No. 57978-9-I.The Court of Appeals of Washington, Division One.
July 16, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-2-04161-7, Nicole MacInnes, J., entered March 23, 2006.
Affirmed by unpublished opinion per Cox, J., concurred in by Agid and Ellington, JJ.
COX, J.
In this attorney malpractice action, Gary Lehman and Richard Rowland were required to prove four elements by a preponderance of the evidence: (1) The existence of an attorney-client relationship giving rise to a duty of care; (2) the attorney’s breach of that duty of care; (3) harm to the client; and (4) proximate causation between the attorney’s breach of the duty and the harm.[1] Proximate causation includes a determination of “but for” causation, requiring the trier of fact “to decide what a reasonable jury or fact finder [in the underlying trial or `trial within the trial’] would have done but for the attorney’s negligence.”[2]
Because Lehman and Rowland failed to show a genuine issue of material fact regarding cause in fact, we affirm the summary judgment dismissing the action. We also hold that the trial court did not abuse its discretion in imposing sanctions for the discovery violation at issue.
In 1998, Lehman and Rowland formed Highland Quick Stop, Inc. and FL, Ltd. and purchased a gas station franchise. After failing in their venture, they sued Mountain Oil, Inc., Mountain Oil, L.L.C., Tosco Corp., Phillips Petroleum Co., and ConocoPhillips Co. in September 2003. They alleged violations of the Franchise Investment Protection Act, the Gasoline Dealer Bill of Rights Act, and the Consumer Protection Act arising out of an alleged August 1998 written agreement between the parties. Michael Myers was their lawyer in that action.
During the litigation, Lehman, Rowland, and Myers attended a mediation with the opposing parties. Lehman and Rowland dispute Myers’ recollection that he was authorized to settle with the defendants in that action. They contend that he was authorized to elicit the best offer he could, but they did not authorize him to accept it. Myers recalls that they authorized him to settle for the defendants’ best offer.
In any event, he accepted a $271,000 offer by the defendants to settle the case. A superior court judge enforced the settlement when Lehman and Rowland later argued that Myers did not have authority to settle.
This malpractice action followed. Myers moved for summary judgment, which the trial court granted. The court also denied Lehman and Rowland’s motion for reconsideration. The court earlier granted Myers’ motion to compel, imposing sanctions of $2,000.
Lehman and Rowland appeal.
LEGAL MALPRACTICE
Lehman and Rowland argue that the trial court erred in granting the defendants’ motion for summary judgment in their legal malpractice suit and denying their motion for reconsideration. We hold that summary judgment was proper, although we do so based on an alternate ground. We also hold that the trial court did not abuse its discretion in denying the motion for reconsideration.
Summary judgment is appropriate if, viewing all facts in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.[3]
A factual dispute is material if the outcome of the case depends upon it.[4]
If the moving party is a defendant who makes an initial showing of the absence of a material fact, the plaintiff must offer prima facie evidence to support each essential element of its claim.[5] All inferences from the facts are to be interpreted in favor of the non-moving party.[6] We review a trial court’s summary judgment determination de novo.[7]
We review a trial court’s ruling on a motion to reconsider for a clear or manifest abuse of discretion.[8] “A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons.”[9]
To succeed on a claim of legal malpractice, a client must prove the following four elements:
(1) The existence of an attorney-client relationship which gives rise to a duty of care on the part of the attorney to the client; (2) an act or omission by the attorney in breach of the duty of care; (3) damage to the client; and (4) proximate causation between the attorney’s breach of the duty and the damage incurred.[10]
To establish breach in a legal malpractice case, courts frequently require a client to submit expert testimony that the attorney did not act reasonably.[11] In determining causation, Washington courts apply the “but-for” causation test. We inquire whether the attorney’s negligence more likely than not caused the harm, or otherwise stated, whether the client would have been successful absent the attorney’s negligence.[12]
This test applies to any attorney act or omission that was allegedly negligent.[13] We may affirm on any ground supported by the record even if the trial court did not consider the argument.[14]
Citing no Washington authority, Myers argues that this test, which necessarily requires the client to prove that it would have succeeded in the underlying action, does not apply to what he terms “negligent settlement” claims. This argument fails for at least two reasons. First, as noted, Myers does not cite any Washington authority to support his argument, and the treatises he cites are unhelpful in interpreting Washington law. Washington’s but-for causation test allows, indeed requires, the client to prove that it would have succeeded in its underlying claim.
Second, Myers misconstrues Lehman’s and Rowland’s claim. According to them, they are not simply displeased with the amount of money Myers obtained in settlement. Rather, they argue that Myers did not have their authority to settle their claims at all. Because that is the act or omission they argue was negligent — the unauthorized settlement of their claims — they must be allowed to prove that but for Myers’ breach, they would have taken their claims to trial and succeeded on the merits. Their complaint for malpractice, fairly read, supports their current theory of recovery.[15] Myers’ argument that Lehman and Rowland must prove what settlement amount would have been reasonable, and approved by the adverse parties, makes no sense in light of their argument that they did not wish to settle their claims at all. Whatever their theory is, they should be allowed to attempt to prove the causation element through evidence that but for the error, the outcome would have been more favorable.
We must address, of course, whether Myers’ motion for summary judgment shifted the burden of proof to Lehman and Rowland. In order for a moving defendant to shift the burden of proof to the plaintiff, the defendant must show” — that is, point? out to the district court — that there is an absence of evidence to support the nonmoving party’s case.”[16] Here, although Myers argued against using the case-within-a-case approach, he also argued that Lehman and Rowland could not succeed under that approach. For example, his motion for summary judgment stated, “[E]ven if the case within a case approach were theoretically permissible, plaintiffs’ claims still fail because plaintiffs cannot prove liability in the underlying case.”[17] Thus, the burden shifted to Lehman and Rowland to produce prima facie evidence of all the elements of their claims.[18]
Lehman and Rowland asserted three causes of action against the defendants in the underlying lawsuit. First, Lehman and Rowland alleged that the defendants violated the Franchise Investment Protection Act when they failed to make certain required disclosures. Second, Lehman and Rowland claimed that the defendants breached the terms of the franchise agreement in violation of the Gasoline Dealer Bill of Rights Act. Third, Lehman and Rowland claimed that the defendants engaged in unfair and deceptive business practices in violation of the Consumer Protection Act, RCW Chapter 19.86. They sought money damages and rescission of all agreements with defendants.
In response to Myers’ motion for summary judgment, Lehman and Rowland submitted no evidence to support the elements of these claims. In support of their opposition to summary judgment, they attached as evidence the following: the answers filed in the underlying lawsuit; an unpublished United States District Court opinion in an unrelated case; and declarations of Lehman. The declarations contain only minimal allegations of a very general nature that the defendants in the underlying lawsuit violated any law or agreement. In addition, their brief in opposition to summary judgment did not argue how they met the elements of their underlying claims. In the absence of any evidence to support their claims in the underlying lawsuit, they have not made a prima facie showing that but for their attorney’s negligence, they would have taken their case to trial and succeeded on the merits of the underlying lawsuit. Thus, they did not establish the causation element, and summary judgment was proper.
Also, Lehman and Rowland submitted no evidence that their attorney acted below the standard of care when he settled their claims, allegedly without authority. In support of their motion for reconsideration, they attached a declaration of their current appellate attorney, who summarily opined that Myers breached his duty in the underlying suit. This declaration was untimely and would not have been properly considered by the trial court.[19] Because they did not submit any evidence of this element with their opposition to summary judgment, Lehman and Rowland did not meet their burden to show Myers breached his duty.
The parties dispute the applicable statutes of limitations for the claims in the underlying lawsuit. In light of our conclusion that Lehman and Rowland submitted no evidence to support their claims, we need not consider these arguments.
Based on the above analysis, we also need not consider Myers’ argument that Lehman and Rowland’s claims were improperly assigned to them.
DISCOVERY SANCTIONS
Lehman and Rowland argue that the trial court abused its discretion in sanctioning them for $2,000 for failing to answer an interrogatory. We disagree.
Trial courts have broad discretion in the choice of sanctions for violation of a discovery order.[20] We review a trial court’s ruling for a clear abuse of that discretion.[21]
Civil Rule 26(g) requires an attorney to certify discovery responses after a reasonable inquiry, indicating that the response is consistent with the discovery rules and the law, not used for improper purpose or delay, and not unreasonable or unduly burdensome.[22] Under Civil Rule 33, an interrogatory must be “answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer.”
Sanctions are appropriate if an attorney violates these rules by filing a misleading response after certifying otherwise, even if the violation is not intentional.[23] “Fair and reasoned resistance to discovery,” however, is not sanctionable.[24] Depending on the circumstances, a delay in responding to discovery can warrant monetary sanctions.[25]
Here, Myers submitted the following interrogatory on January 14:
Interrogatory No. 3: State the amount that would have constituted an “adequate” recovery in the underlying litigation and describe in detail the factual basis supporting a recovery in that amount, and the manner of calculation.[26]
On March 11, almost a month after a response was due, Myers moved to compel an answer. The trial court granted the motion, giving Lehman and Rowland five days to respond. Almost a month later, Myers moved to dismiss the case for a lack of response to the trial court’s order, and the trial court denied the motion.
The parties then had a conference pursuant to Civil Rule 37. In that conference, Lehman and Rowland only committed to providing partial answers to the discovery requests by May 2005.
Then, on April 19, Lehman and Rowland submitted the following response:
“Adequate recovery” in the underlying action would have been the amount necessary to make the clients whole, plus any statutory additions. See, Supplementary Response to Interrogatory No. 4 for the best calculation currently available of a recovery that would have been adequate.[27]
Their answer to Interrogatory No. 4 explained in more detail specific allegations of damages in the underlying action.
Lehman and Rowland’s theory of the case is that Myers did not have the authority to settle their case. Pursuant to this theory, their answer to the interrogatory was proper because “adequate recovery” under their theory was what they could have recovered at trial. In contrast, apparently Myers and the trial court assumed that their theory was that Myers was negligent in settling the case for an amount that was too low. This was a logical conclusion because the language of Lehman and Rowland’s complaint arguably supports both theories. It alleges that Myers “exceeded his authority in negotiating a settlement . . . for consideration well below the reasonable settlement value of the suit.”[28] But Lehman and Rowland never took the opportunity to correct Myers or the trial court and clarify their actual theory of the case. Without such a clarification, the trial court did not abuse its discretion in considering the untimely interrogatory response to be non-responsive.
We affirm the trial court’s orders.
(1989).
(1997), superseded by statute on other grounds, RCW 26.09.405.
(2003).
(1997).