invoices to Reges for costs and fees.  In February 2002  



                                                                    

Zamarello agreed to pay $5,000 monthly on the fees and costs as they were accruing, to  



                                                                                                        

be  credited  against  Reges's  eventual  recovery  on  contingency.                                   This  arrangement  



                                                                                                     

supports  the  idea  that  Zamarello  became  tired  of  handling  the  billing  and  making  



                                                   

monthly payments and therefore the Final Agreement merely shifted this responsibility  



                                              

to Neeser.  This arrangement also is consistent with the August 2004 Final Agreement  



                                                                         

language that Zamarello would "owe nothing  more" and that future work would be  



"charged to Jerry Neeser."  



                    Third,  the  negotiations  surrounding  the  August  2004  Final  Agreement  



               

could be seen to support Reges's interpretation.  The Final Agreement was made in the  



                 

context of a dispute over a $9,000 bill for litigation costs.  After a discussion in which  



Zamarello threatened that if he had to pay the full invoice he would tarnish Reges's  



                                                                                             

reputation, Zamarello agreed that Reges could receive the full amount owed (for both the  



                                                                    

$9,000 cost item and the Denali Fuel bonus) in exchange for a "full release."  This threat  



                                                      

suggests  the  parties  already  were  on  bad  terms,  and  it  may  have  been  important  to  



                                                                       

Zamarello that he stop interacting with Reges directly and that billing and payment for  



                                                                                                                  

the litigation go through Neeser.  Also, the day before the Final Agreement, Reges made  



                                             

a series of telephone calls to Zamarello, Gardner, and McClintock about "shifting the  



billing" to Neeser.  



                                                              -12-                                                         6884
  


----------------------- Page 13-----------------------

                    Fourth,  Reges's  subsequent  fee  agreement  with  Neeser  provided  for  



contingency  fees  from  both  Neeser's  and  Zamarello's  recovery,  consistent  with  the  



                      

July 16, 2004 modification agreement.  That fee agreement stated that contingency fees  



would come "from the first dollar of any recovery" with the remainder split "as agreed  



in  [the  modification  agreement]."    Reges  testified  that  he  told  Zamarello  about  the  



                                                              

agreement and Zamarello did not object.  The fee agreement was retroactive to the date  



                                                                   

of the modification agreement, implying that the parties believed the agreement echoed  



the provisions of the modification agreement.  This reinforces the interpretation that  



Reges was entitled to collect fees from gross recoveries.  



                    Fifth, Zamarello failed to object when Reges repeatedly informed him that  



Reges's  attorney's  fees  were  being  paid  from  incoming  settlements  after  the  Final  



Agreement.  The first settlement in the insurance litigation was $22,500 in November  



                                     

2004.    Reges  informed  Zamarello  of  the  settlement  and  his  intention  to  apply  the  



                                           

recovery to costs and fees.  Zamarello did not object to this division, and instead told  



                                                                               

Reges that further bills should be directed to Neeser.  On March 2, 2006, Reges advised  



                                                                            

Zamarello of a $130,000 settlement and stated that he was drawing on the funds to pay  



                                                                                                                     

for  costs  and  his  fees.          On  March  14  Reges  again  informed  Zamarello  that he  was  



receiving settlements and using the money to pay himself fees.  On March 24 Reges  



made  a  telephone  call  to  Zamarello  in  which  they  discussed  "getting  dollars  from  



                                                                                                          

insurers . . . and who gets to keep the settlements."  On March 25 Reges sent Zamarello  



a letter reiterating that fees were to be deducted from the first dollar of recoveries and  



stating:    "I  am  paying  myself  from  the  monies  now  being  recovered  from  settling  



                                                                                              

insurers."  On April 4 Reges sent a fax informing Zamarello  of settlements totaling  



                                                                                                            

$227,500 and of Reges's intent to pay himself $150,000 and use the rest to finance the  



trial.    On  May  17  and  June  29,  Reges  sent  Zamarello  breakdowns  of  expenditures  



                                                                 

showing that recoveries were applied first to costs and fees with the remainder being split  



                                                             -13-                                                       6884
  


----------------------- Page 14-----------------------

                                                                                                               

evenly  between  Neeser  and  Zamarello.    Zamarello  did  not  object  to  any  of  these  



                              

statements and did not object when Reges stayed with him for a week and "talked to him  



about  all  of  this  in  detail."    Zamarello's  failure  to  object  implies  contemporaneous  



agreement to the arrangement.  



                                                                                                          

                    Finally, under Zamarello's interpretation, either all fees would have come  



out of Neeser's recovery or Reges would have had to work for half his usual rate.  Reges  



                                                             

did not have the authority to make that agreement for Neeser without his consent, and  



                                                                                                  

it seems unlikely that Reges would agree to charge Neeser the full attorney's fees without  



first approaching Neeser about the new arrangement.  Nor is there any evidence that  



Reges agreed to protracted litigation at half his usual rate in exchange for payment of  



money he felt he was already owed.  



                                                    

                    In contrast, Reges's interpretation mirrors the parties' actual relationship,  



                                                                                                          

with  Reges  working  to  pursue  Zamarello's  claims  and  being  paid  from  recoveries.  



                                                                                                                      14  

                                                                                                                         but we  

Zamarello argues that any ambiguity should be construed against the attorney, 



                                                                                                        

again note that rules interpreting contracts against the drafter should be applied only "in  



                                                                                                                                 15  

                                                                  

the absence of other means of ascertaining the reasonable expectations of the parties." 



Because Zamarello is challenging the jury's determination that the August 2004 Final  



                                                                  

Agreement did not end the contingency fee arrangement, we ask only whether there was  



                                                                  16  

an evidentiary basis for that  determination.                         



                    Reges's wording in the August 2004 Final Agreement that Zamarello will  



          14        See Weiner, 221 P.3d at 9.  



          15        Cook, 249 P.3d at 1078 (quoting                  Monzingo , 112 P.3d at 661 n.29);                 see also  



DeCristofaro , 664 P.2d at 169 (Alaska 1983).  



          16        Hogg v. Raven Contractors, Inc., 134 P.3d 349, 352 (Alaska 2006) (quoting  



Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001); Grant v. Stoyer, 10 P.3d 594, 596  

                                                                                                              

(Alaska 2000)).  



                                                              -14-                                                         6884
  


----------------------- Page 15-----------------------

                                                 

"owe nothing more" and further work will be "charged to" Neeser could be misleading,  



                                                                                            17  

but Reges's interpretation is not precluded as a matter of law.                                 Reges also testified at  



                                                                                  

times  that  he  intended  the  Final  Agreement  to  end  Zamarello's  obligation  to  pay  



attorney's  fees  but  that  he  was  nonetheless  entitled  to  take  fees  from  the  top  of  all  



                18  

                                                                              

recoveries.         "It is the jury, not the court, which . . . . weighs the contradictory evidence  



                                                                                               

and inferences, judges the credibility of witnesses . . . and draws the ultimate conclusion  



                        19  

                                                                                                                  

as to the facts."           The jury had an evidentiary basis for its decision, and  under our  



                                   

deferential standard of review, we affirm the trial court's denial of Zamarello's motion  



for JNOV or a new trial on his claim for half of the post-July 2004 recoveries.  



          C.	       The Superior Court Did Not Err By Denying Zamarello's Motion For  

                                                                                

                    A  New  Trial  Based  On  His  Claim  For  Reimbursement  For  The  

                    Kemper Fee.  



                    Zamarello raises three arguments for reimbursement of his payment of  



                                                                                   

Kemper's adverse fees and costs award.  He first argues that Reges violated Alaska Rule  



of Professional Conduct 1.5(b) by not notifying him in the written fee agreement that  



                                      

he might be liable for the opposing party's costs, fees, or expenses, and that this omission  



          17        See Little Susitna Constr., 944 P.2d at 25 (holding contract interpretation  



properly submitted to jury where term had no settled legal definition).  



          18        Reges argues in the alternative that Zamarello was not paying contingency  



fees because Reges was collecting fees directly from the insurers - in effect stating that  

a client does not pay contingency fees.  This argument is incorrect as a matter of law.  

Clients contract with attorneys to pay contingency fees.  See R 

                                                                                            ESTATEMENT (THIRD) OF  

LAW GOVERNING  LAWYERS  35 (2000) ("A lawyer may contract with a client for a fee                

the  size  or  payment  of  which  is  contingent  on  the  outcome  of  a  matter  .  .  .  .").  

Recoveries are held in trust for the client and paid to the attorney out of the client's trust  

                                                                              

account.  See Alaska R. Prof. Conduct 1.15.  



          19        City  of  Delta  Junction  v.  Mack  Trucks,  Inc.,  670  P.2d  1128,  1130  n.2  



(Alaska 1983) (quoting Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29, 35 (1944)).  

                                                                                                           



                                                             -15-	                                                       6884
  


----------------------- Page 16-----------------------

                                                                                                                    

prevents Reges from requiring him to pay the Kemper fee. Reges argues that he advised  



                                                                

Zamarello of the risk of adverse judgment in the two-page July 11, 2000 contingency fee  



document, through discussions with Zamarello's in-house counsel after the October  



2000,  agreement,  and  during  the  July  16,  2004  modification  agreement  discussion.  



                                                   

Zamarello counters that he never signed the July 11, 2000 agreement and that the writing  



                               

requirement cannot be avoided by claiming that the client otherwise knew of the terms  



                                20  

                                                                                                                         

of the representation.               But under the parol evidence rule, unless the contract is fully  



integrated,  contract  terms  may  be  supplemented  by  extrinsic  evidence  of  consistent  



                         21  

                                                          

additional terms.             Here, the October 3, 2000 agreement did not contain an integration  



          22  

clause,        and  Zamarello  makes  no  argument  that  it  otherwise  was  an  integrated  



                                                                                                                  

agreement.    Although  the  non-integrated,  signed  fee  agreement  did  not  contain  the  



                                                                                                             

required written warning, the jury had an evidentiary basis for finding that the written  



warning in the July 11, 2000 document was part of the October 2000 fee agreement.  



                                                                                                                      

                    Zamarello next argues that even if the July 11, 2000 document were part  



                                                                                             

of the agreement, the language was inadequate to warn him of the Kemper judgment risk  



because the document addressed what happens "if this matter is taken to trial" and the  



Kemper fees were awarded on summary judgment.  Zamarello points to the Alaska  



                                                                                                                     

Comment section of Professional Rule 1.5(b) approving the phrasing "if you don't win  



          20        See Statewide Grievance Comm. v. Dixon, 772 A.2d 160, 164 (Conn. App.  



2001).  



          21        Froines v. Valdez Fisheries Dev. Ass'n , 75 P.3d 83, 86-87 (Alaska 2003)   



(quoting AS 45.02.202(2)); see also RESTATEMENT  (SECOND) OF  CONTRACTS   215,  

216(1) (1981).  



          22  

                                                                                                     

                    See, e.g., Nautilus Marine Enters. v. Valdez Fisheries Dev. Ass'n , 943 P.2d  

                                              

1201, 1204 n.5 (Alaska 1997) (describing an integration clause stating:  "This instrument  

                                                                                                                

is intended by the parties as a final expression of their agreement and as a complete and  

exclusive statement of its terms.").  



                                                              -16-                                                         6884
  


----------------------- Page 17-----------------------

                 23  

                                     

your case,"          arguing it was error to not include this language.  But Zamarello forfeited  



                                                                                  24  

                                                                                                                 

this argument by raising it for the first time on appeal.                             And because the comments on  



       

the Professional Rules are meant as guides to interpretation, any deviation from language  

approved in the comments does not necessarily equate to a violation of the rules.25  



                     Finally,      Zamarello          claims       that     Reges       abdicated         his    professional  



                       

responsibility to Zamarello by not pursuing Neeser for half of the Kemper costs.  But  



                                                               

during the 2004 modification agreement discussions the parties agreed to not add Neeser  



                                                

as a plaintiff partly because of the risk of adverse judgment.  Reges pursued the matter  



                                                           

to  an  appropriate  degree  by  writing  Neeser  a  letter  requesting  payment  of  half  the  



                                                                                                                          

judgment even though he believed Neeser had no obligation to pay.  The jury had an  



                                                                                         

evidentiary basis for determining that Zamarello was not entitled to reimbursement for  



                                                                                                      

the Kemper fee, and we therefore affirm the trial court's denial of his motion for a new  



trial based on this claim.  



          D.	        The Superior Court Did Not Err By Denying Zamarello's Motion For  

                                                                                             

                     JNOV Or A New Trial Regarding His Claim For The $150,000 Bonus.  



                     Zamarello raises several arguments why he is entitled to repayment of the  



$150,000 bonus given to Reges for the Denali Fuel settlement.  Zamarello first argues  



                                                        

that the bonus was consideration for the August 2004 Final Agreement, which ended his  



                       

obligation  to  pay  contingency  fees.    Zamarello  contends  that  Reges  breached  the  



                                 

agreement by taking contingency fees from the recoveries, entitling Zamarello to recover  



          23	        Alaska R. Prof. Conduct 1.5, Alaska Comment.  



          24        Brandon v. Corr. Corp. of Am.                  , 28 P.3d 269, 280 (Alaska 2001) ("A party  



may not raise an issue for the first time on appeal.").  



          25         See Alaska R. Prof. Conduct,  Scope ("The Rules of Professional Conduct  

                                                                                                     

are rules of reason.  They should be interpreted with reference to the purposes of legal  

                                                                                                 

representation . . . . The COMMENTS are intended as guides to interpretation . . . .").  



                                                               -17-	                                                        6884
  


----------------------- Page 18-----------------------

the $150,000.  But the jury had sufficient evidence from Reges's testimony to conclude  



                                                                   

that the bonus was given in exchange for work done on the Denali Fuel settlement, not  



                                                                                                        

in consideration for a release from fees.  The jury therefore had an evidentiary basis to  



find the bonus was not given as consideration for the release.  



                     Zamarello also argues that Reges intentionally misrepresented his intentions  



                               

to continue taking contingency fees when he drafted the Final Agreement and that this  



                                                                       

entitles Zamarello to recover the $150,000.  But intentional misrepresentation requires  



                                26  

an intent to deceive,              and the jury could have relied on Reges's testimony that the Final  



Agreement  was  quickly  and  poorly  drafted  to  find  that  there  was  no  intentional  



misrepresentation.  



                     Finally, Zamarello argues that the $150,000 was given in exchange for  



Reges  getting  the  Denali  Fuel  settlement  above  $1  million,  making  the  payment  a  



contingency  fee  and  therefore  invalid  under  Alaska  Professional  Rule  1.5(c)  which  



                                                                                       

requires contingency fee agreements to be in writing. Zamarello forfeited this argument  



                                                                                                                 27  

by failing to raise it at trial or in his motion for JNOV or a new trial.                                            We therefore  



                                                                                       

affirm the trial court's denial of Zamarello's motions for JNOV or a new trial based on  



his claim for reimbursement of the $150,000 bonus.  



V.         CONCLUSION  



                     Based on the foregoing, we AFFIRM the superior court's judgment.  



           26        Anchorage Chrysler Ctr., Inc. v. DaimlerChrysler Motors Corp.                                         , 221 P.3d   



977, 987-88 (Alaska 2009) (quoting                         Anchorage Chrysler Ctr., Inc. v. DaimlerChrysler       

Corp., 129 P.3d 905, 914 (Alaska 2006)).  



           27        See Brandon, 28 P.3d at 280 ("A party may not raise an issue for the first  

                                                  

time on appeal.  And cursory treatment of an issue is considered by this court to be  

                                                                                                                  

waiver of that issue.") (citations omitted); Padgett v. Theus , 484 P.2d 697, 700 (Alaska  

1971) ("Ordinarily an issue which was not raised in the trial court will not be treated on  

                                                                                                                            

appeal.").  



                                                                  -18-                                                                 6884  

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