422 B.R. 443 (2009)
In re Ruby G. EMANUEL, Debtor.
No. 97-44969 (SMB).
United States Bankruptcy Court, S.D. New York.
December 23, 2009.
*444 Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, Andrew N. Goldman, Esq., Charles C. Platt, Esq., Melanie J. Dritz, Esq. of Counsel, Attorneys for Jacoby & Meyers LLP.
Richard Tanenbaum, Esq., Brooklyn, NY, Attorney for Kenneth Heller.
Susan Harmon, Esq., Hoboken, NJ, Attorney for Kenneth Heller.
Windels Marx Lane & Mittendorf, LLP, New York, NY, Howard L. Simon, Esq. Of Counsel, Office of the United States Trustee, New York, NY, Greg Zipes, Esq. Of Counsel, Attorneys for Trustee.

POST-TRIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW
STUART M. BERNSTEIN, Chief Bankruptcy Judge.
Kenneth Heller ("Heller") represented the debtor and the estate in a wrongful *445 death action until he was disbarred. Substitute special personal injury counsel, Jacoby & Meyers ("J & M"), settled the litigation, and Heller now seeks fees and expenses under a theory of quantum meruit. Any award will reduce the amount of J & M's contingent fee, and J & M has vigorously opposed Heller's application. Alan Nisselson, Esq., the chapter 7 trustee (the "Trustee"), and the United States Trustee also oppose his application. The Court conducted a one-day evidentiary hearing, and concludes, for the reasons that follow, that Heller is not entitled to any fees or expenses.

BACKGROUND

A. The State Court Action
This matter has its origins in an unfortunate, fatal accident involving the debtor's husband. On December 17, 1992, Mr. Emanuel's employer was performing repairs on a barge in dry dock at the Brooklyn Navy Yard. The task called for the placement of a gangway connecting the barge to the dock. Mr. Emanuel was charged with the responsibility of placing the gangway. While standing on the gangway as it was being hoisted into place, Mr. Emanuel fell 45 feet to the bottom of the dry dock, sustaining massive injuries that rendered him a quadriplegic and ultimately led to his death on August 30, 1994. Emanuel v. Sheridan Transp. Corp., 10 A.D.3d 46, 779 N.Y.S.2d 168, 170-71 (N.Y.App.Div.2004) ("Emanuel I").
The debtor retained Heller, individually and as administratrix of her husband's estate, to file a wrongful death action. Heller commenced suit against the barge owner, among others, asserting claims under the Jones Act, New York Labor Law and in negligence (the "Action"). Prior to the trial, on July 28, 1997, the debtor filed a voluntary petition for relief under chapter 7. By order dated August 10, 1999, the Trustee retained Heller (and Samuel Hirsch) as special personal injury counsel to the Trustee to prosecute the Action.[1]
The Action was tried before a jury in 1999. The Jones Act and New York Labor Law claims were dismissed before trial, id. at 171, and the plaintiffs proceeded to trial on the negligence claim. The jury found the barge to be unseaworthy and the defendants to be negligent. It awarded $24,967,660 in damages, but the trial court reduced the amount to $7,613,566, which the plaintiff accepted under protest. Following the entry of judgment, both sides appealed.
In May 2004, the Appellate Division reversed and remanded for a new trial. The substance of the reversal turned on the erroneous treatment of Mr. Emanuel as a seaman rather than as a longshoreman. According to the Appellate Division, a vessel owner owes an obligation of seaworthiness, a strict liability doctrine, to a seaman. See id. at 172-73. A longshoreman, on the other hand, may only recover from a vessel owner if he can prove negligence. Id. at 173. The appellate court concluded that Mr. Emanuel was a longshoreman rather than a seaman, id. at 172-73, and accordingly, the trial court erred in submitting the question of seaworthiness, which it intertwined with the issue of negligence, to the jury. Id. at 172, 173-74. One judge dissented in part, concluding that the record contained no evidence of the defendants' negligence, and the case should, therefore, be reversed and dismissed *446 rather than remanded for a new trial. Id. at 182.

B. Heller's Disbarment and Subsequent Contempt
Approximately one month after the Appellate Division reversal, Heller was disbarred. The charges that triggered the disbarment were unrelated to the Emanuel case. The referee had sustained the majority of the charges following an evidentiary hearing, but recommended only a two-year suspension. The Appellate Division disagreed. Citing Heller's pattern of misconduct, "utter contempt for the judicial system" and "his consistent, reprehensible, unprofessional behavior," the court concluded that he should be disbarred rather than suspended:
In light of the cumulative evidence of respondent's 24-year history of sanctions, his perverse and persistent refusal to accept adverse rulings, reflective of an utter contempt for the judicial system, and his consistent, reprehensible, unprofessional behavior, which has included screaming at, threatening and disparaging judges, adversaries and experts, intentionally defying court rulings, and disrupting and thwarting proper legal process through both physical and verbal aggression, we are of the opinion that the appropriate sanction here is disbarment.
In re Heller, 9 A.D.3d 221, 780 N.Y.S.2d 314, 319 (N.Y.App.Div.), leave to appeal denied, 3 N.Y.3d 607, 785 N.Y.S.2d 25, 818 N.E.2d 667 (2004).
Following Heller's disbarment, the Court approved the retention of J & M as substitute special personal injury counsel to the Trustee under a contingency fee retainer.[2] (Order for the Retention of Substitute Special Personal Injury Counsel to the Trustee, dated Jan. 21, 2005 (ECF Doc. # 23).) J & M sent a letter to Heller requesting the files in the Emanuel case. (Trial Transcript, dated July 1, 2009 ("Tr.") at 197.) The request is a common one, made by substituted plaintiff's counsel in personal injury and wrongful death cases. The terminated lawyers normally send their files promptly to the new counsel to be sure that the interests of the client are protected. (Tr. 194.) Heller nevertheless refused. (Tr. 127, 130.)
J & M then obtained an order to show cause to be substituted as counsel of record for Emanuel and to compel Heller to turn over the case files in the Action.[3] Heller opposed the motion, and cross-moved for an order fixing his costs and disbursements in the sum of $300,000 to $400,000 immediately, fixing his quantum meruit fee in the sum of $12,184,332.50, and directing that J & M pay the fee immediately, or secure the obligation, as a condition to the release of the files.[4] (J & M Findings, Ex. 8 at 1-2.) In affidavits filed in support of his cross-motion, Heller represented that the case file consisted of *447 43 boxes in his possession. (See id., Ex. 8 at 6; Ex. 9 at ¶ 58.)
On January 13, 2006, the New York Supreme Court issued an order substituting J & M as counsel for the plaintiff and directing Heller and his associate, Susan Harmon, Esq. ("Harmon"), "to turn over the complete, original file of the underlying action to Jacoby & Meyers LLP ... by 2/13/06. Failure to timely comply and completely comply with the above will result in sanctions." Finally, all other aspects of the cross-motion were denied. (Id., Ex. 10 (the "January 2006 Order").)
Heller and Harmon failed to comply with the January 2006 Order. (Tr. 199.) As a consequence, the New York Supreme Court issued an order on March 28, 2006, directing Heller and Harmon to show cause why they should not be held in contempt for disobeying the January 2006 Order. (J & M Findings, Ex. 11.) It is not clear how the order to show cause was resolved, but on December 26, 2006, a second order was issued by the New York Supreme Court directing Heller to show cause why he should not be held in contempt for disobeying the January 2006 Order. (Id., Ex. 14.)
This time, Heller was held in contempt of court by order dated January 26, 2007 (the "Contempt Order") (id., Ex. 15), for failing to turn over the files to J & M. The Contempt Order stated that Heller could purge himself of the contempt by turning over all his records within 20 days. Should he fail to comply, a warrant would issue for his arrest and production for sentencing or fine, or both.
Heller failed to purge himself of the contempt, and state Supreme Court Justice Silver issued a warrant for Heller's arrest on February 26, 2007. In re Emanuel, 406 B.R. 634, 635 (Bankr.S.D.N.Y. 2009) ("Emanuel II"). Heller was arrested that same day, and was subsequently sentenced to 30 days in jail and a $10,000 fine (the "Sentencing Order"). Id. The Appellate Division granted an interim stay limited to Heller's incarceration, but the interim stay was dissolved when his motion for a stay pending appeal was denied on May 8, 2007. Id.
On January 29, 2009, the Appellate Division affirmed the Contempt Order and the Sentencing Order, stating that Heller's failure to comply with successive orders directing him to turn over his files to Jacoby caused "resulting prejudice to plaintiff's right to a new trial in this action for maritime wrongful death." Emanuel v. Sheridan Transp. Corp., 58 A.D.3d 583, 870 N.Y.S.2d 912, 913 (2009) ("Emanuel III").

C. The Settlement
Deprived of Heller's files, J & M carried on the best it could relying on the Record on Appeal.[5] Eventually, it procured a $3.65 million settlement that the Trustee accepted. On August 18, 2008, the Trustee filed a motion before this Court to *448 approve the settlement, pay J & M a contingent fee and expenses in the respective amounts of $1,214,318.62 and $6,679.80, deny compensation to Heller, pay a lien in the amount of $700,000 and partially pay the surplus of $1,600,000 to the debtor. (Trustee's 9019 Motion, at 1.) Heller objected, but it is unnecessary to recount his reasons.[6] (See Objection of Kenneth Heller to the Trustee's Motion for Approval of Settlement of the Debtor's Wrongful Death Actions, dated Sept. 23, 2008 (ECF Doc. # 29).) By order dated November 10, 2008, the Court approved the settlement, and authorized the Trustee to pay the lien held by the New York State Insurance Fund in the amount of $700,000 and $1,550,000 to the debtor. (ECF.Doc.# 45.) The Court reserved decision on the allocation of the fees as between Heller and J & M since an evidentiary hearing was necessary to resolve Heller's quantum meruit claims.

DISCUSSION

A. Threshold Matters
Before turning to the merits, the Court must first deal with two threshold arguments. J & M contends that the New York State courts have already ruled that Heller is not entitled to a legal fee. The state court, however, was presented with and decided a different issue. After J & M moved to compel Heller to turn over his files, Heller cross-moved for an order compelling the payment of his expenses, and the fixing and securing of his legal fee before he was obligated to turn over his files. The state court denied Heller's cross-motion, and directed him to turn over his files, essentially refusing to recognize a retaining lien. The state court never ruled that Heller was not entitled to a legal fee.
J & M also argues that Heller failed to comply with the requirements imposed on fee applicants in this Court. Heller was presumably retained pursuant to 11 U.S.C. § 327(e) as special personal injury counsel to the Trustee.[7] Although Heller started working on the matter pre-petition, he rendered a substantial amount of services as special counsel to the Trustee. He now seeks an award, based on quantum meruit, for those services.
Rule 2016(a) of the Federal Rule of Bankruptcy Procedure states that any entity seeking compensation from the estate for services rendered or reimbursement of necessary expenses must "file an application setting forth a detailed statement of (1) the services rendered, time expended and the expenses incurred, and (2) the amounts requested." The rule applies to professionals who are retained pursuant to pre-approved contingency fee agreements. In re Lenworth Westbrooks, 202 B.R. 520, 522 (Bankr.N.D.Ala.1996). It even applies to persons who did not represent the estate but seek compensation under 11 *449 U.S.C. § 503(b)(3). 9 ALAN N. RESNICK & HENRY J. SOMMER, COLLIER ON BANKRUPTCY ¶ 2016.03, at 2016-6 (15th ed. rev. 2009). The rule unquestionably applied to Heller.
Heller failed to submit a fee application in accordance with Federal Bankruptcy Rule 2016(a). Nevertheless, the Court afforded him an opportunity to prove his entitlement to fees at a trial, and accordingly, will resolve the dispute on the merits.

B. Heller's Quantum Meruit Fee

1. Introduction
A disbarred attorney may be compensated on a quantum meruit basis for services rendered prior to his disbarment, N.Y. COMP.CODES R. & REGS., tit. 22, § 603.13(b) (2009) (Rules of First Department); N.Y. COMP.CODES R. & REGS., tit. 22, § 691.10(b) (2009) (Rules of Second Department); see generally 7 N.Y.JUR.2D, ATTORNEYS AT LAW § 264, at 174 (2009), provided the misconduct does not relate to the representation for which compensation is sought. In re Bagen, 201 B.R. 642, 644 (S.D.N.Y.1996); Decolator, Cohen & DiPrisco, LLP v. Lysaght, Lysaght & Kramer, P.C., 304 A.D.2d 86, 756 N.Y.S.2d 147, 150 (N.Y.App.Div.2003). An award in quantum meruit should in all cases reflect the courts assessment of the qualitative value of the services rendered, made after weighing all relevant factors considered in valuing legal services. Padilla v. Sansivieri, 31 A.D.3d 64, 815 N.Y.S.2d 173, 174 (N.Y.App.Div.2006). The relevant factors include the difficulty of the matter, the nature and extent of the services rendered, the time reasonably expended on those services, the quality of performance by counsel, the qualifications of counsel, the amount at issue, and the results obtained (to the extent known). Sequa Corp. v. GBJ Corp., 156 F.3d 136, 148 (2d Cir. 1998); accord The Dweck Law Firm, L.L.P. v. Mann, No. 03 Civ. 8967(SAS), 2004 WL 1794486, at *2 (S.D.N.Y. Aug.11, 2004); Decolator, 756 N.Y.S.2d at 151; Rosenzweig v. Gomez, 250 A.D.2d 664, 672 N.Y.S.2d 907, 908 (N.Y.App.Div.1998).
Where the discharged attorney had been employed under a contingency fee agreement, the Court may take that into account in determining the value of the services rendered, but the quantum merit recovery does not depend on the terms of the agreement. Dweck Law Firm, 2004 WL 1794486, at *2. It should be borne in mind that the disbarred attorney must be replaced as the result of his own misconduct, and stands in the same shoes as one who has abandoned his client. See In re Woodworth, 15 F.Supp. 291, 293 (S.D.N.Y.), aff'd, 85 F.2d 50 (2d Cir.1936). Although his disbarment does not necessarily foreclose compensation, it nevertheless forces the client to retain a second lawyer to complete the work, and the client should not have to pay twice. Accordingly, in a personal injury action in which all relevant agreements provided for a compensation on a contingent fee basis,... compensation to disbarred, outgoing counsel should be fixed in quantum meruit as a portion of the contingent fee. Padilla v. Sansivieri, 815 N.Y.S.2d at 174; accord Decolator, 756 N.Y.S.2d at 151.

2. The Evidence
I have no reason to doubt that Heller possessed the skill and experience to try the Emanuel case in state court, although his self-proclaimed reputation as "one of the preeminent maritime attorneys in the United States," (Creditor Kenneth Heller's Memorandum in Support of Post-Trial Findings of Fact and Conclusions of Law to Fix Attorney Compensation, dated July 30, 2009, at ¶ 28) (ECF *450 Doc. # 118), is hyperbole.[8] I also do not doubt that he put a significant amount of time into the case or that the amount at issue was substantial. However, the party seeking legal fees bears the burden of proof. D'Jamoos v. Griffith, No. 00 CV 1361(ILG), 2008 WL 2620120, at *3 (E.D.N.Y. Feb.29, 2008), and I conclude that Heller failed to prove the amount, value or benefit of his services.
Heller did not testify at trial, fearing that he would be arrested pursuant to an outstanding warrant issued after he was held in contempt for refusing to turn over his records in this matter to J & M. See Emanuel II, 406 B.R. at 637. Instead, the only evidence of what he did came from Harmon, a trial witness,[9] and the non-contemporaneous time records she created and the Court received as Heller Trial Exhibit A ("Exhibit A").
Neither the time records nor Harmon's testimony were probative or credible. Exhibit A consisted of 143 pages that purported to detail the date of each service, a description of the service and the amount of time expended on the service. It was created in August 2005, (Tr. 74), and depicted services rendered as far back as 1992. Although Harmon testified that she based the time entries on her memory of what had occurred, (Tr. 108-09), she acknowledged that she had no current recollection. (Tr. 109.) She could not even confirm that Exhibit A included the same time records that she said she had prepared back in 2005.[10] (Tr. 101-02, 103) She described the time entries as "rough estimates," (Tr. 108), and "guesses," (Tr. 119), and conceded that she assigned time "arbitrarily." (Tr. 107.) Heller's trial counsel described the time records as "a quick and dirty way of putting this together. Everything was compiled years after the events." (Tr. 168.)
*451 The time records were also inaccurate on their face. They included entries relating to services rendered prior to the accident and after Heller's disbarment. (Tr. 69-70, 123, 124, 167.) In many cases, the descriptions did not reflect the actual service, (Tr. 91-92, 103, 104, 105-06, 107, 108, 112, 116), the dates on which services were rendered, (Tr. 106, 108, 112), or the actual time spent.[11] (Tr. 165-167, 168.) Pages were also missing. (Tr. 76.)
In addition, Exhibit A contained duplicate entries for the same work. The duplication resulted from the manner in which Harmon reconstructed the time. Harmon began by going through Heller's diaries for the years 1992 through 2004, and estimating the time based on the diary entries. The first half of Exhibit A reflected reconstructed time based on the diary entries. Harmon then went through Heller's boxes, and performed a second estimate of time for work done between 1992 and 2004. These estimates begin on page 78 of Exhibit A. Harmon conceded that there was some overlap, but she never checked for duplication. (Tr. 187-88.)
Based on the foregoing, I decline to credit Harmon's testimony, and at best, I can only infer that Heller obviously spent time on the case because he tried it. He failed, however, to prove the actual amount of time he spent rendering services in the Emanuel case, or even a reasonable approximation of that time. He has also failed to prove the billing rates of all of the attorneys and paraprofessionals, or the value of those services under the "lodestar" method.
Furthermore, Heller has failed to demonstrate that his services provided any benefit to the estate. The Emanuel case was not as complex as Heller makes it sound, although proof of liability posed problems. Mr. Emanuel was a longshoreman. To establish the liability of the vessel owner, the plaintiff had to prove that the vessel owner (1) failed to exercise proper care regarding the condition of the ship prior to turning it over to the stevedore, (2) maintained active control of the vessel following the turnover that negligently contributed to the longshoreman's injury, or (3) had actual knowledge of a dangerous condition in an area under the stevedore's control, and failed to intervene. Emanuel I, 779 N.Y.S.2d at 174-75.
The case turned on whether the vessel owner breached its duty of active control to supervise and participate in the securing of the gangway from which Mr. Emanuel fell. See id. at 176. Heller submitted, and the trial court gave, a charge that misstated the law. It improperly placed the primary responsibility on the ship owner after the vessel had been turned over to Mr. Emanuel's employer, the stevedore. Id. at 175. There was only one eyewitness to the accident, and the balance of the trial testimony involved experts and the parties' employees explaining the appropriate way to secure a gangway. Although Heller prevailed in the trial court, he went forward on a faulty theory and ultimately lost the case.
Having lost the case before he was forced to hand it off, Heller failed to demonstrate that his work provided any benefit to the estate in the continued prosecution of the lawsuit following his *452 disbarment. He refused to turn over his file to J & M, and was held in contempt for that failure. Heller has nevertheless maintained throughout the case that J & M did not need his files, and could have successfully retried the case using the publicly available Record on Appeal. As Heller's work would be reflected in the Record on Appeal, this implies that J & M, who relied on the Record on Appeal, benefited from his work.
I reject this argument for several reasons. First, Heller never offered the Record on Appeal into evidence, and thus, he failed to show what it contained much less that it contained everything that J & M needed.[12] Second, the Record on Appeal could not have included everything in Heller's files. The Record on Appeal filled only one or two boxes, while Heller had 43 boxes. (Tr. 134.) Although Harmon insisted that "the sum and substance of the 41 [other] boxes that was necessary to retry the case was contained in that joint record on appeal," (Tr. 134), I reject her statement as unsupported, unsupportable and self-serving. Third, many items were admittedly not part of the Record on Appeal, including notes of witness interviews, (Tr. 183-84, 186, 202), diary notes, (Tr. 183-84), the portions of depositions that were not read at trial, (Tr. 186), and videos of Mr. Emanuel, photographs, memos and witness statements. (Tr. 200.) Fourth, one Appellate Division judge deemed the trial record insufficient as a matter of law to merit a new trial. While the majority disagreed and remanded the case, the dissenter's view might give successor counsel some pause in simply relying on the trial record.
Finally, Heller's post-disbarment conduct caused prejudice to his former clients. Having lost the case he tried, Heller obstructed J & M's attempts to retry the case he lost. His refusal to turn over the files, in the face of several court orders directing him to do so, was symptomatic of what the Appellate Division described as his "utter contempt for the judicial system, and his consistent, reprehensible, unprofessional behavior, which has included ... intentionally defying court rulings" in the Heller disbarment order. In re Heller, 780 N.Y.S.2d at 319. Furthermore, although he argued to the Appellate Division, as he does here, that the Record on Appeal included everything that J & M needed to retry the case, (see J & M Findings, Ex. 25, at 51-53), the Appellate Division concluded that Heller's contemptuous refusal to turn over the files caused "resulting prejudice to plaintiff's right to a new trial." Emanuel III, 870 N.Y.S.2d at 913.[13]

*453 CONCLUSION
In the final analysis, Heller spent an indeterminate amount of time on a case that he lost, providing services of unproven benefit to his successor and former client. He irrationally disregarded numerous state court orders directing him to turn over his case files to J & M, resulting in prejudice to the debtor and the estate. These facts mandate the denial of his quantum meruit claim for attorney's fees. In addition, Heller failed to offer any evidence of the amount of expenses that he or his firm incurred in connection with the Emanuel case, and his request for reimbursement of expenses is denied for this reason as well.
The foregoing constitutes the Court's findings of fact and conclusions of law. Submit order.
NOTES
[1]  The parties did not submit the Trustee's application to retain Heller or the retention order, but all agree that his retention was on a contingency fee basis. The trial was already underway when the Court signed the retention order, and the record does not indicate whether the retention was nunc pro tunc to an earlier date.
[2]  The debtor had separately retained J & M on August 23, 2004. (Application for the Retention of Substitute Special Personal Injury Counsel to the Trustee Pursuant to Bankruptcy Code § 327(e), dated Jan. 18, 2005, at Ex. A (ECF Doc. # 22).)
[3]  The opposition to Heller's fee request is based on events that took place in the New York Supreme Court. The Court takes judicial notice of the contents the state court records.
[4]  Less than a year earlier, Heller had sought similar relief. At that time, he represented to the state court that his quantum meruit fee was only $2 million. (Jacoby & Meyers LLP's Post-Trial Memorandum in Support of Proposed Findings of Fact and Conclusions of Law, dated July 17, 2009 ("J & M Findings"), Ex. 4, at 6; Ex. 5, at 1; Ex. 6, at 1 (ECF Doc. # 107).)
[5]  Oddly, Heller may have been the only person who still had files that were not part of the Record on Appeal. The defendants were represented by Hill, Betts & Nash whose files were destroyed in the World Trade Center attack on September 11, 2001. (Trustee's Motion for: (I) Approval of Settlement of the Debtor's Wrongful Death Actions Pursuant to Federal Rule of Bankruptcy Procedure 9019(a); (II) Approval of Allowance and Payment of Fees and Expenses of Special Personal Injury Attorneys to the Trustee Pursuant to a Contingency Fee Agreement and Under Bankruptcy Code §§ 328 and 330; (iii) a Determination of the Amount of Compensation, if any, of Kenneth Heller, Former Special Counsel to the Trustee; (iv) a Determination of the Amount of the Lien of New York State Insurance Fund; (v) Partial Payment of a Surplus to The Debtor; and (vi) Such Other relief as the Court Deems Just, dated August 13, 2008 ("Trustee's 9019 Motion"), Ex. D (ECF Doc. # 27).)
[6]  Giving him the benefit of the doubt, Heller's motivation was a concern that the debtor was a seaman's widow, and hence, a "ward of admiralty." As such, a release of her rights was subject to special scrutiny.

Putting to one side the question of Heller's standing to raise Mrs. Emanuel's personal rights, his argument suffered from two flaws. First, a seaman's special status is personal, and his widow is not a "ward of admiralty" entitled to special protection. Lampsis Navigation Ltd. v. Ortiz De Cortes, 694 F.2d 934, 936 (2d Cir., 1982). Second, and more important, the Appellate Division determined that Mr. Emanuel was a longshoreman, not a seaman. A longshoreman is not a "ward of admiralty," and his release of personal injurieseven those sustained aboard a vesselis not entitled to strict scrutiny. Capotorto v. Compania Sud Americana de Vapores, Chilean Line, Inc., 541 F.2d 985, 987 (2d Cir.1976).
[7]  As noted, neither side supplied the Heller retention application or retention order.
[8]  John D. Coulter, Esq., a maritime attorney, testified that Heller had been "considered one of the preeminent maritime attorneys in New York City ... [i]n the country, really." (Tr. 17.) He did not explain how he reached this conclusion or with whom he had discussed Heller's reputation. In addition, Coulter has apparently been working with Heller on this matter, and was charging him $200.00 per hour for his testimony. (Tr. at 38.) While Coulter was sincere, I attribute his high esteem of Heller to his loyalty to one who is essentially his client.
[9]  Saul Rudes, Esq., wrote to the Court after the trial, requesting an opportunity to be heard and making certain statements, some evidentiary in nature, regarding why Heller should receive a substantial fee. (Letter, dated July 9, 2009 (ECF Doc. # 102).) Rudes is a judgment creditor of Heller, but is not a creditor of the estate. As a creditor of a creditor, he lacks standing to be heard. See In re Comcoach Corp., 698 F.2d 571, 573-74 (2d Cir.1983) ("Bankruptcy Courts were established to provide a forum where creditors and debtors could settle their disputes and thereby effectuate the objectives of the statute. Necessarily, therefore, the Bank must be either a creditor or a debtor to invoke the court's jurisdiction."); Southern Blvd., Inc. v. Martin Paint Stores, 207 B.R. 57, 61 (S.D.N.Y. 1997) ("A creditor, under the Code, is one who has a claim against the debtor or the estate. The concept does not, according to the Second Circuit, encompass a creditor of one of the debtor's creditors.") (emphasis in original) (internal citations omitted). Furthermore, to the extent he had relevant evidence to offer regarding Heller's quantum meruit fee, the place to do so was at the trial. Accordingly, the Court disregards his unsworn, post-trial "testimony."
[10]  The same or similar records had been submitted to the New York Supreme Court in the course of Heller's efforts to fix the amount of his charging and retaining liens. At trial, Harmon was confronted with an affidavit that she prepared, Heller signed and both submitted to the state court, stating that Heller had reviewed the files and prepared what became Exhibit A. She conceded that the affidavit was "literally not true," invoked the Fifth Amendment and refused to answer any further questions on the subject. (Tr. 60.)
[11]  Harmon contended that she underestimated the amount of time spent on various tasks. The evidence showed, however, that certain entries were wildly excessive. For example, Harmon testified that Heller and his firm spent 80 hours preparing a 14-page document request (Tr. 111), 383 hours preparing an affirmation in opposition to a motion (Tr. 111), 1,000 hours reviewing trial transcripts (Tr. 121), and 2,136 hours preparing a single brief. (Tr. 170.)
[12]  Heller served trial subpoenas the day before trial on Hill, Betts & Nash and Carol R. Finocchio, Esq., the defendants' appellate lawyer, to require them to produce the Record on Appeal as well as certain other documents. The Court quashed both subpoenas at the request of the subpoenaed parties. The subpoenas were served the day before trial and demanded records that had been sent to storage. More importantly, the Record on Appeal was publicly available, and Heller could have obtained a copy from the public source. (Tr. 10-11.)
[13]  Heller's egregious post withdrawal conduct is relevant in fixing his quantum meruit fee. See Williams v. Hertz Corp., 91 A.D.2d 548, 457 N.Y.S.2d 23, 25-26 (N.Y.App.Div. 1982) (remanding to the trial court to determine whether former counsel was discharged for cause and if not, to fix his quantum meruit fee, based on allegations, inter alia, that former counsel had committed post-discharge acts of professional disloyalty, disregarded the client's interest by withholding the file and exhibited professional discourtesy toward substitute counsel), aff'd, 59 N.Y.2d 893, 465 N.Y.S.2d 937, 452 N.E.2d 1265 (1983). Ironically, Heller was also the former counsel in Williams whose egregious conduct in that case led to the remand.


60 F.3d 839NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent.  This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Norelene M. HAMLIN, Petitioner,v.DEPARTMENT OF the ARMY, Respondent.
No. 95-3140.
United States Court of Appeals, Federal Circuit.
April 13, 1995.

Before MICHEL, RADER and BRYSON, Circuit Judges.
DECISION
PER CURIAM.

1
Norelene M. Hamlin appeals from the October 27, 1994 decision of the Merit Systems Protection Board (Board), No. SL-0432-94-0320-I-1, denying review of the August 5, 1994 initial decision of the Administrative Judge (AJ).  Because the Board did not abuse its discretion in so denying review, we affirm.

DISCUSSION

2
On April 14, 1994, following Hamlin's failure to improve to a satisfactory level in accordance with a Performance Improvement Plan, the Department of the Army (Army) notified Hamlin of her removal.  Hamlin made a timely appeal to the Board.

3
Prior to the scheduled hearing, Hamlin settled her case with the Army.  In a telephonic conference with the AJ, Hamlin's attorney stated that the provisions of the settlement agreement had been discussed with Hamlin and that she understood them.  Finding the settlement agreement lawful on its face and to have been freely reached by the parties, the AJ entered the settlement agreement into the record and dismissed Hamlin's appeal.

4
Hamlin subsequently filed a petition for review with the Board.  Hamlin sought to have the settlement agreement set aside on the ground that it was tainted with fraud and coercion.  Pursuant to 5 C.F.R. Sec. 1201.115 (1994), the Board summarily denied Hamlin's petition for review.  She timely appealed to this court.

5
We have held that "those who employ the judicial appellate process to attack a settlement agreement through which controversy has been sent to rest bear a properly heavy burden."  Asberry v. United States Postal Serv., 692 F.2d 1378, 1380 (Fed.  Cir. 1982).  Thus, Hamlin has the burden of showing that the settlement agreement was, as she alleges, tainted by coercion or fraud.  Moreover, we may set aside only those decisions of the Board that are shown to be arbitrary, capricious, an abuse of discretion, unlawful, or unsupported by substantial evidence.  5 U.S.C. Sec. 7703(c) (1988).  The controlling question is therefore whether Hamlin has shown that the settlement agreement was tainted such that the Board's refusal to vacate it constituted an abuse of discretion.  Asberry, 692 F.2d at 1380.

6
Hamlin has made no such showing.  No basis exists for her allegation that her execution of the settlement agreement was involuntary.  In fact, the record shows that Hamlin was represented by counsel, was informed by counsel of the significance of the settlement agreement, and understood the consequences of signing the settlement agreement.  Her allegation that the Army's ability to pursue a complaint against her with the state nursing board constituted coercion is without merit.  It is not coercive for an agency to insist upon a legally permissive course of action and to remind an employee of the consequences thereof.  See Liebherr Crane Corp. v. United States, 810 F.2d 1153, 1158 (Fed.  Cir. 1987).  It is also well settled that financial hardship does not constitute coercion:  "Every loss of employment entails financial hardship.  If that alone were sufficient to establish economic duress, no settlement involving it would ever be free from attack."  Asberry, 692 F.2d at 1381.  Finally, the record is bereft of any showing of fraud.

7
For these reasons, we conclude that the Board did not abuse its discretion by declining to set aside the settlement agreement between Hamlin and the Army.


148 B.R. 349 (1992)
In re AMERISWISS ASSOCIATES, Debtor.
Bankruptcy No. 92-15869-BKC-SMW.
United States Bankruptcy Court, S.D. Florida, Miami Division.
November 10, 1992.
Scott L. Baena, Miami, FL, for debtor.
Herbert Stettin, Miami, FL, for Sherry Frankel, Trustee.

ORDER AUTHORIZING DEBTOR'S USE OF RENTS
SIDNEY M. WEAVER, Chief Judge.
THIS CAUSE came on to be heard by the Court on October 19, and 26, 1992, upon the motion of the debtor, Ameriswiss Associates ("Ameriswiss" or the "Debtor"), to use cash collateral. The Court having heard the testimony and observing the demeanor of witnesses presented; having considered the evidence adduced; having *350 heard the argument of counsel; and, being fully advised in the premises, renders its finding of facts and conclusions of law as hereinafter stated.

I. FINDINGS OF FACT
Ameriswiss commenced this case by filing a voluntary petition for relief under chapter 11 of the Bankruptcy Code on October 6, 1992 (the "Petition Date"). Ameriswiss continues to manage its property and operate its business as a debtor in possession pursuant to sections 1107 and 1108 of the Bankruptcy Code.
The Debtor's business is the management and operation of a Class A office building commonly known as "1221 Brickell Avenue" (the "Property"). The Property consists of 395,395 square feet of rentable space which, at the Petition Date, was approximately 92% rented, generating rental income of more than $7 million, on an annual basis, together with income from tenant parking and pass-throughs of approximately $725,000, annually (the "Rents").
Record title to the Property is in the name of City National Bank of Florida as Trustee (the "Trustee") under an Illinois-type land trust established pursuant to Florida law (the "Trust"). Ameriswiss is the sole beneficiary of the Trust. Pursuant to the express terms of the Trust, Ameriswiss has the sole power (i) "of direction to deal with the title to [the Property]," (ii) to "manage and control [the Property]" and (iii) to "receive the proceeds from rentals, sales, mortgages or other disposition of [the Property]."
The Property is encumbered by a first mortgage (the "First Mortgage") which secures a loan made by Mellon Bank, N.A. ("Mellon") on or about October 12, 1983 (the "First Mortgage Loan"). The current principal balance of the First Mortgage Loan is approximately $77,250,000. On or about August 4, 1992, Mellon sold and assigned the First Mortgage Loan and the First Mortgage to Sherry Frankel, as Trustee ("Frankel").
As additional collateral for the First Mortgage Loan, Ameriswiss granted an Assignment of Rentals and Leases to Mellon at the date of the First Mortgage Loan. The Assignment was supplemented on September 12, 1984 and January 30, 1987.
Ameriswiss (not the Trustee) executed each lease entered into in connection with the Property as "Lessor". Each of the leases was expressly approved by Mellon prior to its consummation without any requirement that the Trustee be named as lessor or even co-lessor thereunder.
The Property is further encumbered by a second mortgage (the "Second Mortgage"). The Second Mortgage secures a loan made by Mevabi, B.V. ("Mevabi") on or about November 20, 1985 (the "Second Mortgage Loan"). The current principal balance due under the Second Mortgage Loan is approximately $1,186,284.
On or about August 19, 1992, Frankel sent Ameriswiss a letter purporting to demand payment of the Rents pursuant to Fla.Stat. § 697.07. There is no evidence that Frankel sent any demand letter to the Trustee, or even provided the Trustee with a copy of the purported demand letter sent to Ameriswiss. Mevabi did not make any demand for the Rents whatsoever prior to the Petition Date.
On September 22, 1992, Frankel commenced a foreclosure action in the Dade County Circuit Court against the Trustee, Ameriswiss and others (the "Foreclosure Action").
On September 25, 1992, Ameriswiss commenced an action (the "Ameriswiss Action") in the Dade County Circuit Court against Frankel, her principals, and others based on Frankel's alleged tortious conduct in acquiring the First Mortgage Loan.
Frankel did not obtain an order sequestering the Rents or an order appointing a receiver for the Property or the Rents prior to the Petition Date.

II. CONCLUSIONS OF LAW
The bases for Frankel's opposition to Ameriswiss's motion are that (i) this Court *351 lacks jurisdiction over the Rents because Ameriswiss is neither the legal nor equitable owner of the Property; and (ii) by virtue of the demand made by Frankel under Fla.Stat. § 697.07 (1991), there was an absolute transfer of the Rents to Frankel prior to the Petition Date.
The Court disagrees.
(A) The rents are property of the Debtor's estate
Frankel contends that a beneficiary's interest under a land trust agreement is personalty rather than realty, and thus, that the Rents are not property of the Debtor's estate. Frankel principally relies upon the decision of the United States Court of Appeals for the Seventh Circuit in Matter of Gladstone Glen, 628 F.2d 1015 (7th Cir.1980); however, the ultimate holding of that case supports the Debtor's position:
Illinois law's characterization of the beneficiary's interest as personal property without legal or equitable title to the realty is not controlling for purposes of federal law. Looking to the substance of the matter, we hold that the beneficiary of a land trust is the `equitable owner of real property' within the meaning of the [Bankruptcy Code].
Id. at 1019.[1]
Gladstone Glen's progeny have followed the same "substance over form" doctrine and have uniformly reached the same conclusion. As noted in Matter of Pentell, 777 F.2d 1281, 1284 (7th Cir.1985):
[I]n applying the `substance over form' doctrine to `Illinois-type' land trusts the beneficiaries' equitable interest in the trust made the real property part of the debtor beneficiary's estate. This is true as a matter of federal bankruptcy law regardless of how the state characterizes the actual legal ownership of the property.
Id. at 1284.
The same result was reached in Matter of Langley, 30 B.R. 595, 598 (Bankr. N.D.Ind.1983), a case with pertinent facts virtually identical to those at issue here. Like Ameriswiss, the debtor in Langley was the sole beneficiary under a land trust agreement. Id. at 597. Pursuant to the terms of the land trust agreement, the debtor reserved (i) all power to direct the trustee to deal with the property, (ii) the power to manage, possess, use and control the property, and (iii) the right to receive the earnings, avails and proceeds from leases and other uses. Id. The creditor in Langley sought relief from the automatic stay, arguing that (i) the debtor had no interest in the trust res because under the terms of the trust, the trustee held legal and equitable title, and (ii) although the debtor had an interest in the earnings, this interest was only an interest in personal property and could not subject the land to the jurisdiction of the bankruptcy court. Id.[2]
The Langley court rejected the creditor's argument. Id. at 600. The court held that:
[A]t least in a case where the debtors are the only beneficiaries of an Illinois type land trust, the ownership interest makes the res of the trust property of the estate . . .
This result is further supported by the fact that the debtors-in-possession succeed, as would the trustee, to all the powers and rights held by the debtors on the date of filing their petition in bankruptcy. . . . Further, the debtors have a beneficial interest in the proceeds of the sale of the rest of the trust. Clearly that interest is property of the estate. Thus even if the property were sold pursuant to a postpetition foreclosure sale, the proceeds would be property of the estate, subject to distribution through the bankruptcy laws.
*352 Id.[3]
Accordingly, pursuant to both the terms of the Trust and applicable decisional law, the Rents are property of Ameriswiss's bankruptcy estate. 11 U.S.C. § 541.
(B) Notice was given by Frankel pursuant to Fla.Stat. § 697.07 (1991)
Fla.Stat. § 697.07 (1991) provides that:
A mortgage may provide for an assignment of rents. If such assignment is made, such assignment shall be absolute upon the mortgagor's default, becoming operative upon written demand made by the mortgagee. Upon application by the mortgagee, a court of competent jurisdiction may require the mortgagor to deposit such rents in the registry of the court pending adjudication of the mortgagee's rights to the rents, any payments therefrom to be made solely to protect the mortgaged property and meet the mortgagor's lawful obligations in connection with the property.
The Debtor argues that Frankel's notice pursuant to the foregoing statute was ineffective since Frankel served the notice on the Debtor and not on the Trustee/mortgagor. However, the Court having concluded that the Rents are property of the Debtor's estate, notice to the Debtor alone would be sufficient for purposes of Fla.Stat. § 697.07.
The Debtor further argues that it was not in default under the First Mortgage Loan at the time Frankel gave notice and that, as a result, the notice was premature and ineffective. The Court does not, however, feel constrained to make such a determination at this juncture. The Debtor has not disputed that it did not make the August, 1992 interest payment to Frankel. Rather, the Debtor argues that such payment was excused by virtue of Frankel's conduct in acquiring the First Mortgage Loan from Mellon. Whether that is so will presumably be determined in the Ameriswiss Action. The fact that the payment was not made is all that is relevant to the applicability of Fla.Stat. § 697.07.
Accordingly, the Court deems that notice was given by Frankel to Ameriswiss pursuant to Fla.Stat. § 697.07.
(C) Fla.Stat. § 697.07 (1991) effects an absolute transfer of rents
This Court has previously held that Fla.Stat. § 697.07 "is intended to create an absolute transfer of the income stream to the mortgagee, upon default and written demand to the mortgagor." In re 163rd Street Mini Storage, Inc., 113 B.R. 87, 90 (Bankr.S.D.Fla.1990). Accord In re Aloma Square, Inc., 85 B.R. 623 (Bankr.M.D.Fla. 1988). The Court continues to be of that opinion.
The Court does not feel constrained to follow the contrary opinions of Florida's intermediate appellate courts in Nassau Square Associates, Ltd. v. Insurance Comm'r of State of Cal., 579 So.2d 259 (Fla. 4th DCA 1991), and Oakbrooke Associates, Ltd. v. Insurance Comm'r of State of Cal., 581 So.2d 943 (Fla. 5th DCA 1991).
(D) Fla.Stat. § 697.07 (1991) is substantive and, therefore, is not retroactive
While Fla.Stat. § 697.07 engenders a notice-type procedure triggering an absolute transfer of ownership of rents upon demand, the effect of the statute is to change the substantive property rights of an assignor and assignee in respect of assigned rents. As such, in the context of statutory interpretation, the statute is not merely procedural but rather, substantive in effect. In re Camelot Associates Ltd. *353 Partnership, 102 B.R. 161, 165-166 (Bankr. D.Minn.1989).
It is axiomatic under Florida Constitutional law that a statute affecting substantive rights cannot be applied retroactively, and accordingly, Fla.Stat. § 697.07 does not govern the enforcement of assignment of rents prior to its effective date (i.e., October 1, 1987). In re Thymewood Apartments, Ltd., 129 B.R. 505, 512 (Bankr.S.D.Ohio 1991); Accord Camelot Associates, supra.
Accordingly, the Court concludes that the notice given by Frankel to Ameriswiss pursuant to Fla.Stat. § 697.07 was ineffectual to create an absolute transfer of the Debtor's interests in the Rents to Frankel inasmuch as the Assignment of Rentals and Leases and all supplements thereto were executed by the Debtor in favor of its first mortgage lender prior to the effective date of the statute.
(E) Frankel's interest in rents is determined by reference to applicable common law
Having concluded that Frankel's notice pursuant to Fla.Stat. § 697.07 was ineffectual in creating an absolute transfer of the Debtor's interest in the Rents since the statute post-dates the operative contracts of assignment, Frankel's rights in the Rents is governed by applicable common law. In re 163rd Street, supra at 88-89; White v. Anthony Inv. Co., 119 Fla. 108, 160 So. 881, 882 (1935).
Prior to the enactment of Fla.Stat. § 697.07, Florida common law provided that an assignee of rents was not entitled to any of the rents and profits derived from the property unless it had obtained an order of sequestration or actually taken possession of the property, either by consent or the appointment of a receiver. Id. Frankel failed or, at least, was unable to do so. Thus, Ameriswiss continues to be the owner of the Rents.
It is therefore,
ORDERED AND ADJUDGED that the Debtor shall be and hereby is authorized to use the Rents subject only to the limitations generally imposed upon debtors in possession in the conduct of their businesses by the Bankruptcy Code. 11 U.S.C. § 101 et seq.
DONE AND ORDERED.
NOTES
[1]  Florida's land trust law is modeled after the Illinois land trust law and specifically allows for the creation of Illinois-type land trusts such as the trusts at issue in both Gladstone Glen and the instant case.
[2]  It should be noted that in Langley, the issue was relief from the automatic stay and the moving creditor did not argue that the rents derived from the trust res were not property of the debtor's estate.
[3]  Frankel also refers to the Fourth Circuit's decision in In re Korangy, 927 F.2d 596 (No. 89-2864, 1991 WL 24312, 1991 LEXIS 3179) (4th Cir.1991). The decision in Korangy is not, however, inconsistent with the holdings in Gladstone Glen and Langley. In Korangy, there were multiple beneficiaries of a land trust. The court applied the "substance over form" doctrine enunciated in Gladstone Glen to conclude that the subject land trust created a partnership among the various beneficiaries. Korangy, 1991 WL 24312 at 3, 1991 LEXIS 3179 at 8. As such, a single partner's filing of a bankruptcy petition was insufficient to bring the partnership property within his individual bankruptcy estate. This distinction was expressly recognized in Langley and is inapposite to the facts of the case sub judice.


369 P.2d 888 (1962)
LAND DEVELOPMENT, INC., an Alaskan Corporation, Appellant,
v.
Vernie L. PADGETT and Betty L. Padgett, Appellees.
No. 144.
Supreme Court of Alaska.
March 23, 1962.
*889 John P. Irvine, Irvine, Clark & Savage, Anchorage, for appellant.
Peter B. Walton, Connolly & Walton, Anchorage, for appellee.
Before NESBETT, C.J., and DIMOND and AREND, JJ.
DIMOND, Justice.
The only question here is whether the law will enforce, strictly in accordance with its terms, a typical forfeiture clause in a real estate sales contract.
In purchasing some real property the buyers[1] made a down payment and were given possession. They agreed to pay the seller[2] certain monthly installments of principal and interest until the balance of the purchase price was paid. In the meantime, the seller withheld the deed of conveyance. If the buyers defaulted as to any payments due, they were to lose everything: all payments made would be retained by seller "as liquidated damages and in the nature of rent and not as a penalty"; the seller would be released from all obligations to convey the property; and the buyers would be required to vacate the property and return it to the seller.
The contract was made in July 1956. In September 1959 the buyers were in default in the monthly payments due. At that time they had made total payments of principal and interest in the approximate sum of $9,500, leaving a balance due on the principal of $2,435.
Six months later the seller commenced this action to recover possession of the property. It also sought $10,000 damages for withholding possession and another $10,000 for loss of rents. The buyers admitted their default. But they protested the forfeiture of what they termed a "substantial equitable interest" in the property acquired by reason of payments they had made.
The court refused to allow the complete forfeiture sought by the seller. Instead, it provided that the buyers' rights would be forfeited only if they failed to pay accrued interest within one week, and the principal balance of $2,435 within three months. If they met these conditions, then the seller was obliged to deliver its deed to the property. The seller has appealed claiming it was error to allow the buyers this opportunity to discharge the indebtedness and obtain title to the property.
We hold the trial court was justified in refusing to enforce literally the forfeiture provision of the contract. The buyers had been in possession of the property for more than three years prior to their default. They had paid approximately two-thirds of the total purchase price, including a substantial amount of interest. In these circumstances, enforcement of the forfeiture would be inequitable[3]; it would cause a loss to the buyers all out of proportion to any injury that might be sustained by the seller.[4] The latter's rights were fully protected; for if the buyers failed to pay the balance owing by the time specified in the judgment, then their interest in the property would be entirely forfeited and the seller would regain possession. All the court did was to allow the buyers a limited opportunity to salvage, if they could, a substantial interest in the property acquired by them during the three-year period. To refuse them this period of grace would not be in accord with principles of equity *890 and justice.[5] The length of time allowed is a matter committed to the sound discretion of the trial court.[6] Considering the time that the buyers had been in possession and the amount of money they had paid prior to default, we do not find any abuse of discretion in the three-months period of redemption granted by the court below.
The judgment is affirmed.
NOTES
[1]  The buyers are the appellees, Vernie and Betty Padgett.
[2]  Appellant, Land Development, Inc., is the assignee of the original sellers, but for purposes of convenience will be referred to as the "seller" in this opinion.
[3]  Dependabilt Homes v. White, 117 N.E.2d 706, 708 (Ohio Ct. App. 1951).
[4]  DeGood v. Gettle, 119 Kan. 534, 240 P. 960, 961-962 (1925); State ex rel. Foley v. Superior Court, 57 Wash.2d 571, 358 P.2d 550, 552 (1961).
[5]  State ex rel. Foley v. Superior Court, 358 P.2d 550, 552 (1961); Nelson v. Robinson, 184 Kan. 340, 336 P.2d 415, 420 (1959).
[6]  Henry Uihlein Realty Co. v. Downtown Development Corp., 9 Wis.2d 620, 101 N.W.2d 775, 779 (1960).


334 S.C. 96 (1998)
512 S.E.2d 510
Cecilia CREIGHTON, Appellant,
v.
COLIGNY PLAZA LIMITED PARTNERSHIP, J. Norris Richardson, Lois H. Richardson, J.N. Richardson, Jr., Mary Katherine Toomer, Rainbow's End, Inc., and D & M Landscaping Company, Respondents.
Robert Creighton, Appellant,
v.
Coligny Plaza Limited Partnership, J. Norris Richardson, Lois H. Richardson, J.N. Richardson, Jr., Mary Katherine Toomer, Rainbow's End, Inc., and D & M Landscaping Company, Respondents.
No. 2909.
Court of Appeals of South Carolina.
Heard October 8, 1998.
Decided November 30, 1998.
Rehearing Denied April 10, 1999.
*106 Paul H. Infinger, of Dukes, Williams, Infinger & Meeks, of Beaufort, for appellants.
A. Parker Barnes, David S. Black and Mary Grace Georgio, all of A. Parker Barnes, Jr. & Associates, of Beaufort; Cheryl D. Shoun and Charles F. Castner, both of Ogletree, Deakins, Nash, Smoak & Stewart, of Charleston; and Russell S. Stemke, of Pratt-Thomas, Pearce, Epting & Walker, of Charleston, for respondents.
CURETON, Judge:
Cecilia Creighton brought an action for negligence as a result of a slip and fall that occurred on the steps outside of Rainbow's End, a retail establishment in Coligny Plaza on Hilton Head Island. Ms. Creighton's husband, Robert Creighton, also brought an action for loss of consortium. The jury returned a verdict in favor of the defendants. The Creightons appeal. We affirm in part, reverse in part, and remand.

FACTS
On the morning of July 19, 1990, Cecilia and Robert Creighton drove from Beaufort to Coligny Plaza on Hilton Head Island to go shopping. During the drive, there was a heavy downpour of rain. While the Creightons were eating lunch at a restaurant located in Coligny Plaza, there was another brief, heavy downpour of rain.
After lunch, Ms. Creighton decided to go into Rainbow's End, one of the retail stores in Coligny Plaza. Ms. Creighton had to climb a set of seven wooden steps to enter the store. As Ms. Creighton was leaving the store, she slipped and fell while attempting to walk down the first step.
The entrance steps were covered in the center by a strip of indoor-outdoor carpet, which left a strip of uncovered wood along the outer edge of each step. Beverly Wilburn (Wilburn), the owner of Rainbow's End, installed the carpeting with carpet remnants and glue, and placed a metal trim along the front outer edge of the steps. Wilburn replaced the carpet every one to two years. On each side of the entrance steps were two large palm trees with limbs overhanging the *107 handrails. Carolina jasmine, a type of vine, was growing along the outer edge of some of the steps and was intertwined with portions of the handrails. Wilburn planted the palm trees and jasmine vine.
The site and building where the fall occurred are owned by Coligny Plaza Limited Partnership (Partnership) and its individual partners, J. Norris Richardson, Lois H. Richardson, J.N. Richardson, Jr., and Mary Katherine Toomer. Rainbow's End leased the property from the Partnership pursuant to a five year written lease which expired on June 1, 1990, before the slip and fall, occurred. After the expiration of the written lease, Rainbow's End remained in the building on a month-to-month basis.
D & M Landscaping had a written agreement with the Partnership to provide the landscaping and maintenance at Coligny Plaza.[1] Under the contract, D & M was to maintain a clean, neat appearance at Coligny Plaza by doing things such as mowing the grass, trimming shrubbery, vacuuming streets, blowing off sidewalks, and emptying trash cans. D & M was not responsible for maintaining the carpet on the entrance steps to Rainbow's End. However, D & M was responsible for trimming and maintaining the palms and jasmine.

STANDARD OF REVIEW
When an action at law has been tried by a jury, the jurisdiction of this court on appeal extends to corrections of errors of law. A factual finding of the jury will not be disturbed unless a review of the record discloses no evidence which reasonably supports the jury's findings. Townes Assocs., v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).

LAW/ANALYSIS

Bifurcation of Liability and Damages
The Creightons contend the trial court erred in ordering separate trials of liability and damages.
*108 This issue is not preserved because the trial judge never ruled on the grounds the Creightons raise on appeal. An issue not raised to or ruled on by the trial court is not preserved for appellate review. Schofield v. Richland County Sch. Dist., 316 S.C. 78, 447 S.E.2d 189 (1994).
At the pretrial conference, the Creightons' attorney objected to bifurcation because he did not want the jurors to hear "sterile testimony" alone, given the difficulty proving a slip and fall case. Additionally, he objected to bifurcation because he wanted the trial judge to fully address the discovery abuse allegations. On appeal, the Creightons allege the trial judge failed to exercise discretion, prejudiced the Creightons, and ignored judicial economy by bifurcating the trial. Because the argument presented by the Creightons to the trial court was based on grounds other than those raised on appeal, the issue is not properly preserved.
However, even if this issue was preserved, the trial judge did not abuse his discretion in bifurcating the trial. This court must review a trial judge's decision to bifurcate the issues of liability and damages under an "abuse of discretion" standard. See Keels v. Pierce, 315 S.C. 339, 433 S.E.2d 902 (Ct.App.1993) (appellate court will not disturb trial judge's ruling on motion to consolidate absent abuse of discretion); see also Giles v. Parker, 304 S.C. 69, 403 S.E.2d 130 (Ct.App. 1991) (bifurcation of trial was well within trial judge's discretion).
Under Rule 42(b), SCRCP, the court
in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any ... separate issue ... always preserving inviolate the right of trial by jury as declared by the Constitution or as given by a statute of the State.
A trial should be bifurcated only if the issues are so distinct that trial of each alone would not result in injustice. Fortune v. Gibson, 304 S.C. 279, 403 S.E.2d 674 (Ct.App.1991). Where evidence relevant to the issues of both hability and damages overlap, bifurcation is inappropriate. Id.
*109 The trial judge raised the issue of bifurcation sua sponte at a pre-trial hearing on discovery abuse motions almost three weeks before the trial. The trial judge found it would be significantly shorter to try the liability phase of the case separately because of the extensive medical testimony regarding Ms. Creighton's injuries, as well as the numerous discovery problems related thereto. The court also found bifurcation would eliminate the expense of having out of state doctors testify to Ms. Creighton's damages if the jury entered a defendants verdict in the liability trial. Thus, the trial judge ordered bifurcation only after considering convenience, expedition, and judicial economy as required under Rule 42(b). Furthermore, the Creightons cannot show any prejudice resulted from the bifurcation. The medical testimony relating to Ms. Creighton's damages was not necessary to establish liability in regard to the slip and fall. We find no abuse of discretion by the trial judge in bifurcating the trial.

Jury Voir Dire
The Creightons argue the trial court erred by failing to conduct a more extensive voir dire examination of four jurors.
The manner and scope of voir dire is largely within the discretion of the trial judge. Crosby v. Southeast Zayre, Inc., 274 S.C. 519, 265 S.E.2d 517 (1980); State v. Middleton, 266 S.C. 251, 222 S.E.2d 763 (1976); Norris v. Ferre, 315 S.C. 179, 432 S.E.2d 491 (Ct.App.1993). On appeal, this court will rely on the judgment of the trial judge who is able to observe the character and demeanor of the jurors, unless the record firmly establishes an abuse of discretion. See Wilson v. Childs, 315 S.C. 431, 434 S.E.2d 286 (Ct.App.1993).
Rule 47(a), SCRCP, provides that upon the court's examination of prospective jurors, the court shall ask such additional questions submitted by the parties or their attorneys as it deems proper. If a party is dissatisfied with a trial judge's examination of a juror, the party should move for permission to ask additional questions. State v. Ivey, 331 S.C. 118, 502 S.E.2d 92 (1998). The refusal to make an examination of prospective jurors to determine bias or prejudice, when a timely request has been made, constitutes reversible error. Crosby v. Southeast Zayre, Inc., 274 S.C. 519, 265 S.E.2d 517 *110 (1980). However, absent a timely objection to the examination of a juror, the issue is not properly preserved for appeal. See Ivey, 331 S.C. 118, 502 S.E.2d 92 (1998).

Jurors Carlson and Sampson
During jury voir dire, juror Don Carlson (Carlson) stated he knew Mr. Richardson (a partner in Coligny Plaza) socially and had done business with him. The trial judge asked Carlson if that would affect his ability to be fair and impartial. Initially, Carlson responded, "I can't honestly say." However, after further questioning, Carlson responded he could be fair and impartial. Ultimately, the Partnership struck Carlson from the jury. Juror Charles Sampson (Sampson) also stated he knew and had done business with Mr. Richardson. The trial judge did not ask Sampson any more questions. The Creightons moved to dismiss Carlson and Sampson because of their relationship with defendant Richardson. The trial judge denied the motion. Although the Creightons requested Carlson and Sampson be dismissed, they did not request further inquiry by the trial court, which is the argument presented on appeal. Thus, the issue is not preserved.
Even if this issue had been properly preserved, we find nothing in the record to indicate the trial judge abused his discretion during jury voir dire. Carlson responded he could be fair and impartial. Although the trial judge did not ask Sampson if he could be fair and impartial, the judge asked the entire jury panel if there was any reason that they could not be fair and impartial. No one responded negatively.
Additionally, the Creightons cannot demonstrate any prejudice from the trial judge's failure to dismiss Carlson and Sampson. Carlson did not sit on the jury because he was struck by the Partnership. Also, the Creightons' objection to these jurors was based on a relationship with Mr. Richardson. The jury was not required to consider liability in regard to Mr. Richardson because the trial judge granted a directed verdict for the Partnership and its individual partners at the close of all the evidence.

*111 Juror Cole

Juror Cathy Cole (Cole) informed the trial judge during voir dire that her brother-in-law had a restaurant in Coligny Plaza. The trial judge questioned whether that would affect her ability to be fair and impartial. Cole responded it would not. In response to another question, Cole informed the trial judge she had a restaurant and gift shop on Hilton Head Island. The trial judge asked if that would affect her ability to be a fair and impartial juror. Cole responded, "I don't think so."
The Creightons did not object, nor did they ask the trial judge to further question her. S.C.Code Ann. § 14-7-1030 (Supp.1997), provides that any objection to a juror is waived if not made before the jury is impaneled. A party objecting to a juror after the jury is impaneled must show that he could not have, in the exercise of due diligence, discovered the ground for objection before the impanelling of the jury. Southern Welding Works, Inc. v. K & S Const. Co., 286 S.C. 158, 332 S.E.2d 102 (Ct.App.1985). Thus, this issue is not preserved and the Creightons are barred from raising it for the first time on appeal. See Smith v. Phillips, 318 S.C. 453, 458 S.E.2d 427 (1995) (appellate court cannot address issue unless it is raised to and ruled on by trial court).

Juror Mims
After the jury was selected and sworn, counsel for the Creightons informed the trial court that Juror Mims's (Mims) husband was a friend and business partner of the Partnership's counsel. Counsel told the court Mims's husband was his CPA and also a shareholder at his hunt club. Counsel assured the court he had no relationship with Mims and no business partnership with her husband. The trial judge asked Mims no further questions. The Creightons did not request any further inquiry.
Although the Creightons brought this matter to the trial judge's attention, they did not request further examination by the court, which is the issue argued on appeal. Therefore, this issue is not properly preserved. Even so, the Creightons' objection to Mims was untimely because they could have discovered this relationship in the exercise of due *112 diligence before the jury was impaneled. In the initial voir dire, the Creightons could have asked the trial judge to examine the jury panel in regard to business or social relationships with the parties or their counsel. Also, as in the case of Carlson and Sampson, the Creightons cannot show any prejudice because of Mims's relationship with counsel for the Partnership.

The Creightons' Motions for Directed Verdict, JNOV, and New Trial
The Creightons allege error in the trial court's failure to grant their motions for directed verdict, judgment notwithstanding the verdict, and for a new trial. The Creightons contend that Ms. Creighton neither assumed the risk nor was contributorily negligent in regard to the fall.

Directed Verdict, JNOV Motions
When reviewing the denial of a motion for directed verdict or judgment notwithstanding the verdict, this court must consider the evidence in the light most favorable to the non-moving party. Brady Dev. Co. v. Town of Hilton Head Island, 312 S.C. 73, 439 S.E.2d 266 (1993). A directed verdict or judgment notwithstanding the verdict should not be granted unless only one reasonable inference can be drawn from the evidence. Id. If the evidence as a whole is susceptible of more than one reasonable inference, the case should be submitted to the jury. Id. Gamble v. International Paper Realty Corp., 323 S.C. 367, 474 S.E.2d 438 (1996).
Respondents each pled contributory negligence and assumption of risk as affirmative defenses.[2] The doctrine of contributory negligence acts as a complete bar to recovery if the plaintiffs own negligence contributed to her damages. Langley v. Boyter, 284 S.C. 162, 325 S.E.2d 550 (Ct.App.1984), quashed, 286 S.C. 85, 332 S.E.2d 100 (1985). A defense based *113 on the doctrine of assumption of risk requires a showing that the plaintiff (1) has knowledge of the facts constituting the dangerous condition; (2) knew that the condition was dangerous; (3) appreciated the nature and extent of the danger; and (4) voluntarily exposed herself to the danger. Pryor v. Northwest Apartments, Ltd., 321 S.C. 524, 469 S.E.2d 630 (Ct.App. 1996). The defenses of contributory negligence and assumption of risk ordinarily present questions of fact to be determined by a jury and only rarely become questions of law for the court to determine. Small v. Pioneer Mach., Inc., 316 S.C. 479, 450 S.E.2d 609 (Ct.App.1994); Singletary v. South Carolina Dep't of Educ., 316 S.C. 153, 447 S.E.2d 231 (Ct.App. 1994).
Viewing the evidence in a light most favorable to the defendants, there was sufficient evidence to create a question of fact as to whether Ms. Creighton assumed the risk or was contributorily negligent in the slip and fall. When Ms. Creighton climbed the steps to enter Rainbow's End, she noticed the carpet on the stairs was soggy and wet from the rain. In spite of her knowledge the steps might be dangerous because the carpet was worn and wet, Ms. Creighton decided to go down the first couple of steps without holding on to the handrail until she reached a point where she could grab the handrail without touching the palms or stepping on the jasmine. Ms. Creighton further testified she did not know how she fell or what made her fall. She was not looking to see where her foot was. Ms. Creighton's own testimony created a question of fact as to whether she voluntarily assumed the risk or was contributorily negligent in descending the stairs without holding the handrail, knowing it presented a dangerous condition.

New Trial Motion
The grant or denial of a new trial motion rests within the discretion of the trial judge and will not be disturbed on appeal unless the trial judge's findings are wholly unsupported by the evidence or the conclusions reached are controlled by error of law. Umhoefer v. Bollinger, 298 S.C. 221, 379 S.E.2d 296 (Ct.App.1989). In deciding whether to assess error to a court's denial of a motion for a new trial, we must consider the testimony and reasonable inferences to be *114 drawn therefrom in the light most favorable to the non-moving party. Id.
The jury verdict was not against the greater weight of the evidence presented at trial, and nothing in the record suggests the trial court's denial of the motion for a new trial was an abuse of discretion.

Partnership's Motion for Directed Verdict
The Creightons argue the trial court erred in granting the Partnership's motion for directed verdict.
In a negligence action, the determination of whether a party has a duty to exercise reasonable care for the benefit of another is a question of law for the court. If the court determines there is such a duty, the jury's function is to determine whether a breach of that duty has occurred, resulting in damages. Miller v. City of Camden, 317 S.C. 28, 451 S.E.2d 401 (Ct.App.1994).
At the close of the evidence, the trial judge directed a verdict in favor of the Partnership and its individual partners. The trial court found that the Partnership owed no duty to Ms. Creighton under Byerly v. Connor, 307 S.C. 441, 415 S.E.2d 796 (1992). In Byerly, the South Carolina Supreme Court discussed the general rule that when land is occupied by a lessee, in the absence of an agreement to the contrary, the lessor surrenders possession and control of the land to the lessee. Thus, after the premises are surrendered to the lessee in good condition, the lessor is not responsible for hazardous conditions which thereafter develop or are created by a lessee. See Young v. Morrisey, 285 S.C. 236, 329 S.E.2d 426 (1985) (lessor owes no duty to maintain leased premises in safe condition); see also Sheppard v. Nienow, 254 S.C. 44, 173 S.E.2d 343 (1970) (no legal duty on lessor to keep leased premises in repair absent contract to do so). Therefore, unless the terms of the lease provide otherwise, the Partnership had no duty to maintain the entrance steps while Rainbow's End was in control of the premises.
The trial court also correctly ruled the Partnership owed no duty to Ms. Creighton under the terms of the lease. After the termination of a lease, a lessee who continues *115 to occupy the premises becomes a tenant at will not bound by the terms of the prior lease unless there is a new agreement to the contrary, either express or implied. Townsend v. Singleton, 257 S.C. 1, 183 S.E.2d 893 (1971).
Under the lease, the lessee was responsible for maintaining the area on and around the entrance steps.[3] The lease expired on June 1, 1990, before Ms. Creighton's slip and fall occurred.[4] Rainbow's End remained on the property after the termination of the lease with the Partnership's consent. Although the lease did not address continued occupancy after the lease expired, Mr. Richardson's undisputed testimony was that the parties orally agreed to operate on a month to month basis under the expired lease's terms. Thus, the trial judge was correct in ruling the Partnership had no duty to maintain the entrance steps under Byerly and the terms of the lease.
The Creightons also argue the Partnership voluntarily undertook the duty to maintain the entrance steps by hiring D & M to perform the landscaping and maintenance at Coligny Plaza. A person who voluntarily undertakes to perform an act must use due care in the performance of that act. Roundtree Villas Ass'n. v. 4701 Kings Corp., 282 S.C. 415, 321 S.E.2d 46 (1984); Salvo v. Hewitt, Coleman & Assocs., 274 *116 S.C. 34, 260 S.E.2d 708 (1979); Crowley v. Spivey, 285 S.C. 397, 329 S.E.2d 774 (Ct.App.1985). Furthermore, a lessor must use due care if he attempts to make premises safe. Conner v. Farmers & Merchants Bank, 243 S.C. 132, 132 S.E.2d 385 (1963).
D & M trimmed and maintained the palms and vines at the entrance steps to Rainbow's End pursuant to its contract with the Partnership. Mr. Richardson testified D & M was required to maintain the shrubs and bushes around the Rainbow's End building, and was responsible for all landscaping maintenance at Coligny Plaza. Thus, the Partnership voluntarily assumed a duty to maintain the entrance steps at Rainbow's End by hiring D & M to perform the landscaping and maintenance at Coligny Plaza.
However, the trial court ruled D & M was an independent contractor and the Partnership was not liable for any negligence by D & M in maintaining the entrance steps. Generally, an employer is not liable for the torts of an independent contractor. Young v. Morrisey, 285 S.C. 236, 329 S.E.2d 426 (1985); Durkin v. Hansen, 313 S.C. 343, 437 S.E.2d 550 (Ct.App.1993). No concrete rule has been established to determine whether the relationship of independent contractor has been established, but the general test is the degree of control exercised by the employer. Fernander v. Thigpen, 278 S.C. 140, 293 S.E.2d 424 (1982).
The South Carolina Supreme Court characterized the distinction between servants and independent contractors as follows:
It is not the actual control then exercised, but whether there exists the right and authority to control and direct the particular work or undertaking, as to the manner or means of its accomplishment. "An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods, without being subject to the control of his employer except as to the result of his work." 56 C.J.S. Master and Servant § 3(1); and "where one who performs work for another represents the will of that other, not only as to the result, but also as to the means by which the result is accomplished, he is not an *117 independent contractor but an agent;...." 2 C.J.S. Agency § 2d.
Young v. Warr, 252 S.C. 179, 189, 165 S.E.2d 797, 802 (1969).
The Partnership had no direct control over how or when D & M did its work and no control over its daily work activities. Mr. David Westerland (Westerland), co-owner of D & M, supervised and directed the employees of D & M. The Partnership paid D & M $4,000.00 a month, and did not withhold social security or FICA. D & M had job sites other than Coligny Plaza. The Partnership did not furnish any equipment to D & M to perform the maintenance at the Plaza. The Partnership had no authority to hire or fire D & M employees. Westerland testified he never received instructions from the Partnership regarding maintenance of the area around Rainbow's End, and that the contract gave him discretion as to how to maintain the grounds. Periodically, the partners walked the grounds with Westerland and showed him specific things that needed to be done such as repairing potholes and replacing or moving shrubbery. Mr. Richardson would also communicate his satisfaction or dissatisfaction with D & M to Westerland. Nothing in the record indicates the Partnership controlled the manner or means that D & M used to accomplish the requested work. The trial court correctly ruled the Partnership was not liable for any negligence on the part of D & M in maintaining the palms and jasmine at the entrance steps to Rainbow's End because D & M was an independent contractor.[5]
The Creightons also argue the Partnership had a duty under the public use exception. However, this issue was not presented to and ruled on by the trial court; therefore, it is not properly preserved. See Scoggins v. McClellion, 321 S.C. 264, 468 S.E.2d 12 (Ct.App.1996).

*118 Motion for Mistrial

The Creightons maintain the trial court erred in denying their motion for a mistrial.
The granting of a motion for mistrial is within the sound discretion of the trial judge. State v. Jones, 325 S.C. 310, 479 S.E.2d 517 (Ct.App.1996). Absent an abuse of discretion, the decision of the trial judge will not be overturned on appeal. Id. The burden is upon the moving party to show not only error, but resulting prejudice. State v. Wasson, 299 S.C. 508, 386 S.E.2d 255 (1989).
The Creightons made a motion in limine to exclude any testimony regarding Ms. Creighton's pre-existing injuries or her prior automobile accident. The trial judge granted the motion. During Wilburn's testimony, she inadvertently made a statement about the prior automobile accident. At that point, the trial judge interrupted the witness and instructed her not to say anything further in that regard. The Creightons did not move to strike the testimony or request a curative instruction. At the lunch recess, the Creightons made a motion for a mistrial.[6]
The Creightons cannot show Wilburn's statement had any prejudicial effect in the liability phase of the trial. Any statement about the prior automobile accident was irrelevant to the issue of liability and pertained to damages alone. Thus, there was no abuse of discretion in the trial court's denial of the motion for a mistrial.
The Creightons also contend the trial court's jury instruction was confusing and contradictory because of the references to injuries. This issue is not preserved. The Creightons did not raise any objection to the jury instruction before the trial court and cannot now raise it for the first time on appeal.

*119 Jury Charge

The Creightons argue the trial court erred by instructing the jury as to contributory negligence and assumption of risk. The Creightons made no objection to the trial judge's jury instruction in regard to contributory negligence. Therefore, the issue is not preserved for appeal.
The trial judge held a charge conference at the close of all the evidence. At the conference, the Creightons objected to a jury instruction on assumption of risk, alleging there was no evidence in the record to support the charge. The trial judge informed the parties he would charge assumption of risk. The Creightons failed to renew their objection after the charge was given to the jury. Therefore, this issue may not be preserved. See State v. Whipple, 324 S.C. 43, 476 S.E.2d 683 (1996); Rule 51, SCRCP. However, as previously discussed, there was sufficient evidence in the record to submit the defense of assumption of risk to the jury.

Dismissal of Loss of Consortium Claim
The Creightons maintain the trial court erred in dismissing the loss of consortium claim at the conclusion of the liability trial.
"Under South Carolina law, unlike that of some other states, loss of consortium is an independent action, not derivative." Preer v. Mims, 323 S.C. 516, 521, 476 S.E.2d 472, 474 (1996). A verdict for a defendant in the injured party's action does not bar the loss of consortium claim. See Page v. New Lower Richland Med. Ctr., 291 S.C. 82, 352 S.E.2d 295 (Ct.App.1986).
At the conclusion of the liability trial, the trial judge entered judgment reflecting the jury verdict for the defendants and simultaneously dismissed the loss of consortium claim by order "because of a defendant verdict on companion case." Although the trial judge's order dismissing the loss of consortium claim misstates the law, we find the order to be mere surplusage because the action was consolidated for trial with the liability action by consent of the parties.
Under Rule 42(a), SCRCP, a trial judge may order the consolidation of actions involving a common question of *120 law or fact. However, even before the enactment of Rule 42(a), cases could be tried together for convenience with the consent of all parties. See McKinney v. Greenville Ice & Fuels Co., 232 S.C. 257, 101 S.E.2d 659 (1958).
Although there was no formal order of consolidation, we find all parties consented to trying the negligence and loss of consortium actions simultaneously. Other than the pleadings, all documents, motions, and correspondence the Creightons' attorney filed with the court in relation to the trial referenced both case captions and civil action numbers.
During jury voir dire, the trial judge told the jury panel, "[T]he plaintiff in this case is named Cecilia Creighton. She's brought an action and her husband has also brought an action." In his preliminary remarks, the trial judge also stated, "[T]he plaintiff has the burden of proving her claims in this case, her claims and his claims, we have two cases here. The plaintiffs will call their witnesses first."
Before the charge conference, the trial judge went over the verdict form with all counsel. When the trial judge published the jury verdict, he stated, "Okay, in the case of Cecilia Creighton, plaintiff, versus Coligny Plaza, et al., case number 93-CP-07-1211, and that also includes the other case, the verdict is we find for the defendants...."[7]
The Creightons' attorney never objected to the trial judge's characterization of the trial as including both cases. In fact, counsel for the Creightons told the jury in his opening statements that he "represent[ed] the Plaintiffs, Cecilia and Robert Creighton ..." The Creightons also failed to object to the form of the jury verdict when the trial judge indicated it included both actions.
The Creightons assert the trial judge's bifurcation of the trial necessitated a separate trial for loss of consortium. They contend it was impossible to have tried the loss of consortium claim because such claims concern damages. We disagree.
*121 Although a loss of consortium claim is not res judicata because of a defendant's verdict in a negligence action,[8] "a loss of consortium claim cannot arise if no tort is committed against the impaired spouse." 41 Am.Jur.2d Husband and Wife § 250 (1995). In order to prevail in an action for loss of consortium, a plaintiff must prove the defendant's liability for the spouse's injuries, as well as damages to the plaintiff resulting from the spouse's injury. Id.
In this case, the only issue during the two day trial was defendants' liability for Ms. Creighton's slip and fall. This determination was a prerequisite to recovery in both the negligence and loss of consortium cases. In both cases, the same facts, evidence, defenses, and legal arguments would support the jury's determination. Bifurcation of the issue of liability does not preclude trying the two cases simultaneously.
Furthermore, the Creightons' actions after the trial judge ordered bifurcation contradicts their assertion that they believed the loss of consortium case would be tried separately. Four days before the trial, the Creightons filed and served an amended list of the evidence and exhibits to be used in the trial. The document states, "[P]laintiffs hereby designate the following matters to be used as evidence or exhibits in the trial of the above cases." This document clearly refers to both cases and both plaintiffs, but references only one trial. Furthermore, the Creightons' conduct during the trial, previously discussed, evidences a knowledge and intent to try both cases simultaneously. Accordingly, we hold both actions were consolidated and tried together by consent of the parties, and the verdict rendered was for the loss of consortium claim, as well as the negligence action.

Dismissal of Discovery Abuse Motions
The Creightons argue the trial court erred in failing to rule on their motions for discovery abuse and dismissing the motions as moot at the conclusion of the liability trial.
A trial judge's ruling on discovery matters will not be disturbed on appeal absent an abuse of discretion. Dunn v. Dunn, 298 S.C. 499, 381 S.E.2d 734 (1989); Hook v. *122 Rothstein, 281 S.C. 541, 316 S.E.2d 690 (Ct.App.1984). The burden is on the appealing party to demonstrate that the trial court abused its discretion. Dunn, 298 S.C. 499, 381 S.E.2d 734. A reviewing court may find abuse of discretion where an appellant shows that the lower court's conclusion is based upon an error of law or without evidentiary support. Fontaine v. Peitz, 291 S.C. 536, 354 S.E.2d 565 (1987). "When a trial judge is vested with discretion, but his ruling reveals no discretion was, in fact, exercised, an error of law has occurred." Id. at 538, 354 S.E.2d at 566. If a court has discretionary authority, but rules as a matter of law, the matter should be reconsidered and passed on as a discretionary matter. Id.
Based upon our understanding of the record, the Creightons filed two motions for discovery protection and costs pursuant to Rules 26 and 30, SCRCP.[9] The trial judge held a pre-trial hearing at which he denied all discovery motions except those pertaining to damages. However, the trial judge reserved ruling on these motions. After a verdict was entered in favor of the defendants in the liability phase of the trial, the trial judge dismissed the remaining discovery abuse motions as moot. We agree with the Creightons that the trial court erred in finding the remaining discovery motions were moot.
Although there is no South Carolina precedent dispositive of this issue, federal case law indicates discovery abuse motions do not become moot when a case is terminated.[10]See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) ("[L]ike the imposition of costs, attorney's fees, and contempt sanctions, a Rule 11 sanction is not a judgment on the action's merits, but simply requires the determination of a collateral issue, which may be made after the principal suit's termination."); Roadway Exp., Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980) (after case dismissed pursuant to 28 U.S.C. § 1927 and Rule *123 37, FRCP, Court remanded case to district court for determination of 37(b) motion for costs and attorney's fees); Hedrick v. Comptroller of Currency, Washington, D.C., 68 F.3d 477, 477 (7th Cir.1995) ("dismissal of the underlying case alone does not moot the question of Rule 11 sanctions"); Heinrichs v. Marshall and Stevens, Inc., 921 F.2d 418 (2d Cir.1990) (affirming district court award of Rule 37 sanctions subsequent to a grant of summary judgment); Mercy v. Suffolk County, New York, 748 F.2d 52, 56 (2d Cir.1984) ("The sanctions provided in the Federal Rules of Civil Procedure are designed to prevent any litigant, whether or not he ultimately prevails, from being put to discovery expense that is unjustified."); Penthouse International, Ltd. v. Playboy Enter., Inc., 663 F.2d 371 (2d Cir.1981) (case remanded to district court for determination of Rule 37 sanctions despite complaint's dismissal); Merritt v. International Bro. of Boilermakers, 649 F.2d 1013 (5th Cir.1981) (interpreting Roadway Express as implicit recognition of district court's authority to assess attorney's fees and discovery expenses under Rule 37 post-judgment).
The record reflects the trial judge's disagreement with defense counsels' conduct during some depositions. At the hearing, the trial judge indicated he would consider ordering the defendants to pay the costs of bringing the out of state doctors in to testify concerning damages if the Creightons obtained a favorable verdict at the liability trial. Obviously, after a defendants' verdict was entered at the liability trial, this alternative was no longer available. However, the unavailability of a proposed sanction does not moot the issue of discovery abuse itself.
Additionally, the trial judge's failure to rule on all the Creightons' discovery abuse allegations contravenes the policies underlying the Rule's enactment. Discovery sanctions are imposed "to penalize those whose conduct may be deemed to warrant such a sanction, and to deter those who might be tempted to such conduct in the absence of such a deterrent." Karppi v. Greenville Terrazzo Co., 327 S.C. 538, 545, 489 S.E.2d 679, 683 (Ct.App.1997) (quoting National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976)). If defendants' counsel has *124 taken action warranting sanctions, dismissing the issue without ruling on its merits allows them to go unpenalized. Such action also decreases the likelihood of others being deterred from similar misconduct. Therefore, we find the trial judge erred in failing to rule on the remaining discovery abuse motions and remand the case for disposition of these issues. In so doing, we express no opinion as to the merits of the remaining allegations of discovery abuse.

Management of Trial
The Creightons argue the trial court's management of the trial was so prejudicial as to warrant reversal.
The Creightons contend the trial judge should have informed the jury that Ms. Creighton suffered substantial damages as a result of the slip and fall. On a few occasions, the trial judge said he would tell the jury Ms. Creighton suffered substantial damages. Although the trial judge probably should have mentioned this fact as he indicated he would, we find no abuse of discretion in the failure to mention substantial damages. In fact, the jury was aware Ms. Creighton suffered substantial damages because counsel for the Creightons mentioned it in his opening statement.
The Creightons argue defense counsel's behavior during the trial was prejudicial. This issue was not raised to the trial court; thus, it is not preserved for review on appeal.
The Creightons maintain the trial court's failure to allow recross examination of witnesses constituted reversible error. This issue was not raised below and cannot be raised for the first time on appeal.
The order of the trial judge is affirmed, with the exception of the unresolved discovery abuse issues. We remand the case to the trial judge for disposition of the remaining discovery allegations.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
CONNOR and STILWELL, JJ., concur.
NOTES
[1]  The unrefuted testimony is that there was a written agreement but that the written agreement could not be found.
[2]  This cause of action arose before the abrogation of contributory negligence and adoption of comparative negligence. Thus, contributory negligence and assumption of risk are viable defenses in this case. See Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991) (for all causes of action arising on or after July 1, 1991, a plaintiff may recover in a negligence action if his negligence is not greater than that of the defendant).
[3]  Section 10 of the lease provides that the lessor is charged with maintaining the common areas within the Shopping Center. Section 1(e) defines "common areas" as those "portions of the Shopping Center which have ... been designated and improved for common use by or for the benefit of more than one occupant of the Shopping Center; ... but excluding all portions of the Shopping Center which are used or intended for use by one occupant,...." Beverly Wilburn admitted in her testimony that the entrance steps were for the use of only one occupant, Rainbow's End.

Section 8.02 provides that the lessee "shall at all times keep the Premises, including, but not limited to, the maintenance of exterior entrances, ... in good order, condition, and repair including reasonable periodic painting as may be required, and including replacement of units to the extent necessary."
Section 8.07 provides that the lessee "shall keep the Premises and the walks adjacent thereto at all times in a neat, clean, and sanitary condition, free from waste or debris and shall neither commit nor permit any waste or nuisance thereon."
[4]  The expiration of the lease was not an issue raised before the trial court. However, it is clear in the record that the lease had expired prior to the date of Ms. Creighton's fall.
[5]  One who hires an independent contractor to perform a nondelegable duty remains liable for the negligence of the independent contractor just as if the independent contractor were an employee. Durkin, 313 S.C. 343, 437 S.E.2d 550. This exception to the general rule of nonliability for the torts of an independent contractor was not presented to the trial court nor presented to this court on appeal. Thus, we do not reach the issue of whether the duty to maintain the entrance steps was a nondelegable duty for which the Partnership remained liable.
[6]  The Creightons should have made a motion to strike the testimony or request a curative instruction, in addition to making a motion for a mistrial. See State v. Watts, 321 S.C. 158, 467 S.E.2d 272 (Ct.App. 1996) (appellant waived any objection to challenged testimony by rejecting court's offer to strike testimony or give curative instruction); State v. McFadden, 318 S.C. 404, 458 S.E.2d 61 (Ct.App. 1995); State v. Wingo, 304 S.C. 173, 403 S.E.2d 322 (Ct.App.1991) (when witness gives objectionable testimony and objection is sustained, issue not preserved unless objecting party makes motion to strike testimony).
[7]  The judge's order in the negligence action was not made a part of the record. Therefore, we cannot consider the order for purposes of appeal. See Crestwood Golf Club, Inc. v. Potter, 328 S.C. 201, 493 S.E.2d 826 (1997).
[8]  See Priester v. Southern Ry. Co., 151 S.C. 433, 149 S.E. 226 (1929).
[9]  Under Rules 26 and 30, a court may award expenses in accordance with Rule 37(a)(4), FRCP.
[10]  The language of Rule 37, SCRCP, is the same language as the Federal Rule with minor alterations. SCRCP Rule 3 notes (1998). The differences in the Federal Rule and South Carolina's are not relevant to this issue.


537 U.S. 1167
LOSKILLv.BARNETT BANKS, INC. SEVERANCE PAY PLAN ET AL.
No. 02-347.
Supreme Court of United States.
January 21, 2003.

1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.

2
C. A. 11th Cir. Certiorari denied. JUSTICE BREYER took no part in the consideration or decision of this petition. Reported below: 289 F. 3d 734.