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Heterokont algae, together with cryptophytes, haptophytes and some alveolates, possess red-algal derived plastids. The chromalveolate hypothesis proposes that the red-algal derived plastids of all four groups have a monophyletic origin resulting from a single secondary endosymbiotic event. However, due to incongruence between nuclear and plastid phylogenies, this controversial hypothesis remains under debate. Large-scale genomic analyses have shown to be a powerful tool for phylogenetic reconstruction but insufficient sequence data have been available for red-algal derived plastid genomes.
The chloroplast genomes of two brown algae, Ectocarpus siliculosus and Fucus vesiculosus, have been fully sequenced. These species represent two distinct orders of the Phaeophyceae, which is a major group within the heterokont lineage. The sizes of the circular plastid genomes are 139,954 and 124,986 base pairs, respectively, the size difference being due principally to the presence of longer inverted repeat and intergenic regions in E. siliculosus. Gene contents of the two plastids are similar with 139-148 protein-coding genes, 28-31 tRNA genes, and 3 ribosomal RNA genes. The two genomes also exhibit very similar rearrangements compared to other sequenced plastid genomes. The tRNA-Leu gene of E. siliculosus lacks an intron, in contrast to the F. vesiculosus and other heterokont plastid homologues, suggesting its recent loss in the Ectocarpales. Most of the brown algal plastid genes are shared with other red-algal derived plastid genomes, but a few are absent from raphidophyte or diatom plastid genomes. One of these regions is most similar to an apicomplexan nuclear sequence. The phylogenetic relationship between heterokonts, cryptophytes and haptophytes (collectively referred to as chromists) plastids was investigated using several datasets of concatenated proteins from two cyanobacterial genomes and 18 plastid genomes, including most of the available red algal and chromist plastid genomes.
The phylogenetic studies using concatenated plastid proteins still do not resolve the question of the monophyly of all chromist plastids. However, these results support both the monophyly of heterokont plastids and that of cryptophyte and haptophyte plastids, in agreement with nuclear phylogenies.
The endosymbiotic captures of free-living prokaryotes, leading to the evolution of two types of organelles, mitochondria and plastids, are considered to be key events in the establishment and success of extant eukaryotic lineages [1, 2]. If all mitochondria are likely to be derived from an α-proteobacterium-like ancestor, possibly due to a single and ancient endosymbiotic event, the history of plastid acquisition in the diverse photosynthetic eukaryotic lineages seems to be more complex [3–6]. It is now largely accepted that a single primary endosymbiotic event involving the capture of a cyanobacterium led to an ancestral primary plastid, which subsequently gave rise to the green plastids of the terrestrial plants and chlorophytes, the rhodoplasts of red algae and the cyanelles of the glaucophytes. Once established, primary red or green algal plastids later spread independently to other eukaryote lineages via secondary or tertiary endosymbioses, whereby a photosynthetic eukaryote was engulfed by another eukaryote. Subsequently, plastids have also been independently lost and/or replaced in several eukaryote lineages, making the reconstruction of plastid evolution very difficult.
The current consensus of eukaryote phylogeny recognizes six putative super-clusters: Opisthokonta, Amoebozoa, Plantae, Chromalveolata, Rhizaria, and Excavata [7, 8], but this division is still debated [9, 10]. The three primary plastid-containing lineages, Viridiplantae, Rhodophyta and Glaucophyta form the "Plantae" or "Archaeplastida" supergroup. Photosynthetic eukaryotes with secondary or tertiary plastids have evolved independently in the Chromalveolata, Rhizaria, and Excavata [3, 5]. Among the secondary plastids, chlorophyll c-containing plastids have been shown to be derived from an ancestral red alga via a secondary endosymbiotic process that took place around one billion years ago [11, 12]. This type of plastid is found in Cryptophyta, Haptophyta, Heterokonta (also called stramenopiles) and Dinophyceae algae [3, 4]. Cryptophyta, Haptophyta and Heterokonta eukaryotic lineages have been grouped under the name of "Chromista" by Cavalier-Smith , and were later associated with the Alveolata, which includes the apicomplexans, dinoflagellates and ciliates, to form the "Chromalveolata" supergroup. In 1999, Cavalier-Smith proposed that all the chlorophyll c-containing plastids were derived from a single secondary endosymbiotic event and that the common ancestor of chromalveolates was originally photosynthetic . During diversification of the four extant chromalveolates lineages, photosynthetic capacity and/or the plastid organelle would then have been independently lost several times in different eukaryotic lineages, such as oomycetes (non-photosynthetic heterokonts), apicomplexa or ciliates (non-photosynthetic alveolates). According to this so-called "chromalveolate" hypothesis, plastid and nuclear genomes have similar evolutionary histories and one would expect monophyly of chromalveolate lineages in both nuclear and plastid phylogenies. This hypothesis has been extensively debated over the last ten years (for recent references, [5, 6, 15–17]), in part because of incongruence between plastid and nuclear phylogenies .
At the nuclear level, both the monophyly of heterokonts and alveolates and that of cryptophytes and haptophytes have received increasing support in recent years (for recent review and references therein, ). Two contemporary phylogenetic analyses based on expressed sequences tag surveys of the cryptomonad Guillardia theta and the haptophyte Emiliania huxleyi supported the close relationship of cryptophyte and haptophyte host lineages [18, 19]. In nuclear phylogenies alveolates and heterokonts often form a sister group [9, 20]. Unexpectedly, several large scale nuclear phylogenies have also shown a very robust relationship between members of Rhizaria, cercozoans, and these two main clades of the "chromalveolates", but with the exclusion of haptophytes and cryptophytes [18, 21, 22]. The debate is becoming more complex with the emergence of this new putative SAR (stramenopiles/alveolata/rhizaria) supergroup, as proposed by Burki . Recent phylogenetic studies employing large gene- and taxon-rich datasets continue to question the reality of the "chromalveolate" supergroup, by placing the haptophyte-cryptophyte clade as a sister group to the Plantae [24, 25] or by having them emerging independently and separately from the SAR supergroup . It is however well known that reconstructing the evolution of host cell lineages can be difficult, especially because of the chimeric nature of nuclear genomes and because large-scale horizontal gene transfers have occurred in some lineages during evolution .
Plastid genomes are less affected by horizontal gene transfer, with some rare exceptions . At the plastid level, the monophyly of chromist plastids is supported by analyses of single genes , of small numbers of concatenated plastid genes [12, 29], and of larger datasets of plastid-associated genes, i.e. plastid and nuclear-encoded plastid-targeted genes [30–35]. The relationships among chlorophyll c-containing plastids are, however, particularly hard to resolve and the results obtained are sometimes incongruent with host cell phylogenies . Haptophyte plastid genes more often group with the heterokont/dinoflagellate clade, than with those of cryptophytes [30, 31, 33, 34]. A clade grouping haptophyte and cryptophyte species has been inferred from some plastid gene phylogenies [31, 33–35]. This clustering was not strongly supported and was highly dependent on the plastid gene dataset used [31, 35] and/or on taxon-sampling [33, 34]. Other variant topologies have included the placing of dinoflagellates either as a sister-group to haptophyte plastids [30, 33] or to heterokont plastids [34, 35]. However, a close evolutionary relationship between haptophyte and cryptophyte plastids would be consistent with the presence of a unique laterally transferred bacterial rpl36 gene in both plastid genomes . Other multigene analyses produced alternative results, such as low support for the chromist clade  or paraphyly of red-algal derived plastids [35, 36].
The inability to recover congruencies between plastid and nuclear phylogenies, especially concerning haptophyte and cryptophyte monophyly, may be explained by poor taxon sampling of red algal and chromist species [31, 36]. Until now, insufficient sequence data have been available for the chromalveolates, in terms of both nuclear and plastid genome sequences. In public databases, more than 110 complete plastid genomes are available from land plants and green algae, whereas less than 15 sequences belong to red algae or photosynthetic chromalveolate species. Only five complete plastid sequences have been reported for red algal species [36–39]. For the chromalveolates, with the exception of the highly diverged red-algal derived plastid genomes of non-photosynthetic apicomplexans  and those of dinoflagellates [41, 42], complete plastid sequences have been published for two cryptomonads, Guillardia theta and Rhodomonas salina [11, 31], one haptophyte, Emiliania huxleyi , 3 diatoms, Odontella sinensis, Phaeodactylum tricornutum and Thalassiosira pseudonana [44, 45], one raphidophyte Heterosigma akashiwo  and one xanthophyte Vaucheria litorea .
Here we report the complete sequences of the plastid genomes of Ectocarpus siliculosus and Fucus vesiculosus. These sequences represent the first fully characterized plastid genomes from two distinct orders of Phaeophyceae, namely Ectocarpales and Fucales . We have performed phylogenetic studies using large sets of genes and different reconstruction methods. The results still do not resolve the question of the monophyly of chromist plastids. However the topologies of concatenated plastid protein phylogenetic trees support both the monophyly of heterokont plastids and that of cryptophyte and haptophyte plastids, in agreement with nuclear phylogenies.
The plastid genomes of E. siliculosus and F. vesiculosus are 139,954 and 124,986 base pairs (bp) in size, respectively, and both contain two inverted repeat regions (IR). These IRs divide the circular molecules into large (LSC) and small single copy (SSC) regions (Figure 1 and see general features of the two plastid genomes in additional file 1, Table S1). The size difference between the genomes was partly due to the presence of longer IRs of 8,615 bp in the E. siliculosus cpDNA. The 4,863 bp F. vesiculosus IRs contain only the ribosomal RNA operons. Another reason for the difference in size between the two genomes is the presence of longer intergenic regions in the E. siliculosus cpDNA. These sequences represent about 20% of the genome, whereas only 14.5% of the F. vesiculosus cpDNA is intergenic. The overall GC content is 30.7% for E. siliculosus and 28.9% for F. vesiculosus. In both Fucus and Ectocarpus, the cpDNA IRs contain two ribosomal operons encoding 16S, 23S and 5S rRNA. The F. vesiculosus and E. siliculosus plastid genomes are predicted to encode a total of 139 and 144 protein-coding genes, and 26 and 27 tRNA genes, respectively, when the duplicated genes in the IRs are counted only once. An intron was identified in the F. vesiculosus trnL2 gene, which encodes tRNA-Leu. Interestingly, its closest homologue in E. siliculosus cpDNA (93% nucleotide identity) does not possess an intron. The other tRNA-Leu genes in these plastid genomes, trnL1_1 of E. siliculosus and trnL1 of F. vesiculosus, present 98% sequence identity to each other and also lack the intron (Figure 2).
Plastid genome maps of E. siliculosus and F. vesiculosus. Genes on the outside of the circles are transcribed clockwise, whereas those on the inside counter clockwise. Annotated genes are colored according to the functional categories shown in the legend and the tRNA genes are indicated by the single-letter code of the corresponding amino-acid. Abbreviations: IR, inverted repeats; SSC, small single-copy region; LSC, large single-copy region.
The canonical group I intron in the plastid tRNA-Leu ( trnL ) gene. (A) Multiple alignments of plastid trnL genes from E. siliculosus (Es) and F. vesiculosus (Fv), showing the position of the group I intron located in the F. vesiculosus trnL2 gene. Structural features of tRNA are indicated on the two first lines. (B) Schematic phylogeny of the phaeophytes (redrawn from ), showing the presence (+) and absence (-) of the trnL intron in the different orders.
Gene organisation is highly similar between the two genomes and around two thirds of both molecules are conserved with respect to both gene identity and order. About 50% of each genome is incorporated into two large, locally collinear blocks. One block contains a large proportion of ribosomal protein-coding genes and covers up to 24% of the plastid genomes. The second block extends between trnM and atpA and covers 26-27.5% of each genome (Figure 1 and see the MAUVE analysis, provided in additional file 1, Figure S1). When compared to other heterokont plastid genomes, the number of genome rearrangements since the common ancestor of E. siliculosus and F. vesiculosus is comparable to the number of rearrangements that have occurred since the divergence of the three diatom species (see the reversal distance matrix provided in additional file 1, Table S2). This number increases more than twofold when higher taxonomic levels are considered (e.g., xanthophyte, raphidophyte or diatoms vs. brown algae).
The two plastid genomes are also very similar in terms of total gene content (Table 1). As already found in most of the green and red photosynthetic plastid genomes, excluding those of dinoflagellates , they possess the common core set of 44 genes, but with the exception of the psbZ gene (listed in additional file 2, Table S3). They also contain 42 additional protein-coding genes, which are only found in red algal and chromist plastid genomes, giving a total of 86 genes that are shared with the red plastid lineage (Table 1). These genes mainly encode essential plastid proteins, involved in transcription, protein synthesis and transport, and photosynthetic metabolism, such as components of ATP synthase, cytochrome, photosystem I and II complexes. Nine genes are shared by all the chromist plastid genomes, but not with all the red algal plastid genomes (Table 1). Another 27 genes are encoded by most heterokont plastid genomes, but are not consistently present in the plastid genomes of haptophytes, cryptophytes and red algae. Of the 17 remaining genes that are common to E. siliculosus, F. vesiculosus and V. litorea cpDNAs, nine are present in the raphidophyte plastid genome, but all are absent from the diatom cpDNAs (Table 1).
Gene content comparisons between plastid genomes.
E. siliculosus (Esil) and F. vesiculosus (Fves) cpDNAs were compared with those of other heterokonts, haptophyte (Hapto), cryptophytes (Crypto) and rhodophytes. Presence (+), absence (-) or presence of only a subset (+/-) of the genes listed in the first column is indicated. Species abbreviations: Vaucheria litorea (Vlit), Heterosigma akashiwo (Haka), Phaeodactylum tricornutum (Ptri), Odontella sinensis (Osin), Thalassiosira pseudonana (Tpeu), Emiliania huxleyi (Ehux), Guillardia theta (Gthe), Rhodomonas salina (Rsal), Gracilaria tenuistitipata (Gten), Porphyra purpurea (Ppur), Cyanidium caldarium (Ccal), Cyanidioschyzon merolae (Cmer).
(*) see additional file 2.
Among the unknown plastid proteins, the conserved open reading frames (ORFs) Ectocarpus Escp124 and Fucus ORF76 encode putative proteins of 222 and 229 amino-acids, with 48% identity between species. Both protein sequences are predicted to possess five transmembrane helices. A homolog of these plastid proteins is also encoded by the plastid genome of the xanthophyte V. litorea. Interestingly, the most similar protein in the public databases is a nuclear-encoded protein, Tic20, found in several apicomplexa species, including Toxoplasma and Plasmodium. The C-terminal ends of these proteins also share weak similarity with the conserved hypothetical plastid proteins encoded by the ycf60 genes of plastid genomes from E. huxleyi, G. tenuistitipata and Cyanidiales (see partial multiple alignment provided in additional file 3, Figure S2).
For phylogenetic analyses, three concatenated amino acid datasets were constructed (see additional file 2, Table S3) and analysed using maximum likelihood (ML), neighbour joining (NJ) and Bayesian inference (BI) methods. For the ML analyses, cpREV and JTT amino acid substitution matrices gave the same tree topologies (data not shown). Trees were constructed using a dataset of 44 proteins (8,652 amino-acid positions) from a broad range of species, including 13 taxa of red-algal type plastids, 4 taxa of Viriplantae, the glaucophyte Cyanophora, and two cyanobacteria (see additional file 2, Table S4 for species list). Plastid sequences of chlorophyll-c-containing dinoflagellates were not included in the analyses because this would have resulted in a significantly reduced common protein dataset. All but four of the nodes in the trees were well resolved and supported by the three different methods (Figure 3). As observed in previous studies, the red-algal and red-derived type plastid sequences grouped together, whereas green plastids formed a separate monophyletic group, derived from the cyanobacterial sequences. In all our analyses, the glaucophyte plastid from Cyanophora emerged at the base of the green plastids, with high confidence in the BI analysis but with low bootstrap support in the ML and NJ analyses (56 and 66%). Among the green plastids, the order of branching of Mesostigma and Arabidopsis was not fully resolved, but the phylogenetic position of Mesostigma within the Streptophyta has been studied recently, with expanded taxon sampling of the Viridiplantae . In the other part of the tree, the Cyanidiales grouped together outside a strongly supported clade that includes the Florideophyceae and Bangiophyceae, together with the heterokont, the haptophyte and the cryptophyte plastids. The trees also strongly grouped all heterokont plastids together, with a split between diatom plastid sequences and those of the raphidophyte and phaeophytes. The Florideophyceae and Bangiophyceae branched together with high confidence using all the methods, as did the two species of cryptophytes. In these phylogenetic studies, the haptophyte E. huxleyi emerged as the closest branch to cryptophytes in the BI analysis but this topology had low bootstrap support in the ML analysis (67%), and no support in the NJ analysis. The order of branching of the following three major groups: heterokonts, (florideophyte+bangiophyte), and (cryptophytes+haptophyte), was also uncertain. In fact, the clade of heterokonts and (cryptophyte+haptophyte) plastids was only well-supported by the BI analysis, and very poorly (49%) or not supported by the ML and NJ analyses, respectively.
Maximum likelihood tree constructed from a dataset of 44 concatenated proteins from 20 plastid or cyanobacterial complete genomes. PHYML and Neighbour Joining trees were constructed based on 8,652 amino-acid sites using cpREV and JTT matrices, respectively. When above 65% and different, bootstrap values (1000 replicates) are provided for PHYML (first value) and NJ (second value) analyses. The thick branches represent ≥ 0.9 posterior probability for Bayesian inference analysis.
To strengthen the topology of branching in the region of the tree corresponding to the red-alga derived plastids, we decided to increase the protein dataset by focusing the phylogenetic studies on 13 species. A full dataset of 83 plastid-encoded proteins (16,738 amino acid positions) was analyzed in parallel with a sub-dataset of 33 slowly-evolving plastid proteins, excluding the fast-evolving proteins (Figure 4). Using the PhyloBayes software, the values of the saturation index have been calculated for each dataset. The observed and predicted homoplasy rates are, respectively, 1.98 ± 0.05 and 2.00 ± 0.05 for the 83-protein dataset, and 1.01 ± 0.03 and 1.00 ± 0.04 for the 33-protein dataset. These results show that the exclusion of the fast-evolving proteins tends to decrease the global level of saturation. Both trees still showed two well-supported plastid groups, corresponding to heterokonts and the Cyanidiales. Globally, the branches that were strongly supported by the 44-protein dataset were maintained. Interestingly, the group formed by haptophyte and cryptophyte plastids had greater support in the ML analysis (97% bootstrap value) but little support with NJ method with the 83-protein dataset (Figure 4A) and was strongly supported by the three methods in the analyses of the slowly-evolving proteins (Figure 4B). Compared to the 44-protein trees, the 83- and 33-protein trees differed in their branching patterns with respect to the (florideophyte+bangiophyte) and the (cryptophytes+haptophyte). Both the ML and NJ trees built with the dataset of 83 proteins clustered these two groups with high bootstrap values, whereas the red algal plastids were found outside the clade of heterokont/(cryptophyte+haptophyte) plastids in the 33-protein trees. This latter topology was strongly supported in the ML, NJ and BI analyses (Figure 4B).
Maximum likelihood trees constructed from two datasets of concatenated proteins from 13 completed plastid genomes of red algal and chromist species. A) The full dataset of 83 proteins (16,738 amino-acid sites), and B) the 33 slow-evolving proteins dataset (8,404 amino-acid sites) were used for PHYML and Neighbour Joining analyses, using cpREV and JTT matrices, respectively. When above 65% and different, bootstrap values (1000 replicates) are provided for PHYML (first value) and NJ (second value) analyses. The thick branches represent ≥ 0.9 posterior probability for Bayesian inference analysis.
To further test these phylogenetic positions, we compared different topologies by performing the approximately unbiased (AU) and Shimodaira-Hasegawa (SH) tests (Figure 5). Four topologies were selected to evaluate two hypotheses: 1) Are chromist plastids indeed monophyletic; 2) Are haptophyte plastids specifically related to cryptophyte plastids to the exclusion of heterokont or (florideophyte+bangiophyte) plastids? Our analyses showed that, for the 83- and 33-protein datasets, the best topologies correspond to the trees shown in Figure 4A (topology I) and 4B (topology II), respectively. Considering the two datasets, these two topologies had a much higher likelihood in AU and SH tests, than topologies that place either the haptophyte plastid outside a (cryptophyte+(florideophyte+bangiophyte)) clade (topology III) or that propose that the closest relationship is between heterokont and haptophyte plastids (topology IV). For the 83-protein dataset, the three topologies (II, III and IV) were significantly rejected with p value under 0.05 for AU tests, but not for SH tests. For the 33-protein dataset, the topology I could not be significantly rejected by both tests (P = 0.09; P = 0.24), whereas the other topologies were refuted with P values below the significance level.
Likelihood AU and SH tests of four alternative tree topologies, using the two different datasets. In tree topologies, the abbreviations used are: He, Heterokont plastids; Ha, Haptophyte plastids; Cr, Cryptophyte plastids; FB, Florideophyte+Bangiophyte plastids; Cy, Cyanidiales plastids. In the table, the best tree is indicated by a star. Boldface type corresponds to P < 0.05.
Until very recently, all of the plastid genomes available for the heterokont lineage were from diatoms (O. sinensis, P. tricornutum and T. pseudonana), and these genomes featured conserved gene content and gene clusters . Along with the recently published plastid genomes of two strains of the raphidophyte H. akashiwo ) and the xanthophyte V. litorea , the complete sequences of the E. siliculosus and F. vesiculosus plastid genomes presented here significantly increase the number and diversity of heterokont plastid genomes available, allowing a more extensive comparison of these genomes. Our results support a unique origin for all heterokont plastids, based on similarity in terms of gene content (Table 1) and on their forming a strongly supported group in all our phylogenetic analyses (Figures 3 and 4). These analyses were, therefore, consistent with the well established monophyletic origin of the heterokont host cell [10, 21, 23]. However, despite their common origin, genome comparisons revealed specific traits in the evolution of heterokont plastids during the diversification of the different heterokont orders.
All the Xanthophyceae or Phaeophyceae plastid genomes analyzed to date, including that of F. vesiculosus described here, contain a tRNA-Leu gene with a single intron [47, 50]. This canonical group I intron is thought to have been acquired from the ancestral cyanobacterial endosymbiont and to have been lost independently in several lineages of plastids, including the red algae and almost all their secondary plastid derivatives, except the Xanthophyceae/Phaeophyceae lineage . Given the high sequence similarities found between these plastid tRNA-Leu genes in V. litorea, F. vesiculosus and E. siliculosus (86 to 93% sequence identity), they are probably derived from the same ancestral tRNA-Leu gene, containing the endosymbiotic derived intron. In the E. siliculosus gene, its loss is likely to be recent because it is still present in the plastid tRNA-Leu genes of Laminariales species and of two Ectocarpales, Pylaiella littoralis and Scytosiphon lomentaria (Figure 2) . This feature is evidence for continued evolution of brown algal plastid genomes within the recently-derived order Ectocarpales [48, 51].
In terms of gene content, the brown algal plastid genomes seem to be more closely related to those of V. litorea and of H. akashiwo than to those of diatoms and this is consistent with evolutionary relationships of the nuclear compartment [51, 52]. Although the structural organisation of plastid genomes is highly conserved within the brown algae (additional file 1, Figure S1) and within diatoms , there is evidence of intensive gene rearrangements having occurred earlier in evolution after the separation of diatoms from raphidophytes, xanthophytes and phaeophytes. Moreover, more extensive gene losses seem to have occurred in diatom plastid genomes than in other heterokonts (Table 1). These genes could have been transferred to the nucleus or replaced by bacterial counterparts, functionally-integrated through horizontal gene transfer as often seen in the diatom nuclear genome . All these data, together with the topologies of plastid phylogenetic trees (Figure 3 and 4) support a relatively ancient split between diatoms and the raphidophyte-phaeophyte clade, in agreement with the early divergence of the Bacillariophyceae from the other photosynthetic heterokont lineages in nuclear phylogenies [51, 52].
What is the closest relative of the heterokont plastid clade?
A critical step for the transformation of the endosymbiont into a permanent organelle was the establishment of an efficient protein targeting and translocation system from the nucleus to the plastid [1, 4]. The canonical Tic/Toc protein import complex of secondary plastids was inherited from the first red-algal endosymbiont, with components of both eukaryotic and eubacterial origin [1, 54, 55]. Both brown algal plastid genomes have a gene (Escp124 in Ectocarpus and ORF76 in Fucus) that shares similarity with the Tic20-like genes in xanthophyte, haptophyte and red algal plastid genomes. There are no homologues of this gene in raphidophyte, diatom and cryptophyte plastid genomes (Table 1). This plastid-encoded Tic20 gene (also called ycf60) encodes a small membrane protein and is thought to be endosymbiont-derived with a cyanobacterial origin [1, 54, 55]. Interestingly, the highest similarity scores of brown algal and xanthophyte plastid ORFs were found with a homologous protein encoded in the nucleus of several apicomplexan species, including Toxoplasma and Plasmodium. In T. gondii, this Tic20-like protein has been shown to be essential for protein import into the apicoplast  and is therefore likely to be linked to apicoplast evolution . Escp124 and ORF76 protein sequences are also predicted to have five transmembrane regions, suggesting a putative location in the plastid membrane. It is now widely accepted that alveolates and heterokonts are derived from a common host cell ancestor. Escp124 and ORF76 could be footprints of a common photosynthetic ancestor of heterokonts and apicomplexans. This hypothesis is in agreement with several recently published studies suggesting that contemporary alveolates are derived from a photosynthetic ancestor. These studies include the characterization of a photosynthetic alveolate closely related to apicomplexan parasites , the identification of plastid-derived genes in a non-photosynthetic alveolate  and the identification of remnant algal-related genes in ciliates .
Is the monophyly of chromist plastids still in doubt?
All the phylogenetic analyses carried out in this study suggest that the red algal ancestor of chromist plastids was more closely related to the more recently evolved red algae (Florideophyceae and Bangiophyceae) than to Cyanidiales, confirming the report by Sanchez-Puerta et al. . It is worth mentioning that Cyanidiales are extremophile unicellular red algae and have been shown to be the earliest diverging red algal group. They emerge very distinctly from the other multi-cellular red algal taxa in nuclear phylogenies . Within the chromist plastid clade, most plastid phylogenies have hitherto featured a clade grouping haptophyte and heterokont plastids [29, 30] and the relationship between haptophyte and cryptophyte plastids was never strongly recovered in previous studies [31, 33–35]. These conflicting results have been discussed in the light of taxon- or data-sampling limitations [31, 34]. Our results do not support a preferential link between heterokont and haptophyte plastids, neither in terms of gene content (Table 1) nor phylogenetic relationship. Moreover, these phylogenetic analyses strongly support the monophyly of haptophyte and cryptophyte plastids (Figure 4). In general, addition of taxa has been shown to reduce support for previously robust clades, whereas the addition of more positions has been shown to increase support regardless of the topology . Indeed this topology has high confidence, especially when the dataset of genes was increased or slowly-evolving proteins were selected. Moreover, whatever the datasets used, with or without fast-evolving proteins, AU tests significantly rejected topologies separating haptophyte and cryptophyte plastids. The monophyly of haptophyte and cryptophyte plastids is in complete agreement with recent nuclear phylogenies that support a common origin of their host cells [18, 19] and with a previous study that identified a unique, laterally transferred bacterial gene in plastid genomes from these two groups .
Horizontal gene transfers into plastid genomes happened only rarely after the establishment of the endosymbiont within the host cell. The major events which can affect the structure of the organelle genome are gene transfer to the nucleus and/or gene loss. Indeed, red algal plastid genomes possess more than 230 protein-coding genes while those derived from a red-algal endosymbiont encode less than 150, of which more than half are shared by all the genomes (Table 1). An exceptional case is the drastic reduction of plastid minicircular genomes of peridinean dinoflagellates . In other plastid genomes derived from a red algal endosymbiont, the remaining pool of genes is the result of losses that have occurred independently in the different lineages and of retention that could constitute interesting fingerprints of ancestral plastid gene contents. A comparison of gene content did not reveal any particular relationships between heterokonts and cryptophytes/haptophytes and therefore did not provide support for a common history. For the phylogenetic analyses, whereas the use of the complete dataset supported a different red-algal origin for heterokont plastids (Figure 4A), monophyly of all chromist plastids was recovered when the most conservative data was used in the phylogenetic reconstruction (Figure 4B), as previously observed [33, 36]. Other studies have also shown the disruption of the monophyly of chromist plastids [31, 33, 35]. Our dataset and taxa sampling are not sufficient to completely refute or confirm the polyphyly of chromist plastids, given that the monophyletic topology does not significantly exclude the polyphyletic one when using the slow-evolving proteins (Figure 5). The slowly evolving proteins may reflect more ancient divergences, but the exclusion of fast-evolving proteins decreases the number of analysed amino-acid positions by a factor of two and the issue of dataset size is critical in plastid multi-gene phylogenetic studies . In the context of the chromalveolate hypothesis, the major separation between cryptophyte/haptophyte and heterokont/alveolate host cells is more likely to have occurred very early after the secondary endosymbiosis. An alternative origin of heterokont/alveolate plastids has recently been proposed, with laterally transferred red-algal derived plastids from the haptophyte/cryptophyte clade into the heterokont/alveolate lineage [5, 61]. The monophyly of all chromist plastids is also consistent with this tertiary endosymbiosis hypothesis, if the heterokont plastids were captured before the divergence between the haptophyte and cryptophyte host lineages. It is however clear that plastid phylogenies alone will not resolve these currently discussed questions about vertical or lateral inheritance of red-algal derived plastids [16, 17].
It has been shown that plastid metabolism could also involve a significant number of nuclear-encoded proteins recruited from diverse origins, such as laterally transferred genes from Chlamydiae  or green algae [63–65]. Phylogenies based on nuclear-encoded plastid-targeted proteins could then trace and reflect complex evolutionary pathways, whereas phylogenies based on complete sets of plastid-encoded genes should better reflect the evolution of the organelle since its engulfment by the host cell. As illustrated by the high resolution of the heterokont plastid clade, additional plastid genomes from haptophytes, cryptophytes and dinoflagellates, but certainly also from other evolved red algae will be required to fully resolve chromist plastid phylogenies and, subsequently, test the different hypotheses concerning red-algal derived plastid origin(s).
In conclusion, this study of two novel plastid genomes belonging to brown algal species has shown the importance of increased taxon sampling when analysing phylogenetic relationships based on large datasets. As expected, the phylogenetic analyses showed that heterokont plastids are monophyletic, although very diverse in terms of gene arrangement. There is also evidence that some heterokont (phaeophyte and xanthophyte) plastids have retained finger-prints indicating a common ancestory with alveolate plastids. Moreover, monophyly of haptophyte and cryptophytes plastids was strongly recovered whatever the dataset or the method used, in complete agreement with large-scale nuclear phylogenies.
E. siliculosus strain Ec32 (CCAP1310/4) was cultivated under laboratory conditions as previously described  and total DNA was prepared according to the method of Apt et al. .
F. vesiculosus was collected from the field (Ria Formosa Natural Park, Portugal) and DNA was extracted from isolated plastids. Briefly, 20 g apical tissue free from visible epiphytes was cleaned by 2 min exposure in bleach (1% in filtered natural seawater), rinsed and homogenized in 100 mL cold extraction buffer containing 0.05 M MES (pH 6.1), 0.5 M sorbitol, 1 mM MgCl2, 1 mM MnCl, 0.5 mM K2HPO4, 5 mM EDTA, 1% BSA, 2% PVP, and 2 mM Na-ascorbate. The homogenate was passed through cotton gauze and 1 μm nylon mesh, centrifuged for 2 min at 2000 × g at 4°C. The supernatant was transferred to new 50 mL tubes and centrifuged at 5000 × g for 5 min. The pellet containing plastids was gently resuspended in a total of 10 mL of extraction buffer and re-centrifuged (5 min, 5000 × g, 4°C). The pellet was resuspended in new extraction buffer and applied to a 30:50% sucrose step gradient. After centrifugation for 45 min at 5000 × g (4°C), the plastids were removed from the 30 and 50% sucrose interface, carefully resuspended in a buffer containing 0.05 M HEPES (pH 7.5), 0.5 M sorbitol, 1 mM MgCl2, 1 mM MnCl, 0.5 mM K2HPO4. After observation under the microscope to determine the quality of the plastid preparation, plastids were centrifuged again for 10 min at 5000 × g. The supernatant was removed and plastids were stored at -80°C prior to DNA extraction using the CTAB method .
For E. siliculosus, several scaffolds corresponding to plastid DNA were detected by similarity to other plastid genomes in an assembly of shotgun sequenced total genomic DNA produced by Genoscope http://www.genoscope.cns.fr/spip/-Ectocarpus-siliculosus-.html. These scaffolds were removed from the rest of the sequence data and the sequence of the circular genome was completed by manual assembly and PCR amplification of gap regions. The plastid genome was annotated using the GenDB interface , available through the bioinformatics' facilities of the Marine Genomics Europe Network of Excellence.
For F. vesiculosus, two main strategies were used to obtain the full genome sequence: 1) Plastid-enriched DNA (cpDNA) was digested (HindIII), and cloned into pBluescript II (SK-) (Stratagene). Positive colonies were randomly picked and those with inserts > 1 Kb after digestion were end-sequenced. 2) Plastid DNA was used to make uncloned, adaptor-ligated libraries for a genome-walking approach using long-distance PCR (GenomeWalker⃦ kit, Clontech, Palo Alto, USA). Gaps in the genome were filled by PCR, based on predicted gene organization in red-lineage plastids. The F. vesiculosus plastid genome was assembled using CodonCode Aligner (CodonCode Corp., USA). Protein coding genes and putative open reading frames (ORFs) were identified by database comparison (Blastx, ) and online tools (ORF Finder, NCBI). Ribosomal and tRNA genes were identified using RNAmmer http://www.cbs.dtu.dk/services/RNAmmer/  and ARAGORN http://130.235.46.10/ARAGORN/ , respectively.
The two plastid sequences are available under the following EMBL accession numbers: E. siliculosus (FP102296) and F. vesiculosus (FM957154). The physical maps of the circular genome were drawn using GenomeVx (freely available at wolfe.gen.tcd.ie/GenomeVx/).
For global gene content comparisons, the two brown algal plastid genomes were analysed together with those of the xanthophyte V. litorea  and the raphidophyte H. akashiwo  plus the 15 algal sequences and the two reference cyanobacterium genomes analysed by Khan et al. . The phylogenetic analyses were conducted with a total of two cyanobacterium and 18 plastid genomes, including four complete genomes from red algae and nine from chromist species (see additional file 2, Table S4). Three concatenated protein datasets were constructed from these genomes (additional file 2, Table S3). The first dataset corresponded to the 44 plastid protein-coding genes shared by all 20 species. In addition, a larger dataset of 83 proteins was built using all the plastid proteins common to the 13 red, cryptophyte, haptophyte and heterokont algae. A list of gene synonyms used during this study is provided in additional file 2 (Table S5), together with complementary gene annotation information. Single and concatenated protein sequences were aligned using MUSCLE  and each alignment was further optimised using GBlocks . Datasets for individual genes were first analysed using maximum likelihood, in order to eliminate genes derived from horizontal transfer. Only the rpl36 protein phylogeny suggests a non red-algal origin for the haptophyte and cryptophyte genes, which grouped far outside the red algal and heterokont cluster, as previously reported . This gene was therefore eliminated from the full 83-protein dataset. The average distance was calculated for each protein with Tree-Puzzle . We excluded 50 "fast-evolving" protein sequences to produce a dataset of 33 "slowly-evolving" proteins, which present an average distance under the threshold of 0.6. This value was chosen in order to conserve at least half of the analysed positions for the 33-protein dataset.
Phylogenetic analyses of concatenated protein data were carried out on 8,652, 16,738 and 8,404 amino acids corresponding, respectively, to the 44-, 83- and 33-protein datasets. A Maximum Likelihood (ML) approach was used to reconstruct phylogenetic trees using PHYML  under both cpREV  and JTT  amino acid substitution matrices with 4 gamma-distributed rate categories and estimated invariable sites. The neighbor-joining (NJ) method was performed with JTT amino acid substitution matrix using the Phylip software package . For both the ML and NJ methods, bootstrap analyses of 1,000 replicates were used to provide confidence estimates for the phylogenetic tree topologies. Finally, Bayesian inference (BI) analyses were performed with PhyloBayes 3.1d  using 4 gamma-distributed rate categories. PhyloBayes was run using the site-heterogeneous CAT model as described in Lartillot et al.  and two independent chains with a total length up to 25,000 cycles, discarding the first 25% as burn-in and calculating the posterior consensus tree. Furthermore, a saturation test was performed on the different datasets to calculate the observed and predicted homoplasy rates as described in the PhyloBayes user manual.
To statistically test the topologies of the trees, approximately unbiased (AU) and Shimodaira-Hasegawa (SH) analyses were performed on four topologies. These were selected to reflect the relative positions of haptophyte, cryptophyte and heterokont plastids and were generated by rearrangement of ML and NJ trees (if required). Site likelihoods for each topology were calculated using Tree-Puzzle on the two different concatenated datasets and the AU/SH tests were performed using CONSEL 0.1 .
Gildas Le Corguillé, Gareth Pearson contributed equally to this work.
We are grateful to Alexander Goesmann and Virginie Mittard-Runte for providing access to the GenDB platform and to Hameed Khan and John M. Archibald for providing their 45 concatenated-protein alignment. We also thank Nicolas Lartillot for making available the last version of Phylobayes 3.1d. This work, performed within the framework of Marine Genomics Europe NoE 7 (EC contract N° GOCE-CT-2004-505403), was partially supported by the Brittany Regional Council (G. L. C. grant) and by FCT-FEDER (Portugal).
GLC, BG, CL annotated the E. siliculosus cpDNA. GLC, CL carried out the phylogenetic analysis. GP, MV, CV sequenced and assembled the cpDNA of F. vesiculosus. GP annotated the F. vesiculosus genome. GLC, GP, CL performed the comparative genomic analyses on both plastid genomes. AFP obtained and provided E. siliculosus cultures. CJ, BV sequenced and provided plastid contigs of E. siliculosus. EC, XB participated in design of phylogenetic and statistical approaches. GLC, GP, JMC contributed to manuscript writing. JMC helped to supervise the project. CL conceived and designed the project, wrote the manuscript. All authors read and approved the final manuscript.

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Appellate review should ensure that no death sentence is handed down in an arbitrary and capricious manner. When the U.S. Supreme Court voided forty state death penalty statutes in Furman v. Georgia, it held that unrestricted jury discretion in imposing a death sentence resulted in arbitrary sentencing. Four years later, in Gregg v. Georgia, the U.S. Supreme Court reinstated the death penalty, holding that capital punishment does not violate the Eighth Amendment prohibition against cruel and unusual punishment, provided that a death sentence is not arbitrary and capricious.
After Gregg, all capital crimes are prosecuted in a bifurcated trial, with the guilt–innocence phase conducted separately from the penalty phase. If the jury finds the defendant guilty, the same jury will turn to the question of whether to impose a death sentence. Capital defendants are entitled to meaningful appellate review of both stages of the bifurcated trial.
The Court declared that the sentencing scheme in Gregg was constitutional because the appellate court would review the death sentence in every case to determine whether the jury had imposed death under the influence of passion or prejudice, whether the evidence supported the jury finding of a statutory aggravating circumstance, and whether the death sentence was proportionate to sentences in similar cases. In Proffitt v. Florida, handed down the same day as Gregg, the Court endorsed Florida’s appellate review process because it guaranteed a review of aggravating circumstances and proportionate sentencing.
Most of the thirty-eight death penalty states provide for automatic appellate review of all death sentences, though in denying cert in U.S. v. Hammer the Court implicitly held that a mandatory review is not required by the Constitution. Furthermore, in Gilmore v. Utah, the Court found that a defendant could, with full knowledge of his right to seek an appeal, waive that right. In Sattazahn v. Pennsylvania, the trial judge imposed a life sentence after a jury hung during the sentencing phase. The defendant appealed, the case was reversed, the defendant was retried, and he received a death sentence at the retrial. On appeal, the Court held that there was no double jeopardy bar to the death sentence on retrial because the life sentence at issue did not amount to an acquittal on the basis of the government’s failure to prove one or more aggravating circumstances beyond a reasonable doubt at sentencing during the first trial.
After completing the direct appeals process, capital defendants may exercise their right to file a petition for habeas corpus review. These petitions usually raise new issues that were not expressly part of the trial. Ineffective assistance of counsel, police and prosecutor misconduct, and newly discovered evidence are typical subjects for habeas petitions. The reviewing court must assess whether the alleged error substantially affected the jury in deciding to sentence the defendant to death.
The Federal Death Penalty Act sets out appellate guidelines used in most capital cases. The act requires the appellate court to review the entire record, including the procedures used and evidence admitted during the sentencing and to examine the aggravating and mitigating factors enumerated in the statute. Whereas the appellate court may not reverse for harmless error, it must reverse if it concludes that the jury imposed the death sentence under the influence of passion, prejudice, or any other arbitrary factor.
Golden, Sara L., Constitutionality of the Federal Death Penalty Act: Is the Lack of Mandatory Appeal Really Meaningful Appeal? Temple Law Review (Summer 2001): 429–468.

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Post-Trial Motion Is The Way To Go!
In Brown v. Mortensen, Case No. B281704 (2d Dist., Div. 1 Jan. 3, 2019) (published), the 2/1 DCA decided that no jury trial is available for attorney’s fee requests under the Confidentiality of Medical Information Act (CMIA), Civil Code section 56.35. Rather, a post-trial motion is the way to seek recovery of such fees.
Supplemental Evidence Was Properly Not Considered In The Trial Judge’s Discretion.
If the lower court grants you supplemental briefing, make sure you do so in line within the scope of the supplemental briefing allowed by the trial judge. MetLife Securities, Inc. v. Brandt, Case No. B282949 (2d Dist., Div. 3 Dec. 18, 2018) (unpublished) demonstrates that a motion will be denied where supplemental briefing exceeds what was authorized.
In this particular situation, cross-complainants did prevail, filing a motion to recover attorney’s fees based on a contractual clause which was an indemnity rather than a fees clause and offering no support as to the reasonableness of the lodestar request/counsel’s hourly rates. The lower court’s tentative was to deny on this basis, but it did allow them supplemental briefing to support the amount of the fee request. Cross-complainants fired their counsel and replaced with new counsel which filed large supplemental papers containing new fee entitlement bases and proof to support a $2.3 million fee request. The lower court denied fees altogether, finding the supplemental papers were outside of what it authorized.
The appellate court affirmed. The supplemental papers effectively abandoned reliance on the indemnity provision as a fee predicate, and the lower court did not abuse its discretion in refusing to consider supplemental entitlement arguments not raised earlier and which exceeded the scope of what was discretionarily allowed to be filed in the first place.
Fifth Circuit Sided With Two Other Circuits That Fees Can Be Denied In Unusual Circumstances, With Shocking Nature Of The Request Plus Conspiracy To Manufacture The Claim Solidifying The Fee Denial.
Davis v. Credit Bureau of the South, No. 17-41136 (5th Cir. Nov. 16, 2018) (per curiam) demonstrates how federal courts, even under a statutory scheme where fee recovery is mandatory, can affirm a fee denial where unusual circumstances show it would be unjust to award anything to plaintiff’s attorneys.
What happened in this one was that plaintiff sued defendant on the theory that defendant misrepresented itself as a credit bureau in its attempt to collect on a $107.29 water bill via a collection letter and a subsequent phone call, suing under the Fair Debt Collection Practices Act (FDCPA). The district judge, based on a magistrate recommendation, found a violation and awarded $1,000 statutory damages, but nothing more.
Plaintiff then sought to recover $130,410, an amount which shocked the district court and resulted in a denial of any fees.
There is a fee-shifting provision under the FDCPA which is codified at 15 U.S.C. § 1692k(a)(3) in favor of prevailing plaintiffs. But there is a split in thinking on whether it is mandatory in nature, although worded that way. The Third and Fourth Circuits determined, contrary to other circuits, that a district judge can deny fees in “unusual circumstances,” such as bad faith. The Fifth Circuit followed suit under the facts of this particular case.
Here is what cemented why “unusual circumstances” were present: (1) the case was easily resolved through one Fifth Circuit opinion, such that not a lot of work was justified to get to the ultimate merits result; (2) the request was shockingly excessive in nature, with duplicative and inefficient work being contained in the supporting substantiation; and (3) there was some evidence that plaintiff “conspired” with attorneys to create a claim in order to generate a high fee request. Fee denial affirmed.
Appellate Court Found Unclean Hands Even Though That Ground Was Not Entertained By Lower Court.
Trees, trees, trees! Boy, do they generate disputes between neighbors when views are impacted. The next case is extraordinary because the reviewing court reversed an attorney’s fees award, on its own, based on the equities—too many fees spent on a tree trimming dispute which should have been resolved had the two parties been true neighbors.
Katz v. Puda, Case No. D071644 (4th Dist., Div. 1 Aug. 24, 2018) (unpublished) was a dispute between neighbors, where there was no homeowner association, about obstruction of view by untrimmed trees. There was a recorded Declaration of Restrictions (DOR) requiring the trimming of trees, but the neighbors could not reach a resolution and submitted the dispute to a three-day bench trial, where the lower court found the DOR unenforceable and awarded the prevailing neighbor $42,542.50 in attorney’s fees.
The Fourth District, Division 1, on appeal, affirmed the lower court’s denial of tree trimming relief, but on a different ground because it did believe that the DOR was sufficiently clear as to be enforceable. However, it found that the whole dispute was such that both sides were guilty of unclean hands. The dispute should not have escalated to the point of consuming three days of a trial court’s time and attorney’s fees of over $40,000 by one side, with the potential for ongoing enforcement litigation in the courts. That resulted in the wholesale reversal of the fee award—with the appellate court obviously peeved by both parties’ failure to act in a neighborly manner.
BLOG OBSERVATION—The “winning” appellate attorney as far as obtaining a reversal of the fee award was Barry A. Ross, an Orange County-based attorney who does a lot of HOA work and who is an acquaintance of co-contributor Marc. Congratulations, Barry.
This Was Tantamount To Making Improper Additional Findings Of Fact To Earlier Decision.
In a tutorial on the proper use of a motion to vacate judgment under CCP § 663a, Master Plumbing and Sewer, Inc. v. Fountaine West Condominium Owners Assn., Case No. A143711 (1st Dist., Div. 2 May 3, 2018) (unpublished) shows what can and cannot be done. In this case, the trial judge issued a detailed Statement of Decision indicating there was a factual basis for a fee award to the prevailing party based upon clauses in some invoices. However, in response to an opposition crafted through the vehicle of a motion to vacate judgment later, the trial judge changed his mind and excised the attorney’s fees entitlement ruling. The 1/2 DCA found that this was reversal error, reinstating the original judgment (complete with the fee entitlement decision). The reason? A section 663a motion does not allow a trial judge to change any finding of fact. A trial judge can find that an incorrect legal conclusion or erroneous judgment was reached, but can only do so based on the facts already found to exist. The lower court effectively made additional findings of fact, something which cannot be done under section 663a.
In Pari Delicto Exception Sustained the Fee Recovery.
What happened in Assadian v. Parsi, Case No. G054037 (4th Dist., Div. 3 Dec. 14, 2017) (unpublished) is that a business consultant, who apparently practiced law in an unauthorized manner, did not prevail on contract and other claims against his clients. Just to make the suffering more severe, consultant plaintiff was socked with $346,993.39 in attorney’s fees based on a fees clause in the consultant agreement based on losing the contract claims against his former clients.
Knockout punch. Sugar Ray Robinson v. Bobo Olson. 1956. Library of Congress.
On appeal, plaintiff basically said “unfair,” because you cannot award fees where the underlying contract is illegal, which happens to be the general rule under California law. However, as with most things in life, there are exceptions. One is the “in pari delicto” exception, which does allow recovery where both parties are not equally blameworthy. Well, that one showed why fee recovery was not inequitable against consultant plaintiff, because here his activities resulted in the contract being found illegal.
Acting Presiding Justice Moore authored the 3-0 panel decision.
Galindo v. Polakoff, Case No. D071555 (4th Dist., Div. 1 Nov. 29, 2017) (Unpublished)—Equity/Offsets.
R.W.L. Enterprises v. Oldcastle, Inc., Case No. D070189 (4th Dist., Div. 1 Nov. 29, 2017) —Equity/Contractual Integration.
This second case really came down to whether a subsequent credit application, entered into about nine years later (with a potential attorney’s fees clause), should be interpreted as integrated (or, in essence, incorporated by reference) into an earlier contract. The trial judge bought into the integration argument, awarding $180,120 to a party successfully defending a breach of contract claim. This result got reversed as a matter of law. There was too much of a temporal gap to allow for an integration analysis, whether under Civil Code section 1717 or the UCC. There is a great discussion for practitioners on the “battle of the forms” issue and the extent to which Boyd v. Oscar Fisher Co., 210 Cal.App.3d 368 (1989) should apply under the circumstances (or is still good law on certain aspects of its reasoning).
Throckmorton v. Soria, Case No. A144748 (1st Dist., Div. 2 Nov. 29, 2017) (Unpublished)—Appealability.
The third decision is a case where—alas!—the appellant failed to appeal from a separately appealable fee order and failed to provide motion papers/fee hearing reporter’s transcript. The appeal was doomed for two independent reasons—failure to appeal a separate appealable order and failure to provide an adequate record.
2437 Piedmont Avenue, LLC v. Schwartz, Case No. A150274 (1st Dist., Div. 2 Nov. 29, 2017) (Unpublished)—Fee Clause Interpretation.
This last one is where an owner/landlord sued for fraud, but dismissed its action, with tenant then moving for attorney’s fees under a lease fees clause. The trial court denied the fee request, which was sustained on review. The problem was that the tort claims were not brought to “enforce” the lease such that the narrow fees clause language did not provide a basis for fee entitlement.
Result No Different Even If Classic Attorney’s Fees Lien Involved.
All Intervening Procedural Steps Were Validated, But Appellate Court Did Not Award Defendant Costs On Appeal.
In Morschauser v. Continental Capital, LLC, Case No. E062278 (4th Dist., Div. 2 Dec. 12, 2016) (unpublished), a defendant corporation successfully obtained summary judgment against plaintiff and then moved to recover $133,644.50 in attorney’s fees and costs from losing plaintiff. Plaintiff did not oppose, but filed a request for continuance by noting that defendant was a suspended corporation and could not proceed. The trial judge granted the attorney’s fee request in full, triggering an appeal by plaintiff.
The fee order was affirmed. On its own motion, the appellate court addressed this incapacity by offering respondent/defendant one of three options: (1) present proof it was not suspended; (2) present proof a certificate of revivor had been filed; or (3) file a declaration detailing when a certificate of revivor was going to be filed and why it had not been filed already. Defendant winning the fee award chose option 3 and, a little over three months later, submitted a copy of the certificate showing defendant was no longer suspended/was in good standing. Obtaining the certificate of revivor had the legal effect of validating the prior procedural steps along the way as far as the defense fee award and appeal efforts were concerned.
However, because defendant only took revival steps after plaintiff’s briefing on appeal was completed and in response to the appellate court’s inquiry on incapacity options, the 4/2 DCA panel refused to award routine costs of appeal to defendant, although observing this did not impact its ability to seek appellate fees on other fee entitlement bases.
Oh, Brother! -- Case Illustrates Equitable Principles Are Front And Center In Partition Disputes.
Partition disputes are equitable, with a broad fee-shifting statute in the form of Code of Civil Procedure section 874.040 allowing a trial court broad discretion to equitably apportion fees and costs among the parties to the partition action.
In Cummings v. Cummings, Case Nos. H040710 and H041308 (6th Dist. Nov. 23, 2016) (unpublished) (separate decisions), four siblings were involved in a family trust partition action involving a Los Altos Hills property. One brother out of the four siblings opposed a partition for sale of the property and apparently was not amenable to seek viable options to avoid conflict. Eventually, brother lost in the partition actions, prompting the other siblings to seek recoupment of fees and costs after the trial court ordered a partition by sale.
Brother did not fare any better in Case No. H041308, where his sisters obtained a further fee award of $51,323.56 for other work after the partition by sale order occurred.
Greyhound Bus sign, S. Carolina. Oct. 29, 2007. Carol M. Highsmith, photographer. Library of Congress.
BLOG HAT TIP—The winning attorney was Stuart R. Chandler, aka “Mr. Fresno”. Co-contributor Mike knows Mr. Chandler well, he graduated from the same high school class (Bullard High, Fresno) and he/Mike studied for the bar together in Fresno during the summer of 1979. Congratulations, Stuart!
Common Benefit Analysis Led To Recovery Of Fees By One Tenant In Common.
Although the facts are quite interesting from a partition perspective, Villicana v. Lindsay, Case No. G052709 (4th Dist., Div. 3 Oct. 13, 2016) (unpublished) stands for the proposition that a trial judge has authority to award attorney’s fees to one tenant in common in a partition case where an incidental accounting led to a “common benefit” resolution of the partition action in the overall sense. This is allowable under CCP § 874.040 and Regalado v. Regalado, 198 Cal.App.2d 549, 551 (1961), with one tenant in common getting allocable “common benefit” fees in a 3-0 opinion authored by Presiding Justice O’Leary.
Equities Were Weighted, Favoring No Offset Of Fee Award.
Crasnick v. Marquez and Diaz, Case No. BV 031459 (L.A. Superior Court Appellate Div. May 24, 2016 (published) (3-0 decision authored by Judge Ricciardulli), transmitted to 2d Dist. for consideration of transfer, No. B272469 involved an interesting judgment offset situation. There, a tenant in an unlawful detainer action in one court obtained a summary judgment and later attorney’s fees of $6,245 against a non-prevailing landlord where the lease had a fees clause. Tenant had earlier in the representation granted tenant’s attorney (from Public Counsel because tenant was indigent) a contractual lien on any fee recovery. Down the line, landlord obtained two separate judgments against prior winning tenant and another tenant in a subsequent unlawful detainer action and a small claims action, totaling $6,377.42. Landlord moved to offset the fee award against the judgments he later obtained, a motion denied by the superior court and affirmed on appeal by the Appellate Division.
Whether to offset judgments, especially one involving a contractual attorney fee lien, involves weighing the equities under a multi-factored test set forth in Brienza v. Tepper, 35 Cal.App.4th 1839 (1995). Although some factors weighed for and against landlord, the public policy factor tipped heavily against him: indigent tenants would not obtain needed legal representation if an attorney could not count on obtaining a potential future fee recovery based upon a contractual lien. The offset denial was affirmed.
BLOG UPDATE AND HAT TIP—We checked the Second District website and have seen no disposition on the transmittal by the Appellate Division for transfer consideration. We give a HAT TIP to Kevin Hermansen of BASTA, Inc., a non-profit organization which represented the tenants in the superior court proceedings leading to the Appellate Division decision, for sharing this opinion with us.
Plaintiff Only Recovered $2,229, And CCP § 473 Relief Did Not Resonate.
We have to say that in pro per plaintiffs need to beware when confronted with CCP § 998 offers—even though our courts are open to all, in pro per representation is fraught with perils, as Jones v. Pierce, Case No. A139665 (1st Dist., Div. 2 June 30, 2015) (unpublished) illustrates.
In this one, plaintiff sued for negligence arising from a vehicle accident, but rejected a $7,500 998 offer from defendant. However, plaintiff only recovered $2,229 after a jury trial. The trial judge awarded 998 fee-shifting costs of $33,198.06, after plaintiff failed to timely move to tax costs but making a request for mercy under CCP § 473.
An attorney working on medical malpractice cases felt cheated when it received no “bonus” compensation after the cases settled well after his termination from the handling law firm. Unfortunately for him, he lost his bonus claims after years of litigation.
Due process, due process, that concept drove the striking of an attorney’s fees award in a civil harassment proceeding context.
In Bridges v. Smith, Case No. C074704 (3d Dist. Feb. 23, 2015) (unpublished), plaintiffs were granted a 5-year civil harassment restraining order to stop defendant’s alleged harassment of them under CCP § 527.6, along with costs. The judge making these rulings retired, and the new judge confirmed his rulings but also granted plaintiffs $5,050 in fees under the civil harassment fee-shifting statute.
The appellate court determined that the new judge could not enter a judgment with the additional fee recovery—after all, the retired judge didn’t do it and due process was a “stickler” dictating the result in defendant’s favor.
Reciprocity Required Under Section 1717, Given Unfairness of Other Result.
In Trejo v. Arriaga, Case No. D064410 (4th Dist., Div. 1 Jan. 21, 2015) (unpublished), plaintiff 50/50 shareholder in a closely-held corporation lost an amended shareholder derivative lawsuit against defendant 50/50 shareholder. Defendant nonsuited plaintiff based on a failure to prove damages. Defendant then sought to recover fees under a lease agreement with a fees clause, garnering $55,608 in attorney’s fees under Civil Code section 1717.
The appellate court affirmed. Plaintiff contested that he could be individually liable for fees in a derivative action, but California decisions have allowed such recovery under the “substantial benefit doctrine” based on principles of equity. (Brusso v. Running Springs Country Club, Inc., 228 Cal.App.3d 92, 99-100, 111 (1991).) Given that plaintiff initiated the derivative lawsuit with presumed knowledge of the risk that he might be liable under the lease provisions if he lost, the reviewing court found it would be inequitable to prevent defendant for being able to recover attorney’s fees.
Also, CCP § 473 Motion to Vacate Denial Order Was Timely, But Mandatory Relief Not Available And Discretionary Relief Properly Denied For Lack Of Diligence.
Grinberg v. Kalili, Case No. B245899 (2d Dist., Div. 4 Sept. 10, 2014) (unpublished) originated as a dispute over the suitability of a $158,000 Ferrari, with the plaintiff losing and then being exposed as a defendant, in tandem with his attorney as a co-defendant, in a malicious prosecution suit by the Ferrari prevailing litigant. Defendants in the malicious prosecution successfully SLAPPed malicious prosecution plaintiff, obtaining a judgment for costs and for ______ in fees which was served on October 29, 2011. Later, one of the winning SLAPP defendants (the former suing Ferrari plaintiff) requested $55,615 in mandatory SLAPP fees, but the lower court only awarded $43,237.50 on an unopposed motion at a March 20, 2012 hearing, which order was entered on May 8, 2012. Then, about five months after the fee hearing, the attorney’s fees loser moved to vacate the fee order under CCP § 473. The lower court denied that motion on November 9, 2012, with loser appealing all orders/judgments “under CCP § 904.1(a)(3)-(13)” on December 19, 2012.
The SLAPP merits appeal was untimely—it was one year too late, with the motion to vacate not extending the time for an appeal.
Because the fee loser did timely appeal the motion to vacate under § 473, that did extend the time to appeal the fee order itself. However, CRC 8.108 has an important “earliest date” trigger—30 days after notice of entry of the motion to vacate order (something not at play, because no notice of entry was given) or 90 days after the motion to vacate was filed or 180 days after entry of the fee order. That last segment rendered fee loser’s appeal of the fee order untimely, because 180 days from the entry of the fee order expired on November 4, 2012 such that the December 19, 2012 appeal was too late.
That took the reviewing court to the timely appeal of the denial of the motion to vacate the fee order under § 473. Fee loser’s attorney tried to “fall on the sword,” but the appellate court found mandatory relief was not available because the denial order was not a default or a default judgment. (Vandermoon v. Sanwong, 142 Cal.App.4th 315, 321 (2006).) As far as discretionary relief was at issue, the lower court found that fee loser’s attorney did not adequately explain why five months elapsed from the date of the fee hearing to the date of the filing of the motion to vacate—put another way, no adequate diligence was shown on why relief was not sought earlier. Bottom line, $43,237.50 fee order remained intact.
Implied Contractual and Equitable Indemnity Theories Cannot Undermine American Rule.
Dalton v. Francis, Case No. H033247 (6th Dist. June 26, 2014) (unpublished) involved a buyer lawsuit against seller and dual real estate agents for nondisclosures in connection with a residential sale regarding a dilapidated septic system. The problem was that seller and individual brokers negligently passed on information about the housebeing connected to a public sewer, but with the infirmities originating from broker conduct. Eventually, buyers won the suit and won contractual attorney’s fees of $262,909.50 against sellers. (The corporate brokerage business went bankrupt, so individual brokers were still involved.) However, the lower court also found that the buyers could get total reimbursement from individual brokers for buyers’ fee exposure to sellers based on an implied indemnity theory (likely, implied contractual indemnity). Later, the trial judge determined that seller recapture defense costs in the buyer lawsuit from individual brokers based on the tort of another doctrine.
Sellers appealed, getting some relief on appeal.
The lower court’s determination that the $262,909.50 pro-buyers fee award could not be "passed" through by sellers for reimbursement from the individual brokers. The reasons: (1) implied contractual indemnity--individual brokers were not parties to the listing agreement with sellers (only the bankrupt brokerage business was a party); and (2)equitable indemnity—although brokers were jointly and severally liable with sellers as far as buyers’ damages, this theory could not be used to create a new attorney fee exposure basis under the American Rule, or else the appellate court would be creating a new exception through judicial fiat.
Finally, individual brokers balked at some nonstatutory costs claimed by sellers under the tort of another doctrine. However, the appellate court determined they were proper "damages," in line with what the trial judge found.
Lower Court Did Not Err In Directing That $1,000 Penalty Be Paid By Party Requesting Default Relief to Superior Court Instead.
In Sanai v. Pfeiffer, Case No. B246349 (2d Dist., Div. 4 June 26, 2014) (unpublished), an in pro per attorney sued an ex-client defendant for $149,240 in legal fees. However, the defense filed a notice of vexatious litigation and requested a dismissal, erroneously relying on a prior vexatious litigant order which had been stayed by the Court of Appeal earlier. Attorney kept filing requests for entry of default, which ex-client opposed through ex parte applications—with the lower court eventually granting the default request but simultaneously granting ex-client’s request for relief from default based on surprise pursuant to the discretionary provisions of CCP § 473(b)—hinged on the idea that the adverse party might think the vexatious litigant order was alive and well (especially given the party was represented by counsel who did not advice otherwise).
Then, attorney filed a motion for compensatory legal fees, costs, and sanctions under section 473(b)-(c). Attorney should $39,000 in legal fees, $2,840.50 in out of pocket costs, and $1,000 in sanctions from both ex-client’s counsel. Attorney and ex-client reached a settlement calling for payments over time on the agreed settlement amount for the fee receivable but that attorney could continue proceed against ex-client’s attorney. The lower court held that attorney was entitled to recover costs in the amount of $440.50 and ordered ex-client’s attorney to pay $1,000 to the superior court, but denied the $31,000 fee request. Attorney filed a dismissal with prejudice pursuant to the settlement agreement with ex-client. Attorney appealed the denial of fees and sanctions against ex-client’s attorney.
The lower court’s rulings were affirmed on appeal. First, the voluntary dismissal did not retard appeal of fee/sanctions order because the dismissal was done to expedite an appeal. (Stewart v. Colonial Western Agency, Inc., 87 Cal.App.4th 1006, 1012 (2001);Goldbaum v. Regents of Univ. of Cal., 191 Cal.App.4th 703, 708 (2011).) Next, the $31,000 fee denial was no abuse of discretion because, under analogous cases, the Tropeprohibition should also apply under CCP § 473’s discretionary provisions barring an in pro per attorney from recovering legal fees as sanctions. (Cf. Musaelian v. Adams, 45 Cal.4th 512, 519 (2009) [CCP § 128.7 case].) Last, ordering the $1,000 penalty paid by ex-client’s attorney to the superior court, rather than counsel, was no error given the wide range of relief available to the trial judge under section 473.
No Public Policy Concerns Militate Against Honoring Parties’ Settlement.
In GMAC Mortgage v. Sandoval, Case No. E059111 (4th Dist., Div. 2 Apr. 8, 2014) (unpublished), lenders won a declaratory relief action with respect to lien priority and were awarded attorney’s fees of $21,284.25 based on a trust deed fees clause. Defendants appealed only the postjudgment fee order, but later reached a post-appeal filing settlement stipulation with plaintiffs through which only the fee order (not merits judgment) would be vacated, if the appellate court agreed.
It did. Although the appeal could not be dismissed, the appellate court did agree to reverse the fee award based on the parties’ settlement—finding that the policy favoring settlement was fostered while there was no prejudice to the adverse parties/erosion of public trust. (Code Civ. Proc., § 128(a).) The merits judgment remained in place, but the fee award was reversed.
Otherwise, 5 Nonappealing Parties Would Get Stuck With Substantial Fee Exposure Even Though Some Appealing Parties Might Win On Remand.
Appellate courts are comprised of justices, who not only follow the law but attempt to reach a fair result based on the circumstances. Adams v. MHC Colony Park Ltd. Partnership, Case No. F062160 (5th Dist. Mar. 10, 2014) (partially published on rehearing; fee discussion unpublished) illustrates this in the context of substantial fee exposure to nonappealing parties even though the underlying judgment had been reversed and would have to go back for remanded proceedings.
Mobile Home by Ford Motor Company. 1924.
What happened was that 66 plaintiffs of a mobilehome park, after suing owner for failure to maintain the park’s physical improvements and common facilities, either suffered nonsuits or an adverse jury verdict (after a 43-day jury trial). The lower court then assessed $1.975 million in attorney’s fees and costs against the losing plaintiffs. Of this plaintiff constituency, 5 did not appeal. Upon review, the appellate court reversed the judgment. However, that left the lingering question of what to do about the fee award against the 5 nonappealing plaintiffs.
The appellate court decided that the reversal of the judgment had to extend to all portions with respect to the 5 nonappealing parties. Although the general rule is that an unappealed judgment is final unless appealed, there is an exception allowing for an entire reversal of a judgment if the portions reversed are so interwoven with the remainder of the judgment. This exception was invoked here, because otherwise 5 people might be stuck jointly and severally with a large fee exposure even though some of the remaining appealing plaintiffs might ultimately succeed on remand. Unfairness was the theme in this one.
Given Compensatory Award Was Close to Unlimited Jurisdiction Limit, Fee Award Was No Abuse of Discretion.
Coast Rehabilitation Services, Inc. v. Gray Duffy, LLP, Case No. B245940 (2d Dist., Div. 6 Dec. 4, 2013) (unpublished) involved an unlimited civil case where plaintiff won a compensatory award of $22,162.55 (inclusive of prejudgment interest), and the trial court later awarded fees of $14,504.50.
The fee award was affirmed on appeal. Because the compensatory award was close to the $25,000 jurisdictional limit, the lower court did not abuse its discretion by awarding $14,504.50 in fees.
As Far As Awarding Fees, Orange County Default Fee Schedule Suggested in Remand Look If Entered Judgment Significantly Reduced In the “Redo”.
The Fourth District, Division 3 has published several decisions in the unlawful penalty area involving leases with certain penalties and judgment stipulations having an increased penal amount feature over/above any agreed-upon settlement amounts. The next unpublished decision shows that this division has their collective eyes on this issue.
In Hermanson v. Patterson, Case No. G047401 (4th Dist., Div. 3 Sept. 6, 2013) (unpublished), the trial judge entered a $50,660.75 judgment even though the circumstances demonstrated that judgment debtor’s full performance might have resulted in a judgment of only $19,423.78 under a settlement structured through a held stipulation for judgment arrangement. The trial judge also added another $3,391.25 in attorney’s fees and costs as apparently allowed under the stipulation upon default.
Acting Presiding Justice Bedsworth, on behalf of a 3-0 panel, reversed the judgment and remanded with further directions to the trial judge.


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CHARLES ADAMAITIS vs. METROPOLITAN LIFE INSURANCE COMPANY.
In determining whether the assured under a disability contract forming part of a life insurance policy was "totally" disabled within a proviSion of the disability contract for the payment of benefits if he became "totally and permanently disabled . . . so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit," the occupation of the assured as a "machinist and farmer," as stated in his application for the insurance which applied to and was part of the disability contract, was material and should be taken into consideration. LUMMUS & QUA, JJ., dissenting.
In an action heard without jury upon a policy of insurance, a ruling requested by the plaintiff and containing three sentences, the first two to the effect that the entire policy should be considered in construing its terms and the third, correct as a proposition of law, to the effect that certain words used in specifying the coverage of the policy "are to be considered with regard to" a fact stated in the application, in substance and sufficiently called upon the judge as the trier of fact to instruct himself that the fact stated in the application was material in deciding the issue of fact whether the plaintiff was within the coverage of the policy; and a refusal of the ruling, followed by a finding for the defendant, was prejudicial error where it did not appear from the record that the finding was not a result of the judge's failure so to instruct himself. LUMMUS & QUA, JJ., dissenting.
An agreement by the parties in an action in a district court, filed in the Appellate Division after the filing there of a report by the trial judge who had found for the defendant, "that an alternative verdict may be rendered" and "that in the event of a finding for the plaintiff it" should be in a certain amount, could not confer upon the Appellate Division power to review or make findings of fact, and was not to be interpreted as meaning that if prejudicial error appeared judgment for the plaintiff should be ordered entered; and where prejudicial error of law was disclosed by the report but the report did not show as established all the facts necessary for determining the question in dispute, the Appellate Division bad no power to direct the entry of a finding for the plaintiff, under either s. 124 or s. 125 of G. L. (Ter. Ed.) c. 231, made applicable to appellate divisions by s. 110 of that chapter, and a new trial should have been ordered.
CONTRACT. Writ in the District Court of Brockton dated May 1, 1933.
The action was heard by Murphy, J. There was a finding for the defendant and a report to the Appellate Division for the Southern District. Proceedings there resulting in an order directing the entry of a finding for the plaintiff are described in the opinion. The defendant appealed.
The case was argued at the bar in January, 1936, before Rugg, C.J., Crosby, Field, Lummus, & Qua, JJ., and afterwards was submitted on briefs to all the Justices.
B. J. Killion, for the defendant.
L. H. Miller, for the plaintiff.
FIELD, J. This action of contract was brought in the District Court to recover total and permanent disability benefits under a supplementary contract attached to a life insurance policy. See G. L. (Ter. Ed.) c. 175, s. 24.
The facts that the plaintiff was insured by the defendant under a policy and supplementary total and permanent disability contract, which were in full force when the alleged disability commenced, and that the plaintiff made due proof of claim were admitted by the defendant. The policy and supplementary contract were introduced in evidence. There was evidence that they were issued on October 29, 1924. It appeared that the supplementary contract was attached to the policy and made a part thereof. This contract, as described in the report, sets forth that "in addition to the other benefits of the policy, if the assured, while the policy was in full force, became totally and permanently disabled as the result of bodily injury or disease occurring and originating after the issuance of said policy, so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit, the company would, during the continuance of such disability, waive the payment of each premium falling due under the said policy and contract and pay to your plaintiff the monthly sum of twenty dollars."
of the contract. To the questions, in the application in regard to the occupation of the assured there was the answer, in handwriting, that the assured was a 'machinist and farmer.' It stated in print that these were all his occupations and further stated that no change in occupation was contemplated and that those were his only occupations for at least within the last ten years. The application referred to and applied to the supplementary disability contract as well as to the rest of the policy."
The evidence tended to show that the plaintiff was permanently disabled. Apparently there was no controversy on this issue. The principal, if not the sole, controversy was whether on the evidence the plaintiff was totally disabled within the meaning of the supplementary contract.
arm was practically useless, the left arm had a partial motion left and the plaintiff was extremely nervous and neurotic."
With respect to the plaintiff's ability to work the evidence was as follows: He testified, "I ran tractor. That's no work. I just steered tractor. My boy would shift plow. In all it was two hours one occasion, three hours on another. Before that I used to do it alone." The plaintiff's physician testified that the plaintiff could not perform the duties of a machinist or farmer as he had heard them described "except for the doing of occasional acts, temporary in their nature and unimportant with relation to the disability." A physician called by the defendant, however, testified that the plaintiff "could do work at farming. He can pitch hay, do hen business, lead cows, use a hoe."
The trial judge denied certain requests for rulings made by the plaintiff, among them request numbered 5, hereinafter set forth, and found for the defendant. There was a report,to the Appellate Division. Thereafter the parties agreed "that an alternative verdict may be rendered," and that in the event of a finding for the plaintiff it should be in the amount of $625 with interest from the date of the writ. The Appellate Division by its "Finding, Decision and Order" decided "that there was prejudicial error in the trial court in the finding for the defendant and in the refusal to grant the plaintiff's fifth request," and ordered the entry in the case, "Finding of the trial court reversed and in accordance with agreement filed by the parties, finding for the plaintiff for $625 with interest from the date of the writ." The defendant appealed.
1. The denial of the plaintiff's request numbered 5 was prejudicial error.
regard to the f act that the policy insures the claimant as a 'machinist and farmer.'"
The trial judge in a case like the present performs a dual function. He must adopt correct rules of law for his guidance and find the facts as guided by these rules. And upon proper requests therefor he must state the rules of law adopted by him for his guidance as a trier of fact in order that the right of review thereof may be preserved. John Hetherington & Sons, Ltd. v. William Firth Co. 210 Mass. 8, 18-19. Castano v. Leone, 278 Mass. 429, 431.
Clearly the policy, the supplementary contract.and the plaintiff's application for insurance were to be construed together to determine the rights of the parties. Paquette v. Prudential Ins. Co. of America, 193 Mass. 215, 220. Larsen v. Metropolitan Life Ins. Co. 289 Mass. 573, 576. Even if the first two sentences of the requested ruling Which stated the law correctly - involved only principles of law to be applied by the judge in construing the instruments, (see Bascom v. Smith, 164 Mass. 61, 76,) the third sentence, that "The words 'any occupation and performing any work ----' etc. are to be considered with regard to the fact that the policy insures the claimant as a 'machinist and farmer,'" in effect stated a rule of law for the guidance of the judge as trier of fact. In substance the requested ruling was that the plaintiff's occupations as stated in the application were material for consideration in determining the issue of fact whether the plaintiff was totally and permanently disabled.
The requested ruling was correct. The words "totally . . . disabled," as used in the supplementary contract, are expressly limited by the phrase "so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit," Complete physical or mental incapacity of the insured, therefore, is not essential to his total disability within the meaning of the contract of insurance. It is sufficient that his disability is such that it prevents him from performing remunerative work of a substantial and not merely trifling character. Rezendes v.
Prudential Ins. Co. of America, 285 Mass. 505, 510, 512. Treblas v. New York Life Ins. Co. 291 Mass. 138, 139-140. Metropolitan Life Ins. Co. v. Foster, 67 Fed. (2d) 264, 265. See Mutual Benefit Life Ins. Co. v. Commissioner of Insurance, 271 Mass. 365. And the fact that the application, which contains statements about the plaintiff's occupations, "was made a part of the contract and the basis of the contract" requires that the language of the contract about total disability be interpreted in the light of these statements. Whether or not the effect of such statements is to limit total disability to disability preventing performance of work within the scope of the occupations stated, or, more broadly, performance of work within the scope of those and similar occupations, has not been decided in this jurisdiction. See, however, Rezendes v. Prudential Ins. Co. of America, 285 Mass. 505, 514. But even if we assume, in favor of the defendant, that the generality of the language in the supplementary contract is not limited by the statements in the application, and total disability means inability to perform remunerative work of a substantial character of any kind, the fact that the plaintiff was insured as a "machinist and farmer" could not properly be disregarded. Total disability is relative. It does not depend wholly on physical condition. "Regard must be had to the insured, to his age, education, experience, training and capabilities." Duhaime v. Prudential Ins. Co. of America, 86 N. H. 307, 308-309. A physical injury which would prevent performance of remunerative work of a substantial character by an insured person who had long worked only as a machinist and farmer might not prevent performance of work of that nature by a business or professional man. The fact, therefore, that the plaintiff was insured as a "machinist and farmer," when on the evidence it might have been found that these were his actual occupations, was material for consideration by the trier of fact in determining whether the plaintiff was totally disabled within the meaning of the insurance contract.
of the judge as trier of fact, and was somewhat indefinite in form, it was sufficient to direct the consideration of the judge to a principle of law important for his guidance as trier of fact. Bergeron v. Forest, 233 Mass. 392, 402. Morey & Co. Inc. v. Sweeney, 287 Mass. 210, 214, and cases cited. And it cannot be said that the refusal of the trial judge to rule as requested did not harm the plaintiff. The evidence in the case - except so far as the evidence of the plaintiff's injuries warranted inferences of his inability to perform other kinds of work - bore solely on his inability to perform the work of a machinist and farmer. The finding for the defendant may have been made on the ground that the evidence did not establish the plaintiff's inability to perform such work. But we cannot be sure that this finding did not result from a failure of the trial judge to regard,as material to the issue of total disability the fact that the plaintiff was insured as a "machinist and farmer" and to consider the evidence with that fact in mind.
such evidence, though warranting a finding for the plaintiff, does not as matter of law require such a finding. A question of fact, therefore, remains to be determined. And while the agreement fixes the amount of damages "in the event of a finding for the plaintiff," the further agreement "that an alternative verdict may be rendered" cannot rightly be interpreted as an agreement that if there was prejudicial error in the trial of the case judgment is to be entered for the plaintiff.
It follows that the order of the Appellate Division must be reversed and the case stand for hearing in the trial court.
Justices Lummus and Qua are unable to agree to the opinion. The requested ruling, the refusal of which is held error, required the judge to take into consideration the occupations of the insured as stated in the application. But by the very words of the policy no weight could be given to that statement of occupations, for the policy clearly provides for monthly payments only if the insured is so disabled as to be prevented from engaging in "any" occupation and performing "any" work for compensation or profit, without restriction. There was no error in refusing to consider an immaterial matter. The requested ruling appears to be unsound as a proposition of substantive law.
out request (Page v. Pattee, 6 Mass. 459; Brick v. Bosworth, 162 Mass. 334, 338), and should not be extended to trials without jury. "The only obligation of a judge in an action at law is to pass upon pertinent requests for rulings of law seasonably presented and to decide the case." Davis v. Boston Elevated Railway, 235 Mass. 482, 494, 495.
That third sentence, moreover, if treated as a separate unit by itself, did not construe the policy, but related to the mental operations of the judge in performing his strictly judicial function of construing the policy. It is indistinguishable from the first two sentences in this respect. The judge could not have been required, if indeed he could have been permitted, to charge a jury in the language of that third sentence, any more than he could have been required to state to a jury many other canons of construction. Consequently when he himself is substituted for the jury, he cannot be required in his strictly judicial capacity to lay down any such proposition, for even if sound it could be no guide to himself as the tribunal of fact. John Hetherington & Sons, Ltd. v. William Firth Co. 210 Mass. 8, 18. See also Clarke v. Second National Bank, 177 Mass. 257, 264. The tribunal of fact should be told what a written instrument means, not the method of reasoning by which its meaning may be determined.
If there was error in the decision of this case by the trial judge, it was error of fact, with which no appellate court can concern itself in an action at law. Graustein v. H. P. Hood & Sons, Inc. 293 Mass. 207, 216. McCaughn v. Real Estate Land Title & Trust Co. 297 U. S. 606, 608. This case appears to belong in the proverbial class of hard cases.

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