Kilsheimer v. Davis

HOLLANDER, Judge. In this appeal, we confront the proper interpretation of Maryland Rule 2-402(e)(3), which governs the award of fees to expert witnesses in regard to discovery. In particular, we consider two awards granted by the Circuit Court for Prince George’s County in connection with a multiparty wrongful death action 1 instituted by appellees Ashley Fahy and the Estate of Glen Fahy (together, “the Fahys”). At a settlement conference with the court on July 6, 1994, the parties settled the underlying tort case.

At that time, however, they were unable to agree on the amount of fees for two of the Fahys’ experts. Consequently, they submitted ⁶⁰³ their dispute to the circuit court. With respect to the first expert, appellant Allyn Kilsheimer, P.E., the court required appellee Dewberry & Davis (“D & D”), a defendant below, to pay only a small portion of the fees that Kilsheimer claimed. With respect to the second expert, Jerome M. Staller, Ph.D., the court required appellant Contract Construction, Inc. (“CCI”), another defendant below, to pay the full amount invoiced by Staller.

From these orders, both Kilsheimer and CCI have appealed. 2 I. Issues Presented CCI presents two questions for our consideration: 1. Should Maryland adopt the decisional analysis of federal courts establishing guidelines for determining the reasonableness of expert fees in litigation in Maryland? ⁶⁰⁴ 2. Should an expert be prohibited from arbitrarily charging a discriminatory fee of $300 per hour for his deposition? Kilsheimer presents a series of issues: 1.

Whether [¶] & D] and Mr. Kilsheimer reached an enforceable agreement requiring [¶] & D] to pay Mr. Kilsheimer $350 per hour for time spent at his deposition and in responding to [¶] & D]’s discovery requests. 2. Whether [¶] & D] was estopped from refusing to pay Mr. Kilsheimer his normal hourly rate of $350 per hour for time spent at his deposition and in responding to [¶] & D]’s discovery requests. 3. Whether [¶] & D] was the cause of the extra expenses incurred and fees earned by Mr. Kilsheimer in connection with his expert testimony in this case. 4. Whether an adverse party can require another party’s expert to review documents and conduct further study in connection with the expert’s deposition and then refuse to pay the expert his normal rate for time spent at the deposition and in responding to such discovery. 5.

Whether Maryland Rule 2-402(e)(3) normally requires a trial court to order a party deposing an adverse expert witness and requesting discovery from such expert, to pay such witness’ normal hourly rate. 6. Whether an expert witness’s initial fee arrangement with the party that retained him provides a proper or dispositive basis to determine the amount which an opposing party should pay the expert in connection with his deposition. 7. Whether the Circuit Court should have followed, or was required to follow, [the D.C. Superior Court]’s ruling and ordered [¶] & D] to pay Mr. Kilsheimer his normal rate of $350 per hour for part of the time he spent testifying at his deposition. 8. Whether, in a case where [¶] & D] deposed Mr. Kilsheimer for six days and requested him to review volumi ⁶⁰⁵ nous documents, it was a fair and reasonable fee for Mr. Kilsheimer to be paid only $4,500.

Most of the parties’ questions address different aspects of the same underlying query, i.e., whether the circuit court abused its discretion in determining the fee awards. The court’s awards were facially inconsistent with each other; the award for Staller resulted in the full payment that he sought, but Kilsheimer’s request for payment was substantially cut. Yet the court did not explain why it determined that only Staller deserved his entire fee. In addition, some of the court’s factual findings as to Kilsheimer were clearly erroneous, and we cannot determine whether the court relied on these facts in fashioning its awards.

In view of the patent inconsistency of the two fee awards, the paucity of factual findings, and some clearly erroneous factual findings, we conclude that the court’s resolution of the fee disputes was arbitrary and constituted an abuse of discretion. Consequently, we shall vacate both orders and remand for reconsideration.

II

Factual Background A. The Underlying Litigation Glen Fahy was an employee of Criblock Retaining Walls, Inc. (“Criblock”), a construction subcontractor. Criblock had been retained by CCI, a general contractor, as part of a construction project. D & D, one of the architectural firms involved in the project, was responsible for designing, among other things, the retaining wall that Criblock was building. Glen Fahy was killed on March 8, 1990, when the retaining wall collapsed on him.

Thereafter, the Fahys filed a wrongful death action on July 27, 1992 against the parties involved in the construction of the retaining wall, including both CCI and D & D. On April 7, 1993, D & D served its “Expert Witness Interrogatory,” pursuant to Rule 2-402(e)(l)(A), asking each party to identify any expert witness that the party expected would testify, the subject matter on which the expert would ⁶⁰⁶ testify, the substance and findings of the expert’s opinions, and the grounds upon which any such opinions were based. The Interrogatory also requested production of any written reports prepared by such experts concerning the experts’ opinions. In response, on May 20, 1993, the Fahys identified two experts: Kilsheimer, a structural engineer, who would testify about matters concerning the construction of the retaining wall; and Staller, an economist, who would testify concerning the damages suffered by the Fahys. B. Allyn Kilsheimer D & D conducted Kilsheimer’s deposition in six separate sessions held during a five-month period.

The circumstances surrounding the deposition sessions are hotly disputed, with each side accusing the other of conducting discovery in an unnecessarily confrontational, dilatory, petty, and even unethical manner. Bearing this dispute in mind, we have gleaned the following factual summary from the various pleadings, the docket entries, and the deposition testimony and affidavits in the record, along with the few undisputed portions in the parties’ briefs. In October 1992, the Fahys retained Kilsheimer, who lives and works in the District of Columbia, as a consultant. In their retainer contract, the parties agreed that Kilsheimer would review the materials in the case and advise the Fahys, at a rate of $350 per hour, with a maximum “cap” of $2,500.

The contract limited its applicability to services other than actual testimony; it provides that, in the event that Kilsheimer were required to testify for them in a deposition or at trial, he “would receivd additional compensation.” On April 27, 1993, the court issued a scheduling order with respect to the underlying litigation, requiring the parties to initiate discovery by June 5, 1993 and to complete discovery by September 15, 1993. On August 31, 1993, the court entered an amended scheduling order, requiring discovery to be completed by December 17, 1993. By the close of discovery, the Fahys had not filed a supplemental response to D & D’s Interrogatory, and no one had attempted to depose Kilsheimer. ⁶⁰⁷ On December 20, 1993, D & D filed a motion for summary judgment. The Fahys filed an opposition to the motion, attaching an affidavit from Kilsheimer, which, for the first time, contained an opinion essentially stating that D & D’s negligence contributed to Glen Fahy’s death.

On January 19, 1994, the hearing date of the motion, D & D complained that, due to the Fahys’ failure to reveal the substance of Kilsheimer’s opinion until after discovery had closed, D & D had been deprived of a meaningful opportunity to conduct discovery. At the court’s suggestion, D & D withdrew its motion for summary judgment and arranged to take Kilsheimer’s deposition on February 17, 1994. Accordingly, on February 1, 1994, the court issued a second amended scheduling order, extending the date for completion of discovery until April 29, 1994. The February 17, 1994 deposition was cancelled, apparently because Kilsheimer was working in another state on another matter.

According to D & D, the Fahys indicated that the next available date for a deposition was April 8, 1994. Unable to agree on a date, on March 1, 1994, D & D petitioned the D.C. Superior Court to issue a subpoena duces tecum for a deposition on March 7, 1994. The subpoena, however, named KCE Structural Engineers, P.C., Kilsheimer’s corporate employer, not Kilsheimer himself. Also, about that time, Kilsheimer was in the hospital, undergoing major surgery.

Although Kilsheimer was never served with a subpoena for the anticipated deposition, the parties and Kilsheimer agreed to hold the deposition on March 10, 1994. On March 5, 1994, in confirmation of the agreement, counsel for the Fahys faxed a letter to counsel for D & D, stating in pertinent part as follows: As I advised you today, Mr. Kilsheimer’s usual expert fees are $350 per hour or $3,000 per day for any waiting period. Accordingly, Mr. Kilsheimer’s fees for the deposition set for Thursday is $350 per hour. An invoice will be sent to you following the testimony on March 10, 1994.

The same day, counsel for D & D responded by fax as follows: This is to acknowledge and concur with your letter of March 5. My list of questions will be general in nature and ⁶⁰⁸ will contemplate reasonable follow-up questions which I do not think either Allyn or you will find troublesome. On March 10, 1994, soon after his surgery, Kilsheimer was deposed for about two hours, against medical advice, and while on pain medication. During the deposition, he indicated that he had not yet reviewed any of the documents produced by any of the defendants, and that his testimony was based on his memory of documents that he reviewed several months earlier.

Although he had formed an opinion with respect to the causal connection between Glen Fahy’s death and the acts and omissions of some of the parties, Kilsheimer had not yet formed any opinion with respect to the causal role of the actions of D & D and CCI. Apparently dissatisfied with the information Kilsheimer provided, D & D continued the deposition to April 8, 1994, the next mutually agreeable date. On March 31, 1994, Kilsheimer sent D & D an invoice for six hours of his time, at a rate of $350 per hour. At the April 8 deposition, Kilsheimer indicated that he had not reviewed his files in preparation for the deposition.

He had, however, reviewed about two-thirds of the documents that had by then been produced through discovery, which Kilsheimer described as a stack of paper about two-and-a-half feet tall. He revealed that, in his preliminary opinion, D & D’s negligence contributed to Glen Fahy’s death. He further explained that he had not previously formed any opinions because the documents provided to him were, until recently, inadequate. He also indicated that he had not known that some of the documents even existed until he saw them a week before the second deposition.

Finally, Kilsheimer listed several documents he still needed to acquire and examine before he could give a final opinion. Again, D & D sought to continue the deposition. Although the Fahys apparently did not object to continuing the deposition, the parties did not immediately settle on a date. By letter dated April 12,1994, D & D returned Kilsheimer’s invoice, which had been submitted after the March 10 deposition, and refused to pay anything.

D & D relied on the fact ⁶⁰⁹ that, during the April 8 deposition, Kilsheimer had acknowledged that he had not charged the Fahys anything above the $2,500 cap specified in the retainer contract. Kilsheimer had also indicated that he had not arranged for any further payment from the Fahys, and that he expected his deposition fees to be paid by D & D. Consequently, in the April 12 letter, D & D claimed that if Kilsheimer was not charging the Fahys anything, D & D had no obligation either. As further grounds for refusing to pay, D & D claimed that Kilsheimer was not fully prepared for either deposition. D & D suggested that Kilsheimer should be “happy at accepting the status quo (ie., that he does not bill for his deposition time, consistent with his fee agreement).” D & D indicated that if Kilsheimer was not happy, the matter should be submitted to the court for resolution.

The Fahys, meanwhile, refused to consent to any date for the resumption of the deposition before May, 1994, because Kilsheimer was scheduled for more surgery on April 26, 1994. On April 13, 1994, D & D, apparently concerned with the looming discovery deadline of April 29, 1994, again asked the D.C. Superior Court to issue a subpoena duces tecum for Kilsheimer and hired process servers. D & D even threatened to hold the deposition in the hospital, if necessary. Upon further negotiation, Kilsheimer rescheduled his surgery for the preceding week, and the parties agreed to conduct the deposition for no more than four hours, at Kilsheimer’s home, on April 25, 1994.

At the third deposition session, Kilsheimer for the first time offered his “final opinion” with respect to D & D’s liability. His testimony differed considerably, however, with respect to certain matters he had discussed during the deposition of March 10, 1994. The parties agreed to resume Kilsheimer’s deposition on May 19, 1994, planning to finish all depositions by June 1, 1994, the target date set by the circuit court for any hearings on any motions for summary judgment. Also, on April 29, 1994, the court, at the request of the parties, extended the deadline to June 17, 1994 for concluding expert witness discovery. ⁶¹⁰ Meanwhile, on April 28,1994, D & D filed a renewed motion for summary judgment.

In their opposition, the Fahys attached another affidavit by Kilsheimer. It contained an explanation of D & D’s causal role that significantly differed from his prior deposition testimony, but did not include any grounds for the opinion. At an unspecified time in early May, 1994, Kilsheimer learned that he could not attend the next deposition, scheduled for May 19, 1994, because he needed to undergo further medical treatment on that date. The parties could not agree on another date near May 19, because both Kilsheimer and D & D’s counsel had scheduling conflicts.

Anticipating that D & D would again seek a subpoena, the Fahys petitioned the D.C. Superior Court for a protective order against the issuance of any further subpoenas. The Fahys also sought an order requiring D & D to pay all of Kilsheimer’s fees accrued to date, at a rate of $350 per hour, plus expenses. The D.C. court agreed, in part, and ordered as follows: IT APPEARING TO THIS COURT that the moving parties have shown good cause for the issuance of a protective order, it is hereby this the 16th day of May, 1994, ORDERED, that the Joint Motion shall be, and hereby is, GRANTED and DENIED in part; and it is further ORDERED, that Mr. Kilsheimer’s deposition shall be held on May 18, 1994 from 9:30 a.m. to 5:00 p.m.[;] ORDERED, that within five days from the date of this Order, Dewberry & Davis shall pay Mr. Kilsheimer his expert witness fees at the rate of $350 per hour for his deposition on May 18, 199k; and it is further ORDERED, that Mr. Kilsheimer’s deposition scheduled for May 19, 1994, shall not be held. (Emphasis added).

Thereafter, the parties and Kilsheimer agreed to cancel the May 18 deposition and reschedule it to June 1 and 2, 1994. During these sessions, Kilsheimer again altered his final opinion with respect to D & D’s causal role in the accident and disclaimed reliance on most of the documents and texts which ⁶¹¹ he had previously used. Instead, he relied on newly produced documents. The parties continued the deposition to June 28, 1994.

The circuit court heard argument on D & D’s renewed motion for summary judgment on June 8, 1994. According to D & D, counsel for the Fahys made oral representations concerning further testimony not yet given by Kilsheimer. The transcript, however, is not in the record on appeal. In any event, the court denied the motion.

On June 28, 1994, less than three weeks before trial, Kilsheimer was again deposed. Based on two documents that he had not seen prior to this deposition, along with a third he had seen but had not considered important until just before the deposition, Kilsheimer no longer believed he could form a sufficiently definitive opinion without actually having a survey conducted of the construction site and having earth samples taken. As we noted earlier, the parties settled the underlying tort claims on July 6, 1994 through negotiations conducted with the court. During the settlement conference, the parties specifically raised the issue of Kilsheimer’s fees, but were unable to resolve their disputes.

By the close of the case, Kilsheimer had spent about thirty hours in deposition and claimed to have spent another 125 hours preparing specifically for the depositions, for which he sought compensation at a rate of $850 per hour. He also claimed nearly $16,000 worth of expenses. Consequently, Kilsheimer insisted on payment in excess of $72,000. D & D offered to pay him $4,500, representing $150 per hour for his thirty hours of deposition time; Kilsheimer rejected the offer.

Thereafter, D & D refused to pay anything at all, and further refused to execute the settlement documents until the issue of the fees was resolved. On July 18, 1994, D & D filed a motion for a show cause order for adjudication of the fee issue. In it, D & D asked the court to order Kilsheimer to pay the entire amount of D & D’s settlement obligation to the Fahys, plus all of D & D’s attorneys’ fees and expenses. On August 12, 1994, the Fahys ⁶¹² filed a motion to enforce the settlement agreement, independent of any issue generated by Kilsheimer’s fees.

The court heard both motions on September 13, 1994. C. Dr. Jerome Staller In contrast to Kilsheimer’s situation, the facts surrounding Staller’s deposition testimony are essentially undisputed. According to the Fahys, Staller charged them $175 per hour for consulting and pretrial work, and $300 per hour for testimony at depositions and trial. On March 28, 1994, CCI noted Staller’s deposition for April 18,1994.

On April 6, 1994, the Fahys faxed a letter from Staller to CCI, in which Staller indicated that his standard fee was $300 per hour, “portal to portal” with a two-hour minimum, plus expenses. The letter asserted that fees were to be paid by check presented at the beginning of the deposition. CCI responded by letter, declining to agree to any specific terms prior to the deposition, and offering instead to pay a “reasonable fee” as required by Rule 2-402(e)(3). On April 18, 1994, Staller appeared for deposition, insisting that he would not proceed unless CCI first executed his fee agreement.

After conferring with counsel for the Fahys, however, Staller agreed to testify and defer payment. CCI later received Staller’s invoice, dated April 20, 1994, in the amount of $1,572.38. The invoice billed two hours of travel time at $175 per hour, four hours of testimony at $300 per hour, and $22.38 for mileage, tolls, and parking. By letter dated May 12, 1994, CCI refused to pay the invoice.

Instead, CCI tendered a check for $1050, as full payment for six hours of time at $150 per hour. Staller insisted on full payment. On July 14, 1994, the Fahys moved to compel payment of the remaining $500 of Staller’s fees, which CCI opposed. On August 24, 1994, without considering CCI’s opposition and without holding a hearing, the circuit court granted the Fahys’ motion.

On September 6, 1994, CCI filed a motion for reconsideration, which the court agreed to consider on September 13, 1994, along with the issues concerning Kilsheimer’s fees. ⁶¹³ D. The Circuit Court’s Decision On September 13, 1994, the court heard argument concerning both experts’ fees. As to Kilsheimer’s claim, the court asked whether anyone “wants to argue the position that Kilsheimer’s fee should be more than $150 [per hour].” Kilsheimer, appearing through his own counsel, presented his version of the events, proffering that his claimed rate of $350 per hour was his standard fee in all cases. Kilsheimer characterized D & D’s conduct as “terrorist tactics,” “intimidating and bullying” in nature, and “without any merit.” Further, Kilsheimer argued that D & D was bound by the parties’ contract of March 5, 1994. Kilsheimer also claimed that the fee-rate question had been resolved by the D.C. Superior Court, when it ordered his compensation at a rate of $350 for the deposition initially scheduled for May 18, 1994.

Finally, he sought attorneys’ fees. D & D acknowledged that Kilsheimer was deposed for some twenty-eight hours, and incurred two hours of travel time. But D & D complained about Kilsheimer’s conduct, and described him as obstructively dilatory, unreasonably inflexible in rescheduling depositions, chronically unprepared, and so internally contradictory that much of the time was effectively wasted. While D & D acknowledged that it had agreed to a rate of $350 per hour prior to the first deposition, it claimed that the agreement was limited only to the first deposition.

D & D also claimed that the $2,500 “cap” had been willfully concealed from D & D and, given that the Fahys had already paid Kilsheimer, he should be bound by that “cap.” D & D also asserted that, as a matter of law, an expert is not entitled to payment for preparation time. Although D & D had proffered that one of its experts had previously charged $150 for similar work, and suggested that D & D would be willing to pay that rate to Kilsheimer, there is no evidence in the record regarding its basis for the $150 figure. Finally, D & D asserted that the D.C. court’s order had no bearing on the proceedings because it expressly applied only to the deposition that the court ordered for May 18, 1994 which, by mutual agreement, was rescheduled. ⁶¹⁴ The court indicated that it would hold the matter sub curia, pending a review of Kilsheimer’s deposition. The court concluded, however, that the question of Kilsheimer’s fees was an issue wholly independent of D & D’s obligation to abide by the settlement agreement.

The court then ordered D & D to complete the settlement papers and pay the full amount of the settlement to the Fahys. 3 D & D immediately tendered a check for the settlement amount. Turning to Staller’s claim, the court indicated that, because it had not previously considered CCI’s opposition, the court would “consider [the matter] from the beginning.” CCI suggested that the court should follow a “seven point test,” used by some federal courts, to determine whether an expert’s fee is reasonable. Like D & D, CCI argued that $150 per hour was a “reasonable” rate but that $300 per hour was not. CCI characterized Staller’s services as “boiler-plate,” not “brain surgery,” and asserted that an assistant had done the bulk of Staller’s work.

The Fahys countered that the various defense counsel in the case had used Staller for similar work on other cases and, each time, counsel had paid him his customary $300 per hour fee. As with Kilsheimer, the court held the matter sub curia, pending review of Staller’s credentials and deposition testimony. On September 15, 1994, the court issued two separate orders. The first, regarding Kilsheimer’s fees, reads in full as follows: The Court has heard the parties’ arguments concerning the reasonable amount of an expert witness fee for Dr. Allyn Kilsheimer.

The Court is persuaded that the defendant Dewberry and Davis and Dr. Kilsheimer never reached a dear,- certain and definite agreement concerning a method of compensation for Dr. Kilsheimer’s deposition testimony. The Court is further persuaded that Dr. Kilsheimer’s agreement with the plaintiff for compensation for his ser ⁶¹⁵ vices was capped at Two Thousand Five Hundred Dollars ($2,500) and he was in fact paid only Two Thousand Five Hundred Dollars ($2,500) by the plaintiff. The Court is further persuaded that the defendant Dewberry and Davis was not the cause of the extra expenses Dr. Kilsheimer incurred. Accordingly, the Court is persuaded that Dr. Kilsheimer is entitled to a fair and reasonable fee of Four Thousand Five Hundred Dollars ($4,500).

(Emphasis added). The second order, regarding Staller’s fees, provides in full as follows: The Court has heard the parties’ arguments concerning the reasonable amount of an expert witness fee for Dr. Jerome Staller. The Court is persuaded that a fair and reasonable fee for Dr. Staller is One Thousand Five Hundred Seventy-Two Dollars and Thirty-Eight Cents ($1,572.38). Accordingly, Contract Construction, Inc.’s Motion for Reconsideration of Order to Compel Payment of Expert Witness Fees is DENIED.

The court orally granted judgment on the merits of the Fahys’ claim. The docket entries reflect entry of judgment on September 21, 1994 in favor of the Fahys and against various defendants, although there is no written order to that effect. An order of satisfaction was filed on September 30, 1994.

III

Discussion A. Standard of Review The circuit court has broad discretion with respect to the resolution of discovery disputes. Baltimore Transit Co. v. Mezzanotti, 227 Md. 8, 13-14 , 174 A.2d 768 (1961); see also Bartholomee v. Casey, 103 Md.App. 34, 48 , 651 A.2d 908 (1994) (discretion with respect to exclusion of unproduced evidence). At issue here is the court’s exercise of discretion with respect to Rule 2-402(e)(3), which states in pertinent part: ⁶¹⁶ Unless manifest injustice would result, ... the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery. ... Accordingly, we must review any award granted under this rule based on the abuse of discretion standard.

With respect to the court’s factual findings, we review those findings only to determine whether they are clearly erroneous. Md.Rule 8-131(c); cf. Jenkins v. Cameron & Hornbostel, 91 Md.App. 316, 324 , 604 A.2d 506 , cert. denied, 327 Md. 218 , 608 A.2d 780 (1992) (attorney’s bad faith during discovery, for purposes of awarding attorney’s fees, is factual question). B. The Fee Awards As is apparent from the court’s orders, it made few findings of fact concerning Kilsheimer and no findings at all with respect to Staller. Staller was effectively awarded his entire fee, which means he received an hourly rate of $300.

In fashioning Kilsheimer’s lump sum award, however, the court slashed his bill and awarded only a portion of his request. As the court faded to make a finding of the number of hours for which Kilsheimer was entitled to compensation, we are left to assume, based on the court’s comments, that it awarded Kilsheimer’s fee at the rate of $150 per hour, for a total of thirty hours. Nevertheless, the record does not reveal any manifest reason why $150 per hour was a reasonable rate for him, other than that D & D was willing to pay it. Nor did the court address whether any out-of-pocket expenses were recompensable.

Moreover, with respect to the court’s implicit denial of Kilsheimer’s request for fees for the time he spent preparing for the deposition sessions, the court failed to state whether it reached its decision in the exercise of discretion, or whether it denied Kilsheimer’s request because it believed that such an award was precluded as a matter of law. As to Kilsheimer, the court also erroneously found that “Dr. Kilsheimer’s agreement with the plaintiff for compensation for his services was capped at Two Thousand Five Hundred Dollars ($2,500) and he was in fact paid only Two Thousand ⁶¹⁷ Five Hundred Dollars ($2,500) by the plaintiff.” In actuality, the contract between Kilsheimer and the Fahys limited the applicability of this “cap” to time spent consulting prior to depositions and trial; it specifically excluded time spent testifying. Additionally, the contract explicitly allowed that, in the event Kilsheimer had to testify, the Fahys would be liable for fees above the cap accrued because of time spent in depositions. Further, the court erred in finding that D & D and Kilsheimer never reached a clear, certain and definite agreement concerning a method of compensation for Kilsheimer’s deposition testimony.

Even assuming the “agreement” between counsel did not constitute an enforceable contract (as claimed by D & D), the parties, by their own terms, reached an agreement. 4 As we have observed, on March 5, 1994, counsel for the Fahys faxed a letter to counsel for D & D, stating that Kilsheimer’s usual expert fee was $350 per hour or $3,000 per day. In response, counsel for D & D said he “concur[red].” Moreover, at the hearing on September 13,1994, counsel for D & D conceded as much. He said: We agreed on a March 10 deposition. We agreed that I would present the questions in advance, which I did.

Based upon the representation mads to me at that time, that Mr. Kilsheimer was—had a fee of $350 an hour, I said, “Fine. ” For two hours or three hours of a limited deposition, who cares? And we went forward with the deposition at that time. (Emphasis added). Based on the letters, along with the admission from counsel in court, the only possible factual conclusion to be drawn is that the parties did reach an hourly fee agreement of $350, at least with respect to the first deposition, even though D & D later sought to repudiate the agreement.

The court did not indicate how, or to what extent, these factual findings affected ⁶¹⁸ its decision. Because we cannot speculate, we are left to conclude that the court relied on them, at least to some extent, in arriving at its fee award. D & D argues that the court’s findings were not clearly erroneous because of the “concealed” $2,500 cap, as well as Kilsheimer’s chronic failure to prepare and his inability to give a final opinion. D & D does not contend that Kilsheimer