Rabbage v. Lorella

Decision Date10 September 2018
Docket NumberNo. 77053-5-I,77053-5-I
Citation426 P.3d 768
CourtWashington Court of Appeals
Parties Margeaux RABBAGE and Chris Bajuk, Appellants, v. Theresa LORELLA, individually and on behalf of the marital community of Theresa Lorella and John Doe Lorella, and Michael V. Fancher, individually and on behalf of the marital community of Michael V. Fancher and Jane Doe Fancher d/b/a Seattle Divorce Services, Respondents.

Brian J. Waid, Waid Law Office, 5400 California Ave. Sw Ste. D, Seattle, WA, 98136-1501, for Appellants

Lori Worthington Hurl, FORSBERG & UMLAUF, P.S., 901 5th Ave. Ste. 1400, Seattle, WA, 98164-1039, Mark Tyson, Attorney at Law, 2213 Federal Ave. E, Seattle, WA, 98102-4143, for Respondent.

PUBLISHED OPINION

Becker, J.

¶ 1 This is an appeal from an order dismissing a legal malpractice claim on summary judgment. There are material issues of fact as to whether the omissions of a successor attorney constituted an independent superseding cause of the plaintiff’s damages. We reverse.

FACTS
1. Plaintiff Rabbage obtains a decree of dissolution by default

¶ 2 Margeaux Rabbage, appellant, married Niall Kennedy in July 2009. They separated in December 2013. In September 2014, Rabbage, representing herself, filed a petition to dissolve the marriage. The couple had no children. The petition itemized property and debts and asked that the home in Tacoma be sold and the proceeds split equally after the mortgage was paid off. Rabbage made a number of attempts to serve Kennedy. Although Rabbage did not achieve formal service, Kennedy knew about the petition. He filed a response pro se in December 2014 and asked that notice of further proceedings be sent to him at a stated address.

¶ 3 In February 2015, Rabbage retained Seattle Divorce Services to represent her in moving forward with the dissolution. Respondent Theresa Lorella, an attorney with Seattle Divorce Services, formally appeared for Rabbage on April 1, 2015. Lorella and Kennedy attended a status conference in June 2015. The court ordered that the case could not proceed without a record of valid service on Kennedy. Lorella filed and served an amended summons and petition on July 9, 2015. Kennedy does not dispute the validity of this service. In personam jurisdiction is uncontested.

¶ 4 Kennedy did not respond to the amended summons and petition. In November 2015, Lorella prepared a motion on behalf of Rabbage for an order of default. Lorella did not note the motion up for a court hearing. Instead, she sent a copy of the motion and proposed final decree to Kennedy with a cover letter advising him that she planned to present them a few days later for entry by the superior court "via ex parte."

¶ 5 On November 24, 2015, a superior court commissioner entered the proposed default dissolution decree that dissolved the marriage and divided the property. The decree awarded the house in Tacoma to Rabbage. Kennedy was to convey his interest in the house to Rabbage by quitclaim deed or else the court would appoint a special master to sign a quitclaim deed.

¶ 6 Effective December 3, 2015, Lorella withdrew as Rabbage’s attorney.

¶ 7 On December 17, 2015, Rabbage married Chris Bajuk.

2. Rabbage’s ex-husband moves successfully to vacate the default decree

¶ 8 Rabbage retained a real estate attorney, David Britton, to assist with conveyance of the Tacoma property. Britton filed a notice of appearance in the dissolution cause number. On January 12, 2016, he moved on behalf of Rabbage for appointment of a special master to quitclaim the Tacoma property to Rabbage.

¶ 9 On February 5, 2016, Kennedy—now represented by counsel—filed a motion to vacate the default decree of dissolution under CR 60(b)(1). He requested a restraining order to prevent Rabbage from disposing of the property unilaterally.

¶ 10 A party who has appeared in an action "shall be served with a written notice of motion for default and the supporting affidavit at least 5 days before the hearing on the motion." CR 55(a)(3). If no such notice is received, the party "is generally entitled to have judgment set aside without further inquiry." Morin v. Burris, 160 Wash.2d 745, 754, 161 P.3d 956 (2007). No showing of a meritorious defense is necessary. Tiffin v. Hendricks, 44 Wash.2d 837, 847, 271 P.2d 683 (1954). Kennedy asserted that he appeared in the action by personally attending the status conference in June 2015. He argued that he was entitled to have the decree set aside as a matter of right because he did not receive notice that a motion for default was scheduled for a hearing. He also argued that even if his attendance at the status conference did not constitute an appearance, he was entitled to have the decree set aside on the grounds of mistake, inadvertence, and excusable neglect. Kennedy declared that his failure to respond to the amended summons and complaint was due to medical problems he was experiencing as a disabled veteran.

¶ 11 On February 10, Britton submitted a brief titled "Petitioner’s Reply in Support of Motion for Appointment of Special Master." Despite the title, this brief also generally stated Rabbage’s opposition to the motion to vacate the decree. The brief did not mention that Rabbage had already married someone else.

¶ 12 Judge Judith Ramseyer heard Kennedy’s motion. On February 29, 2016, she ruled that Kennedy’s failure to respond due to his medical condition was inadvertence and excusable neglect under CR 60(b)(1). Unaware that Rabbage had married Bajuk, Judge Ramseyer set aside the dissolution decree in its entirety. See CR 55(c)(1). The effect was to leave Rabbage married to both Kennedy and Bajuk. Rabbage did not move for reconsideration. She moved ahead on the new trial schedule established by Judge Ramseyer and obtained a second decree of dissolution of her marriage to Kennedy. The second decree, entered August 31, 2016, awarded the Tacoma house to Kennedy.

3. Rabbage files a malpractice suit against Lorella

¶ 13 On March 30, 2017, Rabbage brought this malpractice cause of action against Lorella. She alleged that Lorella violated the standard of care by failing to serve Kennedy in compliance with CR 55(a)(3) and as a result, the default decree was "null and void." She further alleged that Lorella should have realized that the decree was void and should have advised her of the error before she married Bajuk. Rabbage claimed that the vacation of the decree caused her to suffer extreme emotional distress due to concerns about bigamy and the delay in completing the dissolution of her marriage with Kennedy. She also claimed as damages the expense of hiring new counsel to complete the dissolution and her loss of the more favorable division of marital property as ordered in the default decree.

¶ 14 Lorella moved for summary judgment. For the purpose of summary judgment only, Lorella’s motion accepted that she was negligent. The only element of malpractice she put at issue was causation. In order for an attorney's negligent conduct to constitute legal malpractice, the breach of duty must be a proximate cause of the resulting injury. Halvorsen v. Ferguson, 46 Wash. App. 708, 719, 735 P.2d 675 (1986), review denied, 108 Wash.2d 1008, 1987 WL 502990 (1987). Proximate cause is usually the province of the jury, but the court can determine proximate cause as a matter of law if reasonable minds could not differ. Smith v. Preston Gates Ellis, LLP, 135 Wash. App. 859, 864, 147 P.3d 600 (2006), review denied, 161 Wash.2d 1011, 166 P.3d 1217 (2007).

¶ 15 Lorella argued that Britton, as successor counsel, was an intervening and superseding cause of Rabbage’s distress. She alleged that when responding to Kennedy’s motion to vacate, Britton negligently and unforeseeably failed to take steps that would have prevented the outcome of Rabbage being married to two men at the same time, including the obvious step of alerting the court and opposing counsel that Rabbage had remarried.

¶ 16 The trial court granted Lorella’s motion and dismissed the lawsuit. Rabbage appeals.

¶ 17 This court reviews summary judgment de novo. Lavigne v. Chase, Haskell, Hayes & Kalamon, P.S., 112 Wn. App. 677, 682, 50 P.3d 306 (2002). "Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Lavigne, 112 Wash. App. at 682, 50 P.3d 306. The facts and resulting reasonable inferences are considered in the light most favorable to the nonmoving party. Lavigne, 112 Wash. App. at 682, 50 P.3d 306.

4. Rabbage incorrectly argues that Britton, the successor attorney, could not have prevented the damage caused by vacation of the default judgment

¶ 18 In opposition to Lorella’s argument that her own negligence was superseded by Britton’s, Rabbage contends there was nothing Britton could have done to achieve a better outcome. Rabbage argues that vacation of the default decree was the inevitable result of Lorella’s negligence. The question is whether a reasonable judge in Judge Ramseyer’s position would have refused to vacate the dissolution of the marriage if she had been informed that Rabbage was remarried. This is a question of cause in fact, but because it requires legal analysis, it is appropriately decided as a matter of law, irrespective of whether the facts are undisputed.

Daugert v. Pappas, 104 Wash.2d 254, 257-59, 704 P.2d 600 (1985).

(a) The default decree of dissolution was not void.

¶ 19 Rabbage first asserts that Judge Ramseyer had no option except to vacate the entire decree because it was void ab initio.

¶ 20 Void judgments lack legal effect. In re Marriage of Leslie, 112 Wash.2d 612, 618-20, 772 P.2d 1013 (1989). A court has a nondiscretionary duty to vacate a void judgment. In re Marriage of Markowski, 50 Wash. App. 633, 635, 749 P.2d 754 (1988). If the default decree was void, Judge Ramseyer would not have had the power to salvage any part of it. If the default decree was void, the damage to Rabbage was already done before Britton became her attorney.

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    ...of service is presumptively correct.") (citing Woodruff, 76 Wn. App. at 210). 19. See Rabbage v. Lorella, 5 Wn. App. 2d 289, 297-98, 426 P.3d 768 (2018) (explaining improper service of a motion in a dissolution action does not affect the trial court's subject matter jurisdiction or personal......
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